IS THIS ABOUT HOMOSEXUALITY? From Crosswalk

The question of homosexual marriage presents the American people with an inescapable moral challenge. The words homosexual and marriage are inherently contradictory. The very fact that these terms are in public conflict demonstrates the radical character of the social revolutionaries that now demand the legalization of homosexual marriage. ...

Pitirim Sorokin, the founder of sociology at Harvard University, pointed to the regulation of sexuality as the essential first mark of civilization. According to Sorokin, civilization is possible only when marriage is normative and sexual conduct is censured outside of the marital relationship. Furthermore, Sorokin traced the rise and fall of civilizations and concluded that the weakening of marriage was a first sign of civilizational collapse.

...Sorokin's insight was the realization that civilization requires men to take responsibility for their offspring. This was possible, he was convinced, only when marriage was held to be the unconditional expectation for sexual activity and procreation. ...

...The integrity of marriage is essential for children to know the security necessary for their own self-identity and sense of belonging.

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posted by Eve at 4:05 PM | link 0 comments

CHOICES AND MARRIAGE: Gabriel Rosenberg

I hear a lot in the same-sex marriage debate about how same-sex couples chose their "lifestyle" and thus must embrace the consequences of that decision with regards to marriage. The argument seems to be that it is not the state that is denying them the benefit of marriage, but rather it the decision of the individual to choose a same-sex partner. ...

...It is very likely that a person who plans on having kids will choose a spouse that he thinks will be a good parent and will help to provide an optimal parenting situation. That does not mean that we must forbid all but the theoretically best spouse, especially because what we may find to be theoretically best is not necessarily what actually is best for that individual. In fact, we have a long tradition in this country of parents deciding what is the best way to raise their own children. This is based in part on a parent's right to raise their children, and in part on an understanding that a parent is likely to know best what is right for their children. ...

I am not saying that the state is not involved in choices involving marriage and parenting. I am saying that it is only with great justification, if at all, that we allow the state to remove the choice entirely. ...We might restrict certain benefits to those couples who choose to marry, but I think we do so more in recognition of the additional responsibilities incurred by marriage, than as a reward per se for choosing marriage. We recognize that marriage and parenting are difficult, and we do our best to make them easier.

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posted by Eve at 4:01 PM | link 0 comments

BOSTON JEWISH GROUP OK'S SSM: From the Boston Globe

The Jewish Community Relations Council, the major public policy voice of the Jewish community in Greater Boston, has voted overwhelmingly to endorse same-sex marriage.

The endorsement, by an umbrella organization representing 42 Jewish groups, is part of a growing effort by liberal religious voices to counter the strong opposition to same-sex marriage voiced by the state's Catholic bishops. The bishops of the state's four Catholic dioceses today plan to announce a major campaign to defeat same-sex marriage. ...

Several Jewish organizations had already endorsed same-sex marriage, including the largest Jewish denomination in the country, the Union for Reform Judaism, and the Northeast region of the Central Conference of American Rabbis, the association of Reform rabbis that voted unanimously this week to support same-sex marriage. But same-sex marriage is opposed by leaders of Orthodox Judaism, a denomination that makes up a small minority of Greater Boston's 250,000-member Jewish community.

The board of trustees of the Jewish Community Relations Council, made up of Jewish religious and social service organizations and prominent Jewish individuals, on Wednesday night voted 51-5 in favor of the resolution endorsing same-sex marriage.

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posted by Eve at 3:58 PM | link 0 comments

WHO CONTROLS THE SPIN?

The New York Times?
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IS MARRIAGE A RIGHT? Sarah Bates

[Sarah Bates is a student in Detroit, MI.]

I am 25, and have been responsible for taking care of my mentally ill sister.

If the government or a private company grants "rights" to a lesbian woman, why should I not have the same "rights" to protect my sister? Isn't the failure to grant me such rights discrimination?

I haven't heard anybody argue that ANY two individuals should have the right to enter into a contractual agreement...the argument is that ANY two unrelated individuals in a sexual relationship should have the right to enter into a contractual agreement. It seems to me that the basis for same-sex marriage has nothing to do with fundamental human rights but everything to do with asking individuals to subsidize other people's sexual choices in the form of benefits. (My university allows me to insure either my live-in boyfriend, or my lesbian partner, but does not allow me to insure my sister. Why are the only lifestyle decisions worthy of recognition sexual in nature?)

Having said that, I believe supporters of same-sex marriage now have two options: to either allow for incest, or to question the legitimacy of marriage as an institution. Both options threaten basic family structure, so let's stop deluding each other. This debate is not about who has a "right" to marry, but instead will determine whether our society recognizes and respects marriage.
posted by Eve at 1:30 AM | link 0 comments

FRIEDRICH HAYEK ON GAY MARRIAGE?: From the Boston Globe

SHORTLY AFTER the Massachusetts Supreme Judicial Court's decision on single-sex marriage in November, a debate broke out on the Reason Online and National ReviewOnline weblogs: Would Friedrich Hayek endorse or condemn gay marriage?

