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A compromise on federal civil unions?

From Sunday's New York Times, a joint op-ed by David Blankenhorn and Jonathan Rauch advocating federal recognition of state-conferred same-sex marriages and civil unions, with an asterisk:

It would work like this: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill. . . .

Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together.

Rauch and Blankenhorn are among the ablest defenders of their respective positions, pro and con gay marriage, in the country. Both have written excellent books on the subject. What they say will be noticed by all sides, especially because they say it together. There will be strong objections on both sides: from SSM opponents who oppose recognition in principle and not just for instrumental reasons, and from SSM supporters who will worry about the practical consequences and who will wonder why such marriages alone will be qualified by morals exemptions.

There is much to think about here. A conditional offer of federal recognition would be a powerful inducement to the states since they won't want their recognized gay relationships excluded from federal advantages. For SSM supporters, that's good if it speeds state-based recognition of gay families but not so good if it hollows out that recognition.

My initial and very tentative reaction, as a same-sex marriage supporter, is that the Blankenhorn-Rauch compromise probably gives little away since SSM was never really a threat to religious liberty anyway. As a practical matter, gay families gain a lot in very important federal benefits in exchange for what appears to be barring lawsuits that either weren't -- or shouldn't -- be available. The devil is in the details -- what exactly do "robust religious-conscience exceptions" cover? -- but the op-ed starts a conversation about federal legislation that might be politically achievable in the near future.

John D (mail):
I think this is a bad bargain for same-sex couples.

If the federal same-sex unions had some (impossible) guarantee of recognition in all 50 states, then it might be worth going for. As it stands, it limits the rights of gay people in states where they have non-marriage recognition (civil union, domestic partnership) and downgrades their rights in states where they have achieved marriage equality. Do married same-sex couples want to see their relationships downgraded to a civil union? Is this even just?

Rauch and Blankenhorn dangle this carrot with the stick of "robust religious-conscience exceptions." First they claim that these are unneeded, but they insist that no state's legal same-sex unions would be recognized by the federal government unless the state adopted these protections. It sounds like a license for permanent second-class status for gay people on spurious religious grounds.

Further, this just shifts the battleground. Rauch and Blankenhorn acknowledge that there are people who have strong objections to same-sex unions. That crowd is unlikely to be mollified by people fighting for a lesser status. It just shifts the battle to a worse position. And if we start showing a likelihood of gaining civil unions, should we then compromise further.

I know Blankenhorn is an opponent of same-sex marriage. Rauch has argued against an "anything but marriage" strategy. This article leaves me wondering just what Rauch must be thinking in joining an ABM strategy.
2.22.2009 5:47am
Rod Blaine (mail):
> "These statutes allow Catholic hospitals to refuse to provide abortions, for example"

For now they do. A lot of prominent pro-choicers (Katha Pollitt, for example) consider this allows far too wide a degree of choice for their liking.
2.22.2009 6:13am
Tom G (mail):
"First, most gay and lesbian Americans feel they need and deserve the perquisites and protections that accompany legal marriage. Second, many Americans of faith and many religious organizations have strong objections to same-sex unions. Neither of those realities is likely to change any time soon."

It is a logical fallacy to put these two feelings on the same footing. The desire of gay people to lead their own lives as they see fit and be treated equally is legitimate. The desire of religious fundamentalists to control other peoples' lives and legally punish gay people for violating they're personal religious beliefs is absurd.

That's the same as me bursting into someone else's house and demanding that they redecorate according to my specifications. Then when they refuse, I say "OK well we both have strong feelings about how your house should be decorated so let's compromise"

"What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner or else face legal penalties for discrimination based on sexual orientation or marital status?"

What if instead of a lesbian, the above woman was a straight, divorced woman entering a second marriage with a man. Should her Catholic employer be exempt from granting spousal benefits? What if she was entering her 23rd marriage? What if it is an orthodox Jewish organization and the woman is Jewish but marrying a Christian? Where are the "robust religious exemptions" for these situations?

Religious groups object to many different kinds of marriages for a variety of reasons. Why must an exception be carved out to allow discrimination only for same-sex couples?

The religious employer does not need to recognize the secretary's marriage as religiously valid; they do not have to agree that she is married in the eyes of God. They simply need to recognize that she has made a legal decision and dispense benefits accordingly.
2.22.2009 6:28am
Greg Q (mail) (www):
My initial and very tentative reaction, as a same-sex marriage supporter, is that the Blankenhorn-Rauch compromise probably gives little away since SSM was never really a threat to religious liberty anyway.

Do you really think we're stupid enough to believe that? That we're so ignorant we haven't heard of Bob Jones University v. the United States?

You've said it yourself: the point behind SSM is to push the belief that homosexuality is "normal". Which is to say, to put the power of the Federal and State Governments behind the idea that any religion that disapproves of homosexuality, that claims homosexuality is sinful, is wrong.

If Prop 8 had failed, the same thugs who have been going after Prop 8 supporters would instead be pursuing lawsuits against any church that refused to give them a same sex marriage ceremony.

What that compromise really needs is a statement that Federal recognition of same sex civil unions, or marriages, will not be extended to unions or marriages performed in any state where the Courts forced the creation of the unions.

That would be an agreement worth supporting.
2.22.2009 6:30am
Mike S.:
Is there any state in the Union that requires a religion to perform or recognize marriages of which they don't approve, say Orthodox Jews to recognize marriages between Jew and Gentile or the Roman Catholic Church to recognize marriages after divorce? Is there any way such a law would pass constitutional muster for a moment? On the other hand, is there anyway their proposed religious exemption would go so far as to protect a commercial photographer who refuses to photograph same sex marriages (or civil union ceremonies)? Or to prevent public schools from teaching that homosexuality is an acceptable choice?

The proposal seems to miss the point of the argument. There are some who focus on the instrumental aspects (inheritance, parental rights and so on, or on the other side wanting to limit the speed of social change from a Burkean perspective) and these might be amenable to compromise. However, the main point of contention is between those who think homosexual relationships are cardinal sins that undermine society and those who think that homosexual relations are a natural thing and a matter of private choice. There is no way that government can simultaneously recognize both these positions in even a minimal fashion.
2.22.2009 6:53am
J. Aldridge:
Amazing what Congress can do nowadays.
2.22.2009 7:27am
John Ballard (mail) (www):
As someone who served a tour of duty during the Vietnam Era as a conscientious objector this strikes me an excellent solution for a vexing national social problem. Yes, the issue has moved from local to national. In the same way that the Executive and Legislative branches federalized the Brown decision by the Civil Rights Act of 1964 and Voting Rights Act of 1965, Row and civil unions should be federalized now. FOCA represents the federalizing of Roe and new language will be introduced doing the same for civil unions.
2.22.2009 7:47am
Mikeyes (mail):
Would such a law apply only to same sex unions and if so, how does that not constitute discrimination? Would not the law have to be gender neutral in order to be legal?

In France the civil union law applies to everyone and apparently a huge majority of civil unions (which are easier to get out of than marriages in France) are between a man and a woman.

In Wisconsin common law marriages are not recognized so there are many couples with children in this state who are not married. They too would benefit from a civil union law. (Don't ask me why they don't get married, there are probably many reasons including not getting that pesky divorce from the spouse because of costs, etc.)

If the proposed law is discriminatory, would not that be a reason to sue?
2.22.2009 7:59am
Public_Defender (mail):
It sounds like the proposal would be an official federal license to discriminate against gays in every way except government recognition of gay marriage and civil union. It could easily, for example, prevent employers from enforcing their own provisions prohibiting discrimination against gays. It could also give the federal stamp of approval on landlords refusing to rent to gay married couples and on any other form of private discrimination against gays.

The gay rights side is winning this battles, and we're getting stronger. Why leave a federal stamp of approval on anti-gay discrimination?

On the other hand, what Congress giveth, Congress can taketh away. Maybe this is a good first step. In a few years, the gay rights side can come back and strip away the portions of the law that expressly permit anti-gay discrimination. And since you can't make a "deal" that binds citizens from arguing to change the law in the future, that might happen.
2.22.2009 8:05am
wm13:
My impression is that the issue of gay marriage has almost no salience at the popular level; it is entirely a concern of the elites. As such, it receives almost no attention at the legislative level. The action is almost entirely at the judicial level or at the referendum level. The kind of sustained, broad-based popular concern necessary to produce legislative action just doesn't exist. Therefore, I doubt that there will be any Congressional action.
2.22.2009 8:56am
jrose:
Mikeyes,

The law might discriminate against gays, but wouldn't that be subject only to rational basis review?
2.22.2009 9:06am
Scott Kline (mail):
What is marvelous about this plan is that it will foster deliberation about legislative compromise. Unlike judicial usurpation, which substantial majorities in every state hate, legislative compromise is considered legitimate. Lobbying and legislation are better than Lamda Legal.
2.22.2009 9:12am
Melancton Smith:
We need to separate the religious concept of marriage and the state recognition of marriage.

Government should recognize civil unions only...for gay and straight. Let churches marry who they will. The marriage is a spiritual artifact with no force of law.
2.22.2009 9:13am
Desiderius:
Second DC and Scott Kline. This would be a breakthrough in injecting into the debate the one thing so far sorely lacking: respect.
2.22.2009 9:36am
Risible (mail):
No. I'm sure many southerners would have liked the option to not recognize the full citizenship of blacks because it went against their conscience.
2.22.2009 9:50am
ruuffles (mail) (www):

The problem to solve then is what to do with all those Federal dollars that go to actively support discrimination (in employment, housing and Catholic hospitals, for example).

Remove them from the budget? If we're going to remove restrictions that prevent private organizations from discriminating, we should take the next logical step and remove religious exemptions, such as taxes.
2.22.2009 9:54am
U.Va. Grad:

The law might discriminate against gays, but wouldn't that be subject only to rational basis review?


Yes, but Romer and Lawrence showed that rational basis still has bite.
2.22.2009 9:55am
ruuffles (mail) (www):

Unlike judicial usurpation, which substantial majorities in every state hate, legislative compromise is considered legitimate.

Just out of curiosity, how long do you think it would have taken southern states to achieve the "legislative compromises" to implement, say, Brown v Board of Education?
2.22.2009 9:56am
Desiderius:
Risible,

"No. I'm sure many southerners would have liked the option to not recognize the full citizenship of blacks because it went against their conscience."

Well, at least you chose an appropriate moniker. No, their conscience ran the other way, which is why Brown eventually took hold. It was their pocketbook and pride that ran the other way.

Roe hasn't taken such a hold, and neither will SSM if it does not continue to do the hearts-and-minds heavy lifting, regardless of what the courts do.

Pls, SSM advocates who feel compelled to parade your bigotry in front of the world, choose another venue. You do your cause no service with your dominance displays.
2.22.2009 10:17am
Risible (mail):
No, their conscience ran the other way, which is why Brown eventually took hold. It was their pocketbook and pride that ran the other way.

Well, that statement shows a complete obliviousness to the realities of the world. So you are either dumb or delusional, quite possibly both. Sigh.
2.22.2009 10:29am
Seattle Law Student (mail):
Perhaps this is a pre-emptive strike by the anti-gay marriage crowd as personified by David Blankenthorn and those who agree with him. Obama is at above 60% approval right now, and the Republican party is rudderless.

Speculation about the 2012 election is, of course, early. But even over the next four years Obama is likely to get to pick 3 new supreme court justices. Ginsburg is ill, Stevens is almost 90, and Souter hasn't hired any clerks yet. These Justices are all likely to retire near term. Scalia isn't exactly young (and all that bile can't be good for you long term), and neither is Kennedy. Add to that rumors indicating how healthy the diet is of Thomas and it is not a stretch to think that Obama may get to pick 3-4 in this term.

If you think Obama will win a second term then the appointment of four justices seems very likely. If the anti-gay marriage folks are smart (no reason to think they aren't), then this proposal is a way to get ahead of this issue and nail a compromise down before the supreme court veers dramatically to the left. For Obama and the Demo's generally a compromise such as this one may well move the target of Conservative/Evangelical rage elsewhere, or at least diffuse it.
2.22.2009 10:48am
ArthurKirkland:
Why don't gays form a religion? Would they then not benefit from the substantial advantages our laws provide to people and beliefs associated with religion?
2.22.2009 10:51am
Simon P:
I think it's important not to be blinkered, here, by the "religious-conscience" element of this compromise. It connects up with a broader national effort to expand "religious liberty" by creating all sorts of majority-religion-favoring exceptions in state and federal law. It's a devious and, I think, deliberately deceptive movement that will only increase the power of Christians in this country to fashion a nation more comprehensively reflective of their own moral views.

For example, one of the significant "devils in the details" here will be the definition of "religious organization." As far as I know, a lot of courts have interpreted statutory references to "religious organizations" narrowly to include only organizations whose primary or sole purpose is religious observance -- so churches, synagogues, that sort of thing. The "religious-conscience" crowd has been trying to expand that definition; that has been a main front in the battle that they're waging. So I'm not confident that the proposed compromise, with respect to SSM, will only be about things like churches refusing to hire gay pastors or the like. I am quite confident that the crowd proposing this compromise will want "religious organizations" to include private universities, hospitals, and social service organizations, at the very least. They really would rather have the "religious-conscience" exemption reach any organization with a moral objection to SSM. I'm sure that would be the next step in this legislative strategy.

