Balkinization: Same-sex Marriage: The Good News from the 2008 Election

Comments:

Here is a radical thought: Why don't proponents of same sex marriage in California offer a proposition of their own amending the traditional definition of civil marriage to include homosexual unions and then lay out a case why homosexual unions offer the same benefits to society as marriage and thus deserve the same government recognition and subsidy?

# posted by

Bart DePalma : 9:45 PM

Bart DeBigot,

Here is a radical thought: Why not acknowledge that people ought not need to justify their quest for fair and equal treatment under the law?

P.S. Any update on your plans to introduce state constitutional amendments nullifying all heterosexual marriages that do not result in procreation within a reasonable period of time? I know you're planning such amendments -- because if you weren't, then that would irrebutably prove that you're a lying hypocrite.

# posted by

KipEsquire : 10:20 PM

kip:

I would suggest that calling opponents of same sex marriage bigots, liars and hypocrites is not exactly the most effective method of convincing the voters of the merit of your position.

Why is it that proponents of same sex marriage refuse to make an affirmative case for what they support?

# posted by

Bart DePalma : 10:33 PM

Bart writes:
and then lay out a case why homosexual unions offer the same benefits to society as marriage and thus deserve the same government recognition and subsidy?

Under your declared criteria, facetious as they are, why should the sterile be allowed to marry? What about those with genetic defects? What benefit to they bring to society? Should they be allowed to marry? After all, we need to consider the benefits to society above individual rights in order to determine what rights to grant them, according to you.

# posted by

John : 11:04 PM

There's another approach to this problem. If religious folks want to own the word "marriage," maybe govt should disown it.

There's no reason state law cannot refer exclusively to "domestic partnership" or "civil union" or whatever. We wouldn't let state law refer to baptized individuals, perhaps we should think similarly with marriage.

# posted by

Michael Salem : 11:30 PM

This comment has been removed by the author.

# posted by

Hank Gillette : 1:20 AM

bart depalma said:

I would suggest that calling opponents of same sex marriage bigots, liars and hypocrites is not exactly the most effective method of convincing the voters of the merit of your position.

Actually, some of them are more self-aware than you seem to be, and when their bigotry, lies, and hypocrisy are pointed out, they have the decency to feel shame.

# posted by

Hank Gillette : 1:23 AM

Folks, I am not getting into arguments for and against same sex marriage again. We both know where we stand.

Rather, the subject of this post is the alleged inevitability of same sex marriage when it has been rejected every single time it has been presented to the voters.

My suggestion is that redefining marriage is a political project. As such, proponents of same sex marriage, like proponents of every other political change, need to offer a compelling affirmative argument for their position to assemble a political majority to enact their desired change.

My further suggestion is that slandering the majority of voters who oppose your project to redefine marriage or attacking the institution of marriage itself is hardly likely to sway voters to your position. Rather, these are thug tactics meant to intimidate rather than to persuade.

Hank claims that calling folks bigots is meant to shame rather than intimidate them. However, this is only true if the pejorative has merit, which his usage does not. Bigotry is taking action against another group because it is different from the bigot. Opponents of redefining marriage are not taking any action against homosexuals if they choose to "marry" or are suggesting any such action. Rather, the proponents of same sex marriage are suggesting the change and must be held accountable for justifying such change.

Why is it impossible for proponents of same sex marriage to make an affirmative case for redefining marriage to include homosexual unions?

Drop the slanders and the attacks on traditional marriage and make your case.

# posted by

Bart DePalma : 9:37 AM

I have a wonderful idea. Why don't all of the people that spend millions of dollars policing other peoples private lives and destroying our constitution take that money and spend it on improving schools and educating our children...Oh wait then the kids might find out that we have a constitution and that it's being trampled on by religious beliefs even though we are supposed to have a distinct separation between church and state. Wake up. Gay people aren't going away no matter how hard you throw your bible at them but the principals that our country were founded on are. The separation of church and state was created to protect both the church and the state. Continue to ignore it and churches may one day find themselves in a similar circumstance.

# posted by

Unknown : 10:01 AM

In a democratic society, the burden of proof lies with those who would extend protections to some people and not others. The "affirmative" case for gay marriage is that so far opponents of gay marriage have yet to give a defensible argument for why gay people should not have the same right to marry each other as straight people do. Allowing same-sex marriage will not undermine the institution of marriage (since heterosexual marriages would continue apace under more inclusive laws), it will not force churches to marry people they don't want to marry (opponents of same-sex marriage often need to be informed of the distinction between legal and religious institutions), and it will not usher in an age of legalized bestiality and incest (the most bigotted in a series of bigotted rationalizations). In short, same-sex marriage will cause no real harm to anyone (although the world is certainly full of idiots who claim to be gravely harmed by knowing the world has things in it that they don't like).

# posted by

the instructicator : 11:30 AM

the dog:

You have just offered a list of things same sex marriage will not do. This is not an affirmative argument.

Instead, offer a list of things same sex marriage offers society to merit societal recognition and subsidy. For example, I think the government ought to adopt the FAIR tax because it is more efficient because it collects revenues from free riders and fairer because it taxes the wealthy for inordinate consumption and not investment which creates wealth and jobs. This is an affirmative argument on behalf of the FAIR tax. Give us an affirmative argument on behalf of same sex marriage telling us what it will do for society.

# posted by

Bart DePalma : 11:39 AM

Bart, you focused on the wrong part of my post. My claim is that the burden of proof lies with those who want to extend rights to some and not others. Laws banning same-sex marriage deny equal treatment to gay people, and I'm saying there isn't any good reason to do that. Consider: if there were a law against black people drinking at public water fountains, your argument would demand that proponents explain what benefits there would be to legalizing such behavior. But that gets it backwards, because in a free society you need a reason to make something illegal.Since there isn't a good reason to prohibit black people from drinking at public water fountains, there should be no such law. Ditto for laws prohibiting same sex marriage. I understand the difference between affirmative and gegative arguments--but the presumption favors equal rights, not the status quo, so if anyone needs an affirmative argument, it's folks who want to limit the rights of gay people.

On the other hand, if you're purely concerned with formal issues, here's an affirmative argument: recognizing same-sex marriage shows gay people the respect to which they are entitled as equal citizens. The "benefit" of legalization is that it eliminates arbitrary (and therefore unjustified) discrimination.

# posted by

the instructicator : 12:40 PM

the dog:

There is no law making same sex marriage illegal ala the anti-miscegenation statutes. Homosexuals are free to "marry" with a Universalist preacher presiding, exchange rings and proclaim to the entire world they are married and nothing will happen to them. If anyone were actually proposing to criminalize same sex marriage, then you are correct that the burden for making the case would be on the proponents.

Instead, the issue is whether society should affirmatively amend civil marriage to extend recognition and subsidy to homosexual unions on the same terms we do for marriage. The burden in this case is on the proponents to make an affirmative case why society should do so.

On the other hand, if you're purely concerned with formal issues, here's an affirmative argument: recognizing same-sex marriage shows gay people the respect to which they are entitled as equal citizens. The "benefit" of legalization is that it eliminates arbitrary (and therefore unjustified) discrimination.

Society recognizes and subsidizes marriage above all other human relationships because marriage provides society fundamental benefits, not because society believes that married people are better than everyone else and deserve special respect.

Under your argument, society should be compelled to provide equal recognition and subsidy to every human relationship. This is not required by law and is counterproductive as a matter of policy.

# posted by

Bart DePalma : 1:31 PM

I understand the Prop. 8 folks here in California believed that if they didn't get it passed this year, it would be too late in the next election cycle. They were probably correct in that belief. The trend is clear, and it does suggest this was their last opportunity to exclude gay couples from marriage. Consistent with that, Prop. 8 passed by only two points.

Of course, that also suggests the time will come when Prop. 8 will be repealed. It will take more time and effort than if it had never passed, of course.

# posted by

jpk : 2:23 PM

"Bart" DeBigoted:

[to Kip]: I would suggest that calling opponents of same sex marriage bigots, liars and hypocrites is not exactly the most effective method of convincing the voters of the merit of your position.

I'd suggest that any such considerations are null and void in your case, "Bart": You're not only immune to persuasion (no matter how glibtongues); you're immune to fact.

Cheers,

# posted by

Arne Langsetmo : 2:29 PM

Bart,

The state provdes civil marriage (in part) to encourage people to settle down with their romantic lifemate, believeng such people are more stable and happy.

That affirmative case applies equally to gay and straight relationships.

# posted by

just_looking : 3:52 PM

just looking:

Finally, an affirmative argument.

Now all you need to do is offer evidence to support the proposition that marriage promotes the stability and well being of homosexual relationships to the same extent as it does for heterosexual relationships or to any extent at all.

This cannot be assumed because the combinations of a M+W are different from a M+M or a W+W. Indeed, the combinations of M+M and W+W are also different from one another.

# posted by

Bart DePalma : 6:44 PM

Firstly, nice Catch-22, Bart. Before we can have SSM, we must prove it promotes stable relationships. But, how can that be proven if there is no SSM?

Secondly, no proof was required for straight couples. The state merely makes a plausible argument for marriage. That same plausible argument applies.

# posted by

just_looking : 7:03 PM

Even if Prop. 8 had narrowly failed, who would want to be in a marriage that is opposed by about half of the voters?

Also, I am annoyed that gays and their supporters seem to enjoy offending people by using the term "his husband" instead of "his spouse" or "his partner."

# posted by

Larry Fafarman : 9:34 PM

bart depalma said:

Now all you need to do is offer evidence to support the proposition that marriage promotes the stability and well being of homosexual relationships to the same extent as it does for heterosexual relationships or to any extent at all.

Have you looked at the divorce rate for heterosexual couples? What evidence is there that marriage promotes stability and well being of heterosexual relationships?

Marriage bundles a group of legal rights and responsibilities that are difficult and/or expensive to duplicate by other methods. Why shouldn't gay couples be afforded this same benefit?

Marriage also provides a framework for the benefit and protection of children. Like it or not, many gay couples have children, whether it be from adoption, previous marriages, or some unknown method. Denying marriage to gay couples denies protection for these children.

So Bart, think of the children.

# posted by

Hank Gillette : 1:31 AM

larry fafarman said:

Even if Prop. 8 had narrowly failed, who would want to be in a marriage that is opposed by about half of the voters?

Who would want to be President in a country where he was opposed by about half the voters (or in the case of George W. Bush, more than half)?

Why do you think gay couples care at all about what you or other people think about their marriage? All they want is equal rights, not your approval.

# posted by

Hank Gillette : 1:35 AM

Marriage bundles a group of legal rights and responsibilities that are difficult and/or expensive to duplicate by other methods.

Or impossible. You cannot contract for a tax break or a testimonial privilege.

# posted by

Unknown : 2:24 AM

Hank Gillette said...
>>>>>> Why do you think gay couples care at all about what you or other people think about their marriage? All they want is equal rights, not your approval. <<<<<<

Wrong. It's all about approval -- otherwise gays in California would be satisfied with domestic partnerships.

Elliot said...
>>>>>>Marriage bundles a group of legal rights and responsibilities that are difficult and/or expensive to duplicate by other methods.

Or impossible. You cannot contract for a tax break or a testimonial privilege. <<<<<<<

People in civil unions or domestic partnerships can have any rights and responsibilities that the government is willing to give.

# posted by

Larry Fafarman : 3:09 AM

just_looking said...

Firstly, nice Catch-22, Bart. Before we can have SSM, we must prove it promotes stable relationships. But, how can that be proven if there is no SSM?

Once again, same sex marriage is not in any way illegal. Homosexuals can marry without recognition and subsidy of the state and thereby provide their evidence to redefine civil marriage.

Secondly, no proof was required for straight couples. The state merely makes a plausible argument for marriage. That same plausible argument applies.

The proof of the benefits of marriage were plain for centuries if not a millennium before the first state recognition through civil marriage.

# posted by

Bart DePalma : 9:15 AM

hank gillette said...

What evidence is there that marriage promotes stability and well being of heterosexual relationships?

Go to the library. There are shelves of social science providing the proof. Or simply google "benefits of marriage" and surf through the half million hits.

Marriage also provides a framework for the benefit and protection of children. Like it or not, many gay couples have children, whether it be from adoption, previous marriages, or some unknown method. Denying marriage to gay couples denies protection for these children.

This is an argument against permitting homosexuals (or a single adult) to adopt children rather than an affirmative argument for same sex marriage.

# posted by

Bart DePalma : 9:25 AM

Bart nails it again! The only way to protect our society from "teh gay", especially lesbians in stable, committed relationships raising their biological children, is to outlaw gay parenting as well as gay marriage.

# posted by

Drogon Saurischian : 11:34 AM

It goes without saying, of course, that Bart's quest to discriminate on the basis of sexual orientation, de-stabilize gay relationships and forcibly orphan the children of gay parents is driven solely by science, not irrational animus against Sodomites.

# posted by

Drogon Saurischian : 11:47 AM

I don't think people under 30 should be allowed to get married. No one has proven to me that they offer all the social benefits of older married couples, to the same extent of older married couples.

Oh, and I don't think there should be mixed race marriages either. No one has proven they offer all the social benefits, to the same extent, as same-race marriages.

You should have to pass an IQ test and drug test too. All these stupid people and druggies getting married, look at all the social harm they cause!

And what about poor people? What a disservice poor people do to their children! They shouldn't be allowed to get married either.

# posted by

Michael Salem : 12:15 PM

There's a linguistic argument, too.

Opponents of applying the term "marriage" to same-sex unions consistently fail to notice that the sacred nature of the term confers an obligation to the participants that exceeds those found in a standard partnership. Of course it doesn't control one's behavior, and it is subject to the pattern of serial monogamy in our society. It does, however, affect one's behavior by encouraging fidelity.

This increased commitment leads to more stable household units, and such units are the backbone of our economy.

(On a side note, fidelity also reduces promiscuity; extramarital chastity reduces the spread of social disease--one of the advantages of pair bonding from an evolutionary standpoint)

The term "marriage" has important weight here--the dignity that the term confers is as important as the sociolegal benefits that one accrues.

# posted by

PMS_CC : 12:57 PM

"With the respect to the question of relationships, my general view is freedom means freedom for everyone. People ought to be free to enter into any kind of relationship they want to."

Some will recognize that as the expressed view of that unrepentant liberal, Dick Cheney.

