It’s no secret that one major undercurrent of the same-sex marriage movement is the desire to change the marriage culture—family and childrearing norms, for instance—not simply to realize the practical benefits of marriage. But once a redefined marriage culture is in place, one wonders whether marriage will continue to matter at all to those who at one time touted it as the panacea for same-sex woes.
In yesterday’s Times, Columbia Law School professor Katherine M. Franke opined that, while some gay couples may wish to get on board with marriage, others don’t see the “one-size-fits-all rules of marriage” as the ideal setup for the kinds of arrangements some same-sex relationships demand. She goes on,
Here’s why I’m worried: Winning the right to marry is one thing; being forced to marry is quite another. How’s that? If the rollout of marriage equality in other states, like Massachusetts, is any guide, lesbian and gay people who have obtained health and other benefits for their domestic partners will be required by both public and private employers to marry their partners in order to keep those rights. In other words, “winning” the right to marry may mean “losing” the rights we have now as domestic partners, as we’ll be folded into the all-or-nothing world of marriage.
After “winning the right to marry,” Franke argues, couples uninterested in marriage risk being “forced to marry” in order to keep their domestic partnership rights. She wonders further why couples should have to seek marriage at all if they seek mainly to have their relationships “recognized and valued.”
The rest of Franke’s column is still further bewildering. After suggesting that what matters most is to have one’s relationship recognized and valued by civil authorities, she then complains of inadequate domestic partner benefits for cohabitors, only to admit that gay cohabitors have an easier time with them than heterosexuals, and that partnership arrangements are just as beneficial as marriage, but without marriage’s political baggage.
Personally opposed to the idea of getting married, Franke nonetheless betrays the fact that the idea of same-sex marriage has not been sufficiently thought out in the public square. Franke’s running dialectic on marriage seems to go something like this:
“We need same-sex marriage to enshrine government affirmation of gay relationships, and to change the marriage culture to better suit same-sex relationships. But what we really want is health-care and economic benefits, which only marriage can bring. Then again, civil partnerships can give us all those benefits anyway, without the bother of marriage. Not all of us like the idea of marriage, anyway. On second thought, those of us uninterested in marriage now feel forced to marry to retain these benefits. But we don’t want to marry; we just want same-sex marriage to be available. Then again, the availability of same-sex marriage makes us feel like second-class citizens by creating a preferential status for married gays.”
Presumably, Franke sees marriage as merely conventional, and as such, subject to radical change or reformation when desired. But it’s hard not to notice her keen perception that, despite changes in convention accomplished by redefining marriage, the institution retains a character that can’t be made to fit those who don’t buy, in her words, its “one-size fits all,” irreformably clear blueprint.
June 24th, 2011 | 5:34 pm
Franke’s article is considerably clearer than your summary of it. Some same-sex couples want to marry. They should be able to. Other couples, same-sex and opposite sex, don’t want to marry, but they do want a way for their partnerships to be legally recognized—through domestic partnerships, civil unions, or whatever. Legally recognized, non-married couples should not lose that recognition, and the benefits that go with it, if marriage is opened to same-sex couples. If same-sex marriage is made legal in New York, that should not mean the end of New York City’s domestic partnerships, nor should it mean that employers should require domestic partners now receiving benefits to legally marry to continue receiving benefits.
It seems to me that it is a problem in and of itself—setting aside the issue of same-sex marriage and civil unions—that it is so difficult to get affordable insurance except through an employer. What we need is real national health care insurance.
June 24th, 2011 | 5:37 pm
Some months ago, over at the National Review, Jonah Goldberg came out in support of the redefinition of marriage. I responded by posting a tweet I had seen the day before that read: “I am opposed to marriage in general, but I support gay marriage.” Amazing how much that tweet encapsulated way about the whole debate in far under 140 characters.
It was interesting to see the same sentiment echoed in the Franke op-ed:
June 24th, 2011 | 7:13 pm
“They ended up marrying, though they were politically and personally uninterested in doing so.”
I didn’t know one could be politically uninterested in marrying.
“What we need is real national health care insurance.”
So, instead of a giant corporation making health insurance difficult, we should let a giant federal bureacracy do it. Brilliant thinking. What we really need is real personal health insurance, like we have for virtually every other kind of insurance. Competition is what we need, David, not centralization.
June 24th, 2011 | 7:41 pm
If they were not interested in getting married, they would not have gotten married. They just felt entitled.
June 24th, 2011 | 7:58 pm
“What we need is real national health care insurance.”
So, instead of a giant corporation making health insurance difficult, we should let a giant federal bureacracy do it.
What we need is a recognized relationship between a father and a mother.
When a woman has a child, she has a legitimate claim on the father of that child. This is so because the costs – financial, economic, social, and emotional – cannot be split evenly. The woman bears most of them.
This is, of course, the traditional basis of marital legitimacy.
But if today we want to define “marriage” as something other than an institution that is primarily about founding a family, then there’s no reason why “marriage” should get any benefits at all.
If it is not “about” a breadwinner (head of household) taking care of a caregiver (dependent), then there’s no reason why a partner needs – or deserves – any special benefits at all.
June 24th, 2011 | 9:02 pm
“Not all of us like the idea of marriage, anyway. ”
=========
Like roughly %99 of people with a homosexual problem in all countries where homosexual marriage was legalized in the 2000s. They shunned marriage like the plague. Why they did this is a question that liberals refuse to face.
The normalization of homosexuality is prescribed on the false dogma that the problem of homosexuality cannot be resolved.
Legalizing same-sex marriage obligatorily normalizes and legitimizes even further a homosexuality condition. That is really why homosexuals are so desperate to legalize SSM. It has nothing to do with “marriage.”
There is another very dangerous recent development from the enforced-by-law normalization of a homosexual psychological problem.
It means that anyone who disagrees with the meme that “homosexuality is normal and unproblematic” is considered a criminal, one who has “hate” thoughts and practices “hate” speech.
Thus the very inquiry on what causes a homosexuality problem must be completely suppressed and anyone who inquires or disagrees must be punished.
The iniquitous and unconscionable imposition of both dogma and circular thinking is the goal of people who normalize homosexuality.
Everyone must be as ignorant and in denial as they are.
June 24th, 2011 | 9:05 pm
The very first sentence is technically true: it’s not a secret. What you leave out, which is vitally important, is that it’s not TRUE either. It’s a deliberate lie, concocted by those who just cannot stand the idea that gay people are just like anybody else.
June 24th, 2011 | 9:57 pm
gay people are just like anybody else.
Gay people are not just like anybody else.
If you’re talking about the political group, anyway – they are, as a group, aggressive about their sexuality and hateful toward civic institutions in general and family values in particualr.
Of course, not all homosexual people are like this – the word “gay” is confusing. Deliberately so, of course, since the gay rights lobby pretends to represent “all” homosexual people, when in fact it only represents “all” people who hate limits of any kind being put on their behavior – sexual, social, or otherwise.
“Gay” refers to both homosexuality and to the political rights group that pretends to speak for all homosexual people. So be aware, I’m not talking about all homosexual people – there are many nice normal people who are homosexual but don’t need to burn down your house just out of envy because they don’t have such a house themselves.
But the ones who flaunt themselves in “gay pride parades” and demand the right to undermine marriage? These people are not ‘just like other people’. These are people who behave in ways designed to be inappropriate, just because they want negative attention. They desecrate boundaries, apparently out of rage. They are destructive and will violate others, apparently just because they can’t stand the presence of others who dare to not share their beliefs – which they paradoxically, ironically justify by talking about how other people owe them “tolerance” (while they themselves are intolerant).
You can tell a lot about a person by how they treat children – especially their own.
June 24th, 2011 | 10:41 pm
“just like anybody else” — if homosexuals wanted to be treated “just like anybody else” they wouldn’t seek to redefine marriage. They would submit to the natural law and accept that marriage is an institution designed for the creation of a family. Rather, they seek special provisios in order to legitimize unnatural social arrangements. “Anybody else” accepts that men are subject to certain biological limitations and don’t attempt to override them through legislation. It isn’t just “narrow-minded conservatives” who oppose SSM, it is nature itself.
June 24th, 2011 | 10:53 pm
Well, the NY Senate has voted 34-29 in favor of expanding marriage rights.
June 25th, 2011 | 1:44 am
And next week, they’re going to repeal the law of gravity.
June 25th, 2011 | 1:51 am
in favor of expanding marriage rights.
You mean redefining.
The new definition changes a few things:
1. Biological ties – by extending the presumption of paternity to couples that argue fraud is a legitimate means of founding a family, the state of NY has gutted marriage of its ability to define and legitimize families. Now there’s no way to know if a “family” really is a family – or whether it’s just a bunch of people claiming to be a family.
2. Adultery – by extending marital benefits onto couples who argue that adultery is a legitimate reproductive strategy, the state of NY has gutted marriage of one of the central norms it uses to uphold and support the integrity of families.
3. Child welfare – by providing a loophole by which people may “legally” and knowingly claim parenthood of children they are not actually related to, NY has stripped marriage of its status as an institution that protects children – and has turned it into an institution that legitimizes and perpetrates exploitation against them.
4. Marital functions: protecting women from exploitation in their most vulnerable biological function (reproduction) – by allowing male-male couples a “right” to found a family together, the state of NY has gutted marriage of its status as an institution that protects women from exploitation – and has turned it into an institution that legitimizes and perpetrates exploitation against them.
5. Marital functions: connecting children to their paternal family – by allowing female-female couples a “right” to found a family together, the state of NY has gutted marriage of its status as an institution that functions to create permanent and enduring bonds at the point in a family unit where the bonds are naturally vulnerable: the child’s link to the paternal family. Now, of course, lesbians are legally entitled to turn any man they can seduce into an unpaid sperm donor – with or without his consent.
June 25th, 2011 | 3:02 am
Now we can watch how many NYers with a homosexual problem will shun homosexual “marriage” — any bets? Let us see if it will be less than 99%.
Then we will watch the liberal circus of excuses trying to hide the reason for why so many homosexuals hate marriage: such people are too deformed in their ideology and dynamics about relationships to even want to get married.
And all of this will inevitably be accompanied by the lawsuits that homosexuals will just have to bring about if anyone refuses a homosexual marriage-related service.
Will it all be accompanied by an intensification of hate speech crime claims any time someone disagrees with the unofficial liberal state religion on homosexuality?
The show begins.
June 25th, 2011 | 3:16 am
Nobody is demanding “the right to undermine marriage.” Many same-sex couples do, however, want to participate in it. That’s not the same thing, however much some people enjoy imagining it to be.
June 25th, 2011 | 5:58 am
This article really does articulate problems surrounding SSM that have been largely ignored in the rather heated debate on SSM in the United States, but which have been convincingly addressed in other jurisdictions that have, hitherto, rejected it.
In France, the highest courts of that country – the Court of Cassation and the Constitutional Council – upholding the unanimous decisions of the lower courts, have rejected the supposed right to SSM, based on considerations of equality. In the leading case of Shalk & Kopf v Austria, the European Court of Human Rights has come to the same conclusion.
One would have thought that American opponents of SSM would have interested themselves in the arguments that prevailed in these aggressively secular jurisdictions. After all, SCOTUS has shown a willingness to consult foreign law.
Well, the argument is very simple. The great French jurist and author of the leading commentary on the Code Civil, le doyen Jean Carbonnier did raise the question: “What is the state’s interest in marriage? Why does marriage exist, as a legal institution? What is the unique legal rôle of marriage?”
Carbonnier’s analysis had to address the differences between the legal régimes of marriage on the one hand and civil unions (PACS) for same-sex and opposite-sex couples on the other, as well as unregulated cohabitation, (which is not without legal consequences) and to extract a principle from them. His conclusion: « le cœur du mariage, ce n’est pas le couple, c’est la présomption de paternité » [“The heart of marriage is not the couple, but the presumption of paternity.”] This is based on Article 312 of the Code Civil: « L’enfant conçu ou né pendant le mariage a pour père le mari.» [“The child conceived or born during the marriage has the husband for father”] Marriage is the legal mechanism for establishing the juridical bond between fathers and their children. How does that concern same-sex couples, given that nature had limited potential fertility to couples of different sexes?
To summarise his conclusions: (1) Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation..
In other words, the institution of marriage entails consequences with respect to filiation that the other forms of union do not. Moreover, this leading jurist could find no other significant difference at all, in the laws governing cohabitation and civil unions on the one hand and marriage on the other, that does not logically derive from this presumption and no-one, to my knowledge, has been able to suggest an alternative reading of the Civil Code itself.
It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that Carbonnier’s views, or those of the courts, are either the result of religious convictions or an attempt to import them into his interpretation of the Code
June 25th, 2011 | 8:11 am
Nobody is demanding “the right to undermine marriage.” Many same-sex couples do, however, want to participate in it.
Gays aren’t eligible for the benefits of marriage.
They might be eligible for some benefits suitable to a life partnership, but they are not eligible for the procreative benefits of marriage, unless we redefine “marriage” and/or “family” so that 2/3 of a natural family – the child and the child’s other parent – lose rights, so that the greedy one can enjoy more than his share of benefits.
There is no “right” to found a family with someone other than the person you intend to actually make that family with.
If gays were willing to take marriage as it is – including the recognition that if they are going to commit to their partner, that means their marriage is going to be barren, because adultery is not permitted – then that might be different. But instead, they want to make a parody-family, forcing kids to play along with sick “Janie has two daddy” fantasies.
Good people – gay or straight – do not do that to their children. Good people do what is right by their family. Anyone who would deliberately make a child motherless – then pressure the child to play out that dysfunctional game – is a bad parent and a selfish person, and deserves to be, at the very least, recognized as such.
June 25th, 2011 | 8:19 am
There seemed to be a not so hidden second agenda contained in Katherine Frankes article.
She did not think that domestic partners should be forced to marry in order to keep their benefits. This would seem to set up the next twist to the homosexual litany of complaints and demands.
First there was the demand for tolerance, then acceptance, then the bridge to marriage via civil unions, acceptable because with it came benefits, then marriage and coming soon, because there might be effects to their benefits, the demand that we retain both marriage and civil unions, the very same civil unions that were unacceptable because it was not marriage and relegated Homosexual relations to a second class status. With the growing sense that most homosexuals do not seek marriage, actually, we find that most of the outrage was, actually, about benefits.
Add to this the comments made by various ssm proponents that the baseline for “gay marriage will be different, monogamy will and should be seen as optional, because we are different” it should be obvious that, leaving aside for a moment the question as to whether ssm will have a negative effect on marriage in general, it is already having a negative effect on homosexuals in their pursuit of the perogatives of marriage.
June 25th, 2011 | 10:36 am
“. . . what matters most is to have one’s relationship recognized and valued by civil authorities . . .”
This is one of the most succinct phrases I’ve read which fully describes the juvenility of SSM proponents.
June 25th, 2011 | 10:49 am
Over the past few years, there have been a number of stories coming out of NYC–usually only covered by the NYC press, if even that–about immigrants getting into trouble over their polygamous relationships. Ex: A Senegalese man lives in his apartment with three women, one of whom is his legal wife, the other two his “wives” not recognized by the law.
It’s an honest question: Do those seeking same-sex marriage rights endorse the rights of polygamists? If we’re redefining things, can’t we “define” them into the equation? After all, there are anywhere from 20,000 to 60,000 people in polygamous families throughout the American west. Plus, it would extend legal rights afforded to spouses to women who presently don’t have them. I’m curious what people think.
June 25th, 2011 | 10:58 am
On more point I wish to add to my 9:38AM post re: My proposed law for universal womanhood.
I am a libertarian. I do not see why the government should be allowed to say who is a woman and who isn’t. Right now we have hundreds and thousands of government laws and regulations that exclude literally half of the human population from untold benefits–even access to a clean bathroom for cripes sake–based on nothing more than government-defined sexual boundaries. Let’s get the government out of our pants and let’s bestow the joys of womanhood to all human beings, to those with penises and to those without.
Now as a libertarian, I also want to say that if someone with a penis does not want to call himself a woman, say, inside his church for instance, he should not be forced to do so. A lot of people are going to want to stick with archaic, church-based gender roles. I don’t think the government should be allowed to kick in the doors of the Cathedral and to force the priests to re-write the Book of Genesis so that God created Woman and then another Woman–that’s up to the priests within the confines of the church. But outside the church, anywhere the government is in the business of deciding that one human is a “woman” and the other one is not–that obviously has to end.
By the way, in the wacky world of the Internet I’ve seen some people complaining about universal womanhood laws saying “where will this end? If all people are women, why keeps us from calling all dogs women as well? All fish? All living things???” Ummm…oooookay. I don’t know that it’ll do any good to point this out, but NO ONE supporting universal womanhood is even talking about opening it up to fish, okay? It’s safe to go back into your oxygen tent now and to remove the tin-foil helmet off your head. Sheesh!
June 25th, 2011 | 11:22 am
Will it all be accompanied by an intensification of hate speech crime claims any time someone disagrees with the unofficial liberal state religion on homosexuality?
Is it too much to ask of ant-gay commenters that they stick to reality? “Hate speech” laws do not exist in the United States, and would be struck down as unconstitutional if written.
Take note of the following, for example:
How much more freedom of speech do the anti-gay folks want?
June 25th, 2011 | 11:33 am
those who at one time touted it [same-sex marriage] as the panacea for same-sex woes
Could we have the name of just one person who claimed that same-sex marriage would be a “panacea” [a remedy for all ills or difficulties —Merriam-Webster Dictionary] for “all same-sex woes”?
To repeat my question from a preceding comment, “Is it too much to ask of ant-gay commenters that they stick to reality?”
June 25th, 2011 | 12:14 pm
You can’t participate in something if you first have to make it not mean what it actually means before your participation is even possible.
It would be like paralyzed people insisting they be allowed to participate in walking, by getting someone to pass a law saying that walking doesn’t have to mean using your legs. The paralyzed people still wouldn’t be walking, and walking would lose its meaning — you’d never be sure that when someone talked about walking, it actually mean that.
