Power Gained, Argument Weakened for Same-Sex Marriage
December 6, 2012
Matthew J. Franck
The naive reader of the U.S. Constitution might see the equal protection clause of the Fourteenth Amendment (“nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws”), and presume that these words are themselves to be applied equally to all persons, whatever their circumstances. If the modern Supreme Court is to be followed as our authoritative guide, however, that presumption would be incorrect. There are, one might say, three different equal protection clauses. And the group to which one belongs will determine which of them is put to use.
Described this way, the practice looks hard to defend. But the trouble may begin with the clause itself. The “equal protection of the laws” cannot really be taken to mean “the law shall make no distinctions among persons,” for the making of some such distinctions is unavoidable in the law. Children and adults, men and women, citizens and aliens, the healthy and the sick, the rich and the poor—all of these are treated differently in some respects (though not in all), and few will complain that some abstract “equality” norm has been traduced in every case.
And so the modern courts have muddled through by developing three different “levels of scrutiny” for equal protection analysis, from most to least stringent: strict scrutiny, intermediate (or “heightened” scrutiny), and rational basis review. The first is the hardest test for a legislature to pass, and is applied to groups identified as a “suspect class.” Race is the paradigmatic category here, and the courts have added “alienage” (foreign citizenship) and national origin to this level of scrutiny as well. To defend a law employing such distinctions, a state must bear the burden of showing a “compelling interest,” and employ means “narrowly tailored” to achieving that interest. It is, and should be, hard to defend a law that favors and disfavors persons based on race or ethnicity.
At the next level of heightened scrutiny, we find “quasi-suspect classes” like “gender” and “illegitimacy.” Here the discriminating policies must be defended as “substantially” related to an “important interest” of the state. This is still an exceedingly muddy area of equal protection law, and it is hard to say how much of the probative burden is carried by the state, and how much by the party that complains of its policy. But in recent years—as when Virginia Military Institute was forced to give up all-male education in 1995—this intermediate scrutiny has been tantamount to the most stringent test.
All other state policies are subject to rational basis review, where the burden is largely on the challenging party, and all the state need show is that its policy of favoring some over others has some rational relationship to a merely “legitimate” governmental interest.
In recent same-sex marriage cases, those who seek to overturn traditional marriage laws have tried to persuade courts to treat homosexuals as a suspect or quasi-suspect class, thus leveraging the legal analysis into one of the harder levels of scrutiny, or at least an “intensified” rational basis review, and improving their chances of victory. Two recent decisions by federal district court judges in the Ninth Circuit—one in Hawaii by Judge Alan Kay on August 8, the other in Nevada by Judge Robert Jones on November 26—have rejected this gambit, rightly holding that laws restricting marriage to one man and one woman need only be shown to have an ordinary rational basis, that this is easily shown, and that they involve no invidious discrimination.
These decisions have blocked three roads to the enjoyment of a heightened judicial solicitude. (Both cases are being appealed, and neither is ripe for Supreme Court review in the present term. But the judges’ opinions are worthy of examination by the justices in the cases they are now pondering.) The first approach claimed that a law telling people they cannot marry another of the same sex is a form of “gender discrimination” meriting intermediate scrutiny. No, said the judges in these cases: Men and women are treated equally by such laws, and the discrimination turns not on gender but (at most) on sexual orientation.
The second approach was to claim that homosexuality is an immutable and defining characteristic, such that gays and lesbians have a history of being discriminated against, sufficient to raise their stature as a suspect class in the eyes of judges. Again, not so, said the judges in Hawaii and Nevada. Under governing Ninth Circuit precedent, never yet contradicted by the Supreme Court, homosexuality has been regarded as a behavioral characteristic, not an immutable one like race. And whatever discrimination gays and lesbians have suffered diminishes day by day, obviating the need for special judicial attention to their claims.
And this overlaps with the third and final approach, in which same-sex marriage advocates claim that gays and lesbians are politically powerless, unable to make headway in the normal channels of democratic decision-making at the polls and in legislatures, thus needing the aid of the judiciary. As Judge Jones noted in the Nevada case, this claim is refuted by recent history. The president of the United States opposes the Defense of Marriage Act and favors same-sex marriage. Legislatures in some states have established same-sex marriage, and in other states, civil unions. Moreover, Jones noted, the people of four states went to the polls in November to decide this question—and we know what the result was.
Perhaps it is something of a paradox that as their political clout grows stronger, the constitutional claims of same-sex marriage advocates become weaker. But if powerlessness is a legitimate variable in judicial decision-making, it is hard to gainsay the view of Judge Jones:
The question of “powerlessness” under an equal protection analysis requires that the group’s chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces. . . . The relevant consideration is the group’s “ability to attract the attention of the lawmakers,” an ability homosexuals cannot seriously be said not to possess.
Of course the advocates of same-sex marriage will continue to press their case in courts of law. They would rather convince five justices of the Supreme Court to impose their agenda on the country than try convincing the country itself. And notwithstanding their November victories, they are still leery of democracy in much of the country, even in blue New Jersey, where they have rejected a referendum idea floated by Governor Chris Christie.
But Judge Kay and Judge Jones are quite right. It is ludicrous to call gays and lesbians an oppressed and powerless minority in the United States at the end of 2012. This fact should weigh heavily in the Supreme Court’s deliberations.
Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.
RESOURCES
Abercrombie v. Jackson (U.S. District Court, Hawaii, August 8, 2012)
Sevcik v. Sandoval (U.S. District Court, Nevada, November 26, 2012)
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Comments:
12.6.2012 | 3:13am
Don Roberto says:
It is indeed an Obama nation. A woman at work felt perfectly at ease the other day telling me what she and her "wife" were planning for their retirement. And few people seem concerned that their kids are being taught in school that evil is good. As the meme soup in which we swim heated up slowly, like frogs the mindless populace didn't realize they were being cooked. Their culture and traditional values have vaporized.
12.6.2012 | 10:03am
Kerry M. Soileau says:
The quest for gay marriage is not for freedom, but for privilege. Just as I am not "privileged" to fly government combat jets, gays are not "privileged" to receive the government perquisites of marriage. I am denied the pilot privilege because of myopia, i.e. because of the way I was born. Gays are denied the marriage privilege because of the "way they were born."
Moreover, since gays can live together without interference, enjoying all of the intimacies of marriage, it can't be said that they are denied anything they need, only a privilege they want.
Moreover, since gays can live together without interference, enjoying all of the intimacies of marriage, it can't be said that they are denied anything they need, only a privilege they want.
12.6.2012 | 10:57am
nobody.really says:
”The first approach claimed that a law telling people they cannot marry another of the same sex is a form of ‘gender discrimination’ meriting intermediate scrutiny. No, said the judges in these cases: Men and women are treated equally by such laws, and the discrimination turns not on gender but (at most) on sexual orientation.”
???
A law prohibiting interracial marriage might well apply uniformly to people of all races. Does it therefore follow that such laws comply with the equal protection clause?
”The question of ‘powerlessness’ under an equal protection analysis requires that the group’s chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces. . . . The relevant consideration is the group’s ‘ability to attract the attention of the lawmakers,’ an ability homosexuals cannot seriously be said not to possess.”
???
Women represent the majority of US citizens, and vote in higher percentages than men. Ergo, discrimination against women is no longer prohibited by the equal protection clause?
???
A law prohibiting interracial marriage might well apply uniformly to people of all races. Does it therefore follow that such laws comply with the equal protection clause?
”The question of ‘powerlessness’ under an equal protection analysis requires that the group’s chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces. . . . The relevant consideration is the group’s ‘ability to attract the attention of the lawmakers,’ an ability homosexuals cannot seriously be said not to possess.”
