April 02, 2005

silhouette3.JPG From the desk of Jane Galt:

A really, really, really long post about gay marriage that does not, in the end, support one side or the other

Unlike most libertarians, I don't have an opinion on gay marriage, and I'm not going to have an opinion no matter how much you bait me. However, I had an interesting discussion last night with another libertarian about it, which devolved into an argument about a certain kind of liberal/libertarian argument about gay marriage that I find really unconvincing.

Social conservatives of a more moderate stripe are essentially saying that marriage is an ancient institution, which has been carefully selected for throughout human history. It is a bedrock of our society; if it is destroyed, we will all be much worse off. (See what happened to the inner cities between 1960 and 1990 if you do not believe this.) For some reason, marriage always and everywhere, in every culture we know about, is between a man and a woman; this seems to be an important feature of the institution. We should not go mucking around and changing this extremely important institution, because if we make a bad change, the institution will fall apart.

A very common response to this is essentially to mock this as ridiculous. "Why on earth would it make any difference to me whether gay people are getting married? Why would that change my behavior as a heterosexual"

To which social conservatives reply that institutions have a number of complex ways in which they fulfill their roles, and one of the very important ways in which the institution of marriage perpetuates itself is by creating a romantic vision of oneself in marriage that is intrinsically tied into expressing one's masculinity or femininity in relation to a person of the opposite sex; stepping into an explicitly gendered role. This may not be true of every single marriage, and indeed undoubtedly it is untrue in some cases. But it is true of the culture-wide institution. By changing the explicitly gendered nature of marriage we might be accidentally cutting away something that turns out to be a crucial underpinning.

To which, again, the other side replies "That's ridiculous! I would never change my willingness to get married based on whether or not gay people were getting married!"

Now, economists hear this sort of argument all the time. "That's ridiculous! I would never start working fewer hours because my taxes went up!" This ignores the fact that you may not be the marginal case. The marginal case may be some consultant who just can't justify sacrificing valuable leisure for a new project when he's only making 60 cents on the dollar. The result will nonetheless be the same: less economic activity. Similarly, you--highly educated, firmly socialised, upper middle class you--may not be the marginal marriage candidate; it may be some high school dropout in Tuscaloosa. That doesn't mean that the institution of marriage won't be weakened in America just the same.

This should not be taken as an endorsement of the idea that gay marriage will weaken the current institution. I can tell a plausible story where it does; I can tell a plausible story where it doesn't. I have no idea which one is true. That is why I have no opinion on gay marriage, and am not planning to develop one. Marriage is a big institution; too big for me to feel I have a successful handle on it.

However, I am bothered by this specific argument, which I have heard over and over from the people I know who favor gay marriage laws. I mean, literally over and over; when they get into arguments, they just repeat it, again and again. "I will get married even if marriage is expanded to include gay people; I cannot imagine anyone up and deciding not to get married because gay people are getting married; therefore, the whole idea is ridiculous and bigoted."

They may well be right. Nonetheless, libertarians should know better. The limits of your imagination are not the limits of reality. Every government programme that libertarians have argued against has been defended at its inception with exactly this argument.

Let me take three major legal innovations, one of them general, two specific to marriage.

The first, the general one, is well known to most hard-core libertarians, but let me reprise it anyway. When the income tax was initially being debated, there was a suggestion to put in a mandatory cap; I believe the level was 10 percent.

Don't be ridiculous, the Senator's colleagues told him. Americans would never allow an income tax rate as high as ten percent. They would revolt! It is an outrage to even suggest it!

Many actually fought the cap on the grounds that it would encourage taxes to grow too high, towards the cap. The American people, they asserted, could be well counted on to keep income taxes in the range of a few percentage points.

Oops.

Now, I'm not a tax-crazy libertarian; I don't expect you to be horrified that we have income taxes higher than ten percent, as I'm not. But the point is that the Senators were completely right--at that time. However, the existance of the income tax allowed for a slow creep that eroded the American resistance to income taxation. External changes--from the Great Depression, to the technical ability to manage withholding rather than lump payments, also facilitated the rise, but they could not have without a cultural sea change in feelings about taxation. That "ridiculous" cap would have done a much, much better job holding down tax rates than the culture these Senators erroneously relied upon. Changing the law can, and does, change the culture of the thing regulated.

Another example is welfare. To sketch a brief history of welfare, it emerged in the nineteenth century as "Widows and orphans pensions", which were paid by the state to destitute families whose breadwinner had passed away. They were often not available to blacks; they were never available to unwed mothers. Though public services expanded in the first half of the twentieth century, that mentality was very much the same: public services were about supporting unfortunate families, not unwed mothers. Unwed mothers could not, in most cases, obtain welfare; they were not allowed in public housing (which was supposed to be--and was--a way station for young, struggling families on the way to homeownership, not a permanent abode); they were otherwise discriminated against by social services. The help you could expect from society was a home for wayward girls, in which you would give birth and then put the baby up for adoption.

The description of public housing in the fifties is shocking to anyone who's spent any time in modern public housing. Big item on the agenda at the tenant's meeting: housewives, don't shake your dustcloths out of the windows--other wives don't want your dirt in their apartment! Men, if you wear heavy work boots, please don't walk on the lawns until you can change into lighter shoes, as it damages the grass! (Descriptions taken from the invaluable book, The Inheritance, about the transition of the white working class from Democrat to Republican.) Needless to say, if those same housing projects could today find a majority of tenants who reliably dusted, or worked, they would be thrilled.

Public housing was, in short, a place full of functioning families.

Now, in the late fifties, a debate began over whether to extend benefits to the unmarried. It was unfair to stigmatise unwed mothers. Why shouldn't they be able to avail themselves of the benefits available to other citizens? The brutal societal prejudice against illegitimacy was old fashioned, bigoted, irrational.

But if you give unmarried mothers money, said the critics, you will get more unmarried mothers.

Ridiculous, said the proponents of the change. Being an unmarried mother is a brutal, thankless task. What kind of idiot would have a baby out of wedlock just because the state was willing to give her paltry welfare benefits?

People do all sorts of idiotic things, said the critics. If you pay for something, you usually get more of it.

C'mon said the activists. That's just silly. I just can't imagine anyone deciding to get pregnant out of wedlock simply because there are welfare benefits available.

Oooops.

Of course, change didn't happen overnight. But the marginal cases did have children out of wedlock, which made it more acceptable for the next marginal case to do so. Meanwhile, women who wanted to get married essentially found themselves in competition for young men with women who were willing to have sex, and bear children, without forcing the men to take any responsibility. This is a pretty attractive proposition for most young men. So despite the fact that the sixties brought us the biggest advance in birth control ever, illegitimacy exploded. In the early 1960s, a black illegitimacy rate of roughly 25 percent caused Daniel Patrick Moynihan to write a tract warning of a crisis in "the negro family" (a tract for which he was eviscerated by many of those selfsame activists.)

By 1990, that rate was over 70 percent. This, despite the fact that the inner city, where the illegitimacy problem was biggest, only accounts for a fraction of the black population.

But in that inner city, marriage had been destroyed. It had literally ceased to exist in any meaningful way. Possibly one of the most moving moments in Jason de Parle's absolutely wonderful book, American Dream, which follows three welfare mothers through welfare reform, is when he reveals that none of these three women, all in their late thirties, had ever been to a wedding.

Marriage matters. It is better for the kids; it is better for the adults raising those kids; and it is better for the childless people in the communities where those kids and adults live. Marriage reduces poverty, improves kids outcomes in all measurable ways, makes men live longer and both spouses happier. Marriage, it turns out, is an incredibly important institution. It also turns out to be a lot more fragile than we thought back then. It looked, to those extremely smart and well-meaning welfare reformers, practically unshakeable; the idea that it could be undone by something as simple as enabling women to have children without husbands, seemed ludicrous. Its cultural underpinnings were far too firm. Why would a woman choose such a hard road? It seemed self-evident that the only unwed mothers claiming benefits would be the ones pushed there by terrible circumstance.

This argument is compelling and logical. I would never become an unwed welfare mother, even if benefits were a great deal higher than they are now. It seems crazy to even suggest that one would bear a child out of wedlock for $567 a month. Indeed, to this day, I find the reformist side much more persuasive than the conservative side, except for one thing, which is that the conservatives turned out to be right. In fact, they turned out to be even more right than they suspected; they were predicting upticks in illegitimacy that were much more modest than what actually occurred--they expected marriage rates to suffer, not collapse.

How did people go so badly wrong? Well, to start with, they fell into the basic fallacy that economists are so well acquainted with: they thought about themselves instead of the marginal case. For another, they completely failed to realise that each additional illegitimate birth would, in effect, slightly destigmatise the next one. They assigned men very little agency, failing to predict that women willing to forgo marriage would essentially become unwelcome competition for women who weren't, and that as the numbers changed, that competition might push the marriage market towards unwelcome outcomes. They failed to forsee the confounding effect that the birth control pill would have on sexual mores.

But I think the core problems are two. The first is that they looked only at individuals, and took instititutions as a given. That is, they looked at all the cultural pressure to marry, and assumed that that would be a countervailing force powerful enough to overcome the new financial incentives for out-of-wedlock births. They failed to see the institution as dynamic. It wasn't a simple matter of two forces: cultural pressure to marry, financial freedom not to, arrayed against eachother; those forces had a complex interplay, and when you changed one, you changed the other.

The second is that they didn't assign any cultural reason for, or value to, the stigma on illegitimacy. They saw it as an outmoded vestige of a repressive Victorial values system, based on an unnatural fear of sexuality. But the stigma attached to unwed motherhood has quite logical, and important, foundations: having a child without a husband is bad for children, and bad for mothers, and thus bad for the rest of us. So our culture made it very costly for the mother to do. Lower the cost, and you raise the incidence. As an economist would say, incentives matter.

(Now, I am not arguing in favor of stigmatising unwed mothers the way the Victorians did. I'm just pointing out that the stigma did not exist merely, as many mid-century reformers seem to have believed, because of some dark Freudian excesses on the part of our ancestors.)

But all the reformers saw was the terrible pain--and it was terrible--inflicted on unwed mothers. They saw the terrible unfairness--and it was terribly unfair--of punishing the mother, and not the father. They saw the inherent injustice--and need I add, it was indeed unjust--of treating American citizens differently because of their marital status.

But as G.K. Chesterton points out, people who don't see the use of a social institution are the last people who should be allowed to reform it:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

Now, of course, this can turn into a sort of precautionary principle that prevents reform from ever happening. That would be bad; all sorts of things need changing all the time, because society and our environment change. But as a matter of principle, it is probably a bad idea to let someone go mucking around with social arrangements, such as the way we treat unwed parenthood, if their idea about that institution is that "it just growed". You don't have to be a rock-ribbed conservative to recognise that there is something of an evolutionary process in society: institutional features are not necessarily the best possible arrangement, but they have been selected for a certain amount of fitness.

It might also be, of course, that the feature is what evolutionary biologists call a spandrel. It's a term taken from architecture; spandrels are the pretty little spaces between vaulted arches. They are not designed for; they are a useless, but pretty, side effect of the physical properties of arches. In evolutionary biology, spandrel is some feature which is not selected for, but appears as a byproduct of other traits that are selected for. Belly buttons are a neat place to put piercings, but they're not there because of that; they're a byproduct of mammalian reproduction.

However, and architect will be happy to tell you that if you try to rip out the spandrel, you might easily bring down the building.

The third example I'll give is of changes to the marriage laws, specifically the radical relaxation of divorce statutes during the twentieth century.

Divorce, in the nineteenth century, was unbelievably hard to get. It took years, was expensive, and required proving that your spouse had abandonned you for an extended period with no financial support; was (if male) not merely discreetly dallying but flagrantly carrying on; or was not just belting you one now and again when you got mouthy, but routinely pummeling you within an inch of your life. After you got divorced, you were a pariah in all but the largest cities. If you were a desperately wronged woman you might change your name, taking your maiden name as your first name and continuing to use your husband's last name to indicate that you expected to continue living as if you were married (i.e. chastely) and expect to have some limited intercourse with your neighbours, though of course you would not be invited to events held in a church, or evening affairs. Financially secure women generally (I am not making this up) moved to Europe; Edith Wharton, who moved to Paris when she got divorced, wrote moving stories about the way divorced women were shunned at home. Men, meanwhile (who were usually the respondants) could expect to see more than half their assets and income settled on their spouse and children.

There were, critics observed, a number of unhappy marriages in which people stuck together. Young people, who shouldn't have gotten married; older people, whose spouses were not physically abusive nor absent, nor flagrantly adulterous, but whose spouse was, for reasons of financial irresponsibility, mental viciousness, or some other major flaw, destroying their life. Why not make divorce easier to get? Rather than requiring people to show that there was an unforgiveable, physically visible, cause that the marriage should be dissolved, why not let people who wanted to get divorced agree to do so?

Because if you make divorce easier, said the critics, you will get much more of it, and divorce is bad for society.

That's ridiculous! said the reformers. (Can we sing it all together now?) People stay married because marriage is a bedrock institution of our society, not because of some law! The only people who get divorced will be people who have terrible problems! A few percentage points at most!

Oops. When the law changed, the institution changed. The marginal divorce made the next one easier. Again, the magnitude of the change swamped the dire predictions of the anti-reformist wing; no one could have imagined, in their wildest dreams, a day when half of all marriages ended in divorce.

There were actually two big changes; the first, when divorce laws were amended in most states to make it easier to get a divorce; and the second, when "no fault" divorce allowed one spouse to unilaterally end the marriage. The second change produced another huge surge in the divorce rate, and a nice decline in the incomes of divorced women; it seems advocates had failed to anticipate that removing the leverage of the financially weaker party to hold out for a good settlement would result in men keeping more of their earnings to themselves.

What's more, easy divorce didn't only change the divorce rate; it made drastic changes to the institution of marriage itself. David Brooks makes an argument I find convincing: that the proliferation of the kind of extravagent weddings that used to only be the province of high society (rented venue, extravagent flowers and food, hundreds of guests, a band with dancing, dresses that cost the same as a good used car) is because the event itself doesn't mean nearly as much as it used to, so we have to turn it into a three-ring circus to feel like we're really doing something.

A couple in 1940 (and even more so in 1910) could go to a minister's parlor, or a justice of the peace, and in five minutes totally change their lives. Unless you are a member of certain highly religious subcultures, this is simply no longer true. That is, of course, partly because of the sexual revolution and the emancipation of women; but it is also because you aren't really making a lifetime committment; you're making a lifetime committment unless you find something better to do. There is no way, psychologically, to make the latter as big an event as the former, and when you lost that committment, you lose, on the margin, some willingness to make the marriage work. Again, this doesn't mean I think divorce law should be toughened up; only that changes in law that affect marriage affect the cultural institution, not just the legal practice.

Three laws. Three well-meaning reformers who were genuinely, sincerely incapable of imagining that their changes would wreak such institutional havoc. Three sets of utterly logical and convincing, and wrong arguments about how people would behave after a major change.

So what does this mean? That we shouldn't enact gay marriage because of some sort of social Precautionary Principle

No. I have no such grand advice.

My only request is that people try to be a leeetle more humble about their ability to imagine the subtle results of big policy changes. The argument that gay marriage will not change the institution of marriage because you can't imagine it changing your personal reaction is pretty arrogant. It imagines, first of all, that your behavior is a guide for the behavior of everyone else in society, when in fact, as you may have noticed, all sorts of different people react to all sorts of different things in all sorts of different ways, which is why we have to have elections and stuff. And second, the unwavering belief that the only reason that marriage, always and everywhere, is a male-female institution (I exclude rare ritual behaviors), is just some sort of bizarre historical coincidence, and that you know better, needs examining. If you think you know why marriage is male-female, and why that's either outdated because of all the ways in which reproduction has lately changed, or was a bad reason to start with, then you are in a good place to advocate reform. If you think that marriage is just that way because our ancestors were all a bunch of repressed bastards with dark Freudian complexes that made them homophobic bigots, I'm a little leery of letting you muck around with it.

Is this post going to convince anyone? I doubt it; everyone but me seems to already know all the answers, so why listen to such a hedging, doubting bore? I myself am trying to draw a very fine line between being humble about making big changes to big social institutions, and telling people (which I am not trying to do) that they can't make those changes because other people have been wrong in the past. In the end, our judgement is all we have; everyone will have to rely on their judgement of whether gay marriage is, on net, a good or a bad idea. All I'm asking for is for people to think more deeply than a quick consultation of their imaginations to make that decision. I realise that this probably falls on the side of supporting the anti-gay-marriage forces, and I'm sorry, but I can't help that. This humility is what I want from liberals when approaching market changes; now I'm asking it from my side too, in approaching social ones. I think the approach is consistent, if not exactly popular.

Update A number of libertarians are, as I predicted, making the "Why don't we just privatise marriage?" argument. I don't find that useful in the context of the debate about gay marriage in America, where marriage is simply not going to be privatised in any foreseeable near-term future. I wrote an immediate follow up saying just that, but of course, I got a lot of readers from an Instalanche, which I didn't expect (no one expects an Instalanche!), and they just read the one post. So the second post is here; if you are thinking of making the argument that we should just get the state out of the marriage business, please read it.

Also, a lot of readers are saying that I'm wrong about marriage always being between a man and a woman, citing polygamy. I have been told this is a "basic factual error."

No, it's not. Polygamous societies do not (at least in any society I have ever heard about) have group marriages. Men with more than one wife have multiple marriages with multiple women, not a single marriage with several wives. In fact, they generally take pains to separate the women, preferably in different houses. Whether or not you allow men to contract for more than one marriage (and for all sorts of reasons, this seems to me to be a bad idea unless you're in an era of permanent war), each marriage remains the union of a man and a woman.

Posted by Jane Galt at April 2, 2005 06:24 AM | TrackBack | Technorati inbound links
Comments

Jane,

If this was an essay on economics, it would be the best essay on economics I've read in a year or more.

If this was an essay on social structures, it would be the best essay on social structures I've read on a year or more.

If this was an essay on conservative versus reformer mindsets, it would be the best essay on *that* that I've read in a year or more.

In fact, it was all three of those things, and I'm frankly stunned at how excellently you've made so many points in such a short space.

Bravo.

TJIC

Posted by: TJIC on April 2, 2005 08:45 AM


Amazing essay. Simply amazing.

While I find myself on the "pro-" side of the gay marriage issue, that's more because I know several 20+ year extremely stable gay couples, and those are the people I can't see forbidding to marry. In practice, that's probably not going to be the norm, any more than it's the norm for heterosexuals. Any analysis of the effects of gay marriage will have to include analyzing how gay marriages will fail or become disfunctional, just like heterosexual marriages do. Their failure modes could easily be different than het marriages, and those differences could be socially significant.

Posted by: Dave on April 2, 2005 09:30 AM

I agree that there might be unintended consequences in legalizing gay marriage, I always read the fine print and "game" all rules, at least in my head, anyway. There is certainly a chance that the legalization of gay marriage would cause social change that we can't anticipate. I think the areas you concentrate on, quickie divorce, modern contraception, and welfare laws are/were all easily gamed by people who want to "beat the system", i.e. gold diggers, the pathologically promiscuous, and deadbeat dads in your examples.

I guess you could point at health insurance for the spouse as an area that could be gamed by gay marriage. For me, thats not a major factor, I favor universal health care. Gay marriage should be a matter for each religion to decide. But gay's should be allowed civil unions that give them the same rights and financial considerations as heteros. Just think how much fun the Schiavo case would have been if it was Michelle instead of Michael. Think Delay and the far right would have cared if that were the case? Sorry, sometimes I just can't resist.

Posted by: So Fabulous on April 2, 2005 09:54 AM

Holy cow! How about an executive summary? You've come down with JayRosenitis.

Posted by: Stanley on April 2, 2005 09:57 AM

Marriagve is an institution to encourage monogamy and social interdependence. As a single woman on my own, I can tell you that economically speaking, I would be better off if I were living with a roommate or a partner.

While I would have higher expenses for some food, I can tell you that most food is often sold in bulk or in units that are more friendly towards a couple, as opposed to a single person. I pay more for food in smaller portions. The same is true on rent. A two bedroom apartment in my building is approx. 400 more than a one bedroom per month. I pay more per square foot than my friends do. After that, many of my monthly expenses would be cut in half.

In rural societies, there was a reason a marriage was between a man and a woman. On a farm, extra hands were an asset, and the cheapest way to produce that asset was to have a baby and wait ten years. Sure there was a delay, and investment in a child, but on the whole, marriage between a man and a woman was the best way to ensure plenty of farm hands for twenty years, especially when half of them weren't likely to make adulthood.

Further, a marriage was a partnership that worked on doing different types of work to be successful, work that fell down gender lines - laundry versus plowing. It fell on gender lines because of comparative advantage. Due to a man's upper body strength, different relexes, and overall being stronger, it made more sense for a man to be out in the fields, doing very brawny labor or hunting, as opposed to being in the house and gathering.

Nowadays, we don't need as many children (though saying we need none is a way to social doom), and labor does not need to fall as much down gender lines. However, marriage is still the best way of ensuring monogamy, which is economically and emotionally more healthy state. Monogamy ensures a person is less likely to catch a STD, provides a unique source of emotional support and eliminates risks associated with a promiscuous lifestyle.

While there are other reasons for marriage, and I admit straight marriage falls down on this a lot, the best reason is because two people want to commit to supporting each other and being full partners for the rest of their lives. This is not a unique phenomenon to straight people; there are a lot of gay couples who want this. But unless we can say that that is what we want gay marriage to look like - monogamous, full-on emotional and economic support - then we risk losing the whole point of marriage. And the problem is, I have seen too many gay commentators say that gay marriage would need more "outs" for individuals to cheat and not invalidate the marriage (Andrew Sullivan come one down!). Which defeats the whole freaking point.

There may be other, better reasons for marriage, and for the reason marriage has always been between a man and a woman, even in extensive slave holding societies where adoption was relatively easy, and field hands could be made by breeding your slaves (I'm thinking Greece and Rome here). But until we say that gay marriage will be just as monogamous as straight marriage - or, more precisely, gay marriage will not have as a premise the idea that infidelity is part of the package (i.e. all marriages are open and supposed to be), then we are mucking around in the roots of marriage, and should stay clear.

Posted by: Nora on April 2, 2005 10:04 AM

Jane:

If we replace "gay marriage" with "desegregation," what exactly changes? Should, for example, we be a little more forgiving of the memory of Bull Connor, who acted on roughly the same argument?

Social institutions matter, and changing them can have big effects. Good point, I suppose. But how you are distinguishing social institutions from other changes that effect a number of people, or the social institution of marriage from others, I can't see. Even if all you're arguing is that we should be more forgiving of people who make arguments against the extension of civil rights (however trivial), there needs to be something more. After all, the guilt of those previously on the wrong side of history has been a pretty powerful social institution as well.

Posted by: SomeCallMeTim on April 2, 2005 10:25 AM

Excellent essay--well worth the length. One basic issue that you don't consider, though, is to what extent the historical legal changes were the result of rather than the cause of social changes. By this reasoning, the big change is the social acceptance of gays and gay relationships. This change what may (or may not) have a the subtle but profound impact on the institution of heterosexual marriage. The actual legalization of gay marriage may be rather unimportant--it has become a topic for debate because of the greater acceptance and, as the level of acceptance increases, legalization of gay unions will likely become a foregone conclusion. But even if the laws are maintained in opposition to public opinion, the effect of homosexual unions being thought of as a an alternative form of 'normal' rather than 'deviant' will have it's effect on heterosexual marriage anyway.

The recent bankruptcy law changes are an interesting point of comparison. It seems that what has happened is that bankrupcy filings have increased substantially without changes in the laws at least in part because the social stigma associated with bankrupcy has mostly disappeared, but in this case, rather than codifying this increased tolerance, the effort has been to try to pass a law that will counteract it.

But it is still a case of changes in attitudes and behavior leading legal changes rather than being caused by legal changes.

Posted by: mw on April 2, 2005 10:26 AM

If we replace "gay marriage" with "desegregation," what exactly changes? Should, for example, we be a little more forgiving of the memory of Bull Connor, who acted on roughly the same argument?

I was going to write something like this...but Tim beat me to it and probably wrote it better than I would have.

We could substitute any number of social or economic issues for "gay marriage" for this exercise. Jane's argument would certainly speak truth to power for those against the change.

In the end it's all about oppressing civil rights because of fear and losing control.

Posted by: carla on April 2, 2005 11:11 AM

"I realise that this probably falls on the side of supporting the anti-gay-marriage forces, and I'm sorry, but I can't help that."

What's to apologize for? No matter what your sympathies (within reason), reality will sometimes run against them. Gay marriage didn't become an issue for serious public consideration until a few years ago, and not even gay activists agree with each other agree on why it's a good idea. I don't think there's anything untoward about pointing out that changing things without thinking through the ramifications is a bad idea.

Posted by: Sean Kinsell on April 2, 2005 11:30 AM

I really enjoyed this essay and found it very stimulating, but I do have one serious problem with it: The argument ignores the possibility that same-sex marriage might have unknown positive consequences. If the consequences are either neutral or bad--but we don't know which--then caution is clearly in order. But if same-sex marriage might actually help both gay and straight people alike (as Jonathan Rauch has argued), then we face a very different situation.

In the end, the question comes down to whether we think the hard-to-calculate good consequences outweigh the hard-to-calculate bad consequences. One way of approaching the problem is to experiment with same-sex marriage on a limited scale as a way of gathering data about it. And that's exactly what we are doing right now.

Posted by: Jason Kuznicki on April 2, 2005 11:32 AM

Tim and carla:

Segregation was the historical ehco of five hundred years of brutal, systemmatic kidnapping, rape, and torture. Civil rights activists of the last few decades understood it as such, and few today would disagree that we're better off without it. Indeed, African American authors from Frederick Douglass forwards were intimately acquainted with the antecedents of the "social institution" of segregation: the legal institution of slavery.

In other words, desegregationists had more than met Chesterton's criteria for bulldozing the gate; he's offering a warning, not posting an injunction against all social change.

You, on the other hand, suggest that nonexistent warning (made out of "fear of losing control", right?) as a justification for the change itself. Please.

Conflating marriage with slavery is exactly the kind of vapidity Jane is arguing against here. If you don't see that one is worthy of social sanction, and that the other was abominable, you're probably missing her point.

Posted by: John Deszyck on April 2, 2005 11:53 AM

See, I disagree that the primary reason marriage has become a completely different institution is because of relaxed divorce laws.

Marriage has become a completely different institution, in my opinion, because marriage doesn't bring as many advantages anymore.

Life isn't what it was 100 years ago. 100 years ago, people needed long, secure, dependable relationships to survive. Today, long, secure, dependable relationships generally create uncertainty, and the advantage goes to people who can drop everything and re-invent themselves in a year or two.

Today, the people who suffer the most from economic downturns, changes in industry, and anything else, are families. People who have long-term commitments they have to honor.

I'm single, never been married, early 30s. Life in the modern world suits me just fine. I life a life of near-luxury. Meanwhile, the "families" I know -- friends of mine who had kids, settled down -- live in general terror of the completely unpredictable and rapidly changing modern economy. No job is secure. At any time, they could go from being comfortably middle class to impoverished, as their careers of choice are wiped out.

There's no place to set down "roots" because any neighborhood you move to could drastically change from middle-class to either gentrified or impoverished within the next 10 years. There are no more family farms, or family businesses -- these get scooped up or crushed by massive institutional competitors.

Marriage is one of two things today:

1) A pooling of resources, in which spouses pursue separate career paths, and combine their earnings while sharing costs. This is simply a trade-off of flexibility for higher income. As long as both spouses have stable, predictable careers, it's great, but what's stable and predictable about a career these days? Whenever one spouse has to make a career change they are immediately limited by whatever the other spouse is doing at the time. For example, several friends of mine in law school are married. As they graduate they are either a) looking for a job within driving distance of their spouse's job or b) completely uprooting their spouse from spouse's career. I on the other hand, have the entire united states to choose from, with no trade-offs, as I look for a job.

2) A division of labor, in which spouse earns income, while the other stays at home and raises the kids. Once upon a time, one breadwinner could lead a fairly reliable career path, either by creating a small business/farm, or choosing a trade to develop. No more. Does daddy have a good job? Tomorrow daddy could be selling pants at the Gap, whether Daddy today is 5 or 25 years into his chosen "career." This isn't horrible for a single, mobile person -- I've changed careers three times already in my life and I'm in my mid-30s. But for a "family" doesn't bring much security anymore.

The second situation is especially important for the non-breadwinner, because it means that those (mostly women) who agree as part of a marriage contract to "stay home and raise the kids" aren't committing to any kind of secure, predictable situation. "Marry me and I'll take care of you for the rest of your life" doesn't have the same ring to it anymore than it did when a man with a farm, or a business, or a good trade once said it.

Posted by: Aaron on April 2, 2005 12:08 PM

Carla, Tim -

Segregation is not the norm in every society from the dawn of time. Many societies were much more racially mixed (Greece, Rome, Egyptian, and I am sure a lot of tribal societies). While there has always been fear of the other, especially individuals of different ethnicities and religions, and with it accompaning discrimination, that discrimination has not been UNIVERSALLY legislated into law based on race, or factors that cannot be changed. In fact, you cannot say the same ethnic or religious group has been discriminated against across all cultures.

On the other hand, marriage has universally been deemed to be between a man and a woman. Whether or not gay relationships have been considered the norm, marriage has always been heterosexual. So gay marriage is not quite the same thing as the civil rights movement.

Posted by: Nora on April 2, 2005 12:18 PM

One argument I've never seen addressed, at least to my satisfaction is this: what are the practical matters that gay folks have to endure that married couples dont? All the church marriages I've been to are religious ceremonies, which are then recognized by the state.

Are there benefits? I know there are. But aren't most of them economic? And I think, really, kind of dated. Most of them seem to lie in the area of relationships (i.e. visitation, who can speak for the other spouse, insurance provided for spouses), taxes, and property rights, i.e., inheritance. Are there any I'm missing?

I say this because it seems to me that its not the relationship issues that are the problem, gays are as free to associate or not as anyone else and any church could perform a ceremony that was binding before god, if they so chose. So what's the nut of the practical matter? That if there is a non-working spouse of a gay couple, there's no insurance benefit? That there is no automatic inheritance for the spouse? As a trust and estates lawyer, I can tell you this is quickly remedied the same way a heterosexual couple's wills are taken care of.

That's why when I hear Ellen DeGeneres say that her partner wouldn't be protected in the event of her death, I laughed, thinking "Hmm, if your lawyers and accountants dont' have you legally papered up 9 ways from sunday, I just got me a new client . . . ". Ellen, the only way your partner isn't protected in event of your death, is if YOU don't do anything about it.

I am sympathetic to the emergency cases of say a hospital not allowing what, a spouse, or something to visit? Is this really an issue? And honestly, I'm asking because I want to know, and don't have any familiarity with the issue.

But the ultimate point I'm getting at is that the "civil rights" aspect of this doesn't really pursuade me, and I think some folks compare as well as most commentators who use this argument seem to think. Essentially, denying someone's cohabited partner the right to get insurance, joint filing of tax returns, and being to lazy to pay to get a will done (trust me again, even heterosexuals don't want the default), when millions of heterosexuals are similarly situated doesn't strike me as the most compelling of civil rights claims. I am open to persuasion, but goodness, the law is full of "well, you can't do it that way, but this way will work" situations.

But that's just the practical argument. I'm fully persuaded by the moral argument that gay couples should be allowed to enter into socially binding arrangements. So, yes, I'm pro-gay marriage, but really, its not as open and shut, as Jane so admirably pointed out, as folks might have you believe, that either you're standing on the side of goodness and enlightenment or knuckledragging conservatism. I do believe there will be negative repercussions, but that on balance, its worth the risk. Folks don't often point out that after segregation the black communities ended up losing their best and brightest who moved up and out. That meant two things, the local communities lost their business and social leaders, and the business and social leaders were now in a pool of folks where they probably didn't stand out as much anymore.

Posted by: CyberSurfer on April 2, 2005 12:28 PM

Aaron if what you say is true, and I suspect that it is to some degree, then it may be necessary to have the polity confer more benefits to married couples who have children. If being married and having kids does not confer an economic advantage anymore, and society suffers greatly absent sufficient procreation with competent socialization, as we may see in Japan and Western Europe in the next few decades, then we may need to provide more incentives for people to marry, stay married, and have children. It is wonderful that you have a great life. If too many people respond to incentives as you do, however, the outcome would not be positive for society as a whole. Note that I ma not specifically proposing anything. Yet.

Posted by: Will Allen on April 2, 2005 12:28 PM

Will,

Why incentivize people to do what's economically inefficient? While the married-with-children relationship was once valuable, it's no longer so, as far as I can tell.

I agree that kids are important. But why simply encourage people to go back to the old relationships when they aren't efficient anymore? If marriage is economically inefficient NOW, how much more so will it be if society subsidizes that economically inefficient relationship?

If kids are important, why not subsidize having kids? Why subsidize the marriage relationship? Marriage doesn't cause kids.

Posted by: Aaron on April 2, 2005 12:44 PM

Simple arguments applied to complex systems or institutions are generally wrong. In spite of Jane's lengthy post, each argument basically came down to a simplistic "X was done, therefore Y happened.". Virtually nothing in society is that simple. A large number of factors can and generally do affect any one institution during any given time frame. She points to what happened to marriage in the inner city from the 1960's to the 1990's. What else happened during that time frame? How did the War on Drugs and the attendant increase in the number of young men from the inner city being in prison contribute? Did the initial promise and then failure (in the eyes of some) of aspects of the civil rights movement contribute? How about white flight from the cities, taking away a large tax base to help support the infrastructure and services of the cities? How many other factors can anyone who cares to think about it come up with that could easily break down the validity of the arguments based on a one action, one reaction relationship?

Posted by: Jim S on April 2, 2005 12:49 PM

Good post, cybersurfer, although my attitudes more closely mirror Jane's. Part of the reason I am more agnostic than pro gay marriage is that, although there are certainly circumstances in which gay partners suffer because they cannot marry, their tribulations aren't even in the same universe as was the case with the victims of Jim Crow, and, as Jane notes, the unforseen outcomes with tinkering with marriage are potentially hugely detrimental, as has been already witnessed in the past 50 years.

It seems to me that that primary societal purpose of marriage in the modern world is to provide the best chance of a good environment in which to socialize children. Socializing children is still the most important wide-spread activity that any society engages in. This is easier to do with two adults under the same roof, and I know this for a fact. Whether there is any significant statistical advantage to having role models of both sexes for a child to learn from is not something I can make any judgement on. If simply allowing gay mariage, in the current context of marriage, lessens the percentage of children who have two adults under the same roof to socialize them, then I would oppose gay marriage, and it is not inconceivable that this is the case, for reasons Jane illustrated extremely well.

If, on the other hand, it were to be recognized that the way in which heterosexual marriage has been degraded, in terms of the institution's performance in socializing children, then perhaps this could be addressed in a fashion in which allowing gay marriage would be of minor importance. This is extraordinarily complex, to put forth an understatement, which is why I do not have firm opinions on the matter, other than I strongly believe that nobody really knows much of anything regarding this topic.

Posted by: Will Allen on April 2, 2005 12:55 PM

If we want to see what effects gay marriage will have on the institution of marriage, I suggest that we sit back and watch the countries that now allow it. Let's do lots of analysis over a 30 - 40 year time span and then make a rational, informed decision. I only wish we had used that criterion when we were debating no-fault divorce.

Posted by: cj on April 2, 2005 12:58 PM

Because, Aarron, there is significant reason to believe that children have a better chance of being socialized well when there are when there are two adults under the same roof engaging in that task. If this outcome of having two adults under the same roof socializing children can be accomplished, absent calling the relationship a "marriage", fine, but that seems to be re-inventing the wheel.

Posted by: Will Allen on April 2, 2005 01:00 PM

Aaron, one thing that too few libertarians realise is that there is a societal interest in having lots of kids even if there is no social security system. When you are eighty or so, and you need to retire, you are going to want to draw on your assets. But your assets just represent a claim on current production. No kids, no current production. Or to put it more simply, if people don't have babies, who's going to take care of you in the nursing home?

[Immigrants! say many libertarians. Look again. Birthrates are falling faster in the third world than they are here. And immigration to the US is made attractive only by the high productivity of current native-born workers

If no one has kids, when you are old, you will starve.

Posted by: Jane Galt on April 2, 2005 01:11 PM

By the way, Jane, this may have been your best post ever. It would be interesting to get a response from Andrew Sullivan.

Posted by: Will Allen on April 2, 2005 01:18 PM

". . .by creating a romantic vision of oneself in marriage that is intrinsically tied into expressing one's masculinity or femininity in relation to a person of the opposite sex; stepping into an explicitly gendered role."
I'm tearing out a piece of Jane's great post to run down a rabbit trail.
I think that the same thinking applies to sexuality within marriage. When I define my sexuality always and only within the context of my marriage and my wife, then I am a bit more "bulletproof" when it comes to pornography and affairs; and thus also to STDs and children out of wedlock.
The benefits to society if most people married for life and remained faithful to their spouse really stagger the mind.

Posted by: cj on April 2, 2005 01:18 PM

Wow. Great post.

Posted by: Jaybird on April 2, 2005 01:22 PM

I really haven't read much of Sullivan's, or anyone else's punditry on this matter, because nearly everyone speaks with a certitude on the issue that is entirely unwarranted, but if Sullivan has indeed envisioned gay marriage in a fashion in which the value of monogamy is reduced further, he really is off-track.

Posted by: Will Allen on April 2, 2005 01:27 PM

Jane, you made one error of fact. "For some reason, marriage always and everywhere, in every culture we know about, is between a man and a woman." In the Cheyenne and possibly other American Indians, there apparently were male-male marriages. Since the Cheyenne had very strongly defined male and female roles, one partner (called hemanah) apparently had to play the female role fully - like cooking the food and then feeding the manly partner first.

In present American society, often both partners in a heterosexual marriage take on what my grandparents would have called "the man's role." That is, they go to work full-time, and give their job nearly as much importance as their family, if not more. So would it be all that destructive if in a few percent of families, both partners actually were men.

Also, "a man and a woman" seems to imply one of each. You're forgetting all the polygynous cultures, some of which (Arabic for instance) used to be pretty successful. (You can't say the same for polyandry - many husbands. The only known example is Tibet, where in some places life was so hard that one man might fall short in doing the "man's work" of one small household.)

Now, if you want to argue that monogamy was part of the reason European cultures kicked everyone else's butts for the last five centuries, you could probably find some good arguments there. Like maybe bad marriages were what pushed Socrates to spend his spare time philosophizing in the marketplace and later Europeans to take years-long voyages of exploration. Or more seriously, a good marriage in a society with some respect for women enables a man to go on voyages, crusades, etc., knowing his wife would hold the homestead in his absence. I think that would be less likely to work out with multiple wives - but worse, polygynous societies tend to downgrade women to the point where a wife could not carry on her husband's business in his absence.

Posted by: markm on April 2, 2005 03:07 PM

I don't see any reason that encouraging people who would divorce to remain married would cause them to raise better kids than if they divorced.

One of the reasons two-parent families raise better kids is because the parents get along. Being raised by two parents who don't get along but are incented to stay together anyway won't necessarily have the same positive effect as being raised by two parents who chose to stay together on their own.

Posted by: Aaron on April 2, 2005 03:40 PM

Here's my idea of what one major unintended consequence of gay marriage will be:

Decrease in fecundity as a whole across the country. Now, yeah, there's already been a huge decrease already but one of the main remaining forces behind marriage remains "you get married because you want to have children". Two people who want to have kids together get married first. Why? Because that's the way it is. If marriage stops being something for people who want to have children together and starts being seen as something for people who are just "in love and want to live together", fecundity will decline even more.

I still think that homosexuals should be allowed to get married (or, at least, the state doesn't have the right to prevent it) but I'm not going to pretend that it won't have negative impact as well. I think that the main negative impact will be on childbearing.

Posted by: Jaybird on April 2, 2005 04:03 PM

For almost all of Western history, and perhaps human history, marriage has been defined as the union of a man and a woman of the same religion.

How come no one ever discusses the controversy surrounding interfaith marriages and the state's role in encouraging them? Without a doubt, the American government's openness to destigmatizing a formerly stigmatized relationship has been very destructive to the Jewish community in America. Ask anyone involved in a Jewish community, intermarriage is considered, at best, a reconcilable problem.

Yet no one acknowledges this historical tradition, which has been cast away, because most people know of interfaith couples or could conceivably be part of one. (Heck, that applies to the person who referred me to this site, as well as to me.) No one asks that interfaith couples have their right to be recognized by the state be analyzed according to this metric. I wish someone would have that discussion, instead of always talking about the destructive effects of same-sex marriage.

That's why I have a problem with the "go slow, bad things can happen" approach. It depends on the lack of empathy people have for those of us, the gay and lesbian people who are married or considering marriage, who would be affected by the decision. Yes, by all means, analyze us as for our effect on society as a whole. But don't keep that from looking at the beam in your own eye, and whether it's consistent with your sense of your own liberty to have the government prevent interfaith marriages.

This is why the comparison to interracial marriages is so apt. People were willing to oppose legalizing them--and in some states, a large minority are still willing to do so--precisely because they have no personal stake in the matter. That's why it's worth banning, or studying, or using as a basis for a worst-case scenario. It took the virtual criminalization of race-based thinking to get the government to stop focusing on the potential negative effects of interracial marriages.

I am hopeful, but not optimistic, that people without gay loved ones will come around to looking at this issue with the same humanity they consider issues that involve them directly. I fear that I will continue to be a strange agent of disruption, an alien factor to be considered for the chaos I cause and not as an equal member of society whose freedom and stake in the final outcome is as valued as that of straight people. People will continue to talk about my relationships, my sex life, my interactions with children, my intentions for western civilization, in ways that would make them punch out a stranger if they were applied to someone they knew and cared about.

If conservatism requires this sense of alienation, this treatment of historically alienated classes as suspect individuals because of past alienation, I hope you will drop any rhetoric about liberty or equality or respect for man. I hope you will look at yourselves with the same jaded eye you aim in my direction so willingly. And I hope that in the end we will all be able to talk to one another with respect as equal, but different, Americans.

Posted by: Brittain33 on April 2, 2005 04:37 PM

J. Deszyck:

Just to be clear, your argument is that now, after the fact ("last few decades"), segregation is understood to be a great wrong. You are not, as I understand it, arguing that at the time of the Civil Rights Movement, people weren't making precisely the same sorts of arguments: segregation is there for a reason, leave it alone. Nor, I take it, are you arguing that there hasn't been, as a matter of history, discrimination against homosexuals. So what you're saying is … what? That you can't make the leap from believing that there is such a thing as long-standing homophobia to believing it might play an important part in the decision not let gay people marry? That you don't see that society treats homosexuality differently now than it did thirty years ago, and that this might make allowing gay people to marry a very different social fact (normalizing immorality vs. something that makes me queasy for reasons I don't understand) than it might have been thirty odd years ago? What?

Nora:

If I remember my Sociology 101, the two axes along which every society studied has discriminated are gender and age. So perhaps you should be raising the banner for those who claim that any gender-discrimination is OK, or at least less suspect than any other form of discrimination (save age discrimination). You'll still be wrong, but at least you'll be credible about your claimed justifications.

Posted by: SomeCallMeTim on April 2, 2005 05:00 PM

But, Tim, the cases aren't parallel at all. In teh case of segregation, we had at the time a very good idea--indeed, an exact idea--about how it came into being. We also had a pretty good idea why it came into being in the form it had: it provided economic benefit and social status to the white majority at the expense of the black minority. We could look at the north and see that, despite the dire predictions of the segregationists, desegregation did not in fact cause social chaos. We had ample other, extremely similar systems, both in history and contemporaneously, to examine, which revealed that the results of desegregation were positive.

Brittain33, you know nothing about me or my beliefs about homosexuality; as it happens, thank you, I have gay loved ones about whom I care very much. This is not an argument made out of bigotry, or ignorance of what it entails for gay people. I understand that gay people want marriage very much, and I think that that is an important value. But society is made of a lot of large groups of people who want things very much, indeed as much as gay people want to get married. If--and it is a big if--allowing gays to marry would undercut the institution of marriage, then I would be against it no matter how unhappy this made gay people. I am against a prescription drug benefit for Medicare because I think it is bad for society overall, even though I love some senior citizens very dearly indeed, and in fact plan to be one myself some day.

My understanding of these marriages among the plains indians, and some scattered tribes here and there, is that these are religious ritual behaviours of limited duration, do not involve homosexuality in the way that we understand it, and are exceedingly rare. They aren't--as I understand it--a fabric of the institution of marriage in the way that gay marriage is intended to be in the United States.

Posted by: Jane Galt on April 2, 2005 06:55 PM

Fantastic essay! Thank you very much.

Posted by: Mike on April 2, 2005 07:15 PM

Jason Kuznicki:
"If the consequences are either neutral or bad--but we don't know which--then caution is clearly in order. But if same-sex marriage might actually help both gay and straight people alike (as Jonathan Rauch has argued), then we face a very different situation."

I find it hard to sympathize with the idea that gay marriage would mean the certain doom of civilization, but it's worth noting that the basis of Jonathan Rauch's argument in that particular area isn't very solid. He (like Andrew Sullivan) talks a lot about the community pressure to behave yourself that comes when you marry. He then raises the question of whether society will actually apply that pressure to married gays...and fails to answer it.

Certainly, no one knows the answer definitively, but the passage of anti-SSM amendments in 20% or so of the states would appear to indicate that a lot of people wouldn't regard gay marriages as legitimate. We can dispute whether they're on the side of the angels--that's a different issue. But community pressure is cited by pro-SSM writers as one of its major possible benefits, and I think the evidence is lacking that it would be brought to bear as they hope.

Posted by: Sean Kinsell on April 2, 2005 08:29 PM

This essay is, unfortunately, quite off base. You regularly attribute causation where there is no justification for such.

As the best example, consider the relaxation of divorce laws 'causing' a higher incidence of divorce. While it may be so, you don't know that at all -- there were also massive societal changes simultaneously occurring, not least of which was the advent of equal rights and protection for women and the newfound ability of women, esp. post wwII, to earn an income and be economically independent.

earl

Posted by: Earl Hathaway on April 2, 2005 08:30 PM

Genius.

As a critical libertarian myself, you've given me a lot to think about. This kind of analysis goes beyond the gay marriage issue. It is the kind of thinking that could cause an even more encompassing type of reformation.

...but even that statement now seems to be short-sighted in light of the limitations of my imagination exposed in your writing.

Thank you.

Posted by: Jake on April 2, 2005 09:02 PM

Here's another approach, suggested in a post early last month:

http://www.e-manonline.com/blog.php?entryId=55

Should appeal to a libertarian, I think; it appealed to me.

Posted by: Everyman on April 2, 2005 09:35 PM

I think you gave a brilliant analysis. Sure, a few things could be tweaked just by applying more of your own very sound logic, but brilliant still.

Adjustments I'd make: The *current norm* of being an unwed mother is bad for society and the *current norm* of frequent divorce is bad for society... but being an unwed parent and the ubiquity of easy divorce do not need to remain as damaging as they are any more than the cultures of 50 and 100 years ago could be expected to remain the way they were.

As for reform, if we agree that the institutions as they were did have value, and that the institutions as they are do have value, then we can work on ways to overcome the problems we see by strengthening - instead of ridiculing - those values.

With gay marriage, I don't think the argument should be that it is ridiculous that it would harm the institution of marriage. As you said, that is more likely a case of our own failure of understanding. The argument I think should be to show how gay marriage would *strengthen* marriage for all and promote all of the values the institution brings with it. Any such argument has to be cautious and considerate. That of course is one more strike against the "through the courts at all costs" approach.