The appeal to the authority of a dead Austrian economist was odd. But the debate pointed up the interesting tensions in Hayek's work. On the one hand, Hayek was in many ways a conservative, appreciative of the collective knowledge embodied in long-standing institutions. He vehemently opposed efforts to remake society to conform to grand plans for social improvement. ...

But Hayek was also a classical liberal, appreciative of the importance, to both individuals and societies, of Millsian "experiments in living." He believed that social and economic institutions did and should evolve as human beings learned more about the world and each other. ...

The real Hayekian question is not "WWFD?" (What Would Friedrich Do?) but when and how social institutions should change, and when and how the law should reflect that evolution.

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posted by Eve at 1:24 AM | link 0 comments

NEW QUESTION: IS THIS ABOUT HOMOSEXUALITY?

This seems like an obvious question at first! Of course the SSM debate is about homosexuality--it's about homosexual relationships, no?

And many writers, on this site and elsewhere, have argued that no matter what the stated reasons for opposing SSM, the real, bedrock reasons have to do with homosexuality: As Andrew Sullivan put it recently, "[F]or this administration, gay and lesbian citizens are regarded as beneath responsibility. There is no need for a social policy toward them, since they have no human needs or aspirations. If gays try to build responsible lives, and families, the important thing is not to help or encourage or reach out to them, but to prevent their relationships at all costs and in any way possible--even if we have to amend the constitution to keep them excluded from families and society."

Yet there is some evidence that the SSM debate is not--or need not be--about homosexuality and gay relationships. First, as Maggie and I have pointed out a few times, some past societies have developed socially-approved roles for (male) homosexual relationships, yet these societies have never considered such relationships to be marriages. (Not to mention that there are all kinds of socially-approved relationships today that are not considered marriages.)

Second, I don't think Elizabeth Marquardt (who supports civil unions, but not SSM) is alone when she says, "I've always known gays and lesbians--school, workplaces, neighbors. I find really repellent those who think it is a sinful lifestyle, and I don't want to be identified with them."

Third, there are people like me: For religious reasons, I don't think homosexual relationships are good (...sorry Elizabeth), but I also don't think you need to share that belief to share my reasons for opposing SSM. I'm pretty sure none of my posts here have addressed that belief--nor do I think that's the main issue, the bedrock issue, or even a wildly relevant issue. (After all, there are all kinds of things that I think are immoral that I don't think should be illegal!)

So: What's the deal? Is it possible to support SSM and disapprove of homosexual acts, or vice versa? Is Sullivan right about the bottom line of the debate, or am I right? If this is a debate about homosexuality, what are the crucial questions that need to be addressed?

Click that email link and let's get started....
posted by Eve at 2:51 AM | link 0 comments

PRISONERS' DILEMMA: Eve

David Barnes writes, "I'm curious about the rights of prisoners-for-life to marry. There have been a lot of arguments about how horrible it is that death row inmates can marry but gay people can't, but I can't recall anyone actually defending that position."

Eve writes: Yup, I see this a lot too. This argument operates on both an analytical level and an emotional one. Both are powerful, but both ultimately fail.

The analytical claim is that marriage can't be primarily or intrinsically about childrearing, tying men to their children, guaranteeing paternity, etc., because prisoners with life sentences aren't going to be making or raising babies, yet they can marry.

I agree, this is an oddity. But look how it applies to defenders of SSM: "Marriage can't be primarily or intrinsically about pledging to care for another person, vowing to be committed to him or her, because what kind of care can a prisoner-for-life provide? What does 'commitment' even mean in this context? 'I'll write you lots of letters'?" Every function for which society could institute or honor marriage is much more difficult and much less likely for life prisoners.

So I think both supporters and opponents of SSM actually agree on why prisoners can marry: It's some combination of (in reverse order of importance)

1) possibility of change--the prisoner could be exonerated or his sentence commuted.

2) marginal ability to fulfill functions of marriage--some care and commitment, some ability to parent pre-existing kids.

3) nobody thinks life-prisoner-marriage will attenuate public understanding of the purposes of marriage. Nobody is pushing to have this obviously sub-ideal arrangement recognized as Just As Good as marriages of non-life-prisoners.

The emotional argument is different--"Why can bad horrible people on death row marry, while good wonderful gay people can't?"--and should probably be addressed separately.
posted by Eve at 1:58 AM | link 0 comments

IS MARRIAGE A RIGHT? Mark Tardiff replies to Matt Taylor

Matt Taylor prefers natural law to the Constitution as a source of an authority
approach to morality. I agree; in fact, my suggestion was motived more by the fact that natural law reasoning is questioned in many quarters. I also agree with his formulation of the problem with the Goodridge decision.

