Sunday, May 18, 2008

Same sex marriage reprised

My post on Friday about same-sex marriage drew some critical comments. I wrote here extensively on same sex marriage in 2006 and am not particularly interested in rehearsing that now. But I do have a few quick responses.

1. My argument is not based, as one reader sarcastically put it, that people will "turn homo." I never said that. My concern is that expanding marriage to accommodate a type of relationship for which it was not designed seems likely to change our understanding of what marriage is for and, subsequently, the rules and mores surrounding it. We have already had a great deal of that over the last fifty years and, while there have been good things about the legal and social changes that have affected marriage, it's decline as an institution has had devastating social consequences.

2. These changes would not come about because someone else's same sex marriage would affect their neighbor's heterosexual marriage. Your neighbor's divorce doesn't affect your marriage either, but no-fault divorce laws did come to affect the way in which we think about marriage. In a legal system that works through precedent and analogy, changes in one rule often lead to changes in another. This is one of the reasons that the fear that same sex marriage will lead to multi-partner marriages is not idle. Indeed, there are legal theorists who explicitly see same-sex marriage as a step in "deprivileging" marriage generally.

3. The analogy between anti-miscegenation laws and laws restricting marriage to a union of one man and one woman is flawed. It is a traditional move on the part of a group that believes itself to be dispossessed to argue that they are just like blacks. Such arguments are almost always wrong. Here, there is a world of difference in interpreting the equal protection clause of state and federal constitutions to prohibit racial discrimination and extending their reach to sexual orientation. They were quite clearly intended to apply to racial discrimination. That courts failed to apply them properly for many years doesn't change that.

They were clearly not intended to apply to sexual orientation. If judges take them to prohibit what they were intended to permit whenever they believe that a democratically enacted distinction is "unjust," we have an imperial judiciary. The only stopping point is are the personal predilections of the court and whatever sense of prudence a majority of justices have at any one time.

Even if you adopt - either for purposes of judicial interpretation or legislative interpretation - a methodology for recognizing accepted distinctions, sexual orientation doesn't fit well within traditional methodologies employed for that purpose. While we can argue whether sexual orientation is immutable. It seems to be less immutable than race or gender but more so than, say, political preference. My sense is that can be changed although not often and only with great - some would argue damaging - effort.

But lots of (even more) immutable characteristics form the basis for distinction in the law. Age, intelligence, disability and even gender are all permissible bases for distinction if they are pertinent to the distinction being drawn. Sexual orientation and gender are relevant to an institution that is designed to channel sexual relationships that are potentially procreative and which occur between genders that experience sexuality in different ways into a form that maximizes the prospect that any resulting children will be raised well and that the different sexualities of men and women will be accommodated.

4. It doesn't matter that not all married couples will or can have children. Marriage is not simply a tool to be taken up when children arise but a social model for the way in which sexual relationships between men and women are best conducted. That the model is overinclusive doesn't undermine it's rationale. In fact, I would be far more opposed to domestic partner laws for heterosexual couples that do not intend to have children than I am to same-sex marriage.

5. Nor does it matter that not all men and women have successful marriages or raise children well. The research is quite clear that children do best when they are raised by their own mother and father in low-conflict marriage. Not all marriages will work out this way and there are single parent and even same-sex couple households that may raise children well, but society has an interest in encouraging the family form that maximizes their chances even while acknowledging that all children will not be raised in this way.

6. The best argument against my view is that there simply won't be enough same sex marriages to matter. I did some research during the campaign to ratify the marriage amendment and it turns out that the number of same-sex couple households is very small and the number with children is not even a drop in a bucket. Of course, this cuts both ways. The absence of marriage for such a small number - to the extent it causes real problems - cannot be a social tragedy and can count for only so much when weighed against concerns about further deterioration in an essential social institution.

But law has expressive as well as instrumental functions. It is not clear that the impact of same sex marriage can be measured by the relatively small number of persons who enter into it.

