Oregon Judge Upholds State Marriage Amendment

http://abcnews.go.com/US/wireStory?id=1282101

Judge Upholds Oregon's Gay Marriage Ban Which Was Approved by Voters in Nov. 2004
By BRAD CAIN
The Associated Press
SALEM, Ore.n--A judge on Friday upheld a gay marriage ban adopted by Oregon voters last year, rejecting claims that the amendment made too many changes at once and interfered with local government.

In his ruling, Marion County Circuit Judge Joseph Guimond backed supporters of the law who said the measure only clarified marriage law in a single, simple sentence. . . .
posted by maggie at 11:17 PM | Link | 15 comments

POPE URGES SUPPORT FOR LARGE FAMILIES: From the Associated Press

Pope Benedict XVI on Wednesday praised large families and called for countries to approve legislation and other incentives to help them. "Without children there is no future," Benedict said.

The pope addressed his remarks to Italian pilgrims present at his weekly general audience in St. Peter's Square, including more than 2,000 members of the Italian Numerous Families Association.

"It is my hope that further adequate social and legislative interventions be promoted to protect and support the more numerous families, which constitute a richness and a hope for the entire nation," the pope said.

Recent European Union statistics put the average number of children per woman at 1.5. But in some countries, including Catholic Italy and Spain, the average is down to 1.3.

In greeting the Italian family association, Benedict said that large families were an asset to modern society. "Family nuclei with many children constitute a witness of faith, courage and optimism, because without children there is no future," he said.

more
posted by Eve at 5:08 PM | Link | 0 comments

More Dale Carpenter/Maggie Gallagher

Here's Dale's take today on the "definitional" questions we are also talking. I guess my only quarrel with him (I do think marriage requires a substantive defense, and that most of our current marrige tradition arose out of such apologetics with pagan views) is that people who make this argument are pointing to the fact that SSM is not a change in the "entry requirement" to marriage, it is a change in the "substantive conception" of marriage.

The second point I think is worth considering is why tradition is typically less articulate than innovation (Hint: its not because innovation is always more intelligent). There's a lag in the capacity of tradition to become articulate.

Maggie

Dale on Volokh.com:

"Given this challenge to the definition of marriage, the definition alone cannot be offered in its own defense. It must be accompanied by reasons that show why the male-female definition is the right or best one. Unless the definition is defended with reasons that go beyond simply asserting the definition itself, the defense suffers a fatal circularity. It asserts the conclusion (the proper definition of marriage) as the argument. It’s the equivalent of saying, “I’m right because I say so.” That may work in the parent-child relationship, but it cannot suffice in public-policy debate.

Let’s apply this lesson to the species-confusion analogies so popular among gay-marriage opponents. Consider the dog-cat analogy introduced above. Gay-marriage opponents argue that gay marriage is like calling a “cat” a “dog,” and that simply can’t be, no matter how hard we try.

But this misses the point of the case for gay marriage, which is to argue that gay couples (for multiple reasons) sufficiently meet the purposes of marriage (properly understood) such that they should be permitted to marry. To use the analogy, gay-marriage advocates argue that gay marriage is indeed a dog that we have unfairly been calling a “cat,” refusing to recognize it as a species of dog. On this view, gay-marriage advocates are not trying to get the world to accept cats as dogs, but to accept dogs as dogs. It’s those who refuse to call this dog a dog who are in error.

A similar response applies to the various government-benefits analogies offered against gay marriage. Consider the analogy to veterans benefits, where gay-marriage opponents claim that gay couples are like non-veterans trying to get veterans benefits. Gay-marriage advocates are arguing that (for multiple reasons) gay couples are “veterans,” and that denying them veterans benefits is therefore wrong.

Maybe gay-marriage advocates are wrong on the substance: perhaps gay couples can’t meet the purposes of marriage (properly understood). But that conclusion has to be debated, with reasons offered for why gay couples can or can’t meet the properly understood purposes for marriage. The conclusion cannot simply be asserted once the existing definition is challenged.

