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Gay Rights Laws, Slippery Slopes, and a Constitutional Right to Same-Sex Civil Unions:

The New Jersey Supreme Court has just held that the New Jersey Constitution's equal protection principles require the legislature to recognize at least same-sex civil unions. (Whether the legislature must recognize outright same-sex marriage is left open.) I'm not sure I'll have much to add on the big picture questions this raises, but I did want to note one thing -- this decision, whether you like it or not, seems to be an illustration that the slippery slope is a real phenomenon. Even when there are conceptually quite clear distinctions that could be used to distinguish the first step A from the final step B, A may nonetheless help bring B about.

Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights." See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as saying that "[t]hose that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little." And see the Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages."

Yet the New Jersey Supreme Court's equal protection argument begins by citing such non-same-sex-marriage, non-civil-union gay rights laws (citations omitted):

In addressing plaintiffs' claimed interest in equality of treatment, we begin with a retrospective look at the evolving expansion of rights to gays and lesbians in this State. Today, in New Jersey, it is just as unlawful to discriminate against individuals on the basis of sexual orientation as it is to discriminate against them on the basis of race, national origin, age, or sex. Over the last three decades, through judicial decisions and comprehensive legislative enactments, this State, step by step, has protected gay and lesbian individuals from discrimination on account of their sexual orientation.

In 1974, a New Jersey court held that the parental visitation rights of a divorced homosexual father could not be denied or restricted based on his sexual orientation. Five years later, the Appellate Division stated that the custodial rights of a mother could not be denied or impaired because she was a lesbian. This State was one of the first in the nation to judicially recognize the right of an individual to adopt a same-sex partner's biological child. Additionally, this Court has acknowledged that a woman can be the "psychological parent" of children born to her former same-sex partner during their committed relationship, entitling the woman to visitation with the children. Recently, our Appellate Division held that under New Jersey's change of name statute an individual could assume the surname of a same-sex partner.

Perhaps more significantly, New Jersey's Legislature has been at the forefront of combating sexual orientation discrimination and advancing equality of treatment toward gays and lesbians. In 1992, through an amendment to the Law Against Discrimination, New Jersey became the fifth state in the nation to prohibit discrimination on the basis of "affectional or sexual orientation." In making sexual orientation a protected category, the Legislature committed New Jersey to the goal of eradicating discrimination against gays and lesbians. In 2004, the Legislature added "domestic partnership status" to the categories protected by the LAD.

The LAD guarantees that gays and lesbians, as well as samesex domestic partners, will not be subject to discrimination in pursuing employment opportunities, gaining access to public accommodations, obtaining housing and real property, seeking credit and loans from financial institutions, and engaging in business transactions. The LAD declares that access to those opportunities and basic needs of modern life is a civil right.

Additionally, discrimination on the basis of sexual orientation is outlawed in various other statutes. For example, the Legislature has made it a bias crime for a person to commit certain offenses with the purpose to intimidate an individual on account of sexual orientation, and has provided a civil cause of action against the offender. It is a crime for a public official to deny a person any "right, privilege, power or immunity" on the basis of sexual orientation. It is also unlawful to discriminate against gays and lesbians under the Local Public Contracts Law and the Public Schools Contracts Law. The Legislature, moreover, formed the New Jersey Human Relations Council to promote educational programs aimed at reducing bias and bias-related acts, identifying sexual orientation as a protected category, and required school districts to adopt antibullying and anti-intimidation policies to protect, among others, gays and lesbians.

In 2004, the Legislature passed the Domestic Partnership Act, making available to committed same-sex couples "certain rights and benefits that are accorded to married couples under the laws of New Jersey." With same-sex partners in mind, the Legislature declared that "[t]here are a significant number of individuals in this State who choose to live together in important personal, emotional and economic committed relationships," and that those "mutually supportive relationships should be formally recognized by statute," The Legislature also acknowledged that such relationships "assist the State by their establishment of a private network of support for the financial, physical and emotional health of their participants." ...

In passing the Act, the Legislature expressed its clear understanding of the human dimension that propelled it to provide relief to same-sex couples. It emphasized that the need for committed same-sex partners "to have access to these rights and benefits is paramount in view of their essential relationship to any reasonable conception of basic human dignity and autonomy, and the extent to which they will play an integral role in enabling these persons to enjoy their familial relationships as domestic partners." Aside from federal decisions such as Romer v. Evans and Lawrence v. Texas, this State's decisional law and sweeping legislative enactments, which protect gays and lesbians from sexual orientation discrimination in all its virulent forms, provide committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples.

Later in the case (opinion pages 48-49 and 51-52), the court refers back to this reasoning, and uses it as an integral part of its equal protection argument.

Now maybe this entire discussion, though detailed and prominently placed, is all makeweight; maybe the court would have reached the same result even if such laws hadn't been enacted, and would have found that something else besides those laws "provide[s] committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples." But if we take the New Jersey Supreme Court at its word, it sounds like in New Jersey antidiscrimination laws, domestic partnership laws, and hate crime laws did indeed help bring about same-sex civil unions, just as they did in Vermont (PDF pages 59-61) and, as to same-sex marriage, in Massachusetts.

One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter (see PDF page 37), but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions).

Related Posts (on one page):

  1. The Third Way in New Jersey:
  2. The New Jersey marriage decision and the unstable middle ground:
  3. Gay Rights Laws, Slippery Slopes, and a Constitutional Right to Same-Sex Civil Unions:
  4. Third Way Result in New Jersey Marriage Case:
plunge (mail):
Definately a good point, and hard to argue with.
10.25.2006 6:41pm
BobNSF (mail):
It seems somewhat disingenuous to call deliberate, legislative moves towards equal rights as "the slippery slope". One slips unintentionally, no?
10.25.2006 6:42pm
BobNSF (mail):
All human progress (and regression) is, by this definition, a "slippery slope".

Oh, and a small point, I thought the "final step" of the slippery slope of gay equality was the destruction of society...
10.25.2006 6:50pm
Chumund:
Of course, rather than events in a causal chain, these could instead be a series of effects caused by an underlying social dynamic (e.g., a growing acceptance of gay people and gay relationships by the people who make up the society of N.J.). Indeed, one would expect to find a legal progression of some sort as such a dynamic played out, but that would not mean the progression was actually causal.
10.25.2006 6:51pm
JB:
BobNSF: The destruction of society cannot be mandated by the court system.

Give it a few days, at least until the election.
10.25.2006 6:52pm
ras (mail):
BobNSF,

One slips unintentionally, no?

But the quotes Mr. Volokh cited from various opinion makers and officials - the ones preceding the large blockquote from the decision itself - make clear that they purported that the preceding changes would not grease the skids for gay marriage, whereas they most certainly did.

One can argue whether it was disingenuous and intentional on their part (or not?), but from the pt of view of the average voter, the pt remains that those laws were indeed shown to be the start of a slippery slope after all, in spite of previous assurances to the contrary.
10.25.2006 6:54pm
KeithK (mail):
Bob, the point is that these earlier steps were used as justification for a judicial decision mandating same sex marriage (in effect if not in name). The last step was certainly an unintentional slip, at least for the NJ legislature as indicated by that body's actions. Thus the previous legislative actions *did* help create a slippery slope towards same sex marriage.


Oh, and a small point, I thought the "final step" of the slippery slope of gay equality was the destruction of society...

Who says we've made it to the bottom of the slope yet? (If you can be snarky, so can I.)
10.25.2006 6:55pm
Nathan Hall (mail):
It seems absurd that the State's entirely reversible legislation taking steps in the direction of gay marriage can serve as an integral part of an argument to confer an irreversible Constitutional right to the final step in that direction. If the legislature were to repeal all these statutes, would this ruling have to be reversed? If the presence of these laws is integral to its reasoning, how could the decision stand without them?

If this ruling confers a Constitutional right that cannot be revoked on the neccessary basis of laws passed by the legislature, then in effect it is imposing stare decisis on the legislature, since that body must now be unable to repeal its own laws.
10.25.2006 6:57pm
Steve:
If the NJ court had ruled the other way, would it prove that there is no slippery slope?

This is my issue with Prof. Volokh's slippery slope theory: it can seemingly be validated, but never invalidated. You can never prove that we're not in the middle of the process of slipping.
10.25.2006 6:57pm
te:

this decision, whether you like it or not, seems to be an illustration that the slippery slope is a real phenomenon.

Uh, no.

If this were true, then in every instance (or a significant mahority of instances) in each state that has outlawed active discrimination against gay people in hiring, etc. would have judicial decisions recognizing gay marriage. Many, many states have recognized or enacted laws against active discrimination against gays in hiring, but have still - nonetheless - enacted laws barring gay marriage.

I mean, if the form of argument is 1, 2, 3 were steps down the slippery slope as proven by step 4, how do you account for all of those states where you have steps 1, 2, and 3 but -negative of step 4-?
10.25.2006 7:01pm
te:
mahority=majority
10.25.2006 7:02pm
eddiehaskel (mail):
I am not sure what the slippery slope is in this context. Certainly, for most people in this debate, the reference to a slippery slope is the "demise of marriage" and consequently the downfall of the American social fabric.

Perhaps, evolution is a better way of describing this "development". I understand all of the legislative arguments, but how does one craft a remedy for discrimination without telling the legislature what to do? If there is an institutional discrimination which is evident in a whole range of laws, is the only remedy for the discriminated individual to petition his legislators? And if this individual is a minority . . . ?

Let's take this out of the charged atmosphere of the culture wars:

I set up a foundation that gives aid to drug addicts but can find no public funding, yet every religious group doing the same service receives money. Let's say that I re-define my foundation and become born again. Suddenly I am funded. Is there any Constitutional problem with this? Do I have recourse? And is my only recourse statutory and not Constitutional?

On the one hand the argument is that the government has a legitimate right to support marriage and grant certain rights to support the "institution". Yet can the government support any "institution" that is inherently discriminatory, i.e. defined as heterosexual? Is this really a legislative problem or merely old common law ideas bumping their heads into a new fangled conception of government call the US Constitution?

It is obvious where I fall in this debate; but I do not think that all of this talk about "textualism" and judicial "legislation" is in good faith. There are many, many places where "tradition" was expressly thrown out the window by the Founders. It is only present day "purists" who seem to find the language of the Constitution so confining and rigid. The Founders expressly wanted a rational system of government to be limited in its power and granted the individual citizens a universe of rights. That tradition may have provided certain privileges and rights to certain individuals is directly in opposition to this principle. And yet here we go again with the slippery slope.

The slippery slope I am concerned about is the grant of despotic powers to the executive branch of this government. But a decision by a State Supreme Court saying that the government is giving one set of citizens rights and denying them to other similarly situated citizens . . . this I do not find so controversial. The "libertarian" response should be that the government get out of the marriage business. And that would be a rational and reasoned position that comports with the letter and spirit of the Constitution. But of course it would mean repealling all of those laws that do favor heterosexuals. And there's the real rub.
10.25.2006 7:04pm
MnZ (mail):
Slippery slopes? Maybe it's just bait-and-switch.
10.25.2006 7:04pm
Nathan Hall (mail):
te:

I think you misunderstand Prof. Volokh's point. The presence of a slippery slope doesn't imply the inevitability of slipping down it, only an increased propensity to do so. So it is entirely possible to have 1,2, and 3 without 4. 4 may be difficult to acheive, so that even with the help of a slippery slope, it doesn't happen in most states.

The fact that the passage of antidiscrimination laws by the legislature plays an integral role in today's decision indicates that the Court was more likely to reject gay marriage if those laws had not been passed. But that is exactly what a slippery slope means: the passage of certain (perhaps desirable) laws will increase the likelihood of some unintended (and perhaps undesirable) result.
10.25.2006 7:09pm
Chumund:
By the way, I think it will benefit this discussion to pay close attention to exactly how what the court calls a "retrospective look at the evolving expansion of rights to gays and lesbians in this State" figures in its reasoning (Professor Volokh calls it "an integral part of its equal protection argument," but that is a bit vague).

The upshot of the court's reasoning on this subject appears to be this: "In light of the policies reflected in the statutory and decisional laws of this State, we cannot find a legitimate public need for an unequal legal scheme of benefits and privileges that disadvantages committed same-sex couples." I would suggest that this reasoning supports my proposed alternative view: what the court is claiming is that these prior legal developments "reflect" an underlying policy. In turn, this underlying policy eliminates the possibility that there is a legitimate need for the unequal scheme in question.

Accordingly, it is this underlying policy which is doing the actual legal work, not the prior statutes and decisions, although the latter do in fact "reflect" the same policy. I think that is conceptually equivalent to what I suggested: in the court's conception, the series of statutes and decisions represents not a causal chain, but rather a series of legal effects of an underlying policy which has developed over time.
10.25.2006 7:13pm
randal (mail):
Eugene! What you have described is not a "slippery slope"!

A slippery slope is when the reasoning behind question A (e.g. gay marriage) can be applied to question B (e.g. polygamy) such that achieving result A may implicitly achieve result B, at least in part.

That's not what the NJ court did at all! They did not use the reasoning of the legislature in enacting anti-discrimination laws as an argument for civil unions. Rather, they used the enactment of anti-discrimination laws as evidence concerning the status of homosexuals. The argument for civil unions came about through a constitutional argument, which is completely different from the way the anti-discrimination statues came about.

You can say that the anti-discrimination laws "paved the way" or "opened the door" or "provided ammunition" or something, but it was not a "slippery slope" situation.

You seem to almost recognize this when you point out that anti-discrimination and civil unions are "eminently distinguishable". Duh! That wouldn't be surprising if you weren't irrationally trying to pretend this is the long-feared "slippery slope". It isn't.
10.25.2006 7:13pm
Brian G (mail) (www):
I support same-sex marriage laws as a matter of legislative policy (as opposed to judicial implementation) because they way I see it, why shouldn't homosexuals be every bit as miserable as guys like me who are married? Why shouldn't they have to put up with the same nonsense that I have to? Besides, I knew a few future family law attorneys who could use another revenue stream in the future.
10.25.2006 7:14pm
Kovarsky (mail):
Eugene,

I don't understand what you mean when you say that you don't think state courts should mandate them as a constitutional matter.

State courts should in fact enforce state constitutional provisions, which are ratified by a state's legislative supermajority and its chief executive.

If you are saying that you don't think state courts should mandate them in the absence of state constitutional authority to do so, of course I agree. But that's not how I read your comment, which just states that state courts shouldn't mandate SSM. If a state court is honestly interpreting the state constitution, I don't understand how a constitutional requirement for SSM is a judicial mandate in any unusual sense. And if it s not a judicial mandate in any unusual sense, I don't understand why courts "ought" not to enforce it.
10.25.2006 7:15pm
randal (mail):
In other words, it's not a slippery slope every time one thing leads to another.
10.25.2006 7:17pm
Chumund:
Nathan,

Again, though, one alternative explanation for this apparent progression is that the prior laws and the later laws both have a common cause (e.g., changing norms in N.J. society), and that the court is merely making that observation.

In that sense, perhaps if the prior laws had never been passed the court would have failed to identify this underlying change, which may have led it to a different decision in this case. But that is an odd counterfactual hypothetical: if the prior laws were passed because the underlying changes were occurring, then to hypothesize the priors laws not being passed would seem to require us to assume the underlying change had not been occurring. And that would be a different world than one in which we live, not just because it posits a different set of laws, but also because it posits by inference a different sort of society in N.J.

Of course, it would be a different matter if one posited the prior laws actually had so profound an influence on N.J. society that they in fact caused these underlying societal changes. Personally, though, I doubt it--I strongly suspect that other forces have played a much larger role in shaping N.J. society.
10.25.2006 7:22pm
Henri LeCompte (mail):
Speaking of slippery slopes (a double entendre comes to mind, but I will refrain):

Can anyone explain to me why the arguments for gay marriage would not apply to polygamy? Isn't it essentially analogous to gay marriage? Just as is any other alternative lifestyle choice?
10.25.2006 7:24pm
Kovarsky (mail):
i find any legal rule that has to incorporate the changing morality of new jersey to be a bit amusing.
10.25.2006 7:32pm
plunge (mail):
"Can anyone explain to me why the arguments for gay marriage would not apply to polygamy? Isn't it essentially analogous to gay marriage?"

I dunno, wouldn't allowing a gay person to be elected President no different than allowing there to be two simultaneous Presidents?
10.25.2006 7:35pm
te:
Nathan

I think I understand your point (if I may paraphrase) that a slippery slope does NOT mean that 1, 2, and 3 perforce causes 4.

But, if the "slippery slope" is to be valid I think that occurrence of 1, 2, and 3 would lead to an markedly increased chance of 4.

I guess the control question would be are there any instances where you have 4 without 1, 2 and 3 as compared to the instances where you DO have 1, 2, 3 and then 4.

But it seems that all this would get us to is the ad hoc ergo prompter hoc fallacy.

One poster above notes that societal attitudes towards gays have changed in recent years (with the exception of the "end of days" religious nutjobs whose beliefs do not lend themselves to rational analysis in any event.) So it is possible that the shift in societal attitudes caused each of these changes independently rather than depending on the occurrence of each prior change to "grease the skids" or whatever.

One thing that is absent from this is the the fact that the overall objections to gay marriage seems to be that it will somehow "harm" traditional marriage but that traditional marriage has been on the decline for decades independent of any push from gay folks goin' to the chapel.
10.25.2006 7:39pm
Nathan Hall (mail):
Chmund,

That is a serious objection to Prof. Volokh's view. If your hypothesis of an underlying policy shift is correct, I think you may be right not to attribute this judgement to any sort of slippery slope. It would be better explained by the inexplicable decision to enshrine the unpopular logical consequence of current policy trends as enduring constitutional law, but that is a different discussion.
10.25.2006 7:49pm
lrC (mail):
"Slippery slope" conditions are ubiquitous in social policy discussions. Proponents propose policy A; opponents counter that A can lead to B, that B is undesirable, therefore we should not have A lest we also have B. Proponents then respond that A doesn't have to lead to B and that the objection should be discarded.

Sometimes proponents will (deliberately or accidentally) conflate "A can lead to B" with "A must lead to B", demonstrate that B doesn't necessarily follow and claim that a slippery slope fallacy has been argued, and conclude the objection has been removed. But, all the proponents have done is create a straw man and demolish it. The question of A possibly leading to B is not resolved.

Even without that dead-end, proponents will rarely concede that a mere possibility of B should constitute an objection overthrowing A. If B transpires, they'll retreat behind a defence of "good intentions". Therein liesthe difficulty: how certain do adverse consequences have to be?

The same-sex marriage/polygamy discussion is a good example. Polygamy doesn't have to follow from SSM, but it can; and, in the case of polygamy, most of the same lines of reasoning apply (in the Canadian context, the right to express one's sexuality ultimately decided the question - no prizes for guessing what precedent that sets for non-monogamous sexuality). When the debate takes place, it will be delightfully ironic because some of the people who argued for SSM will object to polgamy (having already done so in the course of dismissing the slippery slope from SSM to polygamy). They will take their turn complaining about slippery slopes: arguing adverse consequences (B) of polygamy (A).
10.25.2006 7:58pm
Paul Sherman:

"Can anyone explain to me why the arguments for gay marriage would not apply to polygamy? Isn't it essentially analogous to gay marriage?"

I dunno, wouldn't allowing a gay person to be elected President no different than allowing there to be two simultaneous Presidents?

The thread is over. This post wins.
10.25.2006 8:12pm
KeithK (mail):

If you are saying that you don't think state courts should mandate them in the absence of state constitutional authority to do so, of course I agree. But that's not how I read your comment, which just states that state courts shouldn't mandate SSM. If a state court is honestly interpreting the state constitution, I don't understand how a constitutional requirement for SSM is a judicial mandate in any unusual sense. And if it s not a judicial mandate in any unusual sense, I don't understand why courts "ought" not to enforce it.

