Tuesday, August 19, 2008

Federalist Society sponsors good debate on same sex marriage

I admit to having a soft spot for my lefty friend Illusory Tenant even as I am troubled by his cattiness toward people for whom I have a great deal of respect. He writes on an interesting on-line debate sponsored by the Federalist Society on the issue of same sex marriage, but misses, I am afraid, the point made by the principal opponent of same sex marriage. It is the cavalier dismissal of what she has to say as incomprehensible and "funny" that prompts me to comment.

The debater in question, Amy Wax, is a lawyer, physician and rather prominent and well published legal scholar at Penn. That doesn't mean that what she says is right. But it does suggest that it be taken seriously.

I have been in a few of these same sex marriage debates and I can't say that she makes the best case that I have heard, but she does make some important points - one of which is not often made as explicitly as she makes it and is interesting enough to linger over.

One of the reasons that opponents and proponents of same sex marriage pass each other in the night is that proponents often (not always) have - or at least profess to have - a rather "thin" view of social institutions, minimizing the extent to which they shape behavior and establish what is and is not normative, even if those standards are not always observed.

Wax is concerned with the breakdown in conjugal marriage, hence her reference to the rise of "multi-partner relationships" (by which she means both infidelity and serial monogamy) and the harm that it has caused, particularly in inner city and low income communities. She doesn't "blame' same sex marriage for this, but she is going to evaluate the case for it in light of this. Will it ameliorate, aggravate or have no impact on the weakened institution of marriage?

In assessing this, one of the things that she is concerned about is the impact of same sex marriage on the norms of marriage. One of the norms of marriage is monogamy and fidelity. There are "open marriages" among heterosexuals, but the overwhelming evidence is that it doesn't work. Even if men and women don't always abide by this norm, it is the standard. It is the thing that is expected and which ought to be the goal.

She is concerned, then, about expanding marriage to a set of relationships - those between male homosexuals - in which that norm is, not simply breached, but, for a majority of those involved, rejected as a matter of principle.

Andrew Koppelman and Dale Carpenter, both able advocates of same sex marriage, (I assign a paper on the topic by Koppelman in my Law & Theology seminar), do an able job of trying to respond to her concern, but don't really deny her premise, i.e., that gay men, even in a committed relationship, have a different attitude toward sexual monogamy. She argues - and they don't deny - that the problem is not that gay men, being human as all of us, don't always live up to the norm, but that they don't think it ought to be a norm.

Koppelman and Carpenter argue that lesbians are notoriously monogamous and that there is no reason to believe that a small percentage of married men will have an impact on the behavior of heterosexual couples. Maybe they're right.

But one of the reasons they may not be is that same sex marriage is not just about - it may not even be primarily about - facilitating the relationships of individual couples. It is about what Koppelman has called the sanctification narrative, i.e., it is pursued not only for its instrumental value (i.e., tax bennies, fringes, etc.), but also for its expressive value. It communicates a message of the equivalence of homosexual and heterosexual relationships.

But that can't happen unless the rest of us are "taught" about same sex marriage and heterosexual marriage is no longer "privileged," thus, as one of the participants in the debate points out, California has gone to marriage licenses that list "partner one" and "partner two." To refer to "husband" and "wife" would be hetero-normative. Massachusetts and other states make a point of teaching children about all kinds of families, including those with two mommies or two daddies. Not to do so would to fail to honor diversity.

Thus, even if same sex marriage is legally recognized, it will remain important that social norms not mark it as a disfavored or "lesser" form of marriage. Under those circumstances, it is not at all clear to Wax that social norms developed for marriage between men and women can survive its redefinition to include same sex couples. Given the difficulty of monogamy, she argues, in a passage presented without context by IT, that she "just [doesn't] agree that gay men will keep their non-monogamy to themselves." It will, she says, "be known" and, since they are just as married as anyone else (a conclusion compelled by the sanctification narrative), the social norms of marriage are placed under additional pressure.


Seth Zlotocha said...

She is concerned, then, about expanding marriage to a set of relationships - those between male homosexuals - in which that norm is, not simply breached, but, for a majority of those involved, rejected as a matter of principle.