In debates, one often hears the complaint from gay-marriage opponents that gays are “trying to change the definition of marriage.” Exactly so, but this is hardly a decisive objection, just as it would not be a decisive objection to any proposed change in existing practices or laws.

None of this is to argue that there should be no definition of marriage. There should be a definition of marriage. But given the powerful affirmative case for gay marriage, it must be debated. Perhaps the man-woman definition is the best one, but to reach that conclusion we need substantive arguments supporting the definition, not simply the definition itself.

Given how logically weak the bare definitional argument is, why does it persist?

The answer, I think, is that behind it is a powerful, unstated intuition that important social institutions ought to have stable attributes (meanings) over time. This is a deeply conservative instinct and I share it to a very large degree. I will address this Burkean argument, which I ultimately think is the best argument against gay marriage, later in the week."
posted by maggie at 2:50 PM | Link | 3 comments

Does Family Structure Matter? What SSM Advocates Say

. . .when they are not debating Maggie Gallagher, or sometimes (see Evan Wolfson) when they are:

William Eskridge argues that procreation is relatively unimportant to marriage, to people, and to society:

"Post-Freudian society understands sexual expression as an important goal of personhood, the modern liberal state guarantees its citizens substantial liberty to make choices about their own sexuality, and an earth that struggles to feed its existing population is not an earth that should overemphasize procreation. Procreation is good and important, but procreation is no longer central to either relationships or to social welfare." Again, "[i]n today's society the importance of marriage is relational and not procreational. "

[Note: the number of intelligent people who seem to believe that procreation is no longer central to social welfare is simply astonishing. . .]

E.J. Graff:
"Marriage is an institution that towers on our social horizon, defining how we think about one another, formalizing contact with our families, neighborhoods, employers, insurers, hospitals, governments. Allowing two people of the same sex to marry shifts that institution's message. . . . If same-sex marriage becomes legal, that venerable institution will ever after stand for sexual choice, for cutting the link between sex and diapers." Same-sex marriage, she argues, "does more than just fit; it announces that marriage has changed shape."

Andrew Sullivan:
"Because marriage is such a central institution in so many people's lives, because it forms such an integral part of our own self-understanding, any change in it opens up a host of questions about what the union of two people means, what it has become, and what it could stand for-for everybody. . . . [MG: Yes Andrew it does doesn't it?! ] It is at moments like this that we realize that marriage itself has changed. . . . From being a means to bringing up children, it has become primarily a way in which two adults affirm their emotional commitment to one another."

Mark Strasser downgrades both the importance of procreation and its relationship to marriage, and the significance of family structure:

"In Skinner, the Court held that "[m]arriage and procreation are fundamental to the very existence and survival of the race." Yet there is no reason to think that the very existence and survival of the human race should or will rest on the shoulders of only those individuals who are raised by both of their biological parents. Otherwise, the human race would be in great danger indeed, given the number of individuals raised by single parents or by two parents, at least one of whom is not biologically related to the child."

Evan Wolfson:
"[T]here is no evidence to support the offensive proposition that only one size of family must fit all. Most studies-including ones that [Maggie] Gallagher relies on—reflect the common sense that what counts is not the family structure, but the quality of dedication, commitment, self-sacrifice, and love in the household."

Judith Stacey, who testified before Congress that social science evidence showed "what places children at risk is not fatherlessness, but the absence of economic and social resources that a qualified second parent can provide, whether male or female," also speculated with approval on the likelihood that gay marriage would inaugurate a new, more expansive embrace of family diversity:

"Legitimizing gay and lesbian marriages would promote a democratic, pluralist expansion of the meaning, practice, and politics of family life in the United States, helping to supplant the destructive sanctity of The Family with respect for diverse and vibrant families. . . . Subjecting the conjugal institution to this sort of heightened democratic scrutiny could help it to assume varied, creative and adaptive contours. If we begin to value the meaning and quality of intimate bonds over their customary forms, people might devise marriage and kinship patterns to serve diverse needs. . . . Two friends might decide to "marry" without basing their bond on erotic or romantic attachment. . . . Or, more radical still, perhaps some might dare to question the dyadic limitations of Western marriage and seek some of the benefits of extended family life through small group marriages arranged to share resources, nurturance, and labor. After all, if it is true that "The Two-Parent Family is Better" than a single-parent family, as family-values crusaders proclaim, might not three-, four-, or more-parent families be better yet, as many utopian communards have long believed?"