???
Women represent the majority of US citizens, and vote in higher percentages than men. Ergo, discrimination against women is no longer prohibited by the equal protection clause?
12.6.2012 | 12:35pm
andrew says:
nobody,
at least some sane people see as self-evident that miscegenation is not a metaphysical impossibility whereas "same sex marriage" makes as much sense as "2+2=7.3." under this understanding, if i obstinately hold that 2+2=4 is true and defend this claim in the public square, am i "discriminating" against those who believe otherwise?
in any case, please define and defend your understanding of marriage and only then explain why the current state of affairs is unjustly discriminatory. what exactly is marriage?
at least some sane people see as self-evident that miscegenation is not a metaphysical impossibility whereas "same sex marriage" makes as much sense as "2+2=7.3." under this understanding, if i obstinately hold that 2+2=4 is true and defend this claim in the public square, am i "discriminating" against those who believe otherwise?
in any case, please define and defend your understanding of marriage and only then explain why the current state of affairs is unjustly discriminatory. what exactly is marriage?
12.6.2012 | 12:54pm
John Howard says:
Nobody.really: People of different races don't require genetic engineering in order to conceive offspring. It doesn't cost anything to enable a white man and a black woman to conceive offspring together, it isn't unethical like it would always be for a same-sex couple. It doesn't create unhealthy children or violate their rights, only interracial children, and that was reason there were laws against interracial marriage, and that reason was an unsupportable basis.
I think attempting to create children from a same-sex couple is unethical and violates the child's rights and is a supportable basis to prohibit same-sex marriage.
I think attempting to create children from a same-sex couple is unethical and violates the child's rights and is a supportable basis to prohibit same-sex marriage.
12.6.2012 | 1:38pm
Adam Baum says:
"A woman at work felt perfectly at ease the other day telling me what she and her "wife" were planning for their retirement."
Of course she did. You are limited by the omnipotent organization mandate to play nice with everybody, and the overt threat of censure by the left's shock troops in the work world- "human resources".
I once went to a "diversity" "training" session ( at a big insurance company where I worked and whose name you would recognize) where the presenters felt perfectly at ease telling their captive audience that everyone needs to filter out stereotypes when talking to others-and that this is especially important for Christians who tend to rigidity. Apparently neither presenter had any sense of irony.
Of course she did. You are limited by the omnipotent organization mandate to play nice with everybody, and the overt threat of censure by the left's shock troops in the work world- "human resources".
I once went to a "diversity" "training" session ( at a big insurance company where I worked and whose name you would recognize) where the presenters felt perfectly at ease telling their captive audience that everyone needs to filter out stereotypes when talking to others-and that this is especially important for Christians who tend to rigidity. Apparently neither presenter had any sense of irony.
12.6.2012 | 1:48pm
Chuck Anziulewicz says:
The only way your arguments succeed is if the 14th Amendment guarantee of equal protection under the law only applies to people who are heterosexual. And do you think that being Straight (i.e. heterosexual) is an "immutable and defining characteristic," but being Gay (i.e. homosexual) is not? Have you ever bothered to ask any Gay people about this?
12.6.2012 | 1:57pm
Javier says:
Actually, the two recent decisions cited above are outliers with the trend in most other recent decisions that have applied either a very rigorous rational basis scrutiny to laws that disadvantage gays or outright apply some level of heightened scrutiny to anti-gay laws. Moreover, the federal judge's decision in Nevada will be appealed to the Ninth Circuit, which has already shown it is rather sympathetic to the argument that gays are a protected class subject to heightened scrutiny. Moreover, at least in blue states, courts have subjected antigay laws to various levels of heightened scrutiny. Further, amongst legal scholars and academia, there is near consensus that laws that distinguish should be subjected to heightened scrutiny. The trend is certainly toward heightened scrutiny based on sexual orientation, and two exceptions don't negate that trend.
12.6.2012 | 2:25pm
nobody.really says:
Andrew, John Howard, and others suggest that same-sex marriage differs from male/female marriage in legally cognizable ways. That’s a rich topic of conversation – but not the topic I (and Matthew Frank) raised.
Rather, as Javier notes, the discussion is focused on the application of the 14th Amendment’s equal protection clause. I share Frank’s view that, when people challenge a state policy recognizing male/female marriage but not same-sex marriage, the outcome of the case will be influenced by the degree of scrutiny the judge chooses to apply. Again as Javier notes, the 9th Cir. found that a state’s choice to call male/female unions “marriage,” but legally identical same-sex unions by a different name, fails even a rational basis review.
Here’s the general dynamic: Let’s assume the state has a bona fide interest in promoting stable environments for reproduction. Male/female unions (currently) differ from same-sex unions in the capacity to procreate. The equal protection argument hinges on the nexus between the bona fide goal (promoting stable reproductive environments) and the policy designed to promote the goal (bestowing certain benefits and responsibilities exclusively on certain male/female couples). How good is the nexus? Consider:
1. Not all married male/female couples can, do, or aspire to procreate.
2. Marriage bestows benefits that seem only weakly related to procreation (e.g., Social Security survivor benefits; hospital visitation rights; etc.)
3. Extension of marital rights/obligations to same-sex couples does not impede a state’s ability to extend those rights/obligations to male/female couples.
4. Arguably extension of marital rights/obligations to same-sex couples would promote other bona fide interests (e.g., creating a stable environment in which to raise, not merely produce, kids; promoting legally-enforceable mutual aid pacts among consenting parties). I acknowledge that this point is contested.
In equal protection terms, the state’s policy is both over- and under-inclusive relative to its cited bona fide interest in promoting healthy reproductive environments, and needlessly excludes consideration of the state’s other bona fide interests. Given the weak fit between the articulated bona fide interest and the policy, does this policy even withstand rational basis scrutiny? Perhaps; it’s a deferential standard. But it seems clear to me that the state can’t bear any level of scrutiny higher than rational basis review.
Rather, as Javier notes, the discussion is focused on the application of the 14th Amendment’s equal protection clause. I share Frank’s view that, when people challenge a state policy recognizing male/female marriage but not same-sex marriage, the outcome of the case will be influenced by the degree of scrutiny the judge chooses to apply. Again as Javier notes, the 9th Cir. found that a state’s choice to call male/female unions “marriage,” but legally identical same-sex unions by a different name, fails even a rational basis review.
Here’s the general dynamic: Let’s assume the state has a bona fide interest in promoting stable environments for reproduction. Male/female unions (currently) differ from same-sex unions in the capacity to procreate. The equal protection argument hinges on the nexus between the bona fide goal (promoting stable reproductive environments) and the policy designed to promote the goal (bestowing certain benefits and responsibilities exclusively on certain male/female couples). How good is the nexus? Consider:
1. Not all married male/female couples can, do, or aspire to procreate.
2. Marriage bestows benefits that seem only weakly related to procreation (e.g., Social Security survivor benefits; hospital visitation rights; etc.)
3. Extension of marital rights/obligations to same-sex couples does not impede a state’s ability to extend those rights/obligations to male/female couples.
4. Arguably extension of marital rights/obligations to same-sex couples would promote other bona fide interests (e.g., creating a stable environment in which to raise, not merely produce, kids; promoting legally-enforceable mutual aid pacts among consenting parties). I acknowledge that this point is contested.
In equal protection terms, the state’s policy is both over- and under-inclusive relative to its cited bona fide interest in promoting healthy reproductive environments, and needlessly excludes consideration of the state’s other bona fide interests. Given the weak fit between the articulated bona fide interest and the policy, does this policy even withstand rational basis scrutiny? Perhaps; it’s a deferential standard. But it seems clear to me that the state can’t bear any level of scrutiny higher than rational basis review.
