Dafydd ab Hugh on Gay Marriage
Dafydd ab Hugh has a column up on his Big Lizards site offering a secular argument against gay marriage. Long-time Patterico readers know that I do not oppose gay marriage; Dafydd’s piece, while it makes for entertaining reading, does not persuade me that my position is wrong.
Dafydd makes two main points: 1) marriage between a man and a woman is a civilizing influence on society, and should be encouraged; and 2) therefore, society should not recognize gay marriage, because that societal recognition undercuts traditional marriage.
Point #1, the argument in favor of heterosexual marriage as a civilizing influence, has much to recommend it. True, it resorts to stereotypes of men as aggressive hunters and women as nurturers. True, these stereotypes sometimes lead to conclusions I find comical (such as the assertion that lesbians are rarely aggressive or career-oriented). But Dafydd acknowledges that there are exceptions to his stereotypes, and I think that there is a central truth in much of what he says.
Where I disagree with Dafydd is his point #2: that society should therefore ban gay marriage as a way to encourage marriage. I come to this conclusion by comparing the pros and cons of banning gay marriage.
First, the cons. The downside of banning gay marriage is that homosexuals are made to feel that they are second-class citizens. I don’t know whether being gay is genetic, a learned behavior, or some combination of the two — but I am confident that it is something that people do not consciously choose. I certainly did not consciously choose to be sexually attracted to women; that is hard-wired into me somehow. I can’t imagine it’s different for gay men.
Since gays do not consciously choose their sexual orientation, refusing to give them access to an institution available to heterosexuals is discrimination. The policy question is whether this discrimination is justified on a societal level. Dafydd argues that it is. So I turn to the alleged pros of banning gay marriage. I’ll let Dafydd speak for himself on this point:
We live in a society that prizes liberty and individual choice. To me, it betrays Americanism to forbid people the right to live as they want to live — even if that means two gay men or four lesbians making a household together. But we’re not talking about what is merely allowed; when the subject is marriage, we are talking about what is applauded.
I don’t believe we have the right to forbid gay relationships… but surely we have no obligation whatsoever to pretend they are as important to society as traditional marriage.
Marriage is a definition, and definitions are based on distinctions, on discrimination: society defines “marriage” in the way that is most valuable to society. That is the only standard to use when what you’re seeking is not individual liberty or freedom, but rather society’s seal of approval.
For its entire existence, the core of Western civilization has been the union of the male and female principles into a family that transcends the limitations of each. In deciding what relationships we, as a society, shall privilege, it is imperative that we recognize the fundamental nature of that decision: it’s not unreasonable to insist that the “norm” actually be what is normal and traditional.
So let gays shack up; let swingers have their orgies; let two aging sisters live together for companionship. But as General Honore said, “don’t get stuck on ‘stupid!’” However valuable such relationships may be to the individuals involved, we cannot pretend that every imaginable relationship is a marriage, or else the word “marriage” loses all meaning.
I just don’t buy this. People get married for all sorts of reasons: love, companionship, stability, raising a family, and financial reasons, just to name a few. People stay married for a similarly wide variety of reasons. I don’t think that, for heterosexuals, the availability of marriage to homosexuals plays any part in the calculus of whether they get married, or whether they stay married. At all. And Dafydd has not explained to me how it does.
UPDATE: Dafydd has a further post on the issue in which he purports to bust three “myths” that he has seen in the comments here. I think his post is completely illogical. I explain why here.
“Dafydd ab Hugh has a column up on his Big Lizards site offering a secular argument against gay marriage.”
The secular stereotyped argument.
I don’t see yet how gay marriage discourages heterosexual marriage. But assuming it does, we should also count how gay marriage itself has a “civilizing” influence on society, and add that to the cost/benefit calculus.
Comment by actus — 9/23/2005 @ 7:48 am
“Since gays do not consciously choose their sexual orientation, refusing to give them access to an institution available to heterosexuals is discrimination.”
I’m not a lawyer (nor do i play one on tv:), but I simply don’t see the discrimination here. What you are saying, in essense, is that “Because I’m gay, I’m not allowed to marry who I want.” However, as a heterosexual, I suffer the same discrimination - i too cannot marry who I want. If the object of my affection is already married, I’m forbiden. If the object of my affection is underage, I’m not allowed. If the object of my affection is my dog.. (well, you get the point:).
The fact is, every adult in the country has exactly the same right - to marry one (and only one at a time) person of the opposite sex. As you point out yourself, love is not the only deciding factor in determining who we choose to marry.
Comment by Scott — 9/23/2005 @ 7:50 am
Scott, you justify the status quo as discrimination, equally applied. I am not available to marry (or be married by) a certain group, because I belong to a certain group.
Because the group distinction is based on gender, that would seem to subject any law authorizing only opposite-sex marriage to intermediate scrutiny.
Which, in my opinion, is right where we need to be to put theories like Dafydd’s to the fire (from the perspective of wanting to see the rational debate fleshed out). If there are a variety of reasons for entering (and staying in) hetero marriages, what important state interest do they collectively serve that failing to recognize same-sex marriages also serves? I think it’s a tough case to make, once bigotry is put aside.
Comment by biwah — 9/23/2005 @ 8:06 am
“However, as a heterosexual, I suffer the same discrimination - i too cannot marry who I want. If the object of my affection is already married, I’m forbiden. If the object of my affection is underage, I’m not allowed. If the object of my affection is my dog.. (well, you get the point:).”
The point you’re missing is that its not simply “marrying who you want.” But finding a partner that gets into a situation where for everything but their same-sexness, they would be able to marry.
Comment by actus — 9/23/2005 @ 8:08 am
Biwah,
I am not attempting to justify the status quo as discrimination equally applied. Rather, I’m asking a legitimate question. Specifically, how is this discrimination? Merriam-Webster online defines the intransitive sense of discriminate as
“to make a difference in treatment or favor on a basis other than individual merit”
I simply don’t see how this is qualifies as discrimination. Bad policy? Maybe? Unenlightened? Perhaps? Needs to be changed? Up for debate. But someone needs to explain to me how it is discrimination.
Comment by Scott — 9/23/2005 @ 8:21 am
Discrimination:
to make a difference in treatment or favor
“The law does not permit me to marry (or be married by) any individual belonging to a certain group, whereas a person of the opposite sex is entitled to marry an individual from that same group.” e.g. John is legally disabled from entering a marriage with Jim (or any other man), but Sara is entitled under the law to marry Jim (or any other man, subject to certain basic criteria).
on a basis other than individual merit
“The sole (or overriding) reason for this is my gender.” i.e. John’s gender is the sole reason for this legal disability.
Comment by biwah — 9/23/2005 @ 8:32 am
Scott, I think I understand your point: none of us can marry within our gender. but that’s favoring the general over the specific. That’s why I use the “John & Sara” example. It’s about specific applications of the legal rule, not abstraction.
If there a constitutional basis for this?
1. Article III charges the courts with hearing “cases and controversies”, which has been held to mean only actual, not potential cases and controversies. There is a grey area, but suffice to say that if a Brown-like claim had been made by a black person in New Hampshire based on the potential inability to attend schools in a certain group of Southern states, that would be much weaker than John Johnson, a black resident of Southtown, AL, bringing a claim because just last week he actually attempted to attend Central School down the street and was actually denied access.
Thus, a claim on the same-sex marriage issue would probably be brought based on a situation involving a specific situation, and the comparative ability of a specific person to marry “Jim”, rather than a general claim for the right to marry a person of opposite gender.
2. Your argument (as I construe it) relies on a “separate but equal” argument. Speaking of Brown, this isn’t going to hold much water, precisely because it is a specious defense of discrimination.
Comment by biwah — 9/23/2005 @ 8:50 am
Disparate impact vs. disparate treatment is what’s at issue here.
In many situations, disparate impact is not enough to ground a discrimination claim, even in racial discrimination cases, which are treated with higher constitutional scrutiny than (1) sex discrimination (intermediate scrutiny) or (2) sexual orientation discrimination (rational basis).
Discuss.
Comment by Angry Clam — 9/23/2005 @ 8:56 am
Actus is right on this (and that was extremely hard to say.) I think that society’s biggest problem with gays is the perceived promiscuousness of the gay lifestyle. If they were allowed to enter into committed monogamous relationships like the rest of us, that perception would soften. Most of the benefits that Daffyd attributes to heterosexual marriage, would also benefit the gay couple in a homosexual marriage.
I also agree with Patterico. I don’t see how gay marriage affects heterosexual marriage at all. If my brother (who is gay) is allowed to marry, does that have any effect at all on my decision to marry my wife? I would not be any more inclined to marry another man just because it is allowed. And my brother would not be any more inclined to marry a woman just because he is not allowed to marry a man.
Comment by CPAguy — 9/23/2005 @ 8:58 am
I say it’s irrelevant. The disparate treatment is facially obvious. Such analysis would become necessary, for example, if the law prohibited men from marrying anyone whose name started with T, and 90% of those whose names started with T happened to be men.
No such confusion here. The law says “gender”. It’s basing its treatment on gender.
