Or Does It Explode?

“Justice delayed is justice denied.”

From Governor Paterson, moments ago, speaking to a joint session of the New York legislature on the importance of passing a same-sex marriage equality bill.

Of course, the consensus is that the bill doesn’t stand a real chance of passage — a sobering reminder that there are still those who set the happiness of others to naught.

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103 comments

  1. “…a sobering reminder that there are still those who set the happiness of others to naught.”

    I would like to be an astronaut. Could you add that to your list of things we need to legislate?

    1. Do you have $20 million? If so, the Russians would be happy to talk to you.

    1. Radioactive afikomen · ·

      You do realize the throwing a textbook at someone never won anyone an argument, right, Ames?

      1. Depends upon weight of textbook and how hard it’s thrown.

    2. I think that one needs an executive summary.

  2. That’s fair. It’s a fairly concise summary of one of the dominant theories on the meaning of equal protection. When one is so substantially wrong about the definition of “discrimination,” sometimes that’s the only remedy.

    1. 71 pages is ‘fairly concise’? In my field if you can’t summarize your point in 1 page or less, something is wrong with your position.

  3. Also, the article is 69 law review pages. That’s eminently readable!

    1. *slap* No, it’s not. You’ve been around the law too long. :p

  4. Heh, in mine if you can, you get looked at askance. That might be your problem. Modern democracy isn’t friendly to those with short attention spans, and I would think that constitutional law, if anything, would deserve some depth.

    For the sake of argument, though, one way to look at the equal protection clause I’d as a vehicle for guaranteeing that hisorically disfavored minorities aren’t invidiouslu treated disproportionate to their merit. Since I’ve explained this a trillion times before, I just imagined that maybe a professor could do it better

    1. Brevity of thought is generally considered a positive attribute. I think especially with law, which is something we all come into contact with daily, it should be simple and easy enough for the most simple of minds to understand. When the average American thinks about things like gay marriage, proponents should not need 71 pages to explain to them why they should support it to.

      The point you made is that anyone opposed to gay marriage don’t care about the happiness of others. Do you really believe that is the tipping point for changing cultural institutions? Someone is unhappy and anyone who doesn’t want to make them happy is a bad person?

      There was a really good piece at Front Porch Republic yesterday on the subject of gay marriage. This line was the most relevant to your position:

      “This is precisely where we are today. The same-sex marriage “debate” is the logical outcome of a society steeped in the language of rights where the understanding of rights has been separated from any notion of the human person as more than a bundle of expanding appetites. ”

      http://www.frontporchrepublic.com/?p=7063

      1. Clearly our standards for what constitutes a “really good piece” are vastly different. That quote has the virtue of sounding pretty, but contains no real substance to it, apart from familiar polemic.

        The contention that ideas like gay marriage unmoor rights from an objective determination thereof has been rebutted again and again. You’ve been shown quotes from the Supreme Court explaining why marriage is a “fundamental right” protected by the due process clause, and you’ve had the case made, time and again, that the identity between the traits that make race a “suspect class,” and the defining aspects of sexuality, make it, too, a “suspect class,” thereby barring discrimination on the basis of sexual orientation. Your answer to the former has been to ignore it (or say “well, I’m sure what they meant was…”); confronted with the the latter, you change the subject and reach for the slippery slope argument. Clearly you’re unable to rebut either except by diversion — your slippery slope argument is probably the best, but even that concedes, or does not seriously dispute, that equal protection should reach gay Americans, pragmatic concerns notwithstanding. Ignoring those points to be persuaded by a post that reduces to “Where do these ‘rights’ even come from?!?!” is at best willfully ignorant.

        What I meant by my line in that quote is that most arguments against gay marriage value the squeamishness of conservative, straight couples over the happiness of gay couples; and yes, I do really think that is what’s at work. At some point, arguments about tradition must collapse under the wait weight of empirical evidence to the contrary, and we’re fast approaching that point, if we’re not already there.

        Sorry, when I’m tired I confuse homonyms :(

        1. Ames,

          When you posted the text from the Supreme Court cases they specifically mentioned that marriage was vital to the survival of a race. We all know what that meant and I certainly wasn’t reading anything into it when I pointed out that they meant marriage = procreation and to deny marriage to heterosexual couples was akin to mandating their extinction. Unless I am mistaken, you never responded to that point. Would you care to now?

          I am willing to admit that sexual orientation is satisfactory grounds for anti-discrimination legislation. But let’s keep in mind that even anti-discrimination laws have limits. They generally cover work, shelter and basic human rights. We circle back then to the question of whether or not marriage is a basic human right. Whereas I might argue it is under the survival-of-our-species logic employed in the SC cases you mentioned, gay marriage proponents have convientantly suggested that procreation is no longer the primary purpose of marriage. So their case for it being a basic human right is actually weakened, IMO, by this revelation. You have actually removed the primary basis for the SC’s previous rulings. Yet you still contend it’s a human right based on what criteria? The most obvious is that sexual love is the criteria, but then you run into problems with trying to persuade red-blooded males that the desire to have sex with multiple partners is not biological…and we know how successful that claim is. The other criteria you propose is some vague notion of happiness, which again brings us back to the slippery slope debate…because that’s where legislating happiness takes us.