Posted by: J.Kende on April 2, 2005 09:43 PM

I am new to this blog. I came with the Instalanche of April 2. I am here to congratulate the author and all commentors on a very civil, thoughtful discussion. I have an opinion on marriage. It is the building block of society. Men are civilized my marriage, and then so are the children born to the mother and newly civilized father. Unmarried fathers and children of unmarried mothers are not civilized. Go visit a prison if you disagree. Marriage is severly damaged since many parents today don't understand that they should be in families for their own good, both men and women. Marriage is so damaged and misunderstood that people now are saying "Hey, two men could like each other a lot and maintain a household. That's what a marriage is, right?" Our measuring stick has lost all its markings and is now useless.

Posted by: Richard on April 2, 2005 10:25 PM
Social conservatives of a more moderate stripe are essentially saying that marriage is an ancient institution, which has been carefully selected for throughout human history. It is a bedrock of our society;

I'm not a SoCon, but that's been my claim as well. Marriage is like language in that humans are innately predisposed to incorporate them into whatever culture they create. It’s not because the state wants a standard language and marriage laws, RATHER it is the people who want state PROVIDED institutional support for their language and their marriages.

Marriage is not something invented by a particular human culture. It would be more accurate to say that one reason humans create culture and state is to enforce their innate disposition for common language and marriage customs.

The ancestors we are descended from probably had stronger commitment to marriage than their contemporaries whose bloodlines have faded. We have strong attitudes about marriage because we inherited our attitutes about marriage from them.

Posted by: boris on April 2, 2005 10:25 PM

You made some excellent analyses, and gave me much to think about, but I'm a little disappointed that you seem to have ignored the role of technology in the changes you spoke of. For instance, the invention of a reliable birth control pill and the entrance of women into formerly male-only jobs (with their higher pay rates) surely had as great an impact on marriage and divorce as legislation did. As for single women on welfare, you didn't mention that the concomitant rising drug culture wiped out a generation of young men, especially in the inner cities, that might otherwise have been available for stable family life.

I'm not saying you're wrong. I'd just like to see what you think about these other factors.

Posted by: RebeccaH on April 2, 2005 10:30 PM

I think your essay is one of the best conservative presentations on any subject that I have ever read.

The inescapable fact of the matter is that introducing a new element into marriage will inexorably change marriage. Whether that change will be positive or negative may not be clear, but it is the burden of those proposing the change to convince a majority that the change will be positive. That is the conservative mentality at its best.

My own take on gay "marriage" is that it is a theological and biological impossiblity on the one hand, but that, on the other hand, gays have raised some important matters which affect them - health care, inheritance, &c. - for which some form of institutional arrangement should be made to accomodate their needs.

This is why the courts should keep their hands off in this controversy. The courts are incapable of making nuanced decisions in such matters, and when they do make decisions, they can have catastrophic results - witness Dred Scott & Roe v. Wade.

I am afraid that we are going to be driven to lodge the definition of marriage into the Constitution, in a fashion which will have the unfortunate effect of tying our hands in dealing with the legitimate concerns of our fellow (gay) citizens.

Posted by: harmon on April 2, 2005 10:30 PM

A thought on the devaluation of heterosexual marriage --

It's my understanding that the 50% divorce rate is somewhat misleading. Fifty-percent of the number of marriages performed in a year end in divorce, so if 100 weddings are performed, there are 50 divorces. However, that number does not apply to total marriages. There may be 100 weddings and 50 divorces in a year (for that 50% rate), but that rate doesn't account for the 2000 existing marriages when the year began. I *think* that's how the divorce rate is calculated. And that number doesn't really reflect people who have multiple divorces. I remember reading that the actual adult population that have been divorced is only about 10-20%.

Also, married men's incomes are higher than non-married mens, and, despite more women working, there is still a definite gendered aspect to marriage. Who is more likely to take off work when a child is sick? Who does most of the cooking and cleaning? Who is more likely to put in overtime at the office? Women are still predominately homemakers, and men are still breadwinners.

The actual point of that is that marriage means something to the people who enter it. It certainly has meaning to the children involved. And, yes, it IS better for kids to have two miserably married parents (assuming there's no abuse or addiction) that two divorced parents who are "finding themselves." Why? Because then the parents are not the center of their world; the kids are. Kids need that stability of being loved first.

The first lesbian couple married in Mass. said they had an open marriage. What kind of stability would that give to them as partners? There is less freedom to be yourself in that and much, much less forgiveness in the failings of the other person. After all --there's always someone else. Without penalty or regret. And to any children they had or adopted? They couldn't depend on either, much less both, parents being there no matter what. And with the parents' focused on their own fulfillment primarily, they can't rest in the knowledge that their parents care for them most.

That philosophy of marriage, whether it's the no-fault divorce subset of het marriages or the open marriages that many SS couples have embraced, is only destabilizing, both to society and to the people involved. And, yes, welfare, easy divorce, and birth control all had a direct, causal effect on marriage because it mitigated the good effects of being married and lightened the bad effects of not being married. The 1920s were nearly as socially riotous as the the 1960s, but the social institutions themselves (marriage and parenthood) weren't altered despite the sex, drugs, divorce, and expansion of women's roles (i.e., voting and working). The strictures of social mores were, ultimately, still in place.

Posted by: Deon on April 2, 2005 10:37 PM

Has anyone ever seen Jane and den Beste, together in one room? Just asking....

Posted by: Fred Drinkwater on April 2, 2005 10:45 PM

The biggest elephant in the room for both the right and the left of the gay marriage debate is polygamy.

On the right, you can't defend one man, one woman as cultural bedrock, when the historical record probably favors polygamy. I am not certain of the provenance of the judeo/christian bias toward monogamy, but I suspect the topic was hotly debated at some point.

On the left, you can't say gay marriage is some kind of foundational right of conscience, and not also support polygamy, incest, etc. This is so obvious to me that I am stunned no one has brought it up.

Now, I suspect that unleashing a raft of unmatched beta males on the world is not a good thing (hello, Jihadistan?). And I think you could probably argue that advanced societies have embraced monogamy.

This is an issue, therefore, where I trust the wisdom of democracy. If the people vote to make one man one woman the law of the land, then find. If they vote otherwise, that's fine with me too.

On the other hand, I am rabid in my belief that monomaniacal judges should NOT be making the decision.

Posted by: Kurtis Fechtmeyer on April 2, 2005 11:12 PM

The answer, from my libertarian perspective, is to separate the legal institution from the cultural/religious institution.

Anti-gay marriage types say that gay marriage destroys the meaning of marriage. This may be true to some degree, depending on your perspective, but gay couples certainly deserve equal rights with respect to taxes, next of kin issues, inheritance, etc. Civil unions accomplish this, if you give them all of the legal rights of marriage. How an anyone but the most right-wing bigot oppose that? You solve the whole problem by just not calling it "marriage."

Posted by: W.C. Varones on April 2, 2005 11:17 PM

Excellent post, interesting and civil contra-arguments. Let me simply posit that an issue of this importance should be decided by the people (or, at the least, by their elected representatives). Same sex marriage? Sure. Anti-same sex marriage? No problem. But let the people decide and not 4 out of 7 state court judges.

Posted by: Jim, Mtn View, CA on April 2, 2005 11:33 PM

"For some reason, marriage always and everywhere, in every culture we know about, is between a man and a woman; this seems to be an important feature of the institution."

Um NO, it isn't. Various cultures have endorsed polygamy throughout the ages. Until recently, and even now in some cultures, marriage is arranged by the parents - that's a feature almost no conservative Americans endorse, but it too is an enduring ancient feature of this institution.

I can't respect debates about this that disregard elementary facts for ideological reasons.

Posted by: Yehudit on April 2, 2005 11:56 PM

Marriage is changing because everything else in our society is changing. We've gone from the industrial one-size-fits-all society to one where people disperse into an uncountable number of niches, each one developing its own subculture, support businesses, and political movement. Trying to keep marriage constant while the rest of society changes is hopeless. We need to figure out how to minimize the damage from the transition, and find a good solution to transition to.

(I discuss this at more length here: http://www.livejournal.com/users/selenite/33087.html)

Posted by: Karl Gallagher on April 3, 2005 12:07 AM

Society can attempt to define marriage however it likes...the haunting quandary, however, is that gay couples cannot create life, and can only create a family with the actions of outsiders. Even then, if the child chooses to emulate the parents, the same cycle repeats itself.

There can be no real equality. Gay marriage is dependent upon heterosexuality. Maybe that's why Jada Pinkett Smith talked the way she did at Harvard...

Posted by: Seminal Thoughts on April 3, 2005 12:44 AM

I'd bet the initial marginal cases which could be affected by institutionalizing homosexual marriage will be between women who might otherwise marry males, out of convenience, but instead declare themselves as lesbians and marry like minded females in order to mutually provide for their existing children. A similar phenomena is evident in communities with prominent lesbian populations, where you'll have a previously heterosexual woman with children from a prior marriage declare herself a lesbian and marry a homosexual woman. I suspect that women will gradually optimize their status seeking behavior and marry primarly by this measure rather than simply sexual orientation. Women's sexual orientation seems quite fluid in this regard.

Posted by: max on April 3, 2005 01:03 AM

Yehudit:

Um NO, it isn't. Various cultures have endorsed polygamy throughout the ages.

And yet, even in a polygamous marriage, the marrying is between a man and a woman. In Jane's post, she puts no limitation on the man to limit that event to once-and-only-once. Even if she had, the post could easily be edited to make your point moot.

Deal with the main point of the post. Don't waste time making useless arguments and going away thinking you've had an effect.

And to Jane: Great post. Really, one of the better things I've read across the blogosphere. I was previously agnostic on this subject. You've definately made me rethink that position. Not only that, I can see this sort of logic leading me to rethink other, unrelated issues. It's a pretty good argument in favor of conservatism generally.

Posted by: TomK on April 3, 2005 01:04 AM

While this sentiment has often been expressed on this board, I think it's important to reiterate that even our Judeo-Christian marriage has not been a monolithic institution. In fact, our founding fathers would hardly consider today's definition of marriage as valid. Remember, until very recently (historically speaking) marriage relegated a woman to the status of property. She was considered among her husband's chattels and denied her own independent legal rights.
Under our Biblical model, a widow, upon her husband's death, should enter the household of her brother-in-law.

Is this the hallowed "prime social organizer" to which we'd like to return ? Enfranchising women legally has doubtlessly contributed to the rise in divorce rates and the decline in fertility. It seems that those opposed to gay marriage claim these potential side effects as too dangerous to allow gay marriages to proceed. Therefore, shouldn't they be clamoring for the disenfranchisement of women as another safeguard to the propogation of society? Despite the potential benefits of subjugating the female gender, society has sacrified those in its changing definition of marriage.
We, as a nation, have decided that individual rights are more important than the overall societal benefits of the "traditional" hierarchical definition of marriage. (True libertarians should note the totalitarian and undemocratic aspects of state engineering of interpersonal relationships for the good of society). It is misleading to allude to an eternal "man and woman" form of marriage, when the model most often recalled is anathema to our current understanding of marriage. In fact, if a man were to practice this model (with full legal ownership of his wife) then I'm sure even the staunchest "defenders of marriage" would call him barbaric.
It is erroneous to treat the marriages of today and the one recalled as an age-old backbone of Western Civilization as identical, especially when the latter is unacceptable to any democratic nation in the year 2005.
Thank you for your time.

Posted by: VCBrewerBoy on April 3, 2005 01:19 AM

re: lesbian marriages

I've seen the phenomena that you're describing. The thing is that these couples seem to almost always involve middle aged women. One big problem that lesbian couples frequently encounter, that makes marriage tricky, and is something that's not currently PC to discuss, is that their sex lives tend to be very short lived ( 2-3 yrs). This can put strains on the relationship, especially if one partner isn't really a lesbian. I have a close friend whose a lesbian and works as a counselor for lesbian couples. She'd explained to me that the 'sex thing' is a common problem and one of the more common reasons for break-ups. I don't think that this fact invalidates the legitimacy of lesbian marriages, but is something that will affect lesbian marriages over the long term.

Posted by: jim on April 3, 2005 01:26 AM

I liked your essay. It made me think.

One premise, that underlies the argument about whether or not gay marriage will affect the institution of marriage, is that the institution is worth not changing.

Hello! Apparently for more than half of adults who enter this institution, it becomes worth changing. The divorce rate is around 55% nationally. Is an institution with less than 50% success worth being dogmatically opposed to changing?

Please don't understand me. I'm not discounting the value of GOOD marriage. I simply think that the resistance to gay marriage focuses on the wrong problem.

I'm married, and I know that marriage is not an easy thing to sustain without substantial sacrifice. I also know that the rewards are tremendous. BUT, when fewer than 1/2 survive, what is it that we are afraid of?

If gay marriages don't affect you or me, then who is it that we are concerned about? It's our kids. As the gay life style has come out of the closet in America, many parents are fearful that their kids/grandchildren might "become" gay. I understand that fear. As a hetero male, gay seems really weird to me, and I would hope that my 3 year old son will be hetero too. But I'll love him the same either way. Simply making it more painful to be gay won't make homosexuality go away. It just creates more pain. And I believe that at the core of every spiritual faith in the world is love.

Can marriage really get worse? I suppose so. But if it does, my guess is that it will have more to do with the "me, me" attitude of society than the gays who live next door.

Gays couples already share their lives together. And frankly I don't see the harm in letting them feel "official".

Religious folks shouldn't feel marginalized by gay marriage because clearly, to them, marriage is an institution from God, granted by God. For them, the state is not the operative authority on this issue.

The entire world would be a better place if we focused more on the underlying life themes of love, sacrifice and personal surrender than on gender.

Man I'm sounding more liberal all the time...

I'd be willing to compromise by recognizing civil unions...

I know I got a bit off spirit with the theme of your post, but I considered it nonetheless before these comments.

Posted by: Chris Edwards on April 3, 2005 01:40 AM

"In the end, our judgement is all we have; everyone will have to rely on their judgement of whether gay marriage is, on net, a good or a bad idea."

We have judgement. If we're willing to be patient, we can also have experimental evidence. That's one of the nice things about Federalism.

What I would like to see happen is for gay marriage to be adopted by a small number of states, and for the rest to wait at least twenty years to see how things turn out, and the last holdouts to wait at least fifty. Yes, this is hard on gays who want to get maried, but on the other hand it's a big improvement over having no gay marriage anywhere.

So long as the Supreme Court doesn't go and stick its nose in, I think this is also what's most likely to happen.

Posted by: ralph phelan on April 3, 2005 01:47 AM

I consider myself towards the liberal end of moderate (I read Instapundit - how I got here - but also Josh Marshall) and you have just convinced me. Brilliant.

Thank you.

Posted by: Joshua Conner on April 3, 2005 01:53 AM

re: Yehudit's objection:

We can cover the common "multiple wives" case, and the less-common but known "multiple husbands" case, while preserving the logic of the argument, with thie following rephrasing:

"For some reason, marriage always and everywhere, in every culture we know about, is between one or more men and one or more women; this seems to be an important feature of the institution."

We

Posted by: Ralph Phelan on April 3, 2005 01:57 AM

Earlier, cj wrote: "If we want to see what effects gay marriage will have on the institution of marriage, I suggest that we sit back and watch the countries that now allow it. Let's do lots of analysis over a 30 - 40 year time span and then make a rational, informed decision."

A group of social scientists in the Netherlands are already documenting unintended consequences. Here are English translations of comments these researchers made to Holland's Reformatorisch Dagblad newspaper:

http://www.heritage.org/Research/Family/netherlandsmarriage.cfm

Also, polygamy simply cannot be denied if gay marriage legalized on privacy and due process grounds. By saying that widely held moral values cannot form the underpinnings for laws that prevent consensual relationships - as they seemed to in Lawrence vs. Texas - the judiciary strips out any argument against polygamous relationships. Given that thousands of people live today in underground polygamous relationships today (plus millions more in looser, de facto polygamous relationships), it seems that polygamy is the next stop on the marriage legal train, assuming that gay marriage proceeds.

I've heard arguments that sound a lot like the unwise social observers in this article - "Don't be ridiculous! Americans would never accept legalized polygamy. It's an outrage to even suggest it!" - but I've never heard an argument that explains how gay marriage could be found constitutional without such protections equally applying to polygamous petitioners.

Posted by: kamatoa on April 3, 2005 02:43 AM

You know I think you are right. Changing things often makes them worse.

It is unbelievalble the amount of damage done by letting those without property vote.

And extending the franchise to blacks? Look what that has done to our system.

I do believe you are right. Letting gay people marry will only encourage gay people to marry. Marriage will lose its sactity and divorce will run rampant.

We could wind up with a divorce rate around 50% if this change is allowed.

On the margins it could mean a guy who would otherwise marry a woman will now marry a man. Or a woman might not marry a man in favor of another woman. It would mean the end of civilization as we know it.

And what about prohibition laws. Every country in the world has them. Is it wise to even contemplate change? Think of all the additional drug use.

Posted by: M. Simon on April 3, 2005 04:02 AM

kamatoa,

I agree that regularizing polygamous relationships would be a disaster. Let those who want to live that way remain hidden. We need to keep them from flaunting it.

There was a day when whites and blacks could not openly marry each other. Then the damn liberals got a holt of the issue and see what it has gotten us?

We need to have strict rules - only hippies and Mormons should be allowed polyamy and they had better keep it to themselves.

Posted by: M. Simon on April 3, 2005 04:12 AM

An excellent post. It is one of the only a very few thoughtful pieces I have seen on the subject. Most are more of the rant type and generally don’t use any logic in advancing their points. Having said that, I would offer a few more thoughts on the subject.
I’m not convinced that the change in the laws is solely responsible for the rise in divorce rates. Yes there are many good points made in your article but I think there is more to the situation than mentioned. I would submit that the change in economic conditions allowed women to embrace divorce. When it became possible for Rosie the riveter to earn a living that consisted of more than bare sustenance, she was able to entertain the possibility of divorce and, with the change in the economic conditions, the laws were changed to reflect it. Being able to survive financially made it possible for her to escape from a bad marriage. Of course industry embraced women in the work force because in many cases they could hire them for less than they could men. Understand that is a general observation and there were many who tried to keep women in the home. Still, a cheap labor force encouraged companies to hire women for many low paying positions, an attitude which I think still exists. One has only to look at relative pay scales to confirm that.
Of course what started as a trickle soon turned into a flood as laws were changed and society added services to reflect the change in the economics in that society. Perhaps that flood could have been slowed had society not passed many of the laws it did and set up the many social programs it did. Still, I think that would have only slowed the march to our present state of affairs.
Of course one might go further back and say that when women achieved the right to vote, society was headed in the present direction.
In the end I suppose you would have to put me down as a somewhat reluctant supporter of gay marriage. There is no denying that gays are discriminated against by many and perhaps gay marriage is a step towards changing perceptions about the gay community and eventually bringing about a lessening of that discrimination. Still I worry about many of the things you mentioned. Any change in society always has unintended consequences. I just wish I knew what the consequences of this would be

Posted by: Fritz Jorgensen on April 3, 2005 04:19 AM

A number of libertarians are, as I predicted, making the "Why don't we just privatise marriage?" argument. I don't find that useful in the context of the debate about gay marriage in America, where marriage is simply not going to be privatised in any foreseeable near-term future. I wrote an immediate follow up saying just that, but of course, I got a lot of readers from an Instalanche, which I didn't expect (no one expects an Instalanche!), and they just read the one post. So the second post is here; if you are thinking of making the argument that we should just get the state out of the marriage business, please read it.

Also, a lot of readers are saying that I'm wrong about marriage always being between a man and a woman, citing polygamy. I have been told this is a "basic factual error."

No, it's not. Polygamous societies do not (at least in any society I have ever heard about) have group marriages. Men with more than one wife have multiple marriages with multiple women, not a single marriage with several wives. In fact, they generally take pains to separate the women, preferably in different houses. Whether or not you allow men to contract for more than one marriage (and for all sorts of reasons, this seems to me to be a bad idea unless you're in an era of permanent war), each marriage remains the union of a man and a woman.

The reader who suggested that I don't know about causation: yes I do. These are all well established social science facts at this point: easing the divorce laws created more divorce, easing the ability to get benefits for illegitimate children increased illegitimacy, failing to cap the income tax allowed FDR to raise it to breathtaking levels without a constitutional referendum. The first easing of divorce laws took place well before women moved into the workforce in any numbers; the right to vote does not incur substantial economic benefits that might replace marriage.

Finally, to all the people who are pointing out that change is sometimes good: duh! I'm not swayed by the choosing of examples with high positive emotional indices; it was also a big change when the Nazis got made laws enabling them to herd homosexuals and jews into camps, and that doesn't make gay marriage wrong any more than it makes it right.

Furthermore, almost all of the examples that you've chosen were things where we understood the institution very well before we initiated the change; knew where it had come from, why it had arisen, and had ample historical examples to show us approximately what it would look like when it disappeared. This was not true of easy divorce, welfare benefits to the unwed, or the income tax, and it is not true of gay marriage. It's hard to call property requirements for voting an *institution*; they were, in the United States at least, extremely short lived. And does anyone doubt that female enfranchisement has had enormous unintended consequences, not all of them positive? A really fun experiment is to get a bunch of libertarian women around a table, point out that the women's vote is probably what ushered in the welfare state, and ask them whether or not they'd surrender their franchise to get a more personally pleasing result.

But I wasn't writing a brief about gay marriage. I was writing a brief against assuming that you, because you are so brilliant, already have all the answers. To my mind, most people on the "pro" side are summarily dismissing the idea that gay marriage might have large and unpleasant consequences; to my mind, that's a state of mind that many of my interlocutors here are trying to preserve with their comments. It is not ridiculous to think that a fundamental change in the character of a fundamental institution would have big effects. Acting as if it were is anti-intellectual.

(I've no doubt that most of the people against gay marriage are equally knee-jerk. But I'm a libertarian journalist living in Manhattan; I don't meet those people.)

Posted by: Jane Galt on April 3, 2005 04:31 AM

Jane, an absolutely amazing article. I'm in awe of your skill. One way that gay marriage effects hetrosexual marriage, and the most important in my opinion, is that it says a mother and a father do not count. That a child doesn't need a female parent, or a male parent. Two males can be just as good or two females. And marginalized men and women are going to believe that it's okay to produce children without being married. Because having a father isn't essential to raising a child. And too much of that mindset is happening already, condeming thousands of children to poverty.
Children, for optimal development, need both a biological mother and father in the household.
I grew up in the repressive fifties, and I welcomed the freedom of the sexual revolution. But then, I went to work for an East coast Department of Social Services, and I saw first hand the human destruction caused by that change in our social culture.
Society has a vested interest in preserving and encouraging marriage between a male and a female. That is why the practice of giving extra benefits to married couples has evolved. It is one act among many, to encourage men and women to marry. After all, it is easier to not marry and to not have children. Staying married and raising children is hard to do.

Posted by: Happy Batson-Jones on April 3, 2005 04:36 AM

Has anyone ever seen Jane and den Beste, together in one room? Just asking....

Fred Drinkwater: SDB is just the one to do it, too. But Megan McArdle is real, and brilliant also.

Jane Galt: Stupendous, a real tour de force. I think there is a grand unifying theory underlying your 3 examples, which is why I've given up libertarianism-so I didn't need much convincing. Nevertheless, this is the best argument, pro or con, that I've ever seen.

When I was a Manhattanite, back in the late Cretaceous, I don't think I could have seen things that clearly. Something in the water...

Posted by: Jim Noble on April 3, 2005 06:28 AM

You've written the definitive argument on the subject, regardless of the fact that you do not feel you've supported on side or the other.

Posted by: Sean on April 3, 2005 07:01 AM

"For almost all of Western history, and perhaps human history, marriage has been defined as the union of a man and a woman of the same religion."

Man and woman, yes. The same religion? Not so much.

A. Shariah contains explicit provisions for Muslim men marrying infidel women, at least Christian/Jewish ones.

B. St Paul's First Epistle to the Corinthians has guidelines for interfaith marriages:
[7.12 - 7.16] But to the rest speak I, not the Lord: If any brother hath a wife that believeth not, and she be pleased to dwell with him, let him not put her away. And the woman which hath an husband that believeth not, and if he be pleased to dwell with her, let her not leave him. For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband: else were your children unclean; but now are they holy. But if the unbelieving depart, let him depart. A brother or a sister is not under bondage in such cases: but God hath called us to peace.

C. And of course, varied Old testament prophets were continuily inveighing against Jews taking foreign brides. The fact that they kept having to do it suggests that this was not an especially uncommon practice. Sometimes these marriages are mentioned without being condemned -- Ruth and Mahlon, Ruth and Boaz, and Esther and Ahasuerus.

Sincerely yours,
Jeffrey Boulier

Posted by: Jeffrey Boulier on April 3, 2005 07:02 AM

A great post that goes way beyond the stated topic and lots of great comments.

Approaching issues with humility, which is the point of the post, is a character trait with huge positive externalities.

But if there are few humble individuals, can their be a humble polity?

What possessed our founding fathers that allowed the creation, at least temporarily, of a republic that attempted to institutionalize humility?

Is there any hope for us unless we are possessed with a spirit of humility?

Realistically, where on the continuum of arrogance to humility do each of us and the collective polity stand? Is there a relationship between our standing in liberty and our standing in collective humility?

Posted by: TJT on April 3, 2005 07:55 AM

Greetings---I find myself instalaunched into a really stimulating discussion and may I add a short comment. That whilst the status of marriage for heterosexuals has been downgraded at present but may become "fashionable" again, I think it would be wise not damage that special status that has evolved over the years. More sensible to just issue a "cohabitating certificate" that incorporates suitable legal rights for "same sex marriages" Then all will be happy. Also, apart from the legal aspects why do people who want "same sex marriage" wish go into an "institution" founded by heterosexuals. Why can't they do their "own thing". Why are they so limited-- "We want to get married"----PATHETIC!

Posted by: Julian on April 3, 2005 08:18 AM

      One thing that was brushed against but not developed: gays can already get married.  Just find a willing, unmarried person of sound mind and legal age, not too closely related to you, and of the opposite sex, and any unmarried person can get married.

      What?  You say gays don't want to marry people of the opposite sex?  Well, if you don't want to marry, don't.  There's no law requiring you to.

      What this debate is really about is taking the word "marriage," which has always and everywhere referred to 'a union between a man and a woman,' and throwing away the definition, and then applying the same word to a new definition, 'a union between two people of any sex.'

      The purpose of doing this, when you get down to bedrock, is to change the way people feel about homosexuality.  We're supposed to regard a male-male couple as being the same as a female-female couple, and both as being the same as a male-female couple.

      As a matter of fact and real existance, it doesn't look as if any two of these three kinds of couples is the same as one of the others.  Therefore, talk about whether 'gay marriage' will have an effect on marriage as an institution can therefore be answered, without conjecture, as 'Yes.  Their extent isn't known, but the changes will be large.

      In the novel Courtship Rite, a conservative politician says 'Tradition is what you call the solution to a problem, after you've forgotten what the problem is.  Take away the solution, and the problem comes back.'  That isn't always true, because sometimes the problem has gone away for other reasons.  And it isn't always a good reason to keep the tradition as sometimes, the benefits of getting rid of the tradition outweigh the costs of the problem, and sometimes if the problem comes back, you can find a better solution.

      But sometimes, you end up wishing you'd left well enough alone.  I strongly suspect 'gay marriage will be one of those times.'  If we must do this, let it be done in a few states, and let those who are skeptical watch from a distance.

      By the way, this discussion also shows why so few people are libertarian.  The desire of a large majority of the population to live in a society in which they can refuse to regard gay couples as being identical with straight couples is to be disregarded.  'You can live the way I find it acceptable.'  Some liberty.

THE SAUDS MUST BE DESTROYED!

Posted by: Stephen M. St. Onge on April 3, 2005 08:53 AM

Best wave-off title ever. Saved me the trouble of reading it. Thanks!

Posted by: Joan of Argghh! on April 3, 2005 09:04 AM

Brittain33, you know nothing about me or my beliefs about homosexuality;

Of course I don't, but my comment was about millions of people who feel they have a conservative impulse to ban gay marriage, not about you. Just as you may care deeply about gay people, my marriage may be the one that makes the world a better place, but then we're both arguing from anecdote, aren't we?

Posted by: brittain33 on April 3, 2005 09:12 AM

Excellent post, but I also find several excellent comments in disagreement.

The decay of the inner cities in the 60s and 70s I believe was an unintended consequence of desegregation and the incredibly stupid practices of "urban renewal". Real communities were systematically destroyed and disbursed by bulldozer and the wrecking ball. I believe the rising divorce rates were a consequence of that, rather than a cause. But even there, I think the overall change in the culture and changing attitudes on the rights of women had a stronger effect on divorce.

Aaron's post is right, but perhaps paints an overly bleak picture. Even as a gay man, I now live far from my partner and my 3 nearly-grown sons. The job does not necessarily demand it, but it is more efficient this way. It is tough for families of all types, and again - IMHO - is a consequence of the Corporatization of America, and the push in the last two decades to restore competitiveness to American business.

CyberSurfer asks for more perspective? Here is one. My partner of 9 years was diagnosed with cancer last September. In Houston, where he lives, the good folks at MD Anderson treated me as they would any member of the family - because my partner had signed a piece of paper telling them it was OK. Would I have gotten he same treatement in an emergency room in say, Vidor, Texas? I don't know, and hope never to have to find out.

If allowed to marry tomorrow, would we? No. The tax consequences would be highly un-favorable, community property laws would require a complete re-structuring of our wills, etc., etc. I think of that Joni Mitchell Song - My Old Man - "We don't need a piece of paper from the City Hall, keeping us tied and true." I seem to remember the words going....

Posted by: j3sdad on April 3, 2005 09:13 AM

(I've no doubt that most of the people against gay marriage are equally knee-jerk. But I'm a libertarian journalist living in Manhattan; I don't meet those people.)

Do you not come across these people in the conservative blogosphere and on your own comment threads? These people are more likely to read your blog than the liberals you are challenging, in fact, especially with the Instapundit link.

If you want to argue against the minority liberal opinion, you don't have to rationalize it, you can just do it. In the meantime, the majority of American opinion is on the other side--people who reject gay marriage without seriously or honestly weighing the potential benefits and disadvantages of the change.

Keep on fighting the good fight against the .3% of Americans living below 96th Street. When you're done, there are two ZIP codes in Cambridge you can work on.

Posted by: Brittain33 on April 3, 2005 09:22 AM

Thanks for a wonderful post.

Posted by: Jim Clay on April 3, 2005 09:41 AM

Jane, I loved the articulation of your ideas. I agree with your thoughtful analysis that large institutions do get harmed by those that refuse to acknowledge that harm is possible.
If no possible consequences can come from allowing gay marriage, than why do it? That might be one of the primary questions. Why do it?
Yes, yes, I've heard all the arguments in favor of it because people can't visit in the hospital. Horse pucky! Hospitals were the ones that coined the phrased 'significant other'. Hospitals will be the first to tell you that the bodies are on loan and not exclusive properties of themselves. Do we have armed guards in hospitals checking ID's and DNA to verify familial facts? And hospitals recognize legal guardianship and limited power of attorney in making medically urgent choices. So it is a terrible lie to use that as a smoke screen.
In truth, gay marriage carries some financial benefits that could be covered by civil unions and law markers could equalize them as such. Insurance companies recognize the non-working partner as being in need of health insurance so spouse and families come under their umbrella. It would be a simple task to legislate that civil unions are entitled to equal recognition of benefits. Our federal government takes big chunks of our money for our retirements and deems our spouses as beneficiaries. These are excellent reasons to defend gay unions. But by what logic does a judge have to rule against civil union in favor of gay marriage? Does that not legislate unnecessarily on the Holiness of Matrimony?
The question here shouldn't be why not gay marriage by WHY gay marriage.
I saw the destruction of the "free money" in the lower classes by welfare. Have a baby out of wedlock and you too can receive a check in the mail. Ludicrous to choose that life, but what about those whose choices are so very limited to begin with? Should a woman go work at a terrible, dirty, low paying job when the government offers her motherhood and stay-at-home for free? All she needs to do is that which she would do anyway. It removes the shot-gun wedding as a necessity, because big government will take care of her instead of the father of the child. The question here shouldn't be why not gay marriage by WHY gay marriage.
I hear the argument that encouraging marriage in the lower classes forces women to remain victims of wife beating red necks who get drunk and thrash them about. Really? All men are snakes who treat their wives as punching bags and it is only the government that saves them from that fate? So are we not taking weak, less financially viable gays and forcing them into marriage?????? Who speaks for them?
I am pro civil union because it does give individuals the opportunity to equalize benefits and have a voice in their money distribution. In fact, it might even encourage some to create a union so that both have mutual benefits in the same way that some marry so that one might, say, become a citizen of the USA or obtain a green card. If a stronger individual chooses to protect a weak individual by placing them under their umbrella of benefits in exchange for housekeeping services and loyalty, why not? But to legislate it as “marriage” is not required. If two same sex people are alone and struggling but not homosexual, they could benefit from sharing their lives and ultimately their meager combined assets by extending their insurance coverage and property rights and social security checks by a civil ceremony. So must they be homosexual? And wouldn’t that be better for society, if we then have less poverty stricken elders to have to support?
Again, I have not heard great arguments weighted for marriage as opposed to civil unions. Perhaps an articulate person could enlighten me as to why marriage is a must.

Thank you for your post. I enjoyed the arguments in the comments almost as much as your presentation of logic.

Posted by: Cynthea on April 3, 2005 09:51 AM

I think that the "non-working partner" shorthand is getting more misleading with each passing year--my partner worked 60+ hours a week as a freelance web developer last year, a lot more than I did at my job, but I was the only one whose situation offered benefits. My female coworker's fiance works at a frame-making shop, has worked full-time for several years, and he will be visiting the dentist for the first time in several years after they get married.

Anyway, no objections to what people have said and no gay angle here. It's a bigger economic issue in our economy.

Posted by: Brittain33 on April 3, 2005 09:58 AM

TJIC and Dave beat me to the punch, but I'll echo it anyway. This is a brilliant piece, intelligently and thoughtfully presented. Bravo!

Posted by: Scott Kelly on April 3, 2005 10:38 AM

Excellent post Jane. Thoughtful and provocative.

I might point out the reason why historically multiple wives (polygyny) was far more common than multiple husbands (polyandry). It has to do with the nature of the sex hormones testosterone and estrogen.

If one were to supplement all males with large doses of estrogen, and all females with large doses of testosterone, one would find more instances of polyandry and fewer instances of polygyny. You know, polygyny is quite common in the US, it is simply not sanctioned by the state. Using the method suggested above, one could essentially wipe out polygyny in one fell swoop.

Posted by: Hillary Kenry on April 3, 2005 12:18 PM

I don't really have much of an interest in this debate. Im full on hetero, and I think marriage is a failed institution. Im not saying every marriage is "bad", but about 60% of them end in divorce, and that certainly wasn't any religions intent. It seems to me everything in our society is getting much less stable, be it the number of jobs we work or the number of places we live over the course of our lives. Imo in this enviroment of change, its completely natural that the things a person sought in a spouse at twenty are very different then what they want at thirty. Whats better, that two unhappy people seperate, or stay together linked only by growing hatred? Religion would have us believe the latter, and that seems to be where the antigay marriage people draw their arguments(calling it tradition) and put their faith. Imo the only real social changes legalized gay marriage would have is an increase in people covered by health benefits, an upsurge in the marriage "industry" (cakes, tuxes, dresses, etc), and most of all, more divorces.

I don't agree with the overstated arguments of the pro gay marriage people either. I think that gay people today cannot begin to understand the prejudice a minority faced during segregation. People do not choose to be straight or gay imo, but they do choose how in your face they want to be with their sexuality. Thats a choice minorities never had.

Posted by: So Fabulous on April 3, 2005 12:33 PM

TJT, your post is itself worthy of book-length treatment; it touches upon nearly all issues of pubic debate.

Posted by: Will Allen on April 3, 2005 12:47 PM

A great post! Very thoughtful and well reasoned. Of course, I may have found it thoughtful and well reasoned because I agree with your major point: it is unwise to make major changes to a social institution without first understanding why the institution was created in the first place.

Some have chosen to quibble with the details of Jane's examples. She never said that change in the divorce laws was the ONLY thing that lead to increased divorce rates. Nor did she say granting welfare benefits to un-wed mothers was the ONLY thing that lead to increased out-of-wedlock births. All she said is that these changes appeared to change the way society viewed divorce and having a child out-of-wedlock. Intended or not, the message was that society viewed these behaviors as acceptable. The stigma that attached to being un-wed and with child was largely removed -- or at least it became far easier to remove oneself from among the segments of society that disapproved. Within a generation, we've gone from treating being pregnant without marriage as cause for scorn to being a cause for celebration.

Some others have chosen to believe the controversy can be solved by simply granting civil unions to gay couples. To them, evidently, this is just a minor change. This ignores the potentially powerful affect that granting society's official approval to these unions might have. As Jane pointed out, just because YOU would not alter your behavior does not mean no one else would.

Posted by: David Walser on April 3, 2005 01:01 PM

Here in the USA we have fifty little testbeds where we can see what happens. It turns out that the LOWEST divorce rates (1994, latest stats I could find) are in:

Massachusetts
Connecticut
New Jersey
Rhode Island
New York
Pennsylvania
Wisconsin
North Dakota
Maryland
Minnesota

And the HIGHEST divorce rates:

Florida
New Mexico
Idaho
Alabama
Indiana
Wyoming
Tennessee
Oklahoma
Arkansas
Nevada

Draw your own conclusions.

Posted by: Undertoad on April 3, 2005 01:09 PM

RebeccaH - how do you know that the increase in drug use by lower-class males is not a consequence of the reduced incentive for lower-class women to marry the father(s) of their children?

Jane - John Derbyshire wrote an interesting article about one possible consequence of gay marriage. Derbyshire quotes Steve Sailer:

On the other hand, there's a process of gay ghettoization that goes on when straight men recognize that some institution is disproportionately attractive to male homosexuals. Broadway, for example, has gone from a popular national institution to a largely gay ghetto in recent decades. It's hard to get a serious discussion going of this since nobody wants to be accused of being homophobic, but I see it everywhere. I don't think marriages will be popular enough among gays to start this process, but I worry that weddings will be. It wouldn't take much to get the average young man to turn even more against participating in an arduous process that seems alien and hostile to him already. If some of the most enthusiastic participants become gays, then his aversion will grow even more.
and expands on the idea.

Posted by: Anthony on April 3, 2005 01:43 PM

>By this reasoning, the big change is the social acceptance of gays and gay relationships.

I'm not sure this has happened. There might a bemused veneer of "not that there's anything wrong with it"-type acceptance going on, but immediately below that surface in 95% of the population is repugnance and a feeling that it is wrong. Have you never felt the relief people feel when they realize it is OK to say they are against gay marriage in your company? The media loves to make it seem that everyone is now tolerant and accepting, but they've only achieved that by creating a mccarthyite culture of intimidation.

Posted by: lubbuck on April 3, 2005 01:46 PM

I'm a little confused. What conclusions am I supposed to draw? Do North Dakota and Massachussets share some attitude toward marriage that differentiates them from the rest of the US? What about Idaho and Florida?

Posted by: Zach on April 3, 2005 02:11 PM

I think I'd support the "changing attitudes toward homosexuality" argument if some state were to pass a ballot initiative supporting gay marriage or civil unions.

Posted by: Zach on April 3, 2005 02:17 PM

If you'll take a quick look at marriage rates, you'll see that the states with higher divorce rates also have more marriages in the first place. It seems likely that the marginal extra marriages are more frail, but still better than no marriage. Not exactly a sterling argument for the "blue states are better" side.

Posted by: Jane Galt on April 3, 2005 02:23 PM

Same goes for individual churches choosing to solemnize marriages.

Posted by: Zach on April 3, 2005 02:23 PM

The obvious conclusion would be that the marginal cases Jane mentions are more likely to be found in the latter than the former, and thus Jane suggests that the former consider the effects of the changes they advocate on the latter.

As for Instapundit being "conservative": whatever. Prof. Reynolds offers an alternative liberal vision that scares the pants off of a conservative "liberal" establishment who have so fallen in love with their own traditions that they can't recognize what innovation even looks like anymore, so they try, and fail miserably, to paint him as a conservative. As if.

Posted by: Ged of Earthsea on April 3, 2005 02:27 PM

"Is this post going to convince anyone?"
Well, you convinced me. I admittedly hadn't given the issue that much thought -- little more that "Geez, why not allow gay marriage -- what harm can it do?"
Your reasoning and historical examples show that if nothing else such a far-ranging matter deserves much more study and consideration before any changes are made.
Thanks,
Paul

Posted by: Paul Worthington on April 3, 2005 02:34 PM

Scrolling through the comments, I looked for discussion of the results of gay marriage being introduced in Scandinavian countries, which no one seems to have mentioned. Jane discussed the theory behind not tampering with ancient institutions; Scandinavia provides the evidence that many of the naysayers are right to worry. Marriage rates are falling significantly, even when children are involved, and relationships are not lasting as long. Fewer children living with biological, married parents means higher rates of abuse and social pathologies.

As far as I can see for the argument that marriage should be privatised, I would agree that the state should stay out of most private relationships, unless there is a compelling interest; and encouraging people to form the best possible home for children is such a compelling interest. Society needs children, and children need a mother and father.

Thank you for a fine essay.

Posted by: SR on April 3, 2005 02:45 PM

What a disingenuous, intellectually dishonest essay. First of all, "having no opinion" on gay marriage means you are against it --- much like someone in the 50's saying they have "no opinion" on desegregation. If you can't be bothered to have an opinion, it means you are for the status quo. But we know you have an opinion, you are against it. Just come out and say it; fact is, you are ashamed so you push this "well personally I don't care, but here are a hundred reasons why we shouln'n let 'dem faggots murry."

Sorry you don't like the arguments in favor of gay marriage, but you can't tell those of us in favor how to argue.

Posted by: Joe on April 3, 2005 02:55 PM

A very good, thoughtful post. However, I do have a few comments that haven't been dealt with yet.

Firstly, in the Good Old Days, marriage wasn't necessarily for life---check out old graveyards, and you'll find many a "John Patriarch" with three, four, or five "beloved wife of" stones around his stone. On the distaff side, cases like the Wife of Bath in Chaucer were far from unknown---many men's jobs were dangerous as all-get-out. Part of the problem nowadays is that we may have been expecting all people to live up to an ideal that few, in the old days, did or could live up to. Serial monogamy isn't new. It's just that in the old days, it was caused by death, not divorce.

Secondly, the "high price" of divorce in the Old Days had its own unintended consequences---like murder. In George Orwell's classic essay "On the Decline of the English Murder," he describes the parameters of the murders we still remember, and all of them (save only Jack the Ripper, who was in a class by himself) occurred in the domestic home, usually between husband and wife---and many of them could have been averted had divorce been less difficult and utterly disgraceful. Dr. Crippen is a classic example of this.

I agree with you about the unintended consequences of the welfare state. Myself, I'd be willing to pay for welfare, _on condition that recipients got permanently sterilized._ I am sick and tired of paying for generation after generation of permanent moochers---and if someone's desperate enough to agree to this, they're almost certainly in great need.

Another disincentive to marriage, among many of the men I know, is the fact that while divorce has become almost too easy, the laws around it are still geared for the earlier times when women mostly couldn't get decent jobs and could expect to be stuck with the kids. Too many family court judges see any woman as a victim and any man as an Evil Swine Who's Deserving Of A Good Solid Reaming. Even if she unilaterally initiated the divorce because her _feelings_ told her to (not b/c he's an alcoholic or a wife-beater or anything like that, mind you) she gets to ream him good, and usually alienate any children from him into the bargain.

Posted by: Technomad on April 3, 2005 03:17 PM

Thank you Jane,

That was a masterful essay. I have been long aware of the Law of Unintended Consequences, and you provide some excellent examples of that.

Much food for thought.

Posted by: R. Denis Wauchope on April 3, 2005 03:36 PM

Thanks for the insight, Joe. I, at least, am appropriately impressed.

Personally, I think that the painting of those who do not support 100% gay marriage rights RFN as bigots or religious nuts is doing a good job of making sure that the day when gay marriage is accepted (and it *WILL* be accepted) further and further into the future...

Posted by: Jaybird on April 3, 2005 04:37 PM

If you can't be bothered to have an opinion, it means you are for the status quo.

Another possibility is that you are for the status quo for the time being In the case of gay marriage, there are actually good reasons for such an opinion. Fifteen years ago, no more than a handful of people had even thought of gay marriage, let alone advocated it. Michael Kinsley relates how he assigned a think-piece in The New Republic on gay marriage to Andrew Sullivan back in '89, with neither of them thinking it anything more than a dorm-room hypothetical. Suddenly, you can't be a Democrat in good standing without backing it. Too quick by half. At this stage, favoring the status quo on gay marriage until more data have come in and societal feelings about gays in general have stabilized may be the most sensible course of all. It may take a generation or two, but it's not as though the burdens the gay marriage ban are either particularly acute or becoming notably worse. As much as the Left may desparatelly need another civil rights movement, it's pretty hard to cast the status quo as Jim Crow II.

(Before people get their flamethrowers out, it should be noted I favor gay marriage legislation, although I wonder if civil union legislation might be more sensible at the current time. I oppose gay marriage imposed judicially, however. The issue simply isn't urgent enough for the damage that sort of thing inevitably brings. If you still wish to roast me for ideological impurity, go ahead. You won't be the first.)

Posted by: dave on April 3, 2005 04:44 PM

Simply brilliant Jane, a tour-de-force! I'll be sharing this with all of my libertarian friends who also "have no opinion" on the matter ;)

Posted by: Marty on April 3, 2005 04:54 PM

Suddenly, you can't be a Democrat in good standing without backing it.

Yet, somehow, you can be the Democratic nominee for President without backing it. Not to mention a senatorial or gubernatorial nominee in approximately 47 states.

Posted by: Brittain33 on April 3, 2005 04:59 PM

Im pretty indifferent here. I think marriage for anyone is a very sketchy proposition. I absolutely hate going to church for any reason. If gays are dumb enough to want to get married, they should be able to. I havent read anything convincing that gay marriage would harm society as we know it. Its not like the number of gays already cohabitating are going to increase, there just going to get a piece of paper that makes it far more likely that their relationship will end in court and hurt them financially. I guess I sound antimarriage rather then just indifferent, but if your going to have kids its one of those things you really should do if for no reason other then to give the lil' sob in training a fair chance.

Posted by: So Fabulous on April 3, 2005 05:06 PM

Joe - "Sorry you don't like the arguments in favor of gay marriage, but you can't tell those of us in favor how to argue."

No, I don't suppose she can tell you how to argue, be she might able to tell you how to persuade. There is a difference.

Hint: Those of us who do not favor gay marriage THINK we have legitimate concerns. We do NOT think of ourselves as bigots. If all you do is call your opponents bigots, we'll think you are talking to someone else and will tune you out. If you want to persuade us, address our concerns.

Posted by: David Walser on April 3, 2005 05:09 PM

I certainly did not intend to trigger a pointless "Is Instapundit a conservative?" discussion. I don't care how he labels himself, and have heard that he supports marriage equality.

My point is that many of his readers are conservative and they are currently Jane's audience. I do not think that all of his readers share his views on gay marriage, and the comments here seem to bear that out.

Posted by: Brittain33 on April 3, 2005 05:19 PM

David Walser, for the record, of the 100 posts on this thread, only four use the word "bigot" and three of them are people like yourself objecting to being labeled as such.

As a personal advocate of marriage equality and a society-wrecker in my own right, I am perfectly happy not to use such language and to condemn those who do so indiscriminately. I don't think you need to focus so much of the current discussion on fighting that battle.

Posted by: Brittain33 on April 3, 2005 05:22 PM

Yet, somehow, you can be the Democratic nominee for President without backing it.

Sorry, should have written 'liberal' in place of 'Democrat'. Sloppy, and I should certainly no better.