It's only a matter of time until this discussion will be about as interesting as a discussion on interracial marriage. Prop. 8's relevance is it has undoubtedly increased the time. And yes, for some justice postponed will be justice denied. But within our lifetime, our Nation will come around to Dick's view, in law, policy, and attitude. Likely within ten years.

That's one reason Prop. 8's proponents pushed so hard to get it passed this election cycle. They can see the trend too. They realized that if they wanted their bigotry to be enshrined in law, they'd better act fast.

# posted by

jpk : 12:58 PM

Michael:

There's another approach to this problem. If religious folks want to own the word "marriage," maybe govt should disown it.

There's no reason state law cannot refer exclusively to "domestic partnership" or "civil union" or whatever. We wouldn't let state law refer to baptized individuals, perhaps we should think similarly with marriage.

I think a good argument can be made that the only solution (assuming that 14th Am. and "revision" challenges to Prop. 8 fail) for the California judiciary is to declare that "marriage" (constrained as it is by Prop 8 to a discriminatory interpretation as found in In re Marriage Cases) cannot be a valid status conferred by the state of California. While Prop. 8 says that "only" heterosexual marriages are "valid", it does not require that such be valid. Because the equal protections provided by the California constitution still stand and are unamended by Prop. 8, resolving these conflicting laws permits only that the California courts and state no longer recognise any marriages.

Cheers,

# posted by

Arne Langsetmo : 1:08 PM

... "opponents of same sex marriage [are] bigots, liars and hypocrites..."

No other rational conclusion is possible.

Even if we assume "Bart"'s claim that heterosexual "marriage" needs to be supported, there is no rational basis for excluding "marriage" to gays. Any attempt to exclude gay marriages is -- and must be -- based on discriminatory animus towards such unions.

The "liars" part is obvious from the patently dishonest pro-Prop. 8 advertising.

And the hypocrisy is something that those African-Americans and Mormons who supported Prop. 8 should recognise, as both were subject to discrimination (sometimes extreme and violent) as regards their own marriages.

Cheers,

# posted by

Arne Langsetmo : 1:16 PM

My suggestion is that redefining marriage is a political project. As such, proponents of same sex marriage, like proponents of every other political change, need to offer a compelling affirmative argument for their position to assemble a political majority to enact their desired change.

Yeah. That worked wonders for eliminating racial discrimination.

OTOH, "Bart" bemoans the fact that the darkies are "outbreeding" us, and will soon be a majority. You can imagine how quickly he'll change his tune....

Cheers,

# posted by

Arne Langsetmo : 1:33 PM

"Bart" DeBigoted:

My further suggestion is that slandering the majority of voters who oppose your project to redefine marriage or attacking the institution of marriage itself is hardly likely to sway voters to your position. Rather, these are thug tactics meant to intimidate rather than to persuade.

Ahh, so calling others loathsome is "thug[gery]". "Bart" and the company he keeps should know, having used pretty much every vile epithet to refer to those "others" over the years....

Me, I prefer to call a spade (and not some other object) a spade.

Cheer,

# posted by

Arne Langsetmo : 1:38 PM

Why is it impossible for proponents of same sex marriage to make an affirmative case for redefining marriage to include homosexual unions?

It's impossible when the listener simply refuses to see the argument. But it's simple: (Some) gays want to get married (just as some straights do ... and some do not). What's the freakin' problem?

"Bart" would have the Lovings insist that they show cause before they were allowed to get married. Rational people would not.

Cheers,

# posted by

Arne Langsetmo : 1:44 PM

Joke of the Month candidate:

["Bart"]: There is no law making same sex marriage illegal ala the anti-miscegenation statutes.

Nonsense. The anti-miscegenation statutes both criminalised people who engaged in such marriages and also declared such marriages null and void.

Both were struck down.

This has been pointed out to "Bart" previously, but he ignores it.

Cheers,

# posted by

Arne Langsetmo : 1:50 PM

Larry Fafarman:

Also, I am annoyed that gays and their supporters seem to enjoy offending people by using the term "his husband" instead of "his spouse" or "his partner."

And I am in turn amused and heartened that you are annoyed. You deserve as much annoyance -- not to mention frustration, despair, hopelessness, anomie, feelings of irrelevance and persecution, and whatever other deep psychic trauma that the rational world may choose to inflict -- as you can get.

Cheers,

# posted by

Arne Langsetmo : 1:56 PM

Bart starts:
Why don't proponents of same sex marriage in California offer a proposition of their own amending the traditional definition of civil marriage to include homosexual unions and then lay out a case why homosexual unions offer the same benefits to society as marriage and thus deserve the same government recognition and subsidy?

Bart recants:
I am not getting into arguments for and against same sex marriage again.

That's because your don't have any that make sense. And, if you don't want to see your inconsistent positions shot down repeatedly, then don't offer inconsistent and ridiculous positions.

# posted by

John : 2:00 PM

"Bart" DeIrrational:

[just looking]: Firstly, nice Catch-22, Bart. Before we can have SSM, we must prove it promotes stable relationships. But, how can that be proven if there is no SSM?

Once again, same sex marriage is not in any way illegal. Homosexuals can marry without recognition and subsidy of the state and thereby provide their evidence to redefine civil marriage.

Ummm, nope. In those states that allow such they can provide evidence for the benefits of "civil union", but they already have those. What they cannot do is provide evidence for the benefits of "civil marriage" as that is prohibited to them.

But that's a "red herring". "Rights" don't depend on some measure of deservedness (or benefit to society). If "Bart" truly thinks that, he's far more a totalitarian than he thinks I am. The idea that you have to show yourself "deserving" of "rights" because said granting of "rights" is for the "good of society" is such a bizarre idea coming from "Bart" that I can't believe he's actually offering such a claim. Needless to say, the Founders would have just laughed at "Bart" had he said such to their face....

Cheers,

# posted by

Arne Langsetmo : 2:06 PM

pms_chicago said...

There's a linguistic argument, too. Opponents of applying the term "marriage" to same-sex unions consistently fail to notice that the sacred nature of the term confers an obligation to the participants that exceeds those found in a standard partnership. Of course it doesn't control one's behavior, and it is subject to the pattern of serial monogamy in our society. It does, however, affect one's behavior by encouraging fidelity.

I would suggest that it takes more than the appellation of marriage to promote lifetime sexual fidelity.

The religious sacrament of marriage requires a vow of lifetime sexual fidelity, but government civil marriage does not. Infidelity is simply a reason for terminating a civil marriage, to the extent the particular state law even requires fault to divorce.

Is there any evidence that entry into a civil marriage without the simultaneous entry into the vows of the sacrament of marriage makes a couple of any sexual orientation more likely to be monogamous than they were prior to the civil marriage?

# posted by

Bart DePalma : 2:57 PM

bitswapper said...

Bart starts: Why don't proponents of same sex marriage in California offer a proposition of their own amending the traditional definition of civil marriage to include homosexual unions and then lay out a case why homosexual unions offer the same benefits to society as marriage and thus deserve the same government recognition and subsidy?

Bart recants:
I am not getting into arguments for and against same sex marriage again.

That's because your don't have any that make sense.

Which part of "proponents of same sex marriage" did you not understand in my first post? The burden of proof in justifying a change of public policy always lies with the proponents.

In taking the negative on this issue, all I have to point out is that the proponents of same sex marriage have utterly failed in their burden of affirmative proof and routinely resort to insults and negative arguments about what same sex marriage will not do.

# posted by

Bart DePalma : 3:06 PM

Baghdad, your blog appears to be broken. None of my recent reponses have been posted.

# posted by

Bartbuster : 3:18 PM

... all I have to point out is that the proponents of same sex marriage have utterly failed in their burden of affirmative proof...

Given that your "burden of affirmative proof" is something that you pulled out of your a$$hole, it really is no wonder that people are avoiding it like the stinking pile of excreta it is.

If I were to adopt your rhetorical mien, I'd say that it is up to you to affirmatively prove that "the proponents [of Prop. 8 have a] burden of affirmative proof". Lacking that, can't we just all agree that what you say is bovine scat and dispose of this silliness of yours?

And of course it goes without saying that I have provided a reason, a perfectly good one, for why we should allow gays to marry. In fact, it is pretty much the same reason as that put forth by the Loving petitioners. "Bart", as usual, has ignored it.

Cheers,

# posted by

Arne Langsetmo : 4:05 PM

@Goddess,

You quote on your blog, "An even greater objective of the homosexual movement is to end the state's compelling interest in marital relationships altogether."

Odd isn't it, that the only people I know who argue for a ban on all state sanctioned marriage are straight-like-me? I've argued as long as I can remember that the state has no business in marriage issues, as marriage is a religious event. Separation and establishment and all that.

I would indeed scrap the legal institution of marriage altogether (and my wife shudders to hear me say it) and co-habitation would indeed work under contract law.

Now child support law, that's a different thing.

I reckon a court that wanted to could say, "Just as Loving precludes a ban on mixing races, so to it preclude a requirement to mix genders." But I sure wouldn't want it up before the bench we have today. Would you?

# posted by

Robert Link : 5:54 PM

The proof of the benefits of marriage were plain for centuries if not a millennium before the first state recognition through civil marriage.

This sounds like a strong argument based in plausibility. Or maybe you have some hard data?

The burden of proof in justifying a change of public policy always lies with the proponents.

The standard for the burden resides with each individual (*), as do whether the arguments meet the standard. I argue the plausibility-appeal to the plain benefits of opposite-sex marriage apply equally to same-sex marriage.

(*) Sometimes the courts mandate a burden on the state to disprove.

This is an argument against permitting homosexuals (or a single adult) to adopt children rather than an affirmative argument for same sex marriage.

Gay people are going to have their own kids. Would you rather they be raised in married or unmarried households?

# posted by

just_looking : 6:09 PM

Robert Link:

Odd isn't it, that the only people I know who argue for a ban on all state sanctioned marriage are straight-like-me? I've argued as long as I can remember that the state has no business in marriage issues, as marriage is a religious event. Separation and establishment and all that.

While a sample size of 2 leaves a fairly large MOE, I also think that states shouldn't be involved in the marriage business, period. Provide civil unions and leave the religious stuff to the churches. But that might be a hard sell, even harder than providing equal rights for gays, for some strange -- but telling -- reason....

Cheers,

# posted by

Arne Langsetmo : 6:35 PM

the only people I know who argue for a ban on all state sanctioned marriage are straight-like-me?

There may be an invertibility problem with that one. I find state recognition of my straight marriage a good thing and wouldn't argue for a ban on state sanction of marriage. It recognizes a fact of social behavior and is handy around the house. Generally law that adapts to reality offers advantages. The best traffic law is simply codified good driving.

The reality is that same sex couples are now in committed unions the same as opposite sex couples. I expect all couples would like to enjoy the same benefits of public recognition. Perhaps the law could catch up.

There is a certain value to the analysis of lead, follow, or get out of the way. Prop. 8 and its ilk offer us examples of the law getting in the way. So a good start would simply be for the law to get out of the way. We could then debate at our leisure how the law might follow or lead. And I suspect that's exactly how it will play out.

# posted by

jpk : 7:20 PM

jpk: "The best traffic law is simply codified good driving."

By analogy, then: There is the sociological argument that the institution of marriage is a product of the agricultural age, suited to concentrating wealth and power, an age pre-occupied with breeding chattel, including human women and children.

And if one prefers to set aside that argument, the incontrovertible fact remains that lifetime monogamous pairing is a statistical aberration (as is the nuclear family).

So, yes, let's "codify good driving": Run households like businesses, contractually; create rules that ensure children are raised safe and healthy (maybe even by someone who donated an egg or a sperm to their cause); and leave religious issues like the sacrament of marriage to the churches.

Of course, as a straight man enjoying the benefits of the prevailing system perhaps I have greater liberty to critique it than do my gay friends who just want a taste of what is given freely to me for no better reason than a preference to sleep with a setter instead of another pointer.

While we're still chewing on this one, here's a great quote from Professor Volokh:

Now naturally these foundational moral principles are pretty general and abstract, and thus ambiguous in application. But the same is true of the principles that most religious people use. With very few exceptions, even the most devout Christians don’t literally follow all the commands of the Bible. Leviticus condemns male homosexuality as an abomination, but it also condemns eating shellfish as an abomination (11:10). Most Christians don’t follow the dietary rules in Leviticus -- and they may have good reason to do so, reasons based on interpretations of other parts of the Bible, or on tradition, or on their reasoning about what God must care about. But this just means that they, like those who follow a secular moral code, must make hard moral judgments that may often lack clear textual authority.

# posted by

Robert Link : 8:00 PM

just_looking said...

I argue the plausibility-appeal to the plain benefits of opposite-sex marriage apply equally to same-sex marriage.

Why is this at all plausible?

Marriage is the union of a man and a woman. The immense benefits of marriage are the results of the uniques interactions between the married man and woman.

It is neither intuitively obvious nor proven that two men or two women would have the same interactions and results as a man and a woman even assuming all other variables are the same.

You do not have the same relationship with your mother that you have with your father, with your sister that you have with your brother or even with your female friends that you have with your male friends.

# posted by

Bart DePalma : 10:13 PM

Robert:

The benefits of marriage are far more than a mere legal contract and are not the product of some mythical patriarchy meant to reduce women and children to chattel. The benefits are mutual.

I would recommend that you read the excellent "he Case for Marriage: Why Married People Are Happier, Healthier, and Better off Financially"
by Linda J. Waite and Maggie Gallagher.

# posted by

Bart DePalma : 10:18 PM

bart depalma said:

I would recommend that you read the excellent "he [sic] Case for Marriage: Why Married People Are Happier, Healthier, and Better off Financially"

So, why are you against gay people being happier, healthier, and better off financially?

# posted by

Hank Gillette : 10:46 PM

"Bart" DeBugblatter persists with his hallucination that "rights" need to be individually justified to be granted:

It is neither intuitively obvious nor proven that two men or two women would have the same interactions and results as a man and a woman even assuming all other variables are the same.

You'd never know it by the video rentals. I understand that "girl on girl" is rather popular ... not to mention I hear that it's statistically more successful (for the woman) than "man on woman".

That being said, WTF does that have to do with "rights"?

Care to answer as to how you figger that your rights need to be justified in advance solely by their beneficient effect on society as a whole, "Bart"? If so, I'd say you're pretty much SOL in the "rights" department....