12.6.2012 | 2:27pm
nobody.really says:
Regarding John Howard’s concerns: FamilyScholars.com hosts a long-running debate about the problems associated with all manner of assisted reproductive technology – especially technology that result in kids being created only to be raised by people to whom they are not biologically related. It’s a rich, complicated issue.
In any event, this issue would seem to apply to male/female and same-sex couples alike, married and unmarried alike. I do not subscribe to the view that a state-issued marriage license authorizes a couple to pursue whatever means of reproduction they choose.
I know some homosexuals who argue that outlawing assistive reproductive technologies would violate the equal protection clause because it would have a disparate impact on same-sex couples, couples that can’t reproduce otherwise. I acknowledge the disparate impact, but argue that if the state has a bona fide interest that justifies barring assistive reproductive technologies, the disparate impact argument would not prevail.
Similarly, I am open to the possibility – supported by some but not all research -- that two biological parents provide a uniquely beneficial environment in which to raise children. Further research might justify policies that discriminate in favor of these environments, and against kids raised by one or more adoptive parent. Again, such policies might well have disparate impacts on same-sex couples. Again, it is unclear to me that the disparate impact test would suffice to overcome a bona fide state interest.
In sum, I distinguish between laws governing marriage and laws governing reproduction. I favor state recognition of same-sex marriage. Reproduction is another matter.
In any event, this issue would seem to apply to male/female and same-sex couples alike, married and unmarried alike. I do not subscribe to the view that a state-issued marriage license authorizes a couple to pursue whatever means of reproduction they choose.
I know some homosexuals who argue that outlawing assistive reproductive technologies would violate the equal protection clause because it would have a disparate impact on same-sex couples, couples that can’t reproduce otherwise. I acknowledge the disparate impact, but argue that if the state has a bona fide interest that justifies barring assistive reproductive technologies, the disparate impact argument would not prevail.
Similarly, I am open to the possibility – supported by some but not all research -- that two biological parents provide a uniquely beneficial environment in which to raise children. Further research might justify policies that discriminate in favor of these environments, and against kids raised by one or more adoptive parent. Again, such policies might well have disparate impacts on same-sex couples. Again, it is unclear to me that the disparate impact test would suffice to overcome a bona fide state interest.
In sum, I distinguish between laws governing marriage and laws governing reproduction. I favor state recognition of same-sex marriage. Reproduction is another matter.
12.6.2012 | 2:27pm
Adam Baum says:
"And do you think that being Straight (i.e. heterosexual) is an "immutable and defining characteristic,"
Having worked in a state corrections environment, I can tell you based on the prevalance of something known as "gay for stay" demonstrates neither orientation is universally immutable.
Having worked in a state corrections environment, I can tell you based on the prevalance of something known as "gay for stay" demonstrates neither orientation is universally immutable.
12.6.2012 | 2:33pm
Shaun R. says:
Chuck,
No; there is a question of precisely what "equal" means. Under a strict interpretation, the law is being applied equally, and everyone is subject to the same protection (and the same discrimination): any man is permitted to marry any woman, and conversely no man is permitted to marry any man, etc. There is more at stake in the discussion than a simple surface understanding of "equal", for if it were not, this would be sufficient to settle the matter.
Furthermore, whether it is an "immutable characteristic" is beside the point, because it is a characteristic that is rooted in subjective feeling, and is inaccessible to objective verification apart from observation of behavior. Thus, it should properly be regarded as a behavioral characteristic, rather than a characteristic which is in any way analogous to race, etc. As such, it is properly subjected to moral judgment (as are all behavioral characteristics); in contradistinction to objectively verifiable characteristics (i.e. race), and furthermore, like all behavioral characteristics found to be morally lacking (regardless of their immutability), may be justly subjected to unequal treatment.
No; there is a question of precisely what "equal" means. Under a strict interpretation, the law is being applied equally, and everyone is subject to the same protection (and the same discrimination): any man is permitted to marry any woman, and conversely no man is permitted to marry any man, etc. There is more at stake in the discussion than a simple surface understanding of "equal", for if it were not, this would be sufficient to settle the matter.
Furthermore, whether it is an "immutable characteristic" is beside the point, because it is a characteristic that is rooted in subjective feeling, and is inaccessible to objective verification apart from observation of behavior. Thus, it should properly be regarded as a behavioral characteristic, rather than a characteristic which is in any way analogous to race, etc. As such, it is properly subjected to moral judgment (as are all behavioral characteristics); in contradistinction to objectively verifiable characteristics (i.e. race), and furthermore, like all behavioral characteristics found to be morally lacking (regardless of their immutability), may be justly subjected to unequal treatment.
12.6.2012 | 2:57pm
gentlemind says:
Rights exist at the level of the individual. Equal protection under the law exists at the level of the individual. Other minority classes are individuals ( black individuals, etc). Yet when we talk of "Homosexual" we do a bit of a leap and think of homosexual relationships. Every individual has the right to marry. Only one relationship is a marriage. All individuals have the right and ability to form that relationship. Redefining marriages asks for equality at the level of the relationship. The context (as provided by nature and recognised in international law) is procreation and parentong (founding a family. Within that context no relationship is equal to a marriage. Everything else is simply a failure to understand concepts such as the interplay between physical reality and legal reality.
12.6.2012 | 4:16pm
Don Roberto says:
Kerry, though the so-called sophisticates will disagree, I assure you that no one is born "gay." It is learned behavior. Christians believe it to be bad behavior (see for example Romans 1:27). There is no "gay gene." Consider Adam's "gay for stay" notion, and the behavior of "bisexuals" and bonobos. Consider how you would behave if raised among ancient Greeks or Afghani nomads. The 10-year-old child exhibits extraordinary neuroplasticity. This is why teaching children is so important and why teaching that evil is good is so bad. Children who are diverted down the slippery slope into serious sin by their teachers (whoever these may be—all too often older children, farther along the path of wickedness), or by the aggregate result of their own prior sins, may think they are "born that way." This is an unconscious excuse. And when we as a "culture" (with a push from the so-called experts) accepted this diabolical idea, all of the problems we are discussing became inevitable.
12.7.2012 | 4:05am
Michael PS says:
Nobody Really
I suggest an argument could be made that it is eminently reasonable for a state to address the issues of marriage, adoption and assisted reproduction as part of a single, coherent policy on the family. For an example of this, I would refer to the Pécresse Commission (No 2832) that reported to the French National Assembly on 25 January 2006. Controversial as many of the report’s recommendations were, this unified approach was universally welcomed.
I suggest an argument could be made that it is eminently reasonable for a state to address the issues of marriage, adoption and assisted reproduction as part of a single, coherent policy on the family. For an example of this, I would refer to the Pécresse Commission (No 2832) that reported to the French National Assembly on 25 January 2006. Controversial as many of the report’s recommendations were, this unified approach was universally welcomed.
12.7.2012 | 9:08am
patricksarsfield says:
Marriage is not simply a "privilege." Rather, it is a set of rights and responsibilities aimed, by long-standing law and custom, at two child-related purposes. First: fostering the potential that children are raised and supported by both their parents (hence the presumption of paternity for children born during the course of the marriage; the natural mother's role is never in doubt)), Second, that the parents do not go outside the marriage to create children with someone else (hence the adultery laws which have fallen into desuetude). While there have beeen a number of developments in the past 50 years fraying the strength of the marital bonds (e.g., Divorce Reform, passage of Internal Revenue Laws that reward single parents such as the Earned Income Credit and the Head of Household Filing Category), those child-rearing goals of marriage have not changed.
