THE UNBEATABLE INFERTILITY ARGUMENT: Gabriel Rosenberg

Well, we agree on a lot. I also see marriage not as a ceremony conferring legal benefits, but as a social institution. The legal ramifications are consequences of the institution of marriage and not the purpose of marriage. It appears that we also agree that the institution of marriage has multiple purposes. We seem to disagree on its primary purpose, though. I have explained my belief that the institution is primarily about an obligation to care for one another. You see marriage as "the place where we think it is a good idea to have children." I agree with that statement, but not in the same way you do.

I believe the statement is true in the sense that if people decide to have children, it is a good idea to do it within marriage. I understand you to believe, in addition, that if you decide to get married, it is a good idea for you to have children. I personally don't think all married couples should have children, and I don't think we feel that way as a society either. Certainly a marriage license does not grant societal endorsement of a couple's parenting ability. When an elderly couple gets married, we can celebrate their union without hoping they'll have babies. We can even think that it would be a bad idea for them to adopt so late in their lives. Nor is it just a matter of endorsing their marriage so that if the man remains faithful he won't have other children outside of marriage. We could still celebrate the marriage if both partners were infertile. Also the same reasoning would apply to a man marrying another man. If he is faithful to his vows he won't be producing any children outside of marriage.

I am not saying the issue of a child having a father and mother versus two married parents is irrelevant to the marriage debate. In particular, allowing same-sex marriage could lead to more same-sex couples having children. I am saying, though, that it is possible to endorse the idea of same-sex marriage without necessarily condoning same-sex parenting.


posted by maggie at 11:04 AM | link 0 comments

ARIZONA RULES AGAINST GAY MARRIAGE: Maggie Gallagher

Dale, how can you expect us to "calm down" when you so accurately point out that SSM falls so squarely within the Supreme Court's current jurisprudence on the "right to marry." Have a piece on this pending in a Notre Dame law journal.

The Court (unlike lower courts) increasingly describes marriage as essentially a form of expressive conduct. If that is right, then Dale you are right. There is no reason to exclude same-sex unions. But what if the Court is not right
posted by maggie at 3:57 PM | link 0 comments

ARIZONA RULES AGAINST GAY MARRIAGE: Dale A. Carpenter

Hooray for Maggie's citation!

I wonder if the supporters of the FMA are going to calm down just a bit now that the first court to consider a claim for SSM in light of Lawrence has rejected the claim?

I must admit that I think the Arizona court reaches its anti-SSM result in part by misreading Lawrence. It understands the Lawrence court to have applied rational-basis scrutiny to the Texas sodomy law, a judicial standard under which the government nearly always wins. The better reading of Lawrence, in my view, is that the Supreme Court applied (albeit silently) heightened scrutiny to the law, a judicial standard under which the government nearly always loses. There is simply too much effort in the Lawrence opinion to place the case within the Court's earlier fundamental rights decisions to think it is treating the matter like a run-of-the-mill rational-basis case. It would be relatively straightforward for a future court to characterize the Lawrence holding narrowly -- as involving the protection of the most private of behavior (sex) in the most private of places (the home) -- in rejecting a Lawrence-based SSM claim.

The more interesting parts of the Arizona opinion deal with the Court's earlier decisions upholding a fundamental right to marry (even prison inmates have such a right). There I think the arguments for SSM are harder to dismiss because SSM lines up so well with the purposes of marriage identified by the Supreme Court. I don't find the Arizona court especially persuasive on this point. Though again, for a number of reasons, I expect courts for the foreseeable future to reject SSM arguments based on the federal constitution.




posted by maggie at 3:56 PM | link 0 comments

CANADA UPDATE: Josh Baker


Following on the heels of yesterday's victory in the Arizona Court of Appeals is today's order from the Supreme Court of Canada which appears to be the final chapter in the Ontario (and British Columbia) marriage litigation. It does not, however, end the marriage debate in Canada, as the Parliament remains deeply divided over the SSM legislation which has been drafted and referred to the Supreme Court of Canada for an advisory opinion.