        2. The reference to survival of the race in Loving is oblique, and only really finds support in the first of the two cases cited, Skinner v. Oklahoma, which was a case about sterilization. So it’s not exactly on point, and in any event, it isn’t the only justification for marriage as a fundamental right. Read the next case cited:

          http://supreme.justia.com/us/125/190/case.html

          Around p. 211.

          1. Why don’t you just share the relevant text Ames?

  5. And hey, if you’re in for a shorter summary, I think I’ve argued for this time and again: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=512662

  6. “It is not, then, a contract within the meaning of the clause of the Constitution which prohibits the impairing the obligation of contracts. It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.”

    1. It also says, “It is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family…”

      I think that if Doc Brown were to go back to 1888 and ask the Justices what that line meant, there would be universal agreement that their definition of ‘family’ was not two guys and the daughter they adopted from China.

      There’s also the notion that they define marriage as the first step away from barbarism. Does that mean that divorce is a step back towards it?

  7. The family looks a lot different today than it did in 1888, and it’s not because of gay marriage. I repeat, every court to consider the question of whether marriage turns upon procreation has rejected that argument — Iowa, California, and Massachusetts most notably, but one searches Loving in vain, too, for a requirement that marriage turn upon childbearing. An implication from a single word, citing two ambiguous sources, is not that.

    1. And you’ve provided one word in one case that supports marriage being based on ‘happiness’.

  8. Ah, but I’ve never rested on that point.

    1. So let’s try to do the scorecard here:

      Happiness
      Sexual attraction
      Love
      + Number of partners not exceeding two
      _______________________________________

      Marriage

      Is that correct?

  9. It’s more like [straight marriage = gay marriage – one type of sexual organ], where the subtracted element is nonsignificant except in areas upon which the institution does not rest.

    1. So then why not polygamous marriage = gay marriage + two sexual organs (dealer’s choice on which ones).

  10. Let’s stick to the initial issue and then move on as needed.

    1. I asked you to define the necessary components for marriage. As a dodge you just said it’s the current form minus the opposing sets of plumbing. It’s logical then to ask why the number of sets of plumbing is a justified barrier.

      But let’s go back then. I’m asking you not to define gay marriage by what it isn’t but by what it IS. What is the criteria Ames? Is it love? Is it sexual attraction? Is it a certain number of individuals? Name the criteria. This isn’t that hard.

  11. Legally, it’s not that there’s one Platonic Form of Marriage, to which all state-blessed marriages must comply. It’s rather that whatever the current version is, the gay version would not be sufficiently different so as to render it subject to discrimination.

    1. Another dodge! You ARE lawyer!

      You’ve been counting the days until a SC legalization of marriage. That means there should be some kind of nationally recognizable criteria you are willing to impose from Portland, Maine to Portland, OR and all points in between.

  12. It’s not a dodge. That’s the way it works. There’ve been no Supreme Court cases waxing poetic over the Meaning of marriage (except Kennedy alluding to it as “an institution that the law protects”), and no litigation would seek to define it. Any decision would likely be on equal protection grounds, like Loving, but excise the due process context to minimize controversy.

    1. So again, just to be clear, you’re refusing to define the criteria for mariage…but you’re absolutely sure it’s not plural partners.

  13. What am I missing about the plural partners? Who gives a crap about plural partners? Let ’em if they want to. Marriage is a religious construct anyways, so if a religion allows it, get married in that religion.

    The state should simply acknowledge civil unions, straight, gay, or otherwise.

    1. What you’re missing is the rationale Ames has failed to provide on why gay marriage is good, good, good and plural marriages are bad, bad, bad.

      1. Ok, so this is just trying to pin ACG down for argument-point-scoring purposes? (And no I’m not saying you’re the only one guilty of this, so don’t change the subject.) I’ve been trying to follow this conversation and I don’t see what this has to do with repealing gay marriage. Short answer is that is doesn’t, I get it now.

        1. It has everything to do with it. The argument by a lot of people, myself included, is that one redefinition leads to other redefinitions and that is why we have to hold the line here. Ames has failed, IMO, to provide any kind of reasonable reason why gay marriage is safer/better/etc than plural marriage, therefore the fears we have our well-founded.

          1. OH. So it’s being scared of other definitions of marriage. Ok, go be scared then I guess. What’s wrong with polygamy anyway?

  14. The right answer is to sever ecclesiastical marriage from civil marriage. I have no problem with churches saying “X is married to Y and Z”; but if we are to draw a line on what the state recognizes and encourages, it ought to be at one rather than two partners.

    Again, though, this is afield of the first subject. We’ll get to a definition later. But can you come up with a principled argument of why gay marriage is too different from straight marriage to be permissible, or are we going to devolve into bickering over definitions and line drawing?

    1. Yay, I gave the right answer.

    2. “But can you come up with a principled argument of why gay marriage is too different from straight marriage to be permissible, or are we going to devolve into bickering over definitions and line drawing?”

      I’ve given you several:

      1) no procreation
      2) leads to other redefinitons
      3) potential impact on kids

      The one that holds thje most weight in my opinion os the potential future challenges issue and that’s why i keep pressing for a reason why it will stop here and you keep avoiding. Liberals don’t want to talk about what comes next because they sort of know what will happen and although I suspect most are like John and really don’t care, they can’t admit that until they have gay marriage.

