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Evidence from Scandinavia on gay marriage, social conservatism, and slippery slopes:

William Eskridge and Darren Spedale, coauthors of the book "Gay Marriage: For Better or For Worse? What We've Learned From the Evidence" (Oxford University Press, 2006), have looked at marriage rates and other evidence of the social effects of recognizing same-sex relationships in the 17 years since Scandinavian countries began doing so.

In an op-ed in the Wall Street Journal, (subscriber only) they summarize their findings as follows: Seventeen years after recognizing same-sex relationships in Scandinavia there are higher marriage rates for heterosexuals, lower divorce rates, lower rates for out-of-wedlock births, lower STD rates, more stable and durable gay relationships, more monogamy among gay couples, and so far no slippery slope to polygamy, incestuous marriages, or "man-on-dog" unions. From the op-ed:

[T]here is no evidence that allowing same-sex couples to marry weakens the institution. If anything, the numbers indicate the opposite. A decade after Denmark, Norway and Sweden passed their respective partnership laws, heterosexual marriage rates had risen 10.7% in Denmark; 12.7% in Norway; and a whopping 28.8% in Sweden. In Denmark over the last few years, marriage rates are the highest they've been since the early 1970s. Divorce rates among heterosexual couples, on the other hand, have fallen. A decade after each country passed its partnership law, divorce rates had dropped 13.9% in Denmark; 6% in Norway; and 13.7% in Sweden. On average, divorce rates among heterosexuals remain lower now than in the years before same-sex partnerships were legalized.

In addition, out-of-wedlock birthrates in each of these countries contradict the suggestion by social conservatives that gay marriage will lead to great increases in out-of-wedlock births and therefore less family stability for children. In Denmark, the percentage of out-of-wedlock births was 46% in 1989; now it is 45%. In Norway, out-of-wedlock births jumped from 14% in 1980 to 45% right before partnerships were adopted in 1993; now they stand at 51%, a much lower rate of increase than in the decade before same-sex unions. The Swedish trend mirrors that of Norway, with much lower rates of increase post-partnership than pre-partnership.

Is there a correlation, then, between same-sex marriage and a strengthening of the institution of marriage? It would be difficult, and suspect, to establish a cause-and-effect relationship between these trends in heterosexual marriage and marriage rights for gays and lesbians. But the facts demonstrate that there is no proof that same-sex marriage will harm the institution of marriage, or children. An optimistic reading of the facts might even suggest that the energy and enthusiasm that same-sex couples bring to the institution of marriage may cause unmarried heterosexual couples to take a fresh look at marriage as an option.

The authors' caution here about gay marriage as a boon to heterosexual marriage is warranted. Correlation is not causation, and it would presume too much from a mere correlation to conclude that a small number of gay marriages in these societies had a significant positive impact on marriage itself, just as it would presume too much from the opposite correlation (if one existed) that they had a significant negative effect on marriage. But it is at least possible from these numbers to say that gay marriage has not led to any significant harm to marriage as an institution (pace Stanley Kurtz). Every year that goes by adds to the strength of this conclusion.

Eskridge and Spedale also find benefits to gay relationships:

Our research has also uncovered additional social benefits. In dozens of interviews with partnered couples and through other sources, we found that marriage rights had an important beneficial effect not only on the couples themselves, but on their local and national communities as well. Couples reported that their relationships were stronger and more durable, that relationships with family members had deepened, that co-workers had become more tolerant and supportive, and their children felt greater validation by having married parents. Many couples reported a greater emphasis on monogamy, which may be reflected by the fact that national rates of HIV and STD infections declined in each of the Scandinavian countries in the years after they passed their partnership laws.

These are exactly the sorts of effects I'd predict from legal and social recognition of gay families. But I'd be cautious about concluding very much from a series of interviews. There are possible methodological weaknesses in this technique, including small sample size, selection and representativeness of the interviewees, problems in questions and interpretation of answers, dishonesty from interviewees who may tell an interviewer what they think the interviewer wants to hear, etc. An opponent of gay marriage could probably rather easily find same-sex couples who got married and were not monogamous, who divorced quickly, etc., and then write a book based on such interviews. A more systematic and long-term study of gay married couples is needed, but findings like these from Eskridge and Spedale are promising. They are at least developments we should all hope for.

Fears about slippery slopes, commonly expressed whenever there has been a change in marriage policy, have also proven unfounded so far:

Finally, what about the "slippery slope" argument — that same-sex marriage would start a dangerous movement toward legal recognition of socially unacceptable relationships? This hasn't happened in Scandinavia; 17 years later, there are still no calls for recognizing polygamy, incestual marriage or marriage to animals. Danes you ask about the slippery slope think you are joking. They realize that same-sex marriages serve essentially the same goal as opposite-sex marriages: lifetime commitment to your better half, the person who completes you.

Yes, you can find advocates for polygamy and other changes in marriage in Scandinavia and among queer theorists and academics in the United States. But there have always been such advocates, going back to the days of the "free love" movement among radicals in the U.S. in the early 20th century. You can find advocates for anything, complete with a Yahoo group and an organization of the like-minded. Google has been a great resource for slippery-slope fearmongering. But the fact is, neither polygamy nor these other destinations down the slope have caught on as serious legal reform as a result of protecting gay families anywhere in the world.

Eskridge and Spedale conclude:

Rather than scapegoating gay couples as the attackers from which marriage needs "defending," pundits and politicians alike should look to no-fault divorce, prenuptial agreements and legal recognition of heterosexual cohabitation as the real culprits of weakened marriage. As the evidence indicates, societies where gay couples have the rights of marriage seem to be doing just fine.

The debate over gay marriage for the past two decades has largely been a duel of abstractions, hopes and fears, unsupported claims, and hypotheticals. That's been true on both sides of the debate, though for gay families the stakes are far from theoretical. With several countries now recognizing gay marriages, and with almost 1/5 of the U.S. population living in states with gay marriages or civil unions, this period of abstract debate is coming to an end. The debate will start to become an empirical one.

What we can say with confidence so far, based on the evidence, is that the sky doesn't immediately fall when a society recognizes gay relationships. As time passes without the sort of cataclysmic consequences predicted by opponents of gay marriage, we will be able to say more. We may soon be able to say, with good evidence to back it up, that recognzing gay marriage leads to greater stability in gay families, with benefits to gay couples, children raised in gay families, and communities. The signs so far are pointing in the right direction.

Chumund:
As I have mentioned before, it seems quite likely to me that what we are seeing in Scandinavia as well as the United States is a gradual renewal of interest in marriage, and a general strengthening of marital norms, after marriage was rebuilt to reflect gender-equality norms. So, I am somewhat skeptical that gay marriages are playing a causal role in all this, and instead see them as just one effect of this general pro-marriage trend.

Incidentally, I wonder how many people are really open to being convinced by empirical evidence of this sort, as opposed to just greater familiarity with gay couples in their personal lives. I still see that as the great driver of the trend toward increasing acceptance of gay relationships and gay marriages (gay people coming "out" and becoming visible to their friends, family-members, coworkers, coreligionists, and so on).
11.1.2006 11:05am
NRWO:
For another take on Eskridge and Spedale, see Kurtz:

Kurtz's article

Kurtz argues that Eskridge and Spedale ignore the Netherlands in their analysis, in part because the data from the Netherlands (which, in Kurtz's view, is a more valid indicator of the effects of SSM on traditional marriage) is inconsistent with their biases.

Quote:

"Now Spedale and Eskridge have repeated their basic line in an October 27 Wall Street Journal op-ed entitled, "The Hitch," yet have done so with a telling omission. Remarkably, Spedale and Eskridge have nothing whatever to say about marriage in the Netherlands, the country that has had formal same-sex marriage longer than any other place in the world. Spedale and Eskridge treat Scandinavian registered partnerships as the only case worth talking about, supposedly because we've had full gay marriage in the Netherlands for only five years. Yet we've had registered partnerships in the Netherlands for nearly a decade, and full gay marriage for about half that time. It's absurd to rule a decade's worth of data from the Netherlands out of court, especially when much of that time includes the world's first and longest experiment in formal same-sex marriage. This straining to completely omit data from the Netherlands is the surest sign that Spedale and Eskridge are on shaky ground.

"Given the fact that marriage has deteriorated more rapidly in the Netherlands than in any West European country over the last decade, the reluctance of Spedale and Eskridge to talk about the Dutch case makes sense. Yet they do treat the issue in their book. I've discussed the Netherlands extensively (see, for example, "Standing Out"), arguing that all signs point to same-sex unions as a key factor in the decline of Dutch marriage. In "Smoking Gun," I offered a detailed rebuttal of Eskridge and Spedale's treatment of The Netherlands. And I've had a direct exchange with the authors on this issue. (See my Corner post, "Eskridge-Spedale.") Given all that, I think it's telling that Spedale and Eskridge have now decided to avoid talking about the Netherlands altogether.
11.1.2006 11:09am
Chumund:
Supposing the numbers from Scandinavia since gay marriage started are "good", and the numbers from the Netherlands since gay marriage started are "bad", doesn't that just suggest that gay marriages in truth just don't have much effect on broader marital trends?
11.1.2006 11:29am
FantasiaWHT:
It's also a stretch to -conclude- that SSM did NOT have a NEGATIVE effect on marriage based on this. It's certainly possible that other effects had a greater positive effect on marriage than a negative effect from SSM.
11.1.2006 11:30am
godfodder (mail):
Hmmm, the plot thickens.

Chumund: Yes, I think many principled "opponents" of gay marriage would be convinced by data that suggests that gay marriage has a benign effect on marriage and children. That is the major concern of people like me, who balk at the thought of messing with an ancient, bedrock social institution like marriage.

My feeling is "let other countries do these experiments; we'll sit back and see what happens." Why not make such an important decision after we have some data?

It would be extremely interesting to know why the experience in the Netherlands is/might be different than that of Scandinavia. Of course, societies are different, so policies might not be so easily transferrable. (Which throws into doubt the whole "experiment" idea!) For instance, the Netherlands has all sorts of unique elements-- like their liberal drug laws. Their whole attitude toward "law" and "order" may be quite different than the Scandinavians.

I have always felt that the Scandinavian countries get away with more lax social policies because they have a relatively homogenous society that enforces "good" behavior through their culture rather than laws. I base that idea entirely on the fact that most Scandinavians I have met (about ten people) have been rather stodgy (not exactly science, but it's all I got).
11.1.2006 11:39am
Lawstsoul:
Since we're doing cut &paste, quote:





Sunday, June 04, 2006

SMOKING GUN or MISFIRED ARGUMENT?/Eskeridge and Spedale Respond to Kurtz


"Stanley Kurtz is the 'EverReady Bunny' of the same-sex marriage debate, a character who moves forward unrelentingly on a quest to prove that same-sex marriages are harmful. He is sure that state recognition of lesbian and gay unions in Europe has harmed the institution of marriage. But he never quite settles on a reason why this should be so, and his most recent argument illustrates the wildly unscientific thinking behind a lot of the American opposition to same-sex marriage.

For several years, Kurtz argued that same-sex marriage (in the form of registered partnerships) in Denmark and other Nordic nations had meant the "end of marriage" in Scandinavia. This was an overstated claim, at the least. As we document in our new book, the marriage rate actually increased and the divorce rate declined after Denmark adopted its same-sex registered partnership law in 1989.

This 'end of marriage' argument was accompanied by a similar argument, that same-sex partnership legislation has inspired straight couples to bear and raise their children outside of marriage. This, too, is not factually correct. Our book demonstrates that the percentage of Danish children born outside of marriage went up from 11% in 1970 to 33% in 1980 to 46% in 1989 -- and then, after the passage of the partnership law in Denmark, actually declined slightly. Between 1997 and 2004, the rate hovered between 44.6% and 45.4%. As our book also documents, the out-of-wedlock birth rates in Norway and Sweden, which had been steadily increasing at a fast clip in the '70s and '80s, stabilized after those countries recognized same-sex registered partnerships in 1993 and 1995, respectively.

Finally, as we document in our book, the long history in Scandinavia with registered partnerships has seen some benefits accrue to the institution. Not only have long-standing trends in lower marriage rates / greater divorce rates / greater numbers of out-of wedlock births reversed themselves or stabilized, but same-sex unions have also proven themselves to keep relationships stronger, strengthen families, protect children, promote tolerance, and possibly lead to benefits on a national scale such as lower national rates of STD and HIV infections.

Sensing that he is losing the case with those countries with these longer-lived partnership laws, Kurtz has substantially shifted to the Netherlands, as illustrated by his recent article ;The Smoking Gun,; (National Review On-Line, posted June 2, 2006). The Dutch had one of the lowest rates of nonmarital births in the world in 1970; between 1970 and 1982, the rate doubled, but only to 5%; between 1982 and 1988, the rate doubled again, to 10%; between 1988 and 1997, the rate doubled yet again to more than 20%. This was before the Dutch made any changes in their marriage laws. Since 1997, the nonmarital birth rate has continued to rise at a steady clip, about 2% points per year, since 1997. In 2001, the Netherlands celebrated its first same-sex marriages.

Kurtz argues that he finally has data that support his claim that same-sex marriage 'causes' high rates of children born outside of marriage. For several reasons, this data reveal no causal link.

First, the Netherlands' institution of same-sex marriage is too recent to draw any conclusions at this point. Kurtz responds that the Netherlands recognized registered partnerships in 1997 (they became available in 1998). Unlike the Scandinavian laws, however, the Dutch partnership law was, and remains, available to different-sex as well as same-sex couples. In fact, more heterosexuals take advantage of registered partnerships in the Netherlands than same-sex couples. Hence, the symbolic message it was sending was different: not just recognition of lesbian and gay unions, but also providing straight couples an alternative to marriage. Providing them another option might be expected to draw straight couples away from marriage.

Kurtz also claims that the 'campaign' for same-sex marriage began in a big way much earlier, perhaps 1989-90. The mere possibility of same-sex marriage, he seems to be saying, 'causes' straight couples to abandon the institution and have children outside marriage. This is a lavish understanding of social causation. From our ethnographic study in Scandinavia, as well as our survey evidence, we doubt that even formal changes in the law have predictable effects on social practice. In any event, Kurtz introduces no evidence demonstrating that more than a handful of Dutch citizens were even aware of this 'campaign,' and in fact most Dutch homosexuals did not know about it.

Second, an event does not 'cause' a trend if the trend pre-existed the event. If your income rises at a steady rate of 5% a year, you get married, and then your income continues to rise at a rate of 5% per year, you cannot conclude that your marriage "caused" those subsequent wage increases. Your marriage presumably did not hurt, but there is every reason to believe that it didn't help either.

The nonmarital birth rate in the Netherlands has been increasing exponentially since the 1970s. It galloped up in the 1980s, and continued that gallop in the 1990s and the new millennium. The rate doubled between 1982 and 1988, doubled again between 1988 and 1997, and is on the way to another doubling. These are significant increases, but registered partnerships, not to mention same-sex marriage, came right in the middle of this demographic trend. Neither institution seems to have exacerbated the trend.

Indeed, the data support a more interesting hypothesis than the one Kurtz supposes. For social reasons, the Dutch were by the 1980s no longer so strongly committed to a norm that a marriage certificate is a necessity for couples to form permanent, committed partnerships and raise children. The compulsory-marriage norm continued to weaken in the 1990s -- and that is the key reason Parliament was willing to open registered partnership to different-sex couples.

Third, and perhaps most important, Kurtz makes the mistake David Hume calls the 'post hoc proper hoc' (after that, therefore because of that) fallacy. (1) The U.S. Supreme Court struck down all state laws barring different-race marriage in 1967, and (2) American divorce and cohabitation rates went up dramatically after that. This sequence does not mean, however, that (3) the first event caused the second trend.

To figure out why Dutch nonmarital childbirth rates have gone up so dramatically in the last generation, we need to look at other variables -- including changing attitudes about women working outside the home, the trends in neighboring countries as Europe became more integrated, and evolving social mores. To "blame" this trend on same-sex marriage, which came at its tail end, is like blaming the last batter in a 10-0 baseball game for 'causing' the home team to lose. The last batter did not prevent his team from losing, but neither did he cause the loss.

The 'you lost the game' phenomenon we have just described is called scapegoating. Interestingly, the Dutch don't 'blame' gay marriage for the phenomenon of families outside of marriage in their country. Most Dutch citizens who know about Kurtz's argument find it baffling, though not a few are amused. But scapegoating is a serious matter. To blame the group (gays and lesbians) that has been most fundamentally denied even minimal rights in the last generation for the decline of marriage is not only unscientific, it is fundamentally unjust.
11.1.2006 11:40am
logicnazi (mail) (www):
What this suggests is that marriage rates are a complex social/economic phenomenon that is going to be influenced by many factors. Just like studies about crime rates you always find after some policy is implemented that in some places crime increases and in other places it decreases. These are just volatile statistics and only massive amounts of examples will give you a good grasp on the small scale phenomena.

In any case I think it is important to distinguish two arguments.

1) The slippery slope to polygamy.

2) Harm to the traditional institution of marriage, i.e., less people getting married.

I think the data do seem pretty suggestive that no serious danger of 1 results from gay marriage. Perhaps you might think that in 100 years or something this will come about but it certainly isn't an immediate worry.

As far as far future results don't you think that the people in the future will be just as reasonable as we are and have more evidence and data than we? If so shouldn't you believe that they will only start allowing polygamous unions if there is a good reason to do so (and thus if you think there isn't have confidence they won't?).


As for 2 I think the right thing to say is there is no obvious effect either way. The data is just unclear on this point but it definitely isn't the case we have good empirical reasons to believe gay marriage is harmful.

Actually the only statistic I'm really worried about is unplanned out of wedlock births. It isn't obvious that less people getting married is a bad thing.

In fact I've read (not sure if it is true) that many more people get married now than ever did in the Victorian age and other past 'virtuous' eras. If so it seems entirely plausible that a high divorce rate is related to people who shouldn't really get married doing so.
11.1.2006 11:50am
Duffy Pratt (mail):
In the Scandanavian countries there are virtually no deaths by accident from handguns, health care is generally available, and gays can marry without repercussion. Horrors. Who would want to live in a country like that?
11.1.2006 11:52am
Kim:
I think some of the "slippery slope" arguments are missing the point. The slippery slope isn't just to polygamy, etc. - the slippery slope was to SSM in the first place, when (as Prof. Volokh pointed out last week) all the laws that were just supposed to be about making sure gay people weren't specifically discriminated against actually had the effect of causing courts to invent rights to SSM.

