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More on the Slippery Slope to Same-Sex Marriage:

(This post returns to some points I'd made earlier about the California, Massachusetts, and Vermont same-sex marriage/civil union decisions, and applies them to the Iowa case.)

Like some earlier decisions striking down opposite-sex-only-marriage rules, the Iowa Supreme Court decision helps illustrate what I call "legislative-judicial slippery slopes" — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute.

Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:

  1. Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."

  2. Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."

  3. Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."

Yet consider how the Iowa Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage (some paragraph breaks added):

A second relevant consideration [in deciding whether discrimination based on a characteristic should be closely scrutinized by courts] is whether the characteristic at issue — sexual orientation — is related to the person’s ability to contribute to society. Heightened scrutiny is applied when the classification bears no relationship to a person’s ability to contribute to society. The existence of this factor indicates the classification is likely based on irrelevant stereotypes and prejudice. A classification unrelated to a person’s ability to perform or contribute to society typically reflects “prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others” or “reflect[s] outmoded notions of the relative capabilities of persons with the characteristic.”

Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a person’s sexual orientation to be indicative of the person’s general ability to contribute to society. More importantly, the Iowa legislature has recently declared as the public policy of this state that sexual orientation is not relevant to a person’s ability to contribute to a number of societal institutions other than civil marriage. See Iowa Code § 216.6 (employment); id. § 216.7 (public accommodations); id. § 216.8 (housing); id. § 216.9 (education); id. § 216.10 (credit practices). [Footnote: The legislature has further indicated the irrelevancy of sexual orientation by mandating sex education in the state’s public schools be free of biases relating to sexual orientation, Iowa Code § 279.50, and by securing personal freedom from violence and intimidation due to sexual orientation, id. § 729A.1. Likewise, numerous state administrative regulations indicate sexual orientation is not relevant to a person’s ability to contribute to society. See Iowa Admin. Code r. 191-48.9 (prohibiting discrimination in making or solicitation of viatical settlement contracts on basis of sexual orientation); id. r. 281-12 (preamble) (ensuring access to education meeting child’s needs and abilities regardless of sexual orientation); id. r. 281-12.1 (ordering equal opportunity in educational programs regardless of sexual orientation); id. r. 281-12.3 (ordering school boards to consider the potential disparate impact of student responsibility and discipline policies on students because of students’ sexual orientation); id. r. 281-68.4 (prohibiting discrimination in admission process to public charter schools based on sexual orientation); id. r. 282-25.3 (labeling denial of participation in benefits of educational program based on sexual orientation an “unethical practice”); id. r. 282-26.3 (prohibiting licensed educators from discriminating based on sexual orientation); id. r. 641-131.7 (allowing public health department to take numerous adverse actions against emergency medical care personnel who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641-131.8 (allowing public health department to take numerous adverse actions against training program or continuing education providers who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641-132.10 (allowing denial, probation, revocation, and suspension of authorized emergency medical service programs that discriminate on the basis of sexual orientation); id. r. 645-282.2 (prohibiting licensed social workers from discriminating on the basis of sexual orientation); id. r. 645-363.2 (providing that sexual-orientation-based discrimination by sign language interpreters or transliterators is unethical); id. r. 657-3.28 (providing that sexual-orientation–based discrimination by pharmacy technicians is unethical); id. r. 657-8.11 (same for licensed pharmacies, licensed pharmacists, and registered pharmacistinterns); id. r. 661-81.2 (prohibiting entrance of information regarding sexual orientation into Iowa law enforcement intelligence network information system in most circumstances).]

Significantly, we do not construe Iowa Code chapter 216 to allow marriage between persons of the same sex, a construction expressly forbidden in the Iowa Code. See id. § 216.18A (“[Chapter 216] shall not be construed to allow marriage between persons of the same sex, in accordance with chapter 595.”). Rather, we merely highlight the reality that chapter 216 and numerous other statutes and regulations demonstrate sexual orientation is broadly recognized in Iowa to be irrelevant to a person’s ability to contribute to society. [Footnote: Other federal and state authority supports such a conclusion. See Kerrigan, 957 A.2d at 435 (relying on Connecticut statutes banning discrimination based on sexual orientation “in every important economic and social institution and activity that the government regulates”); cf. Frontiero, 411 U.S. at 687 (Brennan, J., plurality opinion) (interpreting congressional protections against gender discrimination as suggesting legislative determination such classifications are “inherently invidious” and implying significance of “conclusion of coequal branch of Government” in deciding whether to apply heightened scrutiny).] Those statutes and regulations reflect at least some measure of legislative and executive awareness that discrimination based on sexual orientation is often predicated on prejudice and stereotype and further express a desire to remove sexual orientation as an obstacle to the ability of gay and lesbian people to achieve their full potential.

Therefore, we must scrutinize more closely those classifications that suggest a law may be based on prejudice and stereotype because laws of that nature are “incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.” Thus, although we do not interpret chapter 216 to allow same-sex marriage, we rely on the legislative judgment underlying chapter 216 to determine the appropriate level of scrutiny when sexual orientation is the basis for a statutory classification. Based on Iowa statutes and regulations, it is clear sexual orientation is no longer viewed in Iowa as an impediment to the ability of a person to contribute to society.

Similar arguments were made by the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, and by the California Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts and California) and same-sex domestic partnership benefits (Vermont).

Of course, some people might like this slippery slope, because they like what's on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-'90s, some gay-rights advocates felt the need to pooh-pooh the 'slippery slope' argument by foes that we'd ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. 'Our foes kept saying, 'This is a slippery slope to marriage,' and we kept nodding our heads, 'Yep,'' says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement's two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.") I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative.

But it seems to me that decisions such as the ones in California, Connecticut, Iowa, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), the possibility of a slippery slope has to be taken seriously.

And this is true even though the past decisions are distinguishable from a future one. Employment discrimination laws, for instance, are not the same as same-sex marriage. Legislative decisions are not the same as constitutional ones. It was certainly possible to draw the line between legislative decisions to ban private discrimination in employment and judicial decisions to ban governmental discrimination in deciding who may marry. That two matters are distinguishable does not mean that they will be distinguished by future decisionmakers. And in fact they may influence future decisionmakers even when the earlier decision expressly disclaims any attempt to accomplish what the later decision did, as was the case with the Iowa antidiscrimination statutes, which expressly said that they "shall not be construed to allow marriage between persons of the same sex." Though they themselves weren't construed as allowing same-sex marriage, they were indeed construed as a data point in favor of a constitutional decision allowing same-sex marriage.

So people who worry about slippery slopes generally — and who worry about slippery slopes in the field of sexual orientation and the law — can't be lightly dismissed. And it is reasonable for them to worry: If we have gotten this far partly through slippery slope effects, will we slip further, and to what? In particular, would this increase the likelihood of further broadening of antidiscrimination laws? Would it increase the likelihood that groups (such as the Boy Scouts) that discriminate based on sexual orientation will be excluded from tax exemptions, just as groups that discriminate based on race are often excluded from tax exemptions? Would it increase the likelihood that such groups will be excluded from generally available benefits?

Would it increase the likelihood of broader restrictions on anti-homosexuality speech — in government-run organizations, or in private organizations coerced by government pressure — by analogy to the broad support in many areas for restrictions on sexist speech? Would it increase the likelihood of restrictions on people's choosing roommates based partly on sexual orientation, or advertising such preferences in "roommates wanted" ads? Would it increase the likelihood of punishment of wedding photographers who refuse to photograph same-sex weddings (even if they have religious objections to participating this way in such ceremonies, and even if they feel that requiring them to photographing same-sex weddings compels them to create artistic works that they do not wish to create)? Would it increase the likelihood that legislatures will repeal religious institutions' partial exemptions from some bans on sexual orientation discrimination in employment?

Perhaps some of this would have already been the case under Iowa statutes — such restrictions are primarily the consequences of antidiscrimination statutes, not of same-sex marriage as such. And the conclusion that the government generally may not discriminate based on sexual orientation is distinguishable from a conclusion that private entities generally may not discriminate based on sexual orientation, or that individuals may not say things that create an "offensive environment" based on sexual orientation.

But as we saw, that two things are distinguishable does not mean that they will be distinguished, and a governmental judgment in one field may be used by other governmental decisionmakers as a reason to push further in another field, whether in interpreting a vague statute, enacting a new statute, or repealing an exemption in an old statute. And such decisions can have effects on other states as well: Consider the Iowa Supreme Court's extensive citations to similar decisions in other states, which I suspect considerably emboldened the Iowa Justices. For some much more detailed and concrete discussion of how the slippage can work -- and I've long stressed that investigating the risk of slippage requires getting detailed and concrete -- see this article I wrote on Same-Sex Marriage and Slippery Slopes that I wrote a few years ago.

So I stress again: Perhaps such slippage would be good, or even if it isn't good, the same-sex marriage decision is so good that it should be embraced regardless of the risk of slippage. But I don't think it's credible at this point to just casually dismiss the possibility of slippage in this area, given how many slippery slope effects we have already seen.

DangerMouse:
A movement dedicated to changing the fundamental meaning of a centuries old institution isn't going to be held up by lies about slippery slopes. Of course they'll deny slippery slopes.

Here's another slippery slope prediction: expression of personally held pro-gay "marriage" views will be fine at work, but expression of personally held traditional marriage religious views will be viewed as harassment. The EEOC will concur with this viewpoint, driving Christians out of the workplace.
4.6.2009 12:28pm
Public_Defender (mail):
<blockquote>
Of course, some people might like this slippery slope, because they like what's on the bottom.
</blockquote>

That's one problem with "slippery slop arguments": you have to define which way is down. Here, many religious conservatives link their anti-gay marriage arguments to all sorts of government intervention in the family, including laws banning abortion, contraception, and in vitro fertilization. Religious conservatives also justify their opposition to same sax marriage because they want the law to recognize sex roles in marriage.

Thank God for the <i>steady climb</i> towards legal same sex marriage. If we don't take that step, we risk sliding back down the slope to coat-hanger abortions, a ban on in vitro, a ban on contraception, the criminalization of homosexuality, legal employment and housing discrimination against gays, government coercion against mothers who work outside the home, massive government controls on pregnant women, etc., etc., etc.
4.6.2009 12:29pm
Linkt (mail):
I think the more immediate "slippery slope" we are in is the expansion of the definition of marriage to polygamous and polyandrous groups. Once a law recognizes one of the requisites of marriage as being arbitrary (ONLY man to ONLY woman), it is hard to stop from recognizing the other characteristics of marriage as being arbitrary also. If we will accept as arbitrary that marriage must be between a man and a woman, why not understand that it is just as arbitrary that marriage be between only ONE man and ONE woman?
I think the key hear is that the institution of marriage, like most "moral" institutions is based on historical distinctions that seem arbitrary when viewed under the lens of non-discrimination. Why stop with only one of those distinctions?
4.6.2009 12:34pm
Bravissimmo:
Sounds good to me, Public Defender!
4.6.2009 12:34pm
Joe T Guest:
Whatever you say Eugene. We're hopping down the slope now and I wouldn't worry about it. People who say or think things that make us uncomfortable won't be able to do so much longer. Some traditional values - like the First Amendment - may take a hit. So too some traditional social institutions. But what matters is that nobody feels slighted by the idea that somebody, somewhere, may not like them. Because if we don't have same sex marriage, we'll clearly turn into the Taliban.

Not that there's anything wrong with the Taliban, of course.
4.6.2009 12:34pm
SFJD (www):
Slippery slope carries negative connotations. "These seemingly innocuous things will lead to this bad thing." If you want to characterize the same sex marriage movement as one giant logical fallacy fine, but I don't see it that way. Like Public_Defender, it seems to instead be a steady climb.
4.6.2009 12:37pm
Antares79:
Does it work in reverse? For example, will Prop 8's passage lead to courts declining to find a right to gay marriage? Or, will the dozens of anti-SSM law passed in the late 90's and early 2000s do the same? I'm guessing they will not (or they will not be recognized as doing so). Why does the slope slip in only one direction?
4.6.2009 12:39pm
BooBerry (mail):
Great post, Eugene. I believe you touched squarely on a key issue in this debate.

The legislative-judicial slippery slope employed here, though, only touches on one of the four factors the Iowa Supreme Court used, not to determine that the ban on SSM violated equal protection, but rather to determine that the appropriate level of scrutiny was an intermediate or heightened one. So, if your argument is that such slippery slopes matter, this opinion is clearly not a prime example of where such slippery slopes played a dispositive, predominant, or even important role. In fact, even if this second factor used to determine the appropriate level of scrutiny (whether the characteristic at issue ... is related to the person's ability to contribute to society) was not met by the legislative examples you used (if there had been little such anti-discrimination statutes), the court likely would have found heightened scrutiny to be appropriate given the satisfaction of the remaining three factors (including the predominant first one).
4.6.2009 12:49pm
DangerMouse:
Religious conservatives also justify their opposition to same sax marriage because they want the law to recognize sex roles in marriage.

WTF does this refer to? Recognize sex roles in marriage? What does that even mean? Does that mean that the scary religious conservatives want the government to order couples to have the wife barefoot in the kitchen, doing dishes?

Or is this some incredibly euphemistic way of saying that religious conservatives want to limit or end no-fault divorce? Seriously, sometimes the left's newspeak is really confusing.
4.6.2009 12:52pm
Oren:

So people who worry about slippery slopes generally — and who worry about slippery slopes in the field of sexual orientation and the law — can't be lightly dismissed.

Of course, the large moderate center can't be given in to! That way, we'd have to make reasonable compromises that would upset the loud minorities that care the most.

This is a larger problem that Ilya has touched upon in his varying posts -- those people that care the most about an issue are usually the last people you want actually crafting policy in that area.
4.6.2009 12:52pm
einhverfr (mail) (www):
Dangermouse:

A movement dedicated to changing the fundamental meaning of a centuries old institution isn't going to be held up by lies about slippery slopes. Of course they'll deny slippery slopes.


I think you evidently failed to READ EV's post here. The argument isn't whether gay marriage leads to other things, but rather how one area of public policy can affect a court's ruling in another.

This is how it should be though. It is widely accepted that you can't just outlaw coloring hair brown because you think blonds are prettier. You can't then rationalize it on the basis that the state has some illusory interest in maintaining diversity of appearances after the fact.

Generally rational basis review, strict scrutiny, and intermediate scrutiny are all fundamentally based in how a statute fits into broader frameworks of public policy. Thus, if we restricted marriage to those willing and able to have children together, and a ban on childless married couples was bolstered by other policy matters, then same-sex marriage bans would pass more scrutiny than they would otherwise. Hence the slippery slopes that EV is talking about is how legislative policies influence the court's thinking about such issues. This is a fair point, but I would prefer to call it something more like "unintended consequences" because I am not at all sure the slope is slippery per se.
4.6.2009 12:53pm
ShelbyC:

Slippery slope carries negative connotations.


Of course it does. A "slippery slope" arguement is an arguement against a course of action because it might lead to a further negative outcome. "Which way is down" as PD puts it, is defined by the person making the argument.

The point of the post is that a response that further slippage down the slope is fine (or that what the person is arguing is down is really up) might make sense, but dismissing the idea that one action might lead to another can be dangerous.
4.6.2009 12:56pm
Duffy Pratt (mail):
Yes, that's what happens once you start treating gays like people.
4.6.2009 12:56pm
einhverfr (mail) (www):
Antares79:

Does it work in reverse? For example, will Prop 8's passage lead to courts declining to find a right to gay marriage? Or, will the dozens of anti-SSM law passed in the late 90's and early 2000s do the same? I'm guessing they will not (or they will not be recognized as doing so). Why does the slope slip in only one direction?


I think a better example would be courts upholding state bans on gay adoptions because in those states:

1) Only married couples can adopt

2) Otherwise, the gay adoption ban fits in properly with other elements of public policy.

So I would imagine that if we started annulling marriages for childless couples (even if they adopted children), this would weigh heavily in favor of the court upholding bans on gay marriage. If we started denying dependent child tax benefits, welfare benefits, etc to unwed mothers, that would weigh heavily in courts' support for bans on gay marriage.

This is only a slippery slope insofar as people want inconsistent public policy about marriage as it relates to childless couples which are straight or gay.
4.6.2009 12:58pm
scattergood:

That's one problem with "slippery slop arguments": you have to define which way is down. Here, many religious conservatives link their anti-gay marriage arguments to all sorts of government intervention in the family, including laws banning abortion, contraception, and in vitro fertilization. Religious conservatives also justify their opposition to same sax marriage because they want the law to recognize sex roles in marriage.

Thank God for the steady climb towards legal same sex marriage. If we don't take that step, we risk sliding back down the slope to coat-hanger abortions, a ban on in vitro, a ban on contraception, the criminalization of homosexuality, legal employment and housing discrimination against gays, government coercion against mothers who work outside the home, massive government controls on pregnant women, etc., etc., etc.



This is exactly the point that Prof. Volokh was making.

For you, you see not legalizing SSM as creating a slippery slope towards a return to coat hanger abortions, a ban on contraception, etc. etc. YOUR slippery slope is ok to assert, but somehow the slippery slow of allowing SSM may lead to the destruction of the First Amendment, polygamy / polyandry, the desruction of consanguination restrictions, etc, isn't a valid line of thought to pursue?

It is the intellectual dishonesty that is exposed by your own post.
4.6.2009 12:58pm
Houston Lawyer:
"Why does the slope slip in only one direction?"

Opinions expressed by voters will only be used by the courts as a determination that the voters are prejudiced and act solely out of malice. So yes, the slope only runs one way.
4.6.2009 12:58pm
Dan Hamilton:
The Iowa Supreme Court yet another case of judical tyrants deciding that the great unwashed must be forced to accept what their betters have decided.

What if the day comes when the courst are not on the SSM side. What if the courts reversed themselves. Nothing to stop them.

What the court gives it can take away.
4.6.2009 1:01pm
Oren:
DM, it's about whether the law reflects the cultural attitude that men and women are coequal partners in life. Until fairly recently, this was not the case in all states. For instance, it wasn't till 1981 that Kirchberg was decided, even though the terms of the statute in question are quite literal about encoding gender roles into the laws of marriage:

The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife.

So either you didn't know about the prevailing legal climate in the middle of the 20th century, or you are being coy about the manner in which the government sought to dictate the power arrangement between married couples.

Bonus question: when the last state remove the marital rape exception?
4.6.2009 1:04pm
John Moore (www):

"Why does the slope slip in only one direction?"


Judicial activism which is equivalent to judicial progressivism.
4.6.2009 1:09pm
ruuffles (mail) (www):

What if the day comes when the courst are not on the SSM side. What if the courts reversed themselves. Nothing to stop them.

What the court gives it can take away.

Can you name a single instance where the court (scotus most likely) has reversed a ruling, and taken away a right? The only "right" I can think of that is been completely overturned (at least in part) is affirmative action, and that one is actually likely to take more of a hit now with O'Connor gone.

The rest of the Warren court rulings and also those from the 40s and 50s are all intact. Even today scotus upheld the right to have voluntary confessions thrown out if too much time elapsed between arrest and a court hearing.
4.6.2009 1:11pm
Oren:

This is only a slippery slope insofar as people want inconsistent public policy.

This is an very insightful point. Supposing arguendo that the unambiguous will of The People is to accept homosexuals as equal in every sphere of life except marriage (employment, housing, immigration ...) -- does that require that they accept marriage as well? It seems to me that the answer is no, but certainly there could be cases where the public will makes a distinction as to similarly situated people that is so spurious that it cannot be encoded into law consistent with the notion of equal protection.
4.6.2009 1:13pm
Steve P. (mail):
YOUR slippery slope is ok to assert, but somehow the slippery slow of allowing SSM may lead to the destruction of the First Amendment, polygamy / polyandry, the desruction of consanguination restrictions, etc, isn't a valid line of thought to pursue?

Holy hell! The gays are going to destroy the First Amendment?

Remember, we surround them.
4.6.2009 1:15pm
Oren:

Can you name a single instance where the court (scotus most likely) has reversed a ruling, and taken away a right?

Morse v. Fredrick
Gregg v. Georgia
Gonzales v. Carhart
Harmelin v. Michigan

That's off the top of my head.
4.6.2009 1:19pm
DangerMouse:
Oren, if that's what it refers to, then it's paranoia. I don't know of any religious conservative group that wants to pass laws limiting the property rights of wives. Maybe there's some crazies who want to do that, but you won't find it as mainstream as the pro-life cause, for instance.

einhverfr,

I was referring to the section of the post where after Hawaii's actions, homosexual advocates denied their ultimate aim to get so-called "marriage."
4.6.2009 1:21pm
Public_Defender (mail):

Can you name a single instance where the court (scotus most likely) has reversed a ruling, and taken away a right?


The death penalty was unconstitutional, and then constitutional again.
Roe v. Wade has been greatly eroded.
Blakely v. Washington has been made meaningless.
Miranda has been greatly eroded.


Religious conservatives also justify their opposition to same sax marriage because they want the law to recognize sex roles in marriage.

WTF does this refer to? Recognize sex roles in marriage? What does that even mean? Does that mean that the scary religious conservatives want the government to order couples to have the wife barefoot in the kitchen, doing dishes?


Spend some time reading what religious conservatives say. Rod Dreher over at Crunch Con writes about the importance of sex roles in marriage, mainly, women staying home and taking care of the kids. Now, there are plenty of good reasons for one parent to stay home with the kids, but given that in the SSM debate, religious conservatives are arguing that the government should enforce their view of marriage on society as a whole, their arguments could lead to reduced protections for women who chose to work outside the home.

Family and Medical Leave Act? Naw, not for women. They should just quit and leave a man's work to a man. After all, mothers who work are taking a job from a man whose a breadwinner. Right>
4.6.2009 1:22pm
einhverfr (mail) (www):
Oren:

Supposing arguendo that the unambiguous will of The People is to accept homosexuals as equal in every sphere of life except marriage (employment, housing, immigration ...) -- does that require that they accept marriage as well?


I think that is a bit of a false question because the scope of inquiry is too small. The question is "what public policy arguments are used to support such a ban and how are they encoded elsewhere in the law?"

I think that would depend on a number of factors including:

1) Do childless couples have equal rights to marriage as couples with children?

2) Are there other areas of public policy where marriage and procreation are closely tied?

3) Are single individuals allowed to adopt children?

The issue is that one cannot discriminate solely against gay couples regarding marriage in so far as it is an arbitrary restriction unsupported elsewhere in public policy. It doesn't only matter whether gays are considered elsewhere to be equal, but rather whether the government's stated interest in the matter is served elsewhere.
4.6.2009 1:22pm
MarkField (mail):
It seems to me that the dismissal of "slippery slope" has to do with the inevitability implied in the argument. It's always possible in hindsight to see predictions which come true and to identify the path which led to the result. But "slippery slope" arguments get made all the time and most of them don't come to pass.
4.6.2009 1:24pm
ruuffles (mail) (www):

Gregg v. Georgia

Didn't the Court already leave this open in Furman that the states could fix their death penalty laws? Gregg was just the court saying "ok this complies with Furman."

Gonzales v. Carhart

IIRC, the practical effect was very little and came nowhere close to what Thomas and Scalia wanted in overturning Roe.

What exactly did the other two cases overturn? I'm talking about something like Dickerson going the other way.
4.6.2009 1:24pm
theobromophile (www):
Rationally, the solution to this particular slippery slope (assuming one wants to prevent it, either for policy reasons or because of a dislike for judicial activism) issue would be to put a note in every single one of the pro-gay, anti-discrimination statutes that it cannot be construed, in any possible manner, as granting a right to marry.

(Then again, since judges happily ignore the fact that a majority of states have passed laws or constitutional amendments that prohibit gay marriage, I doubt that this will really deter our overlords in black robes.)

Whether or not one supports gay marriage, the methodology used to obtain it is worthy of scrutiny (and, sometimes, criticism). A judgeship is not a license to mold society according to one's liking.

Finally, what's with the ridiculousness about conservatives wanting to legislate that women be in the home? If they really want that, I know that I would be among their first targets - an uppity lady with an engineering degree and a law degree who has zero desire to procreate and be a SAHM - but those freakish evangelicals seem remarkably accepting of me and the way I live my life. Go figure.
4.6.2009 1:26pm
A.:
Voters are pretty much all idiots, as are almost everyone else. It's all well and good to let the idiots determine their own lives, but it's silly to let them determine others'. This is not to say that SSM is or isn't good policy, but rather that elitism is good, sound policy.
4.6.2009 1:28pm
J. Aldridge:
Looks like the Iowa Supreme Court royally blundered in using Section 6 of the Iowa Constitution as the means to invalidate the states SSM ban.

And speaking of a slippery slope, here is what Paul Madison says: "Due to Iowa Supreme Court's activism and lack of judicial competence, the gates are now open to argue the exclusion of pedophiles from marrying potential victims is a form of sexual-orientation discrimination, because it "closely correlates" with being a pedophile."
4.6.2009 1:30pm
einhverfr (mail) (www):

Roe v. Wade has been greatly eroded.


hmmmm.... not entirely sure. Even as someone who thinks that abortion rights are important both as a matter of Constitutional law and public policy, I think that Roe was one of the worst-written decisions I can think of. Rigid frameworks like the trimester framework of Roe really have no place adjudicating penumbral rights. Roe is almost a textbook case on how Supreme Court opinions should not be written. I think O'Connor's criticism of Roe (that it was on a collision course with itself) ought to be taken more seriously than it is.

If Roe had come out more like Casey, I think things would be far different today. So I don't see a strong erosion of Roe so much as I see the court fixing their errors. Furthermore, things like the partial birth abortion ban were fundamentally MORE CLEARLY Constitutional under Roe than under Casey. So I am not at all sure what sort of erosion of Roe you are talking about.
4.6.2009 1:33pm
ruuffles (mail) (www):

Looks like the Iowa Supreme Court royally blundered in using Section 6 of the Iowa Constitution as the means to invalidate the states SSM ban.

I think I'll trust 7 of 7 SC Justices over a blogger on the Intertubes.
4.6.2009 1:34pm
einhverfr (mail) (www):

IIRC, the practical effect was very little and came nowhere close to what Thomas and Scalia wanted in overturning Roe.


Wouldn't wanting to overturn a past precedent and hence looking for an opportunity to do so best be described as "judicial activism?"
4.6.2009 1:35pm
BooBerry (mail):
Because EV has not yet replied to my post, and subsequent posters seem to have ignored it, I will repeat it again. EV's argument that legislative enactments (anti-discrimination statutes) slide into invalidation of a ban on SSM is not borne out by the reasoning of the Iowa Supreme Court in this opinion and EV's reliance on it to make his point is disingenuous. The legislative enactments played a small role in the court's analysis and EV does us all a disservice by conflating the court's analysis of whether some heightened form of scrutiny is merited (in which this legislative-judicial slippery slope played a role) with the court's actual equal protection analysis (in rejecting the County's five objectives - where such a "slippery slope" played no role).
4.6.2009 1:36pm
J. Aldridge:
I think I'll trust 7 of 7 SC Justices over a blogger on the Intertubes.

I'll trust the historical record over what 7 advocates have to say any day.
4.6.2009 1:36pm
Gary Anderson (mail):
I don't know, EV.

If Boy Scouts is such a wonderful and character-building experience for those young men who perhaps cannot rely on male family and community members, then why not open it up -- if public facilities and funds are being used -- to those boys who might identify as gay earlier and earlier in life.

If his performance is the same as the others, and there is no flirting/hitting on other boys/sexual talk, etc (nothing in his "performance" that would be disciplined) then why keep him out if he's a good boy based on an immuable character trait? If they do want to discriminate and can pay their way privately (ie/the Catholics), then ok.

I'm not worried about the slippery slope, since I think often what we cling to in defining these arguments (Boy Scouts v. gays) is inaccurate. Better still to think of that good boy who is gay (perhaps with few male role models in the home thanks to single mothers) who is just as qualified as the others to participate actively in the troop, but for that he is different in who he is attracted to.

Ditto the quiet military servicemembers who are what they are, but don't let their sexuality or any performance-related issue affect their work. Why keep them out, if it becomes known who they do what with in their private lives?

Like race before, why not let the homosexuals in, and then keep them out based on outlandish behavior that affects performance, if needed. Sometimes straight guys get pretty out of line sexually too, but we don't keep out a classification based on potential problems -- we discipline AFTER something has been done by an individual, not make the whole group pay the price for something performance related to one.

Be Not Afraid -- as the military mixing of races showed, sometimes our fears are exaggerated, and Americans surely are strong enough to work out any potential problems between individuals, without disadvantaging the group (Korematsu).

Do any of the Volokh conspirators have out gay children?
4.6.2009 1:37pm
einhverfr (mail) (www):
Theobromophile:

Rationally, the solution to this particular slippery slope (assuming one wants to prevent it, either for policy reasons or because of a dislike for judicial activism) issue would be to put a note in every single one of the pro-gay, anti-discrimination statutes that it cannot be construed, in any possible manner, as granting a right to marry.


You are missing the issue. We require that the code of laws serve compelling government interests and apply various levels of scrutiny in determining whether those interests are met.

The solution to the "slippery slope" (it isn't really slippery) is to simply walk the other direction. Restrict adoption to hetero, married couples only. Grant additional tax benefits for children parented by married couples as opposed to single individuals, etc. One could even go so far as to refusing to recognize the marriage as LEGAL until the couple had kids of their own. Certainly these would validate the procreation interest of marriage, correct?
4.6.2009 1:39pm
ShelbyC:

Finally, what's with the ridiculousness about conservatives wanting to legislate that women be in the home?


