IS SSM LIKE INTERRACIAL MARRIAGE?: David Wagner on Loving v. Virginia

Why Loving does not mean a right to same-sex marriage:

Virginia, and other states that had anti-miscegenation statutes, had layered onto marriage an additional requirement (race-sameness) that is not part of it, not only abstractly speaking, but also within our legal tradition. That tradition had/has a very clear notion of what it takes to make a marriage legally valid and non subject to annulment at will: things like consent, proper age--and penile-vaginal intercourse. Race sameness was not part of that pack of elements. It was never part of what common-law judges, applying common-law principles, considered to be part of marriage, in the absence of special anti-miscegenation laws.

(Cites supporting the above claims about the elements of marriage can be found in Robert George's essay "Marriage and the Liberal Imagination," published as ch. 8 of his book In Defense Of Natural Law (Oxford, 1999), and previously published in the Georgetown Law Review.)

Loving, therefore, did nothing to alter the nature of marriage; it merely removed an extraneous and unconstitutional add-on. Goodridge, by contrast, takes an element of marriage consistently treated as such in American (not to say Western; not to say universal) legal history, and characterizes it is an extraneous add-on.

Even Virginia, pre-Loving, did not deny that bi-racial marriages were marriages; it simply considered them illegal marriages (and in so doing, violated the Constitution). By contrast--this is something that may vary state by state, but in general--states that are loosely said to "ban" SSM by failing to issue marriage licenses to same-sex couples are actually denying that such unions are marriages. Virginia did not do this in regard to the marriage of Richard Loving and Mildred Jeter Loving. What it did do--and what the Court found to be unconstitutional--had to do with racial discrimination, not with marriage.
posted by Eve at 6:13 PM | link 0 comments

IS SSM LIKE INTERRACIAL MARRIAGE? DaleA replies to Steve Swayne and Interesting Monstah

[Quoting Swayne's piece:] "[W.E.B.] DuBois listed five demands: the right to vote; the elimination of separate accommodations (which he called 'un-American, undemocratic, and silly'); the freedom to associate; equity in law enforcement; and proper education. The outer two claims have no immediate parallel to the gay experience, but the inner three certainly do, as laws segregating and singling out gays persist."

[Dale replies:] Actually the outer two do also. In the mid 70's in Chicago, gay neighborhoods tried to get gays through the registrar of voters (or some such) program. Anyone who looked gay was thrown out of class. Which meant that they could not become registrars, which meant there could be no voter drives in gay venues. Which meant gays could not vote.

If intense harrasment, outright bullying, physical violence, teacher disparagement and administrative rejection are not barriers to proper education, what is? The stories are out there of gay kids beat up at school. Of teachers who put gay kids down. Of principals who refuse to protect gay kids. The statement is ignorant and offensive.

[Laura at Interesting Monstah writes:] "...To my knowledge, pigs don't stop a Black man and ask if he's gay prior to beating him up. Gay Black men are profiled in the same way as straights. So this equivocation between 'gays' and 'blacks' must end."

[Dale replies:] Gender atypical gay men and women are frequently stopped by police simply because they are not dressed according to gender norms. In the 70's gay men dressed in the "clone look" were frequently harrassed by police. Men in leather also continuously have this problem.
posted by Eve at 6:11 PM | link 0 comments

THE REAL AND THE IDEAL: Elizabeth Marquardt replies to Gabriel Rosenberg

Gabriel Rosenberg apparently thinks that being raised by your two biological parents is a privilege; otherwise he could not compare it to being raised by well-off, educated parents. And maybe he's right that at this point in our history it is a privilege to be raised by your own two parents; it's true that I've heard some young adults from intact families acknowledge with embarrassed pride that they were lucky that their parents stayed together.

But we didn't used to think of being raised by your mother and father as a privilege, we thought of it as a birthright, one that all children, no matter their family's wealth or social standing, had a good chance of attaining.

Maggie Gallagher has written persuasively that the decline of a marriage culture is creating a new generation of "have" and "have not" children--those who have married parents and all the security that brings, regardless of social standing, and those who lack married parents and, on almost every social indicator, fall behind.

Maybe you're onto something, Mr. Rosenberg, but are you proud of what you're found?

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Elizabeth writes more about the real/ideal split, in a slightly different context, here.
posted by Eve at 6:05 PM | link 0 comments

SSM WILL HELP CHILDREN: From The Humanist

[excerpted at the Amptoons blog--the article isn't online yet]

Nonbiological same-sex partners can most easily be compared with stepparents in heterosexual marriages. Like the same-sex partner, the stepparent has no biological link to the child. Stepparents and their stepchildren enjoy many, though not all, of the benefits and protections of biological parents. Increasingly, courts and legislatures have recognized the importance of maintaining a relationship between the stepparent and stepchild when the marriage dissolves by allowing the stepparent to petition for visitation and in some cases even custody.