I do think the empirical data is worth looking at and evaluating, but a lot of Americans' principled opposition to SSM is to SSM in principle; they don't believe two men can be 'spouses' and they believe children have a right to their own mother and father. What did the data say about children of divorce in the first years during the push for no-fault? Kids are resilient, no terrible effects, most kids do fine - most of that's true, but it doesn't mean divorce isn't a bad thing.
11.1.2006 12:04pm
Jay Myers:

Finally, what about the "slippery slope" argument — that same-sex marriage would start a dangerous movement toward legal recognition of socially unacceptable relationships?

What about the very large number of people in America, possibly a majority, who consider same-sex relationships to be "socially unacceptable"? As you've acknowledged in a previous post, we have already had a "slippery slope" regarding the forced acceptance of homosexuals that has brought us to this point. If any state's legislature decides that a majority of their constituants want same sex marriage or polygamy or any other arrangement then I wouldn't personally have a problem since that is how a political system works. But that isn't what is happening. Unelected leftist judges are deliberately misinterpreting the law to force SSM down people's throats and the authors of the op-ed piece dismiss those with qualms or objections about this as "scapegoating gay couples as the attackers from which marriage needs 'defending'." Well when people attempt to prevent me from having any voice in what kind of society I live in by using immodest judges to change the law, it really does feel like an attack. I can't even agree with them because all power of choice has been taken out of my hands. As supporters of legalized abortion have found, that sense of powerlessness is a good way to stir up opposition.

The various legislatures in their wisdom have decided that nobody, gay or straight, man or woman, black or white, can marry someone of the same sex but that anyone can marry (with a few restrictions) a single person of the opposite sex. By definition everybody is being treated equally under the law and has recieved their due process. As Anatole France famously said, "The law, in its infinite majesty, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread." All parties are being treated the same and the fact that only one party might wish to do what is prohibited is irrelevant. The law is distinct from morality and there simply isn't a legal issue here.
11.1.2006 12:13pm
Chumund:
godfodder,

But I guess the question is what it would take in order for you (or someone else) to draw that conclusion ("that gay marriage has a benign effect on marriage and children"). Particularly with a question so broad and with so many confounding factors, it is hard to imagine there being definitive proof to that effect.
11.1.2006 12:13pm
CJColucci:
leftist judges are deliberately misinterpreting the law to force SSM down people's throats

You might want to re-phrase that.
11.1.2006 12:19pm
Richard A. (mail):
This is all very nice as regards the argument for legislative adoption of gay marriage. But this is a legal blog dealing with constitutional issues. And constitutional issues should not be decided on policy grounds. If they were, all sorts of protected, yet socially dubious, speech could be outlawed.
11.1.2006 12:21pm
Chumund:
Why can't a legal blog deal with legislative issues?
11.1.2006 12:44pm
Cornellian (mail):

The various legislatures in their wisdom have decided that nobody, gay or straight, man or woman, black or white, can marry someone of the same sex but that anyone can marry (with a few restrictions) a single person of the opposite sex. By definition everybody is being treated equally under the law and has recieved their due process. As Anatole France famously said, "The law, in its infinite majesty, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread." All parties are being treated the same and the fact that only one party might wish to do what is prohibited is irrelevant.


Um, you do realize that your quote from Mr. France cuts against your position, not in favor of it?
11.1.2006 12:57pm
Rebecca (mail) (www):
Hello-
If you are interested in reading something by William N. Eskridge, Jr. and Darren R. Spedale check out the OUPblog where they talk about the Marriage Protection Amendment. http://blog.oup.com/oupblog/2006/06/questions_and_a.html
11.1.2006 12:57pm
Cornellian (mail):
What about the very large number of people in America, possibly a majority, who consider same-sex relationships to be "socially unacceptable"?

If by "socially unacceptable" you mean unlawful, then I would think a very large majority of the population holds the opposite view. If by "socially unacceptable" you mean something like "not really my thing", that term can apply to a vast range of perfectly legal activities and relationships.
11.1.2006 12:58pm
frankcross (mail):
The point is that you are free to argue the "socially unacceptable" position. This doesn't go to that. But you don't get to argue the "destroy marriage" position, because the evidence does not support that. So you must sustain your position on the moral, not the consequentialist.
11.1.2006 1:04pm
Cornellian (mail):
Unelected leftist judges are deliberately misinterpreting the law to force SSM down people's throats and the authors of the op-ed piece dismiss those with qualms or objections about this as "scapegoating gay couples as the attackers from which marriage needs 'defending'."

These are two separate issues. One issue is the usual majoritarian objection about judges deciding any issue contrary to the will of the legislature, something that reasonable people can debate about a wide range of issues, with the specifics varying not just from issue to issue, but from state to state. Different states have different constitutional provisions, some states have elected judges etc.

The second issue is the absurd position that somehow preventing gay people from getting married constitutes a "defense" of marriage as if gay people getting married (regardless of how such marriages obtain legal recognition) were an attack on marriage. I have some sympathy for the first position, though I don't make blanket statements on it since, as I've said, the circumstances vary from case to case, but the second to me seems like pure demagoguery.
11.1.2006 1:06pm
Cornellian (mail):
And constitutional issues should not be decided on policy grounds. If they were, all sorts of protected, yet socially dubious, speech could be outlawed.

Nothing in the text of the First Amendment exempts from its protection speech that threatens physical violence against an individual or speech that defrauds another individual, yet such speech is held to be outside its protection. What would you call the basis for that view, other than "policy grounds?"
11.1.2006 1:08pm
Daniel Chapman (mail):
How about "Something we don't want to promote with legal recognition?"
11.1.2006 1:10pm
Gino:
Given the very positive results of the study, I think Scandinavia should seriously consider polygamy, incestuous marriages, and "man-on-dog" unions. Who knows what benefits to marriage those unions will produce?
11.1.2006 1:11pm
Gino:
Given the very positive results of the study, I think Scandinavia should seriously consider polygamy, incestuous marriages, and "man-on-dog" unions. Who knows what benefits to marriage those unions will produce?
11.1.2006 1:11pm
Randy R. (mail):
Gee, Gino. Talk about being a sore loser.

One of the main reasons people are against gay marriage is because they argue that it will 'destroy' marriage. Most thoughtful people have realized that doesn't make any sense, and now we have some degree of proof.

So the one big argument against gay marriage has been taken away from you. Deal.
11.1.2006 1:23pm
j..:
The article was posted on Prof Eskridge's Yale website: link
11.1.2006 1:24pm
fishbane (mail):
[...] actually had the effect of causing courts to invent rights to SSM.
[...] and they believe children have a right to their own mother and father


What was that about inventing rights, again?
11.1.2006 1:30pm
David Chesler (mail) (www):
In fact I've read (not sure if it is true) that many more people get married now than ever did in the Victorian age and other past 'virtuous' eras.

Don't know if it's true either, but (assuming of course this is population-adjusted -- if it isn't it's very silly) how does the situation compare for people "like us". You'd have to have been doing very well for yourself a century ago to have the health, wealth, education, and freedom that are available to those fairly low into lower middle class today. (Just a guess as to whole swaths of people who wouldn't be getting married.)

Not to mention that post-Loving, there are so many more potential mates for each of us :-)
11.1.2006 1:41pm
Kim:
What was that about inventing rights, again?

It's the concept of natural rights vs. rights that have never existed before in human history, much less in the American system of democratic governance, up until about ten years ago in certain Western elite jurisdictions, and in this country generally only by judicial fiat.

In any event, as Dale Carpenter acknowledges, the empirical evidence on whether SSM is beneficial or detrimental to society isn't conclusive one way or the other so far. My point was just that a substantial majority of Americans still believe it's wrong and wouldn't choose to have it legal or ever socially acceptable (only 20 or 25 states may have amendments now, but well over 40 have either a DOMA or amendment or both, and of course Congress passed DOMA also), except that several courts have improperly decided the question on their own.
11.1.2006 1:54pm
Caliban Darklock (www):
"Danes you ask about the slippery slope think you are joking."

However, it's probably NOT FOR THE REASON YOU THINK:

http://www.wnd.com/news/article.asp?ARTICLE_ID=52120

Slope? What slope? Every slope around here only goes up!
11.1.2006 1:55pm
Randy R. (mail):
Kim: What about the very large number of people in America, possibly a majority, who consider same-sex relationships to be "socially unacceptable"?"

And what about the very large number of people in America, possibly a majority, but significantly growing over the past decade, who consider same-sex relationships not only okay, but are willing to grant them the status of civil unions or marriage?

Listen, I'm gay, and I'm in a relationship with another man. What's it to you? Are you going to try to stop me from dating this man? I don't really care whether it is socially acceptable to you, for the same reason I don't really care about who you date or marry. It's not my concern. I ask only the same respect from you.
11.1.2006 2:21pm
Hans Bader (mail):
What on Earth are Eskridge and Spedale talking about when they suggest that prenuptial agreements are the cause of divorce???

Prenups REDUCE divorce by getting rid of the financial incentives for a divorce!!!

Do they know ANYTHING about the statistics on who initiates divorces at all?

The vast majority of the time, the spouse seeking the divorce is the one who is CHALLENGING the prenup, not the one who wrote it.

People demand that their spouses sign prenups to eliminate the financial incentives for divorce contained in no-fault divorce laws.

Typically, it is the wife who seeks a divorce. More than two-thirds of all divorces are initiated by wives, typically no-fault divorces. See the National Center for Health Statistics data and other studies discussed at length in Arizona State University researcher Sanford Braver's book Divorced Dads: Shattering the Myths (1998).

About three quarters of all divorces among families with children are initiated by the wife, typically over the husband's objection.

Academics, feminist researchers, and "men's rights" groups who study divorce may not agree on much, but they uniformly agree on this: most divorces are no-fault divorces initiated by wives.

And typically, it is the husband, who is at a greater risk of a non-consensual divorce than the wife, who wants the prenup, to eliminate the incentives for divorce, such as excessively generous alimony and equitable distribution. (Another sensible reason for seeking a prenup is so that a spouse can preserve assets for the benefit of the spouse's children from a previous marriage).
11.1.2006 2:30pm
Richard A. (mail):
Q: Why can't a legal blog deal with legislative issues?
A: It can, but blogs get boring fast when they go too far afield. Just check Glenn Reynolds.
11.1.2006 2:40pm
Cornellian (mail):
And typically, it is the husband, who is at a greater risk of a non-consensual divorce than the wife, who wants the prenup, to eliminate the incentives for divorce, such as excessively generous alimony and equitable distribution.

I suppose if "equitable distribution" is an incentive for divorce, then the husband wants a prenup that will provide for inequitable distribution, so as to disincentivize divorce.
11.1.2006 2:53pm
Randy R. (mail):
Hans: Academics, feminist researchers, and "men's rights" groups who study divorce may not agree on much, but they uniformly agree on this: most divorces are no-fault divorces initiated by wives.

Which of course supports their contention that no-fault divorces are at greater fault for divorces than gay marriage, at least in Scandinavia.

As for prenups, I don't know any stats, but I do know that my sister is a right-wing religious fanatic, and she says that her church tells her that prenups are bad for marriages, because it presumes the marriage will end in divorce. At least the religious right agrees -- prenups are likely *a* cause of divorce.

Perhaps prenups help facilitate divorce, though, since each spouse will know exactly what they will get, instead of fighting it out in the courts and not knowing exactly how it will all play out?
11.1.2006 3:02pm
Duffy Pratt (mail):
"This is all very nice as regards the argument for legislative adoption of gay marriage. But this is a legal blog dealing with constitutional issues."

Do you read this blog? Only about 35-40% has anything to do with the constitution. How about elephants memories? Or the hanging paradox? Or the recent series on military history? Or federal overcriminalization?

But when someone posts a study that suggests that gay marriage might actually be a good thing, then we should only focus on the constitution. I understand.
11.1.2006 3:05pm
Chumund:
Richard,

But it seems to me legislative issues are well within the field of a legal blog. In other words, you seem to be claiming this should only be a litigation blog, but I don't see why it should limit itself in that fashion.
11.1.2006 3:09pm
FantasiaWHT:
Cornellian, that's the second time I've seen that France quote brought up, and I don't understand how it "cuts against" the idea that a gay people aren't being denied "their rights" by laws forbiding SSM? Could you explain that to me?
11.1.2006 3:11pm
Captain Holly (mail):
In fact I've read (not sure if it is true) that many more people get married now than ever did in the Victorian age and other past 'virtuous' eras. If so it seems entirely plausible that a high divorce rate is related to people who shouldn't really get married doing so.

I don't think it is true. There was a news item a little while ago that reported the percentage of unmarried households has surpassed the percentage of married households for the first time in US history.

(Going from memory here, can't seem to find the article I read.)
11.1.2006 3:14pm
Lmericks:

"The various legislatures in their wisdom have decided that nobody, gay or straight, man or woman, black or white, can marry someone of the same sex but that anyone can marry (with a few restrictions) a single person of the opposite sex. By definition everybody is being treated equally under the law and has recieved their due process."


By your logic, Loving was incorrectly decided. The law prohibiting interracial marriage in Virginia applied equally to blacks and whites: everyone could marry someone of their own race and no one could marry someone of a different race. Are you really willing to say that is all the Equal Protection Clause requires?

And why is it so "improper" for judges to decide constitutional questions? It is their JOB to overturn the legislature sometimes. That is our system of checks and balances.
11.1.2006 3:15pm
Elliot Reed:
Lmericks: technically, that's not true. It was only white-nonwhite marriages that were banned; blacks were free to marry Asians or other nonblacks. But it would be absurd to see this as a grounds for distinction, since it suggests that a anti-misceganation laws could have been made constitutional by treating blacks even worse than they already did.
11.1.2006 3:30pm
Elliot Reed:
The various legislatures in their wisdom have decided that nobody, gay or straight, man or woman, black or white, can marry someone of the same sex but that anyone can marry (with a few restrictions) a single person of the opposite sex. By definition everybody is being treated equally under the law and has recieved their due process. As Anatole France famously said, "The law, in its infinite majesty, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread."
Is the self-parody here intentional or unintentional? It's hard to tell.
11.1.2006 3:32pm
Cornellian (mail):
"The law, in its infinite majesty, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread."

Cornellian, that's the second time I've seen that France quote brought up, and I don't understand how it "cuts against" the idea that a gay people aren't being denied "their rights" by laws forbiding SSM? Could you explain that to me?

Mr. France is being sarcastic. He's parodying the simple minded "the law really does apply equally therefore what's the problem?" argument by pointing out an example of a law that is facially neutral (no one may sleep under bridges or beg in the streets) but in reality will apply only to the class of people who might need to do such things (i.e. poor people) and not to the class of people who have no need of such things (i.e. rich, or at least comfortably middle class people). Another example would be to argue that a law prohibiting anyone from entering a synagogue is fair and non-discriminatory because it applies equally to Jews and to Christians.

The previous poster cited Mr. France in support of his position that a law permitting one to marry only members of the opposite sex is fair and non-discriminatory because it applies equally to straight and to gay people. The poster is apparently unaware that Mr. France's statement was meant to illustrate the absurdity of such a simple minded approach to "applies equally."
11.1.2006 3:41pm
FantasiaWHT:
Argh! Can somebody please explain that issue to me (see my post 3~4 above) I understand Lmerick's comparison to Loving, but I don't understand the quote the way the rest of you do
11.1.2006 3:42pm
Cornellian (mail):
technically, that's not true. It was only white-nonwhite marriages that were banned; blacks were free to marry Asians or other nonblacks. But it would be absurd to see this as a grounds for distinction, since it suggests that a anti-misceganation laws could have been made constitutional by treating blacks even worse than they already did.

One might quibble on the first point depending on whether one considers there to be only two classes, white and non-white, or multiple classes, white, black, asian etc. However, I agree with the second point for the stated reason.
11.1.2006 3:43pm
FantasiaWHT:
(nm Cornellian got it before my post went through)

Thank you Cornellian
11.1.2006 3:45pm
Houston Lawyer:
I think it's pretty clear that all of the above-cited benefits accrue from global warming.
11.1.2006 3:51pm
Captain Holly (mail):
I think it's pretty clear that all of the above-cited benefits accrue from global warming.

No, no, NO! There are no benefits from global warming, only horrible, disastrous, and insurmountable consequences!

[/thread hijack]
11.1.2006 4:05pm
FantasiaWHT:
And the birth rate has been strongly correllated to the number of storks roosting in Holland ;)
11.1.2006 4:06pm
Mark V. (mail):
I'm already sold on the idea of gay marriage, and I apologize if I'm repeating something somebody else has already said in a prior comment (too many, and I'm late for a thing), but is there any chance the explosion of Muslims in the population at large has had something to do with the increase in heterosexual marriage rates and decrease in out of wedlock births? That could account for the increase in socially conservative behavior, couldn't it?
11.1.2006 4:18pm
Brent Michael Krupp (mail):
I'm with Mark V. posting above. I can't take this study seriously without being reassured that they corrected for the surge in Muslim immigration to Scandanavia. More Muslims would certainly make marriage and divorce numbers look better, quite aside from any SSM stuff.
11.1.2006 4:48pm
Caliban Darklock (www):
@ Randy R:

> I don't really care whether it is socially
> acceptable to you [...] I ask only the same
> respect from you.

And you get it! I don't care whether you can get married. Therefore, if there's an initiative to make gay marriage legal, I don't care and don't vote for it.

But that's not really respect, is it? That's part of the problem: you claim you need the same respect that you give us, but you don't actually give us respect. In fact, you don't give us much of anything.

@ Captain Holly:

> There was a news item a little while ago
> that reported the percentage of unmarried
> households has surpassed the percentage of
> married households

I saw that. The margin is tiny. Amusingly, it's expected that this minor discrepancy will be more than erased if we legalise gay marriage.
11.1.2006 5:02pm
CJColucci:
the explosion of Muslims in the population

Yet another phrase better re-phrased.
11.1.2006 5:07pm
Randy R. (mail):
Caliban: And you get it! I don't care whether you can get married. Therefore, if there's an initiative to make gay marriage legal, I don't care and don't vote for it.

