Monday, August 09, 2010

The Problem With Perry

Last week, over at Point of Law, I posted on the limitations of social science evidence in the context of Perry v. Schwarzenegger. Judge Walker's decision strikes me as an obstinate refusal to understand what the advocates of Proposition 8 were trying to tell him. Yes, the decision is 138 pages but it is full of question begging and high spotting. A column over the week end by lawprawf Nelson Lund puts it well:

The judge in this case thinks it was proved at trial that same-sex marriage will not amount to a sweeping social change. He thinks it is "beyond debate" that same-sex marriages will have no detrimental effects on the institution of marriage. Can anyone really believe that such things can be proved by witnesses in a courtroom?


Lund notes, that in Walker's view, a majority of Americans, including our President and Vice President, are in the grip of an irrationality that is tantamount to bigotry.

In today's New York Times, Ross Douthat summarizes what the debate is really about:

But if we just accept this shift, we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.

But based on Judge Walker’s logic — which suggests that any such distinction is bigoted and un-American — I don’t think a society that declares gay marriage to be a fundamental right will be capable of even entertaining this idea.


This makes same sex marriage a subject on which reasonable people can differ. The reductionism exhibited by Judge Walker obfuscates and coarsens our discourse.

47 comments:

Dad29 said...

Now our blackrobes arrogate to themselves the power to overturn Natural Law.

If I were a serious barrister, I would be VERY concerned about the permanence of the 'Rule of Law.' Clearly, some are doing their damndest to vitiate that Rule in the minds of the hoi polloi.

Anonymous said...

"And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different" Really? Why? This quote (and the professor's argument) is ipse dixit at best.

Regarding same-sex marriage, the professor concedes at Point of Law, "that there is enough data to draw any conclusions about its long term impact." Given that stance (along with his concession that "most academics who have devoted themselves to the study of gay and lesbian iss[u]es" conclude parents' gender is irrelevant to child development) perhaps the professor can explain why he would prefer to err on the side of denying equality to same sex couples.

Anonymous said...

In a world where pop stars' Vegas marriages last a matter of hours and young moms have Bristol Palin to look up to, the effect of same-sex marriage on our hallowed Western civilization is a matter of concern? Marriage's role in Western civilization is certainly debatable - what we recognize as marriage (gender equality (or close to it), monogamy, etc.) has hardly been the norm for most of history and I doubt seriously that anyone can suggest we should revert to the gender roles prevalent in, say, the 19th century. Since the definition of marriage and the spouses' roles within it has hardly been constant over the years I don't think it's at all clear that granting equal marriage rights to same sex couples will topple the institution.

I'd also like to point out that the overwhelming majority of research indicates that the number one indicator of a child's successful development is being wanted by the parents. Given the background checks, interviews, financial examinations, etc. that same sex couples have to endure before being allowed to raise a child and the complete lack of any oversight before a hetero couple conceives (thanks Bristol) isn't is only logical to allow gays to marry and adopt?

Anonymous said...

requires some public acknowledgment that heterosexual unions and gay relationships are different:
Really tell me Rick how do you know your relationship with your heterosexual wife is differant my same sex relationship of 23 years.

How do you know that???

Dad29 said...

what we recognize as marriage (gender equality (or close to it), monogamy, etc.) has hardly been the norm for most of history

Really?

So in which "history" do we find homosexual marriage?

John Foust said...

Dad29, I hear those histories are hidden in a special annex within the Vatican.

Anonymous said...

Rick,

You worry about the coarseness of our discourse, but if an argument is rife with prejudice and bigotry, then calling that out is the right thing to do. With regard to opposition to same-sex marriage, that seems to be the case. Supporters of same-sex marriage’s legal recognition do not have a burden to tip-toe around the obvious.

The argument against same-sex marriage is characterized by prejudices and bigotry because, one-by-one, all the “reasoned” objections have been shot down. Ross Douthat's comments are exemplary nonsense. Same-sex marriages do not devalue “lifelong heterosexual monogamy”. When Blacks fought for their equal rights, did that “devalue” the rights of whites? Of course not. When women fought for their vote, was that an attack on male enfranchisement? Of course not. When women and minorities fought to get equal treatment in the work place, in higher education or in law school, were those attacks on the work ethic; higher education or the legal profession? No, no, and no. All these were efforts to SHARE in the benefits and value of equal rights, the vote, and so forth. So why is the desire of gays and lesbians to SHARE in the institution of marriage by having their marriages legally recognized regarded as “an attack on traditional marriages”? It makes no sense. Douthat’s dog don’t hunt.