Uh, are you sure that's not just your imagination?
4.6.2009 1:41pm
Public_Defender (mail):
As to polygamy, I don't see why the government should ban polygamous relationships, as long as everyone is an adult (and that has seemed to be a problem in some of the polygamist sects). If a group of people want to form a polygamous relationship, I think that's less immoral than what we tolerate (even celebrate)--serial relationships, even serial one night stands.

Legalizing polygamous marriage would be more complex than legalizing same sex marriage. The law already knows how to deal with two-person marriage, even two-person marriages with kids from previous relationships or with biological ties to people outside the marriage. Polygamous marriages would require a rethink of pension rights, health care rights, family and medical leave rights, duties between spouses (would each wife owe support to each other wife, or only to the husband?), etc., etc., etc.

Legally recognizing polygamous marriages would be more difficult, but not impossible. Maybe we could use the same rules that applies to all the polygamous marriages in the Old Testament. In any case, legally (and that's the level this debate belongs on), polygamous marriages are very different than two-person marriages.

Let the polygamists make their point if they want to. But so far, the only people making arguments for legalized polygamy seem to be religious conservatives.
4.6.2009 1:42pm
ruuffles (mail) (www):

Wouldn't wanting to overturn a past precedent and hence looking for an opportunity to do so best be described as "judicial activism?"

Are you trying to say that Scalia and Thomas practice activism regarding Roe but Roberts and Alito do not?

I'll trust the historical record over what 7 advocates have to say any day.

And Scalia would bite your head off.
4.6.2009 1:42pm
Adam J:
J. Aldridge- A couple noncited quotes do not a historical record make. Besides, there's alot of poor analysis following said quotes.
4.6.2009 1:45pm
Curt Fischer:
I join Booberry in congratulating Eugene on this post, which I think is a great and detailed synthesis of the narrative of the gay marriage "slippery slope".

The problem I have is that the analysis seems a bit retrospective. People back in the 1980s and 1990s may well have expressed worries bout this exact slippery slope...but were they the only worries that people had? How did we know to listen to these worries and not other ones?

To put in another way: suppose Congress wants to pass law X in year Y. Group A says, "no, horrible, if X happens then it will open the door for the sky to fall!". Group B says, "absolutely not! Passage of X will set us on a slippery slope and eventually the Earth will be torn asunder!" Group C says, "X might seem good, but we are worried that it will start awakening the Four Horsemen of the Apocalypse, and who wants that?" Let's suppose that Congress passes the law, and ten years later, in year Y+10, the sky has not fallen and the Earth is not torn asunder, but unfortunately the Four Horsemen are starting to wake up.

Back in year Y, how do we know to ignore group A and B, but to take C seriously? Maybe the answer can be "take them all seriously and do the best you can," and that may work well when there are only three groups. But what about when there are more? Are there more than a few hypothesized slopes around relevant social issues?
4.6.2009 1:46pm
Alixtii O'Krul V (mail) (www):
It does seem that this claim about slippery slopes only works if you assume that the Iowa decision was rightly, or at least plausibly, decided. Which I'm not sure those worried about slippery slopes would be willing to concede.
4.6.2009 1:47pm
Gary Anderson (mail):
As a Catholic, I have no problems believing that the sacrament of marriage is today and will be forever a private arrangement between one man and one women, until death do they part. Without formal annulment (and even then), many Catholics do not recognize subsequent marraiges as being sacramental. But we do understand that divorced Catholics who remarry are indeed remarried in the eyes of society. But you only get one sacramental marraige, minus the annulment hoop-jumping.

If people don't share my faith, that is why marraige is a civil ceremony. If you only get married civilly as a Catholic, that's no sacramental marraige -- no marraige at all -- in the eyes of the Chuch.


What I'm trying to say is, it is possible in America to hold, cherish and preserve your own religious traditions but respecting other individuals too. NEVER should religious tradition, or private definitions, be imposed on society based on some "majority rules" vote.

I have no fears that working alongside homosexuals who are legally married will damage any healthy Catholic relationships, just like working alongside divorced people. We'd never think to keep somebody out based on a divorce, yet we still do think it's ok based on homosexuality.

I think Catholic people are more resiliant than many think. Homosexual marriages won't keep people from the workplace. But discrimination can. And currently that discrimination is against gays, not Catholics. I'll stand up for the Catholics if needed at work, and the homosexuals too. Enough of the devisive in your face actions on either side: large drag queens are no more representatives of the gay community than book burners are of the Catholics who hold their own traditions dear, but recognize their are plenty of others who do not. (Justice Scalia is not representative of the good majority of Catholics, imo. And he should not impose his religious beliefs of what marriage is from the Bench. He should follow legal reasoning, like the IA court did under the Equal Protection of the laws theory.)
4.6.2009 1:49pm
einhverfr (mail) (www):
BooBerry:

I think anti-discrimination laws affect the reasoning of the court regarding the level of scrutiny. However, they would not affect questions of compelling interest. So really you have lots of slopes going different directions and these are not that slippery.
4.6.2009 1:51pm
Gary Anderson (mail):
I'm with the others:

we're not slipping down a slope to the "bottom" with this issue; we're ascending the heights of equality of opportunity for all our citizens as promised in our Constitution, much like we later made those words hold true for our colored citizens.
4.6.2009 1:51pm
fntwn:
brown v board of ed put us on the slippery slope towards giving those uppity blacks civil rights
4.6.2009 1:52pm
ShelbyC:

brown v board of ed put us on the slippery slope towards giving those uppity blacks civil rights



Either you just completely misunderstood the post or you're just a flat-out bigot.
4.6.2009 1:56pm
einhverfr (mail) (www):
ruuffles:

The only truly activist judge I can find on the court is Scalia. I won't even label Thomas as activist as a matter of mentality, though perhaps on the Roe issue he seems to cross over a bit.

Scalia's opinions always read as far more results-oriented, while Thomas's opinions always read as far more process-oriented.

"Activist" does not mean "one I disagree with" in the context of the courts.

So I would argue that Thomas and Alito have a methodology I disagree with, but that Scalia tends to seek results which is a dangerous thing in a SCOTUS justice.
4.6.2009 1:56pm
einhverfr (mail) (www):
Let's replace "slippery slope" for this discussion with "sticky web." When we pass new laws, the topology of the web changes and we get stuck with the results. But it isn't as simple as saying that one thing leads to a slippery slope regarding other decisions.
4.6.2009 1:59pm
SeaDrive:
Prof. Volokh's argument that legislation can lubricate a slippery slope seems sound to me, but I doubt anything will slide very far without acceptance by the voters. The Republic may not work exactly as drawn up in US History 1, but it does work, and very little goes on without at least the tacit the consent of the governed. At least, I've never noticed any reluctance to complain among non-consenters.

With respect to SSM, the phrase "slippery slope" is somewhat misleading. "Slope" suggests a continuum of possibilities. The SSM issue is more of an icy staircase. I don't think anyone has trouble distinguishing between traditional marriage and SSM, or polygamy, or incest, or bestiality.
4.6.2009 2:00pm
theobromophile (www):
ein - I don't understand your point. This line, in particular, is baffling beyond belief:
<blockquote>One could even go so far as to refusing to recognize the marriage as LEGAL until the couple had kids of their own. Certainly these would validate the procreation interest of marriage, correct?</blockquote>
Yes, please, let's tie marriage and procreation together by ensuring that every single child is born out of wedlock. Brilliant!

I suppose it's beyond you that people would actually want to be married (for philosophical and pragmatic reasons) <i>before</i> conceiving, and that opposition to the particular methods of achieving homosexual marriage (or civil unions) does not mean that a person believes that marriage and procreation are intrinsically intertwined, or, for that matter, even opposes SSM.

ShelbyC - ?????? If you actually bothered to continue reading my comment, rather than replying with snark, you would have seen that I'm with you on this. Not quite sure what I did to warrant your bitchiness....
4.6.2009 2:02pm
Monty:
I would argue that the slippery slope aurgument is never a distinct logical fallacy. There are two possibilities: 1. Someone holds the position at the bottom of the slope to be desirable, or 2. no one does.
In the first case, if there are those who advocate the bottom of the slope, in this case maybe polygamy, then any step towards broadening the definition of mariage will be met with polygamists pushing for the next step. Maybe the slide will be stopped, maybe not, but the slide is occuring, and the slippery slope is not a fallacy.
In the second, you have a strawman aurgument as the bottom of the slippery slope. Because no one actually wants to get to the bottom of the slope, the slope is a fallacy, but really its just a strawman aurgument in disguise.
4.6.2009 2:04pm
ShelbyC:

I don't think anyone has trouble distinguishing between traditional marriage and SSM, or polygamy, or incest, or bestiality.



I have a tough time seeing why same-sex marriages should be legal but not incestuous or polygamous ones.
4.6.2009 2:04pm
ShelbyC:

ShelbyC - ?????? If you actually bothered to continue reading my comment, rather than replying with snark, you would have seen that I'm with you on this. Not quite sure what I did to warrant your bitchiness....




Sorry.
4.6.2009 2:10pm
einhverfr (mail) (www):
J Aldridge:

And speaking of a slippery slope, here is what Paul Madison says: "Due to Iowa Supreme Court's activism and lack of judicial competence, the gates are now open to argue the exclusion of pedophiles from marrying potential victims is a form of sexual-orientation discrimination, because it "closely correlates" with being a pedophile."


Hmmm.... I disagree. It seems to me that the analysis of these issues tends to be quite complex and hence while one may have a slippery slope in one area of the analysis, this does not necessarily extend elsewhere.

For example, the exclusion of folks under a certain age from marrying without parental consent might seem to be age discrimination regarding a fundamental right, but the government's interest is bolstered by a whole regimen of laws and common-law traditions aimed at protecting children from being taken advantage of by older and more experienced individuals. If marriage is a civil contract, then folks who are not mentally competent to enter into such a contract would be forbidden from doing so.....

It seems to me that such a blog entry asserting that SSM leads to a lack of age restrictions is employing nothing more than scare tactics.
4.6.2009 2:14pm
Sagar:
Public Defender:
As to polygamy, I don't see why the government should ban polygamous relationships, as long as everyone is an adult ...

why stop there? if the definition of 'adult' is 18, we are not considering the varying rates of maturity of body and brain for different people. many individuals over 18 are still dimwits while many 16, 17 year olds exhibit the responsibilities (and/or physical development) of adulthood.

so how do you justify your "... as long as everyone is an adult ..."?
4.6.2009 2:16pm
Brian K (mail):
EV,

I'm not sure this is even a slippery slope.

The way i read the courts argument is that the legislature applied reasoning A to circumstances X, Y, Z to reach desired outcomes. the legislature refused to apply reasoning A to circumstance H for a non-rational reason to avoid outcome M. The court stepped in and said "nuh uh, you can't do that. we'll force you to apply reasoning A to circumstance H also."

that's the court preventing discrimination by the legislature and not a slipper slope argument.
4.6.2009 2:17pm
Guest12345:
Public_Defender:


Let the polygamists make their point if they want to. But so far, the only people making arguments for legalized polygamy seem to be religious conservatives.


Well, a lot of polygamists happen to be religious and conservative. So that would kind of make sense.

I've seen the several posts similar in content to yours and each time I wonder why people seem to come to the conclusions that you have. I don't think that there are any questions inherent in a polygamist relationship that haven't been answered already, either in the same context (if you are willing to use foreign judicial decisions as guidelines) or in different contexts answering the same questions.
4.6.2009 2:21pm
J. Aldridge:
A couple noncited quotes do not a historical record make. Besides, there's alot of poor analysis following said quotes.

Oh that's right, stated purposes and meaning from constitutional conventions carry no weight as well as courts past history of interpretation. All that matters is what judicial activists have to say today, right?
4.6.2009 2:22pm
Cali:
EV, cloaking your arguments in scholarly style makes them interesting, at the end of the day, you're saying what other commenters have noted: that rights for gays are some kind of "bottom/pit." Analogizing to race, you can be for damn sure that Brown v. Board opposers, et. al., would have have hated to see the slippery slope we have of a black man now being PRESIDENT. The horror!

Social and judicial change takes time. Why you characterize this as a "slip" is unclear.
4.6.2009 2:23pm
Calderon:
Seadrive said:


I don't think anyone has trouble distinguishing between traditional marriage and SSM, or polygamy, or incest, or bestiality


I'm "anyone," and I have difficulty understanding how people who support gay marriage can have a principled reason for not recognizing polygamous or adult incestuous marriages. If you get past tradition and say marriage isn't limited to one man and one woman, what's the basis for saying marriage can only be two people? If three+ adults want to be together, what's the objection? Similar reasoning for adult incest (and to be clear I'm not talking about relationships with minors); what's the basis for banning it besides recent "tradition," general distaste, and "ick" factor with such relationships? If those factors don't prohibit gay marriage, why should they prevent incestuous marriages?

(Just to be clear, I'm in favor of allowing all three types of marriage, but I don't see how principled distinctions can be drawn among them)
4.6.2009 2:25pm
J. Aldridge:
"Marriage is not simply a contract, but a public institution, not reserved by any constitutional provision from legislative control." Noel v. Swing, 9 Ind. 38.
4.6.2009 2:28pm
einhverfr (mail) (www):
Theobromophile:

Yes, please, let's tie marriage and procreation together by ensuring that every single child is born out of wedlock. Brilliant!


Not necessarily. We could allow legal benefits to take effect immediately when the child is born. However, the point was satirical but meant to illustrate a point.

So, here is my satirical "Protect Marriage Act" proposal for 2009:


Whereas the state has a compelling interest in optimal childrearing environments,

Whereas the optimal childrearing environment is provided by biological parents of the children,

Whereas the optimal childrearing environment for adopted children is provided by experienced parents,

Whereas the state has a compelling interest in supporting procreation among married couples,

Whereas marriage has traditionally been cemented by children born as a product of the marital union,

Whereas the state has a compelling interest in conserving scarce state funds,

Therefore, the state shall not provide any official state benefit regarding marriage except for recognition of that marriage upon the birth of the couple's first child, to any married couple until that married couple has children born to that marital union. All legal benefits of marriage shall be made available at the moment of the first child's birth.

Furthermore adoption shall be limited to married couples with biological children of their own.

Furthermore, the courts shall treat all divorces of childless married couples as common-law marriages for the purpose of asset division, support, and other issues.

Furthermore, marriage licenses shall be limited to those willing and able to conceive children. If medical conditions are known which prevent a couple from conceiving children or they choose not to, they shall be guilty of misdemeanor fraud upon application for a marriage license.

Furthermore, unmarried parents shall be denied all state assistance and benefits, tax or otherwise, until they get married under this section.

Marriage licenses under this law shall be issued to any couple of legal age, where neither party is in another marriage, and which is willing and able to conceive children together. However, state benefits for such a marriage shall not take effect until the first child is born, nor shall state recognition of the marriage as an official, formal relationship until the first child is born to that marriage. Couples which do not conceive children together in the first five years of marriage shall have their marriage licenses and certificates expired and revoked.
4.6.2009 2:28pm
ShelbyC:

The way i read the courts argument is that the legislature applied reasoning A to circumstances X, Y, Z to reach desired outcomes. the legislature refused to apply reasoning A to circumstance H for a non-rational reason to avoid outcome M. The court stepped in and said "nuh uh, you can't do that. we'll force you to apply reasoning A to circumstance H also."



But isn't that one form of x slippery slope? That, if you apply reasoning A in circumstances X, Y, Z to reach outcome O, then we have to apply it in circumstance H and have outcome M. So if we want to aviod outcome M we should forego outcome O.
4.6.2009 2:28pm
einhverfr (mail) (www):
J Aldridge:

"Marriage is not simply a contract, but a public institution, not reserved by any constitutional provision from legislative control." Noel v. Swing, 9 Ind. 38.


What is the difference between saying that marriage "is a contract" and saying it is "not simply a contract?" It seems that one may say that the contract element would still be relevant in the case of age restrictions, would it not?
4.6.2009 2:30pm
einhverfr (mail) (www):
ShelbyC:

But isn't that one form of x slippery slope? That, if you apply reasoning A in circumstances X, Y, Z to reach outcome O, then we have to apply it in circumstance H and have outcome M. So if we want to aviod outcome M we should forego outcome O.


Not really. If you want to call it a slope, you have to say that there are a large number of slopes pointing different directions. I would prefer to call it a "sticky web."
4.6.2009 2:33pm
Ursus Maritimus:
"As to polygamy, I don't see why the government should ban polygamous relationships,"

Because societies with a large number of low-status unmarried men (but I repeat myself) tend to be intensely socially violent, non-productive, regressive and stratified?

"as long as everyone is an adult"

Are you pedophobic?

"(and that has seemed to be a problem in some of the polygamist sects)."

But only if they have less than a million members or are nice and harmless. If the sect has more than a million members and celebrates chopping heads it get UN protection.
4.6.2009 2:37pm
scattergood:


Holy hell! The gays are going to destroy the First Amendment?

Remember, we surround them.


Um, the First Amendment has this idea in it that the gov't won't interfere in the practice of religion. When religious texts are clear about the practice of homosexuality, but yet discriminating on the basis of marriage is illegal, what happens? Some may say that it is a fair balancing act to assert the rights to non-discrminiation over the rights of religious practice, but let's not kid ourselves that this would be a violation of one right (under the First Amendment) in order to assert another (under Equal Protection). The slippery slope leading to such a destruction of the First Amendment is quite apparent, but as most SSM people don't really care about the unintended consequences of reaching their goal, they don't really care about the destruction of the First Amendment.
4.6.2009 2:42pm
RPT (mail):
Gary Anderson:

Your last two posts are excellent and represent how one actually lives out one's faith in the real world. Real marriages are challenged less by gays and more by those, like Reagan, McCain and Gingrich, et al, in the political world, and Bentley, Paulk, Stanley, White, et al, in the church world, who dishonor it by their own actions.
4.6.2009 2:43pm
Putting Two and Two...:
If EV just wanted to analyze the legitimacy of slippery slope claims, why not pick a more developed area like the much longer slides of racial and gender equality we're on.

It appears the "bottom" of many of these slopes is equality. Pity the founders were such fools as to actually enshrine that as a goal.

Putting that aside, I'm perfectly willing to entertain exemptions for "religious liberty", but let's be clear. Are we going to consider liberty to discriminate based on ones religious beliefs or liberty to discriminate only against gay people based only on ones relgious beliefs.

Compromising minds want to know.
4.6.2009 2:43pm
Michael A. Koenecke:
One of the core purposes of marriage has always been creation of a stable family unit for purposes of procreation. Not essential, since there are childless marriages, but at least one of the main purposes. Some people are simply concerned about the social ramifications of redefining marriage so that procreation has NO relevance to the relationship. The result of enacting universal no-fault divorce in the Sixties has been pretty clearly a vastly increased rate of divorce. The result of turning marriage entirely into a social contract unrelated to family is yet to be seen, but I am fairly sure it will further weaken the social norm of the nuclear family.

Perhaps the nuclear family is a useless vestige of an agrarian based society, and really is not necessary or optimal for rearing children. Becoming like Europe, where marriage is steadily dying (except among Islamic immigrants), might be a good thing.

I do not know, myself, but that is the direction we are taking. I tend to think not, but I do not know if my preference there is rational or based on emotion.
4.6.2009 2:44pm
Brian K (mail):
That, if you apply reasoning A in circumstances X, Y, Z to reach outcome O, then we have to apply it in circumstance H and have outcome M.

demanding consistency on the part of our lawmakers is not a slippery slope. it is a virtue.
4.6.2009 2:45pm
einhverfr (mail) (www):

Because societies with a large number of low-status unmarried men (but I repeat myself) tend to be intensely socially violent, non-productive, regressive and stratified?


But that isn't an argument to ban polygamous relationships by itself. I would argue that that is an argument against recognizing them with legal status.

For example, I see no reason why open marriages should be criminal either, provided that both sides agreed to it mutually and without duress. A logical extension of that is that the couple might be married and might cohabit (and have sexual relations) with other partners (both men and women). But that is a long way away from saying that all partners should be seen as marital partners.

There is a big difference between banning polygamous relationships and recognizing polygamous marriage.
4.6.2009 2:48pm
einhverfr (mail) (www):
Michael A. Koenecke:

Would you support my satirical Protect Marriage Act of 2009 (above)? Certainly that would provide a strong rational basis argument for banning same sex marriage, would it not?
4.6.2009 2:50pm
einhverfr (mail) (www):

Um, the First Amendment has this idea in it that the gov't won't interfere in the practice of religion. When religious texts are clear about the practice of homosexuality, but yet discriminating on the basis of marriage is illegal, what happens?


Ummmm....

My religious texts are full of references to the virtues of vigilante justice and make no direct references to homosexuality at all.

Also is anyone seeking to FORCE churches to marry gay couples? Is the Catholic church forced to marry couples where one or both parties is divorced?
4.6.2009 2:53pm
SeaDrive:

I'm "anyone," and I have difficulty understanding how people who support gay marriage can have a principled reason for not recognizing polygamous or adult incestuous marriages.


What I suggested was that most people have little trouble distinguishing a group of one man and one woman, from a group of two men, from a group of two women, from a group of more than two people, from group of a person and donkey, etc. Therefore the "slippery slope" does not comprise a series of nearly indistinguishable alternatives.

As for "principled reasons", they have been endlessly articulated. I suspect that you believe your own principles don't admit of distinctions between the alternatives you list, but other people believe other things and hold to other principles.
4.6.2009 2:53pm
Putting Two and Two...:
Agrarian societies are not based on nuclear familes. They are based on extended families or communal societies.

Who pulls the plow at your house, you or your wife?
4.6.2009 2:56pm
Calderon:
Seadrive said:


As for "principled reasons", they have been endlessly articulated. I suspect that you believe your own principles don't admit of distinctions between the alternatives you list, but other people believe other things and hold to other principles.


I guess I missed the "endless[] articulation."

I wasn't judging the distinctions based specifically on my principles, but rather the arguments used to support legalizing gay marriage. Those arguments (e.g., tradition not sufficient to limit marriages to opposite sex, nor are religious objections, etc.) equally support polygamous and incestuous marriages, among other things.
4.6.2009 2:59pm
Putting Two and Two...:
"communal societies" = communal relationships

type, review, post

sigh
4.6.2009 2:59pm
Adam J:
Michael A. Koenecke- But clearly, our government has NEVER felt that procreation was relevant to civil marriage. If it were, then why have marriages been granted to couples who are sterile, or those that have no intention to procreate? The procreation argument is completely hollow because our government has never ever cared about whether or not a married couple intends to procreate. The qualities important to each marriage should be determined by its individual participants, not by the public at large.
4.6.2009 3:00pm
cmr:
It's not that SSM proponents don't see the slippery slope. The writings are on the wall. They just don't care, because like EV said, they like what's at the bottom.

Social conservatives have said since the 60s that acceptance of homosexuality would lead to abridging religious freedoms, children being taught homosexuality is OK, and yes, even some posited that same-sex marriage would be an issue.

Regardless how you feel about them, they weren't wrong.

In fact, one of the main reasons people are opposed to civil unions is to curb the obvious slippery-slope to gay marriage that have, to an extent, been used ratchet up the claim to same-sex marriage.

Like someone asked earlier, I don't think it goes both ways. After the MA same-sex marriage decision, thirty states have voted to ban it. That hasn't stopped CT, VT, and IA from ruling in favor of it. People dismiss the unanimous failure of pro-gay marriage amendment at the ballot box, but you know if the tables were turned, and same-sex marriage had been struck down by a handful of liberal judiciaries but had, in large part, been voted for by the people in thirty states, they would be aping the precedence of the prevalence of these statutes.
4.6.2009 3:06pm
frankcross (mail):
Slippery slope claims are easy to disprove but hard to prove, at least with anecdotal evidence. Anytime an apparent slippery slope effect happens, it is merely "post hoc ergo propter hoc" reasoning. The same result might well have occurred without the intervening step. Indeed, what we know about judicial decisionmaking at the highest court levels is that judicial ideology plays a major role.

Also, as noted, its not clear that it was the existence of the intervening acts so much as their reasoning. The court might well have found that reasoning elsewhere, assuming it even needed that for the decision.
4.6.2009 3:07pm
dr:

When religious texts are clear about the practice of homosexuality, but yet discriminating on the basis of marriage is illegal, what happens? Some may say that it is a fair balancing act to assert the rights to non-discrminiation over the rights of religious practice, but let's not kid ourselves that this would be a violation of one right (under the First Amendment) in order to assert another (under Equal Protection). The slippery slope leading to such a destruction of the First Amendment is quite apparent, but as most SSM people don't really care about the unintended consequences of reaching their goal, they don't really care about the destruction of the First Amendment.



I'm told that there are some religious texts out there that are pretty clear that I'ma goin' ta hell because I'm a Jew. Would you say that it violates your 1A rights if you have to, say, allow me to spend the night at your motel? Is it a violation of those rights for you to post a "No Vacancy for Jews" sign?

Just trying to get a handle on your level of consistency.
4.6.2009 3:13pm
cmr:
Michael A. Koenecke- But clearly, our government has NEVER felt that procreation was relevant to civil marriage. If it were, then why have marriages been granted to couples who are sterile, or those that have no intention to procreate? The procreation argument is completely hollow because our government has never ever cared about whether or not a married couple intends to procreate. The qualities important to each marriage should be determined by its individual participants, not by the public at large.


Whoa, wait a minute. What?

First of all, they've "never felt that procreation was relevant to civil marriage" because procreation, for the vast majority of people, is inherent in them coupling. When a man and a woman sleep in the same bed every night, it doesn't take a soothsayer to determine what's going to happen. For a lot of people, shoot, most people, getting pregnant is something that just happens, even if they don't want it to, or if they planned it ahead of time. Since women are able to reproduce, generally speaking, chances are good it's going to happen with some regularity regardless if they don't go into marriage with the primary intent on doing it.

There are some couples who get by without having children or cannot have children, but it's not really something we can plan for ahead of time. It's not something prevalent enough to warrant spending political capital regulating. Most men and women who are sterile likely don't know it before they're married and/or trying to get pregnant. And trying to regulate marriage based on fertility brings up a litany of privacy questions.

I think we can all acknowledge there's not a dearth of fertile men and women who would want to get married and have kids.

We really shouldn't have to explain how grown-ups work, but here we are.
4.6.2009 3:17pm
einhverfr (mail) (www):
cmr:

I think the issue is that rational basis review (and higher levels of scrutiny too) are all fundamentally case-by-case processes. In some states the courts have ruled that gay couples have a right to adopt, and in other states, courts have ruled the other way. IMO, what is different is not the view of the court, but the evidence that the court is addressing in the sense that context matters relative to other statutes. I.e. what is different is not whether gays HAVE the right to adopt as a fundamental right but how such bans fit into other public policy programs.

So I think that EV's point stands, which is that movements to erode discrimination end up eroding discrimination elsewhere because they impact these forms of review by the courts. My suggestion is that if procreation is SO important to marriage, that social conservatives of that specific streak adopt my Protect Marriage Act and seek to have similar statutes passed in every state.
4.6.2009 3:20pm
Oren:

What exactly did the other two cases overturn? I'm talking about something like Dickerson going the other way.

Morse overruled Tinker.
Harmelin overruled Solem v. Helm.

Those were both very strong moves away from a previously declared civil right.
4.6.2009 3:24pm
einhverfr (mail) (www):

I wasn't judging the distinctions based specifically on my principles, but rather the arguments used to support legalizing gay marriage. Those arguments (e.g., tradition not sufficient to limit marriages to opposite sex, nor are religious objections, etc.) equally support polygamous and incestuous marriages, among other things.


to get to this point, one has to agree that bans on incest have no scientific basis. Would you disagree or agree with that statement?

As for polygamous marriages (we are not talking about polygamous relationships which are not marriages, for example, an unmarried man living with two women and engaging in sexual relations with both), there is a difference between a principled objection and a practical objection. There are big practical objections as well as a few principled ones (based on the impact of polygamy elsewhere in the world where large underclasses of men can't get married and this may undermine social stability). I am not sure if that is a principled or a practical objection to the matter.
4.6.2009 3:25pm
einhverfr (mail) (www):
Putting two and two:

Who pulls the plow at your house, you or your wife?


Umm... How many plowmen are missing from this equation, sons, etc?

Who walks the linnen at your house? You or your wife?
4.6.2009 3:30pm
Daryl Herbert (www):
"slippery slop arguments"

Am I the only one who finds this typo amusing?
4.6.2009 3:32pm
Oren:

Oren, if that's what it refers to, then it's paranoia. I don't know of any religious conservative group that wants to pass laws limiting the property rights of wives. Maybe there's some crazies who want to do that, but you won't find it as mainstream as the pro-life cause, for instance.

You should read more.


demanding consistency on the part of our lawmakers is not a slippery slope. it is a virtue.

Even if voters have clearly stated at the ballot box that they want an inconsistent policy? I find that very hard to believe that it's a virtue to limit the menu of options to something like.

What's worse, from a political perspective, is that if you tell voters they must chose from the limited menu of either full protection or no protection from gays, they will chose none. If you give them a moderate (but inconsistent, in the sense that it doesn't carry the principle to its logical conclusion) option, they will chose that -- opting to protect gays from discrimination in housing/jobs/immigration.

This is precisely why the extremists on both sides should not be in charge of anything.
4.6.2009 3:32pm
cmr:

So I think that EV's point stands, which is that movements to erode discrimination end up eroding discrimination elsewhere because they impact these forms of review by the courts. My suggestion is that if procreation is SO important to marriage, that social conservatives of that specific streak adopt my Protect Marriage Act and seek to have similar statutes passed in every state.