I honestly wonder how anyone could think this is a real compromise. It's a compromise like DOMA was a compromise -- just a first step to a more comprehensive national campaign to ban SSM marriages once and for all. It's a compromise like the Michigan anti-SSM amendment was a compromise -- adopted to "protect marriage," but invoked to eliminate DP benefits. I have no doubt that the proposed compromise would immediately be invoked by any quasi-religious organization seeking to be exempted from state and local anti-discrimination laws. That's just how these people roll.

There can be no compromise on this issue. The legal status of LGBT people is not a matter that is open to debate, compromise, or honest disagreement. To act like it is is really to cede the entire ground of the debate. Do we deserve equal treatment, or don't we?
2.22.2009 10:52am
Cornellian (mail):
You've said it yourself: the point behind SSM is to push the belief that homosexuality is "normal". Which is to say, to put the power of the Federal and State Governments behind the idea that any religion that disapproves of homosexuality, that claims homosexuality is sinful, is wrong.

So recognizing divorce "puts the power of the Federal and State Governments behind the idea" that Catholicism is wrong?

I don't have a problem with religious organizations being free to decline to perform SSM ceremonies or to recognize such relationships in the same way that Catholics are free to refuse to ordain women or recognize civil divorces. The hard part is drawing suitable lines around the terms "religious organization" and "recognize." The local 7/11 doesn't become a religious organization when priests and nuns start running it.
2.22.2009 10:53am
Joseph Slater (mail):
I agree completely with Tom G. and Public Defender. No deal.
2.22.2009 10:58am
Fungible Billing Unit:
A full recognition of a state-granted SSM would have to occur on several levels: (1) civil recognition within the marrying state; (2) civil recognition in other states; (3) federal civil recognition; (4) full private recognition (businesses); (5) full religious recognition; and (6) full social recognition (i.e., the characterization of SSMs as "marriage" rather than "civil unions").

The proposal addresses the important point #3, while providing explicit protection for religious organizations. Sounds like an excellent solution for social moderates, who likely support civil unions and applying anti-discrimination laws to protect gays BUT who fear government encroachment upon "un-enlightened" religions, and who believe that social morality cannot/ought not be legislated. I'd like to think that the First Amendment adequately protects churches, but a statutory carve-out excepting churches seems like a prudent belt-and-suspenders approach.

Unless you're opposed to SSM in any form, or view anything less than full social acceptance of SSM as unacceptable, the proposal seems perfectly rational. I'm also fond of the separating state-granted civil unions from religious marriages into separate ceremonies with separate effects, but I can't see that gaining political traction given the linguistic baggage associated with the word "marriage."
2.22.2009 11:20am
Dave N (mail):
My ConLaw professor made a point of going, almost case-by-case, the movement of the Supreme Court from Plessy v. Ferguson in 1896 to Brown v. Board of Education in 1954.

The N.A.A.C.P. Legal Defense Fund, led during a good portion of the time by Thurgood Marshall, engaged in a very specific legal strategy to undermine Plessy--by creating a line of cases running parallel to Plessy in order to create legal prcedent that would lead to Plessy's repudation.

Additionally, the N.A.A.C.P. Legal Defense Fund also worked carefully to ensure that their case to overturn Plessy came out of the North, rather than the South.

I bring up the Plessy to Brown timeline (which included cases like Powell v. Alabama (access to counsel) and Smith v. Allwright (non-white voters in primary elections)) because it contrasts so starkly with what happened in the cases leading to Roe v. Wade. In 1965, the Supreme Court created, seemingly out of the whole cloth, a right to privacy in Griswold v. Connecticut.

Less than a decade later, the right of privacy became the rationale for Roe. Because there was no line of cases that incrementally increased the right to privacy, the 1973 Roe decision, like Griswold before it, seemed to made up out of the whole cloth--and did not ahieve anything resembling the level of acceptance a decisio like Brown did.

The litigation tactics of SSM proponents appear earily similar to those of Roe proponents: "We want it; we want it now; and we don't care if we ignite a culture war in the process because, heck, we are smugly superior to the unwashed majority who oppose our aims and hostile to the concept of majoritarianism. Instead we hope that judges will interpret Constitutional provisions in ways never envisioned by those who drafted and ratified them and we will win without having to be persuasive in the court of public opinion."

The opposition to SSM by many, including myself, centers on the idea that change should come the legislature and the people, not the courts.
2.22.2009 11:21am
Matthew K:
So, this is the key paragraph (broken into sections):

Further sharpening the conflict is the potential interaction of same-sex marriage with antidiscrimination laws. The First Amendment may make it unlikely that a church, say, would ever be coerced by law into performing same-sex wedding rites in its sanctuary.

Good, they recognize that this is a red herring.

But religious organizations are also involved in many activities outside the sanctuary. What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner or else face legal penalties for discrimination based on sexual orientation or marital status?

This opens a potentially very wide door, does it not? Bad enough if restricted to official churches, but I could see people wanting this to be true for every employer, which makes SSM truly second class.

What if a faith-based nonprofit is told it will lose its tax-exempt status if it refuses to allow a same-sex wedding on its property?

Happy to give them this. In fact, I'm fairly comfortable in allowing all kinds of discrimination in this area (including racist).

I suppose I agreed with Dale that it would all come down to what "robust religious-conscience exceptions" cover, though personally i'd be fine with them only so long as they weren't robust :-P. Just have the feds recognize the marriages so long as the state of residence does. Give it 5 years and all the fun states will have SSM, then the vast migration can begin.
2.22.2009 11:43am
Chimaxx (mail):
As Dale says, the devil is in the details.

Do we really want a hospital associated with a religion to have a get-out-of-court-free card when they refuse to honor a Health Care Power of Attorney for a same-sex couple and prevent a dying woman's wife from visiting her hospital room?

Or allow physicians or pharmacists to deny care to gay men and lesbians on the basis of a religious exemption, and give the patient no legal recourse.

One of the hypotheticals cited by Rauch and Blankenhorn echoes the Ocean Grove case: "What if a faith-based nonprofit is told it will lose its tax-exempt status if it refuses to allow a same-sex wedding on its property?" Certainly their religion-based tax exemption should be protected, but not unrelated tax exemptions: Religious ownership of a place of public accommodation should not exempt the place from the anti-discrimination law with regard to same-sex couples, and tax exemptions extended on the basis of treating the property as a public accommodation should be at risk if the property is not open to all members of the public equally.

Rauch and Blankenhorn write: "What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner or else face legal penalties for discrimination based on sexual orientation or marital status?" Why should a lesbian who works for a church auxiliary or charity be unprotected by federally mandated family leave protections, be prevented from suing if she is denied bereavement leave?

Unless very narrowly drawn, this would give away far too much.
2.22.2009 11:44am
ruuffles (mail) (www):
@Dave N

The opposition to SSM by many, including myself, centers on the idea that change should come the legislature and the people, not the courts.

This idea doesn't square with the first half of your post, where you said Brown was the result of a long list of court decisions, not legislative action.

How do you know Griswold is the end, and not the start, of a line of cases? After all, after Roe, we have Romer and then Lawrence.
2.22.2009 11:50am
Dave N (mail):
ruufles.

The contrast was 58 years (Plessy to Brown versus 8 years (Griswold to Roe). My other point is that during the 58 years there was an emerging consensus (particularly in the North but not exclusive to it) that Plessy should be overturned.

Roe, by contrast, came about while there was a consensus slowly buidling. But rather than there being a political compromise, the consensus was short-circuited and a culture war ensued.

That is exactly what I am seeing happening with SSM. It does not have legitiamcy in the eyes of many/most non-lawyers because constitutionally required SSM seems like something made up out of the whole cloth. SSM adopted by a legislature, on the other hand, has legitimacy because it does represent the will of the people, at least indirectly.
2.22.2009 12:02pm
ruuffles (mail) (www):
@Dave N
I have a hard time seeing how the effects you attribute to Roe don't apply to Brown. Please point out how the people living in the southern states saw Brown (as its following cases) as legitimate. Their elected officials didn't even see it that way. In particular the phrase "short-circuited and a culture war ensued" could be applied to the aftermath of brown.
2.22.2009 12:21pm
Angus:
The contrast was 58 years (Plessy to Brown versus 8 years (Griswold to Roe). My other point is that during the 58 years there was an emerging consensus (particularly in the North but not exclusive to it) that Plessy should be overturned.

Roe, by contrast, came about while there was a consensus slowly buidling. But rather than there being a political compromise, the consensus was short-circuited and a culture war ensued.
Let me see if I understand this correctly. Because of unhappiness among those who are anti-gay, we should write gays into second class citizenship for the next half century...because it's good for gay people?
2.22.2009 12:25pm
Sean Gleeson (mail):
I don't even like the phrase "religious-conscience exceptions," as though the free exercise of religion were an "exception" to some otherwise prevailing rule. Freedom of religion, and freedom of conscience, are the rule.

And I especially dislike the idea of limiting this "exception" to some class of "religious organizations." Everyone has a conscience, and a duty to obey it. If a guy operating a lawn-mowing service refuses to cut your grass for some conscientious reason, even if it's a stupid reason, he has done you no harm, and the state has no business getting involved in the matter.
2.22.2009 12:27pm
jim47:
J. Aldridge, I agree, it is amazing what Congress (thinks it) can do nowadays.

My initial reaction to this isn't to look at the content of the compromises or the details of religious exception language, it is to note just how much I dislike the structural aspects of the legislation as they relate to the constitutional order of our republics.

This proposal does not fit with our general order of states ordaining certain legal relationships and their co-soverigns deciding whether or not, by comity, to recognize that status under their own law. What is labeled a compromise seems more like a kludge, once more inserting the federal government where it doesn't belong, serving as judge of the policies of the peoples of the several states.


My point is that seemingly structural provisions of our constitutional order have, in the past, been very important at limiting government, promoting fairness, and ensuring liberty, and we should not be quick to undermine or abandon them on the grounds that they are merely procedural or structural niceties.

If you are gay and you want to have some recognition for your relationship, I know it can be hard to be asked to wait for it until the politics have moved enough to get a clean arrangement, but please, don't take something with a poison pill, especially one that ma poison us all in many ways.
2.22.2009 12:32pm
Dan M.:
I just think this whole idea of trying to gain social acceptance through the government is fucking ridiculous. If you want to be equal under the law with regard to social security and whatever else, fine. But my goodness this whole idea that the government has to protect people from discrimination is just so insane. If there's an organization that won't hire gays or won't service them, then either let it go out of an understanding of religious liberty or protest the hell out of them and get public opinion against them and force their hand. It would be a lot more palatable than picketing businesses who merely employ people who gave money to a political campaign.

My goodness some of you guys probably think craigslist should have lost the discrimination suit filed against them and that people shouldn't have the right of free association in searching for a roommate.

I almost have more pity for smokers. At least the government doesn't charge an enormous gay sex tax to fund anti-gay sex commercials and tell you how much everybody hates you and thinks you're disgusting. But I suppose it's okay. They're behavior is legal and used to be socially acceptable but now they're addicted and the government campaigns to make them outcasts from society and uses some voodoo statistics to attribute every death in America to their pernicious influence.

And at least being gay isn't an enumerated right that you have that is rendered essentially meaningless in several areas of the country. I'm sure you'd love living in Illinois and having to apply for a license and carry around a Homosexual ID card all the time in order to exercise your rights. And I guess transsexuals would have to carry around concealed penis permits everywhere but Alaska and Vermont and be mandated to show them to police whenever they get pulled over for speeding.

I mean, if all you want is social acceptance, isn't there a fucking PR firm out there that will do some push-polling for you or something?
2.22.2009 12:37pm
cmr:
The problem I have with this is twofold: (1) While this is obviously a compromise, it kind of assumes that the argument for SSM has been made, and made effectively, ad nauseum, and the only thing stopping people from receiving it is religious belief, when in reality, as Prop 8 kind of shows, a lot of people aren't convinced of SSM for a litany of reasons, and just because people really really want it, doesn't make up for the holes in logic that I think even someone with a layperson's understanding of this issue can see, and (2) as evidenced by some of the comments on this thread, many gays simply wont settle for civil unions in any capacity, until perhaps they lose a few ballot initiatives.

As for the religious thing, well, it's like this: the truth of the matter is, the issue of SSM for many religious people doesn't seem from a basest mentality of hatred for religious people. For the non-believers, this is a hard pill to swallow, because they don't understand that even faith-based emotion has nuance. Some are most certainly hardliners, and see this issue as black-and-white, right-and-wrong.

Religious people DO NOT TRUST THE GAY COMMUNITY. They view gay marriage as a step. A step that they're having a hard time implementing, but a step nonetheless. They think the second we nationalize SSM, religion is going to come under attack, in one or many ways. They fear the same judicial bodies who will ignore the popular vote, the will of the people, to enact gay marriage wont have too much of a problem ruling against a church for anti-discriminatory purposes because they wont recognize SSMs. They think religious organizations who provide a service (i.e. a hospital, an adoption agency) will be forced to go against their well-known moral opposition to homosexuality or be fined or shut down.

And they know that the gay community is a very litigious lobby to begin with, so they figure the threat of a law suit could be enough to force churches to solemnize gay unions who couldn't fight this battle in court. Even if it seems as though they wouldn't have a case, they don't trust the same people who would enact SSM to protect them should the issues overlap.