I don't presume to speak for Eugene, but I don't think you're being fair. If a state constitution had a clause that unequivocally mandated same sex marriage ("Marriage in this state shall be the unuion of two people regardless of sex" or some such) then I'm sure he (and I) would support that state's court enforcing that measure. But there are no US states that haver such a constitutional clause. In order to argue a right to SSM as a constitutional matter you have to extrapolate from the text in ways that are controversial. I think it's reasonable to believe that a court shouldn't mandate new controversial rights based on extrapolation.
10.25.2006 8:12pm
Caliban Darklock (www):
Some rambling observations.

I've always thought it illuminated the question somewhat to ask whether SSM is itself a slippery-slope consequence of marriage-as-we-know-it.

SSM is really only relevant to polygamy if the multiple spouses of a partner are married to each other as well as the partner. This is not traditionally the case.

People generally get uptight about polygamy because they think it means "one man with many wives". If you take into account that polygamy in a society with equal rights has never existed in human history, and that such a society would necessarily include "one woman with many husbands" and "many husbands with many wives" in the equation... it looks a little different.

Slippery slopes are often slippery later even when they aren't slippery now. All it takes is a minor shift in the interpretation of what a particular group is or means. We currently have a lot of states deciding whether their constitutions, written in the eighteenth and nineteenth centuries, protect the right of same-sex marriage. The question would never have been asked when those documents were written; the idea that such a thing would be called "marriage" was simply foreign to the document's framers. The same sort of reasoning could turn something we can now easily distinguish (like a gay president from two presidents) into something we cannot sufficiently distinguish from a legal perspective to prevent.
10.25.2006 8:17pm
Daniel Chapman (mail):
re: "This post wins"

Ordinarily I'd just assume this was sarcasm, but these days I can't be sure...
10.25.2006 8:20pm
Kovarsky (mail):
Keith K,

I think you're playing fast and loose with your portrayal of constitutional interpretation. All constitutional interpretation involves some sort of interpretive intermediation on the part of a judge. As a colleague once put it, after a few drinks:

How about the equal protection clause? Does that require equal income? How about equal education? Is progressive income taxation unconstitutional? Is a flat tax unconstitutional as inherently regressive? Are libel and slander laws unconstitutional? Does the right to counsel attach at arrest? Arraignment? Trial? Are jury trials required for all causes of action? Is torture cruel and unusual? What rights are reserved to the states? The people? What process is "due"? Does that vary under the circumstances? Where do I find the non-delegation doctrine? Does the 11th amendment bar suits by citizens against their OWN states? What count as "cases" or "controversies?" Does the full faith and credit clause require Iowa to honor the marrraiges being performed in Massachutts? What are the priviliges and immunities of a citizen of any given state? Can Congress constitutionally fund the Air Force? If the federal government has to gaurantee that each state provides a "republican form of government," are popular referenda acceptable? What things constitute a republican form of government? Can the President fire his cabinet without Senate approval? Where does the Constitution explain that? What about withdrawing from treaties? Are Congressional-executive agreements with foreign nations acceptable? What about sole executive agreements? I forget which Article talks about those.

Since the document is "quite easy to read and understand," please explain the answers to those questions in a few short sentences.


All of those provisions, clauses, passages, whatever, require some THING. And the judge has to figure out what that THING is. My point is fair. Given that we have to determine what that THING is in a number of other contexts, I don't see why we ought not to determine this particular THING. Just because wording is ambiguous doesn't excuse a judge from having to take his or her best stab at interpreting it. Saying "liberty," as a textual matter clearly does not include SSM requires exactly as much interpretive chutzpah as saying it does.
10.25.2006 8:22pm
frankcross (mail):
Well, both Chumund and EV may be right. I think Chumund is certainly correct that this is the product of underlying social change. The slippery slope is the observation of how it occurs. That's pretty evident from the Court's own language.

The real question is causation. That is: Did decision A cause decision B (or make it more likely). Which goes to the power of the law to stand in the path of a developing social change. My own belief is that these slippery slopes tend to be inevitable, because they are the product of third factors, but that the law can shape the degree or direction of the slope, to some degree.
10.25.2006 8:25pm
Kovarsky (mail):
Also,

To make my point less abstract, assume that state constitutions run the gamut of interpretive possibilities from 1 to 50. 1 being the least susceptible to an SSM acceptance rule and 50 being the most. in band ranges 26-50, in other words, where it is more likely that the constitution requires EP as applied to SSM than not, i don't understand why courts "ought" not to "mandate" that the most likely interpretation of the constitution - a document ratified by a legislative supermajority and the supreme executive - be followed.
10.25.2006 8:35pm
Chimaxx (mail):
So, KeithK, you seem to be saying that it's not the essential legal principles outlined in the constitution that should guide the justices' decision, but whether the outcome will be controversial.

This feels like way too fundamental a question to be asking in this forum, but: Isn't the outcome of *any* case that makes it to a top court going to be controversial--and the only variable the number of people who will disagree with the outcome?

Put another way: In any case like this, aren't one man's "new controversial rights" inevitably another man's "existing rights finally being accorded to persons to whom they had been unfairly denied"?

Should the relative numbers or vociferousness of the adherants to those two views really be the deciding factor for courts faced with such a decision?
10.25.2006 8:50pm
Chimaxx (mail):
I too have trouble understanding Eugene's slippery slope argument: In this same year we have three data points--from New Jersey, New York State and Washington State. Two decisions fall one way, while the third falls the other way. In order to determine whether there is or is not a slippery slope, we throw out the first two data points, and focus on the third. In what other field of analysis might this method be useful?
10.25.2006 9:01pm
ReaderY:
Must the state permit people who wish to work or learn with others of the same sex to create a relationship that is the functional equivalent of education or employment, so long as it is not called by that name? Does a state which wishes to hold on to "employment" discrimination laws have a responsibility to create such an alternative relationship?
10.25.2006 9:01pm
Chumund:
frankcross,

I agree that legal developments may have some influence on developing social norms, although I think the causation is usually stronger in the other direction. And if I may indulge myself in an extension of the metaphor, if a car is driving down the slope, and would be progressing in the same direction even if the road was flat or uphill, then even if the slope is technically contributing to the motion of the car, I am not sure how important the slope really is.

Kovarsky,

If I may, one might say that whether or not the courts of a state should enforce a constitutional right X depends on that state's constitutional law. One might further suggest general normative claims about constitutional law, such as that whether or not the state's constitutional law should recognize right X should be a matter of strictly construing the text of the state's constitution in light of its original meaning (or not, depending on your constitutional theories).

But none of this depends yet on what right X happens to be. And what I would ask Professor Volokh is whether his statement ("I don't think that state courts should mandate [gay marriages or civil unions] as a constitutional matter") is simply an application of such general principles in light of the specific status of constitutional law in each of the 50 states, or whether instead it depends in part on something specific about this particular issue.
10.25.2006 9:03pm
logicnazi (mail) (www):
I don't know if it disproves your point Prof. Volokh but I think it is useful to distinguish between a specific policy making some other result more likely and public acceptance or support making some other result more likely.

In particular what is necessary for a slippery slope argument to be effective is that one ought not to support law A, even if one thinks it is a good idea, because it will increase the probability that law B will come into place which you may not think is a good idea. Thus in order for a slippery slope argument to be effective it is necessary that it is the enactment of the first law that increases the probability of the second not the preexisting sympathy for the first law that does the same.

As I read the NJ court decision it was not the enactment of laws that give gays rights that justified a guarantee of equal treatment but rather a social acceptance that gays deserve equal rights. The laws that guaranteed gays those equal rights were just an easy way to show that society believed discrimination on the basis of sexual orientation was wrong.

In other words, assuming the same level of opposition to gay marriage, clear evidence that NJ would have passed anti-gay marriage laws EXCEPT for the worry about the slippery slope would have served exactly the same argumentative purpose as NJ having actually passed those laws.

Still I agree you have a point as I am tacitly assuming rational action and informational omniscence. One might very well think that gays deserve equal treatment, but that gay marriage isn't an instance of such and knowing others are likely to assume it is have an incentive to deny that one believes in equal treatment for gays. Additionally one might practically realize that the success of a slippery slope argument in defeating a law will give extra emphasis to public opposition.
10.25.2006 9:09pm
Kovarsky (mail):
Chumund,

But none of this depends yet on what right X happens to be. And what I would ask Professor Volokh is whether his statement ("I don't think that state courts should mandate [gay marriages or civil unions] as a constitutional matter") is simply an application of such general principles in light of the specific status of constitutional law in each of the 50 states, or whether instead it depends in part on something specific about this particular issue.

see my original comment:

If you are saying that you don't think state courts should mandate them in the absence of state constitutional authority to do so, of course I agree. But that's not how I read your comment, which just states that state courts shouldn't mandate SSM. If a state court is honestly interpreting the state constitution, I don't understand how a constitutional requirement for SSM is a judicial mandate in any unusual sense. And if it s not a judicial mandate in any unusual sense, I don't understand why courts "ought" not to enforce it.
10.25.2006 9:11pm
Justin (mail):
I don't find the slippery slope idea valid, unless the argument is that experimentalism and progress are default slippery slopes. The NJ decision was predicated on progress that surely included those statutes, but those statutes did not make it inevitable (indeed, it was those statutes which were inevitable). It was social progress and the natural (and inevitable) acceptance of homosexual norms that pushed the decision. Indeed, if those statutes weren't listed, those rights would have come through judicial norms of the social construct, and then those cases would have been cited in their sted.

The "slippery slope" that leads to the acceptance of gay marriage rests in our notions of equality and freedom - and in that sense, it is the Bill of Rights, and the NJ State equivalent, that was the "slippery slope" to gay marriage or its civil union equivalent.
10.25.2006 9:13pm
Henri LeCompte (mail):
Plunge:
Read this, slowly.... And once again tell me why these words are not directly applicable to polygamy:

With same-sex partners in mind, the Legislature declared that "[t]here are a significant number of individuals in this State who choose to live together in important personal, emotional and economic committed relationships," and that those "mutually supportive relationships should be formally recognized by statute," The Legislature also acknowledged that such relationships "assist the State by their establishment of a private network of support for the financial, physical and emotional health of their participants." ...

I submit to you that this logic is directly and inescapably applicable to polygamy.

I can only imagine that this makes you uncomfortable, and a bit desperate to change the subject. There is no holding of any court anywhere, ever that provided a legal logic for 2 presidents. But the above quote from the NJ Supreme Court wouldn't even require a clever lawyer to turn into a defense of polygamy.
10.25.2006 9:31pm
Kovarsky (mail):
Henri,

You're right! We're so desparate to change the subject from the gay marriage = polygamy arguments. Desperate I tell you! The last time I felt so backed into a corner was when i thought about the logical consequences of miscegenation. Please no! Not the polygamy! I've already got the mens rea!
10.25.2006 9:40pm
On Lawn (mail) (www):
In full disclosure. I have a problem in general with the court mandating legislation. To me that is the kangaroo court, vice-versa. It steps on the process of consideration and debate that both the courts and the legislators share, and we all depend for fair government and treatment.

That said, the slippery slope this presents is interesting. The promises of the past certainly are not binding. But what of the promise makers? Currently the debate over marriage includes a "slippery slope" argument that same-sex marriage will lead to other alternative marriage arrangements. Like polygamy, polyamory, etc... The arguments are made, and have been made, that decisions such as this one will not lead to those. What of the promise makers now?

I'd appreciate some review on this, but it seems that this ruling more than the others seems to slide that slippery slope. In this ruling we see a relationship between individuals treated with the same protections of equal entitlements and rights that were drawn up for individuals. As some have said, we have progress. Sometimes we step forward without knowing altogether why, and look back and see entirely different rational than was offered at the time. An action that moves from contemporary to historic context is interpreted much differently.

In this decision, what protections are in place to keep this decision from extending to any relationship, be it romantic, collaborative, economic or political? Who is to say that a marriage isn't any of those, and more? To be honest I'm not even sure what rational is presented to extend individual protections to relationships?
10.25.2006 9:40pm
wooga:
The "slippery slope" is real, but only beause the court has declared that "legislating morality" cannot be a legitimate governmental purpose.

This declaration is laughably wrong. Legislatures have _always_ legislated morality. The US is no different. However, most people only notice when a particular law runs afoul of their own personal sense of morality. Just think about your own particular vices, and then you'll realize that the government does all sorts of moral legislating.

I would think that any state supreme court, being comprised of people who actually went to law school, would be aware of this little historical fact. Oh well.
10.25.2006 9:42pm
Kovarsky (mail):
On lawn,

In this decision, what protections are in place to keep this decision from extending to any relationship, be it romantic, collaborative, economic or political?

Weren't you the "On lawn" that 3 paragraphs earlier was complaining about the court unnecessarily intruding on policy decisions.
10.25.2006 9:43pm
Henri LeCompte (mail):
Justin:
Another phrase for slippery slope is "unintended consequences."

Fans of gay marriage like to caricature their opponents as gay bashers. In reality, what gives thoughtful people pause when faced with a social change like gay marriage is the unintended consequences that lie ahead.

The slippery slope that brought us here is taking us where? It is not a trivial question. Some people (not you, Justin) want to run screaming from that question. Some people, I suspect, are a bit peeved at Prof. Volokh for even bringing it up. "What's he trying to do? Make us doubt the rightness of this development???"
10.25.2006 9:47pm
Pol Mordreth (mail):
i disagree with the characterization of state sponsored marriage as a right. As I see it, (and this is only my opinion) that the state has the right to confer benefits on some groups and not others based on real or perceived benefits to society. the relationship between people and government is a contract, nothing more, and in any contract both sides must gain something of value (again, be it real or perceived).

You can currently marry anyone and anything you want. This it not in dispute. However, the state only confers benefits on those marriages it considers a value to society. Currently, you cannot get state recognition if you marry someone underage, too closely related, if you marry an animal, or for polygamy or polyandry. all these things are still marriages, but they do not recieve state sanction. ( As far as those examples, they are all done under the auspices of various religions, and I make no judgement here as far as their moral value. i also make no judgement here as far as homosexual moral value.)

IMHO, adding homosexuals to the list of who gets state benefits for being married requires the supporters of expanding this privilege to state clearly what benefit society gets from it, and also what benefits they hope to obtain that they cannot get through other legal means.

Btw, being married, the only benefit that I gain from marriage is that, in the event of my wife being in a coma, i can make medical decisions for her without requiring another legal document. and that would only happen as long as no other adult with an interest in her health (i.e parent, adult child, sibling) challenges my decision. (i.e. Schiavo) There are no tax benefits, there are no property benefits, and with the tightening of the HIPPA regs, I dont even get informed of any medical matters unless my wife specifically allows it.

In a semi-related aside, I reside (at the moment) in TN. We had a constitutional amendment on the ballot effectively banning same sex marriage. I voted against the amendment, but it's because I don't feel that the state constitution is the correct place for this. I feel it is a legislative matter only. (and yes, we have early voting here)
10.25.2006 9:48pm
Justin (mail):
You can submit (which apparently simply means "assert" but more snobby) it as much as you want, Henri, but that doesn't mean its correct, and there have been people who have actively refuted said arguments:

Ann Althouse

John Corvino

Marc Stier

Andrew Sullivan

Ruth Khalsa
10.25.2006 9:50pm
Kovarsky (mail):
wooga,

i think that the philosophical principle that states dont legislate morality is about paternalism, not what you're describing.
10.25.2006 9:51pm
Justin (mail):
Henri,

You can't take "learning that our fears were completely unfounded" and call it an "unintended consequence." Well you can, but in doing so, you have to take out the normative impact that it is supposed to have.
10.25.2006 9:52pm
Mark Field (mail):

I submit to you that this logic is directly and inescapably applicable to polygamy.


plunge has already given one of the great responses of all time, and I'll never match that. But no, the logic is not the same, and for a simple reason: there's no equal protection issue in your argument. You're focusing on the social benefits argument, but that's subsidiary to the fundamental point that there first must be an equal protection violation.

I'm with Kovarski on the court's role here. It seems to me that there are only two real arguments:

1. The court was wrong on the merits, i.e., either there is no equal protection clause in the NJ constitution, or the current law does not violate that clause.

2. The court was correct as a matter of law.

If the court was wrong on the law, the argument should be made on that basis. If the court was correct on the law, why on earth should it not rule? Equal protection is a core principle of republican government. Oppression of minorities is the specific concern of Federalist 10. If ever a court should NOT defer to the legislature, it's in an equal protection case.
10.25.2006 9:54pm
Kovarsky (mail):
as an aside, constitutional amendments banning same sex marriages are fucking reprehensible. if you want to argue that whether the government should have to recognize same sex marriages is subject to the a majority preference, fine. but by passing constitutional amendments, you require supermajorities to overturn the rule. in effect, you impose your present preferences on those in the future, even if some future majority (that nonetheless falls short of a supermajority) has no problem with SSM.

that's why i find people that simultaneously argue for constitutional amendments and that courts are not the appropriate place for these things to be decided are almost morbidly stupid. the whole "courts aren't the right forum" argument is premised on the idea that this should be a majoritarian decision, but the whole point of an amendment is to impose a countermajoritarian rule on future preference collections.
10.25.2006 9:56pm
Pol Mordreth (mail):
Mark,
I happen to agree with you on the arguments. I believe that the court was wrong on the law, that the court unnecessarily conflated privileges with rights, and found a right (the right to have your marriage recognized by the state) where none previously existed. Your right to marry whom you chose was not affected by the current law. If you could find a leader in your religon to perform it, you were married. What these people wanted was state recognition of their intent to marry, and thats a privilege not a right.

Any thoughts?
10.25.2006 9:59pm
Pol Mordreth (mail):
Kovarsky,
I agree completely.
10.25.2006 10:00pm
EL SL:
Pol,
I may have misinterpreted the opinion; however, I think that your response to Mark misrepresents the court's holding. The court said that same-sex couples have a right to have their union (very pointedly not "marriage") afforded the same benefits bestowed upon heterosexual marriages.

Although I'm unfamiliar with the laws of TN, contrary to your comment earlier in the thread marriage does confer a plethora of benefits upon the other partner in most jurisdictions. Take, for example, what happens if the marriage is dissolved. Equitable distribution of the marriage property (&equal distribution, etc., depending on jurisdictional rules) can offer protection to the spouse who earns less. In jurisdictions that recognize a tenancy by the entirety, probate (time-consuming &potentially expensive) can be avoided. The list of such potential benefits is quite lengthy.
10.25.2006 10:18pm
Michael B (mail):
"I submit to you that this logic is directly and inescapably applicable to polygamy."

"... no, the logic is not the same, and for a simple reason: there's no equal protection issue in your argument. You're focusing on the social benefits argument, but that's subsidiary to the fundamental point that there first must be an equal protection violation."

The logic in no way needs to be the same. May as well argue that politics in general is a rational enterprise.
10.25.2006 10:28pm
Pol Mordreth (mail):
EL SL,
I didnt think of protection during dissolution. thats a good point. However, i am unaware of any jurisdiction that recognized tenancy by the entirety to any property not explicitly jointly held. (ie a house, car, bank accts held in both names) I dont intend to assert that they dont exist, i just don't know of any. And as far as probate issues, without a will the protections of marriage amount to squat if someone complains.


As far as misrepresenting the court's holding, i don't think so. Having their union afforded the same privileges granted to het, of age, single spouse unrelated couples is exactly what I was referring to. I don't find a right here. I find a privilege, and I don't see anyone even trying to show where SSM has any real or percieved societal benefits. And I still hold that the state has the ability to grant or withhold benefits based on a benefit to society.