"Gay Marriage" is inconsistent with both those goals. Males need female genetic material to create issue and females need male genetic material to create issue. So, a female-female "gay marriage" cannot produce issue due to the lack of male genetic material and a male-male "gay marriage" cannot produce issue due to the lack of female genetic material. Never could; never can; never will be be able to whatever genetic engineering developments may occur.
So, the fidelity (non-adultery) that is so key to "straight marriage" has no child-related purpose in a "gay marriage" and would be at most a salve to the non-cheating "gay spouse's" pride. Why should the state get involved in such a question of affection unrelated to key state interests such as the rearage of children? It's certainly not to ensure that children are supported by both their parents since a gay marriage by its terms can comprehend at most just one of the two parents. What is the state purpose in erecting a wall of fidelity around a "gay committed relationship"?
"Gay Marriage" is inconsistent with both those goals. Males need female genetic material to create issue and females need male genetic material to create issue. So, a female-female "gay marriage" cannot produce issue due to the lack of male genetic material and a male-male "gay marriage" cannot produce issue due to the lack of female genetic material. Never could; never can; never will be be able to whatever genetic engineering developments may occur.
So, the fidelity (non-adultery) that is so key to "straight marriage" has no child-related purpose in a "gay marriage" and would be at most a salve to the non-cheating "gay spouse's" pride. Why should the state get involved in such a question of affection unrelated to key state interests such as the rearage of children? It's certainly not to ensure that children are supported by both their parents since a gay marriage by its terms can comprehend at most just one of the two parents. What is the state purpose in erecting a wall of fidelity around a "gay committed relationship"?
12.7.2012 | 10:16am
nobody.really says:
“I suggest an argument could be made that it is eminently reasonable for a state to address the issues of marriage, adoption and assisted reproduction as part of a single, coherent policy on the family. For an example of this, I would refer to the Pécresse Commission (No 2832) that reported to the French National Assembly on 25 January 2006.”
Thanks for the reference; I was not acquainted with it.
Sure, ideally ALL laws should be integrated and coherent. I certainly agree that laws governing procreation, child-rearing, and household organization should not conflict with each other.
That said, people procreate both inside and outside of marriage. People raise kids both inside and outside of marriage. People set up households together both inside and outside of marriage. People get married with the expectation and practice of having kids, or not. People rely on significant others, both when they have kids and not. People inherit property when a significant other dies, whether or not they had kids together.
Can we think of examples of policies regarding procreation that we thing should apply ONLY to procreation within marriage, but not otherwise? Can we think of policies regarding child-rearing that should apply ONLY to children raised within the context of marriage, but not otherwise? Can we think of policies regarding duties of mutual aid that should apply ONLY within the context of marriage but not, for example, within the context of a civil union?
Perhaps such policies exist. But more generally, if we have a policy regarding procreation (barring human cloning, for example), I suspect we would want it to apply REGARDLESS of the marital status of those procreating. If we have a policy governing child-rearing (requiring a minimum education, for example), we would want it to apply REGARDLESS of the marital status of the child’s parents. If we have a policy governing mutual aid (making people heirs to each other’s property), we would want that policy to apply to people in both marriages and civil unions, and REGARDLESS of whether they had children.
In short, I favor having laws that govern the scope of the issues to be addressed. Where marriage defines that scope, fine. Where the scope is not co-extensive with the scope of marriage, fine. Let form follows function. NOT let form follow a Normal Rockwell painting.
Thanks for the reference; I was not acquainted with it.
Sure, ideally ALL laws should be integrated and coherent. I certainly agree that laws governing procreation, child-rearing, and household organization should not conflict with each other.
That said, people procreate both inside and outside of marriage. People raise kids both inside and outside of marriage. People set up households together both inside and outside of marriage. People get married with the expectation and practice of having kids, or not. People rely on significant others, both when they have kids and not. People inherit property when a significant other dies, whether or not they had kids together.
Can we think of examples of policies regarding procreation that we thing should apply ONLY to procreation within marriage, but not otherwise? Can we think of policies regarding child-rearing that should apply ONLY to children raised within the context of marriage, but not otherwise? Can we think of policies regarding duties of mutual aid that should apply ONLY within the context of marriage but not, for example, within the context of a civil union?
Perhaps such policies exist. But more generally, if we have a policy regarding procreation (barring human cloning, for example), I suspect we would want it to apply REGARDLESS of the marital status of those procreating. If we have a policy governing child-rearing (requiring a minimum education, for example), we would want it to apply REGARDLESS of the marital status of the child’s parents. If we have a policy governing mutual aid (making people heirs to each other’s property), we would want that policy to apply to people in both marriages and civil unions, and REGARDLESS of whether they had children.
In short, I favor having laws that govern the scope of the issues to be addressed. Where marriage defines that scope, fine. Where the scope is not co-extensive with the scope of marriage, fine. Let form follows function. NOT let form follow a Normal Rockwell painting.
12.7.2012 | 11:22am
nobody.really says:
“Marriage …. is a set of rights and responsibilities aimed … at two child-related purposes. First: fostering the potential that children are raised and supported by both their parents (hence the presumption of paternity for children born during the course of the marriage…). Second, that the parents do not go outside the marriage to create children with someone else (hence the adultery laws which have fallen into desuetude). ‘Gay Marriage’ is inconsistent with both those goals.”
I find no inconsistency. How does state recognition of same-sex marriage impede either goal? I suspect you mean to say that same-sex marriage is IRRELEVANT to those goals.
But inconsistent or irrelevant, I would disagree.
True, marriage “foster[s] the potential that children are raised and supported by both their parents (hence the presumption of paternity for children born during the course of the marriage…).” As the “presumption of paternity” reference demonstrates, marriage does not ensure that kids are raised by the people to whom they are biologically related; it ensures that kids get two adults to call parents. Kids growing up in households headed by same-sex couples have the same needs, and the state has the same interests in promoting a stable environment for child-rearing.
Second, if you ever have occasion to comfort someone who has discovered that his spouse was unfaithful, I recommend you not say, “Hey – no kids resulted, so no harm, right?” For people who care about monogamy and fidelity – regardless of sexual orientation -- this would not be a helpful remark. I humbly suggest that procreation is really not the central issue in promoting fidelity; the issue is trust, stability. And to the extent that a public recognition of an exclusive union will help all people to maintain the exclusivity of that union, I see no reason why that public recognition should be restricted to heterosexual couples only.
I find no inconsistency. How does state recognition of same-sex marriage impede either goal? I suspect you mean to say that same-sex marriage is IRRELEVANT to those goals.
But inconsistent or irrelevant, I would disagree.
True, marriage “foster[s] the potential that children are raised and supported by both their parents (hence the presumption of paternity for children born during the course of the marriage…).” As the “presumption of paternity” reference demonstrates, marriage does not ensure that kids are raised by the people to whom they are biologically related; it ensures that kids get two adults to call parents. Kids growing up in households headed by same-sex couples have the same needs, and the state has the same interests in promoting a stable environment for child-rearing.
Second, if you ever have occasion to comfort someone who has discovered that his spouse was unfaithful, I recommend you not say, “Hey – no kids resulted, so no harm, right?” For people who care about monogamy and fidelity – regardless of sexual orientation -- this would not be a helpful remark. I humbly suggest that procreation is really not the central issue in promoting fidelity; the issue is trust, stability. And to the extent that a public recognition of an exclusive union will help all people to maintain the exclusivity of that union, I see no reason why that public recognition should be restricted to heterosexual couples only.