      Honestly though, maybe this whole conversation is just kind of silly. I mean 31 states now have struck down gay marriage. Conservatives are mostly winning this battle. Ames’ inability to define the criteria for gay marriage gives me confidence that SC challenges will be fruitless.

      1. You’re contradicting yourself here. On the one hand you argue there’s no procreation taking place, but on the other, you also want to argue it’s bad for the kids. Where do these kids come from? Why, from adoption, for instance.

        So what I’d like to know is, in the eyes of the state, what is the functional difference between a heterosexual couple that reproduces through natural means, and a heterosexual couple that ‘reproduces’ through adoption? In either case, you get a family unit with one or more children out of it.

        (And let me just take this opportunity to remind you that your “it’s bad for the kids” argument was soundly refuted in an earlier discussion.)

        1. As I said, the further redefinitions argument is the strongest one by far. I recall you neglected to address my point last time that there are a lot of potential polygamists in the US (15% of Mormons = big numbers).

          FYI – The sources you cited for the health of kids in these families seemed to be categorically saying, “We need more data.” If you want to call that ‘refuted’ that’s thin.

        2. Legally, if we get strict scrutiny, which I’ve argued (and you’ve not rebutted) that we should, the burden is on you, not us. Sooooo any evidence of kids being harmed by gay parents?

          1. Ames – I believe the burden lies on the gay marriage proponents to explain what good is being done to society with the redefinition of marriage to include those sexually attracted to members of the same gender. All you’ve come up with is, “It will make them happy.”

            1. I remember this one – Mike said a couple arguments ago (2, 3 weeks maybe?) that he knew is was bad and that data couldn’t tell him otherwise, or some such. It’s a rough paraphrase, I admit, but I’m not likely to go look it up on “Mike’s Rule of Not Bothering to Provide Evidence Because the Other Guy Ignores or Misreads It” grounds.

            2. So nothing good is being done to society by allowing people the pursuit of happiness?

              1. Where does it end? Polygamists want to be happy too.

  15. I tried to stay away . . . I really did . . .

    Mike, I’m calling FOUL on part of your construct that has been a thread waeving through all your responses to Ames on this subject. Namely, you keep saying that since gay and lesbian couples can’t reproduce naturally (neitehr can all atraight couples, FWIW), the first basis you can come up with for why they would marry is sexual love – as in they love each other because of their sexual orientation.

    Do you and your wife love each other BECAUSE of your sexual orientation? Or is it because you each have traits that compliment, challenge, confound and better each other’s lives? Gay and lesbian couples can love each other for exacvtly the same reasons, and so I’d appreciate it if you’d knock off the sexual love stuff as the basis. It’s not.

    As to the “One redefinition leads to another leads to another and Liberals always have their heads in the sand about this one” meme – No we don’t. No liberal I have talked to or read (here or anywhere else) has said, advocated, insinuated or suggested that gay marriage (even in the form of civil union) leads to polygamy or polyandry or polyamory (all fo which already exist in the uS). None of us on this side of the aisle want gay marriage to lead to that. And I don’t think we’ll permit it if it does. Prove me wrong, and I’ll shut up, but just because we liberals don’t reach the same conclusion you do doesn’t make you right and us wrong. What’s really at work here is that many Conservatives (and I honestly don’t you are one of them) still react to gay marriage viscerally because they can’t see two male genetalia or two female gentalia joined in any kind of union without being morally repulsed. So when it keeps getting pointed out that those couple are really not a threat to marriage or America or apple pie, Conservatives retreat to the NEXT morally repulsive version of “marriage” they can find, and say we’re headed here. All the while, friends of mine (lesbians) who have been together over 30 years as a couple can’t have their struggle, their caring, and their couplehood recognized legally by the state, while I can get married and divorced as many times as I want with no other repercussions then taxes and childsupport. And no, I don’t htink that situation is morally right.

    You and I have had a lot of friendly arguements about a lot of stuff in the last year, so I know that you are not likely to change your stance based on what I say. I do hope, however, on this issue, that you will find a little more cogent arguement.

    1. “Do you and your wife love each other BECAUSE of your sexual orientation? Or is it because you each have traits that compliment, challenge, confound and better each other’s lives? Gay and lesbian couples can love each other for exacvtly the same reasons, and so I’d appreciate it if you’d knock off the sexual love stuff as the basis. It’s not.”

      Phillip, what separates the love you have for your wife from the love you have for your best friend? I know plenty of people whose best friend compliments them personality-wise far more than their spouse. The difference of course is that (I assume) you aren’t sexually attracted to your best friend. I mean, how many times have you been sitting aronud a bar with some guys and heard someone say, “if it wasn’t for the fact that i like to have sex with girls, I think being gay would be easier”. So yeah – the only thing that separates marriages from really, really good friendships is ultimately the sex.

      “As to the “One redefinition leads to another leads to another and Liberals always have their heads in the sand about this one” meme – No we don’t. No liberal I have talked to or read (here or anywhere else) has said, advocated, insinuated or suggested that gay marriage (even in the form of civil union) leads to polygamy or polyandry or polyamory (all fo which already exist in the uS). None of us on this side of the aisle want gay marriage to lead to that. And I don’t think we’ll permit it if it does.”