June 25th, 2011 | 3:40 pm
“How much more freedom of speech do the anti-gay folks want?”
Many likely want their opponents to follow their orders. It’s the psychological inverse of their fear that someone will order them to marry someone of their own sex.
June 25th, 2011 | 3:57 pm
David Nickol
June 25th, 2011 | 11:22 am
Alessandra: Will it all be accompanied by an intensification of hate speech crime claims any time someone disagrees with the unofficial liberal state religion on homosexuality?
Is it too much to ask of ant-gay commenters that they stick to reality? “Hate speech” laws do not exist in the United States, and would be struck down as unconstitutional if written.
==========
Who needs such laws?
Most of human communication (or repression thereof) is not done through control of the government.
Furthermore, even when the government is involved, most times that there is an infraction related to speech, it is neither possible nor practical for most individuals to sue.
So censorship in the sense of repression of ideas functions mostly through gatekeepers that are not part of the government.
The hysteria that liberals now display every time one of the their dogmas is questioned or contradicted is extremely real. It is the norm on the Internet, in many educational environments, many media channels, etc.
A great recent example was how Apple criminalized and censored the Manhattan declaration. Perhaps you were in a tour of Jupiter when that happened? Here on planet Earth, specifically in the US, the attack on any view that is not a repetition of liberal dogma is often being labeled “hateful” and it’s censored.
Constitution, no constitution, that’s what happens in reality.
Two small but so common examples:
I recently had several posts censored at a discussion at change.org, one of the cheapest liberal online groups concerning freedom of speech. They censored many of my posts recently on a “discussion” about DADT, more especifically, concerning the extent that homosexuals and bisexuals sexually harass, assault, rape, bully, and batter others.
The degree of viciousness from the normalizing homosexuality camp is just incredible.
http://socimages.blogsome.com/2011/01/03/censored-discussion-on-changeorg/
My first comment:
The Pentagon is refusing to release information on sexual assault and harassment in the ranks. The American Civil Liberties Union of Connecticut has filed a lawsuit against the departments of Defense and Veteran Affairs, claiming the Pentagon has declined to release records related to sexual assault, harassment and/or trauma in the military.
It must be ugly. And after they repeal DADT, as it seems now that will happen, my prediction is that cases will double. Of course, there will be even more pressure on the military to repress information on all cases of homosexual harassment and violence to “prove” that the repeal worked.
What a nightmare that will be for the victims.
Al Jazeera has a detailed article on the subject:
“The Pentagon has consistently refused to release records that fully document the problem and how it is handled. Sexual assaults on women in the US military have claimed some degree of visibility, but about male victims there is absolute silence.”
Concerning DADT, what we are seeing here is a tug of war – homosexual activists and liberals will do everything to lie about how homosexuals and bisexuals perpetrate crimes and conservatives want the truth.
I would certainly vote for Bill James. Kudos to his political work.
==========
The reaction from one homosexuality zealot (excerpt):
You’re a fricking moron. … strawman claim…
Get a life.
By the way, your comment will be reported as hate speech.
Go ahead and bitch like everyone else about your freedom of speech, another concept the idiots who have been showing up on this site lately don’t understand. Rot in Hell, stupid bastard.
=========
In another Internet forum, I posted one short post saying that homosexuality was a developmental problem and that there is a significant number of harmful actions carried out by homosexuals as a group, given that it was a perfectly pertinent issue in the discussion (i.e., what are some problems with homosexuality).
The reaction of the moderator:
Ed.: Comment portion deleted for lack of factual data to back up assertions that verge on/are hate speech. The SunBreak doesn’t have a lot of patience with bigotry.
I challenged them to post any information that proves what I has posted was wrong. Obviously, they didn’t because they don’t have any real arguments. My comment continues to be censored.
http://thesunbreak.com/2011/06/02/the-dsk-debacle-uncovers-a-cultural-divide-on-rape/
Could liberals like yourself please stop lying about the degree of dishonest attacks and related repression of views that do no follow the very ignorant dogmas homosexuality zealots are enforcing in society?
June 25th, 2011 | 4:07 pm
It would be like paralyzed people insisting they be allowed to participate in walking . . . .
Or basketball. People in wheelchairs might insist on playing basketball. They might even form a National Wheelchair Basketball Association! The paralyzed people still wouldn’t be playing basketball, and basketball would lose it’s meaning. When someone said that, say, Kobe Bryant played basketball, you’d never know if he was in a wheelchair or not.
When Prince William and Kate Middleton got married, people in the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, and Argentina reportedly said, “Oh, wow, I didn’t even know they were gay.”
June 25th, 2011 | 4:20 pm
@ Douglas Johnson June 25th, 2011 | 10:58 am:
Wonderful satire!
June 25th, 2011 | 5:12 pm
Once again, Neuhaus’ law applies: “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.”
In other words, the growing perversion and resulting hyperactive but malignant conscience of homosexuals will soon propel them to stamp out traditional marriage altogether, so it will not be a continuing witness against their sin. The act of a man marrying a woman for the purpose of glorifying God by lifelong monogamy and the bringing up of children will be a crime against the state. Meanwhile, the only kind of sex encouraged by the state will be homosexual gang rape on demand, just as it was in Sodom, and has come perilously close in San Francisco already (google “Hamilton Square Baptist Church, September 19, 1993″ and read for yourself). Yesterday San Francisco, today New York, tomorrow Washington DC.
Regarding the conscience of rebellious sinners, Isaiah 57:20-21 likewise applies:
“But the wicked are like the tossing sea,
which cannot rest,
whose waves cast up mire and mud.
‘There is no peace,’ says my God, ‘for the wicked.’ “
June 25th, 2011 | 5:32 pm
Pentamom, your comment (and the phrase “same sex marriage”, for that matter) reminds me of that scene from “The Life of Brian”: a fellow decides that he is a woman, and insists everyone call him “Loretta”. He wants a child, too, because it is not fair that only women can have babies (“where is the fetus going to gestate??”, asks his intolerant interlocutor). It was a joke then.
June 25th, 2011 | 5:41 pm
Someone should quote this article every time someone like Andrew Sullivan tries to trot out the “Gay marriage is good because it civilizes gays into monogamy” argument.
June 25th, 2011 | 5:52 pm
Is it too much to ask of ant-gay commenters that they stick to reality?
Why? The pro-gay commenters don’t feel any such need.
June 25th, 2011 | 6:25 pm
In a sense, opponents of SSM have been fighting with one hand tied behind their back. They have not made it clear how homosexual couples are different from aged and sterile heterosexual couples, who *are* allowed to marry. Maybe no one believes me when I say (as I have ad nauseam) that the new natural law argument is not convincing on this point–but try to believe well-known critics (and defenders of SSM) such as Stephen Macedo and Andrew Koppelman, who have effectively zeroed in on this. It really is the heart of the matter.
There’s no need to fight with one arm tied behind our backs, but it’s necessary to stop treating the new natural law argument as philosophical gospel, or as the only thing going. The imperative thing is to convince people that same-sex and opposite-sex couples are not similarly situated. I don’t think opponents of SSM have done a good job here.
Are we going to invite failure, or are we going to expand our analytic horizons beyond the new natural law argument (which has many merits but also some notable weaknesses) in order to have a better chance of winning?
June 25th, 2011 | 9:00 pm
Ken, there’s a difference between a generative marriage that can’t be fulfilled and one that can never generate children innate to the union. The potential is what matters.
It would be like saying a cat isn’t a cat because it only has three legs due to an accident, and because of that, a bar stool is a cat too.
June 25th, 2011 | 9:22 pm
I am a libertarian. I do not see why the government should be allowed to say who is a woman and who isn’t.
Are you under the impression that this is a parody? There’s a reason for the “T” in LGBT.
June 25th, 2011 | 9:49 pm
David, the difference between your cute analogy and reality is that basketball played in wheelchairs still resembles marriage in several identifiable respects. You use a ball. You use a basket. You have similar rules. You have similar scoring.
Two people of the same sex forming a relationship and calling it marriage does not resemble marriage in any respect, because the relationship of the two sexes is essential to marriage, and anything else is a COMPLETELY different thing. Calling SSM “marriage” is more like calling chess “basketball,” than calling wheelchair basketball “basketball.” Just like, using a walker and calling it walking makes more sense than operating a wheelchair and calling it walking
June 25th, 2011 | 9:51 pm
And, sorry, in the second line above, “marriage” should be “basketball.”
Shorter response to David: just because you can recast an analogy doesn’t make it applicable.
June 25th, 2011 | 9:56 pm
And the William/Kate thing is a red herring: when people talk about “redefining marriage” nobody means that we mean that “marriage” will now mean only “same sex marriage.” We mean the definition of marriage, which is the legal union of two people of opposite sexes, will be changed to something else, like “the voluntary union of any two consenting adult human beings who want some kind of legal advantage to their relationship.”
If you don’t think that recasting marriage so that, should my husband die I could marry my mother-in-law for some kind of legal convenience without any reference to either our sex or the nature of our relationship, isn’t a “redefinition,” we’ll never successfully communicate — but you’ll also need to concede that you don’t understand the anti-SSM viewpoint at all.
June 26th, 2011 | 12:02 am
And the William/Kate thing
=======
On a side note to marriage issues, didn’t anyone else think that William and Kate marrying in a Church was a particularly hypocritical circus?
Since when have either of them given any indication of practicing a Christian religion on a day-to-day basis?
There are millions of liberals in England, who, like their counterparts in the US and France, hate what Christianity teaches.
Yet they all went to cheer the pageantry that was part of the ceremonial spectacle of the “Royals” getting married in the very Church they constantly attack and despise.
I see the Royals in England like human Barbie dolls for adults.
June 26th, 2011 | 12:17 am
Ken: The imperative thing is to convince people that same-sex and opposite-sex couples are not similarly situated. I don’t think opponents of SSM have done a good job here.
=============
Personally, I don’t think it’s logical to assert that homosexuals “are just like heterosexuals” and then state that it’s only when they form a couple that they are not “similarly situated.”
Some conservatives have jumped on the liberal homosexuality bandwagon and adopted the dogma that homosexuality is inborn and cannot be changed. This is not true and it makes all the difference in the world concerning the crux of the one’s ideology about homosexuality.
Conservatives need to do a much better job in educating the public about the contributing factors (psychological, personal experience, ideological, emotional, etc.) that will engender the development of a homosexual problem and psychology in a heterosexual person.
There is no reason why we shouldn’t be producing right now a number of books, documentaries, etc. on this subject for the public at large and to be distributed and studied in churches.
Simply continuing to focus on the morality aspect of homosexuality will not be enough, in fact, it’s a recipe for disaster. Only true conservatives pay attention to morality in the first place, and the public at large is left to be manipulated by any two-bit idiot with a pro-homosexuality, pro-pornography, pro-promiscuity ideology.
June 26th, 2011 | 6:14 am
Ken Z and Dblade
You might well wish to consider the following argument of the eminent French Jurist, A. Mirkovic. Himself a supporter of SSM, he puts his opponents’ case very fairly and succinctly and his own arguments in defence of the opposing position is astonishingly weak. As a citizen, Prof. Merkovic is free to advance his own views; a one of the greatest living French jurists, he would never sttoop to misrepresting hsi opponents arguemts. I wish I could say as much for my co-religionists
“Even today, in 2011, in commenting on the decision 2010-92 QPC, [the decision of the highest French courts rejecting SSM] some authors consider that the marriage is based on human reproduction. “ In regard to marriage, persons of different sex, and persons of the same sex are not in the same situation because marriage includes the perspective of procreation. With regard to procreation, either natural or imitated in the case of adoption, the first may indeed procreate (or make as if they had procreated), while the latter cannot. If some male-female couples do not breed, it is for reasons of their own, subjective (advanced age, pathologic infertility, choice not to have children), same-sex couples cannot procreate together due to objective incapacity. The difference in situation justifies the difference in treatment, namely access to marriage. (…). the legislature must therefore reaffirm the specificity of the marriage, not only among other life-styles for couples, but as the foundational institution of the family.» This is only the confirmation of the doctrine of the 1990s. But we are now tin 2011. This should not in any case prejudice the options open and the legitimization of same-sex marriage.”
Had American opponents of SSM respected the principle of laïcité , and refrained from arguments that suggested they wished to revive the old laws, based on the unholy alliance of fanaticism and despotism, against “offences against religion” like blasphemy, sodomy and witchcraft, they maight have encouraged the same fairness and moderation in their opponents.
June 26th, 2011 | 7:40 am
Another SSM post on FT, another 200 comments mostly going thru the same arguments as if they were never mentioned. For example,
Blake
1. Biological ties – by extending the presumption of paternity to couples that argue fraud is a legitimate means of founding a family
The ‘presumption of paternity’ argument has been refuted several times now. Long story short, there is no ‘right of paternity’ in marriage. Paternity can be assumed only if no one contests it and that’s not different from an unmarried couple who have a baby. By tossing it up again and again while not noting or addressing its refutation Blake is now being dishonest.
(don’t get mad at the following, the below arguments aren’t new of course but I don’t object to the objectors the way I do Blake above)
Steve
It’s an honest question: Do those seeking same-sex marriage rights endorse the rights of polygamists? If we’re redefining things, can’t we “define” them into the equation?
No. Mostly because nothing is getting redefined to begin with. Marriage, for about the last hundred years, has been a gender neutral institution in most developed countries so legally SSM is simply following thru with the logical consquences of that. It is, however, a number defined institution which would make a rights based argument for polygamy pretty unviable.
Now of course anyone could lobby for polygamous laws and Utah did, initially, have polygamy on its books until the Mormon’s revised their doctrines on it. I suspect that such an effort would falter under the question of ‘whose polygamy’? For example, suppose 4 people get married but then one person wants out. Does divorce dissolve the entire marriage leaving the 3 people to have to marry again if they want to continue a 3-person marriage, or does the divorce just make the 4-person marriage a 3 person?
Current marriage law has an automatic answer, since marriage is two person one person getting a divorce ends the marriage. Polygamous cultures answer with ‘it depends’. If the husband leaves, the remaining women usually aren’t considered ‘married to each other’….but if a wife leaves those remaining are considered still married. Adopting polygamy modeled on traditional Mormonism or Islam would make marriage no longer a gender neutral institution which would be a tough sell IMO.
I think the most you’ll see with polygamy is some sort of legal tolerance where polygamous couples won’t be harassed by the law but would have to keep to two-person marriage. In some Fundamentalist Mormon circles, this has even created a pseudo-institution of ‘first wife’ who holds the actual legal title of wife.
Alessandra
Furthermore, even when the government is involved, most times that there is an infraction related to speech, it is neither possible nor practical for most individuals to sue.
So censorship in the sense of repression of ideas functions mostly through gatekeepers that are not part of the government.
Take note all. The above is an example of how people who cry about political-correctness become the most politically correct of us all.
pentamom
It would be like paralyzed people insisting they be allowed to participate in walking, by getting someone to pass a law saying that walking doesn’t have to mean using your legs.
The state doesn’t own walking, hence it doesn’t get to define it. Any paralyzed person who wishes to try to walk needs no pass by me, let alone some clerk at the municiple building.
I think this argument represents a category error. If the state defines marriage, then it can define it as it wants, there is no confusion…you’re married if you have a state license, not if you don’t. If the state doesn’t define marriage, then there again is no confusion. If some paralyzed child was hobbling and his parents and friends patted him on the back for walking, you wouldn’t be the slightest bit confused about walking.
You are free to assert SSM couples aren’t really married just as you’re free to assert that different sex couples who are getting married ‘just for the benefits’ or as the Catholic Church says who are previously divorced, aren’t really doing marriage…..but the state’s job is not to push these definitions. For pragmatic purposes the state is required to help record marriages (or marriage attempts if you will).
We mean the definition of marriage, which is the legal union of two people of opposite sexes, will be changed to something else, like “the voluntary union of any two consenting adult human beings who want some kind of legal advantage to their relationship.”
You’re confusing a definition with a motivation. There’s no doubt heterosexual couples who marry only for some kind of ‘legal advantage’. Since people have all types of motivations that range from profound to the totally absurd it’s not very sensible to make motivation a universal part of the definition of marriage. Also your motivation here is rather judgemental….as if the only reason same sex couples might want to marry is tax or legal benefits. Is it too much to ask that you extend at least a little bit of charity and admit that maybe some same sex couples want to marry because they sincerely feel in love with their partners and want to unite their lives together? Even if you feel such a motivation is misguided, you should acknoweldge it rather than pretending this is all some convoluted scheme to score a tax deduction or something like that.
Two people of the same sex forming a relationship and calling it marriage does not resemble marriage in any respect, because the relationship of the two sexes is essential to marriage, and anything else is a COMPLETELY different thing.
Taking a rather conservative and even religious view of marriage, its when two different people become ‘one flesh’ (cribbed from the New Testament). That’s clearly partly allegorical (successfully married couples get very close, but they don’t fuse into one organism) and partly aspirational (many marriages consist of two people who are together for a while and then fall apart….never actually uniting together). It might be more proper then to speak less about married couples and more about couples who are ‘attempting marriage’.
Attempting marriage then, seems pretty much the same for a same sex couple in the case of SSM. Now you may say that same sex couples can never truely succeed at marriage. That’s fine, but marriage’s true success rate is probably quite low and the state is hardly the proper actor to prevent people from foolish attempts at marriage. If you think it is then please advocate that it stop jokes like Donald Trump and New Gingrich.
should my husband die I could marry my mother-in-law for some kind of legal convenience…
Technically you could without SSM marry your father-in-law.