Terrific. So at the end of the day, I can't get married because of people like you. And that you consider respect?

My point to the other person was that she objects to gay marriage. Why should she care whether I am married or not -- to me, that's an argument for letting me marry, and let me worry about the consequences.

But the bigger point of this post is that it removes on of the few arguments against gay marriage. I can't wait to hear how On Lawn will argue out this one!
11.1.2006 5:21pm
Hans Bader (mail):
I agree with Randy R. that gay marriage cannot be blamed for the enormous divorce rate, and that other factors, such as no-fault divorce, are more plausible culprits.

I wasn't taking a position against gay marriage in my comment. I wasn't discussing gay marriage at all.

I was discussing prenups, which don't foster divorce, and which foster sensible financial planning.

Prenups actually reduce divorce by eliminating financial incentives for divorce.

In at least two thirds of the divorce cases I have read in which a prenup was at issue, and the case listed the party who initiated the divorce, the party who initiated the divorce was the one challenging the prenup.

And the cases were typically no-fault divorces sought against well-behaved, middle-class husbands.

(Most divorces are sought by wives: at least two thirds of all divorces, typically no-fault divorces. And most prenups are challenged by the wife, not the husband).

Cornellian makes the intuitively appealing argument that a prenup waiving "equitable distribution" would result in unfair distribution of property, thus actually fostering divorce.

But "equitable distribution" is a term of art, and in practice, it can be anything but equitable. Some times, the judge's division of property is fair, sometimes it isn't. Two similarly situated wives (or husbands) can receive radically different treatment from different judges in the same state -- or even from the very same judge.

(Different states vary a lot in how they approach divorce law -- for example, Missouri courts are more generous to impecunious spouses than Virginia in "equitable distribution," but less generous with regard to alimony).

Prenups often provide clearer rules for division of property than the vague maxims of divorce-law equitable distribution jurisprudence. They can also take into account tax rules, accouting concerns, and desires to provide for the children of previous marriages.
11.1.2006 5:54pm
Chumund:
It makes perfect sense to me that prenups would reduce the divorce/marriage rate by discouraging abuse of the default marriage rules.

Of course, I am sure that there is some complicated norm-weakening story which concludes otherwise.
11.1.2006 6:16pm
Chumund:
By the way, "divorce/marriage" represents "divorce per marriage" (if it wasn't clear).
11.1.2006 6:20pm
Mark V. (mail):
My bad CJ, don't know how that one slipped through.
11.1.2006 6:27pm
lucia (mail) (www):
NRWO: quotes Kurtz >: "Given the fact that marriage has deteriorated more rapidly in the Netherlands than in any West European country over the last decade, the reluctance of Spedale and Eskridge to talk about the Dutch case makes sense. Yet they do treat the issue in their book?

Well... Given Kurtz's laser like focus on the Netherlands, and given his desire to insist "marriage has deteriorated more rapidly in the Netherlands than in any West European country over the last decade", Kurtz's reluctance to consider the data describing the actual marriage rate in the Netherlands makes even more sense.

Let's try something and see what we discover. Visit Eurostats then:
1) find the marriage rate table (under 'people/population/families and births/ marriages),
2) fish out the data,
3) paste the data into an excel spread sheet,
4) subtract the 1995 marriage rate per 1000 persons from the 2005 marriage rate per 1000 persons and then
5) sort by this change in the marriage rate over the last decade?

We find during the past decade, marriage rates in Liechtenstein, Cyprus, Portugal, Slovenia, Belgium, Italy, Hungary all declined faster than in the Netherlands!

Yes, it seems the decline in Netherland's marital rate is at most the 8th largest in the EU. The list of countries with larger marital declines includes several in Western Europe. (I say "at most" the 8th largest because Eurostats web page doesn't have sufficiently complete marital rate data for France, the UK or Turkey.)

Oh, and if you think I picked the marriage rate because that's the best statistic to support the claim that marriage is deteriorating, you are dead wrong. You can repeat this procedure with the divorce rate.

Between 1995 and 2005 the divorce rate per 1000 persons declined in the Netherlands. Not only that, the Netherlands divorce rate has the 6th largest decrease in the EU.

I'll close by noting that while Kurtz may be alarmed at the growth in out of wedlock births in the Netherlands, I think it's safe to say marriage isn't doing at all badly. Or, at least, one should be equally alarmed by the death of marriage in Roman Catholic Italy!
11.1.2006 7:35pm
CLS (mail) (www):
In some ways the worst remarks here, though very honest remarks, is from Kim. He/she (?) says that the empirical data won't make a difference to a lot of people because they are opposed to SSM "in principle". I still work to figure out what the principle is and what is based upon. It seems to be "we're against it because we're against it because we're against it. Two men can't be spouses regardless of what the men think regardless of how long they have been together. Why? Well, because we say so. I rarely see the argument develop beyond this level of "I say so" sort of argumentation.

In addition the argument "children have a right to their own mother and father" troubling. Using "rights" arguments for preferences is not a good thing. If a child does not have a father and a mother has his rights been violated? If so by whom? What recourse is there? I was 12 when my father died. I did not then have a father. Under this logic my rights were violated presumably by the deity or nature depending on your beliefs. Exactly how was my right to be enforced? What we mean is that it is good for kids to have two parents. But to say something is good doesn't have the same impact as claiming they have a "right" to it. Rights are something that trump other arguments hence the reason they are used inappropriately here. In fact they are used here in the sense of positive rights similar to all other socialist concept of rights -- ie that one has a right to something as opposed to the classical liberal concept that rights are requirements that others not do nasty things to you.

The conservative argument that one has a "right" to a mother and a father is similar to FDR's litany of positive rights during the New Deal.

I was raised by a single mother due to the death of my father. Optimal, perhaps not, but that was the hand life dealt us. Would I have been better off with a father? Hard to say, that depends on the father I suspect. But assuming a good man, yes, I would have been better off with a good father than only with a mother. But I also would have been better off with a second parent of any gender. As I see it banning gay marriage may only deny children a better situation than what they have. It is that old maxim of not allowing the perfect to be the enemy of the good.

I find the argument by Jay Myers a bit hard to follow. Is it a slippery slope because lots of people "consider same-sex relationships to be 'socially unacceptable'." (Contrary to his wishful thinking the majority do not think that way. He says he wouldn't have any problem if the majority of the state legislature want SSM since majority rules (no such thing as individual rights there just majority rule). Well, then he should remember that civil unions for gays in Connecticut passed through the legislature. Nor should we forget that both houses in California passed the same thing for gay couples only to have the Republican governor veto it saying, get this, that this is a matter for the courts to decide not the legislature.

He also argues that everybody is equal because everyone has the right to marry anyone of the opposite sex. Thus all parties are treated the same. This would be similar to arguing that a law banning all churches except Catholicism is fair because everyone has the equal right to attend any Catholic church of his or her choice. That some people might be Jewish just is left out of the equation.

As for forcing SSM marriage. What is meant by this? It means allowing other people to marry. It does nothing to the antigay bigot at all. It leaves them alone. It violates neither life, liberty nor property. What bothers them is that want to stop other people and this reduces their ability to control the lives of others. The only people who enter into SSM are there because they want it. So no one is forced. And nothing the law does can force antigay people to like SSM, they can't be made to like it or to approve of it, to attend such ceremonies, or to engage in SSM themselves.

Allowing other people freedom is not the use of force against those who wish to deny that freedom.

Gino takes this weeks award for most absurd, irrational and probably bigoted remark. I am tempted to refer to his "man-on-dog" relationship by questioning his parentage but I will keep it more polite than he has.

Kim is right to bring up natural rights but then assumes that "rights that have never existed before" can't be natural rights and the two are in conflict. That is a very different view of natural rights. He/she(?) thinks that SSM is a "right that never existed before" and this is false. There have been legal sanctions on same sex couples in history and in different cultures. But legal rights are not natural rights. If marriage is a natural right then all people possess it including gays. It would be far better for his/her argument to deny natural rights and claim that only positive rights, enacted by law, exist. I think the natural rights view undercuts the case against gay marriage.

Certainly I would think that if heterosexual marriage is in trouble that the problem would most likely lie with heterosexuals. It does seem absurd to blame trends on what happens to straight couples on gay couples. Certainly if I were greatly concerned about something in my life I would look at what I can do myself to change my problem instead of trying to forge arguments to blame my problems on a third party. Straight marriage had problems long before gay marriage was an issue. Most insurance companies would call this " a pre-existing condition".

And finally the debate might benefit from this video from a Dutch TV show. A kid sings about his life growing up in gay family with two fathers. It upsets the Christianists to no end so those who hate the idea of gay relationships shouldn't watch it. The song is fairly good and the boy can actually sing. Supporters of equal rights for same sex couples will like it. Those neutrel might find value in seeing it. Opponents will have fits. So you were warned.
11.1.2006 8:16pm
Michael B (mail):
CLS, your reductionist formulation is "interesting," it also employs the same type of circular reasoning used by the cited authors.

Eskridge and Spedale subtitle their book "What we've learned from the evidence" when in fact, assuming this article reflects the book, they've learned little and virtually nothing in terms of conclusions or a more positively construed science. A more appropriate subtitle would be "what we're intuiting, hoping and surmising ..." or "how we're leveraging the evidence we've gathered ..." The narrow range of empirical data used to leverage their circular reasoning - in the form of question begging, suggesting cause/effect, strawman arguments, etc. - is so tenuous as to be non-existent vis-a-vis the conclusions they're suggesting.

By analogy one might also note a time when most European countries substantially reduced their military budgets, then, do a study 17 years on, note none of the countries had been invaded/occupied, and therefore conclude, if only suggestively, that reduced militaries have little or nothing to do with national defense concerns. (Studiously turning one's gaze from instances like Rwanda, Kosovo or Darfur; perhaps discounting these instances since they are not internal, domestic concerns.) One of the points being that it is a hugely more sophisticated and complex set of factors which would need to be taken into account before any meaningful or justified conclusions might be reached.

Another analogy, one which more closely approximates a science, would be global climate modeling. ("More closely" since rather than a "social science" with all the attendant human/social indeterminates, climate modeling is at least based much more strictly upon the physical world w/o any human factors, at least so beyond the interpretation of the data, setting up the model and the experiments, and other forms of human error, bias, judgements, etc.) It's not difficult to think of other analogies still. Or, from a different perspective still, it would also be easy to note several negative European trends, such as increased suppression of free speech or demographic problems, and correlate that to SSM in a manner which suggests cause/effect.

A highly specious use of purportedly "scientific" claims, at least suggestively so. I.e., circular reasoning, cherry picking, social policy and ideology along with hoping and guessing - not any type of a more positive science or definitive conclusions, not even close. If they want to argue for policy, fine, but at least in part this is an attempt to forward a policy position via the label of science without the substance, at least so in large measure.

(And no, this is not "gay bashing" or any type of phobia, this is more simply a description of what the authors are attempting to forward. If any phobia is present, it's the authors' ratiophobia, the fear of reason, the fear of a more closely and conscientiously argued position - in this case a social policy position. Transparently acknowledging what one's science does not show, it's limitations, etc. is just as requisite to any more genuine and substantive science as arguing for what one's science does show. This is especially true for the social sciences, where a huge dose of skepticism is most often warranted; also where, when skepticism is being discouraged or frowned upon, one might even venture the guess that ideology and policy decisions are trumping any purported "science".)
11.1.2006 9:02pm
Hans Gruber:
The difference between the same sex marriage movement here and abroad is important. In the US, rhetoric of legal entitlement prevails; abroad the matter is treated largely as one of legislative policy. Is the slope steeper and more slippery for us than them? I think it is.

If Sweden passes a law because it thinks gay marriage is a great idea; how is that analogous to a court finding a legal right to gay marriage DESPITE public consensus it is not a great idea? In Sweden the slope isn't so slippery, because they haven't recognized a right to be recognized as "married" despite public disapproval (the public there actually approves of gay marriage!). As long as the public disproves of polygamy, then it may be discriminated against.

Here in the US, to the contrary, gay rights activists are busy doing their best to establish a legal claim of entitlement despite of public disapproval. That doesn't bode well for legal prohibition of polygamy and incesutous marriage. If public disapproval is inadequate, isn't the slope quite slippery?
11.1.2006 9:08pm
Chimaxx (mail):
Michael B: You've nailed the problem with all of Kurtz's articles precisely.
11.1.2006 9:25pm
Elliot Reed:
Hans - do you really think there are no good reasons to oppose polygamy and incest? Does the case for opposing such things have absolutely no basis but a "disapproval" with no basis in fact or logic?
11.1.2006 9:32pm
Cornellian (mail):
Here in the US, to the contrary, gay rights activists are busy doing their best to establish a legal claim of entitlement despite of public disapproval. That doesn't bode well for legal prohibition of polygamy and incesutous marriage. If public disapproval is inadequate, isn't the slope quite slippery?

Public disapproval is a valid basis for dismissing a constitutional (or for that matter, statutory) claim?
11.1.2006 9:41pm
Michael B (mail):
Chimaxx: disengaged, insubstantial, inconsequential and hapless, not least of all as I haven't read Kurtz and did not refer to anything he's written whatsoever. What I've nailed, or described, are the inferences Eskridge and Spedale are attempting to forward. What your retort reflects is a desire to dismiss, without engaging, indeed, by virtue of avoiding any engagement. And that's telling.
11.1.2006 9:42pm
lucia (mail) (www):
Micheal B:

I'm confused.
On the one hand, you seem to be saying you find a problem with Eskridge and Spedale's main conclusion, which is: "It would be difficult, and suspect, to establish a cause-and-effect relationship between these trends in heterosexual marriage and marriage rights for gays and lesbians."

On the other hand you seem to be saying, "We can't tell anything about the effect of recognizing same sex marriage on the health of marriage based the data Spedale and Eskridge describe".

This sounds to me like you and they both say: We can't tell anything about the effect of same sex marriage on the health of marriage.

Am I misunderstanding something you are saying?
11.1.2006 10:33pm
Joe Schlitz (mail):
Hate to jump the thread but if SSM can be demonstrated not to harm marriage in general, then it's ok with me..but:

1. The burden is on the SSM advocates. Marriage is too important an institution and has been around for too long in it's present form to alter without compelling evidence, and the evidence must be compelling, this evidence aint even close.

2. It must be decided by legislation and not by judicial fiat. Miscengination cases were preceded by some legislative deliberation and action on Civil Rights, there has been no legislative action yet that even comes close. No one here who is discussing this data can even say if it was controlled for the Muslim population, so wake me when a state has developed enough of a consensus to pass true SSM law(hopefully with some long term empiric data behind it)

Until then waiting is the price homosexuals will have to pay society until we can make SSM won't threaten the overall benefits of the society as a whole. No one group's interests, mine included (whatever that included, can ever trump the overall interest of society as a whole
11.1.2006 11:25pm
Hans Gruber:
Cornellian,

The constitutional claims that there is a "right" to gay marrriage; or that such discrimination fails rational basis analysis are meritless. Public disapproval, absent a specific constitutional provision to the contrary, is a sufficient basis for law.
11.1.2006 11:30pm
Michael B (mail):
lucia,

Do you understand the use I put the analogies to? They are highly germane in the prior post, also in what follows.

However, following is the more inclusive quote that you took note of:

"Is there a correlation, then, between same-sex marriage and a strengthening of the institution of marriage? It would be difficult, and suspect, to establish a cause-and-effect relationship between these trends in heterosexual marriage and marriage rights for gays and lesbians." Eskridge and Spedale

I wouldn't characterize that as their "main claim" (and wonder why you do so) and I'm not sure they have a single "main claim" they are forwarding. Also, the inverted form of their logic here belies the fact it's a rather nullish formulation, seemingly used more for rhetorical effect than anything substantial in a scientific sense: i.e. rather obviously no such claim can be made, due in large measure to factors previously noted, e.g., the note about "social sciences" with all their attendant human/social indeterminates and variables. Their statement here is similar to the form where someone passes a remedial math test and then indicates, "Well, this doesn't definitively indicate I'm ready to take on the lead position at the Max Planck Institute." I.e., hardly much of an admission since it's so perforce obvious that one wonders why the statement is made in the first place. It's virtually a form of hubris, not at all rational or scientific, though it does serve a certain rhetorical effect which helps to forward their social policy preference.

Here's another quote from the authors:

"[T]here is no evidence that allowing same-sex couples to marry weakens the institution."

In fact, that's a rather forceful claim and it comes closer to their "main point," imo, but it too is incredibly specious since it serves to leverage their social policy preferences, and does so on the basis of their own extremely limited data, and that doesn't even take note of the skepticism which needs to attend social science claims in the first place. The authors deftly mix a quasi-scientific and pseudo-scientific jargon, for purposes of rhetorical and policy prescriptive effect; theirs are not, first and foremost, closely reasoned scientific statements. They invoke a "scientific" jargon and frisson, but first and foremost they are seeking policy prescriptions. This very much is the type of jargoneering some jurists employ to rationalize their fiats.
11.1.2006 11:36pm
Hans Gruber:
"Hans - do you really think there are no good reasons to oppose polygamy and incest? Does the case for opposing such things have absolutely no basis but a "disapproval" with no basis in fact or logic?"

Moral disapprobation is itself sufficient, constitutionally speaking. Does a law proscribing public nudity appeal to "fact and logic" or merely the social norm that people should wear clothes while in public? If Sweden passed a law providing for "nudist equality" and things went along smoothly, would our courts be justified in overturning our "irrational" laws on public nudity?

I guess you could make some sort of hygiene argument; but would that mean public nudity should be allowed if this was remedied? Our law and our society is suffused with all sorts of moral precepts that don't rely on "facts and logic," but instead rest on fundamental moral and social norms.

Moreover, I think you may be overlooking an important possibility--social morals and customs often reflect an unarticulated wisdom developed over generations of social evolution. The idea of gay marriage, even in societies tolerant of homosexuality, never occurred until recently. Does this tell us something? I think it may.
11.1.2006 11:57pm
Elliot Reed:
1. The burden is on the SSM advocates. Marriage is too important an institution and has been around for too long in it's present form to alter without compelling evidence, and the evidence must be compelling, this evidence aint even close.
Not true, whether from a legal standpoint or a social one.