I guess my issue here is the affected law didn't prevent these people from marrying whom they chose. It in effect said that the state did not find sufficient societal benefit to encourage it by granting special benefits.
10.25.2006 10:37pm
Caliban Darklock (www):
@ Pol:

My main objection to gay marriage is this.

When the gay Congressman whose name I don't remember died recently, he couldn't leave his pension to his partner because he's only allowed to leave it to his spouse.

The gay marriage agenda would allow others like him to pass on their pensions by redefining the word "spouse". Similar effects would apply to most laws and policies, including those of private companies. It would be difficult to further quantify the contractual provisions without looking like a homophobic jerk.

So while I agree that extending these privileges to gay couples is the Right Thing, I don't believe this is the way to do it. I believe that when you back-door your way into an existing contract by redefining the terms, this is fundamentally fraud.

Since I don't see any other substantive reason why gays need to marry, it's difficult for me to support a plan with obvious and intentional consequences that I find ethically odious.
10.25.2006 10:38pm
Pol Mordreth (mail):
To clarify, its not just on this site that no one is showing societal benefit for SSM... it's anywhere that I have seen this discussed.

Thanx
10.25.2006 10:39pm
court watcher:
The gay marriage versus polygamous marriage distinction comes down to this. If you're a large, well-organized, politically powerful minority group, you can get protection from the courts. If you're a small, unorganized, politcally weak minority group, you're screwed. If the polygamists want to be able to marry legally, they'll need to step up their recruitment drive.
10.25.2006 10:51pm
Pol Mordreth (mail):

If the polygamists want to be able to marry legally, they'll need to step up their recruitment drive


thats awesome... it'll never happen, as most sane men see no need to be emasculated by more than 1 woman....

heheheheh
10.25.2006 10:56pm
BobNSF (mail):

Since I don't see any other substantive reason why gays need to marry, it's difficult for me to support a plan with obvious and intentional consequences that I find ethically odious.


My partner and I have spent the last 26+ years living insofar as possible as a married couple. Shared finances, shared living arrangements, shared dealing with relatives. We intend to care for each other until one or both of us dies. Is that "back-dooring" our way into an existing contract just by fiddling with a definition?
10.25.2006 11:02pm
Pol Mordreth (mail):
BobNSF,

are you and your partner trying to get state recognition of your commitment to each other? if you are, and intended to use the courts instead of convincing a majority of the voters that your arrangement had sufficient societal benefit to grant those privileges, then yes, that is 'back-dooring'

It has nothing to do with your (honestly admirable) level of commitment and love for each other and everything to do with the tactics used.

How does society benefit from extending you the benefits of state recognition? and why can't you convince enough voters of that? I simply feel that the NJSC overstepped their mandate. This is a legislative question of privileges, not a constitutional question of rights.
10.25.2006 11:12pm
Chumund:
Pol,

Do you believe society benefits from recognizing straight marriages?
10.25.2006 11:19pm
Chumund:
Sorry, to be clear--does society benefit from STATE recognition of straight marriages?
10.25.2006 11:20pm
EL SL:
Pol,
I think a case could be made that SSM would offer society the same benefits that a heterosexual marriage does. The benefits that at first blush would be available only to heterosexual marriages, such as procreation &a preferable child-raising environment, have been and will continue to be debated. However, there is evidence (and the groups of plaintiffs in all the recent court cases are generally composed of such examples) of committed same-sex couples that would refute this, as they've conceived through artificial insemination and/or provided a healthy environment for upbringing.

Beyond these biological issues, I haven't been able to come up with benefits of heterosexual marriage that wouldn't be applicable to SSM. One could say that encouraging long-term monagamous relationships tends to decrease the occurrence of STDs. From an economic perspective, acting as a joint entity can offer societal benefit (pooling their resources to maximize the good of the couple can achieve a greater result than the sum of what the two would be able to achieve independently). As in heterosexual marriages, if one partner has a far greater earning capacity, that partner can spend more time working, and the other could spend more time engaged in activities such as child-rearing.

Also, while property that is held in a tenancy by the entirety must be jointly held, there is a non-negligible difference between a tenancy by the entirety and standard joint ownership. A tenancy by the entirety offers greater protection to the spouses from each other, primarily because neither spouse can dissolve it without the consent of the other.

However, I admit I'm torn on the right / privilege distinction. I haven't looked through the cases cited as precedents. IMHO, I see real benefits that could result from recognizing such unions, but I recognize others believe differently.

Any thoughts on the effect of the issue of language? (what the opinion referred to as "title of marriage", IIRC) It seems semantic to me, but I wonder how people on either side who feel strongly about this language issue will react to the opinion.
10.25.2006 11:21pm
cthulhu (mail):

In 1974, a New Jersey court [...]. Five years later, the Appellate Division [...]. This State was one of the first in the nation to judicially recognize [...]. Additionally, this Court has acknowledged [...]. Recently, our Appellate Division held [...].


I dunno, I think the "slippery slope" in this case is that "judicial legislation" acts on justices in a manner alarmingly similar to crack...
10.25.2006 11:23pm
Pol Mordreth (mail):
Chumund

There are perceived benefits, the most likely to be real is that straight marriage 'civilizes' young men. For evidence of this, simply look at auto insurance actuarial tables. Young single men have the highest rates of accidents, and therefore the highest premiums. As soon as you get married, the rate drops drastically, in some places 50%. To be fair, i do not know if those actuarial tables have a seperate category for GLBT drivers, but since it is illegal most places to discriminate in services, i would doubt if they ask. I have never been asked, anyway...

There is also the perceived benefit to children of having a parent of each gender to use as a role model, but I don't know how real it would be. I do see the benefits in my own children now that their mother and I are back on speaking terms and are both remarried.

Those are the main 2 I see off the top of my head, I dont know if anyone can think of any more. (other than tradition) I dont see any to SSM at the moment, but I honestly feel that it is the responsibility of those who want to be extended benefts that bear the burden. I'm more than willing to listen and consider the benefits, and I don't have any indoctrination to overcome to accept it.

Thoughts?
10.25.2006 11:33pm
Mark Field (mail):

Your right to marry whom you chose was not affected by the current law. If you could find a leader in your religon to perform it, you were married. What these people wanted was state recognition of their intent to marry, and thats a privilege not a right.


As others noted, what the plaintiffs actually got here was not a recognition of marriage, but of the right to certain economic benefits. This is a particularly tricky issue in CA, where I live, and in other community property states.

Whether you call these benefits "privileges" or "rights" seems a bit semantic to me. For example, the law is clear that I don't have any "right" to a driver's license. At the same time, however, that "privilege" can't be denied me absent a legitimate reason (a reason that varies according to the classification scheme). All the court did here was reject the rationale given by the state for the denial of benefits. I can't see any problem with that.
10.25.2006 11:40pm
Chumund:
Pol,

I think Professor Carpenter is actually the person to ask, since he has written extensively on the topic.

Personally, I think the most obvious social benefits to marriage involve caretaking: when a marriage is a success, the couple takes care of each other, and also of any children they might raise, who in turn might take care of their parents in the future (this mutual caretaking can be in material, psychological, and other ways). This creates a benefit for society because this mutual caretaking tends to lead to the people involved being more productive, more law-abiding, more healthy, and so on.

So, as far as I am concerned, the central question from a public policy standpoint is whether gay marriage would lead to similar mutual caretaking between gay couples and any children they might raise. And I see no reason to assume marriage would be notably less effective at encouraging mutual caretaking among gay couples and their children than it is for straight couples and their children.
10.25.2006 11:45pm
EL SL:
Pol,

In response to the 2 points addressed to Chumund -- I think that these benefits may well spring from something other than heterosexual marriage. I wouldn't be surprised if the cause of the increase in safety reflected in the actuarial tables is something other than the heterosexual nature of the marriage. Of course, I have no statistics to back it up, but I wonder how the findings would break down if one were to separate out a new category for GLBT drivers who are in committed relationships -- the thinking being that the commitment has the effect regardless of gender. Another possibility is comparing accident rates of young married men with dependents to those without dependents, and see how much the findings change (if at all). Again, it's completely hypothetical on my part, but it seems likely to me.

In regards to your second point, might your children's benefit come more from the re-establishment of speaking terms between you and their mother (thus, a "healthy" relationship), rather than from having a parent of each gender? Thus, having a model relationship, rather than simply from a role model of each gender?
10.25.2006 11:48pm
GARY47 (mail):
Let's ignore the debate about sex or morality. Marriage at its core is a contract between two people. Polygamy is conceptually a multi-party contract. The issues inherent in settling the cultural and legal impacts of 3 or more party personal contracts are significantly different than settling these issues for a 2 party contract. This is why SSM should not be a problem, except for people whose real argument against is "I don't like Queers" and/or "My God doesn't like them [either]"

If the anti-SSM people want to use the argument of "It's about children." to "protect" marriage, then let's prohibit divorce for families with minor children.

None of these arguments are a valid reason to discriminate against Same-sex couples in law.
10.25.2006 11:51pm
Caliban Darklock (www):
@ BobNSF:

> My partner and I [etc. etc. etc.]
> Is that "back-dooring" our way into an
> existing contract just by fiddling with
> a definition?

No. But you didn't need to be married to do it, either, which means it's *not* a substantive reason why you *need* to be married.

A need to be married really means "show us something that you deserve but can not have unless and until you are married". Thus far, the only thing I've been shown is existing policies and contractual obligations that say your "spouse" can have certain rights and privileges.

@ EL SL:

> Beyond these biological issues, I haven't been
> able to come up with benefits of heterosexual
> marriage that wouldn't be applicable to SSM

But that doesn't make any sense. The biological issues are what distinguishes OSM from SSM in the first place. You may as well say that beyond the cheese question, a cheeseburger and a hamburger are the same thing. It's true, but it's a completely pointless restriction of the discussion.

> I wonder how people on either side
> who feel strongly about this language
> issue will react to the opinion.

The largest reaction to this language issue, I think, is that heterosexuals can no longer imply heterosexuality by saying they are married. They have to specify they're married to a woman... which, of course, is an odd thing to specify. It then implies not that one is heterosexual, but that one is homophobic. That is a significant change.

I think there is a corollary demand from the gay community, because they find a certain value judgment in the terms "civil union" or "life partner" as opposed to "marriage" or "husband". This is also a significant change, but it doesn't actually fix anything: just because you call yourself "married" and say your partner is your "husband" doesn't really make people think any differently about you.

So the heterosexual community suffers very real damage, while the gay community receives no actual benefit. I find this dilemma very, very easy to resolve... but I also think the dilemma in and of itself is stupid.
10.25.2006 11:53pm
Pol Mordreth (mail):
EL SL

My point on the tenancy issue was that it only referred to property already jointly held. seperate bank accts, property severally held, etc isn't protected, and is subject to probate. as far as far as it having better protection while living, i had not considered. I was under the impression, though, that even though one party can unilaterally end joint ownership, it must be done within the applicable contract law. IE, if I own property jointly with my brother, while either of us can execute a quitclaim and walk away, niether of us can "commandeer" full ownership from the other. (unless provided for in a seperate contract)

The STD issue is pretty good, and I would perceive it as a societal benefit. I'm still on the fence on children raised in a same sex household. I simply havent seen enough evidence that there isn't harm to the child's psyche. and it has really only been in the last generation that enough children are being raised in openly gay households for us to start having reliable data pools.

procreation issues aside ( i dont particularly care for IVF for anyone, but thats another topic) I can reasonably see that there is no reason not to expand the legislation to include SSM.

That being said, I still feel that it is inherently the responsibility of the GLBT community to convince voters, instead of trying to get the courts to invent a new constitutional right.

I feel the wording was a weaselly attempt to limit the (imho justified) backlash. I dont think it will have any real effect once both sides spinners get done with it.

As far as this mobilizing conservative voters, it wont. Those who really care about this are already planning on voting. (on both sides) I think this will be used to justify what I expect to be an unprecedented level of turnout and the failure of the democratic party to gain a majority in either house. So, we get 2 more years of the Ultra-hard left calling everyone who doesnt agree with them homophobes.... yay.....
10.25.2006 11:58pm
Brooklynite (mail) (www):
being married, the only benefit that I gain from marriage is that, in the event of my wife being in a coma, i can make medical decisions for her without requiring another legal document

Today's decision lists more than a dozen substantive benefits that married couples receive under NJ law that even the state's domestic partners don't.
10.26.2006 12:00am
Chumund:
By the way, I'm not sure I understand the issue involving children raised by married gay couples. Is the idea they would be better off raised by unmarried gay couples? Is it even remotely plausible they would be better off that way?
10.26.2006 12:02am
Caliban Darklock (www):
On two-sex parental units, consider this.

A daughter comes home from school with boy trouble. She goes to her two dads. Is either of them qualified to interpret how she feels? Do either of them think like a girl?

A boy comes home with girl trouble. He goes to his two dads. Is either of them qualified to help? Have either of them ever had girl trouble?

It is nothing short of ludicrous to propose that homosexuals are in any way qualified to consult on the mechanics of heterosexual relationships. It is every bit as ludicrous to propose that heterosexuals are qualified to consult on homosexual relationships.

I think every child deserves to have a close relationship with an adult who has a similar gender identity and sexual preference. I do not believe that relationship needs to be parental. I believe the gay community is excellent at supplying such friendships with everything under the sun EXCEPT heterosexuals.

What we need is a way that children of all persuasions can be provided with appropriate sexuality-tutoring relationships across the board. Every teen needs someone to ask those weird questions you can't ask your parents, like whether you did something right.

The heterosexual community is doing a hideously bad job at this, which is the only real justification I can see for needing a two-sex parental situation.
10.26.2006 12:08am
EL SL:
Caliban,

As to the "biological issues," I wasn't clear in my earlier post. I pointed to the biological arguments as ones that may or may not be sound at present, depending on one's perspective. Given the arguments on either side, they hardly seem like a satisfactory basis for a decision in the matter.

If one feels that the advantage is in having those two people in the marriage procreate, creating a baby whose DNA is specifically from those people, then I can't do much but disagree. I wouldn't see a benefit from having a baby created specifically from the DNA of those two people. I feel that adoption, surrogate mothers, artificial insemination, et al., allow same-sex couples to produce the same benefit. Moreover, there is fairly extensive evidence that a same-sex couple can offer just as rich an environment for child-rearing as a heterosexual couple can.
10.26.2006 12:08am
EL SL:
Caliban,

As to the "biological issues," I wasn't clear in my earlier post. I pointed to the biological arguments as ones that may or may not be sound at present, depending on one's perspective. Given the arguments on either side, they hardly seem like a satisfactory basis for a decision in the matter.

If one feels that the advantage is in having those two people in the marriage procreate, creating a baby whose DNA is specifically from those people, then I can't do much but disagree. I wouldn't see a benefit from having a baby created specifically from the DNA of those two people. I feel that adoption, surrogate mothers, artificial insemination, et al., allow same-sex couples to produce the same benefit. Moreover, there is fairly extensive evidence that a same-sex couple can offer just as rich an environment for child-rearing as a heterosexual couple can.
10.26.2006 12:08am
Brooklynite (mail) (www):
I still feel that it is inherently the responsibility of the GLBT community to convince voters, instead of trying to get the courts to invent a new constitutional right.

Here's the thing. Either discrimination on the basis of sexual orientation is a violation of equal protection or it isn't. If it isn't, the courts should of course not pretend that it is. If it is, the courts have a duty to recognize that and act accordingly.

Likewise with the LGBT community. If members of the community believe that sexual orientation discrimination violates equal protection, then their "responsibility" is to press that case in the courts. The courts can then accept or reject their arguments.

This all seems obvious to me.
10.26.2006 12:10am
Pol Mordreth (mail):
Mark,

Isn't semantics the heart of law? (heh)

seriously, though, the difference btw rights and priveleges is significant. Under our constitutional model, we get rights once we start breathing. Privileges are things handed out by the government as rewards for certain behaviors.
in the example of your DL, here you have to be a citizen or resident alien, speak and read passable english, learn the rules well enough to pass a test, spend a certain number of hours driving under competent supervision, and then it can be taken away from you for a myriad of reasons. some of which I find well beyond the states constitutional mandate.

oh, and the recognition of marriage is what was required to gain the benefits. they could have been married at any time. I have attended same sex marriages in SC, GA, TN, PA, NY, AZ, and FL. They were married in their religions and in their hearts, and for them, that was enough.
10.26.2006 12:13am
Pol Mordreth (mail):
Chumund,


By the way, I'm not sure I understand the issue involving children raised by married gay couples. Is the idea they would be better off raised by unmarried gay couples? Is it even remotely plausible they would be better off that way?



Touche, i hadn't considered how silly that sounds.
10.26.2006 12:18am
Pol Mordreth (mail):
Brooklynite,

there was no discrimination invloved. It was not illegal for them to marry. It was not seen as being in the states interest to reward them for marrying.
10.26.2006 12:20am
Chumund:
I'm always amused by hypotheticals like the one Caliban presents. Personally, I'd put several things ahead of gender/sexuality when it comes to people's qualifications to give relationship advice, including whether they are thoughtful, good listeners, emotionally insightful, successful in their own relationships, and so on.

Of course, I think there are a lot of women with gay male friends who might find this conversation amusing as well.

Anyway, to me this all illustrates an interesting difference in thinking about such subjects. People like me are very much about considering the individual when it comes to most caretaking issues, and I think it is quite likely that individual characteristics will swamp any weak generalities one could offer about people based on gender/sexuality. But I understand others think differently.
10.26.2006 12:23am
Constantin:
Kovarsky, what about a state that requires something more than a simple majority to pass constitutional amendments? By your rule, aren't those proposals legit?

Or is your hostility aimed more at outcome, in that every state that's ever voted on this has removed the issue from the pens of judges? (That's my guess.)

And Gary, are you arguing for a prohibition of multi-party contracts on all levels? If not, yours seems like a pretty weak answer to a question--the polygamy dilemma--that is less ridiculous than you and others will allow.
10.26.2006 12:26am
Brooklynite (mail) (www):
Pol, your second sentence doesn't follow from your first. If the state gives its imprimatur to opposite-sex marriages but not same-sex marriages, that's discrimination on the basis of sexual orientation (or gender, if you prefer). One can argue that such discrimination is appropriate, or that it's properly a legislative matter rather than a constitutional one, but it's discrimination.
10.26.2006 12:30am
Pol Mordreth (mail):
Brooklynite,


Today's decision lists more than a dozen substantive benefits that married couples receive under NJ law that even the state's domestic partners don't.



Most of that is either outdated or bunk. Het couples have to cross adopt each others children, and with the new hippa law if your spopuse isn't in a coma they have to specifically put you on the list or you get no info from the hospital. Hell, they even had to check my wifes id to confirm that she was on the list when i had hernia surgery this summer.

As far as inheritance tax, i don't know the applicable NJ law... could be true. Federally, there is no difference in the tax rate no matter who your will specifies.

As far as employers not granting benefits to DP's, this is an issue? I have worked for employers that didnt even grant benefits to employees, some that didnt include spouses, etc. Each company is free to decide whom it will offer benefits to. and, if i remember correctly, FMLA does cover DP's now.

So, i've found 1 thing, NJ inheritance tax.... why not just have tax reform?
10.26.2006 12:33am
BobNSF (mail):

It is every bit as ludicrous to propose that heterosexuals are qualified to consult on homosexual relationships.


So let gay people decide whether we "deserve" to be married.
10.26.2006 12:35am
Pol Mordreth (mail):
I guess I have a much tighter definition of discrimination. To me, discrimination implies negative impact. ie, sodomy laws that only criminalize gay sodomy but not het sodomy...

