In this instance, the Loving analogy is complete.
I take Loving personally. It was decided before I reached six months of age. I came of age in the geographic center of the American region that historically sanctioned extraordinary, even violent, measures to prevent even the hint of interracial mingling. I was born where all my immediate ancestors had been born themselves, an island at the eastern edge of World Island. My wife traces most of her ancestry to an island at the western extreme. The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from being married is singularly offensive.
And so too is the suggestion that the sex of the members of a committed couple should determine that couple's entitlement to full recognition and protection under the law....
When this generation shall have passed from this earth, God and/or posterity will judge us as severely for our unwillingness to confess the legitimacy of homosexual love as we today judge those who resist the rightness — legal, moral, and spiritual — of Loving v. Virginia. Yesterday Massachusetts, today New Jersey, tomorrow America from sea to shining sea.
"The Loving analogy is complete":
When this generation shall have passed from this earth, God and/or posterity will judge us as severely for our unwillingness to confess the legitimacy of incestual love as we today judge those who resist the rightness — legal, moral, and spiritual — of Loving v. Virginia. Yesterday Massachusetts, today New Jersey, tomorrow America from sea to shining sea.
One can certainly make the analogy close, by primarily focusing on homosexual couples who wish to adopt children or have them via other methods and raise them. I'm not sure the author is quite doing that here, though.
"The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from being married is singularly offensive.
And so too is the suggestion that the parentage of the members of a committed brother-sister couple should determine that couple's entitlement to full recognition and protection under the law...."
Chen's implicit argument: The fact that you can't choose or control your race or ethnicity means that banning interracial marriages is wrong. Therefore, if we assume that one also cannot choose or control one's sexuality, banning same-sex marriages is also wrong.
Parallel argument: The fact that you can't choose or control your race or ethnicity means that banning interracial marriages is wrong. Therefore, if we assume that one also cannot choose or control one's parents or siblings, banning incestuous marriages is also wrong.
That said, I have a hard time seeing a very strong analogy between sex and race on the issue of discrimination. I think everyone more-or-less agrees that it would be a good thing if we could ignore race altogether in human relations, because in fact it made no difference, like eye color. The problem is not that we differ on the goal - the problem is that we differ on the means to get there.
On the other hand, I can't see how it is desirable to ignore sex altogether in human relations. It's one of the great rewards and drivers of life. Sure it causes problems, but that is mostly because it is so desirable. Even if it were *possible* to construct a society in which sex were irrelevant outside the bedroom my gut instinct is that it would not be a good thing (leaving aside the fact that enforcing a society like this would require tactics that would make the War of Drugs look like a walk in the park).
On a purely legal level, the biggest problem with analogizing race and sex is that race is in the Constitution and sex isn't. Everyone agrees that the purpose of the 14th Amendment was (at a minimum) to prohibit at least some types of government racial discrimination. No amendment analogous to the 14th exists which applies to sex. Such an amendment was proposed (the Equal Rights Amendment) and was the topic of debate several decades ago, but was never ratified. (The 19th Amendment, giving women the vote, has an analogy in the 15th Amendment). I'm not familiar with the New Jersey Constitution, but nothing I've read suggests that it has a state Equal Rights Amendment.
Can anyone tell me why they think the relationship between race and sex is more like the relationship between apples and oranges than the relationship between apples and baseballs (either legally or morally)?
The New Jersey Supreme Court instead relied upon Article I, Paragraph 1, from which the word "equally" was struck out when the language was originally drafted in 1844. I'm not aware that the New Jersey Supreme Court ever identified an equal protection principle in Article I, Paragraph 1 until AFTER the New Jersey Constitution was most recently readopted, in 1947.
It's an undisputed assumption that marriage is important to the welfare of children. The NJ Supreme Court decision yesterday virtually ignored the impacts on children, merely because the current executive branch officials in NJ chose to do so.
Legislatures have traditionally believed that, other things being equal, it is best for children to grow up with both a mother and a father. As New York's top court put it, "Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule...but the Legislature could find that the general rule will usually hold." Legislatures and most individuals have been putting that general rule into practice for thousands of years. Whether they should continue to do so in the future is an interesting policy question. But the New Jersey Supreme Court just forbade the legislature from ever doing so again. And that court did so with barely a word about children.
Rip them apart in the womb, and rip them apart from their biological parents when born. That's the liberty that courts are protecting these days. It's not a pretty sight.
I don't know where you get this.
Even a cursory reading of the history of the Jim Crow south makes it clear that public interracial socializing of any kind was regarded with deep hostility --- and in many instances criminalized. When such demonstrations of familiarity crossed gender lines as well, the response was overwhelmingly negative, and often brutal. (Miscegenation between white men and black women, on the other hand, was often tolerated.)
But of course he made no such argument.
The fact that you can't choose or control your race or ethnicity means that banning interracial marriages is wrong. Therefore, if we assume that one also cannot choose or control one's sexuality, banning same-sex marriages is also wrong.
Presumably, what he's really saying is this:
Premise 1: One's race is beyond one's control.
Premise 2: Race is irrelevant to the nature or purpose of marriage.
Premise 3: It is unjust to deny access to marriage based on a factor irrelevant to the nature or purpose of marriage (at least or especially) when that factor is beyond one's control.