From a legal standpoint, marriage as it exists in America today bears little resemblance to any institution that existed anywhere in history until the twentieth century. Neither party is legally subordinate to the other: neither can beat the other, control the other's property, force the other to enter into legal relationships, force sex on the other, and so forth. By contrast, marriage throughout history has almost universally been a relationship in which a man is placed in a position of legal authority over a woman. This is a new development even in this country, where marital rape was legal until the 1970's or 1980's. So from a legal standpoint marriage is (thankfully!) a completely different institution from what it was back in the days when women couldn't even own property. And I haven't even mentioned other legal developments like relatively easy divorce.

The same is true from a social standpoint. People are expected to choose their own spouses, to marry for love, to love their spouse. This kind of widespread, individualistic love-marriage is a recent development, and as far as I know no other society has ever had anything like it.

So claims that "marriage has been around for too long in it's present form to alter without compelling evidence" are totally bogus. The current form of marriage (a relationship of love between two equals, neither of whom is legally subordinate to the other) is new. So why regard the one-woman-one-man rule as sacrosanct when all the other stuff wasn't?
11.2.2006 12:08am
Hans Gruber:
Does anybody else find it ironic that Dale Carpenter follow his "The Loving Analogy Is Complete" post with the "Slippery Slopes Are Bull" post? Nah, couldn't be any tension between those....

Listen, I don't buy the Loving analogy for a lot of what I think are very good reasons. But the fact that just about every gay marriage activist thinks this analogy is "complete" and responsible pretty much proves that the slippery slope is real. Just about anybody--even the US Supreme Court--would have categorically rejected the idea that Loving would in anyway support a claim to same sex marriage. The very idea would have been completely absurd. Anybody who suggested such a wacky idea would have been rightly condemned. But to Dale Carpenter Loving is obvious support for this position. Should gay marriage advocates rethink their position on the Loving analogy?
11.2.2006 12:11am
Ken Arromdee:
In addition the argument "children have a right to their own mother and father" troubling. Using "rights" arguments for preferences is not a good thing. If a child does not have a father and a mother has his rights been violated? If so by whom? What recourse is there? I was 12 when my father died. I did not then have a father.

Well, a child's rights are certainly violated if you kill the child. Yet if the child dies of natural causes or an accident, nobody's rights have been violated. If I lock you up in a cave, I'm violating your rights, but if you just fall into a cave and get stuck, there's no violation of rights.

It's the same idea here. Someone's rights are violated only in a situation caused by another person. A similar situation that arises naturally isn't a violation of rights.

If your father died because he was killed by someone, you could say that person violated your rights by taking away your father.
11.2.2006 12:14am
Elliot Reed:
Moreover, I think you may be overlooking an important possibility--social morals and customs often reflect an unarticulated wisdom developed over generations of social evolution. The idea of gay marriage, even in societies tolerant of homosexuality, never occurred until recently. Does this tell us something? I think it may.
I'm sorry, but this all-too-common idea is too absurd to merit refutation. Quite obviously social norms often reflect nothing more than arbitrary prejudices. Consider, for example, the social norms that banned blacks and women from virtually all positions of status or power in either government or the private sector. We had those for centuries in the case of blacks, and all of Western history in the case of women. Should we have kept them around because they evinced "unarticulated wisdom"?
11.2.2006 12:18am
Cornellian (mail):
The constitutional claims that there is a "right" to gay marrriage; or that such discrimination fails rational basis analysis are meritless. Public disapproval, absent a specific constitutional provision to the contrary, is a sufficient basis for law.

I read your earlier comment as suggesting that public disapproval was relevant to the issue of whether such a right existed in the first place, and I disagreed with that point. Lots of perfectly valid statutory and constitutional claims are highly unpopular.
11.2.2006 12:46am
Michael B (mail):
Elliot Reed,

Firstly, they weren't norms in the reductionist, categorical sense your retort implies. For example, in the West women achieved suffrage, variously, but roughly early in the 20th century. And men, millennia prior to that? No, around a century prior to that, in some cases in Europe mere decades. Too, there were all manner of slaves and other oppressed classes in preceding millennia, white slaves, black slaves, slaves in asia and the far east as well. Your simple categorization is precisely that, stunningly simplistic.

Too, which social norms reflect "nothing" vs. which norms reflect something more substantial or even critically substantial is for the demos, the electorate, to decide, not jurists via fiat and an arrogated norm which is forced upon society via those judicial fiats.

We still live in a democratic republic, not a krytocracy (rule by judges).
11.2.2006 1:04am
fishbane (mail):
My point was just that a substantial majority of Americans still believe it's wrong and wouldn't choose to have it legal or ever socially acceptable

... Just like a majority of Americans still believe it's wrong and wouldn't choose to have divorce or single parenthood legal or ever socially acceptable, right? (modulo outstanding circumstances, of course.)

Attempting to take a natural rights view of gay marriage can lead to an internally consistent argument, but one must be consistent for that to work.
11.2.2006 1:30am
Randy R. (mail):
I'm still confused by what Michael B is arguing. Here is a quote: A decade after Denmark, Norway and Sweden passed their respective partnership laws, heterosexual marriage rates had risen 10.7% in Denmark; 12.7% in Norway; and a whopping 28.8% in Sweden. In Denmark over the last few years, marriage rates are the highest they've been since the early 1970s. Divorce rates among heterosexual couples, on the other hand, have fallen. A decade after each country passed its partnership law, divorce rates had dropped 13.9% in Denmark; 6% in Norway; and 13.7% in Sweden."

Now, is Michael arguing with these stats? if so, please provide us better stats. From this simple fact, we know that gay marriage has not adversely impacted either marriage or divorce rates. It doesn't take a brain trust to figure this out.

But even so, as Lucia point out, the researchers were careful to say that one should not draw any causal conclusions. However, at the very least, the idea that gay marriage will 'destroy' marriage as institution finds no ground in these stats.

All I can gather is that Michael B is saying that they whole premise and research methodology is wrong. How so? He states: One of the points being that it is a hugely more sophisticated and complex set of factors which would need to be taken into account before any meaningful or justified conclusions might be reached."

Then please, Michael B., tell what sophisticated and complex set of factors should have been taken into account. Also point to us where Stanley Kurtz HAS taken those same set of factors into account. Also, please tell us why they would come to a different conclusion.
11.2.2006 1:40am
Mark in Texas (mail):
This is certainly something to think about. However I still want legislatures or public votes to make these kinds of decision, not judges.

Given the number of flawed, dishonest and agenda driven studies that we have been subjected to over the last few decades (anybody remember Kellerman?), I'd like to see more than this single study.
11.2.2006 6:59am
mark-o (mail):
Um...isn't it possible that much of these numbers are the result of the large influx of Muslim immigrants to these nations in the past decade--immigrants who usually marry, and seldom divorce?
11.2.2006 9:31am
Chumund:
Hans,

I've appreciated our conversations on this subject and I think you have made a lot of valuable contributions. So I honestly hope you take the following as friendly advice. Recently you have been posting some assertions about what most gay marriage proponents believe. In my view, this is something you should avoid. For one thing, I think it is inaccurate to suggest that gay marriage proponents are monolithic, and indeed in my experience they frequently disagree over everything from tactics (such as whether bringing court cases is a wise or even legitimate strategy) to basic conceptions of marriage and why gay marriage should be supported. For another, if you are not a gay marriage proponent yourself, you really are not in the position to be speaking for them, and it doesn't help your credibility on other issues to take on such a role. In short, I think if you focus on what you yourself believe, and let the gay marriage proponents here speak for themselves, you will end up participating in more rewarding discussions.

On a more general point:

I think Joe's comments about burdens of proof underscore the problem I identified above: it may be extremely difficult for any empirical evidence we can realistically expect to find to satisfy people like Joe, and that is because of the high "burden of proof" he has imposed on gay marriage proponents.

More broadly, it seems to me this is an important form of prejudice against gay people which explains much of the dynamic over this issue. Most people who want to get married--even rather unsavory people, up to and including the likes of drunk strangers getting hitched in Vegas and convicted child rapists getting married in prison--don't have to prove that their marriage will not somehow destroy the entire institution of marriage. So why exactly is such a burden being placed by Joe and others on gay people? Why do gay people, and not all these others, have to prove that their marriages are not so virulent (and metaphors of infection really do seem appropriate here) as to threaten marriage entirely, and indeed western civilization itself?

In other words, I think in most similar cases application of this burden of proof would strike us as ridiculous, if for no other reason than that the numbers involved are so small. But somehow, many people seem to accept the idea that gay people are uniquely capable of working great changes on institutions like marriage, changes in magnitude completely out of proportion to their small numbers.

Frankly, I think that this idea is simply produced by a primitive prejudice against gay people--that like other "taboo" things, gay people have magical powers of infection and corruption that threaten all who come near them--dressed up in pseudoscientific language. Nonetheless, I am willing to keep an open mind, but I think the burden of proof is in fact properly on those who claim that a small number of gay marriages will somehow be able to bring down what is indeed an ancient and pervasive human institution, not the other way around.
11.2.2006 9:40am
David Chesler (mail) (www):
I wonder if marriages with prenups are less likely than marriages without prenups to end in divorce because prenups go along with more planning than "we'll live on love" or "we're in Vegas and we're drunk..." -- that is, if the couple has given all that thought to how they will care for their yet-unborn children in the even of a divorce ten years down the road, they are (or one of them is) the type who've thought enough about where they're going to be in ten years in general that if the marriage is not going to be a good idea, they aren't going to enter into it in the first place.

"The responsibility of this marriage contract, of this trousseau, and of this additional sum, I take upon myself and my heirs after me, so that they shall be paid from the best part of my property and possession that I have beneath the whole heaven, that which I now possess or may hereafter acquire. All my property, real and personal, even the shirt from my back, shall be mortgaged to secure the payment of this marriage contract, of the trousseau, and of the addition made to it, during my lifetime and after my death, from the present day and forever." (Aramaic prenup)
11.2.2006 10:13am
lucia (mail) (www):
Michael B responded to Lucia with >: I wouldn't characterize that as their "main claim" (and wonder why you do so)

Responding to the bit I italicized:

I can explain why I believe this is E&S's main claim. I'll do so at some length because, based on your response to Chimaxx who mentioned Kurtz, I suspect you are not aware of some historical context. (First: no slight intended; there is absolutely nothing wrong with being unaware of Kurtz's claims. Second, I apologize if I am wrong. It will be long.)

I suspect one of the main reasons E&S are writing this book is in response to Kurtz's widly circulated, previously published claim that
A) one can examine the existing historical data, detect negative correlations between passing ssm laws and the "health of marriage" and then
B) one can use this data artifact to surmise ssm itself caused marriage to decline.

I, and many others think #2 is Kurtz's "main claim". Point 1, is his subsidiary, supporting claim.

Historically, one primary counter arguments to Kurtz has been: "You can't assume correlation is causation". That is, Kurtz's B cannot be sustained by Kurtz's point A even if his A were correct.

One of the primary responses of Kurtz's supporters has always been:

C) You are only insisting on that well known logical principle to refute Kurtz's main claim B, because the data-- A supports our position and not yours. If the data were otherwise, you would dump that well known logical principle like a hot potato.

(At which point, to counter C, discussions about the inaccuracy of Kurtz' point A ensue. You may read your criticism of E&S to find the major logical elements of that critcism-- that's why Chimaxx made that crack about your comments. Though, for the record, those disagreeing with Kurtz all think you can't use the very scant historical data to make forceful claims about the effect of ssm on marriage.)

In this historical context, E&S's book is an entry in this "historical argument".

Reading E&S's arguments,I think the "brief summary" of their argument is:

1) The data from Scandinavia show marital indicators generally improved after marital type rights were extended to homosexual couples and

2) We can't attribute this improvement to ssm (due to a wide variety of factors.)

E&S certainly say both these things. Of course more time is spent on #1 because it is a discussion of the existing data. Point 2, relies on the sole statement "B follows A doesn't mean A caused B". It just doesn't take much text to say that. The point, and the full logical argument underlying it are both in the "analysis" and "conclusion" bits of E&S's various publications. Conclusions are typically where one finds "main points".

Note also: the E&S argument "parallels" the Kurtz argument, except that it says we can't use that positive data to support our conclusion. So yes, I do think #2 is their "main point" -- just as I thought Kurtz's #2 was his main point.

(Also, in historical context, demonstrating 1 shows is required to address the counter-counter argument point C above. E&S are showing they aren't insisiting on the logic underlying #2 simply because the data suggests the a trend they might dislike. That is, in the context of this argument, E&S provide data to show #1 not as a major point but as a argument to Kurtz's supporters counter-counter argument C!)

So, to wrap up, that is why I think E&S's #2 is their main point! Evidently, you think #1 is the "main point" and #2 is some sort of apology tagged. We can disagree about that.

I'm mostly trying as you is whether you agree with the logic underlying E&S #2 which is: "B follows A does not mean A caused B." Do you?

---- ---- ---- ---- ---- ----

On to this bit:
Do you understand the use I put the analogies to? They are highly germane in the prior post, also in what follows.


I thought I understood the point of your analogies. I think you are trying to drive home the logic underlying E&S's point #2!

In one analogy you seemed to say that
* western Eurpoean nations substantially reduced their military budgets (A) and
* later weren't invaded (B),
* that doesn't mean reducing their budget prevents invasion.

Absolutely true. This has the structure that "B follows A does NOT mean A caused B".

So: Was that the point of your analogies? Or was it something else?

Because if it is the point then, as I see it, you agree with the logic underlying E&S's #2.

And if you hold this logic, I would think you are trying to make a very forceful point: You are saying we couldn't determine the effect of ssm on the health of marriage from the scant existing historical data even if the data had shown SSM harmed the health of marriage.

(As, in your global change analogy, I think you are saying we can't diagnose global climate change from the scant historical records for temperature record and atmospheric CO2 and you think we couldn't even if the data seems to counter a position you hold. Although, you seem to be alluding to a subsidiary point about the role of using general circulation models, and doing experiments to test the submodels contained in those larger models. )

Anyway, here is my question: Are you saying: We can't use this historical data to detect the effect of ssm on the health of marriage in Scandinavia?
11.2.2006 10:29am
Elliot Reed:
Michael B:
Firstly, they weren't norms in the reductionist, categorical sense your retort implies. For example, in the West women achieved suffrage, variously, but roughly early in the 20th century. And men, millennia prior to that? No, around a century prior to that, in some cases in Europe mere decades. Too, there were all manner of slaves and other oppressed classes in preceding millennia, white slaves, black slaves, slaves in asia and the far east as well. Your simple categorization is precisely that, stunningly simplistic.
Would you mind elaborating on what you mean by this? I can't tell what claim of mine you're attempting to refute. What is "they" in the first sentence referring to? What is the relevance of universal sufferage for white men coming "only" a century before universal sufferage for white women?
11.2.2006 11:03am
lucia (mail) (www):
Randy R asked Michael B :> "Also point to us where Stanley Kurtz HAS taken those same set of factors into account."

So far, I haven't seem Michael B say anything to suggest he's familiar the theories Dr. Kurtz propounds in his numerous on-line and dead tree magazine articles.

Until Michael B says something laudatory about Kurtz's work, I think it's wise to assume Michael B. would use the same standard when criticizing Kurts as when criticizing E&S.
11.2.2006 11:06am
Bob Van Burkleo (mail):
Kim

It's the concept of natural rights vs. rights that have never existed before in human history,


But marriage is a natural right too, its based on the oxytocin/vasopressin mediated mammalian pair-bonding response. This mechanism can make sexually active adult humans pair-bond with a sexual partner regardless of that individual's gender.

That is what's changed from previous 'human history' - we now know that same gender sexual attraction and pair-bonding isn't a pernicious vice or sin but just the totally natural way some citizens are. So we again come down to the marriage questions:

should the state support all of its naturally married citizens pair-bondings equally? If not, why not? Are there really some citizens that are better off being promiscuous and not pair-bonded? How is it in the citizens, the society's, or the state's interest to NOT promote pair-bonding of sexually active adults?

Marriage is a natural right, and that's why all citizens should have reasonable license to the state contract in support of marriage regardless of the gender of their spouse.
11.2.2006 11:28am
Kim:
I completely agree marriage is a natural right, and contra CLS, I don't want to base my argument off positive law - I believe that if the state attempted to outlaw marriage, that would be an illegitimate violation of a natural right. But marriage is not the same thing as SSM. There is a natural right to marriage, but not to "marriage" to someone of the same sex. The fact that homosexuality exists, and has existed, in some small numbers doesn't tell us anything about its moral or qualitative standing - lots of things occur in nature that are nevertheless "pernicious vice or sin." Humans have lots of different desires, some of which are pernicious to act upon. Your point seems to turn on an understanding of natural law as "things that occur in nature," but this isn't the common philosophical/theological understanding. Things that occur in nature can violate natural law, and things do not automatically give rise to natural rights by occurring in nature. It is possible to rationally discern what constitutes natural rights (like those "life, liberty, and property" presumably most Americans would agree with) or the natural law by reason and empiricism - it's not merely a subjective judgment.

As to children having a natural right to their parents, Ken was right - there is a meaningful difference between situations that occur naturally and those that are intentionally caused. In the cases where gay couples (or single people) cause to be born a child who, by design and intent, will be deprived of either their mother or their father, that child is being treated unjustly.
11.2.2006 12:27pm
Chumund:
Kim,

I agree that it is possible to discern what constitutes natural rights, in the natural law sense, through reason and empiricism, and that this is not merely a subjective question.

But, of course, that principle cuts both ways. In particular, those wishing to argue that the love that occurs between gay people--and which leads some of them to marriage--is "pernicious" should be required to do so with reason and empiricism, not merely subjective judgment.
11.2.2006 12:36pm
Bob Van Burkleo (mail):

But marriage is not the same thing as SSM. There is a natural right to marriage, but not to "marriage" to someone of the same sex.


Of course it is - the impulse to do both is caused by the identical biological mechanism - the mammalian pair-bonding response. Each individual human has the natural right to marry because of this biological mechanism, and some people marry those of the same gender. This is not something you can 'vote' on if it is natural or not. if you are claiming they are different then you have to demonstrate they have different etiologies and forwarned there is no indication this is true.
11.2.2006 12:48pm
Elliot Reed:
Kim - that is an interesting and consistent natural law theory, but it is not represented in our laws and as far as I know never has been. A child does not have a legal right to be parented by its biological parents, and adding one would be a major revolution in our family law. Rather, American family law is based on the principle that children are made worse off when parents who don't want them and never did are forced to parent them when there are parents who do want them.