An aside, responding to Dafydd’s assertion that marriage is merely society’s “seal of approval” on, well, marriage. That’s incorrect, in the context of the law that is at issue here. Marriage, as defined by the law, is the government’s “seal of approval”. It is neither merely societal, nor merely symbolic.
Comment by biwah — 9/23/2005 @ 9:04 am
But the evidence suggests otherwise. Survey finds people do choose gay behavior
And we have the experience of the ancient Greeks as well - acceptance of the behavior by society led to more of the behavior. Or it modified their DNA. Take your pick.
But in the end (no pun intended), marriage is definitional. Calling a same-sex coupling a “marriage” would be like calling three people a “couple.” Same-sex relationships and opposite-sex relationships are fundamentally different. Calling them the same word would just be a lie. The state is under no obligation to lie and call them the same.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 9:20 am
So, in other words, “just because”…?
Comment by biwah — 9/23/2005 @ 9:22 am
CPAguy says:
But they are allowed, right now. They can even have a great big church wedding if they want to. That’s not the issue. The issue is official recognition of different types of relationships by the state.
But there are many different types of relationships the state doesn’t recognize. We’re not obligated to recognize all types because we recognize one that is of unique benefit to society.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 9:25 am
Editors, regarding the survey you linked:
The original headline reads:
Survey Finds More Women Try Bisexuality
The right-wing version:
Survey finds people do choose gay behavior
And, the not-so-subtext of it’s use in The Editors’ comment above:
People are gay only gay by choice and because society allow them to be
This is exactly the kind of spin that our observant host continually lambasts the MSM for.
When society clamps down on certain behavior, people who are not strongly inclined to engage in it, probably won’t. Those who are intrinsically oriented toward it, may be deterred, or they may not. Either way, that doesn’t change who they are, just what they permit themselves to do, and whether they report it.
Which sends your argument back to the drawing board, hopefully for some relevant data.
Comment by biwah — 9/23/2005 @ 9:34 am
Nice spin, biwah, but your argument is not supported by the study.
The survey found that more people are choosing to engage in homosexual behavior, there’s not any spin in the title of the blog post.
Men are by nature promiscuous. Marriage clamps down on that behavior. That doesn’t change who they are, just what they permit themselves to do.
Clamping down on natural human proclivities is what civilization is all about. *L*
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 10:04 am
“Clamping down on natural human proclivities is what civilization is all about. *L* ”
Deciding which ones to clamp down is whta civilization is about. Lest we come to the conclusion that the most oppressive and unnatural regimes are the most civilized.
Comment by actus — 9/23/2005 @ 10:06 am
Patterico:
I can’t see how they wouldn’t. Either traditional marriage is sancrosanct, or it isn’t. If it can/should be redefined to accommodate gays, what’s to stop it from being redefined to accommodate everyone else, including those whose perceived personal “needs” are better suited to quickie divorce. Yes, I know we already have quickie divorce, but we shouldn’t, and I suspect that if we didn’t, far fewer gays would want marriage as long as civil unions, domestic partnerships or some other viable marriage substitute is available.
Comment by Xrlq — 9/23/2005 @ 10:15 am
I say it’s irrelevant. The disparate treatment is facially obvious. Such analysis would become necessary, for example, if the law prohibited men from marrying anyone whose name started with T, and 90% of those whose names started with T happened to be men.
You’re incorrect, biwah.
The classification at issue here is homosexual vs. heterosexual. This, incidentally, merits only the most deferential standard of review (rational basis), where the people challenging the law must show that there is no way that the law is rationally related to any legitimate government interest. Note the word “any” - the actual intent of the law may, in fact, be discriminatory, but as long as there is a plausible, even if post hoc, justification, the law will be upheld.
The argument is that limiting marriage to unions between one man and one woman is discriminatory against homosexuals. The counter, as was most recently argued in the Court of Appeal by the Attorney General of California in defending California’s ban on gay marriage from constitutional attack by the San Francisco government, is that the law is not discriminatory on that basis, as homosexuals have equal access to marriage as heterosexuals- they just receive less benefit from it.
That’s classic disparate impact- marriage is equally available to all people regardless of sexual orientation; only the resulting benefits are lessened.
Where the distinction between disparate impact and disparate treatment may become important is if some court should recognize homosexuality as a constitutionally suspect class- something which, remember, the Supreme Court did not do in Lawrence v. Texas or Romer v. Evans, the two most recent gay rights cases. In such an event, the nature of the government action- treatment vs. impact, will become crucial to whether the law will be upheld.
Thus, it is very much relevant.
Comment by Angry Clam — 9/23/2005 @ 10:21 am
“I don’t think that, for heterosexuals, the availability of marriage to homosexuals plays any part in the calculus of whether they get married, or whether they stay married. ”
Patterico, I agree with you completely. The desire to pair off is very, very strong. There were marriages long before there was government; I’m sure of that. Marriage will survive whatever laws we write.
Comment by Bostonian — 9/23/2005 @ 10:23 am
Editors: Not to bother you with specifics, but the article concludes this:
More women — particularly those in their late teens and 20s — are experimenting with bisexuality or at least feel more comfortable reporting same-sex encounters.
The conclusion you boldly report based on this article may be within the ballpark of honesty, but it extracts a broad conclusion from a very narrow survey. Anecdotally, I will tell you that approximately college-age women do the most experimenting with same-sex fooling around, where they later shed that behavior to live straight lives. So even taking the survey at face value, you’re cherry-picking.
There is much evidence to the exact contrary of what you are trying to show. Frankly, the notion that homosexuality is wholly chosen and “reversible” is laughable if you have any personal experience with gay people.
Xrlq:
So, in other words, we shouldn’t squander such a stabilizing, commitment-inducing social institution on gays, because you suspect they wouldn’t make good use of it?
The suspicions of certain “observers” circa Brown that black children had insufficient capacity to make use of public schools, and that the quality of white children’s education would be degraded by such limitations, didn’t change the outcome invalidating institutional bigotry. Should it have?
Comment by biwah — 9/23/2005 @ 10:23 am
Angry Clam:
Disparate impact cases have thus far been where the law was silent on suspect classifications. Defense of marriage laws, as I understand them to be written, contain facial distinctions based on gender, and any inquiries into legislative intent would confirm their gender-discriminating purpose.
Strictly speaking, same-sex marriage is not about homosexuality or gay sex. The law does not equate marriage with sex, love, intimacy etc. It is about, and can only be structured, based on gender.
Which underscores the point that people have said they oppose gay marriage for a number of substantive or pseudo-substantive reasons, but ultimately it hinges completely on the gender of the participants.
Comment by biwah — 9/23/2005 @ 10:32 am
It is too tempting to post consecutive comments. Apologies for the mess.
Angry Clam, your “marriage is available to all” assertion has the same vague circumspection of separate as arguments for separate-but equal, i.e. “education is still available to all”. When it comes down to specific cases, in the matter of marrying a certain person of a certain gender, the state is saying no to one person and yes another, based on gender.
Comment by biwah — 9/23/2005 @ 10:37 am
actus is wrong, or at least missing the point.
The point you’re missing is that its not simply “marrying who you want.” But finding a partner that gets into a situation where for everything but their same-sexness, they would be able to marry.
Which is no different from finding a partner where for everything but their age, or the fact that they’re already married, you could marry them.
If you really need government sanction before you can engage in a long term monogamous relationship with another person, you’ve got problems that aren’t going to be fixed by the government deciding you can get “married”.
If you want society’s approval, well, live a good life, and don’t wrry about those who don’t value you (because there will always be those who don’t value you, no matter who you are, no matter what you do. Deal with it).
Comment by Greg D — 9/23/2005 @ 10:42 am
biwah,
Since I have never said that homosexuality is wholly chosen, I’m not sure what your point is.
No, it is saying the sexual union of a man and a woman is different from other types of relationships, which it is.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 10:46 am
“Which is no different from finding a partner where for everything but their age, or the fact that they’re already married, you could marry them.”
On those situations, there are ways to fix the impediment: Wait till they grow up, or have the first person get divorced. Not so with the prohibition on same sex marriage.
“If you really need government sanction before you can engage in a long term monogamous relationship with another person, you’ve got problems that aren’t going to be fixed by the government deciding you can get “married”.”
The problem with this argument is that it argues equally against hetero as well as homo marriage.
Comment by actus — 9/23/2005 @ 10:47 am
Patterico,
Society benefits, in the main, from heterosexual marriage. Children are raised better because of it, and without them, we have no future.
So soceity rewards the people who create those relationships.
How does homosexual marriage benefit society?
Is it goign to bring more children into the world, and put them in loving, caring, 20+ year families that give them the stability they need? If you yoke two gay men together, will they civilize each other the way that happens when you yoke together a man and a woman?
If, in the agregate, society doesn’t benefit from homosexual marriage the way it does from heterosexual marriage, then why should it grant to homoexual couples the benefits it gives to heterosexual couples? What are they doing to earn those benefits?
