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DOJ Brief in Another DOMA Case:

Today the DOJ filed its motion to dismiss in another case challenging the Defense of Marriage Act, Gill v. OPM, pending in a Massachusetts district court.

It argues that DOMA is constitutional because (1) there is no basis for applying heightened scrutiny to the denial of federal benefits to same-sex couples married in Massachusetts, and (2) DOMA is rationally related to the federal interest in preserving the status quo and in following longstanding practices while letting states experiment with same-sex marriage. It comes close to explicitly asserting that tradition itself -- without more -- is a sufficient justification for a classification on rational-basis review, where there is a presumption of constitutionality. I may have more to say about it later, but for now I don't see anything very surprising in the brief.

matthewccr:
Sounds a lot like Orin's argument from earlier this week.
9.18.2009 2:08pm
rick.felt:
It comes close to explicitly asserting that tradition itself -- without more -- is a sufficient justification for a classification on rational-basis review

That's one prong of the argument, which as matthewccr pointed out, Oren discussed earlier this week.

I find the other prong to be perhaps more interesting for purposes of federal law. I'm intrigued by the idea that federalism itself provides rational basis for a federal law.
9.18.2009 2:27pm
Randy R. (mail):
Why not just say that it's legal because the legislature says it is?
9.18.2009 2:36pm
Scape:
I'm not buying the brief's attempt to defend DOMA by posing as a champion for federalism. The parts of DOMA at issue in the case are not really about allowing each state to choose how it will handle marriage laws -- but rather about the federal government's ability to choose which states' laws it will respect and which states' laws it will choose to simply ignore. That doesn't sound like "states' rights" in my book.

I'm highly skeptical of the idea there's a constitutional right to gay marriage, but DOMA presents a rather different problem. It's not about whether the right is constitutionally mandated; it's a about where the right does in fact exist in certain states, and the federal government is simply choosing to ignore it based upon the genders of the parties to the contract.
9.18.2009 2:38pm
John Howard (eggandsperm.org) (mail) (www):
How much money and time and energy is wasted on these irrelevant cases?

Everything will have to be re-decided when we finally look at the issue of same-sex conception. All of these decisions assume that it is and always will be legal to attempt to conceive with someone of the same sex.

Dale - care to speculate on how things might be different if there was a federal law prohibiting same-sex conception?
9.18.2009 2:40pm
John Howard (eggandsperm.org) (mail) (www):
It's time to enact the Egg and Sperm Civil Union Compromise, it's the only acceptable solution. It prohibits creating people that are not from a man and a woman's unmodified egg and sperm, it affirms that all marriages protect the couple's right to conceive together using their own genes, and it recognizes state Civil Unions that are defined as "marriage minus conception rights" as if they were marriages at the federal level.

All three of those laws are needed, and opposing any of them would be really radical and inexplicable.
9.18.2009 2:47pm
Malvolio:
I'm not buying the brief's attempt to defend DOMA by posing as a champion for federalism.
I am, at least a little.

There's no way to dodge the federalism problem entirely. If two dudes can marry each other in Massachusetts (and I gather they can), eventually two married dudes from Massachusetts are going to wander out to Utah or some other God-forsake (so to speak) place, and want to be treated as married. At that point, a Federal judge is going to have to do something, even if that something is nothing (and that's what DOMA says: judge, do nothing; if those two gay dudes are dumb enough to move to Utah, they are SOL.)

DOMA might even be good for gay marriage. Remember how much out-of-state money was spent in California supporting Prop 8? Think of how much more money would be spent if a gay marriage in Marin would inevitably lead to gay married couples in Provo.

Kinda ironic, really. Without DOMA, the antis (who undoubtedly supported DOMA) probably could have gotten enough funding to get it thrown out of even Massachusetts. As it is, there are now several safe laboratories that can demonstrate that there is no authentic parade of horribles to threaten voters in other states.
9.18.2009 3:02pm
Scape:
I sometimes suspect John Howard would fail a turing test. Even Eliza occasionally says something new and random, or at least appears to respond to you.

I don't think anyone here even disagrees with the idea that it ain't ethical to try and conceive a human in such a fail-prone way. But his insistence on "protecting conception rights" through marriage is baffling given that, at no point ever in our history, was there a requirement that you be married to reproduce (well, technically, I guess, fornication laws prohibited the act that most often leads to reproduction... but that's not reproduction per se). If a gay couple wants to try and splice their genes together, marriage ain't gonna have much to do with it.
9.18.2009 3:08pm
Mary Kay:
Is it just me, or was there some strategy behind having Letourneau as the second named plaintiff.
9.18.2009 3:09pm
RJ Moeller (mail) (www):
Hey I found your blog today and I really like what I see. I'll be sure to regularly stop in.

I am a 26 year old grad student from Chicago and I have a humble little blog of my own (A Voice in the Wilderness) and here's my latest piece:

rjmoeller.com...et-it-obama/

Keep up the good work. Thanks and God bless!
-RJM
9.18.2009 3:14pm
Scape:
Malvolio: I think I wasn't very clear, because I don't really disagree with you. DOMA does obviously have some serious federalism implications, I just don't think they're so relevant in this particular case. Whether or not the federal government can extend health benefits to a certain person based upon their entering into a contract under a state's law has very little to do with whether Utah will or will not recognize gay marriage. If anything, it's more of an anti-federalism move. If the feds are going to base their employment packages based on what arrangements people have entered into under state law, they shouldn't be able to randomly remove the primary benefits of the law for a certain segment of the population (i.e., gay federal employees).
9.18.2009 3:21pm
yankee (mail):
I find the other prong to be perhaps more interesting for purposes of federal law. I'm intrigued by the idea that federalism itself provides rational basis for a federal law.

I found this portion of the brief to be the most bizarre. This portion of DOMA has absolutely nothing to do with whether or not a given state recognizes same-sex marriage.
9.18.2009 3:22pm
einhverfr (mail) (www):
Does anyone know if DOMA applies to same-sex couples who achieved same-sex legal status after getting married (i.e where one member undergoes a sex change operation and legal change of gender after the marriage is officiated)?

If not, does that undermine the stated rational bases?
9.18.2009 3:25pm
einhverfr (mail) (www):
Noting too that some states might seek to avoid the transgender question by not recognizing a legal change-of-gender. But then if someone who had a legal change-of-gender that was not recognized in the state were to move there, then what? The state seems to be stuck between DOMA and the full faith and credit clause. It seems to me that from a DOMA perspective, additional laws would be necessary to avoid this dodge.
9.18.2009 3:36pm
badlaw (mail):
Not to take away from the policy argument over DOMA, but I wonder how this will work politically. This is a tough line to toe, but the truth is, people en masse are not going to understand the nuances of this issue should DOMA be repealed. They don't understand it now, anyway.

I think it threatens to make it more difficult for states to pass gay marriage into law, either by legislation or ballot initiative, because people will see this as being another poke in the eye. I hope it's not lost on people that DOMA was a response to the idea that Hawaii was going to legalize SSM back in 1996 (not saying this as an endorsement of it, just giving some historical context); most of the states that have banned SSM by statute or amendment came after MA legalized it, and even in an election year with massive gains by the Democratic Party and wins in blue states, three more states (including the biggest, most liberal state in the union, CA) managed to basically uphold the tenets of DOMA. I know most think this country is surely coming around on gay marriage, but I think that's because they hear more support than opposition within society and the media. But that's because most people have had the chance to vote on the issue, so the only ones left fighting the culture war are those who see it as a moral issue (i.e. the Religious Right). In most states that have voted on the issue, it's been relatively underreported and under-funded and never was a big issue.

Who knows how it will play out since several states have legalized it this year alone.
9.18.2009 3:50pm
einhverfr (mail) (www):
badlaw:

There are some rather difficult issues though that come with suddenly invalidating marriages without consent.

For example consider the following scenario:

Man undergoes sex change operation in state that doesn't recognize gender change and becomes a woman in many regards but not in law. He then marries a woman. Then they move to another state and he changes his gender legally. At what point does DOMA come into effect? I.e. does the state have the right to say "well, we would have considered him a woman there and therefore we can use DOMA?" Or does the FFC clause come into effect?

Secondly does the second part of DOMA suddenly prevent the federal government from recognizing the marriage at some point in this equation?

One option would be to look at common law and suggest that a marriage cannot be retroactively annulled just because of changing laws or circumstances (similar to the prop 8 challenge results). But if we go that route does that impact the Constitutionality of the FFC portion of DOMA and undermine any possible rational base for the federal recognition part?
9.18.2009 4:05pm
J. Aldridge:
I know most think this country is surely coming around on gay marriage, but I think that's because they hear more support than opposition within society and the media.

I think its because we hear more about court suits and how some some courts make you feel intolerant (or evil) if you might oppose SSM.

Tell a lie long enough and more start to believe it. Worked well for the NRA.
9.18.2009 4:06pm
Oren:

Tell a lie long enough and more start to believe it. Worked well for the NRA.