And I don't blame them. I've said this before: it's easy to say they're overreacting when you can't readily recall it happening (though it has, not only in Massachusetts, but in other countries that have enacted SSM) and you're skeptical to the idea of it happening. But there's a notable anti-religious bigotry among the SSM debate that isn't entirely warranted, though some will say it's just animosity against religious persecution of gays.

Religious organizations and churches don't expect any hardliner of SSM to come to their defense should any of this happen, be it six months after nationalizing SSM, or three years from then. They think a lot of this is false humility -- because there's an obvious benefit for SSM supporters to seem only concerned with their rights and nothing more. People who see this as A Movement and the political campaign it always has been, wisely know to be skeptical about SSM.
2.22.2009 12:57pm
Desiderius:
Ruuffles,

"Please point out how the people living in the southern states saw Brown (as its following cases) as legitimate. Their elected officials didn't even see it that way."

Because Lester Maddox and Bull Connor haven't been in power for over 40 years? Heck, George Wallace even changed his tune (35 years ago!), and I don't think he did so entirely out of the kindness of his heart. Sorry to take away your favorite hate object, but it's way outdated. Why not try finding something more productive rather than finding a new one?

Risible,

"Well, that statement shows a complete obliviousness to the realities of the world. So you are either dumb or delusional, quite possibly both. Sigh."

If that were the case, I doubt you'd have much difficulty finding a more interesting come back. Try again.
2.22.2009 12:59pm
cmr:
"
As for the religious thing, well, it's like this: the truth of the matter is, the issue of SSM for many religious people doesn't seem from a basest mentality of hatred for religious people. For the non-believers, this is a hard pill to swallow, because they don't understand that even faith-based emotion has nuance. Some are most certainly hardliners, and see this issue as black-and-white, right-and-wrong. "

I meant that to say: "As for the religious thing, well, it's like this: the truth of the matter is, the issue of SSM for many religious people doesn't stem from a basest mentality of hatred for gay people."
2.22.2009 12:59pm
John D (mail):
The more I think about this, the worse it seems.

I've read some interesting comments on other blogs (yeah, I'm reading about this issue elsewhere too, even commenting in some places) and some bloggers are bringing up the federalism issue. What would it mean if the federal government created a new relationship status?

But that when it hit me that at no point do Blankenhorn or Rauch suggest that this new relationship status be imposed anywhere that gay couples have no relationship rights.

I noted in my earlier comment (top of thread) that it would roll back rights of same-sex couples with some form of government recognition: a marriage of a same-sex couple becomes a civil union with whatever limitations end up in the federal bill.

Nowhere do Blakenhorn and Rauch suggest what happens in the rest of the several states. There was an experiment in Utah, after comments were made by the leadership of the LDS that they weren't opposed to partnership rights for same-sex couples: hospital visits and matters like that. Five bills were introduced into the Utah legislature which would have granted these supposedly uncontroversial rights. Every measure lost.

I assume that Blankenhorn/Rauch compromise would leave same-sex couples in Utah exactly where they are today with no legal recognition of their relationships.

It's a compromise when each side gives up something. I've heard a few things offered as compromise measures, but they all involve one side (advocates of equality of same-sex couples) giving up something while the other side (opponents) give up nothing.

This is one more in that category. It is not a compromise it a retreat from every success.

I'd like to propose a new compromise. Members of clergy who oppose same-sex marriage drop all objections to the government issuing marriage licenses to same-sex couples, agreeing that supportive clergy can officiate if they so choose. In return, clergy get to continue to sign marriage licenses.

If they reject that compromise, I suggest a full separation of church and state, and since marriage has been recognized by law and licensed by the states since the inception of the United States, that marriage become a purely legal function, used for determination in family and property law, and that only government officials may properly endorse a marriage license.

At this point, clergy can still bless the married couple, fresh from their stop at city hall. That, after all, is a matter of religious freedom.
2.22.2009 1:37pm
ruuffles (mail) (www):

Sorry to take away your favorite hate object, but it's way outdated. Why not try finding something more productive rather than finding a new one?

I agree, it's outdated because its no longer an issue (2009). But you'd be overlooking the decades after brown, and the different obstacles they (those you named) looked for to block desegregation. I'd say that individual action like "white flight" ended the problem, simply because most self-segregated. I'd compare it to religious organizations only performing gay marriages (ie, private schools) and city halls performing the same sax marriages (public schools).

Just because a problem is solved now doesn't mean there wasn't one (after Brown).
2.22.2009 1:48pm
ThomasD (mail):

what exactly do "robust religious-conscience exceptions" cover?


In the long run nothing.

Government created exceptions or exemptions are not freedoms.
2.22.2009 1:57pm
Scott Kline (mail):
Ruufles,

Why do you hate black people?
2.22.2009 2:22pm
John Moore (www):
The greatest problem with normalization of homosexuality, including SSM, is the legal actions that will ensue, from expansion of non-discrimination statutes to lawsuits. Will we have affirmative action for gays? Far-fetched? The "civil rights" arguments used here in support of SSM are exactly the ones that led to that misguided policy.

In that sense, the compromise under discussion is inadequate. Why should only religious organizations be exempt from SSM-related rules?

A better approach would be to enumerate the privileges that government grants from marriage, and create a civil union that contains those that have popular support. For example, I doubt if any state in the union would vote down hospital visitation rights (and related medical rights). Does anyone know of a Catholic hospital that denies these rights to gay partners?
2.22.2009 2:51pm
Desiderius:
I'm curious if someone familiar with the law and/or practice can fill me in: why are hospitals denying visitation at all? Are they being besieged with impostor family members? Is this another unintended offspring of HIPAA? Administrators overreacting to the possibility of a lawsuit? Isolated incidents overhyped?

Why not liberalize those laws - including inheritance, rather than carving out exceptions specifically for gay spouses alone? The Bill of Rights doesn't contain a section exclusively for tall people, or black, or Jewish. Is there a way to secure such rights generally, or is SSM after all more about full social celebration of homosexuality and less about rights?

Not that the latter is somehow nefarious - it would just call for a different strategy.
2.22.2009 3:07pm
Mike S.:
I would add to what cmr said that the Catholic adoption agency in Massachusetts already closed its doors rather than accept a state mandate to place children with same sex couples. Likewise, the MA courts have recently ruled, overturning a prior ruling that parents have no right to be informed when the schools are teaching about homosexuality even in elementary schools, or pull their kids out.

That is why the proposed compromise, or any other, is unworkable. Those focused on instrumentality might fashion a compromise of one sort or another, but for most of the contenders the issue is whether homosexual relationships can be acceptable under law. If they are, religious freedom in this country will necessarily be greatly diminished. If they are not, then gays will continue to be discriminated against. There is not a way to split the difference.
2.22.2009 3:12pm
John D (mail):
John Moore:

I doubt if any state in the union would vote down hospital visitation rights

Utah just did.
2.22.2009 3:23pm
cmr:
I'm curious if someone familiar with the law and/or practice can fill me in: why are hospitals denying visitation at all? Are they being besieged with impostor family members? Is this another unintended offspring of HIPAA? Administrators overreacting to the possibility of a lawsuit? Isolated incidents overhyped?



In a nutshell: they don't. The whole denial of hospital visitation argument is one of those that's more pathos-driven than functional. It's not standard hospital policy to ONLY allow spouses (or immediate family, for that matter) to see someone in the hospital. It never has been. The only reason they would likely deny a patient visitation is if the patient or their family requests no visitors (which means the issue isn't with the hospital) or if the patient is contagious and is restricted as per doctor's orders.

This can be solved with a living will or a health care proxy. But...some use it just to argue for gay marriage.
2.22.2009 3:24pm
John Moore (www):

Utah just did.

Only as part of a larger law, which included inheritance rights - which are very controversial.


The only reason they would likely deny a patient visitation is if the patient or their family requests no visitors (which means the issue isn't with the hospital) or if the patient is contagious and is restricted as per doctor's orders.

Medical institutions also have to very careful about giving out medical information due to federal HIPPA rules. This could lead to problems with same sex couples.

I believe that a medical power of attorney or related document, executed by the couple, is sufficient to deal with this, but IANAL.
2.22.2009 3:28pm
William D. Tanksley, Jr:
Government should recognize civil unions only...for gay and straight. Let churches marry who they will. The marriage is a spiritual artifact with no force of law.


Not true. Marriage is a social artifact, not a spiritual one. Religion is also a social artifact. Religion is often used to strengthen marriage, since the nature of marriage is obviously essential to the continuation of society; but marriage isn't religious.

However... you do have a good point. Another suggestion might be to create two types of marriage; call them civil unions and marriage. Both would be gender-irrelevant. Civil unions have many of the benefits of marriage; the two big differences are that you can't raise children unless you're married, and marriage cannot be easily terminated. I recommend making stronger tax and social benefits for marriage than for civil unions (aside from the obvious exemptions for children) -- the increased enforced stability should be worth something.

There we go. Something for both sides to love and hate.

-Wm
2.22.2009 3:32pm
Greg Q (mail) (www):
Once again, I will present my challenge:

Can anyone provide a "reasonable" amount of proof that same sex marriages benefit society, on average, as much as heterosexual marriages benefit society?

If not, then there is no rational basis for society to give the members of those unions the same benefits it gives to members of heterosexual marriages.

None.

There is no Constitutional Amendment passed to prohibit discrimination based upon sexual orientation. There is no Constitutional Amendment that bans sex discrimination (the ERA lost). The only illegitimate discrimination involved in SSM is the desire to give people rewards that they have not earned, and do not deserve.

Society gives benefits to married couples because society can't survive without heterosexual marriages. Until someone can prove that SSMs provide society the same benefits, it is unjustified to give SSMs the benefits of heterosexual marriage.
2.22.2009 3:33pm
Desiderius:
ruufles,

"But you'd be overlooking the decades after brown, and the different obstacles they (those you named) looked for to block desegregation."

By a decade (singular) they were on the run. Two decades out, they were gone, aside from local (largely Democratic) bosses. That was due to both outside pressure from the courts, and the hard interior work of changing hearts and minds, as well as the former giving legal cover to many hearts and minds that already went that way. If one is curious about the latter, one could do worse than this in exploring that curiosity.

BTW, the most prominent among the thousands (largely Democratic) who did such work is ill-honored by neglecting his contributions. Where is the gay MLK? Hmm, only missing one letter - martyred too soon?

"I'd say that individual action like "white flight" ended the problem, simply because most self-segregated."

That is perhaps too barren a view. Are schools more segregated in the north or the south, would you say? De facto is surely preferable to de jure, regardless.

"I'd compare it to religious organizations only performing gay straight marriages (ie, private schools) and city halls performing the same sex marriages (public schools)."

I think that's what you meant to say. Again, that is too narrow, as there are plenty of integrated religious schools, including many among the finest (ask our President about this topic), and many whites, such as myself, went to public schools and are proud of it.

No, SSM would seek to amend the legal definition of what a school is, and thereby redefine its purpose. It would be akin to proposing that Plessy be overturned by requiring that all schools be defunded to the prevailing level of the black schools, or that schools would henceforth need teach only the vocational curricula to which many blacks had been restricted.
2.22.2009 3:38pm
William D. Tanksley, Jr:
Two different posters at two different times:
...A better approach would be to enumerate the privileges that government grants from marriage, and create a civil union that contains those that have popular support.

...Why not liberalize those laws - including inheritance, rather than carving out exceptions specifically for gay spouses alone?


Both superb ideas. I think these are the way to go; rather than pretending that marriage laws should be applied to anyone that wants the benefits, let's think about making the benefits and restrictions available ala carte.

-Wm
2.22.2009 3:41pm
Nomilk (mail):
Since traditional-marriage supporters have won every electoral contest over SSM, I don't know why they would embrace this "compromise." Seems like surrender to me.
2.22.2009 3:54pm
Putting Two and Two...:
John D.

But that when it hit me that at no point do Blankenhorn or Rauch suggest that this new relationship status be imposed anywhere that gay couples have no relationship rights.


Hard to believe the omission was unintentional. It diminishes the stature and integrity of both men (not that I had a lot of respect for Blankenhorn to begin with). Maybe all they could agree upon was to try to spark a debate. Maybe all they wanted to do was get another article published in NYT.
2.22.2009 4:02pm
Mac (mail):

Is this another unintended offspring of HIPAA?

Desiderius,

Yes.

Plus, hospitals must sometimes limit the number of visitors due to the condition of the patient. Some families just do not understand that a sick person is in no condition to "entertain" them or to "host" a large gathering. So, even close family members must sometimes have their visitation limited for the health of the patient. Or, for the peace and quiet and health of the roommate.

But, the idiotic HIPAA is always ever present. Never has so much time, so much paper, so much energy gone into something to remedy such a minor problem.
2.22.2009 4:16pm
jrose:
John D: But that when it hit me that at no point do Blankenhorn or Rauch suggest that this new relationship status be imposed anywhere that gay couples have no relationship rights.

That makes perfect sense given the federal government is not in the business of defining any relationships, but rather merely decides which of those sanctioned by the state it wants to recognize.