Cheers,

# posted by

Arne Langsetmo : 11:30 PM

"Bart" DeBugblatter:

You do not have the same relationship with your mother that you have with your father, with your sister that you have with your brother or even with your female friends that you have with your male friends.

Speak for yourself. Ummm .... on second thought, no, please don't. We really don't want to know about your "relationship" with your brother, your sister, your mother, or your male friends, for that matter....

On a more serious note, don't the examples you choose to put forward here as relevant argue against any restrictions on gay marriage? That is, unless you really were talking about your consanguinous "relationships" above....

You're getting increasingly loopy, "Bart". Maybe a vacation -- preferably long -- would be in order.

Cheers,

# posted by

Arne Langsetmo : 11:38 PM

"Bart" DeBugblatter:

I would recommend that you read the excellent "he Case for Marriage: Why Married People Are Happier, Healthier, and Better off Financially"

And who paid Maggie Gallagher to flog that book? Not the Dubya maladministration, by any chance?

But if we are to take this as true (and not just cum hoc ergo propter hoc), doesn't this argue for allowing gays to marry? That is ... unless you want gays to be unhappy and unhealthy....

Cheers,

# posted by

Arne Langsetmo : 11:45 PM

IMO one of the best arguments against gay marriage is that so many people oppose it. This opposition has led to on-again, off-again gay marriage rights in California and to a great non-uniformity of gay marriage rights among different states and different countries. The same argument might be made against civil unions (or domestic partnerships), but there is much greater hope of achieving some stability and uniformity for civil-union rights than for gay-marriage rights. The money and effort that is wasted on gay-marriage campaigns would be much better spent on civil-union campaigns.

Also, I have other reasons for opposing gay marriage:

(1) For a small minority that is not terribly oppressed in the USA, gays have IMO been getting too much sympathy and support. I would like to see more support for, say, legalization of red-light districts.

(2) I am angry at gays for mixing politics and sports in the campaign against Cobb County's participation in the 1996 Olympics after the county council passed an anti-gay resolution.

Arne Langsetmo driveled,
>>>>>> Larry Fafarman:

Also, I am annoyed that gays and their supporters seem to enjoy offending people by using the term "his husband" instead of "his spouse" or "his partner."

And I am in turn amused and heartened that you are annoyed. <<<<<<

So you don't merely want equal marriage rights for gays -- you also want to annoy and offend people.

# posted by

Larry Fafarman : 12:19 AM

and California, whose domestic partnership law was left undisturbed by Proposition 8.

That's not true, Andy. The May court decision said:

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

And indeed they found that the state constitution prohibits the state from establishing a statutory scheme under which the union of a man and a woman is a marriage, but the union of a same-sex couple with all the same rights and benefits is named a "Domestic Partnership". Now that the Constitutional ALSO says that only the union of a man and a woman can be called a marriage, it doesn't change the fact that a statutory scheme that gives the same rights a different name is still unconstitutional. DP's were left on the books because, as an option available along with marriage, they were not unconstitutional. But now that they again are a statutory scheme that gives a different name for the same rights, they are again as unconstitutional as they were before.
The only constitutional option is to give them substantially different rights, and the only way to do that that makes sense and preserves the essence of marriage is defining them as marriage minus conception rights. Then they could have different names. But they can't if they give the same rights.

# posted by

John Howard : 2:53 AM

Note that the court pointedly said it wasn't addressing whether it would be OK for the state to deny same-sex couples marriage. Of course that would be OK, just as denying a brother and sister marriage is OK. There just needs to be a supportable basis. The risks and dangers and costs of same-sex conception are a supportable basis, and preserving everyone's natural conception rights is a supportable basis.

California should take this opportunity to enact Recognition-Ready Civil Unions that would meet the federal standard for being recognized as if marriages for federal purposes. That standard should be "marriage minus conception rights". Then when DOMA is repealed with the Egg and Sperm Civil Union Compromise, California couples will immediately qualify for federal recognition. Here is my blog post suggesting this.

# posted by

John Howard : 3:07 AM

This comment has been removed by the author.

# posted by

John Howard : 3:07 AM

@Larry: "The money and effort that is wasted on gay-marriage campaigns..."

You've got your poles reversed. The money and initiative actually comes from the bigots trying to ban what courts have, quite inexpensively by comparison, found to be a right.

The rest of your reasons would serve just as well for a reversal of Loving. Is this your "A" game?

# posted by

Robert Link : 6:42 AM

@John Howard,

Just took a quick skim over at "Egg and Sperm". Nice reminder that LGBT isn't anything like a monolithic group.

You will have concluded that I do not entirely agree with you. I would opt for total equality in marriage, and haven't concern one about "brave new world" scenarios. But I'll be watching for your posts to learn more.

Peace,

rl

# posted by

Robert Link : 6:48 AM

The immense benefits of marriage are the results of the uniques interactions between the married man and woman. It is neither intuitively obvious nor proven that two men or two women would have the same interactions and results as a man and a woman

This is a central issue. Are gay relationships the same as their straight counterparts at their core? Are not both relationships the fulfillment of the human desire for a lifelong, loving, romantic partner?

I say, yes. That's the affirmative case for gay marriage. If you say no, you are demeaning gay relationships.

# posted by

just_looking : 8:31 AM

Is there any evidence that entry into a civil marriage without the simultaneous entry into the vows of the sacrament of marriage makes a couple of any sexual orientation more likely to be monogamous than they were prior to the civil marriage?

Yes. Not only is there tons of information about the power of marriage--you quote it yourself if you haven't noticed--but there's recent research that is directly relevant to the categories we're discussing. Check out January's issue of Developmental Psychology, and you'll find a recent study of the differences between same-sex unions recognized by the state, same-sex unions without state recognition, and heterosexual marriage.

What they found was that, over the three-year interval between data collection points, same-sex unions without state recognition were much more likely to dissolve than the other two categories. Same-sex unions with recognition, on the other hand, were as stable as heterosexual couples with state recognition.

Yes, marriage is a sacred concept, but belief in the sacredness of marriage is not limited to heterosexuals. People raised in a culture that puts a premium on marriage (and acknowledges that anything else is somehow more "flexible" and temporary) are going to live accordingly. If stable family units are the key to social success, then we should be trying to find stability for all people in society, not just one type of people.

# posted by

PMS_CC : 9:34 AM

just_looking said...

BD: The immense benefits of marriage are the results of the unique interactions between the married man and woman. It is neither intuitively obvious nor proven that two men or two women would have the same interactions and results as a man and a woman

This is a central issue. Are gay relationships the same as their straight counterparts at their core? Are not both relationships the fulfillment of the human desire for a lifelong, loving, romantic partner?

Actually, romance appears to have very little to do with the benefits of marriage. It appears that "shotgun" marriages that are compelled to care for the children conceived by unmarried couples produce essentially the same benefits as traditional marriages.

Once the romance is taken out of the equation, what is left are the social interactions between the man and the woman. In other words, how the woman improves the man and vis versa. I would suggest that this is the core of marriage.

The question becomes whether a man can improve another man the way a woman can or whether a woman can improve another woman the way a man can?

# posted by

Bart DePalma : 10:36 AM

pms:

Are these the anecdotal studies with tiny samples and no control groups that you provided the last time we discussed this subject?

If these are new, I would enjoy reading them if you would provide links or cites.

# posted by

Bart DePalma : 10:39 AM

I am stunned by the types of arguments I have seen here.

It seems some people think proponents of gay marriage need to "lay out a case" why gay marriage gives the same benefits to society as straight marriage. This is the definition of stereotyping. Obviously, *some* straight marriages are a huge detriment to society. Meanwhile, at least some gay marriages would not be so detrimental. Thus, this argument is based on a prejudice that individuals will conform to some (hypothetical) statistical characteristic of the group.

When someone argued gay marriage entitles the children of gay couples to certain protections, it was replied that the absence of gay marriage is an argument that gays shouldn't have children. I can't believe one cannot see this argument is circular.

And apparently someone wants to punish gays for purposely annoying people by saying "his husband" instead of "his spouse." Maybe they say this because it didn't cross their mind someone would be annoyed by it -- it never crossed mine. I don't see what's annoying about it. I don't like dogs, and I hate the mess they leave on the sidewalk, but it doesn't bother me when someone says "my dog."

Some other person is against gay marriage because gays get "too much sympathy and support." Interesting, that's why I'm pro-abortion -- I can't stand how gaga people get over babies. Seriously, now, is the argument here that we shouldn't extend rights to gays because a lot of people feel bad they don't have those rights?

The best argument that has been given is because "so many people oppose it." I mean it, that's the best argument. Problem is, it's not very good.

# posted by

Michael Salem : 11:58 AM

Larry Fafarman:

So you don't merely want equal marriage rights for gays -- you also want to annoy and offend people.

No. Just OCD RW whack-job azos who richly deserve such until they see fit to seek treatment and an appropriate Buspar regime.

Cheers,

# posted by

Arne Langsetmo : 12:09 PM

For example:

[Farry Lafarman]: IMO one of the best arguments against gay marriage is that so many people oppose it....

... which worked so well to keep blacks disenfranchised second-class citizens for so long....

Also, I have other reasons for opposing gay marriage:

(1) For a small minority that is not terribly oppressed in the USA, gays have IMO been getting too much sympathy and support. I would like to see more support for, say, legalization of red-light districts.

... for reasons that should be apparent.

(2) I am angry at gays for mixing politics and sports in the campaign against Cobb County's participation in the 1996 Olympics after the county council passed an anti-gay resolution.

Wow. Yes, indeed, sports are sacrosanct, and how dare anyone intrude politics into such ... ummm, Olympian, non-commercial, collegial, just-for-fun-and-the-sport-of-it affairs. Yes, Cobb County was unfairly treated, and they should have been able to participate in the camaraderie (not to mention the tourist bucks and such), despite their own peculiar take on what constitutes "camaraderie". Cobb County is (and has been for a long time) a shining exemplar of the idea that people ought to be judged on the content of their character (and ability), and not on the basis of the prejudices of others toward them.

Cheers,

# posted by

Arne Langsetmo : 12:21 PM

John Howard:

And indeed they found that the state constitution prohibits the state from establishing a statutory scheme under which the union of a man and a woman is a marriage, but the union of a same-sex couple with all the same rights and benefits is named a "Domestic Partnership". Now that the Constitutional ALSO says that only the union of a man and a woman can be called a marriage, it doesn't change the fact that a statutory scheme that gives the same rights a different name is still unconstitutional. DP's were left on the books because, as an option available along with marriage, they were not unconstitutional. But now that they again are a statutory scheme that gives a different name for the same rights, they are again as unconstitutional as they were before.

With you so far...

The only constitutional option is to give them substantially different rights, and the only way to do that that makes sense and preserves the essence of marriage is defining them as marriage minus conception rights. Then they could have different names. But they can't if they give the same rights.

No. The only option remaining is to declare that the state may not bestow "marriage" on any couple, and henceforth the state, consistent with its equal protection responsibilities, may only formalize civil unions available to all.

Cheers,

# posted by

Arne Langsetmo : 12:26 PM

"Bart" DeBugblatter:

Actually, romance appears to have very little to do with the benefits of marriage.

Mind if we e-mail this to your wife? ;-) [further caustic speculation on the nature of "Bart"'s 'domestic partnership' shipped in the interest of comity, good taste, and keeping breakfast down...]

Cheers,

# posted by

Arne Langsetmo : 12:37 PM

No Arne, because marriage is a basic civil right that everyone must be allowed to enter into, if they find a willing partner. It's an internationally recognized legal status. And regardless of the name or legal status, people should have different rights with a man that they do with a woman, they should only have the right to conceive with someone they can ethically conceive with, ie, someone of the other sex.

The court specifically left that giant obvious option there when they said they were not addressing whether same-sex couples can be denied the rights of marriage. Arne, they can.

# posted by

John Howard : 12:48 PM

"Bart" DeBugblatter:

It appears that "shotgun" marriages that are compelled to care for the children conceived by unmarried couples produce essentially the same benefits as traditional marriages.

Not quite: "Lerman also presents a variety of multivariate results on the relationship of initial family status to subsequent family status, controlling for numerous related factors. Mothers who marry early (any time prior to one year following the child’s birth.) are notably less likely to spend time later as single parents compared to mothers who cohabit. Further analyses show marriages that occur after pregnancy but prior to birth (shotgun marriages) are only marginally less beneficial compared to conventional marriages (marriages occurring prior to pregnancy) in terms of reducing time spent as a single parent."

Aside from the cum hoc ergo propter hoc fallacy here, the report doesn't state what "Bart" claims it states.

On top of that, it says nothing about "romance" whatsoever.

Cheers,

# posted by

Arne Langsetmo : 12:55 PM

"Bart" DeBugblatter:

["Bart", to PMS_Chicago]: If these are new, I would enjoy reading them if you would provide links or cites.

Why bother. You can't understand (and misstate or misconstrue) even the links that you provide.

Cheers,

# posted by

Arne Langsetmo : 12:58 PM

Volokh makes for great reading. But he attributes more to most reactions than I think is really there.

Most homophobia doesn't result from religious belief, or textual analysis, or moral decision making. It's just what people got told by parents and the community. References to texts or morals are pure rationalization, in my experience. "It's in the Bible!" Really? What's your favorite verse? Uh.....

# posted by

jpk : 1:03 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 1:03 PM

bart said:

"Now all you need to do is offer evidence to support the proposition that marriage promotes the stability and well being of homosexual relationships to the same extent as it does for heterosexual relationships or to any extent at all."

this is mind-blowing in the thoughtlessness it carries

I don't see it to be nasty, necessarily, but it certainly is devoid of any concern for statistics

# posted by

Joshua Noyes : 1:10 PM

"Marriage is neither a conservative nor a liberal issue; it is a universal human institution, guaranteeing children fathers, and pointing men and women toward a special kind of socially as well as personally fruitful sexual relationship. Gay marriage is the final step down a long road America has already traveled toward deinstitutionalizing, denuding and privatizing marriage. It would set in legal stone some of the most destructive ideas of the sexual revolution: There are no differences between men and women that matter, marriage has nothing to do with procreation, children do not really need mothers and fathers, the diverse family forms adults choose are all equally good for children. What happens in my heart is that I know the difference. Don't confuse my people, who have been the victims of deliberate family destruction, by giving them another definition of marriage."