7. This does not mean that I "always favor" "social engineering" over "individual liberty." First, I certainly don't advocate the criminalization of homosexual relationships. But redefining an institution that is created by the community based upon recent changes in social mores and a desire to appear "tolerant" strikes me as ill advised. This is particularly so given that many of the practical concerns of same sex couples can be addressed in other way.

8. While I am not interested in making arguments about whether homosexuality is a sin (I don't feel that I can make such a judgment), I don't believe that those who do are "haters" or "homophobes." Nor am I willing to say that society has no interest in holding up heterosexual relationships as normative, What I don't think that the law or culture should do is condemn or ostracize those who are gay or lesbian. Refusing to redefine an institution that has arisen for other purposes to include same sex relationships simply doesn't do that.

9. I think it's boring and intellectually lazy to respond to arguments like this by suggesting that those who make it are "really" just motivated by what one commenter calls the "ick" factor. First, the motivation of those who make them doesn't much matter. They either persuade or they do not. Second, while sleeping with men has never struck me as a fun thing to do (women, thankfully, seem to think otherwise) and, on a cerebral level, I am drawn to Roman Catholic theory about the value of complementary in sexual relationships, the "ick factor" is not particularly strong with me. I understand that others can experience the world differently than I do.

10. I'll get to the California case eventually.


apexcutter said...

Rick, a fine post. In your final ennumerated point you touch on something very important about arguments and those who make them: "the motivation of those who make them doesn't much matter. They either persuade or they do not."

This gets at what makes political discourse and, to many, involvement, so rotten in America today. No longer do people argue policy or viewpoint differences with a focus on the merits of the arguments. Instead, in the drive to achieve or maintain power, people ascribe unfavorable motives to their adversary. It has deeply poisoned political discourse.

Anonymous said...

Brilliant! Wonderful. Thank you for your comment and insight.

Peter Knobloch
Executive Director
Family Leader Foundation

Anonymous said...

the motivation of those who make them doesn't much matter

I suspect you might think differently if you were asked to beg the forbearance of, say, Scientologists for your civil rights.

Dad29 said...

Outstanding clarifications.

They will be ignored, of course.

Anonymous said...

I suggest you spend a month in San Francisco......49 square miles very densely populated.....very diverse....we get a lot of hits from Fox news etc....however SF is an example to the nation on tolerance. I left Milwaukee in 1981I am an alumnus of Marquette no regrets Milwaukee is a shadow of what is was in 1981

Dad29 said...

Yah, SanFran...

A high-school classmate of mine went to SanFran as a Jesuit in the late 1970's.

Died there of AIDS, too--in the mid-eighties--after quitting the Jebbies AND the Catholic church and going Episcopalian.

PaulNoonan said...

This post is very well-argued Rick, I wish I had read it before reading your post above.

I'd take umbrage with a few points (and of course, disagree over all).

First, I don't think you give the ick factor enough credit. It might be intellectually lazy to blame everyon'e resistance to gay marriage on the ick factor, but it's also at least somewhat accurate. Gay jokes and opposition to gay marriage often go hand in hand (it's not Adam and Steve, etc.)

Second, the slippery slope argument, especially regarding polygamy, I think is pretty hollow. Polygamy is ancient. It was the norm for a large chunk of human history. Wide-scale acceptance of homosexuality is, on the other hand, a more recent phenomenon, and still developing. I suspect that on a grand scale, it was far more likely that polygamy would lead to homosexual marriage than the opposite.

The other slippery slope problem I have is that marriage is more restrictive than is being single, and there are still consequences for divorce. It is hard for me to envision how adding a restrictive covenant to one set of people would liberalize an existing restrivtive covenenant.

Again, with polygamy I think your argument would be stronger. Ploygamy allows (typically) the man in the relationship greater freedom than in traditional marriage. Such is not the case with gay marriage.

Lastly, I think you still committ the common error of romanticizing the history of marriage. If we are relying on tradition as an argument, we must asknoweledge that marraige has often been polygamous, and commonly used as more of a property/family merging device than it has for stable family building.

If we are not going to rely on tradition/history, then we can use our brains and realize that some people are gay, that there is probably nothing to be done about that fact, and that perhaps gay people could also benefit from the stability that marriage offers.

illusory tenant said...