To the extent that there is choice involved (and certainly there is among bisexuals), shouldn’t society be encouraging people to go the route that benefits society the most?
I know more polyamorous people than I know homosexual people. If it’s wrong to keep gays from getting married, on what grounds do you forbide polygamy? Or do you think we shoudl ahve that, too?
Comment by Greg D — 9/23/2005 @ 10:53 am
Greg, you said: ‘Society benefits, in the main, from heterosexual marriage. Children are raised better because of it, and without them, we have no future.
So soceity rewards the people who create those relationships.
How does homosexual marriage benefit society?’
You are actually arguing against having gays in our society. But that is not the question. We will always have gays in society. The question is whether society will be better off if they are allowed to marry or not. I think society is better off allowing marriage. Why else would we be encouraging heterosexual marriage?
Comment by CPAguy — 9/23/2005 @ 11:28 am
“Is it goign to bring more children into the world, and put them in loving, caring, 20+ year families that give them the stability they need”
I don’t know about brinigng more children into the world, but I do suspect that most gay marriages want to adopt. And more adoptions into loving, caring 20+ year families are a good thing.
Comment by actus — 9/23/2005 @ 11:34 am
More children growing up with both a mother and a father is a good thing.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 11:47 am
Greg D, of the various arguments from the right, I think the slippery slope argument is one of the more valid. If you open this can of worms, there is no way to reclose it. More kinds of relationships will gain legitimacy and (probably, eventually) demand legal recognition. Polygamy is an obvious one. (And frankly, what is the rational argument against polygamy again?)
But that is not to say the line cannot be maintained as further issues arise. It is not a reason to shut the door on a live, current controversy.
One distinction is that, as I have argued, same-sex marriage discriminates on the gender of the person one seeks to marry (or, alternatively, one’s own gender in relation to a given mate), and should be subjected to elevated constitutional scrutiny. Polygamy restrictions under constitutional precedent would get a free pass.
The purpose of laws is not to construct reality, but to respond to it. I thought that, as a matter of government, implementing “good ideas” to the detriment of individuals’ freedoms is a liberal M.O., remember? Or maybe not…
Editors: Clarification noted. You acknowledge the existence of the proclivities, but think gov’t should suppress them/not reward them. At the beginning of #11, you seem to be arguing that homosexuality is a matter of choice, but as you have clarified, you were not.
I disagree with the argument that homosexuality can or should be corralled into a legal grey area for the benefit of society. The government should not offer you benefits and protections based on the gender of the person with whom you decide to enter a permanent intimate partnership. The “but think of the children” argument is extremely disingenuous. However, this is where differing opinions are least likely to change. So be it.
Comment by biwah — 9/23/2005 @ 11:51 am
So now simply saying that children ought to have a mother and a father is “disingenuous”? How utterly foolish.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 12:43 pm
“More children growing up with both a mother and a father is a good thing. ”
Of course. Lots of things are godd things. More children having rich parents is a good thing. More children who have acces too education and health care and are not in child poverty are a good thing too.
On the adoption front, there’s plenty of children to be adopted, and not enough families to go around. More loving adoptive families, more good thing.
Comment by actus — 9/23/2005 @ 12:59 pm
Sex, sex sex!
Goddamn it, it’s talking about sex classifications, not gender classifications! Even if you buy into the postmodernist “gender is not the same as sex” theory, the law is still about sex classifications. Gender is not simply a more polite or more PC term for sex, stop mangling the language.
And you’re incorrect about the separate-but-equal in education law- the entire point was that the education being provided to blacks in segregated schools was not equal to that being provided to whites, and that this was by design, such as through funding, staffing, and the like.
To take your education analogy, compare the current complaints that education is being “re-segregated” due to white flight, the inabilitiy of urban areas to maintain a tax base sufficient to support the same schools as wealthy suburban areas, etc. This is the situation that we’re faced with in our marriage laws- because of circumstances (sexual orientation, location of birth) some people don’t derive the same benefit of the law as others do. It isn’t the same thing as the old de jure segregation, and your analogy between segregation and marriage laws fails.
Furthermore, your later explanations expose a critical flaw in your reasoning- your focus on the sex of more than one person. Constitutional protections only attach to an individual, not to a couple. Marriage restrictions based on the sex of the proposed partner do not amount to laws discriminating against the person themselves.
Comment by Angry Clam — 9/23/2005 @ 1:05 pm
The world is crazy. A great many children are growing up in neglectful, abusive, dangerous, and/or otherwise shitty environments. Their welfare is NOT given high priority by our culture or our government. And it has nothing to do with homosexuality. We need to focus on the real issues, not some stalking horse du jour. I know it’s a great political trump card and all, but let’s be real.
Are mothers and fathers good? Certainly, but not universally. Some are bad. We all know about the divorce culture among straight families. I would guess that gay families will do better on that score, at least initially. In any case, shutting out willing foster parents of any orientation is a very bad idea. Your ideas about how things ought to be just offer more of the same.
I share your concern as far as, in general, single-parent families. In that scenario, the handicaps against children’s welfare are pretty staggering and well documented. And the problem is traceable to someone’s, mostly the absent dads’ behavior.
But gay couples are no more about indoctrinating children in harmful viewpoints or exposing them to any type of danger than are straight couples, and should be permitted to parent. Our shortage is not of children, but of good homes.
Comment by biwah — 9/23/2005 @ 1:06 pm
Angry Clam,
You misunderstand my use of the term gender. I actually mean gender. I acknowledge that my grammar is frequently mangled, but in this case my usage was traditional, not postmodern.
I think I explained that here:
sure, there are two alternative ways to portray the discrimination, but standing in either party’s shoes, they do not have equal protection of the laws as another individual would have standing in their shoes (aka similarly situated).
i.e. John wants to marry Jim but can’t. Jane wants to marry Jim…and can.
Comment by biwah — 9/23/2005 @ 1:13 pm
Strawman. No one argued otherwise. Gay couples do, however, deny the child either a mother or a father by definition.
Jane wants to marry Jim, and can. Joan wants to marry Bob, but can’t, because Bob is already married, or under the age of consent, or Joan’s brother…
Equality under the law means the same limitations apply to each individual, not that there are no limitations. The same limitations for marriage apply to every individual in America right now - any individual can marry a single person, of the opposite sex, not a blood relative, not a minor.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 3:01 pm
The drive of every specie is to reproduce and sustain itseslf. The state interest in marriage is to create the best enviroment for this to take place. Marriage is western civilisations answer to this need. What happens when marriage is not central to a segment of society is witnessed in what we have seen in New Oleans. The claim that current ban on gay mariage is unconstitutional is silly,as if the Founders didn’t know what they were about and,moreover, to pretend that societal norms embedded for thousands of years can be altered at the whim of appointed judges and be accepted is equally silly. Has Roe proven nothing?
The claim that two persons of the same sex are as ideal as two persons of the opposite sex to serve as parents is made, in the main, by people who are hardwired to be neither. They have every right to be happy but society is not responsible for their condition and we have no obligation to alter the basis for human civilisation to accomodate their desires.
Comment by kent — 9/23/2005 @ 3:12 pm
“Equality under the law means the same limitations apply to each individual, not that there are no limitations. The same limitations for marriage apply to every individual in America right now - any individual can marry a single person, of the opposite sex, not a blood relative, not a minor.”
This is the sort of logic that gives us anti-miscegenation laws.
Comment by actus — 9/23/2005 @ 3:19 pm
Complete nonsense. There’s no analogy between race and sex. I don’t think you really believe so either. For example, I presume you’d be outraged to see a public building with separate “white” and “non-white” restrooms. I presume you do not exhibit the same level of outrage when you see “men” and “women” on the restroom doors in a public building.
Sex is integral to the institution of marriage. Race has nothing to do with marriage. I know a great number of people who date and/or marry a person of a different race. It’s a common occurrence. I haven’t ever met anyone who doesn’t care what sex their spouse is. Never.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 3:32 pm
” Complete nonsense. There’s no analogy between race and sex. ”
Actuall the analogy is in the example you provided. lets think about it:
‘Equality under the law means the same limitations apply to each individual, not that there are no limitations.The same limitations for marriage apply to every individual in America right now - any individual can marry a single person, of the opposite sex, not a blood relative, not a minor.’
Change to to “the same limitations for marriage apply to every individual in american: any individual can marry a single person of their own race.” Blacks and whites are ‘equally’ denied the right to marry outside of their race.
An unsatisfactory result. Which is the point: its an unsatisfactory system we have now, which is why we will end up with gay marriage. And those who rail against it will be the bull conors and roger taneys of our time.
Comment by actus — 9/23/2005 @ 3:40 pm
Repeating the same idiotic non-analogy won’t make it true, actus.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 4:23 pm
Editors, you are taking th equal protection discussion in circles.
Jane wants to marry Jim, and can.
okay…
Joan wants to marry Bob, but can’t, because Bob is already married,
rational basis…
or under the age of consent,
rational basis…
or Joan’s brother…
rational basis.
to recap the earlier scenario:
John wants to marry [unmarried, of-age, nonrelative] Jim but can’t [where a similarly situated woman could].