Conclusion: Racial restrictions on marriage are unjust.
Once all of the premises are on the table, we can see how the analogy is imperfect. Is sexuality really irrelevant to the nature or purpose of marriage in the same way that race is?
Chen isn't making an argument in this piece. He's stating his position on a number of issues, and he's offering some observations and predictions, but he's not making an argument, any more than I am in the blogpost I linked above.
If you'd like an argument, though, I'm happy to give you one:
Yes. Sexuality is really irrelevant to the nature and purpose of marriage in the same way that race is.
He says that "the Loving analogy is complete." Maybe your dictionary is different from mine, but mine says that an analogy is an "inference that if two or more things agree with one another in some respects they will probably agree in others." Sounds like an argument to me, even if he's not laying out a formal syllogism. He is reasoning from the similarity of interracial marriage and same-sex marriage in one respect to draw a conclusion.
You seem a little confused about the meaning of "argument" as well as about the meaning of "analogy." "Sexuality is really irrelevant to the nature and purpose of marriage in the same way that race is" is not an argument, it's an assertion.
"It's an undisputed assumption that marriage is important to the welfare of children. The NJ Supreme Court decision yesterday virtually ignored the impacts on children, merely because the current executive branch officials in NJ chose to do so."
Aside from the unfortunate turn of phrase (what's an "undisputed assumption"), this is also factually wrong. I've commented several times on this blog on this subject about the thousands of children in foster care in Illinois as a result of abuse and neglect suffered primarily from so-called "traditional" families. The NJ court ignored the "impact" on children b/c there is no factual evidence that there is any negative impact on children from SSM -- most certainly no more evidence of a negative impact on children than there is from hetero families. This is but one of the rather offensive lies being told to further the discrimination.
As to the incest comparisons, I agree with Brooklynite that Chen didn't make the blanket argument. But that recognition let's the improper argument get away with too much. The easy ditinction between SSM marriage and interracial marriage in Loving, versus incest, is the progeny of incest runs a great risk of genetic deformity. [hate to site Wkpedia, but no time for in-depth research: see http://en.wikipedia.org/wiki/Inbreeding]
We could return to Andrew Hyman's factually inaccurate claim of a negative impact on children from SSM, but, again, there's no valid evidence of that.
If Loving had been handed down at the same stage in the debate (say, 1937), when laws preventing interracial marriage were common and well-supported, I suspect we'd still be arguing about the subject today. Instead, it was handed down well after the issue was largely decided, affecting only stragglers, and today interracial marriage barely merits mention.
Like Roe, these decisions are premature (if not more so), and, like Roe, are likely to result in ongoing controversy. Just wait for the next SC nomination battle, especially if the Dems are running the committee.
In other words, that ain't an argument either.
Marriage has over time been a wildly variable institution. It has taken a huge variety of forms in different times and places. There is no such thing as a transhistorical definition of marriage, and the "nature" of marriage is a protean and changeable thing.
As far as the "purpose" of marriage goes, the only way in which gender is directly relevant there is procreative. But the ability of two people to procreate without outside assistance has never, to my knowledge, been either a necessary nor a sufficient prerequisite for the recognition of a marriage.
Couples who could not procreate have been allowed to marry throughout history, and couples who could procreate have, for various reasons, been prohibited from doing so. In the industrialized world today, the relationship between marriage and procreation is particularly attenuated.
In what way is gender relevant to the nature and purpose of marriage, to your mind?
Why should that make a difference if, as Brooklynite contends, sexuality is irrelevant to the nature and purpose of marriage just as race is? Sexuality is certainly not irrelevant to reproduction.
You say that "sperm donation" and "surrogate motherhood" are "legal in New Jersey, and straight married couples take advantage of them." You miss the point. They’re legal in New Jersey by statute, not by judicial edict.
Josh, you say I was "lying" when I said: "It's an undisputed assumption that marriage is important to the welfare of children." My sentence didn’t distinguish between gay marriage and straight marriage.
First, there are no incestusexuals, that is, people who are only attracted to close relatives. A ban on incestuous marriages only keeps people from marrying their first choice of partner rather than their second choice, so we're talking about a small burden on an extremely small number of people.
Second, permitting incest would have weird and unknown impacts on family dynamics. Families are already subject to all kinds of problems; adding parents hitting on their children to the mix could introduce severe psychological burdens on some people and rip apart families that would otherwise have stayed together. In other words, we're talking about a potentially large burden (again, on a small number of people).
So what we're talking about is imposing a small burden (having to marry your second-choice rather than first-choice partner) on a small number of people (the people who have a close family member they want to marry and who wants to marry them) to prevent a potentially large burden (weird changes on family dynamics; people abusing internal family power dynamics to coerce sex from family members) on a small number of people. This seems like a socially beneficial trade to me.
I fully support gay marriage* but I am forced to admit that it will be a while before the deep-seated religious opposition to homosexuality will allow it. As such, I was in favor of DOMA and other such laws aimed at reassuring the middle of the country that no federal judge would force them (through the full faith and credit clause) to accept a gay marriage if they didn't want to.
Depriving the right of that wedge issue is worth the cost (although I am aware that, as a hetero, many will say that their rights are not a bargaining chip for me to play with, as such -- such is politics).