In the case of Kerry, though, I thought the conventional wisdom was that he did back gay marriage, but just couldn't say so for electoral reasons. That's certainly what all the Kerry supporters I spoke to assumed. Politicians, even the good ones, lie.

Posted by: dave on April 3, 2005 05:24 PM

Dave, I see what you're saying. I agree that people were counting on Kerry not to take proactive steps against gay marriage, but in his case, he went far enough to establish his bona fide credentials against gay marriage.

To be specific, he publicly called on the Massachusetts legislature to vote to amend our own state constitution to ban gay marriage when they were meeting at a Constitutional Convention last year.

That's a rather strong and specific step. It was dangerous to the gay marriage movement because the votes in the legislature were so close, and indeed, an amendment banning gay marriage but mandating civil unions passed by only 5 votes.

With that step, it showed that Kerry was willing to do nearly anything to prevent the gay marriage movement from endangering his candidacy. Too bad he didn't get any credit for it from people voting with opposition to gay marriage in mind.

There's a greater issue here, which the Republicans have exploited very successfully: the identification of the gay marriage movement with Democrats. ALL the progress that has been made in Massachusetts and Vermont has been driven by individual citizens and interest groups pursuing their interests in the courts. The Democrats as a party want us to go away, both because of the political damage they've suffered and because many of them (like most Americans) don't actually agree with this aim. There's a reason almost no progress has emerged from state legislatures until recently, and only then very limited progress. Courts lead.

Posted by: Brittain33 on April 3, 2005 05:34 PM

Brittain33 - You are correct. For the most part, this discussion has been very civil. My comments, quoting Joe, "Sorry you don't like the arguments in favor of gay marriage, but you can't tell those of us in favor how to argue." were directed at Joe, not you.

Joe did not use the word bigot. Instead, he implied that his opponents reasoning could be summed up as: " 'well personally I don't care, but here are a hundred reasons why we shouln'n let 'dem faggots murry.' " I don't think it was too far a stretch to infer from this that Joe holds that only bigotry explains opposition to gay marriage. (It also seems he believes his opponents on this issue speak with a (bad) Southern accent, have difficulty in using proper English, cannot spell, and may only bathe once a week, but I may be reading too much into his comments.) In short, while not using the word, Joe did a pretty good job of calling his opponents bigots. All I did was point out that this approach is unlikely to persuade his opponents to his point of view.

Posted by: David Walser on April 3, 2005 06:15 PM

Brittain33 - "There's a reason almost no progress has emerged from state legislatures until recently, and only then very limited progress. Courts lead."

On this point, and many others, the courts should not lead. Under our system of government, the people, through their elected representatives, are to set public policy. Even if you are right on the policy question, using the courts to ram rod "x" down the throats of an un-willing population is a recipe for disaster. (I used "x" as a stand in for any controversial issue, not just gay marriage.) I believe that abortion would not be the issue it is today if the Supreme Court had not decided the issue for us. It is somehow far more palatable to have the legislature reach a compromise that you might disagree with than it is to have the courts end all debate. This is true even if the courts get the policy question right. If they don't get the policy question right, it may take a generation or two before the policy can be altered.

Posted by: David Walser on April 3, 2005 06:25 PM

This was a great post and generally good comments. Perhaps this is just where I live (the south), but I do not think that we have an overall 50 - 60% rate of failed marriages. Of all of my college acquaintances, in the 20 years I've known them, only three have gotten divorced. Two were very soon after the marriage (after a too-short engagement), only one was after having children. Same thing in my neighborhood, I'm very active in the neighborhood and I only know 3 divorced people my age (37) and only one of those divorces involved children. I have three sons and of all their schoolmates only 2 have had divorced parents!

However, I know many more people who are divorced who would be classified as baby boomers. I have aunts and uncles, as well as neighbors that came of age in the 60s/70s that have been not just married and divorced once, but divorced multiple times.

I think that those people that continue to marry and divorce repetitively must drive up the rates that you see reported in the press. And I just don't see that happening in our generation - more than likely because many people my age had to deal with the disasters that came out of the divorces of the 70s.

Pat

Posted by: Pat El on April 3, 2005 06:26 PM

using the courts to ram rod "x" down the throats of an un-willing population is a recipe for disaster.

So what recourse is there for injustice against a minority group? I'm not using emotional rhetoric, I'm being serious. If you were raising an African-American child in Topeka in 1953, with no prospect of ever being the majority in your state, what would you have done to get your daughter the educational experience she deserved? What had happened over the preceding 60 years to indicate that the legislatures would do anything on their own? What was the terrible drawback to Brown v. Board of Education?

Posted by: Brittain33 on April 3, 2005 06:37 PM

The second change produced another huge surge in the divorce rate, and a nice decline in the incomes of divorced women;

It did no such thing. Divorced women are better-off financially than divorced men, because of child support, alimony, and community property laws that were modified when no-fault divorce came along in the 70s.

Check Richard Peterson and Susan Faludi, the people who exposed the Lenore Weitzman fiction you're regurgitating.

Posted by: Richard Bennett on April 3, 2005 07:04 PM

Well, if you were in Topeka, Kansas, you would have a pretty fair chance of getting a better education by proposing antidiscrimination legislation through the normal political process. From what I've read on the subject, Kansas was selected as the test case because they actually were separate and equal, so that the courts couldn't dodge the issue by finding a practical lack of equality.

The legal front in the civil rights movement was one front, not the entire struggle.

Posted by: Zach on April 3, 2005 07:14 PM

John Kerry was against gay marriage before he was for it before he was against it before he was... hey! did you know John Kerry served in Vietnam? ...what were we talking about again?

My concern with gay marriage is this:

Pistachio corn flour, adjective democrat theocracy random.

There. I just defined every word in that sentence to mean whatever the hell I felt like making it mean at the moment I wrote it.

If society decides to change the language to have words mean the opposite of what they actually mean, all communication becomes pointless.

Posted by: Ed Minchau on April 3, 2005 07:20 PM

And I'm not trying to be cutesy in that last post. I think there's a pretty reasonable argument that courts only settle matters that people are genuinely ambivalent about, or where the consensus has shifted away from the old law. _Brown vs. Board of Education_ might have worked by itself in some area where people were ambivalent about segregation and had no deep emotional investment. In the deep South, I don't think it would have had a chance without the broader Civil Rights struggle. Similar intentions did almost nothing during Reconstruction, for example.

Posted by: Zach on April 3, 2005 07:21 PM

So what recourse is there for injustice against a minority group?

Publicity, public rectitude, courage, and time. This is America. We can eventually be convinced to let darn near anybody into the mainstream if they are playing by the rules. We will eventually be convinced to right just about any injustice if it's happening to people who can't be written off as "deserving it" or "whining" or "somewhere else". We love a moral crusade. That's how the gay marriage movement got as far as it did as fast as it did, in terms of public opinion. It would have taken a while (thirty years was my best guess), and until then gay couples would have had to keep lawyering up with powers-of-attorney, tightly drawn wills, and all the rest of it. Annoying and even humiliating, but not exactly poverty, lynching and separate lunch counters. Going to the courts, however, was strategically disastrous. In one stroke, it transformed what should have been a fundamentally conservative movement (what could possibly be more conservative than marriage?), into a fundumentally radical movement (what could be less conservative than using the courts to end-run the legislatures and public opinion?). The great mass of America simply doesn't trust people who's first recourse is litigation, a distrust that is historically quite well founded. Quite literally, the first that most of America heard of gay marriage was some judge in New England declaring it legal. You couldn't have insulted and infuriated those folks better if you'd tried. Nor could you have made Karl Rove happier.

Posted by: dave on April 3, 2005 07:53 PM

I'm amazed and inspired by such ruthless courage, rare intellect, and dispassionate objectivity.

If I could add anything, it's that every right carries unforseen obligations, which not all homosexuals seek. Whatever happened to leaving people the hell alone?

Posted by: Eric Scheie on April 3, 2005 09:08 PM

“Indeed, to this day, I find the reformist side much more persuasive than the conservative side, except for one thing, which is that the conservatives turned out to be right. In fact, they turned out to be even more right than they suspected; they were predicting upticks in illegitimacy that were much more modest than what actually occurred--they expected marriage rates to suffer, not collapse.”

Enough said. Liberals are too childishly optimistic. Conservatives categorically reject their Panglossian view of human nature. We are quite aware that the at least metaphorical reality of Original Sin is alive and well on planet Earth. William Golding’s haunting novel “Lord of the Flies” should be in everyone’s personal library.

Posted by: David Thomson on April 3, 2005 09:20 PM

Marriage is a particular thing the meaning of which we inherit as descendants of heterosexual ancestors who knew what it meant, respected, and practiced it. Their contemporaries who did not practice it lack descendants to inherit their attitudes.

Whatever the fraction of the population that is homosexual, it's pretty certain that the fraction of ancestors (we are descended from) who were gay is much closer to zero. Even homosexuals have predominantly heterosexual ansestors who respected and practiced traditional marriage.

Their desire for marriage is just as innate as it is for heterosexuals. The inclination to marry and the meaning of marriage come from the same place, and the heterosexual nature of it's meaning is simply a result of the fact that we are all descended almost exclusively from heterosexuals.

Changing the definition in a meaningful way is simply not possible. Creating a legal facade won't change the fact that people 1000 years from now will predominantly be descended from those of us who respect and practice traditional heterosexual marriage. That's where it's meaning comes from, not from judges or politicians or religion.

Posted by: boris on April 3, 2005 09:33 PM

Pat El, the "50-60% failed marriages" statistic is misleading, because of the fraction who marry and divorce multiple times. It is common knowledge that second and third marraiges are much more likely to fail than first marriages -- what is less commonly understood is that only around 30-40% of first marriages will fail. Which is to say, 60-70% of first marriages do indeed last "until death do they part".

Posted by: Marty on April 3, 2005 10:06 PM

We will eventually be convinced to right just about any injustice if it's happening to people who can't be written off as "deserving it" or "whining" or "somewhere else".

I'm having a really, really hard time believing that in light of several hundred years of mistreatment of African-Americans.

I can understand how someone would like to believe that--it relieves the majority of having to answer for mistreatment of minorities, because hey, perhaps their grandchildren will fight the battles they're not motivated enought to fight--but I do not find it convincing.

Posted by: Brittain33 on April 3, 2005 10:09 PM

Going to the courts, however, was strategically disastrous.

It is far too early to say that. Even with what happened last fall, I do not see how one can conclude it was a disaster. In the late 1990s, the city of Cambridge was unable to offer domestic partnership benefits to city employees because the state legislature refused to approve a home rule petition to allow it. Now Cambridge employees can get married and get rights equally, and the fruits of backlash would be civil unions, if anything. That's progress.

Note that conservatives now consider civil unions to be a conservative compromise, while five years ago, voting in favor of civil unions in Vermont EVEN THOUGH THE COURTS REQUIRED IT was an invitation to a brutal election challenge the following year.

Court cases have moved the ball way forward. Way, way forward. There's been a backlash, no question. Domestic partner benefits in some jurisdictions have been lost as a result, at least temporarily. But you can't argue that gay rights have been set back, because what we have gained is so much more than we would have had if we had done nothing, even if some has been lost. If we had gotten anything through legislative means in one state, we would have had the backlash all the same.

And in fact, some states are now moving forward on domestic partnership rights to match the example set by Massachusetts. I refer to New Jersey, Connecticut, and California.

What I see here is a "just so" story where every move to affirm human rights through the courts is criticized not on the merits but on the argument that any victory won there will be undone elsewhere. I'm sorry, backlash does happen, but not always and not always effectively. And very often, the progress you say will happen through other channels never happens.

Legislatures don't race to help the underdog. There's no question in my mind that in the long run the gay rights groups took the only route we had open to us, and achieved the only victory we could have achieved.

In the meantime, the people who were so offended by court cases on gay marriage are being rewarded by having their Social Security taken away from them. Perhaps it won't just have to be the gay voters who have to reconsider their priorities in the voting booth in the future.

Posted by: Brittain33 on April 3, 2005 10:17 PM

I'm curious--do people feel that Terri Schiavo's parents invited a backlash by taking their son-in-law to court, or no? Should they have pursued their efforts only in the legislature?

Posted by: Brittain33 on April 3, 2005 10:20 PM

Brittain33, the dispute between Michael Schiavo and the Schindlers was not fundamentally a human-rights argument. It was a domestic dispute between two not terribly savory parties.

Posted by: Anthony on April 3, 2005 11:35 PM

The scum blew their credibility by taking their case to talk radion and cable tv, and by putting Randall Terry out front as a spokesmodel.

You have to be pretty blind not to know what that meant.

Posted by: Richard Bennett on April 4, 2005 12:31 AM

Fantastic work once again. Not only are you one of the best writers on or off the web but the comments are much better than average as well. (This one excepted.) Quality seems to have attracted quality.


Posted by: Dave on April 4, 2005 01:39 AM

A couple of points. The three example arguments you question have a different form than the pro same sex marriage argument you're trying to refute. In those three cases, laws were changed that directly affected people, yet the argument was made that those same people would not change their behavior. For instance, in the divorce case, the laws affected the ability of straight people to divorce, which would clearly change their behavior (leading to a higher divorce rate).

The pro-SSM argument has to do with laws affecting one group (gays and lesbians) changing the behavior of another unaffected (directly) by the laws (straight people).

So in knocking down your three examples, you don't actually successfully question the pro-SSM argument, which has a completely different form.

As for your argument that we should keep marriage because it's no accident humans have married members of the opposite sex for time immemorial, that's a specious argument. People have murdered one another for ages too, and I can make the argument that it weeds out the weak. Clearly my argument is pretty stupid. Yours is, too.

You then go on to laud the specific benefits of marriage. The problem is, you're arguing against single parenthood, not same-sex marriage (and not very ably—correlation does not imply causation, after all, and you're ignoring crucial factors like the effects of the drug war, white flight, and a host of other factors on inner-city black communities). I think marriage is a good institution, too. That's why I think it should be extended to gay people, who deserve equal treatment under the law.

Posted by: Chris T. on April 4, 2005 01:57 AM

Your essay is completely unconvincing. You fail to explain why the unknown consequences are more important than equal rights. It's very easy for to remain neutral when you're not the one who's being screwed by the status quo.

Posted by: Hildegard on April 4, 2005 02:32 AM

The burden should be on people who seek to change the institution of marriage in this country. But that falls not only on people in favor of same sex marriage, but must inevitably extend to those in favor of banning it.

We know the affect of the constitutional ban in Ohio for example, where a couple of judges have interpretted the broad ban as also invalidating domestic violence laws. In Michigan there is a fight going on to remove domestic partner benefits offered by public Universities over the Constitutional ban passed there.

Its true, the institution of marriage has been between a man and a woman, but its equally valid and true that marriage is not the only recognized social institution in this country.

Laws in a majority of states allow single parents, unmarried couples, and even gay couples to adopt children. In fact, last I checked before the recent rise in homosexual hysteria only Florida had a blanket and specific ban on homosexual adoptions.

Many conservatives who seek to ban gay marriage look at it in terms of children, and what the best environment for them would be. According to the 2000 census there were 601,209 gay couples in the United States and Puerto Rico. 30% of these, or 180,363 had children. 56% of those couples with children, or 101,003, had 2 or more children living in the home. That would be according to even a rough minimum guess 300,000 children, and quite probably a good deal more than that.

It is convenient to ignore that 300,000 children when arguing about gay marriage because that brings an element of emotion into the issue. But how might a constitutional ammendment that includes a ban on the legal incidents of marriage affect these children? Wouldn't that be an important question to ask?

What if a ban on same sex marriage was passed constitutionally and gay couples were no longer able to adopt, and no longer could a gay parent have any rights in regards to his or her partner's child? Won't happen? That's what supporters of Michigan's successful ban of gay marriage told straight people who feared that it might affect straight unmarried couples who were receiving public benefits. Its what people in Ohio were told about their ammendment.

Am I saying gay marriage should be passed? Not necessarily. But I think people should think a bit more about the affect of banning it on other people. Afterall, we DO know what's happened so far when they've done it.

Posted by: Kendall M. on April 4, 2005 03:18 AM

Chris T: I don't have the stats on me right now, but if I recall correctly, having two parents correlates more closely with having two parents than it does with income, home placement, or level of economic opportunity. Somebody or other (maybe Soros?) once tried a project where he guaranteed a hundred dirt-poor inner-city NYC kids that he'd pay for their education and needs basically for life as long as they stayed off drugs and out of jail. The breakdown of the kids in his project was almost exactly the same as the breakdown of any hundred randomly-selected kids.

Also, your murder analogy is inapposite--a closer one would be "I don't understand why governments universally allow people to defend their homes from burglars with lethal force. This obviously just encourages violence and makes burglars more likely to hurt people if the homeowners stumble on them during the burglary. Let's ban it!" We know, generally, why people murder people; and we know governments have since time immemorial banned the practice. We don't have a clear conception of why marriage is always male-female, and we do know that governments have since time immemorial enshrined the practice. This doesn't mean we can't extend marriage to homosexuals; it just means we should be slightly careful.

Posted by: Jadagul on April 4, 2005 03:19 AM

Jadagul: Again, you (like Jane) are talking about single parenthood, not same-sex marriage. If you want kids to have two parents, and gay people are already adopting kids, you should support same-sex marriage so that kids of gay parents can have two parents. I have yet to see a study that shows having two gay parents is worse than having two straight ones if you correct for other variables.

As for your second point, I, like everyone else who has paid attention to the insights of feminist thought of the last several decades, have a pretty good idea why governments have always enshrined heterosexism. It's in large part for the same reason governments have enshrined sexism. This idea that we should affirm a tradition simply because it's always been there and half of us can't figure out why is simply moronic. Real people are suffering from officially sanctioned heterosexism—this is not an abstract discussion where it's ok to sit back and wonder wistfully what the effects of providing equal treatment under the law might be.

Posted by: Chris T. on April 4, 2005 04:56 AM

Willing causation into effect where it does not exist.

I'm surprised this sophistry has been so well received; please head your own advice: "I'm asking for is for people to think more deeply than a quick consultation of their imaginations"

Posted by: Invictus on April 4, 2005 06:57 AM

Chris T: this isn't intended to be sarcastic, but could you point me to this explanation of our enshrinement of heterosexism? In essentially every culture ever discovered? I'll take your word that one exists, but I'd like to see it, or at least hear a brief explanation.

As for the first point I made--well, first, I'm embarassed by the glaring typo in the first line that I'm only now noticing. Read it "Future success and well-being correlates more closely with..." And this wasn't intended to respond to the main thrust of your post, because I don't happen to have a really good response (on the other hand, I have no clue whether the gender of the parents matters, and if it does, we should be darn carful). This point was meant to address the throwaway in your last paragraph, that Jane is "guing against single parenthood...and not very ably—correlation does not imply causation." I was pointing out that there is good evidence at least for the claim that weakening marriage is an extremely bad thing, that we should be very careful of.

Posted by: Jadagul on April 4, 2005 07:46 AM

See, the thing is, civil unions for gay people will weaken marriage (it already has in France), and increased cohabitation outside marriage will also weaken it, further encouraging that behavior in heterosexuals. If you want to save marriage, include gays.

Heterosexism is enshrined in practically every society on the planet through traditional gender norms. The two go hand in hand, and the argument is made quite well in Gender Trouble by Judith Butler, now a classic in the field of gender and women's studies. If you want to also staunchly defend sexism, be my guest. But I personally cannot separate a commitment to feminism from a commitment to gay rights. The two go hand in hand.

Posted by: Chris T. on April 4, 2005 08:36 AM

This post is nothing more than another indication that more than a few idiots have started web sites. Big deal.

So, "Jane," what would be your proposed "rational basis" for the state not recognizing relationships of same sex couples (so-called "gay marriage", although the state never inquires into the sexual orientations when issuing a marriage license) on the same basis that it recognizes relationships of opposite sex couples? "Rational basis." You know. 14th amendment stuff.

Posted by: raj on April 4, 2005 09:40 AM

A note on causation vs. correlation: It strikes me that even though other sweeping social changes besides direct action concerning the issues at hand no doubt contributed to the rise in divorce, increases in the welfare rolls, and a much-greater-than-anticipated percentage of income's going to the gov't, it's always going to be like that. Social "experiments" can't be controlled adequately; they always take place in a context of society, going about its everyday business, evolving on its own, independent from the issue of concern.

I'd posit that we could not have predicted all the consequences of welfare's being extended to single moms, or the income tax, or the easing of divorce laws, even if they HAD taken place in a vacuum. In their societal context (mathematicians please correct me at will), it seems to me that the possible consequences take on some characteristics of chaos. It's an argument for going sloooowwwly, in the absence of a pressing human/civil rights need to accept the possible negatives because someone's being materially harmed.

It's my probably imperfect understanding that the material benefits of marriage, such as they are (except for the happiness quotient and living longer, which we can't legislate anyway), are generally available to gay couples, though they take more effort. Getting on a partner's health insurance may be an exception in some (many?) cases. The point's been made here that there's a big difference between being gay today and being black in the '30s; is the material harm currently suffered by gay individuals or gay couples sufficient to overwhelm society's generally-necessary inertia, as it certainly was for African-Americans in the midcentury? Being a standard-issue member of a heterosexual marriage in a nearly 100% (publicly) heterosexual neighborhood, I can't know from my own experience.

Posted by: Jamie on April 4, 2005 09:47 AM
Heterosexism is enshrined in practically every society on the planet through traditional gender norms.

The two sexes were created by nature not society. We inherit heterosexism from our ancestors the same way we inherit breathing air and drinking water from our ancestors.

We're air breathers and water drinkers because that's how we evolved as mamals.

We're heterosexist because that's how we evolved as humans.

Fair or not, everybody's ancestors were almost exclusively heterosexual who predominantly practiced traditional marriage. It is from them we inherit the inclination to marry and the innate sense of the meaning of marriage.

Biology is not destiny but this case it is a very strong influence. Ascribing SSM opposition to society or bigotry is wrongheaded and counter productive. There's nothing in the biological argument that precludes institutional support for gay couples but trying to change the definition of innate biocultural mating practice is taking a tiger by the tail.

Posted by: boris on April 4, 2005 09:54 AM

I awed. Wow. I haven't read the comments yet but what a great piece. thank you...

Posted by: Kevin on April 4, 2005 09:56 AM

The anti-gay-marriage side has introduced some concerns about how gay marriage could harm strait marriage (Jaybird - decrease in fecundity; Happy Batson-Jones - Further devalue the role of fatherhood; Anthony/Derbyshire - if marriage becomes "gay" strait men will avoid it out of homophobia.)

The pro gay marriage side attributed other motives to them (Britain33 - dislike of members of historically alienated classes, Joe - we shouln'n let 'dem faggots murry; Chris T - The half of the population that doesn't know enough about feminist thought to understand that it's just 'heterosexism' are morons) [I salute Chris T, who is in fact starting to address the issue of "who put the gate there and why" and is willing to consider his opponenets merely ignorant, rather than evil.]

Well, my concern is none of those listed above. My concern is that something bizarre that *nobody* here has anticipated will pop up out of nowhere and bite us in the ass.

Obviously this can't be an argument for not doing things, because applied consistently it results in stasis. But it *is* an argument for going slowly whenever possible, incrementally whenever possible, in limited areas at first whenever possible, and reversibly whenever possible.

Legislative acts are more easily reversible than court decisions. Doing things one state at a time carries less risk than doing the whole country at once. Civil unions are halfway to marriage, and therefore are a less risky experiment. This isn't an emergency situation, lets be slow and careful.

Posted by: ralph phelan on April 4, 2005 09:58 AM

Oh, this is silly. Stanley Kurtz, the right wing nut case from National Review, opined that gay people should not be afforded equal marriage rights because straight bois don't want to see out gay men as lead actors in movies. That's dumb.

And so is Galt's post.

Posted by: raj on April 4, 2005 10:10 AM

BTW, it would be interesting to know what operation is sponsoring this web site. Does anyone know?

Posted by: raj on April 4, 2005 10:12 AM

Britain33 - dislike of members of historically alienated classes,

To be precise, I was talking about a lack of empathy and understanding, not necessarily dislike. People are willing to go with the default and let things continue as they have because they don't know any gay people well and don't care about the direct effects on us of their unwillingness to weigh the factors involved.

Posted by: Brittain33 on April 4, 2005 10:35 AM

Didn't have time to read all the comments, but I did search the comments for the word "spiritual," which appeared only once, and not in context with the spiritual meaning of marriage.

The very issue that the pro-gay marriage people are missing is that this is not a rational debate, nor is it meant to be. Marriage is a sacrament. While you may be convinced that it "evolved" to serve practical needs, and that the institution only needs to be addressed in terms of practical needs, our religious traditions say that marriage is, in fact, a spiritual institution. I doubt that this spiritual mission of marriage is an accident. Nor do I think that the spiritual practice of considering marriage to be between a man and a woman happened by accident.

That this reality is ignored in this discussion speaks volumes. What happens to this spiritual institution if we think of it only as a pragamatic institution? Changing an irrational institution, that developed to serve irrational "spiritual" needs, may produce far reaching consequences that are unimagineable. In other words, it might be wise to consider why the ancients saw homosexuality as something to be heavily regulated and proscribed. Maybe they actually had a reason.

Posted by: Stephen on April 4, 2005 10:40 AM

Brilliant post. All laissez faire libertarians should read it. It is amazing how people can celebrate how great chaos theory is, but not recognize its utility.

Anyhow, I have a simple solution for ANY couple who wishes to commit to each other and spend the rest of their lives together: Just do it. Why do you need to get married?

Now, if you want to play by certain rules, then society has some benefits for you. These rules are packaged together into something called marriage. If you don’t like the rules, then marriage isn’t for you. And before you get all bent out of shape, please keep in mind that marriage isn’t here to benefit individuals (maybe that’s why libertarians have so much trouble with it), it’s to benefit society as a whole.

And if you are gay, I don’t know what you’re complaining about. Any gay man can marry any gay women he chooses and vice versa. What’s the problem?

Posted by: Cygnus X-1 on April 4, 2005 10:42 AM

By the way, Ralph, you are no better than the people you attack if you characterize all your opponents as people who think opposition to gay marriage is evil and irrational.

You may have missed it earlier in the thread, but I am married myself. It should go without saying that my parents were not over the moon when I first told them. How do you think that went?

First, put into your mind that I am a human being like you who values his family relationships and understands the fine nuances of communication and not burning bridges. Second, ask yourself how you think I approached my parents on this subject. Do you really think that I called them evil bigots and refused to talk to them?

Onto a larger scale--why do people presume that gay people don't know how to function in a society where we are a minority, where we have to presume that most people we meet are either uncomfortable or unfamiliar with gay people, where you don't make any progress if you insult them at first glance? Do people really think I made it to age 28, knowing I was gay for more than half my life, without picking up that lesson? It's like white people lecturing blacks on how they shouldn't always play the victim card and cry racism, as if black people don't know full well how to get by in a predominantly white society and don't let perceived slights and injustices slide by on a constant basis.

I tend to think that people don't actually believe that all gay "activists" on the Internet shoot first and ask questions later, that it's easier to demonize your opponent than to put yourself in their shoes and imagine how you would argue in their place. I don't need to be patronized by straight opponents of marriage how to conduct myself when I discuss marriage--I have had far more conversations than you on the subject, with people whose opinions are far more important to me and to the political process. I have canvassed for openly gay candidates for the legislature and discussed the issue with voters who opposed gay marriage. I have hopped in and out of the closet at will with regard to my wedding ring based on a snap judgment of how someone will react and whether it's worth it to bring up the subject. Discussion boards are necessarily going to be more heated, but that's precisely because they're of so little import in the long run. Almost everyone commenting here has already made up their mind, and many others drift in and out of the conversation without picking up anything.

As an analogy, I seriously doubt that Jane is as snarky with her friends and coworkers as she is here, or she wouldn't have a friend in the world who wasn't a hardcore Republican. But it works as a web persona. Similarly, I'm quite different in person.

So, for those of you who oppose gay marriage, I'm sure you've had people attribute motives to you that you didn't like. Maybe they're right, maybe they're wrong. I'll tell you one thing, though, only you are responsible for standing up for the "correct" motivations and communicating your feelings. You're not advancing any conversation by complaining about mean (or as Jane might say, meeeeeeeeeeeeeeean) gay people calling you bigots and how they're the real reason you won't listen to them. Stand up for yourself, defend your beliefs, and if you can do it without resorting to bigotry, insults, or tears, you'll prove the case you've set out to make about your good intentions.

Posted by: Brittain33 on April 4, 2005 10:48 AM

Stephen, am I to take it that you oppose civil marriage in general, and interfaith marriages that are sanctioned by the state?

Posted by: Brittain33 on April 4, 2005 10:49 AM

By the way, I meant "when I first told them of my plans," because they'd all met my partner before and we informed them several months before the event. My mother was upset when I first broached the subject. She ended up toasting her new son-in-law at the rehearsal dinner, which all our families attended.

Posted by: Brittain33 on April 4, 2005 10:57 AM

Ralph, I'm not anti-gay marriage.

I just think that there will be a decrease in fecundity.

I think that the tendency to get married in order to have children will decrease somewhat... Which is not to say that people will stop getting pregnant. But I think that there will be fewer pregnancies that were planned by both parties.

No way to measure this, of course. I'm just thinking out loud.

And, again, I'm not anti-gay marriage. If homosexuals want to get married, I see no compelling reason to prevent them from doing so.

Posted by: Jaybird on April 4, 2005 10:58 AM

We seem to be taking for granted in this conversation that government social programs are good. But I would argue that medicare, welfare, and social security have done more to destroy marriage than any other laws.

When they were enacted, these social programs changed the moral and economic calculus that created marriage and encouraged child rearing. So it shouldn't be surprising that marriage falling apart. It also shouldn't be surprising that marriage is falling apart faster among the populations (regardless of race) that use government support most.

If you want to strengthen marriag then we should end welfare, medicare, and social security. If we do that, you could remove all laws and social stigmas towards unwed motherhood, gay marriage, and divorce without destroying the institution of marriage at all.

-Pete

Posted by: Pete on April 4, 2005 11:10 AM

I know this is lost amongst the magnitude of comments, but I had to declare that this was one of the most moving pieces I have read.

I use "moving" because it is non-rational, and the vastness of the institution of marriage, as demonstrated, is unknowable on the rational level.

Posted by: Eric on April 4, 2005 11:10 AM

I have had some experiences with children involved in gay marriages. The children in these "marriages" have virtually no say about this. Mostly, they hate it and can't wait to get out. One girl took to running with a gang until she was old enough to live with her (straight) father. Her mother had tried to turn her into a lesbian and earned her everlasting hatred.

Posted by: Glenn on April 4, 2005 11:17 AM

Civil unions are a canard- two brothers living together could get one for tax reasons. The only way gay marriage will work is if it's enacted democratically. Judicial fiat will not cut it. For exampe

Desegregation: Desegregation was accomplished via judicial fiat- and I am ASHAMED it was not done via legislatures. However, it is worth noting that many schools are not desegregated, and are not equal.

Abortion: Right now probably more americans oppose abortion than support it, especially in its more barbaric forms (partial birth). What good is a marriage if its not recognized by the people around you? Might as well be a civil Union.

Great post.

For the record I am pro gay marriage, but only if I can get enough of my neighbors on board.

Posted by: al on April 4, 2005 11:18 AM

Wow. That essay was almost as cool as Den Beste coming out of retirement.

Lamont

Posted by: lamontcranston on April 4, 2005 11:33 AM

Brittain33 sez:

>>Going to the courts, however, was strategically disastrous.

"In the late 1990s, the city of Cambridge was unable to offer domestic partnership benefits to city employees because the state legislature refused to approve a home rule petition to allow it. Now Cambridge employees can get married and get rights equally...."

Meanwhile quite a few states have amended their constitutions to preclude gay marriage. So now, if ten years from now there's a slim majority in favor of gay marriage it won't get enacted. You'll have to wait until there's strong enough sentiment in favor of it to amend the state constitution again.

Now I don't think people amended their state constitutions to prevent themselves from changing their minds about gay marriage. They do it to prevent courts from imposing it on an unwilling populace. And now you've got a much bigger barrier to change than you had before. I'd call that "backlash."

Posted by: Ralph Phelan on April 4, 2005 11:39 AM

Stephen, you get an F in church history. Marriage was "spiritualized" by the Council of Trent, the first church council to require the presence of a priest to solemnize marriage. In the Judaism of the Old Testament, marriage is even further from a sacrament—it's an exchange of property.

We're not talking about religious marriage here—no one I know in the pro-SSM movement wants to force the Catholic Church to marry the queer people they're so terrified of. Churches and individual clergy members will be free to make their own policy on solemnizing same-sex marriages.

What we're talking about is letting people get civil marriages so inheritance and adoption are easier, so they can visit their partners if one of them is hospitalized, so that foreign halves of same-sex couples can come to the United States like foreign spouses of straight Americans can now, etc. And contrary to what a previous commenter said, no, all of those rights are not available to gay people now, and many of them are not available through civil unions.

Posted by: Chris T. on April 4, 2005 11:53 AM

"The scum blew their credibility by taking their case to talk radion and cable tv, and by putting Randall Terry out front as a spokesmodel."


Nice bit of lefty tolerance there ... the "scum" just lost their daughter. I'd expect my parents to make common cause with Ol' Scratch himself if my life were in the hands of my ex.

On topic, though, terrific post.

Posted by: Spex on April 4, 2005 11:56 AM

Excellent essay.

Posted by: BillyRay on April 4, 2005 12:09 PM

The state has traditionally been organized around a consensus religion, or a state religion. After all, it was the Holy Roman Empire.

Once again, the spiritual side of this discussion has been dismissed as "irrational" and beyond the pale of discussion. Why did the state feel it was essential for society to embrace a consensus about religion and spiritual life? Just out of a whim? There was no practical reason for doing so?

OK, so you are all hyper-rationalists, and you think that rational considerations are all that need to be considered. Again, this is an intentional form of blindness. Once again, what if you are wrong? What if the traditional human inclination to organize the state and the community around a consensus spiritual life has a reason for being?

And, no marriage did not begin with the Council of Trent, and the proscription against homosexuality is not new. It appears in the Old Testament, in the story of Sodom and Gommorah.

I'm glad it's so easy for you to dismiss religious and spiritual tradition as irrelevant. This is precisely the blindness that I think Megan is noting. The commentors to this board are convinced that rationality, and government policy can be isolated from the spiritual and religious. Maybe you are wrong. Why are you so insistent that this not even be considered?

The blindness evidenced by the commentors to this board is your insistence that your rationalist viewpoint is all that should be considered. You cannot separate the religious and spiritual functions of marriage from the state legislation surrounding marriage. If you do, you are messing with a very complex mechnism. This is called hubris, and it is very well represented among these comments.

Posted by: Stephen on April 4, 2005 12:11 PM

Jamie wrote: "It's my probably imperfect understanding that the material benefits of marriage, such as they are (except for the happiness quotient and living longer, which we can't legislate anyway), are generally available to gay couples, though they take more effort." Are you kidding?! There are thousands of laws with the word "marriage" in them. Those laws, therefore, only apply to married couples. For example, a gay person's partner can - and will - be forced to testify against him in court, something that would never happen to a married heterosexual. This is not something that can be corrected with "a little effort" on the part of the gay person and his partner. It does not take but 2 minutes research to find a list of similar laws that cannot be taken care of with a few papers and a little effort on the part of gay and lesbian couples.

Posted by: Virginia on April 4, 2005 12:12 PM

Ralph, of course there's a backlash. What I've said is that a backlash would have been inevitable. If Massachusetts had legalized gay marriage through legislative actions, you still would have had conservatives in other states rushing to keep themselves from having to recognize marriages effected in that state, and there would also have been plenty of politicians willing to use the referendum process to harness that popular sentiment to their advantage.

But here's a contradiction I'd like to hear your response to. You say there should be legislative and popular support for gay marriage before it comes to pass--that's the way it should have been done. Well, taking that for granted, that's all you need to pass a new amendment in those states repealing those DOMA amendments. They passed with a legislative vote and 50%+1, after all. Why is it a difficult barrier to overcome the amendments--and yet gay people should be expected to meet those same requirements before any change is made in the first place? Is that supposed to convince me the legislative route is more efficient?

I'd much rather fight the battle in Ohio and Michigan again in ten years after having had gay marriage as an institution in Massachusetts, Connecticut, New York, and New Jersey than as a fictional bogeyman of the conservative imagination. The court decision triggered a backlash (as did the useless San Francisco moves), but the ball was still moved very far forward. I stand by my assessment.

In the meantime, there's a bit of backlash to the backlash in those states. People now have to defend restrictions on spousal abuse laws because they no longer apply to a woman who gets the shit beaten out of her by her live-in boyfriend. Same-sex couples will fight on the friendlier terrain of health benefits instead of marriage, because the AG of Michigan has worked to strip away health care from couples. The debate will carry on in earnest. Thank God.

Posted by: Brittain33 on April 4, 2005 12:21 PM

Jane,

Great post. I'm not surprised that your fellow libetarians would attack the reasoning you make. But your criticism is spot-on. I think that a precautionary principle is apt, and should be encouraged, to avoid basic disruptions of society that you cite to (like divorce). You're not the first defender of freedom to invoke the necessity of careful understanding of things before destroying society's basic social institutions (see Edmund Burke), and so you enjoy good company. It is to the little Robespierres, who want to mess with long-standing tradition, that should answer for their claims.

However, the hostility from your fellow libetarians stems from a more basic complaint. This post gets to more than gay marriage. It instead deals with the fundamental limitations on freedom that necessarily come with a SOCIETY, a CULTURE, and a CIVILIZATION. Of course there is a revolt against the idea that "The limits of your imagination are not the limits of reality." To libetarians, the limitations of their imagination ARE the limits of reality. Thus, we get calls for the abolishment of all drug laws, the abolishment of current understandings of marriage. The abolishment of all so-called "morals legislation" (though they never explain if they mean laws against murder, domestic violence, securities fraud, or just stuff dealing with sex). These prospects are advanced because libetarians cannot imagine that, for example, if drug laws were abolished, there'd be a MASSIVE increase in drug users. Well, maybe there will and maybe there won't. But reasonable people do not argue abolition of drug laws without considering the possible effects. In my experience, most libetarians do. They care not, or if an adverse effect happens, it's worth it in the name of "freedom." The "freedom" to have a multitude enslaved to drug addition, or the "freedom" to have no so-called "morals legislation" protecting your Church from being next to a hard-core strip bar, or from a financial adviser using fraud on you. These are "freedoms" that society can do without, and has done without for decades.

I'm in favor of tightening divorce laws, just as I was in favor of welfare reform. I'm also so-called against gay "marriage" for the same reasons.

Now, perhaps the libetarians will call me a fascist or a liberal for advocating for such things like "securities laws" and other morals legislation, or even for drug laws. But reasonable people understand the need for these things. It's not for nothing that libetarians make up only a minor percentage of the American populace. I respect a critical discussion of freedom from libetarians, but mostly I find it a mere complaint against restrictions that THEY couldn't see applying to THEIR lives. As you said, Ms. Gault, that is not the focus of the discussion. It's not the casual libetarian who advocates legalisation of all drugs who is the issue, it's the 15 year old kid pressured from his friends.

I commend you for discussing gay marraige in this way, and I encourage you to apply the reasoning elsewhere.

Posted by: Sydney Carton on April 4, 2005 12:27 PM

Despite all the well-reasoned words in this blog, I still see a glaring deficiency, as in all arguments that gay marriage will motivate straight people to marry less and/or divorce more easily. What exactly is that motivation?
In the case of welfare it’s very easily apparent what motivated the change in marital behavior among welfare recipients: they received money for not marrying (and this coincided with an economic change whereby poorly-educated, low-skilled workers could no longer earn a family-supportable wage). Also, in regards to divorce it’s also easy to see why, with divorce laws relaxed, more people would divorce. Every marriage contains a certain amount of conflict and friction. The 19th century divorce laws (and the social stigma associated with divorce) formed a higher barrier restraining the effects of that conflict from destroying the marriage, but with the laws relaxed the higher-conflict marriages simply fell apart.
But exactly what pressure or motivation would heterosexuals experience to change their marital behavior is gay marriage becomes legal? I simply cannot conceive of anything.
We need to remember that for all the grand talk about “society” and the “culture” choices are still made by individual men and women; that’s where the buck stops.
Back in the 60s and 70s liberals undertook a “root cause” search for the reasons for the increase in crminal behavior. Not surpringingly perhaps thes ecauses turned out to require the very sorst opf policy solutions that liberals were urging anyway. Conservatives however said, Nonsense, and instead pointed out that the only “root” cause that mattered was the choice of the criminal to commit his crime and hence the solution was to increase the csot of crime to the criminal. Today it seems as conservatives are on the root cause quest in the matter of family breakdown. Ratrher than hold individual men and women accountable for making bad choices they would rather scapegoat a group that has plauyed no part in theose choices and then urge, as a solution, those policies they favor anyway.
Anyone see a problem with this?

Posted by: JonF on April 4, 2005 12:36 PM

JonF, you hit the nail on the head. It seems like "we can't KNOW" can be stretched to the limits of plausibility and beyond, and excuses people from having to explain irrational lines of argument.

Posted by: Brittain33 on April 4, 2005 12:44 PM

"People are willing to go with the default and let things continue as they have because they don't know any gay people well and don't care about the direct effects on us of their unwillingness to weigh the factors involved."

Brittain -- You've made similar comment's before, but I'm not so sure it's true. Given the large majorities by which anti-gay-marriage amendments have passed in every state that has had them, it seems unlikely that none of those voting for the amendments knows any gay people well.

It seems more likely that some people voting for anti-gay-marriage amendments are in the closet on that issue. I would guess that's more likely true if they do know gay people; they don't want to offend their friends or get in an argument with their family members.

Btw, I live in Kansas, which has a "defense of marriage" amendment on tomorrow's ballot. I have seen several "vote no" signs in yards. I have not seen any "vote yes" signs. A local television station conducted a poll, showing that the amendment would pass by a vote of about 55% to 45%. We'll see what the results are after tomorrow, but I would be really surprised if the amendment carries less than 60% of the vote, and would not be surprised to see it cary 80%. In other words, I'm pretty sure there are some silent yes voters in this state.

Posted by: denise on April 4, 2005 12:45 PM

brilliant.

Posted by: Steve on April 4, 2005 12:49 PM

Brittain33 sez:

"Ralph, you are no better than the people you attack if you characterize all your opponents as people who think opposition to gay marriage is evil and irrational. "

But I don't think all my opponents think opposition to gay marriage is evil and irrational (as Jane said "our judgement is all we have" and we're guessing at both the risks and the benefits; I can easily believe that some people's honest judgement will come out differently than mine). I merely quoted those few who actually came out and said so.

And I actually do know gay couples, and I'm glad that there's now a place they can move to and get married. I'm just arguing:

(1) It's time to slow down, see how things work out, and give the rest of the country a chance to catch up. It's *not* a good time to push for gay marriage nation-wide.

(2) Doing things via the courts should be a last resort. It tends to cause all sorts of "collateral damage" both to society as a whole and to the movement that took to the courts in particular. People who lose at the polls grumble and go home. People who lose in court keep on fighting (see the abortion issue for an example).

Posted by: Ralph Phelan on April 4, 2005 12:51 PM

To Stephen and Chris T, on the subject of the spiritual aspect of marriage:

Why can't marriage both be a sacrament and be available to gay couples? I'm pro- gay marriage and anti-civil union for essentially conservative reasons: I believe marriage is a crucial part of society, good for all, good for children, etc.; all the arguments the anti-gay-marriage folks drag out. To my mind, however, and this is where I am consistently frustrated by the likes of Stanley Kurtz, among others, this is the very reason to extend it to those gays who want to enter solemnly into the institution. Just as I think it ought to be venerated and revered - and not, very specifically, diminished to "just a piece of paper" or a pragmatic/economic arrangement - I think we should encourage people whose unions will do it justice to enter into it. Marriage is important, and marriage can be a sacred thing. More strong, thoughtful marriages would strengthen the institution of marriage, not weaken it. Relegating marriage to a quaint religious ritual or purely legalistic requirement, or giving all the benefits without the (supposed) commitment (ie., civil unions, which will of course have to be made available to all) will do far more harm to the institution and society than the potential addition of same-sex couples to it.

By the way, one can throw up all the examples in the world of kids running away from gay-headed families and being impressed into being gay (someone did that further up), but I'd bet there are 50 million (give or take!) more of those examples in hetero households, whether for alcoholism, emotionally abusive or stunted parents (just to name a few very common "complications"), or any number of lifelong "conditions." Not to say that there may not be additional complications in a gay household, but since when is "it's harder" a good argument?

Posted by: onon on April 4, 2005 12:58 PM

Terrific post, and excellent comments.

It seems that the human race has conducted an extremely long term experiment across virtually all cultures and religions. The question: under what conditions can we best reproduce, find personal happiness, and coexist socially. The dramatic consensus is that monogamous relationships between one man and one woman tend best to produce these results. Are there exceptions? Sure. But the data seem incontrovertible.

Consequently, societies have formalized this realtionship both civily and religiously. We call it marriage.

But what is it about the relationship in and of itself that has produced this result? Are we hard wired for this relationship. Is it a condition of our human natures? A divine law? All of the above? An accident? I don't know, but we should be very careful not to ignore the elephant in the living room. Our great experiment argues that marriage is between a man and a woman.

We the people can sanction what ever other relationships we choose, but those would not be "marriages."

Posted by: Old Dad on April 4, 2005 01:02 PM

"We're not talking about religious marriage here—no one I know in the pro-SSM movement wants to force the Catholic Church to marry the queer people they're so terrified of. Churches and individual clergy members will be free to make their own policy on solemnizing same-sex marriages."

Chris T -- I flat don't believe you on this point. I might have believed it before the Lawrence decision (which I support), because at that time the argument (which I believed) was "simply overturning these sodomy laws, which don't have much popular support anyway, won't lead to gay marriage, and it's ridiculous and fear-mongering to argue that it will." Well, the ink wasn't dry on the decision before suddenly gay marriage was the issue.

I can really see once gay marriage is allowed as a matter of law, the call will be to revoke the tax-exempt status of churches that don't marry gays, or to take other action against such churches (and individual clergy) who don't go along. In fact, your own language that the Catholic Church is terrified of queers, reveals your contempt for the Church's position.

Posted by: denise on April 4, 2005 01:14 PM

Denise, I'm certain there are many silent "yes" voters both in Kansas and elsewhere in the country. I have not yet encountered anyone, other than a few customer service people, who was anything but congratulatory to me on my marriage. Yet I know full well some of them must disagree with it. It's statistically impossible for it to be otherwise. Most people have enough basic decency to not make an issue out of it.

Here's the point I make. Given the virtual absence of gay couples from many communities in most states, and the general insularity of many people and religious communities, I'm not sure if many people know gay couples beyond the most superficial level, if at all. Certainly many of those who do know gay couples will still oppose marriage equality. However, I don't think that simply knowing that the two men down the street are gay, or that a coworker is gay, is enough to overcome the (I use these terms neutrally) apathy and ignorance about their lives. Most Americans are willing to be civil to gay people and to interact with us normally. A large number of these civil people don't want to know anything about my life; they're tolerant of my right to have a normal working life, but they get uncomfortable if I'm open about it. I see this reaction quite often.

The problem gay people face is that everyone, ourselves included, starts with the default assumption that gay marriage is either wrong or unnecessary. To get to a point of accepting gay marriage requires motivation, either through knowing someone's relationship closely, or to experience such a relationship one's self. I've seen people close to me convert from opposing gay marriage, and I can tell you, I would know if they were lying. They speak from conviction about gay marriage in words I would use, which is how I know. But if they weren't related to me or close to me, I doubt any of them would have thought about it. I know that if I were straight, I may well be on the fence about it or not care; I know that as a person, I don't have the deep passion for justice that I've observed in, say, the straight couple who are friends of ours who officiated at our wedding.