Following oral arguments on Monday (October 6), the Supreme Court of Canada issued an order this morning quashing the motion of two profamily groups for leave to appeal. The order was signed by all five justices from the panel hearing the arguments.

The order is available online at www.marriagewatch.org

posted by maggie at 3:44 PM | link 0 comments

USA TODAY POLL: Maggie Gallagher

[In today's WSJ, Andrew Sullivan misquotes yesterday's USA Today poll, claiming that 67 percent of young people think gay marriage will benefit society.

In fact USA Today carves up opinion into three categories: gay marriage threatens society, gay marriage has no effect, and gay marriage will benefit society. Only by mixing the last two categories can you get to 67 percent. Of course the actual poll is pretty interesting and significant too. What would happen to support for gay marriage if you could persuade the next generation that it would further erode a culture of marriage? The argument that has the most legs at this point is that gay marriage just won't matter. If you want to know why, by a three to one margin Americans are more likely to describe mainstream media as "too liberal" rather than "too conservative, below is also exhibit A.]

Full text of USA Today poll below:

"Public opinion is divided on gay marriages
By Cathy Lynn Grossman, USA TODAY
The nation essentially is split in half over whether to accept gay and lesbian marriage, a USA TODAY/CNN/Gallup Poll finds.

While 48% of those surveyed say allowing gay unions "will change our society for the worse," 50% say they would be an improvement or have no effect.

Such views could affect the political push to define marriage in the U.S. Constitution as a bond strictly between one man and one woman and may be a wedge that drives apart the Episcopal Church in the USA.

Already, some Christian groups are alarmed by the legalization of gay unions in Vermont, a pending decision by the Massachusetts Supreme Court on a lawsuit by seven gay couples seeking marriage licenses and the recent U.S. Supreme Court decision striking down laws that ban gay sex.

Today, 2,500 conservative members of the American Anglican Council meet in Dallas to consider whether they can remain in a denomination, the Episcopal Church USA, that not only accepts a newly confirmed gay bishop but also permits gay marriage blessings.

"Marriage has changed more in roles and function in the last 30 years than in the last 3,000," says historian Stephanie Coontz of the Evergreen State College-Olympia, Wash. She is writing a book on the history of marriage.

Driving the changes in marriage are changes in views on sex and spirituality.

American couples increasingly are choosing civil wedding ceremonies over clergy-performed ones, according to a USA TODAY analysis of marriage licenses, and that may affect the debate over gay marriage.

The trend reflects the loosening hold that traditional religion has on the most personal choices in people's lives, experts say. A society that increasingly sees God's blessing on marriage as optional may be more likely to accept same-sex unions.

Sex and spirituality are becoming a private matter to many people, "not something you have to announce to the world or require God's approval," Coontz says. "But there remains a significant minority who say, 'By God, we are going to defend against this relativism of personal choice.'"

Coontz says efforts to focus on traditional religious views of marriage are a "last-ditch attempt to say this is as far as we can go."

But "when I see the battle lines drawn around gay and lesbian unions, (opponents) are locking the barn door after the horses are gone," Coontz says.

That view is supported by the USA TODAY/CNN/Gallup numbers. They show that a benign view of the effect of gay unions on society is strongest among the young: 67% of those ages 18 to 29 and 53% of those ages 30 to 49 say gay unions would have no harmful effect or might make society better. This is the same age group that leans toward a secular or spiritual approach to life, rather than a religious one, other surveys have shown.

Sociologist Pepper Schwartz of the University of Washington-Seattle, says, "Once you think marriage isn't God's work, it's about the human heart, you think why is (a homosexual person's) heart any less loving or needy than mine? If you pull away from the Bible as authority, the right to marry becomes a matter of conscience, fair play and the higher morality of love."

According to the survey, a higher number of churchgoers are among the 48% of those surveyed who say "allowing two people of the same sex to legally marry will change our society for the worse." Of those who attend religious services weekly, 67% say they believe this, as do 51% of those who go at least once a month.