John D:it would roll back rights of same-sex couples with some form of government recognition: a marriage of a same-sex couple becomes a civil union with whatever limitations end up in the federal bill

I don't think so. A Massachusetts marriage would still be a marriage. It would only be a civil union in the eyes of the federal government, which is decidely more than it is today.

Blankenhorn and Rauch: most state laws that protect gays from discrimination already include some religious exemptions, and those provisions are for the most part uncontroversial, even among gays

Anybody have citations for these exemptions?
2.22.2009 4:38pm
U.Va. Grad:
jrose: Here is one such exemption, from the California Fair Employment and Housing Act.
12922. Notwithstanding any other provision of this part, an employer that is a religious corporation may restrict eligibility for employment in any position involving the performance of religious duties to adherents of the religion for which the corporation is organized.

That provides a lot of wiggle room for a religious organization to refuse to hire someone, etc. (Though the CA courts may have interpreted "performance of religious duties" narrowly--I don't know anything about how that's played out.)
2.22.2009 5:06pm
jrose:
How would you apply "involving the performance of religious duties" to Rauch/Blankenhorn's hypotheticals:

1) What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner or else face legal penalties for discrimination based on sexual orientation or marital status

2) What if a faith-based nonprofit is told it will lose its tax-exempt status if it refuses to allow a same-sex wedding on its property

If the first one is an exemption, I'm not on board. The second one I am OK with.
2.22.2009 5:23pm
Jon Rowe (mail) (www):
Greg Q,

You should read Rauch's book. The whole thesis is about answering your challenge. I'll give you a helpful start: Homosexuals ARE members of society. So if granting civil unions or marriage helps homosexuals, then it automatically helps at least one part of society -- homosexuals. Rauch also explains why gay marriage benefits heterosexuals as well, but you'll have to read the book.
2.22.2009 5:27pm
Jon Rowe (mail) (www):
Greg,

I also reread your challenge very carefully:


Can anyone provide a "reasonable" amount of proof that same sex marriages benefit society, on average, as much as heterosexual marriages benefit society?


I don't think the "as much as" is at all necessary to show why we should have same sex marriage. Rather, the way I answered your challenge, simply showing that SSM BENEFITS society at all, would be enough to establish a "rational basis" for it.

Even within heterosexual society there are plenty of "marriages" that are less beneficial than others. But since they "benefit" we permit them. Dennis Prager's comments come to mind. He's divorced and remarried for a third time. When asked why he remarried he quoted the Bible as saying something like it's better for man not to be alone. Even though his marriage intentionally will produce no children, it still offers some benefits to Prager &his wife in particular, society in general. Though, his marriage is not NEARLY as beneficial as a young procreative marriage. We don't discriminate between them. And marriage is not a zero sum game.
2.22.2009 5:32pm
Perseus (mail):
That's the same as me bursting into someone else's house and demanding that they redecorate according to my specifications.

Marriage laws (like anti-discrimination laws) force third parties to behave in a way that they might not otherwise but for the law. So SSM is indeed going to force some "queer eye for the straight guy" redecorating.
2.22.2009 5:33pm
John Moore (www):
A better basis for judging is how SSM laws will reduce freedoms in society - for example, by forcing a church to hold a same sex marriage or a business to provide equal benefits to same sex spouses.

Anti-discrimination laws reduce freedom to discriminate. That is appropriate for government functions (if the discrimination is made on an unreasonable basis) but not automatically so for private entities. Extending those laws through the taint of government aid to private entities (tax preferences, subsidies to charities) is where it gets really sticky, IMHO.
2.22.2009 5:44pm
jrose:
John Moore: Anti-discrimination laws reduce freedom to discriminate. That is appropriate for government functions (if the discrimination is made on an unreasonable basis) but not automatically so for private entities

Do you support anti-discrimination laws targted at race, gender, national origin, religion, etc. in public accommodations?
2.22.2009 5:49pm
ArthurKirkland:
Perhaps the sole answer is to distinguish religious marriage from civil marriage.

If a couple wants the government to recognize the marriage, it would be required to obtain a civil license and be married before a judge, district justice, magistrate, mayor or similar government official.

If a couple wishes to arrange religious solemnity, it could supplement the civil proceeding by being married before a priest, rabbi, reverend, or similar religous official. The relevant religious authorities would have complete authority over the ceremony, which would have no consequence outside of the religious context.

Neither the civil nor the religious intrudes on the other.
2.22.2009 6:01pm
Jon Rowe (mail) (www):
I think Mr. Moore is right that antidiscrimination lawsw reduce freedom. And that includes what's already on the list. In a first best libertarian world, government, which by its nature would be very small, would be forbidden from disciminating on these grounds, including sexual orientation. The private sphere would be able to discriminate on all of these grounds, including sexual orienation and race, gender, religion etc.

I think Rauch &Blankhorn's proposal is if we do have gay marriage or gay rights lets make sure we exempt religious entities. We currently do this. Gender is a civil rights category. Yet, the Catholic Church does not have to have women Priests.
2.22.2009 6:20pm
trad and anon (mail):
Sounds fair enough to me, if there were also laws preventing religious "conscience" objections for divorce, racist Southern and Mormon theology (almost entirely dead in the South, and repudiated by the Mormons in the '70's, but fairly prevalent 50 years ago and still alive in a few circles such as BJU), opponents of religious intermarriage, and so forth. But we have no such laws.

We should reject this separate-but-unequal "compromise."
2.22.2009 7:14pm
John D (mail):
We should not neglect William Saletan's piece on the same page (just below in the print edition).

He concludes:
The choice to commit will also be good for the hundreds of thousands of children being raised by same-sex parents. Let those partners marry. In fact, let's encourage them to. We shouldn't just tolerate same-sex marriage. We should promote and favor marriage, regardless of orientation.


I await the day when conservatives mis-remember their opposition to same-sex marriage back in the first decades of the twenty-first century.

"Of course I felt that gay people should marry," they'll be telling us in the 2020s. "Do you really think that I, a conservative, think people should just live together in a casual relationship?"

And they'll even believe that they took this view on marriage, even before 2010.
2.22.2009 7:31pm
Joseph Slater (mail):
Nomilk writes: Since traditional-marriage supporters have won every electoral contest over SSM, I don't know why they would embrace this "compromise." Seems like surrender to me.

Gay marriage opponents who have read polls showing that younger folks approve of gay marriage much more than older folks might see the writing on the wall and try for a compromise. Gay marriage proponents, reading the same poll, might refuse this lame compromise for the same reason.
2.22.2009 7:56pm
trad and anon (mail):
I just think this whole idea of trying to gain social acceptance through the government is fucking ridiculous. If you want to be equal under the law with regard to social security and whatever else, fine. But my goodness this whole idea that the government has to protect people from discrimination is just so insane. If there's an organization that won't hire gays or won't service them, then either let it go out of an understanding of religious liberty or protest the hell out of them and get public opinion against them and force their hand.
Sorry, you lost this battle in 1964. Good luck getting the Civil Rights Act overturned. Well, not really.
Religious people DO NOT TRUST THE GAY COMMUNITY. They view gay marriage as a step. A step that they're having a hard time implementing, but a step nonetheless. They think the second we nationalize SSM, religion is going to come under attack, in one or many ways. They fear the same judicial bodies who will ignore the popular vote, the will of the people, to enact gay marriage wont have too much of a problem ruling against a church for anti-discriminatory purposes because they wont recognize SSMs. They think religious organizations who provide a service (i.e. a hospital, an adoption agency) will be forced to go against their well-known moral opposition to homosexuality or be fined or shut down.
You mean some religious people. The United Church of Christ, Metropolitan Community Church, Reformed Catholic Church, Unitarians, and some (but not all) Quakers, Buddhists, Reform Jews, and other religions go so far as to perform gay marriages. And of course lots of religious people who participate in religions that don't perform gay marriages, or take even stricter views on homosexuality, still don't have any "mistrust" of the gay community.

I suspect that what you mean by "religious people" is "members of hardline anti-gay denominations who share their denomination's official view of homosexuality." There are lots of those, but they are not remotely all religious people.
2.22.2009 8:13pm
Tom G (mail):
Marriage laws (like anti-discrimination laws) force third parties to behave in a way that they might not otherwise but for the law. So SSM is indeed going to force some "queer eye for the straight guy" redecorating.

I see...please explain to me how the following has "reduced freedom for third parties":

1. Interracial Marriages
2. Divorced Catholics seeking civil second marriages
3. Marriages between Orthodox Jews and Gentiles

All of the above violate deeply held religious beliefs of certain people, yet we all recognize that these people do not have the right to impose their religious beliefs on the law. The notion that SSM is anything different is rooted in pure homophobic feeble mindedness.
2.22.2009 8:18pm
William D. Tanksley, Jr:
If a couple wishes to arrange religious solemnity, it could supplement the civil proceeding ...[with one] which would have no consequence outside of the religious context.


Wow, you're really going scorched-earth there. Take away ALL ability to solemnize civil arrangements from religions, and also take away all ability to define them.
2.22.2009 8:22pm
trad and anon (mail):
1. Interracial Marriages
2. Divorced Catholics seeking civil second marriages
3. Marriages between Orthodox Jews and Gentiles

All of the above violate deeply held religious beliefs of certain people, yet we all recognize that these people do not have the right to impose their religious beliefs on the law. The notion that SSM is anything different is rooted in pure homophobic feeble mindedness.
And we have no special statutory "robust religious-conscience exceptions" for any of those. In fact, there are no statutory "religious-conscience exemptions" singling out those marriages for separate-but-unequal treatment at all. Zip. Zero. Nada.
2.22.2009 8:36pm
John Moore (www):

Do you support anti-discrimination laws targted at race, gender, national origin, religion, etc. in public accommodations?


That's right on the edge. What is a public accommodation? A hotel? Any hotel? The only one in town? A restaurant? A theatre? Any retail business?
2.22.2009 8:47pm
Desiderius:
"And they'll even believe that they took this view on marriage, even before 2010."

If the alternative is no SSM and those ever-smug conservatives instead self-satisfied that their eternal vigilance has prevented gays from getting married at all (likely out of pure spite, no doubt), which would you prefer?

If you get what you want, why do you care who takes credit?
2.22.2009 8:48pm
AlanDownunder (mail):
No compromise. Paul Heald says why.

The state only got into regulating one particular religious sacrament - marriage - because of its feudally-derived insistence on controlling all aspects of succession.

In these times, the state should decide, issue by issue, whether it recognises marriages and other arrangements as civil unions for the purposes of that particular issue.

What it clearly should not do is discriminate between civil unions depending on whether they have a religious basis.
2.22.2009 10:11pm
AlanDownunder (mail):
GregQ 2/22/2009 @ 3.33

Can anyone provide a "reasonable" amount of proof that same sex marriages benefit society, on average, as much as heterosexual marriages benefit society?


What's the difference in social effect between childless MF, MM and FF unions?
2.22.2009 10:22pm
trad and anon (mail):
Society gives benefits to married couples because society can't survive without heterosexual marriages. Until someone can prove that SSMs provide society the same benefits, it is unjustified to give SSMs the benefits of heterosexual marriage.
Society can't survive without heterosexual marriages? That's a bold claim!

Society can't survive without heterosexuals going at it, but as the entire history of our species demonstrates that hardly requires a marriage.

Now that we've dispensed with that bizarre argument, I hardly see why we should be required to "prove" (whatever that means) that same-sex marriage will provide exactly the "same" benefits as different-sex marriage before going forward with it. Perhaps the benefits would be slightly less, or slightly different, but why would that be sufficient to justify banning the practice entirely?
2.22.2009 10:37pm
trad and anon (mail):
The state only got into regulating one particular religious sacrament - marriage - because of its feudally-derived insistence on controlling all aspects of succession.
That's hardly the whole extent of it, it was also relevant to deciding which people should be convicted and punished as adulterers, which men could have sex with which women without their consent, which men could beat which women (provided it was not too severe), and so forth.
2.22.2009 10:41pm
Waldo (mail):
This is certainly a starting point for a compromise. It does maintain a distinction between marriage and civil unions. The distinction between marriage and civil union is critical since traditional marriage is about more than a relationship between two people. It also legitimizes fatherhood by recognizing a relationship between men and their children. If you change marriage to include same-sex couples, it no longer performs that function. This is something that anti-discrimination arguments in favor of same-sex marriage ignore.

Therefore, as long as a compromise preserves the normative link between marriage and fatherhood, the legal and financial benefits of civil unions and marriage can be negotiated. I would support fewer financial benefits, such as inheritance rights, for civil unions, but these are issues that can be resolved through the legislative process. Why quibble over details when there are about 787 trillion other ways the government can offer benefits I may not support?

I also don't think "robust religious-conscience objections" should be limited to religious institutions, but include people whose religious beliefs don't sanction same-sex unions. We don't require OB-GYNs to offer abortion services. In the same way, we shouldn't require businesses that offer marriage services to offer the same services for civil unions.

Finally, if the pro-SSM side does succeed in redefining marriage, I can just treat all marriages as civil unions. Essentially, marriage becomes dating. And at that point, why discriminate against someone's relationship just because they've registered it with the government?
2.22.2009 10:42pm
Bart (mail):
Civil unions are simply a wedge to generate EPC arguments and an ethical cop out.

If you believe that homosexual unions are the equivalent of marriage, then argue for legislation creating full fledge same sex marriage.