*Footnote: Actually, I support a system whereby the government give out only civil unions thus depriving conservatives of their nominal arguments about the meaning of the word "marriage". If you want to get married, that's got nothing to do with the government. It's between you and your priest/rabbi/immam (and the big guy, of course). This is just a small quibble tho.*
I didn't see that "great risk" there.
Either you're a carrier or you're not. Same for your mate. If we're going to practice eugenics, it would make more sense to ban marriages between carriers of undesired traits than to outright ban sibling marriages.
Otherwise the arguments against incestuous marriage tend to fall in line with most of the arguments against homosexual relations: It's icky, so therefore I'll find a noble justification for why it ought to be forbidden. (Or more simply and more honestly, "It's icky.")
There is a line of reasoning that boundaries are more likely to be crossed if we generally excrete where we eat, if we look at our family members, with whom we're in intimate (as in close) contact often, as potential sexual partners (especially as potential future sexual partners), and it does keep things simpler. As to whether this means that after-the-fact incestuous relationships should be forbidden, see Sasha's post about the Hangman's Paradox.
Perhaps you could point me to the passage in the 14A which mentions race.
There is no "analogous" amendment because there's no need for one. The 14A expressly says that "No state shall...deny to any person the equal protection of the laws."
Are there cross-race-osexuals? (I can think of a racially disparaging term for such, but does Elliot's reasoning apply if you can't marry your first n choices, until you get to member of your own race whom you wouldn't kick out of bed?)
Actually, I support a system whereby the government give out only civil unions
Hear, hear! (Except for the later tax benefits, and my partner's insistence, and the fact that it's illegal for clergy to perform non-civil marriages, I wouldn't have applied for that license to have sex.)
We are drifting closer to a situation where "marriage" means "whatever I say it means," as long as my emotions are pure and strong enough. If that becomes the standard many high school sweethearts would be "more" married than couples married 30 years.
Conversely, in the multi-race case, the burden is larger (because you're being blocked from marrying more people) and the social benefit is smaller (i.e., zero) becuase preventing racial mixing doesn't serve any legitimate public purpose.
Got a citation for that? I was under the impression that it wasn't.
No, we're not. We're re-examining our laws as society evolves. Just like we've always done.
The arguments presented in support of same-sex marriage are different from the arguments (mostly hypothetically) presented in support of incestuous marriage. The only people of any prominence arguing that one will lead to another are people who oppose both.
If y'all really fear incestuous marriage --- if the slippery slope is really your concern --- why not oppose a federal constitutional amendment banning that?
Really. Why not?
Seriously... you should be careful using words like "we" and "society" when you talk about "reevaluating our laws." Most people aren't. Not by choice anyway.
The equal protection provision of the New Jersey Constitution is in Article I, Paragraph 5 of the New Jersey Constition, not in Paragraph 1. Paragraph 5 clearly lists the forbidden types of discrimination. In stark contrast, the word "equally" was struck out of Paragraph 1 when the language was originally drafted in 1844. I'm not aware that the New Jersey Supreme Court ever identified an equal protection principle in Article I, Paragraph 1 until AFTER the New Jersey Constitution was most recently readopted, in 1947.
Moreover, I think it's more pertinent to ask what the New Jersey public policy was when the current marriage laws were enacted, than what the current executive branch feels about those laws now. Many states have different laws that reflect public policies that are somewhat at odds with each other.
Additionally, it's true that New Jersey law allows adoption, sperm donation, surrogate motherhood (none of which I am taking a policy position about here). At the same time, New Jersey has disincentives for adoption, sperm donation, and surrogate motherhood, and a primary disincentive is the non-recognition of gay marriage. The policy has been to allow these things but to disincentivize them. New Jersey manifestly does have this policy of disincentives, or did until yesterday.
Additionally, I would like to add that I am very leery of court orders that order legislatures to legislate. I
m not aware that the US Supreme Court has ever done any such thing. Either a statute is unconstitutional or it isn't. If the court can't stand by its convictions and take the heat, then it ought not to resort to bogus procedures like getting a legislature to do the court's heavy lifting.
What a stupid analogy. And, frankly, there are worse things than banning inter-racial marriage like, for example, tripling the black on black crime since the 1960s with judicial activism, a burgeoning welfare state, and hair-brained sexual "revolutions" that led to an explosion of black illegitimacy.
And I used "we" in the same sense that the poster I was quoting did. We are re-examining our laws. The passage of civil union statutes is part of that process. The agitation for marriage rights in legislatures is part of that process. And organizing in opposition to same-sex marriage is part of that process, too.
The siren song of 'equality doctrine' and its proposed nirvana, throughout modern history, has led to the worst abuses of power and crimes against humanity. It tears away the fabric of a free society to create a uni-global philosophy of only one world and one society that all people, regardless of nationality, race, faith or creed, must subvert to.
SSM, incest, polygamy, etc., are not really legal questions, but societal questions that are part of the mores and folkways of any society. Thus, the question is, do you believe in social engineering ? Is the law supposed to reflect society or shape society ?
What the hell are you talking about? Can there seriously be a law that forbids a priest (or anyone for that matter) from uttering the words 'I pronounce you husband and wife' without getting a permit?
My point is that in this case they aren't different. The argument used here applies just as much to incest as to SSM. You can raise other arguments that are better, but that doesn't make Chen's any more valid.