With regard to the question of atheism and morality, I acknowledge that many people live by a secular code of morality. I accept that people can deny the existence of God and still have a strong moral sense. My point was more
subtle: the philosophical defense of the moral sense. However, I think that an extended
discussion of this would take us too far from our present topic so I will let it drop. Here I will note only that my prior contention does not prevent me from acknowledging that an individual atheist could affirm the traditional understanding of marriage.
posted by Eve at 1:42 AM | link 0 comments

IS MARRIAGE A RIGHT? Mark Barton replies to Mark Tardiff

Mark Tardiff writes: The founders' principle is that political sovereignty resides with the people, who delegate necessary authority to their representatives.

Mark B.: Representative democracy was certainly one of the founders' principles. But an even bigger part of the reason that the US constitution is so highly regarded is that it's leavened with anti-democratic principles to prevent tyrannies of the majority. For example, freedom of speech is intrinsically anti-democratic. It says in effect that no matter how many votes of like-minded citizens you may be able to muster, you may not have your representatives suppress the opinions of people you disagree with. The framers of the Massachusetts constitution had similar views. They said, "Equality under the law shall not be denied or abridged because of sex [emphasis added], race, color, creed or national origin." Implicitly, that means no matter how large or passionate a majority of the people there may be that desires to discriminate on those criteria. While the
constitution remains in effect, the people of Massachusetts have surrendered that particular aspect of sovereignty, and it's the job of the Supreme Judicial Court to strike down laws that are enacted without that authority. If the people of Massachusetts have belatedly realized that some aspect of their culture depends on a form of discrimination
that they have renounced then too bad. Of course if they have a sufficient supermajority they can always amend the constitution to get it back, but the thought ought to give them pause. After all, if some aspect of culture relies on an authority so terrible that it was permanently renounced, can that aspect of culture really be as good as all that?
posted by Eve at 1:41 AM | link 0 comments

MARRIAGE AND EQUAL PROTECTION: Gabriel Rosenberg replies to David Barnes

David Barnes writes, "In other words, if homosexual couples are being unjustly denied the benefits of marriage, why aren't cohabiters raising children being unfairly denied benefits just because they don't want to get married?"

Consider two couples. Alice and Betty would like to get married, but are not allowed. Cathy
and Doug have no desire to get married, but would like to get some "benefits of marriage." Here are two major differences:

1) What is being asked for? Alice wants the state to recognize Betty as her spouse for all legal purposes. Cathy wants Doug to be considered her spouse for some purposes, but not others. If instead we assumed that Cathy
wanted Doug to be considered her spouse for all legal purposes, then it would seem that Cathy did want to marry Doug, but she objects to the process by which they were to get married. Alice objects to there not being a
process by which she can marry Betty.

2) On what basis are they denied? The state won't allow Alice to marry Betty because of her sex. The state will allow Cathy to marry Doug.
She's being denied the "benefits" of marriage because she chooses not to marry Doug.

Hold on, though. David points out that Alice can get married, too. She can marry Bob. She just doesn't want to do so, just like Cathy
doesn't want to marry Doug. Of course the problem with David's argument was pointed out by the California Supreme Court in 1948. It would make people "as interchangeable as trains." That is, it would say there is no real
difference between marrying Betty or marrying Bob.

If Cathy married Doug she would be able to get what she seeks. Doug would be considered her spouse. If Alice marries Bob, it does not make Betty her spouse. The "benefits of marriage" do not flow from being able to check "married" instead of "single." They stem from having a particular person recognized as one's spouse.
posted by Eve at 1:39 AM | link 0 comments

MARRIAGE FEELS DIFFERENT: From USA Today

In July, British Columbia began providing marriage licenses to same-sex couples. In August, we decided to travel from our home in Washington state to the village of Sooke on Vancouver Island in Canada to get married in celebration of our 10th anniversary as a couple. ...

...Since the ceremony, the most frequent inquiry from gay and straight friends alike has been: "So, does it feel any different?" Prior to the event, we anticipated the answer would be a resounding "No!" But we were mistaken.

...Finally, we were officially recognized as individuals in a unique relationship. Canada was saying it supported us in our responsibilities, our aspirations to security and protection, our love.

...As we returned from Sooke and passed through U.S. Customs, an agent questioned us about the nature of our business in Canada. When we told him that we'd gotten married, he broke into a smile and said, "Hey, congratulations, guys!" with surprising sincerity.

As we headed toward our San Juan Islands home, the ferry suddenly made a full circle in the middle of the channel that separates us from the mainland, then continued on its usual way. We were both confused. Moments later, the ferry crew knocked at our window, announcing: "It's an island tradition to give every newlywed couple a 360. Congratulations!" ...

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posted by Eve at 1:32 AM | link 0 comments

A MOCKERY OF MARRIAGE: Deroy Murdock and James Taranto

Deroy Murdock writes: "...Exhibit A is musical product Britney Spears's micromarriage to hometown pal Jason Allen Alexander. ...

"Whatever objections they otherwise may generate, gay couples who desire marriage at least hope to stay hitched. ...