June 26th, 2011 | 7:54 am
Proposal
Each time I get drawn into one of these SSM, I do try to make it a little bit different. The last time I tried to ask anti-SSM to reflect on the causes of their apparant failure, to ask if maybe they themselves might share some of the blame for SSM passing and becoming more and more accepted. Michael PS has posted many interesting things on French marriage law and it seems pretty clear France’s rejection of SSM seems much stronger than the US’s (and France is not an anti-gay country by any means) but it came by embracing a strong civil union type law. Anti-SSM advocates in the US, though, bent over backwards to leave SSM advocates with nothing and to back them into a corner. More often than not their anti-SSM amendments, ballots and laws not only closed off SSM but also made it clear they were making war on civil unions and even in some cases private contracts that might ‘simulate’ marriage!
Anyway, let me put forth something else kind of new here. NY is now a large state with SSM. No matter what happens it seems for the next ten years plus we will have states with SSM and states without…..but even if the whole US goes to SSM, let me ask this:
At this point what objective criteria will you be willing to be measured by? If we return to these comments 5, 10, 15, 20 years plus from now what predictions are you willing to put down by which you will say “I was wrong” if they fail to pan out?
For example, pentamom argues by analogy that marriage would ‘lose all meaning’. OK so in the future what will it look like to be living where ‘marriage has lost all meaning’? If I were instantly transported to such a future, what would I see, hear or read that would cause me to utter “ehh ghads, I’ve arrived in a society where marriage has lost all meaning!”
Now keep in mind I’m asking for something falsifiable. If, for example, you assert that SSM will lead to polygamy, to group marriage to the abolition of all legal marriage then having individuals just craft their own arrangements….for example….but in 2050 things basically look like they do now with the exception that maybe 1-2% of all marriages are SSM…you’d have to say you were wrong.
June 26th, 2011 | 8:06 am
Alessandra
You have the formidable authority of Aristiotle against you: “others are morbid states resulting from custom, e.g. the habit of plucking out the hair or of gnawing the nails, or even coals or earth, and in addition to these, misdirected lusts; for these arise in some by nature and in others, as in those who have been the victims of lust from childhood, from habit.” [Nicomachean Ethics Book 7:5]
St Thomas Aquinas is obviously thinking of this passage, when he writes: “It happens that something which is not natural to man, either in regard to reason, or in regard to the preservation of the body, becomes connatural to this individual man, on account of there being some corruption of nature in him. And this corruption may be either on the part of the body — from some ailment; thus to a man suffering from fever, sweet things seem bitter, and vice versa — or from an evil temperament; thus some take pleasure in eating earth and coals and the like; or on the part of the soul; thus from custom some take pleasure in cannibalism or in the unnatural intercourse of man and beast, or other such things, which are not in accord with human nature. (S.T. I-II, Q. 31, Art. 7, cor.)”
June 26th, 2011 | 8:51 am
Ken, there’s a difference between a generative marriage that can’t be fulfilled and one that can never generate children innate to the union. The potential is what matters.
The difference between a childless couple vs. a gay couple is that the childless couple qualifies for benefits they choose not to use, while the gay couple wants to use benefits they do not qualify for.
The rightful person to share one’s “baby subsidy” with is the person you make the baby with. Babies should not be classified as transferable property, because that is a violation of the child’s basic human rights: freedom from exploitation is on the same level as the right to not be enslaved.
Every child has the right to expect that every custody decision that affects him will be determined with his best interests in mind. To the extent that his guardians are prioritizing other interests over his, those guardians are guilty of abusing their position (similar to embezzlement, except that we only use the word embezzlement to describe situations that are fully material and quantifiable in dollar amounts).
Gay marriage relies on shifting the burden of proof away from the adopting parent’s obligation to demonstrate that he is fulfilling the child’s needs and that the adoption is in the child’s best interests.
Gay marriage relies on shifting that burden of proof, so that “gay rights trumps kids’ rights”. The burden of proof must be that gays have the right to do everything other couples do – including taking possession of other peoples’ kids – until and unless someone may prove that the child will be harmed.
But it is quite clear that a child has an interest in having both a mother and a father. There is NOBODY who believes that men and women are interchangeable. Even the gay people whose arguments rely on the interchangeability of mothers and fathers cannot possibly believe such a thing, because if they did, they could not argue a need for “same-sex marriage”; the argument “it doesn’t matter, as long as s/he is loving” would apply to them as much as to their child.
June 26th, 2011 | 9:01 am
Some conservatives have jumped on the liberal homosexuality bandwagon and adopted the dogma that homosexuality is inborn and cannot be changed. This is not true and it makes all the difference in the world concerning the crux of the one’s ideology about homosexuality.
It does not matter if it is true and it does not make all the difference, either.
What if pedophilia were demonstrated to be inborn?
If you have argued that a sexual identity is a “right”, then you are making an argument that has implications for more than just gay people.
This is not a “slippery slope” argument. If you shoot a hole in the boundary that separates two things, it is not “slippery slope” to argue that everything that boundary kept out will now come in.
Gays want to destroy the fundamental boundary between sexual behaviors by criminalizing the act of distinguishing between the sacred procreative act vs. sexual acts that are not family-making, not procreative, and are motivated by nothing but a desire for pleasure.
This is a distinction that changes the rules that govern many things.
For example, it changes the rules that govern our ability to distinguish from appropriate vs. inappropriate behaviors. If sexual pleasure is deemed a basic human right, then everyone loses the right to object to any behavior that can be described as “victimless” – and, indeed, many behaviors that do have victims will be classified as victims, in just the same way gays have shifted the burden of proof away from “the parents should demonstrate” in adoption cases to the new burden, “gays should have the right…[unless you can prove] how is the child harmed?” (And no matter how much proof you bring, it will never be enough, because too much is riding on it).
Another key distinction: gays are attacking the distinction between the passive and the active, the verbs “TO BE” vs. “TO DO”. The state of “being gay” is to be recognized as equivalent of the state of “being black” – but they are deliberately confusing and conflating the passive state of “being gay” with the active state of engaging in homosexual behaviors. The state of “being gay” is therefore not restricted to actual discrimination of passive gay traits (for instance, marriage licenses that require a test to “screen for gay genes” would be a valid comparison to interracial marriage). Instead, they have defined “being gay” as including behaviors – if you do not have the right to object to a person “being gay”, then you do not have the right to object to ANY behavior that is classified as a “gay person’s behavior”.
These are serious category distinctions, above and beyond the recognized problem with blurring the distinction between family as a privileged social grouping vs. all the groups that want to be called a family (but aren’t biologically related).
June 26th, 2011 | 10:59 am
We mean the definition of marriage, which is the legal union of two people of opposite sexes
pentamom,
This is the definition of marriage? This is what the fight is over? “The legal union of two people of opposite sexes”?
Of course if your definition of marriage is “the legal union of two people of opposite sexes,” then approval of same-sex marriage changes the definition.
I always find this quote helpful in discussions about marriage. John L. McKenzie, in Dictionary of the Bible says:
So if marriage is “the legal union of two people of opposite sexes,” there was no marriage in Israel. Actually, even in modern Israel there is no civil marriage.
I really thought the fight was over more than “the legal union of two people of opposite sexes.”
June 26th, 2011 | 1:44 pm
Boonton:
30 years. Essentially we should see fallout at least start in measurable, falsifiable ways then. It seems to take that long for effects to become noticeable, using no-fault divorce as an example. Mostly because you need a generation or two to live up through it.
What will the effects be? Well for one I think we will have a serious case made that ssm benefits should extend to polyamorous individuals. By making marriage a private erotic contract, there’s is going to be little to restrain it from going into other forms of expression. Expect to see it legalized 2040.
We are also going to see increasing punitive measures, mostly on religious people, as SSM advocates realize that no, marriage is not satisfying and not chosen, and gay angst still remains. So they will use SSM as a club to hit the real target, religious ideals about homosexuality. The actual amount of people finding benefit from this is tiny: what matters is that this is a huge stick to beat your culture war opponents with.
So expect to see measures eroding religious protections by 2040 too. There you go, two predictions. The problem is that nothing acts alone, and other factors can mess things up. But I’d be confident in seeing these happen.
June 26th, 2011 | 1:49 pm
Ken Z: I do not think the arguments are engaged at all; rather it is like showing a triangle and a rectangle to a child and describing the differences. The child insists the two shapes are the same. Asking for an explanation the child’s answer is “I like it.” A sophisticated child might argue that each shape has three points hence are the same; suggesting a concrete definition produces a tantrum of frustration.
Boonton said “Taking a rather conservative and even religious view of marriage, it[‘]s when two different people become ‘one flesh’ (cribbed from the New Testament). That’s clearly partly allegorical (successfully married couples get very close, but they don’t fuse into one organism) . . .”
We’ve already gone through this: a woman and a man join in a conjugal embrace and a child is a result: two become one. The language is poetical rather than precise as gametogenesis had not yet been observed on the cellular-level. Yet that is precisely what happens – two gametes join to become a unique individual. Give your ancestors some credit for being able to observe what is.
June 26th, 2011 | 2:41 pm
Blake
The rightful person to share one’s “baby subsidy” with is the person you make the baby with. Babies should not be classified as transferable property, because that is a violation of the child’s basic human rights: freedom from exploitation is on the same level as the right to not be enslaved.
Baby subsidy? There is no such thing. Any ‘baby subsidy’ goes towards those raising a child, not those who make a child. The ‘baby subsidy’ for Arnold’s son is enjoyed by his former maid and her husband because they have been raising the child for the last ten years. In contrast a married couple who has a child and gives it up for adoption receives no ‘baby subsidy’.
Chalk another dishonest argument up to Blake.
What if pedophilia were demonstrated to be inborn?
What if there’s an inborn trait that makes some people fantastic mothers and other people lackluster mothers? What if there’s an inborn trait that makes some people lean towards religiousity and others towards being irreligious?
Another key distinction: gays are attacking the distinction between the passive and the active, the verbs “TO BE” vs. “TO DO”. The state of “being gay” is to be recognized as equivalent of the state of “being black” – but they are deliberately confusing and conflating the passive state of “being gay” with the active state of engaging in homosexual behaviors.
I feel I am heterosexual. If you followed me around with a hidden camera, though, you will find very long stretches of time when I’m not doing a single behavior that could be described as heterosexual. Yet I find it hard to believe I case being a heterosexual during moments when I may not be thinking about sex and I think most others will as well.
Likewise you yourself talk about gays all the time…yet who are you talking about? Using the above standard it’s nonsense for you to talk about a gay person unless you’re talking about a person who AT THE THE VERY MOMENT is engaging in gay sex.
June 26th, 2011 | 2:42 pm
Christian sacramental marriage is a way for the couple to recieve strenght and blessing , in the Holy Spirit , to be good and faithful to God, to each other and to bring up holy children , thus also to serve the community at large .
God delights in such a relationship and govts as well as families bless and foster same !
In the ‘ pretend marriage scheme ‘ ( PMS ) which is what was approved , it is easy to see whose plans get pushed aside , to be replaced by whose plans !
Love of money is the root of all evil and there are reports on how votes were bought by offer of millions for reelections !
Could that money have origins in places that want to see the downfall of this country – a country where , the enemy can say , is a bastion of much that is antithetical to what is valued much , in the rest of the world and thus use it as propaganda and justification !
A country where the action of govt could be interpreted to say that most of the populace is saying that men being robed of the dignity of their father identity is to be approved !
The other undertone of hostilty / fear towards women , which is also the underlying hidden realm in the afflicted is also approved and fostered !
Then again , may be the law would open the hearts of many to see the gravity of the situation before it becomes a destroying plague and thus help to find an effective remedy
( which is already there for those who have the desire to be helped ) so that men and women would be able to live and let live , in the dignity of the God given identity of each , for all the resultant good !
June 26th, 2011 | 3:41 pm
Boonton:
I predict that the redefinition will have give so much total leeway to our government and courts to redefine marriage and family, that the very notion that a mother and father is somehow “a good thing” will be regarded as nothing more than a “stereotype” and that our liberal courts will be able to declare this law or that law invalid based on the declaration of one or two people in opposition to the population of an entire state.
Do you think I’m wrong? Let me know.
June 26th, 2011 | 3:42 pm
Blake
June 26th, 2011 | 9:01 am
Alessandra: “Some conservatives have jumped on the liberal homosexuality bandwagon and adopted the dogma that homosexuality is inborn and cannot be changed. This is not true and it makes all the difference in the world concerning the crux of the one’s ideology about homosexuality.”
It does not matter if it is true and it does not make all the difference, either.
What if pedophilia were demonstrated to be inborn?
===========
What if 2+2 were demonstrated to equal 5?
We’d know for sure that we were living in 1984.
And, yet, the answer would still be wrong.
You can’t demonstrate something that is false as being true unless you use a false demonstration.
What if the desire for communism were demonstrated to be inborn? What if the desire for Buddhism were demonstrated to be inborn? What if the desire for playing video games 18 hours a day were demonstrated to be inborn?
All of the above “demonstrations” would actually require the complete erasure of the simple truth that the causes for the above desires/addictions are environmental and based on personal experience.
The same is true for demonstrating the “inborn” of any deformed/disoriented sexuality psychology (homosexuality, pedophilia, S&M, etc).
But trying to blame biology for socially and psychologically deformed developments which happens after someone is born is nothing new.
Cesare Lombroso (1835–1909), the founder of anthropological criminology, claimed to be able to scientifically identify links between the nature of a crime and the personality or physical appearance of the offender.
The originator of the concept of a “born criminal,” who argued in favor of biological determinism, tried to recognize criminals by measurements of their bodies.
He concluded that skull and facial features were clues to genetic criminality, and that these features could be measured with craniometers with the results developed into quantitative research. They included 14 identified traits of a criminal such as large jaws, high cheekbones, flattened or upturned nose, and so on.
Almost two hundred years later and humans are still trying to assert that a disorientation in sexual psychology is caused by a non-existent gene. You would think society at large could have evolved a bit more than this, but no, they resist. Fortunately, there individuals who have developed knowledge in this respect and know otherwise.
June 26th, 2011 | 3:52 pm
@Jonathan W
Thanks!
Here’s the first part of it, which was not posted yesterday:
ere’s a common comment I come across in this debate:
“Nobody is demanding “the right to undermine marriage.” Many same-sex couples do, however, want to participate in it. That’s not the same thing, however much some people enjoy imagining it to be.”
I propose a new law: henceforth all mankind will be included in what is commonly referred to as “woman.”
Now I want to be clear about one thing: by including “men” (humans with penises) in what we mean by “women” I have absolutely no interest in undermining in any way people born with vaginas. Nothing for them will change AT ALL! I merely want to give people with penises the same access to all the laws, traditions, and societal conventions that have been traditionally set aside for people who born with vaginas (and by the way, why SHOULD we exclude half of mankind from something based on nothing but what is hidden underneath their pants?!?!).
No doubt there will be a lot of penis-phobes out there who are going to argue that humans born with vaginas must have some exclusive claim on “woman.” They will tell us that women have traditionally only ever been born with vaginas, and that therefore on the basis of what dead white men say, well, we just have exclude all humans born with penises forever. It’s sad but there’s a lot of intolerance out there folks, and I suppose there always will be, but let’s not excoriate the penis-phobes (previously known as “feminists”). Let’s treat them with love, understanding, and tolerance. Let’s pray that they will someday overcome their hatred of those who are different from themselves, and let’s pray that they too will join the tolerance community.
That said, women-with-penises will of course need legal protection against all institutions (Girl Scouts, YWCA, leadership of women’s rights organizations, Beauty Pageants, etc.) that might not grant them full and equal inclusion. Also, jobs programs designed exclusively for women-with-vaginas will need be open to women-with-penises as well.
Now some may argue that genitalia is somehow this decisive, God-given, “natural right” that separates us into two distinctive groups. In the Puritanical world of Cotton Mather I guess that might have been true. But humans have surgically changed their genitalia for about a half-century now. What “God” or “nature” gives you by the pure accident of birth should have no bearing whatsoever on whether or not you choose to have a vagina or a penis, and it certainly should not legally exclude you from full and equal access to “womanhood.” And since genitalia is merely arbitrary and now choice-based, why should it have any bearing on whom we include in “womanhood”?
Of course the usual suspects walking around with clerical collars around their necks will be hitting the pavement again on this one. Umm…separation of church and state, anyone?
Final point: What I don’t get about the people that oppose universal womanhood laws is, why do they care? How does it effect them? If you have a vagina and call yourself a woman, how does it effect you if a person with a penis–even someone whom you’ve never seen and never will see–is called woman? You are still a woman. You don’t have to change anything about your life. What scares me a little is since universal womanhood doesn’t really doesn’t effect their lives in any meaningful way, what’s going on is something more visceral with them. It’s simply a hatred born of intolerance or their Bible-thumping church, or whatever, that can sometimes turn violent. I know, I know, that’s what police are for, but we need strict hate-crime penalties for this sort of thing that will put those types of people behind bars for a long time when they do erupt.
June 26th, 2011 | 4:13 pm
SteveP
We’ve already gone through this: a woman and a man join in a conjugal embrace and a child is a result: two become one.The language is poetical rather than precise as ametogenesis
had not yet been observed on the cellular-level.
The language takes place in a discussion of divorce and ends with the famous ‘let no man pull asunder…’ phrase. Neither Jesus nor anyone in the audience believed divorce meant trying to slice any children of the marriage in half to distribute to the divorcing parents….and no one I have ever heard thought the passage meant that divorce was OK unless and untill the married couple had children.
Dblade
So your predictions are:
1. Polygamy legalized as an institution (not simply decriminalized where it’s a criminal offsense).
2. ‘Eroding religious protections’…..I’d like you to be a bit more specific about that. One can always pull some political correctness cases out of the hat and argue they represent increased intolerance. What specific protections?
Will you predict, say, the Catholic Church will lose tax exempt status in 2040 or so if it doesn’t allow SSM? If that doesn’t happen will you say you were wrong? Why would that happen but, say, it hasn’t happened with divorce where the Catholic Church’s marriage policy has been at odds with civil law for at least a few hundred years.
Care to venture any short term predictions that you’ll hold yourself too? Or will we have to hope to have wifi connected graves to check up on your predictions?