Intermediate scrutiny!
Relation to separate-but equal (Brown) and anti-miscegenation (Loving).
The fallacy in each case:
Brown: Whites have White schools, Blacks have Black schools, the law is facially evenhanded, no EP violation.
Loving (I only know the broad outlines of this case): Whites can marry within race, Blacks can marry within race, the rule is facially evenhanded, no violation of fundamental rights. Note: the anti-race-mixing state interest did not pass muster.
SSM: Men can marry women, women can marry men, thus each can marry the opposite, the law is facially evenhanded, no EP violation.
The analysis of each:
Brown: White schools and Black schools are qualitatively different, thus not equal from the point of view of a participant, the state may not limit any participant’s choice based on race.
Loving: Marriage is a fundamental right, which may not be regulated on the basis of race.
SSM: Men and women are qualitatively different, thus not equal from the point of view of a participant. The state may not limit any participant’s choice based on gender. Also, because marriage is a fundamental right, any denial of it must pass strict scrutiny.
Race and gender. You cite the bathroom example. It’s so obvious, right? Except for this: bathrooms aren’t people. If women’s bathrooms were qualitatively worse than men’s bathrooms, they could sue. Now, with a life partner, compared to the one you want, everyonce else is inferior (at least, that’s the idea). Thus, unequal.
Often stated, never explained.
You’ve already disclaimed the notion that people are gay by choice, so how do you get the idea that gay suppression will make more mothers and fathers? Unless you are counting the extra unwilling parents with a little secret, whose repression will NOT be a boon to their children.
So, How does one more gay couple mean one less straight one? Are you trying to pin the lack of two-parent families on homosexuals, like Kent? Or is it just the general halo of legitimacy surrounding marriage? You’ve also disclaimed the idea that gays couples have a corrupting influence on children. Why then would you cordon off marriage from a strong, reponsible couple who can get the job done, with or without the sanctity of which people have been so defensive.
Sanctity my foot. It’s only as good as the people that make it up.
Comment by biwah — 9/23/2005 @ 4:35 pm
Throwing in a bunch of irrelevant legal references is not particularly useful. Race and gender are not analogous. The law doesn’t treat them the same. The law should not treat them the same.
Thank you so much for clearing that up.
So presumably if the “whites only” and “non-white” restrooms were qualitatively the same, you would have no problem with there being separate facilities? (presuming you aren’t outraged by the sight of restrooms segregated by gender) Your reaction to gender-segregated and race-segregated facilities would be identical? I feel safe in assuming that would not be the typical response among the American population.
I said, “Gay couples do, however, deny the child either a mother or a father by definition.” How this simple and straighforward statement elicited your strange reply only you can know.
But my statement was not complicated - A male-male couple raising a child means that child is denied a mother. A female-female couple raising a child means that child is denied a father. Perhaps you’re being deliberately obtuse?
They cannot get the job of giving a child a mother and a father done.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 5:53 pm
I recently attended a very interesting talk by Sir MacFarland (a leader in control theory). One point he made was that there is a complementary aspect of learning from our environment. For example, our language reflects our societies and out senses are adapted to our physical world.
He also made the point that we cannot train a robot with a set of rules effeciently–there must be some aspect of empirical learning. For example, a gnoat with 150 neurons is more maneuverable than an F-16 (his example).
Marriage is also a complementary adaptation of society to biology.
So, some questions should be asked and answered by those who would prefer a top-down adjustment to this arrangement.
I’ll just leave it at that for now well we ponder the great successes of other top-down programs such as Socialism.
Comment by Paul Deignan — 9/23/2005 @ 6:10 pm
Yes, I got your point:
I’m not sure where you are finding the inconsistency. There is a good reason for having separate but equal bathrooms by gender. Not so with race. But the equal part still has to be observed to the extent possible/practical. Make sense?
Moreover, the contrast between bathrooms and homo sapiens was not thrown in to be cute. Where marriage is concerned, different = unequal per se. There is no analog for the bathroom, where some third party can provide an equivalent substitute for the person you wish to spend your life with.
I like “Mom and Dad” too. But “Mom and Dad” is only as good as mom and dad are. There is a need for good parents, and M&D have largely been a disappointment of late. If M&D is the be-all and end-all as an institution, you can’t see the possibilities otherwise. Our society is hampered by bigotry, and bigotry has always come in the guise of tradition. We have prouder traditions than that.
Comment by biwah — 9/23/2005 @ 6:42 pm
“Repeating the same idiotic non-analogy won’t make it true, actus. ”
Its not quite a ‘non analogy’ it was actually advanced as an argument when the supreme court overturned anti-miscegenation laws.
I mean, for chrissakes you actually think its analagous to male and female bathrooms?
“They cannot get the job of giving a child a mother and a father done.”
Lots of people don’t.
Comment by actus — 9/23/2005 @ 6:57 pm
That’s an acknowledgment that race and gender are not analogous. Thank you. I’ve met many people in inter-racial relationships, too many to count. I’ve never met anyone who didn’t care what gender their mate is. Have you? That’s because gender is central to human relationships, while race is not. There’s no comparison at all.
Treating things that are not the same differently makes perfect sense. Same-sex relionships and opposite-sex relationships are fundamentally different. There’s nothing wrong with society’s laws acknowledging that reality.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 7:46 pm
It isn’t an analogy at all. Race has nothing to do with the marriage relationship. Sex is central to the marriage relationship.
Comment by The Editors, American Federalist Journal — 9/23/2005 @ 7:54 pm
“Have you? That’s because gender is central to human relationships, while race is not.”
And so you want to define away one kind of relationship. Something so ‘central.’
Comment by actus — 9/23/2005 @ 7:56 pm
Intersting comments. I may be trying to simplify matters here, but, it does appear that the argument can be boiled down to spousal rights and thus the definition of who qualifies to be a spouse. Are spouses to be of different sex or can spouses be same sex? I think the whole argument could be nulified if we all agreed that a spouse could be the same sex as the other spouse. Unfortunately in order to have a spuse you must be married. Seems simple enough to fix, just refer to each other as a spouse and forget husband and wife.
Comment by Bobonthebellbuoy — 9/23/2005 @ 8:00 pm
Intersting comments. I may be trying to simplify matters here, but, it does appear that the argument can be boiled down to spousal rights and thus the definition of who qualifies to be a spouse. Are spouses to be of different sex or can spouses be same sex? I think the whole argument could be nulified if we all agreed that a spouse could be the same sex as the other spouse. Unfortunately in order to have a spouse you must be married. Seems simple enough to fix, just refer to each other as a spouse and forget husband and wife.
I do however, hold a lot of sympathy to people who consider having a marriage to mean seperate sexes committing to each other while same sex couples making the same commitment as being entirely different than marriage. Marriage is kind of a minefield where different viewpoints challenge the legitimacy of the label (or lack thereof). It’s a quandry that reveals ones bias but does not make such a bias central to the argument. Heterosexual communion is not the same as homosexual communion, so lets forget the sex and just agree on a definition of spouse.
Comment by Bobonthebellbuoy — 9/23/2005 @ 8:11 pm
PS: sorry about the double post. Give someone two buttons and the wrong button will be pushed.
Comment by Bobonthebellbuoy — 9/23/2005 @ 8:27 pm
http://www.nationalreview.com/kurtz/kurtz200406030910.asp
here is a great article highlighting what happens when gay marriage is legalized.
some people may say that gay marriage will have no effect on the institution itself, while in the netherlands marriage has fallen by the wayside almost completely. i think what people here are failing to realize is that traditional marriage is the cornerstone of western civilization, which leftists want to destroy. so what better way to destroy a civilization than by taking out the most important piece to its foundation?
if gay marriage is allowed, liberalism will have won and you can kiss the last 2000 years goodbye.
Comment by Snuggles — 9/23/2005 @ 10:22 pm
All the reasons used to justify gay-marriage here could be used verbatim to justify polygamy (among mutually consenting adults, of course). After all, if 3 women want to get married, who is the government to tell them no? What are they supposed to do, draw straws?
The same pro-gay-marriage arguments can also be used to justify a gay-incestous (eg, 2 brothers) marriage.
And if you believe that polygamy and some incestous marriage is ok, I doubt somebody will convince you that gay marriage is wrong.
Comment by Mike — 9/23/2005 @ 11:03 pm
The Mythical Three
Patterico was kind enough to link my Lizard’s Tongue column “the Great Civilizer” over on Patterico’s Pontifications; in the lively (and very legalistic!) discussion in the comments page, I noticed three great myths about same-sex marriage cropping…
Trackback by Big Lizards — 9/24/2005 @ 3:57 am
Hello, all.
I will continue with arguments against same-sex marriage later, in future Lizard’s Tongue columns. But for now, I have responded to three myths cited repeatedly by proponents of same-sex marriage — and in this very comment thread — over on Big Lizards.
Comments are open, as always; or else respond on your own blogs (those of you who operate blogs) and leave me a trackback.
Thanks! And thanks to Patterico, who I know disagrees with my column, for nevertheless linking it from here, one of my three favorite blogs.