And, for matters not pertaining to objective reality, if enough people believe then it doesn't matter that it started out as a lie.


I don't think anyone here even disagrees with the idea that it ain't ethical to try and conceive a human in such a fail-prone way.

You can chalk me up in that group -- trying to conceive a human (say, by dipping your skin cells in calcium and passing a current through them) satisfies Kant's test.
9.18.2009 4:53pm
Tim Nuccio (mail) (www):

Why not just say that it's legal because the legislature says it is?


Because this is not England. We have constitutional rights here.
9.18.2009 5:07pm
Perseus (mail):
I'm not buying the brief's attempt to defend DOMA by posing as a champion for federalism. The parts of DOMA at issue in the case are not really about allowing each state to choose how it will handle marriage laws -- but rather about the federal government's ability to choose which states' laws it will respect and which states' laws it will choose to simply ignore. That doesn't sound like "states' rights" in my book.

States' rights and federalism are not the same. Federalism doesn't necessarily require that the federal government simply accept state laws. As is argued in the brief:

Under rational basis review, Congress is entitled to respond to new social mores one step at a time and to adjust national policy incrementally. DOMA reflects just such a response. It maintains the status quo on the national level and permits autonomy on the state level.
9.18.2009 5:14pm
einhverfr (mail) (www):
No answers relative to the transgender question?

Also I think the transgender question in at least some cases would have to meet more than rational basis review. Consider for example, if you end up with tax changes assessed by the IRS because of a change-in-gender. Or if you don't. Either way it seems that equal protection issues suddenly arise....
9.18.2009 5:33pm
John Howard (eggandsperm.org) (mail) (www):
Scape, I do try to make the point as simple and often as I can, so that people don't misunderstand it like you just did. Marriage should be for couples that we allow to procreate together, that we give approval and support for should they possibly procreate together, that we expect and respect the procreating together, etc. Under no circumstance should a marriage ever be prohibited from procreating together, from combining their own genes to make offspring. Same-sex couples should be prohibited from procreating together by a federal law (as you agree!? Thank you!) and so we should not allow a state to call them married or equal in rights to a marriage, because a marriage should never be prohibited from procreating together.
9.18.2009 5:37pm
Tim Nuccio (mail) (www):
And why is the state allowed to marry anyone? From where does it gain the authority to marry anyone?
9.18.2009 5:44pm
Steve:
If a married couple should never be prohibited from procreating together, then of course I don't agree there should be a law prohibiting same-sex couples from procreating together.
9.18.2009 5:45pm
Oren:

No answers relative to the transgender question?

There is an obvious answer -- lack of total effectiveness is never a disqualifying factor in rational basis review. Only in the higher standards does the efficacy of the law regarding its intended goal matter.
9.18.2009 5:49pm
Oren:
Anyone want to venture a reason why I'm not allowed to dip my skin in calcium and hook it up to a battery?
9.18.2009 5:50pm
John Howard (eggandsperm.org) (mail) (www):
Right, Steve, you've hit on the ramifications of supporting same-sex marriage: you either have to oppose a law on same-sex procreation, or you have to strip procreation rights from all marriages so that marriages can be prohibited from procreating together. Either of those outcomes is horrible. Both could very well result. The only way to protect the right of everyone to procreate naturally, with their own genes, and prohibit same-sex procreation, is to prohibit same-sex marriage.

Even Dale and Andy and Eugene know that I am right, that is why they never once have disputed or disagreed with me.
9.18.2009 5:54pm
Putting Two and Two...:

DOMA is rationally related to the federal interest in preserving the status quo and in following longstanding practices while letting states experiment with same-sex marriage


If they're shooting for experimentation, perhaps the feds should recognize SSM in some states and not in others, just to see if it makes a difference...
9.18.2009 5:56pm
yankee (mail):
The parts of DOMA at issue in the case are not really about allowing each state to choose how it will handle marriage laws -- but rather about the federal government's ability to choose which states' laws it will respect and which states' laws it will choose to simply ignore.

Yeah, that's why this "allowing experimentation" argument makes no sense. Section three has no impact whatsoever on whether or not the states can experiment with permitting or prohibiting same-sex marriage.

The "permitting experimentation" argument might provide a rational basis for section two, but it can't provide a rational basis for section three.
9.18.2009 6:11pm
grendel (mail):
Right, Steve, you've hit on the ramifications of supporting same-sex marriage: you either have to oppose a law on same-sex procreation, or you have to strip procreation rights from all marriages so that marriages can be prohibited from procreating together

Which China has already done by prohibiting persons to have an additional child in their second marriage if both spouses already have a child from their first marriage, so your point is what exactly?
9.18.2009 6:25pm
John Howard (eggandsperm.org) (mail) (www):
That we should preserve basic human rights here and not strip conception rights from marriage as China does (though even they still allow one child), we should preserve natural conception rights and not allow genetic engineering and same-sex conception.
9.18.2009 6:57pm
J. Aldridge:
And why is the state allowed to marry anyone? From where does it gain the authority to marry anyone?

Yeah, why is a state allowed to do anything anymore since whatever they do is unconstitutional! Gasp, why is there even states and state courts or even state constitutions?
9.18.2009 7:15pm
grendel (mail):
on a slightly different note, Maine allows first cousins to marry only if they are infertile I think. I'm guessing when the Maine legislators made that law back in some previous century I am guessing, they were explicitly separating marriage from natural conception. So really John, I don't see what the fuss is all about.
9.18.2009 7:17pm
John Howard (eggandsperm.org) (mail) (www):
Did marriage authority always rest in the Governor of the state, or did wedding ceremonies use to say "by the authority of the King" or "the Church" or what?

The authority comes from the police power to enforce fornication and adultery and abandonment and divorce laws. Those are still state police work here, not local cops or federal troops or agents.
9.18.2009 7:21pm
John Howard (eggandsperm.org) (mail) (www):
grendel, laws like that were an earnest but slightly misguided attempt at reasonable compromise. They didn't think of Civil Unions defined as "marriage minus conception rights" back then, which would have fit the bill perfectly. But those CU's weren't as necessary back then because those cousin marriages weren't explicitly prohibited from attempting to procreate together, it was merely assumed that they wouldn't (and if they did, the child would be legitimate and no big deal, other states would have let them do it anyhow). We can't assume that anymore with advanced technology. We can't let any state allow same-sex couples to attempt to procreate together.
9.18.2009 7:27pm
einhverfr (mail) (www):
John Howard:

Does lack of being married mean a lack of conception rights in this country?
9.18.2009 7:48pm
John Howard (eggandsperm.org) (mail) (www):
In my opinion, yes, people that are not married to each other do not have a right to have sex or conceive. I'm of course aware that people can do it without having a right to do it and without punishment.

But even if I agreed that there was now an actual declared "right" to conceive outside of marriage, what difference would it make to my points? None. I would still demand that all marriages continue to protect the couple's right to procreate together using their own genes, and that same-sex couples not be allowed to procreate together using their own genes. I make no demand to stop out-of-wedlock procreation, other than to say it is wrong in my opinion and states would be smart to remind people of that with fornication and adultery laws. If we don't, OK, it's a democracy.
9.18.2009 8:05pm
Genetically Challenged:
John Howard, should those opposite-sex couples who cannot conceive be stripped of marriage rights? Should we have screenings prior to marriage to ensure fertility?
9.18.2009 8:06pm
John Howard (eggandsperm.org) (mail) (www):
No, fertility is not required. It has nothing to do with ability to procreate, but with the right to procreate. Siblings have the ability and do not have the right. Same-sex couples have the ability with technology but should not have the right. Married couples that are infertile do not have the ability but do have the right to try. Same-sex couples and siblings shouldn't have the right to try.
9.18.2009 8:10pm
Genetically Challenged:
I'm asking this question honestly because this position simply confuses me...if one of the opposite-sex partners is factually infertile they cannot conceive naturally. They are not trying to procreate, so why should they have the "right to try" as you say? Should they be allowed to use technology that a same sex couple should not?
9.18.2009 8:18pm
athEIst (mail):
Obama said he was against SSM but he also said he believed DOMA unconstitutional. So why is his DOJ diligently working to find DOMA constitutional?
9.18.2009 8:48pm
ArthurKirkland:

In my opinion, yes, people that are not married to each other do not have a right to have sex or conceive.

What is the basis of the right (or lack of the right) to have sex or conceive?

Law?

Policy?

The Bible?
9.18.2009 8:51pm
Steve:
Right, Steve, you've hit on the ramifications of supporting same-sex marriage: you either have to oppose a law on same-sex procreation, or you have to strip procreation rights from all marriages so that marriages can be prohibited from procreating together. Either of those outcomes is horrible.