Walter Fauntroy-Former DC Delegate to CongressFounding member of the Congressional Black CaucusCoordinator for Martin Luther King, Jr.'s march on DC

# posted by

Fitz : 1:24 PM

Actually, romance appears to have very little to do with the benefits of marriage. It appears that "shotgun" marriages that are compelled to care for the children conceived by unmarried couples produce essentially the same benefits as traditional marriages. Once the romance is taken out of the equation

It is a logical fallacy to conclude that romance has nothing to do with marriage because some marriages have nothing to do with romance.

In other words, how the woman improves the man and vis versa. I would suggest that this is the core of marriage.

That's a very weak claim.

# posted by

just_looking : 1:53 PM

Good old Walt!

He should definitely discuss the matter with that leftie Dick Cheney. Free exchange of views and all that.

But he, and anybody who wants to have the discussion, better have it soon. The trend is clear: it won't be long before such discussion will be about as interesting as a discussion on whether mixed fibers in clothing should be outlawed.

I don't think the government should ban poly/cotton blends, as long as they're clearly labeled. But it's hard to get people to argue for government bans here, or against, or passionately on either side. There might have been a time that this was a hot discussion, but that time has passed.

# posted by

jpk : 2:01 PM

Marriage is [...] a universal human institution, [...] pointing men and women toward a special kind of socially as well as personally fruitful sexual relationship

Which demeans the corresponding same-sex relationship

Gay marriage [...] would set in legal stone [that] marriage has nothing to do with procreation, children do not really need mothers and fathers

More logical fallacies.

# posted by

just_looking : 2:02 PM

Bart writes:
Which part of "proponents of same sex marriage" did you not understand in my first post? The burden of proof in justifying a change of public policy always lies with the proponents.

That's your reason for offering nothing of substance? Isn't prop 8 a change in public policy?

Regardless, you have yet to give real substance to your "offers no benefit to society" argument in terms of any criteria capable of withstanding critical examination. Under your criteria, why would the sterile be allowed to marry, for example. Or why would those with genetic defects be allowed to marry? Should people carrying the Tay-Sachs gene only be given civil unions? After all, their marriage will be of a net cost in measurable terms.

Of if you imagine that other criteria like stability of a relationship or something similar as the basis for allowing a marriage/civil union, then people should get a personality test when applying for a marriage/civil union license, so it can be known if the marriage/civil union should go forward. Two manic depressives or two bigots or two racists being allowed to marry will have a higher likelihood of costing society much more so than two people in the middle of the bell curve.

You really haven't offered anything that looks to be genuinely compelling for a reason to outlaw same-sex marriage.

# posted by

John : 2:04 PM

Logic fallacies lie soley with the side assuming marriage is just the state confering status to a romantic relationship. The state would have no real interest in marriage if that were the case.

It is not, it is the state's attempt to bring men and women together for the good of themselves, their children and all of society.

Your misreading of Supreme Court case law on the subject of marriage: is making the same mistake the New York Court points out in its decision. Discussing the Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (197; Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)

Judge Graffeo noted….

“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”

# posted by

Fitz : 2:11 PM

I'm for gay marriage if we decide that same-sex conception should remain legal. But I'm not for same-sex conception remaining legal.

Regardless, there's no requirement that the states sanction such.

The state is the only entity that can enforce the obligations of marriage and determine if people are eligible to marry each other and record the marriage. (The Federal government could do this as well, by "state" I mean governing authority) Marriages are public, they are official, universally across the globe and throughout history, they give official public approval to conceive children together and ensure full consent to the obligations and commitments of marriage.

Only a man and a woman should have a right to conceive together, Arne. Why are you insisting on claiming a right to attempt same-sex conception, which might not ever be possible in humans anyhow? Just accept that you need a woman to conceive.

# posted by

John Howard : 2:17 PM

[Marriage] is the state's attempt to bring men and women together for the good of themselves, their children and all of society.

How is civil marriage good for the couple and society?

# posted by

just_looking : 2:18 PM

How is marriage good for the couple and society?....

It binds the man & women together in support of any children they sire and therfore hreleaves society of the tremendous social consts of illegitamacy.

To elaborate the (obvious) slight of hand the New York points out is at the heart of this dispute. In the Goodridge Mass, decision

Justice Cordy wrote in dissent, the majority of the court had -

“transmuted the "right" to marry into a right to change the institution of marriage itself.”1

"only by assuming that 'marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the 'right' of same-sex couples to 'marry'.”2

"[i]n context, all of these decisions and their discussions are about the 'fundamental' nature of the institution of marriage as it has existed and been understood in this country, not as the court has redefined it today.” 3

Maintaining that marriage's - “'fundamental' nature is derivative of the nature of the interests that underlie or are associated with it” -and that a an - “examination of those interests reveals that they are either not shared by same-sex couples or not implicated by the marriage statutes.”4

1,2,3,4, - Goodridge v. Dept. of Pub. Health,798 N.E.2d 941, 955 (Mass 2003)
(Justice Cordy dissenting)

# posted by

Fitz : 2:29 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 2:30 PM

[Marriage is good for the couple and society because] it binds the man & women together in support of any children they sire

And marriages of the elderly and infertile?

# posted by

just_looking : 2:39 PM

Just Looking, if you want to equate homosexuality with old age and disability, you go down a road that undermines the quest for SSM based on affirmation of homosexual love.

SSMers should have better argumetns than to point at the elderly and disabled.

* * *

The question remains: Why is it impossible for proponents of same sex marriage to make an affirmative case for redefining marriage to include homosexual unions?

The answer, unfortunately, is that there is no core meaning to their concept of "gay marriage".

At least, not one they can adequately articulate.

They use rules for attack the core meaning of marriage.

They say that procreation is not mandatory. Okay, but what is mandatory?

1. The man-woman requirement.

2. Consent to all that marital status entails -- which includes the marital presumption of paternity.

The core meaning of marraige has definitive legal requirements. That meaning is 1) integration of the sexes, 2) contingency for responsible procreation, and 3) these combined as coherent whole (a social institution).

This core is extrinsic to the one-sexed arrangement -- homosexual or not, romantic or not, caring or not.

But if SSMers attack the core of marriage with certain rules, then, it is fair to turn the tables and challenge their idea of "gay marriage" with those same rules.

A. If (fill in the blank) is not mandatory -- no legal requirement -- then it is nonessential to "gay marriage".

2. If (fill in the blank) can occur outside of "gay marriage" then it is also nonessential.

Okay, SSMers, please state the core meaning of marriage, by your lights.

Then please cite the legal requirements that define that core -- where "gay marriage" has been imposed or enacted.

And name the essentials of "gay marriage" that are compulsory and which can not occur outside of "gay marriage".

I would expect that the core meaning of gay marriage is not romance, not caretaking, not even equality, but rather to recruit Government to help the innoculate gay identity politics against opposition and dissent.

But the SSMers here might surprise and provide the core meaning and its definitive requirements.

That would be helpful. That's how society cold distinguish the relationshiptype that is being talked about. It is how society might identify it to provide protections for it. To draw lines around it to not confuse it with some other arrangement.

# posted by

Chairm : 3:04 PM

bitswapper said...

Bart writes: Which part of "proponents of same sex marriage" did you not understand in my first post? The burden of proof in justifying a change of public policy always lies with the proponents.

That's your reason for offering nothing of substance? Isn't prop 8 a change in public policy?

No, it was a reaffirmation of previously voted upon public policy that four outlaw lawyers in robes attempted to change by judicial fiat.

Under your criteria, why would the sterile be allowed to marry, for example.

I have not even offered the procreation argument on this thread. My argument concerned the benefits that the husband and wife bring to one another and for which there is no evidence of similar benefits arising from a homosexual union. This mutual benefit argument alone is enough to justify marriage for a man and a woman who cannot procreate.

Even absent this argument, one can defeat the claim that homosexual unions are similarly situated to marriage by simply pointing out that marriage has the potential for procreation while homosexual unions do not. The fact that a tiny subset of married couples cannot procreate to does not make homosexual unions similarly situated to marriage in this area.

You really haven't offered anything that looks to be genuinely compelling for a reason to outlaw same-sex marriage.

Nor do I need to.

You have no right to my recognition or subsidy for your relationship. Thus, when you come to me demanding that I recognize and subsidize your relationship, it is not up to me to offer evidence why I should not. Rather, it is your burdent to give me compelling reasons why I should.

# posted by

Bart DePalma : 3:05 PM

arne, if you agree that people should only have a right to conceive children with someone of the other sex, simply say "I agree..."

Or, continue to insist that people should have a right to conceive with someone of their own sex by refusing to agree to the inverse.

Marriage Minus Conception Rights! That's the definition for Civil Unions to be recognized when we repeal DOMA, and California should take this opportunity to create the first Recognition-Ready Civil Unions so that they can jumpstart the DOMA debate and get it done right away. Don't waste this opportunity to help same-sex couples all across the US.

# posted by

John Howard : 3:12 PM

Even absent this argument, one can defeat the claim that homosexual unions are similarly situated to marriage by simply pointing out that marriage has the potential for procreation while homosexual unions do not. The fact that a tiny subset of married couples cannot procreate to does not make homosexual unions similarly situated to marriage in this area.

Bart and just_looking: those elderly or infertile marriages have the right to attempt to conceive together. Society approves of them conceiving and in no case ever on record has the state ever allowed a couple to be married that was also publicly prohibited from conceiving children together. Consider that a brother and a sister are a man and a woman and not infertile or elderly, but the state does not allow them to marry, because the test is not "can they procreate", but "can they ethically procreate", or, does the state approve of relationships of this public kind to conceive.

# posted by

John Howard : 3:20 PM

if you want to equate homosexuality with old age and disability, you go down a road that undermines the quest for SSM based on affirmation of homosexual love.

I don't equate homosexuaity with old age or disability. I equate the reason we celebrate the marriages of the elderly and infertile to the affirmative case for same-sex marriage. The state is promoting stability in the lifelong, romantic relationship (that's the core).

Then please cite the legal requirements that define that core [...] And name the essentials of "gay marriage" that are compulsory.

If you are arguing that all marriages must fall within the core, I disagree. Of course some marriages beyond the core may optionally be allowed.

# posted by

just_looking : 3:39 PM

just_looking said...

I equate the reason we celebrate the marriages of the elderly and infertile to the affirmative case for same-sex marriage. The state is promoting stability in the lifelong, romantic relationship (that's the core)...Of course some marriages beyond the core may optionally be allowed.

This proposed new core for civil marriage would also require recognition of incestuous, polygamous, child and theoretically bestial civil marriages. because you have removed nearly all definition from the scope of marriage by reducing it to simply a lifetime romance.

# posted by

Bart DePalma : 4:03 PM

This proposed new core for civil marriage would also require recognition of incestuous, polygamous, child and theoretically bestial civil marriages.

The core is a lifetime, romantic relationship to one other person. Polygamy and bestiality are outside the core.

Child marriages can be denied because of the compelling state interest to require informed consent. Sibling and parent-child marriages can be denied because of the compelling state interest in avoiding birth defects.

# posted by

just_looking : 4:14 PM

and brothers and sisters?

The core is the right to conceive children together. If we allow that for same-sex couples, or brother and sister, we should allow them to marry. If we don't, we shouldn't. We shouldn't allow either to conceive together, because each would be unethical, each for many reasons.

We should not equate my right to conceive with a woman with my right to conceive with a man. My right to conceive with a woman is a basic fundamental right and I should not be prohibited from attempting it, no matter how old or infirm I am. My right to conceive with a man should be equal to my right to conceive with my sister, that is, none whatsoever, even if I am fit and young.

# posted by

John Howard : 4:34 PM

just_looking said...

BD: This proposed new core for civil marriage would also require recognition of incestuous, polygamous, child and theoretically bestial civil marriages.

The core is a lifetime, romantic relationship to one other person. Polygamy and bestiality are outside the core.

Child marriages can be denied because of the compelling state interest to require informed consent.

Sibling and parent-child marriages can be denied because of the compelling state interest in avoiding birth defects.

Ah, there are more core requirements. A couple questions...

What is your basis for denying romantic wedded bliss to a polygamous relationship? Sounds arbitrary to me. If your rational basis is moral or religious, why then can't the state decline to extend the definition of civil marriage to so called "sodomites?"

If procreation is not an element of your core definition of marriage, how does the state have a compelling interest in avoiding birth defects by declining to include incestuous unions in the definition of civil marriage? If procreation is a valid state concern in defining civil marriage, then the state can of course decline to include homosexual unions in the definition of civil marriage because they cannot procreate.

# posted by

Bart DePalma : 4:59 PM

just_looking, the higher risk of birth defects is just one of the reasons the state does not allow siblings to marry. Consider that the prohibition applies even if they are not blood relatives, because they are adopted siblings. Merely being able to make sibling conception "safe" does not make it ethical.

# posted by

John Howard : 5:02 PM

If procreation is a valid state concern in defining civil marriage, then the state can of course decline to include homosexual unions in the definition of civil marriage because they cannot procreate.

Bart, they cannot procreate ethically. Kaguya proves that they can indeed procreate, or at least, they can indeed try to procreate and possibly succeed. That needs to be prohibited, like incest is prohibited, in order for it to be a reason why same-sex couples cannot marry.

# posted by

John Howard : 5:07 PM

Just Looking:

And marriages of the elderly and infertile?

They detract from the solemnity, sanctity, and dignity of bona fide marriages and discourage eligible fertile couples from marrying (with the untoward side effect of encouraging abortions as the unwed mothers of "accidents" contemplate their future without the sacred blessings of marriage).

This, of course, is "intuitively obvious".

Cheers,

# posted by

Arne Langsetmo : 5:12 PM

Ah, there are more core requirements

Nope. Same core.

What is your basis for denying romantic wedded bliss to a polygamous relationship? Sounds arbitrary to me

You really think encouraging harems leads to stability?

If procreation is not an element of your core definition of marriage, how does the state [...]? If procreation is a valid state concern in defining civil marriage, then the state can of course decline to include homosexual unions

Procreation is one of the core elements, but not the only one. The state needs a compelling reason to deny a marriage that falls within any part of the core.