The real problem with referenda is that they force people to speak up on an issue that they may be largely ambivalent about, or at least not exercised about, even though they surely have an opinion when asked. The "silent yes" people are the same ones who would never lobby their representative to strip health care benefits from gay couples and would not preach hellfire at gay teenagers. Yet they counted in that group when the referendum is passed. I think there needs to be a more sophisticated assessment of where Americans stand. And more discussion, all around.

Posted by: Brittain33 on April 4, 2005 02:02 PM

Jane,

I'm a little late to the game, but Wow! Absolutely brilliant post.

I think this is where federalism comes in. Let Vermont or Massachusetts experiment with non-traditional families for a couple of generations, and the rest of us can watch and see if that makes things better, worse or has no effect at all. Just don't force the rest of us to suffer the experiment along with them.

Posted by: DBL on April 4, 2005 02:03 PM

the call will be to revoke the tax-exempt status of churches that don't marry gays, or to take other action against such churches (and individual clergy) who don't go along.

That's ludicrous. Positively, absolutely ludicrous. And now I remember that you've said this before on this board, a few months ago, and I responded to it then, but never got a reply from you.

Let's assume, for a moment, there are gay people who want to use the civil authorities to get themselves into a church. That isn't how it's worked so far with gay clergy, etc.--it's always been pursued within religious hierarchies and religious courts--but for the sake of argument, grant that someone will do something that's never been done before to get married by a clergyman who doesn't want to be there. There is not a single judge in this country who would rule against a church on this count. This is the very heart of freedom of religion and any wacky call you can dream up and attribute to activists is still going to carry no truck with the Constitution.

Did you know the Mormons refused to ordain African-American ministers until the late 1970s? It wasn't an unofficial rule, it was official theology. Were they sued? I don't know. Were they sued successfully? Absolutely not. They changed when the head of the Church had a revelation that this rule should change.

This was 15 years after the Civil Rights Act was passed by Congress and upheld by the federal courts!

Let me ask you this: can you imagine a Catholic suing a rabbi for refusing to conduct an interfaith wedding? Can you then imagine a judge siding with them and revoking the temple's tax-exempt status?

Can you imagine two Catholics suing a Church because, after counseling, a priest refused to marry them? Has that every successfully happened?

You know, I have some patience for "we don't know," but on this count, you need to put your feet back on the ground and acknowledge the great weight of past experience, Constitutional precedent, and simple human nature that makes your fears unsustainable.

Posted by: Brittain33 on April 4, 2005 02:12 PM

Both Edmund Burke and Russell Kirk have mined the issue of the underlying pillars of civization in some detail. This was an excellent summary thereof.

Kirk's The Politics of Prudence is a good place to start. He states:

It is old custom that enables people to live together peaceably; the destroyers of custom demolish more than they know or desire. It is through convention—a word much abused in our time—that we contrive to avoid perpetual disputes about rights and duties: law at base is a body of conventions. Continuity is the means of linking generation to generation; it matters as much for society as it does for the individual; without it, life is meaningless. When successful revolutionaries have effaced old customs, derided old conventions, and broken the continuity of social institutions—why, presently they discover the necessity of establishing fresh customs, conventions, and continuity; but that process is painful and slow; and the new social order that eventually emerges may be much inferior to the old order that radicals overthrew in their zeal for the Earthly Paradise.

Conservatives are champions of custom, convention, and continuity because they prefer the devil they know to the devil they don’t know. Order and justice and freedom, they believe, are the artificial products of a long social experience, the result of centuries of trial and reflection and sacrifice. Thus the body social is a kind of spiritual corporation, comparable to the church; it may even be called a community of souls. Human society is no machine, to be treated mechanically. The continuity, the life-blood, of a society must not be interrupted. Burke’s reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to he gradual and discriminatory, never unfixing old interests at once.

Posted by: Pogo on April 4, 2005 02:33 PM

I thought it was an excellent read. Great examination of the effects of socio-economic change. Does this mean that the day will come when you're walking down the street and you trip on a stick and penis falls in your ass? Meaning, will instituting gay marriages bring out the gays in droves so much so that it would be hard to avoid impaling myself on the stick that tripped me? I doubt it.

I think this woman is wrong about divorce. When they reformed divorce I'm almost certain they knew the divorce rate would climb. You don't make something easier and expect it to remain difficult. If you give everyone who can't hit a home run in softball (i.e., me) the right to use a big pink bat, the home run rate will skyrocket. It's statistical fact. I bet it would be hard to find anyone involved with changing divorce policy to see it as this woman see's it. Rate of change, that is.

I believe she has it wrong on welfare too. I believe there is a small segment of our population that exclaims, "Let's go screw and make another baby, we need an extra $500 to support our increasing crack habit." Although this may be true, I have to believe it's a horrendously low head count. Changing welfare policy to include wayward girls didn't open the legs of more women looking for an alternative means of income, but rather it increased the welfare line items on the congressional budget. This policy was more to satisfy the need for increasing the size of government, which by the way, is the staple of Democrats. Increasing assistance is a way to appear liberal, but quietly oppress. Adversly those oppressed often vote for who they believe is aleviating the oppression by offering support. It's a crazy theory, but affermative action was suppose to take minorities out of the ghetto and into productive society. We're still waiting for that policy change to kick in, huh?

America is kind of like the 'fence' analogy in that piece, except we don't use reason as libertarians would like us to - we just destroy the fence because it satisfy's a short-term goal - "Get that friggin' fence out of my way I'm trying to walk here." We always destroy something beautiful in this country to indulge the short sighted few!

Get ready for Chaps On Chaps weddings! 'Cause they're coming and there's nothing we can do about it ..........

Posted by: Mark G on April 4, 2005 02:35 PM

It seems the debate is quickly devolving into a question of allowing same sex marriage or banning it. That seems logical because it changes the status quo in both cases.

However, why is it that NO ONE is discussing the effects of constitutionally banning SSM on heterosexuals and children of homosexuals? as I said earlier, there has already been some effects felt in Ohio and Michigan. The neutral position should seem logically to be leaving the law as it is in each state, not leaving the definition intact and enshrining it into the state or federal constitution.

Posted by: Kendall M. on April 4, 2005 02:45 PM

All of you people talking about civil rights and cheaper food by buying in bulk have it exactly backwards: Society doesn't sanction marriage because it is good for the participants/spouses. It sanctions marriage because it is good for society. So the question, "Would gays be better off if they married?" is completely off point. The qestion is, "Would society be better off?" (Murders would be better off if we repealed laws against murder. Would society be better off?) Let's say we could peer into the crystal ball and know with certainty that gay marriage would reduce homosexual promiscuity and reduce the incidence of AIDS by 10,000 infections per year. Should we legalize it? Well that depends on whether the corresponding "cost" in illegitmate births is 1,000 or 1,000,000 per year.

Marriage is, all other things being equal, the best institutional setting for raising children to be healthy, well adjusted, productive members of society. That is why Society sanctions marriage. An intelligent, skilled woman has a high probablity of being a successful single parent, but if she is married to her children's biological father, the odd for the children go up, so I don't care if she would feel more fulfiled without him. I just want to minimize the risk that her kids will rob me some day. If you think gay marriage is a good idea, tell me how legalizing it will help make then next generation of America's children "better" than the generation that will follow if nothing changes.

Posted by: Clever Screen Name on April 4, 2005 02:59 PM

"My point is that many of his readers are conservative and they are currently Jane's audience. I do not think that all of his readers share his views on gay marriage, and the comments here seem to bear that out."

Paying attention to what people actually think and taking the time to persuade us instead of dictating to us through the courts is a liberal concept in my book.

If you insist on acting like a conservative and continuing to concentrate power in the hands of an elite few, somedday folks will figure out that it is you who are the conservative, not Glenn or Jane or their readers.

Posted by: Ged of Earthsea on April 4, 2005 03:03 PM

Marriage is, all other things being equal, the best institutional setting for raising children to be healthy, well adjusted, productive members of society. That is why Society sanctions marriage. An intelligent, skilled woman has a high probablity of being a successful single parent, but if she is married to her children's biological father, the odd for the children go up, so I don't care if she would feel more fulfiled without him. I just want to minimize the risk that her kids will rob me some day. If you think gay marriage is a good idea, tell me how legalizing it will help make then next generation of America's children "better" than the generation that will follow if nothing changes.

That's simple enough. At least 300,000 children live with a gay couple as their parents. Tell me how banning gay marriage and the rights that go along with it will help those children? I think its pretty clear how they might be benefitted with it legalized.

Posted by: Kendall M. on April 4, 2005 03:14 PM

Legalizing gay marriages also forces the government, religious sects, and bedrock conservatives to advocate the acceptance of kinky sex. They would also have to reverse sodomy laws.

Can you imagine the policy discussions on the floor of congress and in the halls of small town USA discussing the elimination of Sodomy as a sexual rite of gay men?

Never happen!!

Posted by: Mark G on April 4, 2005 03:22 PM

Kendall M. wonders why we have to ban SSM through a FMA (Federal Marriage Amendment). The answer is because judges are so arrogant. Suppose you and I were walking down the street and we found a vial of anthrax lying on the ground and you suggest that we should just leave it there until the authorities come along. Well, we’d have to trust every other person who came along before the authorities to leave it alone as well.

Letting states decide for themselves is a wonderful idea that is hopelessly impractical. The only way states (i.e. the citizens and their elected representatives) will get to decide is if judges stay out of. Yeah, right! As if! The judges in Massachusetts took a document written several hundred years ago by a bunch of homophobic puritans…

Wait a minute. Let’s be clear that the Massachusetts Constitution was written by a bunch of men who wrote state laws that provided capital punishment (YES EXECUTION) for the heinous crime of homosexual conduct.

The Massachusetts judges took this constitution and concluded that — this document that was written by people who put homosexuals to death —and these judges concluded that the document contained an iron-clad right for homosexuals to marry. Yeah, right.

Maybe gay marriage is a good idea, maybe it’s not. I honestly don’t know. But I do know that allowing arrogant judges to make up whatever laws the feel like is terrible and is an order of magnitude worse than any damage gay marriage could do. That’s why I support the FMA. Just to poke those arrogant bastards in the eye.

Posted by: Clever Screen Name on April 4, 2005 03:32 PM

Actually Clever Screen Name, I was wondering if there are some unintended consequences to the FMA. You're right, I do oppose it. I oppose it because I have yet to hear a compelling reason to "poke those arrogant bastards" in the eye when it might affect people that you don't mean it to.

I assume you have no ill will toward children with homosexual parents. Lets say the FMA becomes the law of the land. Logically, since many people hear seem to believe children are one of the "legal incidents" of marriage which could not be conferred on homosexual couples there is going to be a problem. You have 300,000 children who can't constitutionally be with their parents. What now? Or, lets say the biological parents have custody, and at least one of them is part of the homosexual couple (ignoring the possibility the child was adopted for a minute.)

Say that non biological parent was critically injured and in the hospital. Then lets say the child is in school and becomes ill. The non biological parent has NO right WHATSOEVER to pick up the child. The family of the biological parent has disowned their son/daughter for being gay and they've had no contact in years. What will be done with the child? THAT is what I want to know.

Posted by: Kendall M. on April 4, 2005 03:43 PM

Excellent thoughtful article. Too many of the arguments in favor of "gay marriage" are simply rhetorical devices designed to shift the burden of persuasion from proponents of "gay marriage" to opponents. These range from rights-based arguments ("Why deny gays equal rights to marry?") to charges of bigotry----some overt, some more subtle ("You obviously don't know any gays, because if you did, you wouldn't oppose gay marriage"). Yet another is the one Jane attacks---the one that goes, "I can't conceive of any harm that would come to me or my marriage if gays are allowed to marry---so why not let them marry? 'Unintended consequences'? What are those....?"

The bottom line is that the burden lies on proponents of gay marriage to persuade others that "gay marriage" is a good idea for everybody---not just themselves---, and they have to do it the old-fashioned way: through democratic consensus, not judicial or rhetorical flim-flam.

Posted by: Iconoclast on April 4, 2005 03:44 PM

Reason published recently a piece called "Objections to These Unions - What Friedrich Hayek can teach us about gay marriage" by Jonathon Rauch that makes this very same point: http://www.reason.com/0406/fe.jr.objections.shtml

I agree with this to the extent that I value cultural institutions. But when it comes to gay marriage, I see nothing more than a minority being discriminated against. Gay marriage may hurt the institution of marriage, but that is because society views gays as vile and immoral, not because they're two men of the same gender. Saying that same-gender marriage is so different that it may in of itself destroy the institution of marriage is abstract, unprovable bullshit.

It's the public's PERCEPTION of gay marriage that will affect the institution. And it's a perception fueled by government discrimination. It's hard to be viewed as equal if you're treated unequally, not to mention villified and loathed.

Posted by: Captain Blammo on April 4, 2005 03:51 PM

Great post. I would add some more nuances...

No one mentions just how exquisitely challenging it is for a male and female to bridge that gender gap to get along with each other. I mean, men and women are so different...kids know it at age 8 and must outgrow their aversion. I think people need an incentive, an extra perk or societal honor, to brave this chasm between genders. The honor of marriage is their reward for making the leap.

Also, regarding the usual argument re: how do childless marriages foster healthy kids. Well, we can set examples of the peaceful coexistence that is possible between the sexes, i.e. modeling. How many kids from broken homes, especially multiple broken homes, are very sanguine about their own chances at successful marriage? Not many I'd imagine. Witnessing a successful marriage on a day to day basis is a lesson in living for them. I hope that my marriage has been a lesson for my 19 yr old stepson, that it will give him some hope that yes a man and woman can get along for longer than it takes to jump in the sack. Even if it's just learning that you say "please" and "thank you" to your spouse as well as to strangers is an important insight.

Posted by: carol on April 4, 2005 03:59 PM

Mark G says:

That's simple enough. At least 300,000 children live with a gay couple as their parents. Tell me how banning gay marriage and the rights that go along with it will help those children? I think its pretty clear how they might be benefitted with it legalized.

Mark G. is focusing on the wrong people again. It is not the 300,000 children of gay parents that I am worried about, it’s the 300,000,000 children born to parents over the next 100 years whose views on marriage are shaped by Society’s pronouncement that marriage is a benefit to spouses, not Society. No one can tell you what the impact on those future kids will be. Like Jane’s essay, sure the 1,000 kids who had better lives because their unwed mothers got welfare appreciated it. But there are now millions of kids born each year out-of-wedlock and a very large proportion of them will spend virtually their entire lives on welfare. Who would have guessed that being kind to widows would create over a million kids where their best hope in life is to be a benign parasite, at worst, a convicted parasite.

Posted by: Clever Screen Name on April 4, 2005 04:05 PM

Carol - How does that address the 300,000 children living with homosexual couples according to the 2,000 census? Or, how does it address children who happen to be gay?

As to your first argument, it could just as easily be said that homosexual couples have trouble finding acceptance in society. Marriage and committment to each other should be their reward for that.

Posted by: Kendall M. on April 4, 2005 04:06 PM

Re: I can really see once gay marriage is allowed as a matter of law, the call will be to revoke the tax-exempt status of churches that don't marry gays, or to take other action against such churches (and individual clergy) who don't go along.

Why has this not happened then in the case of the Roman Catholic Church and divorce? There are a heck of a lot of divorced Catholics who are excommunicated—far more (I suspect) than thgere are gays and lesbians wanting to marruy ion the Catholic Church (or any other non-gay friendly church). Yet there has never been a lawsuit against the Catholic Church for discriminating against its divorced members.
The asnwer of course lies partly in the fact of seperation of church and state: its is the state after all which really makes a marriage in our country, and as long as you can get that license from city hall you’re married no matter how many bishops tell you you’re an adulterer. Moreover, if the Catholics Church dumps you for remarrying there are other churches that will welcome you with open arms—how many divorce Catholics have become Episcopalian, Eastern Orthodox or joined some other divorce-tolerant denomination? The same will apply to gays. Most will be satisfied to have city hall give them its imprimatur, and those who want a religious ceremony will be able to go to MCC or various other gay friendly denominations to get that.

Posted by: JonF on April 4, 2005 04:06 PM

Clever Screen Name - I'm not Mark G. But as to your point, yes, its true, welfare had a negative impact especially when it extended to unwed mothers. But actually, its interesting that you're making that comparison. Unwed mothers can at any time choose to wed. They're as a general rule heterosexual so they have a choice to wed or not to wed.

How does that relate to this situation? Gay couples aren't choosing not to wed, they're FORBIDDEN to wed the people they're in love with. The children of these couples ARE going to be affected by banning gay marriage in the EXACT way allowing unwed mothers to get welfare were affected in fact. The unwed mothers had no reason to marry, so they didn't. Gay parents CAN'T get married, so they won't. Does THAT make sense?

Posted by: Kendall M. on April 4, 2005 04:16 PM

Brittain -- To the extent you're arguing that people who do have close friends/family who are gay are more likely to support gay marriage, I have no doubt that's true. Having read your follow-up, it seems we probably both agree that it's unlikely that all such people do support gay marriage. I had thought your original post made the assumption that all "yes" voters had no close relationships with gays. so I think we come out in agreement on that point.

On the point about religious freedom, I'm sorry, but I'm still not convinced. A lawsuit to revoke the tax exempt status is of course an extreme example, but there are a lot of other ways to try to undermine the Church. Mainly it would be use of the media and other tools to marginalize the Church in society. It's been done before, and often, although we seem to be on day 3 of a nine-day moratorium on such activity.

My basic point is that I don't believe people who say, "It will be perfectly acceptable for those churches that don't want to marry gays to impose their rules; that will be just fine with everyone(even though it is based on terror of queers [Chris T's language])." It doesn't even make internal sense.

And, btw, I'm not saying any adverse actions will definitely take place. I'm just saying "That's positively, absolutely ludicrous," doesn't move me very far anymore.

Posted by: denise on April 4, 2005 04:17 PM

>Why has this not happened then in the case of the Roman Catholic Church and divorce? There are a heck of a lot of divorced Catholics who are excommunicated

How many Catholics do you know who are divorced and "excommunicated"? The Catholic Church does not "excommunicate" divorcees, and it regularly grants annulments of marriages so that parishioners can marry again. Your argument is not only impertinent, it is unfounded.

On the other hand, consider the case of Sweden: a modern, industrialized nation that recognizes "gay marriage." A Lutheran pastor last year found himself the subject of criminal proceedings for preaching in his own church that the Bible held homosexuality to be a sin. It is not purely fantastic therefore to posit that gays here will use the institution of "gay marriage" to attack religious communities like the Catholic Church for refusing to recognize such marriages. Laws in other modern Western countries such as Sweden have been used to criminalize anything less than full-on support for "gay rights," and I can well believe that there are people in the US who would gladly use the law in a similar fashion against their opponents. It is this type of menace, and the majority population's increasingly well-founded fear of it, that drives much of the opposition to "gay rights," including "gay marriage."

Posted by: Iconoclast on April 4, 2005 04:21 PM

JonF asks: "But exactly what pressure or motivation would heterosexuals experience to change their marital behavior is gay marriage becomes legal?"

I think that there are two general ideas behind marriage as it exists in society now:

1) Falling in love and getting married.
2) Getting married and starting a family.

Now, in the past, 2 would be at the top of that list. Little girls had dolls bought for them and baby carriages and they were trained from a very young age to grow up and do this stuff for real.

As 2 was displaced by 1, people had fewer kids. Marriage is about me and you, not you and me and junior... besides, kids get in the way, you have less stuff, more of it is broken, and you know how we never see Henry and Henrietta anymore? That's because whenever we want to do something, we have to do it at THEIR house after they put their kids to bed and they generally only have enough energy after that point to watch a movie no more challenging than "Welcome to Mooseport".

So we won't have kids and we'll have each other.

And the phenomenon I describe above will become a little more prevalent at the margins if gay marriage becomes officially sanctioned.

Marriage will become even more about two people falling in love and living together.


Don't get me wrong, I still think we should allow it.

But it is one of the unintended consequences that will follow, in my opinion.

Posted by: Jaybird on April 4, 2005 04:27 PM

An interesting, intelligent post. I disagree with it and it shows some parochialism but overall a reasoned argument saying - I'm not sure what changes this will bring.

Of course, someone could have made the same arguments in favor of segregation, female voting, inter-racial marriages, and both for and against prohibition.

There is also quite a collection of different marriage arrangements both matriarchal, patriarchal and other in the human relations area files set up for cross-cultural studies in ethnography and archeology

States exist to protect rights and the rule of law and judges must interpret the rights and laws. The present denial of civil union rights based on the sex of the partners will not stand. The only way it will be delayed is because of mob rule - democracy in pure form - ignoring the rights of a minority to be treated like everyone else.

Meanwhile gays have taken matters into their own hands. In years past they had commitment ceremonies. Now they are calling it marriage rather or not their government recognizes it or not. If a church doesn't like it then they don't have to marry them - mine will whatever they call the ceremony.

"How the Grinch Stole Marriage "

... "And the Gays had their Weddings. They promised for life.
They swore to be faithful, to Wife and her Wife.
The Husbands were happy, to each other they vowed To be Out and be Honest, be Gay and be Proud.
They told all their neighbors and friends of their Spouse, They told of their Marriage and sharing their house.
They said "We got Married." They shouted it loud.
Their marital status was "Married and Proud."

And the minute his heart didn't feel quite so tight, He whizzed with his load through the bright morning light.
And he brought back the rings, cake and Gay birdseed bags!
And he... ...HE HIMSELF... hung the Gay Rainbow Flag!
And The Lord looked down, at the proud and the tall, and said "These are my children, and I love them all."

____________________________________
The moral of this story is that we don't need a piece of paper and the approval of the state to get married. We can just get married. Instead of having a commitment ceremony, we can have a wedding. Instead of partners, we can have husbands and wives. Instead of calling our relationship a Domestic Partnership or a Civil Union, we can call it a Marriage. Whether any government recognizes it is separate from what we call it. It's a free country and we can call ourselves what we like.

In 5 or 10 or 20 years, with plenty of visible same-sex married couples, the world won't see us as strange or scary, we're just the married couple down the street that happens to be gay. Eventually, the legal recognition of our marriages will follow...." Copyright (c) 2004 by Mary Ann Horton

http://elemming2.blogspot.com/2005_03_31_elemming2_archive.html#111233482822166949

Gary

Posted by: Easter Lemming on April 4, 2005 04:31 PM

Jaybird - So you're saying we'll begin to reduce the population explosion? Why is that a bad thing? The world is getting overcrowded anyway so I don't see the argument there, nor do I understand how 3% of the population would affect 97% so profoundly as to lower the birthrate especially since gay people will still be gay and straight people will still be straight.

Posted by: Kendall M. on April 4, 2005 04:32 PM

Kendall, where did I say that it would be a bad thing?

I merely said that that is what I think the consequence of institutionalized gay marriage will be.

There was no "ought" in my post.

Posted by: Jaybird on April 4, 2005 04:33 PM

Jaybird - You're correct, you didn't say it would be a bad thing, my appologies

Posted by: Kendall M. on April 4, 2005 04:36 PM

My original post included some predictions about the Kansas "defense of marriage" amendment. Since then I overheard a radio report on NPR that the Kansas amendment may pass by the narrowest margin of any state.

And I decided that would make sense. Kansas is generally conservative, but the state is not as far right as imagined, and we surprise people (even ourselves) sometimes. After all the whole state was founded on the assumption in DC that Kansans would support slavery, and the citizens rejected that. (Granted, sometimes you have something goofy like the state Board of Education wanting to teach creationism, but in the past the result of that has been a new group of people on the state Board of Ed.)

I would still expect the amendment to pass by a large margin, but if the margin is much narrower than I expect (or heck, even if it fails by a narrow margin), I will not be shocked. Tomorrow will be interesting.

Posted by: denise on April 4, 2005 04:44 PM

For all those who dismiss out of hand as illegitimate or preposterous the concern that gay marriage may lead to governmental intrusion into church affairs, let me say I find such dismissals very demeaning. I can understand your not sharing the concern, but try first to understand the concern before dismissing it. Otherwise, the dismissal comes across as your believing those advancing the concerns are like little children are afraid of the dark or that the concerns are not sincerely held.

As to why I share these concerns, here are just some of the reasons:

* Our country has a history of punishing institutions that hold unpopular views. In this regard, look at church sponsored schools that lost their tax exempt status because they did not permit inter-racial dating.

* Many cities, and some states, have passed laws requiring employers, including churches, to provide employees with health care benefits that include contraception and abortion services. Since churches were virtually the only employers that did not include contraception and abortion among the covered health care services, it is not extreme to think that such laws were passed targeting churches.

* Courts in California have held that a minister can be sued for "malpractice" over marital advice given to members of his church.

* And has already been mentioned, other countries,in both Europe and North America, that have gay rights laws, have prosecuted ministers for expressing the view that homosexuality is a sin. Since when is a sermon a hate crime? When the government says it is.

So, since government can require a church to pay for an abortion, can punish a private school for prohibiting inter-racial dating, and can review the adequacy of marital advice offered by a minister, just where is the absolute bar to the government involving itself in the question of whether a church recognizes gay marriage? That fact that we have a history of NOT requiring churches to accept gay marriage does not seem like much of an obstacle to jump for our increasingly athletic courts. Not long ago we were told it was absurd to even think that the courts would EVER find a constitutional REQUIREMENT to allow gay marriage. Hah! In a world where the constitution means whatever the judges say it does on that particular day, none of our constitutional rights are protected. They are subject to the whims of an un-elected few.

Posted by: David Walser on April 4, 2005 04:56 PM

Jaybird,

I think you left off a reason, as well: getting married in order to commit to a lifelong union, which applies equally to straight and gay. That's a bit different than "because we are in love" and not necessarily always overlapping with "to have children."

People who get married because "it's all about us" still will (as you say, they already do), and people who get married "to have kids" still will as well. Right, yes, it's about the marginal cases. But so long as marriage is held up as a societally desirable goal and people are encouraged to treat it with respect (not something I see even suggested in most of these discussions, except as a prelude to concluding it should be off-limits to gays), permitting gay marriage only increases the potential stitches in the proverbial societal fabric.


I think the whole analysis is backward. Unlike with the easing of divorce laws and increased welfare to single mothers, both of which made it easier not to be married, gay marriage actually expands the pool of marrieds, not the other way around. There is no encouraging of the "not married" state; precisely the opposite.

Posted by: onon on April 4, 2005 04:58 PM

Onon, I think marriage as a "we're in love and we want to live together forever" kinda thing will actually be *STRENGTHENED* by gay marriage.

I also tend to think that gay marriage will eventually be a loser for democrats because when the honeymoon's over, homosexuals will look at their taxes and say, as only two DINKs can do, "I didn't pay this much last year!!!!"

And two Republican seeds will be planted. Some of those seeds will bloom.

And, as the years pass and gay marriage is just another couple of people in love with each other, married gay people will trend Republican about as much as married straight people do.

But, at the margins, the idea of marriage as an institution you join in order to start a family will get smaller and smaller and smaller...

Posted by: Jaybird on April 4, 2005 05:04 PM

David Walser - You bring up an interesting point. My question to you is are you saying the judges would force churches to perform gay marriages but NOT force churches to perform interracial marriages? Currently churches are private institutions. A marriage as far as the gov't is concerned is valid as soon as you have your marriage license from the state. Therefore, never has a church been required to perform an interracial marriage, or any marriage any time for any reason.

You're worried that's going to change. I'd like to know what basis you have if Loving v. Virginia didn't change the law for interracial marriage, why would the law affect gay couples? and what would the affect be? Churches affirm the spiritual validity of marriage, but no where do I find they have a legal difference. In fact, churches currently CAN and DO marry gay couples without giving them any legal status.

Posted by: Kendall M. on April 4, 2005 05:04 PM

Jane-
Excellent essay. I have recommended it to friends.

I see very little point in overthrowing a vital & longstanding societal arrangement for no purpose but to temporarily placate a perpetually indignant 2-3%. As noted above all of the legal incidentals to marriage (visitation, inheritance, etc.) can be provided through existing legal means. We have much to learn and re-learn, with humility, from our predecessors...Jane's essay is a good start.

Posted by: m on April 4, 2005 05:08 PM

When I finished reading your essay, I immediately thought of a bad appellate brief. You spin carefully selected facts to advocate your position effectively, but you commence and conclude with a big neutral thud: "a really, really, really long post about gay marriage that does not support one side or the other"

Since your argument generally advocates conservatism, it seems to me that you are afraid of admitting to yourself that you are no longer a libertarian. Why?

On another note, you fail to point out that gay marriage first became legal in the United States in the state with the lowest divorce rate. (Commonwealth of Massachusetts) Additionally, people in states with the lowest divorce rates (New England) are the most open to the legalization of gay marriage. Conversely, people who live in states with the highest divorce rates, oppose gay marriage fervently. Thus, States where people don't really respect the institution of marriage themselves feel that allowing gays to marry will further deteriorate the instituion of marriage. On the other hand, those who do respect the institution and are successful in carrying out that respect have no issue with extending that right to others.

Are you saying that because people in the South and other red states have seen what they themselves have done to their culture by not respecting the institution of marriage, we should not view the hypocrisy in their position on gay marriage, but rather the fact that they fear the further deterioration of traditional norms? Explain.

Posted by: Brownstone on April 4, 2005 05:16 PM

Does it work in the other direction?

As you know, homosexuality is stigmatized in American culture. Is it possible that forbidding gays from marrying encourages other forms of discrimination against gays?

Consider the marginal case, the bigot who's looking for an excuse to discriminate against gays -- maybe a street thug looking to beat someone up, maybe a petty bureaucrat looking to make someone's life more difficult. Will excluding gays from marriage, making it clear that they're not fully accepted by society, make the discrimination more likely?

Posted by: Avram on April 4, 2005 05:25 PM

Captain Blammo writes: Saying that same-gender marriage is so different that it may in of itself destroy the institution of marriage is abstract, unprovable bullshit. It's the public's PERCEPTION of gay marriage that will affect the institution.

Where are the children? With hetero sexual marriage 95% – 99% of all marriages are capable of producing children. With homosexual couples that range is 0% – 0%. Is that different enough for you? Why are we talking about "What about Person X?" or visitation rights of Person Y? In the next 100 years, 300,000,000 children will be born, and not a one of them a product of same sex parents (without serious advance in medicine).

About 150,000,000 of them will be fine no matter what their family situation. About 50,000,000 will be an assortment of assholes, losers, and other parasites no matter what their family situation. The 100,000,000 marginal cases in the middle, those are the people who will be affected by gay marriage the most; not Bill and Ted depending on whether they can get married. Actually, the 100,000,000 will even be different people. Some will be born under one scenario, others will be born under a different scenario. Which scenario is best for America? Those are the people you consider when establishing social policy. You don’t establish our country’s social policy by asking "What about Sally Brown?"

Posted by: Clever Screen Name on April 4, 2005 05:33 PM

Kendall - Given the rapidly changing legal landscape, where a decade and a half ago the Supreme Court held anti-sodomy laws were constitutional and now rules that they are not, I've got little faith that history is a good indication of what will happen in the future. All your questions about my concern are premised, in one way or another, on the past. Since the Supreme Court seems to have little regard of its own precedents, why should I view them as a bar to future encroachment onto church's historical prerogatives?

You are right, churches have been free to perform marriages that were not recognized by the state and they've never been forced to perform a marriage by the state (yet). Still, not long ago no doctors were forced to perform an abortion and no church was required to pay for them. Neither is strictly true anymore. In my prior post I pointed to the laws requiring churches to pay for their employees abortions. Other laws require all hospitals, even church owned hospitals, to perform abortions. New laws require a prospective ob/gyn to perform an abortion as part of his or her schooling (in the past the prospective ob could just observe). Related rules threaten nurses and doctors with termination if they refuse to participate in "family planning" services. While these laws may be prompted only by a desire to ensure there are adequate resources available to meet the need for an essential medical service, they also significantly curtail what was once a zone of private religious liberty.

Given all of this, most of which was unthinkable a decade ago, why is it such a stretch to suppose the government might not take some action against a church that refused to perform a gay marriage? Of course, we should be able to trust that judges would faithfully serve their assigned role in our system of government. Since I find that the current crop of judges has been most untrustworthy in this regard, I am uninspired to put any faith in their judicial restraint. In short, by insisting that the constitution is a living document, they have written all our liberties in pencil. We have them just so long as the judicial eraser is not used to rub them from off the page.

Posted by: David Walser on April 4, 2005 05:34 PM

>Courts in California have held that a minister can be sued for "malpractice" over marital advice given to members of his church.

Not only that, David Walser, but the California Supreme Court recently held that Catholic Charities could not refuse to provide contraceptive coverage for its employees, on the grounds that, essentially, "charity" is a "secular" function. Never mind the Catholic Church's views on artificial contraception.

Similarly with marriage: who cares that the Catholic Church considers it a "sacrament"! According to one poster, it was only sacramentalized at the Council of Trent, and that wasn't even a half millenium ago! Such a recent change in position obviously points to ulterior motives such as anti-gay bigotry.... Besides, marriage is a "secular" institution, one in which the state has a "vital" interest, and "gays" are a societal category not to be discriminated against, least of all in the name of religious bigotry. That's all the "reasoning" a court needs to hold a church such as the Catholic Church liable for refusing to marry "gays" in contravention of its doctrine.

No, it is not at all "ludicrous" to expect legal attacks on religious communities in the name of "gay rights"---as you pointed out, it is already happening, and it is guaranteed to get worse, especially as the scope and range of "gay rights" expand, as in the case of "gay marriage."

Posted by: Iconoclast on April 4, 2005 05:48 PM

>Consider the marginal case, the bigot who's looking for an excuse to discriminate against gays -- maybe a street thug looking to beat someone up, maybe a petty bureaucrat looking to make someone's life more difficult. Will excluding gays from marriage, making it clear that they're not fully accepted by society, make the discrimination more likely?

How would "gay marriage" affect your putative thug's calculation more than good policing? Is he really thinking about the bridal registry of some gay he runs into on the street rather than police response time when deciding whether or not to "bash" the gay?

But let's not engage in idle speculation: there are jurisdictions----Sweden, the Netherlands---where "gays" can marry. Has that diminished violent crimes against gays? Have you taken the trouble to find out?

Posted by: Iconoclast on April 4, 2005 06:01 PM

Actually, Kendall M., that is an excellent point. An unwed mother can marry at any time. But so can homosexuals. There is no law preventing a homosexual man from marrying an unmarried woman who wants to marry a homosexual man. There is no law saying the participants have to be in love (see arranged marriages). There is no law saying spouses have to find sexual encounters fulfilling. If a homosexual person were motivated they could do it and there isn’t any law against it. Which is why the civil rights and discrimination arguments are bogus.

Look, I know I’m coming off as a reactionary jerk. To be honest, nothing would make me happier than if the population of Massachusetts initiated a ballot referendum that passed 70% to 30% specifically authorizing gay marriage law because the voters of Massachusetts believe gay marriage will be good for the children of gay parents. I’m not opposed to change. But if you change for the wrong reason (judicial fiat as opposed to public initiative) you wind up with terrible problems. The reason the FMA is needed is to prevent changing for the wrong reason. Status quo for the wrong reason is better than change for the wrong reason. Judged have demonstrated over and over and over again, they can not leave things alone. So we have to stop them by any means necessary.

Posted by: Clever Screen Name on April 4, 2005 06:02 PM

>Judged have demonstrated over and over and over again, they can not leave things alone. So we have to stop them by any means necessary.

Indeed. For the last 50 years, courts have been pulling one rabbit out of a hat after another, usually with baleful results.

I want to address in particular one decision that, in a way, started it all, and which proponents of "gay marriage" invariably cite to justify judicial activism in the matter of "gay marriage." I am referring of course, to Brown vs. Board of Education. From what I've read, some people seemed to think that the Brown decision ushered in modern civil rights on its own. It did not---it simply held that school segregation on the basis of race violated the Fourteenth Amendment. The lion's share of implementing modern civil rights laws was borne by legislative bodies elected by and accountable to the people: the 1964 Civil Rights Act, the Voting Rights Act, etc. These laws were the result of a national consensus, and they have by and large worked.

By contrast, and as the muted commemorations last year of the 50th anniversary of the Brown decision demonstrate, it is difficult to see what has been accomplished by the school integration mandated by Brown, whether in terms of test scores, drop-out rates, or the very segregation that Brown tried to attack, since de jure school segregation has merely been replaced by white flight and de facto segregation. By any measure other than an abstract one of "rights," Brown is another judicial failure.

Posted by: Iconoclast on April 4, 2005 06:23 PM

What I find striking in the comments from those rejecting Jane Galt's concerns is that they repeatedly commit the very error she is exposing. This arrogance, this fatal conceit, is evident in their demanding that the merely rational person can reinvent society and deconstruct its cultural heritage and institutions simply because they can frame a good argument for their preferences.

The same thinking led to the murder of 100 million via communism. They too wanted to create the new man. Frequently they did so by abolishing all traditions, including the demise of the family.

What I find arrogant is the inability of those favoring gay marriage to show what might be deletirious or unintended effects of such legislation. Preciseley because they cannot find any such problems, I know they cannot be trusted.

Posted by: Pogo on April 4, 2005 06:23 PM

Excellent post.

Posted by: Danny on April 4, 2005 06:24 PM

I read most of the comments, but my head hurt. I'll go back and read more after, but I want to say this. I only noticed one other person who pointed this flaw out:

The economic-style analysis of incentives failed to explain why other people marrying would affect my choice to marry. It simply said that saying that is somehow equal to saying taxes on my work won't affect my choice to work. But, of course it will - because it affects my incentive to work.

If you tax my work, you are quite literally changing my price of leisure and my reward for work. Its basic economics and common sense. If you pay me less, I will choose to work less - except in the case where I feel forced to work more just to survive.

The other examples are the same- welfare benefits change my incentives. If it costs less to get pregant, or my pregancy is actually subsidized - I will be more likely to get pregnant (and the discussion of the people on the margins is exactly right), but someone else getting welfare benefits won't make me get pregnant, only me getting the benefits will have this effect. Unless you can show me the social impact.
The removal of social stigma is a known effect, and has been demonstrated in the case of welfare, but this effect, in the case of gay marriage, explains only the effect caused by: there are a higher number of gay than are currently "out", and those people would also get married. It does not make the case that heterosexuals will choose not to get married.
The third affects the the stigma of divorce and all of the costs of divorce, obviously, again, affecting the choice that the person in question is making, directly, by affecting his incentives.

Tell me how others getting married affects my getting married. It is implied, but not explained, that somehow others getting married changes my incentive to get married -- which, again, is the old argument that it somehow changes the meaning of marriage - my incentive is that because different races or genders getting married will make me like it less because it won't be regarded highly... sorry, but thats the old argument and the econmics did nothing to support it.

If you can show that argument, you won't require the economics, if you can't, the econ can't help you.

So much for making a libertarian case.

Posted by: liberty on April 4, 2005 06:31 PM

Re: Given all of this, most of which was unthinkable a decade ago, why is it such a stretch to suppose the government might not take some action against a church that refused to perform a gay marriage?

Um, the First Amendment maybe?
Sorry, it's simply no more credible that government would force churches to conduct gay marriages than that the government would force the Roman Catholic and Eastern Orthodox churches to ordain women, or the Baptists to baptize infants. Age and gender discrmination are both illegal and unconstitutional. But religions are not forced by law to prcatice non-discrmination. And not only is this true in the USA, which has very strong constitutional protections against the State meddling with the Church, but not even in the most secularizing of Europepan counties-- not even under religion-hostile, Communist rule!-- has any modern governemnt compelled a church to violate its own sacramental theology.

Posted by: JonF on April 4, 2005 06:42 PM

>Tell me how others getting married affects my getting married.

Wrong question. "Why should we change our laws to let gays marry?"---that's the only pertinent question. The fact that you can't conceive how "gay marriage" would take away any of your incentives to marry is irrelevant, as Jane took pains to point out and argue cogently. It's impertinent for you to challenge others to come up with reasons why gays *shouldn't* be allowed to marry, as if the case for gays marrying had already been established to everyone's satisfaction.

But if you are really interested in what happens societally after "gay marriage" is instituted, take a look at Sweden and the Netherlands. Has "gay marriage" strengthened marriage as an institution in those countries? I don't think so, but what do you think?

Posted by: Iconoclast on April 4, 2005 06:46 PM

CSN, sure, out of the thousands of judges at all levels in this country, there are a few radicals. This does not mean we need to take pre-emptive strikes against them that will also limit the freedom of the whole state. Now, if the FMA were a lot better written, so it allowed for legislative change of the status quo by any means less arduous than a nationwide amendment of repeal, you would have a point. But it isn't. The FMA is a huge overreaction to a few judges getting carried away. Individual states have shown themselves well able to overrule their extremist judges when they want to. The FMA is unnecessary and harmful.

BTW, Jane Galt, nice post. As a moderate, I have always respected Burkean conservatism. But I must say, it's the very last thing I expected to hear from a self-professed liberatarian.

By the way, have you noticed that the "fence didn't get there by accident" argument is even more true for statutes than for traditions? Traditions grow and evolve, and, like other products of evolution, some of them aren't all that great, just reasonably stable. But statutes were very deliberately put in place, usually after a great deal of argument, in reponse to some specific seen need. Yet libertarians, and modern conservatives, seem generally to think that it is unnecessary to ask what problem the statute was meant to solve.

Tear it down, tear it all down, they say. Even though, unlike a tradition, it is usually very easy to find out what problem a statute was meant to resolve. Someone proposing to tear down a statute ought to have an explanation for why the problem it addressed no longer needs solving. And yet I hardly ever hear such arguments.

To be blunt, this gap in logic generally pushes me to have a low opinion of the intelligence and honesty of libertarians. You seem to be an exception - but only if you can properly be called a libertarian.

Posted by: trilobite on April 4, 2005 06:52 PM

Re: The Catholic Church does not "excommunicate" divorcees, and it regularly grants annulments of marriages so that parishioners can marry again. Your argument is not only impertinent, it is unfounded.

I am sorry, but you are wrong about this. Any Roman Catholic who contracted a sacramental marriage, divorced, and then remarried without obtaining a Church annulment (and they are not always granted) is regarded as having commited adultery and/or bigamy. He or she is in a state of mortal sin and a priest who is aware of the situation is not supposed to admit the person to communion, which is what “excommunicated“ means. Please consult any official Roman Catholic source for this. No doubt there are parishes which bend or break the rules in this area, but they‘re going against formal doctrine in this. And my point still stands: there has never been a court case of any Catholic suing to be readmitted to communion and have the Church recognize the second marriage. Never. Ever. And I would expect pigs to fly before any such suit was filed and succeeded.
First amendment, you know.

Posted by: JonF on April 4, 2005 06:52 PM

>but not even in the most secularizing of Europepan counties-- not even under religion-hostile, Communist rule!-- has any modern governemnt compelled a church to violate its own sacramental theology.

Nonsense. I gave an example of such goings on in Sweden. A pastor just last year faced fines and jail for a sermon in his own church calling homosexuality a sin.

As for COMMUNIST governments supposedly not "compelling churches to violate their own sacramental theology," you've GOT to be kidding. How do you explain for example, the "Patriotic Catholic Church" in China, which is forbidden to be in communion with Rome? How do you explain the Communist government in China prohibiting Christians from preaching about the "end times"/"Second Coming"?

You don't give this poster any confidence in the least that religious believers have nothing to fear from the institution of "gay marriage."

Posted by: Iconoclast on April 4, 2005 06:54 PM

Trilobite, you say, “Individual states have shown themselves well able to overrule their extremist judges when they want to.”

I think you are confused. It is the judges that overrule the public, like in California where a week or so ago a judge overruled the results of a ballot initiative that prohibited gay marriage. The ballot initiative forbade gay marriage, so the judge played the trump card of pretending the state constitution permits it no matter what the voters passed.

Posted by: Clever Screen Name on April 4, 2005 07:08 PM

>And I would expect pigs to fly before any such suit was filed and succeeded.
First amendment, you know.

Oh? Funny how the First Amendment didn't prevent the California Supreme Court from requiring Catholic Charities to provide contraceptive coverage. I don't think gay activists will let the First Amendment keep them from attacking the Catholic Church over its refusal to marry gays, or that they will have problems finding a judge who thinks that preventing "discrimination" outweighs First Amendment considerations.

Posted by: Iconoclast on April 4, 2005 07:11 PM

Wrong question. "Why should we change our laws to let gays marry?"---that's the only pertinent question.

Huh? The whole argument was:

People do all sorts of idiotic things, said the critics. If you pay for something, you usually get more of it.

C'mon said the activists. That's just silly. I just can't imagine anyone deciding to get pregnant out of wedlock simply because there are welfare benefits available.
...

The argument said that it was incentives that would change the way the people act - so, others getting married is supposed to affect the way I marry. But then all the examples were about incentives on the person based on money for the person or lack of cost to the person.

The fact that you can't conceive how "gay marriage" would take away any of your incentives to marry is irrelevant, as Jane took pains to point out and argue cogently.

Huh? When? How so?

It's impertinent for you to challenge others to come up with reasons why gays *shouldn't* be allowed to marry, as if the case for gays marrying had already been established to everyone's satisfaction.

1. When did she say this as part of this argument?
2. It has nothing to do with the economic-incentives case she made
3. I don't buy it.

But if you are really interested in what happens societally after "gay marriage" is instituted, take a look at Sweden and the Netherlands. Has "gay marriage" strengthened marriage as an institution in those countries? I don't think so, but what do you think?

I think their marriage went down the tiolet when they took away all incetive for family structure by creating what amounts to a state adoption from the time of birth. In Sweden your baby is cared for in a state hospital free of charge, then nursery is given free of charge, then school is given through, I think college, free of charge. Social norms dictate that families are not important. Thats destroyed the family, and they are proud of it. They literally proclaim how proud they are that the family is no longer important in Sweden, as can be found on their socailist government's webpages and as I saw in a recent documentary on International Newsfirst.

Posted by: liberty on April 4, 2005 07:13 PM

Stephen, you misrepresented what I said. I didn't say marriage began at Trent, I said marriage was "spiritualized" at Trent—prior to that Council, it was possible for two people to marry themselves without the Church's involvement.

Denise, I'm not saying the pro-GLBT Christian movement doesn't want to see marriage in churches. We do! But the specific movement to allow homosexuals to marry in the United States is a secular movement. I am already part of a denomination (the UCC) that will solemnize gay marriages on a congregation-by-congregation basis. My friends in other churches (the ELCA, United Methodists, Roman Catholic Church, etc.) will be working from within their faith traditions as well. But no one is trying to legally impose a requirement that churches solemnize gay marriages. That's just not on the map, and you know it. No one has suggested that. It's like this specious argument that anti-discrimination laws will allow the prosecution of pastors who preach against homosexuality. Racists aren't prosecuted under existing anti-discrimination laws, why would you heterosexists have anything to fear from laws to enfranchise gays and lesbians?

But it's becoming clear that the conservatives are pretty much set in their ways, with no willingness to listen to the stories of gays and lesbians who have endured real trials (not imagined ones) at the hands of heterosexist marriage laws. You dodge, you throw rhetorical fallacies around left and right, and you ignore the actual human trauma faced every day by gay and lesbian persons in the United States. Your legacy will be the same as those who opposed the judicial rulings overturning anti-miscegenation laws—that's my only consolation until we win.

Posted by: Chris T. on April 4, 2005 07:21 PM

>Social norms dictate that families are not important. Thats destroyed the family, and they are proud of it.

