Wednesday, March 01, 2006

The bashing has begun

Brain dead discussion of the marriage amendment has begun. Xoff thinks its gay bashing because ... well, just because. The constitution he says is supposed to give people "rights" as if "rights" were in and of themselves good. The more, the better. Watchdog Milwaukee says its about "hate." Soglin says the GOP is just being "neo-Nazi" again. (Now that's original.) Yada, yada, yada.

The problem with all of this is that proponents of same-sex marriage or of the modification of civil law in ways that might be beneficial to same-sex couples have been hoisted on the petard of judicial activism. Doyle and others who say that the amendment is unnecessary because same-sex marriage is already illegal are either disingenous or naive. Proponents are going to be able to argue that an amendment is necessary because a court may decide to impose same-sex marriage on the state as has happened in Massachusetts and almost happened in Hawai'i.

Proponents will be able to argue that the "second sentence" is necessary, in part, because it is also possible that courts will impose same-sex marriage in all but name as happened in Vermont.

I have some real questions about the amendment as a whole and about the second sentence in particular. But, as I posted below, there are serious issues around the recognition of same-sex relationships or the creation of a marriage-like status for them. There are ways in which same-sex relationships are the same, but there are also ways in which they are different, most notably the fact that they cannot result in the creation of children. Much of the rules, policies and social norms surrounding marriage arise directly or indirectly from that fact (whether or not all married couples do or even can have kids). Those rules, policies and norms are critical to society. The disassociation between having children and marriage over the past fifty years has had a devastating impact on children, most especially poor children.

There are reasons to be concerned that, taking an institution that has pretty much at all times and places been limited to opposite sex couples and extending it - in name or in fact - to same sex couples might change some of those rules, policies and social norms in ways that might work fine for same-sex couples but further weaken marriage.

Quite, frankly, I don't know about this amendment. But I do know that having this discussion is critically important, particularly for the poor folks and minorities that the left cares so much about and who have arguably been harmed by nothing more severely than they have been by the decline of marriage. Calling people names impedes that discussion. It doesn't advance it.


Seth Zlotocha said...

Rick, can you clarify how you see same sex marriages weakening the institution of marriage?

Also, since gay and lesbian couples are able to raise and--at least partially--create children, I'm not sure what your argument is about same sex legalized unions having detrimental impact on the "rules, policies and social norms surrounding marriage."

Plus, isn't your point about the negative effects of the disassociation of marriage and having children all the more reason to allow same sex couples with children (or those who would like to have children someday) to get married?

Rick Esenberg said...

I plan to blog this some more. But now I have to go and lead a class discussion about it. Maybe the law students will clarify it for me.

Briefly put, the argument is that the rules regarding things like the presumption of paternity and the assumption that spouses are interdependent (which really grows out of the notion that child rearing is going to financially disable one spouse or the other, usually the wife)leading, really, to all sorts of burdens as well as benefits won't work well for same-sex couples who will want to be relieved of them. This will affect the nature of the institution for heterosexual couples as well. The idea that same-sex couples who, for lack of a better word, bring in a third party to create a child, may want that third party (or that third party might demand) co-parent status threatens the "rule of two" as does the argument that there is nothing distinctive about marriage other than mutual affection and support. There is concern that gay marriage will weaken the presumption that it is ideal for children to be raised by their biological father and a mother, even if it is not always possible. Some people point to studies that show that the value and nature of sexual exclusivity tends to be differently by male same-sex couples and that this will put pressure on that as a legal and social norm.

I'm not yet sure what weight I place on these concerns and how they are best addressed. I do agree that if we are going to let same sex couples adopt that it is in the state's interest to encourage them to stay together although there is an argument that marriage is not as important in this regard because they will become parents intentionally in a way that heterosexual couples may not. This is related to the idea that marriage is a device for directing heterosexual relations - which can create children - into a context that is most conducive for raising them; something that is not necessary for relationships that cannot produce children.

latoya said...

I'm a Democratic voter, but I agree with Rick that the left has brought this mess on itself. Rather than using the democratic method of convincing legislatures, it has sought a short cut through the courts to gay marriage.