"a type of relationship for which [marriage] was not designed ..."

Who "designed" marriage?

AnotherTosaVoter said...

This is a fine post. Since it's directed towards me, let's have some fun!

#1: You said in the original post that, "Marriage is an institution with mores and legal characteristics that are rooted in the potentially procreative nature of heterosexual relationships..."

Procreation being the key word. But fair enough. The key point is that you yet again proclaim, "it's decline as an institution has had devastating social consequences." without explaining what expanding it to heterosexuals would do to contribute to this trend in a negative manner. I've never seen that proclamation explained.

#2. Slippery slope logical fallacy. If someone wants benefits applied to those relationships we'll have that debate.

Remember it's heteros who got the ball rolling down the slope on government-sponsored benefits.

#3. Gender is the central issue to this discussion - the gender of the two people being married. Though you may discriminate based on gender sometimes, why does it make sense to do so here?

You reiterate your preference for social engineering, to channel human sexual relations in a manner you see fit, in the last paragraph.

4. "...a social model for the way in which sexual relationships between men and women are best conducted."

Social engineering. And if it's a social model then society has the right to define it as they see fit.

5. I agree. Which means I have to ask: since it's obvious the "best way" isn't always the "best", why not have a secondary option that also works out well?

Keep the kids in foster care simply because you don't want to recognize the gay couple's "marriage" even though the married gay couple would be best?

Kids as pawns.

6. But neither you nor anyone else can explain how granting this benefit to a microscopic share of the population will continue to erode the institution among a different group of people - heteros. You simply proclaim it to be so.

7. You certainly are interested in social engineering for the purpose of channeling heterosexual relationships in a manner you see fit.

So we can change the law so that a homo couple can have the same benefits as us by getting the same license and forms we do, or we can make it so they have to go thru a number of legal hoops just so you don't have to define a word. Makes perfect sense.

8. We agree!

9. I'm sorry but all your other aguments are so thin that it just has to come down to this.

So anyone tell me, how would granting gays "marriage" help to further deteriorate marrage among heteros?

7th or 8th time now.


Fannie said...


I realize all the "comment action" is occurring in the post immediately above this one, but alas. It's always refreshing to see someone on the "other side" of this issue engage the topic respectfully.

I will address each of your points.

1. I'm glad that your concern over same-sex marriage is not that it will turn people "homo." :-) Rather, your general concern seems to be the "decline of the institution" of marriage and the attendant "devastating social consequences." Although you don't outright say so, your argument implies that you think same-sex marriage is that it will exacerbate the decline of the institution.

Essentially, such an argument is a pretty big prediction. Would you be willing to concede that? What I find is that the prediction is often presented as a foregone conclusion. That is troubling. For, as you say below (in 6), there may not be "enough same-sex marriages to matter." I think that's a pretty strong argument against the "same-sex marriage will definitely lead to the decline in the institution of marriage argument."

See, the thing that gets people called bigots, is that there are not similar drives to "fix" the factors that have ALREADY led to the decline in marriage. What I see, when I visit certain "marrige" and "family" groups is an obsessive focus on the same-sex marriage issue.

2. Same-sex marriage may come to change the way SOME people think about marriage. But it won't come to change the way others think about marriage. Many people already conceive of marriage as some variation of "a monogamous commitment between two people." Same-sex marriage won't change that.

3. It's odd to say that an analogy is "wrong." For by definition, as you know, an analogy looks at two phenomena and notes similarities and differences. OF COURSE there are differences between anti-miscegenation laws and anti-same-sex marriage laws (eg- race and sexual orientation are different characteristics). But, you have to admit, there are also similarities (both types of laws prohibit persons from marrying the person of their choice).

4. Of course the overinclusiveness in marriage law undermines your purported rationale of marriage!

For, as there is no universally accepted single definition of "marriage," the only definition of marriage that matters in this debate is the legal definition.

You vaguely state that marriage is a "social model for the way in which sexual relationships between men and women are best conducted." By this statement I assume that you are referring to the "marriage exists to promote responsible procreation" argument, correct?