12.7.2012 | 12:58pm
Michael PS says:
Nobody Really
On the subject of fidelity, you may wish to consider the following:-
Alain Bénabent provided an excellent summation of the three ways of living
together: “From the point of view of mutual relations, there is a very obvious
gradation. Between those who merely cohabit, there is nothing. The few legal
consequences flowing from cohabitation affect only third parties – social
agencies in particular – but there are no reciprocal rights or duties either
during cohabitation or upon its termination. At the opposite extreme, in
marriage we find all the mutual commitments. The PACS is at the mid-point: it
entails some mutual commitments copied from those of marriage – the duty of
solidarity, the duty of cohabitation – but it entails neither a duty of fidelity
(hence no presumption of paternity in a PACS) nor a scheme of inheritance.”
Note that, in France, a PACS [civil union] is open to both same-sex and opposite-sex couples and, as ons would expect, about 90% do involve opposite-sex couples.
Here the relationship between fidelity and the presumption of paternity is stressed, as it was by the French Senate in 2005 [Projet de loi ratifiant l'ordonnance n° 2005-759 du 4 juillet 2005] "The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple's children," a presumption they declared "" it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value."
On the subject of fidelity, you may wish to consider the following:-
Alain Bénabent provided an excellent summation of the three ways of living
together: “From the point of view of mutual relations, there is a very obvious
gradation. Between those who merely cohabit, there is nothing. The few legal
consequences flowing from cohabitation affect only third parties – social
agencies in particular – but there are no reciprocal rights or duties either
during cohabitation or upon its termination. At the opposite extreme, in
marriage we find all the mutual commitments. The PACS is at the mid-point: it
entails some mutual commitments copied from those of marriage – the duty of
solidarity, the duty of cohabitation – but it entails neither a duty of fidelity
(hence no presumption of paternity in a PACS) nor a scheme of inheritance.”
Note that, in France, a PACS [civil union] is open to both same-sex and opposite-sex couples and, as ons would expect, about 90% do involve opposite-sex couples.
Here the relationship between fidelity and the presumption of paternity is stressed, as it was by the French Senate in 2005 [Projet de loi ratifiant l'ordonnance n° 2005-759 du 4 juillet 2005] "The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple's children," a presumption they declared "" it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value."
12.7.2012 | 1:29pm
Russ Davis says:
It was a quick scan so I may have missed it, but so far as I could see, no one addressing this issue seemed to give a rip about what God thinks about the matter, something our Founders, many of whom were Protestant clergy, considered of paramount importance, unlike today where such a notion is either outlawed or condemned, usually both, even among professing “christians,” however when such fools (Psalm 14) stand before God and must give Him an account in His Judgment for their perfidy, most especially the evil of turning their backs on the gracious God Who so amazingly condescended to bless us & this land in so unparalleled a way, this is what will be said:
Jeremiah 2:13: "for My people have committed two evils: they have forsaken Me, the fountain of living waters, and hewed out cisterns for themselves, broken cisterns that can hold no water.
See this addressed at desiringGod.org
Our Founders knew that a post-Christian America was certain suicide, and, unsurprising for a serious Christian, unlike most, it's turning out to be so. God save us. Soli Deo Gloria!
Jeremiah 2:13: "for My people have committed two evils: they have forsaken Me, the fountain of living waters, and hewed out cisterns for themselves, broken cisterns that can hold no water.
See this addressed at desiringGod.org
Our Founders knew that a post-Christian America was certain suicide, and, unsurprising for a serious Christian, unlike most, it's turning out to be so. God save us. Soli Deo Gloria!
12.7.2012 | 3:29pm
nobody.really says:
“It was a quick scan so I may have missed it, but so far as I could see, no one addressing this issue seemed to give a rip about what God thinks about the matter….”
Fair enough. This discussion has not addressed the merits of homosexuals/homosexuality/homosexual sex. Nor should it.
I don’t like sickness, war, crime, debt, divorce, drug addition, etc. God has some concerns about these states of affairs, too. Nevertheless, our society has established institutions for coping with sickness, war, crime, debt, drug addition, etc. We establish these institutions not to celebrate these problems, but as PRACTICAL means to manage them. We respond to the world as we find it -- not as we might wish it to be.
I favor state recognition for same-sex marriage as a means of coping with the fact that people are forming same-sex couples and encountering many of the same PRACTICAL issues that male/female couples encounter. My support of state recognition for same-sex marriage is no different than my support for hospitals, national defense, police, courts, prisons, bankruptcy laws, divorce laws, drug clinics, methadone clinics, etc. It’s a response to the world as I find it, not as I might wish it to be.
That said…
Each time a jurisdiction chooses to recognize same-sex marriage, some people regard it as a symbolic endorsement of homosexuals/homosexuality/homosexual sex. I acknowledge this fact, and regret it. But we can’t build social policy on the basis of symbolism. It looks terrible when a judge upholds the right of Nazis to march in Skokie. But the judge made the right call, even if it looked bad symbolically.
Even male/female marriages sail through tough seas these days -- and the kids in these marriages suffer the consequences. Kids being raised by same-sex couples need the same supports as kids raised by male/female couples. Indeed, if you believe that same-sex couples provide a less nurturing environment, then these kids need MORE support. State recognition seems like the LEAST we could provide.
I affirm freedom of religion. I support people’s right to hold whatever opinion they want regarding homosexuals/homosexuality/homosexual sex, just as I support their right to hold whatever opinion they want about the sick, or warriors, or criminals, or debtors, or divorced people, or drug addicts. But disapproval is not a substitute for social policy.
After all, last I checked, God seemed to care deeply about whether we acknowledge Him and his Son. We nevertheless have a law that permits people to deny God and His Son. And I approve of that law! I want everyone to have the right to practice Buddhism and/or deny the existence of God – even though I might also prefer that they didn’t. Similarly, I want people to have the right to choose a same-sex spouse – even if I might also prefer that they didn’t. Generally I believe that people should have the LEGAL right to make their own choices, even if it involves a MORAL wrong.
God grants a man free will. It is the state’s job to defend that man's ability to exercise that free will (subject to the need to defend other people’s rights to exercise their free will). It is OUR job to encourage that man to exercise his free will in a moral way. We must not shirk our responsibilities onto the state.
Opposed to same-sex marriage? Put down the sword. Pick up the net. THAT’s the tool for the fishers of men.
Fair enough. This discussion has not addressed the merits of homosexuals/homosexuality/homosexual sex. Nor should it.
I don’t like sickness, war, crime, debt, divorce, drug addition, etc. God has some concerns about these states of affairs, too. Nevertheless, our society has established institutions for coping with sickness, war, crime, debt, drug addition, etc. We establish these institutions not to celebrate these problems, but as PRACTICAL means to manage them. We respond to the world as we find it -- not as we might wish it to be.
I favor state recognition for same-sex marriage as a means of coping with the fact that people are forming same-sex couples and encountering many of the same PRACTICAL issues that male/female couples encounter. My support of state recognition for same-sex marriage is no different than my support for hospitals, national defense, police, courts, prisons, bankruptcy laws, divorce laws, drug clinics, methadone clinics, etc. It’s a response to the world as I find it, not as I might wish it to be.
That said…
Each time a jurisdiction chooses to recognize same-sex marriage, some people regard it as a symbolic endorsement of homosexuals/homosexuality/homosexual sex. I acknowledge this fact, and regret it. But we can’t build social policy on the basis of symbolism. It looks terrible when a judge upholds the right of Nazis to march in Skokie. But the judge made the right call, even if it looked bad symbolically.