June 26th, 2011 | 5:29 pm
I’m getting confused with all this. Heteresexuals are marrying less and less while homosexuals are doing the opposite.
June 26th, 2011 | 7:09 pm
We’ve already gone through this: a woman and a man join in a conjugal embrace and a child is a result: two become one.
SteveP,
I have never taken procreation as necessary for a man and woman to become “one flesh.” I will have to check my commentaries.
June 26th, 2011 | 8:50 pm
Boonton:
No, Polyamory: http://en.wikipedia.org/wiki/Polyamory
Expect to see it codified in some form of civil union. Not marriage in any real sense, but like the NYT writer says, “It’s not that we’re antimarriage; rather, we think marriage ought to be one choice in a menu of options by which relationships can be recognized and gain security.”
As for the specific religious predictions, I’m not sure the Catholic church would. I’m defintely sure some parachurch organizations will, or be forced to close. Something like day care may be impossible to do by religious organizations.
Short term? Okay, watch gays get EXTREMELY disillusioned with marriage as it neither makes them feel whole, or accepted. In 5 years, we should have gay divorce statistics. Expect them to higher than comparable straight ones. Expect to see a lot of articles not willing to accept this, and blaming it on other reasons.
June 26th, 2011 | 11:17 pm
Good point about polygamy being confused with polyamory….my personal perference, though, is just ‘group marriage’. Enough Greek! If I were you, though, I would bet on polygamy as there are already active polygamists out there who, I think, are a bit more serious than polyamorists.
So your prediction is in about 5 years we should see SSM divorce rates sign. higher than straight ones….
AS luck would have it, we don’t have to wait 5 years. Canada started legalizing SSM in June of 2003 and finished in Oct 2006. At that time there were 12,438 SSM in Canada which means we have just passed 5 years!
According to wikipedia what might be the world’s first lesbian divorce was requested on Sep 13, 2004.
http://www.ottawadivorce.com/statistics.htm gives us some stats. on divorce by year of marriage (this is very hard to come by, by the way).
In 1 yr of marriage, there’s about 5.1 divorces per 1000 marriages.
2 yrs, 17 divorces for every 1000 Canadian marriages.
3 yrs, 23.6 divorces per 1000
4 years 25.5 divorces per 1000
After that chance of divorce declines for each additional year of marriage.
OK so if SSM had exactly the same divorce rate as regular marriage we would normally expect 63.2 divorces out of about 12.4K SSM. After about 4 years it would be normal to expect about 883 SSM divorces out of about 12.4K SSM marriages. So if SSM mirrors straight marriage we should have pretty close to a thousand SSM divorces by now. Having to wait until 2004 to get one is pretty surprising. http://en.wikipedia.org/wiki/Same-sex_marriage_in_Canada#Statistics_on_same-sex_marriage tells us Ontario had 6,524 SSM by June of 2003 and British Columbia had 3927 by July of 2003. Out of 1000 marriages its normal in Canada to see 5.1 divorces within one year. That’s 10,000 SSM already 2004 shouldn’t be bringing us the first SSM divorce but about 50!
I suppose there’s some factors here that might make the first 5 years of Canadian SSM different. Maybe the first same sex couples who jumped into SSM were exceptionally committed, already had multiple years under their belt so their divorce rates would look lower compared to newlyweds who typically seem to suffer the greatest chances of divorce within the first 4 years of marriage. From what I read, for example, the first gay divorce in Canada was of a couple who had been together 5 years and filed shortly after SSM was first legalized. But then lots of different sex couples are often together a few years before getting married….anyway in order to fulfill your prediction of not equal but greater and even excessive SSM divorce the SSM divorce rate in Canada should by now have started rising quickly as the newness of SSM is worn off in Canada…its over 7+ yrs old now.
June 27th, 2011 | 3:53 am
Booton
I see a number of changes as a result of SSM
In the Netherlands, for example, the presumption of paternity (the “heart of marriage” according to Carbonnier and the French Senate) is limited to opposite-sex couples. Moreover, in deference to the Hague Convention on International Adoption, adoption by same-sex married couples is restricted to children who are Dutch nationals. In other words, they have ended up with a two-tier marriage system, which rather defeats the object of the exercise.
The question of Same-Sex Marriage cannot be treated in isolation from those of adoption and assisted reproduction. At all events, the countries that have made marriage accessible to same-sex couples have all authorized adoption by such couples and developed systems of assisted conception – even surrogate gestation – to enable such couples to have children.
Given the principle of the Civil Law that “Only things in trade can be the subject of an agreement” I suppose we are now to regard children, along with human genetic material, as articles of commerce.
Once again, it is worth noting that it is secular France that has resolutely opposed these developments, restricting infertility treatment to pathological conditions, outlawing surrogacy and restricting joint adoption to married (opposite-sex) couples.
June 27th, 2011 | 7:27 am
Booton:
You may have missed my prediction so I’m going to post it one more time. Let me know what you think….
I predict that the redefinition will have give so much total leeway to our government and courts to redefine marriage and family, that the very notion that a mother and father is somehow “a good thing” will be regarded as nothing more than a “stereotype” and that our liberal courts will be able to declare this law or that law invalid based on the declaration of one or two people in opposition to the population of an entire state.
Do you think I’m wrong? Let me know.
June 27th, 2011 | 8:45 am
I predict there will be an assault on churches over this. They will be accused of discrimination if they refuse to marry gays. The vanguard has already arrived—-ending the venerable Catholic Charities adoption services in Boston because that institution would not place children with gay couples, and attacking Catholic Charities in Washington, DC because it would not extend health benefits to gay partners.
That being the case, I doubt anyone else would be allowed conscientious objections to gay marriage: wedding consultants, bakers, musicians, caterers, etc. More and more, though, I think this is and will primarily be an assault on religion.
June 27th, 2011 | 9:37 am
I predict there will be an assault on churches over this. They will be accused of discrimination if they refuse to marry gays.
Peg,
Please take note of the article in the New York Times about what an important role religious exemptions played in passing the same-sex marriage bill in New York.
Simply put, the religious exemptions in the law cannot be challenged, or the law will be invalidated.
June 27th, 2011 | 10:05 am
[...] No Satisfaction in Same-Sex “Marriage” – In light of Friday’s vote in New York (more on that shortly), this is an interesting article. Maybe, just maybe, getting the word “marriage” to be redefined is not enough for same-sex activists. If not, it reveals an interesting fact of the human condition: man’s search for meaning. It’s almost like they’ll be ever seeing and never perceiving. [...]
June 27th, 2011 | 10:57 am
Michael PS
I’m not sure what you’re SSM-caused change in the Netherlands really is. You’re saying The Netherlands limited the presumption of paternity to opposite sex couples. Errr, who did they presume were parents before they instituted SSM?
To me that doesn’t seem like a dramatic change but ‘mopping up’ some legal language. It does, though, dispute Blake’s assertion that SSM is some convoluted scheme for gays to steal children by claiming paternity.
Given the principle of the Civil Law that “Only things in trade can be the subject of an agreement” I suppose we are now to regard children, along with human genetic material, as articles of commerce.
I think you make a fair point about France not going down this path….but this is really a different issue than SSM. Surrogate paternity disputes hit the courts in the US long before any state even contemplated SSM and to the degree that children become subject to ‘trade’, it will be and is different sex couples who by far drive such trade. In the US young women are hit with adds offering them $6,000 to sell their eggs to fertility clinics. The bulk of those clinics customers are not SSM couples and won’t be even if every state legalizes SSM.
Douglas
Yes I think you’re wrong. I don’t think you’re really giving credit to the actual legal arguments used in favor of SSM. As for ‘opposition from the people of an entire state’….well in Mass. you couldn’t get mass opposition in order to pass an amendment overturning the court ruling. In CA the amendment passed only by a slim majority and now in NY you have democracy turning against the anti-SSM side.
Glancing at your original comment (I am missing some of them)….I’m not really clear what you think your analogy proves? With the exception of being exempted from selective service, I’m unaware of any legal benefit that the law grants to women only and not men. Since no one really cares about selective service anymore, what exactly would a ‘universal womanhood law’ do? In the US laws actually do things, we don’t use the law just as a giant dictionary to settle bar bets and unlike France we have no official organization whose job it is to produce ‘official’ rules for use of the language. In the English speaking world at least its been a free for all since before Shakespear.
Peg
The adoption story is a red herring. Catholic Charities wasn’t denied the right to restrict adoptions to different sex couples, they were denied a *public contract* to handle *public adoptions*. IMO that is no different than if they announced that they would only adopt children out to ‘good Catholic families’. In such a case the taxpayers of the state, many who are not Catholic, have every right to say no if you take public funds to do a public job you serve the whole public.
There’s been a somewhat heroic quest to find any actual real cases or even plausible hypothetical cases of religious oppression due to SSM. To date all of them have failed. The only possible case that might exist IMO would be some type of public business (like a catering hall that’s normally open to all paying customers) refusing to service a gay wedding and then running afoul of antidiscrimination laws. Even then the plausibility is kind of strained IMO.
That, though, is not a very good argument against SSM. If you have a hypothetical case where SSM law might cause some hardship on someone who doesn’t believe in SSM then you also have a hypothetical case where the same law might cause hardship even without SSM. For example, a catering hall owner who recently converted to strict Catholicism might declare that he will not allow divorced couples to have wedding receptions at his place, if legal SSM could get him in trouble then so could legal divorce. If this is really a problem, then the solution would be to reform the discrimination laws so that they accomodate individual beliefs and faiths sufficiently.
June 27th, 2011 | 11:48 am
Boonton:
The problem is that some research says differently: for example, https://same-sex.web.ined.fr/WWW/04Doc124Gunnar.pdf for Norway and Sweden. For arguments sake, lets limit it to America. This will remove any cultural factors that might account for differences, and give less wiggle room.
The thing about polyamory is words. Polgyny-mormons and muslims. Polayamory-sexual adventurers and openminded people. The most effective way currently to deny a person’s lifestyle or arguments is by framing them as religious, and the people espousing polygyny will be doing so for religious motives and wont get the traction from the chattering classes because of it.
David:
“Less frequently, a statute will include an inseverability clause 3 that invalidates an entire statute (or section of a statute) should a provision be held invalid. 4 In part because severability clauses have become boilerplate, these clauses have had little effect on courts making severability determinations.
Despite the explicit statutory language in severability and inseverability clauses, courts all but ignore the clauses and apply their own tests and presumptions to determine severability”
from an abstract of an article on Lexis-nexis (link is long as heck)
June 27th, 2011 | 11:51 am
Booton
The Netherlands did rather more than tidy up the law. Compare Quebec, where, in the case of a female-female married couple, one is automatically the co-parent of a child born to the other. Indeed, one can register the birth in the name of both, so what you have, in effect, is joint adoption without any kind of judicial oversight – Exactly the situation Blake envisages.
The position in Spain would appear to be the same, although that is an inference from silence.
Belgium follows the Netherlands in excluding the presumption.
Again, international adoptions are not a minor issue; 15% of all US adoptions are overseas adoptions.
As regards assisted reproduction, if the law permits assisted reproduction for same-sex couples, it would be difficult to deny “conceptions of convenience” to opposite-sex couples, even to those not suffering from a pathological condition, either by maintaining such laws, where they exist, or proposing them, where they do not.
As regards surrogacy, of course, the problem is not the result of SSM, but can be aggravated by it. Even before the legislative ban on surrogate arrangements. the French courts, applying the general principle against trading in children, treated as a perversion of the institution of adoption the full adoption of a child that is but the final phase of an overall process designed to enable a couple to take into their home a child conceived under contract and abandoned at birth by his or her mother. It thus prevents adoption by a woman of a child her husband has acknowledged if the child was born of a surrogate mother. Whether so robust an approach can survive the introduction of SSM remains to be seen; in Belgium, it has not.
June 27th, 2011 | 11:55 am
“The adoption story is a red herring. Catholic Charities wasn’t denied the right to restrict adoptions to different sex couples, they were denied a *public contract* to handle *public adoptions*.”
So the state used its financial power to drive Catholic Charities out of the adoption business. How is raising that issue a red herring?
“IMO that is no different than if they announced that they would only adopt children out to ‘good Catholic families’. In such a case the taxpayers of the state, many who are not Catholic, have every right to say no if you take public funds to do a public job you serve the whole public.”
They were not limiting adoptions to “good Catholic families” — they were limiting them to heterosexual couples of all creeds. “Discrimination” only became an issue when the state decided to force Catholic Charities to take part in adoptions to gay couples. Providing public funds to a religious institution performing a public service is not the same thing as providing public funds to a religious institution in advancing the religion itself.
“There’s been a somewhat heroic quest to find any actual real cases or even plausible hypothetical cases of religious oppression due to SSM. To date all of them have failed. The only possible case that might exist IMO would be some type of public business (like a catering hall that’s normally open to all paying customers) refusing to service a gay wedding and then running afoul of antidiscrimination laws. Even then the plausibility is kind of strained IMO.”
Apparently, you are unaware of the Ocean Grove, New Jersey and E-Harmony cases.
June 27th, 2011 | 12:10 pm
I predict there will be an assault on churches over this. They will be accused of discrimination if they refuse to marry gays.
The long-term goal is to force their view of what sex “is” on the rest of us.
Every religion in the world except one – the Enlightenment-based belief set I call Unitarian Universalist/humanism (because the same belief set “flips” back and forth between calling itself a religion vs. denying it is a religion, as circumstances warrant) – recognizes that sex has a purpose, and that the act of sex that fulfills this purpose is sacred, different in kind from other types of sexual pleasure.
Gay marriage is about criminalizing the act of making that distinction, so that the UU/humanist view may become enshrined as THE one acceptable belief that we are all required by law to adhere to.
June 27th, 2011 | 12:22 pm
Baby subsidy? There is no such thing. Any ‘baby subsidy’ goes towards those raising a child, not those who make a child.
The tax forms specify “head of household” and “dependent”.
Head of household is another way of saying breadwinner.
Dependent is another way of saying both caregiver and those cared for.
These come with marriage, because marriage defines family.
If marriage stops defining family, this undermines support for the very benefits gays covet so badly.
If marriage is disassociated with childbearing, then there’s no reason for marriage to grant any rights or subsidies at all.
The reason why a spouse is eligible for health coverage is intimately related to the fact that men and women are not able to share the costs of procreation equally. Women bear all the burden, which is the basis for their claim on their husband. (I don’t often agree with feminists, but I do agree with their estimates of how much motherhood costs a woman. I do differ on the solution – the idea that men should be forced to pay for everything, even as we strip them of choice, respect, and rights, does not seem very “fair” to me. I believe that it will continue to be true – as it has in the past – that attempts to redistribute the benefits of marriage to unmarried couples will fail, for the same reason anthropologists cite for the historical failure of matriarchies: there is nothing to stop much-needed males from simply walking away from an arrangement that demands much, but offers little.)
Gays, unlike hetero couples, are capable of sharing the burdens equally, so there is no reason why one has any special claim on the other – or on the other’s employer, or on the tax dollars that we grant.
Make your own type of relationship and be prepared to argue for what you are legitimately entitled to vs. what you are not on a case-by-case basis. Yes, it’s tedious, but it will end up being argued out in full before it’s all done anyway, and you’d save a lot of both hostility and heartbreak. There is no way to steal and reshape what isn’t yours without wrecking the very thing you so covet.
June 27th, 2011 | 12:41 pm
Boonton,
You asked for a prediction, and you denied mine. But Whoopsidaisy! I mistakenly served up history and not a prediction when I wrote:
Turns out this is exactly what the Iowa Supreme Court did.
In a footnote to their 2009 decision, the Iowa Supremes declared the state’s marriage protection law unconstitutional because in part, the court found, a child’s need for a mother and a father was based on nothing more than “stereotype.”
And then later:
(1) “[E]qual protection can only be defined by the standards of each generation.” (p. 16)
Putting aside the echos of Justice Roger Taney in the court’s premise, if the court wants to determine the standards of the current generation you would think the justices would have referred to Iowa’s law defending natural marriage that was adopted in 1998 amidst great popular appeal. But as Ed Whelan pointed out, you’d be wrong.
(2) “The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.” (pp. 16-17)
To quote Ed Whelan, “what goobledygook.” If libertarian supporters of gay marriage are okay with judicial activism on this scale, then they’ve lost all basis for arguing that what they seek is a Constitutionally constrained government. What they’ve really signed up for is the end of natural rights and therefore unrestrained government reach, at least so as long as that reach corresponds with the momentary fashion of their personal likes and dislikes. As they say, good luck with that.
June 27th, 2011 | 1:24 pm
“The adoption story is a red herring. Catholic Charities wasn’t denied the right to restrict adoptions to different sex couples, they were denied a *public contract* to handle *public adoptions*.”
Either way, the gays successfully shifted the standard away from what is best for the child – what the child is entitled to – to what the parent is entitled to.
And the same gay lobby that did this says they’re just like the rest of us. I find that insulting. Good, decent people don’t steal from children.
June 27th, 2011 | 1:30 pm
Michael PS
The Netherlands did rather more than tidy up the law. Compare Quebec, where, in the case of a female-female married couple, one is automatically the co-parent of a child born to the other.
But you’re saying the Netherlands denied ‘presumped paternity’ in same sex cases…..anyway in the US at least you can only get away with ‘presumed paternity’ when the biological parents have no interest in asserting their position.
Again, international adoptions are not a minor issue; 15% of all US adoptions are overseas adoptions.
Driven overwhelmingly by different sex couples.
Dblade
The thing about polyamory is words. Polgyny-mormons and muslims. Polayamory-sexual adventurers and openminded people. The most effective way currently to deny a person’s lifestyle or arguments is by framing them as religious, and the people espousing polygyny will be doing so for religious motives and wont get the traction from the chattering classes because of it.
