Tuesday, September 07, 2010

Questions for a Tuesday

There is a great piece by National Review's editors defending the legal and cultural distinctiveness of "traditional" marriage. There is much to commend it, including its frank assessment of the notion that same sex marriage is necessary to avoid the devaluation of homosexual relationships. I was struck by the following:

Same-sex marriage would introduce a new, less justifiable distinction into the law. This new version of marriage would exclude pairs of people who qualify for it in every way except for their lack of a sexual relationship. Elderly brothers who take care of each other; two friends who share a house and bills and even help raise a child after one loses a spouse: Why shouldn’t their relationships, too, be recognized by the government? The traditional conception of marriage holds that however valuable those relationships may be, the fact that they are not oriented toward procreation makes them non-marital. (Note that this is true even if those relationships involve caring for children: We do not treat a grandmother and widowed daughter raising a child together as married because their relationship is not part of an institution oriented toward procreation.) On what possible basis can the revisionists’ conception of marriage justify discriminating against couples simply because they do not have sex?


Does this matter? Is there a response to it? Are reciprocal beneficiary schemes a response to the problems cited by advocates of same sex marriage?

30 comments:

Anonymous said...

It doesn't matter. Perhaps reciprocal beneficiary schemes are a response to those who want to deny gay people rights as in passing a constitutional amendment. Sorry I forgot Rick doesn't want gay people to have hospitalization visitation rights nor health insurance as that would mimic marriage. On Wisconsin

sean s. said...

All;

This National Review editorial is hardly “great”, more like “grating”. It reruns the same tired complaints, the same unsubstantiated fears of vague harms from same-sex marriage. Even the title is burdened with a tired cliché; opposition to same-sex marriage is not “for marriage”, it’s against equality under the law. Same-sex marriage is not “against marriage”, it’s for equality under the law. There’s nothing new in this editorial, but that’s not surprising. At the end of the day, there’s no rational reason to maintain a ban against same-sex marriage.

In the past Rick has complained whenever I did not engage the arguments advanced in defense of this inequitable ban. But when I did engage their arguments, the thread tended to die without response. I’d be happy to critique the NR article in detail, but what would be the point? There’s little new in it, there’s even less that makes sense, and I have no reason to believe that Rick will engage my arguments anyway. I see no percentage in the effort. If Rick thinks I’m mistaken about that sense of purposelessness, I am ready to be corrected. The hardest part of responding to this foolish editorial would be selecting from the many things to criticize; it really is THAT bad!

I will comment on one thing: Rick is particularly struck by one paragraph in the NR editorial. The Editors complain that same-sex marriage “would exclude pairs of people who qualify for it in every way except for their lack of a sexual relationship.” They posit a scenario: “Elderly brothers who take care of each other; two friends who share a house and bills and even help raise a child after one loses a spouse: Why shouldn’t their relationships, too, be recognized by the government?” This is nonsense. These relationships are not recognized by the State NOW; blaming same-sex marriage for this is ridiculous. Recognizing same-sex marriage will certainly NOT require the State to intensify its current non-recognition of these other relationships.

Further, when a different-sex couple gets married, there is no requirement that they ever have sexual relations; when a same-sex couple gets married (as they will be able to, eventually) there will be no requirement that they have sexual relations either; so why can’t two elderly men have a “marriage-like” relationship? Only because the State forbids it; the State forbids it now and probably will even after same-sex marriage is legalized. Somehow, that becomes the fault of same-sex marriage?

Nuts. Whatever the reason for the State’s action above, it will not be because same-sex couples CAN marry. The two friends who share a house, etc. could get married with or without having a sexual relationship IF SAME-SEX MARRIAGE were legal. If they cannot, it certainly will not be because same-sex marriage is permitted!