"I'm from the old school. It destroys the moral infrastructure this society was built on," says corporate executive Bruce Brown, 41, of Houston, whose views reflect the teachings of his denomination, the conservative Missouri Synod branch of the Lutheran Church.

But 47% of those who seldom attend services say allowing same-sex marriages would have "no effect" on society; 14% say it would change society for the better. Among those who never go to church, nearly three in four (72%) say there would be no ill effects.

"I am good friends with a gay couple who are wonderful, responsible, motivated people," says Heather Gravert, 25, a mother of two in Buffalo. "I hate to see our society punish people like them by not allowing them to enjoy the rewards and benefits of the longtime commitment that straight couples get through marriage. Our society lacks a sense of community and connection that couples like them can contribute."

The same survey also finds a three-way split in views about whether gay or lesbian couples should have legal parity with "traditional" male-female couples in every state.

While 35% oppose such a national policy, 32% approve and 32% shrug it off, saying the legal status of gay unions "doesn't matter" to them. Statistically, that's a three-way tie.

"I don't see much difference. I just figure the people who are sharing a life should be extended the same benefits my wife and I have," says Atress Harrison, 62, a retired phone company manager from Slinger, Wis.

Like churchgoers, people over 50 are most strongly opposed to legal parity for same-sex couples.

"It's just not the way God intended things to be," says James Montague, 55, of Uhrichsville, Ohio, who attends a Pentecostal church.

The retired steelworker says, "I wouldn't want to see anything like this go on."

The USA TODAY/CNN/Gallup Poll of 1,003 adults, conducted Sept. 19-21, has a margin of error of +/-3 percentage points."

posted by maggie at 3:33 PM | link 0 comments

FULL TEXT OF ARIZONA DECISION AGAINST SSM: Maggie Gallagher

The full text of the court decision is posted on the most excellent and informative website MarriageWatch.org HERE. Forgive me for noting that on page 23 (footnote 15) the majority quotes from my recent Louisiana Law Review article "The Public Purposes of Marriage?"
posted by maggie at 5:06 PM | link 0 comments

HRC DENOUNCES BUSH FOR 'MARRIAGE PROTECTION' PROCLAMATION: Human Rights Campaign

[I could not find anything about the Arizona case yet on HRC but thought this might interest folks. Excerpt below full text HERE.]

"HRC SHARPLY CRITICIZES PRESIDENTIAL PROCLAMATION JOINING ULTRA-CONSERVATIVE GROUPS’ ATTACK ON GAY FAMILIES

Using Gay Families as Pawns in Electoral Politics Will Cost President His Claim To Compassionate Conservativism, Says HRC

WASHINGTON--The Human Rights Campaign sharply criticized President Bush today for joining a coalition of ultra-conservative groups in attacking gay families by issuing a presidential proclamation declaring Oct. 12-18 "Marriage Protection Week." Using gay, lesbian, bisexual and transgender families as pawns in electoral politics cost the president his claim of being a compassionate conservative, says HRC.

"It is reprehensible for a president who claims to be compassionate to pander to a coalition of extremist groups by joining their assault on gay families," said Elizabeth Birch, HRC's executive director. "The American people want to see politicians in Washington concentrating on the real threats to our families--an unstable economy, high unemployment rates and uncertainty in Iraq--not guaranteeing that same-sex couples are left without more than 1,000 rights, responsibilities and protections under federal law."

In his proclamation, the president states:

"Marriage Protection Week provides an opportunity to focus our efforts on preserving the sanctity of marriage and on building strong and healthy marriages in America. ... We must support the institution of marriage and help parents build stronger families. And we must continue our work to create a compassionate, welcoming society, where all people are treated with dignity and respect."