In other words, even though the purpose of marriage exists to promote responsible procreation, the rationale of marriage is not undermined merely because heterosexual couples who are unable or unwilling to procreate are legally allowed to marry. To that I would say, yes, this overinclusiveness absolutely "dilutes" the rationale behind marriage. If marriage exists to promote responsible procreation, allowing infertile or willingly childless couples to marry is a special right granted to such couples while it is denied to other types of similarly-situated couples. No matter what you personally believe marriage to be, that overinclusiveness sends a statement that the "purpose" of marriage is "love" rather than some variation of "having and raising babies."

And further, it makes little sense to allow infertile couples who cannot conceive children together to marry while not allowing same-sex couples who cannot conceive children together to marry. What do you believe is the purpose of the discriminatory overinclusiveness in light of your rationale for marriage?

Interestingly, Illinois marriage law allows relatives to marry. The caveat? They are allowed to marry ONLY IF they can prove they are infertile. What more undermines the "responsible procreation" rationale for marriage than a law conditioning a couple's legal ability to marry on their incapability of having children?

Now, if you really do mean to say that the rationale for marriage is to promote the "best" sexual relationships between men and women that argument is easily dismissed. For, there you'd only be circularly saying "marriage can only exist between a man and a woman because only a man and a woman can get married." Is that really what you are saying?

But most importantly, isn't it less important what people think marriage is and more important what their policy reasons for including/excluding certain groups from the legal status of marriage.

5. Actually, the research is not "quite clear" on this issue as it relates to same-sex parenting so your claim "children do best when raised by their mother and father" is not accurate. Specifically, studies do show that children reared by a natural mother and father have the best outcomes when compared to single-parent families, adopted families, step families, and divorced families. None of these studies, however, have compared natural mother/father families to families headed by same-sex parents. That's a VERY important distinction and omission. In other words, the jury is still out on what the "best" family form is. And, at the same time, studies also show that children of same-sex parents turn out just fine.

6. Determining the harm that gay marriage will cause is essentially a ginormous prediction, as I already said. As I am not psychic, I will refrain from telling you how gay marriage will not harm society/family/children. The question is, when will those opposed to gay marriage stop treating their Great Harm prediction as absolute certainty?

7. The push for marriage equality is not based merely in a desire "to appear 'tolerant'." Rather, it's based on the idea that not allowing same-sex couples to have the same legal rights, benefits, and protections of marriage causes genuine, actual harm to same-sex couples and their children. In addition, referring to their unions as "domestic partnerships" or "civil unions" as opposed to "marriage" is, as the CA court states, tells gay Americans that they are second-class citizens. (If you haven't read the opinion yet, page 11 discusses this)

8. I agree that those who oppose gay rights are not automatically "haters" or "homophobes." I can concede that people may sincerely believe that "gay marriage" poses some dire threat to society/family/children and base their opposition to equality on that belief rather than on bigotry. Yet, I've also noticed that there's a strong correlation between bigotry and opposition to gay rights.

9. Ditto for the "ick factor." Not everyone who opposes gay rights does so because of the "ick factor" but the disgust is apparent in the writings and rantings of many anti-gay advocates who bemoan the "perversity," "disgustingness," and "vileness" of gay sex.

10. Have you read it yet? What do you think about the fact that under CA law, the state was already granting virtually the same benefits of marriage to same-sex couples yet calling same-sex unions "domestic partnerships"?

Chris VE said...

If the purpose of marriage is to create and promote procreation, should we disallow murderers, child molesters, and rapists? You can't seriously tell me that children raised in gay homes are worse off than the children of the aforementioned categories. Furthermore, arbitrarily singling out gay couples from the opportunity to marry is an equal protection violation. The law can't disallow homosexuals from marrying based only on the majority's disapproval for their actions.

Regarding the polygamy argument, it's baseless. Homosexuals merely want to be able to fully experience the human condition whereas polygamists make a concious decision to take on multiple spouses. Allowing people to marry the person that they are inherently attracted to is not the same issue as allowing people to marry people because of an active choice.

Brad said...

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