Same-sex marriage – at most – transforms marriage into the ideal of “lifelong sexual monogamy” which is an honorable and FAIR ideal. same-sex marriage does not require heterosexuals “giving up” anything more than ending Jim Crow required Whites to “give up”. Legal recognition of same-sex marriage will not change the “institution” of marriage except to make it more inclusive. The day after same-sex marriages are recognized, your marriage and mine will not be different; and marriage for our children and their will not be changed by it either.

I understand why opponents of same-sex marriage chafe at accusations of bigotry; but when reasonable people disagree about ANY subject, they base their disagreements on reasonable arguments about that subject. Merely because someone strongly believes something does not transform that belief into a reasonable position. Reasonable disagreements need reasons, not prejudices. Mere strong belief does not transform prejudice into reason.

So, if someone believes they are reasonably opposed to same-sex marriage, then they need to give the rest of us a reasonable basis for it. The closest you came in your post was Douthat writing that, “heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.”

Heterosexual unions and homosexual unions are, indeed, different; but so are unions between young couples and elderly couples, between couples with children and childless couples; between couples with one income-earner, those with two-income earners, and unions where one parent is serving in Afghanistan: all these and others not mentioned are “similar in emotional commitment, but distinct both in their challenges and their potential fruit.” Not all currently recognized heterosexual unions are the same, yet they are all treated by the law as the same and accorded the label “marriage”. What is missing is a rational reason or a legitimate state interest in putting homosexual unions outside this variegated group. This no one has provided, though not for lack of trying.

It is only fair to ask me for a reasonable basis for supporting recognition of same-sex marriage; it’s only fair. My reasons are simple: no one can show me any harm in doing so, and fairness is always preferable to unfairness. And as Anonymous at 12:00 pm points out, there are several kinds of perfectly legal heterosexual marriages that undermine marriage, yet I hear no one calling for their prohibition. Opposition to same-sex marriage has an aroma of bigotry about it.

sean s.

Anonymous said...

@Dad29;

No one is overturning Natural Law, only marriage law; these are not the same things. Clearly some people are “doing their damnedest to vitiate” the Rule of Law “in the minds of the “hoi polloi”; that is a good way to describe the OPPONENTS of same sex marriage: enemies of the Rule of Law which mandates equal protection for all citizens.

sean s.

Rick Esenberg said...

Sean

You're not engaging the arguments made by Douthat and others. These other marriages that all differ from another are, of course, gendered. Opponents argue that the gendered nature of marriage is an intrisic part of its definition because it is an institution designed to solve a set of problems presented by heterosexual attraction. It isn't simply that heterosexual relations can result in children, but that this fact has implications, whether by socialization or evolutionary psychology, for the ways in which men and women experience their sexuality. Anthropologists and psychologists have long noted the differing mating and reproductive strategies of men and women. These strategies are, of course, unconscious and we tend to conflate them with observations like "men are pigs." The mores and legal norms around marriage are responses to these sometimes conflicting strategies. This is why it doesn't really matter that heterosexual couples who can't or have no intention of reproducing can marry. These men and women will also experience their sexuality in accordance with, take your pick, centuries of socialization or centuries of adaptive evolution.

This is why the Loving analogy doesn't work. On this view, marriage has nothing to do with race but it has everything to do with gender. And, opponents continue, it is unlikely that one can change a gendered institution designed to manage problems that arise from heterosexual attraction to a nongendered institution without changing our public understanding of it.

Now, it could be that opponents are wrong. It is, I have always conceded, a Burkean argument - one that errs on the side of maintaining the status quo as opposed to risking unintended consequences. But it's not hard to understand and there is nothing "hateful" or "bigotted" about it.

Rick Esenberg said...

Anon 4:40

If you are literally referring to your personal situation, I suppose I can't. Anything that is human has infinite variations on an individual level. But I can generalize about relationships generally because men and women differ on matters relating to mating and reproduction and these differences are bound up with how they experience their sexuality and negotiate their intimate relationships.