Procreation is seen as being one of the core functions of marriage, but don't disregard the sociological point that promoting healthy heterosexual relationships is important for the current, and future generations. I know people disregard things like "natural order" and "social order" as rhetorical pseudo-intellectual flim-flam meant to mask latent homophobia, but...what of it?

It would be costly to the state — for little reason, in most cases — to mandate women and men have fertility tests done before they're issued a marriage license. Even if the people felt that was important, I doubt the state would go for it. And, to be realistic, how would this make same-sex marriage seem like a good idea?
4.6.2009 3:32pm
Ken Arromdee:
I have difficulty understanding how people who support gay marriage can have a principled reason for not recognizing polygamous or adult incestuous marriages.

For incest, the problem is that our society expects family members to have certain relationships, interactions, and obligations simply because they are family members. Incest interferes with these. In short, if you break up with your sister, you can't stop seeing her, and if your brother gets jealous, you can't stop seeing him either. And your dad may guilt trip you into painting the house, but guilt-tripping you into sex should not be allowed.

In the particular case of parent/child incest, this also means that the parent has a conflict of interest when raising the child, even if the actual sex only happens after the child becomes an adult.

And to answer some objections:

1) Yes, if two people could have sex with no emotional involvement, either positive or negative, and no effect whatsoever on anything else, there's no problem. Human beings aren't like that (and it's not relevant to incestuous marriages anyway).

2) Yes, I'm aware that nobody has a legal obligation to talk to their brother, help their parents, etc. anyway. But just because we don't mandate it doesn't mean we should be okay with discouraging it.

3) Yes, by this reasoning a parent has a conflict of interest in a lot of other things. But those other things are behavior that we as a society want to encourage. Even if you don't oppose incest, it's hard to say we should encourage incest the same we should encourage children taking care of sick parents.

4) Yes, I know that "adult" means "can make his own decisions". But in the real world there are such things as degrees of pressure and amounts of influence. It's not black and white. It's really not fair to say "if an adult woman's father tells her he won't help her with college unless they have sex, that's her own problem, since she's an adult and any decisions are her own, and he has no obligation to give her a cent anyway".

5) Yes, this isn't based on blood, so laws based on blood need to be fixed. I can't imagine the difference affecting many cases, though, and it still isn't a reason to scrap incest laws entirely.

6) Yes, this might not apply in some unusual, but real, situation. But a lot of laws have those situations--for instance, consider an age of consent law and an emotionally mature person who's under the age limit. The only way to define such laws is to draw an arbitrary line. In some cases you might even be able to write an exception into the law, but again, that's not an excuse to scrap the whole law.

7) Yes, this might not apply in some sci-fi situation either. If that situation ever happens, it might indeed be time to reconsider incest laws; until then, no.
4.6.2009 3:32pm
Oren:

It would be costly to the state — for little reason, in most cases — to mandate women and men have fertility tests done before they're issued a marriage license.

He didn't propose that, he only proposed criminalizing a knowingly-infertile couple that gets a marriage license. Zero cost to the state on that one (arguably, no one would get a fertility test until after marriage, but it's the thought that counts).
4.6.2009 3:38pm
cmr:
What's worse, from a political perspective, is that if you tell voters they must chose from the limited menu of either full protection or no protection from gays, they will chose none. If you give them a moderate (but inconsistent, in the sense that it doesn't carry the principle to its logical conclusion) option, they will chose that -- opting to protect gays from discrimination in housing/jobs/immigration.

This is precisely why the extremists on both sides should not be in charge of anything.


This is true.

It's much less divisive to suggest that gays deserve protection from discrimination in the workplace, in housing, and including them in hate crime legislation. There are some hardliners against all those things, but more than likely, they're the freedom-of-association, hate-crime-laws-are-stupid type who don't really support special consideration for any class of person.

But what happens? Liberals overplay their hand, and push moderates to the far right, and then complain about there not being a middle. Those who believe in gay marriage use every tool in their toolbox to make the argument for gay marriage. It's yet another thing about slippery slopes: a lot of socons have resisted gay marriage because its proponents largely point to the social pathologies heterosexuals are largely responsible for. Of course they have resisted those, too, i.e. divorce, quickie marriages, no-fault divorce, our casual sex culture, the idea that women shouldn't at all feel mandated to marry by society, etc. They think gay marriage is just the result of those issues, and people promote it to exacerbate them.
4.6.2009 3:40pm
scattergood:

I'm told that there are some religious texts out there that are pretty clear that I'ma goin' ta hell because I'm a Jew. Would you say that it violates your 1A rights if you have to, say, allow me to spend the night at your motel? Is it a violation of those rights for you to post a "No Vacancy for Jews" sign?

Just trying to get a handle on your level of consistency.



No, in the case of religion, we as a society have determined that that is a an aspect that we would like protected. What is happening with SSM is that it isn't society determining to allow SSM, it is courts determining it IN SPITE of the will of the voters.

Let's look at a related law as it could fall under temporary housing in the case you described above:


The Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords and real estate companies as well as other entities, such as municipalities, banks or other lending institutions and homeowners insurance companies whose discriminatory practices make housing unavailable to persons because of:

* race or color
* religion
* sex
* national origin
* familial status, or
* disability

http://www.usdoj.gov/crt/housing/housing_coverage.php


The law didn't include people who engage in homosexual acts. In fact a number of times homosexual activists have attempted to put in such protections into related civil rights legislation but were turned down.
4.6.2009 3:40pm
cmr:
He didn't propose that, he only proposed criminalizing a knowingly-infertile couple that gets a marriage license. Zero cost to the state on that one (arguably, no one would get a fertility test until after marriage, but it's the thought that counts).


And how did he propose we determine whether someone is not only infertile before marriage, but knew it beforehand?
4.6.2009 3:42pm
dr:

No, in the case of religion, we as a society have determined that that is a an aspect that we would like protected. What is happening with SSM is that it isn't society determining to allow SSM, it is courts determining it IN SPITE of the will of the voters.


Then I imagine you're pretty steamed about the activist governor in Vermont trying to overturn the will of the people's representatives.

And I also assume that you would embrace SSM, if only gays were a protected class in the Fair Housing Act. Am I right on that?
4.6.2009 3:44pm
cmr:
The governor isn't a representative of the people?
4.6.2009 3:47pm
Oren:
cmr, the clerk doesn't determine anything. Please actually read what was written -- it defines a crime, not a verification step.

Here's an almost perfect analogy: in my state it is a misdemeanor to apply for an absentee ballot without an approved reason. However, if you go to the clerk and apply for one, he does not do any verification.

The same exact thing would apply to marriage licenses -- if you apply for a marriage license after knowing that you are infertile, you would be guilty of a misdemeanor. Again, no extra work or expense for the clerk whatsoever.
4.6.2009 3:48pm
Oren:


The law didn't include people who engage in homosexual acts. In fact a number of times homosexual activists have attempted to put in such protections into related civil rights legislation but were turned down.



And how did he propose we determine whether someone is not only infertile before marriage, but knew it beforehand?

In many cases, it's easy to prove that someone knew something. He got tested for some disease, he knows he has a genetic abnormality, he's been treated for infertility ...

It's up to the prosecutor to make the case, he'll figure it out.
4.6.2009 3:51pm
cmr:
I didn't say anything about a clerk. I was asking how that law would function.

But I'm curious: how would the state know someone is infertile? Wouldn't doing that violate doctor-patient confidentiality?
4.6.2009 3:52pm
SeaDrive:

If you give them a moderate (but inconsistent, in the sense that it doesn't carry the principle to its logical conclusion) option, they will chose that -- opting to protect gays from discrimination in housing/jobs/immigration.


I'm not sure this stands up to scrutiny. The movement for civil unions has been overtaken by the demand for SSM because gays were, in too many cases, denied the rights that civil unions were supposed to provide.
4.6.2009 3:56pm
scattergood:

Then I imagine you're pretty steamed about the activist governor in Vermont trying to overturn the will of the people's representatives.

And I also assume that you would embrace SSM, if only gays were a protected class in the Fair Housing Act. Am I right on that?


Nope, not steamed at all. The VT Gov is a part of the expression of the will of the voters so why would I be steamed about the will of the voters being followed?

No, I wouldn't embrace SSM if it was part of the Fair Housing Act, but I wouldn't have nearly the problem with the process and the unintended consequences that judicial fiat / tyranny has.

But I assume that by your lack of substantive response that you see the wisdom of how religion and rights for people who engage in homosexual acts are different.
4.6.2009 3:58pm
einhverfr (mail) (www):
cmr:

It would be costly to the state — for little reason, in most cases — to mandate women and men have fertility tests done before they're issued a marriage license. Even if the people felt that was important, I doubt the state would go for it. And, to be realistic, how would this make same-sex marriage seem like a good idea?


Would you care to re-read the post you are criticizing here? What I said was that if you KNOWINGLY applied for a marriage license as an infertile individual, it would be a misdemeanor fraud. No mandated tests, but:

1) If you dont have kids in the first five years of marriage, your marriage license and certificate are held invalid.

2) If in the process you get fertility tests and find out that one party to the marriage is infertile, after that marriage expires, the infertile party would be banned from remarrying.

So zero cost to the state. In fact it would save the state all kinds of money in the form of state assistance to unwed moms and dads.
4.6.2009 4:04pm
dr:

But I assume that by your lack of substantive response that you see the wisdom of how religion and rights for people who engage in homosexual acts are different.


Well, no, not really. I mean, I do see how a principled argument could be made that one class deserves protection and the other doesn't, because one of those things is a behavior you choose to engage in and the other is just who you are. I don't agree with that argument, but I see how it could be made.

I just don't understand why you think that people who choose to engage in religious practices are the ones in that equation who ought to be protected.
4.6.2009 4:11pm
Oren:



I'm not sure this stands up to scrutiny. The movement for civil unions has been overtaken by the demand for SSM because gays were, in too many cases, denied the rights that civil unions were supposed to provide.


And my proposed answer would be stiff penalties for any non-religious institution that repeatedly fails to accord marriages and CUs the same deference.



I didn't say anything about a clerk. I was asking how that law would function.

Billy kicks Johnny in the balls. Doctors say he's likely infertile. Johnny sues Billy, pleading that medical injury as part of the tort. Johnny marries Sally. The DA indicts Johnny because he knew that he was infertile (according to his own pleading) and got a marriage anyway.

David has Klinefelter's syndrome, diagnosed when he was five. He marries Jessica despite knowing that he is certainly infertile. DA indicts him ....
4.6.2009 4:11pm
Oren:



I just don't understand why you think that people who choose to engage in religious practices are the ones in that equation who ought to be protected.


Reread the first amendment then. I don't like the situation, but it's foolish to think that the Constitution protects homosexuals with the same strength that it protect religious beliefs and institutions.
4.6.2009 4:12pm
einhverfr (mail) (www):
Oren:

Even if voters have clearly stated at the ballot box that they want an inconsistent policy? I find that very hard to believe that it's a virtue to limit the menu of options to something like.


Sure. It is generally accepted that laws in this country cannot be arbitrary and capricious. This is a fundamental principle to the concept of the rule of law. Also this isn't just a matter of saying "gays are equal in every way except marriage" so much as saying "we don't care about procreation arguments relative to marriage except in relation to the idea of gay marriage." Hence I think the references and slopes are more interest-based than class-based.

At some point, minority rights need to be protected. It seems to me that where there is a desire to discriminate based on alleged interests which are not pursued as a matter of public policy elsewhere in connected ways, those laws should be struck down as fundamentally inconsistent with the notion of a rule of law.

BTW, I have read decisions about whether gays have a right to adopt children from different states which reached very different decisions based on the context of a ban on gay adoption as it related to other aspects of public policy. The slippery slopes are much stronger in areas relative to alleged interests than they are in antidiscrimination laws because those areas are more fundamental to the courts' determination.
4.6.2009 4:13pm
dr:

Reread the first amendment then. I don't like the situation, but it's foolish to think that the Constitution protects homosexuals with the same strength that it protect religious beliefs and institutions.


Fair enough, and I'm not and won't try to argue that. And I'm not a lawyer, so I have no real interest in getting into a constitutional argument about, well, anything.

Mine was simply a response to the tired argument that homosexuality doesn't merit protection on the basis that it's something you choose to engage in, as scattergood likes to point out. If that argument is true, then religion certainly shouldn't merit protection.
4.6.2009 4:15pm
einhverfr (mail) (www):
Oren:

Reread the first amendment then. I don't like the situation, but it's foolish to think that the Constitution protects homosexuals with the same strength that it protect religious beliefs and institutions.


I may be misinterpreting someone's statements here, but I am not sure how requiring the state to recognize SSM discriminates against religious beliefs and institutions. Certainly mandating that the majority religious views should be the primary steering factor in public policy would seem to my mind to run afoul with the prohibition on establishment of religion by the state (as incorporated in the 14th Amendment).

Unless someone is saying that churches should be REQUIRED to perform and recognize SSM as sacred in their traditions... Nobody is arguing that divorced individuals can't legally re-marry or that the Catholic Church would be forced to perform the ceremonies or recognize the marriages in the Church's eyes. Or am I missing something?
4.6.2009 4:20pm
BooBerry (mail):
Given the non-legal turns this commenting thread has taken, I think it's important to return to the world of legal analysis. I am finding the level of legal knowledge displayed here incredibly deficient. Unfortunately, few people are interested in hearing everyone else's "moral" and "ethical" thoughts about banning SSM, homosexuals or state action enveloping the preceding two subjects. This is a legal blog; the Iowa Supreme Court based its decision not on "moral" values but on pretty standard equal protection analysis. Prof. Volokh's thoughts on the legislative-judicial slippery slope are interesting, but are largely irrelevant to the Iowa Supremes' holding and reasoning. Thoughts?
4.6.2009 4:40pm
einhverfr (mail) (www):
BooBerry:

I would largely agree with you, but I think EV's point is still a valid one even if it is IMO phrased badly.

The typical slippery slope argument is that in a specific area, there are a number of endless shades of grey and it is not plausible to draw a bright line anywhere in it. Therefore venturing into the grey areas means that it will inevitably lead to fundamentally unacceptable results. I don't see this as EV's argument, so I don't like the term "slippery slope" regarding it.

However, I think what EV is bringing up is a valid point which is that, in typical equal protection analysis, the court's area of inquiry is quite wide, so a lot of laws which had not been intended to have anything to do with the subject at hand tend to be looked at. Therefore a law may have unpredictable consequences as it relates to this sort of thing. The problem with calling this a slippery slope is that one can never really find a place where the slope really is slippery. Furthermore, there are a wide range of factors leading many different directions. If it is a slippery-slope, it is only one in n-dimensional space and that hurts my head thinking about it.....

I think a better way to look at what EV calls the legislative-judicial slippery slope is to see it as the
"legislative-judicial sticky web" instead. Rather than a slippery slope, the sticky web analogy suggests that we will get stuck to the legal consequences of a law and that undercutting one protection may have unforeseen consequences on the topology of the web. So I think the point he makes is somewhat valid, but I don't think it is a slippery slope argument.
4.6.2009 4:50pm
BooBerry (mail):
einhverfr -

I appreciated your sticky web/slippery slope distinction earlier and now, after your fuller explanation, largely agree with you. I wonder what Prof. Volokh thinks?
4.6.2009 4:53pm
Michael A. Koenecke:
To einhverfr: Nope. Just because I support procreation being AN important part of the marriage relationship does not mean I think procreation should be the ONLY goal of marriage. What concerns me is making procreation entirely irrelevant to marriage, as the relationship is seen by society. It's a question of default assumptions. Currently, the default is for marriage to be a man and a woman who rear children in a nuclear family. The default USED to be a man and a woman who mutually bind themselves for life to rear a family. Society's expectations evolved, and changed, with no-fault divorce. I'm not so sure that was a positive development, though I could be wrong.

Advocates of homosexual marriage want to redefine the institution as two people who agree to become financially and emotionally interdependent. Procreation is entirely unrelated. What concerns me is that the nuclear family will become the exception, no longer the rule. There are plenty of studies which show that, on a statistically significant level, children growing up in a stable family with mother and father do better. I am not so sure that moving the default further away from the nuclear family model will result in a positive net outcome to society. As I said, I could be wrong, and perhaps we are well rid of the nuclear family model as an artifact of a long dead agrarian society. That is what the real question is.
4.6.2009 5:02pm
Gary Anderson (mail):
*Even if voters have clearly stated at the ballot box that they want an inconsistent policy? I find that very hard to believe that it's a virtue to limit the menu of options to something like.

What's worse, from a political perspective, is that if you tell voters they must chose from the limited menu of either full protection or no protection from gays, they will chose none. If you give them a moderate (but inconsistent, in the sense that it doesn't carry the principle to its logical conclusion) option, they will chose that -- opting to protect gays from discrimination in housing/jobs/immigration.*

This is why it's all in how you define the issue. If it's a basic civil right to marry and not be discriminated against and have equal protection under the law same as other non-procreating couples, then sorry majority -- in the long run, you don't get a vote on how much to discriminate against a group (whether gays or coloreds) I know if might take a bit to get used to, but society is up to it in America; look at all the things in the past that were going to happen only "over my dead body".

In short, voters don't get to choose which civil rights the Constitution divies out to which groups. Unless there's a basic definable reason to discriminate between homosexuals and non-reproducing hetero's, there's no more justification for the government discriminating. Private and religious groups that are paying their own way are free to teach whatever they like.
4.6.2009 5:04pm
Gary Anderson (mail):
What concerns me is that the nuclear family will become the exception, no longer the rule.

Unless you are tackling the no fault divorce statutes, welfare programs that pay the birth costs of unmarried unworking women regardless of family financial need, and media that still encourages the "if it feels good, do it!" level of commitment and responsibility,

it's sure unfair of you to blame the currently existing breakdown of the nuclear family on homosexuals currently free to marry in 3 states.

REally, I'd take on the no fault divorce, and welfare entitlement culture first, if you're truly concerned (as am I) about so many children currently being raised (or not) by taxpayer financed programs, rather than biological parents who created them. Private families that are paying their own way -- generally, I think studies show you see many of the same results as other intact committed indpendent families.
4.6.2009 5:09pm
DangerMouse:
the Iowa Supreme Court based its decision not on "moral" values but on pretty standard equal protection analysis.

BooBerry,

I'm selling the Brooklyn Bridge today. Do you want to buy it?
4.6.2009 5:14pm
BooBerry (mail):
How does legal recognition of same-sex marriage (or, in other terms, of a committed same-sex couple rearing or not rearing a family) affect a standard-issue nuclear (non-same-sex marriage) family, Michael Koenecke? Instead of answering my question, please try reading either the Iowa opinion or the Massachusetts or Connecticut one. Your thoughts are addressed head-on by the justices.

Even more importantly, how has non-same-sex marriage been impacted in Massachusetts since 2003? Have straight couples not wanted to get married because the "traditional institution of marriage" has been changed?

It's almost beyond ludicrous to repeatedly have to respond to people who persist in making the same sort of argument about how straight marriage will be threatened when evidence from Massachusetts (and soon to be from Connecticut) squarely demonstrates the complete opposite. Now I think I know what civil rights lawyers in the 50s and 60s felt. Conservative opposition to SSM almost is beneath a response, but alas, you gotta give the people what they want.
4.6.2009 5:14pm
BooBerry (mail):
Have you read the opinion, DangerMouse? Or is your practice to substitute conservative talking-points nonsense for substantive criticism and analysis?
4.6.2009 5:17pm
Oren:
My point is that, consistent with the protections afforded by the 1A (as made applicable to the states by 14A), a state may prohibit gays from taking part in civil marriages but may not prohibit, say, Sikhs from doing so.

You have to give some weight to the founders' decision to explicitly single out religious belief as worthy of protection.
4.6.2009 5:24pm
Putting Two and Two...:
einhverfr :


Umm... How many plowmen are missing from this equation, sons, etc?


I should have made clear whose post I was responding to. Michael A. Koenecke mentioned the nuclear family as the model of agrarian society. It isn't. The extended family (or community) is.

In the first years of a nuclear family, there are no other plowmen. That was my point, badly made as it was.
4.6.2009 5:28pm
einhverfr (mail) (www):
Oren:

Agreed, provided that the relevant equal protection analysis can be met. Society can't *arbitrarily* deny marriage rights to any group.

Religious groups may get extra consideration, but if all voters agreed that, say, redheads should be denied the right to marry simply because the voters didn't want to see redheads in marriages, that wouldn't pass Constitutional muster, nor should it.
4.6.2009 5:31pm
Oren:

This is a legal blog; the Iowa Supreme Court based its decision not on "moral" values but on pretty standard equal protection analysis.

The concept of equal protection requires that the claimants be similarly situated yet treated differently. Figuring that out without recourse to normative arguments is entirely futile.

Pretending that the law can be "solved" by some deterministic, value-free calculus is a seductive notion whose allure is tempered only by the fact that it is, in fact, entirely wrong.
4.6.2009 5:34pm
Putting Two and Two...:
cmr:


Procreation is seen as being one of the core functions of marriage


A function? Really? I think it's worth testing just how common this perception is. I suggest that at the next wedding reception you attend that you approach the bride and ask loudly, "so, when's the baby due?"


but don't disregard the sociological point that promoting healthy heterosexual relationships is important for the current, and future generations


And discouraging healthy homosexual relationships is important, too?
4.6.2009 5:38pm
Oren:
BooBerry, the primary opposition that I have (liberal, pro-SSM without fail at the ballot box) is that sovereign people are entitled to enact policies that they believe in. As the conservatives are quick to point out, SSM is 0/31 at the ballot box, a fact that I rue but must acknowledge if I'm to be at all internally consistent with my belief that The People are entitled to lay down the foundations of government in whatever way they feel proper.

I completely agree with your arguments that SSM does in no way damage or cheapen OSM. Having that belief, however, does not entitled me to ignore the democratic process even though I am right and the opposition is wrong (and it's true, I'm right, their wrong).
4.6.2009 5:38pm
BooBerry (mail):
Oren - let's try your equal protection requirement again. Equal protection requires that all persons similarly situated be treated similarly with respect to the purpose or purposes of the law.

I'll chalk it up a Freudian slip.
4.6.2009 5:39pm
einhverfr (mail) (www):
Michael Koenecke:

Just because I support procreation being AN important part of the marriage relationship does not mean I think procreation should be the ONLY goal of marriage. What concerns me is making procreation entirely irrelevant to marriage, as the relationship is seen by society. It's a question of default assumptions. Currently, the default is for marriage to be a man and a woman who rear children in a nuclear family. The default USED to be a man and a woman who mutually bind themselves for life to rear a family. Society's expectations evolved, and changed, with no-fault divorce. I'm not so sure that was a positive development, though I could be wrong.


And the default used to be the grandparents coming to live with the family (and the grandkids) once they were forced with the choice of living alone or their independence was compromised. I don't think the shift to assisted living facilities has been positive either, even from the point of view of childrearing. I am probably in the minority here, but I would much rather have my mother-in-law living with us and helping out with kid care than I would seeing her in an assisted living facility and on her own.

However, a lot of this is outside even the penumbra of what the public policy approach to these issues ought to be. If we are serious about preserving the nuclear family in an important form, we can't just use fading public policy interests which have been abandoned everywhere else. We must bolster those interests so that the distinctions are not legally arbitrary. Let's start by denying state benefits regarding raising children to single parents, for example. Let's allow no-fault divorce but with a two-track waiting period: 3 months if both sides fully agree to the divorce settlement, 1 year if they don't. Heck, let's acknowledge that the first few years of marriage are hard and refuse to entertain ANY claims of divorce for the first 5 years of marriage with the only exception being cases where one party to the marriage was CONVICTED of domestic-violence related crimes.

There are a wide range of things which could be done to help preserve nuclear families which are almost certainly more important than worrying about SSM.
4.6.2009 5:40pm
einhverfr (mail) (www):
Oren:

The concept of equal protection requires that the claimants be similarly situated yet treated differently [to be entitled to relief]. Figuring that out without recourse to normative arguments is entirely futile.


Actually, the analysis is done by looking at public policy decisions and seeing whether the public policy considerations do, in fact, justify this distinction as a part of broader public policy.

This creates what I call the "sticky web" problem, where cutting one rule, or adding another can substantially change the topology of the web well beyond what was originally intended. The laws are all connected to eachother as the basis of public policy.

The courts seem to argue that claimants are similarly situated but treated differently if they are NOT discriminated elsewhere in the same interests, and the reason for the difference between the claimants' treatment in both cases is not entirely defensible. For example if gay couples are allowed to adopt children, that would undermine the idea that gay couples are not similarly situated to straight couples regarding childrearing.

The result is that discrimination in areas not subject to strict scrutiny is allowed if the interest is compelling (with the benefit of the doubt being that it is), and that it is systematically followed.

A good example of a case involving discrimination and strict scrutiny and how such an analysis works is O Centro v. Gonzales which concluded that allowing Native Americans to use peyote but O Centro not to import otherwise illegal drugs did not pass Congress's will that religious freedom should be subject to strict scrutiny as it regards federal law.

So.... the area if inquiry in these cases is very wide and takes into account the entire sticky web of public policy. Normative social arguments are not a part of the analysis directly, but they enter into it indirectly as they affect other areas of public policy.
4.6.2009 5:50pm
einhverfr (mail) (www):
Oren:

If the voters pass a resolution that blonds and redheads are not allowed to marry, at what point should the courts strike it down?
4.6.2009 5:51pm
hazemyth:
einhverfr:

"I would much rather have my mother-in-law living with us and helping out with kid care than I would seeing her in an assisted living facility and on her own"

Okay, this is off topic, but are these two scenarios really apposite?

I think the appropriate options would have to be:

I would much rather have my mother-in-law living with -- and taken care of by -- us than I would seeing her in an assisted living facility and on her own.

Funny how you give her the choice of being cared for and being put to work. ;)

(And yes I realize the above grammar is awkard.)
4.6.2009 5:54pm
einhverfr (mail) (www):
hazemyth:

I have a firm conviction that such an arrangement emotionally and physically benefits all parties. So no, I don;t see a problem.
4.6.2009 6:01pm
Putting Two and Two...:
Advocates of homosexual marriage want to redefine the institution as two people who agree to become financially and emotionally interdependent. Procreation is entirely unrelated.


It would be interesting to see how many gay couples raising children choose to remain legal strangers in those states where marriage or CUs are available. I would guess very few.

I know several couples, MM and FF, with children. Not a one chose to forego some sort of legal connection to each other. Some with CUs have chosen to wait for a conclusion to the marriage question in California. They didn't like the legal uncertainty involved in marrying.

On the other hand, I know hetero couples who have choosen not to marry despite having children. I've told them they are fools. Nicely, of course.
4.6.2009 6:02pm
josil (mail):
It seems that the slope bottoms out when it hits polygamy, but for purely non-geological reasons.
4.6.2009 6:18pm
ShelbyC:
I have a question for folks that think the notion that recognition of SSM's will threaten traditional marriages is completely without merit: Why do most societys form norms and mores that favor opposite sex relationships and limit same-sex relationships and contact?
4.6.2009 6:26pm
Losantiville:
How does legal recognition of same-sex marriage (or, in other terms, of a committed same-sex couple rearing or not rearing a family) affect a standard-issue nuclear (non-same-sex marriage) family,

Eliminates in both legal and social circumstances the terms "husband" "wife" "father" and "mother". Partner and Parent and Spouse just don't cut it.

Further normalizes queerdom so you get more queers. Inferior lifestyle choices certainly affect others. Reduction is social stability, etc. Rule by homosexuals (common in ancient tyrannies) led to very unfortunate arrangements (think Barney Frank).

As an anarchist, I don't want government to swing either way (and obviously oppose any licensing) but I think affinity groups and proprietary communities should encourage proper behavior.

Both mothers and fathers are a good thing.
4.6.2009 6:26pm
BooBerry (mail):
Losantiville:

Further normalizes queerdom so you get more queers. Inferior lifestyle choices certainly affect others. Reduction is social stability, etc. Rule by homosexuals (common in ancient tyrannies) led to very unfortunate arrangements (think Barney Frank).


"As an anarchist..." Perhaps you mean to say, "As a bigot..."
4.6.2009 6:32pm
JFred (mail):
The idea that the equal protections clauses provide a right to homosexual marriage, and that this right has been in the various state constitutions for over a hundred years, and that also nobody knew about it, not the courts, the homosexuals, the lawyers, nobody, and that it has just been discovered, is dishonest and really dumb.

The alternative idea, that the meaning of rights changes with fashion, and that the courts have their fingers on the pulse of the electorate more than the legislature does, is totally fatuous.

The further idea, that since being homosexual does not impair ones ability to, say, operate, heavy machinery, it therefore implies the constitutionally protected right of homosexual marriage, is nonsensical. Being a felon impairs no abilities, yet rights are denied to ex-cons. By this "logic" I can marry my dog, even if my dog cannot marry me.

The courts claim, that the law was "likely based on irrelevant stereotypes and prejudice" is not and cannot be in evidence. Worse, it attempts to eliminate any consideration whatever of character, personality, morality or decency by the elected representatives of the people.

Can the court be so ignorant as to claim that sexual orientation is "irrelevant" to marriage? If so, how do I have the right to decide whom to marry?

Such a court ought not be respected.
4.6.2009 6:33pm
BooBerry (mail):
Thanks for that incisive "legal" analysis, JFred. It's too bad your six paragraphs of insight and reasoned critique weren't used in place of the Iowa Supreme Court's opinion in this case.