(One of the other two is Power Line, and the third isn’t.)
Dafydd
Comment by Dafydd — 9/24/2005 @ 4:04 am
Mike,
Read again. On the constitutional equal protection issues, SSM is on completely different footing than polygamy, and that analysis is likely to be employed if it is addressed by the courts.
Most of the reasons used to prop up “traditional” marriage could be used to justify polygamy. More children, stable homes, tradition - the history of polygamy is longer. What’s that you say, things have changed?
It is mistaken to assume that the present is the apex of culture and history.
Comment by biwah — 9/24/2005 @ 5:52 am
I think the argument that if heterosexual marriage is a stabilizing influence on society, then homosexual “marriage” must be as well, is erroneous; it assumes that homosexual relationships, if monogamous, are somehow just as “good” as monogamous heterosexual ones.
I disagree. By legalizing only monogamous heterosexual marriage among two people, we are saying that, as a society, a marriage between one man and one woman is a preferable societal arrangement than a polygamous marriage; it has long been a settled issue, as the Mormon Church discovered, that we will not allow plural marriage to enjoy the same status as monogamous marriage, and will, if the polygamists attempt to legalize it, prosecute them under the law.
Same sex “marriage” is in a similar situation; if two people of the same sex managed to secure a marriage license (save in Massachusetts) because some idiotic court clerk didn’t notice who was in front of him, and got a minister to sign it, they’d be committing the same sort of fraudulent action that the polygamists in Utah have been wont to try . . . and for which a few have wound up in jail.
I would suggest that we have reached a decent equilibrium: we don’t prosecute people living together outside of wedlock, but we also don’t give them the legal advantages for choosing to do so. We also don’t prosecute homosexuals for having sex (and even the prosecution that led to Lawrence v Texas was forced), and we wouldn’t prosecute a plural cohabitation as polygamy if the participants didn’t try to scam the bigamy laws.
In other words, we don’t reward those who choose to live in relationships society does not favor, but we don’t punish them, either. That seems reasonable to me!
Society certainly does have a right to favor or disfavor certain actions. It is difficult to see how being nude in public actually harms anyone else, but we still hold it to be illegal, and prosecute it other than in certain, rstricted venues. That is a democratic choice we have taken, and it is a reasonable one. If a man chose, for some reason, to use the women’s public restroom, he isn’t actually causing some harm to anyone else, but we’d still find his actions too disruptive to civilized society, and we’d find some statute under which to charge him.
Society takes choices, and society has a right to take such choices.
Comment by Dana R. Pico — 9/24/2005 @ 7:30 am
actus,
I don’t know what you mean by that. I don’t define marriage. Civilization has defined it for thousands of years. And you dodged the question.
Comment by The Editors, American Federalist Journal — 9/24/2005 @ 8:17 am
Dana and other have asserted that traditional marriage serves society and gay marriage does not. The most common argument is that since there are no offspring to protect, gays do not deserve the same level of protection.
To me, that’s an open question, and must be balanced by the exclusion. Society DOES benefit: it benefits from childless married heterosexual couples in reduced crime rates, improved financial security and general all-around stability and willingness to protect social order. Any marriage tends to bring these as it increases the investment people have in their society. I cannot see how including gays would be different.
Is the more limited nature of gay marriage (corresponding to childless heterosexual marriage) so different as to justify blanket exclusion? I’m pretty sure that any such exclusion would be roundly denounced if it applied to infertile heterosexuals. To me, any purely secular argument against gay marriage must somehow differeniate these cases.
Dafydd hasn’t done it. Like most “secular” arguments he resorts to historical arguments that are fundamentally not secular. Rather like claiming that the Southern “grandfather clauses” were race-neutral: the history is as it is for a reason.
So, today, here, now, in a vacuum: Why are infertile heterosexuals entitled to marriage licences and (mutually) infertile gays not? “Ick” is not an answer.
Comment by Kevin Murphy — 9/24/2005 @ 8:26 am
Oh, any I’d really like to hear why xrlq thinks that marriage-lite cohabitation agreements ought to be recognized by the state and given any of the benefits of marriage? Isn’t doing THAT an attack on the institution of marriage as much as quickie divorce?
How is it an attack on an institution when people DEMAND to be included in it, and refuse all substitutes?
Comment by Kevin Murphy — 9/24/2005 @ 8:32 am
biwah (#56) said “On the constitutional equal protection issues, SSM is on completely different footing than polygamy”
The U.S. Constitution makes no mention of marriage. They are on exactly the same footing there.
You’re talking about 2 women marrying each other vs. 3 women. The constitution won’t help you splt those hairs.
My comment didn’t make any judgement on any particular marriage arrangement. I’m just pointing out that if we legalize gay-marriage, we will have to legalize other marriages too (including polygamy, and gay-incest).
Comment by Mike — 9/24/2005 @ 8:43 am
Mr. Murphy writes:
Since we grant marriage licenses to people before they marry, we have no way to know that a couple is going to be infertile during marriage.
However, I’d argue that ick really is an answer. Society has preferences; that’s part of civilization. If a large part of socoety thinks it’s ick, then society in a democratic nation has a perfect right to say that the ick will not be accorded the same status as preferred institutions.
Comment by Dana R. Pico — 9/24/2005 @ 8:57 am
We know for a fact every gay couple is “infertile.” As a rule, heterosexual couples have the potential to reproduce. It’s not practically feasible to test each couple for fertility before issuing a marriage license. We’re under no obligation to make rules based on the exceptions.
The heterosexual union and the homosexual union are inherently different, not just in terms of fertility. There’s nothing wrong with society treating different relationships differently.
The burden is not on those who want to maintain traditional marriage to prove that same-sex marriage would harm our society. The burden is on those who want to make the radical change of redefining marriage to prove it would do no harm.
Comment by The Editors, American Federalist Journal — 9/24/2005 @ 9:04 am
“I don’t know what you mean by that. I don’t define marriage. Civilization has defined it for thousands of years. And you dodged the question.”
The question isn’t really being dodged. Sure when we designate bathrooms we segregate men and women. We treat them as separate but equal. I don’t understand why you compare public bathrooms to private marital arrangements.
And if you’re not defining marriage, then you have no problem with gay marriage.
Comment by actus — 9/24/2005 @ 9:30 am
Dana, editors:
So, since every woman over 65 (at least) is infertile, you’d bar such marriages?
Again, “ick” as an answer for something that someone ELSE is involved in is simple legislation of personal preferences. Arguments such as that are EXACTLY what 14th Amendment substantive due-process cases are built on (never mind that I don’t much care for SDP; the courts do).
How does this “preference” argument differ in the following cases: gay marriage and interracial marriage? At one time interracial marriage was banned due to a popular preference. Do you think that was Constitutional, so long as it treated all races equally?
Comment by Kevin Murphy — 9/24/2005 @ 9:49 am
The heterosexual union and the homosexual union are inherently different, not just in terms of fertility.
How, exactly. Yo keep saying that, but you never back it up. One must assume that your reasons are not strictly secular.
Comment by Kevin Murphy — 9/24/2005 @ 9:53 am
Actus (#64)- “Separate but equal” was ruled unconstitutional. The men vs. womens bathrooms is actually a great example because there is debate about how to partition space fairly when 1 gender needs longer to do their business than the other.
“Why are infertile heterosexuals entitled to marriage licences and (mutually) infertile gays not?”
Childless-heterosexual marriage (A) has a different relationship to traditional heterosexual marriage (B) than gay marriage (C). That’s because heterosexual marriage (traditionally) starts off as childless. In other words, ‘B’ was once ‘A’, but was never ‘C’; and so ‘B’ and ‘C’ have different relationships to ‘A’.
Comment by Mike — 9/24/2005 @ 9:58 am
A challenge; assume the following and then reargue:
1. That there is at least some genetic predispostion regarding sexual preference (e.g. reaction to pheromones).
Extra credit: assume that you are gay and not by choice. Why is it just for society to deny you a meaningful marriage right.
Comment by Kevin Murphy — 9/24/2005 @ 10:38 am
Mike, thanks for the link to the Constitution. If you follow it you will find, eventually, a guarantee of equal protection under the laws of the state. Some beleive this phrase has a meaning, but, inconveniently, it won’t jump off the parchment pages and smack you in the forehead.
I strongly echo Kevin at #66. It all amounts to, “just because”, “ick”, “that’s the way its always been”, and/or “because polls show that’s what the majority wants.”
This is not equal proetection under the laws. The government is giving preferential treatment to straight people by conferring the benefits of marriage on them only - discrimination. “No it’s not,” go the anti-SSM arguments in this discussion - it’s just like bathrooms (discussed at 42 & 45). Once they have to abandon that argument, the fallback is “yes they are, but:
gays are icky;
some kind of harm will befall marriage and children [that hasn't befallen them already?];
that’s the way it is;
it’s inherently different.”
No doubt cries of “strawman!” will ensue. In which case, please set me straight.
In any case, these reasons, with or without meaningful supporting evidence (so far without, except for the historical argument, which would support polygamy as well), cannot justify discrimination.