I think the confusion here is the idea that SSM is about some type of ‘sex adventure’. The problem with this line of thinking is that ‘adventures’ are by definition pretty short term affairs. Polyamory in the sense of people who just want to sleep around or swing offers no incentive for long term investment in lobbying, marching, demanding some sort of legal institution (and what would such an institution do for swinging couples?). Polygamous people, though, do have long term relationships which they could conceivably want some type of legal help in.
courts all but ignore the clauses and apply their own tests and presumptions to determine severability
Depends on the law. When severability is explicitly written out of a law as part of a ‘all or nothing’ deal it almost always stands up in court.
Brian English
So the state used its financial power to drive Catholic Charities out of the adoption business. How is raising that issue a red herring?
Out of the adoption business? Are you kidding me? Seriously? Couples pay near six figures to fertility clinics and celebrities travel around the world to get kids from Africa and Asia. You’re telling me there’s simply no way to make any money in private adoption unless you have a contract from the state!
They were not limiting adoptions to “good Catholic families” — they were limiting them to heterosexual couples of all creeds. “Discrimination” only became an issue when the state decided to force Catholic Charities to take part in adoptions to gay couples.
What if they didn’t want to adopt to Jewish couples or couples with previous marriages? Again you haven’t addressed the issue of why you think its correct to take tax dollars from *all* the taxpayers when you’re only willing to service some of them? You can argue that the state should give them a pass on discrimination laws for various reasons but no you’re not being bullied because a customer wants you to do something a certain way and you don’t want to do it that way.
Apparently, you are unaware of the Ocean Grove, New Jersey and E-Harmony cases.
Both cases where you have a business that holds itself out to be one of public accomodation which thereby triggers antidiscrimination laws. It’s one thing to be a private business offering services only to a private customer list (such as a Church that has a meeting hall that it’s willing to rent out for wedding receptions only for those getting married within the bounds of its doctrines) and another thing to try to be a pseudo-public business open to all customers except just one class.
Consider the church with a meeting hall example above. Such a Church is free not only to discriminate against SSM couples seeking a place to have a reception but just about everyone. They can say no to Jewish couples, secular couples, atheists, new agers, even fellow Christians of different denominations. But now imagine if that church purchases a Dunkin Donuts franchise in order to generate an income flow. They can’t turn around and assert this is a ‘Church D&D’ as they lock the door to the rabbi seeking some munchkins. In between those two extremes, I’m sure there’s some areas where the law might be a bit grey but my assertion holds…its not grey because of SSM, its grey because its grey and if that’s a real problem that bothers you then the solution is to address that grey area.
Blake
The tax forms specify “head of household” and “dependent”.
Head of household is another way of saying breadwinner.
Dependent is another way of saying both caregiver and those cared for
http://taxes.about.com/od/filingstatus/qt/headofhousehold.htm
You don’t have to be married to claim ‘head of household’ on your taxes. As I said, the ‘baby subsidy’ goes to those who take care of a baby, not those that make it.
The reason why a spouse is eligible for health coverage is intimately related to the fact that men and women are not able to share the costs of procreation equally. Women bear all the burden, which is the basis for their claim on their husband.
The claim is by the child on its parents. A woman who has a stillborn baby can’t file a claim on her husband for the fact that the baby used her body for the last 9 months.
Likewise in marriage spouses have a claim on each other for their well being. If you were an unemployed bum married to Oprah Winfrey, you could demand that she provide you with health coverage and your necessities like food and shelter…despite the fact that you being a man will never be pregnant with her child.
Douglas
You asked for a prediction, and you denied mine. …
I didn’t deny you, you asked if I felt you were right and I said I didn’t.
Turns out this is exactly what the Iowa Supreme Court did
Not exactly. Am I free to go to Iowa and father as many children as I please and then skip town without any ramifications? I don’t think so. The Iowa decision you cite in no way asserted that the court was finding that there is no interest in a child having a mother and father. If you think it did, then no doubt you’ll find plenty of cases of relieved men (and some women) who no longer have to pay child support or have other court orders on them in relation to the well beign of their children.
June 27th, 2011 | 1:47 pm
Boonton,
You write:
They did not conclude that a father’s money was of no value. They concluded that the father per se is of no real value.
In Footnote 26 these justices concluded: “The traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else.”
Out of curiosity, do you agree with the Supremes conclusion above?
June 27th, 2011 | 1:54 pm
Am I free to go to Iowa and father as many children as I please and then skip town without any ramifications?
But gay marriage relies on the belief that fathers and mothers are interchangeable, that gender is irrelevant.
It is a question of how social change should be done – scientifically, using the population as experimental subjects? Or ethically?
Occam’s Razor might say that we can assume there is no difference between a mother and a father, but it is unethical to experiment on people without their consent. Parents using children as experimental subjects are also violating the trust in their role as guardians when they use their children in such a way.
(Besides, there is ample evidence that mothers and fathers act, communicate, and parent differently, that children interact differently with same- vs. opposite-sex parents, and so on.)
June 27th, 2011 | 1:55 pm
You don’t have to be married to claim ‘head of household’ on your taxes. As I said, the ‘baby subsidy’ goes to those who take care of a baby, not those that make it.
No, you don’t have to be married to be recognized as family.
That isn’t what I said, though. It’s a straw man.
June 27th, 2011 | 1:57 pm
If the “baby subsidy” goes to those who make a baby rather than those who are married, then – as I asked in the earlier thread – explain the case Miller vs. Jenkins.
Why does Jenkins have a right to that child? She is not the child’s mother. She is not the child’s father. Does she have any claim at all other than that she was married to Miller and therefore entitled to that presumption of paternity that you keep arguing doesn’t exist?
June 27th, 2011 | 2:00 pm
Dblade,
“There’s a difference between a generative union that can’t be fulfilled and one that can never generate children innate to the union. The potential is what matters.”
Does a permanently sterile couple have a potential to procreate? Not in any obvious way. Their generative union can never be fulfilled. The language of acts of a generative kind is similarly vague in the SSM (as opposed to contraception) context. Does it mean generative *act* or generative *kind*? It’s ambiguous. If it means the former, then sterile and aged couples are unqualified to be married. If it means the latter, then they are qualified to be married (and there’s no question that homosexual couples, by parity of reasoning, should also be allowed to marry). In the contraception context, where the idea of reproductive-type acts makes sense, it does so because it assumes the capacity to procreate. It does not make similar sense if the point is to show why sterile and aged couples can marry but homosexual couples cannot.
This is why I prefer to speak of an intrinsic capacity to procreate. It does not suffer from ambiguity or vagueness, as the new natural law argument does on this key point. It clearly shows why the two kinds of couples are not similarly situated.
= = = = = = = = = = =
Libertarian conservative supporters of SSM might think they can avoid the whole “similarly-situated” problem by resorting to “liberty.” They think of liberty as exceptionless (aside from the no-brainer of avoiding harm to others in the exercise of individual liberty). They are being too simple-minded. Freedom from the dominion of others is a good, except for children in relation to their parents, prisoners in relation to their jailers, and soldiers in relation to their commanding officers. The liberty of speech is a good relevant to a limited set of government policies (Britain and the U.S., equally free countries with similar political traditions, have very different ideas of what kind of speech is permitted.) Bodily autonomy is a good except when it means killing fetuses. And so on.
Similarly, because marriage presupposes procreation, marriage cannot be said to be a good of liberty for homosexual couples, who lack an intrinsic capacity to procreate. The idea that there is an exceptionless liberty-right of marriage for all consenting adults is facetious.
Roughly speaking, the liberty argument for SSM appeals to certain libertarian “conservatives,” while the justice and equality arguments appeal to liberals. All of these arguments appear to owe more to ideology and intellectual fashion than they do to reason.
June 27th, 2011 | 2:00 pm
The reason why a spouse is eligible for health coverage is intimately related to the fact that men and women are not able to share the costs of procreation equally. Women bear all the burden, which is the basis for their claim on their husband.
The claim is by the child on its parents. A woman who has a stillborn baby can’t file a claim on her husband for the fact that the baby used her body for the last 9 months.
Likewise in marriage spouses have a claim on each other for their well being.
I do not deny that there are benefits to marriage outside of the procreative benefits.
I simply say that, whether gays are eligible for those non-procreative benefits or not, they are not eligible for the procreative benefits, and granting those benefits would cause harm.
You are rewriting my arguments so that they make sense. Why do you do that? Can you not address the arguments honestly?
June 27th, 2011 | 2:01 pm
I meant so that your arguments make sense.
I think my arguments already make sense, for those capable of understanding what I’m saying.
June 27th, 2011 | 2:27 pm
Dblade
The problem is that some research says differently: for example, https://same-sex.web.ined.fr/WWW/04Doc124Gunnar.pdf for Norway and Sweden. For arguments sake, lets limit it to America.
IMO Canada is a better model because its a large country that shares many of our cultural attributes plus is nowhere near the homogenous population demographics of Norway or Sweden. I was a bit surprised, though, that Norway & Sweden’s SSM divorce rate was actually higher for gay women than gay men…I would have guessed we’d see the opposite with SSM male marriages having a higher divorce rate than heterosexual ones and SSM female marriage having an even lower rate. What else is interesting is that:
1. Both countries didn’t quite adopt SSM but a form of ‘registered partnerships’…it’s not quit clear to me to what extent this is just marriage by another name, an alternative to marriage or what. They did this, though, in the mid-90′s giving us nearly 25 yrs of data to go on.
2. The predictions of ‘dissatisfication’ with SSM coupled with more drastic demands doesn’t seem to have happened there. I will grant you Norway and Sweden do appear to have a divorce rate for SSM couples that’s higher than average non-SSM couples. The difference though is not that dramatic. Variation in the US divorce rate is probably as comparable or even more extreme if you start slicing into the average and comparing different demographic groups. More interesting is that the increase in rate disappears when you compare SSM couples to childless heterosexual couples, which makes sense if you think that having a baby has probably put many divorce plans on hold.
I’m not going to venture to predict that after a few decades, SSM will look exactly like heterosexual marriage in all demographics. In fact, it would be pretty shocking if it did end up having things like an average divorce rate equal to the overall average divorce rate of the population. The thing to remember is that while the average is real, there’s no such thing as a real average person.
Blake
If the “baby subsidy” goes to those who make a baby rather than those who are married, then – as I asked in the earlier thread – explain the case Miller vs. Jenkins.
Only problem, that case has nothing to do with SSM. While Vermont has SSM today, it didn’t at the time that Miller and Jenkins were together. The fact that Jenkins was able to get visitation rights disproves your assertion that gays need SSM to be able to have custody of children….if they did Jenkins would have been denied.
The ‘baby subsidy’ goes to those who *raise* the baby, not those who are married or who made the baby. When guardianship is contested, it goes not by marriage or biology but by the test of the child’s best interest.
If you want to imagine a somewhat different hypothetical that may illustrate this, imagine if Arnold’s maid decided to leave her husband and run off with Arnold taking her son with her (who everyone now knows is Arnold’s). Her husband would be able to demand a custody hearing not on the grounds that he is married to her but on the grounds that removing him from the life of the child he spent the last ten years raising would be harmful. And he would probably get win! Likewise reality would usually trump biology in a ‘switched at birth’ type case where a couple raises someone else’s kid for a long period of time by accident.
I simply say that, whether gays are eligible for those non-procreative benefits or not, they are not eligible for the procreative benefits, and granting those benefits would cause harm.
You can’t really break these apart. When a woman gets health benefits from her husband’s job how do you divide that between a ‘procreative benefit’ only to help her have a baby versus a ‘spousal’ benefit? And since the health benefit is for a ‘spouse’ then what makes your benefit from being married to Oprah (supposedly) non-procreative? I suppose you could list all aspects of marriage and divide them into different boxes if you really wanted too….what I’m not seeing is the value of doing that.
I think my arguments already make sense, for those capable of understanding what I’m saying.
Well I would hope so. We’d have to worry about you if you couldn’t even understand yourself. At least you think you do.
June 27th, 2011 | 2:46 pm
Blake
But gay marriage relies on the belief that fathers and mothers are interchangeable, that gender is irrelevant.
Hate to break it to you, but in terms of child care gender is irrelevant. Women can end up having to pay child support just as much as men do (and no they don’t get a special break for having birthed the child).
And the way responsibility for children is handled is that it falls to the biological parents (married or not) and is relieved only if others are willing to take custody of the child….which is why you’re arguments seem almost impossible to follow.
Barring the invention of cloning or some type of genetic engineering, it is impossible for any gay couple to deny a child their mother and father. The only time such a thing can happen is if the mother or father themselves have failed in their obligations to the child. To the degree that heterosexuals fail their children, SSM doesn’t alter much of anything. Any woman who wants to give her child to a SSM couple can just as easily give it to an unmarried same sex couple. You demonstrated this yourself with the Jenkins case you’ve cited twice now.
Douglas Johnson
They did not conclude that a father’s money was of no value. They concluded that the father per se is of no real value.
Reading it out of context. Unless you feel the case set a precedent that biological fathers have no right to assert their parental status!
June 27th, 2011 | 2:55 pm
Ken Z
This is why I prefer to speak of an intrinsic capacity to procreate. It does not suffer from ambiguity or vagueness, as the new natural law argument does on this key point. It clearly shows why the two kinds of couples are not similarly situated.
Why should your preferences matter? Why not bite the bullet and assert clearly infertile, the very old, or those who are clearly unfit to be parents themselves simply should not be allowed to marry?
I think you give the game away when you write “It does not make similar sense if the point is to show why sterile and aged couples can marry but homosexual couples cannot.”
Is that the point? I thought you were working on philosophically pure ways to define marriage that might offer guidence….or are you acting like a lawyer whose job is to find an argument, any argument, that will benefit his client? If its the former then why imply your point is to arrive at a particular conclusion rather than come to the right conclusion whether or not that conforms with the status quo?
June 27th, 2011 | 3:13 pm
“Out of the adoption business? Are you kidding me? Seriously?”
Yes. Seriously. Is Catholic Charities handling adoptions in Massachusetts? What about in D.C.? I suppose you are unaware of the lawsuit that just got filed in Illinois on this issue?
“What if they didn’t want to adopt to Jewish couples or couples with previous marriages?”
That’s not what happened, so please try to stick to the facts.
“Again you haven’t addressed the issue of why you think its correct to take tax dollars from *all* the taxpayers when you’re only willing to service some of them?”
Because there are many other adoption agencies that will provide adoption services to gay couples. Is every use of every tax dollar approved of by all of the taxpayers?
“Both cases where you have a business that holds itself out to be one of public accomodation which thereby triggers antidiscrimination laws.”
The Ocean Grove Pavillion is owned by the Methodist Church. E-Harmony is owned by an Evangelical Christian. The Ocean Grove Pavillion is no longer used for marriage ceremonies. E-Harmony caved and started a service for homosexuals. Do those results strike you as examples of justice?
What about the Christian wedding photographer who refuses to take wedding pictures for a gay couple. Should he be subject to anti-discrimination laws? Should he have to give up his livelihood to follow his beliefs?
June 27th, 2011 | 3:42 pm
What about the Christian wedding photographer who refuses to take wedding pictures for a gay couple. Should he be subject to anti-discrimination laws?
Notice what has been done here.
Discrimination against blacks was against a passive state: being black is something you cannot control
Arguably, being gay might be something you cannot control, either. So the situation would be the same if the photographer refused to work for a man because that man had the gay gene.
But the point of this civil rights conflation is to confuse passive with active. If you don’t have the right to discriminate against something that they are born with and cannot help, then you don’t have the right to discriminate against people for being gay, because they’re born with it.
So, therefore, you don’t have the right to discriminate against gays – no matter what they do. They now have a blank check to engage in any behavior that they want, and as long as a majority of them agree that it is “gay behavior”, then you are required to obey, and bigoted if you even challenge the idea of it.
The difference is that between the passive state of being, with the active state of doing (or choosing).
June 27th, 2011 | 3:45 pm
Boonton,
Are you serious? Do you really not see my point? And what makes you think the phrase “I prefer to think” has anything whatever to do with “preferences”? It’s a manner of speaking, for heaven’s sake.
I have made clear many times–as you know perfectly well–that I believe the sterile and aged can properly get married because they have something that no same-sex couple has–an intrinsic capacity to procreate. So why are you claiming otherwise?
Your contempt for philosophy and philosophical reasons shows in your sarcastic reference to “philosophically pure ways” of arguing, and your ad hominen tendencies are in full display in suggesting that I’m arguing like a lawyer who will advance any idea to defend his side. May I suggest that this hurts your credibility?
June 27th, 2011 | 3:46 pm
“What if they didn’t want to adopt to Jewish couples or couples with previous marriages?”
But did the Jewish couple agree to meet their standard of what constituted a proper family, or did the Jewish couple argue that such standards do not apply, because their rights as Jewish people are more important than the child’s rights?
(Funny, given how people were arguing against Jews having rights in the circumcision debate awhile back. Apparently children have the right to a foreskin but not to a mother, because we foreskins are important but mother-relationships are not. What do you think, do you or the man you know best value your or his foreskin more than you or he value having had a mother?)
June 27th, 2011 | 4:26 pm
Boonton,
In “it does so because it assumes the capacity to procreate” (just before the passage you cited) there is some possibility of confusion. Just to be clear, I meant the actual ability to procreate, as the context contraception suggests–and not the intrinsic capacity to procreate (i.e., the actual or ideal capacity).
June 27th, 2011 | 4:26 pm
Brian English
Yes. Seriously. Is Catholic Charities handling adoptions in Massachusetts? What about in D.C.? I suppose you are unaware of the lawsuit that just got filed in Illinois on this issue?
You seem to be unaware that adoption is actually a large market with numerous players of all sizes in it. Catholic Charities declined to handle adoptions *for the gov’t* in Mass. There’s nothing preventing women from giving up their kids directly to Catholic Charities just as many women use private lawyers to handle adoptions.