The paragraph Rick refers to ends with an absurd question: “On what possible basis can the revisionists’ conception of marriage justify discriminating against couples simply because they do not have sex?” Answer: IT DOESN’T — SO WHAT’S THE PROBLEM? Same-sex marriage, like different-sex marriage, does not require any assertion or commitment to a sexual relationship. Whatever discrimination there is against “couples simply because they do not have sex” already happens now. Legal recognition of same-sex marriage cannot be blamed for something that the State is doing now, PRIOR to recognizing same-sex marriage. Really, this complaint IS striking: strikingly absurd.

I apologize if I sound frustrated, but I know from experience that detailed arguments are probably futile; it’s likely they will not be engaged.

sean s.

George Mitchell said...

For whatever it's worth, I voted no on the constitutional amendment.

Rick's post raises a provocative "slippery slope" argument that I had not considered.

I know several families and individuals who are providing support to people in need of help. I can easily anticipate an argument that such "relationships" are no less worthy than a committed relationship between a same-sex couple.

I found Sean's post hard to follow.

AnotherTosaVoter said...

George, using fears of a slippery slope is a logical fallacy. People making them have no valid argument against B, so they try to make you afraid of C, which they warn will happen if you allow B.

The funniest part is that heterosexual marriage laws are the basis of the slope that somehow slips to the two brothers who care for an elderly parent: if us heteros didn't have legal marriage protections and benefits, then homos probably wouldn't demand them, since they wouldn't exist.

This is no different than complaining that polygamy or incest are next if we let the gays marry, so let's not let the gays marry. No, sorry, logical fallacy. If we can't let the gays marry because we don't want the cousins to marry, then we shouldn't let the heteros marry either. We have to look at each decision on its merits.

Sean said it right. There remains no logical or valid reason to be against gay marriage. Just bigotry and logical fallacies like this.

Anonymous said...

Odd that the Professor wants to take up this conversaton again without answering my previous comment. I challenged him to draft a bill which contains the protections he believes that gay couples are entitled to. He did not respond. He may not be a liar -- the jury is still out-- but he surely is a hypocrite.

George Mitchell said...

"This is no different than complaining that polygamy or incest are next if we let the gays marry, so let's not let the gays marry."

Once you say marriage is not between one man and one woman, the point Rick is making is that there is no criterion left. That is an interesting point.

As for cousins, well, FDR and Eleanor were cousins.

Again, I did not vote for the amendment. But I don't disparage those who did.

Rick Esenberg said...

Anon 2:31

I don't recall saying that I "don't want" gay people to have hospitalization visitation rights or health insurance. The former is available under current law and the latter (for those who obtain insurance through an employer) is a matter of employer choice. You might note that the plaintiffs in Appling did not challenge the extension of employee benefits to the same sex partners of state employees.

Anon 9:33

I have no obligation to draft a bill and no time to do so. I am overextended as it is. I am not sure that a bill is required although, if it is, I think some type of reciprocal beneficiary scheme would be in order.

Sean

You misunderstand the argument. The editors are not saying that these other relationships would not be "recognized" because of same sex marriage but that, once same sex marriages are recognized, it is not clear what argument would distinguish them from relationships based on a presumption of sexual intimacy.

While it is certainly true that no one who marries is "required" to have sex (although, traditionally, lack of consummation has often been grounds for annulment) the definition of those eligible for same sex marriage or domestic partnerships is pretty clearly drawn with a presumption of intimacy in mind, thus its mimicking of the preconditions for heterosexual marriage.

Your suggestion that I won't engage detailed argument is wrong. Make one and I'll engage it.

One thing, however, that I have learned over the years is that it is dangerous to presume that people who have been fairly successful in one's chosen profession don't know what they're talking about or that positions that have been held for many years by very intelligent people are (and I appreciate that these are not your words) are without "logical or valid reason."

George is, as always, a voice of reason.

Anonymous said...

"I have no obligation to draft a bill and no time to do so. I am overextended as it is. I am not sure that a bill is required although, if it is, I think some type of reciprocal beneficiary scheme would be in order."

A cheap cop-out, Herr Professor.

You tell us what you are against, but what exactly are you for?

You need not draft the bill, but why can't you produce an outline of what you claim you do support?