To which someone will respond, “it’s not discrimination.”
Wash, rinse, repeat…
Comment by biwah — 9/24/2005 @ 11:08 am
biwah,
How’s about heading over to the “Tell Us About Yourselves” thread? I see you haven’t left anything there . . .
Same goes for anyone else who hasn’t left something there — especially you lurkers!
Comment by Patterico — 9/24/2005 @ 11:20 am
One thing I have noticed about this thread is that it tends to get bogged down (in my opinion) in constitutional discussion. Personally, I am not a fan of solving this issue by using an expansive reading of the constitution. But that wasn’t really the point of the post. Rather, the point was: assuming that the issue is left to the voters, how do you feel about it?
I don’t *mind* if you all want to discuss the constitution, but I am personally more interested in the policy arguments.
Comment by Patterico — 9/24/2005 @ 11:28 am
actus,
We aren’t talking about private marital arrangements here. We’re discussing public arrangements, i.e. licensing by the government. Homosexuals can have private marital arrangements right now.
“And if you’re not defining marriage, then you have no problem with gay marriage.”
That’s a completely asinine reading of what I said.
Comment by The Editors, American Federalist Journal — 9/24/2005 @ 11:28 am
Thanks Patterico - I definitely will.
for now, here’s the short version:
Hi, i’m biwah and I’m a frustrated individual.
Comment by biwah — 9/24/2005 @ 11:32 am
Kevin,
Since I already indicated that actually reproducing is not the only issue, your question is irrelevant.
Re: #67, Go have sex with a man, then with a woman, and report back to us whether you think they’re identical or not. *L* You can assume anything you want, but you can’t demonstrate where I’ve made any non-secular argument. Not that I buy your implication that secular arguments are the only valid ones.
Comment by The Editors, American Federalist Journal — 9/24/2005 @ 11:34 am
So does making the speed limit 65 MPH. So what? All laws discriminate against behaviors, or in favor of other behaviors, that’s what laws do.
Comment by The Editors, American Federalist Journal — 9/24/2005 @ 11:35 am
Adjust your time frame of reference to that where this policy decision has the most influence, childhood.
Try to recall childhood–the period when your brain was forming semi-permanent structures. Patterning.
Analyze the patterns for utility and stability.
Comment by Paul Deignan — 9/24/2005 @ 12:09 pm
“Homosexuals can have private marital arrangements right now.”
I think you understand the difference in privacy between a marriage and a public bathroom.
“That’s a completely asinine reading of what I said.”
Your position on gay marriage is how you’re defining marriage. That’s that. You want to defer to other people’s definition? fine. but its still a choice you’re making.
Comment by actus — 9/24/2005 @ 12:44 pm
Here’s a thought on rights:
All children have that right to both male and female parents. That right (whatever you think of it) is a better right than the adult right to have a societal boost in their self-esteem regardless of their chosen actions.
I bet I could even find this right in the penumbra of the Constitution.
Comment by Paul Deignan — 9/24/2005 @ 1:27 pm
The inestimable Mr. Murphy writes:
So, since every woman over 65 (at least) is infertile, you’d bar such marriages?
That isn’t what I said, Mr. Murphy. I simply noted that we cannot know, in advance, that a marriage will not be fecund. Nor does that mean we can reasonably set an age limitation on marriage; a 65 year old woman is certainly past her reproductive years, but a 65 year old man may not be.
Mr. Murphy continued:
Again, “ick” as an answer for something that someone ELSE is involved in is simple legislation of personal preferences. Arguments such as that are EXACTLY what 14th Amendment substantive due-process cases are built on (never mind that I don’t much care for SDP; the courts do).
How does this “preference” argument differ in the following cases: gay marriage and interracial marriage? At one time interracial marriage was banned due to a popular preference. Do you think that was Constitutional, so long as it treated all races equally?
We have plenty of other prohibitions involved in marriage that are for the good of society: I cannot marry my sister, as an example. I’m certain that you would not view the prohibition on not being able to marry my sister as unreasonable, or a choice that society cannot take. Similarly, I cannot take a second wife (even if we assume that the lovely Mrs. Pico would not kill me first).
Well, society has taken the choice to prefer one form of marriage over others, whether you approve of society’s reasoning or not. We don’t prohibit homosexuals from living together, which is tolerance and a respect for their rights, but we are not required to presume their choices to be the societal equal of monogamous heterosexual marriage. I’d say that’s a pretty wise compromise.
Comment by Dana R. Pico — 9/24/2005 @ 2:29 pm
I think you understand that race and gender are different, and you’re dodging. I didn’t compare marriage to bathrooms, I compared race to gender. Try to keep up.
Then you referred to “private marital arrangements.” So I pointed out that we’re not discussing private arrangements here, we’re discussing public arrangements. I’m not sure whether you’re being obtuse by accident or on purpose at this point.
Comment by The Editors, American Federalist Journal — 9/24/2005 @ 2:29 pm
Certainly Mr. Murphy doesn’t believe that sex plays the same role in a marriage as a personal preference for, say, blonde hair, or brown eyes, or dark skin?
Comment by The Editors, American Federalist Journal — 9/24/2005 @ 2:35 pm
No case is being made here for gay “marriage”.
Comment by Paul Deignan — 9/24/2005 @ 3:10 pm
Sure it is. Society should not discriminate. Also, any marriage promotes stability.
Comment by Patterico — 9/24/2005 @ 3:11 pm
Nonsense.
1. Society discriminates based on physiological differences all the time. This discrimination has been recognized Constitutional by SCOTUS.
2. What discrimination is happening here? Make your case.
3. Any marriage promotes stability? How? What evidence do you have that marrying livestock promotes stability? Back in Texas, we noticed long ago that the other cows would get uppity when cowboy Clem went on his “honeymoon” LulaBell.
Comment by Paul Deignan — 9/24/2005 @ 3:18 pm
I’ve made my case in the post for why I believe that this is discrimination, and why it shouldn’t be allowed.
Comment by Patterico — 9/24/2005 @ 3:21 pm
Here is the closest that I can find to your case that there is discrimination. It is an assertion that does not stand empirical evidence. (One counterexample is all it takes–we have many).
A definition of “gay” is lacking.
The discrimination is not definied either.
How is marriage not open to homosexuals? I am not clear on that either.
Comment by Paul Deignan — 9/24/2005 @ 3:28 pm
You mentioned that you think it shouldn’t be allowed because it makes people feel bad. I can’t take this seriously, but will leave it alone until you strengthen your case. First things first.
Comment by Paul Deignan — 9/24/2005 @ 3:30 pm
We have had cases that in essence legalized sex outside of marriage as a privacy right. So I am not even clear on the linkage between sex and marriage in today’s legal context.
We do, however, have laws (in the military for example) against adultery. If anything, this is discrimination against those married. How is this consistent with the claim of discrimination by not recognizing gay “marriage”?
Comment by Paul Deignan — 9/24/2005 @ 3:41 pm
We have all heard a lot of talk about gay “marriage”. Yet, after millenia of marriage as we know it, we still do not have a good case for gay “marriage” as a right or as a desireable policy.
I am sure we will have plenty of demands for it again and again until, the hope is, we like bad parents say, “OK, whatever”. And then the next demand will begin, and then another, until we find ourselves going in circles with no anchor to stop our spinning. Already this “right” conflicts with the rights of children.
There is a way to avoid this, and it is notthrough intrasigent reactionarism. Simply make the rational case. We should accept nothing less. And, I would guess, if there is a case to be made, a well-trained legal mind can make it. If this case can be made here, that would be something.
Frankly, I am unable to make a good case for it myself, but then again, that is just me.
Comment by Paul Deignan — 9/24/2005 @ 4:04 pm
Paterico said:
Since gays do not consciously choose their sexual orientation, refusing to give them access to an institution available to heterosexuals is discrimination. The policy question is whether this discrimination is justified on a societal level.
The real rub, to me, is in this sentence right here. How in the world do you know if most, all, or any gays choose their sexual preference or not? I submit you simply don’t, and as a logical proposition your statement is invalid. As an opinion, it is perfectly fine, but you seem to state it as a fact.
Since your discrimination argument rests entirely on an assertion you can’t reasonably expect to support, it simply must fail.
I would support homosexual marriage if it were proven as a scientific fact that sexual preference is genetically determined. After all, our laws protect genetically determined conditions such as race and sex (and rightly so) from discrimination.
But let’s go off the reservation and suppose that sexual preference actually is a preference, having nothing whatever to do with a genetic driving force. If this were true, would it change your position? It would certainly have to change your argumentation substantially, since discrimination (at least in the sense you describe) would not actually be happening.
Comment by Glenn — 9/24/2005 @ 4:13 pm
Come one, surely you can offer more than that gross generalization. Society discriminates all the time. Laws discriminate; that’s what laws are for.
Comment by The Editors, American Federalist Journal — 9/24/2005 @ 5:15 pm
“Society should not discriminate.”