"On the other hand, 49 percent of couples break up, according to Divorce magazine. The Federal Administration for Children and Families calculated in 2002 that deadbeat parents nationwide owed their kids $92.3 billion in unpaid child support. In 2000, 33.2 percent of children were born outside marriage. Among blacks, that figure was 68.5 percent. A 1998 National Institute of Justice survey found that 1.5 million women suffer domestic violence annually, as do 835,000 men. So-called 'reality' TV shows like Fox's Married by America and its forthcoming My Big Fat Obnoxious Fiance turn wedding vows into punch lines. In nearly every instance, heterosexuals--not homosexuals--perpetrated these social ills."

James Taranto replies (scroll down): "...Of course, one could just as easily turn this around and ask why activists of same-sex marriage, who according to Murdock 'at least hope to stay hitched,' don't prove it by devoting their time to combating divorce, illegitimacy and so forth. Doesn't their eagerness to get a piece of such a deeply flawed institution as marriage is today belie their claims to be seeking stability and commitment?

"Well, no, of course it doesn't. They are dealing with the world as it exists, as are social conservatives. From the latter's standpoint, same-sex marriage, which has now been imposed in one state by judicial fiat, is a clear and present danger to what sanctity marriage has left. ..."
posted by Eve at 1:15 AM | link 0 comments

HARVARD LAW PROFS FILE IN SUPPORT OF GOODRIDGE, AGAINST CIVIL UNIONS COMPROMISE: From the Harvard Crimson

A group of 90 law professors and constitutional scholars from across the country, including 18 from Harvard Law School (HLS), urged the state’s highest court Monday to solidify its November ruling on gay marriage by rejecting a proposed civil union law.
In a friend-of-the-court brief, which was written by Tyler Professor of Constitutional Law Laurence H. Tribe '62, the group argues that the Nov. 18 decision by the Massachusetts Supreme Judicial Court (SJC) in Goodridge v. Department of Public Health was unambiguous in its conclusion that the state must allow homosexual couples to marry.

"I thought it was important, as did a large number of the best constitutional law scholars and legal historians in the country, to weigh in on whether there really is any ambiguity," Tribe said. "I thought it was clear that there wasn’t any." ...

The brief argues that any "retreat" from the November ruling would "risk gratuitously exposing the SJC to withering critique for having first taken a courageous and principled stand on a matter going to the core of both liberty and equality--but having then turned around and responded equivocally, at best, to the question whether the SJC actually meant what it had so recently said." ...

...The deans of Yale and Stanford Law Schools joined several professors from HLS and other top law schools in signing the brief. ...

In a statement on the HLS website, Tribe said he hopes the brief will make the SJC "sit up and listen," noting that experts "spanning the ideological spectrum" signed the brief.

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posted by Eve at 1:07 AM | link 0 comments

IS THE HEALTHY MARRIAGE INITIATIVE REALLY ABOUT SSM? MarriageMovement

There's an interesting debate, springing from the language used in this New York Times piece and a few following pieces, about whether and how the President's "Healthy Marriage Initiative" is related to same-sex marriage. Start here or here and scroll as desired.
posted by Eve at 1:01 AM | link 0 comments

TRANSGENDERED PEOPLE AND MARRIAGE: Matt Taylor and Elizabeth Marquardt

Matt Taylor writes: As we debate various aspects of marriage and parenting for same-sex couples, there is a group of people that we should not forget: those who do not easily fit our conventional definitions of gender. This includes the transgendered, people with an inner sense of gender identity different from their genetic sex, and the intersexed, people with physical characteristics different than their genetic sex or whose genetic makeup is not clearly male or female.

For a transgendered person, one important concern is the legal status of their marriage and parental rights during the change of gender. If we restrict legal marriage to male-female couples, it could have the unfortunate effect of nullifying a marriage when one partner goes through a gender change, even if the couple remains committed to one another and wants to stay married. Likewise, transgendered parents could be separated from their children if parental gender is a critical criterion for child custody.

The consequences of strengthening traditional gender roles in family law may be even more dire for intersexed people. It seems grossly unfair to insist that someone born with both male and female physical characteristics choose one gender or the other before they can be legally married, even more so if the law requires that their anatomies be surgically "corrected" to conform to one or the other gender norm. Likewise, the intersexed should not be denied access to reproductive technologies, which in many cases offer the only possibility of having children.

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posted by Eve at 12:57 AM | link 0 comments

MORE AMENDMENT SPARRING BETWEEN SULLIVAN AND NATIONAL REVIEW: And me, at the end.

Andrew Sullivan: "Ramesh Ponnuru ducks the central question in National Review's endorsement of a Constitutional Amendment to ban gay marriage. If NR wants to preserve marriage as an institution, why is it happy to see states create a competing marriage-lite institution, civil unions, for heterosexuals? If the point of social policy is to protect marriage and to increase incentives for marriage (except, of course, for homosexuals), why acquiesce in an institution that will undermine it far more deeply and far more comprehensively than gay marriage ever could?"