From my perspective and that of many who read your blog, you are a hypocrite -- and a "flaming" one at that.

Free Lunch said...

How does removing a distinction in the law add a distinction? The NR editors didn't address that at all. They just jumped right to a new meaningless argument, since polygamy didn't scare enough people. WFB would be chagrined to see what passes for reasoned debate th NR these days.

Anonymous said...

Let me understand this. You have a religious nut case making a living off defending marriage from gays by appealing to peoples prejudices and she has a divorced lawyer to help her


Sorry is this Wisconsin or Mississippi?

Keep marriage safe

Anonymous said...

Let's give our blog host a little credit. I usually disagree with him, but his blog is always interesting and thought-provoking, and it attracts a diverse range of comments. And for hosting this free forum in ideas, Rick gets flak for being a hypocrite, a "flaming" one no less, and, totally unjustifiably, for his marital history.

Keep your flak jacket on, Professor, and keep up the good work!

AnotherTosaVoter said...
This comment has been removed by the author.
AnotherTosaVoter said...

Rick, with all due respect I've asked you to engage in a serious argument on this many a time and I have yet to see it. I've asked specifically how you think gay marriage will harm heterosexual marriage and all you can do is point me to authors or links, never once explicitly stating what the harm would be (beyond the vague, "heterosexual marriage helps manage heterosexual sexuality"), and how it would happen. Frankly if it's been articulated so often by such intelligent people I'd think you could provide it in one sentence.

This lack of serious argument suggests the real reasons are more, shall we say, emotional.

sean s. said...

For the Record, the post deleted at 9:26 was mine. I did not delete it so I assume this was my disinvite. OK. Not for cause, tho'.

sean s.

sean s. said...
This comment has been removed by the author.
John Foust said...

Would this mean Julaine Appling would finally be able to marry? That she's in effect married? Good for her!

Rick Esenberg said...

Sean S.

I didn't delete your post and would love to see it. My guess is that you hit something by mistake. If you can repost it, that would be great. I don't moderate comments and, although I've deleted a few (probably less than ten in 4 years), it takes something defamatory or completely tasteless.

AnotherTosaVoter said...

The post deleted at 9:26 was mine, deleted due to bad proofreading.

I'd like to direct your attention to Iowa, where after 18 months, surprisingly the earth hasn't crumbled, married heteros haven't divorced or changed their relationships en masse, and frankly life hasn't changed much at all. Granted it's 18 months, but I'm willing to bet the trend won't change a bit.

Thoughts?

sean s. said...

Hmm. 'TosaVoter's more powerful than we thought; he deletes his post and mine gets sucked into the undertow. I'll repost mine later. Going into a meeting now.

sean s.

sean s. said...

Rick;

I might misunderstand the editorial’s argument, but I did not misread it, unless the meaning is found outside the text. The verbs are assertive: same-sex marriage “would introduce” an unjustified distinction, it “would exclude” certain people. The tone is accusatory: supporters of same-sex marriage “cannot justify discrimination” against certain people. I did not misread this.

You say the editors of the NR meant that “that, once same sex marriages are recognized, it is not clear what argument would distinguish them from relationships based on a presumption of sexual intimacy.” Well, they could have just said that. They might have had some reason to phrase their concerns as they did, but not in the interests of clarity.

If recognizing same-sex marriage makes justifying these other policies more difficult (if that’s what the NR’s editors claim), that is a separate problem. Reasonable minds are not inclined to oppose same-sex marriage because of them; punishing one class of persons to facilitate restrictions on another. If legal restrictions on these other relationships cannot be justified on their own merits, that fact would incline reasonable minds to doubt the legitimacy of these other restrictions. If reasonable minds cannot find a reasonable purpose for those restrictions, they are left to weigh their prejudices against their consciences.

sean s.

sean s. said...