Consider, for example, this not uncommon situation: M and D have sex, and M gets pregnant and suggessfully carries the baby to term. D wants nothing to do with the kid, and M raises it alone. If the law recognized a right to be parented by one's biological parents, then the kid could sue D to force him to visit and be a father to the kid. However, this is not how our law works. D is obligated to pay child support, but the law will not force him to parent the child.

Similarly, if the law recognized a child's right to be raised by its biological parents, then it would be illegal to put a child up for adoption. But this is not the case.

Or consider this scenario. M and D are are married and want to have a kid, but D, because of accident or disease, does not produce viable sperm. So M gets pregnant via sperm donor. Although this is a rare scenario, it is perfectly legal and the child cannot sue the sperm donor to force him to be a social father.

You are of course free to advocate banning sperm donation and voluntarily putting children up for adoption. However, in this case it is you who is advocating for a change in the laws. And in any case it is irrelevant to the gay-marriage issue, because gay couples would still be willing and able to raise adopted children even if it were illegal for them to create new biological children via sperm donation or surrogate motherhood. And would your opinion of the issue change if medical science made it possible to create a biological child of two men or two women?
11.2.2006 12:48pm
Chumund:
Elliot,

Actually, I don't think it is quite right to say that our family law does not recognize a natural right of children to have not just support from, but rather an actual relationship with, their natural parents. In particular, in the context of a termination of parental rights, courts have recognized both a right of natural parents to the care and custody of their children, but also a reciprocal right of children to receive that care and participate in such an intimate relationship with their parents.

But of course this right is not absolute, which explains the situations you describe. In particular, when a court concludes that it would be in the child's best interests to have this relationship terminated (and usually a parent having no interest in such a relationship is a legally sufficient ground), the state can do so. But the courts have acknowledged that this is not only a termination of the parent's rights, but also a termination of the child's rights, albeit because it is in the child's best interests.

Interestingly, though, there is a growing trend in adoption, or in cases where parental rights have been terminated, to allow and encourage the natural parents to continue to have some sort of non-custodial relationship with the child (in the adoption context, these are sometimes called "open adoptions"). Again, these trends (and also the divorce-related rules which already provide for such arrangements) reflect the belief that children can indeed retain an interest in an ongoing relationship with their natural parents under many circumstances.

Incidentally, all of this just goes to show that the state already recognizes the complexity of the interacting rights involved in family law, and rarely takes an absolutist stand. Rather, usually the state is tasked with working through these complicated issues and balancing the respective rights on a case-by-case basis. In that sense, those who wish to take a categorical approach to issues like gay adoption are advocating a departure from the far more case-specific approach the state usually takes.
11.2.2006 1:12pm
Randy R. (mail):
Thanks, Lucia. You are well-named, since your comments are, well, lucid.
11.2.2006 2:02pm
raj (mail):
NRWO 11.1.2006 11:09am

For another take on Eskridge and Spedale, see Kurtz:...

Why? Aside from the fact that the jackass Kurtz himself presents no statistics, a couple of years ago he argued on the NRO website that gay marriage in the US was undesirable because it would discourage American boys from getting married. His reason? Because red-blooded American boys didn't want to see out gay actors as leading men in movies.

Think I'm kidding? Sorry, I'm not.

Kurtz has been on the anti-gay-marriage rampage for years on the NRO website, and has always been shown to be a fool.
11.2.2006 3:16pm
CLS (www):
Kim says: "In the cases where gay couples (or single people) cause to be born a child who, by design and intent, will be deprived of either their mother or their father, that child is being treated unjustly."

Child X is born to a gay couple. You say that is unjust to child X. Is it more just to not be born at all?

Child Y has no parents and is adopted by a gay couple. Is that more unjust than having no parents at all?

My point was if this is a violation of rights as was loosely claimed then against whom is their recourse? Are you saying that a child could or should sue parents who adopt him because they are not the "optimal" parents.

A rights violation would imply the lose of life, liberty or property none of which takes place here. In addition a rights violation takes something away from someone. That is you take something away that they have. This is not done. They are given something but it is not what the antigay crowd think optimal. It is not that gay people go out and snatch children from opposite sex couples thus taking away the mother and father of the child. The child either does not have a mother or father (for whatever reason) or is the child of one of the partners in the gay relationship.

My point about my situation was twisted and ignored. I argued that I was without a father. And that my mother was a single mother after his death. So I'm then fatherless. If my mother moved in with another women how does that make me worse off? It doesn't? And there would be many circumstances where that would be better than a particular man she might marry. There seems to be an assumption that bad heterosexual parents are preferable to good gay parents.
11.2.2006 3:35pm
raj (mail):
lucia 11.1.2006 10:33pm

To Michael B:

On the one hand, you seem to be saying you find a problem with Eskridge and Spedale's main conclusion, which is: "It would be difficult, and suspect, to establish a cause-and-effect relationship between these trends in heterosexual marriage and marriage rights for gays and lesbians."

On the other hand you seem to be saying, "We can't tell anything about the effect of recognizing same sex marriage on the health of marriage based the data Spedale and Eskridge describe".


Apparently, Michael B does not know that gay-marriage opponents, such as Stanley Kurtz, have buttressed their position by claiming that Scandinavian countries and the Netherlands, while opening up marriage and marriage-like rights to same sex couples, have experienced reductions in marriage rates and increases in out-of-wedlock births. Kurtz has published several articles on the topic.

Kurtz's statistics and explanations have been shown to be--to put it mildly--rubbish. See, for example, Prenuptial Jitters: Did gay marriage destroy heterosexual marriage in Scandinavia?. But that's the reason that others have addressed the issue regarding Scandinavia and the Netherlands.
11.2.2006 3:35pm
lucia (mail) (www):
raj: I concur with you. Michael B appears to be unaware of Kurtz body of work on this issue! (Although I figured that out after I posted the question you quoted.)

If Michael B is, indeed saying, "you can't prove much of anything about the effect of same sex marriage on the health of marriage using that sort of historica data!", you won't find me disagreeing!
11.2.2006 4:12pm
Michael B (mail):
Lucia,

Don't have enough time to respond in full, but yes, I now understand what you're saying, thank you. I was not familiar with Kurtz beyond a prior cursory reading and the single reference to him in the original post (making a point "pace Kurtz") was not enough to draw my attention to his writings. Too though, I was not addressing Kurtz per se in either a positive or negative sense (and overtly stated as much). To the extent you've successfully represented Kurtz, I'm not particularly taken with his argument, i.e. I'd need to read him further but you may be correct in noting my critique of Kurtz would be similar to my criticisms of E&S, whom I believe are attempting to forward more positive statements, in favor of SSM, than are belied by their caveats. (Which is not to say I'd dismiss all of what Kurtz forwards, e.g., his emphasis upon the Netherlands.)

"Are you saying: We can't use this historical data to detect the effect of ssm on the health of marriage in Scandinavia?"

I wouldn't put it in such strong terms, I'd more simply say E&S are leveraging their data well beyond what it merits.

Elliot Reed and Randy R.,

Imo my original response to your own comments are sufficiently self-explanatory.
11.2.2006 4:39pm
Michael B (mail):
My position against legally recognizing SSM is perhaps best reflected in Dennis Prager's review (which needs to be read and comprehended, beyond the title and introduction).
11.2.2006 5:08pm
Bob Van Burkleo (mail):
Michael B, an interesting article that depends on a simplistic view of 'homosexuality' as if it were a thing in and of itself, and not an act that can have many etiologies. It is an excellent illustration of how using reasoning of primitive people who had no real understanding of genetics or biological processes prevents a modern mind from grasping the real issues surrounding a problem.

We now know that sex is a biological drive designed into the human animal down to their brain-stem. We now know that men and women are not distinct creatures but amalgams of common genetic blueprints and that every man the blueprints of a female in every single individual. We know that there are powerful hormonally regulated mechanisms that potentially cause adults to affectionally bond with a sexual partner, making them want to build a continuing relationship together and some only do so with partners of the same gender. That there are mechanisms that make people in such coupled relationships happier, healthier, and better members of society just by being in them.

Using ancient myths and spurious philosophical rationalizations based on incomplete knowledge to justify actions is inherently and obviously flawed. A reasonable solution must actually use reason that encompasses all the current knowledge - humans are sexual beings and they and society are better off if they are able to express this even if done so in a regulated manner, even if some do so with someone of the same gender.
11.2.2006 5:46pm
Fran (mail) (www):
Kim said:
It is possible to rationally discern what constitutes natural rights (like those "life, liberty, and property" presumably most Americans would agree with) or the natural law by reason and empiricism - it's not merely a subjective judgment. (emphasis mine)

Liberty from Merriam-Webster Online:
1 : the quality or state of being free: a : the power to do as one pleases b : freedom from physical restraint c : freedom from arbitrary or despotic control d : the positive enjoyment of various social, political, or economic rights and privileges e : the power of choice

Equal treatment also seems to suggest that a series of benefits offered by the state, in support of marriage, should not be restricted by same sex marriage.

It seems that you are arguing that marriage is a natural right for pro-creation and/or bonding and that society should help that.

If marriage is designed to help stabilize society and benefit those who rear children...then it would seem that it would benefit SSM people and society if they were offered the same legal rights and obligations.
11.2.2006 5:50pm
Jon Rowe (mail) (www):

Listen, I don't buy the Loving analogy for a lot of what I think are very good reasons. But the fact that just about every gay marriage activist thinks this analogy is "complete" and responsible pretty much proves that the slippery slope is real. Just about anybody--even the US Supreme Court--would have categorically rejected the idea that Loving would in anyway support a claim to same sex marriage. The very idea would have been completely absurd. Anybody who suggested such a wacky idea would have been rightly condemned. But to Dale Carpenter Loving is obvious support for this position. Should gay marriage advocates rethink their position on the Loving analogy?


Here's the problem though: If Loving doesn't necessarily lead to gay marriage, then gay marriage doesn't necessarily lead to those "other" things.

I think one can say that interracial marriages, gay marriages, polygamous marriages, incestuous marriages, and so and so forth are equally distinguishable from one another on a moral and legal plane. Same-sex marriage advocates argue that Loving leads to same-sex marriage, but then the slope stops. Well, maybe that's not true. But it's equally false that somehow same-sex marriage is connected to polygamy, incest, etc., in some meaningful way, but none of these are connected to interracial marriage.

In other words, if the slope exists, then Loving leads to same-sex marriage. And folks could have raised that very issue as to why we shouldn't allow for interracial marriages (and in fact, they did). So were they right? Should Loving have been decided the other way on the basis that it one day might lead to gay marriage?
11.2.2006 5:50pm
Michael B (mail):
Bob Van Burkleo,

Seemingly that made you feel better, but the article depends upon no such simplistic view or single etiology. Your other assertions are of the same piece.

It's a huge topic from any number of perspectives, but your assertions are themselves examples of unfounded characterizations forward with a sophistical gloss.
11.2.2006 6:14pm
Michael B (mail):
Essentially what you've said, via mischaracterizations, is that you're modern, hip and smart and the argument presented is not; a set of general statements/assertions that would not withstand close scrutiny as measured against the article and modern science/knowledge. Your holier-than-thou assertions, via a smarter-than-thou and more-modern-than-thou set of characterizations will not hold up to scrutiny.
11.2.2006 6:20pm
Colin (mail):
Michael B,

Why so dismissive of Bob's argument? He specifically identified particular flaws in the article and described the issues a complete and reasonable analysis would include. Your flouncing, tout court dismissal of his response doesn't even begin to address what he actually said.

And I can't help but highlight your statement that Bob's "assertions are themselves examples of unfounded characterizations forward with a sophistical gloss." Oh, Michael B., there is a beam in your eye.
11.2.2006 6:39pm
Hans Gruber:
Rowe,

I did say that I don't buy the analogy whatsoever. So, no, it shouldn't have been decided the other way because of a fear of slippery slopes. Slippery slope rationales would not pass strict scrutiny even if we applied them in the Loving case. I may even be more fond of slippery slope arguments that Professor Volokh, but I don't think that highly of them!

Racial discimination, as most commenters here know, is treated under the highest scrutiny the Constitution affords; state actions discriminating on the basis of homosexuality, polygamy, and even bestiality are all treated under the same standard, rational basis analysis. At least constitutionally speaking, it seems to be true that the slope from treating race and homosexuality in similar ways is a greater leap than treating homosexuality and polygamy in similar ways. In other words, we may be already near the bottom of the slope, at least in a legal sense.

I think it's intellectually bankrupt to speak of the Loving analogy being "complete," and then in the very next breath dismiss the possibility of a slippery slope to polygamy from SSM. SSM advocates who believe these things need to change their opinion about the relevance of Loving or change their position on the possibility of slippery slopes. I don't see how they are compatible.

Oh, and a brief comment if it wasn't already obvious: If it comes to a battle against polygamy and polyamory, I won't be arguing Goodridge and company necessitate legalization/equalization of polygamy and polyamory. Unfortunately, however, not everybody always agrees with me. =)

This is just another example of why I am beginning to form the opinion that it is the means (judicial fiat) and the rhetoric (gays have a constitutional and natural right to SSM) of the SSM movement which is the real enemy; if we treated each case as distinct and as a matter of legislative policy, the slippery slope risk would be greatly diminished.
11.2.2006 6:49pm
Michael B (mail):
No Colin, zero excerpts and a lot of general statements/assertions were provided. I'm not taking the bait.

Put differently, the article works in tandem with and in a manner which is not contradictory of modern science or knowledge. Ideology, yes, it works to confront aspects of contemporary social policy interests and ideological interests, but in terms of well founded and soundly defensible modern science and knowledge, nothing in the article is refuted and neither does the article contradict defensible aspects of modernity.

Or, more specifically, if you or Bob would like to excerpt certain passages and then explain why they run counter to defensible categories of modernity (epistemological or otherwise), then please do so. But I'm not taking the bait of such general, sweeping statements.

I'd suggest neither you or Bob will be able to do so.
11.2.2006 6:56pm
lucia (mail) (www):
Michael B:
I wasn't expecting you to "respond" to all of that. It was long, but I didn't intend most of it to represent any as any sort of "argument". It's just background that affects how I interpret the meaning of the E&S quotes which Dale took from their recent op-ed.

Likely none of us can make a full assessment of the E&S work without reading the book, which presumably would include the data and cite sources.

I'll leave you to read the Kurtz's stuff on your own and see whether or not you can make heads or tails of it. I am afraid, the material is scattered all over the web!
11.2.2006 7:01pm
Hans Gruber:
Chumond,

I'm sorry you were offended or offput by my comments. I, too, have enjoyed our exchanges. I think it's especially important to avoid generalities when you're accusing a side of something terrible, like bigotry. But I was just making the observation that the vast majority of SSM activists believe Loving supports their position. Do you take issue with that generalization and notice I didn't say advocates, I said activists.

And before that remark I think I made a point that SSM advocates are choosing a legal right through litigation rather than a campaign to win over the public. Do you take issue with these generalizations? Are they inaccurate?
11.2.2006 7:04pm
Jon Rowe (mail) (www):

I did say that I don't buy the analogy whatsoever. So, no, it shouldn't have been decided the other way because of a fear of slippery slopes


If one can assert that interracial couples are not analogous whatsover to SSM, then one can likewise assert SSM is not whatsover analogous to polygamy, incest, bestiality marriages, etc.
11.2.2006 7:09pm
Jon Rowe (mail) (www):

Racial discimination, as most commenters here know, is treated under the highest scrutiny the Constitution affords; state actions discriminating on the basis of homosexuality,


And again, according to the logic of Loving, a ban on SSM is gender discrimination, which unlike polygamy, incest, bestiality, etc., receives heightened constitutional scrutiny. There is, therefore, just as much "legal" difference between interracial marriages and homosexual marriages on the one hand and homosexual marriages and PI&B marriages on the other.
11.2.2006 7:13pm
Michael B (mail):
lucia,

Again, thank you, yours was a thoughtful and well considered reply and I completely understand your position, though too I'm not particularly drawn to Kurtz, trusting in your characterization. Too, I would probably attenuate, at least in part, some of my earlier statements vis-a-vis E&S now that I understand the frame of reference relative to Kurtz - though only in part. Again, if I had understood the "pace Kurtz" reference in the original post I would still hold my position vis-a-vis E&S, albeit in an attenuated form.
11.2.2006 7:19pm
Lawstsoul:
"Essentially what you've said, via mischaracterizations, is that you're modern, hip and smart and the argument presented is not; a set of general statements/assertions that would not withstand close scrutiny as measured against the article and modern science/knowledge. Your holier-than-thou assertions, via a smarter-than-thou and more-modern-than-thou set of characterizations will not hold up to scrutiny."

Michael B:
Spare us the righteous indignation. Next you'll be demanding that Bob apologize to the troops.
11.2.2006 7:23pm
Hans Gruber:
Rowe,

A quick response before I'm off. Not recognizing SSM does not favor one gender or another; it cannot be properly viewed as gender discrimination. The law in Loving was intended to promote the idea of white supremacy, and it actually didn't apply equally to all races (hispanics, asians, and blacks all could intermarry). The Loving logic does not support a gender discrimination outlook for SSM. Sorry.
11.2.2006 7:24pm
Caliban Darklock (www):
@ Randy:

> So at the end of the day, I can't get married
> because of people like you.

Nope. It's because of people like YOU. Keep reading.

> And that you consider respect?

No. Let's read the REST of my post:

"But that's not really respect, is it? That's part of the problem: you claim you need the same respect that you give us, but you don't actually give us respect."

See, when you whine about the first half of my post while completely ignoring the second half, that's essentially lying to everyone who doesn't go back and read my entire post. And that's disrespectful.
11.2.2006 7:46pm
Jon Rowe (mail) (www):
Gruber:

Nope. The logic of Loving tells us a ban on SSM is indeed gender discrimination. Listen to one of the key the Framers of the 14th Amendment, Illinois Republican Senator Lyman Trumbull, on the matter:

"If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either."

And simply substitute gender for race:

"If the man is denied the right to marry a man, [and] the woman is equally denied the right to marry the woman, I see no discrimination against either."