I don't see why the first option is horrible. If two people of the same sex can figure out how to procreate, God bless 'em I say.
9.18.2009 9:07pm
jrose:
I'm highly skeptical of the idea there's a constitutional right to gay marriage, but DOMA presents a rather different problem. It's not about whether the right is constitutionally mandated; it's a about where the right does in fact exist in certain states, and the federal government is simply choosing to ignore it based upon the genders of the parties to the contract.

In what ways do the arguments differ between a constitutionally-mandated right to same-sex marriage and a constitutionally-mandated federal honoring of same-sex marriages from states that choose to recognize them?
9.18.2009 9:07pm
einhverfr (mail) (www):
John Howard

In my opinion, yes, people that are not married to each other do not have a right to have sex or conceive. I'm of course aware that people can do it without having a right to do it and without punishment.


What is the difference? I qualified my question with "in this country."

Also historically that has been backwards. Many ancient laws, from Medieval Irish law to Ancient Hebrew law recognized sexual consent AS marriage.
9.18.2009 10:20pm
David M. Nieporent (www):
Even Dale and Andy and Eugene know that I am right, that is why they never once have disputed or disagreed with me.
Uh, yeah, that's why.

Also, the guy on the street corner ranting that the end of the world is nigh must be right, because I never argue with him.
9.18.2009 11:52pm
Oren:

But even if I agreed that there was now an actual declared "right" to conceive outside of marriage, what difference would it make to my points? None. I would still demand that all marriages continue to protect the couple's right to procreate together using their own genes

How this will protect our vaunted right to whistle on Tuesdays, however, remains opaque.

[ No one has ever even remotely suggested criminalizing anyone's right to procreate. Heck, we give em tax credits! Protection of this right is about as noble (and effective) as enumerating a right to be free from dragons or demonic possession.

Whatever it is you are talking about John (and I'm in biotech and I'm still not really sure), it has nothing to do with preserving or protecting any right that is now, has ever been, or ever plausibly will be, threatened in this country. ]
9.19.2009 12:20am
BGates:
the only ones left fighting the culture war are those who see it as a moral issue (i.e. the Religious Right).

You make it sound like the subject of gay marriage is the cause of schism among the religious right that no one else pays any attention to. You may not think much of the religious right's opponents on this issue - certainly we haven't been entirely successful in gaining public acceptance of gay marriage, as other commenters have noted - but at least acknowledge we exist.
9.19.2009 12:26am
badlaw (mail):
I was merely giving an example. Wasn't meant to be comprehensive.
9.19.2009 12:32am
John Howard (eggandsperm.org) (mail) (www):
I'm asking this question honestly because this position simply confuses me...if one of the opposite-sex partners is factually infertile they cannot conceive naturally. They are not trying to procreate, so why should they have the "right to try" as you say? Should they be allowed to use technology that a same sex couple should not?

Genetically challenged: Everyone has a right to try to be healthy, but that simply doesn't include being fertile as the other sex. That requires genetic modification, reversing the packing and methylation of the DNA sequence in a way that can only be described as genetic engineering, or genetic modification. It's not the same thing as the medical treatments that a person might privately undergo to reproduce with someone of the other sex. Now, genetic engineering and modification would be banned for heterosexual couples also, but they wouldn't publicly require genetic engineering and modification to reproduce the way they would if they were in same-sex relationships. Hence, "the right to try" is something we all have, but only as the sex which we are most likely to be fertile as. For most of us that's easy and matches our legal sex, if it doesn't, it's a private infertility, not a public one like legal same-sex procreation would be.

So again, to your question, a couple should be allowed technology to make them healthy or able to function as healthy, but no one should be allowed technology to modify the genes to make someone fertile as the other sex, with their own sex. One's a basic human right, the other is a really bad idea that will result in a massive entitlement program and coercive eugenics for everyone. It's a policy decision, and it should be the same as the marriage decision, and it should be federal, international even.
9.19.2009 12:46am
John Howard (eggandsperm.org) (mail) (www):
What is the basis of the right (or lack of the right) to have sex or conceive?

Law?

Policy?

The Bible?


My opinion. I thought I was clear.
9.19.2009 12:47am
John Howard (eggandsperm.org) (mail) (www):
Steve: I don't see why the first option is horrible. If two people of the same sex can figure out how to procreate, God bless 'em I say.

Well, it is not very ecological, requiring a large infrastructure of labs and research facilities, with many workers and technicians and maintenance workers, all devoted to something totally useless and unethical instead of something useful and necessary, like health care and farming and things of real value. It is unsustainable and expensive, it would become an expensive entitlement that taxpayers would have to pay for, and the money pit of genetic modifications everyone had to get would grow and grow, and the children would be subject to grievous health risks and psychological problems, they'd feel estranged from women, or men, in their very souls, instead of equally parented by each... They'd dry up the market for adopting kids that need loving homes, and send a psychological sucker punch to every child created from a sperm or egg donor, or adopted, that their parents would have preferred to use some radical experimental method so they could have true offspring and hence aren't loved as much and are to blame, and it would tear apart couples that suddenly had pressure to have a child using a radical experiment together... There are so many reasons why it's a bad idea, and so much to gain from prohibiting it as soon as possible. It is so wrong to teach children that it might be possible for them, when not only might it never be possible, but it might be a super unethical illegal crime, or it might be emotionally devestating, and certainly expensive.

So in short, you are wrong. It's a fun little pithy sentiment, but too much is at stake to be stupid about it.
9.19.2009 1:01am
John Howard (eggandsperm.org) (mail) (www):
[me:]"In my opinion, yes, people that are not married to each other do not have a right to have sex or conceive. I'm of course aware that people can do it without having a right to do it and without punishment."

Einhverfr: What is the difference? I qualified my question with "in this country."


What's the difference between my opinion and this country? Shit, ummmm, NASCAR? Legal abortion? Suburban sprawl, bad gas policy? Fornication and adultery enforcement is just one of the differences. I think they should be enforced more often, so people have an excuse to restrain themselves from illicit sex.

Also historically that has been backwards. Many ancient laws, from Medieval Irish law to Ancient Hebrew law recognized sexual consent AS marriage.

Sure, there isn't always an officiant around, but that makes my point just as well. If they recognized sexual consent as marriage, they also approved of and did not prohibit their sexual reproduction, even if they are approving of it after the fact. They'd never recognize a couple as married that they also prohibited from having children together, like if siblings sexually consented, that wouldn't be recognized as a marriage.
9.19.2009 1:17am
John Howard (eggandsperm.org) (mail) (www):
[me:] Even Dale and Andy and Eugene know that I am right, that is why they never once have disputed or disagreed with me.

David M. Nieporent: Uh, yeah, that's why.

Also, the guy on the street corner ranting that the end of the world is nigh must be right, because I never argue with him.


Not plausible, because this isn't a street corner, it's a legal blog and I've been making this same legal argument for years, so long that they would have surely told me off with one good tell-off by now. They'd surely have gotten sick of the same old argument and explained why I'm wrong. In fact, Andy Koppelman once admitted to me that he agrees with me, he's just keeping his mouth shut like the giant army of lawyers is supposed to:

Dear John,

I haven't responded to you, because I haven't understood that we have any area of necessary disagreement. Your central concern, as I understand it, is to prevent, or at least delay, a certain kind of genetic engineering, based on what seems to me a very prudent caution about the unknown consequences of that engineering for the health of the offspring. You may be right, for all I know. The science of genetic engineering however is far outside my area of expertise, and I have an obligation as a scholar to keep my mouth shut when I don't know what I'm talking about. So I haven't taken any position on your claim, and I'm not planning to.

My silence shouldn't be construed as an evasion. It is rather a humble acknowledgement of my own limitations. (My guess is that Ann Althouse hasn't responded for similar reasons, which is why I'm copying this to her.) I don't mean to give the impression that I'm ignoring you. If you can point to some specific passage in my writing that you dispute, I'm happy to discuss it.

Andy Koppelman
9.19.2009 1:57am
John Howard (eggandsperm.org) (mail) (www):
[me:] But even if I agreed that there was now an actual declared "right" to conceive outside of marriage, what difference would it make to my points? None. I would still demand that all marriages continue to protect the couple's right to procreate together using their own genes

Oren: How this will protect our vaunted right to whistle on Tuesdays, however, remains opaque.

[ No one has ever even remotely suggested criminalizing anyone's right to procreate. Heck, we give em tax credits! Protection of this right is about as noble (and effective) as enumerating a right to be free from dragons or demonic possession.

Whatever it is you are talking about John (and I'm in biotech and I'm still not really sure), it has nothing to do with preserving or protecting any right that is now, has ever been, or ever plausibly will be, threatened in this country. ]

On the contrary, many many people are equating my right to procreate with a woman to their right to attempt same-sex conception. They are denying that marriage protects a couple's right to procreate, insisting that couples that would create a 'maimed' or 'defective' baby should be prohibited from procreating, even if they are married. That is a radical new demand that hasn't been mentioned before regarding equal marriage rights, but of course it necessary if hetero procreation rights are to be equal to same-sex procreation rights.