Even male/female marriages sail through tough seas these days -- and the kids in these marriages suffer the consequences. Kids being raised by same-sex couples need the same supports as kids raised by male/female couples. Indeed, if you believe that same-sex couples provide a less nurturing environment, then these kids need MORE support. State recognition seems like the LEAST we could provide.
I affirm freedom of religion. I support people’s right to hold whatever opinion they want regarding homosexuals/homosexuality/homosexual sex, just as I support their right to hold whatever opinion they want about the sick, or warriors, or criminals, or debtors, or divorced people, or drug addicts. But disapproval is not a substitute for social policy.
After all, last I checked, God seemed to care deeply about whether we acknowledge Him and his Son. We nevertheless have a law that permits people to deny God and His Son. And I approve of that law! I want everyone to have the right to practice Buddhism and/or deny the existence of God – even though I might also prefer that they didn’t. Similarly, I want people to have the right to choose a same-sex spouse – even if I might also prefer that they didn’t. Generally I believe that people should have the LEGAL right to make their own choices, even if it involves a MORAL wrong.
God grants a man free will. It is the state’s job to defend that man's ability to exercise that free will (subject to the need to defend other people’s rights to exercise their free will). It is OUR job to encourage that man to exercise his free will in a moral way. We must not shirk our responsibilities onto the state.
Opposed to same-sex marriage? Put down the sword. Pick up the net. THAT’s the tool for the fishers of men.
12.7.2012 | 3:43pm
patricksarsfield says:
Nobody tries to ignore the point I made on the relationship between marriage and child rearing thusly:
"How does state recognition of same-sex marriage impede either goal? I suspect you mean to say that same-sex marriage is IRRELEVANT to those goals."
It is not irrelevant to those goals. Gay Marriage is inconsistent with those goals. There can be no faithful marriage of the parents of issue when a male marries a male because the siring male would have to go outside the "marital close" to propagate. Only a male and a female joining together in some gestational process be it congress or artificial insemination of some sort can conceive issue.
As to Russ Davis's point about what God thinks about the issue: of course, we care. However, a Gay Marriage argument based on Scripture has almost no chance of persuading courts. So, we have to come up with arguments that restate the obvious (that marriage always has been and should be between a man and a woman) in a way that even an amoral court should understand. That is the awful truth: the current prevalent interpretation of the First Amendment forces folks to ignore accepted morality--indeed, any morality at all--in coming up with arguments.
I think it is bizarre that we are even considering "Gay Marriage." Can you imagine what the reaction of the "boys" who fought World War Two would have been if President Roosevelt had told them on the Night of the Normandy Invasion that they were fighting to ensure the right of their (male) bunkmates to marry them or if they had impregnated female sweethearts at home, so that the girl could abort the baby if she wanted to? What a battle cry: "we're fighting for the land of the free to abort and the home of the gay!"
"How does state recognition of same-sex marriage impede either goal? I suspect you mean to say that same-sex marriage is IRRELEVANT to those goals."
It is not irrelevant to those goals. Gay Marriage is inconsistent with those goals. There can be no faithful marriage of the parents of issue when a male marries a male because the siring male would have to go outside the "marital close" to propagate. Only a male and a female joining together in some gestational process be it congress or artificial insemination of some sort can conceive issue.
As to Russ Davis's point about what God thinks about the issue: of course, we care. However, a Gay Marriage argument based on Scripture has almost no chance of persuading courts. So, we have to come up with arguments that restate the obvious (that marriage always has been and should be between a man and a woman) in a way that even an amoral court should understand. That is the awful truth: the current prevalent interpretation of the First Amendment forces folks to ignore accepted morality--indeed, any morality at all--in coming up with arguments.
I think it is bizarre that we are even considering "Gay Marriage." Can you imagine what the reaction of the "boys" who fought World War Two would have been if President Roosevelt had told them on the Night of the Normandy Invasion that they were fighting to ensure the right of their (male) bunkmates to marry them or if they had impregnated female sweethearts at home, so that the girl could abort the baby if she wanted to? What a battle cry: "we're fighting for the land of the free to abort and the home of the gay!"
12.7.2012 | 4:31pm
johnny says:
I'm sorry I just find this argument absurd and self-contradictory.
A group of people can claim a law denies equal protection, but only as long as legislators ignore them completely?
Here, we thought the EQC means that eqaulity cant be put to a vote.
But it turns out, silly us: The moment my equality is brought to a vote, that proves i don't have a claim - even if the vote does away with my claim to equality!
What a situation! If we want to prove we have been denied equal protection, the very effort to gain equal protection, unless it fails at square one, proves we have no claim!
Only a republican could make this crap up
A group of people can claim a law denies equal protection, but only as long as legislators ignore them completely?
Here, we thought the EQC means that eqaulity cant be put to a vote.
But it turns out, silly us: The moment my equality is brought to a vote, that proves i don't have a claim - even if the vote does away with my claim to equality!
What a situation! If we want to prove we have been denied equal protection, the very effort to gain equal protection, unless it fails at square one, proves we have no claim!
Only a republican could make this crap up
12.7.2012 | 4:34pm
johnny says:
Stop bringing up child rearing. Are you going to deny marriage to infertile couples? Postmenopausal women? Those who do not wish to procreate?
Yeah, I didnt think so.
Yeah, I didnt think so.
12.8.2012 | 12:01am
John Howard says:
"Are you going to deny marriage to infertile couples? Postmenopausal women? Those who do not wish to procreate?"
No, but we should deny marriage to certain relationship types where procreation would be unethical and bad public policy to allow, such as brother and sister, mother and son. There has to be a "supportable basis" and it has to apply to everyone equally.
People should not be allowed to conceive offspring with someone of their same sex, they should be prohibited by federal law from attempting it.
No, but we should deny marriage to certain relationship types where procreation would be unethical and bad public policy to allow, such as brother and sister, mother and son. There has to be a "supportable basis" and it has to apply to everyone equally.
People should not be allowed to conceive offspring with someone of their same sex, they should be prohibited by federal law from attempting it.
12.8.2012 | 2:43am
Ricky says:
Anyone who things SCOTUS will uphold discrimination against gay and lesbian couples is sorely mistaken. You've got to be kidding. Do you really think that the majority of the court will rule in favor of what is obviously discriminating against a group of people? Anti-gay laws such as DOMA, DADT and Proposition 8 are specifically targeting gays and lesbians for no reason other than prejudice, person and religious beliefs. There is no way to get around that. Any other attempt to justify discrimination is just grasping at straws. To think that SCOTUS will make the same mistake that they did previously (permitting discrimination against blacks) is really not thinking this through. Any intelligent analysis of court history and a recognition of the OVER 25 federal judges that have ruled against anti-gay laws clearly reveals that SCOTUS will not even be tempted to uphold discrimination against gays. At best (for those who want to discriminate against gays and lesbians), SCOTUS will make a narrow ruling so that they don't make a massive change across the country at one time. However, I hope that they don't fear such a thing.... and that they do the right think. Anti-gay laws are discriminatory, hateful, judgmental and completely contrary the principles of the US Constitution and the guarantees within it.
12.8.2012 | 2:47am
Adam Baum says:
"Only a republican could make this crap up "
"But it turns out, silly us: The moment my equality is brought to a vote, that proves i don't have a claim - even if the vote does away with my claim to equality!"
That is really incoherent, I see why you refer to "crap".
"But it turns out, silly us: The moment my equality is brought to a vote, that proves i don't have a claim - even if the vote does away with my claim to equality!"
That is really incoherent, I see why you refer to "crap".
12.8.2012 | 4:04am
Micha Elyi says:
Stop bringing up child rearing. Are you going to deny marriage to infertile couples?