      I don’t think most liberals want polygamy…I just think they don’t care if it happens. And until you can adequately explain how taking gender out of the equation is cool, but taking numbers out is wrong, I have to believe you all haven’t thought the issue through.

      I also think the last thing you want to do is inject morals into the conversation…because of course the argument in favor of gay marriage is one that depends greatly on divorcing morality from the equation.

  16. Philip, great job — I tried to say exactly that a while ago, but couldn’t get it out so eloquently. It strikes me as deeply offensive that Mike can only conceive of love based on either natural procreation or sexual desire.

    1. That’s obviously an inaccurate reflection of what I am talking about. Ames, what separates the love you felt for your girlfriend from the love feel for your mother?

      1. I don’t endeavor to define those ineffable qualities that writers have tried to reduce to words for generations; although “effing” the ineffable does sound fun.*

        However, I bristle at the assertion that sex is the entirety, rather than the culmination or physical expression of, romantic love. Similarly, if you don’t think gay couples feel that inexpressible quality, you probably don’t know enough, and would do better to stay out of the topic accordingly. Boo. At the end of the day this debate is over whether we want to expand to gay couples the same rights and responsibilities as straight couples — all other questions are necessarily severable, and I submit that tradition and a vague whisper of fear isn’t enough to defeat the shared longing of around 10% of the population.

        * = That’s what she said.

        1. Few points:

          1) ‘Romantice love’ is non-qualifiable and I don’t see how it meets any kind of legal definition. So then what’s to stop us from legalizing all kinds of other non-quanifiable things?

          2) What if it was less than 10%? What if it was 1%? would that be enough? What is the threshold?

          3) Is a ‘longing’ i.e. appetite for, desire, want the sole criteria? What is the thing that pushes a ‘longing’ into a ‘need that must be fulfilled by the state’? Should all ‘longings’ be granted, so long as no one is harmed?

      2. If it’s all about the reproduction, then what about infertile couples? Why does the state “allow” them to marry? Seems like a waste to me.

        (In related news, this discussion is getting more and more Hobbesian every time I visit it. )

        1. I don’t doubt it is, but what do you mean by that :) ?

          1. I’m referring in particular to Mike’s repeated arguments about privileges which should only be extended to citizens when they can argue that doing so positively benefits the state in some way, which reflect Thomas Hobbes’ “maximalist” social contract theories in Leviathan – the state initially holds control of all rights, some of which are then granted back to the citizens as necessary for the public good.

            The prominent alternative to that, of course, is John Locke who held the “minimalist” view that the citizens initially hold all rights, and only abandon them to the extent necessary for the public good.

            Putting homosexual marriage in that context, it seems one of the really fundamental questions here – which has drowned somewhat in all the sophistries concerning reproduction etc. – is whether it falls on the proponents to prove that allowing homosexual marriage benefits the public good (Hobbes); or whether it falls on the state to prove that not doing so would benefit the public (Locke).

            1. Good and correct analysis Lanfranc. Just for the record, I tend to go with the Teddy Roosevelt (Hobbes)idea that the state assumes all powers not explicitly denied to them by the Constitution.

              With regards to marriage, we have 2 dual institutions, both created by certain powers. The first is religious marriage. It was created by various faiths and as such they control access. We of course say that whatever criteria they demand is well and just because religion is free from secular control and also free to create all sorts of bizare rules and rituals associated with it. The second institution is state-created marriage. Now this one is tricky because on one hand we all agree the state can create certain reasonable criteria one must meet in order to have access to this instituion. On the other hand, since state-created marriage is subject to Constitutional rules, we also believe that the access criteria must be reasonable and just. So again, it’s important to point out that no one is arguing universal access to marriage. What IS being argued is that one of the criteria i.e. the gender of the participants, be removed as a barrier.

              So then the question becomes, is gender a reasonable criteria? 50 years ago the answer would have been a resounding yes, because MOST people believed mariage was about building a family and you can’t have a family when you can’t have kids, etc, etc. Now culture has shifted. Gay couples now i>can have kids through surrogates, artificial insemenation and/or adoption. Technology and changes in laws have made it possible for gays to ‘be a family’. So that is supposed to render the gender question moot. Fair enough. But let’s that a step further…

              Technology can easily render the blood relation question irrelevant as well. One member of a couple more closely related than 2nd cousins can volunteer to be steralized to prevent genetic defects and can rely on technology or adoption to have a child together that is free from potential genetic defects. Is then the blood relation criteria still fair?

              Likewise, the existence in this country of thousands of plural marriages (long before there were gay marriages) seems to indicate that plural marriage is a workable lifestyle for some people. Also, inheritance law and contract law can easily deal with the unique legal hurdles created by plural marriages, rendering those objections moot.

              So, if technology / legal changes have made gender no longer a fair barrier to marriage, how can we possibly still contend that numbers and blood relation ARE reasonable without introducing some notion of morality into the conversation? This is the key question I keep asking gay marriage proponents.

        2. Well it’s a matter of practicality. What expense is there for the state to do fertility testing on every couple prior to marriage? How accurate are those tests? Do they preclude couples who new technology might help in the future? With gay couples the answer is 100%.

          But as i said, I’m fine with gay marriage proponents taking procreation out of the discussion. It simplifies things. I just wish they would do a better job of explaining the criteria that should be considered.