Just curious, do you know of any evidence to support this claim? If so, does it consider whether the percentage of gay men rejecting monogamy are even interested in getting married? And, if so, does it consider how those percentages -- i.e., gay men who reject monogamy and gay men who reject monogamy & still want to get married -- compare to heterosexual men who reject monogamy?

illusory tenant said...

What's so troubling? Of course I respect Prof. Wax's professional and academic credentials as much as the next person.

And I didn't say her argument was incomprehensible, that would be Prof. Koppelman who said he didn't know what the heck Prof. Wax's purportedly sociological assertions had to do with the legal questions.

Virtually every argument I have seen from those opposed to same-sex marriage focuses on the special characteristics of homosexual behavior.

My suspicion is that many of these arguments are driven by pure distaste for that behavior. Not being gay, it's distasteful to me too.

But what business is it of anybody's? So gay men are less monogamous than gay women. Men generally are less monogamous than women generally. That's not news.

If those are the controlling criteria, then one could just as easily derive from Prof. Wax's social science literature an argument that only women should be allowed to marry each other.

But Prof. Wax is trying to impose a statistical outlier on the rest of the population by way of intuitive leaps, as both Profs Carpenter and Koppelman rather deftly point out.

Dad29 said...

Her argument is three levels down from the main discussion.

The principal discussion will always be whether positive law should displace the law of nature.

PaulNoonan said...

1. If there is one thing that staight men like doing, it's emulating gay men. Oh, wait, that's not true at all. In fact, it's the opposite of what is true.

2. If homosexual marriage would harm straight marriage, who is at fault, the guys getting married, or the straight people who can no longer keep it togehter? Should homosexuals suffer for my benefit in this regard.

3. To Dadsly, nature creates gay people.

4. I am somewhat sympathetic to cultural arguments, however I thin the analysis of the likely outcome of homosexual marriage is a. completely bonkers, and b. not supported by any evidence in places where such institutions already exist.

More easily availabe divorce, without regard to whether it was a good idea or not, I can seeweakening marriage. It reduces the incentives to stay in a marriage and because of those weakend incentives, will draw people to get married who are less committed than they otehr wise would be. What incentives are present here? What would cause this transmission of infidelity from gay men to straight couples?

Absent any evidence or and compeling theory, sure individual rights should rule the day here, no?

Rick Esenberg said...

Just curious, do you know of any evidence to support this claim?

I've seen survey data that supports it although I don't have time to dig it up. What I find interesting is that neither Koppelman or Carpenter dispute her. Nor so SSM advocates like Andrew Sullivan although some argue that SSM would actually refine norms for male homosexual relationships.

As for how many men would want to be married, the early returns seem to be that lesbians are more interested and that supports Koppelman and Carpenter's argument about the numbers. But it's not clear to me that the numbers are what's important.

Men generally are less monogamous than women generally. That's not news.

Yes. I think that's why things are the way they are. The difference is that heterosexual men have a harder time indulging their tastes because women are reluctant to go along. As for women marrying women, tha wouldn't serve the social purpose of marriage which is to channel a potentially procreative relationship into a format that serves the raising of children while negotiating the differences in male and female sexuality.

Paul Noonan

It's not a question of "emulating" gay men. It's a matter of altering cultural norms. As for your final point, "[a]Absent any evidence or and compeling theory, sure individual rights should rule the day here, no?," that is at the crux of our diaagreement. We can't be sure of what will happen, so what is our taste for risk?

Anonymous said...

But it does suggest that it be taken seriously

Particularly the parts WRITTEN IN ALL CAPS.

Seth Zlotocha said...

I don't have time to dig it up.

Let us know when you get the time. After all, this isn't the first time you've written on this topic, and I imagine it won't be your last.

As for how many men would want to be married,

That's actually not what I asked. I asked about how many gay men who don't value monogamy would pursue marriage, and how that compares to heterosexual men.

But it's not clear to me that the numbers are what's important.

Why? If the issue is gay men entering into marriage w/o a concern for the traditional norms of that civil institution, why isn't it important to understand whether it's probable that would even happen?

PaulNoonan said...

It's not a question of "emulating" gay men. It's a matter of altering cultural norms.

That's not really enough. Anything new alters everything to some extent. Shouldn't you have some theory, preferably supported by evidence, that altering this cultural norm will have a a negative impact. What we know is that gay people are being denied a right held by straight people, to their detriment.