You argue exactly what Trumbull does. And btw, Trumbull's statements are a clear expression of the original expected application of the 14th Amendment. So if that's your standard, Loving was "activist."
11.2.2006 8:32pm
Mikkel (mail):
Sorry if this was already mentioned (although I read pretty closely the thread is so long) but I kept reading that legal recognition for gays isn't supported by "the majority." This is not true anymore. A small majority supports unions even though only a quarter to a third want it to be called marriage. In a way I think gay right's supporters should be trying to keep these issues as much in the legislatures as possible so there isn't such a backlash from rulings by "activist judges."
11.2.2006 8:40pm
Mikkel (mail):
Michael B I read the link you sent and there are a few problems with its assertions. First of all, most of the Biblical laws regarding sex and marriage were about property rights, not about personal rights. "And as a result, it ensured that sex would in fact be "fundamentally interaction" and not simply "a doing of something to someone"," is simply not entirely accurate. This overview (the second half) comments on how this created rules we would find disturbing today. It also claimed "Judaism demanded that all sexual activity be channeled into marriage." This isn't particularly true, it was more concerned with reproduction and making sure inheritance rights were simple. After all, Sarah had Abraham father a child with Hagar and they weren't married. The same with Jacob and Rachel's quest for an heir, etc. There are also numerous accounts of Jewish heroes having sex with servants or whatnot, the real point was that it wasn't with other Jewish women that would cause problems if they got pregnant. In fact God killed Onan because he refused to impregnate his bother's wife and instead "spilled his seed on the ground." (I won't get into it now, but the social custom around this was interesting.)

I agree he has a point about societies that accepted homosexuality treating women poorly...but then again most societies that didn't (don't) accept it still treat women poorly, or in some cases even worse. Actually to be honest, there are very few cultures that have ever accepted "homosexuality" anywhere close to what it means in the current context. The closest would be Native American tribes where a "dual-spirited" person could decide to live as the opposite gender and take a spouse of the same sex. Even then that's not exactly an equivalent because that was more about transexuality than homosexuality. The vast majority of cases are not life time monogamous commitments, so the rules are different.

His reasoning on why homosexuality is unhealth is very specious in my opinion because he pretends (I'm not saying dishonestly I think it was an honest attempt) to look at it from "scientific/moral" viewpoint but just uses a religious one. First of all he immediately frames it as, if there is a choice it can be suppressed, but "yet, if this argument is true, if society can successfully repress homosexual inclinations, it can lead to either of two conclusions -- that society should do so for its own sake, or that society should not do so for the individual's sake." He immediately assumes that gays are a negative for society, which is sort of what this thread is about -- you can't assume that based on this particular piece of data. In fact, it is very possible that gays could act very positively by being able to assume roles that are unique and beneficial to society. For example in some societies "real homosexuals" (i.e. not married) would help mediate conflicts between men and women. He also glosses over the fact that all times I've ever heard gay men talk about their sexual experiences with a woman they were at worst repulsed to near nausea and at best merely "doing something to someone," which he said above Judiasm frowns upon as well. He briefly addresses this in the next section but then just says "we may then ask whether someone who chooses to love the same sex rather than the opposite sex has made this decision from a psychologically healthy basis" as a complete rhetorical question. Then he says it's not normal because men were "created" to have sex with women. Well that combined with the conclusion shows the entire exercise was to just look at it from a religious point of view. This is perfectly acceptable and if you agree with him of course that's your right. You can even try to convince other Jews/Christians to not accept homosexuality from a religious standpoint. However what I do object to is when he pretends to look at if from a psychiatric point of view or when people against SSM ramble on and on about how it will damage society using pseudoscience and protests that we should only legalize the "ideal" while ignoring reality. I agree this study tells us nothing from a scientific standpoint and quite frankly I don't think the personal commitments of 2-3% of the population will ever have an effect on the majority. If it did I would have to question why they are worrying about that instead of their own lives. When I read Randy R's posts I view them as just saying "if you don't care then why not let me get married and if you do care then please be honest and say it's because of religion because there are no facts to support otherwise." To me that's a fair assertion.
11.2.2006 8:43pm
Elliot Reed:
A quick response before I'm off. Not recognizing SSM does not favor one gender or another; it cannot be properly viewed as gender discrimination. The law in Loving was intended to promote the idea of white supremacy, and it actually didn't apply equally to all races (hispanics, asians, and blacks all could intermarry). The Loving logic does not support a gender discrimination outlook for SSM. Sorry.
First, I don't think the court has ever ruled that forcing people to submit to stereotyped notions of gender roles doesn't constitute sex discrimination if it disadvantages both sexes equally.

And in any case this test produces the wrong result in some really obvious hypotheticals. For one, it indicates that the Loving should have come out the other way if the law had been a true equal-opportunity anti-misceganation statute: in other words, that the law could have been made constitutional by treating black people even worse than it already did.
11.2.2006 8:52pm
Michael B (mail):
Lawstsoul,

Not righteous indignation, rather a characterization to indicate I'm not taking the bait of his arrogated smarter-than-thou or more-modern-than-thou set of assumptions. If indignation was implied it's entirely secondary and incidental, not primary and certainly not intemperate, even to the contrary.
11.2.2006 8:53pm
Randy R. (mail):
Michael B: You stated that the report by E&S failed to consider a complex set of factors. I asked you to identify those factors. You said that you did. Where?

"One of the points being that it is a hugely more sophisticated and complex set of factors which would need to be taken into account before any meaningful or justified conclusions might be reached. "'

But all you did was use analogies of military budgets and global warming. You never identified the complex set of factors that E&S *should* have used.

Please tell us. Of if you don't want to type it out again, then please just block quote it from your previous post. And you certainly haven't shown us that E&S didn't actually take into account these complex factors.

If you are going to knock a research paper, you have to give actual reasons, not just allegations of impropriety.

Better yet, why don't you tell us exactly what E&S are wrong about. Their conclusions? What would be the proper conclusion, in your view, assuming you account for the complex factors.
11.2.2006 9:55pm
Randy R. (mail):
Otherwise, Michael B, we just have to assume you don't like the paper because it reaches a conclusion you don't like. Which is a fine opinion, but at least say that's it's an opinion, not a scientific expose.
11.2.2006 9:57pm
Hans Gruber:
Rowe,

You ignored each point of my post and just reiterrated your previous position. The statute struck down in Virginia was not racially neutral, because it only forbade blacks and whites from intermarrying (minorities were free to intermarry).

Also, the obvious and explicit purpose of the the statute was to promote white supremacy. The purpose of excluding SSM from state recognition is not to promote one gender over another. In fact, the policy has zero effect on gender equality.

A common retort on the anti-SSM side is that the law isn't discriminatory because it applies equally to homosexuals and heterosexuals. That's true, of course, but doesn't the law still discriminate against homosexuals because they have no desire to marry some one of the opposite sex? Yes, the law is discrimnatory because it favors heterosexuals over homosexuals. But this is a standard of weighing how the rules broadly apply to each group. When you apply this same paradigm to determine whether the law is discriminating on gender by refusing to sanction SSM, you come to the conclusion that the law is actually gender neutral.

Why is the group preference/advantage test used for one situation and then abandoned in the next? Saying that SSM is a gender equality and/or discrimination issue is specious at best. The courts will do well do neglect this argument. It's weak and, worse, it is fundamentally dishonest.
11.2.2006 10:09pm
Michael B (mail):
Randy R.,

As previously noted I've already addressed the subject.

Mikkel,

Re, this essay. I appreciate your attempt, though I disagree throughout and disagree with most of your own assertions. However will address three or four points only.

Where you cite the article indicating "And as a result, it ensured that sex would in fact be 'fundamentally interaction' and not simply 'a doing of something to someone'," and then submit that such "is simply not entirely accurate," this misses the point. It doesn't suggest it's "entirely" representative of all the motivations which went into that stricture and guideline, it more simply suggests what one of the critical outcomes of that general rule was. It's as if you've adopted a certain attitude (i.e. oh, it's a "religious thing" and I'm smarter than that) and therefore are launching into some rather simplified construals and assumptions.

Too, I don't want to presume to address any Jewish theology or interpretation, but when you note there were all manner of exceptions, neither I nor the article would object to that in the least. There were plenty of exceptions, but they are exceptions which serve to highlight the general rule in the first place, not deny it in terms of its historical validity nor in terms of its power in helping to effect civilizational germinations or genesis - and stability.

Or this: "Actually to be honest, there are very few cultures that have ever accepted "homosexuality" anywhere close to what it means in the current context."

Firstly it's not primarily a matter of your "honesty," it's a matter of your own understanding of and interpretation of history. Too, your own assertion here contradicts huge swaths of history in antiquity (an aspect addressed in the essay), so I disagree with your understanding and interpretation, though I don't doubt your "honesty" in terms of attempting to convey what your understanding is.

Also, and perhaps you're unable to refrain from a certain predisposition and judgemental attitude since the subject, in part, is the biblical narrative and religion, but you evidence a rather simple and moralistic take on aspects of the narrative, such as the Hagar/Abraham narrative. Sorry, but the biblical narrative is not a moralistic tract any more than it's a utopian/moralistic effort, a la Marx, it's a deeply human narrative first and foremost and moralistic reductions are simply not what the essay invokes. (This same attitude evidences itself in the essay you recommend.)

Many points in that essay could be addressed as well, one example. It notes a study by a Gene Abel, citing the following quote in order to minimize any gay/molestation correlation:

"[M]ost men who molest little boys are not gay. Only 21 percent of the child molesters we studied who assault little boys were exclusively homosexual. Nearly 80 percent of the men who molested little boys were heterosexual or bisexual, and most of these men were married and had children of their own."

Three or four problems from a purely rational perspective alone. Firstly, 21% is far more than the percent of homosexuals in the population, hence by this account they are already over-represented. Secondly, bisexuality is a category which is often directly associated with homosexuality, so it seems a bit disingenuous not to segregate the bi-sexual instances of molestation from the purely heterosexual instances.

Regardless though, and I need to close here, I don't care to moralize about or simplistically judge individual homosexuals. To the contrary, I strongly believe and affirm all manner of etiologies are evident, virtually a highly diverse continuum thereof, and also strongly believe and affirm compassion and consideration and humanity need to be accorded each person. The subject being addressed is first and foremost a civilization one, not personal/individual or moralistic/judgemental, though I understand that that latter category becomes entertwined in it all, albeit in a subsidiary or tertiary fashion only, in terms of what I'm attempting to address. I disagree with you and the gist of your cited essay as well on many more points, but enough for now.
11.2.2006 10:14pm
Chimaxx (mail):
Michael B:

I apologize. I should not have assumed you were familiar with Kurtz, and I thank lucia for doing the heavy lifting I should have taken the time to do. I just assumed it was impossible to read Eskridge and Spedale out of the context in which it was written--one in which way too much political traction was accruing to Stanley Kurtz's wild and wide-ranging hodge-podge of assertions that there is clear evidence that same-sex marriage somewhere over the ocean has caused harm to marriage in general.
11.2.2006 10:23pm
Michael B (mail):
Chimaxx, no apology needed, a misunderstanding on both our parts, my own apologies for assumming too much, please don't take it too personally. Yes, I read E&S here in a manner separate from the Kurtz context.
11.2.2006 11:32pm
Chimaxx (mail):
Michael B:

Or this[Quoting Mikkel]: "Actually to be honest, there are very few cultures that have ever accepted "homosexuality" anywhere close to what it means in the current context."

Firstly it's not primarily a matter of your "honesty," it's a matter of your own understanding of and interpretation of history. Too, your own assertion here contradicts huge swaths of history in antiquity (an aspect addressed in the essay), so I disagree with your understanding and interpretation, though I don't doubt your "honesty" in terms of attempting to convey what your understanding is.


I believe he is starting from the description of history as described in the article you cite--where sexuality is all about the dominance of the penetrator over the penetrated--so that very few past cultures, according to Prager himself, have conceived of sexual relationships, heterosexual or homosexual, within a pairing that is based in relatively equal power dyanmics, mutual affection, respect and attraction. Prager asserts, but does not really argue, that there is some essential connection between acceptance homosexuality and this penetrator-penetrated view of sexuality--but this fails by the very standards you use to criticize Spedale and Eskridge: Even if we accept that these two changes happened at roughly the same time in history (a fairly dubious assertion to begin with), that does not show that they are related.

And where is there space in this history for the sort of mutually pair-bonded homosexual partners who are now petitioning for marriage? Which of the historical cultures Prager describes accounted for something analogous to comtemporary homosexual coequal coupling? Is there a section in Prager's essay that I missed?
11.2.2006 11:36pm
Chumund:
Hans,

As an aside, I don't want to dwell on the advice I suggested above. You can take it for whatever you think it is worth.

Anyway, I think there is indeed a sort of gender discrimination underlying certain sorts of anti-gay marriage arguments. For example, the argument that children need a mother and a father as parents implies that there are two distinct parenting roles and that men are categorically superior at performing one of these roles and women are categorically superior at performing the other. And as Elliot points out, this sort of reciprocal categorical discrimination is unlikely to survive intermediate scrutiny.

That said, I do agree that this is really a side-issue, because I don't think this particular form of gender discrimination is really the primary motivation behind the policy of refusing to recognize gay marriages (rather, I think it is about the gayness of the couple). Nonetheless, I think the underlying discrimination would undermine the constitutional legitimacy of this particular line of justification.
11.2.2006 11:52pm
Michael B (mail):
Chimaxx,

Yes, I see, your clarification; no, there is nothing you missed. In part your justified queries might invoke what would need to be a separately developed adjunct essay - though understand that the linked essay is an abridged form of a lengthier and sourced/footnoted essay entitled "Judaism, Homosexuality and Civilization". (Once read a hard copy version thereof, a long time ago, but have never seen anything other than a hardcopy of the unabridged form.) The abridged form linked in this thread, at a mere four or five thousand words, is something of a "Reader's Digest" version, thus the lack of footnotes/documentation.
11.3.2006 12:44am
Michael B (mail):
Btw, the linked essay and its unabridged form is essentially an ethnographic, anthropological and historical overview, very brief for what it addresses and obviously adjunct and supportive material would need to be developed to answer some of the questions it inevitably invokes. But that's true of most anything, for example all manner of questions, criticisms and doubts came to mind while skimming over the second half of the essay commenter 'Mikkel' previously linked to.
11.3.2006 1:07am
Chimaxx (mail):
Michael B:
I find this post curious:
Btw, the linked essay and its unabridged form is essentially an ethnographic, anthropological and historical overview, very brief for what it addresses and obviously adjunct and supportive material would need to be developed to answer some of the questions it inevitably invokes. But that's true of most anything, for example all manner of questions, criticisms and doubts came to mind while skimming over the second half of the essay commenter 'Mikkel' previously linked to.


Especially when viewed in light of your willingness to impugn Eskridge and Spedale's book based on the contents of a brief newspaper essay:

...assuming this article reflects the book, they've learned little and virtually nothing in terms of conclusions or a more positively construed science. [...] The narrow range of empirical data used to leverage their circular reasoning - in the form of question begging, suggesting cause/effect, strawman arguments, etc. - is so tenuous as to be non-existent vis-a-vis the conclusions they're suggesting.


Is there some reason that we shouldn't extend the same generosity of expectation to Spedale and Eskridge's essay that you want us to extend to Prager's—especially given that they seem to have developed much of that supporting material in the form of a book, while, you suggest, Prager has yet to develop the adjunct and supportive material for his essay—neither for the short version you linked to nor for the longer version that the rest of us have not seen.

At its best, doesn't any such essay depend on a reader to trust that it fairly reflects the conclusions of the longer work that it refers to without reflecting the breadth or depth of the evidence or reasoning?
11.3.2006 10:07am
Colin (mail):
Michael B., on Prager's sermon:

"Put differently, the article works in tandem with and in a manner which is not contradictory of modern science or knowledge."

Prager himself:

"Asked what is the single greatest revelation I have derived from all my researches, I always respond, 'That there had to have been divine revelation to produce the Torah.' The Torah was simply too different from the rest of the world, too against man's nature, to have been solely man-made."

You're right. Clearly, Prager is the very model of a modern major general, with information vegetable, animal, and mineral.

You might find Prager's argument that homosexuality is an un-kosher mental illness persuasive. I find it shallow and based almost entirely on sweeping, unsupported generalizations. ("The Torah's prohibition of non-marital sex quite simply made the creation of Western civilization possible. Societies that did not place boundaries around sexuality were stymied in their development. The subsequent dominance of the Western world can largely be attributed to the sexual revolution initiated by Judaism and later carried forward by Christianity. . . . The acceptance of homosexuality as the equal of heterosexual marital love signifies the decline of Western civilization as surely as the rejection of homosexuality and other nonmarital sex made the creation of this civilization possible.")

I realize that this is an abridged version, but just saying, "Oh, he has sources somewhere else" doesn't rectify the hollowness of his blanket assertions. I find your inability to support Prager's hysterical manifesto, your constant referrals to it, and your refusal to substantively respond to Randy R. or Bob van Burkleo especially amusing in light of your earlier statement: "And no, this is not "gay bashing" or any type of phobia, this is more simply a description of what the authors are attempting to forward. If any phobia is present, it's the authors' ratiophobia, the fear of reason, the fear of a more closely and conscientiously argued position - in this case a social policy position."

I suggest that your arrogant and insulting rhetoric, whether or not it's supplemented with a link to Prager's breathless rant, is not "closely and conscientiously argued." These topics sometimes bring out the worst in some commentors, and you already trend towards clumsy paranoiac ranting. Slow down and try to explain your points more carefully - you might start by answering the questions that were posed to you earlier.

(Speaking of paranoiac ranting, I believe that the object of your anxiety is spelled "kritocracy," not "krytocracy.")
11.3.2006 10:46am
NRWO:
Lucia,

Look at AVERAGE "Live Birth Rate Outside of Marriage" figures for ALL Scandinavian countries compared to the AVERAGE of ALL other European countries.

The figures are alarming: Scandinavia's rate is much higher than the rest of Europe's rate (collapsing across individual countries). No social scientist worth his salt would argue that, at the aggregate level (collapsing across income, education, and all other factors), children who are born outside marriage have better life prospects than children who are born to married people. (There are structural reasons for this: children born outside of marriage are more like to have only one parent and one income.)

