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Protecting religious liberty from gay marriage and protecting gay marriage from religious liberty:

In debates over same-sex marriage, much attention has recently been given to religious-liberty concerns. For example, the award-winning ad campaign to pass Prop 8 in California focused heavily on how SSM might erode the liberty of religious objectors.

For reasons I gave here almost a year ago, I'm not convinced that gay marriage adds much to the pre-existing confrontation between religious traditionalists and antidiscrimination laws protecting gays. That's not to say that there aren't legitimate religious-freedom concerns with antidiscrimination law. There are some egregious cases, especially in the context of providing personal and non-essential services (see, e.g., the already infamous New Mexico proceeding against a photograhper who refused to shoot a same-sex "commitment" ceremony). It's only to say those concerns don't arise from SSM. After five years in Massachusetts, a state with broad antidiscrimination laws, the evidence for religious repression attributable to SSM is scant.

The most that can be said uncontroversially is that formal state recognition of gay relationships will help increase acceptance of gays over time, which might indirectly influence the content and application of antidiscrimination law (more expansive laws, less generous exemptions).

On the other hand, the debate over same-sex marriage itself might help sensitize us to possible conflicts. When gay marriage is accomplished legislatively, at least, it's more likely that the core interests of gay families and religious traditionalists will be represented and some accommodation can be found. There is evidence of that in the recent gay-marriage bill from Vermont, which included what even prominent opponents of gay marriage called substantive (but to them, insufficient) religious-liberty protection.

Likewise, the Connecticut legislature is considering a bill to bring the state's marriage statute in line with the state supreme court's decision last year in Kerrigan v. Comm'r of Pub. Health, which mandated that the state allow same-sex couples to marry. Five respected academics, in two separate letters (here and here), are urging the legislature to include a provision broadly protecting religious traditionalists against potential discrimination claims by married gay couples and possible denial of various benefits by the state. (HT: Mirror of Justice, a Catholic legal blog.) Here is the text of their proposed "marriage conscience protection":

No individual and no religious corporation, entity, association, educational institution, or society shall be penalized or denied benefits under the laws of this state or any subdivision of this state, including but not limited to laws regarding employment discrimination, housing, public accommodations, licensing, government grants or contracts, or tax-exempt status, for refusing to provide services, accommodations, advantages, facilities, goods, or privileges related to the solemnization of any marriage, for refusing to solemnize any marriage, or for refusing to treat as valid any marriage, where such providing, solemnizing, or treating as valid would cause that individual or religious corporation, entity association, educational institution, or society to violate their sincerely held religious beliefs.

This is a sentence only a lawyer could love.

The proposal is important, both because it comes from acknowledged experts in the field of religious liberty and because it is likely to be endorsed in some version by even more academics and other advocates. My guess is that something like it will be introduced every time a same-sex marriage bill is considered. And even though I don't agree with the authors on the extent or seriousness of the underlying problem ("widespread and devastating effects" on religious liberty), or their proposal in all its applications, it stimulates exactly the kind of concrete discussion we should be having.

If addressing religious-liberty concerns facilitates and hastens the passage of SSM laws without sacrificing any substantial rights of gay families, that's a plus for SSM advocates. But first I'd want to hear from experts in antidiscrimination law about the possible effects. I'd also have lots of questions about the proposal. The four that occur to me right away are these:

(1) Would its application to "any individual" include government employees acting in their capacity as government employees and providing benefits and services to married same-sex couples? If so, I assume this would mean that a state employee could refuse to issue a marriage license to a same-sex couple, refuse to participate in any way in giving benefits under state law available to married same-sex couples, refuse to serve as a judge in a divorce, tort, or any other proceeding implicating their marital status, and so on. Is that right?

(2) Could "an individual" who continually harrasses or discriminates against a co-worker or subordinate on religious grounds be disciplined (reassigned, fired, demoted) by his employer attempting to comply with the state's employment antidiscrimination law? Or would that be a "penalty" imposed "under the laws" of the state?

(3) Would the exemption affect any claim of sexual-orientation discrimination under state law that a person would have had independent of the recognition of the person's same-sex marriage? For example, would it allow a religious employer or landlord otherwise covered by a law forbidding sexual orientation discrimination to discriminate against a gay person (by excluding the person from a job or an apartment) once that person marries a same-sex partner? I assume the intent is to allow religious objectors to discriminate solely on the grounds of the marital status of a person in a same-sex marriage but not on the grounds of the person's sexual orientation. Connecticut already has religious exemptions in its sexual-orientation non-discrimination laws, and the authors say this proposal is "modeled" on such exemptions. But as I think they'd acknowledge, it is broader than Connecticut's exemptions in several ways.

(4) Would the exemption protect those who objected on religious grounds to other marriages, e.g., interracial marriages, interreligious marriages, and second marriages following divorce? The text is broad enough to encompass any sincere religious objection to any marriage, but its adoption and placement in a bill meant to authorize same-sex marriages might lead to a narrower construction.

These questions are addressed initially to the authors, but not exclusively to them. Their understanding won't control the interpretation of the statute they draft.

One can imagine many more questions about the proposal. How do we know when a belief is "religious" rather than a deeply help moral or philosophical one? How do we know when a religious belief is "sincere" as a opposed to pretextual? (In this regard, it's easier to imagine an individual crafting his supposed religious beliefs to fit the exemption in response to a lawsuit than it would be to imagine a religious business or association credibly doing so.) Do we want courts deciding when a person's religious beliefs have been "violated" rather than been made less comfortable? But while these are good questions, for the most part they do not seem particular to this proposal. They're endemic in religious liberty law and protection.

Finally, I'd be interested in the reaction to this proposal from readers, both supporters and opponents of SSM.

If a you're a supporter of SSM, could you live with this proposal, especially if it made the passage of SSM bills more likely and more likely to be soon? Would you support any special religious-liberty protection in the context of an SSM bill?

If you're an opponent of SSM, and although you may continue to oppose SSM on other grounds, would it at least satisfy any religious-liberty concerns you might have? If not, would any proposal be sufficient to satisfy your religious-liberty concerns?

UPDATE: It appears the Connecticut legislature has passed its marriage bill, with significant protection for religious liberty included. An anti-SSM activist in Connecticut calls the provision "a significant improvement" of "a bad bill" because it lets groups like the Knights of Columbus refuse to rent halls for gay weddings. I'm waiting to get the exact text.

Related Posts (on one page):

  1. Religious liberty and SSM, continued:
  2. A response from four more law professors
  3. "Religious conscience" protections in Connecticut:
  4. Professor Laycock responds
  5. Protecting religious liberty from gay marriage and protecting gay marriage from religious liberty:
Brett A. (mail):
To be honest, I'm not convinced that we need this, based off of the four years we've had gay marriage in Massachusetts, and so forth. Are there any cases on record of a religious group being sued for refusing to perform a gay marriage?
4.23.2009 1:32am
einhverfr (mail) (www):
Thinking through your questions:

(1) Would its application to "any individual" include government employees acting in their capacity as government employees and providing benefits and services to married same-sex couples? If so, I assume this would mean that a state employee could refuse to issue a marriage license to a same-sex couple, refuse to participate in any way in giving benefits under state law available to married same-sex couples, refuse to serve as a judge in a divorce, tort, or any other proceeding implicating their marital status, and so on. Is that right?


I don't know. That is a tough one. Arguably I would argue that employees acting in an official capacity might not be covered if this is to be interpreted in line with the State Supreme Court's ruling. This would affect #2 as well. If the harassment doesn't occur on the employer's time, it shouldn't be subject to employment-related sanctions.


(3) Would the exemption affect any claim of sexual-orientation discrimination under state law that a person would have had independent of the recognition of the person's same-sex marriage? For example, would it allow a religious employer or landlord otherwise covered by a law forbidding sexual orientation discrimination to discriminate against a gay person (by excluding the person from a job or an apartment) once that person marries a same-sex partner? I assume the intent is to allow religious objectors to discriminate solely on the grounds of the marital status of a person in a same-sex marriage but not on the grounds of the person's sexual orientation. Connecticut already has religious exemptions in its sexual-orientation non-discrimination laws, and the authors say this proposal is "modeled" on such exemptions. But as I think they'd acknowledge, it is broader than Connecticut's exemptions in several ways.


I wouldn't think so. I read this as "You don't have to treat them as married" in which case one still has to treat them as two male or female co-tenants under whatever policies one has there. Additional discrimination goes beyond recognizing the marriage as valid.


(4) Would the exemption protect those who objected on religious grounds to other marriages, e.g., interracial marriages, interreligious marriages, and second marriages following divorce? The text is broad enough to encompass any sincere religious objection to any marriage, but its adoption and placement in a bill meant to authorize same-sex marriages might lead to a narrower construction.


If the issue was limited to allowing people not to recognize the couple as married for the purpose of religious employment, benefits related to religious employment, etc. then this would seem to be a reasonable reading.

IANAL, but I read this to be "if you, as a PERSON, having sincere religious views, don't want to treat the couple as married, you don't have to do so, nor do you have to perform the marriage." Now, naturally, it is unusual for non-religious corporations to have sincere religious views, so most for-profit corporate jobs would be outside this, and corporate policies would rule in these cases. It might be different in a sole proprietorship.

This is just my reading....
4.23.2009 1:38am
Soronel Haetir (mail):
Brett A,

I certainly see this exemption as wide enough to cover the wedding photographer case that has been covered several times here. I forget if it were from Arizona or New Mexico but it hinged on a theory of discrimination in public accomodation.

Although afaik it is still not in front of a court, just a human rights council.
4.23.2009 1:51am
Cornellian (mail):
Wouldn't that proposed exemption mean that pretty much any business could opt out of all anti-discrimination laws just by labeling itself a religious society or association? Obviously some company like IBM or Exxon isn't going to do that, but it would be pretty easy for a small business to do that if the definition of those terms is pretty loose or non-existent.
4.23.2009 2:43am
Jeff Wilson (mail):
Government should have no part in marriages apart from enforcing the contractual aspects of "marriage." The underlying right is that of free association, yes? The concept of marriage is broader than its legal aspects, so there should be a stripped-down contractual statement of traditional "marriage" obligations for those who desire it. This would allow for the broadening of the "traditional" definition to encompass changes in both sex and number.

Persons should also be free to exercise their right of free association with regard to others' "married" status.

So, for instance, in Prof. Carpenter's hypothetical case (1), a state employee should be free to refuse to perform a service if it violates his conscience (not just his religious convictions!). The state should also be free to fire him. Now, if the state's role were limited to contractual issues, there might not be such an objection by some employees. It is the usurpation of the extra-legal aspects of marriage that offend, and this situation might be avoided by limiting the state to its proper legal role.

(This sounds like the case where a county executive in the central valley here in CA refused to issue marriage licenses to same-sex couples, so it is not a pure hypothetical.)

Hypothetical case (3) intrigues me. It sounds like employers would be covered if they refused to hire persons based on their "marital" status. I would argue that they should be free to hire or not to hire persons for any reason whatsoever. This exception sounds very fishy, though. Would it stand a court challenge? The legal trend would seem to be something like this: "We in group A believe XYZ, and our belief is codified in this exemption clause." "Well, you in group A are wrong, and we don't recognize this exemption - it is rotten at the core." "Oh yeah? We have a religious exemption that says we are protected." "To hell with your religious objection. We will find a way to override it." Good luck preserving that exemption from the forces of orthodoxy.

Traditional marriage should not have been entrusted to the public realm in the totality of its concept.
4.23.2009 2:46am
Cornellian (mail):
I'm a supporter of same-sex marriage as a matter of policy, which isn't necessarily to say I think it's mandated by 14th Amendment equal protection. I've never had a problem with a religious exemption in the same way that the Catholic church shouldn't be required to grant divorces or to recognize civil divorces.

But there are three caveats. First, if a religious exercise is privileged against one anti-discrimination law, it's privileged against all of them. The exemption has to be against all such laws or none of them. Second, it must be an actual religious belief, not just a belief which happens to be held by a member of that religion. Third, it must be an actual religious exercise. A drywall installing business doesn't get the exemption, regardless of whether it's run by a religious order. Drawing those lines is the hard part but I've never had a problem with a religious exemption within those parameters, just as I've never had a problem with the Catholic Church being free to prohibit divorce, or refuse to ordain women or refuse to allows priests to marry.
4.23.2009 2:54am
Roger Schlafly (www):
Of the reasons for opposing SSM, the religious liberty concerns are minor. I would not expect this proposal to please very many people.
4.23.2009 3:05am
BRM:
It makes sense to protect the rights of a church to refuse to solemnize a marriage it does not recognize. I support both SSM and strong religious liberty. But I see the rights of churches as organizations that perform marriage ceremonies differently from the rights of individuals with religious beliefs that compel them to discriminate. Requiring a church to recognize a marriage that violates the church's doctrine is a direct infringement of religious liberty. Allowing individuals (and religious-based organizations operating in non-church/worship activities) to turn their private religious beliefs into public acts of discrimination, however, is not consistent with the Free Exercise Clause.
4.23.2009 3:14am
TruePath (mail) (www):
On a side point I think the 1st ammendment should be interpreted to bar any government law or policy that requires the government to make a (sharp) distinction between religious and non-religious beliefs/practices or between sincere and insincere religious practices.

I mean to take an extreme example suppose congress decided to devlare buddhism to be a philosophy not a religion and thus denied all buddhist temples the tax and legal privleges that they have accorded to religions. I think we would all agree refusing to treat buddhism as a religion violates the establishment clause even though it's perfectly reasonable to place buddhism on the over side of the religion/philosophy dichotomy. (substitute animism if you prefer in the example). I think the only coherent way to account for this point is to conclude the mere act of ordaining certain religious like practices to be religions and eligeable for benefits while leaving others out in the cold is a 1st ammendment violation

Also I'd argue that in practice one can't possible allow the government to reach deciscions about the sincerity or strength of religious convictions without implicitly favoring established familiar religions and disfavoring cults imagined in someone's basement. Simply put we are favoring catholicism when we let the lapsed catholic justify his religious conviction by pointing to an papal encyclical without evidence that he has read it or expressed any interest in faith but treat the cult leader's claims of relivious conviction based on his own (unpublished) experiences of direct revelation worse.