"The only people of any prominence arguing that one will lead to another are people who oppose both."
That's about what I would expect. Any reasonable person of prominence who concludes that one will lead to another will naturally oppose both. And those who want to support one but not the other will naturally deny that one will lead to the other.
Second, even if I were worried about a slippery slope from gay marriage to legalized incest, why would I allow the first step? Can't I prevent the slippage by drawing the line in front of gay marriage? The point of the argument is to convince people on the fence that this reasoning has no logical boundaries aside from our own sensibilities (which we are reapeatedly told have no place in the discussion).
You mean like slavery?
It's more that neither can exist without some measure of the other.
And the third category --- those who support both, is essentially non-existent.
It seems to me that if one wants to argue "we can't accept A because if we do, there'll be nothing to prevent us from getting B," one has to show two things. First, that there's no way to differentiate in principle between A and B, and second, that B has, as a practical matter, a snowball's chance in hell of coming to pass.
Given that judges have ample grounds on which to distinguish same-sex marriage from incestuous marriage, and given that no appreciable movement for legal recognition of incestuous marriage exists, the slope strikes me as pretty damn unslippery.
We can have one without the other. We can have A without B. We have A, and it hasn't created any groundswell of support for B.
Incidentally, we all accept that, at times, we must curtail some trivial freedoms to protect larger ones (freedoms do, after all, often conflict). For instance, we accept that we all ought to have the economic freedom to chose our business transaction freely. We also accept that everyone has the right not to be discriminated against due to race and sex. Thus we are left in a pickle when a storeowner (or landowner) decides he wants to excludes Asians from transacting with him.
Every right that we grant confers on the rest of society an obligation. That is simply the nature of rights. Rights == Obligations. Until that is understood, we are going to chase each others tails on this freedom/equality thing.
Gay marriage can't be either a fundamental right or not a fundamental right. Marriage is either a right or not a right.
Your argument is like saying that blacks being given equal education is a fundamental right. It doesn't make sense. Fundamental rights are what they are because they apply across the board. Otherwise, it wouldn't be a fundamental right but rather a special right granted only to a particular class of people.
For instance--23 Pa. C.S. § 1503(c): "Marriage license needed to officiate.--No person or religious organization qualified to perform marriages shall officiate at a marriage ceremony without the parties having obtained a marriage license issued under this part."
I'm sure this varies by State.
So, only 30 of the 50 states had racial marriage laws. No northeast states, only a couple of midwest states. Only big population states were California and Texas (both much smaller 40-50 years ago).
Compare this with all 50 states recognizing only man/woman marriages. Race laws were never a common public policy, they never commanded the kind of universal adherence that "traditional" marriage laws did.
All sorts of good arguments can be made to justify gay marriage. An analogy to Loving is not one of them. Contra Chen, the analogy is incomplete and misleading.
The idea that the 14th Amendment isn't about race because it doesn't *say* race, is common, but I think wrong. Note, I'm not basing this on what the Supreme Court *has* said in past cases, but rather on what they *should* say, IMHO. They got the doctrine all tangled up in the Slaughterhouse Cases and never really bit the bullet to untangle the doctrine, even when they finally moved to undo the practical effect of those mistakes.
All laws are, in some sense, about discriminating against somebody. Laws criminalizing murder "discriminate" against people who kill people. In order for the concept of "equal protection" to mean something other than "anarchy", you need to limit it to equal protection for people who are similarly situated in every legally relevant sense. This in turn requires deciding which distinctions are OK (killers/non-killers, employees/independent contractors, citizens/aliens) and which distinctions are not OK (race, religion, sex?).
The question under discussion is whether race and sex are good analogies. Saying that 14th Amendment equal protection applies to sex classifications like it does to race classifications assumes that they are good analogies, but does not demonstrate it. Neither the drafters/ratifiers of the 14th Amendment nor the drafters/nonratifiers of the unsuccessful ERA appear to have thought that they were good analogies. Obviously you and Jim Chen think they are. Why?
Massachusetts General Statutes, Chapter 207, section 49:
Whoever, being duly authorized to solemnize marriages in the commonwealth, joins in marriage persons who have not complied with the laws relative to procuring certificates of notice of intention of marriage shall be punished by a fine of not more than five hundred dollars.
what right does the state have to say johnny can't marry his BROTHER? certainly, in the case of same sex incestuous marriage, there are no genetics issues like in opposite (complementary sex?) sex marriages.
so, under his "logic", what right does the state have to prevent a man from marrying his brother, or his son?
is it ***bigotry***
i also find the miscenegation argument NOT compelling for another reason. there are very very big differences between men and women. the differences among men of different race, and women of different race, are orders of magnitude smaller than the fundamental, immutable and just basic differences between the genders. all "gender is a social construct" rubbish aside, men are different creatures, so to speak, than women. and thank (insert whatever non-specific deity or lack thereof you worship) for that.
miscenegation laws were created for very specific reasons - and interracial marriage has a long successful history, LONG prior to our miscenegation laws. the same cannot be said about gay marriage, if one even accepts that a same sex union can even be called a marriage.
miscenegation laws imposed political and bigoted views into the realm of marriage. anti-gay marriage laws do not, since they merely reaffirm what marriage has ALWAYS been. iow, the burden should have been on the miscenegation people to justify their CHANGE of marriage.
since gay "marriage' fundamentally CHANGES marriage, the way it has been for centuries, the burden should be on the implementers of change vs. the miscenegation people.
contrary to how it may appear, i am not against gay marriage. it is one of the few topics :) i do not yet have a formed opinion on. but, i find the miscenegation analogies Extremely weak.
so do most blacks, btw. who were the target of miscenegation laws.