Anonymous said...

Unless you have had some phenonmenological experience on this matter, I refute that you can make generalizations about same or opposite sex relationships.

AnotherTosaVoter said...

Dad, couple points:

One: There is no evidence that conservatives are opposed to judicial decisions that overturn referenda or legislatively-enacted laws when they agree with the decision. See: City of Milwaukee, mandatory sick leave, for example.

Two: When in history, before they were invented, was there building codes, womens' suffrage, democratic voting, representative democracy, a Senate, a House of Representatives, a City Council, laws against smoking, laws against speeding, legal protection for heterosexual marriage, laws against murder, or the ground rule double?

Explain in detail how these laws and rules and legal protections since either the big bang or the Genesis or whatever in theory started the universe. Because according to your logic, none of the above should exist.

Thanks.

AnotherTosaVoter said...

Rick, I'll let Glen Greenwald rip apart your preferred social engineering:

"They just can't misuse secular law to institutionalize those views or coerce others who don't accept them into having their legal rights restricted based on them. But if they're as right as they claim they are, they shouldn't need to coerce others into acceptance through legal discrimination. Their arguments should prevail on their own. The fact that they believe they will lose the debate without that legal coercion speaks volumes about how confident they actually are in the rightness and persuasiveness of their views."

There remains, as yet, no logical or even reasonable argument against granting gays the right to enjoy the same marriage benefits as you or I.

Speaking of which, have you started any drives to outlaw divorce or infidelity yet? I'll say it again: put your money where your mouth is and actually pursue a policy that would strengthen the instution.

Anonymous said...

"But if we just accept this shift, we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve."


It takes a certain amount of hubris for a member of the Two-Wives Club to use a quote like that, doesn't it? Sorry to re-open that debate, but you left yourself open to it.

Anonymous said...

Let's keep gays second the state has a vested interests of enforcing moral disapproval

Anonymous said...

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Anonymous said...

Rick;

Pt. 1

Since you ask me to “engage the arguments made by Douthat and others”, to comply I have to send you this lengthy and frank reply.

You and I exchanged many comments on this topic last year; you and other defenders of the status quo. I am and have for a long time engaged the arguments of people like Douthat, but in truth there is very little to engage with. It’s like trying to nail Jell-O to the wall. These arguments are so esoteric and theoretical that the only way to engage them is to dive through their murky abstractions, looking for whatever concreteness lies beneath them.

Even if I concede EVERY point you and Douthat make (which I don’t), none of these arguments, individually or in aggregate, explain why same-sex marriages should not be legally recognized.

So, let’s get to it.

You say that currently recognized marriages are “gendered”. “Gendered” means, according to my sources, “having or making gender-based distinctions.” Same sex marriages are gendered too, then. I suspect you mean something else; but I will not try to guess at your point.

You say that marriage “is an institution designed to solve a set of problems presented by heterosexual attraction.” What you don’t say is why that matters nor why this institution’s “design” is inapropos to homosexual attractions. It is not unusual when something designed for one-purpose turns out to be useful for other purposes. Do you need me to give examples?

Certainly same-sex couples think marriage is apropos to their situation, so what is the harm of letting them do so? Just as different-sex couples are allowed to work out their marital relations, same-sex couples can be allowed to do the same under the banner of “marriage”.

How would the institution’s “design” be compromised by extending it to same-sex marriages?

All the anthropological, sociological and psychological implications you cite point only to the likelihood that same-sex marriages will have some differences from different-sex marriages, but they do not indicate any social or psychological harms. We have already concluded (I think) that there are many different kinds of different-sex couples, each kind “similar in emotional commitment, but distinct both in their challenges and their potential fruit” as Douthat wrote. If differences among different-sex couples are tolerable, why are differences experienced by same-sex couples intolerable?

The soft-sciences do not demonstrate any tendency for same-sex marriages to harm different-sex marriages. Insignificant differences do not a rational reason make.

Pt. 2 to follow. sean s.

Anonymous said...

Pt. 2.