I am surprised that you don’t think I’ve made any detailed arguments. It’s literally true that a hard-copy of the emails you and I and others have exchanged on this topic would amount to a good-sized law review article. But to facilitate this, here is an impromptu summary:

1. Denying legal recognition to same-sex marriage denies equal protection of rights to same-sex couples for no rational purpose. After all these years and controversy, no legitimate purpose has been shown for the ban; neither a benefit arising from the ban nor a harm arising from ending the ban. No specific person and no general class of persons has been shown to be harmed by nor to reasonably expect harm from legal recognition of same-sex marriage. Rationale’s given for the policy are either under inclusive or over inclusive or irrelevant.

2. The only harms posited against same-sex marriage are to an abstraction: the “institution of marriage” and the harm posited is nothing more than “change”. No instance of an actual marriage, nor any classes of actual marriages are shown to be changed or threatened by legal recognition of same-sex marriage. An institution describing a social practice (like the “institution of marriage”) cannot be harmed if no actual instance of it is harmed.

3. As several courts have held; preserving a tradition for the sake of tradition is not a legitimate purpose for this ban. When a tradition itself has a legitimate purpose then surely it can be preserved, but that is different from preserving a tradition just because.

4. All rational argument have a structure and premises. The structure and premises of the arguments against same-sex marriage are remarkably similar to the structure and premises of arguments against racial and gender equality; arguments the courts have rejected for decades. Again, if such arguments demonstrate an actual harm or actual threat of harm, they should be entertained. But lacking that, these arguments should be treated with great suspicion.

sean s.

AnotherTosaVoter said...

One other thing I find funny, or rather sad, about the arguments against same sex marriage.

In general, those opposed to same sex marriage criticize liberals (rightly in some cases) for attempting to "perfect" humanity thru regulation and social engineering.

Yet, if we listen to Douthat, the reason right now we can't let the gays marry is because there is some "perfect" version of marriage to which we should aspire socially. Somehow, heterosexual relations need to be made "more perfect", as defined by social conservatives, and they're willing to use public policy to do it.

It's one thing to try to get people to be more perfect when it comes to say, environmental sustainability by banning pollution or encouraging the use of transit. It's quite another to try to perfect people's most important relationships.

Anonymous said...

The BEST way for "one man" and "one woman" to save marriage is to STAY married. The bride and I have been married for 30+ years and we intend to remain in that state for the rest of our lives. We do support extending the benefits of marriage to same-sex couples as well.

sean s. said...

All;

Since Rick seems to have thrown this “great” National Review editorial under the bus, proclaiming its virtues but not really explaining or defending them, I thought I’d make a few remarks about this pathetic editorial myself.

The Editors of the NR begin with a brief description of the social dislocations they expect when same-sex marriage is legalized. Their concerns are grossly exaggerations; they are typical Chicken-Little alarmist warnings. However, their description ends in an interesting way. They warn that legalizing same-sex marriage cannot possibly succeed “without decades of arduous and divisive social ‘reform’”; but then they wrote, “That is no reason to shrink from the task, if it is truly a just one.” Indeed; this is a perceptive observation for them to make, tho’ an obvious one to most people. But this means that, to make their opposition to same-sex marriage coherent, the editors have by these words obligated themselves to showing that, at a minimum, banning same-sex marriage is clearly not unjust. Better yet, they would want to show that the ban is clearly just, but at least they must show it is not unjust. If they cannot meet this low standard, then their opposition to same-sex marriage becomes unjust by their own standard.

However, what the editors demonstrate with the bulk of their editorial is that they don’t understand the problem, or the burden they take upon themselves. Instead of demonstrating that banning same-sex marriage is not unjust, they spend most of their time on irrelevancies or defending the virtues of different-sex marriage The perceptive reader will understand that justifying what is now is not sufficient to justify opposing what could be.

The technical limits of this blog-site make it impractical to share a detailed dissection of the NR editorial in one go, the editorial is more than 2300 words long, and as any experienced fisherman (or –woman) knows, it takes a lot more time to untangle a snarled line than it took to make the tangle in the first place. Likewise, it takes far more words to correct errors and misconceptions than it takes to state the errors or misconceptions. So I will have to summarize why the Editors of National Review failed to show that the ban on same-sex marriage is not unjust. That summary I will begin in my next post.

sean s.

sean s. said...