  17. Also, side note: two of my friends got married in California during that heady month in which gay marriage was legal there. They’re still together and quite happy. On the other side, of all the straight married couples in my friend group (5 — I’m still young!), 1 is already done. “Brenda and Eddy were the popular steadies, and the king and the queen at the prom… bumbum…”

  18. Scenes from an Italian Restaurant? REALLY?

    Although Billy Joel himself kinda makes your point…

    1. Meet you anytime you want :).

  19. Mike’s disingenuous arguments and rhetorical style are precisely the reason I tend to stay out of comment sections – bad for my heart (both in the soul sense and the “I’m too young to stroke out” sense), but really this cannot stand.
    1) The procreation argument is bunk- by that logic, couples should take a fertility test before being able to get a marriage license, and those incapable of perpetuating the species denied marriage. Oh, and couples who don’t want kids are out too. (Do you see how ridiculous slippery slope arguments look?)
    2) What is the problem with redefining marriage… AGAIN. It’s only been in the very recent past (in our neck of the woods) that marriage has come to be considered much more than an economical transaction of goods or consolidation of power. By the “man and woman” definition, is a marriage between a man and a woman who “meet cute” and fall in love any more of a “marriage” than that between a couple pressured into such an arrangement by family? Is love the missing element? Surely not.
    3) Ah the children. You say the science is still out on that one, but with some digging around, you’ll find that (generally speaking) children raised in a loving two-parent household (regardless of gender) tend to be better adjusted and do better in school than their abusive two-parent household/ single-parent household peers.

    And finally, how DARE you presume to prescribe what’s best for people? Since when did the “small government” types decide that the government should regulate the people we marry and what we do in bed? I love how it’s ok to say the government is too big and intrusive because it wants tax dollars to pay for roads, police, the soldiers that keep you safe, and other social necessities (without which there would surely be great rending of cloth and gnashing of teeth until they were provided once more), but demanding that it regulate the most personal decisions a person can make? That’s fine.
    Keep on fighting the good fight there folks- make sure that government is just big enough that it can’t get into your wallet.

    1. Natalie,

      First *whew* that was a doozy…now to your comments:

      1) Se my comment to lanfranc on the ‘banning infertile couples’ line. Additionally how does the state verify that a couple hasn’t been trying to have kids? So the logistics of that one is impossible. But with gays it is oh-so-simple. But as i said, let’s take it out of the equation. It makes the conversation easier.

      2) The position that arranged marriages were a common feature of western culture is mostly myth. To the contrary, in western culture arranged marriages have primarily only existed in the most upper of classes for at least the last 400 years. They have never been very common in the US.

      3) Sure, kids do better in a perfect gay home verses a terrible hetero home…but is that a fair comparison? Wouldn’t the more correct comparison be between two ideal couples, one hetero and one homo?

      And finally…) I bet you a zillion dollars that we could discuss 10 policies and you would have an opinion on what is ‘best for people’ on every one of them. Let’s try healthcare: Do you have a position on whether or not a public option is ‘best for people’?

      1. Thanks Natalie :). Always glad to see you in the battle. Let me take up your mantle.

        (1) I accept your surrender on that point. It’s really not one you were going to win.

        (2) Natalie’s point wasn’t that arranged marriages are common, or recent in the west, but that they are present in the historical record, and underscore the point that marriage is not some monumental, immutable institution. I’m sure you must have known that’s what she meant.

        (3) That’s not really a choice that kids have, is it? When gay couples adopt, it’s not like they’re stealing babies from healthy hetero couples — they’re adopting, which is to say, taking into their home children who otherwise wouldn’t have one. SO no. In most cases the comparison is between a family or no family. For a major booster of adoption over abortion, you sure aren’t willing to see the process through to its conclusion. A Mikesville, where no kids are aborted but never find homes, isn’t really a happy one.

        (4) Healthcare is really an inapt comparison. The whole “HEALTHCARE RESULTS IN ME LOSING MY FREEDOM ZOMG” is a loser, condemned to never move from the teabagger signs where it originated. Healthcare reform, from the Democratic angle, is about providing rather than restricting options. Apples and oranges.

        1. Just ’cause… can we have a moratorium on “you must have known what I meant” from everyone involved? Let’s just assume the teeniest bit of good faith on all sides.

          Or, you know, don’t I guess. . .

        2. 1) As I said, I’m happy to leave it out because it just muddies the water. It forces you all to more narrowly define the criteria for gay marriage.

          2) I think Natalie was trying to argue that ‘recent’ changes have made mariage all about love and love only…which of course isn’t really true. Nevertheless that is certainly the new definition liberals propose (so long as the numbers remain at 2).

          3) Kids without parents could much more easily find homes if adoption laws were relaxed by liberals. But then again, adoption isn’t really a big priority for liberals, unless it’s babies from third world countries, in which case they think it’s groovy and hip.

          4) I don’t really get your point at all. Natalie says I have no right to say what’s best for others. I think she’s lying if she says she doesn’t have any opinions herself on what’s best for others on any variety of topics.

          1. Since I have the good fortune of knowing her, I also know what she meant by (2), and it’s not what you said :).

            (3) I don’t know what you’re talking about w/r/t strict adoption laws. Presumably, though, this is something we want to get right, so I can see a good place for regulation in that context.