Sure, it's not a problem if some people pretend to be sincere catholics when in reality they don't really have any strong religious views any longer while giving this same deference to crazy made up religions would cause many problems but that has nothing to do with sincerity and thus constitutes a clear cut government bias in favor of large established religions.
4.23.2009 3:17am
Cornellian (mail):
Of the reasons for opposing SSM, the religious liberty concerns are minor. I would not expect this proposal to please very many people.

The problem is that the reasons other than religious liberty tend to be of "the sky is falling" variety that become harder to sell with each passing year as more jurisdictions adopt SSM with no obvious adverse consequences.
4.23.2009 3:22am
josil (mail):
I'd be more favorable toward SSM if its most active proponents were visibly concerned with promoting polygamous marriages. Although there are practical (and legal) difficulties, it's hard to see how "untraditional" marriages differ.
4.23.2009 3:22am
TruePath (mail) (www):
@einhverfr:


ANAL, but I read this to be "if you, as a PERSON, having sincere religious views, don't want to treat the couple as married, you don't have to do so, nor do you have to perform the marriage." Now, naturally, it is unusual for non-religious corporations to have sincere religious views, so most for-profit corporate jobs would be outside this, and corporate policies would rule in these cases. It might be different in a sole proprietorship.


This doesn't really make sense. Though I think it's probably the fault of the great ambiguity in the law rather than any fault of yours.

What does it mean to say that you don't have to treat a couple as married?

Surely it was never a concern that a person (or church) would have to stipulate that a certain couple had a certain spiritual status in the eyes of god. Thus presumably all it could mean to not treat a couple as married is to treat them as if they were not legally married. However, it's not even coherent for the law to say that you can behave totally as if some other operational law did not exist.

I mean suppose you entered into a legally binding contract in the past in which you agreed to transfer a certain sum of money to person X if they are legally married under the laws of state Y at that date. Are you suggesting that someone who has religious qualms about gay marriage can simply ignore the way the plain facts (yes the state recognized that marriage) of the situation apply to the laws and contracts that affect them?

On the other hand if you admit that this exception doesn't allow people to circumvent contractual clauses triggered by the existence of a certain legal situation in the state it's hard for me to understand what protections this ammendment gives at all. I mean even religious organizations like the catholic church word their employment and other contracts with reference to the legal institution of marriage not the spiritual one.

Then again if people understood that the concept 'marriage' actually refers to more than one thing (spiritual notion, legal notion etc..) we would never have had that stupid 'definition of marriage' argument in the first place.
4.23.2009 3:30am
Jeff Wilson (mail):
BRM:


Allowing individuals (and religious-based organizations operating in non-church/worship activities) to turn their private religious beliefs into public acts of discrimination, however, is not consistent with the Free Exercise Clause.


So religious considerations apply only when a person is in church saying, "Our theory is so-and-so," but not when that person is outside the church putting so-and-so into practice in his own life?

What happens between two people is entirely private, so long as neither's rights are violated. You seem to want to consign religion (and philosophy, and conscience) to some internal contemplative realm, impotent to affect one's dealings with other men.
4.23.2009 3:56am
trad and anon (mail):
So would this mean that religiously-affiliated hospitals can tell people, "no, you cannot visit your sick wife"?
4.23.2009 4:21am
a non:
I support SSM; Since I would be happy to exempt all private parties from anti-discrimination laws, I can live with exempting some private parties from some instances of anti-discrimination laws when this allows the enactment of SSM. In this case exempting the religious is better than exempting no-one.

This is so even though "religious exemption" laws are inherently discriminatory in favour of the religious -- they favour particular personal philosophies (those labelled as "religious") over all other personal philosophies -- but this form of discrimination is considered normal and acceptable in the US. Moreover the legislative intent in such laws (e.g. RLUIPA) is clear and courts have been implementing these policies pretty consistently without much trouble.

Trying to legislate ethical behaviour is doomed to fail. People will basically act on their beliefs, and forcing them to do otherwise won't really help.

However, if purely ethical legislation (such as anti-private-discrimination law) is passed, exempting the religious is not entirely unreasonable. If some members of society don't feel capable of independent ethical judgement then we probably can't hold them up to the usual ethical standards.
4.23.2009 4:40am
a non:
trad and anon: the law clearly would exempt Catholic hospitals from recognizing same-sex spouses as next-of-kin. Even more important that visitation right are medical decision and consent rights. The typical case in the news is a dispute between the same-sex partner and the parents of a person in coma about the end-of-life decision.

The solution should be to amend the medical consent laws so that they explicitly acknowledge same-sex marriages.
4.23.2009 4:46am
Public_Defender (mail):
Anti-gay marriage people can avail themselves of the same religious liberty provisions that other religious dissenters use. Those provisions generally balance the rights of the dissenters against the rights of society. Why should people who want to discriminate against gay people be treated any differently than a Muslim woman who wants to wear a headscarf despite her employer's prohibition?

Unfortunately, the "anti-discrimination" clause is just a government license to discriminate against gay people. It sacrifices a number of hard-fought anti-discrimination measures for the right to marry. And it singles out gay people as a group who will get fewer government protections.

On a practical level, I don't think it's worth the price. As many others have acknowledged, gay rights supporters are winning the battle to be treated equally on all sorts of levels. Same sex marriage is coming, and as more gay people get married in more states, more people are noticing that the sky isn't falling.

On the other hand, given the large cultural swing toward respect for gay people and gay rights, the provisions authorizing discrimination against gays might be short-lived. Putting the provisions in could help hasten gay marriage. Then, a few years later, we can work to remove the "compromise" provisions from the books.
4.23.2009 5:12am
LibertyVista:
"After four years in Massachusetts, a state with broad antidiscrimination laws, the evidence for religious repression attributable to SSM is scant."

Whether or not this qualifies as repression, it qualifies as a consequence to both the religious, and children.
Catholic Charities ends adoptions
4.23.2009 6:27am
Richard Aubrey (mail):
Liberty.

The adoption issue is one of the results which is not "bad". No results from this will be bad, unfortunate, or unpleasant. Speaking of the allowed labeling, I mean.
The proponents of SSM--or any other contentious issue--walk around smiling and telling each other and even those who oppose them, "It's a GOOD day."
Can't admit problems when you worked so hard for the change, whatever it is.
The real biggie is when Catholic hospitals shut down altogether if forced to perform abortions.
I don't see why a gay person would want to be at the medical mercy of a bunch of homophobic god-botherers, anyway.
4.23.2009 7:53am
Richard Aubrey (mail):
There's a hate-speech bill someplace in the mill. HR 913, I think. Be interesting to see how that affects the issue here.
4.23.2009 8:00am
Smallholder (mail) (www):
LibertyVisa,

Catholic charities did not shut down because of government imposition. They were free to continue (or return to, since they had earlier placed children with gay couples) their discriminatory practices - but at the expense of losing government subsidies for their work. Losing the government subsidy doesn't shut them down: it requires them to fund their discrimination on their own dime. There is no entitlement to government funds.

They explored that option, but, as the very article you link to reveals, the real funding blow came from another private charity:


The United Way of Massachusetts Bay, which provided $1.2 million to Catholic Charities last year and is the largest private funder of the agency, planned to review its funding if the agency discriminated against gays and lesbians in its adoption work.


Your claim that the Catholic church stopped funding because of government action rests on the bases that:

a) The government must financially support religious groups that choose to discriminate.

AND

b) Other private groups like the United Way cannot follow their own conscience and must be made to support religious groups that choose to discriminate.

I'd be there with the chuckleheads who claim that gay marriage will be imposed on churches if there was an example of lawsuits forcing pastors to conduct wedding ceremonies. That's not going to happen. The Catholic church routinely denies their services to interfaith couples who won't promise to raise the kids Catholic. My cousin wasn't married by a Luthern pastor because he didn't go to church enough. Hey, ministers can decide in good faith which marriages they choose to solemnize based on any factor they choose.

BUT those who claim that SSM will deal a devastating blow to religious liberty aren't arguing in good faith.

Heck, what about my religious liberty? My church and minister are perfectly willing to marry gays. Why should the Baptists and Catholics get to decide for us?
4.23.2009 8:05am
Desiderius:
"An anti-SSM activist in Connecticut calls the provision "a significant improvement" of "a bad bill" because it lets groups like the Knights of Columbus refuse to rent halls for gay weddings. I'm waiting to get the exact text."

Here it is.

Since when does anyone have the right to force them?
4.23.2009 8:10am
geokstr (mail):

The problem is that the reasons other than religious liberty tend to be of "the sky is falling" variety that become harder to sell with each passing year as more jurisdictions adopt SSM with no obvious adverse consequences.

While I would not even attempt to predict if any parts of the sky will fall if SSM becomes accepted in all states, I think it takes quite a bit of hubris to say they won't either, especially after only a few years.

Unintended consequences happen pretty much every time a decision of any magnitude is made, no matter how noble the motivations. It's pretty well acknowledged that Social Security and Medicare were a significant factor in the demise of the extended family, and that AFDC (Aid to Families with Dependent Children) and other welfare programs were major causes of the breakdown of the black family.

We simply have no idea what the long term effects of SSM might be, since it's never really been tried in human society before. Especially since SSM cannot easily be separated from the larger goals of the homosexual community, which includes total acceptance of the gay lifestyle at all levels, down to teaching that it is perfectly natural and normal from kindergarten on up.

We can say this though. It won't be but a generation at most before the right to SSM hits a major brick wall due to the free exercise of religion clause. As Islam gains power here, there will be an inevitable confrontation between its proponents and gays. And that religion doesn't just claim the right not to recognize gay marriage, their dogma says gays should be killed.
4.23.2009 8:15am
Just checking:
Are you using "gay marriage" and "same-sex marriage" interchangeably? It is less ambiguous to say "same-sex marriage" by the way.
4.23.2009 9:01am
rick.felt:
Government should have no part in marriages apart from enforcing the contractual aspects of "marriage."

I'm sympathetic to this argument, but doesn't it mean that we're doing away with the marital communications privilege and the spousal testimony privilege?
4.23.2009 9:02am
Gilbert (mail):
In what way is this different than Romer v. Evans?
4.23.2009 9:06am
paul lukasiak (mail):
when providing "religious liberty" protections in the face of SSM, I advocate using the "miscegenation rule"; i.e. if you think there should be a "religious liberty" exception that allows for discrimination against an african american because he is married to a white woman, then you can justify a religious liberty exception that allows for discrimination against men married to other men.
4.23.2009 9:08am
SeaDrive:
I know a person who recently inquired at the town clerk's office in a Connecticut city about a Justice of the Peace to conduct a wedding. She was given a list of all JP's in the city. When she asked which would be willing to do a same-sex wedding, she was told "All of them. It's the law."
4.23.2009 9:09am
rick.felt:
when providing "religious liberty" protections in the face of SSM, I advocate using the "miscegenation rule"; i.e. if you think there should be a "religious liberty" exception that allows for discrimination against an african american because he is married to a white woman, then you can justify a religious liberty exception that allows for discrimination against men married to other men.

Fine with me, and probably a fair number of other people here. (I don't know if you noticed this, but there are a lot of libertarians around these parts).

If you don't like that the Catholic church or other religious organizations won't let you use their facilities and rites(!) to conduct your same-sex marriage ceremony, there are plenty of other churches out there.
4.23.2009 9:16am
Yankev (mail):

when providing "religious liberty" protections in the face of SSM, I advocate using the "miscegenation rule"; i.e. if you think there should be a "religious liberty" exception that allows for discrimination against an african american because he is married to a white woman, then you can justify a religious liberty exception that allows for discrimination against men married to other men.

The absurdity of this analogy has been demonstrated time and again, yet the analogy is repeatedly dredged up in order to smear as bigots those who adhere to the traditional definition of marriage as being a union between a man and a woman.

Some civilizatuions have allowed a man to be married to more than one woman at a time; even in civilizations that accepted or even glorified homosexuality (e.g. ancient Athens), there was no such institution as same sex marriage.
4.23.2009 9:42am
Jeff the Baptist (mail) (www):
The real question with this sort of discrimination exception/exemption is this: Who gets to decide what is a legitimate expression of religious conscience?

As with the miscegenation law example, any religious justification of that is often incredibly specious. Curse of Noah or some other garbage. Not really noteworthy compared to outright condemnations of discriminative behavior like those in Colossians 3:11. But people will still try to make those arguments. Does the government now get to decide what is a legitimate expression of religious conscience.
4.23.2009 9:56am
Smallholder (mail) (www):
SeadDrive wrote:

I know a person who recently inquired at the town clerk's office in a Connecticut city about a Justice of the Peace to conduct a wedding. She was given a list of all JP's in the city. When she asked which would be willing to do a same-sex wedding, she was told "All of them. It's the law."

JPs are not religious officials; they are public officials and as such should not be able to use their private objections (if any) to refuse to perform their job. When they are JPs, they are officials of the state. If they want to moonlight as ministers, they should be perfectly free to choose who they marry when they are off the clock.
4.23.2009 10:00am
Joseph Slater (mail):
Yankev:

The analogy is entirely apt. First, of course, there was a long history of barring interracial marriage and general discrimination against blacks.

But the point isn't to get into a pissing match about who was more oppressed. Nor is the point that you oppose gay marriage and you (apparently) don't oppose interracial marriage.

The point is that if there is a generally applicable anti-discrimination law, objections to following that law based on self-professed religious concerns usually only permit narrow exceptions.
4.23.2009 10:04am
einhverfr (mail) (www):
TruePath:

What does it mean to say that you don't have to treat a couple as married?


Ok, let's look at a few examples as to how I see this:

1: A religious broadcasting corporation which takes a position that SSM is not consistent with their religion would NOT have to afford same-sex married couples the same family insurance plan benefits given to opposite sex couples.

2: The same would presumably be true of sole proprietorship where the owner would hold such beliefs.