1. How exactly would altering this situation damage marriage as a whole.

2. If it does, why should gay people shoulder the burnden of going marriageless to keep straight people in line?

Anonymous said...

"She is concerned, then, about expanding marriage to a set of relationships - those between male homosexuals - in which that norm is, not simply breached, but, for a majority of those involved, rejected as a matter of principle."

While this is a common stereotype, it is not at all true. When you get a chance to look up your "source" for this misinformation, make sure "Paul Cameron" isn't listed among the authors ...

Anonymous said...

Should government force people to accept things that they're morally opposed to such as homosexual marriage?

Homosexuals are not the same as hetrosexuals.

Dad29 said...

Much more here:


Dad29 said...

Paul, God and parents "create" gay people, not Nature.

Close, but no banana. Further, and to the point, homosexuals suffer from a disorder.

Disorders in and of themselves are not disqualifiers for human activity; but the term 'marriage' has specific connotations in ALL societies.

Look it up.

Rick Esenberg said...

I'm going over my seminar materials tonight and I'll see if I find what I have in mind and if the author was Cameron. I would certainly be interested in any references which go the other way.

Paul Noonan

The theory, either from Wax' point on the value placed on monogamy (which I've never emphasized) or by reinforcing the notion that marriage exists to accommodate the desires of those who wish to couple, would be a further devaluation of the association between marriage and childrearing and the presumption that marriage is both exclusive and permanent. Remember no one intended or knew that no-fault divorce would have the impact it had.

Your reference to marriage as a "benefit" underscores my point. Marriage is not, in my view, a benefit. It is an institution designed to accomplish a particular purpose, i.e., to channel heterosexual relationships into a mode that will facilitate the raising of the children that they - and not same sex couples - may create. That not everyone who marries can or does have children doesn't change that. It simply reinforces the social norm.

Some proponents of same sex marriage argue that it would also reinforce the social norm, but I'm not so sure. It seems unlikely that mothers and fathers are intechangeable or that relationships between two men or two women are the same as those between a man and woman and thus served by the same set of rules and norms.

As for gay people "going without" marriage, you need to specify the harm in that and argue why much of that harm cannot be averted in other ways.

Anonymous said...

Wow you folks in Wisconsin really have a problem with SSM: I imagine you have a problem with gay people..... been the law here in California no longer a news item here....why don't you chill and spend some time in San Francisco....maybe wear a little flower in your hair....everybody who comes here no matter what the political leaning can't help but have a good time here...diversity and tolerance

Anonymous said...

Anony 7:20 . . . your point?

Seth Zlotocha said...

I would certainly be interested in any references which go the other way.

This recent study comes from the Journal of LGBT Issues in Counseling. Researchers from Penn State and NYU surveyed young gay and lesbian people, finding that over 90 percent of women and over 80 percent of men interviewed expected to be in a monogamous relationship after age 30 (82% and 61%, respectively, expected to prior to that age).

Though relatively limited in terms of scope -- 133 were interviewed and all were from NYC -- the focus on youth is important. As homosexuality has become more accepted, particularly among younger generations, there has been less of a need for gay/lesbian youth to segregate themselves socially and culturally. As this study suggests, this has led to a convergence of sexual and family values between wide majorities in the homosexual and heterosexual communities, which fits with what Andrew Sullivan described a few years ago as "the end of gay culture" (key section: "A gay child born today will grow up knowing that, in many parts of the world and in parts of the United States, gay couples can get married just as their parents did. From the very beginning of their gay lives, in other words, they will have internalized a sense of normality, of human potential, of self-worth--something that my generation never had and that previous generations would have found unimaginable. That shift in consciousness is as profound as it is irreversible.")

In the end, I happen to think that there are enough committed, monogamous gay and lesbian couples today -- young and old -- to warrant same-sex marriage now, and those who don't value monogamy aren't going to seek out marriage, anyway (certainly not more than uncommitted heterosexual couples, particularly considering the possibility of pregnancy that too often forces the commitments of marriage prematurely). But, before too long, there's going to be too little differentiation left to even warrant a debate.