"Elected leaders ensure dignity and respect by passing laws-- laws that protect all Americans-- not through hollow promises of acceptance," added Birch. "Furthermore, sanctity is a question we leave up to our churches, synagogues and mosques, not our lawmakers. Addressing the problems of inequality has long been their job."

posted by maggie at 4:58 PM | link 0 comments

NO RIGHT TO GAY MARRIAGE, SAYS AZ COURT: Alliance Defense Fund

[A newsflash from the Alliance Defense Fund on the Arizona case. More news from major media tomorrow I am sure. Anybody have the HRC press release on this one? Excerpt below, press release HERE.]

"Victory for marriage in Arizona!

PHOENIX, AZ --In the first state court decision on homosexual marriage following Lawrence v. Texas, the Arizona Court of Appeals soundly rejected the attempt of two homosexuals to gain lawful status as "married" spouses under Arizona regulations.

The court refused to engage in judicial activism; instead it recognized the Arizona legislature's right to define marriage as between one man and one woman. Judge Timmer wrote: "Neither the United States Supreme Court nor any Arizona court has recognized that the fundamental right to marry includes the freedom to choose a same-sex spouse."

The court held there was a reasonable link between traditional heterosexual marriage, procreation, and child-rearing: "The history of the law's treatment of marriage as an institution involving one man and one woman, together with recent, explicit reaffirmations of that view, lead invariably to the conclusion that the right to enter a same-sex marriage is not a fundamental liberty interest protected by due process."

posted by maggie at 4:52 PM | link 0 comments

MORE AMERICANs MARRY WITH STATE NOT CHURCH: USA Today

[Maggie: It is hard to judge the significance of this trend, since the reporter notes that in most states the proportion married outside of a church is either "rising or unchanged." But the high proportion of remarriages makes it not unlikely to be true. The reporter apparently shares the idea (which I do not) that Americans oppose gay marriage because they do not know that people can marry outside of a church and therefore believe it violates religious liberty. Excerpt below, full copy HERE.]

Civil marriage on rise across USA
By Cathy Lynn Grossman and In-Sung Yoo, USA TODAY October 7, 2003

"Fewer American couples who marry today see the need for religion's approval. The rate of civil marriage is on the rise coast to coast, a USA TODAY analysis of marriage license statistics suggests.

Experts say the trend could influence a larger debate: As fewer Americans see a need for religious blessings on a marriage, they may be more supportive of same-sex unions. There's no national data on how many U.S. marriages are performed by clergy vs. a civil authority such as a notary, judge or justice of the peace. But in the 18 states that have tracked data for any significant period of time since 1980: * 14 showed a growing or essentially steady rate of civil marriages - more than 40% of marriages in 2001. That's up from about 30% in 1980. * Four showed a drop in civil-marriage rates: South Carolina, where a legal change stopped judges from getting paid for weddings (but the state still has one of the highest civil-marriage rates); Utah, with its large, family-centered Mormon population; and tourism havens Hawaii and
Tennessee. . ."

posted by maggie at 5:19 PM | link 0 comments

THE UNBEATABLE INFERTILITY ARGUMENT: Maggie Gallagher

Mark, you sound like certain far-right conspiracy theorists, with this talk of my "agenda." You seem to think my arguments are a cover for my real arguments.

I have found that, by contrast, if you assume a minimal amount of good will this kind of radical disagreement, when arguments made by one person sound so totally opaque to the other, it is usually an indication of some deeper disagreement further back which is making it hard to even "achieve disagreement."

What could it be in this case? I think it is the increasing characterization of marriage as a "rite" that confers "rights."--a ceremony that confers legal benefits. This is what the lawyers have made of marriage. You create a category of "inclusion and exclusion" and conclude that because certain "exceptions" are made others can be made without damage.

I start with the social institution. Marriage is the place where we think it is a good idea to have children. This is no longer written anywhere in the law, when we got rid of provisions restricting the sexual license to marriage and also giving special privileges to children born within marriage.

But regardless of whether or not the law is articulate about this purpose, it is still one of the things that marriage is (marriage not being the sum of its legal incidents).

Therefore, in giving marriage to unisex couples, we are saying that we think it is a great idea of unisex couples to acquire children. We are saying children do not need mothers and fathers.