3: OTOH, let's look at another dimension. Suppose a man owns a hotel and holds such beliefs, and two men, holding hands, come in and ask to have a room for the night. Discrimination against them if they are married would be no different than discrimination against them if they were not married (I don't know whether such discrimination would be illegal in Connecticut, so I won't comment as to whether it is allowed, just that it isn't allowed UNDER THIS PROVISION).

4: Similarly the same sole proprietorships and religious corporations might or might not be able to discriminate against gay employees in hiring and promotion depending on relevant state law, but couldn't use THIS provision as a way to do so.
4.23.2009 10:43am
Tim Amulb:
I started to answer Dale's question as an opponent of SSM by saying that yes, I do think this is a step in the right direction. But then I had to ask myself, what are the chances of this statute itself being struck down? Given the lawless decisions we have seen so far on this issue, many of them celebrated by Professor Carpenter himself, I would bet high. So my answer is no, as a practical matter this does not make me feel anymore comfortable with the idea of legal recognition of SSM.
4.23.2009 10:44am
Cornellian (mail):

So religious considerations apply only when a person is in church saying, "Our theory is so-and-so," but not when that person is outside the church putting so-and-so into practice in his own life?

Exactly. Free exercise has never entailed a bubble of immunity to laws of general application. You are not free to ignore the speed limit even if speed limits are the most heinous sin recognized by your religion.
4.23.2009 10:50am
David Hecht (mail):
We have a substantial body of law on an issue--sexual harassment--where the plaintiff gets to (in effect) decide if they've been sexually harassed (I tell an off-color joke in the privacy of my own office, Joe Lunchbox walks by and hears it, has no problem, but his buddy, Quincy Quiche-Eater, is offended). So raising concerns about subjectivity smacks to me of special pleading.

I also think that if advocates of so-called "anti-discrimination" statutes want to be serious about protecting their own freedoms as well as those of others, they need to follow the legal equivalent of putting their effluent pipe upstream of their inflow pipe: thus providing motivation for getting it right. Whatever you think might offend you or otherwise encroach on your rights, make sure you're protecting that for others.
4.23.2009 10:51am
Smallholder (mail) (www):
Tim Amulb wrote:

"Given the lawless decisions we have seen so far on this issue..."

I don't think that word means what you think it does.
4.23.2009 10:52am
einhverfr (mail) (www):
Yankev:

The absurdity of this analogy has been demonstrated time and again, yet the analogy is repeatedly dredged up in order to smear as bigots those who adhere to the traditional definition of marriage as being a union between a man and a woman.


It seems quite apt to me.
4.23.2009 10:55am
efs5r (mail):
Prof Carpenter: I second Gilbert's question—how does Romer fit in to all of this? I'm not a legal expert and could see a court ruling either way, depending on how broadly they apply the precedent. I’d appreciate an expert’s take on the issue.

Now on to your question. I'm a SSM supporter willing to tolerate limited religious exceptions, particularly if it means getting the needed legislation through faster. I think churches and religious organizations (such as the Knights of Columbus) should be exempt from having to recognize gay marriages.

I don't think such organizations that choose to discriminate should be eligible for tax exemptions based on the provision of public accommodation (like the NJ Ocean Grove Camp Meeting Association that anti-SSM like to use as an example). I also would not support exemptions for public employees, or individuals that require state licenses (like doctors).

As far as private business, I'm mixed. I generally think any private business owner should be able to discriminate against any person for any reason. If anti-SSM people really want to take the libertarian route, then they should ask for the repeal of all anti-discrimination laws, not just the ones they don't like. To do otherwise unfairly privileges religion in my mind and can’t really count as libertarian. If religious people are exempted from gay anti-discrimination laws, I would push for a gay exemption to laws banning discrimination based on religion. Why should ant-gays be allowed to discriminate against me, but not the other way around? Why does their moral disapproval of me hold more legal weight than my moral disapproval of anti-gay religion?
4.23.2009 11:18am
Joseph Slater (mail):
David Hecht:

You misunderstand harassment law under Title VI. To prove a hostile work environment, plaintiff, among other things, must show both that plaintiff subjectively found the work environment to be pervasively hostile and that an objectively reasonable person in plaintiff's position would have found likewise.
4.23.2009 11:30am
trad and anon (mail):
I'd be there with the chuckleheads who claim that gay marriage will be imposed on churches if there was an example of lawsuits forcing pastors to conduct wedding ceremonies.


Have antidiscrimination laws ever been applied to require a pastor (or whatever) to marry a couple they didn't want to? I haven't done any research, but I'd be surprised if any such thing has happened. The only thing I can think of is that it might have happened to military chaplains.
4.23.2009 11:33am
einhverfr (mail) (www):
Re-reading this, there are some other areas of discrimination which would seem to be allowed under this provision:

1) A sole proprietorship might be able to refuse to sell a wedding cake or flowers to a gay marriage event.

2) Most for-profit corporations (belonging to The Church of the Holy Profit, whose one commandment is "Thou shalt be fruitful, prosperous, and earn lots of money") would not seem to be eligible for such an exception.

This is really limited to:

1) Providing services, space, goods, etc. FOR THE EVENT.
2) Recognizing the marriage as in force.

It does not seem to reach down to allow discrimination against same-sex married couples on the basis of their marital status, to my mind.
4.23.2009 11:35am
Tim J.:
Catholic charities did not shut down because of government imposition. They were free to continue (or return to, since they had earlier placed children with gay couples) their discriminatory practices - but at the expense of losing government subsidies for their work. Losing the government subsidy doesn't shut them down: it requires them to fund their discrimination on their own dime.


You are wrong. They need a state license to facilitate adoptions, and this would have been denied them unless they also adopted out to gay couples.
4.23.2009 11:37am
Oren:

So would this mean that religiously-affiliated hospitals can tell people, "no, you cannot visit your sick wife"?

As I understand it, hospitals are free to bar all visits whatsoever, so your proposal would be included as a weaker form.
4.23.2009 11:39am
einhverfr (mail) (www):
Tim J:

You are wrong. They need a state license to facilitate adoptions, and this would have been denied them unless they also adopted out to gay couples.


There might have been other ways to challenge such a provision in the absence of state subsidies. However, this does create problems it should be acknowledged.
4.23.2009 11:44am
eHarmondy:
What about eHarmony? They had previously only provided a matchmaking service for heterosexual couples, and were sued in California and New Jersey. The founder argued that he hadn't done the research to apply his formula to same-sex couples, and that it wasn't profitable to do so. Applying a more poorly researched formula would ruin the company's reputation. As part of the settlement for the New Jersey case, they were forced to launch a partner site for same sex couples.
4.23.2009 11:50am
early bird (mail):
Would this provision even stand up to an equal protection challenge? If you can't deny marriage to gays on equal protection grounds, can you deny married gays the equal protection of the anti-discrimination laws?
4.23.2009 11:57am
Oren:


The absurdity of this analogy has been demonstrated time and again, yet the analogy is repeatedly dredged up in order to smear as bigots those who adhere to the traditional definition of marriage as being a union between a man and a woman.

Which traditional definition of marriage are we talking about defending here? There are so many I get confused. There's the traditional biblical version, where your parents tell you who to marry on pain of expulsion from the community. There's the version where you are expected to marry some random woman that an old lady picks out of a hat for you. There's a slightly newer version (circa the 19C, which means it's a very recent invention) in which freedom to chose a spouse is assumed.

The major revisions really starting in the 20C, at first with the novel concept that a married couple ought to have the right to divorce one another, even if that required some collusion.

In 1969, some States radically revised traditional marriage by allowing either party to unilaterally terminate the marriage (the first was California signed by some guy named Ronald Regan, whoever that is).

There was another notable revision of traditional marriage in the 1970's when the right of a husband to beat and rape his wife was removed (state by state). To put a date on it, in 1976 marital rape was legal in all 50 Sates.

There was another notable revision of traditional marriage in 1981, when the right of a husband to dispose of common property without consent of the wife was removed.

So, just to be clear about which kind of traditional marriage we are talking about in the future, tell me if you want to go back to the Bible, the middle ages, 1968, 1976 or 1980. I'm very stupid and I get confused a lot so you have to hold my hand here.
4.23.2009 12:21pm
Oren:
Whoops, Regan -> Reagan.


You are wrong. They need a state license to facilitate adoptions, and this would have been denied them unless they also adopted out to gay couples.

Indeed -- being an adoption agency is acting as an arm of the State. Put it another way, does anyone want to claim that there is a right to be an adoption agency?
4.23.2009 12:25pm
Richard Aubrey (mail):
Oren.
Missed again.
The point of referring to the Catholics and adoption is to describe an unfortunate, if not unintended result which has a significant social cost, in the context of whether such propositions do or can have downsides.
4.23.2009 12:49pm
Dan3 (mail):
Perhaps the difficult in crafting a law protecting the interests of both camps should be seen as an indication that it just doesn't make sense for a society approve SSM.

I understand how Amish feel... wanting to separate from the whole thing.

How is it different from legalizing drugs? Many people want them legalized, there would certainly be benefits to society if currently illegal drugs were legalized (taxes, less drain on the court and prisons, etc). And yet, in practice, legitimizes what we would all hope our children would not fiddle with.

And if you're one who believes people don't have a choice regarding same sex attraction then you likely haven't ever visited a middle school.
4.23.2009 12:52pm
guest890:
I'd agree with Tim Amulb. Having the exemption is better than not, and it will help in the short term. But (all other objections to SSM aside) I'm concerned that with the amount of judicial activism in this area, the exemption provisions will get challenged in a couple of decades.

As geokstr points out, legal history on social issues is frought with unintended consequences. Even in the SSM debate, when Massachusetts passed an anti-sex-discrimination law, a few opponents were mocked for commenting that it could lead to SSM. And then Goodridge happened.
4.23.2009 1:05pm
shawn-non-anonymous:
As an openly gay man and having been in a committed relationship for 11 years now, I would be comfortable with some sort of clause to protect the religious beliefs of others. As someone who was raised Roman Catholic and whose mother divorced and remarried, I have some personal experience here.

I would not mind if a cake company refused to make me my cake and I have enough sense to not ask the Knights of Columbus if I can use their meeting hall. Provided all these objections were made up front and not after we signed a contract, I am resourceful enough in this information age to find alternatives.

Having said that, the exemption I read above scares me a bit. (IANAL) Part of why I find value in civil marriage are the protections we receive, especially in our ability to legally speak for and protect each other. The "marriage tax" is the price I pay for knowing I can speak for my incoherent spouse while he is laying on a hospital bed needing care. Given that all but one hospital in my area is religious and that ambulances tend to take people to the closest one possible, I would not want to face a situation where a Baptist hospital refused to recognize my right to speak on my spouse's behalf.

I would gladly accept religious exemptions to protect churches and pastors from having to perform my marriage if it would make them feel better.
4.23.2009 1:10pm
Oren:


The point of referring to the Catholics and adoption is to describe an unfortunate, if not unintended result which has a significant social cost, in the context of whether such propositions do or can have downsides.

Accepted, but I don't know if everyone else has foreclosed the legal argument in favor of a policy argument. Many insist that excluding the Catholics from adoption is contrary to the 1A, not just a bad policy.


I would not mind if a cake company refused to make me my cake and I have enough sense to not ask the Knights of Columbus if I can use their meeting hall. Provided all these objections were made up front and not after we signed a contract

Indeed. One of the big fears is that venues/services will agree to perform these functions and then ditch at the last second. I have no objection to refusal, so long as it's up front.
4.23.2009 1:46pm
giovanni da procida (mail):


How is it different from legalizing drugs? Many people want them legalized, there would certainly be benefits to society if currently illegal drugs were legalized (taxes, less drain on the court and prisons, etc). And yet, in practice, legitimizes what we would all hope our children would not fiddle with.

And if you're one who believes people don't have a choice regarding same sex attraction then you likely haven't ever visited a middle school.


As a former middle school teacher, I literally have no idea what you mean by this statement.

We all may hope our children don't fiddle with drugs. But if they do fiddle with them, would you prefer they be incarcerated for doing so, with the criminal record that entails, or that their parents deal with the issue?
4.23.2009 2:02pm
einhverfr (mail) (www):
shawn-not-anonymous:

Given that all but one hospital in my area is religious and that ambulances tend to take people to the closest one possible, I would not want to face a situation where a Baptist hospital refused to recognize my right to speak on my spouse's behalf.


That is a good point. I would see hospital visitation questions as more troublesome, actually. Power of attorney sorts-of-issues would seem to me to be issues which courts might well rule outside the exception.

However, there is another question here. Is an anti-gay bias or even an anti-SSM bias sufficient to perform such discrimination in all cases?

It would seem to me that a court should interpret the exception narrowly and require an objection TO THE ACT of recognition in question which is proportional to its impact, and which lacks another basis. It seems to me that if we interpret this narrowly, the recognition of marriage exception might be so limited as to be effectively moot. Sure, the same hospital might not allow same-sex married couples access to family insurance plans, but might still have to recognize power of attorney (because this could theoretically be a separate arrangement) on the part of same-sex married patients.
4.23.2009 2:04pm
einhverfr (mail) (www):
Oren:

Indeed. One of the big fears is that venues/services will agree to perform these functions and then ditch at the last second. I have no objection to refusal, so long as it's up front.


I would think that in such a case, standard contract law would apply, no? One might even be able to find other things to add to the lawsuit if the lawyer thinks it is worth it.
4.23.2009 2:06pm
Putting Two and Two...:

What about eHarmony? They had previously only provided a matchmaking service for heterosexual couples, and were sued in California and New Jersey. The founder argued that he hadn't done the research to apply his formula to same-sex couples, and that it wasn't profitable to do so. Applying a more poorly researched formula would ruin the company's reputation. As part of the settlement for the New Jersey case, they were forced to launch a partner site for same sex couples.


Go to eHarmony and you'll get a pop-up. Check Male looking for Male. You'll get hussled off to their gay site. Click on their About page and, low and behold, why should you use thier services? Why, because of their patented formula for matching people!