Yet stepparents still have more rights than same-sex parents. If the noncustodial biological parent consents, stepparents may adopt children. Same-sex parents in the same situation are required extensive home visits and family studies, if the practice is allowed at all.

If the nonbiological partner is unable to establish a legal relationship with the child, the child can potentially suffer unduly should the relationship dissolve or the biological parent die. For example, the child wouldn't be entitled to financial support from the nonbiological partner, nor will the child have inheritance rights if the nonbiological partner dies without a will.

The child will often suffer emotionally as well. Without a legal relationship, the nonbiological partner has no right to seek custody or visitation, no right to consent to medical treatment of the child in an emergency, and no right to attend parent-teacher conferences or otherwise be involved in the child's day-to-day life and development. ...This starkly contrasts with laws recognizing a married man as the legal parent of any child born to his wife during the marriage regardless of any biological relationship between the father and the child--actual paternity doesn't have to be proved. ...

...The present practice of denying these children protection is similar to earlier draconian laws penalizing illegitimate children for the "sins" of their parents.

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posted by Eve at 6:03 PM | link 0 comments

WHAT DO THE STUDIES SAY ABOUT SAME-SEX PARENTING?

[Barry Deutsch, a cartoonist, has criticized the reviews of same-sex parenting studies hereat his blog, Amptoons:]

Both of the papers Eve links to were commissioned by anti-gay-equality activists; neither one has been subjected to peer review. Neither link Eve cites provides any evidence that children raised by lesbian or gay parents have any negative outcomes, compared to the children of straight parents.

To balance things out, Eve might want to add the following links, which summarize the social science evidence and conclude that the children of gay parents don't suffer any ill effects....

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posted by Eve at 5:58 PM | link 0 comments

SLIPPERY SLOPERY: Mark Tardiff replies to Gabriel Rosenberg

If I understand correctly, Gabriel Rosenberg is arguing that the gender difference requirement of marriage has not always been arbitrary but has become so as a result of the legal changes of the last thirty years. If a requirement that lasted thousands of years can become arbitrary in the space of thirty years, why can't the binary nature of marriage become arbitrary in the next thirty years (or less)? The question becomes even more pointed if we realize that polygamy, unlike SSM, has widespread historical and current precedents, making the binary requirement far more open to a charge of arbitrariness.

The Goodridge decision excluded polygamy, but set out the principles for its future legalization. As I read the decision, in the name of a civil right to marry the person of one's choosing the court assumed the authority to change the definition of marriage. Note what is happening: as a matter of principle the right of the individual takes precedence over the definition of marriage. All that remains is to construct an argument for the civil right to marry persons of one's choosing and the court, by following this principle, will assume the authority to modify the definition of marriage accordingly.

The argument itself is easily constructed by adapting the pro-SSM arguments accepted by the court. Polygamous families are already raising children and so need the tangible and intangible benefits of marriage enumerated by the court. The problem of a second marriage license can be avoided by three persons presenting themselves together to request a license. When refused, they can sue, claiming that their "exclusion from the institution of marriage is incompatible with the constitutional principles of respect for individual autonomy and equality under law." Nor does the fact that the decision separated marriage from procreation hurt their cause. If marriage is about "committed intimacy" then there is no logical reason why (for example) a man could not declare his desire to commit himself to two women to the exclusion of all others. Since the court has found that the gender difference requirement, despite lasting thousands of years, is nothing more than the result of prejudice, it will be even simpler for a future court to argue that the restriction to two persons is also a result of prejudice. If Goodridge stands, the script for the next court battle further down the slope is already in hand.
posted by Eve at 5:56 PM | link 0 comments

NATIONAL REVIEW RESPONDS TO CONSERVATIVE SUPPORTERS OF SSM

[includes replies to David Brooks, Jonah Goldberg, David Horowitz, and George Will]

In the weeks since the Massachusetts supreme court decided to impose gay marriage on the state, social conservatives have been losing the political debate over the issue. Already the language is changing. Democratic presidential candidates have even started referring to "non-same-sex marriage," and columnists to "op-sex marriage"--by which they mean what we all used to describe, before November, simply as "marriage." ...

If social conservatives are told that the issues that most concern them, notably abortion and gay marriage, are going to be settled by the courts; that they have no political recourse; and that the Republican party is not going to stir itself to do anything about the situation--well, then, it will be awfully hard to explain to them why they should show up at the voting booth, let alone lick envelopes and knock on doors through the fall, to help the party.

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posted by Eve at 5:53 PM | link 0 comments

REPORT FROM A DEBATE AT UCLA: From the UCLA Daily Bruin

Proponents of both sides of the debate on legalizing same-sex marriage presented their cases before a full house at the UCLA School of Law on Monday in a forum that included a surprise change of speakers.