# posted by

just_looking : 5:13 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 5:17 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 5:20 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 5:23 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 5:28 PM

You have no right to my recognition or subsidy for your relationship. Thus, when you come to me demanding that I recognize and subsidize your relationship, it is not up to me to offer evidence why I should not. Rather, it is your burdent to give me compelling reasons why I should.

Why, that's exactly what they told the Lovings....

Cheers,

# posted by

Arne Langsetmo : 5:31 PM

Arne is right that the "man-woman requirement" is "assuming your conclusion", Bart. We can choose to approve of people conceiving with someone of their own sex, or we can choose not to. It's the same with siblings.

Bart, this is the best opportunity ever to preserve marriage as a man and a woman. That's your goal, isn't it? What is wrong with The Egg and Sperm Civil Union Compromise? OK, so we give CU's federal recognition. Big deal! We preserve marriage!!! We preserve everyone's right to conceive with their own unmodified genes. We preserve everyone's right to marry!! Please work with me to achieve this!

# posted by

John Howard : 5:35 PM

Chairm:

Channelling "Bart", eh?

Logical fallacies 101:

A). Assuming your conclusion:

They say that procreation is not mandatory. Okay, but what is mandatory?

1. The man-woman requirement.

This is an exquisite example.

2. Consent to all that marital status entails -- which includes the marital presumption of paternity.

Huh?!?!? Take off the tin-foil hat. The subether transmissions from Uranus are frying your brain.

Cheers,

# posted by

Arne Langsetmo : 5:37 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 5:44 PM

just_looking said...

BD: Ah, there are more core requirements

Nope. Same core.

You have gone from defining marriage as merely a lifetime romance to adding requirements that marriage be limited to no more than two adults as well as some undefined procreation requirement referred to below.

BD: What is your basis for denying romantic wedded bliss to a polygamous relationship? Sounds arbitrary to me

You really think encouraging harems leads to stability?

Polygamy has worked for more than two millennia around the world. Given that women outnumber men nearly everywhere except for "one child" China, this would appear to be the best arrangement to find everyone a mate.

BD: If procreation is not an element of your core definition of marriage, how does the state [...]? If procreation is a valid state concern in defining civil marriage, then the state can of course decline to include homosexual unions

Procreation is one of the core elements, but not the only one. The state needs a compelling reason to deny a marriage that falls within any part of the core.

Would you care to more expressly define how procreation is a core requirement of your definition of marriage? It sounds like you just made the Focus on the Family argument against same sex marriage. If procreation is a core requirement of marriage, then that would appear to automatically exclude homosexual unions.

Deconstruction of traditional norms is like walking into a minefield of unintended consequences.

# posted by

Bart DePalma : 5:47 PM

No Arne, that's not a third option, it is the second option: refuse to agree. Either say you agree, or don't say you agree, there's no other possibility. But if you don't say you agree, don't act as though I'm presenting your position falsely, or I am halucinating when I say you insist on same-sex conception being a right. I am presenting your position correctly.

# posted by

John Howard : 5:53 PM

John Howard:

No Arne, that's not a third option,...

Yes, it is. I have no interest in imposing on the good will of the proprietors here and 'discussing' your paranoid hallucinations. So please, just FOAD, m'kay?

And with that, I'm done with you.

Cheers,

# posted by

Arne Langsetmo : 6:12 PM

As I said before, the prospects of eliminating widespread intolerance of same-sex marriage are dim, because this intolerance has persisted into a time when intolerance in general is frowned upon. And voters don't need a good reason for opposing same-sex marriage -- the only reason they need is, "I don't like it." Also, as I said, this widespread intolerance has caused great instability and non-uniformity in same-sex marriage laws. IMO it would be better to forget about same-sex marriage and push for civil unions instead.

John Howard said,

>>>>>>they [the state supreme court] found that the state constitution prohibits the state from establishing a statutory scheme under which the union of a man and a woman is a marriage, but the union of a same-sex couple with all the same rights and benefits is named a "Domestic Partnership". <<<<<<<

Are you saying that because marriages and domestic partnerships are substantially the same under state law, the ban on same-sex marriage repealed the domestic-partnership law by implication? Posadas v. National City Bank of New York, 296 U.S. 497, 503 (1936) says of repeals by implication,

The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication: (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment. (emphasis added)

Prop. 8 stated no intention of repealing the domestic partnerships law, so this law still applies. Also, there is the question of the validity of the ~18,000 same-sex marriages performed in the state when same-sex marriage was legal under the state supreme court's ruling. Does the US Constitution's prohibition on state ex post facto laws protect these marriages? I think so, even though these marriages were legalized by the courts and not by the legislature or the voters. IMO what matters is that these marriages were legal when they were performed -- the main principle behind the prohibition of ex post facto laws is that a law may not retroactively illegalize something that was legal.

# posted by

Larry Fafarman : 7:15 PM

#1. Infertility arguments.

Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children.”
Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.

#2. Arne Langsetmo (wrote)

"Why, that's exactly what they told the Lovings...."

The problem with the (horribly over used) Loving example is its power comes from mere analogy. The problem with analogy is it is exactly that: an analogy.
Its weight raises and falls on the strength of the analogy. Courts have been quick to dismiss this characterization of marriage law with racial segregation. The point of ant—miscegenation laws were to keep the races apart. No one would seriously argue that that is the point of marriage law. Quite the opposite, the intention of marriage law is to bring the two sexes together.

Note this quote rebuke of same-sex “marriage” offered by the plurality in...

Hernandez v. New York, Justice Smith, when confronting the idea that marriage as historically defined was analogous to Loving.

“[T]he traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind.”

The use of the term kind is telling. Not a matter of degree, mind you. Rather a different of qualitative substance…a difference of kind.

As dismissals of the Loving v Virginia case goes, this is rather mild. However – I like it for precisely that reason. It dismisses casually a analogy that doesn’t hold up precisely because it is not the same kind of things being compared.

As the Washington State Court majority illustrates

"We vigorously reject any attempt to link the discriminatory Anti miscegenation laws in Loving with this State’s DOMA. The Washington Court of Appeals in Singer correctly noted:the Loving and Perez courts [Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)] did not change the basic definition of marriage as the legal union of one man and one woman; rather, they merely held that the race of the man or woman desiring to enter that relationship could not be considered by the state in granting a marriage license. 11 Wn. App. at 255 n.8. Numerous other courts have all rejected the claim that the decision in Loving somehow challenged state laws reaffirming marriage as the union of one man and one woman.25 Careful review of the historical context of Loving further undermines the dissents’ disturbing attempt to link constitutionally void, racist laws with a historical definition of marriage as between a man and woman. Anti miscegenation laws were anathema to the “color-blind” constitution articulated in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson.26 Anti miscegenation laws infringed upon the union of one man and one woman by injecting racial status as a qualification. Such laws contradicted the fact that a man and a woman of any race have the natural right to marry and have children. This right is protected by the United States and Washington State Constitutions. Racially discriminatory anti miscegenation laws also violate the right to marriage between a man and a woman. Here, in contrast, the State’s DOMA simply confirms the common law understanding of marriage as a union of a man and woman. It is the dissent that would abrogate the common law understanding through judicial fiat."

# posted by

Fitz : 7:59 PM

Larry: "...voters don't need a good reason ..."

True. But government does. And "the people have spoken" isn't good enough. There are other criteria in a system of checks and balances as wary of tyranny of majorities as it is of tyranny of monarchs.

Voters don't need a good reason. They just need to be persuaded the worse case is the better. That's why we don't put all our eggs in the voter basket. (Except, of course, that a certain low type of intellectual thug [yes, I'm thinking of a certain SCOTUS justice who used to carp about the counter-majoritarian nature of the bench when we had a Republican Congress] will feign reliance on the will of the people, any time the people's will corresponds to their own. Others strive for loftier goals than mere immediate self interest.)

# posted by

Robert Link : 8:03 PM

No, Larry, the ex post facto provision applies to criminal cases, involving retroactive punishment for things that were not a crime when committed. No one is suggesting that anyone be punished for entering into a same-sex marriage during the brief time California allowed them. Also, marriages are routinely voided by states if new information surfaces after the marriage occurred that makes the marriage void. The fact that they have been pronounced married doesn't mean any state has to continue to declare them married, states can void existing marriages.

And it's not just those 18000 California marriages, what about marriages from Massachusetts? The clear intent and effect of the Amendment is to not recognize same-sex marriages from any state, both ones that already existed and ones that happen in the future. It doesn't make a difference when or where a same-sex marriage took place, in California it is not legal or recognized. I mean, in no other aspect of marriage does it matter what state it originated in, or how long ago. Why should it suddenly matter now? There's no way around it, no same-sex marriages are legal or recognized in California, no matter where or when they were entered into.
And the Court declared that kind of statutory scheme unconstitutional, not the Amendment. A scheme that results in different names for the same rights is still unconstitutional.

# posted by

John Howard : 8:03 PM

Fitz, you need to consider a brother and sister. They can procreate. We don't let them. You are separating marriage from procreation, not them, for they want procreation rights. Just ask them.

# posted by

John Howard : 8:05 PM

"Fitz, you need to consider a brother and sister. They can procreate. We don't let them. You are separating marriage from procreation, not them, for they want procreation rights. Just ask them.

Yes John - one could add "responsible procreation" or "ethical procreation" to my wording.

# posted by

Fitz : 8:11 PM

John Howard said,
>>>>>> No, Larry, the ex post facto provision applies to criminal cases, involving retroactive punishment for things that were not a crime when committed. No one is suggesting that anyone be punished for entering into a same-sex marriage during the brief time California allowed them. <<<<<<

Wrong. The term "ex post facto" is not restricted to criminal law, and the US Constitution's prohibition of state ex post facto laws is not restricted to criminal law. The US Constitution also prohibits state laws "impairing the obligation of contracts," and a marriage is a kind of contract. Art. I Section 10 of the US Constitution says,

No State shall . . . pass any . . . . ex post facto Law, or Law impairing the Obligation of Contracts . .

>>>>>> Also, marriages are routinely voided by states if new information surfaces after the marriage occurred that makes the marriage void. <<<<<<<

There is no new information here, but just a change in the law.

>>>>>> And it's not just those 18000 California marriages, what about marriages from Massachusetts? <<<<<<

The Calif. Supreme Court has no control over what Massachusetts does. But those ~18,000 same-sex Calif. marriages were legal under the Calif. Supreme Court's ruling and so should continue to be honored by Calif..

>>>>>> A scheme that results in different names for the same rights is still unconstitutional. <<<<<<

The courts cannot interpret Prop. 8 in a way that (1) would result in a violation of the US Constitution's prohibitions against ex post facto laws and laws impairing the obligations of contracts or (2) would not be consistent with the US Supreme Court's Posadas v. National City Bank of New York ruling on "repeals by implication" (quoted above).

# posted by

Larry Fafarman : 9:35 PM

Some fine passion displayed. Again: you boys best have that passionate argument now. It won't be long before you'll have a hell of time finding anyone who cares.

# posted by

jpk : 9:40 PM

Larry, you glossed over my point about Massachusetts marriages not being recognized in California, whether they occured in that window or earlier. The clear intent is not to recognize any same sex marriages. Those California marriages would be legal in Massachusetts, but California can't recognize a same sex marriage from anywhere anymore. It never matters where or when a marriage originated to whether a jurisdiction recognizes it or not.

And there is indeed new information: the court did not consider the issue at the core of marriage, nor did the legislature when they created DP's, because they had never even heard of same-sex conception. It was not brought up in any of the court briefs or legislative sessions. It is new information.

# posted by

John Howard : 10:28 PM

John Howard said,
>>>>>> Larry, you glossed over my point about Massachusetts marriages not being recognized in California, whether they occured in that window or earlier. <<<<<<

No, I did not gloss over that point -- my point was that California is responsible for recognizing marriages that were legalized by California courts.

>>>>>> The clear intent is not to recognize any same sex marriages. <<<<<<

The clear intent of any ex post facto law or any law impairing the obligation of contracts is to not recognize legalities of the past -- that clear intent does not make those laws constitutional.

>>>>>> And there is indeed new information: the court did not consider the issue at the core of marriage, nor did the legislature when they created DP's, because they had never even heard of same-sex conception. <<<<<<

That's not what I mean by "new information. " By "new information," I mean new information concerning individual things that would have been grounds for annulment at the time of the marriage -- e.g., a discovery that a partner was underage or that the partners are too closely related. And you are really obsessed with this "same-sex conception" idea, which you call "the core of marriage," even though most people have not even heard of the idea.

jpk said,
>>>>> It won't be long before you'll have a hell of time finding anyone who cares. <<<<<<

Well, it's a hot topic now because of the recent elections -- so now is the time to talk about it.

BTW, here is that No-on-8 TV ad showing a home invasion by Mormon missionaries where they confiscate the wedding rings of a lesbian couple and tear up their marriage certificate. I don't think that the No-on-8 folks are going to make many friends that way.

# posted by

Larry Fafarman : 12:17 AM

it's a hot topic now because of the recent elections

Nope. Mini-DOMAs have been an election issue for years. Recent elections aren't why it's hot. If anything it was less hot in this election cycle.

It's hot because it's a polarizing issue at the moment. The moment will pass.

If you see only a few frames of the movie and they are the bloody ones, you might figure it's a war movie. Could be a birth. Lot of blood there too.

The development of open, public, same sex committed unions has been arriving for years. And years from now will be seen very differently than today. The trend is clear; a few frames doesn't inform; might even misinform.

If you think now's the time to talk about it, I have good news for you: now's the time you'll find folks who'll listen. Talk!

Talk now! It won't be long before you'll find your listeners have disappeared. Sorry. They have lives too. They won't get as excited ten years from now. Twenty years, chances are they won't much care. Any more than they'd care about mixed fibers in their clothing.

# posted by

jpk : 12:40 AM

my point was that California is responsible for recognizing marriages that were legalized by California courts.

What difference does it make where the marriage originated? California is not any more responsible for recognizing a marriage from California than one from Massachusetts. I'd still like to hear your opinion on California's duty to recognize same-sex marriages from Massachusetts. Do you think they need to recognize only the ones that took place between May and November? No, they do not recognize any of them, they cannot. Nor can they recognize one from California. States do not have to recognize a marriage they want to void just because it originated in that state. They can void or anull or not recognize a marriage if it is determined to be contrary to public policy.