            (4) This is the age-old conflict between the social and fiscal conservative wings of the Republican Party, which seem to be fused now into some bizarre, self-contradictory monstrosity. Her point is that you can’t presume to dictate subjective morality to others. I probably have a lot of opinions about what people SHOULD do, but you don’t see me rushing to the statute books to write them in there.

            1. 4) We have subjective morals all over the place Ames. Blue laws are a good example. Another is liberal opposition to polygamy (ground you still dare not tread).

  20. Kids without parents could much more easily find homes if those who so adamantly oppose abortion adopted them.

    1. I agree – unfortunately liberals have made adoption is a very lengthy and expensive process.

    2. Yes, it’s those damn liberals. Always is, somehow.

      1. Please share with us the President’s proposed adoption policies as gleamed from his Blueprint for Change verses those proposed by John McCain.

        Liberals resisted interacial adoption until 1996 (but remember, conservatives are the racist ones). They have created funding incentives to place kids in foster care over adoption. They resist any real funding of increased adoptions because it is seen as harmful to abortion rights. They have also created legislation which makes it harder to remove kids from bad homes and place them in good ones (see Adoption Assistance and Child Welfare Act).

      2. I hear crickets chirping…

  21. @ Mike, above:

    Now that you actually put it in a cogent and well-argued manner, I must admit that it’s a difficult question, and I don’t really have a satisfying answer at this time.

    However (and I must admit, conveniently), I don’t think it is a question that ought to be asked in the first place. It does not seem at all reasonable or just to deny access to a right (and marriage is a right, not a privilege) to a certain group merely on the grounds that doing so may allow other groups to claim the same rights in the future. Surely, a basic sense of justice requires that each particular situation should be judged on its own merits, rather than effectively asking the claimants to argue against some other case which may or may not appear in the future.

    Otherwise, one could have made exactly the same argument against overturning any of the various prohibitions on marriage that have existed in the past, such as miscegenation laws or prohibitions against intermarriage between social classes.

    1. I’m not saying necessarily that there should be a legal requirement that we address all future concerns (though I’m quite sure that the SC often asks those kinds of hypotheticals when they are hearing cases). What I instead am suggesting is that in forums like this, there is a certain intellectual obligation that gay marriage proponents have to think the issue through to its logical conclusion and ultimately take a reasoned position now. If they can’t come up with any kind of logical answer to my questins above, then it sort of verifies that it is likely there will be further redefinitions and how should we plan for them? I’m not saying plural mariages are right or wrong, but what I object to is liberals saying, “Oh that would never happen and if they tried we would stop them,” but they can’t explain how they would stop them and on what grounds. They refuse to admit that this redefinition gives an opening to the next redefinition in the same way that Natalie is suggesting that previous redefinitions paved the way for this one.

      1. But isn’t it true that previous redefinitions paved the way for this one? You presumably do think that opening up marriage to interracial couples was a good idea. But couldn’t exactly the argument you’re using here have been used against that – that it would pave the way for gay marriage, and, further down the line, plural marriage? What could earlier reformers have said to that?

        They might say that “we’re keeping it to one man and one woman”. But likewise current reformers can say “we’re keeping it to two consenting adults”. If one counts as a logical answer to your questions, then so should the other. If neither counts, then it seems like you’re committed to saying that advocating against anti-miscegenation laws was wrong-headed. I note that of course one can construct elaborate theoretical-historical understandings of “the true meaning of marriage” or similar such that obviously interracial male-female couples are just fine, but we ought to understand that marriage is a human institution and only has what meaning we give it – it’s very difficult to argue on other than religious grounds that “one man one woman” is what marriage ought to be. And, of course, one can just as plausibly construct historical understandings of marriage that alternately exclude interracial couples, include same-sex couples, include plural unions, or which reduce one partner to the level of property.

        I think the best answer here is to note that our descendants will be thinking people who can decide for themselves how they want to structure their society. I don’t have such keen moral insight that I feel comfortable making my decisions with an eye towards limiting the moral choices available to my children (when they grow up, that is). The fact is, we won’t vote for plural marriage in the next several decades, at least, even if we can’t offer really compelling reasons to be against it but for same-sex or interracial marriage. But likewise we shouldn’t assume that we’ve perfected social morality – if you believe in moral progress at all, then I think you’re bound to at least leave open the possibility that future generations will know better, and that, if future generations choose to allow plural marriage, they may well be right to do so.

        1. “The fact is, we won’t vote for plural marriage in the next several decades, at least, even if we can’t offer really compelling reasons to be against it…”

          Gay marriage proponents say that the case opponents make against is less-then-compelling. So why are the two different?

        2. Also add, yes, I’m sure people asked the questions you outlined about abolishing slavery, women voting, etc. Nothing wrong with that and I actually think it was quite responsible for abolitionists to think about, “What will these freed slaves do?” before emancipation actually happened. It’s equally responsible to ask, “How will the addition of gay marriage affect society 5-10-20 years down the road?” now.