The Ocean Grove Pavillion is owned by the Methodist Church. E-Harmony is owned by an Evangelical Christian. The Ocean Grove Pavillion is no longer used for marriage ceremonies. E-Harmony caved and started a service for homosexuals. Do those results strike you as examples of justice?
See my Dunkin Donuts hypothetical earlier. To the degree that you’re a private entity and remain as such you’re more or less free to operate as you please. When you start moving towards being a ‘public accomodation’ you’re in a different playing field and have to abide by different rules. Facing a tradeoff between chasing greater profits and staying true to your convictions is not the same thing as being persecuted.
Blake
But did the Jewish couple agree to meet their standard of what constituted a proper family, or did the Jewish couple argue that such standards do not apply, because their rights as Jewish people are more important than the child’s rights?
From the point of view of someone who strictly believes Christ is the Son of God the most proper thing a family can do is educate their children to be Christians as best they can. By definition a Jewish family could not meet this definition. In fact nearly a century ago I believe there was a pretty famous case where Catholics secretly baptized the Jewish infant of a family they were serving and after a long period of time the infant ended up kidnapped and in Vatican custody. At the time the principle of preserving his Christian faith was deemed more important than the parents right to their own child! He was never returned to his Jewish parents.
Do people have a right to believe that? Yes. Do they have a right to found a private adoption agency to help place orphaned and given up children with strong Christian families? Yes. Are taxpayers discriminating against this agency if they opt not to give them a grant of public funds? No.
What about the Christian wedding photographer who refuses to take wedding pictures for a gay couple. Should he be subject to anti-discrimination laws? Should he have to give up his livelihood to follow his beliefs?
I would say the law here should be the same for a Catholic photographer who refuses to take wedding pictures for people who have been divorced.
I’m not expert on discrimination law but I believe most wedding photographers are independent contractors and would be free to refuse any wedding for any reason….they could even say “I don’t do any weddings with a black couple!”. Starting a company of wedding photographers, though, would probably be different and you’d start to run afoul then of antidiscrimination laws at some point.
Apparently children have the right to a foreskin but not to a mother, because we foreskins are important but mother-relationships are not.
Once again it is literally impossible for a SSM couple to deny a child a relationship with their mother. You have demonstrated that much by the very cases you have cited.
Ken Z
And what makes you think the phrase “I prefer to think” has anything whatever to do with “preferences”? It’s a manner of speaking, for heaven’s sake.
Not quite. Why not adopt the alternative? Because you say the ‘point’ is to come up with an argument that puts out SSM without disrupting anyone else’s marriage. Hence you reject a reading that would arrive at rejecting SSM & rejecting marriage for the very old not because its wrong but becaue it leads to a conclusion you’d prefer not to have.
For all your talk of analytic philosophic and intrinsic natures, at the end of the day you’re cherry picking the rules of your game to get the conclusion you want.
and your ad hominen tendencies are in full display in suggesting that I’m arguing like a lawyer who will advance any idea to defend his side
Get your terms right Mr. Philsopher. “Ad hominen” does not mean a critical comparision…even to a unsavory character like the so-called ambulance chasing lawyer. For someone whose entire case is built on such fine distinctions of definitions…it really doesn’t benefit you to be flubbing some very basic definitions like you do above. Kinda like a person who wants to be elected president of a local MADD chapter holding her first campaign meeting at a pub.
June 27th, 2011 | 5:04 pm
Boonton,
I quoted the Iowa Supreme Court decision as follows:
You responded with:
I have no additional point to make. I just wanted to put on display, one more time, how you reason.
June 27th, 2011 | 5:27 pm
A question that Carbonnier was fond of putting was “Why does the law facilitate marriage in extremis?” What legal purpose is served by a death-bed marriage, or even a posthumous one? Yes, the latter are very rare, but the fact that there is provision for them needs addressing.
Answer that question and I think you will see why the elderly are allowed to marry.
June 27th, 2011 | 5:33 pm
Boonton: Human males are quite capable of producing sperm into their eighth or ninth decade. Human females exhibit menopausal symptoms between their fourth and sixth decade. Ovulation usually suspends within a year after the female’s last menstrual cycle. However, as ovulation is concealed, conception may occur sometime after the apparent end of menopause. Note “conception” rather than the full implantation and gestation – the latter two will probably not occur unaided.
In other words I think you are straining by comparing SSM to a golden-years-marriage: the former will never be fruitful while it is unlikely the latter will be fruitful.
Please note the above details are submitted, not to attempt to dissuade you from your position, but that you may accurately describe what you pontificate.
June 27th, 2011 | 7:01 pm
Boonton,
You have never offered one reason for rejecting my central assertion that marriage presupposes procreation. Let’s hear you, at long last, on that subject.
June 27th, 2011 | 8:13 pm
The Iowa Supreme Court statement in context:
Whether or not you find footnote 26 credible depends on whether or not you think psychological and sociological studies of same-sex childrearing show what the court says they show. I think if you just say, “Everybody knows it’s best for children to be raised by a mother and a father,” you are not dealing with the court’s assertion that research shows same-sex parenting is comparable to opposite-sex parenting.
June 27th, 2011 | 8:31 pm
In other words I think you are straining by comparing SSM to a golden-years-marriage: the former will never be fruitful while it is unlikely the latter will be fruitful.
Personally I have no doubt that, now that elderly women are having babies using technology, restrictions will be imposed – it is simply too harmful to allow people to become parents at advanced ages. It’s not fair to the other family members.
Once again it is literally impossible for a SSM couple to deny a child a relationship with their mother. You have demonstrated that much by the very cases you have cited.
I would be a lot more impressed if you didn’t try to duck the issues, but addressed them head-on.
Obviously it is very tedious and burdensome to spell out his/her, mother/father, etc. every time the issue comes up.
Lesbians deny their children a father-relationship. This is not good for kids. The available information from IVF kids is that, first, they are more likely to be troubled, and, second, they DO recognize their absent father as an absent father, as part of who they are. It is extraordinarily selfish to do this to a child. Anyone who does this cannot be thinking of the child. The evidence is clear enough that it is simply ridiculous that people refuse to acknowledge and discuss it.
Gay fathers deprive their children of mother-relationships. Some of them do things like “make” babies out of body parts bought from anonymous donor, using “gestational carriers” (often from third world nations). This, too, is a selfish behavior that is simply not compatible with the claim that these men “love” their children.
Currently, this behavior is legal only in that everything is legal until it is outlawed. It is a perversion of adoption law, which has as its explicit function the task of finding homes for children in need. What gay men are doing is creating crisis, then using the crisis they themselves have created as a justification for an adoption. Rightfully, this behavior should be criminal – it is trafficking in human flesh, and nobody who does it is fit to be judged suitable to be anyone’s adoptive parent.
I wouldn’t want to be the child of a prostitute, nor the child of an exploited woman. Nor would I like the thought that my mother did not give me up out of love, but because she was getting paid to do a job. That is not a healthy identity to give a child.
I keep hearing about how gays love their children so much. How is it possible to reconcile such a claim with proof of such monstrous behavior? How can you do this to a child, if you are “loving”?
And why should we as a society view such treatment of children as anyone’s “right”?
June 27th, 2011 | 10:39 pm
SteveP
In other words I think you are straining by comparing SSM to a golden-years-marriage: the former will never be fruitful while it is unlikely the latter will be fruitful.
Tony Randall demonstrated what you asserted. When he was 75 he married a 25 yr old woman. Before anyone wants to trash him for just lusting after young women, he was married to his first wife from 1942 until her death in 1992. Anyway, he had a child with his new wife two years later when he was 77.
At the time the story raised some serious questions about whether it was really proper to be a father to a child at such an age. He died in 2004 when his daughter was only 7 years old. The point remains. Women this age can’t procreate and while men can procreate it’s highly doubtful whether its a wise idea. So then we circle back, why have it?
Ken Z
You have never offered one reason for rejecting my central assertion that marriage presupposes procreation. Let’s hear you, at long last, on that subject.
Have you offered a reason for accepting your central assertion? As we said on the previous thread, I think my definition works better to describe marriage as it seems to exist in reality. Your definition seems to work to achieve your goal of finding a way to reject SSM while at the same time not disrupting anyone else’s marriage.
Blake
Lesbians deny their children a father-relationship
Lesbians can’t do so. You cite the case of Miller.v.Jenkins but in that case who denied the daughter a father? There’s only one answer, the father. In that case a man who probably sold his sperm to an IVF clinic for pocket money. Miller choose to deny her daughter a father as did the father. After allowing her lover to bond with her daughter for a year and a half she then sought to deny her daughter the only other guardian figure she knew since birth. Jenkins did nothing to deny the infant a father, in fact she could not have done anything. If Miller had an affair with a man in order to get pregnant and that man asserted that he was the father and wanted a role as such in the child’s life neither Millor nor Jenkins could have denied him in court even if they were SSM.
Again like the case of supposedly over the top anti-discrimination law, this ‘objection’ to SSM really has nothing to do with SSM. If you are worried about children being denied fathers then there’s a very simple answer to that. Outlaw IVF except and unless the male sperm donar is listed on the birth certificate as the father and has parental responsibilities. Rejecting SSM does nothing in regards to “fatherless’ IVF children.
I wouldn’t want to be the child of a prostitute, nor the child of an exploited woman. Nor would I like the thought that my mother did not give me up out of love, but because she was getting paid to do a job. That is not a healthy identity to give a child.
Indeed, but if you were the child of any one of these things would you rather not exist? I think you’re raise a very valid point. The 19 yr old man who ‘donates’ some sperm to a clinic in exchange for some college beer money neglects to contemplate that 20 years from now his daughter may be wondering where her father is and if he realizes that she exists. At the same time, though, I wouldn’t have a lot of patience with the 20 yr old girl bemoaning the people who raised her for ‘denying’ her a biological father. Her biological father did that and while it would be nice if she found her biological father at the end of the day life is a very worthwhile gift to get and carping too much that your bioparents are jerkoffs is….well…ungrateful.
That being said, I would have no objection to reasonable limits and protections placed on poor women being exploited as ‘gestational carriers’ whether or not there’s SSM.
June 27th, 2011 | 11:17 pm
Michael PS
A question that Carbonnier was fond of putting was “Why does the law facilitate marriage in extremis?” What legal purpose is served by a death-bed marriage, or even a posthumous one? Yes, the latter are very rare, but the fact that there is provision for them needs addressing.
I’ll take a stab at it, with thanks to Ken Z who even though we spar my back and forth with him helped me to think this through in more detail…..
Start with the first things… Why have law? I’ll venture that we have law because its a consquence of our human nature. We are a social animal given to highly complex interactions combined with the fact that we can communicate in symbolic form. Law is a consquence of that. Other animals like, say, dogs may have social relations but cannot communicate in symbolic form. They may have leaders and judges (i.e. an alpha-male) but they cannot lay down and communicate their relations in symbolic form that we do with language.
Law then is not just an exercise in free form philosophy but pragmatic. We have laws that reflect the complex social interactions we have. For example, we are all mortal and we accumulate property that we can’t take with us when we die. Hence we have developed extensive laws dealing with wills and estates. But we don’t live in insect like communities with a ‘hive mind’ like the Star Trek Borg. While discussing what ethics and such should be in such a society may make for fruitful philosophy, its not pragmatic laws because we don’t inhabit a ‘hive mind’ society. But law is pragmatic, if we discovered alien life and started extensive intersteller trade and interaction with them, law very well may develop ways to address the interests of ‘hive minds’.
As a matter of nature, humans are inclined to make weak bonds with many people and strong bonds with fewer people. Therein I suspect is the key to a natural understanding of marriage. What is the weakest possible bond with the most people a human can have? That of a misantrhope, a person who hates or is indifferent to all of humanity. What then would be the opposite? Marriage. The most intense bond a human may make with the least number of people? Well the least number of people you may interact with is one. The most intense you can get then would be sharing your whole life with them and they to you.
On both ends of this spectrum the definition is both real and also really Platonic. Show me the world’s biggest misanthrope and he almost certainly has some positive interaction with at least a few other people. Show me the world’s closest couple and even they can probably be slightly closer without ceasing to be human.
Since the law is pragmatic, what special needs are there for those at the misanthropic extreme? Well not much aside, maybe, for general laws protecting haters of humanity from abusing or harming other people. Pragmatically what do people *attempting* marriage need in way of consideration? Well people seeking to bond as one need some faciliation in material matters in life….(i.e. hospital visitation, community property, the ability to have ‘leverage’ to take action against breeches of the marital endeavor etc.). Hence the state and the law facilitates this in pragmatic ways…handling property distribution, contracts, debts, keeping records of whom has married whom etc.
This explains very well, IMO, many aspects of marriage that require lots of awkward stretches if you’re going to center the emphasis on procreation:
1. We question marriages of the very old to very young….esp. when wealth is large and the woman is very young. Procreatively this is a jackpot. But we question whether the parties are really sincere.
2. Marriages of the very old, the infertile, and even those unsuitable for procreating are not only tolerable but good things in themselves. Grandma finding a partner late in her life is a good thing not because it sets some type of convoluted ‘example’ for young men and women to hook up (as if young men and women aren’t naturally inclined to hook up to begin with!). Grandma is not a means to an end but an end as a human in her own right. Her late marriage is a good thing because its a human inclination to share one’s life with another and its good that grandma’s humanity finds fulfillment.
3. When we speak of a ‘successful marriage’ or a ‘failed marriage’, few of us use children as the true metric. When we hear of a couple that was married for 60 years and died quietly in bed together almost all of us instinctively acknowledge that was almost certianly a successful marriage….even before we ask if they had any children!
4. This is consistent with almost all traditional assertions about marriage. its consistent with both traditional and modern wedding vows. Vows from multiple faiths spanning all the monotheisms. Most or all of these sources neglect to even mention procreation in their vows!
5. This is not inconsistent with procreation. In fact, since most people will gravitate towards the opposite sex, procreation is all but guranteed. Not the other view often seems quite logical but strangely detached from the real world….its as if it was written in a strange alternate universe where humans hate sex and need some type of positive legal institution that induces them to have it in order to generate procreation!
6. There is still plenty of room for a religious argument against SSM but it should be understood that marriage defined is a type of Platonic ideal. No living person has a marriage today because its impossible. It’s a fulfilled contract and one cannot fulfill a contract to give a life if they still have their life! All living people who are ‘married’ are more properly terms as people ‘attempting marriage’. Even at 90 after 70 years of marriage you can still screw it up!
As such, IMO religion may set a higher bar for ‘attempting marriage’. The state’s bar must be very low. The state has no business, for example, telling people they may not marry because some clerk feels their love isn’t ‘true’. Yet no one objects to the idea of a priest who may tell a couple he will not marry them as he feels their relationship is not sincere enough to survive the attempt! If you want to argue that marriage cannot really be fulfilled unless you have the power of complements (male to female), I think you might have a very good point. But arguing that as state policy is a cateogry error. The state has no business in that game. Most of you on the anti-SSM side, though, are statists. Like it or not your inclination is to think that to say something is outside the state’s domain is to think its of no importance. I think often times its the exact opposite. Many things within the state’s domain are of trivial importance and many outside it are of the utmost importance.
ahh well, I’m sure there’s more but thats more than enough to chew on for a night
June 28th, 2011 | 3:14 am
Booton
Carbonnier’s argument about marriage in extremis was that the marriage as a legal institution (“republican marriage” is his term) is not concerned with promoting procreation (nature can take care of that) but with filiation: establishing the juridical bond between fathers and their children. Such marriages can well be a means of regularising the civil status of children, with these children being formally recorded in the acte de mariage, something that is increasingly common with marriages, even amongst the young.
June 28th, 2011 | 7:34 am
Michael PS
with filiation: establishing the juridical bond between fathers and their children
Except that marriage is not necessary for such a juridical bond between father and child. At least in the US a man’s legal obligations to his children do not vary based on whether or not he married their mother. As a pragmatic matter if you’re going to experience difficulities in knowing whose someone parents are, its usually the father. It’s usually a pretty reasonable assumption that if a woman is married the father is the husband. But as I demonstrated on the previous thread, in the US at least a husband could challenge that assumption even in the pre-DNA testing era.
In the US at least, the assumption of a juridical bond rests upon the biological father. Even if the woman is married to another person, if another man is determined to be the biological a juridical bond is created between him and the child. As far as I can tell, the US is mostly concerned with these bonds for purposes of getting the child raised to adulthood. Into adulthood, the law has few obligations on parents. In a handful of states you aren’t allowed to write your kids out of the will but they allow one to get around this by putting a trivial amount to each child (i.e. $1) in your will.
Back to the original post
Just to bring this back to the beginning, the piece Kevin criticizies by Katherine Franke is another example of an issue that is not really a SSM issue. Franke is correct in pointing out that many people have used civil unions or domestic partnerships as a type of ‘marriage-lite’ to obtain things like health care while avoiding some of the long term complications of actual marriage (say having to share your Social Security check if you’re married for ten years or more).
Franke’s point is that some who opted for domestic partners may feel ‘forced to marry’ should states and employers take the view that with SSM, there’s no longer any need to have domestic partners as an option.
But what does this have to do with SSM? Like France’s PACs, the bulk of people using ‘domestic partnerships’ are not even same sex couples. The question then is there a good reason to ditch domestic partners/civil unions etc. as a type of ‘marriage-lite’? Before SSM you could justify them on grounds that they provided options for same-sex partners but if you have SSM that argument disappears. Other than that, though, its a totally different topic than SSM. Except for one telling observation, its ironic that ‘marriage-lite’ was created not by liberals but by conservatives seeking to ‘save marriage’ by preventing SSM at all costs. By Michael PS’s comments about France, it seems the French answer is to basically make PACS the norm and turning marriage into, I don’t know an institution for the old fashioned minded only? At the end of the day it probably would have been a lot more conservative to have simply had SSM letting individual Churches apply their doctrines about marriage as they always have rather than creating an entire zoo of non-marriage marriages. It’s ironic that the biggest threat to marriage these days is probably coming from those who call themselves defenders of traditional marriage.