I was using shorthand for what I said in the post. I’m not getting into an extended debate with Paul here in the comments. The long and short of it is that I don’t see a valid reason to deny homosexuals the right to marry people to whom they are sexually attracted. I’m speaking, again, on a policy level and not as a matter of constitutional analysis.
Comment by Patterico — 9/24/2005 @ 5:24 pm
But there is no right to marry whomever you’re sexually attracted to. There never has been. I’m sexually attracted to lots of people. Do I have a right to marry all of them?
Marriage is by definition the union of a man and a woman. What’s under discussion is not whether to deny anyone some non-existent right, but whether to change the definition of marriage as it has always been understood.
Before our society so cavalierly pitches a fundamental institution of our civilization over the side, the burden is on those who want to do so to make the case for doing so. “We shouldn’t discriminate” is not nearly enough.
Comment by The Editors, American Federalist Journal — 9/24/2005 @ 5:46 pm
Patterico:
As this response is so specific to your points, it makes more sense for me to post it as a comment on PP, rather than another response-post on Big Lizards; the last post was more in the way of debunking three common myths.
You begin:
It isn’t “nonsensical;” you simply misunderstood it. I argued not that marriage was a civilizing influence but that the joining of male to female was a civilizing influence. And not only did I admit the premise that heterosexual (and homosexual) men need taming, that was in fact my starting point!
But the very existence of a heterosexual relationship itself, even absent marriage, does indeed partially civilize most men; and a trad marriage only furthers this effect. Neither of these carry over to groups of men with other men — whether sexual partners or simply buddies.
Consider this analogy. Say Joe grows up in a very fundamentalist, insular version of Judaism and is very prejudiced against gentiles. I could say that spending time with a Christian girl, particularly in a romantic relationship, can make Joe more tolerant of the beliefs of others. But that does not mean that dating another girl of the same intolerant sect of Judaism as himself will likewise broaden Joe’s horizons.
You can disagree that this accurately mirrors the male/female relationship; you can argue that men and women are essentially the same as each other. But you cannot logically say the point is “nonsensical.”
Because the proponent of change always bears that burden of proof, just as the plaintiff (the one who seeks a change to the status quo ante) bears the burden of proof in a courtroom; yes, including cases like foot-binding, clitorectomies, and racism. And in those cases, the proponents of change accepted the burden and met it.
You would be “willing to bet,” but would you be willing to research? It’s entirely possible that there is such a difference — though I haven’t seen any such studies — but that isn’t the point, either: the question is whether openly gay men in committed relationships who get married are “far less sexually promiscuous” than openly gay men in committed relationships who have to suffer along without the state recognizing their lifestyles. After all, there is no law forcing married couples (gay or straight) to live up to their marital vows; so the only enforcement mechanism attendant to marriage is social.
Clearly there is such an enforcement mechanism inherent in the institution for heterosexuals; nearly every study (they are legion — I cited only one) shows that traditionally married heterosexual couples are more stable and less promiscuous than opposite-sex unmarried cohabiting couples. If you could cough up a study showing the same was true for gay males, then you might have something. That is why I noted there are a number of countries where same-sex marriage is legal; you could also expand the search to, say, churches that will religiously marry same-sex couples (which is perfectly legal in the United States), and see whether such couples are any more stable than similar same-sex couples who do not get religously married. That isn’t exactly the same thing, but it’s close, and I would certainly accept such as evidence in favor of legalizing same-sex marriage.
But until you do manage to get hold of some actual evidence, to repeatedly claim something just because it would be convenient to your argument is to propagate a myth.
You have to understand where I’m coming from, Pat: when I was your age, I too supported same-sex marriage; and I used the same arguments you use now. I was persuaded out of this position over time by the evidence. I began researching to prove my earlier position and wound up refuting it.
It was tough, since I’m naturally libertarian, but I changed my mind. One of the turning points for me was to realize that there was no liberty interest involved: what was sought was not abolition of laws against homosexual activity (which abolition I still support, hence my support for Lawrence v. Texas), but rather society’s seal of approval. You can demand the right to be allowed to do what you want; you cannot demand that others applaud you for it.
Yes; it was the very fact that I was responding to common myths advanced by many — including several in your comments thread — and not specifically to your arguments that I chose to make it a separate post. Since this is specifically a response to you, I’m putting it here. Make sense now?
I beg your pardon? If my point is that social acceptance of homosexual relationships as the equal of heterosexual relationships will lead to more of the former, whether within marriage or without, then how can you fail to understand why expanding the definition of marriage to include same-sex couples will create more social acceptance of homosexual relationships?
Doesn’t it seem obvious to you that, say, making cocaine legal — even if only in designated areas — would lead to more people snorting coke everywhere? Or do you believe that law is of negligible or even nonexistent impact on the behavior of people in a society?
I support drug legalization; but I do not deny that it would lead to more drug use. I believe the liberty issue outweighs the negative effects… I don’t try to deny there would be any negative effects.
The distinction is between a bisexual who chooses, due to social pressure, to live a heterosexual lifestyle and one who chooses, due to wider-spread acceptance, to live a homosexual lifestyle. If it is true, as every study in the literature of sexuality represents, that gays as a group tend to be more promiscuous, and that living within the gay community amplifies this effect, then the argument about bisexuals necessarily follows.
To refute, you must show either (1) that bisexuals who live a gay lifestle within the gay community do not mirror the behavior they see as the norm all around them, or that (2) only the least promiscuous gays will want to transform their “committed” relationships into marriages. If you have evidence for either of these propositions, I’m wide open to seeing it.
This puzzles me: do you really believe that the level of social acceptance of sexual activity within one’s community has no effect at all upon one’s willingness to act on one’s “innate sex drive?” Do you believe that a sixteen year old girl is just as likely to have sex with her boyfriend if her culture expressly forbids such behavior as if her culture applauds it?
Dafydd didn’t realize he needed to spell it out: the determining factor is sociocultural acceptance. Culture is far more deterministic of behavior than any law.
Consider another example: in many inner-city communities, it is considered completely normal for an unmarried high-school girl to have one or more babies; her mother takes care of them while she’s at school. But in other communities (in other times and places), there was a terrible stigma attached to an unmarried teenaged girl having a child — not only against her alone but against her whole family.
Do you not understand that the former culture results in many more such pregnancies than the latter? How can you not understand the huge impact that cultural acceptance has on specific behaviors?
The reasoning doesn’t need masking because it is not deficient; you have simply misunderstood what I was proving. As I stated elsewhere in the piece, the point of that post was not to make the case against same-sex marriage; it was only to refute three shopworn myths that permeate such discussions.
The particular myth is that everybody’s sexual preference is determined biologically, and therefore that nobody would be any more likely to live a homosexual lifestyle if homosexuality were more culturally accepted. I am disproving an absolute. (If the argument is actually, “sure, there are bisexuals, but they represent only X%, and this is negligible and will have no impact,” then it has been very poorly expressed in this thread! If that is the argument, you can certainly see that it begs for some statistical data.)
Unless you are prepared to argue that the number of bisexuals in America is literally zero, then reasoning that such a change would affect the number of them who will live a gay lifestyle does indeed effectively rebut the claim that nobody would be so affected.
Have you ever met or heard of someone who’s been a lifelong nonsmoker, yet who nevertheless got lung cancer? Of course. And the existence of such means that other factors can cause lung cancer… and therefore that you cannot conclude that your particular smoker’s case was caused by the cigarettes.
You can only conclude that it may have been a contributing factor — based upon the statistical model.
Statistically, the lower the price of gasoline, the more people will drive; the more people drive, the more people will have accidents; and the more people have accidents, the more people will be killed in those accidents. Therefore, the lower the price of gas, the more people will die in car crashes.
Have you met or heard of one single person who blamed the low price of gasoline for the death of his or her loved one?
Nevertheless, there is a clear statistical connection — even if people do not typically realize it.
And I wuv you too, Pat… in a manly and completely unromantic way, of course… harumph!
Dafydd
Comment by Dafydd — 9/24/2005 @ 5:54 pm
Well, I take a shot at making a case for sexually indeterminate unions.
I can’t claim a right of birth since reproduction is sexual and any genetic factor that would tend towards homosexuality is a transient mutation. Mutations are random in exery respect and it would be impossible to distinguish a group without also accepting the notion of genetic determinancy and doing complete genetic screenings–what a horrible anti-democratic kettle of worms that would be.
What about pushing the idea that it is just good policy? Then, consistent with other democratic principles, I would have to expand the institution for all–anyone can “marry” anyone regardless of gender. So we just have a confusion of pairings. What would this achieve as a policy objective?
Well, the primary reason we have marriage as an institution is to launch the next generation. Society has to be self-perpetuating. If there was another objective of marriage, it is subordinate to this one for the ongoing stability of the society. Since every new citizen is intrinsically equal, society cannot create a set of citizens with second-class parenting arrangements as a matter of policy. As far as society is concerned, all children should begin life as generically equal as possible as a matter of public policy. The point is that society cannot through its hand as a matter of direct consequence create inequality.