How does this relate to SSM? My own hunch is that societies with liberal social attitudes toward relationships (that tend to support same sex and multiple partner relationships, as well as traditional opposite sex monogamous relationships), liberal views about sex (that condone or at least do not judge harshly having sex or children outside of marriage), and fairly generous social services, tend to be more likely to adopt some type of RPs or SSM. That is, social attitudes result in SSM marriage and certain bad consequences (births outside of marriage), rather than SSM (alone) resulting in bad consequences.

LINK
11.3.2006 10:55am
David Chesler (mail) (www):
You might find Prager's argument that homosexuality is an un-kosher mental illness persuasive. I find it shallow and based almost entirely on sweeping, unsupported generalizations.

Although it's apparently a dozen years old, I'd never seen it before.

He makes a good point, that one shouldn't let the little head control the big head, but past a certain age most of us realize that.

Otherwise, he is confounding homosexuality (the condition of being attracted to members of the same sex) with homosexual acts, especially in his proof that homosexuality is a choice.

Apparently what squicks him most, since he attributes it to most people, about male homosexuality is the "lifestyle" -- whether that means he doesn't like Queer Eye for the Straight Guy, I don't know, but he mentions promiscuity, which may the strongest argument in favor of SSM. (His entire thesis is not an argument for heterosexuality, it's an argument for monogamy and a sanctified marriage.)

If Judaism "invented" homosexuality, because prior to that people only thought about who was sticking and who was getting stuck, rather than genders, then it simultaneously invented hetersexuality. (I don't buy his view that prior to Judaism everybody was pansexual.)

Someone once said he reconciled the Levitical prohibition with his otherwise observant Judaism by simply noting "I don't!" (lie with mankind as I lie with womankind) although if he had been bisexual that wouldn't work as well.
11.3.2006 1:02pm
Paul A'Barge (mail):
The signs so far are pointing in the right direction

Are you blogging from Scandinavia? Because if so, good on you mate. Otherwise, here's a fee clue: context.
11.3.2006 2:58pm
lucia (mail) (www):
NRWO:
Yes. Scandinavian countries have high nonmarital birth rates. They have been high a long time -- in fact many years before anyone even dreamed about discussing legalizing same sex marriage. Why they are high is an interesting question, but few suggest the high historic levels were caused by extending marital status to homosexual couples many years later.

If I understand your theory,

* you suggest that liberal sexual and social mores come first and legal recognition same sex marriage later; I'd say that seems plausible.

* you suggest that generous social welfare programs tend to encourage high non-marital birth rates, I'd say that seems likely to me too.

* you suggest that coupling liberal sexual mores with generous social welfare programs lead to even higher non-marital births, I'd say that sounds plausible to me.

None of this suggests that same sex marriage is the cause and non-marital birth rates is the effect.

I suspect you may respond that you didn't say it did; I know you didn't.

As far as I can tell, no one in comments here has suggested same sex marriage either have caused, or will cause, the high non-marital births, others (particularly Kurtz) have. That's why E&S (and others) have been examining the data.
11.3.2006 3:31pm
Chimaxx (mail):
Colin:
You might find Prager's argument that homosexuality is an un-kosher mental illness persuasive. I find it shallow and based almost entirely on sweeping, unsupported generalizations.


There's also the totally unsupported leap from asserting homosexuality to be not normal on some natural law basis (a point that can be argued, though Prager uses shift-in-scale analogy hand-waving instead) to declaring it therefore unhealthy.

Even if you accept the notion (and I don't) that there is a "design" and that homosexuality is outside the design spec (and looking at the good fit of the shapes and dimensions of the various appendages, organs and orifices that people use for mutual sexual pleasure, one would have to suspect that any hypothetical designer either intentionally made them all fit so well together in these various combinations or was incompetent), there still is no justification for the leap from "abnormal" to "unhealthy," because just a few minutes reflection would reveal lots of ways we use our bodies that are extraneous to any arguable or observable "design" that no one would consider unhealthy (one frequent contributor here last year often pointed to using one's nose to hold up one's glasses).
11.3.2006 3:46pm
Michael B (mail):
Chimaxx,

I don't currently have a copy of the lengthier, unabridged version of this essay, though it's something like three or four times the length of the that cited, abridged version and additionally contains scores of footnotes. As to whether additional supportive material would, or would not, need to be developed would depend entirely upon the contents, including the footnotes, of the unabridged form.

Also, in light of belatedly realizing the E&S article was intended as a reply, at least in substantial part, to Kurtz, I have already attenuated my comments pertaining to E&S in a prior comment.
11.3.2006 4:17pm
Michael B (mail):
"Even if you accept the notion (and I don't) that there is a "design" and that homosexuality is outside the design spec (and looking at the good fit of the shapes and dimensions of the various appendages, organs and orifices ..." Chimaxx

No, this is virtually the opposite of what is indicated in the essay, it is not in the least that type of "design" argument, even to the contrary. I wonder if you did in fact read the essay.
11.3.2006 4:24pm
Michael B (mail):
Colin, as for sermonizing, remove the beam from your own eye.
11.3.2006 4:30pm
Chimaxx (mail):
Michael B:
No, this is virtually the opposite of what is indicated in the essay, it is not in the least that type of "design" argument, even to the contrary. I wonder if you did in fact read the essay.


How else does one take his argument: "A man was designed to make love to a woman" just as an eye was designed to see. Homosexuality is abnormal not because it is uncommon but because it is contrary to design. Therefore it is unhealthy.
11.3.2006 4:35pm
Randy R. (mail):
Having read through the Prager essay, I can see where Michael B is coming from. It's a whole load of claptrap and baloney. Nonetheless, there is just enough truth in there to make it seem as though it is a thoughtful essay, and so it lulls the reader into thinking that he is really on to something.

But of course he is not. Basically, it's just a dressed up version of saying that gay people will destroy our society, that gays don't really exist, and if they do, they are mentally ill and can and should be cured.

Anyone who would take such baloney seriously can't be taken seriously either. And the fact that Michael B refuses to back up his statements is enough proof to me that his mind is like cement: mixed and set. I have no further dog in this fight. A bigot is a bigot, no matter how high toned he might appear to be.

Homosexuality: If it good enough for Ted Haggard, it's good enough for me.
11.3.2006 4:37pm
Chimaxx (mail):
Now, now, Randy R.: I think we should just take the good Reverend Haggard's word that he did not have sex with that male hooker, and he bought the drugs but he didn't inhale.
11.3.2006 4:43pm
Michael B (mail):
No Randy, the fact you can't, or refuse to, read and comprehend what has already been written is your issue, not mine. And resorting to ad hominem attacks merely reconfirms your already established approach.
11.3.2006 4:50pm
Michael B (mail):
"How else does one take his argument: 'A man was designed to make love to a woman" just as an eye was designed to see.'" Chimaxx

Yes, that much is true. Do you disagree that man was designed to make love to a woman? (Disassociating any theological content from the term "design".)

However, the essay also acknowledges other orifices can be and are used for purposes of sexual gratification. Note the following extensive excerpt, itself containing an excerpt from Martha Nussbaum, Nussbaum excerpt in bold:

"Before the Bible, the world divided sexuality between penetrator (active partner) and penetrated (passive partner).

"As Martha Nussbaum, professor of philosophy at Brown University, recently wrote, the ancients were no more concerned with people's gender preference than people today are with others' eating preferences:

"Ancient categories of sexual experience differed considerably from our own... The central distinction in sexual morality was the distinction between active and passive roles. The gender of the object... is not in itself morally problematic. Boys and women are very often treated interchangeably as objects of [male] desire. What is socially important is to penetrate rather than to be penetrated. Sex is understood fundamentally not as interaction, but as a doing of some thing to someone..."

"Judaism changed all this. It rendered the 'gender of the object' very 'morally problematic'; it declared that no one is 'interchangeable' sexually. And as a result, it ensured that sex would in fact be 'fundamentally interaction' and not simply 'a doing of something to someone'."

In other words, if it were a simplistic "design" argument, any orifice, human or animal, or even animate or inanimate, could be argued as having been "designed" for sexual gratification. Yes, he states man was designed to make love to a woman, and he is certainly invoking theistic/design categories here, but it's hardly a simpleton's design argument he is establishing in the reductine sense you (seemingly) are ascribing to him.
11.3.2006 5:04pm
Caliban Darklock (www):
@ Randy:

> It's a whole load of claptrap and baloney.
> Nonetheless, there is just enough truth in
> there to make it seem as though it is a
> thoughtful essay, and so it lulls the reader
> into thinking that he is really on to
> something.

It's not even that - it's typical religiously-founded garbage. There's very little truth in it at all; it just uses big words and intellectual-sounding language to convince you the author can be trusted. Unfortunately, it works very well, so if you don't go try to confirm the claims of this document and find them to be bullshit... you might just believe it.

There's a good bunch of logical fallacy in it, too, along with some handwaved statistics that he doesn't source. The TYPICAL male homosexual has had over 500 partners? I don't believe that. I believe there are MANY male homosexuals who have over 500 partners, but I don't believe that's the norm.
11.3.2006 5:09pm
Michael B (mail):
"reductine" lol, s/b "reductionist" (in prior comment)

"It's not even that - it's typical religiously-founded garbage. There's very little truth in it at all; it just uses big words and intellectual-sounding language to convince you the author can be trusted." Darklock

Ah yes, the "we smart, they dumb" argument, and so incisively put. Ironies abound.
11.3.2006 5:20pm
Michael B (mail):
And by the way Darklock, the essay is not "typical" in any sense of the word. Admittedly the well documented, unabridged form would be the better source, but it reflects an anthropological, ethnographic and historical overview of some rather remarkable power, insight and scholarship.

As for your purported "good bunch" of logical fallacy, document it, reveal your auspicious reasoning skills for the world to see, Darklock.
11.3.2006 5:27pm
Randy R. (mail):
The Prager essay is so like every other conspiracy essay I have ever read. They start out in the Mists of Time, back when things were simpler. The authors put in enough truth to lull the reader into thinking that the author has credibility. So then when the author dreams up fantasy things, the reader goes along with it on the assumption that the author might actually know something.

Finally, the author has pulled the argument so far out of whack that you think, wow, we are really lucky that someone like him has identified such a major problem, and that the most reasonable remedy is to kill all those people. AFter all, they are sick, they want to destoy the our world, and worse, they refuse to cure themselves! But of course, the author never advocates violence; rather, he offers compassion and other patronizing comments.

Don't believe me? Just read anything written by thoughtful Holocaust deniers, or the reasonable people who think Jews, or blacks really run the world to everyone else's detriment. There is no lack of these sorts of essays.

Reading Prager, I immediately knew this was full of crap at the very outset, when he says quotes Leviticus 18:22 Thou shalt not lie with a man, as a woman, that is an abomination. Prager gives this command tremendous weight, and that it shows a change in worldview about gay people.

It *sounds* like a reasonable argument, right? Baloney. Read Leviticus however, and you find whole lists of abominations, including wearing clothes of mixed fibers, or sitting on a chair that a menstruating woman has sat upon. Then there are even more lists of things that require stoning to death, including children who talk back to their parents.

In fact, the Bible contains over 400 admonistions about heterosexual sex, and only about three regarding gay sex. So how can Prager argue that this one statement changed the whole world? It's ridiculous on its face.

But the conclusions are the most laughable -- the ones about how most gay men have had sex with women, so therefore that means they aren't really gay! Of the one about how being gay is somehow 'against life.' Or the quote above, about how ancient societies cared only about who was the penetrator and who was the penetratee. Where do I begin to tear these apart? One could perhaps forgive Prager if he was merely trying to simplify a complex notion, but when you deliberately mislead the reader, that's when I quit the fight. It's not even pseudo-science: It's just bigotry wrapped up in high toned language.

You don't like the ad hominom attacks? Too bad. Then give us something that makes sense. Quote from a reputable source, not some guy who has a conclusion and then writes a fantasy to support it. This is as looney as Lyndon LaRouche's diatribes, and they don't deserve even a minute of thoughtful argument.

Michael B is actually very typical of these types of followers. You notice that when people ask for specifics of his statements, he brushes them off. When take apart his arguments, he call them names. Anything to keep from having to actually defend his statements. I asked him twice to give us the set of factors he says that E&S have failed to consider, and each time, he says he already listed those factors. Yet no a single person has been able to find those factors he claims to have listed. And why should he? The conclusion that gay people are harmful to society is so powerful to him that he thinks it obvious. And to have someone as illustrious as Mr. Prager to back him up somehow proves that bigotry is okay.

Sorry, buddy, but it's time to call a spade a spade. I have no more respect for Prager than I would a holocaust denier, a jew hater, a racist, a Tri-lateral Commission or Bretton Woods conspiracty theorist.
11.3.2006 5:32pm
Michael B (mail):
Randy R.,

Good grief. Sorry pal yourself, your contempt is no more than precisely that. And it wasn't a matter of me "not liking" ad hominem attacks, much more simply I was pointing out the tactic being used in order to support your already jaundiced argument. Look in the mirror, that's where you'll find the "spade" you're referring to. And given what I clearly and strongly stated at the very end of this comment, upthread (a comment addressed to you), you can label me anything you care to, doesn't make it so though, in fact your ad hominem labels only serve to reveal your approach to this topic.
11.3.2006 5:49pm
Michael B (mail):
That linked comment was in part addressed to you, Randy.

P.S., pulling out the holocaust denial trope is particularly revealing of that jaundiced approach which serves as your argument. Why not simply call me Stalin, Hitler, Mao, Pol Pot or Ho Chi Minh? You're not that far from doing precisely that. Take a deep breath and relax a minute, you're revealing your argument more and more for what it is.
11.3.2006 5:58pm
Chimaxx (mail):
Michael B:
Do you disagree that man was designed to make love to a woman? (Disassociating any theological content from the term "design".)


1. What you propose in your parenthetical is impossible.

2. Yes, in any of the possible senses that you or Prager could mean it, I disagree.

You claim it's unfair to reduce a man to his parts, but the only analogy Prager offers--to the eye--does just that.

You might as well say a man was designed to walk, a man was designed to eat, a man was designed to have flatulence, a man was designed to cry. All true to the extent that our bodies are well-suited to these behaviors, but none are primary, exclusive of one another, or exclusive of other other behaviors not here enumerated.

And to the extent it is true, it is an overly limited definition of both humans and their sexuality, reducing us to reproduction machines. Not only do I suspect the following is closer to the truth, but I find it leads to a much more rich, generous and satisfying view of humanity: Men's and women's bodies are so well optimized to desire and enjoy sex in various and sundry ways, and to form strong emotional and psychological bonds with their partners, regardless of whether reproduction occurs that they seem almost to have been designed this way. Sexual behavior is always in excess of reproduction in humans, as opposed to many other species, so it clearly provides some other benefit. It is likely that forming strong emotional, psychological, familial and social networks was at some point in our development more important to our survival than sheer frequency of reproduction, and our exhuberant sexuality became an important component of that. The need to always find the proper counterbalance between sexual license and social order has been one of the significant factors in shaping the wonderfully rich and complex variety of human societies.
11.3.2006 6:01pm
Michael B (mail):
"1. What you propose in your parenthetical is impossible." Chimaxx

Oh, Chimaxx. This is a highly sophisticated blog we're commenting in, one which covers legal, social, political, academic, scientific, religious, policy, etc., etc. topics, occasionally in rather abstruse ways - and the typically intelligent and educated people who comment and read this blog know what is being discussed. In asking that question I wasn't pulling the wool over anyone's eyes.

"You claim it's unfair to reduce a man to his parts ..."

Not precisely sure what you're imputing to me here. Though depending upon the specifics it might be either "fair" or "unfair," though I don't care for the fair/unfair terminology as it tends to be highly subjective and thus ambiguous. When discussing societal or civilizational norms, unless one is a complete anarchist or nihilist and disavows that virtually all norms are unwarranted (which would be a norm itself, btw), then fair/unfair becomes too general a set of categories to be very helpful.

"You might as well say a man was designed to walk, a man was designed to eat, ...."

Yes, I agree, and that's essentially the more benign sense which was being suggested. For man/woman sexuality that implies love making itself, also biological reproduction, nonetheless I only meant it in that more benign sense when I asked the question of you.

"All true to the extent that our bodies are well-suited to these behaviors, but none are primary, exclusive of one another, or exclusive of other other behaviors not here enumerated."

Well, yes and no, one needs to begin discussing behaviors in a far more specific sense. Beyond a certain point generalizations begin to cloud the discussion. For example, do you still believe society is warranted in proscribing, both de facto and de jure, bestiality? I don't so much intend to be inciting as to ask a particularly salient rhetorical question in order to highlight what is being suggested.

And to be categorically clear, I'm most certainly not suggesting sexuality be reduced to reproduction - very much to the contrary. But that doesn't rule out all societal or civilizational proscriptions, e.g., the bestiality example again. Still, in large part at least, I do agree with your closing comments in a general sense, though no doubt we have some disagreements once more specific details are discussed.
11.3.2006 6:34pm
Randy R. (mail):
You know, I recall reading these conspiracy theories in the 70s and 80s. Some of you recall them too. They would claim that there is all this scientific proof that blacks are mentally and physically inferior to whites. In fact, as late as the 90s, Charles Murray argued that blacks have an average IQ that is lower than whites, and so lavishing lots of educational resources on them would be a waste of time.

How to respond to such claptrap? Fortunately, we all saw through that (or most of us did). But today, we have people like Prager who argue pretty much the same thing -- that gays are an abomination, are mentally ill, and so on.

And yet I, a gay man, am supposed to argue this thoughtfully and without rancor. Sorry, but I cannot. When you make sweeping and insutling generalizations about a large part of the population, don't expect a tea party.

Here's one little argument, if you must. Prager says that gay people can change their orientation. This is a deliberate lie on his part. How do I know that? Because every single peer-reviewed study ever done on the topic has concluded that once sexual orientation is set, it virtually never changes. And orientation is set by at least the age of 7. (They conclude that it might be set before that, even perhaps before birth, but that it is very difficult to assess the sexual orientation of someone before the age of 7).

The works of the peer reviewed authors have been twisted by people like James Dobson, Paul Cameron and Ted Knight to say the exact *opposite*. As a result, many of these authors have published notices that their research is being abused and the conclusions twisted to say the opposite of what they really say, and disown any notion that sexual orientation can be changed by so-called reparative therapy.