Rick;

You describe at length various things about how men and women experience their sexuality, but never connect these experiences to why same-sex marriages must be prohibited. Even if we concede that same-sex couples experience their sexuality differently than different-sex couples, what is it about these difference that sets same-sex couples apart? What sets them so apart that others cannot endure categorizing their relationship under the rubric of marriage?

In summary, you ask me to engage your arguments, but your arguments consist of a bouillabaisse of assertions about sexuality and marriage that never amount to a reason to prohibit same-sex marriage. None of these differences or distinctions point to a harm or even a significant effect on traditional marriages. None provide a rational reason I can see legitimizing the continued non-recognition of same-sex marriage.

You wrote that “marriage has everything to do with gender” which is only true because different-sex marriage is all the law recognizes. For now. You give no reason why this must not or cannot change, much less an argument for me to engage. Further, this is a circular argument: arguing that marriage must be limited to different-sex couples because marriage is limited to different-sex couples. The only way to engage such circularity is to call it out. Consider that done.

You express concern that same-sex marriage will change our public understanding of marriage. Supposing that the “public understanding” does change, you have not shown that this changed understanding would adversely impact anyone. Letting Jackie Robinson play for the Dodgers changed our understanding of Major League Baseball. Letting the Little Rock Nine into a previously segregated school changed our understanding of public education; letting women become doctors and lawyers changed our understanding of these professions. And yet baseball, and public schools and doctors and lawyers survived. You have not shown that THIS CHANGE would be different; no one has. How does one engage with such amorphous fears?

Finally, I have two replies to your Burkean argument.

First: your Burkean argument is not an argument against same-sex marriage, it’s a general argument against any and all social change. Second: the risk of unintended consequences attaches to the failure to act as well as to actions; especially when inaction occurs in a world where everything else is changing. Growth is change, and growth has unintended consequences; I doubt Edmund Burke opposed learning. Unintended consequences attaches to stubborn resistance to change, especially when it’s resistance for the sake of resistance.

Pt. 3 to follow. sean s.

Anonymous said...

Pt. 3

Rick,

Although opposition arguments are murky, I think I have identified the two keys to understanding it. The first key is your reflexive opposition to change; which I discussed immediately above. It is not an argument against same-sex marriage, it is an argument against any and all social change.

The second key is the phrase “institution of marriage”. You fret about it a lot. You have to because the dark truth is that same-sex marriage will NOT AFFECT OR CHANGE traditional marriages at all. Even after same-sex marriages are recognized, boys and girls will continue to fall in love for all the usual reasons. Men and women will continue to marry for all the usual reasons. Same-sex marriage will not change those at all; how could it? Heterosexual males and females are attracted to one another and marry without regard to whether a same-sex couple lives across the hall, across the street or across town. Falling in love and getting married for them has nothing to do with whether other, same-sex couples are falling in love too. I know, I’ve done it; with a same-sex couple living across the hall. LITERALLY.

23 years married, I’m still not even sure what “the institution of marriage” is. Where is their headquarters? Do they have a CEO? How do I contact them? I know they didn’t come to my wedding. We didn’t get their permission. They sent us no rule book; not even a brochure. Do you have the Institution’s email address?

Of course I am being facetious. The “institution of marriage” is nothing more than an abstraction; it is the sum of the norms and expectations about marriage. I think it is pretty much the same thing as the “public meaning of marriage” you occasionally refer to. As these norms and expectations apply to different-sex marriages (like mine), they will NOT CHANGE after same-sex marriages are recognized. They will simply be added to by additional norms and expectations for other, same-sex couples. As they apply to my marriage and yours, and to other different-sex marriages, NOTHING CHANGES. Neither you nor Douthat nor other opponents have EVER shown a reason to think they would.

What you have given is not “reasons” to oppose same-sex marriage, but a list of excuses, a menu for fretters: New things will exist! Change is bad! Yada yada yada. But you NEVER have given a causal mechanism: A causes B which damages marriage. NEVER. You worry about the abstract because at the concrete bottom, nothing that matters will change. Nothing. Marriage is not a zero-sum event. Different-sex couples already coexist happily with same-sex couples. Different-sex marriage can and will coexist happily with same-sex marriage. And the sun will still rise. There is MY argument. Engage it.

sean s.

Anonymous said...