Ramesh Ponnuru of NR: "If my previous post on this subject had a 'bedrock' point, it was that Sullivan had failed to deal with the purely anti-judicial amendment that the editorial recommends as a fallback position (a compromise that is, I would add, not all that far from one that Sullivan has himself proposed). That failure continues."

Me, Eve: Ramesh didn't address the "Why not bar civil unions in a constitutional amendment as well?" question, so I'll link to something I posted a while back on my reasons for thinking that a federal marriage amendment is not the place to bar civil unions. Basically, 1) Preserving the ideal, "marriage," is central;
2) It's really hard to craft a non-convoluted amendment that bars civil unions;
3) Such an amendment might also be construed as prohibiting states from expanding and strengthening freedom of contract, thus keeping unmarried people from designating another person to perform certain acts (e.g. medical decisions) or receive certain benefits;
4) Such an amendment probably couldn't pass.

Dunno what all that has to do with hating gay people.
posted by Eve at 5:38 PM | link 0 comments

BAD ARGUMENTS FOR SSM: Dale Carpenter at Independent Gay Forum

There are several good arguments for gay marriage. Among these are the stability and commitment it would encourage in gay relationships and in gay life generally. ...

We should acknowledge, however, that we ourselves have been guilty of making some bad arguments for gay marriage. Here are three:

Bad Argument #1: It's All About the Benefits....

Bad Argument #2: We Have a 'Right' to Marry.
...

Bad Argument #3: Gay Marriage Will Revolutionize Society, and That's Good.

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posted by Eve at 3:53 PM | link 0 comments

NJ GRANTS BENEFITS TO SAME-SEX PARTNERS: From the New York Times

Same-sex partners in New Jersey have been granted unprecedented legal, health care and financial rights under a new bill, though the measure stops short of authorizing gay marriage.

Gov. James E. McGreevey signed the state's Domestic Partnership Act on Monday, making New Jersey the fifth state to recognize same-sex partnerships and extend certain benefits to gay couples.

Under the measure, domestic partners will gain access to medical benefits, insurance and other legal rights. New Jersey also will recognize such partnerships granted in other states. ...

However elated they are by the new law, gay rights advocates said it was not enough.

"We are pursuing all roads to justice,'' said Laura Popel, president New Jersey Lesbian and Gay Coalition, adding that the group will continue to push for same-sex marriages.

The act means domestic partners can visit each other in the hospital, make critical health care decisions, receive survivor benefits and receive state income deductions and inheritance-tax exemptions.

To obtain domestic-partner status, a couple must share a residence and show proof of joint financial status, property ownership or designation of the partner as the beneficiary in a retirement plan or will.

The law will not force private businesses to offer health coverage to same-sex partners of employees but does require insurance companies to make it available.

A divorce-like proceeding in Superior Court would be necessary to end a domestic partnership. The state now has 180 days to develop the procedure couples will use to register.

The measure also includes some benefits for domestic unions between unmarried heterosexual couples age 62 and over, covering older couples who do not want to get married because of the potential penalties on pensions and other financial interests.

Critics argue that denying the benefits to younger, opposite-sex couples amounts to discrimination, while other opponents have called the measure injurious to the institution of marriage and a veiled shift toward recognition of gay marriage.

Domestic partnerships are recognized in California, Massachusetts and Hawaii, and civil unions between same-sex couples are legal in Vermont.

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

CALIFORNIA SSM BILL ANNOUNCED: From 365Gay.com

A California assembly member Monday announced legislation to allow same-sex couples to obtain marriage licenses.

"The time has come for California to honor its commitment to equality for all Californians," stated Assembly Member Mark Leno (D-San
Francisco), the author of the legislation. "My bill will affirm the civil rights of gay, lesbian, bisexual, and transgender adults who wish to take on the responsibility of marriage and
ensure that children being raised by these couples receive the same protections as children raised by married couples. For too long, the right to marry has been denied to thousands of Californians based on their
gender and sexual orientation, resulting in harm to them and their children."

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posted by Eve at 3:46 PM | link 0 comments

REPORT ON INDIANA ORAL ARGUMENTS: From the Indianapolis Star Tribune

[Eve notes that questions asked in oral arguments are not the world's greatest indicator of an eventual ruling.]

The national debate over same-sex marriages came home to Indiana on Monday, with arguments spilling out of the Indiana Court of Appeals and into the court of public opinion.

As attorneys for the Indiana Civil Liberties Union and state argued the merits of a state law limiting marriage to the union of one man and one woman, the country's largest gay, lesbian, bisexual and transgender political organization launched a national advertising campaign in Indianapolis.

The ads by the Human Rights Campaign are aimed at conservatives and argue that amending the U.S. Constitution to ban same-sex marriages is too drastic a step for dealing with a social issue, said Sally Green, associate field director for the group. The ads are appearing in nine other areas as well. ...