I get from you writing (please correct me if I'm wrong) that to you discrimination is as simple as expressing a preference for one thing over another?
10.26.2006 12:38am
Brooklynite (mail) (www):
I get from you writing (please correct me if I'm wrong) that to you discrimination is as simple as expressing a preference for one thing over another?

If you grant people a right or a privilege because they possess attribute X, and deny others that right or privilege because they lack attribute X, you're discriminating on the basis of X.

Sometimes such discrimination is appropriate, sometimes not. But if you say that appropriate discrimination isn't discrimination, you're just muddying the waters.
10.26.2006 12:41am
Brooklynite (mail) (www):
So, i've found 1 thing, NJ inheritance tax.... why not just have tax reform?

Go read the decision --- pages 43 through 48. I count eighteen enumerated ways in which domestic partners in New Jersey are disadvantaged in relation to married people. If you'd like to try to debunk all eighteen claims, by all means have at it. I'm all ears.
10.26.2006 12:46am
Chumund:
Obviously group marriages in various forms are possible, because they have been a common form of marriage in many societies.

To me the more pressing question is whether group marriages can be reconciled with the principle of equality within marriage which our society in particular has adopted. On that issue I think considering other group contractual situations are indeed useful, because generally they do in fact incorporate some sort of hierarchical structure (e.g., a lead partner, designated officers with lines of authority, and so on). And that may be a necessary structural feature once one expands marriage (or any group relationship) beyond a couple.
10.26.2006 12:47am
Chairm (mail):

I'm not sure I understand the issue involving children raised by married gay couples.


Any double-dad or double-mom scenario would depend on parental relinquishment.

Adoption is a related but seperate social institution. The presence of children does not bestow marital status on two adults. On the other hand, marital status is a legitimate factor in the approval of adoptive placements.

Third party procreation is extramarital. It also depends on parental relinquishment -- in this case, prior to the conception/birth of the children created.

So the presence of children in same-sex households illustrates that the double-mom or double-dad are the virtual inverse of the mom-dad combos in married households.

The statistics on the child population in same-sex households further illustrates this. About 11% of the adult homosexual population resides in same-sex households; about 3% of the adult homosexual population resides in such households with children. About 95% of that child population was not attained by adoption and third party procreation. The majority, by far, migrated from the previously both-sexed relationships of one of their parents (typically marriages). These kids have nonresident moms and dads -- in addition to the parents of the other sex at home. This is the inverse of the child population living in married households.

Marriage is the combination of sex integration and responsible procreation. This is extrinsic to the one-sexed arranagment. Meanwhile parental relinquishment is intrinsic to the same-sex household with children.

Whether or not this remains important to society and that state recognition of marriage protects the unique status of marriage, well, that's in contention.

In my view, the New Jersey Court makes a superficial case for protecting the word marriage but then goes ahead and substantively merges state recognition of marriage with recognition of an intrinsically nonmarital alternative that selectively segregates the sexes and cannot provide for responsible procreation within marriage.

Now, the State made its argument half-heartedly, I think, overall, and so the Court did not think it was obliged to protect what is recognized, the social institution, by the enactment of statutes that created the legal shadow of that social institution. It has replaced the thing recognized with its shadow.

I don't see how that can do anything but erode the social esteem for the social institution of marriage. Replacing it is a radical measure for the judiciary to have adopted for all of society.
10.26.2006 12:48am
Pol Mordreth (mail):
I see....

I grant that what you describe is discrimination. It took me getting 3/4 through this post to realize what you meant... starting over,

I dont feel that this is discrimination covered under article I, there are no rights in play. The NJSC created a new right out of whole cloth. (imo)

Look at it this way, if I start with no state benefits, and then decide that I want to encourage a specific condition, and to do that I will make this enticement available to those who satisfy this codition. Those who dont meet the condition arent being unfairly discriminated against except in the most broad sense.

My point is that it within the states right to say if you give me outcome A i'll give you benefit B. Since under the current definitions only het couples are seen as giving me outcome A, they are the only ones who get benefit B. If you want benefit B, show me that you give me outcome A. If you can convince 51% of the voters, the definitions get changed.
10.26.2006 12:55am
Pol Mordreth (mail):
Brooklynite,

Ill reread the decision and get back to you tomorrow... gotta go get horizontal...

be well
10.26.2006 12:58am
Chumund:
Chairm,

I think if you define "parental relinquishment" broadly enough, your claim is probably correct (although sometimes "parental relinquishment" is nonvoluntary, such as when a parent dies).

But why exactly does that matter? Once, for whatever reason, one or both of the genetic parents is no longer raising the child, and instead the child is being raised by a gay couple (one or neither of whom might be a genetic parent), would the child be better off with an unmarried gay couple?

Or are you claiming that we can actually prevent the "parental relinquishment" in the first place if we later prevent the gay couple from marrying? I suppose that might be true in some cases, but the fact that so many gay couples are in fact raising children already suggests to me that cannot be true in all cases.
10.26.2006 12:59am
Chumund:
By the way, my guess is the spread of gay marriage is more likely to decrease, not increase, the frequency of the scenario in which a person enters a straight marriage, perhaps has children, and then leaves the straight marriage and enters a gay relationship. My basic assumption is that when gay marriage is a viable option, this person would be more likely to go straight to the gay relationship.
10.26.2006 1:08am
Mark Field (mail):

seriously, though, the difference btw rights and priveleges is significant. Under our constitutional model, we get rights once we start breathing. Privileges are things handed out by the government as rewards for certain behaviors.
in the example of your DL, here you have to be a citizen or resident alien, speak and read passable english, learn the rules well enough to pass a test, spend a certain number of hours driving under competent supervision, and then it can be taken away from you for a myriad of reasons. some of which I find well beyond the states constitutional mandate.


Even with privileges, classification has to meet a rational basis test. My point was that the NJ court seemed to hold that the classification here couldn't even meet that standard.

As I also said, the issue gets really tricky with community property. That's directly tied to marriage -- no marriage, no community property (under current law). CA public policy sees CP as very important; depriving someone of that benefit would seem to require a very substantial reason. What is it?
10.26.2006 1:11am
Chumund:
Sorry, one last thought:

Obviously "parental relinquishment" in this broad sense occurs whenever one or both of the parents is not a genetic parent. So, this issue is not really restricted to gay couple raising children, but would include straight couples raising children where at least one member of the couple is not a genetic parent. In fact, I would assume the number of such straight couples is far, far higher than the number of such gay couples, and also that many of these straight couples are in fact married. Accodingly, adding similar gay marriages would really not add significantly to this phenomenon.
10.26.2006 1:25am
GARY47 (mail):
Constantin - your question @ 10.25.2006 11:26pm - no, I am not arguing against 3 or more party contracts. My point is that the personal, social, tax, financial etc dynamics of a 2 person marriage are not dependent on the gender of the spouses. Extending marriage to MM or FF couples is a small change (comparable IMHO to the impact of Loving v Virginia overturning miscegenation laws). Extending marriage to 3 or more people raises far more gnarly questions: who is the next of kin, who has the say on what care is appropriate if a mate is disabled etc. The conflict in the Schiavo case comes to mind as a real world example of the problems when inherent when you need a single person to speak for another.

There may indeed be no legal reasons to defend the ban on polygamy, but the changes inherent in such a change need to be thought through in a way that is not applicable for 2 person same sex marriage.
10.26.2006 1:31am
logicnazi (mail) (www):
I forgot to say in my last comment that I'm all in favor of the possible slippery slopes with gay marriage. As far as I'm concerned the state doesn't have much business telling people whether they can be polygamous or engage in any other relationship with consenting adults. The idea that there is a slippery slope to people marrying animals is just absurd as animals don't even have the relevant sorts of rights or abilities that would make marriage appropriate.

I would prefer the government to get out of the marriage business all together and leave it to contract law but shy of this they should endeavor to open it to as many people as possible.

--

Separately for those who are complaining about courts legislating or determining policy. If you don't want the courts inventing rights or determining policy where is your outrage about Turner v. Safley or any other decision establishing marriage as a fundamental right. Once marriage has been ruled a fundamental right that is legally enforceable the courts are required to rule on whether this right also applies to gays. You can't consistently expect the court to strike down laws preventing inmates, or dead beat dads from marrying and then expect them to suddenly leave it all up to the legislature when gay marriage comes up because it is an issue that gets you excited.

This is why I find all this carping about judges legislating and inventing rights so unconvincing. If this is what people really cared about they would be demanding Turner v. Safley, Zablocki and similar decisions overturned. The fact that no one seems to be complaining about decisions that invented constitutional rights to traditional notions of major strongly suggests they are just upset about the results and judicial restraint is just a cover for their policy preferences.
10.26.2006 1:35am
On Lawn (mail) (www):
For pre-lude I offer a montage of Kavorsky comments,

You're right! We're so desparate to change the subject from the gay marriage = polygamy arguments. Desperate I tell you! The last time I felt so backed into a corner was when i thought about the logical consequences of miscegenation. Please no! Not the polygamy! I've already got the mens rea!

!!1!!111

All of those provisions, clauses, passages, whatever, require some THING. And the judge has to figure out what that THING is. My point is fair. Given that we have to determine what that THING is in a number of other contexts, I don't see why we ought not to determine this particular THING. Just because wording is ambiguous doesn't excuse a judge from having to take his or her best stab at interpreting it.

[later...]

To make my point less abstract, assume that state constitutions run the gamut of interpretive possibilities from 1 to 50. ...


Shake hands with Thing-1 and Thing-2, on a non-abstract scale of 1-50.

Now, he replies to my post above...

>> Me:In this decision, what protections are in place to keep this decision from extending to any relationship, be it romantic, collaborative, economic or political?

> Weren't you the "On lawn" that 3 paragraphs earlier was complaining about the court unnecessarily intruding on policy decisions.

You are confused so I will help out. The argument three paragraphs before was about maintaining seperation of powers in the scope of the current federalized form of government in the USA. It was not about keeping any branch of government out of making policy decisions.

This is as opposed to the comment you quoted from me, which is about judicial clarity and scope. The decision was about homosexuality specifically, but not in expression of entitlements. And especially not with the sloppy conflation of individuals and entities comprising groups of individuals.

There have been promises from not only the people I mentioned above, but also those mentioned by Justin above. According to all of these people, decisions such as this is not supposed to lead to polygamy, polyamory, or other arrangements grated the benefits of marriage.
10.26.2006 1:39am
On Lawn (mail) (www):
Chumund,

Obviously "parental relinquishment" in this broad sense occurs whenever one or both of the parents is not a genetic parent.

But I do not beleive that such a broad sense is an accurate description. The umbrella does not conveniently cover all cases.

A person who has a baby to sell the child is not the same as a teenager who gets pregnant accidentally and wishes to not abort the child, but cannot take care of it either. Neither is this the same as a person who does not wish to keep a family in-tact because their sexual desires have moved out of the marriage.

There are a number of ways and reasons parents lose their children, or if I can put it in a better perspective, children lose their parents. I like that perspective better for my own reasons.

In mapping out the domain of these possibilities you can see that in this matter is not a one-to-one function between homosexuality and heterosexuality. With the procreative potiential and responsibility, the ability for abuse rests on both sides of the equation. But the ability for responsibility in procreation is not, it lies firmly in the couples who have the children (as in procreate).

And to confuse the two means to simply diminish consanguinuity to the point of irrelevance. And that is, sadly enough, just a way to not hold parents accountable for their procreation.

Prof Velleman of NYU has written at length about this.

Who are parents?
Why I can't support Same Sex Marriage.
10.26.2006 1:54am
Randy R. (mail):
Caliban: So the heterosexual community suffers very real damage, while the gay community receives no actual benefit."


I don't know about the gay community, but I know that a gay couple would receive actual benefits. Over 1000 of them, last time I checked, from protections in the Bill of Rights (one spouse cannot be compelled to testify against another spouse) to Social Security death benefits and so on. Gerry Studds just died, and his partner has no claim to his pension. If they were officially married, he would.

As to what damage the heterosexual community suffers, the only thing you offer is that a person would have to identify whether they are dating a man or a woman. Well, big whoop -de -do. When I mention whom I'm dating, I often put in that it's a man, just to that people know that I'm gay, and don't start asking me how good a cook 'she' is. If straight people have to start doing that, it's no more harm than what we have to go through. And in fact, whether gays marry or not, it's what striaght people still have to say regardless. So there is no more harm.

And frankly, if that's the biggest harm you can come up with, then that's hardly a burden or justification for denying gays the right to marry.
10.26.2006 2:27am
Randy R. (mail):
Pol: Most of that is either outdated or bunk.

No they aren't. I'll just go with the low hanging fruit (so to speak). When it comes to federal law, gay couples are treated very differently from married couples in the realm of immigration, the military and it's benefits accruing to spouses, adoptions (some states prohibit gay parent adoptions), inheritance and insurance.

Sure, many benefits can be made if a couple spends hundreds of dollars drawing up living wills and such, but that's an added cost that we shouldn't have to bear. What if the documents are poorly drafted because you have a lousy attorney? What if you don't have the documents on you when your gay partner is in the emergency room? What about the fact that inheritances are often challenged by the parents of one of the partners, involving costly legal fees to defend? Striaght married couples have none of those costs or worries.
10.26.2006 2:35am
Randy R. (mail):
For all those arguing that this decision will lead to the downfall of marriage, society, and all that, I ask you one question: Vermont has had civil marriages of the type that NJ now requires for several years. Any evidence of that marriage is destroyed yet? Please provide evidence.

Massachusetts has had full on gay marriage now for over two years. Now a majority of its citizens support it. Please provide any evidence that these people are not only blind to the destruction of marriage, but that any destruction has in fact occured.

The Netherlands and Belgium have had full on gay marriage for several years. Canada has had it for about two years. Germany and Britain have civil unions. Again, any evidence that either the People are angry and unhappy, or that marriage lost its luster?

Some people talk of who's burden it is to argue for marriage. I say that if you are going to argue the apocalypse, or even the slippery slope, the burden is upon you to find evidence of it in any of these states or countries.
10.26.2006 2:40am
Positive Dennis (mail):
THis may seem an "off the wall" prediction but this will cost the democrats many votes this cycle. Maybe enough to cost them the house and a few senate seats.


Positive Dennis
10.26.2006 3:14am
Randy R. (mail):
And if so, then it's a pretty poor reflection upon our body politic that thinks that gay marriage is more important than the war in Iraq, climate change, the economy, the disparity between the rich and the poor, the difficulties of working parents, gas prices, and so on.

However, every poll taken in the past year has shown that those issues have been rated as much more important than gay marriage across the board, even in the red states. In fact, gay marriage usually lands well near the bottom. If the GOP seriously thinks that it can use this as a vehicle to retain their majority, it will just prove how out of touch they are with the public.

I predict that the GOP WILL attempt to use this as a wedge issue once again, but that it will not work nearly to the degree they hoped for, and in fact, will set them back as much as they gain from it. The best that they can hope for is a higher turnout from the religious right in Virginia where there is a ban on gay marriages on the ballot.
10.26.2006 3:33am
Ed Minchau (mail) (www):
How's this for a slippery slope:

1) marriage is declared to be a fundamental right
2) contested divorces thus become unconstitutional

If marriage is a right, then no judge could grant a divorce if one spouse objects, as to do so would be a violation of that spouse's right to marriage.

Do we really want to go back to the days when divorce was illegal?
10.26.2006 3:52am
Chairm (mail):
But why exactly does that matter? Once, for whatever reason, one or both of the genetic parents is no longer raising the child, and instead the child is being raised by a gay couple (one or neither of whom might be a genetic parent), would the child be better off with an unmarried gay couple?

I'd ask you the same thing: why does it matter to the child that the two men could "marry"?

The child-parent relationship would not be established through Civil Union (aka SSM). It could be established through some form of adoption provided that relinquishment takes place (one way or another).

The benefits of second-parent adoption (available in New Jersey) would create, and provides the direct benefits to, the child-parent relationship with or without Civil Union status.

Maybe it is part of the plan to make second-parent adoption contingent upon Civil Union status? I would guess not.

On the other hand, the presumption of paternity would be stretched beyond creduility if it could be forced to fit the two-man or two-woman combos. This illustrates how the three combos -- man-man, woman-woman, and man-woman -- are inequal anyway. Some legal reformers would do away with mom and dad and substitute "legal parent" or "social parent", making status a legal fiction for all couples.

Adoption is a legal fiction (a good one, mind) and the third party procreation via sperm supplies, for example, is possible only through special legislation that creates an enabling exception to the well-grounded principle that we are all responsible for the children we create.

The point is that marriage is one thing and Civil Union (even if mislabelled as marriage) is a different thing. Merging the two, or joining them at the hip as per this New Jersey decision, would replace state recognition of marriage with something else.
10.26.2006 7:35am
Chairm (mail):
this issue is not really restricted to gay couple raising children, but would include straight couples raising children where at least one member of the couple is not a genetic parent.

Sure, but marriage is not based on adoption and third party procreation. It is almost the opposite of that.

Are you proposing that adoption and third party procreation lead marriage law? I think that would turn things upsidedown.

It is valid for society to prioritize married couples for both adoption and for fertility treatments and third party procreation (especially the adoption of embryos) because of the societal interest in sex integration and responsible procreation.

About 95% of all IVF procedures use the sperm of the prospective mothers' husband (or unwed partner). Another 2% or so use a mix with supplied sperm. So, you are correct, to an extent but most married couples don't use third party procreation methods. But all one-sex pairs would by necessity. Again the inverse of marriage.

I don't think that extramarital procreation forms the basis for state recogniton of marriage. Do you? Does anyone?
10.26.2006 7:59am
Chairm (mail):
my guess is the spread of gay marriage is more likely to decrease, not increase, the frequency of the scenario in which a person enters a straight marriage, perhaps has children, and then leaves the straight marriage and enters a gay relationship. My basic assumption is that when gay marriage is a viable option, this person would be more likely to go straight to the gay relationship.

1. I doubt that "gay marriage" will spread to widely. Where it has been enacted -- in whatever form -- the participation rate remains very low. This is true even if we use the most expansive version -- "same-sex household" as per census bureaus here and elsewhere.

2. And I don't know how third party procreation and/or adoption could possibly make-up for the lower number of children migrating from both-sex relationships.

3. The other thing that seems apparent to me is that one of the best predictors that a same-sex couple will form a household together (not that they'd necessarily convert to Civil Union or to SSM if available) is if one them had children from a previously procreative relationship with the other sex. It seems that prior marriage sets the stage for "gay marriages".

4. Again, I think the indicators are that "gay marriage" as variously practices is on the margins, and will remain on the margins, of the homosexual population. Even fewer of that subset will reside with children; and a tiny segment of that subset will attain children through adoption and/or third party procreation. Note that the estimates of adopted children in same-sex households is somewhat inflated by second-parent adoptions -- again not much like married households.

Part of the problem with the one-sex scenario is emperical, but the bigger chuck is simply in the concept.

If society ought to create a preferential status for the one-sex scenario, should it be presumptively homosexed? If yes, why? And if yes, what is the societal interest in establishing that status?

Piggybacking on marriage, as per the New Jersey decision, is just a "me-too" ride that diminishes the unique status of marriage in society. Before we can strengthen the social institution, we first need to achieve clarity about what is recognized in the legal shadow of that institution.

To reiterate: society esteems marriage because it combines the integration of the sexes with responsible procreation. It uniquely bonds men and women and the children they create.