Suddenly a handful of liberal judges have discovered a right to same-sex marriage in laws that obviously contemplated no such thing. This is judicial activism at its worst, and it has backfired dramatically. Now constitutions will place tall barriers in the way of gradual change and experimentation.

The proposed constitutional amendment is flawed, in my view, but I and many other moderate Democrats will vote for it this November.

If the gay-rights movement had asked for no more than civil unions, it would have gradually prevailed in the more liberal states. But the movement got greedy and tried to sneak through radical social engineering by way of the courts. The majority in this state will slam the door shut on that agenda.

Seth Zlotocha said...


You're overstating the impact of the gay rights movement on the judicial decision of the supreme court in one east coast state whose laws on marriage are different than here in Wisconsin. There has never been an attempt in Wisconsin to allow for gay marriage through the courts since the Wisconsin law is very clear that marriage is defined in this state between a husband and a wife--the Massachusetts law was far more vague. The claim that Wisconsin judges will open the door for gay marriage from the bench without this amendment is nothing but a Republican scare tactic.

Gay rights advocates have tried for decades and are still trying to get a same sex civil union or marriage law passed through the legislative process in just about every state, but unfortunately to no avail so far. This amendment would bar legislative process from ever being a tool for same sex rights advocates to use in Wisconsin again.

Lastly, you may want to rethink voting for any constitutional amendment you think is flawed. We don't get to vote on these every two or four years like politicians who you may not agree with 100%.


You seem to be basing your concerns about same sex legalized unions on stereotypes about heterosexual and same sex relationships. There is no such thing as a monolithic relationship--same sex or heterosexual. Any assmuptions you can dream up about gay and lesbian couples apply to a significant number of heterosexual couples out there, too.

You'll find heterosexual couples who are interdependent in child-rearing just as you will find same sex couples like this. You'll find heterosexual couples who bring in a third party to create a child just like some same sex couples do. You'll find heterosexual couples who are raising a child who is not their biological child just like you will find same sex couples doing this. And sexual exclusivity is not dependent in the least on your sexual orientation.

But really most of what we're discussing here deals with parenting, not marriage. Same sex couples already have the right to parent in this state--and they'll continue to have that right even if this amendment passes.

What they won't have the right to do is ever (save an amendment repeal) form a legal union in the state of Wisconsin. So the debate here really shouldn't even be about whether to allow for gay legalized unions or not--it should be about whether or not to keep open the reasonable possibility that some day people in Wisconsin might.

If having a public discussion on legalizing same sex unions is important to people, then they really should be opposing this amendment because it ends that discussion before it ever can really begin.

Rick Esenberg said...


As I've said I'm not ready to endorse the amendment yet. I know I would endorse an amendment that says that nothing in the state constitution shall be constued to require same sex marriage or any equivalent status.

The problem for us all is that we have to deal with the political realities that are dealt us.

I want to think more about this. I just spent the early evening discussing this with a bunch of bright law students, then went to be reminded that "to dust I shall return." This leaves me in a humble mood.

I will say that, to me, the strongest arguments against gay marriage, advanced most prominently by Maggie Gallagher, don't really say that you can't have same sex unions that share certain attributes of traditional heterosexual relationships but that the justifications for marriage don't really apply to the run of same sex relationships, and that fact will create further pressure on the social and legal norms surrounding marriage.

For Gallagher (and I hope I am not misrepresenting her), marriage is about channeling heterosexual relationships into a context that is best suited to raise the children which may, intended or not, result from those relationships.

There is more. But right now my point is that allegations of homophobia and hatred are silly - and, I'd add, probably counterprioductive to your side. There are lots of people out there who know that they don't hate gay people and are nevertheless hesitant about gay marriage. Tell them that they are bigots and they are just as likely to throw you under the bus.

Billiam said...

Umm.. simple question. If Marriage is a "right" and not "privilege" granted by the State, why do you need a license?

Seth Zlotocha said...


I look forward to your future posts on the issue, but I still don't see the connection between parenting and a legalized state union, at least in the real world we inhabit today.


My guess is that requiring a marriage license from the state is for verification purposes as much as anything.

Besides, marriage isn't the only right that requires a license of some kind. This is also the case with owning a gun and peaceably assembling in many public places, both of which are rights.