We cannot equate the basic human right to procreate with our own genes to the right to procreate with someone of the same sex. If we do that, it both unjustly diminishes the right to procreate naturally and unreasonably creates a right to attempt genetic engineering.
9.19.2009 2:04am
Oren:

It is unsustainable and expensive, it would become an expensive entitlement that taxpayers would have to pay for

Well, good -- we agree on something. If (really when) technology allows for individual or same-sex reproduction, the government should not pay for it.


On the contrary, many many people are equating my right to procreate with a woman to their right to attempt same-sex conception.

In the sense that your right to sing Beethoven on Tuesdays ought not to be equated with their right to sing Michael Jackson on the 4th. No one has ever proposed to abrogate your right to procreate. No one has ever proposed to abrogate the attempts of the infertile to attempt procreation either.

Perhaps you are right that they should not be "equated", since they are distinct. Let's even supposed I concede that they are not the same. What difference does that make?


They are denying that marriage protects a couple's right to procreate

Protect a couple's right to procreate against what infringement???


insisting that couples that would create a 'maimed' or 'defective' baby should be prohibited from procreating, even if they are married.

I don't know anyone that insists that this should be prohibited, as opposed to merely thinking it's a good idea. Personally, I would not bring a child into this world that had no hope of experiencing what it means to be human. If others differ, I do not dare to presume to decide in their place.

That is a radical new demand that hasn't been mentioned before regarding equal marriage rights, but of course it necessary if hetero procreation rights are to be equal to same-sex procreation rights.

I support equal marriage rights and make no such demand.
I do not require nor do I ask for the concession of any right from any heterosexual couple whatsoever under any circumstances whatsoever.

Just to make sure we are extra clear.


We cannot equate the basic human right to procreate with our own genes to the right to procreate with someone of the same sex. If we do that, it both unjustly diminishes the right to procreate naturally and unreasonably creates a right to attempt genetic engineering.

This point is already conceded. I agree not to equate those things. Again, so what? Now they are two different things.

Why all the emphasis on what is equated with what anyway? This seems like the worst kind of nominalism -- to assert that the essential nature of human procreation is somehow affected by what intellectual constructs we believe.
9.19.2009 3:05am
Tim Nuccio (mail) (www):


And why is the state allowed to marry anyone? From where does it gain the authority to marry anyone?




Yeah, why is a state allowed to do anything anymore since whatever they do is unconstitutional! Gasp, why is there even states and state courts or even state constitutions?


This fails to answer the question in glorious fashion. I can think of over 4,000 words that articulate reasons why we have a government and what powers we gave it. Marrying people is not within those powers, to my knowledge. From where does government gain this power?

Central to the concept of constitutional, limited government is that the burden is on the government to justify its actions through an authority ceded it it in our constitution.

Until it can be demonstrated that government has the power to engage in the social engineering experiment that is civil marriage, as far as I'm concerned, the government's exercise of this power is completely illegitimate.
9.19.2009 5:08am
Tim Nuccio (mail) (www):
should say "to it" not "it it"
9.19.2009 5:09am
Soronel Haetir (mail):
Tim,

Unfortunately the states started out basically under the theory that anything not prohibited to the government was allowed. That has of course changed in some areas over the intervening years. However the police power is still basically seen as the ocean and rights as islands of freedom. Would that it were puddles of power splashed haphazardly about the firmament of freedom.
9.19.2009 8:20am
gary47290:
John Howard is wrong wrong wrong.

"The only way to protect the right of everyone to procreate naturally, with their own genes, and prohibit same-sex procreation, is to prohibit same-sex marriage. "

This simply fails all logic and smell tests, because it has long (especially since Griswold) been established that marriage and procreation are separate.

Artificial conception (whether sperm-egg-petri dish or Howard's bogeyman advanced technology) is independent of the marriage contract.

Lost in all the hysteria is the fundamental right to be left alone. We live in a political system of limited powers granted to the government. The state has yet to explain why it should have the power to intervene in the right of consenting adults to contract marriage.

Limited government is ultimately the reason DOMA will fail, not FFC or equal protection or love.
9.19.2009 10:00am
davod (mail):
"DOMA does obviously have some serious federalism implications,"

Only if you believe DOMA constricts constitutional rights.
9.19.2009 10:00am
John Howard (eggandsperm.org) (mail) (www):
Oren, of course you don't think there would be any infringement or abrogation or consession, because you think that same-sex procreation should be allowed. That is one of the possible meanings of same-sex marriage, as I was saying. The other is that society decides to prohibit same-sex conception, or at least prohibit it until it is considered "safe", and then looky-there, suddenly marriage no longer protects a couple's right to procreate together, with their own genes, even if they are a man and a woman who've been married for twenty years, or even if they just got married yesterday, because legally, we will have said that they have no greater claim to procreate together than the same-sex couples which are now all prohibited. We will have stripped procreation rights from marriage for the the first time in history (or second time, if you count China prohibiting some marriages from procreating) and made it dependent on an expert genetic risk analysis. It's little consolation that you would be standing there saying "sorry, not my fault, same-sex conception should be legal too". It was the creation of same-sex marriage that made this outcome possible. We should not equate the right to procreate with either sex.
9.19.2009 10:04am
jrose:
Lost in all the hysteria is the fundamental right to be left alone. We live in a political system of limited powers granted to the government. The state has yet to explain why it should have the power to intervene in the right of consenting adults to contract marriage.

I wasn't aware of any state intervening when a couple enters into a private marriage contract.
9.19.2009 10:09am
John Howard (eggandsperm.org) (mail) (www):
The state has yet to explain why it should have the power to intervene in the right of consenting adults to contract marriage.

To prevent unethical conceptions by relationships which would unethically conceive, such as siblings, wife's mother, and certain others. We intervene and prohibit these relationships from marrying and procreating on behalf of the children's physical and psychological safety, as well as to promote social cohesion and general welfare. There are many reasons same-sex conception would be even more unethical than sibling procreation, and much worse for general welfare were it allowed.

Even post Eisenstadt, never has a marriage been 'separate' from the right to procreate, all marriages continue to protect the right to procreate. That would change if same-sex couples are prohibited from attempting to procreate. Marriage should continue to protect and approve of the couple creating children together.
9.19.2009 10:17am
jrose:
The other is that society decides to prohibit same-sex conception, or at least prohibit it until it is considered "safe", and then looky-there, suddenly marriage no longer protects a couple's right to procreate together, with their own genes

I wasn't aware marriage currently protects a couple's right to procreate. Isn't it instead the case that procreative rights extend equally to married and unmarried couples, and the burden is on the state to justify any such ban?

If I am right, then a ban on same-sex conception which meets that burden (because of the horribles of unsafe genetic engineering), would leave untouched "own-gene" procreative rights for the married and unmarried alike.
9.19.2009 10:56am
A.:
John Howard, a few questions:

1. Why do you link marriage and procreation? If you ban gay marriage as an attempt to limit genetic engineering, gays will have kids out of wedlock (as much as they would in wedlock, anyway). If you ban genetic engineering (or, you know, accept that there is nothing to ban), gays will have marriage without kids made through genetic engineering. Likewise, straight people have no more right to procreate in wedlock than out of it. If my girlfriend and I decided to make a baby right now, our unwed status would not be a legal (or constitutional) basis for stopping us. No matter how you look at it, the link between marriage and procreation is tenuous (except insofar as one often comes first).

2. When you say "right", what do you mean? You've already established that "rights" come from your opinion, not "law, policy, [or] the bible." What makes them "rights"?

3. Which of your arguments against genetic engineering wouldn't seem (ex ante) to apply to IVF? Let's consider:

3a.

Well, it is not very ecological, requiring a large infrastructure of labs and research facilities, with many workers and technicians and maintenance workers, all devoted to something totally useless and unethical instead of something useful and necessary, like health care and farming and things of real value.

IVF requires similar facilities, and, depending on one's situation and worldview, is similarly useless and unethical (or useful and ethical). What's the difference?

3b.

It is unsustainable and expensive, it would become an expensive entitlement that taxpayers would have to pay for,

IVF is expensive, but is not, AFAIK, an entitlement that taxpayers have to pay for. Why would gays using genetic engineering to procreate be different?

3c.

the money pit of genetic modifications everyone had to get would grow and grow,

Unending genetic modifications are unrelated to the single modification necessary to combine gametes from same-sex parents. Why not allow it and ban other things?

3d.

the children would be subject to grievous health risks and psychological problems,

Children are currently subject to grievous health risks and psychological problems. What's more, we can predict at least certain clear risk factors in parents for both health risks and psychological problems in children--poverty comes to mind. We do not forbid poor people to have kids, and we do not force the abortion of deformed fetuses--why is this different?

3e.

they'd feel estranged from women, or men, in their very souls, instead of equally parented by each...