All;

As I wrote in my preceding comment, in the editorial which Rick found so great, the editors of the National Review have, by their own words, obligated themselves to showing that, at a minimum, banning same-sex marriage is clearly not unjust. Failing that they wrote that “there is no reason to shrink from the task” of legalizing same-sex marriage “if it is truly just.” What their editorial demonstrates is that they don’t understand the burden they take upon themselves, which they abjectly fail to meet.

They begin their defense badly; “But we should first consider whether the historic and cross-cultural understanding of marriage as the union of a man and a woman really has so little to be said for it.” The problem is that same-sex marriage is not an attack on different-sex marriage. Like many opponents of same-sex marriage, the editors of NR seem to believe that if Tom and Harry (or Thelma and Louise) can marry, then Dick and Jane cannot. This is like thinking that if blacks can marry, whites cannot. Obviously, that’s ridiculous. Likewise, if two persons of the same sex can marry, that does interfere with the marriage of two people of different sexes. Similarly, same-sex marriages do not devalue different-sex marriages.

Near the end of their editorial, the Editors return to the antiquated cudgel of marriage’s natural meaning. They ask “And does marriage really need to be redefined?” as if this issue were a kerfuffle between dictionary editors. Forget the “definition” of marriage, this is about the LAW.

The editors wrote that the application of equal protection to marriage laws “turns … on what marriage is. If marriage just is by its nature oriented toward procreation, the refusal to redefine it to accommodate same-sex partners [does not] unjustly discriminate against them” Of course, the editors tell us what marriage is: it’s an institution oriented “toward children”. But as we shall see in following comments, the law does not enquire into questions of procreation when issuing marriage licenses — unless the couple is same-sexed. Marriage is only sometimes oriented toward children.

When philosophers describe social institutions, they are on solid ground. When they assert opinions about what should be, they speak without special or lawful authority. “What marriage is” is a question answered by married couples, not by lawyers or philosophers. Some are about children, some about companionship, or tax-avoidance, or other economic strategies, or getting around immigration laws. Some are just about having fun for a while, and then disposed of like soiled diapers. We lament these less-than-ideal marriages, but the law gives them full effect so long as the paperwork is done correctly. Philosophers have no lawful authority to decide who should and should not be allowed to marry unless their purpose is itself lawful. The “definition” of marriage to the exclusion of same-sex couples, whether that exclusion is “found” in tradition or “natural law” (an oxymoron) is devoid of lawful purpose. It is irrational and inequitable.

sean s.

sean s. said...
This comment has been removed by the author.
sean s. said...

All;

Continuing my comments on the NR editorial that Rick found “great”: after beginning their defense of the same-sex marriage ban badly the editors run off the road again when they next consider “three objections” which they say “thoughtful proponents of same-sex marriage raise … to this conception of marriage.” No one can speak for all proponents of same-sex marriage; but I know of none that are both “thoughtful” and have ANY objection to different-sex marriage; much less THREE objections. Thoughtful proponents of same-sex marriage object only to the proposition that there is only one valid conception of marriage; they object to the exclusion of some people from marriage, not the inclusion of different-sex couples. There is no “either-or” requirement, both kinds of marriage can coexist; each without harming the other. The editorial presents us with a false choice.

Unsurprisingly, the “objections” are cast in terms no thoughtful proponent of same-sex marriage would endorse. To wit: “The first is that law and society have always let infertile couples marry; why not treat same-sex couples the same way?” “The second objection proponents of same-sex marriage raise is that the idea that marriage is importantly linked to procreation is outdated.” “The third objection is that it is unfair to same-sex couples to tie marriage to procreation, as the traditional conception of marriage does.”

Examine these “objections” carefully; you will see that they are nothing more than three ways of saying the same thing: marriage is about procreation and same-sex marriage will interfere with that. Those are two separate charges, and both are false.