The judges peppered Fisher and Falk with questions, including the differences between the Indiana law and the Massachusetts ban found unconstitutional last year. ...

And the judge asked Fisher about the difference between the state's ban on same-sex marriage and previous laws banning inter-racial marriages.

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

FEDERAL LAWSUIT CHALLENGES POLYGAMY BAN: From the Deseret Morning News

Three Utahns filed a federal lawsuit Monday seeking to overturn a century-old ban on polygamy, claiming the prohibition against taking plural spouses violates their constitutional rights.

The trio--a married couple and the man's would-be second wife--applied for a marriage license last month through the Salt Lake County Clerk's Office but was denied on the grounds that plural marriages are illegal in Utah.

The lawsuit alleges the denial violates the plaintiffs' First Amendment rights, saying they were simply trying to practice their "sincere and deeply held religious beliefs."

"It's an important issue. . . . Polygamy has defined the history of Utah," said Brian Barnard, the trio's attorney. "The fact of the matter is that people engage in polygamy for legitimate religious reasons, and it should be protected."

...There is no official tally, but some experts say as many as 100,000 people from a variety of religious backgrounds practice polygamy, primarily in the West

Polygamy is banned in the Utah Constitution. Bigamy, being married to more than one person at a time, is outlawed and is a third-degree felony punishable by up to five years in prison.

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posted by Eve at 3:40 PM | link 0 comments

DELAY EYED ON MARRIAGE AMENDMENT IN MA: From the Boston Globe

State Senate President Robert E. Travaglini will delay next month's momentous vote on a proposed constitutional amendment banning same-sex marriages if the state's high court has not already issued its opinion on the constitutionality of a civil unions bill, top legislative officials said yesterday.

Travaglini has told several aides and colleagues that it would be premature to push forward until the Legislature learns whether the bill establishing civil unions for gay couples would satisfy the Supreme Judicial Court ruling of Nov. 18 on gay marriage. The Senate passed the civil unions bill last month and sought an advisory opinion from the high court to determine whether it met the conditions of the SJC's historic ruling that declared gays have the right to marry. All sides of the debate
filed briefs yesterday with the SJC. The court's ruling declaring gay marriages constitutional is set to go into effect May 17.

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posted by Eve at 3:37 PM | link 0 comments

IS MARRIAGE A RIGHT? Matt Taylor replies to Mark Tardiff

Thanks to Mark and to others who have demonstrated that a traditional moral authority need not be sectarian. Mark suggests the founders of the United States; others have made reference to the philosophical theory of natural moral law. Personally, I find the argument from natural law more convincing since it is more universal, but both proposals are religiously neutral.

I must disagree with this part of Mark's argument:

"However, my contention is that if we start from an atheistic premise no defense of human rights is possible, so our original question no longer has any meaning."

This is a common argument of religious conservatives, that morality cannot be defined without a belief in God, and it is simply false as a matter of fact. You might find secular constructions of morality lacking in one way or another, but such moral systems do exist and millions of people live by them.

On the other hand, I completely agree with Mark regarding the Goodridge decision. As much as we homosexuals may enjoy the outcome, the court has overstepped its jurisdiction. The legal rights and privileges coincident with marriage are within the court's purview, but the institution of marriage itself, and the vocabulary we use to describe it, are artifacts of culture, not of law, and therefore should not be subject to judicial review. The power to define the culture belongs to the people, and cultural changes should be written into law only by the people through their elected representatives.
posted by Eve at 9:36 PM | link 0 comments

MARRIAGE AND EQUAL PROTECTION: David Barnes replies to Gabriel Rosenberg

Gabriel Rosenberg rebuts Mary Catelli when she writes, "'[Jim Henley] simply assumes that we can limit the recognition to sexual relationships.' In fact, nowhere in his post does he state this. A man and a woman cannot be denied a marriage license simply because they refuse to engage in sex."

I think the point is that for any marriage law to pass an equal protection test it may also need to give the "legal benefits" of marriage to cohabitating couples and people living together in a non-sexual relationship. These classes can be expanded depending on what role you think childrearing plays in obtaining marital benefits.

In other words, if homosexual couples are being unjustly denied the benefits of marriage, why aren't cohabiters raising children being unfairly denied benefits just because they don't want to get married? For that matter, why aren't cohabiters without children being unfairly denied benefits for the same reasons? To take the matter further, why aren't roommates being unfairly denied benefits just because they aren’t having sex? If the force of equal protection arguments comes from the denial of benefits to a suspect class, then how do you limit that class?

The fact that cohabiters can get married if they so choose does not seem to fix this problem. They may have the formal freedom to marry but so do homosexuals. In both cases, a person would be forced to enter into a marriage that he'd rather not enter into only to get legal benefits he'd otherwise be denied if he were not married.
posted by Eve at 4:30 PM | link 0 comments

GENDER AND MARRIAGE: David Benkof replies to Mike Pignatello

It's a mistake to reduce the need children have for both a mother and a father to stereotypes of masculinity and femininity. In fact, a key moment when a little boy learns how to be a man from his Dad might be when he sees his father cry.