BTW, is Judith Stacey also prejudiced or irrational for seeing that same-sex marriage radically transforms the social meaning of marriage and opens up dramatic new possibilities for future revision? Or is that a special argument reserved only for opponents of SSM?
posted by maggie at 5:44 PM | Link | 5 comments

What is Marriage?

David Blankenhorn speak for himself, here.

"It is almost certainly true that, since the SSM debate has taken center stage (or at least since I made up my mind about it and began speaking out publicly on the issue), I have stressed with as much emphasis and urgency as I can muster the particular point that marriage is intrinsically linked to bearing and raising children. Why this special emphasis on this one point? Why the urgency? Why now?

The answer is that, until about five minutes ago, no one was denying the proposition! There was no need to build an entire public argument around the idea, or offer all sorts of defenses of the idea, because the idea itself was not in public dispute.

. . .Whereas today, in the SSM debate, people like Andrew Sullivan and Evan Wolfson every day, with all of the passion and urgency they can muster, insist that marriage is the public recognition of private adult feelings, and that children don't necessarily have anything to do with it one way or the other. That's why people like the law professor William Eskridge, a key supporter of SSM, can write: 'In today's society the importance of marriage is relational and not procreational.'"
posted by maggie at 5:25 PM | Link | 22 comments

Love, Sex, Babies/Maggie Gallagher

Barry, I do understand. Your post recapitulates the problem I just described with Andrew's. He thinks of the pieces of marriage as separate, a checklist. So that if I think marriage is "about" procreation, I must mean it is a factory for only procreation. To speak of any other dimensions of marriage is to "prove" that you do not consider uniting babies, sex and love to be the purpose of marriage.

Marriage is an attempt to unite: sex, love, babies, to bridge the divide between men and women, mothers and fathers.

Same-sex marriage advocates seek (unbeknownst to themselves) to fragment marriage into a checklist of things, without acknowledging how central the "form" of marrige as the union of husband and wife is (and always has been) to its core social function. If sex between men and women did not make babies, marriage would not be a universal human institution.

Can marriage continue to play the role as the core manager of generativity and the disparate sexual interests of men and women (a uniquely heterosexual phenomenon), while being forced to take on this new burden of addressing the social alienation caused by orientation (as Eve Tushnet puts it)?

I see no signs that marriage can be burdened in this way and be expected to "do fine," much less recover (which is what it needs to do).

What you perceive as a change in emphasis, is a natural result of being asked repeatedly to explain, why would SSM hurt marriage?

But we have been working very hard for years to move this culture away from "marriage as primarily a love relationship between two adults" which is the mantra of a divorce culture to "marriage as a key social institution that connects children with mothers and fathers."

To make marriage less about adults' intimacy needs and more about children's needs, when there is a conflict between these two things.

SSM is a prime example of such a conflict. Which do we as a culture perceive as more urgent: Adults' rights to legal benefits and social affirmations of sexually diverse intimacy needs? Or the need for a social institution that connects children to their moms and dads?

The pretense that we do not have to choose, that SSM represents a tiny incremental change, and not a dramatic transformation in the legal form with clear social implications for the underlying institution, is intellectually and morally irresponsible, in my view.

SSM advocates want to advocate dramatic change, on the grounds it isn't really change, and then claim they can't understand why anyone would object.

It's a closed circle. If you want to stay there, in the dark, I can't make you leave.
posted by maggie at 10:17 AM | Link | 20 comments

DALE CARPENTER'S VOLOKHBLOGGING

can all be read at this link, without scrolling through pages of Alito-ness. So far none of the other Volokhites have chimed in, so that link will get you everything.
posted by Eve at 12:58 AM | Link | 0 comments

CHANGE OF TUNE: Barry Deutsch replies to Maggie and David Blankenhorn

...Maggie, I think you've misunderstood what Andrew's saying. No one denies that David--and you--have been saying fathers and marriage are important. Obviously, you've both been saying that for many years.