Maybe society is prepared to go without such an institutin and, instead, replace it with something that is defined by the limitations of the one-sexed arrangement. If we do that, then, I think the onus is on the reformers to show the societal benefit that depends on the presumption of sexual relations in the relationship status.
10.26.2006 8:13am
Chumund:
On Lawn,

Obviously, if you think it is important to distinguish different forms of "parental relinquishment", then you should be raising that issue with Chairm, not me. From my perspective, it doesn't much matter: unless you think that preventing gay marriage will actually prevent the prior events from happening, which seems to be disproven by the fact that gay couples are already raising children, then I would think what matters is what happens next--namely, whether or not the gay couple raising children will be married or not.

Chairm,

You ask: "why does it matter to the child that the two men could 'marry'?"

My basic answer is that it seems likely that it would benefit the child if this gay couple who was raising the child were married. The logic would again be quite simple: marriage tends to foster mutual caretaking, which in turn tends to make people healthier, happier, more productive, more law-abiding, and so on. Even holding aside the child for a moment, if the gay couple's marriage had those beneficial effects for the members of the gay couple, then it would likely benefit the child simply because the people raising the child would be healthier, happier, more productive, more law-abiding, and so on.

I do agree that marriage would not be necessary to establish the child's parent-child relationship with each member of the couple, because adoption could serve that purpose. As an aside, I also agree that the assumption of genetic paternity would make little sense in this context, but I don't see that as an overwhelming problem. One could have a different assumption--call it the assumption of adoption if you will--which would establish the same legal effects.

But again, my assumption that gay marriage would likely benefit children being raised by gay couples does not depend on gay marriage being necessary to establishing the parent-child relationship--as I am in fact sure those gay couples who are currently not allowed to get married but who are raising children would agree. Rather, my assumption is based on the simple idea that gay marriage would benefit the gay couple, and in turn any children being raised by this gay couple.

One P.S.: I don't think adoption is a "legal fiction". I think both the law and people in general acknowledge that adoption does not make people into genetic parents. Rather, the idea is that parenthood is not simply a genetic relationship, and indeed that a genetic relationship is not a necessary condition for parenthood.

So, the idea underlying adoption is not a "fiction", but rather a substantive claim about parenthood, namely that parenthood does not depend on a genetic relationship. You may disagree with that claim, but in my experience many adoptive parents, and children of adoptive parents, feel quite strongly that this is the case.
10.26.2006 8:13am
Chumund:
Chairm,

You also ask: "I don't think that extramarital procreation forms the basis for state recogniton of marriage. Do you?"

No, actually. As I suggested above, I think the basis of the state recognition of marriage is mutual caretaking. Just as is already the case with straight marriages, it would not in fact be necessary for gay marriages to involve children in order for this basic purpose to be fulfilled.

But recall that this discussion began above because I was trying to understand the argument that NOT having gay marriage would be BETTER for the children being raised by gay couples. And I still don't understand how that argument is supposed to work.

On your laters points 1-4: I don't think any of those points contradict my proposition (that gay marriages, if anything, will lower the frequency of the scenario in which a person enters a straight marriage, has children, then leaves that straight marriage and starts a gay relationship). As for how common gay marriages will be in the future, I really don't know. It is something we haven't tried before, so it is hard to make reliable predictions based on the evidence available to us.

Finally, you ask: "If society ought to create a preferential status for the one-sex scenario, should it be presumptively homosexed? If yes, why? And if yes, what is the societal interest in establishing that status?"

I have already answered the third part (basically, the mutual caretaking theory). As for the first two parts, I do think marriages should be based on romantic love. The reason is that I think that element is typically crucial to a successful marriage, basically as a matter of human psychology. For one thing, romantic love encourages the sort of intimacy, exclusivity, and so on which makes marriage work. And for similar reasons, a lack of such romantic love between the couple would allow the possibility of such a romantic love arising with respect to others, which could lead to intimacy, exclusivity, and so on with others that would be inconsistent with marriage.
10.26.2006 8:29am
clb72:
As I remember one of my law professors saying, sometimes the slippery slope leads to a beautiful garden.
10.26.2006 8:52am
Chumund:
By the way, if anyone is curious, this "mutual caretaking theory of marriage" is quite old--indeed, it might even be called the "help meet theory of marriage" after Genesis 2:18 ("And the LORD God said, It is not good that the man should be alone; I will make him an help meet for him.")

John Milton also wrote on this subject in his very interesting "The Doctrine &Discipline of Divorce." Here is a small sample:

"And what his chiefe end was of creating woman to be joynd with man, his own instituting words declare, and are infallible to informe us what is mariage, and what is no mariage: unlesse we can think them set there to no purpose: It is not good, saith he, that man should be alone; I will make him a help meet for him. From which words so plain, lesse cannot be concluded, nor is by any learned Interpreter, then that in Gods intention a meet and happy conversation is the chiefest and the noblest end of mariage: for we find here no expression so necessarily implying carnall knowledge, as this prevention of lonelines to the mind and spirit of man. To this, Fagius, Calvin, Pareus, Rivetus, as willingly and largely assent as can be wisht. And indeed it is a greater blessing from God, more worthy so excellent a creature as man is, and a higher end to honour and sanctifie the league of marriage, whenas the solace and satisfaction of the minde is regarded and provided for before the sensitive pleasing of the body."

So for Milton, the primary purpose of marriage was to prevent loneliness, and to that end things like conversation were even more important than sexual relations.
10.26.2006 9:02am
Pol Mordreth (mail):
randy R.

Striaght married couples have none of those costs or worries.


Actually, thats not true. all of those 'benefits' are only binding if no one complains. without a will, if no one objects, then the surviving spouse will get about 50 to 70 % of the non-jointly held assets. if someone complains, all bets are off and the estate gets eaten up in litigation costs. i have to have a will, a designation of beneficiary, a living will, etc. so I have to have all those costs if I wish those benefits.

Re: military, thats a seperate issue. You can't be openly gay and in the military. So, those benefits are off the table for now. ( not saying whether thats right or wrong, thats a dicsussion for another time)

Immigration is an issue, true. As is gov't pensions. And understand, I'm not arguing against SSM. I'm arguing against marriage in any form as being designated a civil right. its a 3 way contract, between 2 individuals and the state. The state has a right to confer benefits on certain groups and not others in this arrangement, based on percieved societal benefit. Convince 51% of the voters that you should be part of the club. Don't have a court invent a new civil right.

And BTW, Mark, I disagree with the rational basis test on its merits. I think that the state should have to allow everything that it cannow show compelling interest to criminalize, but that it doesn't have to confer benefits to anyone without the burden of proof being on them.

I guess this may be a fine line, but it the difference between saying that gays go to jail for being married (wrong) and the taxpayers have to financially support SSM couples in absence of there being a percieved societal benefit. (also wrong, imo)
10.26.2006 10:03am
Pol Mordreth (mail):
Oh, and btw Randy, I was referring specifically to the plaintiffs statement of damages suffered on pages 10 and 11 of the decision.
10.26.2006 10:11am
Pol Mordreth (mail):
mark,

as far as the difference here, if i read it right the Nj DP law established community property for unmarried roomates based on time together. Also, here in TN there is no such thing as community property that I have found. If community property is a civil right in CA, then SSM should be recognized by the state there, or another form of guaranteeing CP should be in place. Im not arguing against SSM. I'm arguing that marriage is not a civil right, and should be decided by the legislature / voters. Its not constitutional, its not judicial, its not executive.

just my opinion
10.26.2006 10:25am
Chumund:
Pol,

I think how to apply the various relevant legal principles to the provision of benefits is perhaps a bit more complicated of a subject than you are suggesting.

Consider, for example, a proposed law which provides that every month, the state will send a $100 check to people who do 5 hours of unpaid community service that month, provided that those people are members of the Democratic Party. This ends up being a popular law with the 51% of the voters in the state who are members of the Democratic Party, and it is passed.

Do you think people in the state who are not members of the Democratic Party might have a valid constitutional objection to this law? Or would you say they have to persuade a 51% majority of their view?

Personally, I would say they might have a valid constitutional objection (indeed, probably do have one under the U.S. Constitution even if not under the state constitution). And the basic logic would be that while it is legitimate for the state to encourage community service, it is not legitimate for the state to discriminate between people based on their political affiliation. Accordingly, while the state did not need to provide this benefit to anyone, it could not constitutionally provide this benefit only to members of a favored political party.

So, I think that becomes the key issue: when a state provides certain benefits only to straight marriages and not gay marriages, is that for a constitutionally legitimate reason (such as that only straight marriages provide a benefit to the state), or for a constitutionally illegitimate reason (such as that the state only likes straight people--which is certainly illegitimate after Lawrence)? And in my view it cannot be enough to say that a majority supports this discrimination, because of course a majority could often support illegitimate and unconstitutional provisions of benefits.
10.26.2006 10:31am
Pol Mordreth (mail):
Chumund,
I see what you mean, but in my mind its more along the lines of " i will give you preferential tax treatment if you concieve and raise children in a stable home" That the state wants x, and is willing to pay you for it. Re your example, if the state pays everyone who works 5 hours of community service 100.00, and someone who works 1 hour wanting the 100.00 as well.
10.26.2006 10:43am
Pol Mordreth (mail):
Chumund,

this is not to say that now, with current medical technology, that SSM cannot provide that outcome. That is to say that it rests on them to show that they can fulfill that outcome in order to recieve the benefits.
10.26.2006 10:48am
Pol Mordreth (mail):
Chumund,

and another example
Would it be legitimate for the state to pay 100.00 for community service at homeless shelters and not at retirement homes?

(sorry for the piecemeal postings, im at work atm)
10.26.2006 10:50am
lucia (mail) (www):
I see what you mean, but in my mind its more along the lines of " i will give you preferential tax treatment if you concieve and raise children in a stable home"


But conceiving and raising children in a stable home is simply not the condition the state requires for the preferential tax treatment (or other benefits) accorded marriage. My husband and I have been married 22 years; we have neither conceived nor raised children. We get all the legal benefits of marriage.

No only haven't we had children, I can't bear children due to lack of a uterus. As far as conceiving children goes, we are positioned exactly like a same sex couple. We would have need to resort to some sort of technology which, in our case, would include a surrogate womb.
10.26.2006 11:08am
CWuestefeld (mail) (www):
Why does New Jersey think they're in a race with other states? For example, from the quote above:

This State was one of the first in the nation to judicially recognize ...
Perhaps more significantly, New Jersey's Legislature has been at the forefront of ...

I constantly hear such rhetoric in Politician's sound bites on the radio (I live in NJ), and they always seem in a hurry to "catch up" when NY has gotten to something first.

Why should they feel it's important to lead the way? And, more on topic, why do they feel that this leadership is sufficiently important to point out in *other* cases?
10.26.2006 11:30am
Chumund:
Pol,

We could easily imagine a marital law which worked like that ("i will give you preferential tax treatment if you concieve and raise children in a stable home"): anyone would be free to get married privately, but the state's involvement in marriage would be conditioned on the married couple conceiving and raising children. As an aside, I think this would be a very difficult policy to challenge. Indeed, in effect it already exists--something like a dependent allowance or child tax credit has this effect, although it is not limited to married couples, and certain marital laws depend on the existence of children.

Interestingly, though, marital law in general does not work like that, because the state will get involved in many ways whether or not the couple conceives and raises children. What this suggests to me is that conceiving and raising children is not in fact necessary in order for the state to benefit from marriage. This, of course, makes sense to me, because as I have suggested I think the state benefits from the mutual caretaking of the couple even if children are not involved. As an aside, I would also suggest that the state could benefit if the couple is raising children, even if they did not in fact conceive that child together.

So, to reframe a bit, suppose the law said that Democrats would get their $100 no matter what sort of community service they did, but Republicans could only get their $100 if they volunteered for MoveOn.org. Of course, perhaps many Democrats would volunteer for MoveOn.org, but it isn't a necessary condition for their receipt of the benefit. This analogy is a bit complicated, but the point is that denying gay couples a particular benefit of marriage because they cannot meet a condition that straight couples COULD meet, but under the law nonetheless do not HAVE to meet in order to get that particular benefit, is still a form of de jure discrimination between gay and straight couples.

You also ask: "Would it be legitimate for the state to pay 100.00 for community service at homeless shelters and not at retirement homes?"

Probably, but it actually depends a bit. If the state only wanted to pay the $100 for service at homeless shelters, that would likely be fine. But if the state was willing to pay for community service everywhere BUT retirement homes, that might get tricky. In fact, the most relevant Supreme Court case would be Cleburne, and the basic idea would be that once the state has extended a benefit broadly, if the state then tries to make an exception to that broad benefit for a particular group, the state might have to justify the exception. But perhaps not . . . this is a muddy area of constitutional law.

Anyway, this is a useful discussion because it again helps frame the key issues. Are gay marriages something which fall entirely outside our current marital policy? Or are they in fact an exception that has been carved our of our current marital policy? Depending on your answer to those questions, the state may or may not have some burden of proof.
10.26.2006 11:33am
Pol Mordreth (mail):
Lucia,
It is a reason, but not the only reason, for the state to be in the business of sponsoring marriage. I used that for the sake of simplicity. It is a prominent benefit from marriage as currently defined. My only question for you on this, did you know of your condition prior to the marriage?
10.26.2006 11:44am
lucia (mail) (www):
Chumund wrote:

..but the point is that denying gay couples a particular benefit of marriage because they cannot meet a condition that straight couples COULD meet, but under the law nonetheless do not HAVE to meet in order to get that particular benefit, is still a form of de jure discrimination between gay and straight couples.


Chumud, your point can be extended. Straight couples can get married even if they know they absolutely can't conceive children.

Basically, same sex couples are not permitted a benefit supposedly due to "condition A" they can't meet, yet straight couples who can't meet "condition A" and know they can't meet it are permitted the benefit.

One can't help but suspect that "condition A" is not considered necessary to win the benefit.
10.26.2006 11:51am
Pol Mordreth (mail):
Chumund,

Anyway, this is a useful discussion because it again helps frame the key issues. Are gay marriages something which fall entirely outside our current marital policy? Or are they in fact an exception that has been carved our of our current marital policy? Depending on your answer to those questions, the state may or may not have some burden of proof


I understand your point. I feel that, when created, the statutes did not discriminate. (of course, i feel that discrimination has to have an active component.) The reason that they did not discriminate because at the time gay marriage was completely outside the scope of marital policy. As more and more gov't interfention has occurred, both the LGBT communal rights have gone up as well as the requirements for marriage have expanded.

Were i a legislator (at the state level), i would push to change the statute to identify what was required for the state to recognize a marriage. if your marriage met those items, you would have state recognition and the benefits that follow.

in Cleburne, was it a broad benefit that was later restricted, or was the benefit restricted at a later time?
10.26.2006 11:56am
lucia (mail) (www):
My only question for you on this, did you know of your condition prior to the marriage?


I didn't. But I have several friends who married after their hysterectomies.

I used that for the sake of simplicity.


I think you might want to rethink the idea that using a clearly flawed claim to support your argument for blocking ssm "simplifies things".

I'm an engineer and find that physical arguments based on incorrect claims may simplify the math, but tend to give poor results. The negative impact on the results may be different in other fields, but I somehow I doubt it.
10.26.2006 11:58am
Pol Mordreth (mail):
Lucia,
It isn't clearly flawed. It is one of the reasons there is a state interest in marriage. it is not all, or the only, so using it as an example is, to me, as valid as using your personal situation to extrapolate for the entire population. I used to be an engineer as well, and while math and physics are constants, they do not translate well if at all to the social sciences. we are not rational beings, no matter how hard we try to be.

oh, and by the way, if you read my earlier posts, i support SSM. i just dont believe that it is a civil right. I think it is a state granted privilege. (like all state sanctioned marriage)
10.26.2006 12:07pm
On Lawn (mail) (www):
Chumund: unless you think that preventing gay marriage will actually prevent the prior events from happening, which seems to be disproven by the fact that gay couples are already raising children

I do think that, and I'm curious as to how removing the gender reference in marriage would not cause an increase in baby abandonment. Again, reference the writings of Prof Velleman above. There is absolutely no way that children are raised by homosexuals, orphanages, run-away shelters discredits the fact that in areas where marriage has been neutered, so has the children's rights to their heritage been trampled on.

It seems neutering marriage and treating children as a relationship commodity instead of a product of a relationship go hand in hand. And that isn't a suprise considering the premise of same-sex marriage is that it that somehow marriage is not about responsible procreation. A notion that seems to ignore a wealth of social science on the matter that children do best when born and raised by their parents in marriage.

So I guess the counter question is, with all the evidence in laws of the nations and states that neuter marriage, how can you deny it?
10.26.2006 12:18pm
CJColucci:
It is nothing short of ludicrous to propose that homosexuals are in any way qualified to consult on the mechanics of heterosexual relationships. It is every bit as ludicrous to propose that heterosexuals are qualified to consult on homosexual relationships.

Actually, the "mechanics" are the easy part, accessible to straights and gays alike — though your use of "back dooring" in a previous post suggests you may not be up on all the details.
10.26.2006 12:21pm
Chumund:
lucia,

Absolutely. To be perfectly frank, I don't think that anyone looking at marital policy in the U.S. objectively could conclude that conceiving children, let alone the potential to conceive children, is considered a necessary component of a socially-beneficial marriage. Obviously, marriage is valued in part because when children are conceived, they may benefit from being raised by married parents. But it seems quite obvious to me that every state has decided that marriages can be beneficial solely because of how it benefits the spouses. And again, this makes perfect sense to me--I have no doubt that your marriage has the potential to make you and your spouse happier, healthier, more productive, and so on, and that society will be better off if this happens.

Pol,

Cleburne involved a zoning ordinance which specifically required special use permits for, among other things, "hospitals for the feebleminded". A person wanting to build a group home for mentally-impaired adults was denied a special use permit. Here is the core of the Supreme Court's reasoning:

"The city does not require a special use permit in an R-3 zone for apartment houses, multiple dwellings, boarding and lodging houses, fraternity or sorority houses, dormitories, apartment hotels, hospitals, sanitariums, nursing homes for convalescents or the aged (other than for the insane or feebleminded or alcoholics or drug addicts), private clubs or fraternal orders, and other specified uses. It does, however, insist on a special permit for the Featherston home, and it does so, as the District Court found, because it would be a facility for the mentally retarded. May the city require the permit for this facility when other care and multiple-dwelling facilities are freely permitted?

It is true, as already pointed out, that the mentally retarded as a group are indeed different from others not sharing their misfortune, and in this respect they may be different from those who would occupy other facilities that would be permitted in an R-3 zone without a special permit. But this difference is largely irrelevant unless the Featherston home and those who would occupy it would threaten legitimate interests of the city in a way that other permitted uses such as boarding houses and hospitals would not. Because in our view the record does not reveal any rational basis for believing that the Featherston home would pose any special threat to the city's legitimate interests, we affirm the judgment below insofar as it holds the ordinance invalid as applied in this case. . . .

The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded, including those who would occupy the Featherston facility and who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law."

Again, I think this helps frame the issue. I'm not sure as a legal question, it really matters what people were thinking at the time they passed the relevant ordinance, and indeed the Supreme Court in Cleburne declined to reach the question of whether the ordinance in question was itself unconstitutional. Rather, what mattered in Cleburne was whether the special condition imposed by the ordinance on these particular parties rationally served a legitimate state interest, or rather was motivated by irrational prejudice.

So, I would suggest part of the issue is whether any differences between straight and gay marriages are in fact sufficient to justify the state's scheme for the provision of marital benefits in light of the state's legitimate interests, or rather whether the application of marital law to deny benefits to gay marriages can only be based on irrational prejudices about gay people/marriages.