However, if you believe that homosexual unions are simply one more human relationship that is not marriage, then do not argue for faux marriages through civil unions out of misplaced guilt.
2.22.2009 11:54pm
Cornellian (mail):
If you believe that homosexual unions are the equivalent of marriage, then argue for legislation creating full fledge same sex marriage.


When SSM arrives in the country, such unions won't be "the equivalent of marriage" they will be marriage from a legal point of view. Whether they're marriages from a religious point of view depends on your religious beliefs.
2.23.2009 1:01am
cmr:
You mean some religious people. The United Church of Christ, Metropolitan Community Church, Reformed Catholic Church, Unitarians, and some (but not all) Quakers, Buddhists, Reform Jews, and other religions go so far as to perform gay marriages. And of course lots of religious people who participate in religions that don't perform gay marriages, or take even stricter views on homosexuality, still don't have any "mistrust" of the gay community.

I suspect that what you mean by "religious people" is "members of hardline anti-gay denominations who share their denomination's official view of homosexuality." There are lots of those, but they are not remotely all religious people.



You're mentioning an exception that was obvious in my post. Obviously there are religion institutions that perform SSMs, so there is no threat to them.

Nowhere did I say "all". It's just accepted that the majority (95%>, I'd guess) don't and likely would not perform SSMs.

Society can't survive without heterosexual marriages? That's a bold claim!

Society can't survive without heterosexuals going at it, but as the entire history of our species demonstrates that hardly requires a marriage.


I think the point is, marriage normalizes and regulates procreation, and since we need procreation to forward society, there is obviously some need for regulation of it, i.e. marriage. The benefits therein are just to make it easier for parents to take care of their children, so the state doesn't have to. There's also a wealth of benefit in children being raised by their parents, but that should go without saying.

Also, can you name some civilizations that didn't have some form of marriage?
2.23.2009 1:06am
Perseus (mail):
please explain to me how the following has "reduced freedom for third parties":

Expanding civil marriage eligibility means that taxpayers, businesses, hospitals, associations, churches, etc., will have their freedom to treat such relationships as they please curtailed, which, of course, is the whole point. But the advocates of SSM have presented a weak case for how the public benefits from SSM, instead relying on "rights talk."
2.23.2009 1:11am
Dave N (mail):
Gay marriage opponents who have read polls showing that younger folks approve of gay marriage much more than older folks might see the writing on the wall and try for a compromise. Gay marriage proponents, reading the same poll, might refuse this lame compromise for the same reason.
Then win in the court of public opinion, through the ballot box and the legislature.

If you are so convinced that the trend is your way, then let the consensus emerge. I guarantee it will be much more palatable than having it imposed by our black robed masters.
2.23.2009 1:27am
Nick056:
Perseus,

While I'm not so dismissive of "rights talk" -- forgive my glibness, but determining and enforcing rights was, I thought, the foundation of our society -- you have a very excellent point that gay advocates cannot seem to get beyond their notion of marriage and understand that their opponents draw on a deep, resonant tradition which happens to have a good amount of philosophical coherence. It also provides an appealing account of who, what, and how we are, sexually speaking. Homosexual marriage challenges this account, and yes, it is a redefinition of marriage. This seems indisputable. (I won't discount that it may be a redefinition that could be enacted, reasonably, based on a careful and full understanding of the underlying rights implicated in the whole messy business.)

But let's forget rights talk. I'll only ask you to assume a few things for the sake of argument. First, if homosexual marriage challenges popular notions of an ordered family and an ordered experience of one's own sexuality and morality, the ongoing fact of homosexual persons (as opposed to mere homosexual acts or impulses) is also a challenge to these popular notions. So let's assume that there are homosexual persons, instead of homosexual behaviors. Does it benefit society to have these people live their lives on the margins, or closer to the margins? To exclude them from one of the great forces for stability in our society -- if they are fundamentally as they present themselves to be?

If you believe that there are homosexual persons, whose loves and relationships are at heart the same as those of heterosexuals, and especially if you also accept that they're also fit parents, the benefit of same sex marriage is self-evident. Bringing a constant and substantially equal segment of society within the full operations of that society is an obvious good. If you believe that marriage is a positive force, and that gays stand to join rather than corrupt it, what more needs to be said?

I don't ask you to believe these things. But a real conservative who did believe them, concerned with stability and with a legacy of bringing disparate groups of society within the ordered frameworks of life and family -- that person would see that gay marriage follows ineluctably from assuming the substantial equality of gay people.
2.23.2009 2:22am
Putting Two and Two...:
Am I the only person who, before this article, thought that federally recognized civil unions and marriages (in those few states that would offer actual marriages), portable across ALL state lines as civil unions were the compromise everyone seemed to think would eventually appear?
2.23.2009 2:32am
Zoe E Brain (mail) (www):
Not all same-sex marriages are childless.

The trouble is that different jurisdictions have different definitions of male and female. Now most of the time, there's no problem, it's obvious, but for some of us it isn't. More than you think - 1 person in 60 is technically Intersexed, though that's really only of academic interest. But about 1 in 1000 are Intersexed in a blatant way that can't be ignored. That's over a quarter of a million people in the USA.

For such people, the situation is one unholy mess. For example, in the UK, where I was born, I'm legally male. In Australia, where I live, I'm legally (and medically) female. Such categories are approximations, when there exist medical conditions that can cause a baby to look like one sex at birth, and another one later in life.

Both the UK and Australia prohibit same-sex marriage, and Australia even prohibits civil unions. So in the UK I could only marry another woman, and in Australia, I could only marry a man. Because same-sex marriage is against God's Holy Law, or against public policy, or will cause the Collapse Of Civilisation As We Know It, or something.

In the USA, I could marry either in Massachusetts, neither in Ohio IIRC, and in Texas, it would depend on which county I was in. Some ignore state law.

Oh yes, I have a son to who I am the biological father. The male reproductive system is simpler than the female one, and even one that is partly there is enough, with technical help. With the female one, it's all or nothing. And yes, I'm married (in a chaste relationship if you must know) to another woman, as I was legally male at the time, misdiagnosed as a mildly intersexed male rather than a severely intersexed woman.

Yes, my condition is particularly rare, only a handful in the US. But there's tens of thousands with similar conditions. Women with 46xy (usually male) chromosomes who have given birth. Many, many men, and a handful of women, with 47xxy chromosomes.

This whole thing makes a mockery of "equal treatment". We're not confused about our gender, but the law certainly is.

If I journeyed to the USA, would my marriage be recognised Federally? If they look at my UK Birth certificate, probably yes, despite the obvious biological absurdity. If they look at my UK passport, probably not, because it matches biological reality. But if not, what about the status of my son?

I know cases like mine are rare. But they blow away all of the arguments against same-sex marriage, when those who oppose it so strongly can't even agree which sex is the same for people like me, and where the arguments about procreation and a stable family environment composed of both biological parents are exploded. My son has that. It only takes one exception to disprove an absolute.
2.23.2009 7:15am
Joseph Slater (mail):
Dave N.:

I am relatively confident (nothing is for sure) that history is on the side of publice acceptance of gay marriage. Then again, it was on the side of public acceptance of inter-racial marriage, and I'm still glad law prohibiting that type of marriage were challenged and invalidated in _Loving_. If I were gay and wanted to get married, I might not want to wait a generation.

Then again, court rulings can produce backlashes. I'm not a strategy guy for this movement, so it doesn't really matter what I do. But my comment was aimed at explaining why some folks who do strategize for the movement might want to reject it.

Finally, "black-robed masters"? Seriously?
2.23.2009 9:48am
Dave N (mail):
Joseph Slater,

Hyperbole. It is occassionally effective. Besides, it was late when I posted last night.
2.23.2009 10:49am
Joseph Slater (mail):
Fair enough. Had I posted last night after watching my beloved but deteriorating Detroit Pistons get annihilated by the Cleveland Cavs, I might have resorted to significantly uglier hyperbole.
2.23.2009 11:03am
cmr:
In 1967, at the time of Loving, interracial marriage had already been decriminalized by thirty-five states (I think). It was still mostly prevalent in the Southern states, and the Loving decision fit into the larger civil rights narrative of the time. People act like the courts overturning anti-miscegenation laws was an early case of engineering tolerance for interracial couples, but it could be argued that that's where society was going anyway.

On a side note, South Carolina "officially" did away with their anti-miscegenation laws, by vote, in 1999.

Same-sex marriage is having the opposite affect, because thirty states have voted to have language put onto the books that marriage is only between a man and a woman. If SSM was nationalized, they would be telling most states their beliefs about marriage are wrong. The Majority Decision in Loving wasn't saying that. I'd also like to mention that people stretch the civil implications of Loving way past its intent, IMO. It was a CRIMINAL case. No gay marriage case will ever be a criminal case, unless we enact legislation stating that homosexuals cannot marry, lest they imprisoned, fined, or banned from their state.

People keep arguing for the civil permission to marry THAT THEY ALREADY HAVE. I don't know why. This is about homosexual couples receiving marital benefits. Why do they deserve these benefits at either the state or federal level? All the matters of love and intimacy would be apropos if there was a civil ban on marriage. Since there is not, this is about policy, and explaining why it should change. No one seems to want to engage THIS question.
2.23.2009 11:15am
William D. Tanksley, Jr:
Rather, the way I answered your challenge, simply showing that SSM BENEFITS society at all, would be enough to establish a "rational basis" for it.


I respectfully disagree. I think you'd have to show that changing marriage from "of opposite sex" to "of any sex" was beneficial in order to establish a rational basis.

What we're talking about doing here isn't _adding_ a new institution; it's modifying an existing one. The purpose of the existing institution is complex (since it emerged rather than being designed by a human), but some of the functions it serves include allowing society to encourage fathers to stay with their offspring and mates rather than running off to new mates. In modern society, the government uses tax policies to perform some of that encouragement.

Modifying an institution that wasn't designed by humans is always a risky affair; whether one thinks of it as "playing God" or "playing Darwin", it's not to be done lightly.

I do think we can do it. I just don't think the common pro-SSM arguments are on the right track; they lead to removing ALL restraints from marriage (a process which began long ago, of course).

-Wm "standing athwart history, shouting STOP"
2.23.2009 12:17pm
William D. Tanksley, Jr:
Does it benefit society to have these people live their lives on the margins, or closer to the margins? To exclude them from one of the great forces for stability in our society -- if they are fundamentally as they present themselves to be?


This is a truly fundamental question, and a great post. I hesitate to quote it selectively. Please read it, people.

But... "stability" is only one part of the benefits of socially recognised marriage, although an important one. Another problem marriage addresses is sexual inequality; in the world we live in the sexes are not equal. The female gets pregnant and bears children; the male does not. Officially recognised marriage allows society to condemn runaway mates and condone stable mates -- a process which favors the mate who's typically stuck with the child de facto, the female.

This doesn't prove that SSM is bad. All it does is show that the asymmetric form is okay. But before one can change the definition of marriage to allow SSM as a concept, one should ask whether the existing enforcements and/or benefits are adequate to give at least the current situation using the new definition -- or will new abuses be opened that cannot be addressed?

Such new abuses are obvious under (say) polygamy, which would obviously render useless the current tax incentives for marriage. It's not obvious if there would be tax problems with SSM; I suspect not (and if there were, I suspect they could be addressed in an equitable way).

Just trying to think about this fairly.

-Wm (although I am opposed to SSM, I hope my arguments aren't uselessly one-sided)
2.23.2009 12:34pm
nomilk:
Gay marriage opponents who have read polls showing that younger folks approve of gay marriage much more than older folks might see the writing on the wall and try for a compromise. Gay marriage proponents, reading the same poll, might refuse this lame compromise for the same reason.


If you think public opinion polls are destiny, I say, good luck. It's hard to make predictions, especially about the future, but I could just as easily argue that as the younger cohort comes of age, gets married, and has children, its members will become more conservative and supportive of traditional marriage. Religious conservatives are also much more fecund than liberal or irreligious folk, and so demographics will shift in support of traditional marriage. Finally, the country is about due for a religious awakening that will also increase support for traditional marriage.
2.23.2009 3:16pm
Joseph Slater (mail):
It is hard to make predictions, and I'm not 100% sure about anything happening in the future (although I'm increasingly skeptical about the Lions winning a Superbowl in my lifetime).

But attitudes toward equal rights, once they start evolving, don't tend to shift back. There hasn't been any significant backsliding re equal rights for women or blacks, and opposition to both had some religious components. Gays and lesbians have won a lot of public acceptance and legal rights in my lifetime (notably but not exclusively in employment discrimination), and were I a betting man, I would bet that would continue.

By the way, I would predict that "getting married and having children" won't change the attitudes of younger folks who are more tolerant of gays and lesbians. As a married parent myself, I can tell you that the existence of gay marriage doesn't bother me at all. Lord knows the fact that gays and lesbians can legally marry someplaces doesn't have any impact on my marriage.
2.23.2009 3:59pm
Bob Van Burkleo (mail):
I could just as easily argue that as the younger cohort comes of age, gets married, and has children, its members will become more conservative and supportive of traditional marriage.