Mmm-hmmm. "Social norms," like devaluing marriage further by allowing gays to marry. It doesn't really matter what other reasons you can think of why marriage is on the decline in Sweden (or the Netherlands, the other example)---the point is that "gay marriage" has done nothing to help marriage overall in those lands, notwithstanding the pledges of gay marriage advocates that it will "strengthen" marriage. Its institution has in fact correlated with further declines in marriage rates. Cause or coincidence? One could argue either way, I suppose. But one thing that is unarguable is that opponents of gay marriage still have no obligation to show that it would weaken or disincentivize marriage---the burden is on its proponents to show it would strengthen and enhance marriage, or at least be neutral in its effect. And so far the empirical evidence isn't there.

Posted by: Iconoclast on April 4, 2005 07:33 PM

>It's like this specious argument that anti-discrimination laws will allow the prosecution of pastors who preach against homosexuality. Racists aren't prosecuted under existing anti-discrimination laws, why would you heterosexists have anything to fear from laws to enfranchise gays and lesbians?

Then why do we have the concept of "hate speech" rearing its ugly head in the last 50 years? Notwithstanding First Amendment guarantees, proponents of "hate crime" and "hate speech" laws argue that some forms of speech, which they define as "hate speech," can be criminalized and are afforded no constitutional protection. It's happening as we speak in Europe, whose nations also supposedly have "free speech" guarantees. It can happen here, because they are lots of people, including gays, who want to see it happen. You have no right to denigrate such concerns as "specious," and I warrant you that unless you address such concerns instead of trying to sweep them aside as "ludicrous," you will only encounter continuing---and effective---opposition.

Posted by: Iconoclast on April 4, 2005 07:49 PM

Liberty - Allow me to explain two plausible mechanisms by which gay marriage will reduce the incentives for heterosexuals to marry. First, by allowing more people to marry, the "special" nature of marriage is diluted. Think of an exclusive social club that suddenly starts accepting anyone with a $5 membership fee into its midst. The exclusiveness is destroyed and with it much of the desire to join the club. Being a member of the club no longer adds to your status in society. So, too (maybe) with marriage. Once gays are permitted to marry, marriage is no longer about the exclusive relationship between husband and wife. It becomes no more than a contract granting its members access to certain rights and privileges -- the parties to the contract could be no more than roommates. To the extent that one of the incentives to marry is to obtain the "exclusive" status of a married person and the approbation of society that goes along with it, allowing gays to marry will (may) dilute that status and the incentive it creates.

Second, society provides financial incentives to marry. These incentives come in many forms from tax breaks to family discounts at restaurants. Granting these same breaks to gays will increase the cost of providing the breaks, which will put pressure to reduce these breaks if not eliminate them entirely. Indeed, many libertarians have argued in favor of gay marriage precisely because it's hoped this would lead to the end of the government's subsidizing families. ("I'm single. Why should I pay a higher tax rate than a married person with the same income? The government has no business treating its citizens differently based on private choices. If you choose to marry, you should pay all the costs." Sound familiar?) Gay men, on average, have higher medical costs than do other men. Do you think that adding gay couples to your company's medical insurance plan will have NO affect on the cost of that plan over time? Think again. If insurance costs more, do you think we'll have less of it or more of it?

Now, I know that these considerations will not have any affect on me or on my marriage. (I'll be married 23 years this coming July.) But, as Jane points out, its the question of how these changes will affect the margins that matters.

One last thing: When this whole issue was starting to make its way through the courts (back when we were told no judge would rule in favor of gay marriage), there was substantial debate in the gay community about whether they even wanted marriage and should pursue the question in the courts. One of the arguments in favor of court action was that gay marriage would lead to the destruction of marriage itself. (Do the internet search yourself.) Since one of the stated objectives of those fighting for gay marriage was the destruction of marriage, I don't think it irrational to fear that this might be the result if they get their way.

Posted by: David Walser on April 4, 2005 07:54 PM

April,

As a reply to your previous post - you state that 95-99% of hetero marriages are capable of producing children. Of that number, how many actually are producing children? And what percentage of the population is openly gay, 5% perhaps? And how many of that 5% will actually get married? Half at most?

I think your point has no merit.

People don't want to see gays get married because it legitimizes homosexuality (legally at least). The only institution gay marriage may threaten is the institution of homophobia.

Posted by: Captain Blammo on April 4, 2005 08:07 PM

"But no one is trying to legally impose a requirement that churches solemnize gay marriages. That's just not on the map, and you know it."

First of all, I don't know that's not on the map. How would I know that? And why, in light of what's happened after Lawrence, should I just take your word for it? (Similarly, some people argue that gay marriage will lead to legalized polygamy. Such arguments are usually met with the same kind of ridicule and contempt, followed almost immediately by someone else arguing that polygamy should be legalized.)

Second, as I pointed out in a previous post, there are more ways to try to marginalize the Church than through the legal system. For example, Hollywood already has a tendency to portray the Church in a negative light whenever possible. Am I to believe that will improve once gay marriage is legalized and the only imagined explanation for opposition is simple bigoted hatred? Oh wait, that was "terror of queers," wasn't it?

Posted by: denise on April 4, 2005 08:18 PM

>People don't want to see gays get married because it legitimizes homosexuality (legally at least). The only institution gay marriage may threaten is the institution of homophobia.

People don't want to see gays get married because so many proponents choose to ignore legitimate concerns of opponents in favor of the "in-your-face" style you've adopted. You'll convince no one that gay marriage should be adopted by accusing them of homophobia, but you will get droves of people you could convince angry and to the polls to make sure gay marriage doesn't happen.

Posted by: Iconoclast on April 4, 2005 08:22 PM


Effects of SSM: Immediate lawsuits filed by poly-group marriage supporters that cannot be denied, in light of the language of _Lawrence_ and _Goodridge_. Indeed, one such lawsuit exists already in Utah, citing _Lawrence_ as precedent. If "one man and one woman" is arbitrary, so is "one and one". The implications of poly/group marriage for law are stunning and not readily knowable. But decades of research tell us that sexual abuse of stepchildren is much more likely the same abuse of related children. Therefore poly/group marriage is certain to produce even more sexually abused girls and boys. Long term effects on society? Unknown and arguably unknowable.

One group that would find abolition of laws against polygamy quite useful is the radically conservative Islamic community. I expect to see a lawsuit in Canada soon demanding the Islamic right to marry more than one woman, and citing the recent decision on SSM in support. What will be the unintended consequences on, oh, tax, inheritence and welfare laws if Islamic immigrants can bring two or more wives with them? I cannot say, but they might be significant.

Some will no doubt be angered by the last point, but since this is a largely reality based community, there should be no ignoring of reality...

If number and gender are arbitrary, surely age is also arbitrary. There are no lawsuits pending that I know of at this time challenging age of consent laws, but Justice Ginsburg is on record endorsing an age of consent of 12. It is not difficult to imagine one of the known organizations devoted to promoting "intergenerational love" (as they call it) filing suit in the wake of SSM and poly/group marriage to demand the right of 40 year old men to "marry" their 12 year old "lovers"...and, of course, to divorce them when they get to be too old, say, 17 or so. Would a prenup signed by a 12 year old stand up in court? Why not, if age of consent to marriage is lowered, shouldn't contractual and other rights follow?

Please show where any of the above is impossible, flames to /dev/null (showing my net.age).

Posted by: ellipsis on April 4, 2005 08:22 PM

Kendall M. & others,

I am curious about this statistic of 300,000 children in households with two same-sex parents. Anyone have a gender breakdown on that? (My guess would be that it's almost all divorced or unmarried women who have formed relationships with other women, not gay male couples — partly because I know lesbian couples with children from heterosexual relationships, partly because it's exceedingly difficult for a single or divorced man to get custody of his children whatever the circumstances, and shacking up with another man is not likely to help his case.)

Oddly, it makes a big difference to how everything is perceived. Despite all the "Heather Has Two Mommies" hullabaloo, I bet the Great American Public would leap into the Two Mommies' arms if there were any serious talk of Two Daddies.

Posted by: Michelle Dulak Thomson on April 4, 2005 08:26 PM

>Would a prenup signed by a 12 year old stand up in court? Why not, if age of consent to marriage is lowered, shouldn't contractual and other rights follow?

Brilliant points, however much they will be brushed aside as "ludicrous" by gay marriage proponents (wonder how many people---even GAY people---would've considered gay marriage "ludicrous" 50 years ago, when the first "gay rights" organizations were being formed?).

Here's another "ludicrous" possibility: suppose a "gay" father married to a man with custody of a pubescent boy---"biologically" his or not---decided he was in "love" with his young 12 year old male ward, and that he wanted to divorce his "spouse" to marry his "son"? Why should some tired old "incest" law stand in his way? There would be no question of dysgenic inbreeding, so why deny such a pair their "rights"?

Posted by: Iconoclast on April 4, 2005 08:36 PM

There is absolutely no reason that the legalization of gay marriage would legalize incest and statutory rape. There's no effect on polygamy, marriage would still be limited to two people. Listening to the far right talking about gay marriage is like listening to the far left talk about the enviroment, it's mostly overstated hysteria.

Posted by: So Fabulous on April 4, 2005 09:27 PM

There is absolutely no reason that the legalization of gay marriage would legalize incest and statutory rape. There's no effect on polygamy, marriage would still be limited to two people.

So Fabulous, you're living in a dream world. It's already happening.

Posted by: Amy K. on April 4, 2005 09:54 PM

Michelle - The best analysis I have of 2000 census data on gay households is this. Data on households with children is towards the bottom. It looks like 1/4 of gay male households have chldren and 1/3 of lesbian households.

Posted by: Kendall M. on April 4, 2005 09:56 PM

CSN - Actually, Kendall M., that is an excellent point. An unwed mother can marry at any time. But so can homosexuals. There is no law preventing a homosexual man from marrying an unmarried woman who wants to marry a homosexual man. There is no law saying the participants have to be in love (see arranged marriages). There is no law saying spouses have to find sexual encounters fulfilling. If a homosexual person were motivated they could do it and there isn’t any law against it. Which is why the civil rights and discrimination arguments are bogus.

That was EXACTLY the same logic used by people opposed to interracial marriage. Afterall, a black man was perfectly free to marry a black woman, and a white man a white woman and the same freedom existed for women marrying into their respective race. Clearly that logic was rejected by the Supreme Court of the United States. Is it the conservative position that Loving was incorrectly decided?

I think men should have the same freedom to marry men that women have, and women should have the same freedom to marry that men have, to women.

But that isn't the issue. The issue is unintended consequences. And the question is both what is the effect of SSM on society, and what is the effect of a Constitutional ammendment, and in this specific case the FMA on banning it. We already know what happened in Michigan and Ohio with wording similar to the FMA, will that happen on a national scale? will the problems be magnified?

Posted by: Kendall M. on April 4, 2005 10:06 PM

> Not only that, David Walser, but the California Supreme Court recently held that Catholic Charities could not refuse to provide contraceptive coverage for its employees, on the grounds that, essentially, "charity" is a "secular" function. Never mind the Catholic Church's views on artificial contraception.

This was for employees in non-religious roles.

Posted by: on April 4, 2005 10:10 PM

Iconoclast, will you please quit pretending that you're not homophobic. It's really pathetic to see all of the conservatives posting here who try to pretend that there's no homophobia involved in the debate, or at least try and claim that it's a tiny minority. Such BS. America couldn't possibly produce large numbers of bigots. Oh, no. Repeat after me, America never had a Klan. They never marched in their thousands through American streets like any mainstream social group.

Posted by: Jim S on April 4, 2005 10:18 PM

>Not only that, David Walser, but the California Supreme Court recently held that Catholic Charities could not refuse to provide contraceptive coverage for its employees, on the grounds that, essentially, "charity" is a "secular" function. Never mind the Catholic Church's views on artificial contraception.

>This was for employees in non-religious roles.

A distinction without any meaningful difference. Who determines what a "non-religious role" is for a religiously affiliated employer like Catholic Charities? The state? Then as I said, "First Amendment guarantees" of freedom of speech, free religious exercise, etc. can be thrown out the window for the sake of non-constitutional "rights" like "reproductive freedom," "gay rights," etc.

I stand by my point: When "gay marriage" comes in the door, traditional religious, speech and association freedoms might be tossed out as so much refuse in order to "protect" the new "right."

Posted by: Iconoclast on April 4, 2005 10:31 PM

>Iconoclast, will you please quit pretending that you're not homophobic.

I'm not "pretending" I'm not anything. I'm stating clearly that "homophobia" is not an argument for "gay marriage." Whether or not some people are willing to deny gays the "right" to marry because they just don't like gays is irrelevant. Gays have to make the case that "gay marriage" is a benefit for more than just gay people, and that it will not be a detriment to the rest of us. A priori claims that gays *already* have a "right" to marry, or that opponents are "bigots," or that opponents have the burden of persuasion why a "right" no one even thought of 50 years ago is so gotta-gotta-have! that it has to be implemented immediately---none of those rhetorical devices cut it. If that's all you're going to rely on, you might as well head for the courts, and the rest of us'll head for our state legislatures to enact FMA.

Posted by: Iconoclast on April 4, 2005 10:39 PM

Iconoclast - I'm not "pretending" I'm not anything. I'm stating clearly that "homophobia" is not an argument for "gay marriage." Whether or not some people are willing to deny gays the "right" to marry because they just don't like gays is irrelevant. Gays have to make the case that "gay marriage" is a benefit for more than just gay people, and that it will not be a detriment to the rest of us. A priori claims that gays *already* have a "right" to marry, or that opponents are "bigots," or that opponents have the burden of persuasion why a "right" no one even thought of 50 years ago is so gotta-gotta-have! that it has to be implemented immediately---none of those rhetorical devices cut it. If that's all you're going to rely on, you might as well head for the courts, and the rest of us'll head for our state legislatures to enact FMA.

Don't you also have to make the case that the FMA will only affect SSM and not heterosexuals (as happened in Ohio) and public organizations domestic partner benefits (as in Michigan)? You're talking about a change almost as radical as those pushing for SSM, indeed moreso because you want it enshrined in the Federal Constitution. We've seen the affect of the state ammendments. Justify to me why a federal ammendment won't create more, and more numerous problems.

Posted by: Kendall M. on April 4, 2005 10:46 PM

>That was EXACTLY the same logic used by people opposed to interracial marriage. Afterall, a black man was perfectly free to marry a black woman, and a white man a white woman and the same freedom existed for women marrying into their respective race. Clearly that logic was rejected by the Supreme Court of the United States. Is it the conservative position that Loving was incorrectly decided?

The conservative position is that the issue in Loving was not for the courts to decide, but for state legislatures. Not all states had interracial marriage bans before Loving----Ohio and Rhode Island didn't---because the elected representatives of the people of those states weren't willing to enact one, not because the courts had struck down such a ban as unconstitutional. Interracial couples were not therefore prevented from marriage in those states. There is inadequate reason why a precedent such as Loving should serve as a justification for a "gay marriage right."

Posted by: Iconoclast on April 4, 2005 11:03 PM

There are more than a few gay people who also think that SSM is an utterly ridiculous idea -- just check the trackbacks to this very post. What, are they homophobic too, Iconoclash?

Posted by: Sam on April 4, 2005 11:04 PM

>Don't you also have to make the case that the FMA will only affect SSM and not heterosexuals (as happened in Ohio) and public organizations domestic partner benefits (as in Michigan)? You're talking about a change almost as radical as those pushing for SSM, indeed moreso because you want it enshrined in the Federal Constitution. We've seen the affect of the state ammendments. Justify to me why a federal ammendment won't create more, and more numerous problems.

No, actually I don't and I won't. All I know is that the proposed language of the FMA and of the various state amendments are explicit and reflect the democratic will of the people, and that a judicially created "right" of "gay marriage," based on no explicit language, will be so expansive that it will swallow up express rights like free religious exercise, and free speech. The FMA is not some grand social experiment dreamed up by sexual "progressives," but a attempt of the majority to defend itself against judicially created "rights" that they have been denied any say in creating. I'll take any problems FMA creates---they'll be no more than the "problems" marriage between one man and one woman have been creating for millennia. I don't want to have to find out what unforeseen problems some hitherto unimagined "right" like "gay marriage" is going to create for our social fabric. So sorry to inconvenience you.

Posted by: Iconoclast on April 4, 2005 11:18 PM

>There are more than a few gay people who also think that SSM is an utterly ridiculous idea -- just check the trackbacks to this very post. What, are they homophobic too, Iconoclash?

My point was that "homophobia" is not an argument for "gay marriage." Glad to hear that more than one gay person agrees with me.

Posted by: Iconoclast on April 4, 2005 11:21 PM

So Fabulous There is absolutely no reason that the legalization of gay marriage would legalize incest and statutory rape. There's no effect on polygamy, marriage would still be limited to two people.

And there was no evidence 50 years ago, when "gay rights" organizations began lobbying for things like repeal of the sodomy laws, that this goal would lead to "gay marriage." Probably would've been considered a "hysterical" extrapolation back then, don't you think? I know for sure that's what "gay rights" organizations would have called it...

Posted by: Iconoclast on April 4, 2005 11:27 PM

>The FMA is not some grand social experiment dreamed up by sexual "progressives," but a attempt of the majority to defend itself against judicially created "rights" that they have been denied any say in creating.

If that were the case it should be handled on a state by state level with the MPA (marriage protection ammendment) passed to take away the court's power to rule on SSM. Or, a better, fairer, and more states rights and libertarian solution would be to pass a constitutional ammendment that specifically defined marriage as not covered by the full faith and credit clause.

Lets make it a state issue, not a federal one. There was a time when conservatives and libertarians both believed that the federal government should be minimally involved in peoples lives, it seems those days are long gone and replaced by a reliance on big government ammendments and demonization of "activist judges."

Posted by: Kendall M. on April 4, 2005 11:29 PM

>Or, a better, fairer, and more states rights and libertarian solution would be to pass a constitutional ammendment that specifically defined marriage as not covered by the full faith and credit clause.

You're getting warmer, and I am glad to find a reasonable opponent here. Still, there is such a "push" at both the state and Federal judiciary levels to enact "gay marriage," that I'd have to think about whether there might be more "loopholes" gay marriage advocates could exploit---because if there are, the passage of the FMA will be inevitable. I do agree with your basic principle that, for example, if the voters of Massachusetts (as opposed to a small clique of judges and their clerks) really do want to allow gays to marry, there should be no constitutional reason to stop them. Should be.

Posted by: Iconoclast on April 4, 2005 11:45 PM

"There is absolutely no reason that the legalization of gay marriage would legalize incest and statutory rape. There's no effect on polygamy, marriage would still be limited to two people."

Please cite the language from _Goodridge_ that limits marriage to two and only two persons unrelated persons.

Thanks, in advance.

Posted by: ellipsis on April 4, 2005 11:55 PM

Still, there is such a "push" at both the state and Federal judiciary levels to enact "gay marriage," that I'd have to think about whether there might be more "loopholes" gay marriage advocates could exploit---because if there are, the passage of the FMA will be inevitable.

In the short term the congress has the power to strip courts from hearing gay marriage cases. THAT is proper federalism and PROPER restraint. The only reason to pass the FMA is if you believe the people of Massachusetts will not pass a constitutional ammenmdment banning gay marriage and you refuse to allow that possibility because it would be de facto sanctioning of SSM. It seems that opponents of gay marriage that claim to be conservatives are slipping into selling fear. I support SSM. I also support federalism and principles of limited government which is why I must inherently opppose the FMA. I cannot recall a single instance other than prohibition when the Constitution was altered to restrict what a STATE can do with their laws. Note, I did not say individuals, I said STATE. Marriage is a STATE BY STATE issue because it is currently a contract between individuals. The federal government has no place getting involved except to equally step in to nullify the courts from interfering with the democratic process.

Posted by: Kendall M. on April 4, 2005 11:56 PM

"The conservative position is that the issue in Loving was not for the courts to decide, but for state legislatures."

I believe Loving was appropriately decided based on the 14th Amendment (but I'm no conservative, at least on most scales). The Equal Protection clause was clearly enacted for the purpose of providing for equal treatment among the races.

Of course, the 14th Amendment did go through the constitutional amendment process, which means it went through the democratic process over and over.

Posted by: denise on April 4, 2005 11:58 PM

In the short term the congress has the power to strip courts from hearing gay marriage cases.

Another good idea! There, we've agreed on two things---let's call it a night.

Posted by: Iconoclast on April 5, 2005 12:12 AM


Never mind, I pulled up _Goodridge_ by myself.

In the 2nd paragraph:

" We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Lawrence v. Texas, 123 S.Ct. 2472, 2480 (2003) (Lawrence ), quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992)."

And much further down, in the final paragraph:

"We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."

The exact same logic can be deployed to strike down laws mandating that marriage consists of two and only two people. That is why the lawsuit in Utah discussed at
http://www.dallasvoice.com/articles/dispArticle.cfm?Article_ID=4943
cites _Lawrence_ as precedent. Find a hole in the logic of the Utah case for me, please.

Posted by: ellipsis on April 5, 2005 12:15 AM

I believe Loving was appropriately decided based on the 14th Amendment (but I'm no conservative, at least on most scales). The Equal Protection clause was clearly enacted for the purpose of providing for equal treatment among the races.

Not necessarily to ensure interracial marriage---why did non-Southern states continue to have bans on intermarriage after its adoption and would it had been ratified by these states if the ratifiers had known this was a purpose of the Amendment? Don't think you can extrapolate that back. Nor did the ratifying states think they were enacting a "gay marriage" right.

Posted by: Iconoclast on April 5, 2005 12:18 AM


One simple question:
How will SSM advocates oppose polygamy?

The Constitution? That is a living document, the meaning of which can be altered by any 4 Supreme Court Justices. I have shown above how the same arguments used in _Lawrence_ as well as _Gooding_ can be used in support of polygamy.

Public opinion? We have been told that does not matter; the public are ignorant in their bigotry and narrowmindedness.

Tradition? Do not be absurd. There are many more examples of polygamy in history than there are of SSM; supporters of SSM cannot rely upon tradition. Islam has 1,400 years of polygamy, a tradition far in excess of the existence of the Constitution, of the Enlightenment itself.

"I don't like it"? Please, we have no time for polyphobes, their hatred and bigotry...

So tell me, supporters of SSM, if a devout Moslem were to sue under Equal Protection for the right to marry two women, upon what rock would you stand in your opposition? How would your logic proceed?

Tell us all, in detail...

Posted by: ellipsis on April 5, 2005 12:53 AM

Ellipsis, here's grist for your mill from a site maintained by a group calling itself "Liberated Christians": "We believe that the idea of multiple sexual partners is in no way prohibited by the teachings of the Hebrew or Christian scriptures." (URL: http://www.libchrist.com/bible/polygamy.html). These people are not affiliated with any Latter Day Saints or "Mormon" sects.

IOW, there are people out there right now claiming sanction for so-called "polyamorous" relationships purportedly based on the tenets of the majority religious tradition of the US. It is not at all outlandish to postulate that people like this group will claim a religious as well as a constitutional right to "plural marriage" if the barrier to "gay" marriage is lifted, particularly via a judicially created "right" thereto. And the same people on this thread who are now challenging opponents of gay marriage to come up with reasons there shouldn't be gay marriage, will then be at a loss to offer intellectually honest rationales, consistent with their support for gay marriage, against a "right" to "plural marriage."

And as for what is presently "statutory rape," Utah within the last five years prosecuted a man named Tom Green both for bigamy and statutory rape for marriage to underage women that he defended on religious grounds. Religious sanctions or not, the extension of marriage rights to gays will irresistibly denude other marriage prohibitions based on number, age and consanguinity, of legal and judicial support.

Posted by: Iconoclast on April 5, 2005 01:07 AM

Ellipsis - If marriage did not offer benefits like it currently does (personally I support removing all benefits and costs associated with marriage and making it a simple contract between individuals which the government recognizes, that would actually remove this whole debate but its not currently the case) then there would be no basis for opposing polygamy. The fact is, since the government does in fact grant benefits and rights to married couples it is impossible as the law stands to legalize polygamy. Take for example a spouse's right to make medical decisions. Under current law your legal spouse has the power to make decisions for you when you're incapacitated (an idea the federal government recemtly challenged in the Terri Schiavo case) how would such a dispute be resolved in the context of a polygamous or polyandrous marriage? and in fact, that's another point. Polygamy is marriage between a man and multiple wives. Polyandry is marriage between a woman and multiple husbands. The proper term is Polyamory to accomodate all these multiple terms.

Say that a similar case to the Terri Schiavo happened in a polyamorous marriage. One spouse is in a persistant vegetative state. The other two have differences of opinion, one wanting to remove the feeding tube, the other to leave it in. The law gives the SPOUSE the power to make decisions for the other spouse. If the tube stays in its against the wishes of one spouse. If its removed its against the wishes of the other. That puts the law into an impossible position, it is not the place of the courts to decide family disputes of that sort.

It would also bring into question issues of divorce law. Say a polyandrous marriage breaks up. the woman in the case sues ALL of her husbands for alimony AND child support even though only one husband is the father of the children. Under current law a husband might be forced to pay child support to a child that was ADOPTED by the couple prior to divorce for example, but if a child is brought in through ADULTERY the husband generally isn't required to pay child support (I'm assuming the mother gets the children, that's because its the way it happens in most cases. Most, not all). The woman could easily argue that since they all knew about the multiple marriages and since they all approved of it all parties were EQUALLY responsible for the care of the child, including the husbands that had no role in the child's upbringing.

Polygamy and polyandry open up a pandora's box of legal issues that one person marrying another person simply doesn't raise. Its not equal in any sense of the word.

Posted by: Kendall M. on April 5, 2005 01:14 AM

Polygamy and polyandry open up a pandora's box of legal issues that one person marrying another person simply doesn't raise. Its not equal in any sense of the word.

Nonsense. The same legal issues would be involved---there'd just be different parties and more parties, and the problems encountered would be novel and, because novel, vexing---at least at first.

For example, take my non-whimsical example of a married gay couple with a 12 year old "son" who was sired by one of the "spouses." Suppose the non-biological "father" falls in love with the boy, pursues a sexual relationship with him at a time when the child is at whatever the age of consent is in the state where they reside but not at legal majority yet. Suppose the spouse in love with his "son" wants to divorce the boy's bio-dad to marry the kid. Who gets custody of the kid? Who has to pay support?

Vexing, isn't it? But not outside of the realm of possibility. Enough to nix gay marriage? Not for you in all probability. Nor would the problems you concoct in a polyamorous situation be enough to convince polyamorists or the courts that polyamorists should be denied the "right" to marriage. They are different in degree, but not in kind, from the problems monogamous marriages encounter, for as the Schiavo case demonstrated, there can still be disputes between spouses and non-spouses over end-of-life care, even without polyamorous marriage, and custody and support issues are, along with property division, the very essence of family law practice at present, even without "gay" marriage. You think the divorce bar is "worried" about the problems you've dreamed up for polyamorous divorces? Think they aren't licking their lips over all the extra fees they're going to make when such unions are recognized?

Posted by: Iconoclast on April 5, 2005 02:13 AM

The potential for unintended or unforeseen consequences exists any time a change in policy is contemplated. The question is how much weight to give to this potential. Jane offers three specific arguments of cases where policy changes had supposedly negative consequences which were unforeseen by their proponents.

However, in two of those cases, a glance at the relevant research shows that her claims are wrong. First, she is wrong to argue that giving welfare benefits to unmarried mothers has any significant connection to the rise in the proportion of children born out of wedlock. Just in my own personal library, I found three separate books which discuss this issue and refute such claims: Rebecca Blank's It Takes a Nation, Michael Katz's The Undeserving Poor,, and William Julius Wilson's The Truly Disadvantaged. As Blank, who offers the most detailed discussion of the issue, describes it, the debate on this issue is between those who find that welfare payments have no effect on out of wedlock births, and those who find that welfare payments have a very minor effect.

So welfare is not, in fact, support for Jane's argument. What about divorce? I turned to the writings of historian Stephanie Coontz, a specialist on families and marriage in the US. She addresses these issues in her books The Way We Never Were and The Way We Really Are. Her review of the research finds that there is "little evidence that no-fault laws have been the main cause of rising divorce rates, or that, on average, women do worse with no-fault."

So divorce is also not support for Jane's argument. That leaves her with one case, unrelated to marriage policy--the fact that proponents of the federal income tax were wrong in believing that the government would never need to collect more than 10% of people's income in taxes. On that specific point, she is correct; however, I would suggest that people at least consider that a case might be made that the consequence of the failure to limit taxation to 10% was a positive one, not a negative one. I am quite certain, personally, that it was a very good thing that income tax rates were not limited to 10%. But rather than derail this thread into a lengthy debate over that issue by asserting the truth of my opinion, I'll just suggest the possibility.

So, in the end, the evidence in favor of giving considerable weight to unintended consequences reduces to one debateable case that is unrelated to marriage policy. Meanwhile, those on the other side have noted many cases in which the unintended consequences argument was clearly wrong, such as civil rights laws. It seems to me that the real danger is not, as Jane seems to believe, in giving to little weight to unintended/unforeseen consequences, but in giving them too much weight.

Posted by: Mark on April 5, 2005 02:29 AM

For example, take my non-whimsical example of a married gay couple with a 12 year old "son" who was sired by one of the "spouses." Suppose the non-biological "father" falls in love with the boy, pursues a sexual relationship with him at a time when the child is at whatever the age of consent is in the state where they reside but not at legal majority yet. Suppose the spouse in love with his "son" wants to divorce the boy's bio-dad to marry the kid. Who gets custody of the kid? Who has to pay support?

Several problems with this argument. First, a minor is not capable of giving consent, therefore such a marriage would not be possible and any sexual activity would be statutory rape and child molestation. Second, it also works if you substitute "daughter" or "woman/wife" in the argument. Because it applies equally in heterosexual situations it should not be considered relevant to a debate about gay marriage. Third, issues of custody between same sex couples are currently already being dealt with. PLEASE keep in mind gay adoption is currently LEGAL in the vast majority of states (Again, only Florida has a gay SPECIFIC ban on gay ADOPTION although other states don't allow ANY unmarried couples/single parents to adopt). All 50 states currently allow gays to be foster parents.

With that said, the courts give preference if there is a biological connection of course, but they also look at who is best for the child, who the child spends the most time with, who the child wants to be with (a less important but still considered factor as I personally experienced and was questioned about). The courts have a pretty fair ability to do that I that I think.

They are different in degree, but not in kind, from the problems monogamous marriages encounter, for as the Schiavo case demonstrated, there can still be disputes between spouses and non-spouses over end-of-life care, even without polyamorous marriage, and custody and support issues are, along with property division, the very essence of family law practice at present, even without "gay" marriage.

Now that really is ridiculous. The Schiavo case was an affirmation of a spouse's right to make decision's in their own life. Yes, of course the Schindlers were allowed to bring their case to court, the Congress at the end MANDATED that they do so. However, I'm unaware of any point in the dispute the family WON in court. That is, the feeding tube was taken out and reinserted a while ago because the Florida congress passed "Terri's law" to reinsert the tube. At no point though did the FAMILY actually win in court. Yes, there can be disputes between spouses and non spouses, but if anything the Schiavo case demonstrated unequivocably that the spouse always has preference over the family in making medical decisions.

You think the divorce bar is "worried" about the problems you've dreamed up for polyamorous divorces? Think they aren't licking their lips over all the extra fees they're going to make when such unions are recognized?

I don't think divorce courts are going to hear polyamory cases. I think its going to be going to the state, and then the Federal courts, and probably eventually the Supreme court. Perhaps it will be legal and perhaps it won't. But I think there's a considerably stronger case against polyamory than gay marriage and the two are NOT related in any way as I've demonstrated

Posted by: Kendall M. on April 5, 2005 02:36 AM

Iconoclast, I'd like to preemptively appologize. I skimmed your first paragraph slightly too quickly. My first issue with your hypothetical is obviously in error since you said they waited until it was the kid was to the legal age of consent.

Posted by: Kendall M. on April 5, 2005 02:57 AM

Mark, the books you cite are talking about a different thing than I am: does increasing the size of welfare payments have an effect on the number of out-of-wedlock births. They're also out of date; the consensus after welfare reform is that, apparently, welfare had a result that was hard to detect, because out of wedlock births have started falling. (By a small amount. It's not particularly surprising that marriage is harder to rebuild than to destroy). But there's little question that welfare had an effect on out-of-wedlock births in inner city areas; the major spike coincides neatly with the extension of benefits to welfare mothers, and then the liberalisation of those benefits in other ways (allowing teenagers to live alone and so on).

One can, of course, argue about the extent of the effect of divorce. But first of all, I'm talking about two waves of liberalisation: the first in the American west, allowing affluent women to divorce, which was followed by a significant easing after WWII to cope with the wave of quickie war marriages. The second wave was in the 1960s and 1970s. It is, of course, hard to separate out the effect of divorce from the effect of greater opportunities for women, but feminist scholars like Susan Faludi, on whom I believe Ms Coontz draws, tend to dismiss the effect of divorce law with very little evidence. It flies in the face of reason that a dramatic easing of the law creates no more of the behavior it regulates, and from what I've read, it also flies in the face of evidence.

Iconoclast, southern states didn't ratify the fourteenth amendment. It was passed while they were still under Reconstruction.

All the pro-gay-rights people dismissing the idea of polygamy: on what grounds? After all, isn't your argument that we should change marriage because "that's just the way it is" is not sufficient grounds to deny people a right? That said, on what grounds do we reasonably distinguish between two people who want to get married, and three? I don't know that this would be a bad thing, mind you, but I don't understand why you think that, having removed a pillar of the definition of marriage that has stood for as long as history, and longer, you think that you will be able to keep in place a much weaker, more local restriction.

Posted by: Jane Galt on April 5, 2005 03:40 AM

Jane - On the issue of polyamory look at the benefits marriage currently offers. Of course, such benefits in a truly libertarian society would cease to exist as a product of government expenditure that is unwarranted and unecessary, but they do in fact exist currently. Currently married couples pay a penalty for marriage, yes, but they also have rights in the even the spouse dies, that would simply be split mutliple ways of course.

But how would an issue similar to the Terri Schiavo dispute be settled? We know from that case that it reinforced a spouse's absolute right to make medical decisions for one another when such is necessary, but what if polyamory was legalized and a member of that union was incapacitated? For example, lets say 1 man in a polyamorous relationship with two women was in a PVS. One of the women seeks to remove his feeding tube (or, if he were in a coma pull the plug, I'm not trying to argue schiavo again, I'm trying to establish a principle here, details of his condition aren't relevant precisely) the other wishes to maintain life sustaining measures. Both women are his wives and married at the same time on the same day. Both would be legally able to make their chosen decision in a monogamous relationship with the man. In a polygamous relationship the law could not distinguish between the two without drastically taking sides in a legally impermissable and unjust way. One spouse is not superior to the other in the eyes of the law therefore one spouse's wish could not prevail over another. Its simply a legal impossibility.

The grounds would be that there is no legal right to marry two people, only one. The equal protection clause covers equal rights, benefits, and costs for ALL spouses. Polygamy in for example the situation I cited above would give one spouse more rights than another spouse therefore making the relationship inherently inequal and therefore not fall under an equal protection argument.

Posted by: Kendall M. on April 5, 2005 04:08 AM

Jane, overall an excellent discussion. I have yet to see a pro-SSM advocate acknowledge there might be a downside to SSM, or even discuss the possibility thereof.

Only denials. Is libertarianism really just adolescent anti-authoritarianism, or is there a logical, rational basis for this worldview? Why ignore Hayek, for example? Why dismiss Burke, Tocqueville or Kirk? It would appear that "what I want at this moment" trumps any other consideration as the definition of "freedom".

Posted by: Pogo on April 5, 2005 08:40 AM

Here is one way in which SSM will probably improve the institution of heterosexual marriage: it will force the rethinking of family law that now incorporates implicit sexist assumptions about who is the weaker party or the party better suited for childrearing. A court considering a family-law case involving a same-sex couple cannot avoid treating the members of the couple as fully equal; and the precedents that come from that equal treatment will produce more equal treatment for men and women in opposite-sex marriages.

Of course, for the social conservatives Jane is talking about this is probably a bug and not a feature. As she says, they fear that marriage will be undermined by equality since its attractiveness now comes in part from the ability to use it to fulfill traditional gender roles.

Screw 'em. Completing the process of legal equalization of men and women-- a process that began with married women no longer being regarded as chattel property of their husbands, also opposed by the social conservatives of the time-- is well worth whatever negative effects it may have on the sexist margin. There is no social good important enough to justify the state's enshrining prejudice in law.

This all goes double, by the way, for polyamory, though the acceptance of polyamory will need to be much, much slower due to the larger tangle of issues to sort through, such as those Kendall M. notes. It will be tough, but it too will come in time, and make everyone freer and legal equality stronger in the process.

Posted by: Nicholas Weininger on April 5, 2005 10:04 AM

Kendall - You keep offering up two obstacles to having more than one marriage partner that I find wholly unpersuasive: First, you wonder how a controversy such as the Schiavo dispute would be resolved, and, second, you say that multiple marriage partners could be denied because marrying more than one would be illegal. The first is, I believe based in a misconception of how polygamy has typically worked in the past. The second makes me laugh. Excuse me, but it does.

Polygamy has been around for a very long time. Most of the decision making issues you consider practical bars to its working were resolved ages ago. In the first place, when a man has more than one wife, he is the ONLY one that has more than one marriage partner. The wives may be married to the same husband, but they are NOT married to each other. It's also historical practice to grant the wives "votes" in order of seniority. If the wives need to jointly make a decision, they can vote with the "first wife" breaking any tie. We, of course, would not be bound by such traditions -- as long as we are redefining marriage, why not make up entirely new rules? The point is that other cultures have faced such questions and were able to resolve them without too much difficulty.

As to your second issue, that it would be illegal and that's why the courts will not allow more than one marriage partner, are you serious? Was it not "illegal" for gays to marry before the courts found such laws illegal? If the prohibition on gays marrying was not a block to the courts why should they find the same restriction insurmountable when it comes to more than one spouse? The entire rationale the courts used to strike down restrictions on gay marriage argues against respecting restrictions on the number of wives I might have at any one time. If marriage is a purely private matter between two consenting adults, why can't a man or a woman enter into more than one such agreement?

Posted by: David Walser on April 5, 2005 10:13 AM

Re: "There is no social good important enough to justify the state's enshrining prejudice in law."

No social good to forbidding SSM? None at all?

Again, this is merely another refusal to acknowledge there could be any downside to SSM, here by the fallacious assignation of "prejudice" as the sole reason for the current method (as determined, it appears, by you). That, it should be noted, is the height of arrogance.

Posted by: Pogo on April 5, 2005 10:17 AM

However, in two of those cases, a glance at the relevant research shows that her claims are wrong. First, she is wrong to argue that giving welfare benefits to unmarried mothers has any significant connection to the rise in the proportion of children born out of wedlock. Just in my own personal library, I found three separate books which discuss this issue and refute such claims

95% of the economics community and 100% of popular economics textbooks would disagree with your books. It is widely agreed that welfare incentives had serious consequences on:
1. Teenage pregancy
2. Low wage employment
3. Single mothers
4. Divorce rates
5. Family structures in general

Those were some of the reasons that welfare reform was enacted and since reform, these statistics have been confirmed.

Jane: Although some people here have tried to make your case for you, I do not think that you made the case for why incentives would affect marriage in this case. Economic or social incentives may affect my choice to marry, but why would other people's choices affect mine? I don't see how gay marriage creates incentive or disincentive for others to marry. I can speculate and make a case - but you did not do so and therefore your argument was weaker for it. I could also make a case that gay marriage would create a positive incentive, because those marriages may hold up well and remind people of the beuty of love. It is not a proven case, but nor is your implied argument that it would create a disincentive.

Posted by: liberty on April 5, 2005 10:17 AM

Kendall -- I hate to pull this thread further off-topic, but you've mentioned the Schaivo case more than once. Your understanding of that case is incorrect. The ruling wasn't that the husband gets to decide. It was that the "clear and convincing evidence" (which just happened to consist of testimony by the husband and his family members) showed that pulling the tube was what Terri would want.

Furthermore, the decision is based on Florida statute. Every state has its own laws as to how these situations are dealt with.

So, the case is not particularly instructive as to the legal complexities of polyamory, of which no doubt there would be many.

In fact, the Florida law could be easily adapted to a polyamorous situation. The only change needed would be provision for selection of a guardian (who is the one who has standing to bring the action to court). Most workable would be senior spouse is guardian in the absence of a written directive from the patient.

Posted by: denise on April 5, 2005 10:25 AM

>The best analysis I have of 2000 census data on gay households is this.

That was really interesting, thank you. One question. Maybe I am missing something... but does it make sense that there are only 600,000 gay couples but yet 3 million children raised by gays? That means there is an average of 5 children raised by each couple! (as opposed to 2.3 children per couple, overall). I find this impossible, obviously, so I wonder how I might have misinterpreted that. The 3 mil is not census data, which may explain it - but obviously one or the other of the numbers must be wrong (unless there are a lot of gays not in couples who are raising children who showed up in the other poll).

Posted by: liberty on April 5, 2005 10:30 AM

April,

I don't care if people are convinced or not regarding whether gay marriage be legalized. The majority who oppose gay marriage are homophobic. If not consciously - our society is homophobic - you know, patriarchy, the other, the abject? It's silly to dispute this.

I'm fine with the supreme court stepping in and protecting (or establishing) a minority's rights.

Posted by: Captain Blammo on April 5, 2005 10:38 AM

Re: "The majority who oppose gay marriage are homophobic."

What balderdash, what bunk. Claiming that "all who disagree with me ar evil" is an extremely unconvincing argument, howevermuch you believe it to be so. It will more likely result in resistance to, rather than support of, your viewpoint. Moreover, such Marxian theorizing on unrecognized bias is shopworn and dull as an assertion.

Posted by: Pogo on April 5, 2005 10:56 AM

Many of you posted a lot of very good questions regarding the benefits that gay couples would receive from marriage that they could not now. I found a very informative book called "Why Marriage?" by George Chauncey that would answer all these questions. I highly recommend it.

For example, there are stories in the book about a lesbian couple who had been together for (I believe) about 15 years. They went kayaking together one day, and one of the partners was run over by a speed boat and severely injured. She was rushed to the hospital, where, because her parents did not agree with her "lifestyle", her partner was not allowed to see her. Sadly, she died. "Luckily" for the couple, they had drawn up all the proper paperwork so that the things they had owned together would all go to the partner, et cetera. The parents challenged it in court, and won. The living partner got nothing, saw 15 years of her life with her late partner carted out of their home by the parents... and she wasn't even allowed to go to the funeral. My point is that it isn't just a money thing... everyone always says it's just about the tax breaks, but it's not. I mean, if it were really just that, we could say "to hell with it", take the benefits away from all marriages, and no one would complain because it's just taxes, right? No... anyone who is married or engaged knows that is not true.

Another thing is this: it takes thousands of dollars to draw up those papers (which can be and have been overturned in court), whereas a heterosexual couple can receive all of these emergency benefits (I'm talking about the ability to visit your spouse in the hospital, make decisions on their behalf, manage their estate, that kind of thing) and more by just paying the fee for a marriage license ($25 here) and signing the paper. This means that unless you can afford all those expenses, you don't get squat. Also, the papers that gay couples can get can mean nothing given the right judge, yet a marriage, as we have seen with the Terri Schiavo thing, means everything, legally speaking.

Anyways, read that book. It's very informative, and even talks about the civil rights movement and the gay rights movement, which I know some other people were talking about.

Posted by: Ithiliya on April 5, 2005 10:59 AM

"I can really see once gay marriage is allowed as a matter of law, the call will be to revoke the tax-exempt status of churches that don't marry gays, or to take other action against such churches (and individual clergy) who don't go along."

There are Catholic Churches that refuse to marry divorcees. Their tax-exempt status has not been revoked, and the clergy are still doing what they do best. Truth is, the original poster was right. No *religious* institution will be required to marry a gay couple, no more than they are currently required to marry someone who was previously married and has since divorced. *State* institutions on the other hand, will be.

Speaking of which, I wanted to talk about the part in the post about flagrant marriage ceremonies and receptions. The argument was that, earlier, ceremonies were simple... now they are "three-ring circuses" because the bride and groom are trying to make it mean something. I don't agree with this. Common sense tells me that a quick cheap ceremony means LESS than one you spend thousands (if not tens of thousands) of dollars to create. It is quick, it doesn't cost much... kind of like Brittany Spears' little Vegas fling, yes? With a big expensive production, you could argue that the bride and groom are trying to make themselves aware that this is a big step, but that certainly doesn't mean that they view the marriage as meaningless, and it certainly doesn't mean a cheap ceremony is MORE meaningful.
I guess I was just puzzled by that interesting point of view.

Posted by: Ithiliya on April 5, 2005 11:13 AM

"I think people need an incentive, an extra perk or societal honor, to brave this chasm between genders."

Luckily, God already thought of that one. That incentive, friend, is sex. ...aaaaaaand perhaps someone to cook a warm meal once in a while, take care of you when you're sick, talk to you when you're down, do stuff with... all that.

Ask any married person you know what their reason for marriage was. I gaurantee none will answer "societal honor"...

Posted by: Ithiliya on April 5, 2005 11:23 AM

Pogo, you're carelessly misreading my comment. I didn't say, nor do I believe, that there would be no downside to SSM; I said legal equality would be worthwhile despite the downside, because state-ratified sexism isn't justified even if it produces beneficial social effects. You evidently stopped reading before "important enough..."

Posted by: Nicholas Weininger on April 5, 2005 11:27 AM

What do the following have in common?

  • military intelligence
  • postal service
  • jumbo shrimp
  • three-sided quadrilateral
  • "gay marriage"
Or, if you prefer, "Heteronormative is redundant".Words do have meanings, and 'marriage' already has a very good one.

Posted by: m on April 5, 2005 11:27 AM


Claiming that polygamy will continue to be illegal because it is illegal is not convicing; it is arguably a tautological statement.

Not one advocate of SSM has been able so far to explain exactly on what grounds they will oppose polygamy. Again I ask the question: suppose that a devout Wahhabi Muslim who is a citizen of Massachusetts desires to marry two women. Upon what grounds will supporters of SSM oppose him?

Constitutional? Traditional? Morality?

What rock will you stand upon? Is there no advocate of SSM who can answer this question?

Posted by: ellipsis on April 5, 2005 11:36 AM

Capt. Blammo commits the argumentum ad hominem fallacy and then ends with this:

"I'm fine with the supreme court stepping in and protecting (or establishing) a minority's rights.
Posted by: Captain Blammo on April 5, 2005 10:38 AM"

In other words, Captain Blammo welcomes a more extreme USSC decision than _Roe_, no matter what the consequences. Is anyone surprised by this?

Then we have this observation:
"This all goes double, by the way, for polyamory, though the acceptance of polyamory will need to be much, much slower due to the larger tangle of issues to sort through, such as those Kendall M. notes. It will be tough, but it too will come in time, and make everyone freer and legal equality stronger in the process."

This is, as others have noted, typical for an online debate over SSM. Someone brings up polygamy, one or more supporters of SSM attempt to shout down the very idea that anyone would ever use SSM arguments to support polyamory, and then in time an SSM supporter shows up who *surprise* sees nothing wrong with polygamy, polyandry, etc.

One more time: SSM supporters, what argument will you use to oppose the judicial imposition of polygamy? Will you stand on the Constitution, with _Lawrence_ as a precedent, will you stand on traditional values, will you stand on personal likes/dislikes, or will you simply give up?

Why is it that no SSM supporter, such as Kendall or Brittain33, can answer such an obviously easy question?


Posted by: ellipsis on April 5, 2005 11:48 AM

Ithiliya -- I think the point of the "three ring circus" argument is that people are focusing too much on the ceremony (and even more on the reception) and not so much on the marriage. In other words, people are going into debt trying to make the ceremony meaningful and forgetting that there's supposed to be a whole lifetime after the band has packed up and the doves have flown away.

I don't agree with you that "Common sense tells me that a quick cheap ceremony means LESS than one you spend thousands (if not tens of thousands) of dollars to create."