And that is what is somewhat damaging about the point lucia and I have been making: if a lack of conceived children/ability to conceive children is not a barrier to the state's provision of benefits to straight marriages, then it seems hard to argue that is the justification for not providing similar benefits to gay marriages.
10.26.2006 12:24pm
Chumund:
On Lawn,

I am aware there is a correlation between changing family norms of all sorts. But obviously, correlation is not causation, and I have seen no persuasive evidence that the growing acceptance of gay relationships is causing changes in other family norms. Moreover, the correlations are far from perfect: norms against, for example, extramarital sexual relations and out-of-marriage briths have been strengthening since the late 70s or so, and yet norms against gay relationships have been weakening that time. That evidnece suggests to me the lack of the causal relationship you seem to be claiming.
10.26.2006 12:30pm
clb72:
God d-mn that Massachusetts, for having gay marriage and the lowest divorce rate in the country. They're just doing it to screw with the presumptions that we just know are true.

And God bless the red states for having higher divorce rates. They love marriage so much they just have to do it more than those thankless debauching atheists in the blue states.
10.26.2006 12:44pm
On Lawn (mail) (www):
God d-mn that Massachusetts, for having gay marriage and the lowest divorce rate in the country.

They also have the highest never-married percentage. When you factor in the number of people getting married into the divorce rate, it winds up not being the lowest at all.
10.26.2006 12:50pm
Brooklynite (mail) (www):
i support SSM. i just dont believe that it is a civil right. I think it is a state granted privilege. (like all state sanctioned marriage)

Let's call it a privilege, for the sake of argument. Isn't the question, then, one which grounds the state may grant a privilege to one group of its residents, and deny it to another? May a state grant the privilege of marriage only to whites, or to Christians, or to right-handed people?
10.26.2006 12:58pm
lucia (mail) (www):
Pol Mordreth said:
It isn't clearly flawed. It is one of the reasons there is a state interest in marriage. it is not all, or the only, so using it as an example is, to me, as valid as using your personal situation to extrapolate for the entire population.


The claim that the states excludes couples from marying because they can't have children is flawed because the state doesn't do that. The law happens to be the same for everyone. Though my life happens to illustrate this, I am "extrapolating"; I am simply illustrating

Or, are you suggesting the law is different for others and my case is an exceptions to the general law?

Pol Mordreth said:
I used to be an engineer as well, and while math and physics are constants, they do not translate well if at all to the social sciences. we are not rational beings, no matter how hard we try to be.


I didn't suggest people are rational beings.

Here in comments, we are having a discussion in which we are supposedly providing reasoned arguments that form the basis of laws, policies or just our opinions. In this context, basing a conclusion on a false claim tends to lead to poor, inconsistent results. As far as I'm aware, this is the case in all fields of study that use reason and logic.

Since you are trained as an engineer, I will elaborate on the idea that physics and science "are constants". Both may be constants in some sense, but in a large sense, much of engineering is not. (I might argue that the most interesting parts of physics are also not 'constants'-- but I'd defer to physicists on that.)

In fluid mechanics and heat transfer, we develop both ad hoc and approximate models based on physical ideas that are vigorously argued, sometimes untested, and sometimes extremely difficult to test. (Examples: boundary layer theory. The mixing length model for turbulence. The Otto cycle for internal combustion engines. )

When the physical ideas --including their simplifications and assumptoins -- reflect reality well, the resulting simplified model suceeds and has great predictive strength. When the simplifications and assumptions do not reflect reality well, they tend to have very poor predictive strength.

The logical process is not that different from other fields:

If the initial claim, hypothesis or assumption is bad or flawed (particularly for the situation under consideration), the final conclusion or results will be incorrect.

Or are you arguing this isn't true?

To get back to the SSM and the joint fertility claim to support the idea of excluding ssm:

Even if the state has some interest in encouraging people who can have kids to marry each other, it is a simple fact the state does not exclude heterosexual couples who are jointly infertile from marrying an adult of the opposite sex. So, this claim cannot support excluding same sex couples from marrying.

The argument is flawed with respect to explaining why we exclude people from marrying.

You have hinted at other reasons that you believe would suppor the claim-- but you don't state them. If you really want to simplify this discussion, state the non-flawed ones. To "simplify" by relying on a claim that does not support your conclusion, but hinting there are some unrevealed claims that would support your conclusion makes the argument longer, it doesn't simplify.
10.26.2006 1:07pm
clb72:

God d-mn that Massachusetts, for having gay marriage and the lowest divorce rate in the country.

They also have the highest never-married percentage. When you factor in the number of people getting married into the divorce rate, it winds up not being the lowest at all.



you can't factor the number of people getting married into the divorce rate. It's a rate.

I think what you're trying to say is that there is a higher marriage rate in red states. like i said, god bless them for trying, failing, and trying again. gotta love those red state sinners.
10.26.2006 1:15pm
On Lawn (mail) (www):
you can't factor the number of people getting married into the divorce rate. It's a rate.

There are many things one can and cannot do in interpreting statistics and numbers. The value of a statistic is in its ability to help us understand reality in a particular context. We call this "relevance".

So I'll give you a chance to back up your claim. In this debate about marriage, what value is a divorce rate vs. total population? What is the relevance? And why isn't it even more relevant to present a rate based on the number of marriages instead of the total population?

Let me give you an example answer on a related, but seperate topic.

I think what you're trying to say is that there is a higher marriage rate in red states. like i said, god bless them for trying, failing, and trying again.

The lowest divorce rates are among two distinct groups of people. Catholics, and Mormons with temple marriages. Their divorce rates are easily statistically significant, and their marriage rates don't suffer.

Both of those groups focus strong opposition to neutering marriage. In fact, as you go from religion to religion you can see a correlation of how important marriage is and the preperation for marriage and opposition to neutering the marriage institution, and a proportional correlation in marriage and marriage success rates.

Religions make a better correlation than states when looking at marriage principles ability to sustain successful marriages. Because religions have a more homogenous doctrine of marriage principle than states do.
10.26.2006 1:31pm
Pol Mordreth (mail):
Brooklynite,
imho, the state may not prevent a religious ceremony (marriage). The state may choose which marriages may receive benefits. this determination should be revisited by the legislature periodically to reflect the changing nature of society's view of marriage.

As long as its clear what the societal expectations of marriage are, and what the gained benefits are, that i feel the state should be able to say as long as you meet the societal requirements, we will sanction your marriage and provide you with the stated benefits.

I think the biggest problem is, there is no stated reason for the state to be interested in marriage. therefore, there is no good reason for the state to deny the benefits to anyone, be it ssm, polygamy, polyandry, incest, etc. as long as you can claim to be married, you should have benefits. If the state would make a claim of what it benefits it requires to validate your union, then there would be no discrimination. either meet the criteria or not.
10.26.2006 1:33pm
Mark Field (mail):

I disagree with the rational basis test on its merits. I think that the state should have to allow everything that it cannow show compelling interest to criminalize, but that it doesn't have to confer benefits to anyone without the burden of proof being on them.


This might be practical if the state weren't up to its ears in regulatory systems. For example, should a gay person have the burden of proving the right to a license to practice law? Should a woman?

And what does it mean to say that someone has the "burden of proof"? I interpret that to mean that the person has met all the rational criteria which are relevant to the benefit. But, of course, that's pretty much what the NJ court did here. I'm not sure what test you would apply, nor how such a test would avoid problems with discriminatory criteria and/or enforcement.


I'm arguing that marriage is not a civil right, and should be decided by the legislature / voters. Its not constitutional, its not judicial, its not executive.


I get that argument, but as logicnazi and others (including me) have pointed out, that horse left the barn a very long time ago.
10.26.2006 1:39pm
Brooklynite (mail) (www):
You didn't answer my question, Pol. May a state properly deny marriage to people on the basis of race, religion, or handedness? (And if not, why not?)
10.26.2006 1:41pm
Randy R. (mail):
The ONLY requirements that any state has regarding marriage is that the people be opposite sexed, are of their own free will able to marry, are of a certain age, and are not too closely related. There are NO other requirements for marriage.

If the state has some sort of interest in children, then it should be a requirement. Or they should inquire as to the fertility of the couple. Or ask their intentions for children or adoption.

But they do not. So whenever any one argues about marriage being 'about' children, they are simply using an excuse that doesn't exist. If marriage is 'about' children, then it should have some sort of legislative history. Until you can find me some, then marriage is simply 'about' two people who want to marry each other. Nothing more, nothing less. And if that is what it is about, then there is no reason to keep gay couples from this institution.
10.26.2006 1:46pm
te:

It is nothing short of ludicrous to propose that homosexuals are in any way qualified to consult on the mechanics of heterosexual relationships.

Wow. Have you ever seen a "homosexual" outside of watching a Will and Grace episode?

Among my friends gays and straights talk about their relationship issues with one another all the time. The gay guys give and get advise from the straight folks and the lesbians and vice versa.

You seem to operate under the assumption that the mechanics of sexual activity somehow define the contours of the emotions involved. Not so. I guess this is the thing that best defines the underlying anxiety that some straight people have with gay marriage (and gays in general): they are unable to recognize that such relationships can be and are founded on love and caring just like straight relationships. And that is because they are human beings.



Y
10.26.2006 1:49pm
Randy R. (mail):
"It is nothing short of ludicrous to propose that homosexuals are in any way qualified to consult on the mechanics of heterosexual relationships. "

Apparently, this person is clueless about the one of the most widely read columns on sexual and personal relationships, which is by Dan Savage, a openly gay man.
10.26.2006 1:59pm
Pol Mordreth (mail):
mark,
I'm not saying that my opinion is translateable into policy, if it is even workable in the present situation. Its just my opinion, and how i personally would have done things were i writing laws. its why i don't like this decision. Do i think that there is any other real way to solve this? not in the current climate. If i could rewrite the laws to codify what the state gets from marriage, i would. then this discussion would be moot. I came here to learn and understand other points of view, and to debate for the sake of debate itself.
10.26.2006 2:12pm
Pol Mordreth (mail):
Brooklynite,

You didn't answer my question, Pol. May a state properly deny marriage to people on the basis of race, religion, or handedness? (And if not, why not?)


On the basis of? no. In spite of? yes. I'm sorry if I wasn't clearer in my response
10.26.2006 2:13pm
clb72:

The lowest divorce rates are among two distinct groups of people. Catholics, and Mormons with temple marriages. Their divorce rates are easily statistically significant, and their marriage rates don't suffer.


That's not correct, but I don't see what it has to do with my point. The areas of the country that are most likely to get up in arms about gay marriage are also many of the same areas that can't seem to stay married.

I'd question the source for you assertion on Catholics and Mormons. Catholics get their marriages "annulled," and in studies will not admit to having ever been married. Mormoms who are married in temple marriages will get a civil divorce, but not get a temple divorce. In fact, they can get a second temple marriage without canceling the first one. The Barna study found the Mormon divorce rate was 24%, around the same as other Christian groups. Catholics were at 25%.

Perhaps the reason the divorce rate is so high in red states is because it's high among born-agains (27%) and Baptists (29%). Again, the same folks who are so protective of their right to marry, and marry again.

P.S. Atheists and agnostics have a much lower divorce rate- 21%.
10.26.2006 2:17pm
Pol Mordreth (mail):
Lucia,

The claim that the states excludes couples from marying because they can't have children is flawed because the state doesn't do that.


i never claimed that. i was responding to a hypothetical example from Chumund, with another hypothetical example. Do I think that that can be one of the rational bases for state interest in marriage? yes. do I think that the rational bases should be defined? yes.
10.26.2006 2:21pm
On Lawn (mail) (www):
Chumund, and Randy R

> Chumund: But obviously, correlation is not causation,

Statistics is based on a study of probability. Probability is the ability to predict an outcome based on a defined set of conditions. The more those conditions seem to affect the outcome, the more we understand that something is at work.

To correct your statement, it is more accurate to say that correlation is not necessarily causation. It is safe to say something is at work there, even though we may not have pinpointed just what is at work. But then that is the arena statistics was meant to glean information from, as imperfect as any mathematics of guesswork can be.

However in this case the correlation is unavoidable. When you remove the notion of procreation responsibility from marriage by neutering its definition, then procreation responsibility is removed also. If you have an alternate theory of causation I'd like to hear it, but with Occam's Razor and all I doubt you can come up with something more succinct that answers the correlation.

> Chumund: out-of-marriage briths have been strengthening since the late 70s or so, and yet norms against gay relationships have been weakening that time. That evidnece suggests to me the lack of the causal relationship you seem to be claiming.

I'm unsure of what you are seeing here. From what I can tell, that would seem to validate the correlation, not invalidate it. But I will leave that presumption aside pending your clarification.

> Randy R: The ONLY requirements that any state has regarding marriage is that the people be opposite sexed, are of their own free will able to marry, are of a certain age, and are not too closely related. There are NO other requirements for marriage.

If the state has some sort of interest in children, then it should be a requirement.


That last sentence is undermined by the previous paragraph. Lining up the requirements for equal gender representation, non-consanguinity, and minimum age all look like the state is taking an interest in procreation responsibility.

> Randy R: Or they should inquire as to the fertility of the couple.

That argument is refuted by this article.

> Randy R: So whenever any one argues about marriage being 'about' children, they are simply using an excuse that doesn't exist.

Before you said that you were not devaluing the link between parents and children. But denying the existence of marriage as an social institution built on strengthening that link does just that. In this post in particular the self-contradiction of your advocacy is very stark. And your denials on both sides of the contradiction are all the less plausible in my mind.
10.26.2006 2:23pm
Pol Mordreth (mail):
Mark

For example, should a gay person have the burden of proving the right to a license to practice law? Should a woman?


that question seems to me to be deliberately disengenuous. It really has no basis on what I'm arguing. I'm arguing that the state has a right to require you to (in your example here) prove that you are qualified to practice law. Anyone can sit for the bar. if you pass, you can practice law. simple. and, that is the standard (as i understand it) in every state. I feel that marriage should be the same way. The state chould create a standard of what functions marriage performs for society. If your arrangement meets the standard, then you get the state benefits. each state should be free to draft their own list, and then consistantly apply it.
10.26.2006 2:36pm
Chumund:
Divorce rates correlate with all sorts of interesting things. Personally, I'm not sure if the correlations with religious affiliation (e.g., relatively high for Baptists and unaffiliated Christian denominations, relatively low for Lutherans and atheists) really mean much--they could, for example, simply reflect correlations with other things like education, socioeconomic situation, age at marriage, and so on. I'd ask similar questions about geographic correlations with these other factors.

In fact, as I recall one really good indicator (which undoubtedly correlates with a lot of other factors) is whether the woman is college educated--recently the divorce rate in the first ten years is something like half or less than for women who are not college educated.

Anyway, I think this very complicated picture defies simple explanations. And as a matter of fact, divorce rates are yet one more thing which have been going down as norms against gay relationships and gay marriages have weakened, for whatever that is worth.
10.26.2006 2:41pm
Mark Field (mail):

I'm arguing that the state has a right to require you to (in your example here) prove that you are qualified to practice law. Anyone can sit for the bar. if you pass, you can practice law. simple. and, that is the standard (as i understand it) in every state. I feel that marriage should be the same way. The state chould create a standard of what functions marriage performs for society. If your arrangement meets the standard, then you get the state benefits. each state should be free to draft their own list, and then consistantly apply it.


It looks to me that this is pretty much the exact reasoning used by the NJ court.

More fundamentally, though, you're still leaving open the question I raised: assuming the state can establish criteria, can it establish irrational criteria? That, after all, is the basis for current law with respect to racial and gender qualifications (actually, it's stronger than that, but the basic idea is similar).
10.26.2006 2:51pm
Brooklynite (mail) (www):
The state chould create a standard of what functions marriage performs for society. If your arrangement meets the standard, then you get the state benefits. each state should be free to draft their own list, and then consistantly apply it.

So if the state says that the function of marriage is the preservation of the white race, then they should be free to deny the benefits of marriage to non-white couples? If they say the function is to create a eugenically superior society, they should be free to deny the benefits of marriage to people with congenital disabilities?

If not, why not?
10.26.2006 2:57pm
Chumund:
On Lawn,

Correctly used, statistics can indeed be helpful. But they are all too often misused.

Anyway, one of the most common reasons why two things might be correlated without there being a direct causal link is that they both have a causal link to some third thing (e.g., the barometer and rain are not directly linked, but rather are both linked to low atmospheric pressure). So, if it happened to be true that marital norms and approval of gay marriage were inversely correlated, it could be because of some third causal agent.

But in fact, they appear to be POSITIVELY correlated. I'm not sure why you cut off the first part of that quote, but as a result you changed its meaning to the opposite of what I wrote. What I actually noted is "norms against, for example, extramarital sexual relations and out-of-marriage briths [sic] have been strengthening since the late 70s or so", and that this strengthening of marital norms is correlated with increased approval of gay relationships and marriage during that time. As I also noted, divorce rates have declined as approval of gay relationships/marriage have increased.

So, the empirical data available to us since the 1970s suggests the exact opposite correlation of the one you suggested: other marital norms are POSITIVELY, not NEGATIVELY, correlated with approval of gay relationships/marriage.

Of course, I would not say increased approval of gay relationships/marriage is actually causing other marital norms to strengthen. What I would actually suggest is that all of these are correlated effects of a more basic underlying dynamic--namely our society moving from a period of relative skepticism about marriage largely driven by the inequities of the past, which hit its peak in the 1970s, and toward a renewed interest in the benefits of marriages built on a equitable partnership model. And because both straight and gay marriages can participate in such a model, it is not surprising to me that tolerance for gay marriages are coming along for the ride as our general tolerance of gay people increases.

None of this, I am afraid, supports your thesis about increased tolerance of gay marriages weakening other marital norms. But again, the data suggests the opposite correlation is occurring.
10.26.2006 2:57pm
Pol Mordreth (mail):
Brooklynite,
Well, yes, as long as they are not prevented from marrying whom they chose, and the voters approve it, there is no reason why not. Just because it would not be a government i would choose to live under, doesn't negate its function. Remember that in our model, the 'state' is actually the cmbined will of the people. If thats the form of government the people choose to live under, and those who feel differently have the right to work within the legislative process to change it, so be it.
10.26.2006 3:18pm
Michael J:
The state chould create a standard of what functions marriage performs for society. If your arrangement meets the standard, then you get the state benefits. each state should be free to draft their own list, and then consistantly apply it.

If I may, this case isn't about what a state should or shouldn't do; it's about what a state does. To encourage a particular environment for raising children is a very legitimate state interest and is an excellent justification for bestowing benefits. But it is evidently clear from state laws and policy that the inability to have children or the desire not to does not factor into the state's decision to grant a marriage license, even though one of the main reasons for recognizing civil marriage is for the benefit of children. Furthermore, those policies have shown that in the minds of New Jerseians, allowing those who can't have kids to marry does not harm the institution in any way.
10.26.2006 3:20pm
lucia (mail) (www):
For what it's worth, both the divorce rate per 1000 people and the divorce rate per 1000 marriages has been dropping since either the very late 70s or early 80s. This is discussed in: "Marriage and Divorce: Changes and their Driving Forces," by Betsey Stevenson and Justin Wolfers, The Journal of Economic Perspectives, Winter 2007.

A graph is reproduced here.

The divorce rates continue to drop steadily after the Mass. gay marriage ruling.
10.26.2006 3:21pm
Pol Mordreth (mail):
Michael J,

True, see my post from 1:12 pm today
10.26.2006 3:37pm
lucia (mail) (www):
Pol Mordreth said:"i never claimed that. i was responding to a hypothetical example from Chumund, with another hypothetical example.