June 28th, 2011 | 7:49 am
“Catholic Charities declined to handle adoptions *for the gov’t* in Mass. There’s nothing preventing women from giving up their kids directly to Catholic Charities just as many women use private lawyers to handle adoptions.”
Wrong. In Massachusetts entities have to be licensed to handle adoptions. As long as Catholic Charities refused to allow adoptions by gay couples, it could not get a license. Because of gay marriage being recognized in Massachusetts, Catholic Charities cannot legally handle adoptions anymore.
“You seem to be unaware that adoption is actually a large market with numerous players of all sizes in it.”
I certainly am aware of it. For instance, in Illinois there are 45 entities that handle adoptions, which means that gay couples have many choices for adoption services. So why is it so important to deny public funds to Catholic Charities for its adoption work? It has nothing to do with insuring access for gay couples; it is all about driving a certain viewpoint out of the public square.
“See my Dunkin Donuts hypothetical earlier.”
A pavillion owned by the Methodist Church and used for marriage ceremonies, and a dating service started by an Evangelical Christian to foster marriage, are not Dunkin Donut franchises. Your Orthodox Jewish Dunkin Donut owners may be very proud of their donuts, but there is not the same connection to their faith.
June 28th, 2011 | 8:59 am
Boonton: you have forgotten your point; you have been asserting that the marriage of a 79 year-old male and an 82 year-old female is the same as the marriage of a 19 year-old female and a 22 year-old female.
Your point was there is no difference: the two couples are the same; a 19 year-old female is the same as a 79 year-old male and a 22 year-old female is the same as an 82 year-old female.
June 28th, 2011 | 10:41 am
“I’m not expert on discrimination law but I believe most wedding photographers are independent contractors and would be free to refuse any wedding for any reason….they could even say “I don’t do any weddings with a black couple!”.”
Wrong again. A Christian couple that operated a photography studio in New Mexico was fined over $6,000 for refusing to take “commitment ceremony” pictures of a lesbian couple.
http://www.onenewsnow.com/Legal/Default.aspx?id=75547
June 28th, 2011 | 12:30 pm
Boonton,
“Have you offered a reason for accepting your central assertion?”
Yes, many times. It is that the existence of the institution of marriage can’t be explained on the basis of commitment, but only on the basis of procreation. I’ve explained why I think so, and will not waste my time by repeating it. (To be fair, most of my argument was laid out in lengthy back-and-forths with Michael before you apparently came along.)
Your reasons for thinking that SSM is a legitimate form of marriage apparently boil down to believing that commitment, in the absence of procreation, can explain the existence of marriage. I have shown why this is implausible. You can figure out my reasons by asking yourself why commitment would lead to such a *rigorous* institution as marriage. Commitment can take many forms, and the question is why it should take such a rigorous form as it does in marriage (and the existence of divorce proves that marriage is a very rigorous form of commitment).
Also bear in mind what I’ve said about the genetic fallacy–in case you think that marriage today need not be the same as marriage yesterday.
As for ad hominen, any distraction from the substance of an argument that points to the opponent’s character or personality (such as saying the opponent argues like a lawyer, where this is understood to be a bad thing), is ad hominem. But that is not really important. . . .
June 28th, 2011 | 12:56 pm
Brian,
I’m going to stand by what I said. The rules should be in sync. If a Methodist Church has a wedding hall used for Methodist weddings, I have no problem with them denying non-Methodist couples. If, though, the hall is being operated as a genderal business it has to comply with genderal discrimination laws.
Every day I’m seeing a Christian based dating site advertising on TV in the NY-NJ-PA area so clearly they are able to operate a business that isn’t targetting Jews, Atheists and other non-Christians. Likewise there are multiple Gay centered dating sites which, I would imagine, would likewise be required to be open to straights. But I’m no expert on discrimination law or the specific cases you want to talk about.
But it is pretty clear this is a red herring in regards to SSM. For example, the suit against e-Harmony came even though SSM wasn’t legal! So if the problem is that anti-discrimination laws do not have enough room for reasonable religious exemptions then that’s a different topic which merits a discussion but if that is really the problem then the solution is to address the law, not ban SSM.
Steve P
Your point was there is no difference: the two couples are the same; a 19 year-old female is the same as a 79 year-old male and a 22 year-old female is the same as an 82 year-old female.
Not sure I’m following you. By my way of thinking, you could in theory have a marriage between any range of ages. As a rule of thumb, though, marriages of extreme age differences are more likely to be problematic but I’m willing to acknowledge exceptions always exist.
From the perspective that marriage is about procreation, marriages where either partner is old are problematic. Older women can’t easily procreate. Older men can procreate but its problematic producing children who whose father will either be a very old man or passed on. Even if you want to say the state can tolerate infertile marriages that are ‘intrinsically procreative’ (i.e. 79 yr old male to 82 yr old female), why should the state tolerate marriages that are procreatively destructive such as Tony Randall’s 2nd marriage?
June 28th, 2011 | 1:13 pm
Boonton: you have answer the question albeit indirectly. Thank you.
June 28th, 2011 | 2:03 pm
“But it is pretty clear this is a red herring in regards to SSM. For example, the suit against e-Harmony came even though SSM wasn’t legal! So if the problem is that anti-discrimination laws do not have enough room for reasonable religious exemptions then that’s a different topic which merits a discussion but if that is really the problem then the solution is to address the law, not ban SSM.”
NJ has a domestic partnership law.
And who is it that is opposing reasonable religious exemptions? And why do you think they are opposing them?
Have you ever given me an answer as to why you think it was justice that, after 103 years, Catholic Charities was forced out of adoption services in Massachusetts?
June 28th, 2011 | 4:23 pm
Ken Z
As for ad hominen, any distraction from the substance of an argument that points to the opponent’s character or personality (such as saying the opponent argues like a lawyer, where this is understood to be a bad thing), is ad hominem. But that is not really important. . . .
Ad hominen means ‘to the man’. Arguing that a position should be rejected because of some irrelevant character trait of the person making the argument….as in “Ken Z is a liar so we should reject his assertion that marriage is about procreation”.
Look I tutor Calculus and math and you often get problems that require a lot of tiny steps. People often make no mistakes in the actual ‘hard stuff’ but trip up on the numerous steps to simplify some horrific expression. So textbooks often give answers to odd number homework problems in the back…..
So you’re churning thru two pages of work and you arrive at the answer “2/3″ and you look in the back of the book and it says the right answer is “2/3″. You can feel pretty confident that you did things correctly. But what if you looked the answer up first? Did you do things correctly or did you ‘shape’ your steps to get to where you knew you had to end up?
When you say you’re rejecting a possible approach because your point is to reject SSM but accept non-procreative straight marriages, you are assuming your own conclusion and potentially biasing your work. That’s not to say you’re wrong automatically. You may know the right answer is “2/3″ first, work the problem correctly and get “2/3″. But you should see the reason why the pro-SSM side here objects. You should at least acknowledge the fact that your reasoning may not be as untainted and pure as you would like to believe, that you have in fact shaped the reasoning to get to where you wanted to go rather than seeing where it would take you.
Brian
Have you ever given me an answer as to why you think it was justice that, after 103 years, Catholic Charities was forced out of adoption services in Massachusetts?
http://www.catholicculture.org/news/features/index.cfm?recnum=42906
Something doesn’t quite sit right with this story IMO. It seems Catholic Charities had adopted several kids out to same sex couples. Then the Vatican told them they can never do that no matter what the circumstances. They asked the state for an exampetion and then Gov. Mitt Romney stated that he didn’t have the authority to issue an exemption but would support a law providing one. But a week after requesting an exemption they changed course and announced they were pulling out of adoption. No request for the law to be changed nor any attempt to challenge the law on religious freedom grounds.
‘Forced’ doesn’t seem quite the right word here to me. You don’t even take a shot at getting a law granting an exemption passed? Instead you just close shop only a week after asking for to be exempt from a law you were already following? I hate to say it but it smells to me like rather than work with the system to make reasonable accomodations with the civil law the ‘pull out’ was less about the gov’t forcing anything on them and more about the PR value of supposedly being a martyr to SSM.
I don’t even think you’re right about the license. http://adoptioncommunityofne.org/pages/other-adoption-resources/agency-information/licensed–private.php has Catholic Charities of Worcester listed as a license private adoption agency. When I called they said they provide adoption services to parents looking to adopt a child. I suspect the only thing Catholic Charities is out of is adopting kids who come under the care of the state. If you are a pregnant woman, you can still give your child to Catholic Charities for adoption. Their 2010 annual report says 21 parents were assisted with adoption (http://www.ccworc.org/2010_annualreport.pdf). (Just to give some sense of scale here, before the same sex couple fiasco Catholic Charities did about 40 adoptions per year and the state had several hundred children seeking placement….to do 21 adoptions per year then is not a trivial amount).
Likewise http://www.childwelfare.com/Massachusetts%20Adoption%20Directory.htm also lists Catholic Charities as a licensed private adoption agencies. It’s starting to seem like there’s less to this story than originally meets the eye. In case your wondering how many kids in Mass. need to be adopted, http://www.acf.hhs.gov/programs/cb/stats_research/afcars/waiting2009.pdf says starting in 2007 it was 2,868 and in 2009 it was 2,837. I couldn’t find the number adoptions in MA in the 2000′s but http://www.childwelfare.gov/pubs/s_adopted/s_adoptedf.cfm shows in the 90′s adoptions per year ranged between 2200 and 3250 or so. Only about 1/3 of adoptions are by public adoption agencies….so it would seem that Catholic Charities has ample opportunity as a private adoption agency.
June 28th, 2011 | 6:25 pm
“But you should see the reason why the pro-SSM side objects.”
Well, what’s the reason? Since you haven’t given me any concrete clues, I’m inclined to think it’s nothing more than an assumption of the truth of nominalism or social constructionism. Do you want to wage a public debate about SSM that depends on the degree of public acceptance of nominalism and social constructionism? If so, you know you will lose. So that thing has to be hidden.
June 28th, 2011 | 7:10 pm
Boonton and Brian,
Here is the analysis of someone named Kurt who comments at the Catholic web site Vox Nova:
It seems to me that what the Catholic Church does in these situations is to declare that it is absolutely impossible that there will ever be a same-sex couple who will be the right match for a foster child or an adoptive child. Say two lesbians who happen to be pediatricians are the only people willing to adopt a child with such severe disabilities that he or she will never be able to speak, let alone know what a lesbian is. Because they are a lesbian couple, they are disqualified by a Catholic adoption agency from adopting such a child. What could the reason possibly be but pure, unadulterated prejudice?
June 28th, 2011 | 9:49 pm
Boonton,
I’m reminded of the hilarious scene in “Liar, Liar,” when the son of Jim Carey’s character tells his teacher his dad is a “liar.” “Oh, you mean a *lawyer*” she replies, and the kid shrugs.
In a culture where “arguing like a lawyer” commonly means lying and distorting the facts, there is no difference between “Ken Z. is a liar” and “Ken Z. argues just like a lawyer” as far as ad hominem arguments are concerned. So, although nothing at all depends on it as far as our SSM debate is concerned, I still think you were making an ad hominem argument.
More generally, although I know this is the Internet, where standards of discourse are low, it’s not good that you keep saying I twist and turn to arrive at a foreordained conclusion–unless you can back it up with concrete and clear examples. And I don’t think you can, because your claim is totally baseless, and even laughable.
June 28th, 2011 | 11:25 pm
Ken and Boonton,
I’m confused and disappointed that you all are arguing about the definition of ad hominem and about whether it is or isn’t fair to accuse someone of assuming their conclusions. Both of you have been pretty good about avoiding such nonsense.
I thought you all had reached a really interesting moment on another thread when Boonton asked Ken (1) to explain exactly why it is so important to approach this issue analytically and (2) to explain why he believes that marriage presupposes procreation.
I’ve been surprised that Ken has refused to answer these questions, and and you all have chased instead less important questions about ad hominem and assuming conclusions.
Ken, you claim to have a more persuasive argument than that offered by natural law, but when pushed, you don’t seem to be able to explain why. A good philosopher needs to be able to bring it to the people.
June 29th, 2011 | 7:56 am
“But a week after requesting an exemption they changed course and announced they were pulling out of adoption. No request for the law to be changed nor any attempt to challenge the law on religious freedom grounds.”
The Catholic Culture article you link to expressly states that the Church was told that an attempt to get an exemption would fail. In addition, this is from an article in the Weekly Standard:
To date, not a single other Massachusetts political leader appears willing to consider even the narrowest religious exemption. Lieutenant Governor Kerry Healey, the Republican candidate for governor in this fall’s election, refused to budge: “I believe that any institution that wants to provide services that are regulated by the state has to abide by the laws of the state,” Healey told the Boston Globe on March 2, “and our antidiscrimination laws are some of our most important.”
From there, it was only a short step to the headline “State Putting Church Out of Adoption Business,” which ran over an opinion piece in the Boston Globe by John Garvey, dean of Boston College Law School. It’s worth underscoring that Catholic Charities’ problem with the state didn’t hinge on its receipt of public money. Ron Madnick, president of the Massachusetts chapter of Americans United for Separation of Church and State, agreed with Garvey’s assessment: “Even if Catholic Charities ceased receiving tax support and gave up its role as a state contractor, it still could not refuse to place children with same-sex couples.”
http://www.weeklystandard.com/Content/Public/Articles/000/000/012/191kgwgh.asp
Accepting reality is not staged martyrdom.
“I don’t even think you’re right about the license.”
I most certainly am right about the license. Do you see Boston Catholic Charities on the list of adoption agencies? Worcester Catholic Charities has managed to continue handling adoptions by referring gay couples to other adoption agencies and no one has complained. Once one of those couples decides to make an issue of it, Worcester will be forced out as well.
Very few gay couples are going to actually get married. The value of SSM to the gay rights movement is the ability it gives them to drive religious voices out of the public square.
June 29th, 2011 | 10:10 am
“Here is the analysis of someone named Kurt who comments at the Catholic web site Vox Nova:”
The “Catholic web site” assertion is highly debatable. Beyond that, you really find compelling Kurt’s argument that Catholic Charities could not have a stated no gay couples policy without also having a stated no racist couples policy? Do you really believe that Catholic Charities was handing over kids to couples that walked into their office wearing Klan robes?
“Because they are a lesbian couple, they are disqualified by a Catholic adoption agency from adopting such a child. What could the reason possibly be but pure, unadulterated prejudice?”
Perhaps concern for the child’s emotional and spiritual development?
Now, I have a question for you — in light of the fact that the lesbian pediatrician couple has a host of adoption agencies to choose from, what reason could there be, beyond pure, unadulterated bigotry, for them going to a Catholic adoption agency, knowing full well that this would likely result in the Catholic adoption agency being forced out of handling adoptions?
June 29th, 2011 | 11:53 am
David
It seems to me that what the Catholic Church does in these situations is to declare that it is absolutely impossible that there will ever be a same-sex couple who will be the right match for a foster child or an adoptive child.
It does seem over the top. But consider that Catholic Charities was only placing 40 kids a year its not like the population as huge. Lots of unusual parents (racists, cultists, same sex couples etc.) might in theory be eligable to adopt but in practicality you’d never see them at the office….not with only 40 kids a year being adopted out and what I assume would be an oversupply of parents competiting with each other to adopt…at least infants. But in terms of public funds, we are veering away from a private meeting hall and getting closer to a Dunkin donuts that just happens to be owned by a church. A private adoption agency is free to be exclusive, such as handling just Catholic adoptions or whatnot.
IMO the problem here isn’t some grand conspiracy by SSM advocates. Its when you have an institution that wants to pretend to be secular 80% of the time but 20% of the time trying to ‘pull the religion card’ out. To use the Dunkin Donuts analogy, you can’t have a D&D on a street corner serving anyone who walks by and wants a coffee but then suddenly jump up and declare you’re a Christian D&D when the rabbi comes in. On the other hand if a large church happens to have a coffee shop inside its halls, it can reasonably say the shop is only for its worshippers and not the general public.
It’s perfectly reasonable to exempt religious institutions from anti-discrimination laws because there are many contexts where you want a religious institution to discriminate. I don’t expect the Catholic Church to consider a rabbi for the job of Bishop, for example. But when engaging with the larger society there is a line that you have to decide whether or not to cross. If a church buys a D&D to provide income, for example, they do so knowing they are running a secular institution that plays by secular rules. If that’s unacceptable for them (Mormons, for example, don’t believe in coffee), then they must choose according to what they value more.
Ken Z and Michael
The Liar, Liar argument barely merits a response. Your argument is that Jim Carey played a lawyer who was a liar, therefore to say someone is, like a lawyer, simply choosing arguments that work best for his client, is to say he is a liar. But let’s keep this in mind, you’ve been on a high hoarse for nearly a dozen posts here playing to role of the refined ‘analyitical philosopher’ while the rest of us rubes have been spinning our wheels with our uneducated assertions and arguments. Peeling back the curtain, though, seems to reveal that your philosophy is nowhere near as unbiased and objective and logical as you calim it to be.
For example, look more closely at some of your ’13 Theses”
Talk about assuming your own conclusions! So because ideals and conceptions of justice are diverse and conflicting a SSM argument based on justice should be dismissed. OK are all justice based concerns also to be dismissed? After all, it’s not like the diverse and conflicting conceptions of justice concern only SSM….there’s plenty of diverse and conflicting conceptions on the justice of a whole lot of things like crime and punishment, trade, economics, human rights etc.
And, of course, since when did all diverse and conflicting views on marriage’s intrinsic definition suddenly collapse into one single view?
Or look at your I and II
II. Marriage presupposes procreation—meaning the *institution* of marriage presupposes the *general fact* of procreation.
For those paying attention, how exactly do we go from I to II? We don’t. You simply say opposite sex couples have a capacity to reproduce….therefore marriage is about reproduction….