Why is this not the case if gays adopt? Or if Uncles Jesse and Joey help Father Danny Tanner raise his kids without a mom?

3f.

They'd dry up the market for adopting kids that need loving homes

Do you mean that most adoption is currently being done by gays? Or do you mean that every advance in fertility treatments (including IVF) should be banned because it limits the homes available to adopt? If keeping the number of homes available for adoption is the goal, why not limit procreation in straights?

3g.

send a psychological sucker punch to every child created from a sperm or egg donor, or adopted, that their parents would have preferred to use some radical experimental method so they could have true offspring and hence aren't loved as much and are to blame

What? Huh? Why would it send that message at all? Wouldn't having parents who didn't use genetic engineering suggest to the kids that their parents want them, and want no truck with any "radical experimental methods"? Also, why doesn't IVF send the message you fear to kids who were adopted before IVF?

3h.

it would tear apart couples that suddenly had pressure to have a child using a radical experiment together

Why would they have this pressure upon them, and how do you know they wouldn't be able to handle it? Also, why would tearing apart couples who can't handle one of the most basic problems couples face (i.e., whether to have kids) be a bad thing?


3i.

It is so wrong to teach children that it might be possible for them, when not only might it never be possible

Why is it wrong to teach them that something might be possible when it also might not? Should we avoid all conditional statements with kids? Should we never discuss the potential advancement of technology?

3j.

it might be a super unethical illegal crime, or it might be emotionally devestating, and certainly expensive.

It might be a "super unethical illegal crime" (as opposed to what? The kinda unethical legal crimes?), or it might not, but that has no bearing on whether to discuss its possibility with children. It might be "emotionally devastating," like a relationship gone bad, but that doesn't mean we should talk about it (or relationships) with kids. It would likely be expensive, but then, so's college, and I bet you don't think we should avoid talking about college with kids solely because it's expensive. In fact, I bet that if you have kids, you talk to them about the possibility of genetic engineering all the time!
9.19.2009 11:03am
John Howard (eggandsperm.org) (mail) (www):
Except "own-gene" procreative rights for a same-sex couple rule out a ban on same-sex conception and therefore rule out a ban on genetic engineering, because for a same-sex couple to procreate together with their own genes, they have to genetically modify them. There is a conflict there, we can't just pretend that we are allowing and approving of same-sex couples procreating even as we prohibit all the ways it might be done, that's a substantial obstacle that would conflict with the right, like pretending to allow abortion but saying you have to go through a 9 month waiting period.

And marriage currently protects a couple's right to procreate, all couples that are prohibited from procreating by the state, such as siblings, men and their mother-in-law, children, etc, are prohibited from marrying.
9.19.2009 11:10am
jrose:
Except "own-gene" procreative rights for a same-sex couple rule out a ban on same-sex conception and therefore rule out a ban on genetic engineering

Let me re-phrase my claim: if I am right, then a ban on same-sex conception which meets that burden (because of the horribles of unsafe genetic engineering), would leave untouched heterosexual "own-gene" procreative rights for the married and unmarried alike.

And marriage currently protects a couple's right to procreate, all couples that are prohibited from procreating by the state, such as siblings, men and their mother-in-law, children, etc, are prohibited from marrying.

The fact that we don't permit siblings to marry is not sufficient to establish that marriage protects a couple's right to procreate. The state could permit siblings to marry, while prohibiting them from proceating. The reason the state instead chooses to prohibit sibling marriages in the first place is to ease enforcement. In contrast, no such problem occurs with same-sex conception. Ban the labs, and you enforce the procreation ban - no need to ban same-sex marriage.

Do you at least agree that if your claim that marriage currently protects a couple's right to procreate is wrong, your argument falls apart?
9.19.2009 11:27am
John Howard (eggandsperm.org) (mail) (www):
Taking the shorter questions first, that's true, jrose, a ban on genetic engineering which prohibited same-sex conception would leave untouched heterosexual "own-gene" procreative rights for married and unmarried alike.

Yes, the state COULD permit siblings to marry while prohibiting them from procreating, just as it COULD allow same-sex couples to marry while prohibiting them from procreating. I don't argue that it is impossible to strip procreation rights from marriage, I argue that it would be bad to do so, and that marriage should continue to protect the couple's right to procreate with their own genes (as in, society's seal of approval should not be withdrawn, everyone should be in agreement that it is perfectly right for a married couple to procreate, it is never wrong for them to use their own genes).

My argument doesn't fall apart if we strip procreation rights from marriage, my argument is that is what would happen if allow same-sex marriage but prohibit same-sex conception, and it would be bad, it would make everyone subject to risk-analysis and essentially destroy the basic right to procreate using our own genes.
9.19.2009 11:49am
Soronel Haetir (mail):
JH,

The problem I see in your argument is that as far as I can no such thing as procreation rights attach with marriage. People have that right regardless of whether they are married or not. About the most that can be said is that in the past there were numerous inducements linked to both marriage and procreation. Subsidization does not infer a right however.
9.19.2009 11:58am
jrose:
Yes, the state COULD permit siblings to marry while prohibiting them from procreating, just as it COULD allow same-sex couples to marry while prohibiting them from procreating. I don't argue that it is impossible to strip procreation rights from marriage, I argue that it would be bad to do so, and that marriage should continue to protect the couple's right to procreate with their own genes

There you go again, making the assumption that marriage currently protects a couple's right to procreate with their own genes.

My argument doesn't fall apart if we strip procreation rights from marriage

That's non-responsive because you again are making the assumption that marriage currently protects a couple's right to procreate with their own genes. I asked you to analyze your argument if that assumption were wrong.

I'll do the flip side. If your assumption is correct, then your argument holds. Your turn, but with your assumption being wrong.
9.19.2009 12:08pm
einhverfr (mail) (www):
John Howard:

To prevent unethical conceptions by relationships which would unethically conceive, such as siblings, wife's mother, and certain others.


However, a mere possibility that at some point in the indefinite future homosexual conception might be possible is not enough to ban SSM today.
9.19.2009 12:29pm
Steve:
Well, it is not very ecological, requiring a large infrastructure of labs and research facilities, with many workers and technicians and maintenance workers, all devoted to something totally useless and unethical instead of something useful and necessary, like health care and farming and things of real value. It is unsustainable and expensive, it would become an expensive entitlement that taxpayers would have to pay for, and the money pit of genetic modifications everyone had to get would grow and grow, and the children would be subject to grievous health risks and psychological problems, they'd feel estranged from women, or men, in their very souls, instead of equally parented by each...

I was not suggesting that same-sex procreation should be some sort of government entitlement. I just don't see the need for a law against it.
9.19.2009 12:36pm
einhverfr (mail) (www):
John Howard:

I think the reason that the bloggers haven't responded to you is that your concerns are rather separable from the SSM issue. I.e. people can and do procreate in and out of OSM without legal punishment. Further, a ban on human cloning, human genetics engineering, eugenics (for example, in vitro selection of sperm and eggs based on genetic characteristics such as gender), and the like would be entirely separable from marriage rights and responsibilities.

As a matter of fact I think such a ban would be a good thing. I don't think it should be an egg-and-sperm bill as you suggest. I think it should be a ban on:
1) Artifical creation of gametes for reproductive purposes
2) Human cloning
3) Selection of gametes based on specific genetic features.

However, these then would restrict both heterosexual and homosexual couples in reproductive choices available at some point in the indefinite future when such technologies exist.

However, it seems entirely separable from marriage policy.
9.19.2009 12:38pm
John Howard (eggandsperm.org) (mail) (www):
1. Why do you link marriage and procreation?

Because marriage is what protects procreation rights, it shouldn't be changed, all marriages should continue to be allowed to and approved to procreate or we will lose protection and be subject to risk analysis.

If you ban gay marriage as an attempt to limit genetic engineering, gays will have kids out of wedlock (as much as they would in wedlock, anyway).

There would be no ban on gay marriage, there would be a ban on genetic engineering which limited procreation to a man and a woman, and a law codifying the right of every marriage to procreate with their own genes. You are right, a mere ban on gay marriage would not prohibit same-sex procreation, and that's why a ban on SSM is misguided.

If you ban genetic engineering (or, you know, accept that there is nothing to ban), gays will have marriage without kids made through genetic engineering.

There is certainly something to ban, hundreds of books salivate about making designer children. Yes, same-sex couples could be married but banned from procreating, but that changes marriage and makes all couples equally subject to genetic risk based prohibition.

Likewise, straight people have no more right to procreate in wedlock than out of it.

Oh, I think you are sadly disrespecting marriage, I think that married couples ought to feel society's approval and respect for having a baby together, even if they don't have a baby together. I think that the joy and meaning of marriage and the religious significance for most people comes from feeling that everyone approves of them having children together. People shacking up don't feel that, single people don't feel that. They have to deal with relatives and neighbors wondering if it was a mistake, disapproving, etc. It is sad that you want to make all married couples feel that same way and deprive them of society's approval.