But it would go against the facts - an analysis of Gallup polls over the decades on this subject shows that opinions really don't change (in fact I think it was in a previous thread here years ago where this was brought up). It is all a waiting game for the dinosaurs to go extinct.
2.23.2009 4:14pm
zuch (mail) (www):
cmr:
And they know that the gay community is a very litigious lobby to begin with, so they figure the threat of a law suit could be enough to force churches to solemnize gay unions who couldn't fight this battle in court.
Perhaps. But that's because they're eedjits that listen to -- and believe -- the scaremongering of the RW foamer talking heads, who say stuff like this (and even run ads saying this in California), just like they're up-in-arms about the new Imminent Return Of The Fairness Doctrine that the RW talk radio foamers are all on about. The RW has always been the Party Of Paranoia: Warning us of the Peril of Commies, blacks, lib'ruls, Teh Gay, and those people that want to pollute your Pres'shus Bodily Fluids with fluoride....

Cheers,
2.23.2009 5:37pm
nomilk:
But it would go against the facts - an analysis of Gallup polls over the decades on this subject shows that opinions really don't change (in fact I think it was in a previous thread here years ago where this was brought up). It is all a waiting game for the dinosaurs to go extinct.



Gallup has only been asking the question since 1996, so I'm not sure how anyone can draw such sweeping, generational conclusions.

In the meantime, the "dinosaurs" keep winning the only polls that matter.
2.23.2009 5:41pm
zuch (mail) (www):
Greg Q:
Once again, I will present my challenge:

Can anyone provide a "reasonable" amount of proof that same sex marriages benefit society, on average, as much as heterosexual marriages benefit society?

If not, then there is no rational basis for society to give the members of those unions the same benefits it gives to members of heterosexual marriages.
While we wait for that, can you provide a "reasonable" amount of proof that interracial marriages benefit society, on average, as much as intraracial marriages? If not, then maybe the aptly named Loving v. Virginia was wrongly decided. After all, Virginia's miscegenation laws did not discriminate (being applicable in the same way to both whites and blacks, and were meant to further these benevolent rational purposes:
"[T]he state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride,..."
As one judge put it:
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
Cheers,
2.23.2009 5:47pm
nomilk:
But attitudes toward equal rights, once they start evolving, don't tend to shift back.



On the contrary, nothing is inevitable. One of my takeaways from the work of John Boswell was that every period in Western history in which homosexuality became more open or accepted was followed by a period of backlash. As the late Richard John Neuhaus was fond of saying, we can't turn back the clock to the time when we couldn't turn back the clock.


As a married parent myself, I can tell you that the existence of gay marriage doesn't bother me at all. Lord knows the fact that gays and lesbians can legally marry someplaces doesn't have any impact on my marriage.



Goodness, can't we retire the canard of "Gay marriage won't affect my marriage"? First, I hope we're not so self-centered as to think that something is right or wrong only if it affects us individually. Second, setting aside all of the obvious effects on religious liberty, public accommodations, and employment, more fundamentally, SSM will codify in law an understanding of marriage that is contrary to the traditional understanding. Granted that the erosion of the traditional understanding has been under way for some time and is not the "fault" of homosexuals or SSM, but still SSM will make it all but impossible to revive traditional marriage as a social institution. That will affect everyone.
2.23.2009 6:13pm
zuch (mail) (www):
Nomilk:
Since traditional-marriage supporters have won every electoral contest over SSM, I don't know why they would embrace this "compromise." Seems like surrender to me.
Not exactly true. Not to mention, the states where such "electoral contests" have largely been run are hardly representative. But largely irrelevant as well; should black civil rights in the South have depended on electoral victories in those states (other states not holding such electoral contests because there was not so much need to)?

Cheers,
2.23.2009 6:37pm
zuch (mail) (www):
Nomilk:
Since traditional-marriage supporters have won every electoral contest over SSM, I don't know why they would embrace this "compromise." Seems like surrender to me.
Not exactly true. Not to mention, the states where such "electoral contests" have largely been run are hardly representative. But largely irrelevant as well; should black civil rights in the South have depended on electoral victories in those states (other states not holding such electoral contests because there was not so much need to)?

Cheers,
2.23.2009 6:38pm
zuch (mail) (www):
Bart:
Civil unions are simply a wedge to generate EPC arguments and an ethical cop out.
Really? How so? FWIW, my marriage is a "civil union" and requires the blessing of no religion to give it effect. To be blunt, I really don't care whether it is called a civil union or a marriage by the state; the end result is the same ... but I'd certainly take offence if someone wanted to say that I'm not really married because I have no interest in what any religion (some of which might oppose my marriage) thinks of our union ... and I'd take further offence and legal action if they decided to discriminate against me for my choice of partner.

Cheers,
2.23.2009 6:54pm
zuch (mail) (www):
nomilk:Religious conservatives are also much more fecund than liberal or irreligious folk, and so demographics will shift in support of traditional marriage.While intolerance and bigotry can be gotten from your parents (see, e.g., Rogers and Hammerstein), it doesn't seem to have enormously high heritability. Why, you even have people like Bristol Palin talking more sense than her parents. ;-)

Cheers,
2.23.2009 7:03pm
Desiderius:
Nick056,

"So let's assume that there are homosexual persons, instead of homosexual behaviors."

I hate to be a wet blanket (your comment was one of the finest I've read on the VC), but I'm afraid you here assume away the problem, at least regarding marriage. It is a testament, I think, to Western Civilization that short of marriage we have thus far managed to make room for such divergent views on this question. But marriage may be a bridge too far.

This is because marriage is the clearest statement in practice (even when honored in the breach by the tribute vice pays to virtue) of the core liberal tenet that urge is not fate, let alone identity. Nearly every married straight man is continually reminded that his own inborn sexual preference to spread his seed far and wide is severely restricted, often with his own cognizance and approval, for the greater good of society, that he has no such freedom to redefine the institution of marriage around satisfying his own urges, that that institution is a product of both biology and centuries of cultural evolution, and that the interests of the progeny of such marriages, and the future generations they constitute, come before his own, with little complaint on his part, indeed often enthusiasm.

A second difficulty is that marriage and the families created thereby are the institutions most directly entrusted (with the decline/abdication of church influence in the wider society) with passing on this tradition that one's urges do not determine who or what one is, that individual and/or immediate gratification can, and indeed should for cause, be delayed or deferred to a greater or a future good, and that should the child see that the child's own interests are being subordinated to that of the parent or guardian, that lesson is much less likely to take hold. Whether being raised by both one's natural parents is in the child's interest or not in some abstract sense, I know few children who do not perceive it to be so.
2.23.2009 7:21pm
William D. Tanksley, Jr:
While we wait for that, can you provide a "reasonable" amount of proof that interracial marriages benefit society, on average, as much as intraracial marriages?


To rephrase your question (and catch myself in your net), can I provide a reasonable amount of proof that changing the definition of marriage to allow interracial marriages will benefit society, etc.?

My answer: your question is incorrect because the cases are not parallel. The conflict over interracial marriage was not a question about the definition of marriage, but rather about possible harm caused by allowing marriage between two different cultures (or races, but race is minor compared to culture).

Although some people spoke of the "intentions of God", and no doubt others would speak of the nature of cultural differences and their impact on close relationships, there's no question that neither of those affects any part of any definition of marriage; they affect only the advisability of such marriages, and at that only on a statistical level (i.e. all other things being equal, a marriage between two similar cultures can be expected -- in the statistical sense -- to be more stable than one between two dissimilar cultures).

In this case, we're considering not whether entering into a homosexual relationship is advisable; we're inspecting whether the definition of marriage should be expanded to include all couples, rather than only couples whose members are the opposite sex.

I think we should be also asking whether some of the incentives we give to married folks should be available to others -- whether or not we decide the above point in favor of same-sex marriage. Sex isn't the only reason to form a couple, and couples aren't the only way to form unions (no, I'm talking about polygamy, which is still illegal).

I'm suspicious of all this, myself, but that doesn't stop me from asking.

-Wm
2.23.2009 8:27pm
John D (mail):
This thread has gone again into the meme of "show me how same-sex couples benefit society," or "show me how same-sex marriage would benefit society."

I'm not going into a lengthy explanation. They do. It does.

Just try to refute it. Give me the benefit of the doubt.

After all, does it really benefit society that I'm allowed a drivers license? We just take it as a given that the state isn't going to forbid me to hold a license unless I've got some significant demerits (drunk driving arrests, for example).

In the case of the drivers license, the onus is on society to show that we'd all be better off if I didn't have a drivers license. Otherwise, as an adult, I'm entitled to apply for one.

The quiz for a marriage license is much shorter and you don't have to renew the thing. The argument on my side is that, like a drivers license, you presume that adults are entitled to the thing unless you can make a significant case otherwise.

I want to stop here to note that the marriage license is solely a license to marry. It is not a license to procreate; we do not punish people who procreate without a marriage license, no matter how avidly some individuals would with that.

On this blog we're surrounded by lawyers who I'm sure all know that marriage in contemporary American society is a collection of legal rights and obligations.

Marriage clarifies matters in family and property law.

Take for example my exchange with John Moore:
John Moore: I doubt if any state in the union would vote down hospital visitation rights


Me: Utah just did


John Moorre: Only as part of a larger law, which included inheritance rights - which are very controversial.


By the time I saw it, lots of other posts had been made, so thought of letting it lie. But wait, aren't conservatives generally against what they term the "death tax," the taxes paid to the government when property changes hands during a inheritance? Shouldn't this be the right for same-sex couples that conservatives love, since it chips away at inheritance taxes?

There are all these problems of who owns what and who gets to decide that has caused us to create a huge body of family and property law (and then we employ lawyers to help us sort it all out, since even then all the questions aren't made smooth).

I know that people on this blog should generally be in favor of anything that creates more billable hours for lawyers, but I think that same-sex couples deserve access to these laws and the clarity they can bring.

The way we provide that is with a marriage license. This government document that makes next of kin of people whom we obligate to be previously unrelated. As much as I am ready to malign Rauch, I like his line "marriage creates family out of thin air."

You cannot deny that people form same-sex unions. It's wrong to put obstacles in people's paths, to deny them full protection of the law. I know that people have these religious associations with marriage, but I'm married and I filled out the paperwork.

It's a government document. We cannot allow religion to intrude on the free exercise of our rights.
2.23.2009 9:09pm
Waldo (mail):
Zoe E Brain:


I know cases like mine are rare. But they blow away all of the arguments against same-sex marriage, when those who oppose it so strongly can't even agree which sex is the same for people like me, and where the arguments about procreation and a stable family environment composed of both biological parents are exploded. My son has that. It only takes one exception to disprove an absolute.

Not really, because marriage is also about your relationship with your son. Since you are a father, you are functionally male. You therefore should be allowed to marry the mother of your child. That principle is consistent with Loving, but not with same-sex marriage.

Next explosion?
2.23.2009 9:13pm
trad and anon (mail):
Second, setting aside all of the obvious effects on religious liberty, public accommodations, and employment, more fundamentally, SSM will codify in law an understanding of marriage that is contrary to the traditional understanding. Granted that the erosion of the traditional understanding has been under way for some time and is not the "fault" of homosexuals or SSM, but still SSM will make it all but impossible to revive traditional marriage as a social institution.
Ah, yes, the "traditional understanding." The contemporary institution of love-marriage is nothing like what it was at the founding of the Republic, when women were functionally the slaves of their husbands. Their husbands owned their property and could could beat them (though that was de jure illegal in some communities, at least if it was too severe), rape them, and, if they ran away, have them forcibly returned. We scrapped that and developed a new institution in its place, and a good thing it is too.

A remarkable number of things people think of as "traditional" are really quite recent developments. Diamond engagement rings come to mind.

Of course, you'll come back and point out that marriage being between one man and some number of women is by far the most common form of the arrangement (polyandry and group marriages are much rarer), and that across all cultures and all times any form of same-sex union recognition is extremely rare. But the same could be said of equal-partner marriage, which was (all but?) unknown before we enacted it in bits and pieces over the last 200 years.

In any case, the idea that there is some institution called "traditional marriage" that remained the same until we moderns started fucking with it with our Married Women's Property Acts, no-fault divorce statutes, spousal rape laws, and sex equality norms is without any grounding in historical fact. Like all cultural institutions, the nature of marriage has been in flux throughout history.
2.23.2009 10:31pm
Perseus (mail):
marriage in contemporary American society is a collection of legal rights and obligations.

The obligations part is precisely why a marriage license is not equivalent to a driver's license. The state's major interest in marriage is to promote certain kinds of behavior much like a tax deduction for charity, which benefits individual taxpayers in exchange for doing something that benefits broader society. It is therefore a legitimate question to ask whether expanding marriage eligibility to include same sex unions benefits the public as a whole.
2.23.2009 10:54pm
Zoe E Brain (mail) (www):
Functionally male? Take that up with my Ob/Gyn..I think she'd disagree there. When the change hit, over 3 years after my son's birth, complete sterility was one of the first symptoms.
2.23.2009 11:06pm
Randy R. (mail):
cmr:" People act like the courts overturning anti-miscegenation laws was an early case of engineering tolerance for interracial couples, but it could be argued that that's where society was going anyway."

When 80% of the people in the US were against interracial marriage at the time of the Loving decision, it's difficult to argue that society was going anywhere near support of same.

"People keep arguing for the civil permission to marry THAT THEY ALREADY HAVE. I don't know why. This is about homosexual couples receiving marital benefits. Why do they deserve these benefits at either the state or federal level? . No one seems to want to engage THIS question."