Well then I misunderstood you. When I read you comment, I thought you were providing a non-hypothetical example to illustrate why Chumund's hypothetical example of having people do volunteer work wasn't a good metaphor for reality.
10.26.2006 3:40pm
Pol Mordreth (mail):
Im sorry for the misunderstanding....
10.26.2006 3:43pm
On Lawn (mail) (www):
> Chumund: What I actually noted is "norms against, for example, extramarital sexual relations and out-of-marriage briths [sic] have been strengthening since the late 70s or so",

Then that would be my mistake in misquoting, and I appreciate the correction. My apologies, there was nothing treacherous intended in how I quoted it.

and that this strengthening of marital norms is correlated with increased approval of gay relationships and marriage during that time.

I hope to see your references for these figures. I've seen an inverse correlation to increasing opposition to neutering marriage, and increasing acceptance of homosexuality. Which would indicate that people do not see marriage as oppressive to homosexuality. But I do not believe that is the same thing you are referring to here.

So, the empirical data available to us since the 1970s suggests the exact opposite correlation of the one you suggested: other marital norms are POSITIVELY, not NEGATIVELY, correlated with approval of gay relationships/marriage.

Funny, in Stanley Kurtz in his writings looks at how unwed births correlate to government sponsorship and benefits towards unwed combination. Including same-sex relationships. The correlation is stark, one that a friend of mine is currently doing more work on. But one item I see complained about is in respect to the Dutch. There the correlation shows up a year or two before the enactment of their marriage-like arrangement for same-sex couples.

But here you are looking at a thirty years before any same-sex acceptance was acknowledged in the USA. I was wondering what your justification was for that.

Also, as I told the previous poster, I do not believe that divorce rate per citizen is as relevant as divorce rate per marriage. And I believe, as Kurtz has used, the unmarried birth rate is an even more relevant figure. For to me marriage fails when our support and understanding of it fails. For people to start having children without first being married shows to me a real misunderstanding and lack of support for marriage.

Chumund: None of this, I am afraid, supports your thesis about increased tolerance of gay marriages weakening other marital norms.

None of what you said discredits it, or accurately reflects it. The weakness in marital norms is seen in many different numbers. The divorce rate was one offered by someone on your side of the issue, and I cannot be held responsible for problems in his argument.

For myself, Kurtz's work as well as Velleman's triangulate with real world evidence right now the problems we can expect from same-sex marriage.
10.26.2006 4:29pm
On Lawn (mail) (www):
A graph is reproduced here.

Now I see where you two are coming from. Ampersand, the clown, makes a statistical look at the situation since the 1970's, but a very poor analysis.

The thing that seems to have happened in the 70's that makes a big difference is the failure of the ERA movement. If there ever was a time that marriage neuterist doctrine was strongly presented in the USA it was while ERA representatives wanted to remove any distinction between male and female altogether. Homosexual identity politics played a much smaller role in the picture of neutering marriage at the time.

What is even more striking in his use of those numbers is ignoring the trends seen in countries that have status for homosexual relationships, for looking at one country that has staved those off.

I've noticed that as the debate continues support for neutering marriage wanes, and people gain a better appreciation for what marriage offers. I would agree this has been happening since the 70's and would continue to progress human rights in the USA, even if many in Europe have abandoned it.
10.26.2006 4:42pm
Chumund:
On Lawn,

I believe the AEI has collected a great deal of survey data on changing attitudes toward gay people/relationships/marriage (and also on attitudes towards things like extramarital affairs).

If you look at such resources, the basic fact you will see is that in the United States, approval of gay relationships, gay civil unions, and gay marriages has been steadily increasing since the 1970s. If we agree that marital norms also have been strengthening over this time in the United States--for whatever reason--then we have observed the opposite of the correlation that you seemed to predict.

I'm not sure you are open to this suggestion, but I would in fact suggest that perhaps you should separate out gay-related issues from some of the other marital norm issues which concern you. In other words, you might reevaluate some of your theories about what is necessarily implied by an acceptance of gay marriages.

Just to give one example, I personally find that it is not necessarily the case that people who support gay marriages discount the importance of having a man and a woman in a straight marriage. These views can be reconciled if one thinks that we are really talking about four types--straight men, gay men, straight women, and lesbians--and it is in fact important for each type of person to be married to a person of the right other type. So, it is important for straight men to be married to straight women, and not straight men, gay men, or lesbians. But conversely, it is important for gay men to be married to gay men, and not straight men, straight woman, or lesbians. And so on. Again, the basic idea is not so much that marriage should be "neutral" (let alone "neutered") when it comes to sexual pairings, but rather that gender alone does not determine the appropriate pairing. To but the same point one more way, one need not be dismissing the importance of "man" versus "woman" in order to support gay marriage, but instead can also be adding the importance of "gay" versus "straight".

By the way, I won't delve into Kurtz's controversial analysis of data from other countries. For me, it is hard enough to try to understand changing attitudes in my own country.
10.26.2006 5:47pm
Pol Mordreth (mail):
Mark,

More fundamentally, though, you're still leaving open the question I raised: assuming the state can establish criteria, can it establish irrational criteria? That, after all, is the basis for current law with respect to racial and gender qualifications (actually, it's stronger than that, but the basic idea is similar).



Essentially, yes, the criteria for or against may be irrational, as the rationality of the state is corolarry to the rationality of the people.
10.26.2006 5:50pm
On Lawn (mail) (www):
I'd question the source for you assertion on Catholics and Mormons.

Mormons: Religion, Mental Health, and the Latter-day Saints (ISBN 1-57008-631-1)

Catholics: Marriage and the spiritual realm : The role of proximal and distal religious constructs in marital functioning (ISSN 0893-3200)

Catholics get their marriages "annulled," and in studies will not admit to having ever been married.

Annulments are far more difficult to get. How much impact do you think this has on the numbers?

Remember, Massachusetts, which you are really rooting for, is also a heavily catholic state.

Mormoms who are married in temple marriages will get a civil divorce, but not get a temple divorce.

I doubt you'd find anyone at all under those conditions who would not consider themselves divorced. This seems to be far-fetched reasoning on your part..

The Barna study found the Mormon divorce rate was 24%, around the same as other Christian groups. Catholics were at 25%.

Link? BTW, there is an important distinction I missed. Active catholics and active mormons (temple married) are an important distinction, In judging religious influence you should account for those influenced the most.

But I also invite you to read my other posts, that divorce rate is something provided by someone other than myself. I am still waiting for them to provide the relevance to the topic, and why they feel state demographics are more relevant that religious (as an example). And why they feel that divorce rate per citizen is more relevant than a divorce rate per marriage.

It seems, even from Amp's numbers that the marriage rate has been in decline, which is an alarming number when judging the strength of marriage as an institution. Of all the statistics to look at, I'm surprised that people are choosing the one they are in the Massachusetts vs Bible-Belt. And no explanation has been forwarded by them.
10.26.2006 5:50pm
Pol Mordreth (mail):
This may be off topic a bit, but what happens if the constitution of a state contradicts itself? Say, in the intervening 180 days, the people of NJ decide to ratify a constitutional amendment defining marriage as btw one man and one woman, and no other groups are entitles to the benefits afforded married couples? I don't think this likely in NJ, or in Mass, but out here it may be more likely.

Thoughts?
10.26.2006 5:55pm
lucia (mail) (www):
On Lawn:
Barry/Amp simply reproduced a graph that shows the divorce rate per 1000 people and the divorce rate per 1000 marriages have both declined since the 70s. It happens to show data that contradict your suggestion the divorce rate would revealed to be rising if the denominator were the number of marriages instead of total population.

You can call Barry/Amp any names you like, but that won't change the fact that no mater how you pick the denominator, the divorce rate is not currently rising and has been dropping noticably during the entire period of time associated with advances in gay rights and the campaign for same sex marriage.
10.26.2006 5:55pm
Pol Mordreth (mail):
wow, corollary, even....
10.26.2006 5:56pm
On Lawn (mail) (www):
If we agree that marital norms also have been strengthening over this time in the United States--for whatever reason--then we have observed the opposite of the correlation that you seemed to predict.

If that is the database, I'd have to say it is more accurate to say that there is no correlation between being against neutered marriage (as in pro-gender complete marriage) and being homophobic. Support for marriage as an institution of equal gender representation has increased as the debate is in the forefront, along side increasing acceptance of homosexuality.

approval of gay relationships, gay civil unions, and gay marriages has been steadily increasing since the 1970s

I'm not sure that works out. For instance, you might note polls change dramatically when asked specifically about "marriage" or "rights" or even simply "legal status". These days polls might offer all three, and the difference is more explicit.

From what I've seen there has been a decrease in support for neutered marriage (which as I pointed out was debated heavily in the 70's without the homosexual context), as the debate wears on. Many marriage neuterist advocates see the same trend and recently have been calling for people to come to their senses about their advocacy. Dale Carpenter on this forum, being one of them.

I personally find that it is not necessarily the case that people who support gay marriages discount the importance of having a man and a woman in a straight marriage.

As I've said before, I'm homosexual-agnostic. By that I mean I don't care if they are homosexual or not. And perhaps that is a suggestion I feel should be open to. I see nothing about homosexuality that warrants their exception, or special pleading in the matter. You went on in your comment to ask me to see four different kinds of people. I'm not sure you justified that approach. What about being gay changes what marriage is or should be? What about homosexuality demands government attention at all?

Mother daughter teams, or other reciprocal beneficiary arrangements aren't on the table, it is specifically homosexuality that is actively being prejudiced towards. I haven't seen rational to justify that bias.
10.26.2006 6:06pm
Chumund:
Pol,

The later version of the constitution would trump. Procedurally, the losing party (in this case the state) would likely file some sort of expedited motion to vacate the judgment (or at least for a stay and rehearing), which presumably the court would grant.
10.26.2006 6:07pm
Caliban Darklock (www):
@ EL SL:

> I wouldn't see a benefit from having a baby created
> specifically from the DNA of those two people.

I believe but cannot prove that parents raising their own mutual biological children TEND to do a better job than they do raising other people's children. In other words, if you somehow graph the success of children raised in traditional households and compare it to the success of children raised in nontraditional households, the fat part of the bell curve (once you compensate for environmental factors) will be at a higher success level in the former case. I do not believe the difference is *large*, but I believe it exists.

@ Chumund:

> I'd put several things ahead of gender/sexuality
> when it comes to people's qualifications to give
> relationship advice

So would I. The top of the list is "experience". If you are not a heterosexual male, I don't believe you can empathise sufficiently with a heterosexual male to understand his attraction to a heterosexual female. I don't believe adult relationships are even remotely comparable among heterosexuals and homosexuals; while the adolescent relationships are undoubtedly similar in many respects, the cultures are vastly divergent.

@ BobNSF:

> So let gay people decide whether we "deserve"
> to be married.

I'm not disputing whether you deserve to be married, but whether *anyone* deserves the right to the benefits married couples get. It's a very difficult proposal to take those benefits away from existing marriages, but it's a great deal easier to refuse extending those rights to even more people. Gays tend to see this as "make it fair", but that presumes we're only being unfair to gays. I think we need to examine the possibility that we're being unfair to everyone.

@ Chumund:

> My basic assumption is that when gay marriage
> is a viable option, this person would be more
> likely to go straight to the gay relationship.

I think that depends more on the demise of socially institutionalised homophobia more than it does on gay marriage rights. What we have right now is a social refusal to accept individual declarations of homophobia, but there is no backlash against institutions which discriminate either directly or peripherally against homosexuals. In general, the average heterosexual will deny that he is himself homophobic, but tolerate even *obviously* homophobic policies in an institution.

@ Randy:

> I don't know about the gay community, but I
> know that a gay couple would receive actual
> benefits.

You are not paying attention. Go back and read the whole post.

> that's hardly a burden or justification for
> denying gays the right to marry.

You're right. It's a justification for denying them the right to call it "marriage". I don't agree with it, I was just explaining the logic.

> Sure, many benefits can be made if a couple
> spends hundreds of dollars drawing up living
> wills and such, but that's an added cost that
> we shouldn't have to bear.

Why not? You make 10-15% more money than straight people on the average, and the average heterosexual wedding costs several thousand dollars. Why is it unacceptable for you to spend a few hundred bucks to get the privileges you want? And keep in mind, you don't have to pay for any of the privileges you don't want, so you get more choice than we do.

@ Pol:

> Re your example, if the state pays everyone
> who works 5 hours of community service 100.00,
> and someone who works 1 hour wanting the 100.00
> as well.

I don't think that's an accurate analogy. I'd propose a different one: imagine the state pays everyone working 5 hours of community service in a hospital $100, and a group of people protest that they should get the same $100 for spending the same five hours of community service elsewhere.

I think the issue here is that it's still the same sort of commitment, it just isn't the precise nature of commitment requested. It's still the same amount of time and effort; gay couples don't have it any easier or harder than straight couples. It's just that they're not precisely the kind of commitment specified.

@ lucia:

> One can't help but suspect that "condition A"
> is not considered necessary to win the benefit.

This is an odd distinction, but it might be proposed that the *apparent* presence of condition A encourages others to provide the *actuality* of condition A in their own relationships. Seeing a man and a woman married encourages others to seek a man/woman marriage, and statistically they will quite probably be able to conceive and bear children. So even though you don't meet condition A yourselves, you still encourage the continued prevalence of condition A in couples.

@ CJColucci:

> Actually, the "mechanics" are the easy part

Not if your relationship is something more than sex. The mechanics of a deeply committed interpersonal relationship are extremely complicated, and the more so when it's between dissimilar genders.

> your use of "back dooring" in a previous post
> suggests you may not be up on all the details.

Grow up.

@ Randy:

> If the state has some sort of interest in children,
> then it should be a requirement.

The state has required conditions that it considers good for children. It does not require the children themselves, because one important condition you CAN'T require is still necessary: the parents need to want the children. You can't legislate what people want.

@ te:

> Among my friends gays and straights talk about
> their relationship issues with one another all
> the time.

That's not exactly the same as a parent-child relationship, now, is it?

> You seem to operate under the assumption that the
> mechanics of sexual activity somehow define the
> contours of the emotions involved.

No, it's the emotions that form the lack of qualification. The average gay man has never felt for a woman the way the average straight man will. He may know how to express these emotions to men, but not to women. He may know how to talk to women without these emotions, but not with them. He simply does not "get" the situation. He has no experience with it. The gender gap is a variable that gays have simply never needed to comprehend in their own intimate relationships.

@ Randy:

> Apparently, this person is clueless about the one
> of the most widely read columns on sexual and
> personal relationships

And this means what, exactly, about the rest of the gay community?

Oh yeah: squat.
10.26.2006 6:10pm
On Lawn (mail) (www):
Barry/Amp simply reproduced a graph that shows the divorce rate per 1000 people and the divorce rate per 1000 marriages have both declined since the 70s.

As I said previously, I have no problem with the data. His analysis entirely off-base, however. As he has been so often in the past.

I explained how and why in my reply, to forward this discussion I'd hope you could reply to what I said rather than to what I didn't say on this matter.

It happens to show data that contradict your suggestion the divorce rate would revealed to be rising if the denominator were the number of marriages instead of total population.

That correlation was presented by Amp the clown, and another earlier in this thread. I'm unsure why that claim has been ascribed to myself. But no matter, it is what it is.

The dissolution of marriage as an institution is even evident in Amp's graph. The marriage rate has been steadily decreasing, as one would expect as people fail to see its value and relevance in family formation. The number of out-of-wedlock births and abortions have been greatly increasing since then too, and not coincidentally.

So I remain nonplussed as to why people are choosing this statistic. If people care about marriage, but it doesn't meet their expectations, I could see a large divorce number. But that isn't what we are trying to measure here. And it is why I never forwarded the statistic or the theory people associate with it.

As I often say, problems in other's arguments (especially Amp the clown) are not my responsibility.
10.26.2006 6:13pm
Chumund:
On marital rates: one of the interesting complications in this area is that people are waiting longer to get married. This reduces marital rates, but also reduces divorce rates.

Incidentally, abortion rates have been declining since 1990 or so.
10.26.2006 6:25pm
Chumund:
Sorry--abortion rates have been declining since 1980 or so.
10.26.2006 6:26pm
Pol Mordreth (mail):
Caliban,
Good post overall. I have to disagree with you on one bit, tho...

So even though you don't meet condition A yourselves, you still encourage the continued prevalence of condition A in couples.


I really don't know if that follows. Looking at a childless married couple will encourage marriage to produce children? I grant that within your tribe/religion/sect etc if het marriage is seen as the norm fewer people will stray from the norm out fo fear of being shunned from the society, but i don't follow how if marriage is the norm (with no distinctions btw ssm and osm) then how does that not encourage marriage? And, by encouraging marriage of all types, does that not tend to encourage those who want children to have them and those who dont to not? and therefore isn't that better for society as a whole?
10.26.2006 6:27pm
Chumund:
Caliban,

I've had different experiences when it comes to empathy. I find that people can empathize across gender and sexuality when it comes to relationship issues. In my view, that is because the details of the sex do not matter much in most cases, and the other issues are usually explainable and fairly common to human experience.
10.26.2006 6:29pm
On Lawn (mail) (www):
Addendum: your suggestion the divorce rate would revealed to be rising if the denominator were the number of marriages instead of total population.

Sorry that isn't Amp's suggestion either. My suggestion is that when taken as a marriage success rate (as divorce per marriage) its a wash. All we see to Massachusetts propping up the overall marriage rate is that the marriage rate has steadily declined. Linking to a study about the US in general shows that the trend against marriage is consistent in the US, and that divorces are down. But does not have the specific data on the states to show that the correlation holds between states with a neutered marriage definition and not.

Another problem with the comparison is that marriage definition amendments have passed by such wide margins in so many blue states. Oregon, California, etc...
10.26.2006 6:31pm
Pol Mordreth (mail):
wow, that last post was semi illegible... lets try a qualifier...

insert "by your inference here" between

...society, and but...

sorry for the sloppiness
10.26.2006 6:31pm
eddiehaskel (mail):

I've noticed that as the debate continues support for neutering marriage wanes, and people gain a better appreciation for what marriage offers. I would agree this has been happening since the 70's and would continue to progress human rights in the USA, even if many in Europe have abandoned it.


What does this mean? What is "this"? How does one "progress human rights"? Especially by saying what certain individuals cannot do? And what has Europe abandoned?


Pol Mordreth:

I guess you live in a hypothetical land that does not have a basic constitution. The question is whether a government that expressly states that there are certain rights which the majority cannot take away can grant a panoply of benefits to one group and deny them to another.

Or are you arguing that an amendment to the constitution legalizing slavery would be "constitutional"?
10.26.2006 6:33pm
Chumund:
I'm getting confused about why we would have to tie national trends specifically to Massachusetts. The polling collected by AEI and others shows that nationwide, we Americans have steadily become more accepting of gay marriage since the 1970s. In the meantime, things like nationwide divorce rates, nationwide abortion rates, and so on have been going down, and disapproval of things like extramarital affairs have been going up.

If this is supposed to be a story about norms, this would seem to be telling. Even if not put into legal practice, shouldn't our increased acceptance of gay marriages be triggering the proposed ill effects? Or does the change in our norms with respect to gay marriage not have any effect until it is suddenly put into legal practice in ur particular legal jurisdiction? Why would that be the case, if it is the norms which are supposedly driving these ill effects?
10.26.2006 6:39pm
lucia (mail) (www):
On Lawn,

Why do you feel the need to buttress your argument by calling people who aren't even posting here clowns? You've done it at least three times now!


On Lawn wrote:

The dissolution of marriage as an institution is even evident in Amp's graph. The marriage rate has been steadily decreasing, as one would expect as people fail to see its value and relevance in family formation.


The marriage rate per 1000 people has been decreasing. Life spans have been increasing. If people gained eternal life, absolutely everyone married once and never divorced, the marriage rate per 1000 plunge to zero. So, in fact, that value dropping does not necessarily indicate that people are marrying less-- they may simply be living longer.