--johnny (4:34pm)
The definition of infertility that doctors use is based on a history of failed outcomes of repeated sexual intercourse between the couple. How you morally require that of couples before marriage is quite a puzzle. And you still couldn't prove scientifically* the couple could never conceive. Contrary to popular folk sciency belief, there is no reliable laboratory test for infertility as there is for pregnancy or AIDS infection.
Please explain how you propose the State shall invade people's privacy to test their infertility prior to marriage. Keep in mind that court precedents that strike down laws forbidding sales of contraceptives, the practice of sodomy and elective abortion rest on claims to privacy.
Also, explain why there's no rational basis for the State to simply presume heterosexual couples are fertile.
Postmenopausal women?
In addition to all the problems with your attempt to grasp at infertility as a way to shut up those with a view contrary to your own, you have added to your burdens the problem of forming a bright-line legal definition of "postmenopausal". That will be difficult because women are not all alike. They experience menopause in many different ways. Rarely does their fertility come to a sharp, sudden and permanent halt.
Those who do not wish to procreate?
Offhand, one can see several reasons the State is reluctant to establish such a criteria for denying its recognition of a marriage. Consider the State's inability to read minds. Consider people's ability to change their minds. Consider privacy.
*Science was invented by Catholic churchmen. The scientific method was first described in writing by a priest, Robert Grosseteste (ca. 1168–1253). He was later made Bishop of Lincoln, England.
--johnny (4:34pm)
The definition of infertility that doctors use is based on a history of failed outcomes of repeated sexual intercourse between the couple. How you morally require that of couples before marriage is quite a puzzle. And you still couldn't prove scientifically* the couple could never conceive. Contrary to popular folk sciency belief, there is no reliable laboratory test for infertility as there is for pregnancy or AIDS infection.
Please explain how you propose the State shall invade people's privacy to test their infertility prior to marriage. Keep in mind that court precedents that strike down laws forbidding sales of contraceptives, the practice of sodomy and elective abortion rest on claims to privacy.
Also, explain why there's no rational basis for the State to simply presume heterosexual couples are fertile.
Postmenopausal women?
In addition to all the problems with your attempt to grasp at infertility as a way to shut up those with a view contrary to your own, you have added to your burdens the problem of forming a bright-line legal definition of "postmenopausal". That will be difficult because women are not all alike. They experience menopause in many different ways. Rarely does their fertility come to a sharp, sudden and permanent halt.
Those who do not wish to procreate?
Offhand, one can see several reasons the State is reluctant to establish such a criteria for denying its recognition of a marriage. Consider the State's inability to read minds. Consider people's ability to change their minds. Consider privacy.
*Science was invented by Catholic churchmen. The scientific method was first described in writing by a priest, Robert Grosseteste (ca. 1168–1253). He was later made Bishop of Lincoln, England.
12.8.2012 | 5:25am
Michael PS says:
Johnny
TIn regard to marriage, persons of different sex, and the 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
Any attempt to establish, in advance, which opposite-sex couples will not breed (or adopt) would be burdensome, intrusive and litigious. Laws are made for the general case.
TIn regard to marriage, persons of different sex, and the 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
Any attempt to establish, in advance, which opposite-sex couples will not breed (or adopt) would be burdensome, intrusive and litigious. Laws are made for the general case.
12.8.2012 | 12:18pm
john howard says:
Michael PS and Micha Elyi - same-sex couples can try to procreate together, but it is unethical. It's the same as with a brother and sister - they might or might not be fertile and might or might not want to conceive, but all that matters is that it would be unethical and so we don't allow it. Marriage always allows procreation, it never requires it. Same-sex couples should not be allowed to procreate. A simple federal law that prohibits creating a human being by any means other than joining the sperm of a man and the egg of a woman would resolve the marriage debate, please join me in calling for that law and ending same-sex marriage and stopping the abuse of children teaching them that it may be possible to reproduce as either sex someday.
12.8.2012 | 12:39pm
patricksarsfield says:
Michael PS is precisely right in his response to johnny's bizarre argument that the marriage issue has nothing to do with child-rearing. Sure, there are some opposite sex couples that cannot or will not have children for a number of reasons, but the state has no business getting involved in deciding which those couples are. That is a question of a right to marital privacy that is even older than the Bill of Rights (Griswold v Connecticut, 381 US at 486). The USSC in Griswold struck down the Connecticut Contraception Prohibition on the undeniable grounds that there is a privacy right in marriage that is older than the US or its Constitution. That "marital privacy" right prevents the US or the states from deciding among those opposite sex couples which can marry and which that cannot, but it does not stand in the way of laws that prevent same sex couples from marrying. Same sex couples were not allowed to marry before the Bill of Rights and thus had no prior existent right to privacy. Moreover, the Bill of Rights says nothing about SSCs.
12.8.2012 | 2:10pm
Fitzgerald says:
“Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.”
This quote is from both Loving v Virginia court quoting the precedent of Skinner v. Oklahoma.
Obviously the fundemental right to marriage has everything to do with procreation.. It is the reason marriage has been declared a fundemenatal right. It is the right to mary & form a family. The socital interest in marriage is predicated on responsible reproduction as understood in family formation. Not simply reproduction (a system designed to simply reproduce the population at adequate numbers would look quite different) Rather it is family formation in light of reproductive capactity.
The Supreme Court case precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942) and Baker v Nelson..
This is well established in case law and universally recognized by attorneys on both sides.
As the New York State Supreme Court noted in Hernadez v Robles -
“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”
The Supreme Court case precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942) and Baker v Nelson..
As the New York State Supreme Court noted in Hernadez v Robles - “To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”5
This quote is from both Loving v Virginia court quoting the precedent of Skinner v. Oklahoma.
Obviously the fundemental right to marriage has everything to do with procreation.. It is the reason marriage has been declared a fundemenatal right. It is the right to mary & form a family. The socital interest in marriage is predicated on responsible reproduction as understood in family formation. Not simply reproduction (a system designed to simply reproduce the population at adequate numbers would look quite different) Rather it is family formation in light of reproductive capactity.
The Supreme Court case precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942) and Baker v Nelson..
This is well established in case law and universally recognized by attorneys on both sides.
As the New York State Supreme Court noted in Hernadez v Robles -
“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”
The Supreme Court case precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942) and Baker v Nelson..
As the New York State Supreme Court noted in Hernadez v Robles - “To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”5
12.9.2012 | 7:39am
Michael PS says:
John Howard
I, for one, favour the restriction on assisted reproduction for married couples, embodied in the French Code of Public Health that assisted reproduction may only be used "to remedy infertility whose pathological nature has been medically diagnosed" and that the couple must both be alive and of childbearing age."
Similarly, surrogate gestation offends against the maxim of the Civil Law that only things in trade may be the subject of a contract. Such agreements have been held to offend against the ethical principles enshrined in the laws of France, particularly the prohibition against making children the subject and source of a transaction.
I, for one, favour the restriction on assisted reproduction for married couples, embodied in the French Code of Public Health that assisted reproduction may only be used "to remedy infertility whose pathological nature has been medically diagnosed" and that the couple must both be alive and of childbearing age."
Similarly, surrogate gestation offends against the maxim of the Civil Law that only things in trade may be the subject of a contract. Such agreements have been held to offend against the ethical principles enshrined in the laws of France, particularly the prohibition against making children the subject and source of a transaction.
12.9.2012 | 2:16pm
John Howard says:
That sounds great! So does it prohibit gamete donation? I can't tell. Presumably they mean the couple who are providing the gametes must both be alive and of childbearing age, and will be the legal parents and care for their child.
Would you say the French Code also prohibits attempting to use stem cell derived gametes from a same-sex couple or genetically modified gametes?