Rick doesn't merely oppose allowing gay couples to marry; he is currently suing the state of WI because he opposes allowing them to even enter into paltry domestic partnerships.

Anonymous said...

This is too funny to ignore:

The Onion: ‎"A cap-and-trade system in which homosexual couples can buy marriage credits when heterosexual couples get divorced or die"

http://www.theonion.com/articles/proposition-8-overturned,17877/

sean s.

AnotherTosaVoter said...

sean:

Great post(s). I think a causal argument has been advanced. An incredibly weak one, but one just the same.

It goes something like this: gays don't value monogamy the way heterosexuals do (or, ought to). If gays get married, then they'll have lots of open marriages, and that will make open marriages acceptable, and heterosexuals will be more likely to agree to open marriages, and then marriage falls apart.

How this happens I have no idea, especially when there are probably nearly as many open heterosexual marriages as there are potential gay marriages.

Anonymous said...

Great points, TosaVoter.

Perhaps Charlie Sykes' second marriage was an "open marriage." Remember that Chuckles was shooting fireworks off on the beach in Shorewood while the Judge was at home taking care of the boys.

Anonymous said...

Should have also noted that Chuckles was hanging out with "Liz Woodhouse" instead of his second wife...

Anonymous said...

It goes something like this: gays don't value monogamy the way heterosexuals do (or, ought to)....

This despite the fact that most same-sex marriages are between women, who are more likely than hetero couples to remain monogamous...

Anonymous said...

We are one of the 18000 married before prop8 since
Our marriage two of our family members got divorced
Woops I forgot the 22 years we lived together but were unable to get married posed no threat to marriage but since then wow

AnotherTosaVoter said...

What I think I find weakest about the "protect marriage" crowd is that they feel they get to define marriage for the rest of us. They argue that marriage should create solid sexual, emotional, and financial relationships, preferably involving children; and that (falsely) it's always been like that. Hardly. For most of human history marriage was about property. Women were sold off by fathers to have lots of children to propagate the family, and in special cases to cement political alliances or gain power over territory. Roman men could kill their wives or children with no fear of punishment...Dad would apparently argue this should never have changed.

They also ignore that marriage is for some people about love, for some about money, or status, or loneliness, or desire for children. Some are solid, but in many (perhaps a majority) they create dysfunctional pairings that never should have been brought together. Ask Rick and his first wife, or Charlie Sykes and his first two wives, or Rush Limbaugh and his first three wives.

The other part I don't get, and Sean mentions it, is this fretting over relationships between heterosexuals. Gays aren't heterosexuals. They can't be held responsible for the behavior of heterosexuals. Forcing them through social convention to marry the opposite sex is, and this ought to be common sense, highly unlikely to create a stable marriage.

I have two kids. This whole argument is as if I have two of the same toy. I have let one kid play with it, but he often doesn't play with it very well. The other kid wants to play with the other toy, but I refuse to let him because the other boy won't play with it well. Does that make any sense? No Jimmy, I'm sorry, you cannot have the Thomas engine because your brother is throwing his. Allowing you to play with one would make him play with it even worse.

Um, what?

Clutch said...

Douthat breezily includes, and Esenberg blithely endorses, the idea that to allow same-sex marriage is to give up on the idea of "lifelong heterosexual monogamy".

That would be three claims about allegedly given-up-upon ideas, laid at the door of same-sex marriage: that marriage is lifelong, that it is heterosexual, and that it is monogamous.

The second claim has all the confidence to which a vacuous tautology is entitled. The first and third are so gloriously, incandescently fabricated that it is hard to see a good-faith attempt at engaging the issue, either personally or communicatively, in their display.

If Ross Douthat or Rick Esenberg thinks that same-sex marriage is worth singling out as significantly linked to some alleged socio-legal giving-up of the ideas that marriage is permanent and monogamous, then it's hard to believe they are rational agents with respect to this issue.

Divorce and extra-marital affairs are not artifacts of same-sex marriage. Slipping the blame for them onto gay people through a casual noun phrase is shameful. It'll play well with some crowds, of course -- no rationale is too paper-thin to act as a shield against well-founded accusations of sheer brute bigotry. But when you roll in that stuff, the smell will not wash off.

Anonymous said...