Who knows?

Since you seem to be making some claim about that people are marrying less, and seem to be supporting various and sundry sociological claims with this data, I should think it behooves you to find the correct data.
10.26.2006 6:44pm
Mark Field (mail):

Essentially, yes, the criteria for or against may be irrational, as the rationality of the state is corolarry to the rationality of the people.


I'll give you points for intellectual consistency, but your theory pretty much eliminates the utility of a written constitution and leaves you open to exactly what Madison tried to prevent in Federalist 10.
10.26.2006 6:46pm
PubliusFL:
"Let's ignore the debate about sex or morality. Marriage at its core is a contract between two people. Polygamy is conceptually a multi-party contract."

I could just as easily say "Marriage at its core is a contract between one or more men on one side and one or more women on the other side. Gay marriage is conceptually a single-sex contract." Practically every known example of marriage prior to the last couple of years will fit my definition, but many will not fit yours. In the real world, heterosexuality is far more fundamental to marriage than dyadism is.
10.26.2006 7:08pm
Eliza (mail):

The gay marriage versus polygamous marriage distinction comes down to this. If you're a large, well-organized, politically powerful minority group, you can get protection from the courts. If you're a small, unorganized, politcally weak minority group, you're screwed. If the polygamists want to be able to marry legally, they'll need to step up their recruitment drive.


What's the fastest growing religion in America? I'll give you a hint: it won't be some grubby six-fingered Mormon from the backwoods of Utah that makes it to the Supreme Court with the first polygamy case.
10.26.2006 7:41pm
On Lawn (mail) (www):
> lucia: You've done it at least three times now!

It is my understanding that Amp is a clown, and a good one from what I've heard. And being a clown is part of a long honored and esteemed profession. We've chatted in discussions in different forums for over a year now. Its becoming a term of endearment.

If I were to mark failings about Amp, and there seem to be plenty to note, it would not be his profession (or hobby if that is the case).

> lucia: So, in fact, that value dropping does not necessarily indicate that people are marrying less— they may simply be living longer.

I'll let you run the numbers to see just how much of a life expectancy increase that would require. You can do your own checking, throwing theories up against a wall and hope they stick is for Amp the Clown. I hope you can rise above that practice.

> lucia: I should think it behooves you to find the correct data.

Its interesting how quickly you abandoned the data you once forwarded so prominently.

> Chumund I'm getting confused about why we would have to tie national trends specifically to Massachusetts.

I'm not sure we have to. I would, however, expect that I don't have to chase a moving target between Massachusetts v Redstate data and US data on a whole. Granted, this is somewhat a product of my dealing with many different posters, many who have not correlated their arguments at all.

> Chumund: The polling collected by AEI and others shows that nationwide, we Americans have steadily become more accepting of gay marriage since the 1970s.

I hate to be a stickler, but I'm still waiting to see this data. All I'm going on is that you made a difference between supporting civil unions and outright neutered marriage in your own interpretation of the data. On that point, it seems significant to note how that has shown drastic changes in other polls.

As time goes on you are losing specific language, and doing more simplistic analysis. This, I take, as not a good sign that you are confident in your position.

> Chumund: In the meantime, things like nationwide divorce rates, nationwide abortion rates, and so on have been going down, and disapproval of things like extramarital affairs have been going up.

Those, in and of themselves, is a good thing. But I feel you are still missing how the ERA of the 70's impacts this debate. Currently there are only a very few states which do not explicitly define marriage as between a man and a woman. These laws have passed handily in every state they were presented in.

The ERA came scarily close to passing as a federal ammendment, with 30+ states voting for it.

The ERA and current GLAD movements are both an effort to abolish gender reference (even one of equity as it is now) from marriage. Of the two I'd say the ERA was more successful, and the support from that point has been in constant decline.


> Chumund: If this is supposed to be a story about norms, this would seem to be telling.

What does it tell you? For instance what abortion has to do with neutered marriage is not very apparent, but you lumped in that value.

I think those trends are positive, if they hold up to scrutiny. Less abortion, less divorce, all good things. But that leaves lets work on a better marriage rate, and out of wedlock birth rate.

> Chumund: shouldn't our increased acceptance of gay marriages be triggering the proposed ill effects?

Very very interesting. There is an old sketch of someone looking for a quarter under a streetlight. When asked where the quarter was lost they point to a very dark section of the street. Why was he looking there? The light was better.

Similarly I'm still bemused that you are looking for "norms" trends about same-sex marriage in a country that has been at the forefront of affirming equal gender representation in marriage.

Okay, I'll put it this way. If you ignore Europe, and look at a country that is actively for equal-gender representation, as a matter of norms, and only look at divorce rate (which is heavily influenced by the declining marriage rate), abortion rate (which has been argued is influenced greatly with ultrasound technology and is dubiously related to this topic), and acceptance of gays (which is already shown to not be correlated to defense of marriage) then you have something.

But it isn't pretty, and sure doesn't add up. You are all over the twister board on that one, and it is a position I could not rationally sustain. In fact it seems an feat worthy of an acrobat, or a clown.
10.26.2006 7:56pm
Chumund:
On Lawn,

You can find the AEI paper at their website.

Otherwise, you have become uncivil so I will no longer converse with you.
10.26.2006 10:13pm
Pol Mordreth (mail):
Eddiehaskel,

Or are you arguing that an amendment to the constitution legalizing slavery would be "constitutional"?


By definition, any amendment to the constitution would, in effect, be constitiutional. Whether its right or not is a different story.


Mark,

I'll give you points for intellectual consistency, but your theory pretty much eliminates the utility of a written constitution and leaves you open to exactly what Madison tried to prevent in Federalist 10.


You're right, of course. I got myself way off pursuing the policy I thought of to its ultimate ends. I do appreciate your civility and understanding. My previous theory, if taken to a consistant application, would pretty much create the type of government i would abhor. Also, thanks to brooklynite for helping along that vein.

Damn, now I have to come up with another political theory to debate... lol
10.26.2006 10:44pm
lucia (mail) (www):

> lucia: I should think it behooves you to find the correct data.

On Lawn:
Its interesting how quickly you abandoned the data you once forwarded so prominently.

Why do you say I abandoned the data? I simply said that particular data can't be used to support the socialogical claim you made. I suggested that if you want to support your socialogical claim based on data, you should seek the correct data.

I also don't think I forwarded the data "prominently". Several people -- including you-- speculated about the difference in the divorce / 1000 people data and the divorce / 1000 marriages data. I happened to know where this was posted, and provided the link.

I realize you were disappointed to discover the both types of divorce data don't support your claim, but there you go!
10.26.2006 11:35pm
Deoxy (mail):
OK, I only read as far as this (sorry, out of time):

"that's why i find people that simultaneously argue for constitutional amendments and that courts are not the appropriate place for these things to be decided are almost morbidly stupid. the whole "courts aren't the right forum" argument is premised on the idea that this should be a majoritarian decision, but the whole point of an amendment is to impose a countermajoritarian rule on future preference collections."

No, the WHOLE POINT of these constitutional amendments is to prevent activist judgs from "interpreting" whatever they want. That is, it's pretty hard to "interpret" the words to mean exactly the opposite of what they say (though judges have managed to do it before - see the decisions on affirmative action, for instance).
10.27.2006 12:23pm
lucia (mail) (www):
I asked On Lawn why he consistently referred to Barry Deutsch aka Ampersand as "Amp the clown". On Lawn responded:

It is my understanding that Amp is a clown, and a good one from what I've heard. And being a clown is part of a long honored and esteemed profession. We've chatted in discussions in different forums for over a year now. Its becoming a term of endearment.


I was fairly sure am Amp/Barry was not a professional clown but I emailed Barry/Amp to verify my impression.

Barry Deutsch works as cartoonist and has been for some time. He has never worked as a clown nor does he clown as a hobby. Based on his response, I think Barry/Amp is surprised to learn On Lawn thinks they exchange terms of endearment.

I leave it to others to decide whether the term On Lawn's sois-disant term of endearment, "clown" is a term of endearment or something else.
10.27.2006 1:10pm
PubliusFL:
Deoxy: "No, the WHOLE POINT of these constitutional amendments is to prevent activist judgs from 'interpreting' whatever they want. That is, it's pretty hard to 'interpret' the words to mean exactly the opposite of what they say (though judges have managed to do it before - see the decisions on affirmative action, for instance)."

Quite right. I imagine that most of the supporters of these amendments would be happy with a hypothetical legal mechanism in between a statute and a constitutional amendment - one binding on the courts in a way that mere statutes apparently aren't, but subject to majoritarian change through the normal legislative process.
10.27.2006 2:03pm
On Lawn (mail) (www):
> lucia: I think Barry/Amp is surprised to learn On Lawn thinks they exchange terms of endearment.

I'm glad Amp the Clown now knows better how I've been using that term all these years. That he seems to have needed you to find out instead of asking me directly is no matter. One takes it as it comes.

And no, except for linking to my site from his, I don't expect many terms of endearment from Amp. But they would be welcomed. He's overall a nice guy, good father, and successful person.

But I probably won't change. I figure if, and I'm not sure if he does, but if he doesn't like "Amp the clown" I doubt he'd like "Amp the comic".

I'm not sure if it is accurate to read that much animosity between us. Like I said, he linked to our site.

Honestly, I've used arguments that Amp has forwarded in the past. He made a striking point about a study on latent homosexuality in homophobes that outright discredits the study. He noted the Beyond Marriage project says nothing about actually enacting marriage for same-sex couples.

Unfortunately, like most claims I've seen him make, neither seem to have survived scrutiny from people I presented them to. So I've all but abandoned hope to see much useful come from Alas, a blog.

> Lucia: Why do you say I abandoned the data? I simply said that particular data can't be used to support the socialogical claim you made.

You claimed I couldn't use the data because, "I should think it behooves you to find the correct data." Since you think the data you presented is incorrect, I can't speak much for your introduction of it in the first place. And if you think it is incorrect in my application, then why is it not incorrect in your application also. If I remember right, the reason you thought it was incorrect was a complete guess that the disparity in marriage rate could be explained by increasing life-span -- as a self-admitted guesstimation.

So you and Amp the Clown keep up the good fight. But I can only note that trying to make data into some exclusive club based on wild speculative claims has more value as parody than actual argument.
10.27.2006 2:44pm
lucia (mail) (www):
On Lawn: Are you under the impression "juggler" and "clown" mean the same thing? I guess we must each use our own idioms.

As to the rest: My intention was to express the idea "you can't use that particular data to support the particular claim you are making". You seem to understand me to mean: "the data are incorrect".

I have in the past unintentionally misunderstood others here in comments; others have unintentionally misunderstood me. (The second is no great surprise given my tendency to commit typos.) That said, after some conversation, we generally sort things out.

Sadly, I have become convinced the two of us will never be able to communicate our ideas to each other. I will now join Chumud in his decision to not converse with you, and leave you to chat with others. Ciao!
10.27.2006 3:23pm
On Lawn (mail) (www):
> lucia: My intention was to express the idea "you can't use that particular data to support the particular claim you are making". You seem to understand me to mean: "the data are incorrect".

The quote "the data is incorrect" is your own. In fact both quotes you put here, I note are directly from your posts. But they were posted at different times. I'm glad to see that during that time you realize that perhaps your claim that the data was incorrect was fool-hardy.

However, it still remains the reason you presented for saying the data doesn't support the position. Specifically that life-span increases entirely explains the lowering marriage rate (which you claimed it was up to me to support not yourself).

At the time you fully realized you made a claim on a bad premise, you called it a guess. And then when that premise is removed from underneath you tried to maintain that claim in thin air. That is a true circus act. And I give you marks for trying such a juggling act.

But, Alas, you've chosen to bow out. And instead of saying that you bow out because, like Chumud, you've run completely dry on reasons to support your claims. You decide to, like Chumud, blame me for your inability to articulate your position. For you it was some vague unsupported (again) claim that I misrepresented your position.

I suppose an honest admission was too much to ask for.

C'est la vie.
10.27.2006 4:05pm
Caliban Darklock (www):
@ Pol:

> Looking at a childless married couple will
> encourage marriage to produce children?

No, it simply encourages a marriage between people who probably *can* produce children. It will almost certainly happen, unless the couple makes a specific and extraordinary effort.

If a person marries someone of the same sex, it will almost certainly NOT happen unless the couple makes a specific and extraordinary effort. It tips the scale in the opposite direction.

> And, by encouraging marriage of all types,
> does that not tend to encourage those who
> want children to have them and those who dont
> to not? and therefore isn't that better for
> society as a whole?

Not so long as we view marriage as being eternal. People change their minds. If marriage is forever, then once you marry someone who can't have children, you're unable to have children. Tou probably don't know this when you get married. When you discover it, you probably decide children aren't that important to you. But what happens when you're in your late thirties and start wishing you could have children?

I believe there are only a few ways to handle this scenario. You can make it easier for people to have children with partners other than their spouse. You can make it easier for people to leave one spouse and marry another. Or you can allow people to have more than one spouse.

I don't think America is ready for any of those options. Of the three, polygamy is probably the least odious, followed by extramarital partners. Ease of divorce is probably not a good one at all, but marriages with FINITE DURATION might be acceptable - if your divorce is already scheduled when you get your marriage license, it's probably much less shocking. I think it may actually be more acceptable than polygamy, especially among the young.

@ Chumund:

> I find that people can empathize across
> gender and sexuality when it comes to
> relationship issues.

Not with teens. Teens really don't get it on a very fundamental level, and most of the instruction they get on these matters is by example, not verbal. The dynamics of gay couples and straight couples are very, very different and can't really be applied "across the divide".

I believe there are certain gay couples that are more like straight couples, and vice-versa, and I believe those couples self-select into groups that spend more time among mixed gay and straight couples. So if you're in a straight couple and you have many gay friends, or the converse, chances are you are *not* part of a normal couple. I'm certainly not. But by definition, you can't use the behavior and experiences of these social groups to infer how gay and straight relations work throughout the population.
10.27.2006 9:44pm
Chairm (mail):
>> it seems likely that it would benefit the child if this gay couple who was raising the child were married

Given that the children in same-sex households are far more likely to already have two parents -- one of each sex -- I don't think it seems likely that the legal child-adult relationship would alter. Certianly not unless a parental relinquishment takes place. And not unless adoption takes place.

I hope we can agree that these are significant steps in family formation that are prerequisites for the double-dad scenario but are not intrinsic to the combination of sex integration and responsible procreation.

>> marriage tends to foster mutual caretaking, which in turn tends to make people healthier, happier, more productive, more law-abiding, and so on

Mutual caretaking is fostered in other relationships. But you make a hopeful claim for one-sexed arrangements that are specifically homosexed.

There are jurisidictions which have enacted state recognition of such arrangements. The difference in well-being that you hope for should be clearly attributable to state recognition of the relationships of that segment of the population, yes? Extrapolating from the married population (both-sexed) doesn't do this.

Of course, "gay marriage" in its various forms -- Domestic Partnership, Civil Union, SSM where available, or the more encompassing "same-sex householding" as per the census bureaus of various countries -- is practiced only on the margins of the adult homosexual population. It is not normative. It is practiced by a small minority of a tiny minority. Again, this looks like the inverse of marriage.

Now, I doubt there is much emprical evidence to support your hopeful claim (which I think you've presented more as a hopeful speculation and I wouldn't disparage it on that basis) but I agree that society ought to acknowledge the hope and that such hope ought not be abandoned for the adult homosexual population as a whole.

However, solutions should fit the problems. If there is something intrinsic about the homosexed relationship, that might stand as reason to elevate the status of the proposed ideal for all homosexual men and women, it should be made explcit in the argument that society, through state authority, ought to grant a preferential status.

Marital status is a preferential status. So anything that comes close to it ought to have a clear justificiation. As I said earlier, the "me-too" claim is insufficient.

The choice to form a one-sexed relationship is a liberty exercised, not a right denied. But it is a nonmarital alternative. The NJ decision would make all marriage into "Civil Union" and the limitations of the new, and marginal, idea for the homosexed couple would govern marriage law. That seems very unwise to me without an incredibly compelling case that marriage is so deeply flawed it needs to be replaced by the proposed alternative.

>> I don't think adoption is a "legal fiction". I think both the law and people in general acknowledge that adoption does not make people into genetic parents. Rather, the idea is that parenthood is not simply a genetic relationship, and indeed that a genetic relationship is not a necessary condition for parenthood.

It is a fiction in the sense I wrote about it. (Please note, I have not disparaged it.)

The child's parent's have relinquished status (one way or another). The child is placed with new parents.

Generally, birth certificates get altered to replace the new with the genetic parents. Same is done with third party procreation enabled by statute. An adoption certificate ought to accompany a birth certificate so that the fiction is minimized. From the perspective of two women or two men who adopt a child, the fiction is unmistakable.

Now, you emphasized childraising. Adoption makes-up a shortfall in that regard. The one-sexed couple's use of third party procreation has no such justification. Responsible procreation entails the mom and the dad taking responsiblity for for they have created. So your emphasis illustrates the point I've made.

Instead of minimizing the fiction, SSM argumentation slips-in the idea that one-sex couples can "have" children. They might co-parent but they can't have children together. Minimizing the parent-child link to genetics is not what I am talking about here. I am not dissecting marriage into various components the way that SSM argumentation does.

Sex integration is vital to a well-ordered society of human beings. Likewise responsible procreation. There are alternatives to both, sure, but these are not the basis for state recognition of the preferential status known as marital status.

As for adding layers of fiction, we can already see examples of changes in SSM jurisidictions such as Canada where mom and dad are replaced by Parent A and Parent B. The rigorously good presumption that we are responsible for the children we create stands on the shoulders of the nature of human generativity being both-sexed. This should be trivialized as I see it is deeply discounted in SSM argumentation. Even the Massachusetts Supreme Court has re-emphasized the presumption in a parental status case that it had shunted aside in its Goodridge decisions.

Note that one cannot eraise parental status as a genetic parent: incest laws still apply, for an example in the law. Children who have been adopted, and those who have been created via third party procreation, speak of other more subjectively problematic experiences. More needs to be learned before we assume all will be well should society replace the marriage idea with the homosexed ideal (which itself is test in practice by a small minority of homosexual adults) precisely because that ideal places children on the peripherary.

Whatever the merits and demerits of the new homosexed ideal, it is derivative of marriage and to that extent reflects the statistics I put forth earlier. The likelihood that a same-sex household has children goes way up, way way way up, if one or both of the adults had been in a previously procreative relationship with the other sex, typically marriage. These households are primarily the products of difficulties in forming and keeping relationships that integrate the sexes combined with responsible procreation. This is why society needs to first strengthen the social institution before it experiements with merging marriage with something that is the virtual opposite of sex integration and responsible procreation.
10.28.2006 4:49pm
Aleks:
Re: daughter comes home from school with boy trouble. She goes to her two dads. Is either of them qualified to interpret how she feels? Do either of them think like a girl?
A boy comes home with girl trouble. He goes to his two dads. Is either of them qualified to help? Have either of them ever had girl trouble?

What you are really saying is that a child is coming home with ROMANTIC troubles. These are things that happen to all, or nearly all of us, especially as teenagers, but also as adults. So yes, any parent, if possessed of a normal life history and sense of empathy, should be able to help a child who come homes with romantic griefs. And if you think that empathy in this matter is crucially dependent on gender or sexual orientation then the luckless gay kid who comes home with such trouble to straight parents is really up the creek. Should s/he be removed from that household and placed with gay foster parents? And for that matter, if someone was never unlucky in love should they be barred from having children?
10.28.2006 11:58pm