About 200 people attended the event and heard three guests speak for and against the topic recently thrust into national spotlight. ...

The speakers included nationally syndicated columnist Maggie Gallagher and the moderator, UCLA Law Professor William Rubenstein, who joined the debate about halfway through to replace a speaker who did not come. ...

"A person in a same-sex relationship cannot marry strictly because of his/her sex," said Erwin Chemerinsky, a USC law professor. "That is, by definition, gender discrimination."

Maggie Gallagher, president of the Institute for Marriage and Public Policy, noted other laws did provide certain benefits to only one group of people but were not considered discriminatory. "Is it age discrimination to require people to be 62 years old to get Social Security benefits?" Gallagher asked. "No, because the reason
Social Security was enacted was to help the elderly." ...

But Chemerinsky said for those people who oppose same-sex marriages, there is a less drastic solution than the outright prohibition of them. "To people that don't like same-sex marriages, I offer a simple solution: Don't marry someone of the same sex."

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posted by Eve at 5:41 PM | link 0 comments

DEMOCRATS DIVIDED ON SSM: From the Boston Globe

[Your "group X divided on SSM" link for the day.]

National Democrats planning to launch their presidential nominee from the home state of the historic gay marriage decision either want to recast the issue as one of basic civil rights or to ignore gay marriage entirely during next summer's convention.

In interviews this week, top Democrats were struggling with how to handle the gay marriage decision at next year's convention, with the party's chairman saying he would like to avoid what he called ''wedge issues'' and to remain focused on the Democrats' traditional message of the economy, jobs, and health care.

''This convention will not be about those issues. It's not going to happen,'' Democratic National Committee chairman Terry McAuliffe told the Globe yesterday. ''George Bush wants us to talk about those other issues, because he can't talk about jobs, he can't talk about health care, he can't talk about education. This election is not going to be about these wedge issues that the Republicans and George Bush want us to talk about.''

That approach is far from certain, however, as some Democrats, including Convention chairman Bill Richardson, said the party should recast the gay marriage debate as one of basic civil rights, to draw a sharp contrast with Republicans.

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posted by Eve at 5:39 PM | link 0 comments

"QUEER ALLIES": Ramesh Ponnuru on alliances with Islamists

Evan Gahr writes that opponents of gay marriage have teamed up with radical Islamists. Didn't social conservatives used to oppose the "big tent" strategy for the Republican party? To have made tactical alliances with fairly brutal Islamic dictatorships at the United Nations in the 1990s may have been defensible. After 9/11, this kind of coalition politicking is simply appalling. Gay marriage may or may not be a good idea. The Islamists want to kill us.

here

and here
posted by Eve at 3:50 AM | link 0 comments

STATE DOMAS AND PRIVATE BENEFITS: A poster at the Volokh Conspiracy

...There are good arguments against state DOMAs, but there are also very bad ones. This morning, for instance, I heard an argument (by a lawyer, no less) that state DOMAs were bad because they could be used to challenge the private provision of benefits to same-sex partners. Specifically, he claimed that passage of a state DOMA would facilitate a legal challenge to a private employer for extending the same health benefits to domestic partners that are extended to spouses under the company health plan. He also claimed that a hospital might be sued if it allowed spousal visitation rights to domestic partners. This struck me as highly dubious, so I decided to check out the language in question, and this confirmed my suspicions.

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posted by Eve at 3:48 AM | link 0 comments

FMA AND FEDERALISM: Justin Katz replies to Jonah Goldberg

...The fact of the matter is that the Federal Marriage Amendment will only do exactly what Goldberg wishes were the case without it: allow (force) the nation to take its time experimenting and debating. That he doesn't see this seems related to his unfair assumption that supporters of the FMA just want the whole debate to go away and think the FMA will accomplish that goal. Some may desire it to go away — although I'd suggest that many, many more supporters of gay marriage or undecided folks desire this — but they would be foolish to believe that it will.

About all the FMA does, if we take an objective view of it within the context of history, is state something that has been the law of the land all along and ensure that it does not cease to be the law of the land until a critical mass of Americans are convinced that a change would be for the better. ...

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posted by Eve at 3:45 AM | link 0 comments

SLIPPERY SLOPERY: Gabriel Rosenberg replies to Mark Tardiff

I am constantly reading about how the Goodridge decision has opened the gate to polygamy. How? The plaintiffs in Goodridge took the position that the state could not use sex as a factor in granting marriage licenses. They were supported in this by the state constitution.

This does not translate at all to polygamy. A plaintiff wishing to get married while already being married would be taking the position that the state could not use marital status in granting marriage licenses. Not only is there nothing in the state constitution to support this, but it's silly. How can one argue the government should not recognize marital status, but then ask to have a marriage recognized? Marriage has legal consequences and one of those consequences is that you cannot marry another without the first marriage ending through death or divorce.