I think, frankly, that how much a couple spends on a wedding has more to do with (1) parents' income and (2) materialistic attitudes (both of the couple and the parents). Furthermore, I have known plenty of brides who didn't seem to notice whether their fiance was there or not, but were really into making sure their wedding included the "best" of everything: limos, expensive cakes, designer dresses, . . .

A simple and inexpensive wedding, by the way, is not necessarily a Vegas quickie. I've been to plenty of low-cost weddings. It usually means small number of attendants, drive your own car, and a cake and punch reception in the church basement or at mom's house.

It would be interesting to see statistics on rate of divorce vs. cost of the wedding. My guess would be it doesn't make much difference (especially now with the fashion of starter marriages).

Posted by: denise on April 5, 2005 11:49 AM

By the way, I don't think the proliferation of "three ring circus" weddings has any bearing at all on the SSM debate.

Posted by: denise on April 5, 2005 11:51 AM

Nicholas, I read and re-read your missive and see no downsides discussed, excep those you referred to posed by others. And to these you suggest "Screw 'em."

Sorry, but you didn't discuss downsides, only upsides.

Posted by: Pogo on April 5, 2005 11:52 AM

M wrote:

"Jane-
Excellent essay. I have recommended it to friends.

I see very little point in overthrowing a vital & longstanding societal arrangement for no purpose but to temporarily placate a perpetually indignant 2-3%. As noted above all of the legal incidentals to marriage (visitation, inheritance, etc.) can be provided through existing legal means. We have much to learn and re-learn, with humility, from our predecessors...Jane's essay is a good start."

Please explain how allowing gays to marry equals "overthrowing" marriage?

And please keep in mind that legal documents sometimes mean nothing. Earlier, I gave an example that I read from a book called "Why Marriage?" (read it!), but last Sunday a legal assistant from LAMBDA came to my church to speak about the legal implications of same-sex marriage. He also warned some of the couples there that those documents do not always hold up in court, and there are hundreds of benefits that marriage offers that no lawyer can obtain for you.

Here's an interesting website I found that touches on this:
http://www.usconstitution.net/consttop_marr.html
More:
http://www.freep.com/news/mich/gay13_20040413.htm
http://www.glad.org/rights/CT-protectionsbenefits.html

Posted by: Ithiliya on April 5, 2005 11:53 AM


If I understand J. Rauch's argument (and I may well be quite mistaken) he argues at least in part that SSM will have a 'civilizing' effect, notably upon gay men. I have encountered this argument elsewhere, and find it quite unconvincing. Statistically, from Canada to the Netherlands to Denmark to Sweden, the number of people who actually take advantage of legalized SSM is a small percentage of those eligible.

Anecdotally, is it really to be expected that leathermen will decide to confine their rough trade to one other, that mall bunnies will start denting car hoods with only one other, that chickenhawks will settle down with only one teenaged boy, that habitues of bathhouses will continue to cruise those places but only in the company of one other? Can someone explain how this is going to work, when there are distinct subgroups of the gay population who actively flaunt the very notion of monogamy, as a political and social statement?

Posted by: ellipsis on April 5, 2005 12:04 PM

When Jane Galt and others suggest that SSM will weaken “traditional” marriage, I often wonder what kind of marriage they are talking about.

Religions which are most distressed by the idea of Same Sex Marriage have a patriarchal structure, one that doesn’t allow women in the top positions of the church hierarchy. Main stream Protestant churches, those who allow female pastors and bishops, are less likely to oppose SSM and may even encourage it.

Patriarchal religions also oppose abortion, the right of women to make reproductive choices. The Catholic Church also proscribes the use of artificial birth control, another way to burden women with more children, should the “natural” method fail, making them more dependant on their husbands. The Southern Baptist Convention is more direct in their position on the role of women in marriage, admonishing “wives to submit to their husbands.” They surround this expression with qualifiers, we note, but that in no way diminishes the meaning of the words. Mainstream churches, in contrast, tend to see marriage as a partnership between equals that relies on cooperation rather than coercion, however that coercion is manifest and supported by religious doctrine.

SSM would be more like the mainstream church’s view of marriage and the antithesis of the patriarchal view. Whether it’s two men or two women, there is no obvious male in charge, submissive female in these situations. When patriarchal churches say that SSM would diminish “traditional” marriage and that children need both a father and a mother as role models, it’s the patriarchal nature of these relationships that they are struggling to maintain. Equal rights for women and marriage rights for lesbians and gays, are both discordant with their patriarchal view of the world.

So SSM would change the nature of marriage as Galt and others suggest. However, I don’t see emphasizing marriage as a partnership between equals, as opposed to a male dominant / female submissive relationship to be a bad change at all.

Posted by: Bill Ware on April 5, 2005 12:06 PM

"Similarly, some people argue that gay marriage will lead to legalized polygamy. Such arguments are usually met with the same kind of ridicule and contempt, followed almost immediately by someone else arguing that polygamy should be legalized."

This is kind of a funny argument. Note that the discussion of homosexual marriage does not lead to the discussion of polygamous marriages unless the opponent of SSM brings it up. OF COURSE you are going to get someone who says they believe that polygamous marriages should be legal... you brought it up! If you brought up polygamous marriages outside of the context of gay marriage, you'd get the same results. Does the elimination of the discussion of SSM lead to the elimination of the thought that polygamous marriages are okay? No.

Posted by: Ithiliya on April 5, 2005 12:09 PM

Ithllya leaves out a critical step.

1. Someone brings up the fact that SSM will lead to legalized polygamy.
2. This argument is met with ridicule and contempt.
3. Someone WHO SUPPORTS SSM will then argue that polygamy should be legalized.

Indeed, this has happened at least once in this thread. It is a fact that within the set of people who support SSM, there is a distinct subset of people who also support polygamy, polyandry, and group arrangements.

Thus SSM supporters who oppose polygamy will at some point find themselves on the receiving end of ridicule and contempt from other supporters of SSM. How will they argue against their comrades? Will they stand on the Constitution, on tradition, on morality, on some other rock, or will they give up and endorse polyamory?

I invite Ithlliya to answer the question, since no one else can do so.

Posted by: ellipsis on April 5, 2005 12:22 PM

Kendal M. sez:

"The neutral position should seem logically to be leaving the law as it is in each state, not leaving the definition intact and enshrining it into the state or federal constitution."

Unfortunately that option has been taken away by activist judges. After Hawaii and Massachusetts many voters believe that "leaving the law as it is" is tantamount to "letting their state Supreme Court create gay marriage by decree." So they're forced to decide, and decide now, whether to have SSM or not.

This is one of the unintended consequences of the "go to the courts first" strategy.

Then there's folks like Clever Screen Name:

"That’s why I support the FMA. Just to poke those arrogant bastards in the eye."

I live in NH, where we have our own arrogant judges. Our big flashpoint is the "Claremont Decision." The thing is Claremont is about school funding, so passing a Federal FMA doesn't help us at all. If we're going to go after out-of-control judges, I say let's do it directly, not via the proxy of SSM/FMA, which I'd prefer to see stand or fall on their own merits.

Ellipsis sez:

"Effects of SSM: Immediate lawsuits filed by poly-group marriage supporters that cannot be denied, in light of the language of _Lawrence_ and _Goodridge_. "

I'd like to correct that. "Effects of *legally imposed* SSM....." Some of what he suggests may sound ridiculous, but unfortunately ridiculousness is no impediment to the modern judge (especially the 9th circuit court of appeals.)

That's why I'm in favor of SSM brought about by democratic means. If you ask me "Why gay marriage and not 'intergenerational' marriage?", I'll answer "Because I expect once gays start to get married, they'll also start moving to the suburbs, buying houses, and voting Republican. I have no such expectations for polygamists or pederasts." And you know what? If Utah wants to recognize polygamy and put up with the resulting family court chaos and confusion, *I don't care*! Just so long as New Hampshire doesn't have to recognize it, I'll just watch the experiment work itself out from afar. Again, that's what's nice about Federalsim and representative democracy. I just wish we could go back to ruling ourselves that way....

Jane's post was about whether SSM is good policy, and how to go about deciding that question. It was not about how, if it is good policy, SSM should come about, and it didn't mention court cases at all. Yet here we are talking about what judges should do, should not do, and are likely to do.

It appears that for many people SSM and judicial activism are merging into a single issue. This is not good news for those in favor of SSM.

Posted by: ralph phelan on April 5, 2005 12:30 PM

This is kind of a funny argument. Note that the discussion of homosexual marriage does not lead to the discussion of polygamous marriages unless the opponent of SSM brings it up. OF COURSE you are going to get someone who says they believe that polygamous marriages should be legal... you brought it up! If you brought up polygamous marriages outside of the context of gay marriage, you'd get the same results. Does the elimination of the discussion of SSM lead to the elimination of the thought that polygamous marriages are okay? No.

You're not paying attention to ellipsis' argument. References to the possibility of polyamorous marriages are not simply a bogeyman gay marriage opponents use as a red herring. The reasoning in the Massachusetts Gooding decision that gave the green light to gay marriage also logically supports the establishment of polyamorous marriages---ellipsis quoted the relevant language. There is now a case in Utah that seeks to establish the validity of such marriages based on pertinent language in the Lawrence and Gooding cases. Gay marriage opponents mention polyamorous marriages because people are trying to make them happen through the courts, and they're making it happen thanks to gay marriage and the court opinions establishing it giving them an opening.

Posted by: Iconoclast on April 5, 2005 12:32 PM

Pogo: your response mystifies me. What do you expect, that I'll come up with my own creative list of downsides? I refer specifically to a downside posed by the original post author, and then state my opinion that although it exists it doesn't justify disallowing SSM, because legal equality is too fundamental a value in a free society.

Posted by: Nicholas Weininger on April 5, 2005 12:32 PM

Denise -

You have a lot of good points, and I realized that I misspoke on one of my own points. I didn't mean that ALL quick and cheap marriages were meaningless... I was actually trying to point out that the amount you spend on a wedding doesn't dictate how much meaning you put into it, but because the opposite side of the argument had already been put through, I instinctively went on the other side a bit much *laughs* My apologies.

I'm actually going through the planning stage of a wedding right now. We're having a simple park ceremony... no flowers, parents are driving the get-away vehicle *grins*, et cetera. And I still know it has meaning. But it doesn't mean that those who spend thousands of dollars on their weddings are doing it because they are trying to put in some meaning into an otherwise unmeaningful (to them) event. But I think we're in agreement with that.

You had mentioned that there are women out there who are so wrapped up in the details of the ceremony they don't even realize the groom is there. Oh, so true. Used to work at a 4-star hotel that had wedding facilities. Met a few Bridezillas in my time :) But, just because they are wrapped up in the details and making sure everything is PERFECT doesn't mean that they don't value the marriage itself. It's real easy to get wrapped up in what is touted to be the biggest day of your life :oS

Posted by: Ithiliya on April 5, 2005 12:36 PM

Iconoclast, southern states didn't ratify the fourteenth amendment. It was passed while they were still under Reconstruction.

I know. My point was that, as far as I know, there were also states not in the South that had interracial marriage bans that ratified the 14th Amendment and which continued to have such bans after ratification, which allows an inference that that Amendment wasn't passed to allow interracial marriage. Not arguing that interracial marriage should be prohibited, because I don't believe in such prohibitions, but simply that the Loving decision, however "correct" in people's minds as a matter of principle, should not serve as legitimate precedent for gay marriage.

Posted by: Iconoclast on April 5, 2005 12:38 PM

Ellipsis:

Thank you for the invitation.
You said:
"Thus SSM supporters who oppose polygamy will at some point find themselves on the receiving end of ridicule and contempt from other supporters of SSM. How will they argue against their comrades? Will they stand on the Constitution, on tradition, on morality, on some other rock, or will they give up and endorse polyamory?"

While I don't entirely understand what the different beliefs between different supporters of SSM has to do with the legalization of SSM, I'll try and answer your question. How will they argue against their "comrades"? I believe an earlier poster put it very well... Legalization of SSM means that two people will enjoy the benefits that two heterosexual people can currently enjoy. Envolving more than two people in a relationship opens up a can of political worms that would defeat any attempt at legalization of polygamous (oops, sorry, polyamorous) marriages. The very arguments brought forth earlier that would, at least in court or when put to a vote, kill a polyamorous marriage argument (IE: who makes the decisions on behalf of an ill or dead spouse, who pays child support in the event of a divorse, et cetera) do not apply to SSM, due to the very nature of these two "types" of marriages. SSM would be different from our current marriage system in only the fact that the two involved happen to be of the same sex and cannot on their own produce children.
(Please note that I have not yet made up my mind whether or not I believe polyamorous marriages should be legal.)

Posted by: Ithiliya on April 5, 2005 12:48 PM

"There is now a case in Utah that seeks to establish the validity of such marriages based on pertinent language in the Lawrence and Gooding cases. Gay marriage opponents mention polyamorous marriages because people are trying to make them happen through the courts, and they're making it happen thanks to gay marriage and the court opinions establishing it giving them an opening."

Okay, so there is a case. That's fine... there's nothing wrong with an American bringing their case to court. That's what we do here... you think a law is unfair or unjust or unconstitutional, you bring it up. While you may argue that proponents of SSM have inspired those who agree with polyamorous marriages to take it to the courts, it doesn't mean that if SSM becomes legal, so will polyamorous marriages. They are, for reasons we have mentioned before, two completely different things.

Posted by: Ithiliya on April 5, 2005 12:53 PM

"Ithiliya -- I think the point of the "three ring circus" argument is that people are focusing too much on the ceremony (and even more on the reception) and not so much on the marriage. In other words, people are going into debt trying to make the ceremony meaningful and forgetting that there's supposed to be a whole lifetime after the band has packed up and the doves have flown away."

I think it's the opposite - the big weddings are an unconscious attempt to undo the effects of easy divorce. They replace the missing legal cost of divorce with a newly created social cost - the sound of family, bridesmaids, etc. shrieking "You put us through all that for nothing!?"

Posted by: ralph phelan on April 5, 2005 12:56 PM

Nicholas:
Re "What do you expect, that I'll come up with my own creative list of downsides? "

Yes, I do.
The fact that you are unable or unwilling makes your demand for SSM suspect, which was one of the points of Jane's post.

As per Jane: "If you think you know why marriage is male-female, and why that's either outdated because of all the ways in which reproduction has lately changed, or was a bad reason to start with, then you are in a good place to advocate reform. If you think that marriage is just that way because our ancestors were all a bunch of repressed bastards with dark Freudian complexes that made them homophobic bigots, I'm a little leery of letting you muck around with it."

Posted by: Pogo on April 5, 2005 01:05 PM

David Walser - the answer for making marriage more "special" by keeping (or rather, making) the bar high is not by excluding those who would enter into it solemnly, and for the right reasons, but by excluding those who do not. How about we say that celebrities or people who get married after dating a month (I would unscientifically wager that these groups have worse-than-average marriage lifespans, but if that isn't the case or you don't like it, then fill in whatever groups you want to the example) are forbidden to marry, but committed gay couples with steady, long relationships, a desire to continue it forever, the will to work at it, the belief in its societal and other significance, and the desire to make a family can?

Posted by: onon on April 5, 2005 01:21 PM

But I think there's a considerably stronger case against polyamory than gay marriage and the two are NOT related in any way as I've demonstrated

Kendall, I'm not going to respond point-by-point, not because I want to concede, but because, tho' you're a civil and reasonable opponent, you do seem to have your mind closed on this issue.

What I do have to say in reply is this: Marriage has had a dominant paradigm for centuries---male-female, whether monogamous or polygamous. Societies have tweaked that paradigm from time to time---to make it more equal and less "patriarchal" for example---but no society has gone outside that basic paradigm. In Western Judaeo-Christian society, the paradigm has been one man---one woman for two millennia.

All your examples as to why polyamorous marriages "won't work" are taken from precedent that assumes a monogamous, heterosexual paradigm: the Schiavo case where one spouse has the right to determine end-of-life issues; the support case where some back door man has fathered a child that the wife seeks to have the husband support, etc.

The point is that you gay marriage advocates want to *shatter* this predominant monogamous, male-female paradigm, so you can't appeal to examples that assume its continued validity. You can't, for example, object to several "husbands" undertaking to support a child via a polyamorous marriage based on a traditional paradigm of the father supporting only his biological children, if you are positing that a male in a gay marriage can legally be a "parent" of a child of the "marriage," with support obligations to that child that he is not the biological father of. That's the real nub of the argument about polyamory: not that it's different from gay marriage, but that both it and gay marriage can no longer be justified with reference to the "traditional marriage" paradigm or any examples drawn from it.

Posted by: Iconoclast on April 5, 2005 01:27 PM

Jane, overall an excellent discussion. I have yet to see a pro-SSM advocate acknowledge there might be a downside to SSM, or even discuss the possibility thereof.

Only denials. Is libertarianism really just adolescent anti-authoritarianism, or is there a logical, rational basis for this worldview? Why ignore Hayek, for example? Why dismiss Burke, Tocqueville or Kirk? It would appear that "what I want at this moment" trumps any other consideration as the definition of "freedom".

I could say the exact same thing about people seeking to ban SSM constitutionally. We've seen the negative effects in a couple of states already, but continually in each state such an ammendment is proposed supporters deny there will be ANY negative consequences of passing it. Why should I conceed that a change in policy will have more negative consequences than a change in the constitution would?

Posted by: Kendall M. on April 5, 2005 01:30 PM

David Walser - You misunderstood my point. My point is not that Polygamy should remain illegal because it would be illegal. My point is that polygamy is creating an inherently inequal relationship between two adults. It simply cannot be done under the law where spouses do not have equal power to make decisions for one another. Therefore the equal protection argument that would, should the courts be allowed to decide this, most likely apply to gay marriage could not be applied to polyamorous marriage.

Posted by: Kendall M. on April 5, 2005 01:36 PM

That was really interesting, thank you. One question. Maybe I am missing something... but does it make sense that there are only 600,000 gay couples but yet 3 million children raised by gays? That means there is an average of 5 children raised by each couple! (as opposed to 2.3 children per couple, overall). I find this impossible, obviously, so I wonder how I might have misinterpreted that. The 3 mil is not census data, which may explain it - but obviously one or the other of the numbers must be wrong (unless there are a lot of gays not in couples who are raising children who showed up in the other poll).

Not sure where you're getting 3 million from, I think I've always said 300,000. With that said, I do think the census data is underreporting and is more important for showing trends than actual numbers.

Posted by: Kendall M. on April 5, 2005 01:39 PM

Okay, so there is a case. That's fine... there's nothing wrong with an American bringing their case to court. That's what we do here... you think a law is unfair or unjust or unconstitutional, you bring it up. While you may argue that proponents of SSM have inspired those who agree with polyamorous marriages to take it to the courts, it doesn't mean that if SSM becomes legal, so will polyamorous marriages. They are, for reasons we have mentioned before, two completely different things.

You're dodging my argument. My point, which I will only repeat one more time, is not that "if SSM becomes legal, so will polyamorous marriages," or that gay marriage and polyamorous marriages are "the same thing," but that the same logic in the Gooding and Lawrence cases that supports the extension of "marriage rights" to homosexuals also supports their extension to polygamous marriage partners. Will polygamy be made legal? is not the relevant question. Is there any legal argument to prevent polygamy if gay marriage is allowed? is the pertinent question.

Posted by: Iconoclast on April 5, 2005 01:43 PM

let me get this straight. "Result" and "cause" seem to be interchangeable in these socioeconomic situations, and quite frankly, all too often they are not and pretty much cannot be clearly delineated due to any number of factors.

For instance, divine right monarchy and feudalism are the cause of democracy?????

I agree with those commenters who keyed in uncontrolled (natural?) variables in all the situations mentioned, and then some. Even the Puritans allowed divorce because they knew that there were uncontrolled variables in many situations. Hell, they even permitted "bundling"! And what did that cause?

Kudos to all those American pioneers of all stripes who did not have the imagination to visualize the "marginalized", etc. etc. and went on to invent everything from electricity to nylon stockings! We are better for their lack of "imagination"!

Posted by: Mageen on April 5, 2005 01:45 PM

The point is that you gay marriage advocates want to *shatter* this predominant monogamous, male-female paradigm, so you can't appeal to examples that assume its continued vadlidity. You can't, for example, object to several "husbands" undertaking to support a child via a polyamorous marriage based on a traditional paradigm of the father supporting only his biological children, if you are positing that a male in a gay marriage can legally be a "parent" of a child of the "marriage," with support obligations to that child that he is not the biological father of. That's the real nub of the argument about polyamory: not that it's different from gay marriage, but that both it and gay marriage can no longer be justified with reference to the "traditional marriage" paradigm or any examples drawn from it.

Tou suggest that gay couples want to shatter the "monogamous" paradigm. I simply don't see where you get that idea. Aside from the gender of the couple cite your source? Yes, I am aware of the out of context quote from Andrew Sullivan on the issue, and probably one or two "gay intellectuals" but those are not every gay person, anymore than every straight person has an affair with someone while married although a lot of heterosexuals do.

As for not objecting to multiple husbands when I don't object to a gay male relationship the child might be raised in again I fail to see your point. Currently if a child is adopted by a married couple there is no difference legally, the child is as much a part of the family under the law as a biological child. If a child is the result of an adulterous indiscretion however and the husband can prove he is not the father and divorces his wife he is generally not required to pay child support. We have an adoption system in place that accomodates gay couples, we don't even begin to have a system in place for dealing with polyamory.

Posted by: Kendall M. on April 5, 2005 01:54 PM

ralph phelan writes:
ellipsis: "Effects of SSM: Immediate lawsuits filed by poly-group marriage supporters that cannot be denied, in light of the language of _Lawrence_ and _Goodridge_. "

I'd like to correct that. "Effects of *legally imposed* SSM....." Some of what he suggests may sound ridiculous, but unfortunately ridiculousness is no impediment to the modern judge (especially the 9th circuit court of appeals.)

ralph then goes on to assert that democratically imposed (I assume via a legislature or referendum) SSM would not lead to polygamy.

Why is that? Given _Lawrence_ as a precedent alone, why would SSM imposed via legislative logrolling or a referendum somehow render moot any claims by a polygamist plantiff that he and his wives were being discriminated against and thus entitled to remedy under Equal Protection. Furthermore, if the plantiff is a Wahhabit Moslem, he could also claim anti-religious discrimination under 1st Amendment protection, and since progressives have fallen all over themselves to prove they are not "Islamophobes", what justification for opposing his suit would there be? The only argument I can see is that a sufficient number of judges _at this time_ would not entertain arguments by polyamorites...or, to put it in terms more familiar to this debate, 'there are too many Islamophobic and polyphobic hate-filled bigots on the bench'.

Really, I do not see how in the current judicial environment it makes any serious difference whether SSM is imposed by judicial fiat or legislative deal-cutting. Either way, there are people patiently waiting for their turn to demand yet another modification of marriage.

ralph phelan also writes:
"If you ask me "Why gay marriage and not 'intergenerational' marriage?", I'll answer "Because I expect once gays start to get married, they'll also start moving to the suburbs, buying houses, and voting Republican. I have no such expectations for polygamists or pederasts.""

All gays are going to get married and move to suburbs? Really? Leathermen, queer activists, chickenhawks...all are eagerly awaiting SSM to move to the 'burbs and start voting for Bush? Do you have any evidence to support this?

And why the pedophobia? Aren't they just people like us, who happen to love a bit differently?

Finally, ralph phelen writes:
"If Utah wants to recognize polygamy and put up with the resulting family court chaos and confusion, *I don't care*! Just so long as New Hampshire doesn't have to recognize it, I'll just watch the experiment work itself out from afar."

I do not think that this is viable, not under the modern understanding of "Full Faith and Credit". It is my opinion that SSM courtroom advocates are waiting for the Massachusetts Amendment process to play itself out, but that in 3 years or less we will see lawsuits demanding that Mass. SSM's be recognized in other States, under FFaC, and provided the right judge is shopped in the right Circuit, there are no grounds to expect such a plan to fail.

That's why I'm in favor of SSM brought about by democratic means. If you ask me "Why gay marriage and not 'intergenerational' marriage?", I'll answer "Because I expect once gays start to get married, they'll also start moving to the suburbs, buying houses, and voting Republican. I have no such expectations for polygamists or pederasts."

Posted by: ellipsis on April 5, 2005 01:54 PM

Kendall M. writes:
"My point is not that Polygamy should remain illegal because it would be illegal. My point is that polygamy is creating an inherently inequal relationship between two adults."

So what? As long as the adults are consenting, what business is it of yours to demand that they conform to your narrowminded view of how a marriage ought to be? (Does this argument look familiar?)

"It simply cannot be done under the law where spouses do not have equal power to make decisions for one another. Therefore the equal protection argument that would, should the courts be allowed to decide this, most likely apply to gay marriage could not be applied to polyamorous marriage."

This appears to me to be grasping at straws. A fundamentalist Moslem would scoff that under Sharia law, which is considerably older than any constitution, there is no need for equal power to make decisions in a marriage, because Allah has willed it to be so. Therefore your argument is specious, and furthermore Islamophobic, polyphobic , a violation of his freedom of religion and possibly "hate speech". I wager that he would garner support from some number of progressives...

Care to try again?

Posted by: ellipsis on April 5, 2005 02:04 PM

I could say the exact same thing about people seeking to ban SSM constitutionally.

Don't you gay marriage advocates get the rationale for the proposed ban? It has only been proposed because gay marriage advocates have engineered judicial cases establishing gay marriages using vague, expansive, implicit arguments about "rights" and "non-discrimination." In no case have gay marriage advocates taken the trouble to make their case for gay marriage to any electorate or state legislature. That's what this whole bleepin' thread is about: gay marriage advocates making a case for gay marriage on POLICY grounds, not an assertion of "rights," or charges of bigotry, or burden shifting rhetoric, such as "Why SHOULDN'T gay marriage be legal...?"

If you make the case for gay marriage before an electorate or legislature, and they approve, a ban wouldn't be an issue. But then, you guys obviously haven't made a policy case for it yet.

Posted by: Iconoclast on April 5, 2005 02:12 PM

This appears to me to be grasping at straws. A fundamentalist Moslem would scoff that under Sharia law, which is considerably older than any constitution, there is no need for equal power to make decisions in a marriage, because Allah has willed it to be so. Therefore your argument is specious, and furthermore Islamophobic, polyphobic , a violation of his freedom of religion and possibly "hate speech". I wager that he would garner support from some number of progressives...

Since when did Sharia law affect the laws of the United States? We don't live under the law of the Talmud or the Torah do we? Nor the Bible for that matter, nor the Koran, nor any religion specifically, although the Bible DID influence our laws more than any other religious book of course.

Just as the selling and consumption of pork is legal in the United States which violates the Torah so too may differences in our laws exist with religions where they would conflict with the constitution, you know that as welll as I do.

Care to try again?

Same question back to you.

Posted by: Kendall M. on April 5, 2005 02:14 PM

Don't you gay marriage advocates get the rationale for the proposed ban? It has only been proposed because gay marriage advocates have engineered judicial cases establishing gay marriages using vague, expansive, implicit arguments about "rights" and "non-discrimination." In no case have gay marriage advocates taken the trouble to make their case for gay marriage to any electorate or state legislature. That's what this whole bleepin' thread is about: gay marriage advocates making a case for gay marriage on POLICY grounds, not an assertion of "rights," or charges of bigotry, or burden shifting rhetoric, such as "Why SHOULDN'T gay marriage be legal...?"

If you make the case for gay marriage before an electorate or legislature, and they approve, a ban wouldn't be an issue. But then, you guys obviously haven't made a policy case for it yet.

Well, you do have some point. Its true, I think the legislature should decide it and I think the courts should be a last resort. If I had absolute control over every gay couple and gay organization I'd be taking a very different tack in trying to make gay marriage illegal. However, you haven't explained why a constitutional ammendment is necessary yet.

As I said the other day, congress may strip the courts from hearing challenges to marriage laws. Why is a constitutional ammendment preferable to that method? The question isn't whether gay marriage should be banned constitutionally or allowed judicially, to me the debate should be if banning it is the preferable method rather than simply removing the courts and ALLOWING it to play out in state legislatures.

Posted by: Kendall M. on April 5, 2005 02:20 PM

If a child is the result of an adulterous indiscretion however and the husband can prove he is not the father and divorces his wife he is generally not required to pay child support. We have an adoption system in place that accomodates gay couples, we don't even begin to have a system in place for dealing with polyamory.

You're not comprehending my point. Your "adulterous indiscretion" example assumes a monogamous, male-female paradigm, which your advocacy of gay marriage already makes moot. (BTW, as recently as 50 years ago, there was legally a "conclusive presumption" that a child born while a man was cohabiting with his wife was his to support---there's a famous California case where a white guy's white wife gave birth to a biracial baby that was obviously not his, but which he had to support nonetheless).

Further, we "have an adoption system in place that accomodates gay couples" only because in the last quarter century, "gay couples" have lobbied strenuously for adoption rights---prior to that, no one had even thought of "gay adoption," any more than they had thought of "gay marriage." When polyamory is established as a "right," the adoption agencies will "accomodate" them too---they'll have to. And it won't make a bit of difference that they didn't used to. Don't you get that?

Posted by: Iconoclast on April 5, 2005 02:21 PM

Your post is profound and shows that you, for one, are thinking of the entirety of the issue and not just what you want for yourself. It is most interesting that those who disagree do so using the same terms you discussed: "I don't see." "I can't believe." or "It's been my experience." The problems with most arguments on both sides is that they are based on the selfishness or personal desire of the presenter and the their narrow view or experience. Few try to see the bigger picture as you have.

Narrow, self oriented views breed fight and argument that is hardly Socratic. Broader examinations such as yours breed civil discussion. Thank you.

Posted by: Michael on April 5, 2005 02:23 PM

Kendall M. dodges a simple question regarding polygamy, I shall repeat it:

"If all concerned are consenting adults, why is it your business if they do not conform to your narrowminded view of how a marriage ought to be?"

Care to deal with this? Kendall might as well get used to it, since it is very likely that other SSM advocates will be asking a question similar to it in a few years...

Then he asks, regarding a hypothetical fundamentalist Moslem demanding the right to marry two wives:

"Since when did Sharia law affect the laws of the United States"?

Let me answer that question with two questions:

1. Since when did Sharia law affect the laws of Canada?

2. Since when did the laws of Canada, or any other foreign jurisdiction, affect the way laws of the United States are to be interpreted?

Answer these two questions, then perhaps we can discuss my hypothetical more intelligently...

Posted by: ellipsis on April 5, 2005 02:29 PM

Re: "I could say the exact same thing about people seeking to ban SSM constitutionally. We've seen the negative effects in a couple of states already, but continually in each state such an ammendment is proposed supporters deny there will be ANY negative consequences of passing it. Why should I conceed that a change in policy will have more negative consequences than a change in the constitution would?"

That's an odd claim to make. Jane opines that those proposing SSM marriage have the burden of proof to show how it would be superior to, or at least not deletirious from, the current norm. You suggest that the majority, in an attempt to thwart the back-door judicial fiat imposition of SSM by undemocratic means, is guilty of the same disorder.

Perhaps, but the constitution is not a suicide pact. Moreover, given judicial activism, there exist few other avenues for expression of the public will here.

Posted by: Pogo on April 5, 2005 02:40 PM

"If all concerned are consenting adults, why is it your business if they do not conform to your narrowminded view of how a marriage ought to be?"

Care to deal with this? Kendall might as well get used to it, since it is very likely that other SSM advocates will be asking a question similar to it in a few years...

Just because all involved are consenting adults doesn't mean the relationship is constitutional. Following your logic I could say a duel is constitutional as long as all parties involved agree on the terms of the duel, but of course the government has the right to regulate personal activity of that sort.

Let me answer that question with two questions:
1. Since when did Sharia law affect the laws of Canada?
2. Since when did the laws of Canada, or any other foreign jurisdiction, affect the way laws of the United States are to be interpreted?
Answer these two questions, then perhaps we can discuss my hypothetical more intelligently...

I assume you're referring to the the Lawrence decision citing foreign law in its decision. Fine, they shouldn't have done that, I never said they should have. However, foreign law was not the BASIS on which Lawrence overturned Bowers v. Hardwick.

That was your second point. As to the first, Sharia law does NOT affect Canadian law as far as I know. However, under Canadian law religions of all types can petition to have THEIR laws used to handle family disputes. I think that's roughly how it works. I don't live in Canada and I'm not specifically familiar with it, but I don't see how its particularly relevant. Canada is not the United States. Your comparison is invalid because you're talking about two different countries and two legal systems which are different.

Posted by: Kendall M. on April 5, 2005 02:42 PM

Pogo: again, you're missing the point. Let me try and spell it out for you a little more explicitly.

1. I *agree* with Jane that SSM may cause a diminution in propensity to marry at the margin, since part of what makes the traditional institution attractive to some people may be the desire to live out traditional gender roles. I am under no obligation to come up with my own downsides because I *agree with hers*, and this thread has too much redundancy in it already.

2. I *don't care* about this downside, not because I think it doesn't exist (see point 1), but because I think the imperatives of individual freedom and equality before the law outweigh it.

3. This is *not the same* as claiming there are no downsides to SSM.

Got it now?

Posted by: Nicholas Weininger on April 5, 2005 02:46 PM

Just because all involved are consenting adults doesn't mean the relationship is constitutional.

A good argument against gay marriage---I couldn't have put it any better.

Answer this question: What language or reasoning or holding of the Lawrence and Gooding cases which ellipsis has repeatedly cited would *PREVENT* the extension of "marriage rights" to polyamorous couples? Just identify the language and explain your reasons.

Posted by: Iconoclast on April 5, 2005 02:56 PM

I *don't care* about this downside, not because I think it doesn't exist (see point 1), but because I think the imperatives of individual freedom and equality before the law outweigh it.

"Imperatives of individual freedom and equality"? Does that mean that anytime anyone can identify an "imperative of individual freedom and equality" supporting a proposal, there is no need to make a policy argument for the proposal or to ensure that the proposal is democratically enacted through a ballot proposition or elected representatives? Who gets to decide what an "imperative of individual freedom and equality" is besides you and a few others on the bench?

Posted by: Iconoclast on April 5, 2005 03:04 PM

Answer this question: What language or reasoning or holding of the Lawrence and Gooding cases which ellipsis has repeatedly cited would *PREVENT* the extension of "marriage rights" to polyamorous couples? Just identify the language and explain your reasons.

Those cases didn't deal with polyamory and therefore the language doesn't need to specifically prevent or support polyamory.

However, I have yet to hear why a federal constitutional ban is PREFERABLE to removing the courts from the debate through a simple act of congress. You support the FMA. Justify that.

Posted by: Kendall M. on April 5, 2005 03:04 PM

I asked:
'"If all concerned are consenting adults, why is it your business if they do not conform to your narrowminded view of how a marriage ought to be?"

Care to deal with this? Kendall might as well get used to it, since it is very likely that other SSM advocates will be asking a question similar to it in a few years...'

Kendall M. responds:
"Just because all involved are consenting adults doesn't mean the relationship is constitutional."

Only under a narrowminded reading of the Constitution...the sort of reading that _Lawrence_ and a couple of other recent decisions pretty much put paid to.

"Following your logic I could say a duel is constitutional as long as all parties involved agree on the terms of the duel, but of course the government has the right to regulate personal activity of that sort."

Well, first of all I know libertarians who support dueling. Second of all, isn't an axiom of the SSM movement that "whatever two consenting adults want to do behind closed doors is their business and no one else's"? Why the narrowminded insistence on "two"?


Then I asked these two questions:

"1. Since when did Sharia law affect the laws of Canada?
2. Since when did the laws of Canada, or any other foreign jurisdiction, affect the way laws of the United States are to be interpreted?
Answer these two questions, then perhaps we can discuss my hypothetical more intelligently..."

"I assume you're referring to the the Lawrence decision citing foreign law in its decision."

Not only _Lawrence_, but _Bolton_ as well. Justice Kennedy and Justice O'Connor have established the precedent that the USSC may pick and choose any foreign jurisprudence they like in support of a decision, even if it overturns multi-century precedent.

"Fine, they shouldn't have done that, I never said they should have."

That's good to know, but it doesn't matter whether Kendall M. approves or disapproves of facts; they continue to exist either way.

"However, foreign law was not the BASIS on which Lawrence overturned Bowers v. Hardwick."

That is not relevent to my point. The USSC _now_ is willing to cite foreign jurisprudence in support of decisions on how to read the US Constitution. My crystal ball is defective, perhaps due to having an old RS-232 interface, and thus I cannot predict the future. However, it is no great leap of faith to assume that citation of foreign jurisprudence will continue at the USSC level, and that use of it will grow. It is not unreasonable to assume that at some point a Court will pick and choose part of Sharia in order to support some pre-determined outcome.


"That was your second point. As to the first, Sharia law does NOT affect Canadian law as far as I know. However, under Canadian law religions of all types can petition to have THEIR laws used to handle family disputes."

Yet handling disputes is one of the basic functions of law, is it not? Therefore one cannot claim (a) Sharia law can be used to settle disputes between Moslems in Canada but (b) Sharia law in no way affects law in Canada. If two Canadian citizens in Canada can wind up having their dispute settled by Sharia law, then it is clear Sharia law is in some way affecting Canadian law. Given the USSC's new habit of citing foreign law, including Canadian, to reach the predetermined outcome of a case...is my point clearer, now?

One more time: on what grounds do supporters of SSM propose to oppose polygamy? Constitutional? Moral? Ethical? Religious?

Posted by: ellipsis on April 5, 2005 03:21 PM

Those cases didn't deal with polyamory and therefore the language doesn't need to specifically prevent or support polyamory.

You dodged my question, as you've repeatedly done ellipsis'. You keep coming up with tangential, tautological points, like the one above. Who needs to know that the two cases weren't about polyamory? The question was, is there any language in their reasoning that could not be used to justify polyamory? Is there any language therein that would prevent the institution of polyamorous marriage while allowing the institution of gay marriage? These are questions that you gay marriage advocates won't answer because you can't answer them.

However, I have yet to hear why a federal constitutional ban is PREFERABLE to removing the courts from the debate through a simple act of congress. You support the FMA. Justify that.

There's already such a statute: the Defense of Marriage Act, signed by President Clinton in 1996. Having Congress deprive courts of jurisdiction is a plausible but unrealistic alternative because: 1)The American people aren't focused on questions of jurisdiction, but whether gay marriage should be allowed or not; 2) Congress doesn't have the spine to exercise its constitutional right to deprive courts of jurisdiction, and the Democrats will probably filibuster the idea anyway; 3) The courts don't care what the Constitution says, and they'll probably fight restrictions on their jurisdiction, setting up a worse constitutional crisis than we already have.

FMA is not an optimal alternative to deal with the "gay marriage" mess the courts have set up. But it looks like there's no realistic alternative if we don't want the courts to jam "gay marriage" down everybody's throats.

Posted by: Iconoclast on April 5, 2005 03:24 PM

Re: "I *don't care* about this downside"

Yup. I got it now. You'd never stated such before, so I did not presume you'd entertained those ideas.

As I read it, absolute individual freedom outweighs the downside that SSM might undermine the very civilization that gave rise to individual freedom. Thus, the risk of barbarism (and resultant inequalities) is less than the supposed benefits of absolute equality.

Yes, I got it. I believe it's quite wrong, but entirely clear. Personally, I do care about the downside more than for foolish consistency.

Posted by: Pogo on April 5, 2005 03:25 PM

Having Congress deprive courts of jurisdiction is a plausible but unrealistic alternative because: 1)The American people aren't focused on questions of jurisdiction, but whether gay marriage should be allowed or not;

The American public is not you. That isn't a reason to support the FMA, that is an excuse and a dodge of the question.

2) Congress doesn't have the spine to exercise its constitutional right to deprive courts of jurisdiction, and the Democrats will probably filibuster the idea anyway;

"and the Democrats will probably filibuster the idea anyway" is another dodge of responsibility. Probably is conjecture unsupported by any evidence and should be independant of personal position. I personally feel drug laws aren't working and should be re-examined for effectiveness. That doesn't mean the American public or the congress agrees with me, nor does it mean it will happen. I am asking why YOU support the FMA, not why alternatives won't be supported

3) The courts don't care what the Constitution says, and they'll probably fight restrictions on their jurisdiction, setting up a worse constitutional crisis than we already have.

Prove it. That's a fear tactic, NOT a reason to support the FMA.

You haven't given one solid reason to support the FMA. You dodged, and you used fear tactics and rhetoric. I'm tired of the straw men. Why do YOU, personally and independantly, regardless of congressional opinion or judicial reaction, YOU, why do YOU support the FMA rather than the MPA to prevent judicial tyranny on the question of gay marriage? Its not that difficult a question and I think it deserves an honest answer.

Posted by: Kendall M. on April 5, 2005 03:36 PM

Well frankly I think you are all full of hot air. The United States is a democracy. All people have rights not just the few. Gay people should have the same rights as everyone else. BUT...with the divorce amongst the heterosexuals...you can keep the word marriage as far as I am concerned. The reason there is such a fight over this is due to religion. Those who would force their views off on others. The day will come....that's right you religious right moron...GAYS will marry.

Posted by: DAn on April 5, 2005 03:41 PM

Someone waaaaay up the thread wrote, regarding Jane Galt's essay:

"That was almost as good as Den Beste coming out of retirement".

Unhappily, the USS Clueless is in drydock due to a very bad health problem, and may not sail much again. This is a very sad thing, indeed. Those disposed to prayer might consider saying a word or two in his favor; the fact that he's an athiest ought not to deter.

However, my own assessment of Den Beste's position on SSM, and in fact on polyamory, leads me to conclude that he would never write the essay Jane Galt did. In fact, I believe he was rather sanguine about the adaptability of our legal system, not only with regard to SSM but also polymarriage.

Posted by: ellipsis on April 5, 2005 03:46 PM

DAn writes:
"Well frankly I think you are all full of hot air."

Isn't that what USENET and the WWW are all about?

"The United States is a democracy."

A common error, this. The United States originally was a Constitutional Republic. It still contains republican elements (please note the small "r"), but increasingly is becoming a kind of autocratic state ruled...not governed, mind you...by judges appointed for life, and thus essentially unaccountable to anyone when they force their views onto others.

Rule by judicial fiat is an undercurrent of the SSM debate.

Posted by: ellipsis on April 5, 2005 03:59 PM

Ellipsis - I agree with you completely. This should be an issue for the states to decide. Why do you favor the FMA as opposed to the MPA?

Posted by: Kendall M. on April 5, 2005 04:04 PM

You haven't given one solid reason to support the FMA. You dodged, and you used fear tactics and rhetoric. I'm tired of the straw men. Why do YOU, personally and independantly, regardless of congressional opinion or judicial reaction, YOU, why do YOU support the FMA rather than the MPA to prevent judicial tyranny on the question of gay marriage? Its not that difficult a question and I think it deserves an honest answer.

I only "support" the FMA for lack of a better alternative. As I'm already weary of explaining to you, FMA is not some iniquitously homophobic scheme to "enshrine bigotry" in the US Constitution---it's a reaction against unelected judges making new "rights" undemocratically. I've given you the reasons why I think it's the only realistic alternative at this time, absent gay marriage advocates pledging to abandon the courts for legislative enactments and ballot initiatives.

But I really shouldn't have to "justify" anything to you. You have the burden of making the case for gay marriage---the burden hasn't shifted just because some judges decided to create a "gay marriage right" out of sheer constitutional bombast about "imperatives of individual freedom and equality."

This entire thread has one topic: the policy pros and cons of gay marriage. Not whether "gay marriage" is a fundamental "right." Not whether people opposing "gay marriage" do so simply because they are hopeless bigots.

And, most signally, the theme of this thread has been that gay marriage advocates, having come up with a proposal that is unprecedented in human history, have the burden of showing to the satisfaction of a democratic majority that "gay marriage" is justified on policy grounds, or that there are no policy grounds to oppose it.

Your increasingly uncivil badgering about the FMA is simply another attempt, typical of gay marriage advocates, to shift the burden of persuasion away from gay marriage advocacy to opponents of gay marriage, even before proponents have made a persuasive case for it. Such attempts to throw opponents off-balance, and put them on a rhetorical treadmill of justifying their opposition to a concept that no one has sought to justify on policy grounds, are unacceptable and anti-democratic. As long as gay marriage advocates refuse to answer honestly opponents' policy objections to gay marriage, there is no obligation for opponents to justify their support for FMA.

Therefore, I will reluctantly "support" FMA for as long as gay marriage advocates seek to establish "gay marriage rights" in the courts in the absence of legislative enactment or ballot intiative, and not a moment past the end of such efforts.

Posted by: Iconoclast on April 5, 2005 04:06 PM

I'm not the most educated about current issues, but there is one pressing matter that your article fails to address. The issue of basic rights.

The entire premise of your article is essentially an observation of past events where a particular legislation was loosened, leading to a "slippery slope" of sorts, where each marginal case destigmatised (slight) the next marginal case. And I totally agree with you about that; it's an excellent point. Things can get more messy than we expect when a law is loosened, or the parameters of certain laws or expanded.

That is the gist of your article, I believe: allowing gay marriage could allow things to spin out of control eventually.


But we cannot approach this on a cost-benefit analysis idea. If the basic rights of the American people and the written rules of the American constitution allows within it gay marriage, then it must be so. If not the "benefits" that are gained from the current status quo of legalities, are merely gained from -suppressed- rights.

It is like a person earning extra money and benefits because of a loophole in the system. If repairing the system means the cutting of those benefits; then one must decide -- to leave the loophole unrepaired and continue gaining benefits, or to do what is right and lose those benefits. So if expanding marriage to gay couples is what's right, and could possibly entail the eroding of certain aspects of the social fabric, then so be it. Come what may -- we deal with problems then again.

Essentially this argument of mine will boil down into the Constituion and legalities, we'll contest about whether certain lines of the Constitution should be interpreted this way or the other, and whether they should be in continued effect in the spirit of America's democracy. But whatever; more forces are in play than mere legalities, and everyone's approaching the issue through different standpoints.

I apologise if I have been less than coherent, or eloquent. I'm not well-versed in legalities, or the details of the issue. My mere 2c.

Posted by: h3 on April 5, 2005 04:09 PM

But I really shouldn't have to "justify" anything to you. You have the burden of making the case for gay marriage---the burden hasn't shifted just because some judges decided to create a "gay marriage right" out of sheer constitutional bombast about "imperatives of individual freedom and equality."

Really? So constitutional ammendments should be passed because there is no "realistic" alternative without even attempting to use the MPA? I don't do doubt if this thread was about gay marriage as an institution I'd have to make a case for it, but it isn't. Its about unintended consequences of changing policy. That applies equally to both sides.

wThis entire thread has one topic: the policy pros and cons of gay marriage. Not whether "gay marriage" is a fundamental "right." Not whether people opposing "gay marriage" do so simply because they are hopeless bigots.

I never called you a bigot nor do I assert marriage is a fundamental right. I questioned the pros and cons of the current alternative you offer to gay marriage, the FMA as opposed to the MPA.


And, most signally, the theme of this thread has been that gay marriage advocates, having come up with a proposal that is unprecedented in human history, have the burden of showing to the satisfaction of a democratic majority that "gay marriage" is justified on policy grounds, or that there are no policy grounds to oppose it.

No, the thread clearly is about uintended consequences. Jane Galt even states in her essay that she has no position on gay marriage. I have one, that's true, as apparently do you. You've discussed the cons of gay marriage, as have many others. Why are you, and any supporter of the FMA unwilling to discuss better alternatives except to assert they "won't work"?

Posted by: Kendall M. on April 5, 2005 04:19 PM

Kendall M. wrote:
"Ellipsis - I agree with you completely. This should be an issue for the states to decide. Why do you favor the FMA as opposed to the MPA?"