Anonymous said...

anon 7:20

Tolerance and diversity? How about that event that is held in your city that mocks and denigrates Catholics, our pope, Christ being crucified etc. You know as well as I do that there would be no tolerance of a similar event mocking homosexuality (By the way,I believe that such an event would be wrong and hateful) Liberals such as yourself, embrace diversity and tolerance only when it is something that you agree with.
Put a flower in your hair, chill, and accept those who see things differently than you do

Anonymous said...

The Catholic Church has a dismal record on child abuse cases which was only exposed in the last decade; as a nurse this is a one strike you lose your license you are out; yet the church has long closed an eye and shifted the abusers around and at the same time states its view on gay relationships which it has aright to do as a religion ; I take issue with the churches hypocrisy. Wisconsin in the past three decades has become increasingly a gay unfriendly state. Professor Esenberg likes to visit topics relating to gay people which I find interesting because as it has been my experience that those who focus on gays often have a fear or self hatred within themselves on this matter. Gay people are a small minority in society who like most people want to be left alone and go on with their day to day lives as most people want. Gay people have long been reviled in American society yet I do not see this aspect covered by professor Esenberg perhaps he is too comfortable in his straight white legal world to see that.

Anonymous said...

here is an example of the hateful bigotry that gay people still face......


Anonymous said...

Professor I notice when this topic gets blogged the comments toward gays or homosexuals (on present and previous postings reference them as being disordered or evil. If racial minorities were referred to in this manner there would be an uproar especially with you being a professor of law at a Jesuit university.
I assume the former group to be fair game. Why has Milwukee struggled with its own diversity with intolerance.....what has changed from the 60s.

Anonymous said...

Some of the posters on this site have some sort of cognitive dissonance that prevents them from focusing on the issue under discussion.

Esenberg merely clarified the point of the SSM opponent that IT apparently missed or, at the least, gave very short shrift to.

Anony 7:20: Not much to say about Wax's argument, huh?

Anony 9:53: I missed the part where the Church's dismal record on child abuse cases was at issue here.

Anony 9:57: No one doubts that gays still face bigotry.

Anony 11:00: You and all those who equate the gay rights movement to the civil rights movement continue to display a willing ignorance of history.

Jim C. said...

I too would like to see the evidence. On what basis does this blog claim to know the principles held by a "majority" of gay men? (Or, in its preferred terminology: "male homosexuals.")

PaulNoonan said...

First of all, I’m pretty sure I have not referred to marriage as a benefit. I believe the only place I mentioned the word was when stating that gay people should not suffer for my benefit, which, in context, referred to the benefits I hypothetically receive from the existence and strength of the institution of marriage, and did not refer to marriage itself as a benefit.

Legally speaking, I view marriage as a contract between two individuals, and I view the right to get married as a subset of the right to enter into private contracts. I do not see marriage as some top-down bureaucratic institution designed by some person or entity to coerce us into behaving a certain way, and if I did, I would oppose it, not support it.

Individuals should be permitted to exercise these rights as they see fit without regards to what some vague notion of “society” thinks, absent harm to others of course. The prospect of some vague harm floating around in the air is insufficient to deny an individual right, or at least it should be. (Or should we outlaw carbon emissions, high density power lines, cell phones, red dye 40, etc.?)

And because I see marriage in contractual terms (who “designed” your institution, by the way?) this:

“It seems unlikely that mothers and fathers are intechangeable or that relationships between two men or two women are the same as those between a man and woman and thus served by the same set of rules and norms.”

is not much of an argument. Mothers and fathers, after all, are not interchangeable with other mothers and fathers. And surely, the group best equipped to decide which “rules and norms” suit them are the people themselves? (Absent harm to others, of course.)

I don’t believe the state has any business in marriage, however, if it is going to meddle it is required to provide equal protection (or we could go theway of privileges and immunities, if you prefer). It is ill-equipped to serve as moral arbiter, and quite likely to be incorrect if it attempts to do so. Moreover, it has no moral authority to do so.

I don’t know about you, but kids are only a portion of why I decided to get married. At least as important a reason is that I love my wife. Had the right to marry been denied me, I would not have taken it lying down. And if some opponent told me that I couldn’t get married because it would make those who were allowed to get married less likely to keep it in their pants, so to speak, I would not take that lying down. I would also have called that person names. And asked for a more detailed explanation of how my declarations of monogamy and exclusivity would lead to a breakdown of monogamy and exclusivity for others. I would then question their devotion to their spouses, and declare that, perhaps, they should not be the ones who are allowed to get married in the first place.