I would not advocate that adoption agencies, for example, pass over opposite-sex parents who show a willingness to act in gender-atypical ways in order to give a child to a more stereotyped family. The issue, for me, is whether a child gets both a mother and a father, not whether the mother is always nurturing and the father is always disciplinary.

As for gay and bisexual men parenting with straight women, it's something I plan to do someday. I expect the marriage to be honest, faithful, and to include children. So certainly, I think it can be a good environment for children and given that people are so much more than their libidos, I disagree that Family Robinson was and Family Benkof will be "fundamentally contrary" to our nature.
posted by Eve at 4:28 PM | link 0 comments

IS MARRIAGE A RIGHT? Mark Tardiff replies to Matt Taylor

Matt Taylor's addition of a "authoritarian" framework goes a long ways towards meeting my objection. He wonders, however, whether "this line of discussion is headed toward a debate over the authority of Christian scriptures." As for myself, I accept the authority of the Christian scriptures. However, I do not want to move the discussion in that direction as a matter of principle: I believe that appeals to authority have to be to the authorities accepted by all those who are part of the discussion.

What other authority can we appeal to? I will make a proposal: we should accept as an authority the Constitutions of the United States as understood by the Founders. The qualification "as understood by the Founders" points us to a general recognition of "nature and nature's God" as the Declaration of Independence puts it. Atheists, of course, will not accept this. However, my contention is that if we start from an atheistic premise no defense of human rights is possible, so our original question no longer has any meaning. Turning to our specific question, I am pretty sure that our founders would not have approved of SSM. I imagine that, once they got over their astonishment that such a question was even raised, they would deny that it was part of the rights they intended to defend. (Here is another difference with interracial marriage: the founders were aware of the contradiction between the institution of slavery and the principle that "all men are created equal.")

What about the adaptation to the changes in society? The founders' principle is that political sovereignty resides with the people, who delegate necessary authority to their representatives. Hence I conclude that it should be the people who introduce changes into the understanding of the Constitution, if such becomes necessary. I consider the Goodridge decision a judicial usurpation of power. It cannot be justified even on what Matt calls "communitarian" grounds because four judges are not society, much less on "authoritarian" grounds if we accept the authority of a Constitution established by "we, the people."
posted by Eve at 4:26 PM | link 0 comments

SSM AND PRESENT VS. FUTURE: Ben Bateman

Michael Triplett has an interesting point on the structure of the SSM debate. He says that SSM opponents want to talk about culture while SSM proponents want to talk about rights, with each side being uncomfortable discussing the other's preferred topic.

He's basically right, except for that word "uncomfortable." I'm not uncomfortable with the other side's argument; I just don't agree with its premises. The other side likely feels the same way. Perhaps articulating underlying assumptions should be one of our goals here.

My theory is that your approach to the SSM debate depends on your feelings about the present versus the future: To what extent are you willing to give up happiness today so that others may be happy tomorrow? Those who talk about rights want their happiness in the present, or at least within their own lifetimes, while those who talk about culture want happiness for others in the future.

SSM opponents want to live, not only individually, and not only genetically through their children, but also more broadly through the survival of their culture. Children represent this urge to live. For SSM opponents, the welfare of children trumps all. SSM opponents are completely prepared to sacrifice a great deal of present adult happiness so that, in the future, children can grow up in the best environment possible.

On the other side, SSM proponents see no reason to fret about the future. They see a country awash in prosperity--a country so strong and wealthy that its continued existence and happiness are inevitable. In that kind of world, it doesn't make sense to suffer for the children’s future; they'll get by just fine on their own, and there are plenty of them. Instead, life's proper goal is to pursue happiness within your own lifetime, because, as Keynes put it, in the long run we're all dead. Like Keynes, many SSM supporters have adopted sexual practices that ensure they will never procreate, so this outlook is literally correct: If you leave no offspring, then death is the end, and there is little reason to think or plan beyond your own lifetime.

This analysis doesn't offer much hope for the SSM debate, because it isn't really an intellectual issue; it's a political one: Those who care deeply about children and the survival of our culture want to preserve rules that often prevent people from finding immediate gratification, because those rules will provide our descendants with happier lives in a world that none of us will see. Those who don't plan to be represented in that world, or who don't care if they are, see no reason for it to limit their enjoyment of the present.

To be fair, just as it's possible to enjoy the present too much and leave little for the future, it's also possible to give up too much present happiness and suffer unnecessarily. There is no objective test. In a democracy, the side with the most votes should decide. But the courts have held that SSM is such an important issue that the unwashed, reproducing masses can't be trusted with it.