You'll also notice that, unlike eHeteroharmony, almost all the photos are of individuals. No same-sex couples touching or anything icky like that.
4.23.2009 2:52pm
Perseus (mail):
So, just to be clear about which kind of traditional marriage we are talking about in the future, tell me if you want to go back to the Bible, the middle ages, 1968, 1976 or 1980. I'm very stupid and I get confused a lot so you have to hold my hand here.

In none of those periods did marriage consist of two people of the same sex. To find something like that, you'd have to go back to the mad emperor Nero (and even then, he allegedly married a castrato).
4.23.2009 2:53pm
Yankev (mail):

Which traditional definition of marriage are we talking about defending here? There are so many I get confused. There's the traditional biblical version, where your parents tell you who to marry on pain of expulsion from the community.
Really? I guess that explains why all of Jacob's sons, as well as Moshe Rabbeinu, were excommunicated. I'd be very curious to know your "biblical" source for this. Mare mekomos, please, preferably with chazal and shulchan aruch.

There's the version where you are expected to marry some random woman that an old lady picks out of a hat for you.
You've seen Fiddler on the Roof a few too many times. By the way, having worked with shaddchanim (my step-son is currently "in the parshah" -- have you ever even met a shaddchan, byt the way?) I can assure you there is a lot more involved than picking a name out of a hat. And I can assure you that after the potential couple is introduced,the decision whether to date, and for how long, and whether and when to break it off and pursue other options, is entirely up to the decision of the young man and young woman involved.

But it is instructive that you are content with ridiculing what you believe to be Orthodox Judaism, rather than actually refuting my claim -- that until the 21st or late 20th Century, same sex "marriage" was a contradiction in terms, even in those societies that attached no stigma to homosexual conduct.


In 1969, some States radically revised traditional marriage by allowing either party to unilaterally terminate the marriage (the first was California signed by some guy named Ronald Regan, whoever that is).
Yeah, no-fault divorce has been a real boon to society, right up there with serial adultery and an out-of-wedlock birthrate approaching 50%. It's been a particular boon to women and children, unless you consider the poverty rate, crime rate and educational rate of households headed by single women.


There was another notable revision of traditional marriage in the 1970's when the right of a husband to beat and rape his wife was removed (state by state). To put a date on it, in 1976 marital rape was legal in all 50 Sates.
Sources, please? For some reason I have a lot of trouble believing that one.

I'm very stupid and I get confused a lot so you have to hold my hand here.
Far from stupid, just deliberately obtuse (and rather fond of kicking a self-created caricature of Orthodox Judaism that exists primarily in your own mind).

But more importantly, the fact that there were (and remain) inequalities in marriage is largely irrelevant to the question of whether we should call something marriage that isn't, and whether we should criminalize those who point out that solemnizing such relationships is unprecedented in human history (as we now threaten those who have the temerity to believe that certain forms of immoral conduct are immoral), or who point out that that there will be unforeseen and possibly drastic social consequences to a society that is already reeling from an emphasis on personal gratification, self-expression, irresponsible consumption, and a general coarsening and cheapening of human life.
4.23.2009 3:02pm
Fear_Alike:
1. There are some things that I don't do, don't like, that I don't care if other people do it, and I steadfastly oppose the government making that act illegal (eating carrots for example).

2. There are some things that I don't do, don't like, that I emphatically urge other people to not do, but I steadfastly oppose the government making that act illegal (adultery for example).

3. There are some things that I don't do, don't like, that I emphatically urge other people to not do, and I believe the government should make illegal (murder).

It is the second category that seems to not exist for most people. If they don't like it and think it is bad .... then it automatically jumps to the third category. That's a shame. SSM seems to fall into all three, depending on who you talk to.
4.23.2009 3:27pm
Hans Bader:
Unlike Massachusetts, which has patently unjust matrimonial and divorce law (such as absurdly excessive child support provisions, and case law allowing courts to unjustly force one spouse to pay the divorce-lawyer fees of the other spouse even when the other spouse's lawyer brought meritless motions and ran up ridiculously large fees in the process), Connecticut has relatively reasonable family law.

So it is good that gay New Englanders can now get married in Connecticut rather than neighboring Massachusetts.

(Massachusetts law renders many prenup provisions desired by businesspeople of uncertain validity. Alimony waivers are sometimes deemed unenforceable by Massachusetts courts, even when the spouse demanding it doesn't deserve it, knew perfectly well what was signed away, had the advice of counsel, and previously had gotten multiple divorces, making their spouse legitimately apprehensive about being taken to the cleaners).
4.23.2009 3:55pm
trad and anon (mail):
But more importantly, the fact that there were (and remain) inequalities in marriage is largely irrelevant to the question of whether we should call something marriage that isn't, and whether we should criminalize those who point out that solemnizing such relationships is unprecedented in human history (as we now threaten those who have the temerity to believe that certain forms of immoral conduct are immoral),
Fortunately for you, same-sex marriage is not "threatening" you, except with the prospect of having to let your employees add their spouses to their health insurance policies, or requiring your floral boutique to prepare arrangements for weddings.
4.23.2009 4:28pm
Mac (mail):
I am opposed to SSM because I do not think it would be good for our society. I am not at all convinced that sexual orientation is set in stone at birth and I fear teens, fed a steady diet of this in school, would experience great confusion over their own sexuality. I think this is escpecially true of teenage girls who could quite likely confuse friendship with "love".

It is hard enough in this society to raise kids and get them through their teen years safely and sanely. i don't see SSM helping and do see it hurting.

That said, I am all for civil unions. However, if we were to universally legalize SSM in return for the aforementioned safeguards of the rights of others who are not proponents of gay marriage and we could be assured that children would not have to be exposed to the Prince marrying the Prince and the Princess marrying the Princess, etc., from kindergarten on, then I could probably live with gay marriage. I wouldn't like it as I would still have serious concerns about its effect on our children and society, but I could live with it. I do not , however, want to be explaining all of this to young children. They have a hard enough time grasping heterosexual sex as questions arise and answers are given. It is too much to get into homosexual sex as well. Too much information, as the saying goes, at too early an age. So, if it is kept entirely out of schools as well as the other safeguards, I could live maybe with it.

However, I do think we know not where this leads us. I fail to understand how we will prohibit polygamy if we approve SSM. If marriage is whatever we want it to be, then do not those who want multiple partners in marriage have the same rights?
4.23.2009 4:44pm
Mac (mail):

On the other hand, given the large cultural swing toward respect for gay people and gay rights, the provisions authorizing discrimination against gays might be short-lived. Putting the provisions in could help hasten gay marriage. Then, a few years later, we can work to remove the "compromise" provisions from the books.


OK. I take back what I said above. I just read Public Defender and he/she has just expressed why, if I feel SSM is bad for society as a whole, one can't compromise with the proponents. Apparently, the proponents will not operate in good faith and will work to deny freedom of religion and thought to those with whom they disagree no matter that SSM marriage is legalized. Too bad.
4.23.2009 4:53pm
Oren:

But it is instructive that you are content with ridiculing what you believe to be Orthodox Judaism

First, I'm not ridiculing anything, I'm trying to determine which of many conceptions of traditional marriage you are talking about.


I'd be very curious to know your "biblical" source for this. Mare mekomos, please, preferably with chazal and shulchan aruch.

Gen 29:

Jacob was in love with Rachel and said, "I'll work for you seven years in return for your younger daughter Rachel."

19 Laban said, "It's better that I give her to you than to some other man. Stay here with me." 20 So Jacob served seven years to get Rachel, but they seemed like only a few days to him because of his love for her.

21 Then Jacob said to Laban, "Give me my wife. My time is completed, and I want to lie with her."

22 So Laban brought together all the people of the place and gave a feast. 23 But when evening came, he took his daughter Leah and gave her to Jacob, and Jacob lay with her.
. . .

Conspicuously absent is any input from Leah and Rachel on whether they take Jacob as their husband. For some reason, I don't feel like Laban was keen to give them the option.
Gen 3:

3:16 Unto the woman he said, I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee.

Doesn't sound like the woman is being given a say in who she marries either.

There are innumerable verses of the form: "So-and-so gave his daughter unto so-and-so as a wife, which is what I meant by the general notion that a father is directing who marries who.


And I can assure you that after the potential couple is introduced,the decision whether to date, and for how long, and whether and when to break it off and pursue other options, is entirely up to the decision of the young man and young woman involved.

Having been subject to this myself on numerous occasions, I think you are intentionally omitting the significant social and familiar pressure that accompanies the procedure, especially after attempts to politely but firmly insist that I can make my own matches from then on.


Yeah, no-fault divorce has been a real boon to society, right up there with serial adultery and an out-of-wedlock birthrate approaching 50%. It's been a particular boon to women ...

For women that were, before the right to unilaterally divorce, effectively trapped. It takes a real arrogance to assert that someone ought not to have the freedom to make their own choices for their own good.


To put a date on it, in 1976 marital rape was legal in all 50 Sates.

Sources, please? For some reason I have a lot of trouble believing that one.

Dang, off by a year. Here's a cite. "In 1975, South Dakota became the first state to make the rape of a spouse a crime." The thought that it took until the 1970s to effect such a basic change in the right of a woman to her own body still astounds me.


Far from stupid, just deliberately obtuse (and rather fond of kicking a self-created caricature of Orthodox Judaism that exists primarily in your own mind).

Actually, quite the opposite. I'm not kicking around Orthodox Judaism because I know that modern Orthodox Judaism doesn't hold any of these retrograde views. Modern Orthodox Judaism does not permit a husband to rape his wife, nor a father to marry off his daughter absent her will nor a husband to refuse to divorce his wife (although sanctions for failure to draft a Get are fairly novel, they are becoming uncontroversial).

This is because generally speaking, modern Orthodox Judaism does not believe in "traditional marriage" except insofar as "traditional marriage" incorporates various revisions that are quite new (circa the last 50 years) relative to the tradition itself. Claiming a defense of tradition when the tradition in question has been so extensively changed (I would argue practically beyond recognition) so recently is intellectually dishonest.


But more importantly, the fact that there were (and remain) inequalities in marriage is largely irrelevant to the question of whether we should call something marriage that isn't, and whether we should criminalize those who point out that solemnizing such relationships is unprecedented in human history (as we now threaten those who have the temerity to believe that certain forms of immoral conduct are immoral), or who point out that that there will be unforeseen and possibly drastic social consequences to a society that is already reeling from an emphasis on personal gratification, self-expression, irresponsible consumption, and a general coarsening and cheapening of human life.

(1) Since for the majority of human history, marriage been carried out without the woman's consent, we shouldn't call marriages entered into by mutual consent marriage. For that same history, marriage has meant a state of affairs where the husband can have intercourse with his wife absent her consent, so any modern "marriage" in which the husband must secure her consent must also not be properly called marriage.

(2) I have never advocated criminalizing anyone for solemnizing or not solemnizing anything. I have no desire to criminalize anyone for thinking whatever they want about whatever they want.

(3) It's only someone with the utmost respect for the sechel that God granted us that can advocate for a polity in which each of God's children has the right to live his life and worship his God in the manner best befitting his own conscience. God did not grant us sechel so that we could go through life without cause to us it.
4.23.2009 4:58pm
einhverfr (mail) (www):
Oren:

I suppose you are probably right in the scope of your comments, but it is not QUITE true that all of this is exclusively modern.

In some areas, for example, Medieval/Viking Iceland, it was very common for a father to ask his daughter her views on marriage before committing her to marriage and she had the right to divorce and retain the dowry of she chose. Of course few modern societies are as libertarian as early/medieval Iceland was, but the role of the father in this case was to act as a check against youthful impulse, etc. Note that a woman's husband also became a bit of a legal guardian in Icelandic society as well, so things weren't entirely equal all the same.

The idea of sexual autonomy is fairly new, but once again there are plenty of episodes from early Icelandic and Anglo-Saxon writings which suggested that consent was seen as important throughout Germanic society. For example, Athelflaed's decision to stop having kids after the first because, while sex was fun and all, giving birth was NOT (and she ended up leading armies against the Norse for the rest of her life...). Similarly we have cases of women divorcing their husbands for lack of sexual relations, or avoiding those with them. Yrsa and Adils in Hrolf Kraki's Saga is a good example of this. Note too that women in Germanic society did not take well to being subject to things they felt were abusive and their primary loyalty was still to their blood relatives, not to their married relatives.[1] Hence you have numerous examples in the sagas where this plays out and sometimes even results in the wife hastening on the death of her husband!

[1] There are a few exceptions to this. Sigrun's willingness to curse her brothers and then fast to death after her husband is killed by her brothers in The Second Lay of Helgi Hungingsbane stands out as quite unusual.
4.23.2009 5:32pm
Mac (mail):
Oren, with all due respect, your line of thinking is a total non sequiter to the issue of SSM. By your line of reasoning we should call Black persons slaves since they once were slaves in this country ergo they are not really free now. This is what I mean by zero flashes of brilliance in the arguments for SSM.

However, thanks for an interesting if decidedly one sided history of marriage.
4.23.2009 6:50pm
Oren:

Oren, with all due respect, your line of thinking is a total non sequiter to the issue of SSM. By your line of reasoning we should call Black persons slaves since they once were slaves in this country ergo they are not really free now. This is what I mean by zero flashes of brilliance in the arguments for SSM.

You misunderstand my point entirely. There are plenty of reasonable arguments against SSM (the most potent for me being that only two states has legalized it by act of the legislature).

My point is that opposition to SSM because it's not "traditional marriage" are hollow because the proponents of "traditional marriage" have accepts many fundamental modifications to marriage in the last few decades -- considering that marriage in thousands of years old, they cannot plausibly be said to really believe in "traditional marriage" . They are guilty of mislabeling their position -- what they call "traditional marriage" really means "all the innovations of modern marriage except the ones I don't like".