But David, like you, nowadays argues that the only thing that justifies the state's interest in recognizing marriage is marriage's generative capacity.

That's simply not compatible with the marriage movement's "statement of principles", which you drafted in 2000:

Marriage is a personal bond. Marriage is the ultimate avowal of caring, committed, and collaborative love. Marriage incorporates our desire to know and be known by another human being; it represents our dearest hopes that love is not a temporary condition, that we are not condemned to drift in and out of shifting relationships forever.

Five years ago, you and David advocated this; today, both you and David routinely dismiss statements along these lines as adult-centered.

Five years ago, you wrote that the state has an interest in supporting marriage because--among other reasons--"Marriage is a unique generator of social and human capital, as important as education in building the wealth of individuals and communities."

Let's put the particulars of that statement aside. What's relevant to our discussion is that five years ago, you admitted that the state has multiple reasons to want couples to get and stay married, some of which were not exclusively about heterosexual reproduction. What the anti-SSM movement says today--that the only legitimate state interest in supporting marriage is its generative capacity--is incompatible with the marriage movement's "statement of principles" circa 2000.

I know that you, David and others have written about the connections between generative capacity and marriage for years. But that's not the only thing you wrote about. And the implicit admission made, in 2000, that marriage has dimensions in addition to generative capacity, and that there are legitimate state interests in marriage in addition to generative capacity, shows your position has changed over the last five years.

And that's a shame, because your 2000 understanding of marriage was far more nuanced and realistic than the simplistic "generative or nothing" view you take today. As Andrew says, you folks were right in the first place.

more (plus comments, so far mostly on govt's interest in marriage)
posted by Eve at 12:43 AM | Link | 4 comments

Dale Carpenter's Trad Case for SSM

First post of Dale's from Volokh.com. Best of luck, Dale! Maggie

The Traditionalist Case for Gay Marriage -- The Week Ahead: First, thanks to the Conspiracy for giving me this opportunity. Also, thanks to Maggie Gallagher for her contributions on marriage two weeks ago. Her writing is powerful. It constantly challenges and enlightens me. My hope is that one day the vast majority who share her views can be persuaded that gay families, united in marriage, are no threat to marriage and are even a small part of its revival.

But that day is many years, probably decades, away. My aim here is much more modest. It is to frame the debate in a way that’s quite distinct from the end-of-civilization vs. civil-rights-for-all rhetoric that has come to dominate it.

This week I will sketch the traditionalist case for gay marriage, by which I mean briefly this: (1) Marriage will help support and stabilize gay families, including the many such families raising children; (2) it will help channel these families into traditional patterns of living, providing them and their communities some measure of the private and public goods we expect from marriage; (3) it will, over time, tend to traditionalize gay individuals by elevating respect within gay culture for values like commitment to others and monogamy at the expense of hedonism and promiscuity; (4) it will make available the most moral life (in a traditionalist sense) possible for a sexually active homosexual; (5) and it will do all of this without hurting traditional families or marriage, (6) perhaps even helping to a limited extent with the revival of marriage. Of these, I regard points 1, 2, and 5 as the most important and most likely results. I’ll focus most of my attention on these. Points 3, 4, and 6 are possible, and would be good from a traditionalist perspective if they happen, but are more tenuous or are less likely. I’ll offer only some tentative thoughts on these. There are, in short, both individualistic (private) and communitarian (public, state) interests in recognizing gay families through marriage.

O.K., maybe my project is more ambitious than I thought.

If any significant part of what I described above actually came to pass, it would be a dark day for sexual liberationists, for opponents of marriage, for much of the gay left, and for many others who now say they favor gay marriage; conversely, if any significant part of it came true, it should be cause for rejoicing among conservatives, especially traditionalist conservatives. The key here is the “if.”