To SSM opponents this is a double blow: Not only will their grandchildren be less likely to live with both parents (married to each other), but those grandchildren will likely live under a less democratic government. Will SSM supporters oppose this judicial usurpation, even though it favors their cause? Not at all, because, as with SSM, the real damage to our legal and political systems is unlikely to occur within their lifetimes.
posted by Eve at 4:24 PM | link 0 comments

POSSIBLE AMENDMENT TEXTS: Andrew Sullivan vs. National Review

NR editors: We have defended an amendment that would accomplish three things. First, it would reserve the word "marriage" for the union of one man and one woman: No court or legislature would be able to create "gay marriage."

Second, it would ban the federal or state governments--again, whether directed by a court or a legislature--from granting benefits that are conditioned on non-marital sexual relationships. Legislatures would be free to make a benefit, or civil-union status, available to unmarried persons. But availability must not be limited only to homosexual couples or to cohabiting heterosexuals. Siblings, friends, and roommates who are not in sexual relationships would also have to be eligible. A person's homosexuality would, in other words, not be of interest to the government when distributing any benefit.

Third, the amendment would block the courts, at both the federal and state levels, from second-guessing a legislature's decision to reserve a benefit for married couples. If the legislature has said that only married couples have joint adoption rights, for example, no court may grant that benefit to unmarried couples. ...

If the amendment must be scaled back, however, the first and second parts of it are each more expendable than the third. ...

Andrew Sullivan replies: ...NR editors want to trash traditional marriage by creating a civil unions structure open to absolutely anyone--gay couples, straight couples, aunts and nephews, college room-mates, bridge partners, whoever. So if you're a young straight couple considering marriage but unwilling to embrace all the responsibilities, National Review will provide you with an easy alternative. ...In their convoluted amendment, they argue that these other relationships would not undermine marriage because they could not include sex. But how on earth could this be enforced? Videocams in bedrooms? ...NR's open-ended anyone-can-apply civil unions proposal would be the biggest assault on marriage since no-fault divorce. If they really were concerned about marriage and marriage alone, they'd support a simple, one-sentence amendment restricting marriage to straights, period. But that wouldn't be enough for the gay-baiters. ...

Ramesh Ponnuru of NR replies: ...A couple of points here: 1) The editorial does not advocate the creation of the civil unions structure he outlines or indeed any other civil unions. It suggests that it would be worth supporting a constitutional amendment that would leave it open to states the possibility of creating certain kinds of civil unions. States would be free to reject these civil unions. (They have both these options now.) Leaving this option open to states is explicitly defended in terms of federalism and compromise--two things Sullivan has said he is interested in on this question. 2) When John O'Sullivan suggested a flexible contractual system which any two people could join, whether or not they were engaged in a sexual relationship, Andrew Sullivan commended him for his fresh, creative thinking about marriage. He did not claim to find ulterior anti-gay motives for his suggestion. He was right back then.

...There would be no requirement of celibacy. You could be having all the sex you want and still get these benefits, so long as they were also available for people who are not having sex. Domestic-partnership laws often exclude siblings precisely because they are for people involved in presumptively sexual relationships. Under the idea outlined in the editorial, such domestic-partnership laws would have to be expanded or abolished. Note also that the amendment would not preclude sexually active gay couples from receiving any benefit or set of benefits--other than governmental recognition of their relationships as equivalent to traditional marital ones. Sullivan would of course object to that denial of equivalence, but he would be more persuasive if he attacked it instead of this videocam fantasy. ...

The bottom line of the editorial is that the amendment should restrict judicial authority and that an amendment that did that would be okay even if it preserved the ability of state legislatures to enact full-fledged gay marriage. I would think that Sullivan would, while criticizing this editorial to some degree, welcome its spirit of compromise--instead of assuming that its stated concerns about marriage and judicial power were merely covers for hostility to gays.
posted by Eve at 4:19 PM | link 0 comments

GAY-RIGHTS GROUPS EYE CONSERVATIVE SPLIT: The Guardian

Intrigued by divisions within conservative ranks, gay-rights strategists are trying to portray a proposed constitutional ban on same-sex marriage as a radical step that true conservatives should oppose.

The Human Rights Campaign, a national gay rights group, is targeting conservatives with a radio and print ad campaign starting Monday in 10 areas, including Omaha, Neb.; Indianapolis; Tampa, Fla.; Milwaukee; Las Vegas; and Philadelphia.

"Be conservative with the Constitution,'' the ads say. "Don't amend it.''

Disagreements among conservatives have emerged in recent months over the proposed Federal Marriage Amendment, which would stipulate that marriage is only between a man and woman.

Some want the measure toughened so it would bar same-sex civil unions and domestic partnerships as well as gay marriages. Other conservatives, including several prominent columnists and politicians, say the Constitution is the wrong place to address contentious social problems and contend the measure would infringe on states' rights.

The critics include former U.S. Rep. Bob Barr, R-Ga., who called the amendment "needlessly intrusive,'' and columnist George Will, who said it would unwisely override state responsibility for marriage law.

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posted by Eve at 4:05 PM | link 0 comments