The clear intent of any ex post facto law or any law impairing the obligation of contracts is to not recognize legalities of the past -- that clear intent does not make those laws constitutional.

OK, true enough, but it is well understood that when a state decides not to recognize same-sex marriages, they are not going to recognize existing marriages that took place in the past. No one has been suggesting that Massachusetts marriages will forever have to be recognized in every state that doesn't have an amendment not recognizing them yet, but everyone agrees that if another state recognizes same-sex marriages, they will start to recognize Massachusetts marriages in that state, even if they took place five years ago and had been previously unrecognized. No one is going to say that is an ex post facto imposition of a contract on that couple.

And as to the contract, they can either move to massachusetts and stay married for a while, or they can be switched to a DP with the same contractual obligations (but hopefully CU's defined without conception rights). Do you consider their agreement to conceive with each other a contractual obligation? I don't think many of the couples felt they were agreeing to commit to attempting same-sex conception with each other in order to have children, so I think all of those marriages were entered into under a state of ignorance that automatically voids them as marriages, and also that would imply that CU's without conception rights are contractually equivalent to marriage as it was understood by the same-sex couples themselves. Certainly I don't think we have to let them attempt same-sex conception just because they managed to get married in California between May and June. So we have to strip their conception rights from them. If they stay married, then we'd be saying that marriages can have their conception rights stripped from them. That would be a death blow to marriage rights. All same-sex marriages in the US will have to be converted to CU's without conception rights, because all same-sex couples will lose their conception rights, due to the new information about same-sex conception being unethical, not unthinkable.

# posted by

John Howard : 1:10 AM

John Howard said,
>>>>> What difference does it make where the marriage originated? California is not any more responsible for recognizing a marriage from California than one from Massachusetts. <<<<<<

We are talking here about marriages that probably would not have occurred if the Calif. Supreme Court had not legalized same-sex marriage. Were those marriages any less valid than they would have been had SSM been legalized by the legislature or the voters instead of the courts? Suppose a same-sex couple spent $1 million on a California wedding -- is California now going to tell that couple that their marriage is not recognized by the state?

>>>>>>everyone agrees that if another state recognizes same-sex marriages, they will start to recognize Massachusetts marriages in that state, even if they took place five years ago and had been previously unrecognized. No one is going to say that is an ex post facto imposition of a contract on that couple. <<<<<<

????? How is giving that couple something that they want -- recognition of their same-sex marriage -- an "imposition"?

When a state starts to recognize same-sex marriages, the Full Faith and Credit clause and the Privileges and Immunities clause of the US Constitution require that state to recognize same-sex marriages recognized by other states.

>>>>>> Do you consider their agreement to conceive with each other a contractual obligation? I don't think many of the couples felt they were agreeing to commit to attempting same-sex conception with each other in order to have children, so I think all of those marriages were entered into under a state of ignorance that automatically voids them as marriages <<<<<<

You have created this "same-sex conception" issue out of thin air.

# posted by

Larry Fafarman : 4:53 AM

Bart writes:
I have not even offered the procreation argument on this thread.

Bart then writes:
This mutual benefit argument alone is enough to justify marriage for a man and a woman who cannot procreate ... simply pointing out that marriage has the potential for procreation while homosexual unions do not.

You couldn't stop yourself, it seems. Any word on when you'll stop with the procreation-as-criteria-for-fitness routine? For real, that is.

You have no right to my recognition or subsidy for your relationship.

Nor do you.

You have yet to offer conclusive substance that same-sex unions lack emotionally and socially what hetro unions have. Other than repeating your opinions as if they were fact, there's just nothing conclusive there.

As to your unfounded backhanded assertions that same-sex unions are somehow socially lacking (My argument concerned the benefits that the husband and wife bring to one another and for which there is no evidence of similar benefits arising from a homosexual union), the logical outcome of a policy of withholding some privileges/rights/recognitions from those whose unions supposedly lack something of benefit socially to society would be some kind of test to see if a potential marriage/union would in fact be of benefit to society on an emotional level.

# posted by

John : 8:51 AM

Arne writes:

{BD}You have no right to my recognition or subsidy for your relationship. Thus, when you come to me demanding that I recognize and subsidize your relationship, it is not up to me to offer evidence why I should not. Rather, it is your burdent to give me compelling reasons why I should.

Why, that's exactly what they told the Lovings....

/*snicker*/

# posted by

John : 8:55 AM

You have gone from defining marriage as merely a lifetime romance to adding requirements that marriage be limited to no more than two adults

No. The core remains the same. For the sake of stability and the happiness of its citizens, the state provides civil marriage to encourage people to find their lifelong, romantic partner (in addition to the other core part about giving children the best environment to grow up in). Requirements are derived from this core.

Polygamy has worked for more than two millennia around the world. [...] this would appear to be the best arrangement to find everyone a mate

If they worked, we would still have them. You have a lifemate. A second one doesn't increase stability or happiness, and likely harms stability (jealousy).

Would you care to more expressly define how procreation is a core requirement of your definition of marriage. It sounds like you just made the Focus on the Family argument against same sex marriage.

Marriage has more than one core purpose (is this hard to understand). Same-sex couplings fit into one of those purposes.

# posted by

just_looking : 9:25 AM

Suppose a same-sex couple spent $1 million on a California wedding -- is California now going to tell that couple that their marriage is not recognized by the state?

Of course, yes, just like they will to Massachusetts or Canadian same-sex marriages that move there. Either they recognize SSM or they don't, it doesn't matter where it originated, Third time asking, what is your opinion on Massachusetts marriages: recognize the ones that took place only during the window, or prior to Nov, or none at all?

It's an ex post facto imposition to suddenly recognize SSM because it changes the obligation after it was entered into. You don't know it's what all couples want, maybe some Massachusetts residents went to CA to abandon their marriage, knowing that it wouldn't be recognized there and they could marry again, and then suddenly, ex post facto, the court recognizes the old marriage and won't let them marry someone new. They might even have to void the second marriage if it already happened.

FF&C doesn't apply to marriages, states can void out of state marriages if they choose, if they are against public policy. Just like they can with their own marriages, if they were entered into in ignorance of something that the state later decides is against public policy, like same-sex conception being possible.

It does seem like it cme out of thin air, but they've been talking about same-sex conception since the 70's, and have really made great progress recently with stem cell derived artificial gametes, with some researchers predicting it's just a couple years away. Something tells me you haven't done any googling on this issue, so you don't believe that it is being developed and being demanded. That's new information to you, and to the legislatures that gave all the rights of marriage to same-sex couples. We can't allow SSP to be attempted just because some states allowed same-sex couples to marry for a brief time, so we can't let those marriages remain marriages. Taking away conception rights means voiding a marriage.

# posted by

John Howard : 9:32 AM

Any word on when you'll stop with the procreation-as-criteria-for-fitness routine?

That's not the criteria, as after all, a brother and sister can procreate, and indeed sometimes do, but we don't let them marry. The criteria is "do we approve of this couple creating offspring together?"

No, we should not allow same-sex couples to create offspring together, we should only allow use of unmodified genes, which means a man and a woman. Same sex conception requires genetic engineering to produce a child.

# posted by

John Howard : 9:47 AM

/Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children

So what? People do not say to themselves "the marriages of the infertile are about procreation" because most men-women pairs are fertile.

# posted by

just_looking : 10:18 AM

"No. The core remains the same. For the sake of stability and the happiness of its citizens, the state provides civil marriage to encourage people to find their lifelong, romantic partner (in addition to the other core part about giving children the best environment to grow up in). Requirements are derived from this core."

This is simply not the "core" of marriage as traditionally understood... rather it is the new androgyny version of it as reasserted by those who want to change that core.

What’s amusing (and very, very sad) about this is the Johnny come lately concessions implicit in this “new cores” (supposed) acceptance.

Suddenly single parent families are a social problem – with a new “two person” (why?) standard being implied as superior. Suddenly lifelong monogamy is being advocated by the cultural left who have done nothing heretofore to support or embrace such a notion.
Suddenly this lifelong monogamy is a important issue for the state to pursue, yet it has ignored the horror of illegitimacy that has reached 70% in the African American community.

Suddenly “two persons” is the “best environment to grow up in” when the overwhelming social scientific consensus is that children are raised best in stable married households with their OWN mother & father. No evidence exists (and indeed most evidence contradicts) the notion that a simple “two” is the qualitative factor in child raising across society.

This redefined “core” is convenient for the political struggle they are trying to achieve but there is nothing in their rhetoric or their past behavior to suggest.

#1. The are sincere and honest in the establishment of this new “core”
#2. That adoption of this new “core” would be practicable or beneficial to society.

# posted by

Fitz : 10:36 AM

“So what? People do not say to themselves "the marriages of the infertile are about procreation" because most men-women pairs are fertile.”

No – they say to themselves “marriage is necessarily linked to procreation because it is reserved to the only class of couples capable of bearing children”

Absent this necessary connection it is only “sometimes” about responsible procreation and mainly about romantic feelings.

# posted by

Fitz : 10:40 AM

John Howard said (9:32 AM) --
>>>>>Suppose a same-sex couple spent $1 million on a California wedding -- is California now going to tell that couple that their marriage is not recognized by the state?

Of course, yes, just like they will to Massachusetts or Canadian same-sex marriages that move there. <<<<<<

You still don't get it. You sound like a broken record. For the last time -- California has a special obligation towards the same-sex marriages performed in California because those marriages were legalized by the state supreme court.

>>>>>> It's an ex post facto imposition to suddenly recognize SSM because it changes the obligation after it was entered into. <<<<<<<

It doesn't change the obligation -- it recognizes the obligation.

>>>>>> You don't know it's what all couples want, maybe some Massachusetts residents went to CA to abandon their marriage <<<<<<

If they want to abandon their marriage, they could file for divorce in Massachusetts. Sheeesh.

>>>>> FF&C doesn't apply to marriages, <<<<<<

Why not?

I am through discussing this with you. You are just not making sense.

# posted by

Larry Fafarman : 11:45 AM

Read this on FF&C and marriage.

California has no special obligation to any same-sex marriages, whether they were done in California or another state. The Court did not even rule on the question of whether California had to allow same-sex marriages, they just said that they can't call them DP's.

Four times now: what about Massachusetts marriages that happened before, during, and after the window? And since when did it ever matter where and when a marriage originated on whether it is considered valid? Where are you getting this "special obligation", are you just making it up?

California has to change the marriages to CU's that are defined as marriage minus conception rights. We cannot prohibit genetic engineering if there are same-sex marriages out there in any state, or DP's with "all the rights" without stripping conception rights form marriage for everyone.

# posted by

John Howard : 12:05 PM

'Irresistable force and unmovable object':

Why, Larry Fafarman and John Howard both think the other doesn't make any sense. Amasingly enough, this time they're both right. Maybe Larry can be persuaded to take this 'colloquy' to further heights over on John's blog....

Cheers,

# posted by

Arne Langsetmo : 12:07 PM

Fitz:

[Arne Langsetmo]: "Why, that's exactly what they told the Lovings...."

The problem with the (horribly over used) Loving example is its power comes from mere analogy. The problem with analogy is it is exactly that: an analogy.

I guess I fail to see what the "problem" is.

Its weight raises and falls on the strength of the analogy. Courts have been quick to dismiss this characterization of marriage law with racial segregation. The point of ant—miscegenation laws were to keep the races apart [... in marriage... that is, to prevent each and every marriage of a black and a white] ... No one would seriously argue that that is the point of marriage law....

No, but that's not the proper analogy. The point of anti-gay-marriage laws is quite analogous: To keep gays from marrying other gays. That's what such laws explicitly say.

Quite the opposite, the intention of marriage law is to bring the two sexes together.

Or two loving people together. It's not some "group grope" where all the men and all the women come together as 'identity groups', hash out their group differences and peeves, and sing "I'd like to buy the world a Coke" at the end.

Note this quote rebuke of same-sex “marriage” offered by the plurality in...

Oh. Didn't command a majority?

Hernandez v. New York, Justice Smith, when confronting the idea that marriage as historically defined was analogous to Loving.

Your cite is wrong. Should be: Hernandez v. Robles

“[T]he traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind.”

Smith goes on to say:

"The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude."

He'd definitely be wrong about the "ignorant part" (as various people have shown that SSM [or similar relationships] is hardly of recent provenance).

But he said just previously:

"But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries -- at first by a few people, and later by many more -- as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began.

"It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2)."

See below also.

The use of the term kind is telling. Not a matter of degree, mind you. Rather a different of qualitative substance…a difference of kind.

But he doesn't show this.

As dismissals of the Loving v Virginia case goes, this is rather mild. However – I like it for precisely that reason. It dismisses casually a analogy that doesn’t hold up precisely because it is not the same kind of things being compared.

This is weird. He can uphold a ban that isn't there (there is no explicit ban on SSM in the N.Y. law), but if they'd explicitly done so, they'd be in trouble under his rationale....

As the Washington State Court majority illustrates

"We vigorously reject any attempt to link the discriminatory Anti miscegenation laws in Loving with this State’s DOMA. The Washington Court of Appeals in Singer correctly noted:the Loving and Perez courts [Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)] did not change the basic definition of marriage as the legal union of one man and one woman; rather, they merely held that the race of the man or woman desiring to enter that relationship could not be considered by the state in granting a marriage license. 11 Wn. App. at 255 n.8....

But the gender can?!?!?

Numerous other courts have all rejected the claim that the decision in Loving somehow challenged state laws reaffirming marriage as the union of one man and one woman.25 Careful review of the historical context of Loving further undermines the dissents’ disturbing attempt to link constitutionally void, racist laws with a historical definition of marriage as between a man and woman. Anti miscegenation laws were anathema to the “color-blind” constitution articulated in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson.26 Anti miscegenation laws infringed upon the union of one man and one woman by injecting racial status as a qualification. Such laws contradicted the fact that a man and a woman of any race have the natural right to marry and have children. This right is protected by the United States and Washington State Constitutions. Racially discriminatory anti miscegenation laws also violate the right to marriage between a man and a woman.

Assuming that the right is between a :man and a woman" is assuming your conclusion. Hardly convincing.

Here, in contrast, the State’s DOMA simply confirms the common law understanding of marriage as a union of a man and woman....

IOW, it legislates the conclusion. That harldy passes as an argument that such legislation is valid under EP analysis when the "conclusion" is the very article of dispute.