Does the state have legitimate reasons for this consequence? Well, I can think of four right off the bat: It promotes stability in marriage. It makes it possible to determine next-of-kin. It prevents an unlimited financial burden on the state and private entities (who would otherwise, for example, be required to provide health insurance for unlimited spouses). It
helps to prevent fraudulent marriages.

Mark Tardiff is worried that because the court ruled that the gender difference requirement is arbitrary, everything is arbitrary. After all, the gender difference aspect of marriage was required across all cultures for thousands of years. Yet the court did not rule that the requirement has always been arbitrary. When there were legal differences between husband
and wife, and between man and woman, there would be natural reasons for requiring gender difference in marriage. Those legal differences, though, have disappeared over the past thirty years. The laws predicated on the binary nature of marriage, or the difference between married and single, have not disappeared.

If anything, Goodridge hurt polygamists' case. If marriage were only about procreation there would be no reason to deny a second marriage license. A man can procreate with two women. It's the other aspects of marriage that provide the reason to limit each person to at most one spouse at a time.
posted by Eve at 3:42 AM | link 0 comments

THE REAL AND THE IDEAL: Gabriel Rosenberg replies to Eve

[replying to this post here]

Studies have shown that the ideal situation for raising children is one in which the parents are well-off and more educated. Should we require that at least one spouse have a college degree and a minimum income before granting a marriage license? Other couples could raise children, but we would only give the special honor of marriage to those in the ideal situation.
posted by Eve at 3:33 AM | link 0 comments

WHAT DO THE STUDIES SAY ABOUT SAME-SEX PARENTING?

Hey, look, you can get a nice review of literature here.
posted by Eve at 3:31 AM | link 0 comments

POLL FINDS CANADIAN SUPPORT FOR SSM DROPPING: From the National Post

A new National Post poll suggests Canadians' views on same-sex marriage have shifted markedly in recent months, with a solid majority now
opposed to the notion.

That compares to an almost even split--with a slight advantage to supporters of gay and lesbian marriage--in other polls this summer and fall.

But the new COMPAS Inc. survey, conducted in October and November, also indicates many of those who are against recognizing same-sex couples under the existing marriage law would agree to endorsing such unions in a
separate legal category.

When asked in the COMPAS poll to choose one of three options, 30% said marriage should include only heterosexuals, and 37% said the definition of marriage should stay intact but a new category that includes
same-sex unions should be created.

Only 31% said traditional marriage should be opened to gays.

more

more Canadian pollage here
posted by Eve at 3:25 AM | link 0 comments

TEXT OF DECISIONS:

Loving v. Virginia (US Supreme Court)

Goodridge v. Department of Health (MA Supreme Court)
posted by Eve at 4:47 AM | link 0 comments

IS SSM LIKE INTERRACIAL MARRIAGE?

It's time for a new question for the week, I think. First I'll post a bunch of links about the SSM/interracial marriage, or Loving/Goodridge, comparison. Then I'll give my own take briefly. Then you all will pitch in!

Blacks Object to Gay Marriage Comparison: "...But the Rev. Talbert Swan II said the two struggles are not similar because blacks were lynched, denied property rights and declared inhuman.

"'Homosexuality is a chosen lifestyle,' he said. 'I could not choose the color of my skin. ... For me to ride down the street and get profiled just because of my skin color is something a homosexual will never go through.'

"A poll released by the Pew Research Center for the People & the Press on Nov. 18, the day of the ruling, indicated 60 percent of blacks opposed gay marriage."

Interesting Monstah (lesbian blogger returning to the AME church): "...To my knowledge, pigs don't stop a Black man and ask if he's gay prior to beating him up. Gay Black men are profiled in the same way as straights. So this equivocation between 'gays' and 'blacks' must end.

"And to be perfectly clear, these smug, self-appointed sanctimonious 'black leaders' who spout this line are not the only ones doing it. I can't tell you how many white gays have demanded queer loyalty of non-whites by patronizing us with the same comparison, expecting us to throw in our lot with them, who can be equally as condescending. Get your acts together, kids, then come talk to me about oppression."

WEB DuBois and SSM: "...To dismiss the black gay experience as unimportant to a discussion on gay civil rights is akin to dismissing the Harvard-trained DuBois as unrepresentative of blacks and thus unqualified to speak about black civil rights. ...

"DuBois listed five demands: the right to vote; the elimination of separate accommodations (which he called 'un-American, undemocratic, and silly'); the freedom to associate; equity in law enforcement; and proper education. The outer two claims have no immediate parallel to the gay experience, but the inner three certainly do, as laws segregating and singling out gays persist."
posted by Eve at 4:44 AM | link 0 comments

GAY DIVORCEES: The Washington Post on same-sex divorces

Now that Massachusetts's top court has given the question of gay marriage an even more prominent place on the public agenda, it's time to talk about gay divorce. And let's not forget division of assets, child custody and all the other issues that arise when two people decide to dissolve a state-sanctioned relationship. ...