      2. I’ll add that it seems to me that if anyone had ever been persuaded by an argument like yours before now, we’d be worse off today. What if we didn’t abolish slavery because blacks might later want the vote? What if we didn’t give black men the vote because later we might have to give it to women? What if we didn’t give women the vote because later we might have to give it to those as young as 18? What if we didn’t lower the voting age to 18 because later we might have to give it to all teenagers? Of course, at almost every step along the way, there would have been large groups of people who were on the fence about the actual extension of voting rights on the table but dead-set against something that they could conceivably “slip” to in the future. Leaving that future decision to future voters was an entirely appropriate move, and one that’s done a great deal of good for the country. As it so happens, it’s been 38 years since we passed the 26th amendment, and voting rights haven’t slipped any further. It’s plausible that most people who were politically active when the 26th amendment was passed will be dead before the next time we extend voting rights to more people (if we ever do so). Why shouldn’t marriage work the same way? I note that the gap between interracial and same-sex marriage is also on the order of 50 years (California SC heard a case on it in ’49, US SC overturned all interracial bans in ’67).

        1. There’s a few reason why these questions are relvant:

          One is that culture moves at a much more rapid pace than it did 50 years ago. The gap between this redefinition and the next one will be much shorter, so it’s fair to consider it now.

          Second, there’s already a healthy group of polygamists in the country. In Utah the law looks the other way and in several other states it’s been reduced to a misdemeanor offense. That also means the liklihood of a fast lobby after gay mariage is high.

          Lastly, this general concept speaks to the fundamental differences between liberals and conservatives. Liberals live in the now and trust future legislation to be addressed when necessary. Conservatives try to look beyond the present and think about long term effects. It’s what makes us cautious. I would also add that liberals are cautious when they aren’t in power as well. How many times during the Bush years did we hear that X security policy would lead to a future erosion of civil liberties? Our entire judicial system is built on precedent. Legislation functions in much the same way.

  22. A few notes on this:

    First, the notion that culture today is changing more rapidly than it was before — every day, in every possible way! — is more misplaced nostalgia than anything. If you look at any decade of America’s existence you can outline extraordinary changes occurring then that we, today, regard as normal (1930s: Great Depression, 1940s: WW2, 1950s: cold war, home technology, urban flight, race relations, etc.). It’s human instinct to treat each challenge to the status quo as unprecedented and earth-shattering, but it’s nothing we haven’t coped with before.

    Second, the distinction between civil liberties and gay marriage activism isn’t that one occurred while the Democrats were out of power, and one while they were in; Democrats generally favor an expansion of existing liberties, not reform for reform’s sake. So when Bush’s “reforms” contracted the options available to citizens, the reaction was eminently foreseeable. This example also underscores the fact that Republicans are more than happy to rush into reform on some occasions, even when it represents a *huge* break with arguably more fundamental precedent (Habeas what?).

    And so we turn to the polygamy issue. I think it’s generally opposed by us on the grounds that it’s a much more fundamental shift in the meaning of the institution of marriage. As I’ve argued before, marriage long ago lost its “reproduction only” significance, if it ever even had that; but if we look for notes of consistency between hetero-only marriage, and a world where gay marriage is legal and regular, a continual note between the two worlds would be the institution’s focus on two equal partners in a monogamous relationship. Altering the permissible number of partners obliterates that meaning, which is, I think, something worth fighting for. Although polygamy is usual in some sects of society, we regularly see it raise serious questions about sexism, equality, and power disparity, and polygamy is obviously out of step with any real notion of monogamy, which is, in my mind, a valuable restraint on and outlet for sexual tension and jealousy.

    You may disagree with the idea that those are values that matter in marriage. But if you’re looking for a value that’s untouched by gay marriage, but seriously jeopardized by polygamy, there you are.

    1. On your first point, you radically under-estimate the effect that the trade of information has on culture. I mean, this is Anthro 101 Ames (and as someone with a degree in the social sciences you should know this). When I was a kid, fashions in NYC took several years to dissiminate to mid-America. Now it takes weeks. The same is true with music, art, food, etc. Culture moves across the country extremely rapidly.

      On the polygamy/monogamy question…I’m so glad you brought that up. This is a quote from a study recently published by Alliant International University in San Francisco:

      But the groups still show dramatic differences in how often they cheat or have sex outside of their primary relationship. Around 82 percent of gay men reported extra-partnership sex in 1975, whereas 59 percent did in 2000—a significant decrease, but still that later rate is more than four times higher than comparable rates found among straight men (14.7), straight women (13.5) and lesbians (8.2).

      I am willing to bet that the monogamy rates among polygamists are significantly higher than gay males.

      Your response?

      1. I think you’re conflating two senses of “culture”. Fashions move really quickly now. Moral intuitions don’t. The mores of a society are notoriously difficult to budge except by natural replacement – there’s a reason that younger people are so much more in favor of gay marriage than older people. It’s very difficult for me to see how a policy like polygamy that easily 80% of the country would be rather strongly against could possibly achieve majority support in thirty years or less. Our birth rate and long life spans just don’t allow it.

        1. It doesn’t have to achieve majority support. Gay marriage certainly hasn’t.

        2. …Neither did desegregation. Until after it was done.

          1. Exactly – so what makes anyone think polygamy would have to have majority support to go through?

            1. The number isn’t all that important – courts couldn’t make plural marriage stick, even if they really tried, if a significant majority of the country was against it. Very small majorities have thus far been quite capable of keeping gay marriage out of most states, after all. The point is that there’s no reason to expect that better technology is going to accelerate the pace of social change.