It is the dissent that would abrogate the common law understanding through judicial fiat."

No. It would strike down a new interpretation of the laws (they hadn't been seriously challenged previously) that conflicts with EP guarantees.

In the Hernandez decision, Justice Smith asks whether SSM prohibition (which, FWIW, was not in the N.Y. domestic law, while explicitly prohibiting incestuous marragies, etc.), can be rationally supported as a legislative aim. Ignoring the fact that no such legislative aim was even shown, Smith thinks this is what passes for "rational basis":

In the absence of conclusive scientific
evidence, the Legislature could rationally proceed on the common-sense premise that children ...

Actually, it would be accurate to say "in the absence of any scientific evidence". Apparently, to Smith, legislators are allowed to do whatever they want for whatever reason whatsoever, but only "conclusive scientific evidence", "beyond doubt", can refute the legislators' purported determinations. How that can be "rational basis" is beyond me. Sounds like "rational basis" means "whatever they say goes, unless so outrageous as to be completely loony and indisputably contrary to fact even to the foaming partisans on their side". But that stretches the meaning of "rational" far beyond recognition; "rational" becomes a synonym for "ignorant".

He goes on to place the "burden of proof":

"[W]e need not consider the criticism, for the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households."

"... any evidence you do have be damned, I'm not listening."

But we do have this from Smith:

If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice -- if we agreed with the plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on interracial marriage that was plainly "designed to maintain White Supremacy" (id. at 11) -- we would hold it invalid, no matter how long its history."

This is why Smith sought a "rational basis" for the purported limitation. Of course, had the U.S. Supreme Court used the same criteria for accepting a "rational basis" in Loving, they would have said that this was sufficient:

In January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

Has just as much support as Smith cited for the purported N.Y. limitations.

# posted by

Arne Langsetmo : 1:21 PM

No – they say to themselves “marriage is necessarily linked to procreation because it is reserved to the only class of couples capable of bearing children”

It is a logical somersault to argue that the class of couples capable of bearing chidlren includes the infertile. Sorry, not all men-women pairings are in that class.

# posted by

just_looking : 1:51 PM

Arne Langsetmo

“But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single- sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.”

Note the court appropriately applies Loving, etc.

The plurality makes strong criticisms of the concurrence and two of the dissents at the outset of its opinion, including charging the main dissent with “sadly overstep[ping] the bounds of judicial review” for suggesting that supporters of marriage laws are bigots.

Besides calling the lower court decisions “transparently result-oriented” and a reflection of “the dominant political ideas of their legal community,” the concurrence says: “[t]hough advanced with fervor and supported by special interests loudly advocating the latest political correctness, the arguments (and the dissenters) cannot overcome the plain legal and constitutional principles supporting Washington’s definition of marriage.”

Opposite sex couples have the fundemental right to marry. Same -sex couiples by the very definition of the right in question CANNOT assert the right amoung one another.

In the Loving case they had a fundamental right to “marry” that was being infringed. That right carries with it the very definition that you claim to be some sort of “tautology”

"Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone. For example, although the ability to make personal decisions regarding child rearing and education has been recognized as a fundamental right (see, e.g., Pierce v. Society of the Sisters (1925) 268 U.S. 510, 534- 535), this right is irrelevant to people who do not have children. Yet, everyone who has children enjoys this fundamental right to control their upbringing. A similar analogy applies in the case of marriage. Everyone has a fundamental right to “marriage,” but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings." 1

1- In re Marriage Cases, Cal. App. 2006, McGuiness, P. J. (writing for the majority.)

Arne Langsetmo (writes)

"Assuming that the right is between a :man and a woman" is assuming your conclusion. Hardly convincing."

your misreading of Supreme Court case law on the subject of marriage: you are making the same mistake the New York Court points out in its recent decision. Discussing the Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)

Judge Graffeo noted….

“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”2

2 - Andersen v. King County (J. Graffeo concurring)

# posted by

Fitz : 2:05 PM

just_looking (says)

“It is a logical somersault to argue that the class of couples capable of bearing chidlren includes the infertile. Sorry, not all men-women pairings are in that class.”

I am afraid it is not a “logical somersault” in the least. Rather any attempts to refute my original statement would be. It is philosophically unassailable – as a matter of fact it can be reduced to a formal logical proof.

”Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children.”
Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.”

The class of couples capable of bearing children are man + woman. Indeed they are the ONE and ONLY class capable of reproduction. Any male female pairing remains a part of this class regardless of fertility.

Think of it this way, cars and planes are in the class of “objects used for locomotion” – furniture & bookshelves are not. Even a broken down car or airplane still resides in the class of “objects used for locomotion” while furniture & bookshelves can never be .

# posted by

Fitz : 2:18 PM

Fitz:

"But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race....

Loving held no such thing. And pretty much the only people there that were wailing and gnashing teeth about racial survival were the advocates for the state of Virginia.

Loving cited Skinner, I think, for the proposition you're claiming.

As for Skinner, it said: "Marriage and procreation are fundamental to the very existence and survival of the race. Note the disjunction, which would be unnecessary if the two were intrinsically linked. But Skinner was a "procreation" case, not a marriage case, and can hardly be cited for a holding on marriage, even if Skinner did say in dicta that marriage was also a fundamental right. And if you want to adopt this dicta (as Loving did), it certainly does nothing to buttress your case.

Cheers,

# posted by

Arne Langsetmo : 2:30 PM

"Loving held no such thing. And pretty much the only people there that were wailing and gnashing teeth about racial survival were the advocates for the state of Virginia."

#1. Loving did in-fact uphold marriage as the right to form a family and demonstrated it intrinsic link to procreation.

#2.I did not (nor did the New York Court I quote) say anything about "racial survival" but rather - "the survival of the human race"

You need to be fairer and less opportunistic in both your slights & legal analysis.

As for adopting Skinner & Loving- I would be happy to. Most State Supreme courts have adopted these cases for the proposition that marriage (quo) “marriage” is a fundamental right. As have most dissents against changing the definition of marriage.

# posted by

Fitz : 2:45 PM

Fitz:

"The Washington Court of Appeals in Singer correctly noted:the Loving and Perez courts [Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)] did not change the basic definition of marriage as the legal union of one man and one woman...."

It wasn't an issue. How could they "change" it?

Cheers,

# posted by

Arne Langsetmo : 2:48 PM

It is a logical somersault to argue that the class of couples capable of bearing chidlren includes the infertile. Sorry, not all men-women pairings are in that class.

Thats the wrong class, guys! Hello, I've been trying to tell you, it's not whether they can procreate, it's whether they can procreate ethically. A brother and sister can procreate, but we do not allow that. Similarly, two women can procreate using the Kaguya technique or another technique that hasn't been tried yet, however in their case we DO allow them to. There is no law like an incest law stopping them from attempting to conceive, it is not considered unethical because no one has considered it before. But it is, it is at least as unethical as siblings, not just for safety issues but because of how it would effect society if it were allowed.

just_looking, fitz: marriage gives a right to conceive to couples that society approves of the concept of them having children together. They don't have to be fertile, or want to, but they have to be publicly a couple that could ethically conceive children.

# posted by

John Howard : 2:50 PM

Fitz:

[Arne]: "Loving held no such thing. And pretty much the only people there that were wailing and gnashing teeth about racial survival were the advocates for the state of Virginia."

#1. Loving did in-fact uphold marriage as the right to form a family ...

And gays only want to form a family.

... and demonstrated it intrinsic link to procreation.

Simply not true. It's not there, Fitz.

#2.I did not (nor did the New York Court I quote) say anything about "racial survival" but rather - "the survival of the human race"

You're right, I was the one that pointed out the "racial survival" rationale. That was the "rational basis" in Loving. And that worked wonders there....

You need to be fairer and less opportunistic in both your slights & legal analysis.

You gonna fine me if I'm not (in your eyes, at least)?

As for adopting Skinner & Loving- I would be happy to. Most State Supreme courts have adopted these cases for the proposition that marriage (quo) “marriage” is a fundamental right....

Oh, I agree (WRT Loving; it wasn't an issue in Skinner as I've pointed out, but you seem to be missing). But it hardly helps your case.

As have most dissents against changing the definition of marriage.

Agreed the opinions against SSM seem to recognise this (and so do the opinions that support SSM). That is not their flaw.

Cheers,

# posted by

Arne Langsetmo : 2:56 PM

Fitz:

Assuming arguendo that the states should intrude on marriage choices by dint of some "procreative" "rational basis".

"Heterosexual couples are the only couples who can produce biological offspring of the couple."

Moving the goal posts. Gay couples can [and do] produce biological offspring, as much as heterosexual couples can. And they can adopt as well. Since they do [and no state has seen fit to prohibit such aside from the retrograde attempts to prohibit adoption], how can the state, so concerned about the children, and so enamoured with the benefits of a family bound by marriage (as they purport) now deny such to these hapless children?

In this case, Fitz, I don't what to know what homophobic or religiously wingnut judges say; I'd like to know your rational response....

BTW, I should point out in passing that the "rational basis" of survivial of the species (or, in the more quaint terms, "survival of the race") seems to fly in the face of the facts. We're in no danger of going extinct due to lack of "procreation" ... and if we were, banning gay marriages hardly serves to further that "compelling interest"....

Cheers,

# posted by

Arne Langsetmo : 3:14 PM

"I don't what to know what homophobic or religiously wingnut judges say; I'd like to know your rational response...."

If this is the way you dismiss such widespread and intelligent legal reasoning, I'm afraid anything I can say will prove to be inadequate.

Regardless, your welcome to peruse are archives & blog.

http://opine-editorials.blogspot.com/

http://defendmarriageresources.blogspot.com/

# posted by

Fitz : 3:23 PM

"Logic" ala Fitz:

”Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children.

So people that are members of a class of members that (by definition) can do "X" -- that can't do "X" -- are members of that class?!?!?

Wow. I'll grant you one thing: Fitz believes in the ideal of "inclusivity" to a much greater extent than I do. But why stop there? Why can't "men and men" (or "women and women") who (arguendo) can't produce children also be menbers of the class of members that can produce children?

Cheers,

# posted by

Arne Langsetmo : 3:25 PM

Fitz:

If this is the way you dismiss such widespread and intelligent legal reasoning, I'm afraid anything I can say will prove to be inadequate.

I know what judges have said. I find it lacking in many instances (that is to say, I think they were just as wrong as the Plessy court, or Florida v. Florida Seminole Tribe, or a raft of other illogical opinions). I even give my critiques to some of that above.

I'd like to know what you think, Fitz. And explain your "reasoning" in ways that are convincing.

And I'd like you to explain your objections to the Massachussets, Connecticut, and California courts' opinions as well.

Cheers,

# posted by

Arne Langsetmo : 3:29 PM

" Why can't "men and men" (or "women and women") who (arguendo) can't produce children also be menbers of the class of members that can produce children?

Because they are always and everywere incapable of producing children as a class. (rather than just being a single example of a sub-class within a larger class that is the ONLY coupling capable of producing children)

# posted by

Fitz : 3:30 PM

. . . same sex “marriage” necessarily severs marriage from procreation . . .

Except of course you can't sever what has already been severed. Childfree marriages long predate same sex marriage. Marriage-free procreation long predates either.

Honestly, if this is the best you can come up with against gay marriage, you might want to prefer "I just don't like it". At least that's not filled with obvious holes. And offers the additional advantages of being short, to the point, and honest.

# posted by

jpk : 3:34 PM

Fitz:

The class of couples capable of bearing children are man + woman. Indeed they are the ONE and ONLY class capable of reproduction.

BTW, you really should look around at the incredible ingenuity of Gawd's creation. You might start with fishes, who have a great tendency to engage is sex changes as the circumstances suit them. And sharks that are parthenogenetic. Insects as well, showing asexual reproduction. And then the hermaphroditic worms.... Behold Gawd's plan!....

Cheers,

# posted by

Arne Langsetmo : 3:37 PM

Fitz:

”Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children."

Oh, so the class has members that don't belong to the class...

Hate to say it, but your statement here then becomes interesting:

It is philosophically unassailable – as a matter of fact it can be reduced to a formal logical proof.

Given your "logic", I can now formally prove that you owe me $1,000,000:

There's a class of people that owes me $1,000,000. You don't own me $1,000,000 (although, potentially you could be part of that class). Therefore, you're a member of the class of people that owe me $1,000.000. Therefore you own me $1,000,000. Pay up, or I shall issue a demand notice (and cite your reasoning in court). After all, it's unassailable.

Think of it this way, cars and planes are in the class of “objects used for locomotion” – furniture & bookshelves are not. Even a broken down car or airplane still resides in the class of “objects used for locomotion” while furniture & bookshelves can never be .

And Fitz still can't figure out why his commute is always so long.... ;-)

Cheers,

# posted by

Arne Langsetmo : 3:51 PM

Fitz, a child could be born to same-sex parents tomorrow for all we know. It is urgent that we ban genetic engineering of human children. If you don't want to to do that, if you want to leave same-sex conception legal, then it is you who is severing marriage and procreation.

All marriages should have the right to conceive children together using the couples own genes. No same-sex couple should have that right.

All you have to tell them, Fitz, is that same-sex conception is unethical, and that's why we should not let them marry.

And Arne, Skinner did bring up marriage: "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race."

# posted by

John Howard : 3:58 PM

Oh, the logic could be fixed. The premises, not so much.

# posted by

jpk : 3:58 PM

It is urgent that we ban genetic engineering of human children

Is this a problem? I must have missed that.

Marriage and procreation are fundamental to the very existence and survival of the race

We're procreating at rates high enough to threaten our survival, so the second part is true. If you think marriage would help slow that down, you're welcome to make your case.

# posted by

jpk : 4:05 PM

All marriages should have the right to conceive children together using the couples own genes. No same-sex couple should have that right.

Are you aware that about a million Americans are donor conceived?

Is that a right for opposite sex couples? Same sex?

# posted by

jpk : 4:08 PM

“Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.”

But it is the Loving court quoting the precedent of Skinner v. Oklahoma

That’s a case challenging Oklahoma's Habitual Criminal Sterilization Act, the Court based its finding on the fact that procreation was a fundamental right which belonged to all citizens. In this decision, the Supreme Court held that the acts of marriage and procreation were fundamental rights.
The state found that they have a valid role in regulating marriage as a social institution, , finding the institution of marriage, social in nature, & a basic civil right that cannot be restricted without very good reason.
The connection between marriage & procreation is seen as fundamental to the nature of marriage as a fundamental right. It is not linked with marriage because procreation outside marriage is somehow impossible (A system that merely wanted to promote procreation would look quite different) Rather it is responsible procreation in the promotion of family formation that gives the fundamental right it civic power.