Perhaps you're in the process of drafting an Article or Comment containing your "interpretation" of the Equal Protection Clause. I'd love to see it.
4.6.2009 6:37pm
einhverfr (mail) (www):
ShelbyC:

Why do most societys form norms and mores that favor opposite sex relationships and limit same-sex relationships and contact?


Because in more traditional societies, marriage is an alliance of families cemented by shared offspring. The idea is that men and women are married to seal the alliance between two tribes or families, and the shared offspring end up ensuring that both families have an interest in the alliance.

This is also why we used to have torts like "wrongful seduction" in this country which could be used by fathers to sue his daughter's boyfriends which he didn't like if they didn't stay away.

In the hyper-traditionalist view (where marriage is an alliance between families), the following behaviors are all destabilizing to society:

1) Premarital sex, esp. on the woman's part, because it reduces the interest in the alliance after marriage to the one not bringing children into the marriage. Premarital sex of men is not so heavily looked down upon in these cultures.
2) Divorce (for extremely obvious reasons)
3) Remarriage of widows/widowers esp. where children are involved.
4) Adultery on the woman's part (because it destroys confidence in shared interest in the alliance). Adultery on the part of wealthy males would be more tolerated.

Many societies, from contemporary Ireland to India, from Iran to Brazil show these patterns to a surprising degree. We don't tend to see marriage as part of the extended family support structure, so the social bias against all of the above elements has tended to weaken substantially.
4.6.2009 6:42pm
einhverfr (mail) (www):
In case it is not clear, the above patterns tend to be functionally connected to the impact of marriage on the extended family support network.
4.6.2009 6:55pm
Oren:

Oren - let's try your equal protection requirement again. Equal protection requires that all persons similarly situated be treated similarly with respect to the purpose or purposes of the law.

Jeez, sorry. The /claimants in an equal protection lawsuit/ contend that similarly situated people are treated differently. It's not a Freudian slip, it was a simple inversion.

I would much rather have my mother-in-law living with us and helping out with kid care than I would seeing her in an assisted living facility and on her own.

For the decades where she is still functional, sure. Part of my problem with this is that medical technology has been keeping people alive well past their expiration date.


The courts seem to argue that claimants are similarly situated but treated differently if they are NOT discriminated elsewhere in the same interests, and the reason for the difference between the claimants' treatment in both cases is not entirely defensible. For example if gay couples are allowed to adopt children, that would undermine the idea that gay couples are not similarly situated to straight couples regarding childrearing.

Which is what disturbs me, since many voters will quickly put together the whole anti-gay web before they accept gay marriage. Gays might go double or nothing and end up with nothing here.


If the voters pass a resolution that blonds and redheads are not allowed to marry, at what point should the courts strike it down?

At the point at which striking it down will not end up in a backlash that leaves blonds and redheads much worse off than they were in the first place.
4.6.2009 7:02pm
ShelbyC:

Many societies, from contemporary Ireland to India, from Iran to Brazil show these patterns to a surprising degree. We don't tend to see marriage as part of the extended family support structure, so the social bias against all of the above elements has tended to weaken substantially.


Hmmm. The U.S., thought, throughout most of its history hasn't placed as much importance on the extended family. Nor has, say, France. You don't think it has more to do with increased economic diversity reducing the need for gender roles?
4.6.2009 7:03pm
einhverfr (mail) (www):
I think it is very closely tied to economic realities. When your inlaws may be sources of loans, jobs, etc. marriage of a brother or a sister to someone from a different family is a very different thing then when it is a couple mostly all alone in the world, and where the extended family practically terminates with one's own blood relatives and those of one's spouse.
4.6.2009 7:13pm
einhverfr (mail) (www):
Oren:

(working backward through your post):

At the point at which striking it [anti-redhead/anti-blond marriage laws] down will not end up in a backlash that leaves blonds and redheads much worse off than they were in the first place.


See, but this then requires our judges to be politicians rather than referees.


Which is what disturbs me, since many voters will quickly put together the whole anti-gay web before they accept gay marriage. Gays might go double or nothing and end up with nothing here.


I don't know about that, really. Lawrence really changed the web topology drastically by removing antisodomy laws from being seen as Constitutional. Also it is not the only web involved. Really, the question might well be whether childless (by choice) hetero couples are similarly situated to gay couples. An anti-childless-marriage web might be more effective and meet more compelling interests. In short the barriers are becoming more difficult to meet if one simply sees things as simply an anti-Gay web. Really, to be effective, childless married couples, and unwed parents, would also need to be caught up in the web. People aren't prepared to do this......
4.6.2009 7:19pm
einhverfr (mail) (www):
Oren:

Also I didn't get to this part, but:


For the decades where she is still functional, sure. Part of my problem with this is that medical technology has been keeping people alive well past their expiration date.


Well, at least it is not so different from extending the best-if-sold-by dates on salad dressings ;-).

Honestly, a lot of old folks don't have to live in nursing homes for an extended time period. They can live reasonably active lives until pretty much right before the end. My three deceased grandparents did. My point though is about putting folks who need only a little bit of assistance in assisted living facilities because we value independence more than familial interdependence.
4.6.2009 7:22pm
wooga:

we're not slipping down a slope to the "bottom" with this issue; we're ascending the heights of equality of opportunity for all our citizens as promised in our Constitution, much like we later made those words hold true for our colored citizens.

Gary,
Rights for blacks were given via Constitutional Amendment and legislative action. Acts which were intended, and were worded as such, to apply to racial discrimination (Brown v Board is an exception). In contrast, the gay rights movement has not proceeded via the democratic process. The gay rights movement uses the courts to take statutory and Constitutional language which was never intended (and the original understanding of the words never allowed) to apply to gay rights.

If gay rights were adopted by popular vote, I would be happy (e.g., I voted against prop8). But when gay rights are crammed down the throat of the citizenry by untouchable robed douches, I object (e.g., I was opposed to the judicial decision which legalized gay marriage in the first place).

This is why the slippery slope only goes in one way. It is not a "climb" towards equality. It is a descent away from democracy and into tyranny. Personally, I prefer a democracy where the majority disagrees with me over a tyranny where the judges agree with me 99% of the time. It's that 1% of the time that the judges disapprove that worries me.
4.6.2009 7:33pm
einhverfr (mail) (www):
wooga:

Same question posed to Oren:

If the voters adopted an initiative denying marital status to blonds and/or redheads, at what point should the court strike this down as inconsistent with the rule of law, and with equal protection under the laws?
4.6.2009 7:39pm
trad and anon (mail):
How does legal recognition of same-sex marriage (or, in other terms, of a committed same-sex couple rearing or not rearing a family) affect a standard-issue nuclear (non-same-sex marriage) family,

Eliminates in both legal and social circumstances the terms "husband" "wife" "father" and "mother". Partner and Parent and Spouse just don't cut it.


Huh? It eliminates them from some forms, but the terms "mother," "father," "wife," and "husband" are all in common use to describe gay people with children and married gay people, respectively. You would say "his moms" to refer to the parents of a boy with two mothers and "her wife" to refer the spouse of a gay woman; same mutatis mutandis for men.
4.6.2009 7:47pm
gary47290:
When will the proponents of marriage equality go on an offensive against the opponents of marriage equality? We need to start forcefully rebutting their position that marriage equality is a bad thing. If we remove their axioms ab initio, then their logic will implode.

A slippery slope is a good thing when you're on a ski course trying to enjoy winter sports.
4.6.2009 8:15pm
John Moore (www):
Gary Anderson writes:

If Boy Scouts is such a wonderful and character-building experience for those young men who perhaps cannot rely on male family and community members, then why not open it up -- if public facilities and funds are being used -- to those boys who might identify as gay earlier and earlier in life.

If his performance is the same as the others, and there is no flirting/hitting on other boys/sexual talk, etc (nothing in his "performance" that would be disciplined) then why keep him out if he's a good boy based on an immuable character trait? If they do want to discriminate and can pay their way privately (ie/the Catholics), then ok.


Why not open it up to girls? Similar issue.

The constant attack on good aspects of our society which offend a small but powerful minority (gays) is one of the most destructive aspect of the culture wars. If gays can't get the use of institutions, they seek to destroy them.

and


Ditto the quiet military servicemembers who are what they are, but don't let their sexuality or any performance-related issue affect their work. Why keep them out, if it becomes known who they do what with in their private lives?

Like race before, why not let the homosexuals in, and then keep them out based on outlandish behavior that affects performance, if needed. Sometimes straight guys get pretty out of line sexually too, but we don't keep out a classification based on potential problems -- we discipline AFTER something has been done by an individual, not make the whole group pay the price for something performance related to one.


Because it won't work, and the military does not exist to meet the needs of every minority that wants in.
4.6.2009 8:21pm
John Moore (www):
Putting Two and Two...:

Agrarian societies are not based on nuclear familes. They are based on extended families or communal societies.


They are based on hierarchies of nuclear families, except the polygamous ones.
4.6.2009 8:22pm
pluribus:
The use of the term "slippery slope" to describe changes in the law leading to greater equality seems to me distinctly unfortunate. A "slippery slope" implies a movement toward an undesirable consequence, usually unintended and with a helpless quality to the movement. The result is a plunge into the abyss. It would be better to describe changes in the law leading to greater equalty as incremental and progressive. That avoids the helplessness and forboding implied by the "slippery slope." Did anyone describe the movement toward greater racial equality in the United States as a "slippery slope"? (Oh, yes, I forgot about Bull Connor and James Eastland and Orval Faubus and David Duke.)
4.6.2009 8:23pm
John Moore (www):
dr:


I'm told that there are some religious texts out there that are pretty clear that I'ma goin' ta hell because I'm a Jew. Would you say that it violates your 1A rights if you have to, say, allow me to spend the night at your motel? Is it a violation of those rights for you to post a "No Vacancy for Jews" sign?


Yes, it would, if the religious belief extended to offering services to Jews. Personally, I wouldn't want to give any business to that person, and I'm a Catholic.

Also, the religious beliefs of Catholics are actively being denied when gay rightists go after Catholic Adoption Charities.

Once again, if the gay activists can't get what they want, they seek to destroy that which does much good for others.

This juvenile and narcissistic behavior absolutely characterizes the gay activist movement and to a lesser extent the modern progressive movement, which cannot tolerate diversity.
4.6.2009 8:25pm
pluribus:
John Moore:

Agrarian societies are "based on hierarchies of nuclear families, except the polygamous ones."

No, they aren't. They are based on extended families. The family in "Leave it to Beaver" was not part of an agrarian family.
4.6.2009 8:27pm
trad and anon (mail):
It's not something prevalent enough to warrant spending political capital regulating.
So what? The government passes all sorts of laws about things that aren't very prevalent.
Most men and women who are sterile likely don't know it before they're married and/or trying to get pregnant. And trying to regulate marriage based on fertility brings up a litany of privacy questions.
So what? The government doesn't need to see test results, the marriage license application form just needs a little checkbox on the form saying "I certify that to the best of my knowledge and belief I am fertile and intend to procreate with my spouse." Infertility could be a grounds for termination of marriage by annulment rather than divorce, or known and undisclosed infertility prior to marriage could be a grounds for fault-based divorce in the states that have it. Any couple who had been married for five years without procreating could have their marriage automatically voided. It could be illegal to prescribe hormonal contraception to married women. Third parties whose rights were affected by the marriage could argue that the couple was not really married because they were infertile (or deliberately avoiding procreation).

There are a lot of things the legal system could do to recognize that procreation is vital to marriage. The legal system doesn't do any of those things. In fact, this "marriage = procreation" concept is so foreign to our legal system that nonprocreative marriage is actually a Constitutional right, see Griswold. Since marriage is a fundamental right under Zablocki v. Redhail and Turner v. Safley, the government probably couldn't make fertility a condition of marriage even if it wanted to.
4.6.2009 8:28pm
John Moore (www):
Oren:

I find your analysis of slippery slopes to be eye-opening. I don't know how many social systems operate this way, but it is clear that the legal system is way too vulnerable to it.
4.6.2009 8:29pm
einhverfr (mail) (www):
Gary:

A slippery slope is a good thing when you're on a ski course trying to enjoy winter sports.


If you are trying to ski on a truly slippery slope (one you can't possibly climb back up even if you want to), then you had better be an expert. Few ski slopes I have ever skied qualify, and those that did were slippery due to very bad snow conditions (and were hence quite dangerous---my cousin slid 2000 feet down one of the slopes after falling and we had to bring him his equipment. He was lucky not be seriously injured.)

pluribus:

The real problem is that some of us feel that "progressive" is not really good way to look at legal decisions. Legal decisions should be methodologically conservative (not socially conservative, but rather based on conservative methodological principles). What social conservatives are upset about here is that a conservative methodology lead judges to make a decision that they disagree with.
4.6.2009 8:40pm
BooBerry (mail):
John Moore is mighty pissed about the gay rights movement. Too bad so sad, John Moore. Your side (the reactionary bigots) would fare better in the courts and in the state houses if you had science and the principles underlying equal protection and human dignity on your side. Unfortunately, you don't. Therefore, you will slowly lose.

On the plus side, you're always welcome to move to a country where homosexuality is criminalized and throw your support to that public policy venture. Saudia Arabian visas shouldn't be too hard to come by.
4.6.2009 8:42pm
Bob VB (mail):

I'm "anyone," and I have difficulty understanding how people who support gay marriage can have a principled reason for not recognizing polygamous or adult incestuous marriages. If you get past tradition and say marriage isn't limited to one man and one woman, what's the basis for saying marriage can only be two people?


Marriage equality is about all citizens being able to license the existing civil contract with their spouse. Currently 50% of citizens are allowed to license it with a male spouse, and the other 50% with a female one, 2 sets of special rights. Yet we know there are citizens who meet all the individual criteria of those allowed to license the contract yet not allowed to license it themselves.

If people actually were attracted to 'opposite' or 'same' genders through some biological mechanism there might be a rationalization for the exclusion but we now know that isn't true. Citizens are only attracted to male and female and some citizens attracted to a gender are allowed to license the civil contract in support of marriage and some are not. Marriage equality gives all citizens the same right to license the existing contract as opposed to the current situation allowing some and not others.

This is qualitatively different from allowing citizens to do something that no one has never been allowed to do before, e.g. have more than one spouse, have a spouse that has more than one spouse, have a spouse that is a near relative.
4.6.2009 8:52pm
einhverfr (mail) (www):
dr, inner quote, John Moore outer quote:


I'm told that there are some religious texts out there that are pretty clear that I'ma goin' ta hell because I'm a Jew. Would you say that it violates your 1A rights if you have to, say, allow me to spend the night at your motel? Is it a violation of those rights for you to post a "No Vacancy for Jews" sign?


Yes, it would, if the religious belief extended to offering services to Jews. Personally, I wouldn't want to give any business to that person, and I'm a Catholic.


This is a really bad analogy. If a private party has a good faith conscientious/religious exclusion commandment to providing services to another party, I see no reason that can't be granted some deference. For example, I see no reason that the Catholic Church can't refuse to perform marriages where one or both parties is divorced.

I think though that religious exemptions need to be subject to the same sort of analysis as legal rules in order to determine whether or not the exemption is bona fide or whether it is an after-the-fact rationalization to bad faith policy.

For example, if a Catholic adoption agency were to argue that they should not place children with gay couples on account that children belong with married couples in the Church's eyes, that ought to be given some deference. However, if the same organization is ALSO placing children with couples who got married after one or both of the parties was divorced, then that rationale shouldn't be accepted by the courts.

I also think that in places where religious charities are the primary provider of some services (such as adoption) they should be held to a higher standard of nondiscrimination than when secular versions are easily available.

However, for private clubs like the Boy Scouts of America, I think the fact that freedom of association also implies its reverse is important to remember. Any area not subject to strict scrutiny should be automatically be trumped by freedom of association in these sorts of things (employment is a different matter and I don't think the BSA could get away with refusing to hire women in administrative roles in the organization, such as accounting departments, etc).

As for state recognition of SSM, this needs to be seen as a separate issue from church recognition of SSM. There IS NO discrimination against churches or religious beliefs in stating that equal protection under the laws requires such a recognition by the state.
4.6.2009 8:55pm
einhverfr (mail) (www):
BobBV:

This is qualitatively different from allowing citizens to do something that no one has never been allowed to do before, e.g. have more than one spouse, have a spouse that has more than one spouse, have a spouse that is a near relative.


No one has ever been allowed to do any of those before? Anywhere in the world? Buddhists in large parts of the world have up until the present been allowed to have polygamous marriages, as do Muslims, and Hindus in some areas are allowed to do the same (I think Bali is one place, but Hindus in India abandoned the practice).

Marriage to a close relative has been allowed in some places as well.

I am not saying I disagree with you as far as your main points, but the scope and direction might be able to use some work ;-)
4.6.2009 8:59pm
trad and anon (mail):
This is qualitatively different from allowing citizens to do something that no one has never been allowed to do before, e.g. have more than one spouse, have a spouse that has more than one spouse, have a spouse that is a near relative.
Well, I am a supporter of gay marriage and not of polygamy, but it's hardly true that polygamy has "never been done before." It's been practiced across the world throughout history and is still common in much of the world today (albeit not places we'd ever want to emulate). I think as a historical matter it may actually have been more common than monogamy [1], though I'm not sure.

[1] In the sense of "single-partner marriage." The rates of actual sexual exclusivity have never been very high; people cheat on their spouses a lot.
4.6.2009 9:03pm
einhverfr (mail) (www):
John Moore:

This juvenile and narcissistic behavior absolutely characterizes the gay activist movement and to a lesser extent the modern progressive movement, which cannot tolerate diversity.


How well can you tolerate diversity? Since you are a Catholic, I wonder how well you have removed the timber from your own eye before looking for the speck in everyone else's.....

Unfortunately there are a lot of folks on this issue on both sides who don't think there should be any diversity. Keep the gays from getting any substantive equality! My religion is the one true way and should be the basis for law in this country! And on the other hand Anyone who disagrees with me is a bigot! Let the people speak and democracy work (as long as it achieves a result I like)!

Of course outside such folk, there are a lot of people on both sides of the debate who are tolerant of diversity, and whose disagreements are genuine policy and methodology considerations.
4.6.2009 9:03pm
einhverfr (mail) (www):
I also wonder how "social conservatives" would really react to a serious attempt to enact marriage laws based on the Old Testament (and hence legalized polygamy, concubinage, etc).
4.6.2009 9:06pm
trad and anon (mail):
And on the subject of close relatives: most states here in the U.S. allow first cousins to marry, though some restrict it to the infertile or post-menopausal. I'm not sure about the historical prevalence of anything closer than that.
4.6.2009 9:07pm
Waldo (mail):
To return to EVs original question, is same-sex marriage the "bottom" of the slippery slope, or will we slip farther? Or, for those with an Australian view of the globe, how high will we climb? I think this is best answered by asking what is the proper balance between sexual and other freedoms, mostly religious but also freedom of speech. Currently, that balance is shifting in favor of sexual freedoms. Should that continue, and that may be as likely as an "enduring" conservative or liberal majority, I think that these are likely outcomes:

1. Priests/ministers/imams in religions that do not perfrom same-sex marriages will be forbidden from signing marriage licenses on non-discrimination grounds. A similar precedent has already been set with adoption services, and there's a separation of church and state argument that religious figures shouldn't solemnize civil documents at all.

2. If Don't Ask Don't Tell is repealed, there will be additional conflict with religion in the military. Chaplains in religions that view homosexuality as sinful will be forced to renouce that aspect of their religious beliefs or leave the service. If the idea that sexual orientation is analagous to race, then military members might be forbidden from joining or associating with organizations that discriminate against gays, as they currently are prohibited from associating with racist organizations. (No more military brats in Boy Scouts.) If applied to religions, then servicemembers might be compelled to conceal their religion if it doesn't accept homosexuality. Think of it as don't ask, don't tell applied to religion instead of sex.

3. If sexual freedom does trump other freedoms and homosexual orientation is a protected class, then the application of sexual harassment law against gays might come into question. Concepts such as hostile environment would restrict the behavior of heterosexual men around women, since women are the protected class. But, in the case of gay men (especially vis-a-vis heteros), there would be no such restriction since gays are also a protected class. This would be especially true if protection for sexual orientation includes rights to sexual behavior.

4. Further down the slope, and more disturbingly, the use of the term "homophobia" to describe opposition to gay rights could lead to politically incorrect views being "medicalized." (This is what happened in the Soviet Union. Since socialism was "scientifically proven," anyone who opposed it (or the government), must be mentally ill.) Once opposition to gay rights is considered a mental illness, children could be removed from "homophobic" households using the same arguments used to remove FLDS children from a polygamous compound. If that sounds farfetched, in Britain, there are already allegations that claim children were removed from families merely to meet state adoption quotas.

Finally, if you don't believe the trend toward sexual freedom will reverse and wonder where the bottom is, just read Brave New World.
4.6.2009 9:10pm
Bob VB (mail):
No one has ever been allowed to do any of those before? Anywhere in the world?
No. I apologize, I was far too lax in this pedantic forum. I was referring to the existing US contracts under discussion. If we had polygamous supporting contracts those allowed for some and not for others or some citizens allowed to license with a sibling or parent and not others we would be addressing those too, but as far as I know we don't here in the US.
4.6.2009 9:12pm
Bob VB (mail):
Chaplains in religions that view homosexuality as sinful
They only have a right to view THEIR homosexuality as sinful - I mean I can't sin, its impossible - they can't lead me into something that is impossible for me do. Military chaplains are there to serve the needs of the servicemen's religion, not their own.
4.6.2009 9:14pm
http://volokh.com/?exclude=davidb :

I also wonder how "social conservatives" would really react to a serious attempt to enact marriage laws based on the Old Testament (and hence legalized polygamy, concubinage, etc).

Yet another reason that children shouldn't be exposed to The Bible. The damn thing is practically obscene. Think of the children!!!

I'm quite sure that Lot's daughters would agree with me. Filthy stuff. Depraved, really.
4.6.2009 9:20pm
John D (mail):
Priests/ministers/imams in religions that do not perfrom same-sex marriages will be forbidden from signing marriage licenses on non-discrimination grounds.


And? I mean, would that lead to anyone not being able to marry? Oh, wait, they could just go to the clerk's office and then have their wedding blessed.

Actually, I think the state would be unlikely to disfavor any particular religion in that way, since religions can already set further limits on who they marry (e.g., no divorced people in the Catholic Church).

They'd have to either keep marriage licenses wholly in the hands of the state or let clergy, even those who don't perform same-sex marriages.

But compare it to the current situation:

Clergy in religions that approve of same-sex marriages are forbidden from signing marriage licenses for same-sex couples on...

Well, on the grounds that some other religions don't much care for it.

It sounds like the current situation already has some religious liberty problems.
4.6.2009 9:25pm
einhverfr (mail) (www):
Waldo:

1. Priests/ministers/imams in religions that do not perfrom same-sex marriages will be forbidden from signing marriage licenses on non-discrimination grounds. A similar precedent has already been set with adoption services, and there's a separation of church and state argument that religious figures shouldn't solemnize civil documents at all.


Ummm.... I thought it was settled law that the Catholic Church was not compelled to sign marriage licenses where one or both parties were divorced. Wouldn't that extend to SSM too?


2. If Don't Ask Don't Tell is repealed, there will be additional conflict with religion in the military. Chaplains in religions that view homosexuality as sinful will be forced to renouce that aspect of their religious beliefs or leave the service. If the idea that sexual orientation is analagous to race, then military members might be forbidden from joining or associating with organizations that discriminate against gays, as they currently are prohibited from associating with racist organizations. (No more military brats in Boy Scouts.) If applied to religions, then servicemembers might be compelled to conceal their religion if it doesn't accept homosexuality. Think of it as don't ask, don't tell applied to religion instead of sex.


So you are concerned with a conflict of rights, and with equal protection trumping first amendment protections? Where does all this happen with regard to race, gender, marital status, etc?


3. If sexual freedom does trump other freedoms and homosexual orientation is a protected class, then the application of sexual harassment law against gays might come into question. Concepts such as hostile environment would restrict the behavior of heterosexual men around women, since women are the protected class. But, in the case of gay men (especially vis-a-vis heteros), there would be no such restriction since gays are also a protected class. This would be especially true if protection for sexual orientation includes rights to sexual behavior.


Only if it gets to the point where it substantively impacts equal opportunity in the work place. IIRC (IANAL), that is the legal standard for sexual harassment claims. Of course, most corporate policies are designed to prevent well-pleaded (rather than simply legally sound) claims from proceeding. This said, I have seen a great deal more actionable sexual harassment in the work place than I have ever seen actions on it, some within respected Fortune 500 companies. The sexual harassment boogeyman is extremely overblown.

It seems to me that you are paranoid that equal protection under the law will fundamentally REQUIRE greatly abridging other fundamental rights. I just don't see that happening in this country.
4.6.2009 9:27pm
trad and anon (mail):
1. Priests/ministers/imams in religions that do not perfrom same-sex marriages will be forbidden from signing marriage licenses on non-discrimination grounds. A similar precedent has already been set with adoption services, and there's a separation of church and state argument that religious figures shouldn't solemnize civil documents at all.


What happens to religious figures who won't perform different-race marriages (such as Chrisitian ministers who subscribe to Southern racist theology)? Can they sign marriage licenses? Were Mormon leaders allowed to back when Mormonism was a racist religion? Seems to me they should be treated the same way.

2. If Don't Ask Don't Tell is repealed, there will be additional conflict with religion in the military. Chaplains in religions that view homosexuality as sinful will be forced to renouce that aspect of their religious beliefs or leave the service. If the idea that sexual orientation is analagous to race, then military members might be forbidden from joining or associating with organizations that discriminate against gays, as they currently are prohibited from associating with racist organizations. (No more military brats in Boy Scouts.) If applied to religions, then servicemembers might be compelled to conceal their religion if it doesn't accept homosexuality. Think of it as don't ask, don't tell applied to religion instead of sex.


Again, seems to me the same treatment given to advocates of racist Southern theology and pre-1978 Mormons would be appropriate, though as a prudential matter we wouldn't want that many servicemembers leaving.

3. If sexual freedom does trump other freedoms and homosexual orientation is a protected class, then the application of sexual harassment law against gays might come into question. Concepts such as hostile environment would restrict the behavior of heterosexual men around women, since women are the protected class. But, in the case of gay men (especially vis-a-vis heteros), there would be no such restriction since gays are also a protected class. This would be especially true if protection for sexual orientation includes rights to sexual behavior.


This doesn't make a whole lot of sense. Same-sex sexual harassment is already illegal, including a hostile environment created by members of the same sex. Whether the harassers experience any sexual attraction to the plaintiff is of no relevance.

4. Further down the slope, and more disturbingly, the use of the term "homophobia" to describe opposition to gay rights could lead to politically incorrect views being "medicalized." (This is what happened in the Soviet Union. Since socialism was "scientifically proven," anyone who opposed it (or the government), must be mentally ill.) Once opposition to gay rights is considered a mental illness, children could be removed from "homophobic" households using the same arguments used to remove FLDS children from a polygamous compound. If that sounds farfetched, in Britain, there are already allegations that claim children were removed from families merely to meet state adoption quotas.


Are you trying to make yourself sound unhinged? The reference to the USSR is the best part.
4.6.2009 9:32pm
Joshua (mail):
pluribus: The use of the term "slippery slope" to describe changes in the law leading to greater equality seems to me distinctly unfortunate. A "slippery slope" implies a movement toward an undesirable consequence, usually unintended and with a helpless quality to the movement. The result is a plunge into the abyss. It would be better to describe changes in the law leading to greater equalty as incremental and progressive. That avoids the helplessness and forboding implied by the "slippery slope."

From what I gather, the "undesirable consequence" people are objecting to isn't SSM or equality for gays, it's the use of judicial fiat to achieve those ends as opposed to the normal political process. In this view, equality may be a positive, but judicial fiat is an even greater negative, so the consequence is an overall net negative, and therefore it is indeed a "slippery slope" downward - albeit not a very steep one.

Of course, YMMV on this, especially if you believe that (a) it doesn't (or shouldn't) matter how the state arrives at recognizing gay equality under the law, only that it does; and/or (b) complaints about legalizing SSM by judicial fiat are really just code-talk for anti-gay bigotry. If that describes you, you're probably not going to win many folks here over to your POV who don't already share it.
4.6.2009 9:32pm
Waldo (mail):
@Putting Two and Two...:

On the other hand, I know hetero couples who have choosen not to marry despite having children. I've told them they are fools. Nicely, of course.

Not exactly. Marriage has obligations for heteros, specifically the male variety, that don't apply to same-sex couples. Presumption of paternity comes to mind. That means that unlike same-sex couples, who must both sign an adoption document, men can be held responsible for any children their wives choose to have. Whether or not they actually fathered the child doesn't matter. So, there are quite rational reasons heteros might choose not to marry.

Also, it is quite possible, probable really, for heteros to have children without a "loving relationship," "desire to share one's life," or even any intent to have children in the first place. Therefore, if marriage is not about procreation, there is no moral imperative for heteros who have children to marry. There is an obligation of fathers to support their children, but there is no longer an obligation that that support must be through marriage.
4.6.2009 9:34pm
einhverfr (mail) (www):
Joshua:

From what I gather, the "undesirable consequence" people are objecting to isn't SSM or equality for gays, it's the use of judicial fiat to achieve those ends as opposed to the normal political process. In this view, equality may be a positive, but judicial fiat is an even greater negative, so the consequence is an overall net negative, and therefore it is indeed a "slippery slope" downward - albeit not a very steep one.