If my girlfriend and I decided to make a baby right now, our unwed status would not be a legal (or constitutional) basis for stopping us.

Perhaps it wouldn't be a barrier, but I think it would be Constitutional to prohibit intentional out-of-wedlock procreation, like say using donor sperm. Even Eisenstadt doesn't claim there is a right to go ahead and do it while still unmarried, only a right for single people to make decisions about it, and presumably then getting married if they want to procreate.

No matter how you look at it, the link between marriage and procreation is tenuous (except insofar as one often comes first).

Yes, it needs to be protected against an onslaught that wants to strip procreation rights from marriage.

2. When you say "right", what do you mean? You've already established that "rights" come from your opinion, not "law, policy, [or] the bible." What makes them "rights"?

Practically speaking, being allowed to do something by the police makes something a right. I don't agree that the police know what ought to be a right and what shouldn't be. It takes a bunch of people standing up for their rights for the police to change their behavior.

3. Which of your arguments against genetic engineering wouldn't seem (ex ante) to apply to IVF? Let's consider:

Sure, lots of these arguments apply to IVF. I think IVF is bad for many of these same reasons. Same-sex conception would be all of the problems with IVF multiplied by an order of magnitude, because it would be genetic engineering on top of IVF. IVF is still a natural conception of a man and a woman. That is why it is so unregulated and would be so hard to ban.

3a. IVF requires similar facilities, and, depending on one's situation and worldview, is similarly useless and unethical (or useful and ethical). What's the difference?

An order of magnitude. GE on top of IVF would add thousands more researchers and money and energy.

3b. IVF is expensive, but is not, AFAIK, an entitlement that taxpayers have to pay for. Why would gays using genetic engineering to procreate be different?

Oh, but many insurance plans DO cover IVF, and the "public option" would probably cover a certain amount of IVF too. I believe some coverage is mandated in Massachusetts, so I am forced to pay for IVF treatments. And there would be an added imperative to pay for it for gays, because gays have no choice but to use a lab, they can't just keep trying like a hetero couple can. And when a hetero couple requires IVF, there is an argument that it is their fault, their misfortune, and should be their cost, whereas a gay person would be able to claim a "right" to access to whatever technology is required to enable a gay person to fulfill what straight people can do for free. They would open the floodgates for straight people to demand free access to genetic engineering too.

3c. Unending genetic modifications are unrelated to the single modification necessary to combine gametes from same-sex parents. Why not allow it and ban other things?

Not really unrelated, they are both genetic modifications creating a person that could not exist through sexual reproduction. Once we've said that same-sex procreation is allowed, which has huge risks and costs, it would be very hard to justify banning someone from correcting a gene defect or adding a gene for longevity, which might be safer and more justifiable to the public than same-sex procreation.

3d. Children are currently subject to grievous health risks and psychological problems.

Indeed, but there is a right for married couples to conceive them anyway.

What's more, we can predict at least certain clear risk factors in parents for both health risks and psychological problems in children--poverty comes to mind. We do not forbid poor people to have kids, and we do not force the abortion of deformed fetuses--why is this different?

Because procreation is a basic human right. Same-sex procreation is not. Thank you for showing your tendencies and resentments of the pathetic poor people we shouldn't be letting have children - that's the danger, that we will equate their right to your right.

3e. Why is this not the case if gays adopt? Or if Uncles Jesse and Joey help Father Danny Tanner raise his kids without a mom?

The estrangement from a mother or father would be in their genes, they wouldn't be able to feel "I am half from my father, and half from my mother, who will always live on through me". I'm not talking about who's raising them at all, that makes little difference. It's good that we are products of one mother and one father. Having two fathers or two mothers not only deprives someone of the missing origin, but the redundancy of the two parents they do have makes each father or each mother less important as a mother or father, depriving them of a shared heritage and connection to humanity.

3f. Do you mean that most adoption is currently being done by gays? Or do you mean that every advance in fertility treatments (including IVF) should be banned because it limits the homes available to adopt? If keeping the number of homes available for adoption is the goal, why not limit procreation in straights?

Yes, IVF is terrible for kids that need adoption, absolutely. It is very insulting and should be stopped. Same-sex conception would not move in the right direction.

3g. What? Huh? Why would it send that message at all? Wouldn't having parents who didn't use genetic engineering suggest to the kids that their parents want them, and want no truck with any "radical experimental methods"? Also, why doesn't IVF send the message you fear to kids who were adopted before IVF?

IVF does send that message, but it is people's right to try to be healthy and do what healthy people can do (not donor insemination, but procreating with your spouse). And it is usually kept quiet, so people aren't trumpeting their aversion to adoption when they seek fertility treatment. And because same-sex conception is SO radical and risky and not something that people could do if they were healthy, and because it would be publicly obvious that a same-sex couple did it, it would send a ten times louder message that adoption or even donor gametes are not real children, and indeed send a message that its OK to put kids at huge risk, they are the property of parents to create however they want. And don't forget the time that it would take for same-sex conception to roll onto the scene. At first, parents would probably not consider it, it would be too expensive and risky, so they'd adopt or use a donor. Then, when that child is about ten or twelve, just when they are going through their teens, their parents would be suddenly devoting themselves to their new project of creating a real offspring, now that the price is low enough and the risks have been borne by other families. That'll hurt the existing children like nothing ever has before.

3h. Why would they have this pressure upon them, and how do you know they wouldn't be able to handle it? Also, why would tearing apart couples who can't handle one of the most basic problems couples face (i.e., whether to have kids) be a bad thing?

The pressure would be on them because it would be a sudden new technology that they would feel obligated to use, instead of adopting or using donor gametes, and fertility treatments often tear families apart. There are a surprising number of embryo custody battles.


3i. Why is it wrong to teach them that something might be possible when it also might not? Should we avoid all conditional statements with kids? Should we never discuss the potential advancement of technology?

Because it is much better to teach them that they will have to procreate with someone of the other sex, like everyone else always has and always will. It would pull the rug out from under them to set them up thinking that it won't matter what sex they love, or that they can change their sex, based on an over-hyped possibility that will probably be banned, leaving them unable to love someone they can have a child with.

3j. meh
9.19.2009 12:53pm
John Howard (eggandsperm.org) (mail) (www):
jrose, OK, there already exist, in China, marriages that are prohibited from procreating together. My argument doesn't fall apart because it has already happened, my argument is that it is a really bad thing and it shouldn't happen here, we should preserve the right of every marriage to procreate together, with their own genes. We shouldn't become a totalitarian society that prohibits any marriages from procreating with their own genes, or anyone from marrying the person of their choice (with the exception of certain relationships which apply to couples, and don't restrict individuals, and apply to everyone equally).

The dangers of eugenics are very big right now, with so many people reliant on IVF labs to have children. Not only do we encourage people to use substitute gametes even if they are fertile, we are beginning to say that marriages don't even have a right to use their own genes! We are saying this because we are insanely trying to equate the right to procreate with someone of the same sex to the right of a married man and woman to procreate with their own genes.
9.19.2009 1:06pm
John Howard (eggandsperm.org) (mail) (www):
einverfr, same-sex conception is even more unethical today than it would be in the future when it is "possible", how does it follow that there is less reason to ban it today?

(And it is "possible" today, labs could work on it and it is not out of the realm of possibility that they would succeed, today.)
9.19.2009 1:10pm
John Howard (eggandsperm.org) (mail) (www):
I was not suggesting that same-sex procreation should be some sort of government entitlement. I just don't see the need for a law against it.

To protect the child from harm, to save our shared resources, to lower greenhouse gas emissions, to respect human dignity and sexual reproductive rights, and to STOP it from becoming a government entitlement. If a couple has a right to procreate, and it requires money they don't have, then they are going to ask the government for it. The government will probably give it, because they like the idea of investing in the genetics industry. What are people going to say, no, don't take our money and spend it on that?
9.19.2009 1:14pm
egn (mail):

The estrangement from a mother or father would be in their genes, they wouldn't be able to feel "I am half from my father, and half from my mother, who will always live on through me".


Ooookay.

Stick a fork in this one, it's dead.
9.19.2009 1:38pm
Oren:

Oren, of course you don't think there would be any infringement or abrogation or consession, because you think that same-sex procreation should be allowed. That is one of the possible meanings of same-sex marriage, as I was saying. The other is that society decides to prohibit same-sex conception, or at least prohibit it until it is considered "safe", and then looky-there, suddenly marriage no longer protects a couple's right to procreate together, with their own genes ...

Sounds like a very good argument why we should not abrogate the right of same-sex couples (or an individual wishing to clone herself) to procreate -- because it will end up backfiring on all of us.

The major misunderstanding that I have here is why this is related to marriage. If it were illegal for same-sex-married couples to have a child, it would be likewise illegal for same-sex-but-unmarried couples to do so. That is, of all the proposals to regulate or ban technological procreation, I don't know anyone that proposes distinctions based on the marital status of the parents.