Subject to change, here’s how I plan to proceed. Today and tomorrow I will make the affirmative case for marriage for gay Americans. The affirmative case points to both the individualistic and communitarian benefits. Wednesday and Thursday I will respond to some of the most common arguments against marriage for gays, including the procreation and slippery-slope questions. (Sometimes the pro and con arguments will overlap.) Friday will be clean-up day, including suggestions for how to proceed, with some consideration of the role of legislatures vs. courts and marriage alternatives like civil unions.

I’ll try to respond to some reader commentary as we go along, perhaps in a single last post each night. In return, I ask this of commentators. Try to focus narrowly on the discrete point(s) made in the post to which you’re responding. There’s a tendency in this debate, on both sides, to “kitchen-sink” every argument, that is, to respond to specific points with unrelated points or with global observations about the nature of marriage, the world, the meaning of life, and so on.

Here are some things I will not do this week. First, I won’t try to change anyone’s religious views about gay marriage or homosexuality. If your religious faith leads you to oppose gay marriage, and if your faith further commands that this tenet be mandated in secular law, not much I say this week will matter to you. However, if this tenet (like others?) need not necessarily be mandated in secular law, come along for the ride. The faith-based traditionalist opposed to homosexuality, like all those generally uncomfortable with homosexuality, might reluctantly reconcile himself to gay marriage as the most realistic public-policy way to make the best of the bad.

A related point: though there’s no logically necessary connection, attitudes about gay marriage correlate strongly with a person’s underlying views of homosexuality. Is it a harmful or benign variation of human sexuality? Is it chosen or unchosen? The best evidence strongly favors the benign/unchosen answers. I may devote some, but not much, space to these Gay 101 issues if it seems necessary.

Second, I will not make rights-based arguments, e.g., that there is a constitutional right to gay marriage. Lots of people spend lots of time arguing about this; indeed, rights-talk has monopolized the debate. The traditionalist case is consequential and moral, not legal.

Finally, I won’t be accusing the opposition of bigotry. Many Americans oppose gay marriage out of a fear of possible unintended and unforeseeable consequences. These opponents of gay marriage are not bigots; they are prudent. Their prudential concerns must be treated seriously, not dismissed as blind prejudice. Such concerns can and should be accommodated in the time-frame and process by which we get to gay marriage.

At the same time, I hope nobody will think I’m intentionally trying to destroy marriage. Put simply, I believe in gay marriage because I believe in marriage.
posted by maggie at 2:01 PM | Link | 2 comments

Andrew's Actual War Whoop/Maggie Gallagher

I can't figure out (see post below) whether this is pure bad faith on Andrew Sullivan's part or willful blindness. No-one who knows anything about David's work could possibly imagine he invented an emphasis on the importnce of fathers and marriage because he suddenly wanted to be mean to gay people:

THE SHIFTING DEFINITION: At the same time, the opponents of marriage rights for gay couples now argue that child-rearing is the central purpose of civil marriage, that such child-rearing must include a father and a mother, and that therefore the current exclusion of even committed gay couples with children is justified. (They do not fully explain why childless heterosexual marriages nevertheless qualify, except that they "symbolize" the ideal and so get a pass. In fact, of course, childless heterosexual marriages represent the exact opposite of the ideal. They represent a heterosexual couple fully capable of the ideal - but choosing to go against it. Gay couples have no such choice.) But as this blogger points out, making procreation and child-rearing the sine qua non of civil marriage has not, as Blankenhorn would have it, always been the main argument of the gay marriage foes. A few weeks ago, Blankenhorn argued that
Talking about heterosexual intercourse, child bearing, and child well-being is not something that some of us just thought up five minutes ago in response to a political controversy. Instead, you simply can't talk accurately about marriage without talking about these very things ...
Hmmm. Blankenhorn's own Institute put out a "Statement of Principles," only five years ago on what marriage is. It has "six important dimensions." Five of them do not mention children at all. The one dimension in which children do appear - the sixth and last dimension listed - says the following:
Marriage takes two biological strangers and turns them into each other's next-of-kin. As a procreative bond, marriage also includes a commitment to care for any children produced by the married couple.
Notice how children are optional, not essential. In the statement, the first definition is that "marriage is a legal contract." Five years later, Blankenhorn is insisting that it is a "trans-legal" institution. Maybe this new argument is a product of five years of deeper thinking. Or maybe it is indeed "something that some of us just thought up five minutes ago in response to a political controversy."
posted by maggie at 11:50 AM | Link | 11 comments

Andrew Sullivan's Dance/Maggie Gallagher

Andrew Sullivan is doing his little war whoop dance, after his debate with David Blankenhorn.