Oh, and Dadsly, it’s good to know that God creates disorders. Kind of mean though.

Steve said...

I would have also liked to see some evidence supporting the idea that gay men are less monogomous than lesbians or heterosexual couples. Is it possible that this claim was ignored because it's a stereotype not worthy of a response?

Also, I'm wondering if it's possible that this influence you speak of might rub the other way. If gay men truly are less monogomous, could that change once they have the opportunity to enter a lasting legal union? Isn't it possible that marriage is strong enough to withstand the dreaded "gay influence" you ever-so-nimbly dance around directly calling out?

John Foust said...

"... but the overwhelming evidence is that it doesn't work. Even if men and women don't always abide by this norm, it is the standard. It is the thing that is expected and which ought to be the goal."

And if we were talking about a free market, we'd want the government to get out of the way. It's like the Prof wants to direct the economy of the heart, and the commitment and affection of others.

I was talking with a friend from Ghana the other day. He thinks it's hilarious that a young man and a woman can meet at a bar and decide to get married on their own. "Without their families ever meeting each other until after the marriage, at the wedding reception? Without them deciding whether this marriage makes sense?"

Anonymous said...

If my son ultimately discloses that he's gay (no indication of that, at all, so far), and by that time SSM is, uh, routine, then he'd better be prepared to be nagged by his mom (it won't be me): "why aren't you married yet? I'm not getting any younger!"

Always consider the unintended consequences...

2fs said...

One of our brave anonymous commenters wrote: "Should government force people to accept things that they're morally opposed to such as homosexual marriage?"

What's your point? That government should never endorse anything that anyone anywhere might be morally opposed to? How could government do anything if that were the case? I think it's pretty clear that government quite often "forces" people to accept things they're morally opposed to - if by "forces people to accept" you mean "has laws that compel recognition." Plenty of people find the death penalty, or the war in Iraq, morally repugnant - yet the government "forces" them to accept those things by compelling such people to continue paying taxes, etc.

And of course, even limiting your argument: I find government's refusal to endorse gay marriages, while endorsing heterosexual marriages, morally objectionable. So when a state passes a law essentially declaring that gay marriage is prohibited in that state, I find that morally objectionable.

Short version: it's impossible for government to function w/o stepping on some people's toes morally, because there'll always be someone having moral objections to nearly any law, regulation, or position a government might take. So your position is no argument at all.

Anonymous said...

2f -

Your two examples are the Iraq war and normal marriage of why government should force people to accept something their morally opposed to.

We probably would not be in Iraq if the far left did not force us to be dependant on foreign oil. The lesson here is not to accept the far left idiotic policies because they go to ruining this country.

If you are offended by heterosexual marriage, you should try to get the government to drop its laws regarding it rather then trying to force people to accept something like homosexual marriage.

It appears that you are still wet behind the ears with some funny ideas about how you think the world should be.

John Foust said...

"... if the far left did not force us to be dependant on foreign oil."

Gosh, they're sneaky.

AnotherTosaVoter said...


With all due respect this just kind of rehashes your previous argument; and as Seth and Pul point out, there is little evidence for the assertions of that argument.

If promiscuous gay men don't want monogamy, then just like promiscuous straight men they won't marry, so the argument that letting promiscuous gay men marry will make us heteros more likely to cheat makes little sense.

I have another question. You keep referring to marriage as a social institution. As a social institution, we as a society do have the right to reform it over time, do we not? It's not like any social institution has remained static over time - remember that marriage itself has changed gradually from an economic arrangement to a religious arrangement to whatever it is we have today.

It's also the case that marriage laws are acts of government, which we also have the right to change and which rarely remain static over time.

Therefore, this argument that "it's a social institution and social institutions don't change" is rather weak and in fact inaccurate.

I'll also say again that you sound like a person yelling "stop" at history while not noticing that history has already passed you by: gay couples now can and do have children through a variety of means. If you're actually interested in the welfare of children, you're facing a choice of banning their procurement of children or providing gay parents the same social institution you claim is good for children of heterosexual parents.