None of that is true with any male-female union.
posted by maggie at 5:13 PM | link 0 comments

THE UNBEATABLE INFERTILITY ARGUMENT: Mark Miller

Maggie, you are again exaggerating the arguments in support of SSM (or some legal recognition of gay couples) to suit your agenda. The proponents of SSM are not saying that the public purpose of marriage is ONLY about anything. It is about many things. I agree that the existence of infertile married couples does not contradict the public purposes of marriage, even though they may not always further them to the fullest extent. Where we differ is that I believe the exact same logic also applies to same-sex couples--that their existence does not contradict the public purposes of marriage, even though they may not always further them to the fullest extent.

And using the same logic you used in your argument, the fact that same-sex couples CANNOT procreate, does not and should not contradict the public purposes of marriage, even though they may not always further them to the fullest extent.
posted by maggie at 12:43 AM | link 0 comments

MICHIGAN MARRIAGE AMENDMENT CAMPAIGN LAUNCHED: Detroit Free Press

October 2, 2003, "MI marriage state amendment campaign beginning today"
Excerpt below, full story HERE.

"LANSING -- A diverse but potentially uneasy coalition is set today to kick off a drive to enshrine traditional, heterosexual marriage in the Michigan Constitution.

The move, led by state Sen. Alan Cropsey of DeWitt, a conservative Republican, would declare that marriage in Michigan is exclusively between one man and one woman. It is largely aimed at short-circuiting attempts by gay and lesbian couples to have marriages from other jurisdictions recognized in the state.

Rep. Triette Reeves of Detroit, a liberal Democrat, is to join Cropsey at a news conference this morning at the Capitol. She said the proposed amendment is a long-needed affirmation of the concept of traditional marriage and family.

"I'm not antigay. I'm not anti-anybody," Reeves said. "I'm pro-marriage."

If approved by two-thirds majorities in the House and Senate, the measure would be placed on the ballot in either August or November.

A state law that prohibited the recognition of same-sex or other nontraditional marriages was approved overwhelmingly and signed by Gov. John Engler in 1996.

Opponents of the constitutional ban cited the law as evidence that the latest effort is redundant and mean-spirited.

Kary Moss, director of the American Civil Liberties Union of Michigan, said the proposal is "a form of hate. The far right wing has mobilized a campaign of state-sanctioned discrimination."

posted by maggie at 12:50 AM | link 0 comments

THE UNBEATABLE INFERTILITY ARGUMENT: Maggie Gallagher

Every man and woman who married is capable of giving any child they create (or adopt) a mother and a father. Every man and woman who marry and remain faithful to their vows (regardless of wehther or not they have children) will not be creating fatherless (or motherless) children in fragmented families. The existence of infertile married couples does not contradict the public purposes of marriage, even though they may not always further them to the fullest extent.

So no, I don't think it is only that it is too expensive and difficult to "root out" the infertile couples. But still there is something absurd in the idea that if unless we intrusively root out men and women's fertility status, marriage has nothing to do with making the next generation. There have always been infertile couples. And yet we have always (until the lawyers got their hands on the matter, quite easily and naturally considered marriage to be about creating the next generation in some fundamental way).

In truth you could do the same thing with any given charactieristic of marriage. Marriage is an expression of love, even according to the Supreme Court "intimate to the point of being sacred." But not every couples marries or stays married for love. Does that mean marriage is not about love? Marriage is a sexual union, but not every married couple has sex, so does that mean marriage is not a sexual relation? Marriage implies fidelity, but not every couples is faithful, so does that mean marriage is not about forsaking all others?




posted by maggie at 12:25 AM | link 0 comments

THE UNBEATABLE INFERTILITY ARGUMENT: Another Reader

The argument for SSM as analogous to allowing infertile couples to marry is inherently flawed. Infertile couples are the exception, not the rule: whereas--unless there is divine intervention--we can safely say that a SSM will never produce children. So the "argument from infertility" is an argument that the exception should be made the rule.

Pure antinomianism!
posted by maggie at 12:06 AM | link 0 comments