I am shocked though, since this would clearly implicate the clergy's religious and expressive freedoms. Any actual prosecution on this?
I've been at a number of wedding where formal recognition was either impossible or undesirable and all of them were officiated by clergymen (clergypeople?) - none of them seemed to think that they would be prosecuted for a purely religious act (e.g. so long as they don't say or imply that they are acting by the power vested in them by the state).
Incidentally, this worry would be totally obviated in my scheme.
Yeah, it also seems to me that we have ample grounds to distinguish interracial marriage from same-sex marriage, but Chen obviously disagrees, which does not inspire confidence for the future in the slippery slope crowd. And not that long ago no appreciable movement for legal recognition of same-sex marriage existed, either. So no one should worry about a slippery slope from A to B as long as we can be reasonably confident of delaying B by at least a couple of decades?
According to www.lovingday.org, interracial marriage was illegal at one time or another in every state but Minnesota, New York, New Jersey, Connecticut, New Hampshire, Alaska, and Hawaii. That's 43 out of 50, and I think it counts as "common public policy."
In 1965, about half of all Americans supported laws against inter-racial marriage. That's a bit lower than the proportion that oppose same-sex marriage now, but not so much lower. And I suspect that polling in 1955 would have been even closer to the current numbers.
Well, what is your objective? Is it to accomplish something, or to be right?
I support gay marriage, but think that the recent legal efforts have been incredibly counter-productive. A Brown decision in 1924 would have resulted in impeachments, been shortly overturned, and the issue would not have been raised again anytime as soon as 1954.
So, from a political point of view, yes, I do. Emphatically. I also believe that only a fool would have brought the case in 1924, and the SC would have declined to hear it in any event.
As it stands, a movement that had been gaining political support, that would have achieved its goals democratically in not too much time, has been set back in most places by 20-50 years. Nice going.
In any event, the NJ Supreme Court's precedents surely didn't dictate what they did this week, as we've already discussed.
Since IANAL, can someone kindly explain the legislative meaning of "joins in marriage"? Assuming arguendo that Mass didn't allow for gay marraiges, at what point does a clergy that officiates a function wherein two men commit to each other commit the crime in question?
What if he has a lisp and instead officiates over a 'mawwiage'? What if he never uses the word marriage but instead, pauses and winks everytime the words marriage, husband, matrimony etc. . would commonly be used?
As i said before, I'm quite shocked at these laws. It's one thing to say that the state does not have to regonize gay unions but it's quite another to make it a crime to pantomime those same actions with the understanding that the state will not recognize it.
See my earlier post about my "solution" to the problem. It's true that nominally, marriage means union between partners of the opposite sex. Nevertheless, it's not generally a crime go around espousing a defintion of a word that is contrary to the dictionary definition. It is in the spirit that separating the personal and civil components of marriage would be useful.
While not disagreeing with that statement, I'm arguing that if Loving requires legalizing SSM then it also requires legalizing SFM, and I'm further asking what's wrong with SFM?
(Note, SFM does not mean parents can have sex with their children any more than traditional marriage means men can have sex with little girls or than SSM means men can have sex with little boys.)
"It's icky (to me)" or "It's often a bad idea" aren't strong enough reasons.
The point of there being no incestusexuals is that we're banning people from marrying a miniscule number of individuals: their close relatives. So the burden on them is very small, and since you need two to tango the number of people who will want to do this and have a willing partner is going to be miniscule.
If one believes that folks have One True Love, the burden on that effected couple is pretty big. (cf. the story of the kid tossing starfish back into the ocean.)
And there's a potentially large burden on an (also small) number of people in terms of the impact on family dynamics.
So this really would be defending marriage?
I wholeheartedly agree it's often a bad idea, but DRM is certainly sometimes a bad idea (for that matter, DSM presents "why can't a woman be more like a man?" issues) and I'm not convinced that if the right to marry the willing and able and not otherwise obligated individual of one's choice is a fundamental right then "it's probably a bad idea" is enough to trump that right.
Conversely, in the multi-race case ... the social benefit is smaller (i.e., zero) because preventing racial mixing doesn't serve any legitimate public purpose.
Again, that's not a strong enough reason (is it?) to interfere with a fundamental right.
(What standard is "legitimate" here? -- avoiding mixed-race individuals certainly makes it easier on those who would classify people by race, which seems to be an accepted function of parts of the government.)
IMO, yes. A sufficient purpose of marriage is to encourage single people to settle down with their romantic, loving, lifemate.
You're on good historical ground here if you're referring to what was in the minds of the drafters. I highlighted the lack of textual support for this conclusion because much of this thread is focused on the alleged lack of textual support for the NJ decision. Of course, once we account for history and precedent, then the argument about the NJ court collapses.
Agreed.
Agreed.