I am quite skeptical that Kendall M. agrees with me completely on any topic. It is nice to see respect for Federalism, but at this late date of little use. 70-odd years of growth in the power and authority of Washington, DC at the expense of the states makes "state's rights" even more moot than in, say, 1865. The _Lawrence_ decision is a powerful precedent; Justice Kennedy's opinion is breathtaking in its scope, and SSM is hardly the only issue one could resolve with it...

"Leave this to the states", therefore, is an argument to allow SSM supporters to shop for a friendly Federal judge in a favorable Circuit and demand full recognition of Mass. SSM's under "Full Faith and Credit" from, oh, California or some other part of the 9th Circuit jurisdiction, and the rest should be an easy task...easier than _Roe_, quite possibly.

Such a decision would be followed by polygamists demanding their civil right to marry as they see fit, too. And what grounds did Kendall M. offer up to deny the polyamorous their civil rights, again? I must have missed that posting.

Posted by: ellipsis on April 5, 2005 04:27 PM

"Leave this to the states", therefore, is an argument to allow SSM supporters to shop for a friendly Federal judge in a favorable Circuit and demand full recognition of Mass. SSM's under "Full Faith and Credit" from, oh, California or some other part of the 9th Circuit jurisdiction, and the rest should be an easy task...easier than _Roe_, quite possibly.

Perhaps you do not understand what the MPA does? Congress has the power to remove from the courts the ability to hear cases regarding marriage. In other words, there would be no judicial shopping, no judicial involvement whatsoever. Quite simply, it would make it a state by state fight. If a state wishes to enact SSM surely it should be allowed to do so without the FMA permanently (pending a long repeal process) barring the way?

Posted by: Kendall M. on April 5, 2005 04:36 PM

Its about unintended consequences of changing policy. That applies equally to both sides.

Policy in general? Nonsense, you're being disingenuous. It's specifically about the wisdom of instituting gay marriage without making a policy case for it---didn't you read the title? Certain judges have held that there is a "right" to gay marriage *regardless* of any policy considerations. Plenty of posters here have stated that they *don't care* about the downside policy-wise of gay marriage, because "rights" always trump silly little things like cost-benefit analyses. Whatever its flaws, at least FMA allows the discussion on the policy pros and cons to go forward without being mooted by the enshrinement of "gay marriage" as some sacrosanct "fundamental right" beyond any democratic debate. If nothing else, it prevents the courts from establishing such a right before the people decide to do so. If "gay marriage" is as "inevitable" as its proponents claim, FMA can be repealed, just like the 18th Amendment was less than 15 years after enactment. I see far less harm from enacting FMA than I do in just letting the courts proceed to rule on "marriage rights," and I don't see Congress taking the bull by the horns on jurisdictional issues anytime soon: they did as much as they're going to do about the controversy when they passed DOMA nine years ago. At any rate, there's no reason why gay marriage opponents can't pursue both intiatives in tandem: if I'm wrong and Congress does pass jurisdictional limits on the courts, then the pressure to enact FMA might ease, and your problem'd be solved, wouldn't it?

Posted by: Iconoclast on April 5, 2005 04:40 PM

Pogo:

If you really believe that allowing SSM is going to cause the collapse of civilization, resulting in a Hobbesian barbarism which curtails civil liberties, then who exactly is being foolish here? Or did I miss the part where Swedish and Dutch civilization were collapsing before our eyes? We're talking about incremental effects here, not the life or death of civilizations.

Iconoclast: should interracial marriage bans have been held legitimate as long as they were approved democratically by the racist majority vote of a particular state? Was it illegitimate judicial activism when judges told the racist majority in Virginia that imperatives of freedom and equality dictated they allow whites and blacks to marry?

Posted by: Nicholas Weininger on April 5, 2005 04:47 PM

Plenty of posters here have stated that they *don't care* about the downside policy-wise of gay marriage, because "rights" always trump silly little things like cost-benefit analyses.

True, a lot of posters have said that. I haven't taken a position on it personally, but I think if there are problems they're definitely troubling.

Whatever its flaws, at least FMA allows the discussion on the policy pros and cons to go forward without being mooted by the enshrinement of "gay marriage" as some sacrosanct "fundamental right" beyond any democratic debate.

So... you condemn SSM advocates for saying they don't care about the problems with SSM, but then you say you don't care about the problems with the FMA? Isn't that a little hypocritical?

I see far less harm from enacting FMA than I do in just letting the courts proceed to rule on "marriage rights," and I don't see Congress taking the bull by the horns on jurisdictional issues anytime soon: they did as much as they're going to do about the controversy when they passed DOMA nine years ago.

If congress isn't going to do any more on the controversy how exactly do you expect the FMA to be enacted, and if you expect it to be through the congress why not start pushing the MPA as opposed to the FMA? You're being extremely disingenuous.

At any rate, there's no reason why gay marriage opponents can't pursue both intiatives in tandem: if I'm wrong and Congress does pass jurisdictional limits on the courts, then the pressure to enact FMA might ease, and your problem'd be solved, wouldn't it?

The question I asked is, would YOUR problem be solved? Would you still support the FMA if the MPA passed?

Posted by: Kendall M. on April 5, 2005 04:54 PM

Iconoclast: should interracial marriage bans have been held legitimate as long as they were approved democratically by the racist majority vote of a particular state? Was it illegitimate judicial activism when judges told the racist majority in Virginia that imperatives of freedom and equality dictated they allow whites and blacks to marry?

I've already answered that question, but what does that have to do with a "fundamental right" of gays to marry? You might be able to make the case that the states that ratified the 14th Amendment intended to do away with interracial marriage bans, but you can't make the case that the Civil War was fought so that "Heather" could have "two mommies."

Nor does such an argument establish that the people in a democratic republic such as ours have no say in determining whether or not gays should have the "right" to marry, or that the policy pros and cons of such an initiative are essentially irrelevant, because no objection based on policy can overcome the "imperative of individual freedom and equality" that a "right" to gay marriage establishes.

Posted by: Iconoclast on April 5, 2005 04:57 PM

you condemn SSM advocates for saying they don't care about the problems with SSM, but then you say you don't care about the problems with the FMA? Isn't that a little hypocritical?

You're starting to flat out misrepresent my position, and I don't appreciate your rudeness in bandying epithets about "hypocrisy" and so forth. I did not say I didn't care about the problems with FMA---if anything, I'm blue in the face from acknowledging that it's not an optimal alternative and that I support it only reluctantly. I didn't say I didn't support MPA---I said it was a "good idea"---I just don't think it stands the chance with Congress that FMA does. And as for ceasing support for FMA if MPA passes, ask me when that happens.

You've had all I'm going to say on the subject of FMA. Suffice it to say that you haven't changed my opinion on gay marriage, FMA, or the intellectual integrity of gay marriage proponents in the least. Good luck in your efforts with others.

Posted by: Iconoclast on April 5, 2005 05:09 PM

Kendall M. writes:

"Perhaps you do not understand what the MPA does?"

I was unaware that the MPA had been signed into law. When did this happen, please?

"Congress has the power to remove from the courts the ability to hear cases regarding marriage."

And when was that power exercised, again?

" In other words, there would be no judicial shopping, no judicial involvement whatsoever."

"Would be"? Oh, are we discussing what might happen if some pending legislation is passed, rather than the current situation? Dear me, I must have been confused.

"Quite simply, it would make it a state by state fight."

IF it is enacted into law, and survives court challenge...assuming that it actually would function as advertised, and could not be "end-run" via judicial activists...gee, isn't that rather a lot of "if's", starting with 'enacted into law', since that requires both houses of Congress to pass the legislation?

Sorry, I do not see any great support at this time for either the MPA or FMA, and thus must evaluate SSM court cases under the current conditions for the forseeable future. Therefore my comments regarding judge shopping as a means for imposing SSM by judicial fiat stand, as they are grounded in reality, not some hypothetical condition.

"If a state wishes to enact SSM surely it should be allowed to do so without the FMA permanently (pending a long repeal process) barring the way?"

This question strikes me as irrelevent, as I don't consider it likely the FMA will ever succeed in becoming part of the Constitution. It seems more likely to me that SSM will be imposed via some form of judicial fiat, followed by failed attempts at an FMA. That is what appears to be happening in Massachusetts, for example, and is pretty much what I recall happening in Vermont.

And again, imposition of SSM will be followed by lawsuits demanding extension of full civil rights to those who wish to practice polygamy and other group marriage forms.

Now, what was Kendall M.'s legal means for opposing polygamy, again? I still seem to have missed it. Where could it be?

Posted by: ellipsis on April 5, 2005 05:11 PM

You missed it because you disagree with it. The fact is I have stated polyamory does not fall under equal protection. You cannot under any law have a super spouse and a sub spouse. EQUAL protection means EQUAL under the law.

Posted by: Kendall M. on April 5, 2005 05:20 PM

Iconoclast: sorry I missed your initial response to the question-- in a thread this long things do get lost. If I'm reading your answer correctly, you think Loving was wrongly decided, and the racists in some states should have been allowed to keep their interracial marriage bans as long as they were in the majority. Which is flabbergasting, but consistent.

The point of my example was not about the 14th Amendment (though I wouldn't dismiss its applicability so quickly; original intent is not the only metric by which to judge the plain meaning of a constitutional provision, and "equal protection of the laws", as a matter of principle, has a quite simple and quite far-reaching plain meaning). The point was to try to get you to admit that there are individual rights, including rights involving marriage, which are not subject to majority approval or disapproval and which may legitimately be enforced by courts over the disapproval of majorities.

Maybe you think there really are no such rights, in which case we'll have to agree to disagree.

Posted by: Nicholas Weininger on April 5, 2005 05:33 PM

Kendall M. writes, regarding polygamy:
"You missed it because you disagree with it. The fact is I have stated polyamory does not fall under equal protection. You cannot under any law have a super spouse and a sub spouse. EQUAL protection means EQUAL under the law."

That's it? How disappointing. So when two lesbians desire to share equal rights with a man in order that they can have children, and those children can have a father, Kendall M. will oppose this with all his might and not one judge in the land will find for them, even under the sweeping precedent of _Lawrence_ in connection with some emanations of a penumbra or two?

It takes little exercise to envision an agreement in which all three participants are equally empowered with regard to decisions, subject to a majority vote if all three are present. There's the EQUAL RIGHTS desired by Kendall M., and in a package legalizing polygamy.

Got any _reality_ based arguments against polygamy?

Posted by: ellipsis on April 5, 2005 05:51 PM

Thank you for an interesting and well written perspective.

Where I think you may be missing a piece of the puzzle is in how you've framed the arguments around gay marriage. Essentially you have defined one camp as defending the institution of marriage in its traditional, hetero-sexual form. And the other camp as being, essentially, defensive in asserting that gay marriage won't hurt the institution of marriage.

But I wonder if there isn't a different angle... that gay marriage may in fact strengthen the institution.

"How?" you ask.

Well the beauty of the gay marriage proponents is that they want marriage - have set it as the most desirable status for two adult partners to attain. They seek to cement their union in legal and social terms. Committing themselves to their partnership (if not forever, at least for some period of time, hopefully forever).

So one POV is to restrict and confine marriage and thereby defend it. Take a siege mentality. Meanwhile the number of people who eschew marriage creeps up every year.

Or you can open it up, broaden its appeal and bring more people to the institution. Show that vows and responsibility are a reasonable thing to commit to and that marriage is something everyone can hope for and aspire to.

Is the marriage glass half empty or half full?

Posted by: Stuart Moulder on April 5, 2005 05:53 PM

Re: "Or did I miss the part where Swedish and Dutch civilization were collapsing before our eyes?"

Indeed you did. Even in the brief interval since the adoption of SSM there, marriages are remarkably fewer. And if it is true that the marriage is one of the central building blocks to civilization, they have done irreparable harm. The simplest comparison is to the communist societies of Cambodia or China, where the family was purposefully undermined or abolished. Barbarism became present within a few years there.

Of course, as in all such changes one can never conclusively prove this was caused by SSM, but that's only because one can never prove anything as a direct cause of societal shifts in a purely scientific way. But the effects are apparent to those willing to see. Proof will only be obvious after the fact, and I don't want that to occur on my watch, no matter what your absolutist and utopian desires.

In the end, SSM should be opposed because it doesn't appear to benefit society as a whole (and may cause harm instead), and should not be supported merely because it enhances the lives of a few.

Posted by: Pogo on April 5, 2005 06:03 PM

Pogo: oh, come on. Incremental decrease is not collapse, and comparing these countries to Cambodia and China is ludicrous. For one thing, state-sponsored mass murder just *might* have a much stronger tendency to produce barbarism than the undermining of marriage.

Indeed, while I disagree with plenty of Swedish and Dutch policies and think these societies have many real problems, their record on marriage tends if anything to support my case: it shows that marriage is not, in fact, anywhere near as important to the maintenance of civilization as you think it is.

Posted by: Nicholas Weininger on April 5, 2005 06:11 PM

Ithiliya writes:

--------------------------------------------------
Ellipsis:

Thank you for the invitation.
You said:
"Thus SSM supporters who oppose polygamy will at some point find themselves on the receiving end of ridicule and contempt from other supporters of SSM. How will they argue against their comrades? Will they stand on the Constitution, on tradition, on morality, on some other rock, or will they give up and endorse polyamory?"

While I don't entirely understand what the different beliefs between different supporters of SSM has to do with the legalization of SSM, I'll try and answer your question. How will they argue against their "comrades"? I believe an earlier poster put it very well... Legalization of SSM means that two people will enjoy the benefits that two heterosexual people can currently enjoy. Envolving more than two people in a relationship opens up a can of political worms that would defeat any attempt at legalization of polygamous (oops, sorry, polyamorous) marriages.
--------------------------------------

Essentially this says "polygamy will remain illegal because it is wrong". That is a prediction, not a reason for rejecting polygamy.
When someone claims that if you oppose polygamy, you are a hate-filled polyphobic bigot, how will you respond? With what REASONS will you support any opposition to polygamy? Bear in mind "it will cause a lot of legal issues" isn't any more of a reason for opposing polygamy than it was to oppose ending segregation.

--------------------------------------------
The very arguments brought forth earlier that would, at least in court or when put to a vote, kill a polyamorous marriage argument (IE: who makes the decisions on behalf of an ill or dead spouse, who pays child support in the event of a divorse, et cetera) do not apply to SSM, due to the very nature of these two "types" of marriages.
----------------------------------------------

Again, there is no justification here for opposing polyamory beyond "It would be hard to write the laws". What Constitutional justification is there for denying the civil right of marriage to two women and one man, please?


----------------------------------------------
SSM would be different from our current marriage system in only the fact that the two involved happen to be of the same sex and cannot on their own produce children.
-----------------------------------------------

True, but irrelevent to my question.

------------------------------------------------
(Please note that I have not yet made up my mind whether or not I believe polyamorous marriages should be legal.)
-------------------------------------------------

That is interesting.

Posted by: ellipsis on April 5, 2005 06:14 PM

Maybe you think there really are no such rights, in which case we'll have to agree to disagree.

You obviously didn't read my posts about Loving, because your comment betrays ignorance of them. The issue is not whether or not there are "no such things" as individual rights, but who gets to determine what such "individual rights" are. Some of these rights were explicitly written into the Constitution at the time of its enactment.

I don't support any ban on interracial marriage, but in the absence of a showing that the Fourteenth Amendment upon which Loving was based was intended to do away with such bans, I don't think there was a plausible constitutional basis for the Supreme Court to simply strike down such bans. The corollary to that opinion is that, a fortiori, the courts have no constitutional basis for discovering a 14th Amendment right to gay marriage.

And of course, there remain the issues whether such rights-based reasoning always renders democratic consent and policy considerations moot. I don't think they do---not in any event, when it comes to gay marriage.

Posted by: Iconoclast on April 5, 2005 06:19 PM

My reply got a little long so you can read and discuss it here. It goes after the underlying logic of your post rather than directly at the issues raised.
http://use.perl.org/~schwern/journal/24031

PS So you know, I did not read the other comments (I've already spent more time than I can afford on this) so I hope I didn't just repeat what others said.

Posted by: Michael G Schwern on April 5, 2005 06:27 PM

Exactly how would legalizing gay marriage aid the polygamist's argument for multiwife marriages? Tradition isn't a legal argument. Unusual isn't a legal argument. A devout Muslim wishing to marry multiple wives will have the exact same freedom of religion argument he has today, if gay marriage is legalized. The idea that gay marriage would somehow legitimize statutory rape and incest is either hysteria or a not so subtle attempt to compare gays to pediarests and also suggest that gays are more likely to engage in incest. Theres something very ugly about this whole slippery slope argument...

The more I read about gay marriage, the more obvious it becomes that government should stay out of the marriage business. There is no reason for the government to be involved in marriage except a few basic laws like age of consent. Government is tied to divorce because of the division of assets, let the various religions decide if they want to let gays marry. Things like insurance should cover the spouse without consideration to gender.

Posted by: So Fabulous on April 5, 2005 06:53 PM

Not sure where you're getting 3 million from, I think I've always said 300,000. With that said, I do think the census data is underreporting and is more important for showing trends than actual numbers.
Posted by: Kendall M. on April 5, 2005 01:39 PM

It came from the link in question, right near the bottom it said that some studies show 3 million children raised in same-sex households.

Posted by: liberty on April 5, 2005 07:20 PM

Iconoclast: some were written into the Constitution, not all. Even the Founders themselves recognized that there were individual rights that they hadn't enumerated; that's what the Ninth Amendment is about. Nor is a lack of showing of "intent" sufficient to detract from the plain meaning of a clause like "equal protection of the laws". The First Amendment, to give another example, almost certainly was not *intended* to protect much of what it protects today, but the principle it establishes is clear, intended or not.

Part of the reason why we have an independent judiciary, rather than just leaving everything up to the legislature, is that majorities are not very reliable protectors of individual rights. Activist judges are not half so damaging as activist mobs.

Posted by: Nicholas Weininger on April 5, 2005 07:28 PM

Theres something very ugly about this whole slippery slope argument...

So no one should make such an argument if you find it "ugly"? How about the examples plucked from actual history which Jane cited, e.g., the income tax amendment debates? Here's one I'll add, when Congress was debating the 1964 Civil Rights Act, one Senator expressed concern that the act could be read to require hiring on the basis of race. Senator Humphrey responded that he would eat the pages of the act if such a reading could be found. Forty years later, "affirmative action" is completely entrenched.

Of course "slippery slope" arguments about polyamory, incest, and statutory rape should be considered in the debate on gay marriage: what effective sanction do we have against marriage on the basis of each if the paradigm of heterosexual monogamy is breached? The fact that you like gay people but don't like polygamous Muslims, or pederastic retro-Mormons? Why grant gays the right to marry, but not the latter?

Sorry, but we can't do constitutional law based on "feelings" of "ugliness" or revulsion: if the basis for gay marriage is constitutional rights, there is no principled reason to deny marriage rights to polyamorists or between consanguinous family members, or to any gag-a-maggot-on-a-gut-bucket combo you can think of. (It doesn't really matter to you that some people find the whole idea of "gay marriage" to be "ugly," does it? If anything, such is proof of their "bigotry," correct?)

Posted by: Iconoclast on April 5, 2005 07:39 PM

Nor is a lack of showing of "intent" sufficient to detract from the plain meaning of a clause like "equal protection of the laws".

"Plain meaning"? That convenient phrase is not a warrant to expand the meaning of the expression to cases where the drafters and the ratifying states did not intend it to have application. Nor is the Ninth Amendment a basis for creation of new rights by an unelected judiciary. Allowing a court to infinitely expand such language is at best an unconstitutional amendment---at worst, it renders the Constitution a mere plaything of judges rather than a foundational document.

Whatever the rationale or result of the Loving case, it is at least plausible that its basis---the 14th Amendment---was intended to afford individuals the ability to marry across racial lines. No such intent can be teased out of it to allow same sex marriage, and Loving is not legitimate precedent for a "right" to same sex marriage.

But if that's really your opinion, then I guess I have yet another plausible reason to support FMA.

Posted by: Iconoclast on April 5, 2005 07:58 PM

That's it? How disappointing. So when two lesbians desire to share equal rights with a man in order that they can have children, and those children can have a father, Kendall M. will oppose this with all his might and not one judge in the land will find for them, even under the sweeping precedent of _Lawrence_ in connection with some emanations of a penumbra or two?

Not at all, or at least, not in full. The law provides opportunities for surrogate parents or donor eggs. That's not polygamy however, and that is not a marriage. Surrogacy involves one or 2 people contracting another person in one of the following ways. In case of a single female or lesbian couple a sperm bank or similar method is used where the woman/women pay for frozen sperm to inseminate themselves.

In the case of donor eggs that method is more common in women who are infertile although it can be used with a surrogate mother for a gay couple. The donor either has her eggs removed, fertilized and planted in a normally infertile woman (note that it applies equally to a heterosexual or homosexual woman/couple) and a baby is taken to full term and birthed by the new mother.

Gay men or women who don't want to go through child birth also can in rarer (because of the expense involved, I've heard its at least $20-30 thousand because you're paying for all the extra food and medical costs, but I wouldn't be surprised if that was low balling it or over estimating the costs). In such cases a woman is paid to take a fertilized egg, either her own or another woman's that is implanted in her to full term. In such cases the surrogate mother usually (it might be in every case, I must admit I am not particularly well versed in details so I'm simply opening the possibility therew wouldn't always be a conract) signs a contract agreeing that the baby belongs to the person or persons who hired them.

At no point is any of the participants married and nor should they be. At no point does a legal conflict need arise.

That isn't to say some conflicts haven't arisen. I am reasonably sure I read of at least one case where a surrogate mother wanted visitation rights to "her" child and I believe the courts DID side with her. I'm not aware of the particulars of that case so I would hesitate to comment. However, I do know that no lesbian couple has ever been required to marry a biological father to have a child. In fact, if anything, lesbians have an easier time having biological children than gay men do. Lesbians can go to a sperm bank with (relative) ease and acquire what they need to have a child.


It takes little exercise to envision an agreement in which all three participants are equally empowered with regard to decisions, subject to a majority vote if all three are present. There's the EQUAL RIGHTS desired by Kendall M., and in a package legalizing polygamy.

Your idea of "majority rule" in spouse making decisions is novel, but does it pass the constitutional test? I highly doubt it. Apart from that, I think its pretty clear that a gay couple isn't required to marry a third person to have a child. I hope I explained that reasonably well.

Posted by: Kendall M. on April 5, 2005 09:10 PM

So Fabulous wrote:
"Exactly how would legalizing gay marriage aid the polygamist's argument for multiwife marriages?"

By establishing the precedent that marriage is no longer a foundational concept of one-man-and-one-woman, but whatever a majority of judges in any given court on any given day say it is, or that marriage is whatever a majority of legislators present for a quorum say it is.

Once again, if "one man and one woman" is arbitrary and capricious, then so is "one and one".

So Fabulous goes on:
" Tradition isn't a legal argument. Unusual isn't a legal argument."

Exactly.

So Fabulous continues:
" A devout Muslim wishing to marry multiple wives will have the exact same freedom of religion argument he has today, if gay marriage is legalized."

No, this is not correct. At this time, at the Federal level, marriage is strictly defined. Once we accept the precedent that the Congress or any legislature can revise the definition of marriage at will, there is no reason for the devout Moslem not to lobby and/or litigate to get his preference added to the list. In fact, there are good reasons why he will want his preference added ASAP...

So Fabulous continues:
"The idea that gay marriage would somehow legitimize statutory rape and incest is either hysteria or a not so subtle attempt to compare gays to pediarests and also suggest that gays are more likely to engage in incest."

I'm sure it seems that way to many supporters of SSM. However, once the precedent is established that the definition of marriage is fluid and can change from year to year, or even month to month, there are all manner of subgroups who may well want their own preferences read into the law.

That is one of the points Jane Galt was attempting to make: that the unintended consequences of SSM should be contemplated with more care, since it will be all but impossible to undo any damage.

So Fabulous continues:
" Theres something very ugly about this whole slippery slope argument..."

I know people who find something very ugly about the whole idea of SSM, too. Does that automatically mean their opinions can be discounted as "hate"?

So Fabulous continues:
"The more I read about gay marriage, the more obvious it becomes that government should stay out of the marriage business. There is no reason for the government to be involved in marriage except a few basic laws like age of consent."

That may or may not be true, but it isn't likely to be changed any time in this century, so it is a moot question.

So Fabulous concludes:
"Government is tied to divorce because of the division of assets, let the various religions decide if they want to let gays marry. Things like insurance should cover the spouse without consideration to gender."

Government is tied to divorce and marriage because any society has an interest in self preservation, and absent a high enough birth rate, any society will cease to exist. The Europeans and Japanese are currently carrying out an experiment along these lines.

In any event, in the United States government will be involved in marriage for the rest of this century, I predict with some confidence.

Posted by: ellipsis on April 5, 2005 09:38 PM

Iconoclast, you ignored my argument previous to your clipped quote of mine. The ugliness was in addition to my arguments.

Im glad there's a "paradeigm" of heterosexual monogomy, because its not that common. About 40% of married Americans cheat or have cheated on their spouse. In any case, the "sanction" on statutory rape will remain the law. The same with Bygamy. I don't see how gay marriage would open the door to any of these arguments.

Are you really making the argument that if gay marriage is accepted into law, that removes any principled reason from not having sex with a child or a close relative?

Posted by: So Fabulous on April 5, 2005 09:51 PM

I wrote:
"That's it? How disappointing. So when two lesbians desire to share equal rights with a man in order that they can have children, and those children can have a father, Kendall M. will oppose this with all his might and not one judge in the land will find for them, even under the sweeping precedent of _Lawrence_ in connection with some emanations of a penumbra or two?"

Kendall M. replied:
"Not at all, or at least, not in full. The law provides opportunities for surrogate parents or donor eggs."

Surrogate mothers are irrelevent to my example, as are sperm banks. My hypothetical was a trio; two women and one man who marry. It could be two lesbians, although bisexual women would be more likely. It could be two poor women and one poor man, who seek to combine incomes. It could be any of several combinations. The question is, upon what basis does Kendall M. deny the basic civil right of marriage to three consenting adults who agree to share all things in common and give each other equal rights in the arrangement.

That is the question, not the details of surrogacy.

I wrote:
"It takes little exercise to envision an agreement in which all three participants are equally empowered with regard to decisions, subject to a majority vote if all three are present. There's the EQUAL RIGHTS desired by Kendall M., and in a package legalizing polygamy."

Kendall M replied:
"Your idea of "majority rule" in spouse making decisions is novel, but does it pass the constitutional test? I highly doubt it. "

50 years ago the idea of gay adoption would not have passed a Constitutional test, 30 years ago the idea of sodomy as a Constitutional right would have been laughed out of court, 20 years ago the idea of SSM would never have been found in the Constitution. The living, breathing, constantly mutating wonder that is the modern Constitution is an interesting thing to behold. I am not at all certain that such an agreement would be found wanting by some current courts of law or a future Supreme Court, say, one headed by Chief Justice Anthony Kennedy.

But I stand in awe of the ability of Kendall M. and other SSM supporters to know -- not guess, not speculate, but KNOW -- what the future holds in the arena of Supreme Court jurisprudence. It is a marvel to behold, I only wish I could understand how it works.

Kendall M. concluded:
"Apart from that, I think its pretty clear that a gay couple isn't required to marry a third person to have a child. I hope I explained that reasonably well."

It is irrelevent to the issue at hand.

One more time: How would Kendall M. stand up and say "Polygamy is wrong because ......"? Don't tell me "Math is hard, Barbie", the law can be rewritten any way it needs to be. Don't tell me "we've never done it that way", that's irrelevent. Don't tell me "My religion doesn't work that way", that doesn't matter. Don't say "that's ikky", personal phobias are irrelevent.

Give me a reason, beyond mere bureaucratic hair splitting, why Kendall M. opposes polygamy, that would stand up in court.

Thanks, in advance.

Posted by: ellipsis on April 5, 2005 09:53 PM


HOW SSM COULD BE USED AGAINST CERTAIN CHURCHES/DENOMINATIONS.

I very much doubt that anyone would want to take on the Roman Catholic church in this manner, at least initially. Rather I would expect that some of the smaller Protestant groups that are culturally and religiously conservative would be the targets. The ACLU could easily send out photogenic couples to request use of the church building for a wedding *and* that the minister officiate. When refused, the couple could then sue in both State and Federal courts for huge damages and, under a friendly administration, the Feds might even bring a criminal civil rights violation action against the church in question. Since it costs $50,000 or more just to set foot in a Federal courtroom as a defendent in such a case, a church would face either certain bankruptcy upon any appeal at all (the ACLU's pockets are much deeper, and it has more pro bono lawyers) or an out-of-court settlement plus a wedding.

Some churches would choose to go bankrupt. Some would cave in. I would expect the initial targets to be those Protestant groups that are evangelical, have mostly blue-collar membership and that are not affiliated with any formal denomination. After a few public show-trials of this kind, a request of an SSM would be a hard thing for most of the poorer churches to turn down. The Spanish-language Protestant churches would soon get the message, but would not be included in the initial target list because going after poor people who are mainly Spanish speaking might lead to cognitive dissonance on the part of the millionaires/billionaires who bankroll the ACLU.

Rich denominations such as the Presbyterian Church USA, the Episcopalians, etc. either already are performing SSM's or will go along gladly.

Does this seem cynical to anyone? It seems realistic to me, based upon years of observing social-justice lawsuits, environmental lawsuits, anti-gun lawsuits, anti-tobacco lawsuits, etc.

Oh, and one more thing: some ministers would willingly go to jail before performing an SSM. While in jail they would preach against homosexuality, too. They could be killed, but not silenced.

Would closing churches, and/or putting people in jail, for refusing to go along with SSM, be possibly a negative result?

Posted by: ellipsis on April 5, 2005 10:10 PM

ellipsis that was a very long, very personal way of stating your opinion IS THAT SOCIETY WILL FALL APART AT THE SEEMS IF GAYS CAN GET MARRIED. You hold the "foundational concept of one man and one woman" to be so very important, despite the fact that marriages end in divorce over sixty percent of the time. If the bonds of marriage are so vital to our society how have we survived and prospered with such a high divorce rate? Allowing gays to marry won't make the definition of marriage fluid. It's a one time change for the benefit of a group that isn't trying to exploit a minor or start a male harem, a group that far outnumbers short eyes and potential polygamists.

I find the whole gay marriage will lead to more child screwing and polygamy the funniest thing I read over and over here. Gay marriage won't change the number of people allowed to be married to each other, and it won't change the age of consent. The idea that the legal precedent set by allowing gays to marry will open the door to legalized predation and bygamy is full blown hysteria.

Btw, your last point on preservation of society, are you really saying that if marriage were abolished people would quit making babies? I don't know of any European or Japanese parent test. And I know the government will stay involved with marriage, I just dont think they should be this much.

Posted by: So Fabulous on April 5, 2005 10:21 PM

Polygamy is wrong because it creates potential situations where equal spouses (remember, every individual spouse according to the US constitution has an equal say. Women are equal to men under the law. That's why the ERA was unnecessary and extreme and unecessary constitutional tinkering) would be put in a position where they would not have equal power. You've said they wouldn't be married to each other, they're multiple women married to one man (or men married to one woman but women to a man is the more common form of polyamory) and this is so. They aren't married to each other but in the eyes of the law every marriage is co equal. Lets say a 2 80 year olds marry each other. Its their first marriage. Then lets say 2 people who had married at 20 are still married at 80. In the eyes of the law there is ZERO distinction or benefit for that. You spoke of how "seniority" of marriage is the way other cultures solve some of the inequalities of polygamy. Other cultures are not the United States. The United States has the equal protection clause, also known as section 1 of the 14 ammendment. It reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In other words, your suggestions of seniority or "super" marriages simply doesn't work under the law. It would necessitate making marriages succesive to the "senior" marriage worth less than the first one. That decreasing value would be inherently unconstitutional by definition.

Its also why, if the courts MUST decide the issue (for the record, remember I favor congressionally stripping from the courts the power to review marriage cases) the courts are more likely to find in favor of gay marriage using the same logic the Supreme Court used in Loving v. Virginia. I know you don't LIKE the precedent or the logic used in that case, but nontheless its a precedent which is perfectly valid. The court in Loving held that a man's ability to marry only into his own race and not into another race and a woman's ability to marry only into her own race and not into another race was unconstitutional. It wasn't constitutional because a black man should be able to marry a white woman or a white man a black woman or a black woman a white man or a white woman a black man.

The logic courts can use for same sex couples then would be that a man should be able to marry a woman or have the same rights a woman has to marry a man. And similarly, a woman should be able to marry a man or have the same rights to marry a woman. There is an equal relationship there because there is no difference in terms of equality when you're dealing with couples as opposed to polygamous situations.

Posted by: Kendall M. on April 5, 2005 10:35 PM

Are you really making the argument that if gay marriage is accepted into law, that removes any principled reason from not having sex with a child or a close relative?

Sure am. What's the reason for incest prohibitions---the Bible, right? That's no more reason to retain prohibitions on consanguinous marriages than the Bible's condemnation of homosexuality should prevent gay marriage! Dysgenic inbreeding? Not all incestuous couples will want kids, any more than all present couples do, and with the availability of amniocentesis, ultrasound, and abortion, why are you worried about dysgenics? Doesn't such a concern with eugenics have a "Nazi flavor" to it?

As for "sex with a child," define "child." Some "children" are sexually mature at 11 or 12---why can't they have the emotional maturity to fall in love, have sex, raise children, get married?

Or how about my example of a homosexual, non-biological "dad" and spouse in a gay marriage falling in love with his "son," who we'll make a minor but above the age of consent: What's your "hang up"? Sure, technically, it's "incest," but only technically---no danger at all of dysgenic inbreeding, and why should the parental relationship be a barrier to a sexual relationship if both "parent" and "child" can "handle it"? Because of what some "patriarchal religion" says? Gotta do better than that, because if you don't, you don't have a leg to stand on legally, morally, or constitutionally if polyamorous or incestuous couples accuse you of discrimination, and violation of their constitutional rights.

Posted by: Iconoclast on April 5, 2005 10:43 PM

Ellipsis - Your speculation "HOW SSM COULD BE USED AGAINST CERTAIN CHURCHES/DENOMINATIONS." Is the same logic that was used against interracial marriages. It simply isn't happening. No church is being forced to perform a marriage because, quite simply, there is no point.

A marriage is two things. Civil marriage is marriage recognized by the government. Civil marriage involves the acquisition of a license. At the point a license is acquired a person is married in the eyes of the state and government interest in marriage ENDS completely and totally.

What you are talking about is a spiritual marriage, and by implication a WEDDING. A wedding is a marriage CEREMONY. Such ceremonies are performed by justices of the peace, judges, at sea ship captains have the power, and of course religions and religious institutions. But you know what? The government isn't involved there in any way. The government has no power to dictate who or WHAT is married in a spiritual marriage ceremony. For all the government cares a man can drag his pet poodle down the aisle and marry THAT. It would have no legal standing of course, and any attempt to consumate a union of that sort would be cruelty to animals, but the government DOESN'T CARE what goes on in a church.

I'm curious what real effect a church based marriage has in the legal system.

Posted by: Kendall M. on April 5, 2005 10:48 PM

Sure am. What's the reason for incest prohibitions---the Bible, right? That's no more reason to retain prohibitions on consanguinous marriages than the Bible's condemnation of homosexuality should prevent gay marriage! Dysgenic inbreeding? Not all incestuous couples will want kids, any more than all present couples do, and with the availability of amniocentesis, ultrasound, and abortion, why are you worried about dysgenics? Doesn't such a concern with eugenics have a "Nazi flavor" to it?

The problem with the same argument is the same problem that has always existed. You're right, not "everyone" will want kids, and in your homosexual non biological dad example of course sexual reproduction is impossible. But that isn't the issue is it?

Of course we should ban couples from reproducing in an incestuous relationship, although it is not a complete certain as far as I know, the odds of genetic issues are multiplied many times. Its simply not safe to have a child as a byproduct of incestuous relations.

Why then not allow non reproducing and or homosexual incest? Equal protection. If you ban one form of incest you must ban all forms of incest, otherwise you're violating the rights of heterosexual incestuous couples who can reproduce and who would like to do so.

Posted by: Kendall M. on April 5, 2005 10:55 PM

So Fabulous wrote:
"ellipsis that was a very long, very personal way of stating your opinion IS THAT SOCIETY WILL FALL APART AT THE SEEMS IF GAYS CAN GET MARRIED."

Ah, now the mind reading starts. Ok, I'll play along: I'm holding up a card in my hand. What is it?

"You hold the "foundational concept of one man and one woman" to be so very important, despite the fact that marriages end in divorce over sixty percent of the time."

Do I? That's nice. Tell me more of what I believe; what's my favorite color, for example?

" If the bonds of marriage are so vital to our society how have we survived and prospered with such a high divorce rate?"

Please re-read the essay written by Jane Galt at the top of this thread on the damage wrought by unilateral divorce. I would say that the West is getting along in spite of the damage done by unilateral divorce, rather than because of it.

"Allowing gays to marry won't make the definition of marriage fluid."

I'm sorry, this statement is false. The definition of marriage as "one and one" is already being challenged in court, out in Utah, and _Lawrence_ (the USSC case cited in _Goodridge_) is the bedrock of the suit in question.

"It's a one time change"

No, it will not be a one time change. The polygamy supporters are clear on that.

"for the benefit of a group that isn't trying to exploit a minor or start a male harem, a group that far outnumbers short eyes and potential polygamists."

No one knows how many potential polygamists there are in the United States, because until recently the issue of the legal status of polygamy was settled. Now it is being challenged...and the only way we will find how many potential polygamists there are is if it is legalized.

No one knows how many people wish to marry underage persons, but if and when the definition of marriage is allowed to be changed by judicial fiat or a simple legislative majority, we may find that out as well.

"I find the whole gay marriage will lead to more child screwing and polygamy the funniest thing I read over and over here."

That's nice. I wonder if the bois at NAMBLA are laughing, or taking notes?

"Gay marriage won't change the number of people allowed to be married to each other, and it won't change the age of consent."

This ability to flatly predict the future is simply amazing. How does it work, precisely? Ouija board? Tarot cards? I ching? Tea leaves? I really do want to know...

"The idea that the legal precedent set by allowing gays to marry will open the door to legalized predation and bygamy is full blown hysteria."

In other words, only crazy people and bigots oppose SSM, right?

Thanks for making Jane Galt's point for her all over again.


"Btw, your last point on preservation of society, are you really saying that if marriage were abolished people would quit making babies?"

No.

"I don't know of any European or Japanese parent test. And I know the government will stay involved with marriage, I just dont think they should be this much."

That's nice. So what?

Posted by: ellipsis on April 5, 2005 11:06 PM

Polygamy is wrong because it creates potential situations where equal spouses (remember, every individual spouse according to the US constitution has an equal say.

Your argument doesn't make an iota of sense. I know of no constitutional case interpreting the 14th Amendment to require that each spouse have "an equal say" in the marital relationship. Regulation of rights within the marital relationship has always been a state function and if necessary, the law can prescribe how to effect "equality" among the spouses--even plural spouses---given discrete scenarios. There's section after section of such "equalizing" provisions in contemporary family law, e.g., community property laws. Your contrived objection is not a fatal barrier to polyamorous marriages.

ts also why, if the courts MUST decide the issue (for the record, remember I favor congressionally stripping from the courts the power to review marriage cases) the courts are more likely to find in favor of gay marriage using the same logic the Supreme Court used in Loving v. Virginia.

Naaah....Loving didn't deal with "gay marriage," remember? Therefore it had "no need" to address the issue of "marriage rights" for gays. But if you insist Loving's reasoning is relevant to this discussion, maybe you're ready to discuss why the reasoning of the Lawrence and Gooding cases allow "gay marriage," but not polyamorous marriage. But I doubt it.

Posted by: Iconoclast on April 5, 2005 11:08 PM

So Fabulous wrote:
"ellipsis that was a very long, very personal way of stating your opinion IS THAT SOCIETY WILL FALL APART AT THE SEEMS IF GAYS CAN GET MARRIED."

Ah, now the mind reading starts. Ok, I'll play along: I'm holding up a card in my hand. What is it?

"You hold the "foundational concept of one man and one woman" to be so very important, despite the fact that marriages end in divorce over sixty percent of the time."

Do I? That's nice. Tell me more of what I believe; what's my favorite color, for example? Do I like show tunes, big band, or jazz?

"If the bonds of marriage are so vital to our society how have we survived and prospered with such a high divorce rate?"

Please re-read the essay written by Jane Galt at the top of this thread on the damage wrought by unilateral divorce. I would say that the West is getting along in spite of the damage done by unilateral divorce, rather than because of it.
People did predict bad results from unilateral divorce, but they were vilified and shouted down, rather as those who object to SSM are now. Yet they were right, and the "progressives" were wrong. There is no practical way to undo the damage done at this date, either...

That's kind of what Jane Galt's point is; perhaps re-reading the article with an open mind is in order?

"Allowing gays to marry won't make the definition of marriage fluid."

I'm sorry, this statement is false. The definition of marriage as "one and one" is already being challenged in court, out in Utah, and _Lawrence_ (the USSC case cited in _Goodridge_) is the bedrock of the suit in question. Thus the definition of marriage is already in question, and thus has become more fluid. Imposing SSM via judicial fiat will not make the definition of marriage more settled, because other groups will see the success of gay activism in the courts and set about to have their own definition of marriage imposed in the same way.

Why is this so difficult to understand?

"It's a one time change"

No, it will not be a one time change. The polygamy supporters are clear on that.

"for the benefit of a group that isn't trying to exploit a minor or start a male harem, a group that far outnumbers short eyes and potential polygamists."

No one knows how many potential polygamists there are in the United States, because until recently the issue of the legal status of polygamy was settled. Now it is being challenged...and the only way we will find how many potential polygamists there are is if it is legalized.

No one knows how many people wish to marry underage persons, but if and when the definition of marriage is allowed to be changed by judicial fiat or a simple legislative majority, we may find that out as well.

"I find the whole gay marriage will lead to more child screwing and polygamy the funniest thing I read over and over here."

That's nice...I wonder if the bois at NAMBLA are laughing along, too?

"Gay marriage won't change the number of people allowed to be married to each other, and it won't change the age of consent."

This ability to flatly predict the future is simply amazing. How does it work, precisely? Ouija board? Tarot cards? I ching? Tea leaves? I really do want to know...

"The idea that the legal precedent set by allowing gays to marry will open the door to legalized predation and bygamy is full blown hysteria."

In other words, only crazy people and hate-filled bigots oppose SSM, right?

Thanks for making Jane Galt's point for her all over again, and in such a concise way, too.

"Btw, your last point on preservation of society, are you really saying that if marriage were abolished people would quit making babies?"

No.

"I don't know of any European or Japanese parent test. And I know the government will stay involved with marriage, I just dont think they should be this much."

That's nice. So what?

Posted by: ellipsis on April 5, 2005 11:11 PM

Equal protection. If you ban one form of incest you must ban all forms of incest, otherwise you're violating the rights of heterosexual incestuous couples who can reproduce and who would like to do so.

Yeah, and if you allow one form of marriage, you must allow all forms of marriage between individuals capable of giving rational consent, otherwise you're violating the rights of polyamorous couples, etc.

Your other objections don't impress me: as I said, non-consanguinous couples can choose to have children that are defective, or they can abort them. The state has no right to ban a marriage between non-consanguinous Tay-Sachs carriers--why should it prohibit marriage between a mother and her son based on the increased possibility of birth defects? Besides, what if she signs, voluntarily or as a state requirement for a marriage license, a pledge to take contraception, or to abort if she conceives? You haven't raised any objection to incestuous or "child" marriages that can't be overcome, particularly if you can't distinguish why gays should have a "right" to marry whereas other "alternative orientations" don't. So you fall back on arguing for gay marriage based on rights, without making any policy arguments for it, while you raise all sorts of contrived "policy" objections to polygamy and other forms, while strictly avoiding any discussion of "marriage rights." And you called me a "hypocrite."

Posted by: Iconoclast on April 5, 2005 11:24 PM

Kendall M. wrote:
"Polygamy is wrong because it creates potential situations where equal spouses (remember, every individual spouse according to the US constitution has an equal say. Women are equal to men under the law. That's why the ERA was unnecessary and extreme and unecessary constitutional tinkering) would be put in a position where they would not have equal power."

Not if all three or more agree to have equal authority. Again, it would be trivial to write up such an agreement.

" You've said they wouldn't be married to each other, they're multiple women married to one man (or men married to one woman but women to a man is the more common form of polyamory) and this is so. "

Really? Please show me where I made such a statement. Perhaps you have confused me with someone else?

But let's run with this: if two women can marry each other, why can't three women marry each other? How can you cruelly stand in the way of their marital happiness and civil rights just because you have a narrowminded fixation on the number "two"?

"They aren't married to each other but in the eyes of the law every marriage is co equal. Lets say a 2 80 year olds marry each other. Its their first marriage. Then lets say 2 people who had married at 20 are still married at 80. In the eyes of the law there is ZERO distinction or benefit for that. "

Why is this relevent?

"You spoke of how "seniority" of marriage is the way other cultures solve some of the inequalities of polygamy."

No, that was someone else, not me. It is a true statement, but I did not write it. In any event, it is not relevent to the issue of 3 or more consenting adults agreeing to be equals in all ways, now is it?

" Other cultures are not the United States. The United States has the equal protection clause, also known as section 1 of the 14 ammendment. It reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Thanks for pointing that out. I'd never read the 14th Amendment in my entire life. Really...

"In other words, your suggestions of seniority or "super" marriages simply doesn't work under the law. It would necessitate making marriages succesive to the "senior" marriage worth less than the first one. That decreasing value would be inherently unconstitutional by definition."

That's not my suggestion. Nice strawman, though.

"Its also why, if the courts MUST decide the issue (for the record, remember I favor congressionally stripping from the courts the power to review marriage cases) the courts are more likely to find in favor of gay marriage using the same logic the Supreme Court used in Loving v. Virginia. I know you don't LIKE the precedent or the logic used in that case, but nontheless its a precedent which is perfectly valid."

How does Kendall M. know what I do or do not like? How does he know what my opinion of _Loving_ is, given that I've not written one word in this thread about it?

"The court in Loving held that a man's ability to marry only into his own race and not into another race and a woman's ability to marry only into her own race and not into another race was unconstitutional. It wasn't constitutional because a black man should be able to marry a white woman or a white man a black woman or a black woman a white man or a white woman a black man."

Is that the sum total of _Loving_, or a paraphrase?

"The logic courts can use for same sex couples then would be that a man should be able to marry a woman or have the same rights a woman has to marry a man. And similarly, a woman should be able to marry a man or have the same rights to marry a woman."

And similarly, a woman should have the right to marry a woman and another woman as well. Once we decide that "man and woman" is merely an arbitrary distinction born of ignorance and prejudice, why can we not further broaden the civil right of marriage to embrace diversity to its fullest, please?

" There is an equal relationship there because there is no difference in terms of equality when you're dealing with couples as opposed to polygamous situations."

Ok, so two couples agree to marry each other. There's equality and 4 people married each to all the others. What's to object to in that, if it makes consenting adults happy?

Posted by: ellipsis on April 5, 2005 11:26 PM

Kendall M. wrote:
"Ellipsis - Your speculation "HOW SSM COULD BE USED AGAINST CERTAIN CHURCHES/DENOMINATIONS." Is the same logic that was used against interracial marriages."

Possibly so, possibly not. Which logical fallacy is displayed above? Will I be called a Nazi next, I wonder?

" It simply isn't happening. No church is being forced to perform a marriage because, quite simply, there is no point."

Did I write in the present tense, or the future tense?

"A marriage is two things. Civil marriage is marriage recognized by the government. Civil marriage involves the acquisition of a license. At the point a license is acquired a person is married in the eyes of the state and government interest in marriage ENDS completely and totally."

Oh, come on, that's rubbish. The state has no interest in marriage at all once the license is issued? Really?