I don't think that was EV's point at all. I thought his point was that legislation has a habit of informing the judiciary on areas well outside the four corners of that legislation. Hence antidiscriminatory legislation may raise the level of scrutiny the courts give to the issue, erosion of other controls may erode other related alleged interests, and the like.

I have argued that it is not a slippery slope in the classical sense (of undifferentiated cases with no bright line) but rather a "sticky web" based on the connections of the laws based upon common state interests. Add a strand or cut a strand and the topology can shift in ways one didn't foresee.
4.6.2009 9:39pm
trad and anon (mail):
Also, it is quite possible, probable really, for heteros to have children without a "loving relationship," "desire to share one's life," or even any intent to have children in the first place. Therefore, if marriage is not about procreation, there is no moral imperative for heteros who have children to marry. There is an obligation of fathers to support their children, but there is no longer an obligation that that support must be through marriage.
Seems to me there is no moral obligation for heteros who have kids together to marry, at least in a lot of cases. If Dad is an unemployed, drug-abusing alcoholic, a spousal abuser, or otherwise someone the kids would be better off not having around much, it seems to me that Mom has a moral obligation not to marry him, and vice versa if Mom is the drug-abusing alcoholic or spousal abuser.
4.6.2009 9:45pm
einhverfr (mail) (www):
Waldo:

Marriage has obligations for heteros, specifically the male variety, that don't apply to same-sex couples. Presumption of paternity comes to mind. That means that unlike same-sex couples, who must both sign an adoption document, men can be held responsible for any children their wives choose to have. Whether or not they actually fathered the child doesn't matter.


Presumptive paternity can be challenged. Or in some cases, it can be taken for what may be purely spiteful reasons (see Osborne v. Adoption Center of Choice for an interesting example of how this can play out) in terms of being able to ensure that one can DENY the actual father any paternity rights.

On the other hand, I am pretty sure that in my state I can't go sign adoption paperwork and make sure my wife is forced to support the child.

Also in my state, courts have held that common-law same-sex marriage (formal SSM is not recognized) can result in both support obligations and custody claims.

So I am not entirely sure of the differences here.
4.6.2009 9:45pm
Waldo (mail):

Ummm.... I thought it was settled law that the Catholic Church was not compelled to sign marriage licenses where one or both parties were divorced. Wouldn't that extend to SSM too?

Yes, but not my argument. I argued that the Catholic Church could be prohibited from signing any marriage licenses unless they also sign licenses for same-sex couples.

So you are concerned with a conflict of rights, and with equal protection trumping first amendment protections? Where does all this happen with regard to race, gender, marital status, etc?

Well, yes. I don't believe the general protections afforded by the 14th Amd should trump the more specific protections in the 1st.

It seems to me that you are paranoid that equal protection under the law will fundamentally REQUIRE greatly abridging other fundamental rights. I just don't see that happening in this country.

Well, that does seem to be EVs entering argument. The conflict between SSM and religious liberty is explored here as well. While I don't believe the trend toward sexual freedom (or equal protection) will continue (read enduring conservative or liberal majority), I do believe that if it does, conflict with other, more fundamental rights is inevitable.
4.6.2009 10:04pm
Bob VB (mail):
Waldo isn't the difference that the churches can treat their followers as their religion dictates? what they can't and shouldn't be able to do is treat people who do not share their religion as if they did.
4.6.2009 10:11pm
ArthurKirkland:
Gays should form a religion that sanctifies homosexuality. That would provide every element and degree of legal protection they need -- at least, in the eyes of their most fierce critics.
4.6.2009 10:12pm
Waldo (mail):
@trad and anon:

Again, seems to me the same treatment given to advocates of racist Southern theology and pre-1978 Mormons would be appropriate, though as a prudential matter we wouldn't want that many servicemembers leaving.

If the number leaving exceeds the number of gay servicemembers currently discharged under DADT, would that justify DADT? If not, how many servicemembers leaving would? I don't know of any racist theologians in the military, and wouldn't tolerate them if I did.

Are you trying to make yourself sound unhinged? The reference to the USSR is the best part.

That is my most unlikely hypothetical. I personally believe that the democratic process will intervene long before that. But, the idea is hardly unhinged. The Soviet Union did treat dissidents as mentally ill, and there is evidence that the NHS in Britain took children into care to meet adoption goals.
4.6.2009 10:14pm
Waldo (mail):
@BobVB:

Chaplains in religions that view homosexuality as sinful
They only have a right to view THEIR homosexuality as sinful - I mean I can't sin, its impossible - they can't lead me into something that is impossible for me do. Military chaplains are there to serve the needs of the servicemen's religion, not their own.

I don't understand your argument. Military chaplains are generally required to serve the spiritual needs of all servicemen, regardless of the servicemen's religion, but are not required to change their own convictions.

Waldo isn't the difference that the churches can treat their followers as their religion dictates? what they can't and shouldn't be able to do is treat people who do not share their religion as if they did.

Not sure what you mean here.
4.6.2009 10:23pm
Waldo (mail):
@einhverfr

Presumptive paternity can be challenged.

Yes, but it's rather awkward to do so. IIRC, challenging paternity also undermines claims for custody and visitation rights for other children in the family.

On the other hand, I am pretty sure that in my state I can't go sign adoption paperwork and make sure my wife is forced to support the child.

Precisely my point. Same-sex couples also can't unilaterally sign adoption paperwork and force their partners to support the child. But with opposite sex couples, women can become pregnant and force their husbands to support the child.
4.6.2009 10:32pm
Bob VB (mail):
Military chaplains are generally required to serve the spiritual needs of all servicemen, regardless of the servicemen's religion, but are not required to change their own conviction

And no is asking them to, its just part of their job to attend to the needs of the servicemen, not promote their own religion on others. They perform Wiccan services, Satanist services, Jewish, all manner of Christian, Buddhist and what ever services. They are a 'Theology Tech', and do what ever theology the service men need. It doesn't matter if they think homosexuality is sinful for themselves if the servicemen they are working for at the moment does not.

Waldo isn't the difference that the churches can treat their followers as their religion dictates? what they can't and shouldn't be able to do is treat people who do not share their religion as if they did.

Don't see how you couldn't - maybe a homily - the right to practice a religion stops at my nose? They can assume whatever they want about the universe for themselves and those that choose to share your views, but they can't treat me as if I share their views. The first amendment right to practice a religion means everyone else has a right NOT to practice it.

So a church can require what ever criteria it wants to qualify for their particular religious rite of marriage with its practitioners. Likewise a church that provides a service to only its members. But when it starts serving people who don't share their faith they have no right to say they aren't qualified if those people don't share their religion.
4.6.2009 10:32pm
Putting Two and Two...:
John Moore

hierarchies of nuclear families


I've been told by some who were on the fence about gay rights that one of the things that helped push them to a decision was the level of silliness and obstinence displayed by one side or the other in argumentation.

On behalf of gay people, I thank you, John and, just to make you feel better, I'll concede that agrarian societies are, indeed, based on hierarchies of nuclear families.

Gosh, wouldn't it be great if there were a term for such hierarchies!!?!?
4.6.2009 10:35pm
Putting Two and Two...:

gay rightists go after Catholic Adoption Charities


Well, I wouldn't argue with your assessment of Benedict as a rightist, but gay? Benedict? I don't think so.
4.6.2009 10:37pm
Waldo (mail):
@Bob VB, regarding military chaplains: No one is asking chaplains to change their views regarding homosexuality now. But EV's argument on slippery slopes and the argument in my post is that they may be forced to do so in the future if the government views sexual orientation as the equivalent of race.


Don't see how you couldn't - maybe a homily - the right to practice a religion stops at my nose? They can assume whatever they want about the universe for themselves and those that choose to share your views, but they can't treat me as if I share their views. The first amendment right to practice a religion means everyone else has a right NOT to practice it.

I'm not sure we disagree here. Yes, your right to practice your religion stops at my nose. But beyond our respective noses, anyone should be able to proselytize the Great Flying Spaghetti Monsteras well as any religion that opposes homosexuality. That would be Freedom of Speech.
4.6.2009 10:51pm
Putting Two and Two...:
Waldo:

So, there are quite rational reasons heteros might choose not to marry.


I don't see what they are from your comment about presumed paternity.


there is no moral imperative for heteros who have children to marry. There is an obligation of fathers to support their children, but there is no longer an obligation that that support must be through marriage.


Sorry, but I'd have to say you're being foolish too. Parents living together should marry. In case of death, not being married puts the welfare of the spouse and the children at risk for no good reason.
4.6.2009 10:52pm
John Moore (www):
@Booberry, thank you for reinforcing my point! Oh, and don't for one second think you know where my views on gay activism come from.


Ummm.... I thought it was settled law that the Catholic Church was not compelled to sign marriage licenses where one or both parties were divorced. Wouldn't that extend to SSM too?


It used to be settled law that homosexuals couldn't marry either.

Then it slid down the slippery slope
4.6.2009 10:57pm
Putting Two and Two...:
Waldo:

Yes, but not my argument. I argued that the Catholic Church could be prohibited from signing any marriage licenses unless they also sign licenses for same-sex couples.


Well, it could happen, since the state determines who can perform the service for the state, but do priests really sign papers for couples they haven't themselves married? The analogy to divorced couples seems entirely apt and it seems like it should allay your fears.
4.6.2009 10:58pm
Bob VB (mail):
Waldo, I guess I don't understand - the chaplain's own views are irrelevant NOW - they aren't allowed to force their views on any serviceman at the moment. A racist chaplain today will perform biracial marriages, a homophobic chaplain then will perform a same gender marriage. Again, their religion is of no concern to the serviceman - their job is to serve, not spread their religion either passively or actively - just perform all manner of theological support.

[b]anyone should be able to proselytize the Great Flying Spaghetti Monsteras well as any religion that opposes homosexuality.[/b]

I agree, they can share that their religion says homosexuality is bad, I respond 'Thank goodness I don't practice your religion, now how is my adoption application going?' They have every right to their opinion, they have no right to treat me as if I shared their religious opinion.
4.6.2009 11:04pm
Waldo (mail):
@Putting Two and Two...:
Then we disagree.

BTW, you left out the "Therefore, if marriage is not about procreation..." part of my argument that there is no imperative for parents to marry. You can't have it both ways.
4.6.2009 11:04pm
John D (mail):
Is this a same-sex marriage slippery slope? I know the conservatives are going wild over the thought that Professor Volokh is claiming that same-sex marriage will limit freedom.

But he's really riding on the coattails of our interest in the Iowa decision.

If there is a slippery slope here, it is a civil liberties slippery slope.

Do granting civil rights to a group necessarily lead to granting further civil rights to the same group?

I think this is likely. Certainly history bears it out. Do we call it a "slippery slope"? Well, if we must.

Does this have anything to do with same-sex marriage? Well, only that marriage equality seems to be one of the stops on the path to full equality.
4.6.2009 11:15pm
Bob VB (mail):
Waldo, part of my confusion is your use of the word 'marriage' - if two people are living together, committing to each other for exclusive mutual support for the indefinite future then in my book they 'married' by personal choice. The state only licenses a civil contract in support of marriage - it can no more make you 'married' than it can make you 'tall' or 'smart' - marriage is a personal choice that develops out of biological mechanism - the state just reacts to that reality by offering a contract in its support.

Canada's common-law marriages have tripled since they started including them in the census in 1981, their number of single parents have increased by about 50%. Many poor married couples in the US also do NOT license the civil contract because they lose access to many state benefits and get more odious responsibilities than benefits by licensing it. They don't license it because it costs them $$$$, not because of views on 'procreation'.
4.6.2009 11:17pm
Waldo (mail):
@Bob VB:
Actually, chaplain's views are hardly irrelevant. If they can't express their faith, what's the point?

Also, your view that a chaplain who opposes gay rights will perform a same gender marriage simply illustrates my original point. Chaplains in religions that view homosexuality as sinful will be forced to renouce that aspect of their religious beliefs or leave the service.
In short, I'm arguing the "slippery slope" will lead to chaplains not being able to share that their religion says homosexuality is bad.
4.6.2009 11:21pm
Putting Two and Two...:
Waldo, we're off on a tangent I started about two hetero couples with biological children who I know and who have decided not to marry. I've told them they're foolish and I explained why.

If I left out anything when quoting you, it's to save space. As for marriage, it certainly can and often is about procreation. And, old stick in the mud that I am, I think procreation should occur within marriage. So should adoption. In my comment that started this back-and-forth, I mentioned that all the gay couples I know with children got as legally attached to each other as they could before adding kids to the mix.
4.6.2009 11:21pm
Bob VB (mail):
Chaplains in religions that view homosexuality as sinful will be forced to renouce that aspect of their religious beliefs or leave the service.

Maybe its another word problem - how are they 'renouncing' anything by performing a wedding for two people who don't share their beliefs? They can hold that opinion for themselves, they just don't have a right as a chaplain to pretend or require that a soldier share that belief for them to get theological support. Again, they are 'theology technicians' there to perform whatever theological need the soldier requires. By becoming a chaplain they willing took a job that requires that. If they are only going to do the things that support the chaplain's theological needs then they need to be booted anyway, they are pretty useless.
4.6.2009 11:31pm
John Moore (www):

a homophobic chaplain then will perform a same gender marriage

Why don't people quit using this incorrect, pejorative language? Homophobic? Not likely.

Maybe its another word problem - how are they 'renouncing' anything by performing a wedding for two people who don't share their beliefs?

Surely you can't be that ignorant of religion! When a chaplain performs a wedding, it is a sacred ritual, not a civil proceedings. Otherwise, get a clerk.
4.6.2009 11:47pm
Waldo (mail):
Putting Two and Two...:
I apologize for the snark.

But I also know two hetero couples who had children and were married. In the first couple, he supported her through grad school and retired early thinking he could stay home with the kids. She divorced him instead, and he later found that his kids weren't exactly biological. In the second couple, she decided that "true love" lay elsewhere and left him with a 4-yr old daughter.

That's probably why I'm also an old stick in the mud who thinks procreation should occur within marriage. But for that to be believable, marriage must, at least in part, be about procreation. And if same-sex couples can marry, I don't believe it is.
4.6.2009 11:48pm
Bob VB (mail):
Why don't people quit using this incorrect, pejorative language? Homophobic? Not likely.

'Bigoted' better?

Surely you can't be that ignorant of religion! When a chaplain performs a wedding, it is a sacred ritual, not a civil proceedings. Otherwise, get a clerk.
Surely you can't be that ignorant of a chaplain's job! A chaplain is there to provide theological support for any serviceman whether he shares that serviceman's belief system or not. Otherwise, get out of the service and become a televangelist.
4.6.2009 11:51pm
einhverfr (mail) (www):
Waldo

Yes, but it's rather awkward to do so. IIRC, challenging paternity also undermines claims for custody and visitation rights for other children in the family.


I don't think that is the case in my state, which has very restricted criteria for determining custody and visitation in divorces.


Precisely my point. Same-sex couples also can't unilaterally sign adoption paperwork and force their partners to support the child. But with opposite sex couples, women can become pregnant and force their husbands to support the child.


However, if one person in a stable same-sex relationship in my state (which does NOT recognized formal SSM), adopts a child, there are cases where that individual may be able to claim support after the relationship ends or the other party to the relationship may get visitation/custody rights. So this sort of thing CAN happen in SSM's, formal or common-law.


I don't understand your argument. Military chaplains are generally required to serve the spiritual needs of all servicemen, regardless of the servicemen's religion, but are not required to change their own convictions.


Of course. Hence they are required to perform services of the Church of Satan, the Temple of Set (another neoSatanic organization), various Christian denominations, possibly Jewish, Islamic, etc. servces as well.

Now, if you were a sincerely anti-Gay Christian chaplan, which would you object more to? Performing some sort of marriage for gays? Or performing a Church of Satan ceremony of some kind? Really, I can't see this being a big deal.....


Yes, but not my argument. I argued that the Catholic Church could be prohibited from signing any marriage licenses unless they also sign licenses for same-sex couples.


Could we (Constitutionally) forbid the Catholic Church from signing any marriage licenses unless they recognize civil divorce as well? I think that argument is just scare tactics.

Putting 2 and 2:


Well, it could happen, since the state determines who can perform the service for the state, but do priests really sign papers for couples they haven't themselves married?


Funny story. My sister had two marriage ceremonies. A simple, official one with a few people there (me officiating, since I have a mail order ordination), and the big one for show, done by a former minister who decided to resign his position. Fun legal technicalities..... So to a lot of people's point of view I just did the signing ceremony. The public marriage ceremony was done by someone else entirely.
4.6.2009 11:53pm
Waldo (mail):
Bob VB:

If they are only going to do the things that support the chaplain's theological needs then they need to be booted anyway, they are pretty useless.

Waldo:

Chaplains in religions that view homosexuality as sinful will be forced to renouce that aspect of their religious beliefs or leave the service.

I rest.
4.6.2009 11:55pm
einhverfr (mail) (www):
Waldo:

Also, your view that a chaplain who opposes gay rights will perform a same gender marriage simply illustrates my original point. Chaplains in religions that view homosexuality as sinful will be forced to renouce that aspect of their religious beliefs or leave the service.


Assuming most chaplans are, in their personal convictions Christian, Jewish, or Muslim, wouldn't that already be a big issue? I.e. how many commandments would it break for any one of them to perform a Satanist wedding?
4.6.2009 11:55pm
John D (mail):
During my wedding, the Justice of the Peace took us aside while everyone else was enjoying the pre-ceremony food and beverages.

We signed the license.

"Okay, guys, from here on, it's all theater."

When we stood before our families, a few minutes later, we were already married. We put them through a twenty-minute performance piece. (It was lovely, really.)

What makes a marriage real? Your name goes on it and a government official processes it.

The longer the ceremony, the more theater you're getting.
4.6.2009 11:59pm
Bob VB (mail):
I rest.

I don't know why - it sounds like you are trying to say that their views on homosexuality would be some sort of 'deal breaker' when they already have to deal with Wiccans, Satanists, etc and 'bite their tongue' while doing so. Yes they would have to continue to do their job, serve all theological needs of the serviceman, just as they've always done in the way they've always done it. They willing gave up the right to practice religion 'just their way' when they signed up.
Why isn't this situation just a variation on a theme that is their chosen profession?
4.7.2009 12:00am
John Moore (www):
BobVB:


Surely you can't be that ignorant of a chaplain's job! A chaplain is there to provide theological support for any serviceman whether he shares that serviceman's belief system or not. Otherwise, get out of the service and become a televangelist.


Surely you demonstrate the slippery slope eroding the first amendment rights, with your great approval.

Chaplains are not called upon to violate their religion. That is not part of the job. A Catholic priest is hardly going to provide theological support for homosexual marriages, since they are theologically wrong.

Chaplains are there to provide religious ministry to the troops. That doesn't mean they only minister to co-believers, but they should not have to go directly against their own religion.

Of course, Muslim chaplains will never have that problem, will they? Do you suppose they are required to preside at Jewish weddings? Maybe they should bless a pork meal for Catholics.

Get a clue.
4.7.2009 12:00am
Bob VB (mail):
Get a clue.

Ha if you'd only take your own advice.

Of course, Muslim chaplains will never have that problem, will they? Do you suppose they are required to preside at Jewish weddings? Maybe they should bless a pork meal for Catholics.

Yes to all the above.
4.7.2009 12:03am
John Moore (www):
einhverfr:

Assuming most chaplans are, in their personal convictions Christian, Jewish, or Muslim, wouldn't that already be a big issue? I.e. how many commandments would it break for any one of them to perform a Satanist wedding?


You appear to be getting a clue. Gay marriage isn't the only thing that would be a problem. I realize that to gay activists, their sexual preferences are the most important thing in the universe. To the other 98-99% of the population, there are lots of other things to concern themselves with.
4.7.2009 12:04am
Bob VB (mail):
Chaplains are not called upon to violate their religion. That is not part of the job.

You obviously have never been in the actual military in a situation where there is only one Chaplain for everyone have you?

A Catholic priest is hardly going to provide theological support for homosexual marriages, since they are theologically wrong.


No, its only theologically wrong for Catholics and a chaplain is there to serve all the servicemen, Catholic or not, regardless of his on personal religion.
4.7.2009 12:05am
MnZ (mail):

But it seems to me that decisions such as the ones in California, Connecticut, Iowa, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), the possibility of a slippery slope has to be taken seriously.


Yet another reason why I can never be a Left winger. For years they were pooh-poohing Right wingers (like Rush Limbaugh) who used slippery slope arguments. They were so adamant that I came to believe slippery slope arguments showed a weak intellect.

Even though I support gay marriage, I also have to admit...Rush was right.
4.7.2009 12:05am
einhverfr (mail) (www):
John D:

Procedures and requirements vary state-by-state. There are specific ceremonial requirements in Washington State, for example. I learned all of this regarding performing my first wedding.

Among other things, there have to be vows which require a statement in the vow that each party is taking the other in marriage as the lawfully wedded spouse. Also this has to be performed by a licensed minister or representative of a religious organization licensed by them to perform the marriage or else by certain types of state employees (judges, etc).

Presumably, if they got the words wrong on the vows, one could sue for an annulment at any later time ("he/she never said X as required by law!").

Fun with state laws.....
4.7.2009 12:12am
einhverfr (mail) (www):
John Moore:

You appear to be getting a clue. Gay marriage isn't the only thing that would be a problem. I realize that to gay activists, their sexual preferences are the most important thing in the universe. To the other 98-99% of the population, there are lots of other things to concern themselves with.

And this is why, although some slippage is possible as the sticky web shifts, it is hardly a slippery slope as we normally think of it.
4.7.2009 12:37am
John Moore (www):

And this is why, although some slippage is possible as the sticky web shifts, it is hardly a slippery slope as we normally think of it.


Unfortunately, the legal profession appears to not care what the vast majority think, or what thousands of years of precedence has been - when they can move on down the slope.
4.7.2009 12:43am
John Moore (www):

You obviously have never been in the actual military in a situation where there is only one Chaplain for everyone have you?


Have you? I have been, contrary to your assertion.


Yes to all the above.

I'm calling you on that. Show me the rules. Give documentation for a Muslim required to bless a Catholic's pork dinner, eh?
4.7.2009 12:46am
Randy R. (mail):
"That's probably why I'm also an old stick in the mud who thinks procreation should occur within marriage. But for that to be believable, marriage must, at least in part, be about procreation. And if same-sex couples can marry, I don't believe it is."

And so what about the thousands of gay couples who today have children? They can't get married, but shouldn't the children have the benefit of having married parents?

If procreation should occue within marriage, then you must be against adoption to single parents, whether they are gay or straight, correct? Why would you think it's better for a child to be in foster care than to be adopted by a loving parent? It doesn't make sense if you claim that marriage is best of the children, but it does make sense if you really don't care about the kids, and care more about discriminating against gays.

John Moore: "I realize that to gay activists, their sexual preferences are the most important thing in the universe."

No. I don't have a sexual preference. I have a sexual orientation, just like you do. I didn't choose to be gay any more than you choose to be straight.

"To the other 98-99% of the population, there are lots of other things to concern themselves with."

I wish. If this were true, then you wouldn't be working so hard to block our right to marry. But to people like you, concerning yourself with gays seems to be extremely important to you. If only you would leave us alone so that we can have our rights, we would all be happy, right?
4.7.2009 1:10am
Randy R. (mail):
John Moore: "Unfortunately, the legal profession appears to not care what the vast majority think, or what thousands of years of precedence has been - when they can move on down the slope."

Vast majority? Hardly. You realize that Prop. 8 lost by only four percentage points, which means that almost a majority supported gay marriage. Nationally, gay marriage is supported by a full third of the country, and civil unions by another third. Together, two-thirds of the US actually supports either SSM or the equivilent for gays. In Mass, the legislature couldn't even muster 25% to consider an overturn of the law.

Additionally, the countries of Canada, Spain, S Africa, Denmark, Holland, Belgium and Sweden allow SSM, and so the 'thousands of years' of prejudice towards gays is slowly being eliminated.

Moreover, the younger generation, by a clear majority, accepts SSM, so that within ten years, or 20 at the latest, a clear majority within the US will approve of it.

And why do they approve of it? Because none of the concerns or issues that people like you raise have been shown to exist in Massachusetts, Vermont, or any other jurisdiction that allows SSM.

BTW, gays are allowed to serve openly in such militaries as Great Britain, Canada, Australia, Israel, New Zealand and many others. Seems they are just as strong as ever.
4.7.2009 1:18am
Brian K (mail):
I didn't choose to be gay any more than you choose to be straight.

I have yet to get a non-pejorative answer when I ask someone who has asserted that being gay is a choice when was it that they decided to be straight.

you should see the reaction i get when i ask "at what age did you stop being bisexual and start being heterosexual?" which is essentially the same question.
4.7.2009 2:14am
John Moore (www):

If this were true, then you wouldn't be working so hard to block our right to marry. But to people like you, concerning yourself with gays seems to be extremely important to you. If only you would leave us alone so that we can have our rights, we would all be happy, right?



Sorry about the terminology. Orientation it is.

As for leaving you alone... hey, you sought this fight, not us! You are for changing a definition that has existed for thousands of years, and for forcing that change on a society that is against it.

What you define as rights most of us define as a privilege, one steeped in tradition and tied to our basic biology. Go ahead and be happy. Just don't force Catholics to hire homosexuals or the military to accept them. Don't destroy the Boy Scouts if they won't let in gays. Don't demand an equal marriage for something that isn't an equal situation. If you get the marriage, it *will* lead to the slippery slopes.

I have no problem with arrangements to help with medical situations, etc, for committed gays. But marriage, with the thousands of legal privileges it conveys, doesn't fit and isn't right.
4.7.2009 2:45am
John Moore (www):

Together, two-thirds of the US actually supports either SSM or the equivilent for gays.

Don't conflate civil unions and marriage. They are different things, as is obvious from the different names.

As for the "progress" in Europe, I don't find that a very convincing argument. Nor do I find those militaries (other than Israel, which is a very special case) to be worth a damn (although the presence of gays is not likely the reason).

so the 'thousands of years' of prejudice towards gays is slowly being eliminated.


So the good sense of thousands of years is slowly rotting away, along with most of the rest of western civilization.
4.7.2009 2:49am
Tracy W (mail):
Bob VB if two people are living together, committing to each other for exclusive mutual support for the indefinite future then in my book they 'married' by personal choice.

The law takes a different view on the matter. You not merely need to make the commitment, you need to make it obvious.

The state only licenses a civil contract in support of marriage - it can no more make you 'married' than it can make you 'tall' or 'smart' - marriage is a personal choice that develops out of biological mechanism - the state just reacts to that reality by offering a contract in its support.

Not quite. More particularly, the law affects what happens when a relationship ends, by choice or by death. Take a hypothetical situation, a rich old man hires a live-in housekeeper. Eventually the man dies, of natural causes, leaving a large estate. The housekeeper then claims that the two of them were secretly married and she should inherit half of his money. The man's children claim that the housekeeper is making it up and the housekeeper should not get anything. Whatever the courts decide does not merely reflect reality, but determines reality to the extent that that court can enforce its decisions.

Or take the case where a person is in a coma at hospital. Their long-term flatmate claims that the two of them are married, and chooses a very different course of medical treatment to the person's parents who would normally be next-of-kin. The state's decision about who is the next-of-kin is not merely just a reaction to reality, if the court has the power to enforce its ruling and nothing else gets in the way like the person in question dying, the medical treatment changes.

Or take the case of a person who owns a nice flat, took in a flatmate, eventually they quarrel and the owner kicks the flatmate out. The flatmate then claims half the flat on the basis that the two were married, the owner says no such marriage took place, they were just flatmates. Whatever the court decides affects the wealth of both parties, again assuming the ability of the court to enforce its will and other relevant circumstances.

This is a strong argument in favour of the state keeping track of whether couples actually did make long-term commitments to each other. And given the possibility that one party to the marriage may not be able to give evidence in court, requiring witnesses and so forth.
4.7.2009 7:33am
Anon1111:

I didn't choose to be gay any more than you choose to be straight.

I have yet to get a non-pejorative answer when I ask someone who has asserted that being gay is a choice when was it that they decided to be straight.

you should see the reaction i get when i ask "at what age did you stop being bisexual and start being heterosexual?" which is essentially the same question.


Try asking that question of women, rather than men, and you're going to start getting different answers if you dig hard enough.

Women's sexuality is far, far different than men's and can shift over time. Almost all self-described lesbians have had sex with men, and all one has to do is google phrases such as "lesbian sex with men" or "am I a lesbian" to see the deeply indeterminate and shifting nature of women's sexuality.

Hell, just talk to women who played college sports and you will find example after example of women who considered themselves lesbians at the time and now are married to men and have kids.

A woman's sexual nature is influenced far more by emotional attachment than physical attraction, and looking at the issue solely through the perspective of male sexuality is misleading.
4.7.2009 7:44am
Calderon:
For Ken Aromdee: thanks for your response. I think though that your post illustrates how the arguments in favor of gay marriage support allowing people to choose other kinds of marriages as well.

You start off your post with a discussion of what "society expect family members to have." But of course society used to expect only men and women to get married. And in fact, in most parts of the country that's still the expectation. But if societal expectation can't restrict gay marriage, then it follows they should restrict other kinds of marriage as well.

On not being able to see members of your family, many families already don't see each other for various reasons. It's hard to see how allowing incestual relationships would create more difficulties. Indeed, it may have the opposite effect of bringing families (or at least some family members) closer together. These sorts of harm seem as speculative as the supposed harm to "straight marriage" from "gay marriage."