I'm not sure whether you're asking a general question here or one specific to the NJ decision. If your question is a general one, then the answer I'd give would be based on history and precedent, plus the axiom that gender is, in general, unchangeable.
If you are asking why gender and race should be similarly treated for the purpose of marriage, it's for exactly the reason you gave above: the discrimination penalizes people who are "similarly situated" for no relevant reason (or, alternatively, for no reason substantial enough to meet the existing standards for race or gender discrimination).
For some commentary and citations, please see my October 27 post on http://irksome.townhall.com/ .
IRK
Now here is a concept found nowhere in society or literature. Is is consistent with any couple found in Shakespeare, except possibly Brutus? No. Is it consistent with any formulation of the troubadors of Provencal, generally considered to have invented romantic love. No. Is it consitent with the best kbnown marriages form European history, who were known to schedule dynastic marriages at birth? No. Is it consistent with Islamic girls who leave Britain at 15 and return with a husband 3 months later? No. Is it consistent with any depiction of marriage you can cite in popular culture, say on television. No. Is it consistent with any writings of the leading feminist authors? No.
So where do you get this notion...
with the qualifier, MINOR children, i am assuming.
If incest is ok by the slipper slope loving extension "logic", then that should apply to parent-offspring, as well as brother-brother, etc. just that the laws against having sex with minors would still apply of course.
Unfortunately, sex is quite real - there are differences both biologically and mentally. It's hard to win rights when both scientific evidence and religion are against them.
Loving applies a very simple logic to the question of whether miscenegation laws are discrimination. That logic is directly applicable to the argument that gays and lesbians are not discriminated in marrriage, they can marry any opposite sex partner they wish.
Using the Loving logic, which essentially says anti-miscenegation laws say that "John" is the wrong race to marry "Jane", anti-gay-marriage laws say that "Adam" is the wrong gender to marry "Steve". Basically, anti-gay-marriage laws discriminate based on gender.
And that's pretty much as far as the analogy carries us. Once you reach that point, race and gender go their own direction with one having its own US Constitutional Ammendment and the other (ERA) only exists in various state Constitutions. At a minimum, most agree that gender discrimination is wrong in many situations, like employement, housing, and credit.
I think this shoots way too broadly. Yes, most social liberals (and conservatives) reject, at least publicly the notion that racial differences in IQ are genetically determined.
But most social scientists of whatever political orientation have given up on the notion that man's personality is a blank slate and they agree that many things, including intelligence are heritable. They just don't believe that racial differences in intelligence are heritable. But ask most informed liberals if they believe that smart folks tend to have smart kids based, at least in large part on genetics, and I think most would agree.
Unless subject to a genetic or environmental defect, I'd personally bet, and I'd imagine most folks on this thread would bet that Eugene Volokh's little ones will turn out to test significantly higher than 100 points on an IQ test, due, largely but not exclusively, to genetics.
You're not missing anything; you got the argument exactly right.
My answers? Why couldn't at least some of these, including intelligence, be affected by genetics? If you expand this to include possibility these traits could be affected by general conditions in the womb, infant nutrition, childhood illness, head blows or other irreversible events, I'd say, "Why of course these traits, including intelligence, are affected by those!"
These factors can have an immutable effect on an individual's basic intelligence, and the effects often can't be reversed in adulthood. They can affect height and a number of other physical traits. Why would I think they couldn't affect sexual orientation?
So, I think you can count my as a person who thinks it's possible sexual attraction to one's one gender is probably impossible to change in adulthood, who also thinks some other personality traits and/ or inclinations may be impossible to change in adulthood.
The empirical evidence of how our society celebrates and encourages marriages that produce no offspring.
The purpose of anti-miscegenation may have been to prevent the birth of mixed-race couples (one could argue that point). The reason for the law and so many others, however, was white racism.
Antony and Cleopatra were evidently married but they were not an interracial couple. Cleopatra was a member of the Ptolemaic dynasty, which was of Greek origin. Antony was of course a Roman from Italy.
The best evidence I can offer is that until the advent of "no fault divorce" infertility was considered cause for divorce.
Still not 100%. The extra 13 abolished it on their own without court action, some before the Consitution was adopted. So did all the non-southern states that abolished it in the two decades before Loving. The democratic process worked.
The use of Courts to bring on the change will drag it out and make the process much more painful. Look at the abortion debate. The courts stepped in when the country was not ready but was moving that way. (Governor Reagan signed a liberal legalization law.) An issue that should have disappeared 20 years ago as a national issue still remains sucking up way too much energy. When courts short circuit democracy, it is not good for democracy or the courts.
An interesting thing to say. Does anyone know if Jim Chen is african-american? Because one of the real deal-breakers for anti-miscegenation laws for the Supremes in the Loving decision was that only two races were not allowed to mix. A marriage between a pacific islander and chinese person would, IIRC, have been legal. It was only white supremacy that was mentioned in the decision.
> Elliot Reed: First, there are no incestusexuals, that is, people who are only attracted to close relatives. A ban on incestuous marriages only keeps people from marrying their first choice of partner rather than their second choice, so we're talking about a small burden on an extremely small number of people.
Perhaps you will like the term "homo-consanguine" relationships. People who practice them are "homo-consanguals"?