"What you are talking about is a spiritual marriage, and by implication a WEDDING. A wedding is a marriage CEREMONY. Such ceremonies are performed by justices of the peace, judges, at sea ship captains have the power, and of course religions and religious institutions. But you know what? The government isn't involved there in any way. The government has no power to dictate who or WHAT is married in a spiritual marriage ceremony. For all the government cares a man can drag his pet poodle down the aisle and marry THAT. It would have no legal standing of course, and any attempt to consumate a union of that sort would be cruelty to animals, but the government DOESN'T CARE what goes on in a church."

How does this address my speculation on how SSM could be used, or perhaps misused is a better word, to attack certain churches and/or denominations?

It isn't 1965, and hasn't been for a while. Back then the only people who wanted to shut down churches were cranks. Today powerful organizations actively seek to drive certain religious groups out of the public square.

Back prior to Stonewall, all that gay activists asked for was to be left alone. After Stonewall, they asked for tolerance. Lately tolerance is not enough; anything less than full-throated approval of anything and everything gay is deemed to be "homophobic" by at least some activist or other.

It is certain that some ministers in some churches will refuse to perform SSM, and while that won't enrage the average gay man or woman, it will very likely be a red flag in front of "Queer Nation", ACT-UP or other, similar, radical groups. Ask the Roman Catholics who were in St. Patrick's of New York City in the year 1989 when ACT-UP invaded during services if my scenario is impossible...

Posted by: ellipsis on April 5, 2005 11:42 PM

Iconoclast - You're partially right. I cannot find a case giving spouses an equal say. I can however find this
which deals with the fact that women are considered equal to men in all ways. I realize fully that this doesn't specifically adress the issue but it is not unreasonable to suppose since every person is equal that makes spouses by definition equal to one another.

That was a decent shot about Loving not addressing gay marriage, I admit that it is the case. Note I did not say the logic was the same. I said it was the basis for the logic supporting gay marriage just as it was the basis for the logic opposing polygamy.

Posted by: Kendall M. on April 5, 2005 11:42 PM

whoops, that link didn't work. Let me repost it. This is the link I posted

Posted by: Kendall M. on April 5, 2005 11:45 PM

Iconoclast - You're partially right. I cannot find a case giving spouses an equal say. I can however find this
which deals with the fact that women are considered equal to men in all ways. I realize fully that this doesn't specifically adress the issue but it is not unreasonable to suppose since every person is equal that makes spouses by definition equal to one another.

"Partially" right? What's partially right about my correction of your misstatement? "Not unreasonable to suppose since every person is equal that makes spouses by definition equal to one another"? Of course it was unreasonable! You who lambaste me about FMA and its unwarranted attempt to intrude in marriage relations now have the audacity to claim its "not unreasonable to suppose" that the marriage relationship has already been Federalized for nearly 150 years via the 14th Amendment? Don't look now, but all your policy objections against polyamorous and other non-traditional marriages have just fallen flat.

That was a decent shot about Loving not addressing gay marriage, I admit that it is the case. Note I did not say the logic was the same. I said it was the basis for the logic supporting gay marriage just as it was the basis for the logic opposing polygamy.

How is it the basis for "the logic opposing polygamy"? Loving didn't deal with more than two partners, but it didn't deal with people of the same sex either. If race and sexual orientation aren't categories on the basis of which it's permissible to discriminate in marriage law, why should it be permissible to discriminate on the basis of number of spouses in one marital relationship?

Posted by: Iconoclast on April 6, 2005 12:00 AM

Ellipsis - I appologize. I confused you with Iconoclast and I had a similar debate with him a little earlier in the thread. You might want to refer to my example of a polygamous marriage where two women marry one man. In the event the man enters a coma and the wives must decide whether to pull the plug or continue treatment (to put it crudely I know) if there is a disagreement between the wives with one favoring waiting and the other favoring pulling the plug which wife has the right to decide? That would be the question polygamy advocates would have to answer.

In regards to your second post in reply to me, on my challenge of your "HOW SSM COULD BE USED AGAINST CERTAIN CHURCHES/DENOMINATIONS." you say:

Did I write in the present tense, or the future tense?

Of course you wrote in the future tense, but you missed my point. As I said above, people opposed to interracial marriage had the same fear (you implied I was using a logical fallacy by mentioning that, presumabely you meant I was making an ad hominem attack. I wasn't. I was saying your logic was very much similar to what some, primarily baptist I believe, churches feared would happen with interracial marriage, not comparing you to racists) and it turned out that spiritual marriages remained the domain of the church. At no time has anyone been forced to perform a marriage that they don't want to with the exception of governments opposed to interracial marriage.

When I said the government's interest in marriage ends with the issuance of a marriage license I meant that statement in terms of the validity of the marriage rather than in terms of the government's interest in the relationship itself.

Put it another way, in what way legally does a marrriage performed in a church differ from a marriage performed in front of a judge? There is no difference legally? then I think that answers this:

It is certain that some ministers in some churches will refuse to perform SSM, and while that won't enrage the average gay man or woman, it will very likely be a red flag in front of "Queer Nation", ACT-UP or other, similar, radical groups.

because while civil marriage is a right issued by the government, churches are private organizations. Just as there was a controversy about the Augusta national golf club hosting the Masters tournament because it discriminates in membership. Churches might be boycotted in some cases over SSM. Churches might even have some violence somewhere, although I doubt this would be widespread. I can't predict how the public would react. But I see nothing you've offered that reasonably suggests why the law would have any interest in forcing a private organization to do something as legally insignificant as perform a religious wedding.

Posted by: Kendall M. on April 6, 2005 12:12 AM

I confused you with Iconoclast and I had a similar debate with him a little earlier in the thread. You might want to refer to my example of a polygamous marriage where two women marry one man. In the event the man enters a coma and the wives must decide whether to pull the plug or continue treatment (to put it crudely I know) if there is a disagreement between the wives with one favoring waiting and the other favoring pulling the plug which wife has the right to decide? That would be the question polygamy advocates would have to answer.

What's so special and irremediable about the scenario you envision? Didn't denise correct you about a hundred posts ago about your misconception of the Schiavo case: that it did not turn on an issue of whether the spouse gets to decide if the other dies, but whether the spouse who is unconscious and uncommunicative ever expressed a wish about what he/she wanted done when in a coma/PVS? There's no reason why the issue would be different if Terri Schindler Schiavo had been Terri Schindler Schiavo-Mahoney, with two husbands, or one husband and one "wife": the question the court would ask is, did she express an intent about care in the event of coma/PVS *before* the event? Even if she hadn't, there's no insuperable obstacle to the spouses working out who gets to decide before such an event, just as an individual may leave a "living will," nor is there any constitutional impediment to the law providing for a procedure in an "intestate" situation.

Posted by: Iconoclast on April 6, 2005 12:32 AM

First, Iconclast, in my latest post which you responded to I made no mention whatsoever of Terri Schiavo, I used no name. But the point you made is MY point: the question the court would ask is, did she express an intent about care in the event of coma/PVS *before* the event? Even if she hadn't, there's no insuperable obstacle to the spouses working out who gets to decide before such an event, just as an individual may leave a "living will," nor is there any constitutional impediment to the law providing for a procedure in an "intestate" situation.

You're right. Assuming they CHOSE to work out such a thing before hand. But what if they didn't? What if one week the three of them marry, the next the husband is in a coma and the wives are at each other's throats? who decides in that case? One spouse? or the other? whose will prevails?

Posted by: Kendall M. on April 6, 2005 01:02 AM

Kendall M. wrote:
"Ellipsis - I appologize. I confused you with Iconoclast and I had a similar debate with him a little earlier in the thread."

This is an easy mistake to make, I forgive you. It is late, probably we all need a break.

"You might want to refer to my example of a polygamous marriage where two women marry one man. In the event the man enters a coma and the wives must decide whether to pull the plug or continue treatment (to put it crudely I know) if there is a disagreement between the wives with one favoring waiting and the other favoring pulling the plug which wife has the right to decide?"

The court system eventually would step in absent a living will. This in no way invalidates polymarriage.

"In regards to your second post in reply to me, on my challenge of your "HOW SSM COULD BE USED AGAINST CERTAIN CHURCHES/DENOMINATIONS." you say:

Did I write in the present tense, or the future tense?

Of course you wrote in the future tense, but you missed my point. As I said above, people opposed to interracial marriage had the same fear (you implied I was using a logical fallacy by mentioning that, presumabely you meant I was making an ad hominem attack. I wasn't. I was saying your logic was very much similar to what some, primarily baptist I believe, churches feared would happen with interracial marriage, not comparing you to racists) and it turned out that spiritual marriages remained the domain of the church. At no time has anyone been forced to perform a marriage that they don't want to with the exception of governments opposed to interracial marriage."

The end of racial boundaries on marriage occurred fully 30+ years ago, in arguably a different country from the one we now live in. The power of the Federal government now is far greater than then, the culture is different, the trial lawyers association is more radical...shall I go on?

"When I said the government's interest in marriage ends with the issuance of a marriage license I meant that statement in terms of the validity of the marriage rather than in terms of the government's interest in the relationship itself."

Uh, no. A whole bunch of marriage licenses were issued in San Francisco about 1 year ago that the government of California took an interest in after they were issued, for example. If someone took out a marriage license from the county and tried to use it to marry two women, there'd be government interest. Sorry, I don't see this.

"Put it another way, in what way legally does a marrriage performed in a church differ from a marriage performed in front of a judge? There is no difference legally?"

Churches can and do perform SSM, yet these have no standing in law. There's a difference. The government would take an interest in incestous marriages as well. This point doesn't stand, does it?

I wrote:
"It is certain that some ministers in some churches will refuse to perform SSM, and while that won't enrage the average gay man or woman, it will very likely be a red flag in front of "Queer Nation", ACT-UP or other, similar, radical groups."

Kendall M. replied:
"because while civil marriage is a right issued by the government, churches are private organizations. Just as there was a controversy about the Augusta national golf club hosting the Masters tournament because it discriminates in membership. Churches might be boycotted in some cases over SSM. Churches might even have some violence somewhere, although I doubt this would be widespread. I can't predict how the public would react. But I see nothing you've offered that reasonably suggests why the law would have any interest in forcing a private organization to do something as legally insignificant as perform a religious wedding."

The Federal government in the last 20 years or so has taken an increasingly expansive view of its powers. Lyndon B. Johnson shut down Federal installations in places that didn't vote for him in the 1964 election; is it really that much of a stretch to consider some future Administration that might want to "make an example" of some church or denomination for political purposes?

I don't find it to be so. We'll just have to disagree on this.

Posted by: ellpisis on April 6, 2005 01:19 AM

Uh, no. A whole bunch of marriage licenses were issued in San Francisco about 1 year ago that the government of California took an interest in after they were issued, for example. If someone took out a marriage license from the county and tried to use it to marry two women, there'd be government interest. Sorry, I don't see this.

I can draw up a marriage license right now on a computer, that doesn't give the marriage legal standing. although its a minor quibble on the wording and you are correct in all you say I'd like to clarify that I meant governmental interest in a marriage license itself ends after it validates a legal marriage by picking up that license from the city or the courthouse where it is issued and the documents are legally signed. I didn't spell it out because I assumed the implications were self evident. That any purely religious marriage ceremony is of relatively little interest to the government unless an illegal activity such as human sacrifice, child rape, etc is performed during the ceremony.

Churches can and do perform SSM, yet these have no standing in law. There's a difference. The government would take an interest in incestous marriages as well. This point doesn't stand, does it?

Why wouldn't it stand? Currently some churches to this day will not marry interracial couples. Other churches will marry SS couples without the benefit of any standing in law, as you said. But the interracial marriages not performed in some churches doesn't affect the legal standing of their marriages does it? In fact, as you pointed out, the church has no legal standing to affect marriages whatsoever. So, under what standing real or imagined would the ACLU or any organization force a SSM to be performed in a church? What grounds would be available to them to affect the operation of a private organization like a church in the event SSM was legalized? Surely since you've thought of this you have a legal logic ending with the forced performance of SSM in churches?

You're right. Ultimately I'm not likely to change my position, you seem unlikely to change yours and Iconoclast is equally unlikely it seems.

Posted by: Kendall M. on April 6, 2005 01:37 AM

Assuming they CHOSE to work out such a thing before hand. But what if they didn't? What if one week the three of them marry, the next the husband is in a coma and the wives are at each other's throats? who decides in that case? One spouse? or the other? whose will prevails?

WHO CARES? Your hypothetical does not pose the insuperable obstacle to polygamous marriage that you think it does. Statutes have provided for procedures in "intestate" situations for generations---if you don't leave a will disposing of your assets, the state has a protocol as to how they're distributed after you die. It can do the same with a "intestate" end-of-life scenario for a spouse in a polygamous marital situation. How it does so is of no relevance to the issue whether polyamorous marriage is "wrong" or not, whether it will "work" or not, or whether it can be denied polyamorists at the same time gays are allowed to marry as a matter of right.

Posted by: Iconoclast on April 6, 2005 01:50 AM

WHO CARES? Your hypothetical does not pose the insuperable obstacle to polygamous marriage that you think it does. Statutes have provided for procedures in "intestate" situations for generations---if you don't leave a will disposing of your assets, the state has a protocol as to how they're distributed after you die. It can do the same with a "intestate" end-of-life scenario for a spouse in a polygamous marital situation.

Yes it can. By supporting one spouse over the other. Elevating one person in the eyes of the law.

How it does so is of no relevance to the issue whether polyamorous marriage is "wrong" or not, whether it will "work" or not, or whether it can be denied polyamorists at the same time gays are allowed to marry as a matter of right.

The law is not concerned with "right" and "wrong", and isn't even concerned with whether or not there is a way you can work out a specific situation. The law is only concerned with legal and illegal, constitutional or not constitutional. Like it or not there is no way to NOT elevate one spouse over the other in decision making in that situation, and like it or not the law provides EQUAL protections under the law.

Posted by: Kendall M. on April 6, 2005 01:59 AM

Mark, the books you cite are talking about a different thing than I am: does increasing the size of welfare payments have an effect on the number of out-of-wedlock births.

How is that different from the issue of whether the existence of welfare for unmarried mothers has an effect on out-of-wedlock births? The economic analysis of a subsidy, which is at the core what your argument relies on, does not suggest that there is any difference between the qualitiative effect of increasing a subsidy and that of creating the subsidy in the first place. Also, please note that Rebecca Blank's book actually offers a fairly comprehensive summary of the causes of increased out-of-wedlock births, as opposed to focusing solely on the impact of AFDC benefit levels.

They're also out of date; the consensus after welfare reform is that, apparently, welfare had a result that was hard to detect, because out of wedlock births have started falling.

What peer-reviewed literature has led you to detect such a consensus. Nothing that I have read suggests that. For example, a recent NBER Working Paper by Joyce, Kaestner and Korenman concludes "We find little consistent evidence for an effect of welfare reform on non-marital childbearing." Rebecca Blank's survey of research on welfare reform, published in the JEL, concludes that "Overall, the recent literature on the effects
of policy on family structure has not provided
clear guidance as to what states should do if
they want to influence fertility and marriage
through their welfare reform efforts." There are one or two papers that find that the specific policy step of family caps reduces the likelihood that a single mother will have an additional child (one of them, IIRC, found this true only for African-American single mothers, which seems counterintuitive), while at least one paper reached the exact opposite conclusion. The only consensus that seems to exist is that there is no clear evidence that welfare reform has had any impact on out-of-wedlock childbearing.

It is, of course, hard to separate out the effect of divorce from the effect of greater opportunities for women, but feminist scholars like Susan Faludi, on whom I believe Ms Coontz draws, tend to dismiss the effect of divorce law with very little evidence.

You are mistaken to believe that Stephanie Coontz bases her conclusion--that changes in divorce law or policy have little or no effect on the divorce rate--on the writings of Susan Faludi. In fact, she bases her conclusion on books and articles by leading experts on divorce, such as Roderick Phillips, Andrew Cherlin, Larry Bumpass and Shirley Zimmerman (Phillips, for example, has written a comprehensive history of divorce in Western society titled Putting Asunder).

Additional research, not cited by Coontz, also supports her conclusions. H. Elizabeth Peters did a major paper in 1986, plus a follow-up in 1992, finding that changes in divorce laws had no significant effect on divorce rates. A recent paper by Justin Wolfers of Stanford similarly concluded that "It should be clear that unilateral divorce laws explain very little of the rise in the aggregate divorce rate."

I did find one paper by Leora Friedberg that concluded that roughly one-sixth of tbe increase in divorce rates between 1968-1988 was caused by unilateral divorce laws. However Wolfers argues persuasively that her result is driven by a failure to properly account for divorce rate trends prior to the changes in the laws. I've also found references to one or two sociological papers by P. Nakonezny and a couple of coauthors that find that no-fault divorce laws increased divorce rates, but the papers don't seem to be available online, and they also seem to have attracted some rebuttals from another sociologist named Glenn (whose papers are also not online), so they are not decisive.

I see no reason to reject Coontz's conclusion which I quoted earlier. At most, one could say that there is a debate between those who claim that changes in the law caused a small fraction of the increase in divorce rates, and those who claim that the changes had no effect.

It flies in the face of reason that a dramatic easing of the law creates no more of the behavior it regulates, and from what I've read, it also flies in the face of evidence.

The first part of your claim here is pure argument from personal incredulity. As for the second, I'd be perfectly willing to look at any peer-reviewed research that formed the basis for your conclusions (likewise any such research supporting your claims of consensus regarding welfare reform and out-of-wedlock birth). But don't expect me to modify my conclusions based on anything less than solid evidence.

Posted by: Mark on April 6, 2005 01:59 AM

*sigh*

No welfare, welfare.
Fewer unmarried moms, more unmarried moms.

It seems an easy equation.

All you had to do was leave out all other factors.

Still, it's only possible to be a "libertarian" by becoming an expert in leaving out whatever doesn't fit.

Posted by: Dr Zen on April 6, 2005 02:15 AM

Like it or not there is no way to NOT elevate one spouse over the other in decision making in that situation, and like it or not the law provides EQUAL protections under the law.

We're back to THAT again? I thought you had acknowledged that there was no case adjudicating a supposed requirement of an "equal say" in a marital relationship based on Federal constitutional law when I called you on your earlier misstatement. If gays are granted "marriage rights" by some court, there's no constitutional precedent or meaningful constitutional principle that should deny those rights to polyamorists and others. If 14th Amendment "equal protection" applies at all in the event gays are granted marriage rights, it operates to mandate that polyamorists be treated equally with gays in terms of marriage rights, not that they be denied marriage rights by some preposterous and obviously ad hoc argument like the invented "constitutional requirement" that "each spouse have an equal say" you came up with earlier, had to retract as unfounded, and now want to re-assert on your own ipse dixit.

But if you're going to descend to "making up" constitutional rights in the context of the marital relationship just so you can cynically short-circuit claims of polyamorists to marriage rights while simultaneously defending the same rights for gays, there is no basis for reasonable or principled discussion with you. Good night.

Posted by: Iconoclast on April 6, 2005 02:51 AM

We're back to THAT again? I thought you had acknowledged that there was no case adjudicating a supposed requirement of an "equal say" in a marital relationship based on Federal constitutional law when I called you on your earlier misstatement. If gays are granted "marriage rights" by some court, there's no constitutional precedent or meaningful constitutional principle that should deny those rights to polyamorists and others. If 14th Amendment "equal protection" applies at all in the event gays are granted marriage rights, it operates to mandate that polyamorists be treated equally with gays in terms of marriage rights, not that they be denied marriage rights by some preposterous and obviously ad hoc argument like the invented "constitutional requirement" that "each spouse have an equal say" you came up with earlier, had to retract as unfounded, and now want to re-assert on your own ipse dixit.

Not at all. You asked me if there was a case SPECIFICALLY RELATING TO SPOUSES that ruled that way. There isn't. There is caselaw that suggests men and women (in other words all consenting adults) are equal under the law in every respect. Just because there is no specific caselaw that says "married spouses are equal" and only caselaw that says "all persons in the United States are to be treated equally under the law" does not mean that married spouses are NOT equal. I retract my statement that there is caselaw SPECIFIC to married spouses. I do not retract my statement in regards to EVERYONE which would by definition include married people being equal (and no, that does not mean married people are equal in the law to unmarried. It means people in a relationship such as marriage are given equal status in the context of that relationship).

Posted by: Kendall M. on April 6, 2005 03:02 AM

ellipses, you don't provide a single example of how legalizing gay marriage would increase the chance of legalizing incest, statutory rape, or polygamy. You're making the argument that if you change marriage at all, every stupid idea for marriage will come to pass. Give me a single specific reason that allowing one person of the same sex to marry one other person of the same sex sets a precedent allowing polyagmy and sex with children. You even state that polygamists are currently challenging the marriage law in Utah, so that slippery slope will be challenged with or without gay marriage. I'd deal with you're other points aimed at me, but their not so much arguments as denials to what you have previously written.

Iconoclast, I don't think the bible has anything to do with the illegality of incest. The incest taboo exists in many cultures that were never exposed to the bible. The bible sure doesn't have anything to do with the age of consent, twelve is the lowest age of consent in the bible. People just accept the conservative claim that our founders used the bible in creating the Constitution, when thats simply not true. Jefferson called the bible "a pile of dung" among other things, Madison called the bible an insult to God, and Franklin, Payne and others pretty much agreed.

On one hand, conservatives want you to believe that the US is moving forward as the best country in the world. On the other hand, conservatives want you to believe that the ongoing deteriation of marriage is killing the country, and gay marriage is the last nail in the coffin. Which is it?

Posted by: So Fabulous on April 6, 2005 10:34 AM

This is literally the dumbest original post I've ever read.

Followed by the dumbest fawning comments I've ever read.

Followed by the dumbest thread of comments I've ever read.

I may be exaggerating.

I may point out that Ms. Galt's argument that, you never know what terrible consequences might be so without perfect foresight, forebear! argues with exactly the same force against me getting out of bed in the morning.

Sigh. I would have thought that the question of gay marriage depended somehow on the meaning of marriage, and whether some number of concepts were important to it, such as commitment, raising a family, loyalty, heterosexuality, exlusiveness, two-ness. Evidently I have been misled, and it's all about the terror of unknown consequences, and evidently the accompanying fear that people cannot tell the difference between a gay couple and an incestuous trio, and if we allow one we will surely have to take the other.

Posted by: Tony the Pony on April 6, 2005 11:10 AM

Wow, I'm VERY late here.

As to the unequal-spouses argument, I'm not understanding why it's a given that they'd have to be. Positing a one husband-two wives marriage and our incapacitation scenario with no living will and no prior setup of guardianship, how would the courts find it more difficult to deal with disagreeing wives than, say, in this alternative scenario: a man/woman, unmarried and uninvolved in a "relationship," no issue, no siblings, becomes incapacitated. This person's parents, who divorced after s/he left home, disagree about whether s/he should continue on life support. (I'm assuming that under current law the guardianship would devolve on parents in this situation - if I'm wrong, my scenario isn't as parallel.)

The mighty Law has no idea how my husband and I run our marriage unless we make recourse to the courts; he could be confiscating my paycheck and forcing me to stand in the corner every time I cross him, and unless I complain about it, the government would have no way of knowing, much less of stepping in to correct a 14th Amendment inequity. I suppose if the ACLU were peering in my window they could bring suit on my behalf, but there goes my privacy right.

As to non-incented behavior change: OK, Mark is arguing, with citations, that the change in welfare payments to "unwed mothers" did not lead to more babies' being born to unmarried welfare recipients. Mark, can you tell me what, in the opinion of the researchers, DID lead to this effect, since it indubitably did happen? Do the researchers you cite point to an increase in out-of-wedlock births society-wide as evidence that welfare payouts' effects were not as widespread as Jane suggests? IOW, that society destigmatized "bastardy" (a term I deplore - not the baby's fault!), and that that lowering of stigma, not payment-for-children, led to more babies to unwed welfare moms?

Because, if that's their argument, it's a causation-vs-correlation argument, and I can draw the arrow going the other way - namely, that destigmatization of out-of-wedlock births, beginning in the welfare-recipient community because of changes in payment provisions, led to more out-of-wedlock births among non-welfare recipients. This could be a non-incented behavior change. I don't have a mechanism, but, as with falling marriage rates in countries with SSM, it's an effect that correlates, and causation is possible though not proven.

Posted by: Jamie on April 6, 2005 11:21 AM

No, Tony, it's not "all about the terror of unknown consequences"; the point is that unknown and unintended consequences will occur, and we should therefore not rush headlong to change an institution that transcends our nation, our culture, and history. It doesn't follow that we should never act - only that we should be wary of goofing with things we don't understand.

Sometimes we'll have to act regardless of the possible negative effects. Is that true in the case of SSM, and if so, why is the need for change so pressing here that it must rely on judicial fiat and interpretation rather than attempts to change minds & hearts, then legislation? Do you so completely comprehend marriage that you're willing to roll the dice on it, for yourself and all the rest of us, including children yet unconceived?

Posted by: Jamie on April 6, 2005 11:34 AM

Iconoclast, I don't think the bible has anything to do with the illegality of incest. The incest taboo exists in many cultures that were never exposed to the bible. The bible sure doesn't have anything to do with the age of consent, twelve is the lowest age of consent in the bible. People just accept the conservative claim that our founders used the bible in creating the Constitution, when thats simply not true. Jefferson called the bible "a pile of dung" among other things, Madison called the bible an insult to God, and Franklin, Payne and others pretty much agreed.

Your comments on the Bible and the Constitution are irrelevant, and what does it matter that there's an incest taboo in Papua New Guinea? I could make the equally irrelevant point that most non-Biblical societies have taboos or strictures against homosexuality---none at all have the chimera called "gay marriage."

But we're talking about establishing new forms of marriage HERE, where the legal codes of the original states were based on the Bible. And if the prohibitions against consanguinous marriage, polygamous marriage and underage marriage---just to name a few permutations---have no legitimate religious basis, you're going to have to justify them on other secular policy grounds against assertions by people who want to marry consanguinously etc. that they should have the "right" to marry that you want gays to have. Not only that---you're going to have to explain why these policy grounds against allowing consanguinous marriage and so forth should defeat the "fundamental equal protection right to marry" consanguinous couples and other non-traditional or even currently prohibited relationships would then assert in the wake of a judicial ruling that gays have such a fundamental right, and which "right" according to gay marriage proponents renders all discussion of policy pros and cons, and even the need for democratic consent to the institution of gay marriage, moot. That's the key point that you gay marriage proponents keep avoiding.

Posted by: Iconoclast on April 6, 2005 11:59 AM

I'd be perfectly willing to look at any peer-reviewed research that formed the basis for your conclusions (likewise any such research supporting your claims of consensus regarding welfare reform and out-of-wedlock birth). But don't expect me to modify my conclusions based on anything less than solid evidence.

Speaking of "peer review," Mark, please provide links to any of the articles and papers you cite that are on-line. More of us than just Jane are interested in the authority you rely on.

Posted by: Iconoclast on April 6, 2005 12:02 PM

I may point out that Ms. Galt's argument that, you never know what terrible consequences might be so without perfect foresight, forebear! argues with exactly the same force against me getting out of bed in the morning.

Or against you jumping headlong off the top of the Empire State Building. Not a good guide for your conduct in that instance either? You act as if you'd never got out of bed before. Just like we've never had "gay marriage" before.

Consider more carefully and respectfully the article's well articulated and reasoned points and come back when you can make a less frivolous argument.

Posted by: Iconoclast on April 6, 2005 12:45 PM

Mark is arguing, with citations, that the change in welfare payments to "unwed mothers" did not lead to more babies' being born to unmarried welfare recipients. Mark, can you tell me what, in the opinion of the researchers, DID lead to this effect, since it indubitably did happen?

A good summary of the causes is give by Rebecca Blank in It Takes a Nation. I'm at work right now and that book is at home, but if time permits me this evening I'll try to summarize her summary (I have a very big meeting tonight, so it may be tomorrow before I can do this). One point I do recall that she makes, and provides quite a bit of data on, is that the percentage of births which are out of wedlock--the 70% figure Jane refers to--depends on both out-of-wedlock birthrates and in-wedlock birthrates, and the fact is that married couples are having much smaller families than in the past. That still leaves, however, a rise in the birthrate for unmarried women to account for. As I recall, Blank cites two or three causes of that rise, and I will, as I said, try to summarize her points.

Here are a couple of links to papers I've referred to that are available online. The first is Rebecca Blank's survey of research on welfare reform (be warned, it's about 60 pages long--the section on the effects on birthrates and family structure is near the end):

http://www.faculty.econ.northwestern.edu/faculty/worthington/p1105_s.pdf

The second is Justin Wolfers' paper on the divorce issue (which also summarizes a couple of the other papers I mentioned).

http://siepr.stanford.edu/papers/pdf/02-44.pdf

Posted by: Mark on April 6, 2005 01:45 PM

Mark, thanks very much for your promptness and courtesy in posting some links to your authority. I note preliminarily the following language from the conclusion of Prof. Blank's December 2002 paper which you linked to above:

The literature evaluating these welfare reforms [of the mid-90's] is likely to continue to grow....[S]ome important questions can only be answered after more time has passed. We have only very preliminary evidence on whether these reforms have had any long term impacts on marriage or fertility behavior.

An interesting concession on Prof. Blank's part.

And this from the conclusion of the 2003 paper of Prof. Wolfers:

It is clear that divorce law has an effect on the divorce rate; it is less clear that this effect is persistent.

Once again, a prudent concession.

Posted by: Iconoclast on April 6, 2005 02:11 PM

So Fabulous wrote:

"Ellipses, you don't provide a single example of how legalizing gay marriage would increase the chance of legalizing incest, statutory rape, or polygamy."

On the contrary, I've made my point multiple times. Possibly it is not a point that some wish to seriously think about?

" You're making the argument that if you change marriage at all, every stupid idea for marriage will come to pass."

This is the logical fallacy of the strawman argument.

"Give me a single specific reason that allowing one person of the same sex to marry one other person of the same sex sets a precedent allowing polyagmy and sex with children."

Here is the chain of logic:
1. Marriage is strictly defined as "one man and one woman". Polygamy was outlawed as a condition of admitting the State of Utah. Thus the definition of marriage is _settled law_, or was until recently. No one sought to redefine marriage, because it was _settled_.

2. Creating SSM by any means, be it legislative, judicial or referendum, gives the government the new power to RE-define marriage. The definition is no longer _settled_ law, it is now re-definable.

3. Once the legislature, court system and/or citizenry via the referendum have the new power to RE-define marriage, taking that power away is going to be all but impossible. Therefore the definition of marriage will remain re-defineable, and thus not _settled_.

4. Given governmental power to RE-define marriage, other groups that have their own definitions will naturally wish to see said definitions enshrined in law. We know that polygamists want their definition legalized, and there is reason to believe other groups have the same desires. These groups of persons will petition legislatures, file lawsuits and/or seek to put their desires on the referendum ballot box. Some will succeed, because they can and will use the _same_ arguments that supporters of SSM are using, in the _same_ manner and possibly even the _same_ courtrooms.

Is that clear enough?

"You even state that polygamists are currently challenging the marriage law in Utah, so that slippery slope will be challenged with or without gay marriage."

The case in Utah cites the USSC decision _Lawrence_ as grounds for redefining marriage in the State of Utah. The USSC decision _Lawrence_ is also one of the bedrocks of the Massachusetts decision _Goodridge_, imposing SSM by judicial fiat on that State. It is completely reasonable to point to the Utah polygamy suit as a result of the combination of _Lawrence_ and the success of _Goodridge_. If SSM is imposed nationwide, will that encourage more such lawsuits, or discourage them? The answer should be obvious, it will encourage more such lawsuits, if for no other reason than success at redefining a legal concept by one group encourages other groups to attempt the same thing.

"I'd deal with you're other points aimed at me, but their not so much arguments as denials to what you have previously written."

I'm sorry, I cannot read minds, so I do not have a clue what this refers to. However, persons who do claim to be able to read minds should be prepared to demonstrate that ability on demand...

"On one hand, conservatives want you to believe that the US is moving forward as the best country in the world. On the other hand, conservatives want you to believe that the ongoing deteriation of marriage is killing the country, and gay marriage is the last nail in the coffin. Which is it?"

Try asking a conservative...

Posted by: ellipsis on April 6, 2005 02:38 PM

A truly amazing, incredible post. I will link and will instruct readers of my blog that the best way they can spend 15 minutes in the next few days is to read this article. Fabulous. Well-written, unbiased (I have a DEFINITE bias), good.

One thing, though: you said, "By changing the explicitly gendered nature of marriage we might be accidentally cutting away something that turns out to be a crucial underpinning.

To which, again, the other side replies 'That's ridiculous! I would never change my willingness to get married based on whether or not gay people were getting married!'"

I am one flesh-and-blood individual, married 22+ years, who is strongly considering, if "gay marriage" were to become the law of my state (Pennsylvania) petitioning the government to "de-recognize" my marriage, on the basis that I have not agreed to, nor will agree to, this radical redefinition of marriage. I.e., whatever definition of marriage that will be written in such a case will constitute a re-writing that renders my own willingness to participate in the institution no longer viable. I will not wish for a divorce, nor would I intend to fulfill any of the state's requirements for getting one; I just will strongly consider petitioning the state to "de-recognize" it.

Further, as a pastor who marries people as part of my vocation, I already have taken the stance that I will no longer be willing to sign any marriage license in any state which so changes the definition of marriage; I will not be party to it, though I will continue to perform weddings. People who then would wish to be "married" in the eyes of the state would have to attend to that detail through another means.

Posted by: Byron on April 6, 2005 02:45 PM

Kenall M. wrote:

"I can draw up a marriage license right now on a computer, that doesn't give the marriage legal standing."

One can forge any government document, so what? You are insisting that the government takes no interest in how its documents are used, specifically it has no interest in how a marriage license is used.

" although its a minor quibble on the wording and you are correct in all you say I'd like to clarify that I meant governmental interest in a marriage license itself ends after it validates a legal marriage by picking up that license from the city or the courthouse where it is issued and the documents are legally signed. I didn't spell it out because I assumed the implications were self evident. That any purely religious marriage ceremony is of relatively little interest to the government unless an illegal activity such as human sacrifice, child rape, etc is performed during the ceremony."

All right, that is clearer, but it has little to do with my hypothetical, does it?

I wrote:
"Churches can and do perform SSM, yet these have no standing in law. There's a difference. The government would take an interest in incestous marriages as well. This point doesn't stand, does it?"

Kendall M. replied:

"Why wouldn't it stand?"

Because the government takes an interest in all manner of issues of discrimination.

"Currently some churches to this day will not marry interracial couples."

This claim has been made before with no support. Please name some of these churches that will not perform marriages for interracial couples, and be specific.

"Other churches will marry SS couples without the benefit of any standing in law, as you said. But the interracial marriages not performed in some churches doesn't affect the legal standing of their marriages does it?"

What difference does that make? My point is simply that refusal to perform SSM may well be used as grounds for a civil suit or, under some Administrations, a Federal Civil Rights suit, on the basis of discrimination.

"In fact, as you pointed out, the church has no legal standing to affect marriages whatsoever."

I don't recall pointing that out, but arguably it is correct.

"So, under what standing real or imagined would the ACLU or any organization force a SSM to be performed in a church?"

Discrimination, leading to mental anguish, public embarassment, pain, suffering, etc.

"What grounds would be available to them to affect the operation of a private organization like a church in the event SSM was legalized?"

Discrimination against people on the basis of sexual orientation.

"Surely since you've thought of this you have a legal logic ending with the forced performance of SSM in churches?"

Yes, I have done so.

Posted by: ellipsis on April 6, 2005 02:51 PM

This claim has been made before with no support. Please name some of these churches that will not perform marriages for interracial couples, and be specific.

to this day some Mormon churches will not perform interracial marriages apparently I hope this answers your question No church is FORCED to do so. There may be public pressure by individuals but that is the individual's right, the government isn't enforcing any of that, is it?

Because the government takes an interest in all manner of issues of discrimination.

Really? is that why the KKK is all arrested and why white supremacists are arrested for their views? Oh, wait, that isn't happening. Well, maybe that's why the the government raided the Augusta National golf club before the Masters tournament and required the admission of blacks? Of course, you'll note from the article that public pressure DID force the admission of black members to the club, but from private companies threatening to pull sponsorship. PRIVATE activity, not government action. Are you suggesting the government is more concerned with protecting gays than blacks?

What difference does that make? My point is simply that refusal to perform SSM may well be used as grounds for a civil suit or, under some Administrations, a Federal Civil Rights suit, on the basis of discrimination.

Just like PRIVATE golf clubs may be forced by the GOVERNMENT to allow black members? Cite your source, give me ONE example where the government did it for blacks that suggests they'd do it for gays.

Discrimination, leading to mental anguish, public embarassment, pain, suffering, etc.

The federal government may not discriminate, I'm aware of no caselaw that says a private club or organization may not. Cite.

Discrimination against people on the basis of sexual orientation.

Then surely you're aware of a privately funded organization that was stopped from discriminating against another minority? Would you be so good as to cite it?

Posted by: Kendall M. on April 6, 2005 03:38 PM

I wrote regarding churches that would not perform interracial marriages:

"This claim has been made before with no support. Please name some of these churches that will not perform marriages for interracial couples, and be specific."

"to this day some Mormon churches will not perform interracial marriages apparently I hope this answers your question No church is FORCED to do so."

I read the entire article and found nothing to indicate that LDS churches today will not perform interracial marriages. In fact the article clearly described an interracial marriage that WAS performed, albeit with unseemly grumbling by an LDS officer at the wedding.

Therefore I regard this claim as uproven.

"There may be public pressure by individuals but that is the individual's right, the government isn't enforcing any of that, is it?"

To the best of my knowledge there is no government attempt to force churches to perform interracial marriages, however to the best of my knowledge there are no churches in the United States that would refuse to do so, including the LDS church.

Would marriage in a church be regarded as a public accomodation, similar to renting a room in a hotel or dining in a restaurant? Certainly in 1968 it was not so regarded, but looking at my calendar I see that it is not 1968 anymore...

I wrote:
"Because the government takes an interest in all manner of issues of discrimination."

Kendall M. replied:
"Really? is that why the KKK is all arrested and why white supremacists are arrested for their views? Oh, wait, that isn't happening."

Many Klansman are behind bars, as are many white supremacists. They are behind bars for _actions_ they took, or conspired to take. The government took interest in their _actions_, or their plans to engage in actions.

Generally it is hard to get arrested in the United States for merely saying something, although with "hate speech" laws and "speech codes" that could be changing...

"Well, maybe that's why the the government raided the Augusta National golf club before the Masters tournament and required the admission of blacks?
Of course, you'll note from the article that public pressure DID force the admission of black members to the club, but from private companies threatening to pull sponsorship. PRIVATE activity, not government action."

The government regarded membership in Augusta as not being a form of public accomodation, so far as I can tell. Would a wedding in a church be regarded as a public accomodation? Not in 1975, but again I check my calendar...

" Are you suggesting the government is more concerned with protecting gays than blacks?"

Nice strawman.

I wrote:
"What difference does that make? My point is simply that refusal to perform SSM may well be used as grounds for a civil suit or, under some Administrations, a Federal Civil Rights suit, on the basis of discrimination."

Kendall M. replied:
"Just like PRIVATE golf clubs may be forced by the GOVERNMENT to allow black members? Cite your source, give me ONE example where the government did it for blacks that suggests they'd do it for gays."

Private golf clubs, especially those that serve Federal judges, rich donors to political parties and other people of influence, are clearly not public accomodations. Whether churches, especially those whose members may be safely considered to be "redneck white trash", would be likewise considered public accomodations in the wake of an imposition of SSM, is not necessarily cut and dried...

I wrote:
"Discrimination, leading to mental anguish, public embarassment, pain, suffering, etc."

Kendall M. replied:
"The federal government may not discriminate, I'm aware of no caselaw that says a private club or organization may not. Cite."

No public accomodation may discriminate under the Civil Rights Act (as amended) on the basis of sex, national origin, race, religion, and must make 'reasonable accomodation' for disabled persons. Churches have been considered not to be public accomodations. However, when the Civil Rights Act was written in the mid 1960's, the attitude towards organized religion in general and "redneck white trash" churches in particular was different than it is now.

Now we have powerful, well funded organizations devoted to ejecting certain religions from the public square, and the definition of 'public accomodation' arguably is not as clear as it was back when Hubert Humphrey was still around.

I wrote:
"Discrimination against people on the basis of sexual orientation."

Kendall M. replied:
"Then surely you're aware of a privately funded organization that was stopped from discriminating against another minority?"

Why does that necessarily follow, please? I'm not aware of the government redefining marriage for any other minority group, for example, yet clearly there is a demand that be done, isn't there? If one form of brave, new ground can be broken, why not another form as well?

Why is it impossible that churches could be declared public accomodations, please?

Posted by: ellipsis on April 6, 2005 04:27 PM

I wrote:
"Discrimination against people on the basis of sexual orientation."

Kendall M. replied:
"Then surely you're aware of a privately funded organization that was stopped from discriminating against another minority?"

Why does that necessarily follow, please? I'm not aware of the government redefining marriage for any other minority group, for example, yet clearly there is a demand that be done, isn't there? If one form of brave, new ground can be broken, why not another form as well?

If you're not aware of the gov't redefinintg marriage for another group then what was interracial marriage from a legal standpoint? What was the Loving decision in your standpoint? I would define it as redefining certain states laws against interracial marriage and redefining marriage in those states. So, I'll ask again. Cite an example where a church WAS forced to perform an interracial marriage ceremony.

Posted by: Kendall M. on April 6, 2005 04:37 PM

I wrote:
"Discrimination against people on the basis of sexual orientation."

Kendall M. replied:
"Then surely you're aware of a privately funded organization that was stopped from discriminating against another minority?"

I wrote:
Why does that necessarily follow, please? I'm not aware of the government redefining marriage for any other minority group, for example, yet clearly there is a demand that be done, isn't there? If one form of brave, new ground can be broken, why not another form as well?

Kendall M. replied:
"If you're not aware of the gov't redefinintg marriage for another group then what was interracial marriage from a legal standpoint?"

Marriage of one man and one woman was the definition of marriage before this country was founded, and after _Loving_ it was still the definition. Where is the redefinition?

"What was the Loving decision in your standpoint?"

A decision to overturn a pernicious law that, at that time, was of historically rather recent origin, enshrining certain pecular prejudices.

"I would define it as redefining certain states laws against interracial marriage and redefining marriage in those states."

I'm sure that Kendall M. would so define it, because such a definition is convenient to his argument. However, marriage was defined as "one man and one woman" under British common law, under the common law of the Articles of Confederation, under the Constitution, and _Loving_ did nothing to change that, now did it?

So Kendall M.'s definition looks a bit tortured, along the lines of getting an answer then fudging the numbers to produce the desired result.

"So, I'll ask again. Cite an example where a church WAS forced to perform an interracial marriage ceremony."

I'm not aware of any cases, but then I'm not aware of any churches that would refuse to perform such a ceremony, either. Will Kendall M. be getting back to us any time soon with a list of churches that flatly refuse to perform interracial marriages, I wonder?

Will Kendall M. explain why it is impossible that a church could be declared a public accomodation, especially for political reasons, in the wake of the imposition of SSM?

Posted by: ellipsis on April 6, 2005 04:48 PM

Interjecting here, ellipsis and Kendall M:

"Then surely you're aware of a privately funded organization that was stopped from discriminating against another minority? Would you be so good as to cite it?"

Let me say first that this is the most interesting conversation I've heard in YEARS. Maybe EVER.

Now: how about the Boy Scouts? I suppose technically they haven't been "stopped from discriminating against" gay people, and I don't know whether they receive funds from United Way (which would put a lot of Federal employees' charity dollars in their pockets, so perhaps this would constitute "government funding" - I've heard that argument concerning Planned Parenthood), but moves in that direction are certainly happening, as (I understand) they are no longer allowed to meet on Federal property because of their ban on gay leaders. The public accommodation argument seems to be going against them, though it worked fine until recently. Is this a useful example?

Mark, thanks for the cite and for taking the time. I'll do my poor best to read the article.

Posted by: Jamie on April 6, 2005 04:53 PM

By the way, "Bob Jones University" was a private religious school that did not allow its students to enage in interracial dating.

If I recall correctly, the Federal government declared that because some form of Federal funding was received by Bob Jones it was de facto a public accomodation and could not prohibit interracial dating. I do not recall the exact form of Federal monies, but it could very well have been student loans. Suffice to say that if one Federal dollar arrives at a private institution, it better toe the line on certain matters.

Churches are tax exempt under Federal law. A creative interpretation of that tax exemption would argue that it is a kind of grant, and therefore all churches that accept tax exemption must obey all Federal laws on discrimination...

This may seem far fetched, but is it?

Posted by: ellipsis on April 6, 2005 04:56 PM

Now: how about the Boy Scouts? I suppose technically they haven't been "stopped from discriminating against" gay people, and I don't know whether they receive funds from United Way (which would put a lot of Federal employees' charity dollars in their pockets, so perhaps this would constitute "government funding" - I've heard that argument concerning Planned Parenthood), but moves in that direction are certainly happening, as (I understand) they are no longer allowed to meet on Federal property because of their ban on gay leaders. The public accommodation argument seems to be going against them, though it worked fine until recently. Is this a useful example?

As you said, the Boy Scouts are not stopped from banning homosexaul or atheist scouts or scout leaders. The Boy Scouts ARE stopped from using federal dollars to do so. Many Boy Scout troops are choosing to meet in churches to comply with federal law rather than schools which are gov't funded public facilities. The federal gov't's non endorsement and non support of the boy scouts is not preventing them from holding their policies. The federal gov't cannot force a private organization such as the Scouts to change their policies anymore than the federal gov't could force the KKK for example (note I'm not making a moral comparison between the boy scouts and KKK, only a legal one) to admit black or hispanic or gay members to their organization. Private groups may discriminate. Governments may not.

Ellipsis then brings up the Bob Jones University example. However, if Ellipsis did a little extra digging he would note that BJU merely lost its tax exempt status because it received PUBLIC TAX DOLLARS prior to a lawsuit on the interracial dating ban. BJU kept their ban on interracial dating for a few years after that and eventually lifted it. Exactly how was the gov't forcing them to change their policy there?

You ask me to provide a list of churches that will not perform interracial marriage. I don't see why I have the burden of proof in the polygamy debate on myself. I must prove to you why gay marriage SHOULD be legalized, and I must prove to you that churches WON'T be forced to do something? Shouldn't YOU be forced to prove they WILL be forced to do something? Its rather difficult for me to prove a negative afterall.

Posted by: Kendall M. on April 6, 2005 05:10 PM

Kendall M., I just want to inform you that your statement that some LDS churches refuse to perform interracial marriages is absolutely, unequivocably wrong.

The article you linked to deals with some of the unfortunate prejudice that remains among some at the margins of the LDS community. I could never say that all such racism has been completely removed from all Mormons everywhere. What I can say is that such feelings have absolutely no support in the institutional church, and that the vast majority of Mormons find racism in general appalling, and have no problem at all with interracial marriages.

Posted by: Ryan Bell on April 6, 2005 05:24 PM

A good summary of the causes is give by Rebecca Blank in It Takes a Nation. I'm at work right now and that book is at home, but if time permits me this evening I'll try to summarize her summary

Mark, could I trouble you to include as many direct quotations and page citations as possible in your summary? I have difficulty believing that a woman who in a December 2002 paper you linked to conceded that evidence on the effect of welfare reforms on marriage and fertility was far too preliminary to draw definite conclusions and that more time was needed to evaluate the effects thereof, has since then come to definite conclusions that exclude any significant causal relation between welfare payments on the one hand and marriage and fertility on the other. Thanks.

Posted by: Iconoclast on April 6, 2005 05:35 PM
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