To Bob VB, your argument seems to rest on a narrow definition of "marriage equality." One could just as easily say that once you get beyond standard opposite sex marriages, marriage equality means allowing people to marry whomever they like. For example, people who love only 1 other person currently are favored, while people who love 2 or more other people are discriminated against and treat unequally. The argument for gay marriage would seem to work just as well against this inequality as against a prohibition on gay marriages.

Also your statement that


This is qualitatively different from allowing citizens to do something that no one has never been allowed to do before, e.g. have more than one spouse, have a spouse that has more than one spouse, have a spouse that is a near relative.


is just factually wrong, as all of those relationships have been allowed in various communities previously.
4.7.2009 10:16am
IB Bill (mail) (www):
I'm still wondering what "same sax" marriage is. I never imagined saxophones would get so caught up in bourgeois expectations. The world's a-changin'.
4.7.2009 11:19am
einhverfr (mail) (www):
IB Bill:

Look up the etymology of "Saxon." One might see it as a marriage between two folks who use saxes (alternate spelling: seaxes), which are one-edged knives ranging in length from a small utility knife to a reasonable-length sword.
4.7.2009 11:24am
gary47290:
Gary Anderson writes:


The constant attack on good aspects of our society which offend a small but powerful minority (gays) is one of the most destructive aspect of the culture wars. If gays can't get the use of institutions, they seek to des

troy them.


You exhibit the standard fallacy of conservatives: people I don't like are bad.

What is missing is that Gay people are not a "small but powerful minority", but your friends, family, neighbors. We do not seek to destroy society, we seek to be part of it. Your efforts to demonize and marginalize us are what is destroying the good, not our efforts to join in.

You are terrified of facing the reality that we are part of your community, and not "those people".
4.7.2009 11:27am
Randy R. (mail):
"A woman's sexual nature is influenced far more by emotional attachment than physical attraction, and looking at the issue solely through the perspective of male sexuality is misleading."

I never pretend to be an expert on lesbianism. Or women for that matter! However, it just goes to show you that after decades of study, we still do not have much understanding of human sexuality. Which means that looking to a thousand year old book for guidance on this issue, or to religions, is ridiculous.

"As for leaving you alone... hey, you sought this fight, not us! You are for changing a definition that has existed for thousands of years, and for forcing that change on a society that is against it. "

Slavery existed for thousands of years,and in this country since it's founding. I guess when blacks rose up to say no more, you would have said that they sought this fight, not the poor law abiding slave owner. When blacks refused to sit at the back of the bus, you no doubt were saying to them go ahead and be happy, but don't expect whites to accept you as equal. If you get the right to vote, it WILL lead to the slippery slope, and who knows, we might even get a black president.

It's rather unfortunate that you use words such as 'rot' to describe my relationship. It shows that you really think that gays are some sort of decadant being not worthy of basic rights -- no right to serve in the military (despite the fact that 70% of Americans think we should have that right).

I really don't understand what you are afraid of. Society hasn't changed a bit in the places where gays have equal rights and SSM. Unless you can show me what has gone terribly wrong there, you will have a hard time convincing anyone else of the supposed dire effects of SSM.
4.7.2009 11:35am
einhverfr (mail) (www):
John Moore:

Unfortunately, the legal profession appears to not care what the vast majority think, or what thousands of years of precedence has been - when they can move on down the slope.


The judicial system looks at process-oriented questions and precedence has a strong place in that process. Precedence is defined as governing precedent under the stare decisis ("let the decision stand!")[1] principle and so is limited to past judicial decisions provided that there aren't substantive changes which require a different analysis.

So back to my question: If the voters vote overwhelmingly that blonds and redheads shouldn't get the benefits of marriage, what process should the judiciary use in determining whether this violates the very principles of our system of the rule of law?

The thing is, currently they look to two things:

1) Past judicial rulings
2) Public policy defences and how those public policy interests are furthered elsewhere in public policy.

The issue is that the scope of inquiry here is surprisingly large, and changes in laws can substantively affect the second part of the analysis.

I think you are confusing "precedence" with "tradition."

[1] Stare decisis (Latin pronunciation Star-eh de-kee-sees, which nobody ever uses) is both a narrow rule and a broad principle. THe narrow rule is where we see the term used in legal opinions. Under the broad principle, we have a number of other rules such as res judicata and collateral estoppel. The idea is that decisions should respect previous decisions both on matters of law so as to prevent inconsistent and unstable interpretations of the law. The idea is that the judicial system should be predictable.
4.7.2009 11:36am
Randy R. (mail):
HEY! I just found out -- Gay Marriage is now legal in Vermont! Although the governor vetoed the bill, both the house and senate voted to override. The votes were 23-5 in the Senate, and 100-49 in the house, quite a heavy margin by anyone's standards.

See -- politicians CAN listen to the people and do the right thing! We didn't need any court decision for 'force it down the people's throats', as is often argued.

So now SSM is legal in four states: MA, CT, Iowa and now Vermont. Next up: Civil unions in Illinois. If you think the slope has been sliding, you ain't seen nothin' yet!
4.7.2009 11:48am
scattergood:

No. I don't have a sexual preference. I have a sexual orientation, just like you do. I didn't choose to be gay any more than you choose to be straight.


This is the root of the entire issue. The unfounded, and in fact DISPROVED notion that you don't have a choice.

There is zero, let me repeat, zero proof that engaging in homosexual acts is 100% deterministic, like sex or race.

The easiest proof of this is the fact that identical twins are not uniform in their sexual preferences. However, identical twins are uniform in their race and sex.

There is no deterministic factor that would explain changes in sexual partners, married women who leave their husbands and then take other women as partners and then subsequently return to a male partners. There is no deterministic factor that would explain bi-sexual behavior, people who engage in sexual behaviors with partners of both sexes.

Heck, even homosexual activist scientists understand the fact that such behavior is, in their words not deterministic:


It also made the unassuming LeVay one of the most misunderstood men in America. "It's important to stress what I didn't find," he points out with the courtly patience of someone who long ago got used to waiting for the rest of the world to catch up. "I did not prove that homosexuality is genetic, or find a genetic cause for being gay. I didn't show that gay men are 'born that way,' the most common mistake people make in interpreting my work. Nor did I locate a gay center in the brain—INAH3 is less likely to be the sole gay nucleus of the brain than part of a chain of nuclei engaged in men and women's sexual behavior. My work is just a hint in that direction—a spur, I hope, to future work."



But yet, in spite of all the evidence, the courts are granting by fiat 'rights' to a group that is not deterministic like race or sex. This is why the decisions about SSM are tyrannical, because they are done without real scientific support.
4.7.2009 11:49am
einhverfr (mail) (www):
Randy R:

Congrats on Vermont!
4.7.2009 11:51am
Randy R. (mail):
I think one of the reasons we are starting to get traction on this issue is that for decades,homosexuality was something to be afraid of. So scary was it, you couldn't even name it! Not long ago, it was the 'love that dare not speak it's name.' Oscar Wilde was sentenced to two years of hard labor just for being gay.

Today, people have realized that there is nothing to fear from gays. Being gay itself isn't an illness or a problem of any sort either for the gay person or the people around them. I'm out to just about everyone, and I know hundreds of people, and work all around town and the world. No one seems afraid that my 'gayness' will rub off on them. They just treat me like any other person.

And once you realize that gays are people too, you realize that they are deserving of all the same rights as straight people. Not out of charity, but because there is no *reason* to withhold any rights. If an employer really wants to fire a person just for being gay, the problem lies not with the employee, but with the homophobic employer. If the boss can't stand being around gays, it's HIS problem, not the employee's. Consistently, the people who are against SSM (with a few honest exceptions), are the people who think gays are immoral, unnatural, a rot on society and so on. Young people (and many others) don't see that, of course, and see that sort of thinking as itself immoral, unnatural and a rot. The remaining honest opponents of SSM are concerned about unintended effects, which I understand is a legitimate concern. However, as time will prove, the question is whether there are unfortunate effects, and so far, none of have been demonstrated.

Just as today, if you can't live next door to a black person, people think you have the problem, not the black person. Once society comes around to that way of thinking, it's only a matter of time before you fall to the bottom of the slippery slope and treat all gays equally. But to me, that's the height of virtue, not a failing.
4.7.2009 11:57am
einhverfr (mail) (www):
Gary:

You exhibit the standard fallacy of conservatives: people I don't like are bad.


Honestly, I don't think that is limited to conservatives. How many folks here want to immediately shout "bigot" or "homophobe" against any and all who oppose SSM?

The fallacy is a human one, not related to political ideology.
4.7.2009 12:05pm
einhverfr (mail) (www):
Randy R:

I think that other political and social changes are more relevant. The fact is that marriage in many traditional cultures really IS about the extended family, not just the immediate one. In those sorts of cultures we also see very different treatments of men vs women regarding sex outside marriage. For example, in many parts of the world, if a woman gets pregnant before marriage she is considered to be entirely at fault, may be socially ostracized, etc. The father of the child is NOT fundamentally stigmatized over the incident in the same way. Similarly adultery is always caused by (and hence the fault of) the woman in such social views. The reason for these approaches, though they are unjust, is actually quite rational: the alliances of extended families are cemented by shared blood relations and female sexuality unconstrained by marriage is a larger threat to this structure than male sexuality is. On the other hand, male homosexuality is typically more heavily stigmatized than female homosexuality and I think there are a number of reasons for this. For example, the Kama Sutra briefly discusses female homosexual activity as a sexual outlet for women in polygamous marriages (see the D'Anilou translation).

In the US, we have slowly moved from an extended-family-centric society to a very individualistic one. The rate of social change is remarkable and tied to physical mobility, economic security, and a wide range of other things. Moves towards gender equality have also played a role because they have helped to remove some of the vestiges of the extended family protections by destigmatizing single mothers, and equalizing the views on adulterers vs adultresses.

The result is that we now have a tension in society over gay rights and same sex marriage that fundamentally can't exist in, for example, developing countries. In such countries, the economic interests of extended families is still extremely important and the ties between extended families is the primary mechanism of economic security.

So I see economic, social, and technological reasons for the shift. I don't think a simple view of social progression withstands basic scrutiny however.
4.7.2009 12:23pm
Oren:

I don't know about that, really. Lawrence really changed the web topology drastically by removing antisodomy laws from being seen as Constitutional.

Laws that were rarely enforced and often entirely forgotten. I think circa the 60s, it became generically acceptable for gays to be gay together in their bedrooms.


There is zero, let me repeat, zero proof that engaging in homosexual acts is 100% deterministic, like sex or race.

Proof is the wrong word. There is a mountain of evidence (of course, one that can never really amount to proof in the sense of 100% deterministic) that homosexuality is at least partially innate. The various documented cases of homosexuality in wild animals are, at the very least, suggestive that there is an element besides culture at work. I will grant that the evidence is not conclusive by any means, but to say that there is zero evidence is just wrong.


Just don't force Catholics to hire homosexuals or the military to accept them. Don't destroy the Boy Scouts if they won't let in gays. Don't demand an equal marriage for something that isn't an equal situation.

One of these things is not like the others.

I have no problem with the conclusion in BSA v. Dale (and I'm somewhat flabbergasted at the 4 Justices in dissent). I have no problem with Congress setting whatever standards (blond hair, blue eyes) for the military, since serving is a privilege. I have no problem with Catholics hiring or not hiring whoever they want (although, I support the IRS's position that giving Bob Jones a tax exemption is contrary to public policy -- they are entitled to their POV, not to a tax break).

When the government decides to step into an arena, however, the rules are different. We forbid the government to do many things that private individuals and organization may do freely.
4.7.2009 12:23pm
John Moore (www):

You exhibit the standard fallacy of conservatives: people I don't like are bad.


Did you bother to read what I wrote? Gay activists seek to destroy that which they cannot get to accept them, such as Boy Scouts and the Catholic Church. That is fact, so deal with it.

Second, I don't like gay activists because they act badly towards good institutions, not because they are gay.

You seek to translate my anger against a selfish, destructive group into a dislike and intolerance towards gays as human beings. In that, perhaps you are projecting your own feelings, because you sure don't understand mine.


You are terrified of facing the reality that we are part of your community, and not "those people".

And you think you are a mind reader! Gays are part of my community and my friends. Gay activists engage in destructive behavior towards social institutions, and I despise them for it.
4.7.2009 12:26pm
Oren:

I realize that to gay activists, their sexual preferences are the most important thing in the universe. To the other 98-99% of the population, there are lots of other things to concern themselves with.

If it's not important to them, why not just let gays have it?

This is usually the argument I make to liberals that insist on removing every somewhat-sectarian invocation to God in the public sphere -- it's something that's very important to conservatives so you should really just let it go, even if you disagree.
4.7.2009 12:29pm
John Moore (www):

So back to my question: If the voters vote overwhelmingly that blonds and redheads shouldn't get the benefits of marriage, what process should the judiciary use in determining whether this violates the very principles of our system of the rule of law?

The thing is, currently they look to two things:

1) Past judicial rulings
2) Public policy defences and how those public policy interests are furthered elsewhere in public policy.



THen perhaps they should look at tradition decisus or something, not to mention the laws of the land, the votes of the public, and the constitution. The idea that, based on only those two principles, they can overthrow long held traditions is arrogant and anti-democratic, and a fundamental problem,
4.7.2009 12:29pm
John Moore (www):
Oren:



I realize that to gay activists, their sexual preferences are the most important thing in the universe. To the other 98-99% of the population, there are lots of other things to concern themselves with.




If it's not important to them, why not just let gays have it?


They are welcome to their sexual preference or orientation. You miss the point, which is that gay activists are willing to destroy many good things in society if frustrated in their desires to achieve "equality" as they define it.

Furthermore, on the specific issue of gay marriage, you made the best argument against it in your excellent analysis of slippery slopes. Gay marriage, via slippery legal slopes, will lead to important first amendment violations.

A good example is Catholic Adoption charities being forced to choose between their first amendment religious rights and continuing to do their very good works of providing wanted children to loving heterosexual parents. The absolutism of the gay activists would be to force them to provide those children to gay parents, and history shows that gay activists will go to any lengths in order to force that, or to force those charities out of business.

From their actions, those activists have shown clearly that they would prefer that those doing good works who don't accept the dictats of gay "equality" cease doing those good works. That is infantile, selfish and destructive. It is also very clearly demonstrated, even on VK threads.
4.7.2009 12:38pm
John Moore (www):
VK threads? VC threads.
4.7.2009 12:40pm
einhverfr (mail) (www):
Oren:


I have no problem with the conclusion in BSA v. Dale (and I'm somewhat flabbergasted at the 4 Justices in dissent). I have no problem with Congress setting whatever standards (blond hair, blue eyes) for the military, since serving is a privilege.
...
When the government decides to step into an arena, however, the rules are different. We forbid the government to do many things that private individuals and organization may do freely.


I am confused. Given the number of benefits paid over military service be sufficient to place this in the category of the government stepping into the arena?
4.7.2009 12:58pm
einhverfr (mail) (www):
Oren:

This is usually the argument I make to liberals that insist on removing every somewhat-sectarian invocation to God in the public sphere -- it's something that's very important to conservatives so you should really just let it go, even if you disagree.


Yeah. It is like my arguments (as a pagan) for allowing 10-commandment monuments in most circumstances. If it is THAT important to you, and you are NOT talking about removing the statues of pagan goddesses from your public buildings, then by all means, have your monument.

Just don't touch the temple to the savior of our country, Abraham Lincoln.... Good ol' Roman apotheosis in action....
4.7.2009 1:01pm
einhverfr (mail) (www):
John Moore:

A good example is Catholic Adoption charities being forced to choose between their first amendment religious rights and continuing to do their very good works of providing wanted children to loving heterosexual parents.


I dunno. I would hold them to the same equal protection standards as the government regarding rational basis review. The questions become:

1) What is the stated REASON for the restriction as a doctrinal matter?

2) Is this a reason stated in good faith? Or is it an after-the-fact justification? This is determined by how else the reasons are put in effect. The plaintiff alleging unreasonable discrimination would have to show that this interest is not pursued in good faith.

For example, if you can find a doctrinal reason to argue that hetero couples who do not have sacramental marriages should be allowed to adopt while gay couples should not be, and this division is followed elsewhere, then that is fine. If on the other hand, you argue that sacramental marriages are the only place that children should be placed AND you place kids with Muslim couples, then I would argue that this is not a good-faith reason.

Also, I would be interested to see your take on Catholic adoption agencies in the UK REFUSING to take advantage of religious opt-out clauses in the laws requiring considering gay couples for adoption. It seems that at least in that case, nobody is forcing the Catholic adoption agencies to make the choice you are describing. They are rather choosing to make the choice to discontinue service rather than exercise religious freedom. At least in that case, they have nobody to blame but themselves.

Can you provide another example? The UK example was the only one I could find.
4.7.2009 1:12pm
einhverfr (mail) (www):
John Moore:

THen perhaps they should look at tradition decisus or something, not to mention the laws of the land, the votes of the public, and the constitution. The idea that, based on only those two principles, they can overthrow long held traditions is arrogant and anti-democratic, and a fundamental problem,


heheh. for a Catholic, your Latin sucks ;-)

Ok.... So I see your concern but I will also suggest that there is something else going on as well.

I think what you are getting at is that there should be a stronger "principle of least surprise" in the judicial process. I tend to agree.

However: State Supreme Court rulings have been all over the map regarding gay marriage. The Washington State Supreme Court upheld the ban for example. Many other states have upheld the ban. This is similar to rulings on gay adoption bans being all over the map too. In general courts DO look to other states for guidance, but this is advisory only and not binding in any way, and it usually does NOT substantively impact the decision IMO.

We have many, many different legal traditions in this country with every state getting their own tradition of Constitutional Law. The Iowa decision laid out clearly how the Iowa tradition of Constitutional Law provides unusually strong equal protection considerations well beyond the normal considerations of the 14th amendment, and how these preceded the 14th amendment.

What is fundamentally wrong with 50 different state traditions of Constitutional Law? What is fundamentally wrong with the judiciary in Iowa ruling that the ban on gay marriage violates the principles of Iowa's Constitutional Law while at the same time, the judiciary in Washington decides that the ban on gay marriage is not in violation of the Washington tradition of Constitutional law?
4.7.2009 1:21pm
trad and anon (mail):
Did you bother to read what I wrote? Gay activists seek to destroy that which they cannot get to accept them, such as Boy Scouts and the Catholic Church. That is fact, so deal with it.
I'd much prefer to see those organizations change their positions. We got most churches that advocated racist Southern theology to change their theology, and we got a lot of overtly racist Southern non-church institutions to change as well. That's what I'd like to see happen to the BSA and the Catholic church.

In the case of anti-black racism, most of the churches and groups that didn't change were destroyed through social pressure (of course those private groups serving the public generally were forced to change by the '64 Act, but bona fide private clubs and the like were not). If anti-gay institutions adamantly refuse to change, I'd like to see the same thing happen.
4.7.2009 1:35pm
Oren:

They are welcome to their sexual preference or orientation. You miss the point, which is that gay activists are willing to destroy many good things in society if frustrated in their desires to achieve "equality" as they define it.

No, you said those things are unimportant. You can't both claim they are important goods and say they are unimportant.


A good example is Catholic Adoption charities being forced to choose between their first amendment religious rights and continuing to do their very good works of providing wanted children to loving heterosexual parents. The absolutism of the gay activiststhe legislature in not crafting an exception would be to force them to provide those children to gay parents, and history shows that gay activists will go to any lengths in order to force that, or to force those charities out of business.

They have no inherent right to act as agents of the state in mediating adoptions. Performing a quasi-state-function is not exercising their religion -- it's a public service on which the public has a right to impose substantive requirements.

I can't see a 1A issue here.

In the same way, I wholeheartedly support the right of the BSA to exclude gays (terrible policy, of course) but I will not vote to give them any subsidies or use of public buildings -- those just are not entitlements that we have to give out to just anyone. Insofar as the legislature though that the BSA were worthy of subsidies and use of public facilities, they can grant them. If they don't, they won't.
4.7.2009 4:03pm
Michael Donner (mail):
Not enacting a policy (whether legislatively or judicially) based on the "slippery slope" concern means that we are afraid to make a decision TODAY because we do not trust ourselves to draw a distinction TOMORROW.
4.7.2009 4:10pm
einhverfr (mail) (www):
Oren:

They have no inherent right to act as agents of the state in mediating adoptions. Performing a quasi-state-function is not exercising their religion -- it's a public service on which the public has a right to impose substantive requirements.


Furthermore, the only case of this happening I could find was in the UK. And in the UK, there WAS a religious objection opt-out clause that the Catholic charities were refusing to take advantage of. At that point, it is no longer a good faith objection anyway.
4.7.2009 8:17pm
John Moore (www):
einhverfr writes:

for a Catholic, your Latin sucks ;-)


Worse than that, I won a state-wide Latin championship once. And I was not a Catholic during the Latin years.
4.7.2009 8:51pm
John Moore (www):

1) What is the stated REASON for the restriction as a doctrinal matter?

2) Is this a reason stated in good faith? Or is it an after-the-fact justification? This is determined by how else the reasons are put in effect. The plaintiff alleging unreasonable discrimination would have to show that this interest is not pursued in good faith.


So now we're going to get the courts into theological interpretation? Don't you sense things are getting a bit out of hand.

And yes, the objections are clearly doctrinal, not arbitrary.

Note, however, that not all doctrine is held to equal status, for whatever that's worth.
4.7.2009 8:53pm
John Moore (www):

I think what you are getting at is that there should be a stronger "principle of least surprise" in the judicial process. I tend to agree.


That's a very good principle, but I am looking also for a principle that gives strong deference to traditional values and practices, if the Constitution and law does not speak clearly on the issue.

IMO, courts should not be "advancing" social agendas. That should be up to the legislature (as constrained by one or more Constitutions) as they are closer to the people.
4.7.2009 8:56pm
John Moore (www):

I'd much prefer to see those organizations change their positions. We got most churches that advocated racist Southern theology to change their theology, and we got a lot of overtly racist Southern non-church institutions to change as well. That's what I'd like to see happen to the BSA and the Catholic church.

In the case of anti-black racism, most of the churches and groups that didn't change were destroyed through social pressure (of course those private groups serving the public generally were forced to change by the '64 Act, but bona fide private clubs and the like were not). If anti-gay institutions adamantly refuse to change, I'd like to see the same thing happen.


I can only conclude that you put the narrow agenda of gays far above the good that those groups are doing.

The attempt to equate gay activism to the civil rights movement is rather disgusting. Gays today have every right that straights do, and rarely face discrimination.

The issue on gay marriage (and adoption, etc) is related to unnatural (yeah, call me a bigot) situations. I am all in favor of providing gays with appropriate remedies for many legal issues related to marriage, but not all.


As far as the anti-black churches, they still exist. However, it's touch to find solid theological grounding for such behavior. On the other hand, pillars of salt are a good clue about the theological grounding of Christianity's stance on homosexual behavior.

Today, most Christians(not all, of course - it's a large, diverse bunch, but all that I know personally) are not interested in using government to constrain the behavior of homosexuals, except in manners related to marriage and child rearing. Frankly, my personal views on the matter do not come from religion and in fact pre-date my becoming a Christian.
4.7.2009 9:02pm
John Moore (www):

No, you said those things are unimportant. You can't both claim they are important goods and say they are unimportant.

You misread. Adoption agencies, churches and the Boy Scouts are very important.


They have no inherent right to act as agents of the state in mediating adoptions. Performing a quasi-state-function is not exercising their religion -- it's a public service on which the public has a right to impose substantive requirements.

I can't see a 1A issue here.

]
The 1A issue depends upon the way in which the restrictions are placed. If it is through funding, I agree - no restrictions. If it is by judicial fiat, then its a 1A issue.

The public does have the right to affect what their money is spent on, and set conditions on that. If the public chooses to destroy good institutions because of those restrictions, it would hardly be the first time they acted that way.

However, the gay rights movement seeks to do this through the courts, and through slippery slope tricks, rather than through democratic means.

As many do, they cloak themselves in the mantle of the civil rights movement, which is ludicrous.

They further assert (as do many) that court actions in the civil rights movement show the necessity for further fiat actions in other areas. That is treated as a foregone conclusion, when in fact it is very debatable.

Certainly the Roe v Wade and other SCOTUS actions on abortion have had a chilling effect on democracy, creating an enormous split in our society that arguably would not have happened if they had left the matter to the states.


In the same way, I wholeheartedly support the right of the BSA to exclude gays (terrible policy, of course) but I will not vote to give them any subsidies or use of public buildings -- those just are not entitlements that we have to give out to just anyone. Insofar as the legislature though that the BSA were worthy of subsidies and use of public facilities, they can grant them. If they don't, they won't.


What you are saying is that these entitlements cannot be given out to groups doing a lot of provable good, if they do not conform to the specific requirements of allowing in gays.

This is consistent with my assertion that the gay agenda seeks to destroy that which it cannot have. In your case, legal purism has the same effect, even without the intent.

I think that's terrible policy and certainly has no place being created by judges.
4.7.2009 9:18pm
John D (mail):
John Moore,
A good example is Catholic Adoption charities being forced to choose between their first amendment religious rights and continuing to do their very good works of providing wanted children to loving heterosexual parents. The absolutism of the gay activists would be to force them to provide those children to gay parents, and history shows that gay activists will go to any lengths in order to force that, or to force those charities out of business.


Except that's not what happened.

Here are the major points on the timeline:

1. Catholic Charities, working under a contract with the Commonwealth of Massachusetts is a major adoption provider. They operate under all applicable laws, and place children in the homes of gay people.

2. Goodridge v. Public Health.

3. Catholic Charities is pressured to stop adoptions to gay people.

4. The board Catholic Charities votes to continue adopting children to gay people.

5. The Catholic Church applies more pressure. Board members resign.

6. Catholic Charities ask Massachusetts if they can obtain an exception.

7. Massachusetts says no.

8. Catholic Charities gets out of the adoption business.

The only step that actually involves gay activists is #2. Everything else was either the Catholic Church or the Commonwealth of Massachusetts.

I've never seen anything about Catholic Charities become a private adoption provider. No state funds, but they could restrict their adoptions to Catholics (the LDS do this).

All the pressure came from the Catholic hierarchy. Who forced Catholic Charities out of business? Bishops and Cardinals. And Catholics tend to get very testy when you allege that the leaders of the church are gay.

We can't blame this one on gay activists.

I only seen this a million times. It's not true, but gets trotted out ad infinitum. Please help by not spreading the lie.
4.7.2009 10:10pm
John D (mail):
Quick addendum to #3 on my timeline:

3. Catholic Charities is pressured to stop adoptions to gay people by the Archbishop of Boston.

#3 alone is sufficient to make the claim:

The Catholic Church forced Catholic Charities to get out of the adoption business.
4.7.2009 10:13pm
einhverfr (mail) (www):
John Moore:

That's a very good principle, but I am looking also for a principle that gives strong deference to traditional values and practices, if the Constitution and law does not speak clearly on the issue.


Do you think Brown v. Board was wrongly decided in its day?


So now we're going to get the courts into theological interpretation? Don't you sense things are getting a bit out of hand.


No. I am thinking of something slightly more deferential than rational basis review. I.e. the difference between a good faith theological argument and a bad one has to do with how it is practiced and taught.

1) We assume that all teachings which are a part of official church teaching are valid bases for policy and
2) We require a basic level of showing that the teachings are acted on beyond the mere scope of question.

For example, consider a gay rights vs catholic adoption agency case. One of these has competent lawyers on the defendant's side and the other does not.

In the first case the defence argues that it is widely accepted church teaching that procreative sex and hence childrearing should only occur inside sacramental marriages. However, the church does NOT argue any particular preference given to Catholic couples over, say, Atheist couples. That would be rightly dismissed because there is no good faith showing that the rationale argued is actually put into practice in any meaningful sense.

In the second case, the defence argues that the church teaches that homosexual activity is a violation of natural law as understood by the church and cites numerous prohibitions against open gays attending seminary schools, etc. This case would be rightly accepted because it is clear that the church is pursuing this teaching in good faith.

Does that distinction make sense? I would expect Catholic adoption agencies to pass such a test with flying colors even if they have first year seminary students instructing the lawyers as to matters of church teaching......

What it wouldn't allow though would be an argument that there is a conscientious objection which is either not found in the actual official teachings of the organization or is not actually put into practice elsewhere.
4.7.2009 10:14pm
John Moore (www):
John D

I only seen this a million times. It's not true, but gets trotted out ad infinitum. Please help by not spreading the lie.


Simple question: if the gay rights movement hadn't pushed Mass into the position of requiring the Catholic Charities to provide adoption to gays, would the charities still be providing needed adoption services? A yes or no will suffice.

And Catholics tend to get very testy when you allege that the leaders of the church are gay.

Relevance? Or are you just in a Catholic bashing mood today?

Name one leader of the church who is gay? I know that many have homosexual sexual preference, and the Church doctrine permits that, but only if they don't engage in homosexual (or for that matter, heterosexual) activity.
4.7.2009 11:18pm
John Moore (www):

The Catholic Church forced Catholic Charities to get out of the adoption business.


The fact that the charities violated Church doctrine before that is irrelevant. The Church is hardly monolithic, and the American bishops were too lax for decades (note the homosexual statutory rape scandals improperly called pedophilia). That the Bishops finally repaired their failure to do their duty is hardly relevant to this discussion.
4.7.2009 11:21pm
John Moore (www):
einhverfr:

Do you think Brown v. Board was wrongly decided in its day?

Not being familiar with the details of the ruling, I can't say. I do know that it was unnecessary, althougn it may have been helpful.

But look at the slippery slope it led to. A Federal judge running the Kansas City school districts, ordering specific facilities to be built, and even ordering taxes to be raised to fund it.