As the song says, "breaking up is hard to do." Without certain legal protections, it is even harder. Relationships may begin with attraction and love, but once they endure, they lead to the entanglements and complications of a shared life. As a family therapist who has counseled many couples, I can say that the need to guarantee fairness in financial matters (on issues such as health insurance and property rights, among others) provides one of the most compelling arguments for formal recognition of gay and lesbian partnerships.

These legal protections seem most important for homosexual couples who are raising children. When their relationships are going well, these couples have a family dynamic that many heterosexuals might envy. Research shows that they share child care, paid work and household decision-making much more equally than heterosexual couples. Lesbian parents may tell their children from an early age that biology doesn't matter, that they have two parents, that the non-biological mom has the same status as the biological one. Children in such homes often form strong attachments to both parents. As a result, these children may be especially vulnerable if the family dissolves.

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posted by Eve at 4:36 AM | link 0 comments

THE REAL AND THE IDEAL: Eve replies to various people

So there's been a lot of talk that suggests the alternatives are: same-sex marriage, or snatching kids from families headed by two lesbians or two gay men.

Why? Why is that the dichotomy?

I spend a good chunk of my week dealing with the fallout from single motherhood. It seems obvious to me that no good would be done by taking these kids away from their mothers; but neither do I want anybody, in any way, promoting single motherhood as just as good as marriage.

Marriage is a special right; marriage is an honor. Not giving a particular child-rearing arrangement the societal honor of marriage does not require banning that child-rearing arrangement.

(I know this post totally doesn't address the question of how best to protect children currently being raised in marriageless households, whether that's two lesbians, a mother and her mom, or other arrangements. Sorry for shankery but figured it was worth it to get this perhaps minor point out there.)
posted by Eve at 4:34 AM | link 0 comments

SSM NOT THAT POLARIZING? From Indiana University

In light of the Nov. 18 court decision in Massachusetts on the rights of same-sex couples to marry, an Indiana University
professor has released preliminary results of a national, non-partisan study of public attitudes on the issue.

In many instances, people's views on the issue were affected by whether children were part of the equation. While younger people tended to be more accepting of single-sex marriages, an important subset of older respondents consistently were more favorable to them. Also, women generally were more in favor of single-sex marriages than men. ...

Respondents were asked about kinds of living arrangements and whether they constituted a family unit. While people were in complete agreement about the traditional family unit consisting of a husband, wife and children, opinions about other living arrangements were affected by the presence of children in these relationships.

Eighty-one percent of respondents nationwide said they believed that an unmarried man and woman with children constituted a family. This number dropped to 54 percent when people were asked about two lesbians living together as a couple with children and to 52 percent when two gay men were a couple with at least one child.

However, when children were not a factor, approval for less-traditional living arrangements dropped considerably.

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posted by Eve at 1:41 AM | link 0 comments

MASS. CONSTITUTIONAL AMENDMENT UNLIKELY TO PASS: From the Boston Globe

The state Senate president and the House majority leader, responding to a Globe survey of Massachusetts legislators, say they would vote against a proposed constitutional amendment that would ban same-sex marriage and civil unions. The poll, conducted during the week following the Supreme Judicial Court's historic decision Nov. 18 in favor of same-sex marriages, indicated
that, of the 94 lawmakers who responded, opponents to the constitutional measure outnumbered backers by a 2-to-1 margin.
However, the situation on Beacon Hill remains fluid, and the majority of lawmakers declined to make public a position on the proposed
amendment. The court's ruling is setting off intense lobbying from both proponents and opponents, and those campaigns are expected to accelerate as the Feb. 11 constitutional convention nears.

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posted by Eve at 1:38 AM | link 0 comments

HUMAN RIGHTS CAMPAIGN TOP 10 REASONS FOR SSM

here
posted by Eve at 1:36 AM | link 0 comments

THERE'S A WHOLE PASSEL OF SSM STUFF on the IndeGayForum website.
posted by Eve at 1:34 AM | link 0 comments

SAME-SEX PARENTING: Mike Pignatello replies to Elizabeth Marquardt

I appreciate and share Elizabeth's concern for children. Yet it's apparent from her argument that none of her points are specific to same sex marriage. Her issue seems to be primarily with the divorce culture, reproductive technologies, and how these things have produced families with only one biological parent. These are corollary and important issues, but are not determinative of the civil rights question at hand. We can debate those points until the cows come home. The issue at hand is this:

When same sex couples can already legally raise families, why do the children of same sex couples not deserve the same legal protections through their parents that are afforded the children of opposite sex couples?