That's not to say I don't preclude them from arguing in good faith about whether or not this particular innovation is a positive one. But they should do so on its merits, not because it doesn't meet some hypothetical traditional standard that they don't even themselves believe in.
4.23.2009 7:03pm
Oren:
Also, my point in (1) was meant as RAA, not as a genuine argument.
4.23.2009 7:04pm
Mac (mail):
Does anyone know if Ms. USA could conceivably be covered by any anti-discrimination or other laws for her answer re SSM and subsequent loss of the crown, assuming that it could be proved that she lost the crown because of her answer, of course.
4.23.2009 7:04pm
Mac (mail):

That's not to say I don't preclude them from arguing in good faith about whether or not this particular innovation is a positive one. But they should do so on its merits, not because it doesn't meet some hypothetical traditional standard that they don't even themselves believe in.



But, Oren nowhere and not ever has marriage been between a man and a man, etc. It is traditional forever between opposite sexes, so I still think your argument is invalid. That is a solid traditional standard that has never changed.
4.23.2009 7:08pm
Oren:

But, Oren nowhere and not ever has marriage been between a man and a man, etc. It is traditional forever between opposite sexes, so I still think your argument is invalid. That is a solid traditional standard that has never changed.


As of fairly recently nowhere and not ever has a marriage between two parties both of whose consent was required for intercourse. Or two parties each of which could unilaterally dissolve the marriage. Or two parties with equal rights in join property. The arrangement that we consider marriage today would be unrecognizable just 200 years ago, let alone 2000.

I see no principled reason why "tradition" calls for accepting one radical redefinition but not another, except if you want to argue about each innovation on its merits.
4.23.2009 7:15pm
Mac (mail):
Oren, I see great differences between the applications of the concepts of marriage and same sex marriage. SSM is not just another permutation of the same thing. It is totally different. However, I think we shall just have to agree to disagree.

By the way, what is RAA? Forgive my ignorance of contemporary acronyms. I still text message in complete sentences. (Yes, reading text messages does present a challenge to me.)
4.23.2009 7:19pm
Yankev (mail):
Oren, I don't know where to begin or if I should even bother. Suffice it to say that your misconceptions about traditional Orthodox Judaism are numerous. Among other things, the Talmud makes it clear that a man cannot have intercourse with his wife against her will (granted, it was not considered rape, but it was grounds for divorce, with a hefty financial penalty thrown in), and ditto a husband striking his wife. You are correct that a father did -- at one time -- have the right to give his daughter in marriage without her consent, but that right ends when the girl turns 12 years old (open up a Gemorah some time, you'll find it in the first two chapters of Kiddushin) and it has been quite a few centuries since anyone marries that young. As to penalties for not delivering a Get, the Rambam, nearly a millennium ago, quotes the Gemorah from nearly two millennia ago that the religious court can go so far as to beat the recalcitrant husband with sticks until he is willing to deliver a get. Maybe that meets your definition of recent.

Your citation of Laban's daughters is not relevant; we do not learn halacha from incidents in Chumahs, only from explicit commands. You may as well cite the incident of Lot's daughters to teach that there is nothing wrong with incest.

I could go on, but my point is that your entire discussion is a distraction from the point that a "marriage" between two people of the same sex is not a marriage. Add to that the concerns raised by Mac (with which I fully concur), and I see no particular reason to cave in to demands to extend the status of marriage to something that isn't.
4.23.2009 7:23pm
Oren:

Suffice it to say that your misconceptions about traditional Orthodox Judaism are numerous.

Except that I specifically said that these were all things that Orthodox Judaism does not believe even though they were once part of the meaning of marriage.


I could go on, but my point is that your entire discussion is a distraction from the point that a "marriage" between two people of the same sex is not a marriage.

And before 1981, a "marriage" was not between two people with equal rights to property.

And before 1976, a "marriage" was not between two people whose mutual consent was needed for intercourse.

And before 1969, a "marriage" was not between two people who could each unilaterally dissolve the arrangement.

And before 1967, a "marriage" was not between two people of different color skins.
4.23.2009 7:32pm
Yankev (mail):

Having been subject to this myself on numerous occasions, I think you are intentionally omitting the significant social and familiar pressure that accompanies the procedure, especially after attempts to politely but firmly insist that I can make my own matches from then on.
Poor you. I am sorry that your family is so pushy. I guaranty that what you have described bears only the slightest resemblance to shidduchim as practiced among Orthodox Jews, which is done with a respect for the wishes of the single people involved. What you have described is not shadchanus. What you have described is out and out meddling, and the individuals who have subjected you to this would definitely not be sought out, consulted or even listened to in any Orthodox community.

For women that were, before the right to unilaterally divorce, effectively trapped. It takes a real arrogance to assert that someone ought not to have the freedom to make their own choices for their own good.
I am criticizing no-fault divorce, and you take this as opposition to ALL divorce? I agree that either party should be able to initiate civil divorce, and for decades before no fault divorce, they could -- they just had to demonstrate cause. In some states this was very difficult, and I agree that was bad. In other states, much less cause was needed, but one party could not be divorced without consent of the other without showing there was some reason why.
4.23.2009 7:32pm
Oren:

Oren, I see great differences between the applications of the concepts of marriage and same sex marriage.

And I see even greater difference between
(a) marriage circa 1960, in which the wife cannot divorce her husband without his consent, cannot own property in her name and can be raped and beaten (thumb rule) at will
(b) marriage circa 1985, in which unilateral divorce, mutual consent and a general presumption of equality prevail.

Those are very different concepts. The former is a relationship of power whereas the later is a relationship based on mutual affection. Changing the entire nature of the relationship from one of power to a mutual one is also "not just another permutation of the same thing" but a wholesale and complete revision.


By the way, what is RAA? Forgive my ignorance of contemporary acronyms. I still text message in complete sentences. (Yes, reading text messages does present a challenge to me.)

Reductio ad absurdum, not very contemporary though.
4.23.2009 7:37pm
Oren:

Poor you. I am sorry that your family is so pushy.

I'm glad they are -- one doesn't develop a strong will except in the presence of other strong wills.


I am criticizing no-fault divorce, and you take this as opposition to ALL divorce? I agree that either party should be able to initiate civil divorce, and for decades before no fault divorce, they could -- they just had to demonstrate cause. In some states this was very difficult, and I agree that was bad. In other states, much less cause was needed, but one party could not be divorced without consent of the other without showing there was some reason why.

Of course, in States where it was still legal, marital rape was not a cause for divorce (one more instance where the Talmud until recently had the edge over secular law).

At base, isn't simply being unhappy with a marriage reason enough to let a man or woman out of it? Is the intent of marriage to imprison or to improve?
4.23.2009 7:41pm
Yankev (mail):

And before 1981, a "marriage" was not between two people with equal rights to property.
Really? In all 50 states and in every country of the world? That would have been news to the ancient Romans, among others. Certainly it was not fundamental to the understanding of marriage.


And before 1967, a "marriage" was not between two people of different color skins.
Really? In all 50 states and in every country of the world? Certainly it was not true in Israel, where marriage is (as it was then) governed by halacha. Not in Illinois, where I grew up. Or Wisconsin.

Again, this was not fundamental to the understanding of marriage. In fact, it proves the opposite -- if marriage between people with different color skins were impossible (as opposed to merely illegal), even the most extreme bigotry would have seen no need to ban it. Why ban the impossible or non-existent? In the case of same sex "marriage", we are being asked not to lift prior prohibitions but to alter previousl accepted definitions.

Analogies to laws prohibiting interracial marriage may be useful to brand opposition to SSM as archaic giotry, but the analogy is not accurare and will not convince anyone who is not already convinced. If anything, the analogy strenthens the determination of opponents of SSM as a foretaste of what we can expect if SSM becomes the law of the land.
4.23.2009 7:43pm
Oren:

And before 1967, a "marriage" was not between two people of different color skins.

Whoops, sorry. In 1948 California was the first state to legalize interracial marriage. In 1967 the rest of the bans were struck down in Loving.

My mistake.
4.23.2009 7:46pm
Yankev (mail):

marriage circa 1960, in which the wife cannot divorce her husband without his consent,
I'm sorry, that's just not true. Having to show grounds for divorce (just as he would have had to in order to divorce her against her will) is very different from being able to divorce her husband.

Of course, in some jurisdictions, rules against "collusion" meant that a divorce could not be granted if both parties wanted it. I grant you that was a perverse law, but it was not universal.


cannot own property in her name and can be raped and beaten (thumb rule) at will

First, the thumb rule is an urban myth. Can you point to a single US jurisdiction where it was the law? Second, I suspect that the behavior you cite would have been grounds for divorce -- initiated by the wife -- in most states. Can you point to any court decisions saying that those are insufficient grounds?
4.23.2009 7:49pm
Yankev (mail):

In 1948 California was the first state to legalize interracial marriage.
I am amazed to learn that. But -- assuming that you are correct -- it does not change my argument.

By the way, "giotry" in my earlier post should have been "bigotry". That's a sign that I should log off for now.
4.23.2009 7:52pm
Oren:

In the case of same sex "marriage", we are being asked not to lift prior prohibitions but to alter previousl accepted definitions.

I continue to assert that the reforms from 1960-1980 altered the fundamental meaning in a more profound way.


Analogies to laws prohibiting interracial marriage may be useful to brand opposition to SSM as archaic giotry, but the analogy is not accurare and will not convince anyone who is not already convinced.

I have not once accused anyone of bigotry. In fact, as I read this, I was writing a peace offering (of sorts):

I see no particular reason to cave in to demands to extend the status of marriage to something that isn't.

This strikes me as an honest argument -- if you believe that marriage should only be between spouses of the opposite sex, then I respect (and disagree) with that view.

What I don't respect is the argument that we should not amend marriage to include SSM because of tradition when there are myriad other novel amendments to tradition that you endorse.
4.23.2009 7:52pm
Oren:
Give me one second before you sign off to get a cite for that.
4.23.2009 7:53pm
Oren:
Virginia Law, 1974, as cited here, footnote 1.

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.


The rule of thumb is not a legal standard, yet most States did not criminalize, or if they did, did not prosecute, domestic violence until this century. No less an authority on English Common Law than Blackstone wrote

The husband also, by the old law, might give his wife moderate correction . . . in the same moderation that a man is allowed to correct his apprentices or children.
4.23.2009 7:58pm
trad and anon (mail):
(a) marriage circa 1960, in which the wife cannot divorce her husband without his consent, cannot own property in her name and can be raped and beaten (thumb rule) at will.

I think you overstating things a bit. The idea that a married woman can own property in her own name is indeed a modern invention, but it's not quite that recent. A married woman's right to own property in her own name was established by the various Married Women's Property Acts of the mid-late 19th century. Kirchberg v. Feenstra eliminated the right of a husband to unilaterally dispose of community property, which I think most (all?) community property states had already eliminated. I don't know about the rules in non-CP states regarding a husband's right to dispose of jointly owned property.

Spousal abuse was also de jure illegal by 1960, though the facts on the ground were different. Complaints were regularly written off as "domestic disturbances," resulting in few arrests and fewer prosecutions. Prosecutions did not become significant until the feminist movement started raising a stink about the issue and states passed statutes specifically targeting domestic violence. You're quite right about spousal rape though.
4.23.2009 8:04pm
Oren:
Yup. Gotta remember not to overstate my case. Thanks for trimming it back.
4.23.2009 8:14pm
trad and anon (mail):
Yup. Gotta remember not to overstate my case. Thanks for trimming it back.

You're welcome. I agree that contemporary marriage is completely different from the one that existed a century ago, when divorce was illegal in most states, miscegenation was illegal nationwide, blowjobs were illegal (though almost never prosecuted), contraception was illegal, spousal rape was legal, spousal abuse was de facto legal, husbands had control of jointly owned property, and the social norms surrounding marriage conceived of it as a relationship between a man and a subordinate.
4.23.2009 8:30pm
cmr:
To answer Professor Carpenter's question: this sort of thing doesn't really ease my religious-liberty fears. I'm skeptical of any court that finds the constitutional right to gay marriage in invisible ink to protect my religious-liberties.
4.23.2009 8:36pm
trad and anon (mail):
I'm skeptical of any court that finds the constitutional right to gay marriage in invisible ink to protect my religious-liberties.
"All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community. This section does not apply to homosexuals." CONN. CONST. Art. 1 § 1.

I think you're the one looking for invisible ink.
4.23.2009 8:55pm
Mac (mail):


I have not once accused anyone of bigotry. In fact, as I read this, I was writing a peace offering (of sorts):




Oren,

No, you have not and I for one appreciate that very much. Nor, unless I missed the post, has anyone else. It has been refreshing to have a discussion on this subject without the usual histrionics and claims of hatred, bigotry and so forth. If Martin Luther King jr. had argued for civil rights for black people the same way SSM supporters are framing the argument and demonizing the dissenters, we would be much further behind than we are now in the area of civil rights.

Oren, I continue to fail to see the logic of your argument, but as I said, we must agree to disagree. Thanks.

tad and anon,
I don't think cmr meant what you think he meant re invisible ink. I believe his argument is coherent and, quite likely, correct.
4.23.2009 9:15pm
Mac (mail):
Oren,

One final thought. The role of men and women in society has changed tremendously in the last 100 years or so. However, the changing roles does not make a woman a man or a man a woman, no matter who brings home the bacon or who stays home with the kids or whatever combination thereof people choose.

A man is still a man and a woman a woman. And, a marriage, no matter how much it has changed, is still between a man and a woman. Changing roles have nothing to do with it any more than it has with changing your sex depending on what role you play in the marriage.
4.23.2009 9:44pm
John Moore (www):
I would find SSM much less objectionable IF I believed that the protections of choice by others (which should go beyond religious issues) would actually last.

Instead, as others have commented, it is a camel's nose in the tent. Some creative tyrant in black robes will no doubt find a reason to destroy those protections. That's the direction "progress" in our system has been moving for a couple of decades.
4.23.2009 10:01pm
cmr:
I think you're the one looking for invisible ink.



That doesn't change the fact that marriage -- even to those who drafted the Conn. constitution -- was a union between a man and a woman. Homosexual individuals weren't being denied marriage rights under the constitution, nor by statute.
4.23.2009 10:11pm
trad and anon (mail):
That doesn't change the fact that marriage -- even to those who drafted the Conn. constitution -- was a union between a man and a woman. Homosexual individuals weren't being denied marriage rights under the constitution, nor by statute.