Oren talks about slippery slopes. Anti-discrimination law has a steep one, and a lot of crap has slid down that slope.

D

oes that distinction make sense?


Yes, but things are rarely that simple. Its easy to imagine professors of theology, expert witnesses for both sides, getting into minutae of a faith. Better to give deference to the institution's likelihood of acting in good faith, unless serious evidence appears to the contrary.

In other words, if you set up a "church" to evade taxes and perform polygamous marriages, the state has serious grounds for concern. In established religions, especially the Catholic church with its 2000 years of theological analysis, a strong presumption of good faith should apply.


What it wouldn't allow though would be an argument that there is a conscientious objection which is either not found in the actual official teachings of the organization or is not actually put into practice elsewhere.

Well, this is not as cut and dried as it would seem. Let's say Joe and Marry set up the J&M libertarian adoption agency. Let's say they adopt a philosophical rule that they will only provide services to families that swear an oath on a stack of Atlas Shruggeds'. Is it appropriate to automatically deny the, state funds on grounds of bad-faith discrimination? This example avoids 1A and still shows the issues.
4.7.2009 11:33pm
John D (mail):
John Moore,

Private adoption agencies can operate under whatever principles they choose.

You are stretching the truth out of all recognition by claiming that gay activists had anything to do with Catholic Charities.

If it really were those evil gay activists forcing anyone, why did board members resign over the Church forcing them to stop adoptions to same-sex couples?

The facts just don't support your allegations.
4.8.2009 12:38am
einhverfr (mail) (www):
John Moore:

Yes, but things are rarely that simple. Its easy to imagine professors of theology, expert witnesses for both sides, getting into minutae of a faith. Better to give deference to the institution's likelihood of acting in good faith, unless serious evidence appears to the contrary.


Ok, then let's add to the test that it be a "reasonable interpretation of church teachings and be acted on in good faith."

How do you see evidence of wrong doing in this case? What sort of evidence do you think woudl be required to breech 1A protections?
4.8.2009 12:55am
John Moore (www):

Ok, then let's add to the test that it be a "reasonable interpretation of church teachings and be acted on in good faith."


Sounds like it opens the door to what I forecast.

On the other hand, as I mentioned, how about non-religious organizations. I don't think gay adoption should be forced on any agency. For that matter, unless the agency is wholely funded by the government, or the funding is disproportionately allocated by type/sponsorship of agency, why should the government has much business determining which customers the agency chooses to turn away. As another example, do you think the government should fund agencies which refuse to do inter-racial adoption? Too many of them, supported by the lift ironically, have that restriction.
4.8.2009 1:27am
John Moore (www):
John D


Private adoption agencies can operate under whatever principles they choose.

You are stretching the truth out of all recognition by claiming that gay activists had anything to do with Catholic Charities


I offered a simple challenge. You ignored it.

Try again.
4.8.2009 1:29am
John Moore (www):
John D


If it really were those evil gay activists forcing anyone, why did board members resign over the Church forcing them to stop adoptions to same-sex couples?


Do you really, seriously offer that as an argument. What is your explanation for the board members resignations? Sheesh!
4.8.2009 1:32am
Randy R. (mail):
JOhn D : It's useless. People like Moore have their minds made up -- gays are evil people bent on forcing their lifestyle upon everyone else. No amount of facts will dissuade them. Afterall, it's way too much fun to play the victim -- you know, we gays are so powerful and the catholic church is utterly powerless to stop us. And we gays have just had it SO GOOD for hundreds of years, yet we are never satisfied until all good people like John Moore and under our boot.

You won't get anywhere. But thanks for trying!
4.8.2009 12:05pm
einhverfr (mail) (www):
John Moore:

In your view do you think that religious charities get to make up their own rules as they go along? How would you draw the line? Would it be different if the charity is also receiving public funds (in that case doesn't the government have a right to condition those funds)?

If someone running a Catholic charity were to do something truly outragious and unsupported by doctrine like, say, discriminate on the basis of race, do we just expect the church to police this? What if the charity is not affiliated with a church that is as organized as the Catholic Church? Suppose instead it was associated with a group that didn't have a centralized hierarchy?

It seems to me that religious exemptions for services offered to the public ought to require at least a good-faith showing that this is both a reasonable interpretation of church doctrine and that it informs the ACTIONS of the church. Anything can open up bickering between expert witnesses. But I don't think that we should just expect all religions to be able to develop their own traditions of church law, police charities reasonably affiliated with them, etc. At some point some things have to be able to be able to be brought before the courts.

Really it is no different than proving a marriage is a fraud. In that case, one is required to make a good-faith showing that there is an attempt to build a life together.
4.8.2009 12:24pm
einhverfr (mail) (www):
BTW, if we are to accept John D's argument I would be inclined to agree that the issue was not a good-faith objection since the resignation seemed to be a reaction to a court decision.

You can't do something for a long time and then suddenly decide that you can't do so in good faith just because the court issued a ruling you didn't agree with.

Similarly, Catholic adoption agencies in the UK, by REFUSING to file for religious exemptions to placing children with gay families are showing that this is not a good faith objection.

The goal over these issues is to make lots of noise, not to live out one's own beliefs.
4.8.2009 12:27pm
Michael Edward McNeil (mail) (www):
einhverfr said:
Yeah. It is like my arguments (as a pagan) for allowing 10-commandment monuments in most circumstances. If it is THAT important to you, and you are NOT talking about removing the statues of pagan goddesses from your public buildings, then by all means, have your monument.

Just don't touch the temple to the savior of our country, Abraham Lincoln.... Good ol' Roman apotheosis in action....


Then there's the Apotheosis of Washington on the ceiling of the U.S. Capitol dome — with George Washington as the Lord of Hosts gazing down upon us all from on high….
4.8.2009 1:52pm
einhverfr (mail) (www):
Michael:

Then there's the Apotheosis of Washington on the ceiling of the U.S. Capitol dome — with George Washington as the Lord of Hosts gazing down upon us all from on high….


Thanks! Note that the Capitol is not only structured like an old Roman temple, but is named for one too.....
4.8.2009 2:01pm
John Moore (www):
RandyR

JOhn D : It's useless. People like Moore have their minds made up -- gays are evil people bent on forcing their lifestyle upon everyone else. No amount of facts will dissuade them. Afterall, it's way too much fun to play the victim -- you know, we gays are so powerful and the catholic church is utterly powerless to stop us. And we gays have just had it SO GOOD for hundreds of years, yet we are never satisfied until all good people like John Moore and under our boot.


RandyR, that is not only utterly incorrect in characterizing my views, but does not belong on this BBS.

You should be ashamed for uttering such vicious lies.
4.8.2009 2:08pm
John Moore (www):

In your view do you think that religious charities get to make up their own rules as they go along? How would you draw the line? Would it be different if the charity is also receiving public funds (in that case doesn't the government have a right to condition those funds)?



Good question.

The answer in general is yes, those running charities (or businesses) should be pretty free to make up the rules. Religious charities have an additional freedom due to 1A, which of course is weakened (too much IMHO) by involvement with government funds.


If someone running a Catholic charity were to do something truly outragious and unsupported by doctrine like, say, discriminate on the basis of race, do we just expect the church to police this? What if the charity is not affiliated with a church that is as organized as the Catholic Church? Suppose instead it was associated with a group that didn't have a centralized hierarchy?


A couple of answers:

If the charity is violating the law, obviously the government may step in to remediate the situation - religious charity or otherwise.

The case of the Boston Charities is an example where the charity was doing something against Church doctrine - providing adoption services to gays. That is why the Church moved in and stopped it.

Beyond that, there is the obvious policy question of what qualifies any charity for it's tax deductible status. Should the Aryan Brotherhood be able to deduct from their taxes contributions to a white-only adoption agency? To me, this is not a settled question. Should a black-only by doctrine church be treated as a religious organization? To me, the answer is obviously yes - if it is genuine.
4.8.2009 2:17pm
John Moore (www):


You can't do something for a long time and then suddenly decide that you can't do so in good faith just because the court issued a ruling you didn't agree with.

In the context of the Church, a couple of decades is a very short time. Second, the Catholic Charities were in violation of Church doctrine, because the church is not monolithic and tightly policed - in the short term. It was good faith by the church to stop adoptions, based on religious grounds. Misbehavior by people acting in the name of the church does not change that - even if it lasted decades.


Similarly, Catholic adoption agencies in the UK, by REFUSING to file for religious exemptions to placing children with gay families are showing that this is not a good faith objection.


Would you care to explicate? Do you know the details of that case? I do not.


The goal over these issues is to make lots of noise, not to live out one's own beliefs.


Fatuous nonsense.
4.8.2009 2:20pm
Bob VB (mail):
One could just as easily say that once you get beyond standard opposite sex marriages, marriage equality means allowing people to marry whomever they like.

If you ignore how in one situation you are just allowing all citizens to do something that others are already allowed to do and in the other you are allowing citizens to do something no one was allowed to do, then yes you can just as 'easily' say that. But who would ignore the differences just to make a point?
4.8.2009 3:15pm
Bob VB (mail):
is just factually wrong, as all of those relationships have been allowed in various communities previously.

Ok, which states offer these contracts? I know that all of them people to license their marriages with their male or female spouse, but none where they are allowed to license multiple spouses, license a spouse that is already contractually obligated, or with a close family member such as a parent, sibling or child.

I must have overlooked the states that allow these things - which ones are they exactly?
4.8.2009 3:21pm
John Moore (www):

If you ignore how in one situation you are just allowing all citizens to do something that others are already allowed to do


Simply not true. In the "one" situation, citizens were NOT allowed to marry members of the same sex. That is a rather significant change, not something "they were always allowed to do."
4.8.2009 4:01pm
Bob VB (mail):
Simply not true. In the "one" situation, citizens were NOT allowed to marry members of the same sex. That is a rather significant change, not something "they were always allowed to do."

Ah but citizens are allowed to license their marriage to a male or female spouse which is the attraction basis for the marriage to begin with - that some are in opposite and same gender combinations is an artifact that has nothing to do with the citizen themselves and is not the basis of the marriage itself.

That is an alternate way of looking at the 'opposite' argumentative fallacy which illustrates that citizens are being treated differently. There are no similar alternative arguments for the other cases. So discriminatory licensing based on spousal gender is qualitatively different than the other cases.
4.8.2009 4:13pm
John Moore (www):

that some are in opposite and same gender combinations is an artifact that has nothing to do with the citizen themselves and is not the basis of the marriage itself.


A terribly weak assertion, especially in the light of human history and anthropology.
4.8.2009 5:55pm
Bob VB (mail):
A terribly weak assertion, especially in the light of human history and anthropology.

Only if you think either is relevant to the discussion- marriage is a natural biologically based condition and we have never understood its underlying biology better than we do today. The idea the genders are opposites is false, the idea that we are attracted to opposites is false, the idea that 'same gender attraction' is qualitatively different than 'opposite gender' is false. How they used to think it was an intellectual curiosity no more relevant than thinking of earth as the center of the universe, not a basis for equal treatment under the law for the citizen's factors that we now know are truly relevant.
4.8.2009 6:05pm
Bob VB (mail):
A terribly weak assertion, especially in the light of human history and anthropology.

Only if you think either is relevant to the discussion- marriage is a natural biologically based condition and we have never understood its underlying biology better than we do today. The idea the genders are opposites is false, the idea that we are attracted to opposites is false, the idea that 'same gender attraction' is qualitatively different than 'opposite gender' is false. How they used to think it was an intellectual curiosity no more relevant than thinking of earth as the center of the universe, not a basis for equal treatment under the law for the citizen's factors that we now know are truly relevant.
4.8.2009 6:05pm
einhverfr (mail) (www):
Bob VB:

I think there is a heck of a lot more about marriage than just biology. I think that at its root it is a social construct.

You can't say that arranged marriages between royalty in medieval Europe whose sole purpose was to cement alliances had anything to do with biology, for example.
4.8.2009 6:52pm
Bob VB (mail):
You can't say that arranged marriages between royalty in medieval Europe whose sole purpose was to cement alliances had anything to do with biology, for example.

No that just shows that the civil contract of marriage often has nothing to do with the biology - remember, the natural pairing up that humans do, is what's really marriage. That people abuse the civil contract for all manners of things from immigration to political intrigue just goes to show how lax the contract application has been. Hence the laugh in your sleeve reaction when suddenly its all about 'this that and the other' to try and excluded some citizens that are naturally biologically marrying the way Nature's god intended ;)
4.8.2009 7:25pm
Oren:

You misread. Adoption agencies, churches and the Boy Scouts are very important.

And I'm 100% behind them.


The 1A issue depends upon the way in which the restrictions are placed. If it is through funding, I agree - no restrictions. If it is by judicial fiat, then its a 1A issue.

It is through a requirement set by the legislature for adoption agencies.


What you are saying is that these entitlements cannot be given out to groups doing a lot of provable good, if they do not conform to the specific requirements of allowing in gays.

There's no legal bar to giving out subsidies to the BSA (e.g.) if that's what the legislature wants. They are free to petition the legislature like any other organization in order to convince them they do more good than harm.

I would vote against subsidizing them because their values are discordant with mine along the same line of reasoning that leads the BSA to refuse to admit gays. If the legislature votes otherwise, I'd be grumpy about it but I respect their right to do so.
4.8.2009 7:31pm
John Moore (www):

The idea the genders are opposites is false, the idea that we are attracted to opposites is false, the idea that 'same gender attraction' is qualitatively different than 'opposite gender' is false.

Wishful thinking and unscientific nonsense



How they used to think it was an intellectual curiosity no more relevant than thinking of earth as the center of the universe, not a basis for equal treatment under the law for the citizen's factors that we now know are truly relevant.


Typical modern arrogance - use pseudo-scientific nonsense to displace tradition. There are serious qualitative and biological differences differences between same sex and opposite sex relationships.
4.8.2009 7:41pm
John Moore (www):

You can't say that arranged marriages between royalty in medieval Europe whose sole purpose was to cement alliances had anything to do with biology, for example.


So how often did they arrange marriages between sons?
4.8.2009 7:42pm
John Moore (www):
The point of alliance forming marriages was exactly the reproductive aspects of the marriage. The alliance meant little until there were children who shared the blood of both sides.
4.8.2009 7:43pm
John Moore (www):

There's no legal bar to giving out subsidies to the BSA (e.g.) if that's what the legislature wants. They are free to petition the legislature like any other organization in order to convince them they do more good than harm.


Then no legal issue. Still a big social issue (the legislature did harm, but within our society, this harm was arrived at democratically and legally).


I would vote against subsidizing them because their values are discordant with mine along the same line of reasoning that leads the BSA to refuse to admit gays. If the legislature votes otherwise, I'd be grumpy about it but I respect their right to do so.


So you consider, in a utilitarian sense, that unless the BSA admits gays, we are better off without them?
4.8.2009 7:46pm
einhverfr (mail) (www):
John Moore:

So how often did they arrange marriages between sons?


Sorry my point wasn't clear. Bob was seeming to argue that marriage as a state of living and as a choice of partners was based on biology.

Marriage is usually in most cultures (and this includes polygamous marriage too) a matter of cementing extended families with shared children. Obviously that has a lot to do with biology but the goals are not biological goals in the normal sense so much as economic goals.
4.8.2009 8:10pm
einhverfr (mail) (www):
So consequently my point to Bob was that marriage had elements of biology to it but also had cultural elements as well.

You could argue the same that hormones of attraction are biological too. However at its root, biology doesn't define marriage the way culture does.
4.8.2009 8:12pm
Bob VB (mail):
Wishful thinking and unscientific nonsense
Fine, show me any proof you want - you are the one saying these differences rationalize discriminatory treatment. I on the other hand know the only difference between a man and a woman need be one gene, the SRY. I know that the male phenotype is an overlay of the base human and can postulate and demonstrate empirically that this overlay can be highly variable. I can show that both men and women can react the same to male sex pheromones. But if you have 'nonsense' that can refute that other than your good looks bring it on.

Typical modern arrogance - use pseudo-scientific nonsense to displace tradition.
Tradition is just a synonym for stagnation. If you can't back up a tradition with other than 'that's the way we've always done it before' then its place is on the garbage heap of history when more complete understanding rears it head.

There are serious qualitative and biological differences differences between same sex and opposite sex relationships.
Bring it on - I have read studies that show that couples marry for the same reasons, go into with the same expectations and even end up bickering about the same things regardless of their gender combination. Since mutual fertility is not a requirement for licensing the civil contract and in fact mutual sterility is a prerequisite for licensing what other difference than mere 'ability to breeding' is there? I mean these are 'serious' differences, surely they will be very simple for you to clearly demonstrate.

As to your issue about the BSA, the are a private religious youth organization with freedom of association as per the SCOTUS and that freedom of association is pretty absolute, marriage equality or not. What benefit don't they have access to that other private religious youth organizations with discriminatory membership requirements do?
4.8.2009 8:13pm
Bob VB (mail):
Marriage is usually in most cultures (and this includes polygamous marriage too) a matter of cementing extended families with shared children. Obviously that has a lot to do with biology but the goals are not biological goals in the normal sense so much as economic goals.

Which grows out of the biology. If humans came into heat once a year, bred and the males wandered off we wouldn't have the civil institution of marriage at all (but then probably wouldn't have anything other than what the other mammals that breed that way did either I expect). No we naturally pair-bond, the oxytocin-vasopressin mediated mammalian pair boding response. And because we pair bond, we developed families and extended families. And because we did that we developed laws and customs that quantified it. But regardless the basis of marriage is biological, and as our understanding of biology expands so does our understanding of this natural state of marriage.

Two adults can pair-bond with someone of another gender regardless of their gender combination, they are married. That some are denied license to the civil contract merely because of the gender of their spouse in a country based on the equality of all if its citizen's innate rights is an serious ethical failure of the state and cannot and should not be tolerated.
4.8.2009 8:19pm
einhverfr (mail) (www):
BobVB:

I am not saying that marriage has nothing to do with biology. I am saying that you can't reduce marriage to a matter of biology.

What do you think about a biological basis then for polygamy? It seems common enough in the world. Is it just that we are biologically superior to folks elsewhere in the world? That we are more in touch with our biology? Or is it a cultural constraint that makes polygamy an issue?
4.8.2009 8:43pm
Bob VB (mail):
What do you think about a biological basis then for polygamy?
Well a recent study said that among primates the tendency towards polygyny, one male multiple women, is proportional to the size differential between the male and female and as such the human tendency towards polygyny is slight.

Actually around the world polygyny is common, not true polygamy and polygyny, or the situation where only the man can license multiple civil contracts is incompatible with US principles - we at best could only support true polygamy which virtually all male practitioners of polygyny would not want in any way shape or form - the ability of a wife to marry another man? Not even if he was hot, so bringing this up is often a red herring issue at best.

And again, the issue is marriage equality, equal license to the civil contract by the state. Again, the state need license no contract, marriages would still take place. But if it is going to it needs to be available to citizens married to men or women if being married to men or women is going to be allowed. That we had two sets of special rights with 50% of citizens being able to license the contract with their male spouse, and 50% with a female spouse is just 2 sets of special rights, a mistake that can't be justified by saying 'its the way we've always done it before'.

And yes I can reduce our fundamental rights to matters of biology since all of our fundamental rights derive from our biology - that's makes them innate and from the Deist Creator who made a perfect universe and has done nothing in it since. That we misunderstood the biological nature of marriage, that we used to think attraction was to 'opposite' and so attraction to 'same' was wrong, that we used to think that being attracted to someone of the same gender was a vice, but it wasn't when it was to someone of the opposite, is just that - a mistake. Yes I will admit because of these erroneous assumptions most marriages recognized in the past were opposite gender but we know better now. We know its the exact same biological mechanisms at work in a nation of citizens with equal rights - how can they not have the same recognition of the fundamental right to marry by the state regardless of past mistakes by the state?
4.8.2009 9:11pm
einhverfr (mail) (www):
BobVB:

Would you then agree that marriage equality is incompatible with our normal biological nature? Certainly polygyny as a frequent norm in history, in other primates, etc. would suggest this.

Are women and men created differently as regards the fundamentals of marital institutions?

As for a perfect universe, what do you think of Darwin's objections to the idea?
4.8.2009 9:39pm
John Moore (www):

I on the other hand know the only difference between a man and a woman need be one gene, the SRY. I know that the male phenotype is an overlay of the base human and can postulate and demonstrate empirically that this overlay can be highly variable. I can show that both men and women can react the same to male sex pheromones. But if you have 'nonsense' that can refute that other than your good looks bring it on.


I'm just so proud of you.

The difference between a schizophrenic and a non-schizophrenic is often a single single nucleotide polymorphism. So I guess they're the same, eh?

Certain aspects of the male and female phenotypes are rarely variable. A high percentage of males have male genitalia, and vice versa. So don't give me this highly variable crap.


Two adults can pair-bond with someone of another gender regardless of their gender combination, they are married.


Nonsense. Only by your definition. Marriage has long been and continues to be about biology - procreation, the creation of a family and the benefits that brings to the parents and the children. In much of the world, to this day, attraction and love don't enter into it. Fortunately, in our culture they do. However, they don't define it. You are seeking to radically change the long established basis of marriage. Throwing out a few tangential scientific facts and constructing pseudo-scientific conclusions from them doesn't cut it.
4.8.2009 9:41pm
Bob VB (mail):
Would you then agree that marriage equality is incompatible with our normal biological nature? Certainly polygyny as a frequent norm in history, in other primates, etc. would suggest this.
No, because marriage equality is about equal access to the existing contract. Creating new contracts is a different issue, as long as all citizens have license to the existing contract with a spouse that they might want another spouse is another issue.

Certainly polygyny as a frequent norm
Really or are you really saying tolerance of polygyny is a frequent norm? Even in societies that tolerate it aren't the majority of marriages between just 2 spouses? But as long as everyone can have one spouse then everyone's fundamental right to marry is being supported and acknowledged by the state, right?

Are women and men created differently as regards the fundamentals of marital institutions?
I can't even parse what that means. 'institutions'? You mean the contracts? There are no gender-specific aspects of the Washington state contract only the licensing criteria.

As for a perfect universe, what do you think of Darwin's objections to the idea?
His objection to the Platonian ideals of a perfect 'essential' and 'perceived' universe? Not even what I'm talking about. 'Perfect' in the sense of the old 60's black light poster 'The universe is unfolding as it should', or maybe the button - "Enjoy Life - this is not a dress rehearsal".
4.8.2009 9:56pm
einhverfr (mail) (www):
John Moore:

In your view what makes two non-baptised athiests married (opposite sex) which does not relate to two individuals of the same gender?

Is marriage a religious sacrament? A social institution? Both but not with a necessary overlap?
4.8.2009 9:59pm
Bob VB (mail):
But if you have 'nonsense' that can refute that other than your good looks bring it on.
I'm just so proud of you.

You got nothing - check.

Throwing out a few tangential scientific facts and constructing pseudo-scientific conclusions from them doesn't cut it.
While you provide absolutely nothing at all to validate ignoring some citizen's fundamental rights. I'm less than impressed. ;)
4.8.2009 9:59pm
John Moore (www):

No, because marriage equality is about equal access to the existing contract.

No, it is about redefining that contract from its long established meaning (heterosexual union). That isn't equal access - that's revolutionary change.

The marriage contract conveys many privileges related specifically to reproduction: those regarding children.

You can't separate marriage and reproduction, and reproduction involves males and females (although yes, you can use intermediaries - such as sperm banks and contracted birth mothers - to hide the fact).
4.8.2009 10:02pm
einhverfr (mail) (www):
BobVB:

No, because marriage equality is about equal access to the existing contract. Creating new contracts is a different issue, as long as all citizens have license to the existing contract with a spouse that they might want another spouse is another issue.


Equal access to contracts is about biology? Please enlighten me as to how. I asked about our biological nature, which you conceded tended towards polygyny.


I can't even parse what that means. 'institutions'? You mean the contracts? There are no gender-specific aspects of the Washington state contract only the licensing criteria.


Please explain the how the Washington State contract and any other state contract differ and how these are matters deriving from biology.

Also Darwin's objection to the universe being perfect was simply that it can be cruel. His main example was that of parasites which slowly and painfully cause the death of the host organism. Why would a perfect universe contain such needless suffering?

Note I am a Norse Pagan. I do not believe in a perfect universe.
4.8.2009 10:02pm
einhverfr (mail) (www):
Bob VB:

My point about marriage equality is that it is a matter of our ethical and ethnic culture, not a matter of biology. Humans are cultural animals and while you can ascribe a need to culture as possibly having a biological basis, there is NO WAY you can ascribe every possible cultural variation in the world to one which grows out of biology in a deterministic way.

That would be like saying that the differences between English and Spanish are rooted in biology!
4.8.2009 10:05pm
John Moore (www):

While you provide absolutely nothing at all to validate ignoring some citizen's fundamental rights. I'm less than impressed. ;)


Sorry, but you also provided nothing.

Try again - I'm not scared of the jargon. But it would be more useful if it were relevant and significant.

I note you failed to answer my refutation of this (at least in relevance to this discussion):
I know that the male phenotype is an overlay of the base human and can postulate and demonstrate empirically that this overlay can be highly variable.


Likewise you ignored my comparison of your genetic delta to my Schizophrenia SNP.
4.8.2009 10:10pm
einhverfr (mail) (www):
John Moore:

No, it is about redefining that contract from its long established meaning (heterosexual union). That isn't equal access - that's revolutionary change.


Try going back and looking at context some time.

My original question was whether men and women were inherently unequal in marriage by Bob VB's admission that polygyny was fairly common both among humans and primates but that it was incompatible with our American values of marriage (in this case gender) equality.

My question to Bob VB was whether human men and women were biologically unequal when it came to marriage, so as to support polygyny as a viable form of marriage but not polyandry.

I don't know what contracts or contract equality have to do with biology but I am sure Bob VB will tell us ;-)
4.8.2009 10:12pm
einhverfr (mail) (www):
Bob VB

While you provide absolutely nothing at all to validate ignoring some citizen's fundamental rights. I'm less than impressed. ;)


Since you mention Washington State....

Washington State Supreme Court Decision, Anderson v. King County

ISTM that both the Iowa and Washington decisions are good law in their respective states. I am sure I will get howls of disagreement from both you and John Moore.
4.8.2009 10:18pm
Bob VB (mail):
Equal access to contracts is about biology? Please enlighten me as to how. I asked about our biological nature, which you conceded tended towards polygyny.

Slightly and polygyny is a type of marriage but still marriage and is monogamy.

Tell me where we start to disagree:
• We have fundamental rights.
• In the US the state has an obligation to not acknowledge fundamental rights in only some of its citizens.
• If the state is going to license a contract in support of its citizens exercising a fundamental right then all citizens should have some reasonable opportunity to do so.
• While the state can not selectively recognize fundamental rights it can still regulate rights as long as such regulation doesn't result in an effective proscription of rights.
• Licensing a contract only for 2 person marriage limits the potential polygenist but he still is able to exercise his fundamental right to marry with a spouse. Such a restriction could be considered a regulation, not a proscription.

Now IF there were an individual that could ONLY marry multiple spouses there might be an obligation to accommodate but I know of no such limitation or people claiming this as a personal quality. In contrast I know there are people who only marry a particular gender.

That would be like saying that the differences between English and Spanish are rooted in biology!

Yes but English and Spanish are mere intellectual constructs as are culture and law and are not fundamental rights. We could constitutionally ban English or Spanish if we wanted, there are not fundamental to our existence or our natures, unlike marriage which people would do if there was no culture, no government, no religion too. That we tamp that down a bit in no way detracts from the fact we would still at least couple-up - its in our genes.
4.8.2009 10:19pm
Bob VB (mail):
I am sure I will get howls of disagreement from both you

Hardly, it was decided on the premise the courts can't question the rationalization of the legislature for passing DOMA regardless of how valid they are. It didn't say their reasoning was justified or even accurate, only it wasn't their place to disagree. Most realize that with this line of reasoning we could still have miscegenation laws in Washington too. Its our Dred Scott moment and will just have to be fixed some time in the future. One justice did say that even though the state could limit license to the contract it couldn't limit access to the rights it gave. 'Go to the Legislature and ask for these rights, if they don't give them come back and see us.' Which is exactly what's been done.

Iowa's court obviously said it was their place to decide the legitimacy of the rationalizations and found them wanting. I would much prefer that Washington had followed the same course but the most likely solution there will be a repeal of DOMA in the future by the legislature or popular vote.
4.8.2009 10:26pm
John Moore (www):
einhverfr


Try going back and looking at context some time


Err... I was responding to bob, not you ;-)
4.8.2009 10:32pm
Bob VB (mail):
I note you failed to answer my refutation of this (at least in relevance to this discussion):
I know that the male phenotype is an overlay of the base human and can postulate and demonstrate empirically that this overlay can be highly variable.

That genital variation is a rarer class of variation called Sex-dichotomous than the other class of sex-dimorphic differences that include the attraction and behavior aspects seemed rather irrelevant and embarrassing for you. But if you insist:

"Yes John, some changes are bigger and rarer than some of the other variabilities that can only be seen on post autopsy micrographs and are more likely the kind that cause affectional variation.

Likewise you ignored my comparison of your genetic delta to my Schizophrenia SNP.