I think it's useful to frame the debate in terms of what is gained or lost for the people who want to obtain this basic right. We cannot ignore the lie that simply disallowing SSM will somehow prevent same sex couples from producing their own children. This cannot be the focus of the debate. Gays and lesbians have as much right to raise children as any heterosexual, and, in most states, are free to act on this right.

To change the debate about how same-sex marriages are not good for children is to talk about repealing the basic (human) right of individuals to bear and raise children, not to discuss the merits or drawbacks of SSM. This is quite off course.
posted by Eve at 1:28 AM | link 0 comments

INEVITABLE TREND? Mark Barton replies to David Blankenhorn

David Blankenhorn writes: "More generally, since when do we--since when do William Safire and George Will--endorse a negative trend on the grounds that the trend is gaining momentum?"

Mark Barton: When it's a trend that it's clear one has no leverage to change. In the old days, society put immense legal and social sanctions in place against divorce. People weren't stupid--they knew going into marriage that there was a significant chance that it would end up being decades of misery. Yet they did it anyway in large part because they
were desperate to have sex, and society also put in place immense legal and social pressure against sex outside of marriage. At the time, this probably really was the least bad solution to a complex problem, and it was simple to maintain a consensus in favour of it.

Nowadays, however, there is reliable contraception. Since nobody but a few particularly doctrinaire Catholics (and Mormons) approve of banning contraception, and there are Supreme Court decisions ruling out banning it, there is no realistic prospect of having it banned. Unless it is banned, there is no realistic prospect of building a concensus that sex before marriage is wrong. Unless such a consensus is built there is no prospect of strongly discouraging divorce and still having people get married in the first place. Like it or not, (civil) marriage is not, and never again can be, more than a recognition and facilitation of the sort of commitment required to make it prudent to embark on bearing and raising children. And given that it's now a recognition of that level of commitment, there's no justification for making it opposite-sex only.
posted by Eve at 1:25 AM | link 0 comments

THE REAL AND THE IDEAL: Ben Bateman replies to Mark Miller

Responding to my post, Mark Miller argues that the debate on same-sex parenting is about law, not ideals. He says that it's absurd to think that law should be about ideals, because, for example, divorce is not illegal.

The error here is in confusing "law" with "criminal law." Governments use law to encourage and discourage all sorts of behaviors in all sorts of ways: Charitable contributions are tax deductible. Users of alcohol and tobacco must pay sin taxes. Workers who choose to save some of their paycheck can use retirement plans to defer taxes. Most towns put onerous zoning restrictions on strip clubs.

Ideally, everyone will give generously to charity, abstain from alcohol and tobacco, save money for their own retirement, and avoid strip clubs. We will never reach that ideal. No government has the power to make its citizens completely virtuous. But every government establishes ideals and uses a variety of techniques to push people towards them. No government could survive without doing so. Certainly no government could oversee a prosperous economy without the moral ideal that people should keep their promises, which is the foundation of all modern commerce.

Single-sex parenting is the best available option in many circumstances. But it is not the ideal. It is perfectly ordinary for a government to recognize this ideal by encouraging childrearing by opposite-sex couples, preferably the child's parents, without making single-sex parenting a crime. Governments are not required to criminalize everything they discourage.
posted by Eve at 1:12 AM | link 0 comments

GOODRIDGE AND THE SLIPPERY SLOPE: Mark Tardiff

The slippery slope is no hypothetical danger, but is staring us in the face. Polygamy groups are already organizing, adapting the arguments and using the strategies of the pro-SSM groups (see the Stanley Kurtz quote in the Sam Schulman article). The Goodridge decision itself opens the way.

Justice Marshall says that same sex couples are "arbitrarily" deprived of membership in the marriage club. Gender has been a determining factor in who one could marry across all known cultures back through the millenia beyond
recorded history. If even gender is arbitrary, then everything is arbitrary. No other element
has even a fraction of a chance of withstanding a charge of arbitrariness. Why should the state have any more stake in upholding the binary nature of marriage
than it does the gender difference? There is no logical reason, and even consequences
for society have no force. As Goodridge has shown, any concerns for consequences can be easily disposed of with one wave of a legal wand.
posted by Eve at 1:10 AM | link 0 comments

SAME-SEX PARENTING: Mark Miller replies to Michael Brazier

Brazier writes: "To point out the obvious: marriage is not, and never was, reducible to having 'your relationship acknowledged.' The civil rights argument for SSM works only if marriage can be so reduced."

That seems to be the main argument against SSM, that it 'reduces' marriage to a "right." But that doesn't work, certainly from a legal point of view. How else do you explain that institutionalized criminals have a right to marry? If marriage (or legal acknowledgment--i.e.: civil unions) is not a civil right, then what is it in your view? And what about it legally justifies the discrimination against same-sex couples?