Andrew's continuining inability to comprehend or describe arguments with which he disagrees remains compellingly on display, in these latest posts. Most peculiar, and self-serving, is his claim that this focus on family structure and generativity is something David Blankenhorn is making up for the SSM debate.

He quotes from a document I drafted "The Marriage Movement: A Statement of Principles." released in 2000, of course well before SSM became the dominant marriage issue, which pointed to the many dimensions of marriage (parenting union, legal union, emotional union, religious union, etc.).

The document is saturated with statements like this one: "Marriage is not a conservative or liberal idea, not a plaything of passing political ideologies. Marriage is a universal human institution, the way in which every known society conspires to obtain for each child the love, attention, and resources of a mother and a father."

Andrew sees contradictions everywhere, because he has firmly formulated the relation between marriage and procreation as a syllogism: either a. one must argue that these two things are identical (marriage is procreation and procreation is marriage, so anyone who doesn't procreate can't be married) or b. procreation is irrelevant to marriage as a legal institution and anyone who says otherwise is arguing in bad faith.

I'm all for reducing the sacrifice marriage requires, by pointing out its benefits to adults, too. But many of us really have worked on the marriage issue for decades now, because we really are passionately committed to living in a culture which is committed to the idea that children need moms and dads.

For Andrew to accuse David, the author of "Fatherless America", with inconsistency is well, absurd but consistent with his recent track record in perceiving arguments with which he disagrees on this issue.
posted by maggie at 11:31 AM | Link | 5 comments

The Fifth Catholic/Maggie Gallagher

David Bernstein on Volokh.com notes that Judge Sam Alito, if confirmed, will be the fifth Catholic on the Court, making it the first time a majority of Supreme Court Justices are Catholic.

He offers this observation:

"I'd venture that it's not simply a result of more enlightenment on the part of non-Catholic Americans, but also that Post-Vatican II, the Catholic Church is less foreign, both in prayer (in that mass is now in English), sociologically (because Catholics no longer differ that much from other Americans in where they send their kids to school and how many children they have), and in terms of ideas (e.g., the Church's renouncement of anti-Jewish theology; compare the 19th century Edgardo Mortara case). In short, as with American Jews and other groups, a story of both declining prejudice and assimilation."

Hmm, tell that to Scalia and his nine kids. . . .

Anti-Catholicism came in two forms: the high protestant variety, which looked down on Catholics for being obedient peasants with too many kids and the low church (evangelicals) sort, which saw the Church of Rome as their historic religious enemy.

High protestants and their secular equivalents like the fact that ordinary Catholics are now virtually indistinguishable from the broader culture. Evangelicals have dropped their intense dislike of Catholics because they value the Catholic Church's fidelity to basic Christian teachings on abortion, marriage, and sexuality.

The net results is a decline in anti-Catholicism, as the Catholic Church becomes both more and less "mainstream" at the same time.
posted by maggie at 9:12 AM | Link | 34 comments

Sex Selection Trial Approved in U.S. Fertility Clinic


Fertility clinic in US gets green light for sex selection trial

Ian Sample,
October 27, 2005, The Guardian

A clinical trial into the effects of allowing couples to choose the sex of their babies has been given the go-ahead at a US fertility clinic. The controversial study was given the green light by an ethics committee after nine years of consultation. The purpose of the study is to find out how cultural notions, family values and gender issues feed into a couple's desire to choose the gender of their child. . .
posted by maggie at 11:13 AM | Link | 5 comments