And in Saudi Arabia, Muslims and Jews are equally free to worship God at the mosque of their choice.
4.23.2009 10:16pm
Thrasymachus (mail):
<blockquote>
Whoops, sorry. In 1948 California was the first state to legalize interracial marriage. In 1967 the rest of the bans were struck down in Loving.
</blockquote>


This is not true, although the claim has been made all too frequently by gay marriage supporters.

There was NEVER a time in the history of the United States when interracial marriage was illegal in all states. Nine states and the District of Columbia have never had anti-miscegenation laws. Two states repealed these laws before becoming states. Pennsylvania repealed its law in 1780, and ten other states did so in the 19th century.

After California's Supreme Court struck down that state's anti-miscegenation law, thirteen other states repealed their laws before the U.S. Supreme Court's Loving decision. Interracial marriage was legal in thirty-four states when Loving was decided, so that decision affected only sixteen states, all in the South. With the exception of California, all of the states which repealed anti-miscegenation laws did so by legislative means rather than through judicial decisions.

Very few societies have ever had laws banning interracial marriage. The best known examples - Nazi Germany, South Africa under apartheid, the U.S. South in the segregation era - are not generally regarded as moral examplars.

In these and other respects this is a very different scenario from what we have seen to date in the fight over gay marriage. The argument for gay marriage cannot rely on an analogy with interracial marriage.
4.23.2009 11:08pm
Perseus (mail):
I see no principled reason why "tradition" calls for accepting one radical redefinition but not another, except if you want to argue about each innovation on its merits.

None of the previous definitions and re-definitions of marriage involved denying the complementarity of the sexes.
4.23.2009 11:46pm
einhverfr (mail) (www):
Perseus:


None of the previous definitions and re-definitions of marriage involved denying the complementarity of the sexes.


Up until recently, they didn't involve denying the inequality of the sexes either :-)
4.24.2009 1:45am
Randy R. (mail):
I'm all in favor of religious exemptions. In fact, I would REQUIRE religious exemptions. So if your religion prohibits the eating of meat on Fridays, for instance, you should be required to refuse to serve meat if you own a restaurant. Catholic hospitals should be prohibited from treating any person as married if they were divorced. Businesses of any sort should be required to deny service to any person who has had premarital sex.

Therefore, if you are a going to claim religious exemptions to serve gays or gay couples, then you should be required to interview every person you do business with and make sure that they don't violate any of the hundreds of sins your religion lists.

In other words, if you have these precious religious sensibilities, then go ahead and enforce them against everyone, not just against gays.
4.24.2009 2:00am
einhverfr (mail) (www):
Randy R:

My religion doesn't believe in sin. So I guess I am in good shape.
4.24.2009 2:03am
Jake1 (mail):
Many opposite sex couples egregiously violate complementarian theology with very flexible/adaptive roles, and many same sex couples closely adhere to a modified form of complementarian theology--some rather conservatively. Providing, protecting, respecting, and nurturing simply are not anatomical corollaries.
4.24.2009 2:15am
trad and anon (mail):
None of the previous definitions and re-definitions of marriage involved denying the complementarity of the sexes.

Not sure what you mean by this, but I think my mouth complements my boyfriend's dick just fine. If you think some woman's mouth would complement it better, we may have to take this outside.
4.24.2009 2:23am
cmr:
That was pretty tacky, trad and anon.
4.24.2009 6:59am
Yankev (mail):

And in Saudi Arabia, Muslims and Jews are equally free to worship God at the mosque of their choice.
So that I have this straight, no one is accusing anyone of bigotry; they are simply making analogies to bigotry.

Mac, Perseus and others have amply pointed out that men and women are not the same, regardless of what roles they play and what legal equality they may have or lack in any society or legal system. Marriage is a social institution recognized by law, and has -- by definition -- been between a man and a woman. Analogies to race or to the changing roles or men and women or the increased rigths of women are nothing more than a distraction from that fact.
4.24.2009 9:18am
Oren:

And, a marriage, no matter how much it has changed, is still between a man and a woman. Changing roles have nothing to do with it any more than it has with changing your sex depending on what role you play in the marriage.

Fine by me, it's perfectly consistent to think that marriage has changed considerably but ought not to change further (or at least ought not to change further in the particular way proposed).


In these and other respects this is a very different scenario from what we have seen to date in the fight over gay marriage. The argument for gay marriage cannot rely on an analogy with interracial marriage.

To be clear, I don't want to analogize the two, I was simply saying that marriage changed in some fashion during the 20C (or, as you point out, the 19C in some Northern States). If you accept one change, but not another, you must have a principled argument on the merits instead of saying merely that you want to preserve "traditional marriage".


In other words, if you have these precious religious sensibilities, then go ahead and enforce them against everyone, not just against gays.

(1) Don't be nasty.
(2) I leave it to the conscience of each man to determine what he may and may not abide.


Mac, Perseus and others have amply pointed out that men and women are not the same, regardless of what roles they play and what legal equality they may have or lack in any society or legal system.

"Man is not woman" is no more profound that "white is not black" or "1 is not 0".


Marriage is a social institution recognized by law, and has -- by definition -- been between a man and a woman.

It has also, by definition, involved the total submission of the wife to her husband, to the point of losing her identity as a distinct person or even a member of her previous family. You don't seem to have any problem with the fairly recent change in the definition of marriage from submission to mutual consent so, I can conclude, you are open to the general prospect of changing the definition of marriage, just not this particular change of definition proposed here.

Which is an acceptable position, you support one change in definition but not another. Just don't disingenuously claim that you oppose all changes in the definition of marriage on the principles of the thing.


Analogies to race or to the changing roles or men and women or the increased rigths of women are nothing more than a distraction from that fact.

But I'm not making analogy to the changing roles of men and women, I'm making reference to the fundamental, definitional, change in the meaning of marriage in the past ~200 years as it pertains to the roles of men and women in marriages.

That is to say, marriage used to have a meaning that encoded a particular relation between the genders. Now it has a different one. Something changed in marriage during the intervening time that reflects the broader change.

[ Aside: sorry for the excessive emphasis, I'm feeling rather inarticulate today. ]
4.24.2009 11:20am
Oren:
I should add that the change in the definition of marriage with respect to gender roles certainly is coupled to the change in the broader change with respect to gender roles in society at large. That said, marriage changed so much in that intervening time that I don't see how that change did not amount to a fundamental redefinition of the meaning of the institution.
4.24.2009 11:22am
Randy R. (mail):
cmr: "That was pretty tacky, trad and anon."

Not really. It is the anti-gay crowd that continually says homosexuality isn't 'natural' and so there fore should be disapproved. First, homosexuality can be found in most mammalian speicies, and many others as well. Second, it has existed in every culture in every time period for humans. So, yes, it's as natural as lefthandedness or cleft chins.

So then the anti-gay crowd has to say that sex is only for reproductive purposes, and with gays, 'the parts don't fit.' This was the heart of Jake1's argument about the complementary nature of men and women.

Tradeananon was merely saying that yes, the parts do fit, and fit very well. In fact, the parts fit just as they do with opposite couples.

If you find that tacky, then don't make arguments about whether the parts fit. If Jake or you continue, we might have to send you some photos to prove just how well they fit. I have quite a few -- do you want any? For research purposes, only, to be sure.
4.24.2009 11:49am
Randy R. (mail):
yankev: "Mac, Perseus and others have amply pointed out that men and women are not the same, regardless of what roles they play and what legal equality they may have or lack in any society or legal system. Marriage is a social institution recognized by law, and has -- by definition -- been between a man and a woman. Analogies to race or to the changing roles or men and women or the increased rigths of women are nothing more than a distraction from that fact."

He was responded to your canard that gays can marry, they just can't marry the one person that they want to marry. It's a silly argument, one that even my eight year old niece can see through. I want to marry my boyfriend, the law says I cannot, therefore I cannot marry my boyfriend. So the marriage laws say that gays cannot marry each other.

Not a difficult concept, is it? After all, four whole *states* have come to realize the imbecility of this argument. And heck, if you really believe that gays have the right to marry, what was all that hullabaloo over in CA last year?
4.24.2009 11:53am
Randy R. (mail):
Mac: "Mac, Perseus and others have amply pointed out that men and women are not the same, regardless of what roles they play and what legal equality they may have or lack in any society or legal system. Marriage is a social institution recognized by law, and has -- by definition -- been between a man and a woman. Analogies to race or to the changing roles or men and women or the increased rigths of women are nothing more than a distraction from that fact."

You come by this by way of a number of fears. First, you fear that homosexuality is a choice. Well, it isn't -- just any gay person! We would be the experts on the matter, and no gay person I've ever encountered said it was a choice, or was influenced by society or anything. If society does influence your sexual orientation, then in fact there would be no gays, because until recently, there was no gay anything. If anything, gays were routinely discouraged. Yet, proof exists that gays have existed in all societies and in all cultures. Where does it come from if there is no societal support for it? It's nature, that's where.

Second, you fear that kids would have to be taught about gays. Well, they are already! My 8 year old niece, and in fact, all the kids of my friends, know I'm gay. Not one of them is confused about anything at all -- they just know that Uncle Randy dates guys, whereas other men date women. No big deal. And my niece can't wait to have a fairytale wedding -- to a man.

Third, we now have SSM in the following countries: Canada, Holland, Spain, Belgium, Denmank, Sweden and S.Africa. Please point to any negative effects whatsoever in those countries as a result of SSM. You won't find any. There are none in Massachusetts.

So how long do these places have to have SSM before you will agree there are no problems arising?
4.24.2009 12:01pm
Richard Aubrey (mail):
"Point to a negative effect."? You must be joking. That would bring sure and certain accusations of homophobia.
BUt you had that ready to go, didn't you?
4.24.2009 12:09pm
Oren:


If you find that tacky, then don't make arguments about whether the parts fit.

Randy, the term complementarity is not limited to physical compatibility of the genitals. You know that. We know that you know that. If you want to address (what I think is a silly) argument, do so on the merits.
4.24.2009 12:37pm
trad and anon (mail):
Randy: thanks for explicating my point.
Mac, Perseus and others have amply pointed out that men and women are not the same, regardless of what roles they play and what legal equality they may have or lack in any society or legal system.
I agree that men and women are not the same. This is why I'm gay rather than bisexual.
Marriage is a social institution recognized by law, and has -- by definition -- been between a man and a woman.
These arguments by definition are completely circular. What about those of us who disagree with your definition?

I do agree that marriage used to be seen as inherently a relationship between some number of men and some number of women [1] until fairly recently. When I was a kid, I had a book of logic puzzles, which included some of the "couples seated around a table" variety. "A and B are married" was used to convey that A and B were of different sexes, because the idea of a same-sex marriage was seen as a contradiction in terms, like a four-sided triangle.

But that is true no longer. As a matter of ordinary meaning among laypeople, definitions change: that's how language works. The question for the law is which definition is better, which is a matter of substance. A lot of people found the idea of marital rape incoherent when feminists first proposed banning it. That wasn't actually a good reason to oppose banning marital rape, even though it involved eliminating words ("not his wife") from the legal definition of rape.

[1] 40 years ago, polygymy was seen as immoral, but not as a logical contradiction. People wouldn't have put scare quotes around "marriage" when describing the relationship between a Saudi man and his three wives. I don't think they would have used scare quotes in describing the relationship between a woman and her three husbands in a society that practiced polyandry either, though there have never been many of those. (Do any even exist today? I've never heard of one.)
4.24.2009 12:42pm
cmr:
Not really. It is the anti-gay crowd that continually says homosexuality isn't 'natural' and so there fore should be disapproved. First, homosexuality can be found in most mammalian speicies, and many others as well. Second, it has existed in every culture in every time period for humans. So, yes, it's as natural as lefthandedness or cleft chins.


Well, I haven't gone there, and I don't think Perseus meant that either. Homosexual behavior has been found in different species, but it's rare if not entirely non-existent for there to members of those species to be singularly homosexual. I'd say much of the unnatural claims come from the way in which they express their love sexually. But, yeah, I don't know.

So then the anti-gay crowd has to say that sex is only for reproductive purposes, and with gays, 'the parts don't fit.' This was the heart of Jake1's argument about the complementary nature of men and women.

Tradeananon was merely saying that yes, the parts do fit, and fit very well. In fact, the parts fit just as they do with opposite couples.


Do you really believe that, or are you just kind of hoping it's true, you know, scientifically speaking?

If you find that tacky, then don't make arguments about whether the parts fit. If Jake or you continue, we might have to send you some photos to prove just how well they fit. I have quite a few -- do you want any? For research purposes, only, to be sure.


I'd say both of you have missed the point of the criticism, which is not unlike people missing the point about the "the sky is going to fall"-type forecasts of SSM being legalized.
4.24.2009 12:44pm
trad and anon (mail):
Randy, the term complementarity is not limited to physical compatibility of the genitals. You know that. We know that you know that. If you want to address (what I think is a silly) argument, do so on the merits.

I wouldn't have seen it necessary to pointedly address that "silly" argument if I hadn't seen it made so many times.
4.24.2009 12:44pm
Yankev (mail):

But I'm not making analogy to the changing roles of men and women, I'm making reference to the fundamental, definitional, change in the meaning of marriage in the past ~200 years as it pertains to the roles of men and women in marriages.
At varying times, in various places, and to varying degrees. As on example, I seem to recall that Roman law allotted significant indepence to married women, including the right to own and control property. But the one constant was the union between a man and a woman.


That is to say, marriage used to have a meaning that encoded a particular relation between the genders.
Precisely, between the genders, although I would have said between the sexes, unless we are discussing a marriage of words. But Webster's says that I have already lost on that one.