That's because the question is either a) stupid or b) hopelessly naive.

The fact is that I cannot marry my boyfriend, who is the only person I want to marry, (and vice versa). That is a right you have but I do not.

Desiderius: "This is because marriage is the clearest statement in practice (even when honored in the breach by the tribute vice pays to virtue) of the core liberal tenet that urge is not fate, let alone identity. "

Sorry, but that's a serious misreading of sexuality. I do not have some gay urges, and some striaght urges, and so I can just control them. My urges are solely for men, never for women. Sure, I can control my urges for men and not try to rape every man I find attractive, but I still have urges towards men and only men. I think you should learn a little bit about sexuality by talking to actual real live gay men about their lives, and then even to professionals who have studied the subject in great detail.
2.23.2009 11:32pm
Randy R. (mail):
cmr: "I think the point is, marriage normalizes and regulates procreation, and since we need procreation to forward society, there is obviously some need for regulation of it, i.e. marriage. The benefits therein are just to make it easier for parents to take care of their children, so the state doesn't have to. There's also a wealth of benefit in children being raised by their parents, but that should go without saying. "

And seeing that there are thousands of gay couples already raising children, this is an excellent argument for why they should be allowed to get married. Thanks!
2.23.2009 11:34pm
Randy R. (mail):
nomilk: "Granted that the erosion of the traditional understanding has been under way for some time and is not the "fault" of homosexuals or SSM, but still SSM will make it all but impossible to revive traditional marriage as a social institution."

So traditional marriage is dead in Massachusetts? Connecticut? Canada? Belgium? The Netherlands? Spain? S. Africa? Denmark?

Seems to me it's just as alive and well in those places as any other place. But hey, your fearmongering seems to be effective, so keep it up!
2.23.2009 11:37pm
Math_Mage (mail) (www):
Randy R:
That's because the question is either a) stupid or b) hopelessly naive.

The fact is that I cannot marry my boyfriend, who is the only person I want to marry, (and vice versa). That is a right you have but I do not.


cmr's point is that the issue isn't about marriage but about governmental recognition of that marriage. His argument is that marriage doesn't have to involve government. What's stopping you from marrying your boyfriend? Only the desire to have that marriage recognized publicly, and formalized by the government.

Now, I believe that there's still an equality issue since the government recognizes some types of marriage and not others. The solution may be to expand federal marriages; on the other hand, it may be simply to eliminate marriage as a public institution, and adopt civil unions as the vehicle for conferring benefits on "married" couples (marriage would thus be a private affair, and free from most government-imposed constraints). There may even be an Establishment Clause argument along those lines, since (in the US at least) churches were marrying people long before our government was developed. Of course, IANAL, or even a historian, so my opinion is thus unrefined.
2.24.2009 12:53am
Tom G (mail):
Perseus:


"Expanding civil marriage eligibility means that taxpayers, businesses, hospitals, associations, churches, etc., will have their freedom to treat such relationships as they please curtailed, which, of course, is the whole point. But the advocates of SSM have presented a weak case for how the public benefits from SSM, instead relying on "rights talk."


Wow, good job completely ignoring the point I made.

I want you to please explain why interracial, post-divorce, and interreligious unions do not violate people's freedom in the same manner.

Why should Catholic taxpayers, businesses, hospitals, etc. be forced to treat people in fourth marriages as actually married?

SSM is a public benefit to millions of same-sex couples and the children they are raising and it harms no one. It benefits the friends and families of these people who want to see their loved ones happy. The fact that some one is doing something you don't like and that hurts your feelings does not mean your freedom has been curtailed.

As far as the "public benefit" argument: I am assuming, then, that you have no problems with nations such as Saudi Arabia forbidding the practice of Christianity. After all, Christians have not proven that Christianity is as much a benefit to Saudi society as Islam. Most Saudis believe that civilization cannot exist without Islam, so the Christians should hush with all of their "rights talk".
2.24.2009 1:09am
Randy R. (mail):
Math Mage: "What's stopping you from marrying your boyfriend? Only the desire to have that marriage recognized publicly, and formalized by the government."

An atheist either cannot or will not get married in a church, even one that supports SSM. Therefore, for the atheist, the only option is a justice of the peace. Except in MA and CT, I am prohibited from getting married, even under your optimistic view.

Even in MA and CT, the federal gov't will not recognize SSM. So on the one hand, you are correct, nothing stops us from getting married there. On the other hand, having the marriage recognized publicly and formaized by the gov't is a major part of why *any* people get married.

" it may be simply to eliminate marriage as a public institution, and adopt civil unions as the vehicle for conferring benefits on "married" couples (marriage would thus be a private affair, and free from most government-imposed constraints)."

I believe this is the most sensible compromise, and much better than the one proffered by Rauch and Blankenhorn. Get gov't out of the marriage business altogether, and let them approve only civil unions, which will be available to all. Then let your own church decide what is marriage to them.

Zoe E. Brain: We need more voices like yours. Thanks for your story. It is ignored because it is an easy one to ignore -- no one else is making that argument. So it's up to you and others like you to keep raising the argument and force people to face up to it. As you are fully aware, no one wants to face up to it because it's uncomfortable to their entrenched biases, be they liberal or conservative.
2.24.2009 1:11am
Randy R. (mail):
"Religious people DO NOT TRUST THE GAY COMMUNITY."

Glad to see that you repay the favor. Too many religious people have treated gays horribly for us to trust them. We know that they will lie about us, demonize us, and use every trick in the book to deny us our rights.

So that's why I distrust this so-called compromise. As we have seen with the Mormon leaders, they said during the Prop. 8 discussion that they are not anti-gay, and support civil unions and hospital visitations rights and so on.

But as soon as SSM got shot down, the very same leaders now *oppose* civil unions and any rights at all for gays. Simimarly, in Michigan, proponents of the bill that outlawed SSM said that it would never be used to deny domestic partner benefits for those that already have them. Of course, as soon as the bill was passed, these same people filed suit to deny domestic partner benefits to those that alredy have them.

We understand very well that for the religious people who DO NOT TRUST THE GAY COMMUNITY, there is no such thing as compromise, and will lie about their positions in order to deny gays any rights at all. At least you are being honest about it.

Incidently, there is a widely publicized case in Maryland whereby a man was injured in a car accident. His male partner rushed to the hospital to see him, and was denied access because he was not a spouse, even though they were registered as domestic partners, and carried a power of attorney with him. The man later died, and the hospital refused at all times for his partner to visit with him. At least they did their part to save traditional marriage!
2.24.2009 1:19am
John D (mail):
Perseus:
The state's major interest in marriage is to promote certain kinds of behavior much like a tax deduction for charity, which benefits individual taxpayers in exchange for doing something that benefits broader society.


Could you be more specific? What "kinds of behaviors" would you be referring to? This, of course, would have to be a behavior consistent through all marriages and absent outside of it.

So you can't be talking about heterosexual intercourse and procreation. I may not know a lot about heterosexuality, but I do know that a marriage license is not required for procreation.

I say, again: the state's major interest in marriage is to make simpler otherwise thorny questions of marriage and property law.

If I were rendered unconscious, I certainly hope the hospital listens to my husband and doesn't go looking to my parents for medical directives. Why would it be in the interest of the state to take that right away? (And, yet, in a location where my marriage is not recognized, I would be in exactly that situation.)

Is there actually anything done by the state with regard to opposite-sex married couples that doesn't make perfect sense to extend to same-sex married couples?

And while we're at it, once DOMA's gone, the U.S. Government ought to pay Gerry Studd's husband the back pension money.
2.24.2009 1:21am
Randy R. (mail):
Willliam Tanksley: "but some of the functions it serves include allowing society to encourage fathers to stay with their offspring and mates rather than running off to new mates."

Exactly! Which is why the children of gay parents deserve the security of having married parents, right?

Or are you going to suggest that the children of gay parents deserve less for some reason? Or are you just going to ignore the issue because it's uncomfortable?
2.24.2009 1:24am
Tom G (mail):


Gallup has only been asking the question since 1996, so I'm not sure how anyone can draw such sweeping, generational conclusions.


Perhaps they have only been asking about gay marriage since 1996, but they have been asking about gay rights since the 70s and opinion has shifted dramatically and consistently in favor of gay rights.

If people were pro-gay when they were younger and became less so as they aged, the poll numbers wouldn't change-in fact one would expect a drop in support of gay rights as the boomers aged.

The most anti-gay age group is those over 65. Let's take a hypothetical 70 year old man who is opposed to SSM and civil unions. Do you think if you hopped in the way-back machine and interviewed he in 1960, when he was 22, he'd feel the same way about homosexuality as the average 22 year old today?

Older people aren't homophobic because they became so as they aged; they are homophobic because they were raised in a homophobic time and carried archaic attitudes with them as they aged.
2.24.2009 1:32am
Tom G (mail):
nomilk:


One of my takeaways from the work of John Boswell was that every period in Western history in which homosexuality became more open or accepted was followed by a period of backlash.

It is true there were occasional movements of gay progress in very specific times and places in the past, including Greenwich Village in the 20s and Berlin in the early 30s, which later vanished. But acceptance of gays never reached this high a level, in any place, much less throughout the Western world, as it has today. I think we have reached a critical mass that it would be impossible to reverse, absent a resurgence of fascism.

We could compare this to the other eternal minority of the West-Jews. Over the last 2,000 years antisemitism was generally high in Christendom with occasional pockets of tolerance. Jews were emancipated by Napoleon, only to see many of those reforms reversed. And as we all know, the worst crimes against Jews were in the 20th century.

But while I can't claim that antisemitism is dead, I think most people would agree that the days of the jewish ghetto and blood libel are safely behind us for good.
2.24.2009 1:55am
cmr:
Perhaps. But that's because they're eedjits that listen to -- and believe -- the scaremongering of the RW foamer talking heads, who say stuff like this (and even run ads saying this in California), just like they're up-in-arms about the new Imminent Return Of The Fairness Doctrine that the RW talk radio foamers are all on about. The RW has always been the Party Of Paranoia: Warning us of the Peril of Commies, blacks, lib'ruls, Teh Gay, and those people that want to pollute your Pres'shus Bodily Fluids with fluoride....

Cheers,



It's not completely unfounded, though. Because the gay community does like to act as if life exists in a vacuum, and legalizing gay marriage will have no affects on anyone else, and will only positively benefit them. I think right-wingers are just speaking to what they wont speak to. It's also because, to one degree or another, many of these have already happened. Gay marriage being taught in schools? In Mass, check. Religious organizations being sued for not acknowledging homosexuality as morally upright? Check. It's not just fearmongering, it's being realistic.
2.24.2009 1:56am
Math_Mage (mail) (www):
Randy R:

Your position is somewhat confusing to me. On the one hand, you agree with the idea of government getting "out of the marriage business altogether," on a general level. On the other hand, you personally look to the government as the only institution that can marry you to your boyfriend (either through a church or a justice of the peace), and insist that you can't be married otherwise because the government doesn't recognize SSM.

So on the one hand, you say that marriage can be a wholly private institution; on the other, you deny that marriage can be conducted outside the public sphere. There's my confusion. What, apart from the public benefits of a government marital license, is preventing you and your boyfriend from privately recognizing your own marriage through an independent ceremony?
2.24.2009 1:58am
cmr:
cmr:" People act like the courts overturning anti-miscegenation laws was an early case of engineering tolerance for interracial couples, but it could be argued that that's where society was going anyway."

When 80% of the people in the US were against interracial marriage at the time of the Loving decision, it's difficult to argue that society was going anywhere near support of same.


Not when thirty-five states had already repealed their anti-miscegenation laws. A public poll (that was probably done by a biased pollster to counteract the encroaching acceptance of intermarriage, and was likely not comprehensive by any means...of course that's just speculation) doesn't negate that fact.


"People keep arguing for the civil permission to marry THAT THEY ALREADY HAVE. I don't know why. This is about homosexual couples receiving marital benefits. Why do they deserve these benefits at either the state or federal level? . No one seems to want to engage THIS question."

That's because the question is either a) stupid or b) hopelessly naive.

The fact is that I cannot marry my boyfriend, who is the only person I want to marry, (and vice versa). That is a right you have but I do not.


No, that isn't a right I have. If I wanted to marry someone who is already married, a child, an animal, two or more people, or a close relative, I couldn't...even if I wanted to. What's naive here is suggesting that there's a right somewhere to marry the person you want...when that's never been the case. Still, functionally, we both have the same right. If I wanted to marry a male friend for the tax breaks, I couldn't...even though I want to. It's really no different than you wanting to marry someone you're romantically involved with. Not in the eyes of the law, at least.
2.24.2009 2:03am
Math_Mage (mail) (www):
So basically, I suppose my question is this:
Are SSM advocates looking to get gay marriage through government because they feel that is the only route, or because they feel they deserve the same government benefits currently accorded to heterosexual couples? Is this about SSM, or about government-associated benefits that would come from public recognition of SSM? Not that one is any more or less valid than the other, bug I would like to define the terms of the discussion a bit better.
2.24.2009 2:06am
cmr:
cmr: "I think the point is, marriage normalizes and regulates procreation, and since we need procreation to forward society, there is obviously some need for regulation of it, i.e. marriage. The benefits therein are just to make it easier for parents to take care of their children, so the state doesn't have to. There's also a wealth of benefit in children being raised by their parents, but that should go without saying. "

And seeing that there are thousands of gay couples already raising children, this is an excellent argument for why they should be allowed to get married. Thanks!