It is interesting that you rely on the inability to love, honor, and cherish a group of society as a distinguishing quality to justify altering marriage laws for one group and not for another. Especially in the context of racial conflicts and prejudice that the Loving decision was set against.
But look at Goodridge, where the inability to love honor and cherish a segment of society was not brought up. There the decision rested on the ability to make the choice of your spouse unfettered by definitional conflicts.
In the NJ decision, where is the language that says if someone is unable to integrate with a segment of society, they should be given a free pass? Where is this explicit exception written? Seeing how they use equal protection, I can't really see how they could get it in there.
In fact, if my history serves me correctly, the arguments made in Loving were that races were set up to not be integrated in marital terms. It is a historic racial argument that genetic pre-dispositions exist which justify their inability to integrate with another segment of society. And the parallels of those discredited arguments strike strongly with yours.
If they don't I'd appreciate your explanation of why.
What the hell are you talking about? Can there seriously be a law that forbids a priest (or anyone for that matter) from uttering the words 'I pronounce you husband and wife' without getting a permit?
For instance--23 Pa. C.S. § 1503(c): "Marriage license needed to officiate.--No person or religious organization qualified to perform marriages shall officiate at a marriage ceremony without the parties having obtained a marriage license issued under this part."
I'm sure this varies by State.
That law is a blatant violation of the First Amendment. Nobody needs a *#@*%%* piece of paper to perform a religious ceremony! That's *#&%)##*#$* outrageous!!!!!!
That would be appealingly clean, but as I understand especially Goodridge, they're not going down that road, but going down a road that says Richard may make the personal, fundamental choice to marry the person of his choice, even if Mildred is of a different race, and Hillary may make the personal, fundamental choice to marry the person of her choice, even if Julie is of the same sex.
By the way, what if Chen had not made the analogy, but had said:
A lot more of us here would be agreeing with him, since that's what a lot of these postings have been saying.
Isn't that the rub. Is it the law that is discriminating against gender? Or is the the person?
Marriage requires integration of genders, it explicitly sets up for equal gender representation in establishing a household. Yet to both of you it seems integration is the new segregation as it requires you to choose who is in the mix.
You started the logic with Loving, extended from race to gender, and now lets extend it back to race to see if your logic holds up. When we do the reversal we see that, for instance, a school which integrates based on race is actually discriminating against race. It requires a certain racial quota, and thus enacts prejudice in what people can choose. Substitute school for golf course, business club, fraternity, etc...
If you can support both statements, in race and gender, then you have sufficient continuity. If you don't then something in your argument is wrong, and you should correct it.
Thanks for your answer. I was more focused on the general question of whether race and sex are comparable categories, which I think is the main driver in the specific context of same sex marriages and this thread.
The only specific reason I got was that they are both unchangeable. I wonder if that is really a complete answer. Age, for example is unchangeable, but is nevertheless a basis for a wide range of privileges and disabilities, a situation which is properly uncontroversial.
I suspect the more general background may be the idea that society (or at least large swaths thereof) discriminates against women on the basis of their sex due to animus, ignorance or a desire to monopolize power, similarly to discrimination faced by some racial minorities on account of their race (particualrly under Jim Crow). Although there is some truth to this view, I think it confuses more than it clarifies, because the vast majority of us know well and love individuals of the opposite sex (beginning with our parents). And, even if some aspects of sex difference are socially constructed (hair styles, for example) some are indisputably inherent.
Thus, to me race calls out more than sex for an inflexible "no discrimination" rule because there is less incentive for us to all just get along, and less *real* difference (I'd argue none) which would justify different treatment. Race is a construct, but sex is real.
Like happened with Loving?
Although I agree current marriage law does not discriminate on the basis of gender (it discriminates on the basis of sexualiy), your reasoning towards that conclusion is circular.
"A man convinced against his will, is of the same opinion still."
But it's not democracy as much as public opinion that needs changing. I'm not sure why folks have the notion that in our republic that the legislators and executives, elected by a majority of the people who voted, are "democracy" while the judges, appointed by those same elected legislators and executives are completely not democracy.
(There is a call in Massachusetts to put the state DOM amendment on the ballot -- it's being held up in the legislature procedurally as much as they can. An author of a letter in today's Herald argues against that call, writing "Does anyone think that women or African-Americans would have the civil rights that they have if at the time a popular vote had been held? Would interracial marriage be legal if it had been put to a referendum? I highly doubt it.")
The opposition to inherited personally traits goes way beyond racial differences in IQ test scores. Even within a given race many social liberals are profoundly uncomfortable with the idea that someone could become (say) a criminal because he was born that way, and that criminality could run in families. Social liberalism needs to assume that human nature is basically plastic. I would say this notion lies at the heart of what separates liberals and conservatives.
They just don't believe that racial differences in intelligence are heritable.
Many social liberals don’t even believe there exists a biological basis for race itself. They say it’s a “social construct.” However the evidence for heritability and racial differences with regard to IQ test scores has become overwhelming. The intelligent opposition focuses on the meaning and implications of IQ test scores themselves. They deny the existence of a general “g,” and they deny that IQ score correlates with either individual income or the wealth of nations.