Now it has a different one. Something changed in marriage during the intervening time that reflects the broader change
But is still marriage, and is still between the genders.


the term complementarity is not limited to physical compatibility of the genitals. You know that. We know that you know that. If you want to address (what I think is a silly) argument, do so on the merits.
Of course, Randy R knows it, and of course so does Trade and anon. But if one's view of marriage is based on personal gratification, one has little else to go on. Historically, heterosexuals who viewed marriage as a means for their own personal gratification did not fare well, and neither did their spouses. The "me generation" has expanded into the me generations, and the number of divorced, never married, serially married perpetually adolescent adults is one symptom, as is the out of wedlock birth rate --- approaching, according to Armstrong Williams, 40%. I agree with SSM advocates that the main threat to marriage is not from SSM; in my opinion, it is from the perpetual irresponsible and selfish orientation encouraged by our popular culture. But I see the push for SSM as a symptom of this orientation.
4.24.2009 12:52pm
trad and anon (mail):
Homosexual behavior has been found in different species, but it's rare if not entirely non-existent for there to members of those species to be singularly homosexual. I'd say much of the unnatural claims come from the way in which they express their love sexually. But, yeah, I don't know.

I've always found arguments that we should or shouldn't do something because they're "natural" or "unnatural" somewhat bizarre. Animals do all kinds of horrible things to each other: they eat their mates after sex, they cheat on their "mates for life," they abandon their young at birth. . . . Why we would want to take them as a guide to what we should or shouldn't do is wholly beyond me.

Tradeananon was merely saying that yes, the parts do fit, and fit very well. In fact, the parts fit just as they do with opposite couples.

Do you really believe that, or are you just kind of hoping it's true, you know, scientifically speaking?

As I mentioned above, I have done plenty of experiments concerning precisely this issue. My findings are that they do.
4.24.2009 1:00pm
Yankev (mail):
Trade and anon, the fact that a desire to engage in given behavior may be natural, or that it may occur even in societies where that behavior is discouraged or even banned, does not make the behavior moral, healthy for the participants, or good for society. Many men have an urge to have sex with as many females as possible. Some men have an urge to have sex with unconsenting females or with children. Some people have an urge to take what belongs to others. Some are willing to take human life without justification, or for reasons that seem justified only to them.

Asserting that any and all conduct that occurs in nature is permissible is simply advocationg that people behave like animals. The right to act like an animal is not a right that I feel bound to protect.
4.24.2009 1:04pm
cmr:
I've always found arguments that we should or shouldn't do something because they're "natural" or "unnatural" somewhat bizarre. Animals do all kinds of horrible things to each other: they eat their mates after sex, they cheat on their "mates for life," they abandon their young at birth. . . . Why we would want to take them as a guide to what we should or shouldn't do is wholly beyond me.


Randy R. mentioned the example; I just contextualized it.

As I mentioned above, I have done plenty of experiments concerning precisely this issue. My findings are that they do.


Irrespective of your, um, experimentation, the idea that homosexuality is unnatural isn't just anti-gay bigots running off at the mouth. Nor is it a folly of Christian science.

Because you can do it and get away with it doesn't make it a good idea, nor does it make it natural (if that sort of thing even matters to you).
4.24.2009 1:05pm
Oren:

But is still marriage, and is still between the genders.

Why is it that changing one aspect of an institution preserves its essence but changing another aspect destroys its essence?

This question applies to any pair of changes, but is more poignant in the case of marriage where the former change seems to me much more fundamental and deep whereas the second change seems to me much less so (the subjectivity of judgment is conceded).
4.24.2009 1:10pm
Oren:

Because you can do it and get away with it doesn't make it a good idea, nor does it make it natural (if that sort of thing even matters to you).

Nor is because it's natural does it make it a good idea and, conversely just because it's unnatural, doesn't make it a bad idea.
4.24.2009 1:12pm
Oren:
(I note that Yankev said exactly that a few minutes ago, my apologies for recapitulating).
4.24.2009 1:12pm
Yankev (mail):

Because you can do it and get away with it doesn't make it a good idea, nor does it make it natural (if that sort of thing even matters to you).
cmr, I agree, but again, any justification of something simply because it's "natural" assumes that human beings have no obligation to overcome the animal part of our nature.

trade and anon

they eat their mates after sex
As Walt Kelly's Porkypine said (as best I recall, but this is from memory and may not be the exact wording), "Any man what marries a black widder spider has got to expect a certain amount of trouble. Personal, I is always been able to keep my passion for lady spiders under control."
4.24.2009 1:14pm
trad and anon (mail):
Asserting that any and all conduct that occurs in nature is permissible is simply advocationg that people behave like animals. The right to act like an animal is not a right that I feel bound to protect.

I think you've got me backwards. I was making the same point you are. If we accepted animals as a guide to moral conduct, we'd have to reject written language (which animals don't do) and accept rape (which they do).

Whether something is "natural" is completely irrelevant to whether or not we should do it.
4.24.2009 1:15pm
cmr:
Nor is because it's natural does it make it a good idea and, conversely just because it's unnatural, doesn't make it a bad idea.


I never will understand the self-identified urge to state the opposite of what someone else says without making an argument to go along with it.

cmr, I agree, but again, any justification of something simply because it's "natural" assumes that human beings have no obligation to overcome the animal part of our nature.


My point doesn't contradict that. I'd say that because you can have different kinds of sex and feel great about it afterward...isn't really refuting what people mean when they claim homosexuality is unnatural. It still may not matter, but at least addressing their point would keep things intellectually honest.
4.24.2009 1:21pm
trad and anon (mail):
My point doesn't contradict that. I'd say that because you can have different kinds of sex and feel great about it afterward...isn't really refuting what people mean when they claim homosexuality is unnatural. It still may not matter, but at least addressing their point would keep things intellectually honest.

I think I'm failing to grasp what what you mean when you say homosexuality is "unnatural." Could you just explain what you mean by that in more detail, and why we should care?
4.24.2009 1:32pm
Yankev (mail):

Why is it that changing one aspect of an institution preserves its essence but changing another aspect destroys its essence?
Yes, I wondered that myself the time I tried making chocolate cake with pebbles instead of chocolate.
4.24.2009 1:33pm
Yankev (mail):

I'd say that because you can have different kinds of sex and feel great about it afterward...isn't really refuting what people mean when they claim homosexuality is unnatural. It still may not matter, but at least addressing their point would keep things intellectually honest.
I think that you and I agree more or less. "Natural", of course, can have many meanings or shades of meaning, and gives people the opportunity to equivocate. Removing the argument over what is natural removes the opportunity to use arguments over what is and is not natural in order to distract from the discussion.

RanyR seems to focus on whether conduct is natural. I agree with trade and anon on one point at least -- nature is not a justification. Natural or not, I see no need to advocate the right to behave like an animal.
4.24.2009 1:41pm
trad and anon (mail):
Yes, I wondered that myself the time I tried making chocolate cake with pebbles instead of chocolate.

On the other hand, making chocolate cake with margarine instead of butter still produces chocolate cake, though it's not as good. You can substitute soymilk for the milk too, though you end up with the same problem (too much soy flavor). You can make it with cocoa powder instead of chocolate as well, though you need completely different recipe.

IMHO chocolate cakes made with cocoa powder aren't as good as chocolate cakes made with chocolate either, but that's a matter of taste.
4.24.2009 1:54pm
trad and anon (mail):
Also, pancakes made with soymilk are just as good as pancakes made with cow milk. Pancakes made without butter and eggs (I had to do this once when I had a vegan houseguest) are a pale imitation of the real thing. But whichever way you do it, they're still pancakes.
4.24.2009 1:58pm
Mac (mail):
"Man is not woman" is no more profound that "white is not black" or "1 is not 0".

Oren,

I disagree. Your saying it, does not make it so.

Given the downward turn in the tone of this discussion, I again thank you, Oren, for keeping it elevated prior to certain posters happening on the scene and commend you once again for attempting to keep the discussion from spiraling downward into a nasty caldron of name calling and incivility.

Yankev wrote,


The "me generation" has expanded into the me generations, and the number of divorced, never married, serially married perpetually adolescent adults is one symptom, as is the out of wedlock birth rate --- approaching, according to Armstrong Williams, 40%. I agree with SSM advocates that the main threat to marriage is not from SSM; in my opinion, it is from the perpetual irresponsible and selfish orientation encouraged by our popular culture. But I see the push for SSM as a symptom of this orientation.


Well said and very true.

I will point out that marriage, as an institution, has been on the decline in Europe since SSM was instituted. Cause and effect? I think likely, but time and reflection backwards at some time in the future is probably necessary to fully determine that.

To those who say there is not harm done. We don't know that. It will take time and, at least, several generations to know that. Currently, no scientist in his right mind would dare publish anything to suggest there are negative consequences to SSM to society or children. That is one of the many negative side effects of politicizing science as we now do.
4.24.2009 2:01pm
Richard Aubrey (mail):
Mac. Ref yr last graf.
Absolutely.
4.24.2009 2:03pm
trad and anon (mail):
Given the downward turn in the tone of this discussion, I again thank you, Oren, for keeping it elevated prior to certain posters happening on the scene and commend you once again for attempting to keep the discussion from spiraling downward into a nasty caldron of name calling and incivility.

OK, fair enough. I'll make more of an effort to keep the tone elevated.
I will point out that marriage, as an institution, has been on the decline in Europe since SSM was instituted. Cause and effect? I think likely, but time and reflection backwards at some time in the future is probably necessary to fully determine that.

There are four European nations that license SSM: the Netherlands (legalized April 1, 2001), Belgium (January 30, 2003), Spain (July 3, 2005) and Norway (January 1, 2009). Sweden will license SSM starting a week from today. France also recognizes foreign same-sex marriages (July 11, 2008), but does not license such marriages itself. Can you specify what your evidence that marriage has been on the decline in those nations? I think marriage has generally been on the decline in Europe for a long time, so it's probably still on the decline in those nations, but is there really evidence that it started declining faster since they started performing/recognizing SSM? I've never heard of any such evidence.
4.24.2009 2:23pm
Richard Aubrey (mail):
trad and anon.
What would you do if you did hear of such evidence, and found it difficult to reproach?
4.24.2009 2:33pm
trad and anon (mail):
What would you do if you did hear of such evidence, and found it difficult to reproach?

It would depend on what the evidence was. I doubt it would matter to me personally unless the evidence strongly indicated that SSM had lead to very serious negative consequences. But since the existence of weaker evidence, or lack thereof, is important to others, no rule prevents me from making the argument anyway. And since no such evidence exists, afaik, my hypothetical reaction is completely irrelevant.

Are libertarians who believe in freedom of contract as a matter of moral right thereby prohibited from arguing that freedom of contract leads to positive consequences? I think not.
4.24.2009 2:52pm
Yankev (mail):

Also, pancakes made with soymilk are just as good as pancakes made with cow milk. Pancakes made without butter and eggs (I had to do this once when I had a vegan houseguest) are a pale imitation of the real thing. But whichever way you do it, they're still pancakes.
That was more or less the point I was making. You can change certain elements of a mix and end up with something that can be called by the same name as the result of another mix. But if you change other elements of the mix, you end up with something fundamentally different. That is why I found Oren's reliance on changes in the institution of marriage to be unpersuasive.

To take another analogy, before I started kindergarten I thought a peanut butter and jelly sandwich was made with smooth peanut butter, challah, and jelly. I did not know there was crunchy peanut butter, and my mother did not buy jams, preserves, or any bread other than challah or occassionally rye or pumpernickel (which makes lousy pbj). Since then I have enjoyed pbj with crunchy peanut butter, or smooth, or unhomogenized, any variety of breads, and an array of jams, jellies, preserves or fruit spreads -- sometimes two or more in the same sandwich. All are PBJ.

But if you substitute one or more jellies, fruit spreads or preserves for the peanut butter, what you end up with is not PBJ.

Cf George Orwell, there are times when it is the duty of every honest person to state the obvious.

PBJ may not appeal to you. You may prefer jelly only, peanut butter only, or just two slices of bread. You may even be allergic to pbj. But I am not discriminating against you by pointing out that your sandwich is not pbj, and I do not care to be sanctioned for refusing to call it pbj. And if government decides to encourage pbj due to a reasonable belief that pbj benefits society in ways that your jam sandwich does not, I see no reason to feel guilty over that decision.
4.24.2009 3:07pm
John Moore (www):

That is to say, marriage used to have a meaning that encoded a particular relation between the genders. Now it has a different one. Something changed in marriage during the intervening time that reflects the broader change.

What has never changed is the hetero meaning of marriage: mal + female (numbers vary).

First, you fear that homosexuality is a choice. Well, it isn't -- just any gay person!

Since sexual preference is a continuum, it is definitely a choice for *some*. Furthermore, in centuries past, pure homosexuality was much more rare, with those engaging in homosexual acts also engaging in heterosexual acts with resulting offspring.

For females, sexual preference appears to be far more fluid.

So perhaps we should allow SSM for males who prove they cannot get sexually aroused enough by females to complete the sexual act, and otherwise tell them to get a wife?
4.24.2009 3:13pm
Mac (mail):
trad and anon,

i already admitted that it is probably too early to call the decline of marriage in Europe a cause and effect with SSM. I have read the statistics numerous times, but don't have them at my fingertips. Must get busy, (life calls, dang it) but time permitting, I'll see what I can find.

Re the natural, unnatural debate. I think it is more appropriate to frame it as normal and abnormal. Let me hasten to add that by abnormal i mean no approbation or disrespect to any homosexual. I use abnormal only in the scientific term of a bell curve in which heterosexual, by population numbers, is the norm and homosexuality is abnormal as it falls on the edges of the bell curve. OK?


Darwin has pretty convincingly demonstrated that the primary instinct of every species is to survive and recreate it's species. That is nature. I understand the want of homosexuals to marry, but a serious question is can a society institutionalize a practice that is "abnormal" and survive? Even though homosexuality is found in nature it contributes nothing to the propagation of the species. From this standpoint, also, I disagree with Oren that there is no inherent difference between the various permutations of marriage found through the ages and the sex of the participants. The human species has found marriage to be the best way, it would seem since it is quite universal in some manner throughout different cultures and times, to propagate the species. Thus, it is not a false argument to be concerned about the effects on our children. I never said that sexuality was not programed from birth, although I don't think we know that as an incontrovertible fact. But even if it were, that does not mean that sexual orientation can't be influenced and changed, especially in teen years when there is so much confusion. Therefore, SSM may not be very good for society. You have no way of knowing that it will not be harmful. You should at least admit that you are rolling the dice and are willing to do so. Others may not want to roll the dice. There is nothing evil in either position.