Procreation can only occur between one man and one woman. That stubborn fact doesn't mean that homosexuals can't have loving relationships, or that pedophile priests are okay, or that Charlie Sykes was a good husband, or that divorce should be outlawed, or that people who are infertile shouldn't be allowed to marry, etc. But it is a fact that society (e.g., millions of voters across the country and the overwhelming majority of their elected state and federal representatives) can use as a rational starting point for the legal definition of "marriage," as it has done throughout the history of this country, if not Western civilization itself.

Clutch said...

it is a fact that society... can use as a rational starting point for the legal definition of "marriage,"

No doubt. And since it is a starting point that manifestly tolerates indefinitely large numbers of marriages that are non-procreative both by antecedently known choice and by antecedently known biological necessity, choosing to deny the right only to those whose antecedently known non-procreativity is a function of their same-sex partnership is unmotivated, save by bigotry.

Anonymous said...

Referring to the vast majority of Americans as "bigots" isn't a very good way to persuade them to your point of view. But, then again, if you've got a judge like Vaughn Walker on your side, you can just impose your point of view on them.

Anonymous said...

"Vast majority"?

Not so fast.

AnotherTosaVoter said...

Anon 10:07 - if marriage is all about procreation, why are Senior Citizens permitted to marry?

Logic says if gays should not marry because they cannot procreate, we must also prohibit Seniors on the same grounds.

So I assume you've called your legislators demanding that marriage be denied when the woman is past menopause?

AnotherTosaVoter said...

Anon 8:12:

Appeal to popularity logical fallacy. Also, please explain what the federalist papers said about the value of a judiciary protecting against tyranny of the majority by overturning bad laws.

Hint: it was positive.

Anonymous said...

Looks like the Professor is walking away from this debate. It will be quite a challenge to him to refute all of the arguments made here by folks who see the winds of change which are blowing through our society.

A few years ago I would have caucused with those who oppose extending this civil right to gay people. Happily married for 30+ years, the parent of three heterosexual children, and without a gay relative on my side or my wife's side to the best of our knowledge, we didn't think much about the issue.

It is obvious, however, that the younger generation is going to change the law. Yes, we have a Constitutional amendment in Wisconsin, but it won't stand up for more than a decade, if that. The change is coming. It doesn't threaten my marriage or those of my children, and it will promote the same stability in relationships for gay people that marriage does for us "straights."

Anonymous said...

TosaVoter;

The causal argument you mentioned (at 5:18 pm) is a legal non-starter. It would fall on the twin horns of being both over-inclusive and under-inclusive. Prohibiting same-sex marriage to prevent “open marriages” would prohibit same-sex “closed” marriages (making it over-inclusive) and yet allow “open” different-sex marriages (making it under-inclusive).

sean s.

Anonymous said...

Anonymous at 10:17 pm.

Procreation is not and never has been what marriage is entirely about. So, using procreation as a starting point to prohibit same-sex marriage ceased to be a “rational starting point” years ago. Now it is merely a rationalization: an excuse.

More importantly, the question is not what marriage is “for” but what the ban on same-sex marriage is for. Even Rick and Douthat and others miss this point: in the legal process, the purposes of marriage itself are secondary to the question of what purpose the ban serves. Discussions about procreation and life-long monogamy are justifications for or definitions of marriage; but marriage does not need to be justified or defined; the ban on same-sex marriage is what needs to be justified.

This is why Rick’s arguments are so hard to engage: they are largely irrelevant. Many opponents to same-sex marriage object that in the Perry decision, J. Walker passed over or ignored many “arguments” supporters of Prop 8 advanced. These complaints don’t typically specify which complaint they think J. Walker should have paid more attention to which is another omission that makes their complaints hard to engage. More significantly, probably the arguments J. Walker ignored were these irrelevant and unnecessary “justifications” and “definitions” of marriage.

What marriage is “for” is off-topic. Justifying the ban on same-sex marriage is the central, unanswerable question.

sean s.

Anonymous said...

Anonymous at 8:12 am;

Another anonymous commentator at 8:21 am correctly challenged your insinuation that a “vast majority of Americans are “bigots”, but your point retains some validity. One cannot insult and persuade at the same time. Yet the truth is that bigotry, or at least prejudices, are the primary motivation for opposing legalized same-sex marriage. Dancing around that fact is not going to help persuade people to change their minds either.