Would you say the French Code also prohibits attempting to use stem cell derived gametes from a same-sex couple or genetically modified gametes?
12.10.2012 | 4:25am
Michael PS says:
John Howard
The Civil Code provides that “The human body, its elements and its products may not form the subject of a patrimonial right.” (Art 16-1), that “Agreements that have the effect of bestowing a patrimonial value to the human body, its elements or products are void.” (Art 16-5) and that “All agreements relating to procreation or gestation on account of a third party are void.” (Art 16-7)
Thus, human gametes cannot be the subject of ownership or of contract. They are “res extra commercium” [things outside commerce]
One also has the catch-all provision of Art 1128 – “Only things in commerce may be the subject of a transaction.”
As the infertility of same-sex couples is not of a “pathological nature,” but natural, the treatments you describe would conflict with the Code of Public Health, already cited.
The Civil Code provides that “The human body, its elements and its products may not form the subject of a patrimonial right.” (Art 16-1), that “Agreements that have the effect of bestowing a patrimonial value to the human body, its elements or products are void.” (Art 16-5) and that “All agreements relating to procreation or gestation on account of a third party are void.” (Art 16-7)
Thus, human gametes cannot be the subject of ownership or of contract. They are “res extra commercium” [things outside commerce]
One also has the catch-all provision of Art 1128 – “Only things in commerce may be the subject of a transaction.”
As the infertility of same-sex couples is not of a “pathological nature,” but natural, the treatments you describe would conflict with the Code of Public Health, already cited.
12.10.2012 | 11:45am
John Howard says:
That's good. I think the American egg and sperm law should be more explicit and literal in prohibiting attempting to make a child by any means other than joining the sperm of a living man and the egg of a living woman. That way it explicitly makes a distinction in the rights of same-sex and both sex couples. And marriage needs to be explicitly defined with a general law as approving and allowing the couple to conceive offspring of their own genes.
That won't stop gamete brokers, but I think that the US isn't ready for that.
That won't stop gamete brokers, but I think that the US isn't ready for that.
12.10.2012 | 3:30pm
Ken Zaretzke says:
The "enlightened" members of the Supreme Court (the four liberals plus
possibly Justice Kennedy) are caught between a rock and a hard place,
whether they know it or not. A pro-SSM decision presumably will have to
be based on either the equal protection clause or substantive due process,
a.k.a. liberty. The first of these presents a serious inconsistency problem.
Lesbian couples can procreate via cloning, with the offspring having onehalf
the DNA of each partner, just as in real reproduction. Male homosexual
couples lack this ability. Men don’t have wombs--a surrogate mother or an
artificial womb is a “simulation” of something that for men exists only in
the way unicorns exist, as something completely imaginary and biologically
fantastical--and therefore men can’t procreate in any meaningful sense of
the term, not even (unlike lesbians) with the aid of advanced reproductive
technology.
So in order for the principle of equal protection to apply to gay
couples in the way it putatively does to lesbian couples, the supporters of
same-sex marriage must insist that procreation is totally irrelevant to
marriage--not just unnecessary as a criterion of marriage, but downright
irrelevant. That is radical in the way it redefines marriage, but it seems to me to also be irrational. Procreation cannot in any remotely plausible
sense be said to have *nothing* to do with marriage. Roe v. Wade, by
comparison to such an equality-based decision, will seem almost
Socratic.
A liberty rather than equality basis for same-sex marriage presents less
immediately insurmountable problems--but not less insurmountable in the
long run. The power of judicial review is such that overt juridical
irrationality must be avoided at all costs--judicial legitimacy and social
stability are at stake. The problem is that while a liberty basis for same-sex
marriage would not be irrational, it will be unreasonable in the sense of
being constitutionally and culturally dangerous. If the Court bases a pro-
SSM decision on liberty, that will guarantee a direct and permanent conflict
with the “first freedom,” religious liberty. So fundamental a conflict over
the meaning and extent of liberty will more likely than not (because of the
correlation of ideological forces and the depleted cultural capital of
Christian civilization) end with the undermining of liberty as a moral ideal
and political norm.
There can be no enlightened-morality “new birth of freedom” on the 150th
anniversary of the Battle of Gettysburg--an anniversary that coincides with
the end of this Supreme Court term. The liberal-leaning justices must resist
the temptation of deceiving themselves about that.
possibly Justice Kennedy) are caught between a rock and a hard place,
whether they know it or not. A pro-SSM decision presumably will have to
be based on either the equal protection clause or substantive due process,
a.k.a. liberty. The first of these presents a serious inconsistency problem.
Lesbian couples can procreate via cloning, with the offspring having onehalf
the DNA of each partner, just as in real reproduction. Male homosexual
couples lack this ability. Men don’t have wombs--a surrogate mother or an
artificial womb is a “simulation” of something that for men exists only in
the way unicorns exist, as something completely imaginary and biologically
fantastical--and therefore men can’t procreate in any meaningful sense of
the term, not even (unlike lesbians) with the aid of advanced reproductive
technology.
So in order for the principle of equal protection to apply to gay
couples in the way it putatively does to lesbian couples, the supporters of
same-sex marriage must insist that procreation is totally irrelevant to
marriage--not just unnecessary as a criterion of marriage, but downright
irrelevant. That is radical in the way it redefines marriage, but it seems to me to also be irrational. Procreation cannot in any remotely plausible
sense be said to have *nothing* to do with marriage. Roe v. Wade, by
comparison to such an equality-based decision, will seem almost
Socratic.
A liberty rather than equality basis for same-sex marriage presents less
immediately insurmountable problems--but not less insurmountable in the
long run. The power of judicial review is such that overt juridical
irrationality must be avoided at all costs--judicial legitimacy and social
stability are at stake. The problem is that while a liberty basis for same-sex
marriage would not be irrational, it will be unreasonable in the sense of
being constitutionally and culturally dangerous. If the Court bases a pro-
SSM decision on liberty, that will guarantee a direct and permanent conflict
with the “first freedom,” religious liberty. So fundamental a conflict over
the meaning and extent of liberty will more likely than not (because of the
correlation of ideological forces and the depleted cultural capital of
Christian civilization) end with the undermining of liberty as a moral ideal
and political norm.
There can be no enlightened-morality “new birth of freedom” on the 150th
anniversary of the Battle of Gettysburg--an anniversary that coincides with
the end of this Supreme Court term. The liberal-leaning justices must resist
the temptation of deceiving themselves about that.
12.13.2012 | 2:46am
Jack Greeson says:
The most common religious argument against same-sex marriage revolves around scripture, which many faith communities believe came directly from the mouth of God, and they interpret scripture to forbid homosexuality, and by extension, same-sex marriage. The most frequently quoted piece of scripture to meet this end comes from Leviticus 18:22, cited from the New International Version Classic Reference Bible, which says "Do not lie with a man as one lies with a woman; that is detestable" (1988, 133). For many religious groups, this is the beginning and the end of the discussion. In this one statement, God declares homosexuality to be a sin, and therefore no argument over it need occur.
12.14.2012 | 1:47pm
N.D. says:
Since it is true that every human person, male or female, has the inherent Right to be treated with Dignity and Respect, The State does not have the power to condone or affirm any sexual act that demeans our inherent Dignity as human persons.
12.14.2012 | 2:03pm
N.D. says:
Although it is a self-evident truth that procreation is necessary for the posterity and prosperity of this Nation and the World, there is nothing that The Supreme Court can say that can justify the affirmation of or condoning of engaging in same-sex sexual acts or any sexual act that demeans the inherent personal and relational essence of the human person and call it Good and thus worthy of protection.