Randy R., I am sure your 8 year old niece is a delightful young lady, but her acceptance of you (which is something everyone (well almost) would wish for, has nothing to do with the overall argument. She is anecdotal to the discussion and not even grown, yet. As to whether or not SSM is good or harmful to society, we don't know.

If schools could just ignore the entire subject and leave it to parents, I may very well be more inclined to approve of SSM. But, they won't. Therefore, until we are sure, and we do have Europe to study, I am not willing to roll the dice.

And, I have no faith that religious or personal objections will be allowed. Yankev is correct in that our society has become very selfish. It is an "I want what I want because I want it and to hell with everyone else" society that we live in. Equally disturbing is that all must accept the idea. Objections are not allowed. If you study our history, the Puritans were far more tolerant of dissent and dissenters that we are today.

It is or should be a free country. I should not have to accept that it is a good idea. And, it is not the same as the civil rights struggle. There is no question but that the Constitution covered all men. There is no great reach to demonstrate that right and to prohibit discrimination based on race. Where you would find in the Constitution a right to SSM, I don't know, but it is a great reach and not at all evident.


Oren,

Thank you for the reductio ad absurdum explanation. I was looking for some esoteric new acronym. No, it is not very contemporary, but I do understand it far better than I do many modern shortcut inventions.
4.24.2009 3:24pm
trad and anon (mail):
I think it is more appropriate to frame it as normal and abnormal. Let me hasten to add that by abnormal i mean no approbation or disrespect to any homosexual. I use abnormal only in the scientific term of a bell curve in which heterosexual, by population numbers, is the norm and homosexuality is abnormal as it falls on the edges of the bell curve. OK?

I don't believe you. "Normal" is an interesting term in that it pretends to be wholly statistical, but actually reflects a normative judgment. How many people play bridge regularly? Very few. Does one say that regular bridge players are "abnormal"? No. Likewise with people who attended a college that rejects more than three-quarters of its applicants. Or regular golfers.

How does the number of Jews compare to the number of gays and lesbians? They're about the same. Does one therefore call Jews "abnormal"? No. You would be called antisemitic if you did. Why? Because "abnormal" reflects a value judgment: a negative one.

There are a lot of terms you could use for a group that comprises 2-4% of the population, or less. Unusual. Uncommon. Rare. Exceptional. But you didn't use those.

When you say you don't intend a negative value judgment, I simply don't believe you.
4.24.2009 3:59pm
John Moore (www):
How about biologically dysfunctional?
4.24.2009 4:18pm
Perseus (mail):
Well, I haven't gone there, and I don't think Perseus meant that either.

No, I didn't, and Randy should know better by now the difference between how positivistic modern science and teleological metaphysics define natural.

trad and anon: Don't worry, I would never ask a woman to suffer the presence of someone with such uncouth manners.

As to your point, no matter what positions are assumed, same sex couplings are inherently sterile. It is thus no great surprise that the widely differing forms of marriage throughout history have included members of the opposite sex.
4.24.2009 4:31pm
cmr:
I think I'm failing to grasp what what you mean when you say homosexuality is "unnatural." Could you just explain what you mean by that in more detail, and why we should care?


What I think people mean when they say homosexuality is unnatural is, well, I hate to be graphic, but the primary way two men have sex is unnatural. The rectum isn't meant for external penetration. Diseases and bacteria are much more easily spread rectally (which might be why men who have sex with men make up over 2/3 of all men with HIV/AIDS, and they're one of the highest at-risk groups) and even using lubricant, it's harder to apply within the rectum. This could lead to any number of problems like anal fissures, leakage, pro-lapse, rectal tearing, etc. Even oral sex can be dangerous and unhygienic. That's not to mention other more deviant forms of pleasure like fisting and what-not. I could go on, but maybe you get the picture.

Plus, I don't think too many people would consider what two women do together as sex, but your mileage may vary.
4.24.2009 5:01pm
Oren:



Why is it that changing one aspect of an institution preserves its essence but changing another aspect destroys its essence?



Yes, I wondered that myself the time I tried making chocolate cake with pebbles instead of chocolate.

Indeed. I would say, however, that once you've accepted the substitution of pebbles for chocolate, you are under a much higher burden when you say that substitution of gravel for flour is contrary to "traditional cake" (unless, of course, you also reject the first substitution as well). That is to say, I don't see a consistent way to say that it's ok to substitute gravel for flour but not ok to substitute pebbles for chocolate.
4.24.2009 5:57pm
Oren:

and the number of divorced, never married, serially married perpetually adolescent adults is one symptom

Why call them a symptom? Perhaps the never married prefer it that way (after all, they have voluntarily chosen that path)? At least by my religious teachings, respect for God means respect for the fact that he gave every man sechel (rough trans: discernment) to make his own choices.


That was more or less the point I was making. You can change certain elements of a mix and end up with something that can be called by the same name as the result of another mix. But if you change other elements of the mix, you end up with something fundamentally different. That is why I found Oren's reliance on changes in the institution of marriage to be unpersuasive.

Depends on the magnitude of the various changes. I still believe that the wholesale transformation of marriage from a social structure devoted to maintaining particular power relationships into a mutual one added and removed so many previously-integral parts of the mix that, by your standard, we should not call the modern institution marriage at all.

Power was taken out, mutuality was added in. Those ingredients seem to me much more fundamental than jam versus jelly versus preserves versus homosexual versus heterosexual.
4.24.2009 6:05pm
Oren:


Darwin has pretty convincingly demonstrated that the primary instinct of every species is to survive and recreate it's species.

And, naturalists have convincingly demonstrated that the instinct to natural survival, in many species, drives same-sex coupling or even abstinent behavior.

The brief version of the argument goes something like this: if each offspring is expensive (food &time) and there will be stiff competition for a very fixed resource (food, limited nesting sites) in the next generation such that only a small fraction will successfully mate THEN it makes sense for some individuals to forgo attempting to to mate on his own (which has low chance of success) in favor of helping their parents raise their siblings (or helping their siblings raise their nephews &nieces) because those children will be much more fit (having had much more food &attention as youngsters). The "gay uncles" thus perpetuate the gay gene because their siblings/siblings' children (who also carry the gay gene) are more successful.

In time, the families with the "gay gene" (but not too much of it, of course) will come to dominate the species. This has been observed, primarily in sea-birds that live on islands with very limited number of nesting spots, thus increasing the incentive for each youngster to become a nanny instead of attempting to fight a more mature bird for a nesting site.
4.24.2009 6:15pm
Mac (mail):


I don't believe you. "Normal" is an interesting term in that it pretends to be wholly statistical, but actually reflects a normative judgment.



trad and anon,

Here, at the end of my post, is a definition of normal as it relates to the bell curve. I believe you know this and choose to take offense even though I was perfectly clear as to my meaning. I see below they use the term "outlier" rather than abnormal compared to normal. No doubt this is a more PC term today in science when people are so scientifically ignorant that abnormal has taken on negative connotations as when used by people such as yourself to take offense when none is intended. I suppose, also, the vast number of people who ate completely ignorant of science today may not know what normal and abnormal mean related to statistics and the bell curve. I made a statement of fact as it relates to statistical numbers. Your assertion that

"Normal" is an interesting term in that it pretends to be wholly statistical, but actually reflects a normative judgment.


is false and I am bewildered as to why you would not believe me. I am certainly not in the habit of writing anything that I do not mean. Where ever did you get the idea I am lying?

I am afraid I studied these things at a time, not all that long ago, when the terms were normal and abnormal. I see here they use normal and outlier. I am happy to use outlier rather than abnormal, especially if it perhaps would eliminate discussions such as this, even though they mean the same thing statistically and scientifically speaking.

I fear that offense where none is intended are what people do nowadays when they do not want to think and rationally respond to valid points. I made it perfectly clear that "the norm" and "abnormal" to which I referred are scientific terms, not remotely or in any way a judgement term. It is by definition in science a scientific term to describe a scientific result of a real world measurement. "Judgement" would be anathema to this world of science. I was aware of the other definitions of "abnormal" and "normal" but, you seem like a smart, educated person and I did not think you could possibly misconstrue my clearly stated meaning especially since I took such great pains to clarify and define the terms. I assumed you knew what a bell curve was and how it is used. Perhaps, I was wrong. To suggest any "judgement" in this situation only bolsters my prior statements about science becoming politicized and scientific results becoming politically correct statements rather than accurate statements about the world around us.

Definition of bell curve:


I

n probability theory and statistics, the normal distribution or Gaussian distribution is a continuous probability distribution that describes data that clusters around a mean or average. The graph of the associated probability density function is bell-shaped, with a peak at the mean, and is known as the Gaussian function or bell curve.
The normal distribution can be used to describe, at least approximately, any variable that tends to cluster around the mean. For example, the heights of adult males in the United States are roughly normally distributed, with a mean of about 70 inches. Most men have a height close to the mean, though a small number of outliers have a height significantly above or below the mean. A histogram of male heights will appear similar to a bell curve, with the correspondence becoming closer if more data is used.
For theoretical reasons (such as the central limit theorem), any variable that is the sum of a large number of independent factors is likely to be normally distributed. For this reason, the normal distribution is used throughout statistics, natural science, and social science[1] as a simple model for complex phenomena.
4.24.2009 6:22pm
Oren:

I made it perfectly clear that "the norm" and "abnormal" to which I referred are scientific terms, not remotely or in any way a judgement term.

Then, "normal" for mammals is a small percentage of latent homosexuality.
4.24.2009 6:25pm
Mac (mail):
Oren,

I think you are getting pretty far afield now.

Also, at time of scarcity or other stress, more offspring are produced, if possible, by the remaining members of the species, not less. In regards to people, my father's generation and those before him, had very large families as the likelihood of all surviving was very remote due to disease, etc. As a response to good times, we are having fewer offspring (in the first world) as there is great likelihood that most will survive, so there is less need to produce more. In the third world, more children are produced as the people are under stress from famine and disease etc. and they produce more to compensate for the likely loss of some of their children.
4.24.2009 6:33pm
Mac (mail):
Oren wrote:

Then, "normal" for mammals is a small percentage of latent homosexuality.



Well, yes that is true. But, not true for the word "normal" for mammals in terms of a bell curve.
4.24.2009 6:38pm
trad and anon (mail):
Here, at the end of my post, is a definition of normal as it relates to the bell curve. I believe you know this and choose to take offense even though I was perfectly clear as to my meaning. I see below they use the term "outlier" rather than abnormal compared to normal. No doubt this is a more PC term today in science when people are so scientifically ignorant that abnormal has taken on negative connotations as when used by people such as yourself to take offense when none is intended.

I have never seen "abnormal" used as a term of art in statistics. But if it was once used as a term of art, and you used it in that sense because that's the term that was used when you studied it, then you are forgiven.
4.24.2009 6:56pm
Mac (mail):
trad and anon,

Thank you.
4.24.2009 7:03pm
whit:

The analogy is entirely apt. First, of course, there was a long history of barring interracial marriage and general discrimination against blacks.



i support gay marriage fwiw.

but the analogy is NOT apt.

interracial marriages have existed for CENTURIES. laws against interracial marriages were instituted as a restriction on "classical marriage" which has included interracial marriage. for centuries. mariage evolved as an institution melding two biologically distinct creatures (men and women) with complementary sex organs and whose sexual union has a procreative function. there is nothing in the distinctive biology of whites, blacks, asians, etc. that goes against the reason why marriage evolved in the first place.

same sex marriage IS a whole redefinition of marriage. i am FOR it, but it is in no way an apt analogy. we are now saying that people of the same sex, should be able to form the same union. a union of man-man and woman-woman is biologically a completely different thing than a union of opposite (or complementary sex if you prefer that) sex as any student of anatomy, biology, or physiology can tell you.

it is a STUPID analogy, and as much as i support gay marriage, i dissent against anti-historical and anti-scientific analogies like this.
4.24.2009 7:42pm
Mac (mail):
whit,

Wow It is a rare person in this day and age who can recognize the fallacy in an argument even though it favors their own position. This has, overall, been an incredible post in terms of thought and respect for a diversity of opinions.
4.24.2009 8:02pm
Oren:



Also, at time of scarcity or other stress, more offspring are produced, if possible, by the remaining members of the species, not less.

Only for n-selected species. For species in which it is favorable to have a small-number of very-well-cared-for-offspring instead of a large number of marginally-cared-for-animals, it often pays to move family members from breeding into babysitting. In many cases, the additional calories spent on another child would be wasted by having both die, instead of concentrating on a single, fit, youngster.

Incidentally, what you say is also just factually wrong. Many sea-birds will lay 3 eggs in the spring and then, if the fishing turns out poorly, intentionally starve one or even two rather than raise 3 weakling chicks.
4.24.2009 8:42pm
Oren:

As a response to good times, we are having fewer offspring (in the first world) as there is great likelihood that most will survive, so there is less need to produce more.

There is another important factor -- in the first world, effort put into a child can pay off much more than in the third world, since his maximum possible achievement is considerably higher than his average possible achievement (i.e. we are a society that rewards genius, and hence tip the balance from quantity to quality).
4.24.2009 8:43pm
Oren:


same sex marriage IS a whole redefinition of marriage.

Even moreso than the feminist revolution in marriage? I still can't swallow it.

Marriage before 1950: Man + Woman + Power.
Marriage after 1980: Man + Woman + Mutual Benefit.
Marriage after 2004 (here in MA, YMMV, check your local statutes): Man + Man + Mutual Benefit.
4.24.2009 8:45pm
John Moore (www):
Oren:

Even moreso than the feminist revolution in marriage? I still can't swallow it.


Oren, surely you cannot mean that seriously.

Marriage, throughout history, across cultures, has been heterosexual. I know of nothing more common to marriage than that. OTOH, as other posters have pointed out, the power relationships have varied all over the place.

It is blindingly obvious that SSM is an unprecedented redefinition of M, a change so complete as to remove any connection between the term and its long term historical meaning.
4.24.2009 9:08pm

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