So, for Prager to say the opposite, and claim scientific support for it, means only one of three things:

a) He didn't read the actual research, but is merely repeatedly the twisted lies of Cameron, Dobson and Knight. That means he just accepted the thesis of a highly biased source, and his research is therefore highly suspect.

b) He did read the actual research and twisted the conclusions himself.

c) He doesn't have sources to back up his claims.

Take any three, but it means he's a poor researcher and any conclusions he draws are suspect at best.

And so on. I'm mentally ill, he claims. I'm destorying society. And yet I'm supposed to argue nicely to counter that? Anyone who would cite this article and defend it is taking a direct attack against all gay people out of sheer bigotry, and doesn't deserve niceities. It is no different from defending those smears against blacks, against Catholics, against Jews, against Liberals, or against any group that some coward fears.

Michael B is so blinded by that thinking his thinking that he doesn't even realize what a slur his support of the Prager article really is.

Okay, so here's a challenge to Michael B. You don't agree with anything I said? Then go ahead and *prove* me wrong. Embarrass me in front of all these people: Just list the complex set of factors that YOU said E&S missed in their study and that you have repeatedly said that you listed.
11.3.2006 6:36pm
Chimaxx (mail):
Michael B:
For example, do you still believe society is warranted in proscribing, both de facto and de jure, bestiality? I don't so much intend to be inciting as to ask a particularly salient rhetorical question in order to highlight what is being suggested.

And to be categorically clear, I'm most certainly not suggesting sexuality be reduced to reproduction - very much to the contrary. But that doesn't rule out all societal or civilizational proscriptions, e.g., the bestiality example again.


Taken slightly out of order, I didn't say you reduced sexuality to reproduction. I said that Prager's assertion that "A man was designed to make love to a woman" does so. And it does, inescapably. And when the only design analogy you cite is to the eye, it's clear that you're reducing the humans to their body parts, to their reproductive organs.

On one level, I can't answer your question. What do you mean by "Is it warranted?" By that do you mean: Is it consistent with the overarching principles we have establshed for acceptable social behavior? Then, yes. But I'm not sure that's what you mean by "warranted." You seem to be reaching for something...else.

However, putting aside the notion of warranted versus not warranted, as I said in the previous message we seem to try to find a middle ground between sexual license and social oppression, and one of the principles our culture has come to agree on is that sex is legitimate only when consensual. Animals cannot provide meaningful consent.

Beyond that, I haven't given it much thought and don't really intend to unless an until either an animal is able to provide something we as a society recognize as consent, or someone petitions us as a society to carve an exception from this general rule for certain species and starts providing sincer and cogent arguments for why we should. It seems a waste of time to come up with elaborate arguments and counterarguments to a question no one is raised seriously (H.P. Lovecraft aside) when there are real issues needing our attention.
11.3.2006 7:10pm
Michael B (mail):
Randy,

More addled ramblings together with inapt and incommensurate analogies and equivocations and more. And again, if you read my prior comments, your question has been answered - it pertains to the totality of all realities or factor which impinge upon the topic being addressed by E&S.

One example of your rambling inattentiveness again: "He doesn't have sources to back up his claims."

As previously noted, I cited this version of the essay, but another and lengthier version, with scores of documentation/footnotes, is available, though not online that I'm aware of. That unabridged and documented version is entitled "Judaism, Homosexuality and Civilization".

Colin (Randy as well),

As pertains to your contemptuous note about the Torah, Prager's reference to it, that in no way impugns or denies what I had suggested.

Yes, there are theistic, atheistic and anti-theistic views of life and of the totality of the physical world, the universe and all of reality. Some who variously hold these range of views are rather lame and poorly informed while others are highly intelligent and highly educated along sophisticated philosophical grounds. V. here for a recent post at M/P for a general statement in support of that view. But again, that in no way contradicts or even slights what was suggested and what you seemingly thought you were slighting.

The essay remains an ethnographic, anthropological and historical overview. Additionally it's transparently explicated along entirely reasonable/rational lines such that one may engage, one may agree or disagree with each point, or the entirety, on a rational, philosophical, historical, etc. basis. Likewise I'm prepared to defend similar statements such as 1) the article does not depend upon a simplistic view or single etiology, 2) the article works in tandem with and in a manner which is not contradictory of modern science or knowledge. Ideology, yes, it works to confront aspects of contemporary social policy interests and ideological interests, but in terms of well founded and soundly defensible modern science and knowledge, nothing in the article is refuted and neither does the article contradict defensible aspects of modernity.

We can agree or disagree, but the fact remains, because of the article's transparency and rational approach, we can do so by engaging the subject matter.
11.3.2006 7:26pm
Chimaxx (mail):
Michael B:

So what about the deep flaw I noted earlier about Prager's design argument?

Your responses to me have focused on the parts of Prager's argument that I ceded for the sake of argument (while admittedly making parenthetical asides to hint at my core objections). Even when you cede him his design theories and thinly argued discussion of a kind of natural law to determin what is "normal," what could possibly justify his totally unsupported leap from "abnormal" to "unhealthy"?
11.3.2006 7:35pm
Michael B (mail):
Chimaxx,

I disagree Prager, either in the cited quote or elsewhere, reduces human sexuality to reproduction. Likewise I think you infer too much, especially so vis-a-vis this abridged form of the essay, in noting the analogy with the eye.

By asking "Is it warranted?" I'm not reaching for anything beyond the (general) admission that some societal/civilizational proscriptions are warrranted. Perhaps some nihilistic or anarchist views would submit no proscriptions are warranted, but if you read the context within which I asked this, I think you might be able to give me the benefit of the doubt.

"... one of the principles our culture has come to agree on is that sex is legitimate only when consensual. Animals cannot provide meaningful consent ..."

Firstly I'd note the phrase "one of the principles our culture has come to agree on" reflects the societal and civilizational fundaments being addressed. So given the subject matter, this ends up being self-referential (to that subject matter), thus not too helpful in support of your statement. Somewhat similarly with the notion, or idea, or category, of "meaningful consent". We're essentially addressing some extremely basic categories: civilization and societal, also ontological if not quite metaphysical categories. Hence self-referentials, or basic assumptions, become problematic if the subject is to be addressed conscientiously (and I appreciate your sincerity in this area and as pertains to the subject in general as well).

Good evening.
11.3.2006 7:44pm
Randy R. (mail):
Michael B: And again, if you read my prior comments, your question has been answered - it pertains to the totality of all realities or factor which impinge upon the topic being addressed by E&S. "

Said totality which you continue to refuse to cite.

So let me say what the "totality of all realities" you refuse to address. The totality is that you think that homosexual acts are an abomination, and that gays are threat to society -- those are the 'factors' that you believe E&S failed to address when the stated that gay marriage has no adverse impact on society. Indeed, that is what Prager argues, and you have backed him up fully.

Sorry, but the entire article in contradictory of modern science. (Basically, anything that purports to be ethnographic, anthropological and historical is by definition simplistic. Sheesh, why not also add in a musicological and culinary overview?) it's more akin to creationism than science. As Michael B said earlier: This is especially true for the social sciences, where a huge dose of skepticism is most often warranted; also where, when skepticism is being discouraged or frowned upon, one might even venture the guess that ideology and policy decisions are trumping any purported "science".)

Of course, according to Michael B, we should be skeptical of E&S, but as for Prager, we should accept it all without any skepticism. After all, he is transparent!

Prager doesn't say it, but the last sentence of his essay could easily follow from everything before: And so society is better off without gay people, and to the extent we have them, we should try to make them as hetero as possible.

Fess up, Michael B. Is that your position too?
11.3.2006 7:46pm
Michael B (mail):
Chimaxx, I'll look into your latter question tomorrow or Sunday; I wasn't avoiding it, just an oversight.
11.3.2006 7:50pm
Michael B (mail):
Randy, mischaracterizations and unexamined assumptions throughout your last spiel, once again.
11.3.2006 7:53pm
Chimaxx (mail):
Michael B:

Let me extend that a bit. Prager analogizes to the eye: Even if most people were blind it would still be abnormal. Being blind is certainly abnormal, and it can cause hardship and liability, but is it unhealthy?

Let's look at something gender specific: Most men are able to grow facial hair after puberty. Some men are unable to. The inability to grow facial hair certainly is abnormal. But is it unhealthy?

If the answer to either of these is yes, why so?

If the answer to both is no, then, even if we accept his thesis that homosexuality is abnormal, why is it ipso facto unhealthy? And if it's not ipso facto, then on what does that claim rest?

Prager's essay certainly has other weaknesses, but this is where the wheels come off.
11.3.2006 7:54pm
Caliban Darklock (www):
@ Michael B:

> the essay is not "typical" in any sense of the word

It's "typical" in that it makes outrageous claims with no support, expecting the reader to simply accept them as true because the author is clearly smarter. After all, he wrote an article. It's not like just any idiot can write an article and put it on the web!

Oh, wait, yes it is. How ironic.

> reveal your auspicious reasoning skills for the
> world to see, Darklock.

My pleasure.

"The Torah's prohibition of non-marital sex quite simply made the creation of Western civilization possible."

Jewish monogamy is more important to Western civilisation than Roman engineering and Greek philosophy? I don't think so. That's an extraordinary claim, and I'll need to see extraordinary evidence.

"Societies that did not place boundaries around sexuality were stymied in their development."

That's a tautology. All you have to do when someone points out a society that wasn't stymied is identify some boundary, any boundary, that society placed around sexuality.

"The subsequent dominance of the Western world can largely be attributed to the sexual revolution initiated by Judaism"

As I recall, the Western world dominated through expansionistic policies of exploration and imperialism. How is that the Jewish sexual revolution?

"Among the consequences of the unchanneled sex drive is the sexualization of everything -- including religion."

That's another tautology. If there's sexualisation where you don't want it, you just call it the result of an unchanneled sex drive.

"Unless the sex drive is appropriately harnessed [...], higher religion could not have developed."

Yet another tautology! One merely defines religion which harnesses the sex drive as "higher", and any "lower" religion's harnessing of the sex drive can merely be called "inappropriate".

"Thus, the first thing Judaism did was to de-sexualize God..."

Not exactly. Judaism asserted a God that had no physical form whatsoever, and consequently had no sexual capacity. The de-sexualisation was not the intent, but a side effect.

"This was an utterly radical break with all other religions, and it alone changed human history."

Let me get this straight. Human history was changed SOLELY by the fact that God didn't accomplish the creation through sex? That is a mighty large claim, and I will need to see some mighty large evidence to back it up.

Did you want to see more than that? Because I'd have to hit the "page down" button.

Typical. Religious. Garbage.

It is one thing to believe in God. It is another thing entirely to think that you have a license to sling bullshit in His name.

@ Randy:

> I'm supposed to argue nicely to counter
> that?

YES. It's what separates us from them. Take a deep breath. You only triumph over the retarded when the audience can tell you're NOT retarded.

Remember, we can't convince Michael. He can't see the forest for the trees. We're giving this to the audience. If we don't, his bullshit is all they see, and some of them might believe it. We are giving them an alternative, and trusting them to know who makes more sense.
11.3.2006 8:09pm
Michael B (mail):
Darklock,

Re, your own b.s. and contempt: Typical. Ideological. Garbage.

I'll be back.
11.3.2006 8:21pm
Chimaxx (mail):
Michael B:
By asking "Is it warranted?" I'm not reaching for anything beyond the (general) admission that some societal/civilizational proscriptions are warrranted. Perhaps some nihilistic or anarchist views would submit no proscriptions are warranted, but if you read the context within which I asked this, I think you might be able to give me the benefit of the doubt.


So I take it all you're asking me to do is that I see no particular reason to disagree with this proscription. And I pretty much answered that: Under current circumstances (no anmials capable of consent, no one petitioning us to change this proscription with sincere and cogent arguments, and *I* certainly have no desire to challenge it), I find nothing objectionable about this proscription.

Firstly I'd note the phrase "one of the principles our culture has come to agree on" reflects the societal and civilizational fundaments being addressed. So given the subject matter, this ends up being self-referential (to that subject matter), thus not too helpful in support of your statement.


It may sound self-referential, but it isn't. Laws of acceptable social behavior are created by humans for humans, and they are passed along through time, so that the people living under them are not always or usually the ones who shaped them or consented to them initially. As a child, one lears, these are some of the basic principles we rely on when dealing with other people, and then learn the exceptions, and how to recognize and deal with the people who try to skirt them, You learn them well before you can articulate them. And, barring times of cultural catastrophe, all the arguments are over how to apply them to particular issues and situations, which ones take precedence, not whether to scrap them.

This shows up in the debate over same-sex marriage. Those who oppose it argue that it is a radical change to a fundamental definition undergirding society. Those who are generally in favor see the fundamental issue as one of fairness, equal access to a social good being extended to parties previously denied it.
Those opposed argue that the gender of the marital couple is fundamental. Those in favor look at functioning marriages--many with children, some blessed in the church of their choice--headed by same-sex couples (marriages, that, in their eyes, seem to function identically to those of mixed-sex couples in all ways but access to the legal document declaring the marriage legal) and have trouble understanding what the opponents are talking about.
I have no doubt that most people making the arguments on both sides are sincere (while some few on each side are cynically raising the rhetorical stakes), and that most people on both sides sincerely believe that the principle they argue on behalf of they truly see as more fundamental.

There will be more lawsuits, and more amendments and more bills advancing civil unions and full marriage rights, but ultimately it will be this sort of ongoing conversation that will determine which notion is more fundamental--that a marriage to be valid must have one member of each gender, or that our laws (and society) should offer the same level of legal support to couples who wish to make the commitment of marriage and to the children they raise, regardless of the gender makeup of the couple.

You have brought up bestiality, and others will bring up polygamy and slippery slopes, but they are not at issue now. People go round and round on whether the Loving case bears on this issue, and there is room for disagreement on both sides. But one thing we do have in common: Those seeking the right to interracial marriage did not have to prove that if they were allowed to marry no one in the future would ever petition society to permit same-sex marriage or polygamy or bestiality--or even covenant marriage. They had only to argue their own case, to show that in the ways that matter, they themselves were more like couples who were permitted to legally marry than they were different. That is all that same-sex couples who wish to marry have to do--I say "all," but it is no small thing.
11.3.2006 9:12pm
Randy R. (mail):
Caliban, you are so right. Thank you for the advice and support. It just gets me angry when I see such garbage out there, and then people actually believe.

And you did a great job ripping up some of that baloney!
11.3.2006 10:53pm
Elliot Reed:
The prominence of Western civilization is due to "Jewish monogamy"? Let's see here - Judaism was founded sometime before 1000 BCE. Between then and the birth of Jesus, Western civilization was most notable for the Greek and Roman empires, neither of which anything having to do with Judaism can take credit for. Then we have a thousand years in which Europe is a backwater outstripped by the Arabs and the Chinese. Then the Europeans develop guns, navigation, and modern science, and use them to conquer the entire world. We can credit "Jewish monogamy" for this how?
11.3.2006 10:54pm
Michael B (mail):
"It's [the essay] "typical" in that it makes outrageous claims with no support ..." Caliban Darklock

"My pleasure." Caliban Darklock

"... you did a great job ..." Randy, to Darklock

Yes Mr. Darklock, you gave yourself some pleasure and additionally offered contempt, managing to applaud yourself in the process. But unfounded self-congratulation does not equate to intelligence. What you did provide was diffuse forms of incomprehension coupled with nonsense. Examples, (quotes from the cited essay boldened and Darklurk's replies italicized):

"The Torah's prohibition of non-marital sex quite simply made the creation of Western civilization possible."

"Jewish monogamy is more important to Western civilisation than Roman engineering and Greek philosophy? I don't think so. That's an extraordinary claim, and I'll need to see extraordinary evidence."

What grief. This is your first offering and I'm already wondering what grade-level you've achieved or are currently in. Firstly, the essay is an abridged version of a far lengthier essay, the latter version abundantly footnoted. The unabridged form of the essay is not linkable, though it is available here as a download ($5).

Secondly, what you excerpt here is the initial statement which opens the theme of the entirety of the essay. This is an essay in its abridged form which covers ethnographic, anthropological, historical and other themes; it is not a mathematical proof which can be subjected to deductive, ratiocinated proofs. Hence, for an educated reader, it will inevitably contain passages which will be accepted or rejected depending upon the reader's philosophical, social, political, etc. views; that goes without saying. Too, when you say "I'll need to see extraordinary evidence," that's what the entirety of the essay is devoted to, the abridged version is maybe 5,000 words, the unabridged version 15,000+ words, all devoted to supporting the thesis offered in the opening statement you excerpted.

"Societies that did not place boundaries around sexuality were stymied in their development."

"That's a tautology. All you have to do when someone points out a society that wasn't stymied is identify some boundary, any boundary, that society placed around sexuality."

No, this is not a tautology. Again, you're still quoting from the opening paragraph of the entire essay. Do you even understand how essays are constructed? Or how to read and comprehend them? It's not at all apparent you do. (Additionally, you might consider offering examples of societies that fit your own statement which, ironically, is something of a tautology since it's a barren statement without a supporting essay.)

Then, your third excerpt and response is still quoting from the opening paragraph; hence see above. Proceeding to your fourth excerpt and response:

"Among the consequences of the unchanneled sex drive is the sexualization of everything -- including religion."

"That's another tautology. If there's sexualisation where you don't want it, you just call it the result of an unchanneled sex drive."

Once again, no. This excerpt is the opening sentence of the first section following the introduction. Following this he proceeds to support the statement. Again, do you even understand the construction of a written essay and how to read and comprehend it? It's not at all apparent you do.

Enough. More than enough. You evidence a wastreling disregard for the most basic ability to read and comprehend an essay form, certainly so one which covers this historical and anthropological scope. You evidence literally no ability to differentiate between opening themes and statements and subsequent support of those themes within an essay form. You evidence literally no ability to differentiate between the factual and more speculative aspects of such a theme, and literally no ability to give commensurate weight to those different categories.

And yet, despite all that, you don't hesitate, in the least, to evidence disdain for what you evidence zero ability to even comprehend, much less summarize.
11.4.2006 2:12pm
Michael B (mail):
correction:
And yet you don't hesitate, in the least, to evidence disdain, regardless of your inability to even comprehend, much less summarize and intelligently critique.
11.4.2006 2:26pm