              1. It already is. Read studies about behavioral trends in adolescents. Things like ’11 is the new 13′. That behavioral shift is accelerated by media. There are a zillion studies out there that indicate information technology affects behavior, which in turn affects cultural norms. How are blackberries affecting corporate culture, manners, etc? How are cell phones affecting driving habits? Habits become internalized very quickly, which then become new cultural norms.

  23. Happy to provide! First, at the point where I honestly have you arguing that gays are more promiscuous than straight couples, I think I can safely declare victory. Second, this would seem to be an argument FOR gay marriage — since in 2000, I don’t believe any state had actually legalized gay marriage, this rate reflects pre-marital relationships (boyfriend/girlfriend/etc.), which is an unfair comparison against married couples.

    I’d never cheat on anyone — girlfriend or wife — but I understand that the rest of society is not as awesome as I am :).

    1. No – I’m specifically talking about gay men. If the lack of marriage is the issue, then why are the monogamy rates for lesbians not in-line with gay men? The rates between straight men and women are nearly equal.

      1. I think it’s slightly ironic that you pull up a study presented at an APA convention, considering you yourself outright refused to believe 30 years’ worth of metastudies by the APA on children in homosexual families. Can’t have it both ways.

        1. When you show me an APA report that doesn’t have lines like, “We need more information..” in it, I’ll be happy to endorse it.

        2. Please review the abstracts again. In fact, I’ll just put the important points here, and remind you that A) there’s a very significant difference between “we have found no evidence of” and “we need more evidence”; and B) these are not individual studies but research reviews, some of which cover hundreds or even thousands of studies.

          “The results demonstrate no differences on any measures between the heterosexual and homosexual parents regarding parenting styles, emotional adjustment, and sexual orientation of the child(ren).”

          “Children raised by lesbian mothers or gay fathers did not systematically differ from other children on any of the outcomes.”

          “Children of HS parents did not appear deviant in gender identity, sexual orientation, or social adjustment.”

          “Lesbian mothers had more congenial relations with ex-spouses and included men more regularly in their children’s lives. Coupled lesbians had greater economic and emotional resources and provided children with a richer family life than did mothers of either group living alone with children.”

          “While custody decisions have tended to reflect stereotyped beliefs or fears concerning the detrimental effects of homosexual parenting practices on child development, the research literature provides no evidence substantiating these fears.”

          “The research reveals lesbian parents and their children to be healthy, secure, and quite effective in negotiating the many challenges that accompany their stigmatized and minority status.”

          “Evidence does not show that the development of CGLP is compromised significantly relative to that among children of heterosexual parents in comparable situations.”

          “Results of this study show normal levels of maternal adjustment and personal esteem as well as normal social and personal development among children with lesbian mothers.”

          “In general, the picture of lesbian and gay relationships emerging from this body of work is one of positive adjustment, even in the face of stressful conditions.”

          “Yet most research in psychology concludes that there are no differences in developmental outcomes between children raised by lesbigay parents and those raised by heterosexual parents.”

          “Research suggests there are no differences between children of lesbians and children of heterosexuals with regard to their emotional health, interpersonal relationships, sexual orientation, or gender development.”

            1. I’m interested as to why there are so many references to lesbians specifically. Were the studies focused on them?

            2. What does that have to do with anything? It’s just a general list of review studies on the subject.

              Okay, fine. I’ll count. 20 studies in all, 2 refer specifically to gay parents, 6 to lesbians, the remaining 12 to homosexuals in general. That does not seem like an overrepresentation.

              Now, about that endorsement?

              1. Sure – as I’ve said previously, procreation and the potential danger to the children are not my primary concerns in opposing the gay marriage lobby. Never have been.

              2. But do you agree that the available research shows that this “potential danger” does not actually exist?

    2. I would expect it’s a culture issue still heavily influenced by the fact that marriage was, at the time, impossible. Regardless, it’s irrelevant, and that’s the argument I should’ve made. There’re also statistics showing a higher incarceration rate for black men, but we don’t (and SHOULDN’T) hold an entire group hostage to statistics about one portion of it.

      1. You’re contradicting yourself. On one hand you say that because polygamy = a major divergence from cultural definitions of mongamy it should be banned…but then you say the gay male aversion to monogamy among over 50% of the gay population is a non-issue. Is monogamy important or not? ANd I would also remind you that at 59% saying ‘one portion of it’ is minimalizing a serious problem. If the monogamy rate for hetero couples was 41% we would call it a national emergency. Also, gays are a mere 15% (estimated) portion of our population. Why is that low % important, but he high % of non-monogamous gay males not?

        Also, yes, of course it’s a cultural issue..but you point out above that the notion of rapid cultural change is a myth. That means we can expect high rates of cheating among gay males for the foreseeable future…correct?

  24. Mike,
    Given that 50% of first heterosexual marriages end in divorce, we can also expect a continued social landscape of emotionally destroyed lives and children wrenched from a loving parent simply because the other parent had bad day, no?

    And that’s NOT a national emergency why, exactly?

    1. That divorce rate is skewed. Look at the divorce rate for middle class and above. It’s not nearly as big a problem as you are presenting.

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