That you responded to my assertion that male and female are not opposites but very similar with another example of two things that superficially might seem very different but really are very similar and there for validates my assertion was important for me to bring up why exactly? You are demanding I gloat when you help my case?
4.8.2009 10:45pm
einhverfr (mail) (www):
Bob VB:

Tell me where we start to disagree:
• We have fundamental rights.
• In the US the state has an obligation to not acknowledge fundamental rights in only some of its citizens.
• If the state is going to license a contract in support of its citizens exercising a fundamental right then all citizens should have some reasonable opportunity to do so.
• While the state can not selectively recognize fundamental rights it can still regulate rights as long as such regulation doesn't result in an effective proscription of rights.
• Licensing a contract only for 2 person marriage limits the potential polygenist but he still is able to exercise his fundamental right to marry with a spouse. Such a restriction could be considered a regulation, not a proscription.


BobVB:

Let's start with this one:

• If the state is going to license a contract in support of its citizens exercising a fundamental right then all citizens should have some reasonable opportunity to do so.


That's an overbroad characterization. I would not categorize marriage as a "fundamental right" because I think that it is fundamentally defined by cultural norms. Some cultures may have arranged marriages, give parents or even extended family members veto power, make marriages solely on the basis of political considerations etc.

If marriage truly were a universal and fundamental right, and the right to choose a partner were not, then marriages could and should be arranged by the state through a lottery system to ensure everyone gets to (and must) take a part in this set of rights and obligations.

Also using the US as a reference point for all rights is cultural arrogance at its worst.

FWIW, I think that the only two fundamental rights are the right to one's own culture and the right to be free from undue persecution on account of one's own culture. Everything else is a matter of cultural construct.


Yes but English and Spanish are mere intellectual constructs as are culture and law and are not fundamental rights. We could constitutionally ban English or Spanish if we wanted, there are not fundamental to our existence or our natures, unlike marriage which people would do if there was no culture, no government, no religion too. That we tamp that down a bit in no way detracts from the fact we would still at least couple-up - its in our genes.


How would our essential nature change if we were to, say, Constitutionally ban all languages except, say, Payute (sp?)? To what extent does our essential nature depend both on culture and language? To what extent are our perceptions of fundamental rights based on cultural considerations? If Muslims think that women have a FUNDAMENTAL right to be free from sexual harassment and therefore should wear the Hijab or even the Burka, what do you say to that?

Also I would suggest that you may find the D'Anilou translation of the Kama Sutra interesting from a polygyny perspective because it addresses the effects of polygyny on women's sexuality, suggesting that homosexual outlets were common in India among members of the harems. This suggest to me that there may be more than pair bonding involved in polygyny relationships, and the only reason for seeing them as a sort of radial marriage has to do with alliances cemented by offspring.

In a world without government or religion, we would still have culture. If you take away all elements of culture, you do not have marriage in any recognizable sense, since marriage forms an element of culture. You have marriage customs in fact taking up pretty much a whole quadrant of Heidegger's culture matrix, for example.

IMO, you are seeking pseudoscientific explanations for cultural constructs.
4.8.2009 11:11pm
einhverfr (mail) (www):
John Moore:

Err... I was responding to bob, not you ;-)


Just trying to correct the context of the objections ;-)
4.8.2009 11:13pm
einhverfr (mail) (www):
Ok, so to summarize my view, the view of Bob VB and the view of John Moore:

I think that SSM will happen on account of changing culture. I see marriage as fundamentally a cultural construct and one which is tied to other attitudes and interests in culture. I furthermore see the shift from extended-family-centric society to individualistic society as mandating that change.

Bob VB sees SSM as an issue of fundamental rights based on an extrapolation from biology. He sees the world as created perfection by a Deist creator. He seems to think that the modern US is the reference point for biologically based fundamental rights.

John Moore believes that homosexual behavior should not receive any protection or sanction from the state, is opposed to mandates that they should be treated equally in matters of adoption, and worries about gay activists destroying all of our social organizations that they cannot appropriate. He fears that recognizing SSM will result in social instability.

It seems that my main disagreement with Bob VB is a disagreement on the nature of fundamental human rights, which I see as very limited and he sees as, IMO, culturally imperial (i.e. that we have an obligation to export human rights culture from the US to the poor unenlightened souls elsewhere in the world).

My main disagreement with John Moore is that I think that social change over the last 150 years is mandating recognition of SSM, while he seems to fear that SSM (or other same sex sexual relationship) recognition will lead to more social instability. I see SSM as the fulfillment of social trends towards individualism while he sees it as a likely cause of more problems down the road. Like Bob VB he holds that marriage is based on fundamentally universalist attributes. Like Bob VB he seems to hold hat there is one universal truth about the nature of marriage from which cultures cannot deviate without compromising their humanity.
4.8.2009 11:22pm
Bob VB (mail):
That's an overbroad characterization. I would not categorize marriage as a "fundamental right" because I think that it is fundamentally defined by cultural norms.
Then we might as well start there - I think the right to marry is up there with freedom of speech. Probably why you are happy with limiting it, you don't think its a right at all.

If marriage truly were a universal and fundamental right, and the right to choose a partner were not, then marriages could and should be arranged by the state through a lottery system to ensure everyone gets to (and must) take a part in this set of rights and obligations.
Like we force people to express their opinions... Yeah, right.

Also using the US as a reference point for all rights is cultural arrogance at its worst.
You're confused, I use biology as my reference point, I'm just in a nation that is based on the principle of the citizens having inalienable rights and can therefore expect the government to act in certain ways.

FWIW, I think that the only two fundamental rights are the right to one's own culture and the right to be free from undue persecution on account of one's own culture. Everything else is a matter of cultural construct.
"One's own culture"? Seriously what is a culture of one person? And what is "undue persecution"? I mean my 'culture of one' involves me being able to license the civil contract of marriage to a male spouse just like 50% of my fellow citizens have the right to do - so would have the right to do that in your system of fundamental rights?

To what extent does our essential nature depend both on culture and language?
Not at all - you can always learn a different language, they are mere tools, ditto with culture - you can have total amnesia, you can have a prefrontal lobotomy, and your rights will still remain even sans culture and language - your rights are reality based, they aren't mental or social constructs.

If Muslims think that women have a FUNDAMENTAL right to be free from sexual harassment and therefore should wear the Hijab or even the Burka, what do you say to that?
If each individual does fine, remember rights are individually based. I mean, give me a cup of 'Muslim' - THAT is an intellectual construct and has no reality. Only people are real, only people have rights, not groups - they are only collections of cooperating individuals.

IMO, you are seeking pseudoscientific explanations for cultural constructs.
And in mine you are grasping at illusions and pretending they are real. Culture is nothing but mental habit and irrelevant to the individual beyond the cooperation they say they will give to others for what others will give to them. In the US this is equal fundamental rights for all citizens and marriage has been acknowledged as a fundamental right coming from beyond government in many rulings.

But I do understand now why we don't understand each other - I don't even think your fundamental rights are really real, and you don't seem to accept the reality based premise of mine.

Oh well...
4.8.2009 11:33pm
einhverfr (mail) (www):
Bob VB:

You're confused, I use biology as my reference point, I'm just in a nation that is based on the principle of the citizens having inalienable rights and can therefore expect the government to act in certain ways.


But you agreed that biologically we are predisposed to polygyny, so I would conclude from that, and the fact that you argue that fundamental rights are based on biology, that polygyny is a fundamental right that the state should recognize. I don't see a biological argument for social equality in your train of thought at all. You jump there as if it is an assumption but social equality (in the sense of full equality) has never been a part of any society ever. It is not found in any community of primates I am aware of either. So one would conclude that equality is a right which comes from our intellectual decisions to recognize it as such (and then only on an abstract level) rather than our biology.


Not at all - you can always learn a different language, they are mere tools, ditto with culture - you can have total amnesia, you can have a prefrontal lobotomy, and your rights will still remain even sans culture and language - your rights are reality based, they aren't mental or social constructs.


But that wasn't the question.

However, accepting your point arguendo, if you have a prefrontal lobotomy, how you view the world and social connections will likely be profoundly different. Your essential nature changes, at least insofar as your essential view of yourself. In those cases, you might not even be capable of entering into or sustaining a marriage. So if capability decreases there and you still say the essence remains, then I would argue that it is not a fundamental right because it is dictated by, in your words, non-essential functionality.

Now, on to the connections between language, culture, marriage customs, acceptance of homosexuality, recognition of homosexual relationships, etc.

Starting with language and culture.... I would recommend the following as an introductory reading list:

"Language: An Introduction to the Study of Speech" by Edward Sapir.
"After Babel" by George Steiner (discusses the Whorf-Sapir thesis and rebuttals to it).
"Orality and Literacy" by Walter Ong.

Some of these are rather dense reads, but please bear with me on them. If I can read them AND 150 other textbooks in a year when I am not even in school, you can too....

My own view is that the Whorf-Sapir thesis is somewhat flawed in emphasis but not in direction. The main argument of the thesis (which is the subject of the rebuttals to it) is that grammatical and lexical structures alter culture and consciousness. However, even if one disregards that element, it seems to me that semantic structures (and how words are arranged to include meaning) do encode profound differences in how people with different native languages see the world, and hence their culture. I think that grammatical and lexical structures may play a role, but I think the semantic structures are more important in this sort of structuralist analysis. My argument is simple: If people who speak two different native languages describe the same event from points of view which are both fundamentally different and encoded in their language, those different points of view are also encoded in the consciousness of the native speakers.

A second point to bring up here (which is related to biology and fundamentally undermines your point) is that the brain goes through its peak period of growth at the time a young child is learning his/her native language. The brain and cognition grow and develop in the presence of the learning of language, and hence the native language is deeply encoded in any of our attempts to think. If you don't believe me, try to go through the reasoning in your last post entirely without resorting to a linguistic system!


If each individual does fine, remember rights are individually based. I mean, give me a cup of 'Muslim' - THAT is an intellectual construct and has no reality. Only people are real, only people have rights, not groups - they are only collections of cooperating individuals.

You dodged my point entirely. My point was that one prevalent school of thought in Islam is that women should wear the hijab because this makes them free from sexual harassment and therefore this is a good practice. Another related school of thought holds that men have the right to be free from sexual temptation and hence women should wear such headscarves. Certainly such arguments are based on biology too (sex drives and all that). Certainly they are in the interest of society, as far as reducing adultery, etc. Would you argue that those rights are on the same level as the ones you propose? Why or why not?

We will probably have to disagree with the nature of individual rights. I think that people have a reasonable right not to be unduly persecuted for their culture and that is about it. I think that all other rights exist relative to the structure of the culture.

Also groups do have rights. For example, genocide is more than a bunch of individual murders. It is an attempt to wipe out a distinct cultural group. It is a violation of that group's rights. This is what makes the attempted genocides against Gypsies, Jews, etc. by the Third Reich more serious than the murder of twenty million Chinese men and women by Mao.
4.9.2009 12:10am
einhverfr (mail) (www):
In re-reading, I realize I didn't get back to tying language, culture, etc. to marriage customs, acceptance of homosexuality, etc.

One thing one has to understand in the study of the humanities is that no element of human culture is entirely divorced from any other. Linguistic and ethical culture are closely related IMO (and in the opinion of folks like Heidegger), but these are also closely related to both what are called material and ethnic culture. Material culture of course has to do with artifacts which are created, while ethnic culture has to do with, you guessed it, marriage and reproductive customs.

I don't believe there is one true human culture. I don't believe you can look at all human culture and reduce them to imperfect copies of some ideal human culture. However, this is merely offered in the spirit of full disclosure in terms of my argument.

Cultures continue when children are brought up and taught the elements of the culture. All cultures tend to have various rules as to who can have sexual relations, under what circumstances, etc. We can add to that what ceremonies are involved, how childbirth is addressed as a part of the culture, how children are raised, etc. This is all part of the "ethnic culture" quadrant. There are, naturally, many different models of this sort of ethic culture. Irish law recognized polygynous marriages as official marriages, but also recognized some unofficial forms of marriage (for example, rape) which could be polyandrous. Marriage in Irish law was nothing more than a societal pact for support of children, so the "marriage" or rape really reflect the crime as being a matter similar to civil tort, in a way, but these are all lumped together for the purpose of law and determining who is responsible for supporting a child (women were not punished for being victims of rape in Irish law, but they were burned alive for adultery, while men could have as many wives as they wanted).

Similarly if we look at India we see in the Upanishads and in later scholarship hierarchies of marriage all named after mythical figures (Devas, Ghandarvas, etc). These all had to do with how the marriage fit into the extended family structure, who consented, etc. When we look at Livy's founding of Rome, we have the idea of bride kidnapping featuring quite prominently and heroically in the saga. If it wasn't for Romulous's great decision to encourage the practice, Rome wouldnt have survived the Sabine war.

However, it is a mistake to assume that ethnic culture (marriage/childbirth/childrearing) is divorced from ethical culture (ideology) or material culture (things). In India, for example, you have close connections between the Vedas and the types of marriage in the Upanishads, for example. Mythic themes are also mixed with historical ones in Livy's account. So it is futile to try to separate religious view and related ideology from marriage in traditional cultures.

Now, in this country, prior to the new deal, most of the underclasses assured their economic security by elaborate networks of loans within extended families. Such support structures were also found in agrarian families in the south as well. In such family structures, it was imperative that children married well (to those who could contribute to the support of the extended family) and that they had children to cement that alliance. As John Moore notes above, the children cementing alliances was important also going back all the way through Medieval Europe.

However, we have have had a number of both ethical and material revolutions in the last 100 years and these have undermined extended family networks first in the middle class and then in the lower classes and upper classes. These include increased mobility (material culture, the train and automobile), government welfare (ethical culture: role of government), etc. Every one of these changes has undermined extended family networks and pushed us towards an individualist isolation.

The result of these changes is that marriage no longer has implications of duty to one's parents and even aunts/uncles. It is solely a personal choice. How many of us actually support either our parents or parents-in-law in retirement? That used to be the norm. Now it isn't. That change is extremely important in how procreation is viewed relative to marriage. And hence it means that one doesn't HAVE to get married in order to have a secure future. It even means that one could have marriages without having kids.

The end result is that society has changed, and that this change requires as a part of our societal pact to recognize SSM. However it is not a fundamental right and if economic changes occur for the worse, I would expect a reversal of this trend. Acceptance of homosexuality is caused by our prosperity and nothing more. There is nothing fundamental or universal about it and more harm than good would come from forcing such a view upon folks who do not have the same level of economic security that we do.
4.9.2009 12:39am
einhverfr (mail) (www):
BTW, I know comments will be closed soon so if you want to continue, feel free to email me :-)
4.9.2009 12:39am
Bob VB (mail):
I had quite a bit written then realized this is hijacking this thread. If you like I will respond to your email link. But no I am not avoiding your points, its just the more you talk the more I realize we are coming from entirely different planet's worth of Point of View. As per the two examples I left:

No groups don't have rights - genocide is a crime against every INDIVIDUAL that knows it has happened, not just the members of the targeted group and not the group itself - groups are mental constructs - they have no thoughts, no feelings, and yes genocide is just a kind of mass murder which is lots of individual's killed.

Would you argue that those rights are on the same level as the ones you propose? Why or why not?
What rights? The right to not be sexual harrassed? Will wearing an article of clothing stop that, or are you saying that only those who wear it earn the right not to be sexually harassed? And the other school - you are saying one individual can demand that other do something because the first is too weak to control themselves - involuntarily enslaving the second? In the first case if a person has a right to not be sexually harrassed they have that right regardless of the clothing they are wearing. And no person can be enslaved by another against their will especially when the first individual is responsible for their own actions. Neither of these are 'rights' of the individual rather the total opposite.

We really see the world in very different ways.
4.9.2009 12:42am
John Moore (www):
@einhverfr

While I don't agree with the cultural relativism implicit in your statements, in general your analysis is acceptable...


The result of these changes is that marriage no longer has implications of duty to one's parents and even aunts/uncles. It is solely a personal choice. How many of us actually support either our parents or parents-in-law in retirement? That used to be the norm. Now it isn't. That change is extremely important in how procreation is viewed relative to marriage. And hence it means that one doesn't HAVE to get married in order to have a secure future. It even means that one could have marriages without having kids.


The result of these changes is an experiment, yet to run its course, in how the elderly care of and how the children are created and brought up.

The experience of Europe, which has bought into this view the most, is that of cultural suicide. The demographics of western Europe are stark - the people who hold these views and live to it are not reproducing themselves, and will vanish in a couple of generations.

Hence the biological imperatives may be stronger than you think - the new ideas may simply burn themselves out in an extinction similar to that of religious cults which allowed no children at all.
4.9.2009 1:13am
John Moore (www):
Bob,

You need to grow up and recognize that no matter how many times you shout something, it doesn't make it a fact.

SSM may or may not become a norm, but your reasoning is irrelevant to it, and your attempt to hijack the term marriage through redefinition is illogical.
4.9.2009 1:15am
John Moore (www):
Bob... a little more


The right to not be sexual harrassed?


Is there a right not to be sexually harassed? Is it more fundamental than a right not to be ridiculed for the color of your eyes or for having a lisp? I so no right there.
4.9.2009 1:18am
einhverfr (mail) (www):
BobVB:

Will wearing an article of clothing stop that, or are you saying that only those who wear it earn the right not to be sexually harassed?


That is actually a part of the rationale. The idea is that if women don't dress in a sexy way, they won't be treated as sex objects. It isn't really that different from the sense of libration some Catholic nuns say they found in wearing the habit.
4.9.2009 11:44am
einhverfr (mail) (www):
John Moore:

While I don't agree with the cultural relativism implicit in your statements, in general your analysis is acceptable...


Thanks.



The result of these changes is an experiment, yet to run its course, in how the elderly care of and how the children are created and brought up.

The experience of Europe, which has bought into this view the most, is that of cultural suicide. The demographics of western Europe are stark - the people who hold these views and live to it are not reproducing themselves, and will vanish in a couple of generations.


We are actually seeing the same thing in Latin America. A few years ago I attended a Spanish school in Quito, Ec. and lived with a family there for about 4 weeks. One of the interesting point which came up was that the average age of marriage in Ecuador among middle class families (making $3000 per year) is about 28. The average number of children is now down below 2.

Europe is an interesting case because the birth rate has become so low that it has become necessary to bring in larger numbers of immigrants than is the case in this country. I personally am hopeful that the US will not reach this point (per capita land use is far higher in the US, number of children is still below 2, but not drastically so), so Europe may be in a viscious circle where the environment (densely populated) ends up leading to a low birth rate, and the low birth rate leads to high immigration to support the economy, etc. That does not look good to my outside view. In the US we are not nearly as densely populated (we have about half as many people in the US as the EU has). So hopefully it won't get to that point.

However, I think that there is an answer here. I think the key is to "retribalize" and form smallish units which seek to build our own lives and interpersonal connections based on models we see in the past which we seek to emulate. This means you are free to look at whatever models you wish to look at and I may look back to other models. At the moment however, the key point IMO that needs to be addressed is how each of us chooses to care for our aging relatives and instill such values in our children. In the end whether the state recognizes a legal relationship or not between other people doesn't and shouldn't address this process.
4.9.2009 12:06pm
John Moore (www):
I agree that loss of "tribal" organization is part of what reduces the fertility rate - and most specifically, the geographical dispersion of the extended family. The marginal cost of raising children has gone up, while the utility of the children is way down (since society, not the kids, does so much of the parent care). Also, the movement of women in great numbers to the work force greatly increases the cost of children but does not increase their economic utility.

Birth control is also a significant factor. Even in the Catholic community, a majority use birth control (which is seriously against Church doctrine). Hence the stereotypical large Catholic family is more and more rare.

Ironically for many on the left, the decline in birth rate is strongly correlated with economic improvement. Thus the environmentalists who complain about the waste of capitalism don't realize that it is the biggest factor in reducing the growth rate of the human race - in fact, projections cap human population in the next 100 years or so.

BTW, last I checked, US fertility rate was 2.1, not below two. The "replacement" rate is around 2.3.
4.9.2009 12:44pm
einhverfr (mail) (www):
John Moore:

Ironically for many on the left, the decline in birth rate is strongly correlated with economic improvement. Thus the environmentalists who complain about the waste of capitalism don't realize that it is the biggest factor in reducing the growth rate of the human race - in fact, projections cap human population in the next 100 years or so.


When I studied environmental modelling in college, this was one of the factors I looked at (education, population change, wealth) and concluded that these three were closely interconnected.

I think that birth control and modern medicine go hand in hand. Without birth control, modern medicine would end up leading to massive overpopulation, famines, and environmental catastrophe.
4.9.2009 12:58pm
einhverfr (mail) (www):
Bob VB:

Sure, feel free to email me.

A note on genocide and culture though: It seems to me that I am not unduly harmed by knowing that Stalin tried to wipe out the Kossacks or Hitler tried to wipe out the Gypsies. I don't see why I am a victim of genocide in those cases. I think you are just going through logical gymnastics in order to avoid the fact that you are trying to enshrine cultural biases in pseudoscience.
4.9.2009 1:30pm
einhverfr (mail) (www):
John Moore:

This is wandering off topic, but one of the perpetual arguments that occurred in Scandinavia regarding the conversion was the legality of exposing infants to death prior to their naming and ceremonial inclusion in the family (i.e. in the first 8 days after birth). In fact, in Iceland, the compromise was that Iceland would convert provided that such practices continued to be legal. Such practices were widespread in the ancient world, as I am sure you are familiar with. Many tales tell of kings who were abandoned to exposure who were later rescued (some tales bear a striking resemblance to the story of Moses). These include:

1) Scaef Scylfing (Beowulf)
2) Romulus and Remus (Rome)
3) Cyrus (Herodotus' Histories)

#2 and 3 seem close enough in the story to be directly comparable (abandoned, raised by "she-wolf" or "bitch," found a great state), and in all cases it is almost impossible to sort myth and legend from history. However structural analysis of the stories is quite interesting.

There are almost certain to be more comparable stories than I have found thus far.
4.9.2009 1:39pm
ChrisTS (mail):
http://volokh.com/?exclude=davidb :

Yet another reason that children shouldn't be exposed to The Bible. The damn thing is practically obscene. Think of the children!!!


I so agree. I recall sitting in a Sunday school class and reading ahead a bit. I stumbled across the story in which some young hero (a) rapes his sister and then (b) kills her in a rage because he feels guilty. I was about 10 years old.

The teacher told me I was not supposed to be reading "that part."
4.9.2009 2:46pm
John Moore (www):
einhverfr:


This is wandering off topic, but one of the perpetual arguments that occurred in Scandinavia regarding the conversion was the legality of exposing infants to death prior to their naming and ceremonial inclusion in the family


It is off topic but interesting. Notice that these were warrior cultures, so they probably wanted to be able to get rid of babies that were "weak."
4.9.2009 3:54pm
John D (mail):
John Moore,

Awww, I step away from the thread for a bit (life, you know) and I loose? I didn't know my turn had come up.

John D
Private adoption agencies can operate under whatever principles they choose.

You are stretching the truth out of all recognition by claiming that gay activists had anything to do with Catholic Charities


I offered a simple challenge. You ignored it.

Try again.


Well, the LDS have no trouble running an adoption agency in Massachusetts. They only adopt to Mormons and women given their children up for adoption to this agency know the child will be placed with Mormons.

Religion might be a special case here.

I don't know if you could make a Randian adoption agency that adopted only to Objectivist families. Likewise, I doubt you could run an adoption agency that adopted only to Republicans (and in Massachusetts, what do you do when you run out of Republicans?).

We give religious groups special permission to discriminate in their own sphere.

Your initial allegation was that gay activists forced Catholic Charities out of the adoption business.

I've made it clear that CCB willingly adopted to same-sex couples. Certainly the Church has the right to insist that CCB not do so.

There was, however, no way CCB could follow the dictates the Church and remain the adoption subcontractor for Massachusetts. You can't say, "my religion forbids me from doing the job I've agreed to do, but pay me anyway."

CCB didn't want to continue as a private adoption agency, working solely on Catholic Church funds and adoption only to Catholics. End of story.
4.9.2009 4:25pm
einhverfr (mail) (www):
John Moore:

It is off topic but interesting. Notice that these were warrior cultures, so they probably wanted to be able to get rid of babies that were "weak."


I am sure that was part of it. However, it is interesting to see how controversies a thousand years later can be couched in the same terms, is it not?
4.9.2009 6:56pm
John Moore (www):

I've made it clear that CCB willingly adopted to same-sex couples. Certainly the Church has the right to insist that CCB not do so.


Which is utterly irrelevant.

There was, however, no way CCB could follow the dictates the Church and remain the adoption subcontractor for Massachusetts. You can't say, "my religion forbids me from doing the job I've agreed to do, but pay me anyway."

and
Your initial allegation was that gay activists forced Catholic Charities out of the adoption business


Game, set and match. I ask again, to which there has been no answer: If it were not for gay activists insisting on Mass adoption agencies adopting out to gays, would the CCB still be in business?

If you continue to fail to answer the question with a simple yes/no, then obviously you feel it destroys your argument.
4.9.2009 8:32pm
John Moore (www):

I am sure that was part of it. However, it is interesting to see how controversies a thousand years later can be couched in the same terms, is it not?


Yes and no. Human nature so far is relatively immutable. Catholic Church basic doctrine likewise (the Nicean Creed, which is at the basis of it, dates back to the fourth century). So it's not at all surprising that the same conflicts come up over and over again.

But it is an interesting historical tidbit.
4.9.2009 8:34pm
einhverfr (mail) (www):
John Moore:

Game, set and match. I ask again, to which there has been no answer: If it were not for gay activists insisting on Mass adoption agencies adopting out to gays, would the CCB still be in business?


One of the difficulties to me in this matter is what the motivation (really) was to get out of the adoption business in this case. Is John D correct about the change in policy happening after the gay marriage decision? If so, doesn't that at least undermine the appearance that this was anything other than an attempt to call attention to the RCC's disagreement with the Supreme Court of Massachusetts?

Also do you disagree that agents of the state (i.e. subcontractors) should be held to non-discrimination standards of the state even if you might argue that private adoption agencies should be allowed to discriminate?

Now, the main source I can find for this issue is here. It states, interestingly:

Eight members of Catholic Charities' board stepped down in protest of the bishops' stance. The 42-member board had voted unanimously in December to continue considering gay households for adoptions.[emphasis mine]


and also

Catholic Charities has been involved in adoptions for about a century, but has had a contract with the state Department of Social Services to provide special needs adoption services to children with severe emotional and physical needs since 1977. The contract expires June 30.


It doesn't seem to me that this was an issue of the state forcing them to change practices or an issue of them being fully private. Also the non-discrimination statute dates back to 1996, a decade before CCB stopped placing kids for adoption. So it doesn't seem to me to be a simple matter of causation regarding a statute that CCB abided by for 10 years, or at least it doesn't seem so to an outsider.
4.10.2009 1:33am
einhverfr (mail) (www):
One disagreement with John D though:

In order to get an adoption license in Massachusetts, it looks like adoption agencies MUST sign a statement stating that they will abide by all nondiscrimination laws. So the issue is not just public funding there.

I don't know how the LDS church gets to do what they are doing. However, I DO think there needs to be a religious exemption for charities not accepting public funding.
4.10.2009 1:46am
J. Aldridge:

The Indiana Supreme Court in Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005) has already tackled the same issues (DOMA) as presented before the Iowa Supreme Court under identical constitutional language and held limiting marriage to opposite-sex couples does not violate the State Equal Privileges and Immunities Clause. The Indiana appellate court also pointed out that there "is binding United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution."
4.10.2009 2:17am
John Moore (www):

Also the non-discrimination statute dates back to 1996, a decade before CCB stopped placing kids for adoption.

...

So it doesn't seem to me to be a simple matter of causation regarding a statute that CCB abided by for 10 years, or at least it doesn't seem so to an outsider.

From the timeline, it is pretty clear that the CCB was out of sync with the Church. The Church (in America specifically) had been pretty lax in a number of areas for several decades, and has since, with pressure from Rome, returned more closely to tradition, as I have written a couple of times already in this thread.

Hence the inference that CCB's timing in refusing gay adoption was a church "protest" is simply not tenable. Likewise, the resignation of board members is entirely consistent with the church cracking down on an errant organization.

In order to get an adoption license in Massachusetts, it looks like adoption agencies MUST sign a statement stating that they will abide by all nondiscrimination laws. So the issue is not just public funding there.
4.10.2009 2:32am
John Moore (www):
Argh... hit post instead of blockquote...

In order to get an adoption license in Massachusetts, it looks like adoption agencies MUST sign a statement stating that they will abide by all nondiscrimination laws. So the issue is not just public funding there.
4.10.2009 2:32am
John Moore (www):
The requirement that private adoption agencies comply with anti-discrimination statutes seems to fail on two tests:

1A

and

lack of compelling state interest to intervene in private operation.

I just wonder if if they allow the agencies that refuse inter-racial adoption (a restriction frequently insisted on by black and native american activists)?
4.10.2009 2:34am
einhverfr (mail) (www):
J. Aldridge:

Since when is the Indiana Supreme Court regarding Indiana Constitutional Law binding in Iowa regarding Iowa Constitutional Law?
4.10.2009 10:32am
einhverfr (mail) (www):
John Moore:

As I say, from an outside perspective it looks like a protest bit, esp. when paired with this sort of thing.

That said, I do favor religious opt-out clauses on this matter but think they should be limited to those who do not hold contracts with the state. And in fact, I would even favor law suits to establish that these might be required.
4.10.2009 10:39am
einhverfr (mail) (www):
John Moore:

Actually I changed my mind. I think that religious opt out clauses should be limited to operations outside of contracts with the state (a narrower limitation). I.e. if you have a contract with the state to place special needs children in homes, that activity should not be subject to religious opt out exceptions, but any other activity a religious group does should be eligible.
4.10.2009 10:42am

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