Brazier writes: "Every child has by nature a mother and a father; the point of the state's recognizing marriage is to encourage each child's natural father and mother to discharge their duties to the person they brought into the world. Adoption is a backup, meant for children whose natural father and mother will
not or cannot do their duty. When the natural parents fail, any decent citizen may choose to substitute for them (hence we allow single people to adopt.) But reasoning from adoption policies to marriage is judging the normal by the exceptional."

To point out the obvious, marriage is not, never was about encouraging natural parents to discharge their duties to the person they brought into the world. I'll grant that the benefits of marriage do "support" parents in the discharge of those duties. But your argument is that adoption policies should not apply to marriage policies--which makes no sense since your argument against acknowledging same-sex relationships is based on the "biological" fact that same-sex couple cannot be parents. You are saying that the law should allow and support for people to discharge their duties--even to children they are not biologically linked to. But this logic does not apply to SSM?
posted by Eve at 9:01 PM | link 0 comments

THE IRRELEVANCE OF GAY PROMISCUITY: DaleA

[replying to Eve's post here]

Where have we established as an undoubted fact that gay men are more promiscuous than straight men? And how is this known? If the measure is simple number of sexual partners then perhaps gay men are at the higher end of the spectrum. If, however, the measure is acting on opportunities, I suspect the situation changes. In my experience men seeking women act on each and every opportunity that comes along. These come along infrequently. With gay men opportunities for sex may be much more frequent. A straight guy who grabs 100% of his chances for casual sex strikes me as much more promiscuous than a gay man who takes up 50% of his chances. This would hold even if the straight man has two partners and the gay man 200. I think this line of reasoning confuses absolute numbers with rates, which is not a particularly valid line of reasoning.

My further thought is that if straight men are less promiscuous, how do we account for the armies of prostitutes lining the streets in virtually every city? It seems obvious that gay men are not their customers. Every time I read about a crackdown the description of the clients runs to: married suburban father of two. Any study that shows a high rate of fidelity without finding these customers should be suspect. I suspect that gay men are generally more honest about their sexual adventures.
posted by Eve at 8:57 PM | link 0 comments

DO KIDS NEED MOTHERS AND FATHERS? Michael Triplett

As I read the passionate (and persuasive) arguments why both mothers and fathers are important, I notice that there is a lot of research being used to support propositions that the research never explored. I concur that the vast amount of research shows that children who live in a home with their biological mother and father in a low-conflict marriage are the most "successful" when compared to children raised in single parent households or even households where a biological parent has remarried or the parents are cohabiting. However, this research doesn't explore what happens to children raised in two-parent, low-conflict relationship families with two parents of the same gender. There is little research that shows whether those families are more like (a) married bio parents, (b) single parents or (c) cohabitors. My guess is that they are more like married bio parents, but that's my admitted bias. However, to toss out empirical data and research that doesn't control for the result one is touting is intellectually dishonest and doesn't allow for an honest debate. Yes, among "traditional" family settings, a married bio mom and dad in a low-conflict marriage is the best. But without research that factors in low-conflict, same-sex parent relationships, the research is informative and interesting, but not the holy grail.

When we talk about the hunger for father's attention in fatherless families, it is not merely about gender. It usually means that we are talking about homes with single mothers who are often ill-equipped and prepared to be
parents. We are talking about communities with high levels of poverty. We are talking about high levels of relationship dysfunction that may prevent mom from ever having positive relatioships with men. Those factors
should not be conflated to mean that two women raising an adopted or biological child are going to have the same problems as a single mom. You can't compare those situations at all, except for the absence of a male. Unless we plan on creating a social policy that strips children away from single moms or dads, we shouldn't create a social
policy that denies the right to marry just because it lacks parents of one gender or the other.
posted by Eve at 8:55 PM | link 0 comments

REPRODUCTIVE TECH: Matt Taylor

Reproductive technologies may, in the near future, present a possibility that has never existed before; namely, that two people of the same sex may be able to biologically procreate. The chromosomes in a sperm cell nucleus and ovum nucleus are essentially the same, except that ova carry only X chromosomes, whereas a sperm cell may carry either X or Y. In vitro techniques could exploit this similarity to allow same-sex couples to conceive a child, for example by transferring a sperm cell nucleus to an ovum, or by chemically inducing one parent's stem cells to differentiate into ova or sperm cells. The child's DNA would then be a genetic mixture of the two parents' DNA, just like a naturally conceived child; it might not even be possible to tell the difference, genetically, between naturally-conceived children and children conceived through such a procedure.