It was the creation of same-sex marriage that made this outcome possible. We should not equate the right to procreate with either sex.

Again with the "equating" -- nobody is equating. Just let it be what it is. This focus on what is considered equal to what is maddeningly irrelevant.
9.19.2009 2:17pm
Soronel Haetir (mail):
egn,

Don't worry, it's a one trick pony. I don't think I've seen the resource argument before today though.
9.19.2009 2:21pm
Oren:

Even post Eisenstadt, never has a marriage been 'separate' from the right to procreate, all marriages continue to protect the right to procreate.

Funny that you talk on and on about protecting the right to procreate, where I see you as the only one in this thread that wants to abrogate that right in any measure.


That would change if same-sex couples are prohibited from attempting to procreate. Marriage should continue to protect and approve of the couple creating children together.

The only thing procreation-rights needs protection from is you -- I do not know anyone else in this country proposing any restrictions whatsoever on procreation.

In essence, John, you want to be both the arsonist and the firefighter at the same time. You want to place the right to procreate at risk by proposing restrictions on it, then you want to ride to the rescue by asserting that marriage protects the right to procreate against the restrictions that you are here proposing.
9.19.2009 2:21pm
Oren:

I wasn't aware marriage currently protects a couple's right to procreate. Isn't it instead the case that procreative rights extend equally to married and unmarried couples, and the burden is on the state to justify any such ban?

Neither legal theory has ever been tested because no politician in the US have ever proposed (let alone implemented) any law that would impair the right of the citizenry to procreate (married or not).

In short, there is really no precedent because the restrictions that John is proposing are unprecedented.
9.19.2009 2:26pm
jrose:
OK, there already exist, in China, marriages that are prohibited from procreating together. My argument doesn't fall apart because it has already happened, my argument is that it is a really bad thing and it shouldn't happen here

When I asked you to stop assuming that marriage currently protects a couple's right to procreate with their own genes, of course I didn't want you to assume Chinese policy. I want you to assume that currently in the USA married people get no additional procreative protections beyond what is afforded unmarried people.
9.19.2009 2:39pm
jrose:
Me: Isn't it instead the case that procreative rights extend equally to married and unmarried couples, and the burden is on the state to justify any such ban?

Oren: In short, there is really no precedent because the restrictions that John is proposing are unprecedented.

True, but it would be nice (but possibly requiring a minor miracle) if John would admit that the disposition of this hypothetical issue is determinative as to the soundness of his argument,
9.19.2009 2:46pm
yankee (mail):
Neither legal theory has ever been tested because no politician in the US have ever proposed (let alone implemented) any law that would impair the right of the citizenry to procreate (married or not).

And such a law would last maybe ten seconds before being struck down by the judiciary.
9.19.2009 3:05pm
Guy:
I don't Understand John's argument... the existence of a right to procreate does not imply a right to have it taxpayer funded. I have the right to freedom of speech, does that mean that if I want to give a speech that would be broadcast around the world then the FCC should force a television station to let me?

The fact that gays can't procreate (in a same-sex marriage, given current technology) doesn't mean that the government is obligated to figure out how to let them. Actually, it might be reasonable to argue that a law against it is valid if there is a legitimate fear that the children would almost certainly be extremely sick and deformed, as that concern could possibly outweigh the procreation right... I don't believe that, but I wouldn't dismiss it out of hand.

Also, holding that the ability to procreate must exist before a marriage is allowed is ludicrous. Gays can adopt, get egg donors, etc. The benefit of marriage regarding children is that it creates a stable environment for a child to be raised in. Gays can, and do, raise children.
9.19.2009 3:13pm
John Howard (eggandsperm.org) (mail) (www):
Sounds like a very good argument why we should not abrogate the right of same-sex couples (or an individual wishing to clone herself) to procreate -- because it will end up backfiring on all of us.

That's why we have to recognize a fundamental difference in the basic human right to procreate using unmodified genes, which means with someone of the other sex, and contrast it the absolute non-right to create someone using modified genes, or to clone or attempt same-sex conception. If we equate them as rights - and that's what you do when you refuse to agree that one is a right and one isn't, and insist on equal rights for same-sex couples or individuals wishing to clone themselves - then we suddenly subject everyone's basic civil rights to the same scrutiny of safety and genetic tests that same-sex conception will surely be subject to, if not in law then in practice, if we somehow fail to enact any safety standards. I suspect there will be tons of pressure by same-sex couples to enforce safety standards by the labs they go to, and by people demanding a right to improve their genes, and no one will worry too much about imposing the same genetic standards on a man and a woman, because they're equal, they'd have no special right to avoid the safety standards that gays and cloners and enhancers imposed on the industry.

The major misunderstanding that I have here is why this is related to marriage.

Well, it doesn't even matter, as the major issue to deal with is YOU THINK WE SHOULD ALLOW SAME-SEX CONCEPTION. Isn't that a pretty big thing that you probably haven't really been upfront with all these years? All that time arguing for same-sex marriage, never once, I bet, did you volunteer that the most important thing was that same-sex couples should be allowed to procreate together, to the extent that you would reject a Compromise that gave all the other rights and protections because it didn't give procreation rights? Time for you to explain what YOU have been arguing for marriage for, if it is unrelated to your most insistent demand.

And to try to answer your question again, marriage has always meant approval of the couple to procreate together. Never once has it not meant that the couple is allowed to procreate together. Billions of couples have been prohibited by law from procreating together (every sibling couple, etc), never once have any of them been allowed to marry each other, because marriage has ALWAYS meant approval for the couple to have intercourse (Lawrence v Texas) and therefore to conceive children together. Always. Most of the time, unmarried procreation was a crime, sometimes a capital crime. Never has married procreation ever been a crime.

If it were illegal for same-sex-married couples to have a child, it would be likewise illegal for same-sex-but-unmarried couples to do so.

I hope so! ;-) Right though, the ban would apply to the act of modified conception, and not have anything to do with marriage.

That is, of all the proposals to regulate or ban technological procreation, I don't know anyone that proposes distinctions based on the marital status of the parents.

Well, right, except for proposals to ban intentional unmarried procreation, using sperm donors, etc, but those are not likely to find much support right now.

Again with the "equating" -- nobody is equating. Just let it be what it is. This focus on what is considered equal to what is maddeningly irrelevant.

So, are you admitting that there is a greater, more fundamental right to procreate using your own genes than there is to have a lab create a child for you from modified genes, and more of a right to procreate with someone of the other sex than there is to procreate with someone of the same sex? Unless you admit those things, you are equating. They can't be equated, it destroys everyone's basic human right to procreate, the basis of our equality and human dignity.
9.19.2009 4:38pm
John Howard (eggandsperm.org) (mail) (www):
Funny that you talk on and on about protecting the right to procreate, where I see you as the only one in this thread that wants to abrogate that right in any measure.

Oren, here is "Scape", from much earlier in this thread: "I don't think anyone here even disagrees with the idea that it ain't ethical to try and conceive a human in such a fail-prone way."

And then someone else agreed with him, wait, it was YOU! Are you the same Oren that said "You can chalk me up in that group — trying to conceive a human (say, by dipping your skin cells in calcium and passing a current through them) satisfies Kant's test."

Maybe you misread? Is there a typo in your sentence? Maybe you can clarify what you meant before. Scape said it ain't ethical, and I read your comment to mean you agree, though now I can't be sure what you were saying about it satisfying Kant's test. I thought that meant you were agreeing that we can't all create people that way, if it were to be a maxim that everyone followed, but maybe you did mean it was OK.

At any rate, this follows the usual pattern. First people want to brush off the charge that they are insisting on same-sex procreation, they agree it is unethical, they say no one wants to do it, etc. Then later on, after I've showed how that makes the rights unequal and changes marriage, the Transhumanist emerges to begin insisting that there should indeed be an equal right, once it is safe (usually, though you seem to be opposed to any restrictions now). Very often it is the same person, often it is two different people in a conflicting good cop bad cop role, like Jason Kuznicki and Jonathan Rowe taking opposing positions on whether it should be allowed or not.

The only thing procreation-rights needs protection from is you — I do not know anyone else in this country proposing any restrictions whatsoever on procreation.

Why do you object then, to the part of the Compromise that explicitly protects the right of every marriage to procreate using the couple's own genes? Would you even support that law by itself? I think you know most people oppose cloning and oppose same-sex procreation and designer babies, and a very small minority believe any of those things should be allowed. Even fewer will, after the full ramifications begin to be examined.
9.19.2009 5:02pm
einhverfr (mail) (www):
John Howard:

einverfr, same-sex conception is even more unethical today than it would be in the future when it is "possible", how does it follow that there is less reason to ban it today?


So, "Manned Travel to Ganymede is even more of a waste of money today than it would be in the future when it is 'possible.'" Either statement is nonsense.