In other words, if marriage is good for children of hetero parents, and gay parents are now having children, then why not extend the insitution to gay parents as well?

Otherwise be logically consistent and call for legal bans on gay adoption and surrogacy.

2fs said...

anonymous 7:22

Before you write comments, you should learn to read and to write. I never said I object to the state's endorsing heterosexual marriages, and I have no idea how you could read my comment that way. But then, you're the sort of person who imagines that "the far left" has any real power in this country, and that, even if it did, it's somehow responsible for our need for foreign oil...because, you know, it's the far left that's always compelled everyone to drive gas-guzzling SUVs and generally use energy as if it were infinite. Or are you operating under the delusion that there's tons and tons of oil under everyone's nose if only those baddies on the "far left" would let us have it, and then we'd be back to the days of fifty-cent gas forever and ever amen? If you are, I can't help you.

I can help you on the proper spelling of "they're" vs. "their," however. "They're" is a contraction for "they are"; "their" is the third-person plural possessive pronoun, indicating that something belongs to some "they." I'm sure it's only the far-left schools you went to that prevented you from learning that.

Anonymous said...

2f said -
“And of course, even limiting your argument: I find government's refusal to endorse gay marriages, while endorsing heterosexual marriages, morally objectionable”

Apparently, you wish to continue your childish arguments but you did say that you are offended that the government endorses heterosexual marriage. Please, most people will not agree that homosexuals are the same as heterosexuals. It is just as absurd to propose that any relationship is equal regardless of who is in it.

Let me ask you this. Are there any relationships that you’re morally opposed to?

2fs said...

Anonymous quoted me writing:
“And of course, even limiting your argument: I find government's refusal to endorse gay marriages, while endorsing heterosexual marriages, morally objectionable.”

Anon. thinks this sentence indicates that I am "offended that the government endorses heterosexual marriage." Anon. cannot read the English language.

Let me parse the phrase quoted above for you, Anon. (My apologies to everyone else here, who can read.) I'll start after the colon (a "colon," in this context, is the two dots one above the other and is not a biological reference). The phrase within the commas, "while endorsing heterosexual marriages," *modifies* the rest of the sentence. That is, it sets a condition under which the meaning of the rest of the sentence applies. That rest of the sentence (with the modifying phrase removed) reads: "I find government's refusal to endorse gay marriages morally objectionable." That sentence clearly states that what I object to is government's refusal to endorse *gay marriages*. In the sentence as originally written, I express no opinion as to whether government should or should not endorse heterosexual marriages. I only state that *since* government endorses heterosexual marriages, I find it morally objectionable that it does not also endorse gay marriages. The implication, then, is that I do not believe government should privilege one set of people where marriage is concerned.

Anyone who reads what I originally wrote as saying I object to government's endorsing heterosexual marriage is functionally illiterate. Sure, you can extract the phrase "I find ... heterosexual marriages ... morally objectionable" from that sentence - but I can also extract the phrase "if t rex is orally able" from it by selectively removing letters.

You wouldn't happen to be former Gov. Tommy Thompson, using that "Vanna White" veto power, would you?

You ask if there are relationships I'm morally opposed to. Do you mean sexual relationships? Yes. Sexual relationships should involve consenting adults. (I will leave aside various tricky issues, such as what counts as "sexual," what sort of relationships are appropriate for teens among themselves, whether a consensual sexual relationship between a 19-year-old and a 17-year-old is always wrong, etc.) This rules out, if you're wondering, pedophilia, bestiality, and necrophilia, just in case you thought I didn't have any problem with those. I do.

But to your final point: no, I don't think there's any relevant difference, as far as government is concerned, regarding a monogamous straight relationship, a monogamous gay relationship, or a monogamous lesbian relationship.

Frankly, I find it very odd indeed that any self-styled conservative would want the government peering into bedrooms to determine whether a particular person's choice of marital partner meets with the state's approval. You're welcome, as an individual, or on behalf of church or any other sort of non-governmental organization, to express your approval or disapproval - but the state should serve all its citizens equally, without prejudice, and it should have no opinion as to whether I wish to marry Christine or Christopher.

Anonymous said...

2f -

I'm glad that you agree that there are no equal rights argument for s.s.m. However, I may suggest that, you learn to deal with your anger issues because you come across as being overly temperamental.

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