I can build the exact same argument to reach an absurd conclusion:
I. All business owners have an intrinsic capacity to join the Chamber of Commerce.
II. Therefore business ownership presupposes membership in the Chamber of Commerce. The town should not grant a business license to anyone unless they show they are members in good standing with the Chamber of Commerce.
If this is how one gets work as an analytic philosopher count me in! But then I’m sure there are diverse and conflicting views about what passes for a good philosopher these days!
Brian
The Catholic Culture article you link to expressly states that the Church was told that an attempt to get an exemption would fail.
Was told? Mitt Romney said he couldn’t unilaterally grant exemptions to existing laws but would be willing to sign a law giving them one. Likewise they also could have considered a lawsuit seeking a court order that they be exempt on 1st amendment grounds. Neither was even attempted.
It’s worth underscoring that Catholic Charities’ problem with the state didn’t hinge on its receipt of public money.
It would seem like its not. This brouhaha happened in 2006. It’s now 2011 and Catholic Charities is still providing adoption services, is still listed as a licensed adoption agency. They seem about as much out of business as Google.
The only thing that seems to have happened is Catholic Charities got out of the public money game but since about 2/3 of adoptions are private to begin with it’s still able to handle adoption.
Worcester Catholic Charities has managed to continue handling adoptions by referring gay couples to other adoption agencies and no one has complained. Once one of those couples decides to make an issue of it, Worcester will be forced out as well.
No gay couple ever complained about Boston. Boston simply ‘declared’ it was out and its not clear to me that they aren’t still doing private adoptions.
June 29th, 2011 | 1:38 pm
“Was told? Mitt Romney said he couldn’t unilaterally grant exemptions to existing laws but would be willing to sign a law giving them one. Likewise they also could have considered a lawsuit seeking a court order that they be exempt on 1st amendment grounds. Neither was even attempted.”
Now you are just ignoring reality in a desperate attempt to justify your preconceived notions. The article you link to (did you read it?) states the Church was told by legislative leaders that there was no chance an exemption would be passed. The article I linked to and quoted at length states that no political leaders were interested in passing an exemption. The Church does not file lawsuits on these issues, although that may be changing with the case filed in Illinois.
“It would seem like its not. This brouhaha happened in 2006. It’s now 2011 and Catholic Charities is still providing adoption services, is still listed as a licensed adoption agency. They seem about as much out of business as Google.”
Catholic Charities of Boston is not providing adoption services. It is not on the list you linked to. Perhaps you should call them.
“The only thing that seems to have happened is Catholic Charities got out of the public money game but since about 2/3 of adoptions are private to begin with it’s still able to handle adoption.”
You are wrong. Boston Catholic Charities cannot handle adoptions–what part of the statement by the lawyer for Americans United for the Separation of Church and State did you not understand?
“No gay couple ever complained about Boston. Boston simply ‘declared’ it was out and its not clear to me that they aren’t still doing private adoptions.”
Well, it appears you wouldn’t be clear on it if Cardinal O’Malley told you this face-to-face, so I don’t think there is much more I can do for you here.
June 29th, 2011 | 3:13 pm
1. Again ‘was told’ that a law couldn’t be passed? NY just passed a law with religious exemptions. Mass. is probably more Catholic than NY. Plus they had a governor stating he was supportive of such a law.
2. Around 2005-6 the legislature was dealing with a court decision that legalized SSM. Specifically it debated amending the state constitution to explicitly ban SSM. In Mass, an amendment must pass the House and Senate twice, in two successive sessions. An anti-SSM amendment passed once but failed in the 2nd session. It seems strange to assert that within a weeks time Catholic Charities suddenly ‘knew’ they could not get legislative support for an exemption law when there was enough legislative support to ban SSM in one session and almost enough in another. You’d expect anti-SSM politicians to support an exemption & some pro-SSM to support an exemption so if anything the chances of getting an exemption should be pretty good in such an environment….. It would be one thing if they tried and failed, but it wasn’t even tried.
3. “The Church does not file lawsuits on these issues…” Ohhh ok. Yea right.
Catholic Charities of Boston is not providing adoption services. It is not on the list you linked to. Perhaps you should call them.
So what? Catholic Charities is providing adoption services in Mass. and are listed as being licensed. The Boston chapter was not banned by the gov’t, it opted to delist itself in what is starting to look like a publicity stunt.
You are wrong. Boston Catholic Charities cannot handle adoptions–what part of the statement by the lawyer for Americans United for the Separation of Church and State did you not understand?
What is clearly happening is the distinction between private adoption agency and public adoption agency (which handles children who are in state custody) is being lost in comments people are making. The Boston Catholic Charities blow up appears to have been solely about being a public adoption agency. People involved on both sides of the case abbreviate their discussion, probably taking for granted that people who follow adoption policy are well aware of the distinction between public and private.
The alternative explanation is that non-Boston Catholic Charities have opted to defy the Vatican….and this fact has been oddly unnoticed by both the press, Orthodox Catholics, etc. Or the Weekly Standard and you are simply wrong in the facts about Catholic Charities being unable to continue doing adoptions privately while giving up their state contract.
Well, it appears you wouldn’t be clear on it if Cardinal O’Malley told you this face-to-face, so I don’t think there is much more I can do for you here.
Well I don’t think Cardinal O’Malley answers the phone for Catholic Charities….but maybe he should call them before we sit down for a chat about it.
June 29th, 2011 | 5:33 pm
Do you really believe that Catholic Charities was handing over kids to couples that walked into their office wearing Klan robes?
Brian,
No, and that is the whole point! Kurt is saying the adoption agency did not have to place children with anyone it did not consider suitable. Period. Just as they did not need a written policy “No racists need apply,” they did not need a written policy “No gays need apply.”
Perhaps concern for the child’s emotional and spiritual development?
The child in my hypothetical scenario was severely developmentally disabled. All he or she really needed was basic care. There is no question of “spiritual development.” Are you telling me that you would consider a lesbian couple incapable of relating emotionally to a severely developmentally disabled child? According to the rules set down by Catholic Charities, a lesbian couple would be unfit caregivers to a dying child who would never regain consciousness. Do you really have such a low opinion of every lesbian on earth that there is no child on earth a lesbian couple could take good care of? Remember, the choice is not always between a married couple and a same-sex couple. It is sometimes between adoption by a same-sex couple and no adoption at all.
Now, I have a question for you — in light of the fact that the lesbian pediatrician couple has a host of adoption agencies to choose from, what reason could there be, beyond pure, unadulterated bigotry, for them going to a Catholic adoption agency, knowing full well that this would likely result in the Catholic adoption agency being forced out of handling adoptions?
First, Catholic Charities in Boston had previously handled adoptions for a small number of same-sex couples. I can only assume this was because those who actually interviewed prospective adopters actually considered some same-sex couples to be good choices for parents, but apparently the Archdiocese found out and put its foot down. But according to Kurt, all Catholic Charities was required to do was give everyone who requested their services a fair hearing. It was not a case of discrimination that caused CCB to cease operating. It was their insistence on having an unnecessary written policy saying that they would discriminate against gays and lesbians no matter what.
It is difficult to imagine a couple who sincerely wants to adopt a child setting out to trap a Catholic adoption agency so as to sue them and put them out of business. People who want to adopt are going to go to places that are most likely to place a child with them. According to Kurt’s analysis, CCB did not cease operating because it wanted to place children in the best homes possible in their judgment as Catholics, which it was free to do without legal jeopardy. It wanted to make a statement, and in my mind, one that was more political than religious. I would not object to a philosophy of child placement that said, all other things being equal, a heterosexual married couple gets the child. What I object to is the notion that it is impossible to conceive of any same-sex couple that would be fit adoptive parents for any child.
June 29th, 2011 | 10:18 pm
More to the point, this has nothing to do with SSM. Unmarried couples and individuals can and do adopt kids. Even if a state rejects SSM, gay couples and individuals who adopt would present a potential discrimination issue when you have a public adoption agency that discriminates against them.
Exhibit A: On the other thread Brian raises the issue of a New Mexico photographer who was fined because she refused to photograph a lesbian committment ceremoney. But New Mexico doesn’t have SSM, nor does it have civil unions or domestic partnerships in law. Blake has continually been citing the Miller.v.Jenkins case, yet that couple too were not SSM & there seems to be no reason to think their case would have turned out any differently if they were.
June 30th, 2011 | 11:28 am
“Just as they did not need a written policy “No racists need apply,” they did not need a written policy “No gays need apply.”
Apparently you and Kurt don’t know what test cases are. And you are also missing the point. They needed a no gay couples policy because the Church does not approve of homosexual acts. Do you think the CCB should have also entertained applications from adulterous couples?
“Do you really have such a low opinion of every lesbian on earth that there is no child on earth a lesbian couple could take good care of?”
Do you have such a low opinion of heterosexual Catholic couples that you believe none of them would want to adopt such a child? And do you think only Catholic Charities has such children to offer for adoption?
“It was not a case of discrimination that caused CCB to cease operating. It was their insistence on having an unnecessary written policy saying that they would discriminate against gays and lesbians no matter what.”
It was a policy that was consistent with the Church’s teachings on homosexual acts. You and gay couples are free to not like that. You and those gay couples are also free to go one of the dozens of other adoption agencies that do not have such a rule. To insist that Catholic Charities has to be driven out of handling adoptions if it has such a policy is bigotry, pure and simple.
“According to Kurt’s analysis, CCB did not cease operating because it wanted to place children in the best homes possible in their judgment as Catholics, which it was free to do without legal jeopardy. It wanted to make a statement, and in my mind, one that was more political than religious.”
Right, in Boston, that hotbed of conservative politics.
June 30th, 2011 | 11:37 am
“More to the point, this has nothing to do with SSM. Unmarried couples and individuals can and do adopt kids.”
Which is exactly why Catholic and other Christian adoption agencies should be able to apply criteria consistent with their religious doctrines. Couples outside those denominations have plenty of other choices.
“On the other thread Brian raises the issue of a New Mexico photographer who was fined because she refused to photograph a lesbian committment ceremoney. But New Mexico doesn’t have SSM, nor does it have civil unions or domestic partnerships in law.”
So if a case like that can be brought in New Mexico, what does that tell you will happen in SSM jurisdictions?
And are you claiming SSM had nothing to do with Catholic Charities of Boston being forced out of adoptions, or have you finally given up on that?
By the way, yesterday afternoon, a group of gay couples brought suit in New Jersey demanding the judicial implementation of SSM.
June 30th, 2011 | 1:30 pm
So if a case like that can be brought in New Mexico, what does that tell you will happen in SSM jurisdictions?
Absolutely nothing!
And are you claiming SSM had nothing to do with Catholic Charities of Boston being forced out of adoptions, or have you finally given up on that?
Absolutely nothing to do with being ‘forced out’….in fact it’s been demonstrated by not they haven’t even been forced out!
You have only a few strategies to refute what has been demonstrated, they may not be very viable strategies but you have to play the cards reality has delt to you, you can’t just pretend you have a full house when you gots nothing. You can….
1. Prove that Worcester is not in Masschusettes.
2. Prove that the Vatican has granted some type of exemption from its doctrines to Worecester that it hasn’t granted to Boston.
3. Prove that Worcester, for inexplicable reasons, has choosen to openly defy the Vatican yet this has not made no impression on the media nor the Vatican nor local orthodox Catholics who vigerously oppose both gay adoption and SSM.
4. Prove that Boston Catholic Charities, for some reason, is unable to handle private adoptions despite the fact that about 2/3 of all adoptions in Mass. appear to be private.
5. Prove that the legislature really rejected a request for an exemption for Boston, despite the odd fact that at the time a majority were willing to vote against SSM and the sitting gov. was willing to sign such a law.
By the way, yesterday afternoon, a group of gay couples brought suit in New Jersey demanding the judicial implementation of SSM.
Yes and your point?
I’d be wiling to admit mistakes in fact I have made but I’ve presented the research here and it refutes the ‘facts’ you’ve been trumpetiting. At a certain point going around in circles misses the real problem here….dishonesty on the part of anti-SSM partisans. (Not all, of course, but among more than enough and its looking like you’re part of that group).
June 30th, 2011 | 2:47 pm
“Absolutely nothing to do with being ‘forced out’….in fact it’s been demonstrated by not they haven’t even been forced out!”
People (unlike you) who have actually read some of the links here know otherwise.
“Prove that Worcester is not in Masschusettes.”
I have already explained to you, Worcester has gotten away with referring gay couples to other agencies. That could end tomorrow.
“I’d be wiling to admit mistakes in fact I have made but I’ve presented the research here and it refutes the ‘facts’ you’ve been trumpetiting”
What research would that be? You keep insisting that CCB is handling adoptions, when they obviously are not.
June 30th, 2011 | 2:53 pm
Michael,
You haven’t told me why my argument isn’t persuasive. Your problem (unlike Boonton’s problem–more on that in a comment to follow) is with Thesis II, the claim that marriage presupposes procreation. After I defended this thesis by showing that it doesn’t violate the genetic fallacy (the only objection I could think of) you maintained that even if I have a good argument you also have a good one on the other side (which you call the Genesis argument).
But you haven’t refuted my position or shown what’s wrong with the idea that the institution of marriage presupposes the general fact of procreation. You’ve only said you disagree with it because it’s incompatible with your (Millian liberal) interpretation of Genesis. It is certainly incompatible, but so long as it stands it is a rebuke to your interpretation of Genesis. So you still have to find a fault with it on its own terms, and not just because it is incompatible with your view.
This shows why it’s important to approach the issue of SSM analytically. Not to escape theology, but to examine presuppositions.
Boonton,
Even regarding my “Liar, Liar” comment you completely fail to accurately portray what I said. I obviously was not saying that a lawyer who does his best to defend a client is a liar. This is a laughably simplistic caricature. Only a complete idiot would have said what you say I wrote. So you must think I’m an idiot, or you are using disingenuous rhetoric to lead other people, following our conversation, to think I’m an incompetent or unprincipled thinker, the kind of manipulative writer who thinks he can fool people all the time. I am not the manipulative type at all, and if I were, someone else besides you would have pointed out my “manipulative” illogic by now. And then you accuse me of being on a hobby horse over the last dozen posts. That takes a lot of gall, and your case isn’t helped when you misspell a simple word like “horse” as “hoarse.”
Concerning thesis XII, look closely at the last sentence, especially the first eight words. Clearly, I wasn’t saying that no conception of justice which is controversial can ever be a truth of justice. I was saying that under the circumstances of our history and our knowledge of the limits of claims about rights (and about abstract political values generally), the argument that SSM is *required* by justice is just a little tiny bit unbelievable. Once again, you have completely misunderstood my view, and done so by ignoring interpretive charity.
Concerning Theses I and II, there is no clearer example of your seemingly deliberate cluelessness. You say that I move from the claim in the first thesis to a “therefore” claim in the second. No, I don’t. There’s a connection, but it’s not a “therefore.” The connection is—forgive the expression—analytical but not inferential (in the strong sense of “therefore”). You are reading something into my argument about SSM that is not there, this time by wildly over-complicating, as opposed to over-simplifying, what I am maintaining. The *therefore* that you profess to see just isn’t there. But this does help to explain why you think I’m engaging in funny business. The illogic, I’m afraid, is entirely of your own making.
Your analogy of business ownership and the Chamber of Commerce is a heaven-sent gift. Why didn’t I think of such a revealing analogy myself? If business ownership depended on membership in the Chamber of Commerce, rather than being legally optional, the town would be effectively ruled by an unelected political oligarchy, the Chamber of Commerce. We don’t want Chambers of Commerce to have that kind of power—at least not officially—and so it is untrue that business ownership “presupposes” membership in the Chamber of Commerce. This is a matter of public policy and democratic advisability. Whereas marriage does presuppose procreation in the way that I have explained ad nauseam.
Nor can you say that good-standing business ownership presupposes membership in the Chamber of Commerce and make *that* analogous. The reason is that (1) “respectable” marriages do not differ from non-respectable marriages with regard to the capacity to procreate, and (2) we’re not talking about marriage writ small in the first place (and, of course, marriage writ large makes no distinction between respectable and non-respectable marriages).
You see a dog (named Boonton) gnawing savagely on the bone of my argument. I see a dog that is all bark and no bite.
June 30th, 2011 | 4:28 pm
Ken,
I believe I have told you why I don’t find your argument persuasive. You start from different premises, premises that are secular and focused on the state. My premises are biblical and focused on explaining a more primordial mystery, why individuals break away from their own families to cleave to someone else outside the family. I think the Bible is a better starting place. I’m not sure why you don’t.
I think I understand what you mean when you say that marriage presupposes procreation, and I think you accepted my summary when I explained it in my own words. For you, the word “marriage” describes a civil, legal arrangement between two people. For me, the word describes what happens when someone leaves his family to form a new one.
I don’t recall our conversation well enough to say I did or did not refute your position. I remember listing the points I believed you had dropped or hadn’t answered, but I don’t remember what they were.
There are several things wrong with your idea that marriage presupposes procreation. It’s not biblical, it is limited to secular concerns and the state, it occurs at a later point in time than Genesis, it reduces marriage to procreation, and it doesn’t fully account for the elderly, infertile, and homosexual. I think you answered the last two objections, some answers being better than others. But your reasons were coherent and flowed logically from your premises. If I accepted your premises, I would agree with you, but I don’t.
Since you haven’t refuted my biblical position, I would say that it stands as a rebuke to your interpretation of marriage, which, by your logic, means that you need to find fault with my interpretation on its own terms.
I’m with Boonton on your use of the word “analytic.” If you’re using jargon, then you should be able to explain succinctly what it means.
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For what it’s worth, I can understand why Boonton might think that the link between your thirteen theses follows a “because this, therefore that” structure. It’s clear to me, at any rate, that Thesis II is a separate proposition from Thesis I. I don’t know why you all have decided to make it personal when you’re both better than that. I wish you all would get back to the subject and leave the insults to others more practiced in the genre.