If you expand this to include possibility these traits could be affected by general conditions in the womb, infant nutrition, childhood illness, head blows or other irreversible events,…
Everyone agrees that your environment both inside and outside the womb affects you both physically and mentally. We know that poor nutrition depresses measured IQ. And we know you can be hurt in an irreversible way. That’s not where the controversy lies. The controversy lies in the extent to which pure genetics limits or enhances your potential skills and abilities or determines immutable aspects of personality irrespective of your environment.
What is the age of consent with parental approval in your state?
I am waiting for the reactions the first time a 35 year old Man marries a 14 year old boy while the boys parents say "Our son loves him very much, an after all he is marrying a RICH man. Look at this car he bought us!". Just imagine this could bring back the IDEA of a BRIDE PRICE. A woman and a girl would be the same.
If you don't think that this will happen or if you think that there is anything that can keep it from happening, you are living in a fantasy world.
A fight for SSM is a fight for NAMBLA. If you think other wise you really should think again.
The failure of the state and federal government to recognize my marriage is mostly just an annoyance without too much practical import. At least, not in the state of California. However, it may be a more dramatic oversight than it was in the case of interracial marriage. In Loving vs. Virginia, I'm not sure that there were all that many pre-existing interracial marriages because the threat of violence was so great. In that case, the courts took something of a leading role, paving the way for interracial marriage to be socially sustainable, i.e. in cutting down on the number of lynchings. (I may be wrong on this, but that's my impression.)
With gay marriage, in contrast, there's lots and lots of married gay couples out there, and the courts and governments are not trailblazers so much as playing catch-up, or alternately engaging in simple denial of reality in cases where they refuse to acknowledge those marriages.
In either case, gay couples are free to marry today in ways that interracial couples were not, possibly even after the Loving case was won. State recognition is merely the icing on the (wedding) cake.
I didn't make it as explicit as I should have, but there is also the judgment that the characteristic fails to meet a particular standard -- strict scrutiny, rational basis, etc. -- for relevance to the classification.
In general, I would say that we need to guard most against classifications based upon things which are either immutable (race, ethnic origin) or which we know from historical experience are so integrally related to a person's sense of self that they won't be changed (religion, gender, sexual orientation).
I generally agree with this and don't have a problem with a test which applies different standards based on such classifications. Be careful, though -- the same arguments made for gender were used in the past against religion.
From this thread:
"In Casti Connubii, Pope Pius XI said this:
24. This mutual molding of husband and wife, this determined effort to perfect each other, can in a very real sense, as the Roman Catechism teaches, be said to be the chief reason and purpose of matrimony, provided matrimony be looked at not in the restricted sense as instituted for the proper conception and education of the child, but more widely as the blending of life as a whole and the mutual interchange and sharing thereof." Credit: lucia.
"Noah Webster's 1828 dictionary:
Marriage: The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. Marriage is a contract both civil and religious by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. Marriage was instituted by God Himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children." Credit: On Lawn.
The scientific evidence does not support the genetic component of homosexuality as DETERMINISTIC, merely probabilistic. This is in line with MOST genetic factors of behavior.
Iow, there is an exclusion of the middle. it is not "either/or".
Given certain genetics, some people will be more likely to end up homosexual. It does not follow that there are not environmental factors AS well, and even (lord forbid) some choice/volition.
The exact same people who claim 'race is a social construct' (which is absurd post-modern rubbish), and wanted us to believe for DECADES that most gender differentiated behavior were socially constructed (which is also absurd) have done a 180 degree about face, and want to believe that homosexuality is the ONE personality trait that is 100% genetically determined.
The irony, and the double standard is absurd.
the evidence (and common sense) show that there is a genetic factor in whether or not somebody ends up homosexual. it is MORE likely with some than others, but it is rarely, if ever, a 100% determined outcome based on genetics.
Just like pretty much ALL human behavioral tendencie
I suspect that this will happen about as often as 35-year-old men marry 14-year-old girls now.
Q: The real outrage is that we allow the various governments to discriminate between single and married people.
I don't think making polygamy legal would require a redefinition of "marriage." No one maintains that Abraham, or Brigham Young, was not "married" to each of his many "wives." Polygamy is just an illegal form of "marriage," like "marriage" between an adult man and an underage girl.
I would add that state recognition also greatly reduces transaction costs. A man and a woman simply have to take a blood test, pay a fee, and go through a simple proceeding in front of a magistrate in order to place their property and other relations under a massive network of well-established legal rules (bringing with them both rights and obligations). A man and a man, or a woman and a woman, currently have to go through a lot of hoops to set up a comparable scheme for themselves, and at present have no assurance that such a scheme will ultimately accomplish what they want.
As such the question always is, why are only the married citizens with opposite gendered spouses allowed to license the contract in support of marriage? Which is what New Jersey recognized - each married citizen has a right to the same access to government as the other, even if they want to have one contract named 'marriage' and the other something else.
And as to the 'incest' mentioners, that is again taking the law as if it were merely a set of rules. We prohibit incest because of the social dynamics it can cause having a family unit also be a sexual partner hunting ground. What chance would a family member have if it could be groomed for eventual wedding to a sibling or other household relative since childhood?
The genetic arguments are bogus - we allow people at far greater risk of passing on genetic abnormalities license to the contract of marriage all the time. You would deny two brother's the right to marry for the same reason you would an infertile sister with a brother - the social dynamics are the reason for the proscription.