The truth is, of course, that no one wants to be a bigot, that’s why it’s regarded as an insult. So it is necessary to show people that prejudice is at the bottom of this, and encourage people to reject these prejudices. And to remind people that even the best of us harbor prejudices, and can overcome them. This is why comparisons to racial and gender equality are helpful. Our ancestors had racial and gender prejudices; and yet we can still admire and love them and their memory.

Equal protection of the law is not merely a “point of view”; it is a cardinal principle of our nation. All Judge Walker did was pull back the curtain to reveal the truth: that opposition to same-sex marriage is built out of rationalizations on a foundation of prejudices and irrational fears. Legalized same-sex marriage is not an imposition on anyone and is an example of justice.

Anonymous said...

By the way, that anonymous comment at 5:53 was mine.

sean s.

Anonymous said...

Anonymous at 9:43 pm;

It does seem that public opinion is shifting rapidly in favor of same-sex marriage; that is good news but it’s not a reason to support same-sex marriage. That same-sex marriage “doesn't threaten my marriage or those of [your] children, and it will promote the same stability in relationships for gay people that marriage does for us ‘straights’” is the reason I support its legalization.

I don’t know if Rick’s walking away from this debate or not; Law School is starting soon and the move to the new building has thrown a wrench in many people’s plans. A lot of professors are behind in their preparations; so Rick’s very busy right now; that and his GAB lawsuit. Much, much too early to say he’s walking away.

sean s.

AnotherTosaVoter said...

sean:

Thank you for crystallizing a point of this debate. Folks like Rick would say the ban on gay marriage is to protect straight marriage. But it's not clear how straight marriage is protected. If the goal is to protect and reinforce the institution per Douthat's goals, then it seems like bans on divorce and infidelity would do more good. Yet I don't see gay marriage opponents pursuing those.

If you're not going to pursue the items that would do more to fulfill your argument, then how credible are you?

The answer is, not very.

Anonymous said...

If allowing same sex marriage is politically popular, its proponents wouldn't need Judge Walker to nullify the votes of millions of blue state voters. However, it isn't, so they do.

Anonymous said...

Anonymous at 9:44;

Whether same-sex marriage is popular or not is irrelevant; Jim Crow was popular once, but it was never just.

The whole point of individual rights (such as the right to equal protection) is that these are things no majority can take away. If a majority of voters decided to violate the rights of just one person, it’s the Job of The Courts to stop them.

As I wrote before, Judge Walker pulled back the curtain to reveal the truth: that opposition to same-sex marriage is built out of rationalizations on a foundation of prejudices and irrational fears. Legalized same-sex marriage is not an imposition on anyone and is an example of justice. J. Walker didn’t give anyone any rights; J. Walker didn’t invalidate any referendum; the Law did that. All J. Walker did was call a spade a spade.

sean s.

Anonymous said...

Sean, in a representative democracy, "popularity" is entirely relevant to public policy. And unlike with race, this country has never amended the Constitution to ensure equal treatment regardless of sexual orientation. So saying the decision of millions of Californians to amend their state constitution is analogous to Jim Crow laws in the South is a nonstarter.

Anonymous said...

Anonymous at 10:47,

In our republic, individual rights are prior to popular will. The Constitution says that “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” Unless you disagree, we all understand that homosexuals are “persons”; so they cannot be denied their equal protection of the laws.

sean s.

Anonymous said...

Sean, quoting from one of the Reconstruction Amendments to prove your point simply puts you back in the cul de sac of equal rights regardless of sexual orientation is the same as equal rights regardless of race. The Civil War wasn't fought, and the Reconstruction Amendments weren't adopted, to promote equality regardless of sexual orientation. And god save the republic if the interests of a single person are presumptively "prior to" the interests of the many.

Anonymous said...

Anonymous at 10:24;

If quoting the law is pointless in an argument over the law, then this is pointless. The language of the 14th amendment is general and commanding; it protects the equal rights of ANY person. The status of “person” is not dependent on sexual orientation. As inconvenient as it is to you: That Is The Law. If we ignore this, then we break the law.

sean s.