If this process is dangerous to the child's health, then it is obviously immoral. But assuming, for the moment, that the procedure is safe, what are the moral implications? Is it inherently immoral for a child to be conceived this way? Should the child's two genetic parents be his or her legal parents as well? Same-sex procreation could be banned by law, but if the law is broken then what becomes of the child so conceived? This question has been touched on, somewhat, in the debate over cloning, but I'm curious to see how people on both sides of the same-sex marriage issue respond to the scenario.
posted by Eve at 8:52 PM | link 0 comments

MARRIAGE AND BENEFITS: Mark Barton replies to Maggie

Maggie in the Weekly Standard: "For many same-sex-marriage advocates, marriage is basically a legal ceremony that confers legal benefits, a rite that gives rise to rights. In this spirit, the majority in Goodridge describes marriage as if it were a creature of the state: 'Simply put, the government creates civil marriage,' which is a 'wholly secular institution.' This reductionist vision of marriage also drives other advocates of family diversity, like the authors of the American Law Institute's 'Principles of Family Dissolution,' who call marriage merely 'the sum of its legal incidents.' 'From the point of view of family law,' they say, 'the distinction between a full-blown domestic partnership, like Vermont's domestic unions, and a lawful marriage is merely symbolic.'"

Mark B.: The quoted remarks don't support Maggie's thesis that SSM advocates have a reductionist view of marriage. The claims are all trivially true, regardless of whether one has a reductionist or holistic view of marriage. The government does create "civil" marriage. "From the point of view of family law," the difference between marriage and civil unions is purely symbolic. To suppose that this is all marriage is or could be or should be is as ridiculously narrow a view as Maggie suggests, but this SSM advocate doesn't hold it, and is not aware that anybody else does either. In fact, in a section just before the above quote, Maggie tacitly concedes that the package of legal benefits is not the whole story to advocates of SSM marriage and explains (correctly) why they emphasize that particular aspect among others: "This focus [Mark B.'s emphasis] on the 'legal benefits' of marriage allows them to make one of their strongest arguments: Withholding legal benefits is a form of immoral discrimination." (People might differ on whether it's immoral discrimination, but fortunately it's even more plainly and more relevantly illegal discrimination.)

SSM advocates believe that there are real people out there in real same-sex relationships that have the same internal dynamics as conventional marriages, and that it's valuable to recognize and facilitate these relationships in the same way as for conventional marriages.

Moreover, mutatis mutandis, this is identical to Maggie's position vis a vis traditional marriage (TM). As a legal matter, to TM advocates, TM is "nothing but" a non-transferable license to have sex (and raise the resulting kids). Maggie is refreshingly candid about this:

Maggie: "The law helps sustain the institution of marriage by (a) defining [Mark B.'s emphasis] who is married and (b) maintaining the basic norms of what marriage means, including sexual fidelity, mutual responsibility for children, and permanence. [...] More important, by sustaining a public way of determining who is married and who is not, marriage law helps other more important players--families, communities, schools, churches--to sustain a marriage culture. Because we know who is married, we know who is committing adultery, and who is having a child out of wedlock."

Mark B.: Maggie talks of an "institution of marriage" but then tacitly
concedes that as a matter of actual practice it has no substance independent of the law--the law does the "defining" of who is married and (at least in Maggie's nostalgic fantasy) the law and the community target their shunning and shaming and sanctions accordingly.

Maggie has been at pains to try to justify a license-for-sex model in terms of broader, nobler goals, and I try to take her arguments seriously. It'd be nice if she'd extend the same courtesy in return. When it comes to TM, even though she typically emphasizes benefits to children, Maggie is not shy about claiming benefits to individuals: "When family scholars and marriage advocates speak of the benefits of marriage for men and women [Mark B.'s emphasis], for children, and for society, we are talking about the good things that happen when husbands and wives are joined in permanent, public, sexual, emotional, financial, and parenting unions." SSM advocates believe (typically from personal experience or direct observation) that analogous benefits accrue to same-sex couples. Yet Maggie goes to striking lengths to avoid acknowledging such benefits. But it looks like Maggie hasn't even noticed that her opponents are proceeding on the same paradigm as herself, of taking institutions that are perceived to have value by virtue of providing intrinsic benefits and reinforcing them with additional external benefits. And that's pretty offensively out of touch.
posted by Eve at 8:48 PM | link 0 comments

MARRIAGEDEBATE CONTRIBUTOR MICHAEL TRIPLETT HAS A BLOG!

Lots of SSM-related stuff.
posted by Eve at 8:29 PM | link 0 comments

UTAH POLYGAMIST INVOKES LAWRENCE

[From the Dept. of You Knew This Would Happen]

A lawyer for a Utah man with five wives argued Monday that his bigamy convictions should be thrown out following a Supreme Court decision decriminalizing gay sex.

The nation's high court in June struck down a Texas sodomy law, ruling that what gay men and women do in the privacy of their homes is no business of government.

It's no different for polygamists, argued Tom Green's attorney, John Bucher, to the Utah Supreme Court. ...

Polygamy has an estimated 30,000 practitioners in the West.

more
posted by Eve at 8:28 PM | link