Almost nothing in our society is “about” just one thing, including marriage. If a man and a woman apply for a marriage license, no one enquires about the purpose of their marriage; many would argue that no one is empowered to make such an enquiry. If the man happens to be a 97 year-old billionaire confined to a wheel chair and the woman is a 19 year-old stripper, eyebrows may go up, but the license is issued and the marriage is given all legal effect. If the man is a convicted criminal on parole; a child pornographer, or pedophile, or wife-beater, or rapist; eyebrows will go up but the marriage license will be issued and the marriage is given all legal effect. If the couple are of the same gender, one a doctor, the other a lawyer, people run around fretting about the end of civilization; and the marriage license is denied due to “unfitness”.

sean s.

sean s. said...

All;

Completing my comments on the NR editorial from above: some different-sex marriages have children, some are childless. What they have in common is that the law doesn’t care. It treats them all the same. Banning same-sex marriage because same-sex couples won’t have children unfairly denies them rights and choices that are granted to different-sex couples routinely without regard to whether they can, will, or want to have children — or even if they are persons we would consider fit to have children.

After fumbling their defense of the same-sex marriage ban, the editors describe some of the evils they attribute to the breakdown of the family; as if somehow same-sex marriage was to blame for these things. But it is not. There is no doubt that the traditional marriage is under stress; but it is not under stress because of same-sex marriage. How could it be? Except recently and in a few places, there are no same-sex marriages. The problems of marriage can be attributed to many things; but I doubt anyone can show that any different-sex marriage was harmed by a same-sex marriage, or even how such harm would occur. It would make as much sense to blame our culture’s marital problems on the American League’s Designated Hitter Rule. I’ll wager more people care about the DHR than about whom their neighbor is married to.

In another place the editors wrote, “The legal ‘benefits’ of marriage — such as the right to pay extra taxes, and to go through a legal process to sever the relationship? — are overstated.” Amazing; the editors are telling same-sex couples, “Marriage ain’t that great. Give it up.” I wonder, do they tell their children the same thing?

Then they wrote, “Almost all the benefits that the law still grants could easily be extended to unmarried couples, including same-sex couples, without redefining marriage.” Perhaps, but not in Wisconsin. Rick and others worked for and got a law that says such a solution is not permitted. I’m surprised Rick didn’t choke on this suggestion. It is something he specifically worked to make impossible in Wisconsin. And this is a “great” editorial?

sean s.

sean s. said...

All,

There is little else to be said about the NR editorial. The editors imposed on themselves by their own words the burden of showing that, at a minimum, banning same-sex marriage is clearly not unjust. Failing that they wrote “there is no reason to shrink from the task” of legalizing same-sex marriage.

But what the editors demonstrated with the bulk of their editorial is that the ban on same-sex marriage cannot be justified except by ignoring the mandate that all people enjoy equal protection of the law. The editors instead insist that treating one group of people differently because of an idiosyncratic, extra-legal philosophy meets their definition of “just”, that holding same-sex couples to requirements that different-sex couples are totally exempt from is, in their minds, “just”. They worry about “the public policy of marriage itself [becoming] incoherent” but offer incoherent rationale’s in defense of their unjust policy.

sean s.

Free Lunch said...

Then they wrote, “Almost all the benefits that the law still grants could easily be extended to unmarried couples, including same-sex couples, without redefining marriage.” Perhaps, but not in Wisconsin.

Which is fine with most of the NR crowd. By denying that this is a civil rights question, they are trying to keep this as a question of mere law and what could or should be done. Wisconsin has shown that it can be swayed by anti-gay bigots to make a point of discriminating. This is shameful behavior on our part.

Eventually our public bigotry will be fixed, even if the courts fail to protect the rights of same-sex couples. Eventually the bigots will die off and the state's constitutional bigotry will be removed because the anti-gay activists have failed to pass their anti-gay bigotry onto their children and grandchildren.