Therefore, I cannot support multimodal marriages as a matter of public policy. The best I can do is create a nonchild rearing arrangement purely for whatever purpose pairs of individuals may want through their state legislatures, but I cannot mislabel this instituion as “marriage”. That is a seperate institution with a distinct public purpose. I will call this new institution, dualsihood(TM).
All in favor of dualsihood(TM), say aye. Hmmmm, thats not a majority.
Comment by Paul Deignan — 9/24/2005 @ 5:59 pm
Glenn said:
Well, no, actually. Discrimination (literally; the point on which a decision is taken) on the basis of sex and race is allowable in the United States; the two University of Michigan cases recently specified (sort of) how discrimination on the basis of race may be legal, and discrimination on the basis of sex is legal for many reasons. Federal law allows discrimination on the basis of sexual orientation, such as admission or retention into military service. We have other laws which allow discrimination on the basis of other genetic conditions, such as height, visual ability, hearing, manual dexterity, speaking ability, mental ability, just a whole host of things.
Comment by Dana R. Pico — 9/24/2005 @ 6:31 pm
Several, primarily our esteemed host, have attempted to make the argument that if heterosexual marriage is a stabilizing influence on society. Patterico said:
That’s a blanket statement, and I’d suggest that it lacks proof. First of all, about half of all heterosexual marriages end in divorce; it’s pretty difficult to say that those marriages promoted stability, especially since a good number of them produced children.
[Dana: you and Paul have both seized on a quick comment in which I was using shorthand for a more detailed argument. Of course not any marriage promotes stability. My comment was shorthand for the proposition that homosexual marriage quite arguably promotes stability just as much as heterosexual marriage does. -- P]
But, there is a second, and more important point. Marriage is regarded by our society and our law as a special status, something desirable for the public good as well as the individual good. When even a state as liberal as Oregon rejected same sex “marriage” in the 2004 election, despite Senator Kerry carrying the state by a large margin, it told us that a lot of liberals have a problem with the concept of same sex unions being considered as marriages.
The part that has not been considered here is what I see as a large part of the animating force behind the widespread rejection of legal same sex “marriage,” and that is the concern of married heterosexuals that including different types of unions in the definition of marriage cheapens the special status of their marriages.
Society, every society that has ever existed on earth, has considered marriage to be a special condition, something desirable for the public good. As you introduce continued variations in what is considered marriage, you downgrade that special state. People know this, instinctively, and that’s why even our most liberal areas have rejected the concept of same sex “marriage” every time they’ve been asked the question.
Comment by Dana R. Pico — 9/24/2005 @ 6:45 pm
I agree with Dafydd . SSM is not marriage, even Canada cannot prove it. But reasoned logic cannot refute the Bee editorial on the inevitability of SSM primarily because logic is not an equation within which the California legislature acts and a counter-argument against same will prove inadequate. That may make some lawyers unhappy especially those whose logical counter argument seemingly refute Dafydd. Sorry, the burden of defense is not on Dafydd.
Nor does Dafydd need to counter any alleged myth arguments which Patterico pre-supposes. Over-arching is the opinion of Mayor Newsome. That’s off-topic. But he’s wrong as well.
The myth that needs to be busted is the Volokh theory that marriage is simply just another contract between two or more individuals. He needs to wake up. No one I know arises each morning and announces, “well today, I’m going to fulfill my side of the contract.” The license may be a contract but the marriage isn’t.
Gay-marriage is not marriage.
Of course, I’m wrong, I always am.
Comment by Nanuk — 9/24/2005 @ 7:28 pm
An argument made many times above, “We make distinctions all the time,” is all well and good - we’ve heard about the 65mph speed limit, m/f bathrooms, intrafamily marriage prohibitions, military admissions, etc. But each of these exceptions to the anti-discrimination policy is backed up by a sound, obvious need, with comparatively minimal negative repercussions. Thus you end up where you started - making the policy argument.
Glenn says:
This issue keeps popping up, and Paul says he might do a 180 on the issue if only he could be assured that gays were not choosing their orientation.
Let’s retreat from science for a moment into the murkier realm of real life. Anyone here ever felt that they were choosing their sexual orientation? (to be distinguished from repressing sexual attractions for whatever reason) Chosen to be attracted to someone when, without that choice, the attraction would not have occurred? Where does this notion of choosing an attraction even find a basis in reality? It’s attraction, involuntary by nature. Are you accusing gays of a massive conspiracy to invent homosexuality? Because if homosexuality is real, it is by nature not chosen. What’s next?
I’ve also heard the line that bisexuality is evidence that homosexuality is chosen. Sexual experimentation is chosen. But the issue is attraction and love (grouped together for our purposes). If they are real, they are real. Where is the ambiguity?
Obviously, where we zero in on the sexual activity, there is choice there. But that’s not what people have been addressing, nor should it be.
What this reveals is tension over whether to punish or forgive people for being gay. That is question you should be asking yourself in private, and let gay people live as they want to live, such living including the basic option of marriage.
But as long as we’re talking about anteing up some evidence, where’s that evidence that SSM harms heterosexual marriages? It’s the core policy argument, and I’m not seeing anything more than speculation.
For example, Dafydd cites the acceptance of homosexuality as increasing total homosexuality in society and accepting promiscuity.
a. Based on the non-starting nature of the “choice” question I discussed above, it seems impossible to actually spread homosexuality. Relieve the weight of certain social sanctions, sure - let’s face it, SSM is a big slackening of any social sanction. But all you’re doing is backing off the practice of forcing/coaxing people to repress their identities.
b. Promiscuity is often the direct result of the need for anonymity, or the inability to make a relationship long-term. Obviously, SSM not only is a long-term relationship, but creates a goal, even an incentive, for all long-term relationships to succeed. Discrimination is creating a huge closet, and now you are accusing those who are forced to be covert, at risk to their own (and public) health and emotional well-being, of wishing those undesirable circumstances on themelves.
c. The drug control analogy is rich. What happens when you force drugs underground? People get poisoned, OD (participants’ incentive is to cheat), and addicts are cordoned off from mainstream society (no incentive to follow the rules of morality/decency). Big costs result.
What happens when you keep homosexual relationships underground (no chance of legitimization)? Less incentive to keep legitimate LT relationship (marriage means you don’t back out over one disagreement or mishap), closeted atmosphere, transient/one-night relationships, disease, emotional isolation (all reflecting a detachment from overall mores of society).
There will probably be some quibbles with the above. But think about it. Mainstream society is so used to thinking of open homosexuality as alien, that it’s hard to realize just how integrated and vanilla gay society could be.
Of course, that’s what many people are afraid of. And that’s where fear is just fear, discrimination just discrimination, any pretense of sound policy aside.
Comment by biwah — 9/24/2005 @ 8:00 pm
Dana wrote:
Indeed.
My point was (although I apparently failed to articulate it well) that Paterico’s definition of a failure to recognize homosexual marriage as discrimination rests on an unproven assumption.
If homosexuality is simply a preference, it makes perfect sense for society to see it as aberant or undesirable and not worthy of sanction. Of course, we could also decide that it was unworthy of sanction even if it were genetic - i.e. we could decide it was an undesirable genetic trait, but that would be pretty hard to defend given existing law.
But from the standpoint of comparing homosexual marriage as a condition that aught to be protected in law, it would seem to require a genetic mandate to elevate it to the level of sex or race as being worthy of protection against discrimination.
Comment by Glenn — 9/24/2005 @ 8:12 pm
Biwah (#70) -
I’ve been saying Gay + polygamous marriage are in the same legal category. You say they’re not, but refuse to refute it. Instead you digress to make comparisons between gay + traditional marriage.
Please explain why how Gay marriage is legally different from Polygamous marriage.
Kevin (#69) - it would be interesting to repeat the same excercise for polygamy too. I’m interested to see what you come up with.
All the talk like “Society should not discriminate” (#93) can also be used to defend polygamy. Is the only reason you’re against polygamy because you’re intolerant? and reasons like “ick”?
In fact polygamy is only 1 supreme court case away from being legal.
Comment by Mike — 9/24/2005 @ 8:20 pm
biwah wrote:
No offense, but are you trying to make an argument here? If so, I fail to see any logic in it. What I do see is an assertion that real life is so complicated that logic can’t be applied to it, so we therefore have to submit to your conclusion - sort of the old “if it feels good, do it” platitude wrapped up as a cause-and-effect fallacy.
How many people have said that they married a man or woman to whom they were not intially attracted? Attraction can be based on many things, not all of them necessarily leading to sex. People frequently have sex with partners that they are not particularly attracted to. And is attraction really involuntary? I would sumbmit that it clearly isn’t always - have you never heard of an acquired taste?
Assuming attraction = sexual preference/orientation seems to me a very weak case, and dismissing the cases that work against it as “repressing sexual attractions” seems to be a very facile but factually unsound argument.
Comment by Glenn — 9/24/2005 @ 8:51 pm
Mike:
Sorry, didn’t think I was too far afield in doing so.
In terms of policy, I agree that it’s a slippery slope, and that once gay marriage is legal, polygamy will be on the verge.