Besides I think you are thinking way too small here. Your problems with same-sex conception are probably by no means limited there. I was proposing a much broader ban than the one you proposed which included artificial production of gametes (necessary arguably for same-sex conception), human cloning, and gamete selection for in vitro fertilization based on any genetic characteristics (gender would be the most obvious).

None of these singles out same-sex couples. However they would have the effect of precluding same-sex conception. Furthermore they would address the ROOT dangers of tampering with reproduction rather than the specific example you are hyping.

If you are going to ban something you might as well ban the right thing and for the right reasons, and you might as well go all the way.
9.19.2009 6:19pm
jrose:
And to try to answer your question again, marriage has always meant approval of the couple to procreate together. Never once has it not meant that the couple is allowed to procreate together.

As I said previously, that's because not allowing marriage to couples who shouldn't procreate is the only effective enforcement mechanism. In contrast, with same-sex couples, we can let them marry and keep them from procreating.

John, in your mission against same-sex procreation, you need to stop your attack against same-sex marriage. The two issues are separable.

And I agree with Scape, about the turing test. Your tirades are tedious.
9.19.2009 6:25pm
inahandbasket:
All I know is that you guys have allowed Mr. "Egg &Sperm" to hijack this thread. There was a nice legal back and forth between you lawyers that I was enjoying and then JH showed up. Can you guys get back on track? I was actually learning something!!!
9.19.2009 7:10pm
Oren:

All that time arguing for same-sex marriage, never once, I bet, did you volunteer that the most important thing was that same-sex couples should be allowed to procreate together

They already are. We didn't agitate for a change on that point because the status quo (everyone is allowed to procreate as they please) is to our liking. Saying that they "should be allowed" makes it sound like it is currently forbidden.

By the way, here's my ordering of preferences:

(1) SSP &SSM <--- status quo in 6 States
(2) SSP &~SSM <--- status quo in 44 States
(3) ~SSP &SSM
(4) ~SSP &~SSM


So, are you admitting that there is a greater, more fundamental right to procreate using your own genes than there is to have a lab create a child for you from modified genes, and more of a right to procreate with someone of the other sex than there is to procreate with someone of the same sex? Unless you admit those things, you are equating. They can't be equated, it destroys everyone's basic human right to procreate, the basis of our equality and human dignity.

Sure, as a gesture of compromise, I will admit that conventional procreation is a fundamental right (actually, so too does the UN Charter).

It doesn't help your point though, since the question of SSP doesn't turn on OSP.
9.19.2009 7:36pm
Oren:

Why do you object then, to the part of the Compromise that explicitly protects the right of every marriage to procreate using the couple's own genes? Would you even support that law by itself?

(1) It's implicit in the concept of ordered liberty protected by the 14th amendment.

(2) There is no reasonable apprehension that it will be attacked.

(3) Sure, I support a law that protects that which is not under any attack and quite arguably already protected. I think it doesn't accomplish anything, but I have no objection.
9.19.2009 7:37pm
Oren:

If you are going to ban something you might as well ban the right thing and for the right reasons, and you might as well go all the way.

Just as a curiosity, assume this ban every passes and passes Constitutional muster. Does it strike you as at all practical?

After all, it's impossible to tell if a child was conceived in the US or on a short day trip to Tijuana.
9.19.2009 7:44pm
Cornellian (mail):
If "preserving the status quo" is a rational basis, then the rational basis test doesn't exist.
9.19.2009 8:19pm
Soronel Haetir (mail):
Oren,

I have brought up the travel issue before, his answer then at least was to perform DNA testing on everyone returning to the US. Also denying citizenship to any successfully genetically engineered offspring.
9.19.2009 10:22pm
ChrisTS (mail):
Two queastions:

1) Where is john Howard when the OP is not about DOM or SSM?

2) Is there no "do not feed the trolls" ethic on VC?
9.20.2009 12:07am
ChrisTS (mail):
Sorry; a third question:

What does it mean for 'marriages to procreate'?
9.20.2009 12:11am
Oren:

I have brought up the travel issue before, his answer then at least was to perform DNA testing on everyone returning to the US. Also denying citizenship to any successfully genetically engineered offspring.

(1) DNA testing cannot reveal a recently implanted embryo.

(2) DNA testing cannot reveal whether an offspring is genetically enhanced.

(3) Constitution?
9.20.2009 12:12am
ChrisTS (mail):
Oren:
Anyone want to venture a reason why I'm not allowed to dip my skin in calcium and hook it up to a battery?

I don't know about 'not allowed,' but I am guessing the lack of responses is due to the yuck factor. :-)

P.S. Would that, in fact, 'work'?
9.20.2009 12:33am
ChrisTS (mail):
Eeks: "queastions"
Queasy-making though some of this thread may be, I meant 'questions.'
9.20.2009 12:35am
John Howard (eggandsperm.org) (mail) (www):
einhverfr, there is nothing to gain form using an analogy, unless you want to divert attention from the actual issue. Use of modified gametes is planned for the near future, as is same-sex conception, and everyone agrees it is unsafe right now. Oren certainly has made it clear he is serious about it, as opposed to manned travel to the planets. It doesn't make sense to leave it legal and then ban it when it is safer than it is now. It should be illegal until society has had a chance to decide if it should be allowed, Oren and other Transhumanists should have to make a positive case for why it should be legal, he shouldn't be allowed to just do it while no one is expecting it and before we've had a chance to even consider it.

As to your proposed bans, they are pretty good, and I commend you for proposing a concrete solution. I have been pushing for an Egg and Sperm law like the President's Council on Bioethics recommended to Congress in 2004, and like was enacted in Missouri in 2006. A ban like those would ban far more than same-sex conception, that would be a side-effect of it. It would mainly ban use of modified or artificial gametes, and cloning, and everything else that doesn't join unmodified egg and sperm of an adult woman and man. It would not prohibit anything that has already been done by anyone, which I think is an important debating point. Yes, it would be good to also ban sex selection and choosing traits as in Preimplantation Genetic Diagnosis, as well as gamete donation, but I think it complicates the discussion to ban things that are currently being done. Those also aren't genetic engineering, and it helps to be able to say that the ban is on genetic engineering. Maybe I am wrong about that, though, so I'll keep in mind your suggestion and try it out.
9.20.2009 12:55am
John Howard (eggandsperm.org) (mail) (www):
As I said previously, that's because not allowing marriage to couples who shouldn't procreate is the only effective enforcement mechanism. In contrast, with same-sex couples, we can let them marry and keep them from procreating.

But, again, that would be saying that marriages don't always guarantee a right to procreate. It would leave the conflict unresolved, and could wind up in court with scotus ruling that prohibiting labs from helping same-sex marriages violates their marriage rights by putting a substantial obstacle in their way. If we are going to keep them from procreating by prohibiting labs from doing it, then why not acknowledge that difference in rights by giving them different names, rather than jeopardizing everyone else's marriage rights by creating marriages that don't have procreation rights? Why not leave marriage alone and use that distinction to create Civil Unions that are Constitutional, can be enacted in all 50 states, and could get federal recognition without a messy fight in Congress?

John, in your mission against same-sex procreation, you need to stop your attack against same-sex marriage. The two issues are separable.

My mission is against genetic engineering. Other people are saying, over and over, and making headway, that same-sex couples should have equal rights, especially equal marriage rights, as a man and a woman. Well hold on there, cowboys, no they shouldn't, because same-sex couples shouldn't have the right to attempt to procreate that all marriages should have, that all people should have, with someone of the other sex.
9.20.2009 1:09am
John Howard (eggandsperm.org) (mail) (www):
Soronel, I don't think I ever said we'd do DNA tests on all babies coming back, I think I said that we'd try to prevent people from going overseas to attempt same-sex conception or genetic engineering, and arrest couples that did that when they came back. As to how it would be detected, I imagine it would work more as a deterrent, and people would not want to keep their baby's parentage a secret forever. It would rely on people respecting the law and fearing the punishment, not ridiculous DNA tests on everyone entering the country.
9.20.2009 1:26am
John Howard (eggandsperm.org) (mail) (www):
Mainly we'd have to prevail on Mexico to shut down any labs doing genetic engineering in Tijuana. (I don't advocate taking them out ourselves, I'm sure we can convince countries to cooperate.) And if we stop funding the research here, and prohibit it here, I doubt any rogue labs are going to finish figuring it out by themselves. But if we keep funding and allowing the research here, and only ban it once it has been figured out, then we will have to worry about hack labs opening up in Tijuana. That's another reason why it needs to be banned now, rather than next year.
9.20.2009 1:35am
John Culhane (mail) (www):
This site always fascinates me for the commenters' movement -- sometimes gradual, sometimes avulsive -- from the statements and positions taken in the post to distant shores of arguments, theories, and points. Always great reading.

As to the actual brief, I've made a few direct points at my site: http://wordinedgewise.org
9.20.2009 10:32am

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