And seeing that there are thousands of gay couples already raising children, none of which were bore from those couples, that's an excellent reason for them to still fall under Dependent status for tax purposes, but not for their infinitely barren union. You're welcome.
2.24.2009 2:06am
trad and anon (mail):
An atheist either cannot or will not get married in a church, even one that supports SSM. Therefore, for the atheist, the only option is a justice of the peace. Except in MA and CT, I am prohibited from getting married, even under your optimistic view.
Have you considered leaders of non-theistic religions like Buddhism? Or a Reform rabbi? Reform Jews don't really care if you believe in any of their God-talk, and you could easily find a rabbi who would perform a wedding without any references to God. Or you could go so far as to get a Unitarian wedding: they're happy to perform them for non-Unitarians, and there's no theological content at all.
Randy R. (mail):
"Religious people DO NOT TRUST THE GAY COMMUNITY."

Glad to see that you repay the favor. Too many religious people have treated gays horribly for us to trust them. We know that they will lie about us, demonize us, and use every trick in the book to deny us our rights.
Can we please stop this nonsense about there being a war between gays and "religious people"? The battle is between gays and some religious people. There are non-bigoted religions (some forms of Buddhism, the UCC, some Quaker meetinghouses, etc.) and there are plenty of adherents of bigoted religions who disagree with, or actively oppose, their denomination's anti-gay theology. There are even some actively pro-gay evangelical Christians fighting the bigoted theology pushed by most evangelical pastors.

Anti-gay bigots have been fighting to define themselves as the only real religious people. I am an atheist, but we should not assist them in this quest by attacking "religious people" as bigots.
2.24.2009 2:09am
trad and anon (mail):
Still, functionally, we both have the same right.
And in the majestic equality of Saudi Arabia, Christians and Muslims are equally free to worship God at the mosque of their choosing.
2.24.2009 2:13am
Math_Mage (mail) (www):
trad and anon:
Can we please stop this nonsense about there being a war between gays and "religious people"? The battle is between gays and some religious people.

+1.
2.24.2009 2:16am
trad and anon (mail):
Incidently, there is a widely publicized case in Maryland whereby a man was injured in a car accident. His male partner rushed to the hospital to see him, and was denied access because he was not a spouse, even though they were registered as domestic partners, and carried a power of attorney with him. The man later died, and the hospital refused at all times for his partner to visit with him. At least they did their part to save traditional marriage!
As far as hospital visitation goes, a power of attorney is not remotely equivalent to marriage for practical purposes. If you're married, you get in stat unless there's some medical reason for preventing all visitors. If you have a power of attorney, they take it and give it to their lawyer, who takes her sweet time to look at it, and they only let you in once she approves it. If she thinks it's inadequate, STBY. You can sue to force them to recognize the power of attorney, but by the time the court acts your partner will be out of the hospital dead or alive.
2.24.2009 2:25am
Tom G (mail):

Not when thirty-five states had already repealed their anti-miscegenation laws. A public poll (that was probably done by a biased pollster to counteract the encroaching acceptance of intermarriage, and was likely not comprehensive by any means...of course that's just speculation) doesn't negate that fact.




There is no need to speculate, the answer is a google away:

According to Gallup, which has tracked the issue since 1958, only 4% of Americans approved of interracial marriage in that year. Public approval of interracial marriage did not reach 50% until 1996.

In 1968, a year after Loving, acceptance was only at 20%. If you feel that 20% public approval is an adequate threshold for courts to strike down restrictions on unpopular types of marriage, then you must think its fine for courts to impose gay marriage because public approval is already higher than that.

Its true that some states repealed miscegenation laws without courts, but if marriage was left up to state legislatures today we were would have far fewer anti-gay laws today and more states, including CA with SSM.

Unfortunately, the hysterical shrieking fundamentalists demand majority votes on the issue. No state has EVER voted to legalize interracial marriage (at least not until very recently when the point was already moot), so why is this the standard for SSM?
2.24.2009 2:33am
cmr:
"Religious people DO NOT TRUST THE GAY COMMUNITY."

Glad to see that you repay the favor. Too many religious people have treated gays horribly for us to trust them. We know that they will lie about us, demonize us, and use every trick in the book to deny us our rights.

So that's why I distrust this so-called compromise. As we have seen with the Mormon leaders, they said during the Prop. 8 discussion that they are not anti-gay, and support civil unions and hospital visitations rights and so on.

But as soon as SSM got shot down, the very same leaders now *oppose* civil unions and any rights at all for gays. Simimarly, in Michigan, proponents of the bill that outlawed SSM said that it would never be used to deny domestic partner benefits for those that already have them. Of course, as soon as the bill was passed, these same people filed suit to deny domestic partner benefits to those that alredy have them.

Couple of things. First off, not to say no religious figure has ever mistreated a homosexual, so don't take this as an absolute statement, but it's pretty obvious that religion isn't a fan of homosexuality. With the exception of Islam (because I don't know Islamic text), most religions do implore those of faith to treat everyone with respect and love. HOWEVER, they don't have to become cheerleaders for your cause. I know the Bible implores people to rebuke sin when faced with it, based on what's in the Bible. It doesn't exactly tell people to make "God Hates Fags" signs, but they're not actually demonizing and mistreating you because they don't condone a lifestyle they see as being sinful.

Christians condone sex between a husband (man) and a wife (woman). They feel as though homosexuality is a deviation of that. It's not the only deviation of it, and gay marriage isn't the only thing they feel de-sanctifies marriage, but it is one in a list. Even Rick Warren agreed that divorce de-sanctifies marriage more gay marriage.

Second thing is, Mormon leaders somehow changed their minds after Prop 8 passed? Oh, you mean because the gay community took it so well and didn't at all give them any reason to re-think their position? Because of course there wasn't any vandalism, violent protests, and bigoted hateful speech directed at them AT ALL in the wake of Prop 8. How could they?!

Sarcasm aside, I don't blame them. I'd have a hard time supporting a group of people who obviously have little respect for my vote and my religious beliefs, but expect me to, in any capacity, go to bat for them.

The Michigan case, I'm not entirely aware of, but I could've sworn that was based on a ruling by the Court of Appeals, and not by any state legislators or anything like that. Fill me in.

I also get the feeling that these are both generalized, wholesale claims that purposefully ignores specific details, but I'll give you the benefit of the doubt...so long as you can link me to some sources corroborating your version of it.

We understand very well that for the religious people who DO NOT TRUST THE GAY COMMUNITY, there is no such thing as compromise, and will lie about their positions in order to deny gays any rights at all. At least you are being honest about it.


More put-upon, victimized rhetoric. Most religious people don't see SSM as a right to begin with. That's something the gay community has taken upon themselves to assert for the religious community, when they have given them no reason to think that. For those who just see this as an issue over marriage, they don't view it as a right because it goes against their orthodoxy. For those who rightly see this as an issue of state-sanctioned benefits, they don't see this issue as being one of civil rights because they don't view governmental hand-outs as being civil rights. That's not to say you should be denied them because of your orientation, but it is to say that there's no compelling reason to extend who gets them based on some ambiguous notion of equality and fairness, or a general standard of existence.

Maybe you need to try and see things from the minds you're trying to change.


Incidently, there is a widely publicized case in Maryland whereby a man was injured in a car accident. His male partner rushed to the hospital to see him, and was denied access because he was not a spouse, even though they were registered as domestic partners, and carried a power of attorney with him. The man later died, and the hospital refused at all times for his partner to visit with him. At least they did their part to save traditional marriage!


Got any links to this story?
2.24.2009 3:05am
John D (mail):
Math_Mage:
So basically, I suppose my question is this:
Are SSM advocates looking to get gay marriage through government because they feel that is the only route, or because they feel they deserve the same government benefits currently accorded to heterosexual couples? Is this about SSM, or about government-associated benefits that would come from public recognition of SSM? Not that one is any more or less valid than the other, but I would like to define the terms of the discussion a bit better.


Yes and yes.

If gay people are to be treated with full equality, then same-sex couples deserve the same government benefits currently accorded to heterosexual couples. Moreover, they need these benefits. There are problems and costs associated with not having them. I've even seen some examples where the lack of same-sex marriage costs governments money too.

Are SSM advocates looking to get gay marriage through government because they feel that is the only route.

Is there another route? I have a certified copy of my marriage license. It was issued by the Commonwealth of Massachusetts. I could go about to members of the clergy, but there isn't one of them who can issue me a marriage license.

When clergy officiate at a marriage, they are acting as an agent of the state. They sign an official form which can otherwise be signed by a government official (specific officials vary somewhat from place to place).

There are lots of routes open to same-sex couples who want to have their union blessed. When I got married, clergy were volunteering to officiate. A blessing of ones union, the actual religious action of the clergy, has no legal validity whatsoever.

If a couple goes through the whole ceremony, but no one signs the marriage license at any point, they're not really married. On any legal question, only the marriage license counts.

In the end, it's about the rights and benefits, which are many and important. Opponents to same-sex marriage never treat these as controversial, claiming that they have no problem with gay couples having these benefits. Blankenhorn concedes this. Even Maggie Gallagher says that same-sex couples deserve rights. (Yeah, there are people commenting on this thread who differ.)

When actual questions of rights come up, opponents to same-sex marriage claim that granting these rights would be giving marriage under another name.

And that's why we get these vague arguments against same-sex marriage.
2.24.2009 3:15am
cmr:
There is no need to speculate, the answer is a google away:

According to Gallup, which has tracked the issue since 1958, only 4% of Americans approved of interracial marriage in that year. Public approval of interracial marriage did not reach 50% until 1996.


Based on what polling sample? And they also didn't factor in Blacks' views on intermarriage at the time.

In 1968, a year after Loving, acceptance was only at 20%. If you feel that 20% public approval is an adequate threshold for courts to strike down restrictions on unpopular types of marriage, then you must think its fine for courts to impose gay marriage because public approval is already higher than that.


You're taking what I said out of context...which is strange considering you quoted me. I said thirty-five states had overturned their anti-miscegenation laws, and because of that, the Loving decision fit into a larger trend of doing away with these discriminatory laws. Like I said, most of the states with remaining statutes at the time of Loving were the southern states (some of which had repealed, then reinstated their laws, btw).

And "public approval" doesn't entirely take into account the full breadth of these laws. Because "disapproval of interracial marriage" and feeling as though those who are interracially married should be punished because of it -- which was the point of anti-miscegenation laws -- aren't the same thing.

Its true that some states repealed miscegenation laws without courts, but if marriage was left up to state legislatures today we were would have far fewer anti-gay laws today and more states, including CA with SSM.

Unfortunately, the hysterical shrieking fundamentalists demand majority votes on the issue. No state has EVER voted to legalize interracial marriage (at least not until very recently when the point was already moot), so why is this the standard for SSM?



First of all, it's true that MOST states had repealed miscegenation without the courts. I'm not sure what you mean by anti-gay laws, so you'll have to expound a little further on that.

Because interracial marriage was banned by way of discriminatory policy that sought to punish those who would go against people's personal views of marriage...whereas gay marriage is simply unregulated and not of the law. There's a fundamental difference between the issue of freedom and the issue of subsidies.
2.24.2009 3:22am
cmr:
In the end, it's about the rights and benefits, which are many and important. Opponents to same-sex marriage never treat these as controversial, claiming that they have no problem with gay couples having these benefits. Blankenhorn concedes this. Even Maggie Gallagher says that same-sex couples deserve rights. (Yeah, there are people commenting on this thread who differ.)



I'd say those who even bother themselves with the benefits component of this discussion in the first place somewhat exaggerate their claims as well. It's called "Rights and Responsibilities of Marriage" for a reason. Being legally married wont always, or entirely, result in a net gain or benefit for same-sex couples. And, it's somewhat impossible to say how, or if, it will benefit any, because so much is entangled in marriage policy. Of course there will be some net gains, but likely, not enough to warrant this being the wedge issue of our time.
2.24.2009 3:31am
John D (mail):
cmr,

Sure, there are rights and responsibilities. Yes, some couples may benefit some ways and lose out on others. It's that sort of calculus that leads some couples to decide that they'll just live together.

Do you have any good reasons for withholding these rights and responsibilities from same-sex couples?

And I agree that it ought not be a wedge issue. Two people in a legal relationship ought to be able to marry (with the caveat that you get to be in one marriage at a time).

But the benefits issue, though real, is tiresome. That's why you see supporters of same-sex marriage say, "sure, what the hell, get the government out of it." That would end the rights and responsibilities and just leave us all looking for sympathetic clergy if we wanted someone to bless our union. Blessed, unblessed; there'd be no legal effect. Couples would not actually be legally related to one another.

The crowd that endlessly tells us that marriage is religious (the ones to whom we say, "well, what about atheists, they can marry") wants to keep this government recognition. They also want to unjustly withhold it from same-sex couples because it offends their religious sensibilities. They don't have that right. It would be the same as if the Catholic Church demanded that all remarriages be declared invalid. They don't have that right.
2.24.2009 3:43am