That right realizes that procreation is inevitable but the linking of marriage is “is one of the "basic civil rights of man," fundamental to our very existence and survival.” Because it provides for the basic family unit of binding the natural mother & father together and each to the child(ren).

Maryland Decision

the court noted that previous cases recognizing a fundamental right to marry “infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species.” In fact, the court said that virtually all of the cases “indicate[] as the basis for the conclusion the institution’s inextricable link to procreation, which necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman.”

In terms of the justifications for the current marriage law, the court ruled “fostering procreation is a legitimate government interest” and the “‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).” The court held “the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation.”

# posted by

Fitz : 4:29 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 4:34 PM

Fitz:

But it is the Loving court quoting the precedent of Skinner v. Oklahoma

That’s a case challenging Oklahoma's Habitual Criminal Sterilization Act, the Court based its finding on the fact that procreation was a fundamental right which belonged to all citizens. In this decision, the Supreme Court held that the acts of marriage and procreation were fundamental rights.

What "precedent"? What "holding"? Marriage was not an issue in Skinner, so the Skinner court could hardly have held that. There was no Oklahoma law prohibiting habitual felons from marrying.

Do you know what "dicta" are?

Cheers,

# posted by

Arne Langsetmo : 4:40 PM

Is this a problem? I must have missed that.

Yes, it's a huge problem. Don't be embarrassed, you haven't heard about it because of legal malfeasance by Andrew Koppelman, Jack Balkin, and all the other lawyers who never address it.

Are you aware that about a million Americans are donor conceived?

Of course I am. Have you read their blogs?

Is that a right for opposite sex couples? Same sex?

No, it isn't. But it needn't be stopped in order to stop people from creating children using genetically modified gametes.

But soon, we should indeed shut down the sperm banks and stop intentional creation of children to unmarried biological parents. It should be a crime to facilitate that. And that would help your concern about over-population.

# posted by

John Howard : 4:43 PM

Fitz:

It is not linked with marriage because procreation outside marriage is somehow impossible (A system that merely wanted to promote procreation would look quite different) Rather it is responsible procreation in the promotion of family formation that gives the fundamental right it civic power.

So you agree with the decisions in Griswold and its progeny? ;-)

Cheers,

# posted by

Arne Langsetmo : 4:44 PM

Yeah Arne, I saw that afterwords. Still refusing to agree with me that people should only have a right to conceive with someone of the other sex, eh?

# posted by

John Howard : 4:46 PM

Fitz:

That right realizes that procreation is inevitable but the linking of marriage is “is one of the "basic civil rights of man," fundamental to our very existence and survival.”

[leaving aside the factual falsity of the premise]

Then marriage should be mandatory. Instead, you wish to ban some.

Cheers,

# posted by

Arne Langsetmo : 4:46 PM

Re: The class argument reducible to a formal proof - I am afraid it is philosophically unassailable.

In fact this is always and everywhere obvious. Only people deep in the fever swamps of same-sex "marriage" rhetoric deny the obvious fact the only a mating of one man & one women can produce their child.

Quoting Professor Germain Grisez

"Though a male and a female are complete individuals with respect to other functions – for example nutrition, sensation, and locomotion- with respect to reproduction they are only potential parts of a mated pair, which is the complete organism capable of reproducing sexually. Even if the mated pair is sterile, intercourse, provided it is the reproductive behavior characteristic of the species, makes the copulating male and female one organism”

“it is a plain matter of biological fact that reproduction is a single function, yet it cannot be carried out by an individual male or female human being, but by a male and female as a mated pair….”

And note a though experiment by Grisez

"Imagine a type of bodily, rational being that reproduces, not by mating but by some individual performance. Imagine that for these beings, however, locomotion or digestion is performed not by individuals, but only by biologically complementary pairs that unite for this purpose. Would anybody have any difficulty understanding that in respect to reproduction the organism performing the function is the individual, while in respect of locomotion or digestion the organism performing the function is the united pair?"

Only the sexual relationships of men and women together produce children. Therefore, only the sexual relationships of men and women together require governmental regulation because of (1) THEIR CAPACITY TOGETHER TO CREATE SOCIAL DISORDER, and (2) that reproduction is a fact and does have important and inevitable consequences on society both good and bad if it is not regulated. Thus, it inevitably must implicate the political and public aspect insofar as the production of future citizens is not only vital to the survival of a nation, but that the REGULATION OF THIS PRODUCTION OF FUTURE CITIZENS IS JUST AS VITAL.

How we ever came to such a state, were something as profound and obvious as the begetting of children is divorced from all reality and routinely denied…is not just Orwellian, it’s Carol -wellian.

# posted by

Fitz : 4:50 PM

Fitz:

In terms of the justifications for the current marriage law, the court ruled “fostering procreation is a legitimate government interest” and the “‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).”

That, if true (and if in fact we really need more heads to feed on this planet) is hardly a justification for not allowing others to marry. I really don't have a problem with allowing heteros to marry whoever they want. Really. Nor does anyone else I know (except the RW bigots that don't like gays ... or blacks marrying whites, etc.).

But do you really think that it is the gummint's job to "engineer" births? Seems to me I remember some other regime that tried to "engineer' such 'approved' liaisons and progeny a half a century ago. All in the interest of the Rei... -- umm, sorry, "State" -- of course....

Cheers,

# posted by

Arne Langsetmo : 4:56 PM

Only the sexual relationships of men and women together produce children.

I know you've heard of Kaguya, Fitz, and you know that it's just a matter of time before a lab tries to create "female sperm" or "male eggs" from stem cells. I've got the links at eggandsperm.org if you don't believe me.

Answer me: do you want to stand by and allow labs to attempt this, or do you want to prohibit it? If you want to prohibit it, then you should start saying that only a man and a woman should be allowed to conceive together. If you don't, you should stop opposing same-sex marriage.

# posted by

John Howard : 4:59 PM

Fitz quoting Grisez:

Only the sexual relationships of men and women together produce children. Therefore, only the sexual relationships of men and women together require governmental regulation because of (1) THEIR CAPACITY TOGETHER TO CREATE SOCIAL DISORDER,...

So you're in favour of prohibiting fornication for that reason? Put it on the ballot and see what happens.

But this hardly stands as a justification for prohibiting SSM under that "rationale".

Cheers,

# posted by

Arne Langsetmo : 5:05 PM

That part was Fitz, not Grisez, I think.

Yes, we should prohibit fornication, indeed we do in Massachusetts. But it shouldn't be policed unless it is done openly and notoriously.

# posted by

John Howard : 5:16 PM

John Howard

“then you should start saying that only a man and a woman should be allowed to conceive together.”

only a man and a woman should be allowed to conceive together

Arne Langsetmo

#1Your quote is not Professor Grisez: That is me. Prof Grisez is in italics and denoted by quotation marks (above)

“But this hardly stands as a justification for prohibiting SSM under that "rationale".”

#2 None of this has to seem like a good justification to you.. It simply has to be rational to meet the test.

You apparently know this and are straining to find ALL arguments “irrational”.
#3 Oh- really thin reductio ad Hitlerum argument above.

# posted by

Fitz : 5:16 PM

we should indeed shut down the sperm banks

What refreshing extremism! If you wish to further marginalize your side, you could hardly do better. Anything else we should outlaw, while you're at it?

genetic engineering of human children . . . is a huge problem

Really? How many human children have been engineered?

# posted by

jpk : 5:21 PM

Yes, we should prohibit fornication

Most excellent, dude! No fornication, no sperm banks, conception only under terms acceptable to you.

You're making this too easy. You're already well outside the mainstream. Do please have lots more views.

# posted by

jpk : 5:27 PM

jpk, we should also ban artificial wombs as inhuman. And of course genetic engineering of children, first of all. Those are the priorities, then donor conception and intentional unmarried conception. Fornication and adultery and rape are already banned in my state.

Fitz, thank you, but I meant: say it to Arne. Your arguments just don't work unless you say that same-sex couples should be like siblings: not allowed to conceive together. Then you'd win the argument, which you'll know happens when Arne just starts telling you to go away and die.

# posted by

John Howard : 5:34 PM

Ah, banning sex and reproduction you don't like: good luck with that! In America, we like freedom.

But hey, maybe you could found a nice fascist state of your own, get control of people's crotches and relationships and reproductive options, make everything go just the way you think it should go. Or not go. "Here in Howardania, it's kids only the way I say!"

# posted by

jpk : 5:48 PM

jpk, take the issues one at a time, and remember that I'm not asking to be King and impose proper laws, I'm asking for public consideration of these issues. We can ban genetic engineering without also banning eugenic donor conception or fornication. I agree there won't be much support for banning DC right now.

# posted by

John Howard : 5:54 PM

I'm asking for public consideration of these issues

Oh, but there has been. I guess you didn't get the memo. How do I break it gently? Many if not most of your views on said issues are shared by, uh, not a large proportion of Americans.

Americans generally view their sex and reproduction as, well, to be blunt, none of your business.

The public view specifically on fornication, oh, I'd say generally positive. Strongly positive, in fact.

Donor conception, probably less positive, but you'd never convince the public it should be an option taken away from couples.

You're welcome to have any view you like on any of this! That's America too. But if you think the public is open to banning 'em, you're as out of touch as you are out of the mainstream.

# posted by

jpk : 6:06 PM

Just don't change the subject, the public needs to address whether or not to allow genetic engineering and same-sex conception. That has nothing to do with the other things I think should be banned, they don't follow like on a slippery slope in any logical progression, though they do all respect marriage as conception rights to a greater and greater degree. But the first thing to address is genetic engineering and same-sex conception.

# posted by

John Howard : 7:18 PM

Fitz:

Arne Langsetmo

#1Your quote is not Professor Grisez: That is me. Prof Grisez is in italics and denoted by quotation marks (above)

My apologies to Prof. Grisez. Sorry.

[Arne]: “But this hardly stands as a justification for prohibiting SSM under that "rationale".”

#2 None of this has to seem like a good justification to you.. It simply has to be rational to meet the test.

"[R]ational" like I pointed out in one of my first replies to you? But it's not even that. If the justification is as purported, gay marriage is irrelevant to the supposed end, and on that basis, there's no reason (rational or otherwise) for a ban on such. If you're worried about the capacity for "men and women ... together to create social disorder", you're simply barking up the wrong tree.

You apparently know this and are straining to find ALL arguments “irrational”.

No. I've heard all that, and I find the arguments to prohibit SSM to be irrational. You know ... like the ones you're putting forth here. Why don't you just come out of the closet and admit that you find gay sex (and gays) icky and wish they would go away?

#3 Oh- really thin reductio ad Hitlerum argument above.

Oh, I think the analogy apposite. ;-)

Cheers,

# posted by

Arne Langsetmo : 7:54 PM

John Howard

You would probably do well...(and I would be pleased to know) about the myrid of foreign countries including euroean countries that ban IVF, & donor conception.

Its liitle known to the ignorant- but it is my understanding that multiple countries forbid the practicve on ethical grounds.

# posted by

Fitz : 8:01 PM

don't change the subject

Actually, the subject is same sex marriage, as in "Same-sex Marriage: The Good News from the 2008 election". Some might say genetic engineering and same-sex conception have wandered pretty far from that. But perhaps someday you'll show relevance.

I'd agree that fornication and donor conception have nothing to do with same sex marriage. Advocating banning all three in one breath is however revealing. What might be revealed is extremist views. Or legislating morality. Or unwarranted government intrusion into people's lives.

I'd also agree there's no slippery slope between same sex marriage and genetic engineering. Indeed, of the same sex couples I know who have children, a genetic research project is the last thing they want. If human genetic engineering is something you oppose, please be advised it's much more likely to occur with material donated by straight individuals, not same sex couples.

However I urge you to keep on fighting fornication, genetic engineering, and same sex marriage, separately and together, connected or not connected, as long and loudly as you please. This is America. If you have views on fornication, you should fornicatingly well express 'em!

# posted by

jpk : 8:02 PM

We can’t defend what we can’t define...

Broad platitudes about "strengthen the stability and security" may be bromide enough for some, but morally serious people know standards can’t be kept amongst spaghetti.

# posted by

Fitz : 8:05 PM

Sorry - my above comment is from another thread.

"Why don't you just come out of the closet and admit that you find gay sex (and gays) icky and wish they would go away?"

If this is the quality of my opposition then i will retire to my own blog.

# posted by

Fitz : 8:22 PM

countries that ban IVF and donor conception?

E.g. Italy, it turns out.

So; an interesting question, and such procedures -- and industries -- have huge ethical questions; easily granted.

But is any of that at issue here? Medical options for families affect opposite sex couples, same sex couples, married couples, unmarried couples, single individuals. It's a broad stroke.

And if you narrow it, you discriminate; you have the state tell individuals and couples what options they have for families. That's not America.

It is Italy, however. Italy bans donor conception, and limits IVF to "heterosexual couples in stable relationships", excluding gay couples and single women.

# posted by

jpk : 8:28 PM

JPK
"But is any of that at issue here? Medical options for families affect opposite sex couples, same sex couples, married couples, unmarried couples, single individuals. It's a broad stroke."

Yes it is & that’s shows its ethical strength. Countries like this have looked at these procedures and said basically.

"If you cant conceive without these procedures adopt"

It’s a way of drawing a fair line before an arbitrary one becomes needed. Like super smart babies or buying the best eggs...or using poor foreign women as incubators for rich white ladies.

(i.e. the commercialization of human life)

I think it ties into John Howard’s sincere fear that once same-sex conception becomes scientifically feasible gay couples will demand the (reproductive?) RIGHT to have their “own” babies.

In that sense John is really on the cutting edge of ethical issues and see’s the more dangerous possibilities down the road.

# posted by

Fitz : 8:39 PM

This comment has been removed by the author.

# posted by

jpk : 8:51 PM

Countries like this have looked at these procedures and said basically "If you can't conceive without these procedures adopt"

Dead wrong.
Adoption by gay couples is illegal in Italy, as is adoption by individuals.

Once again, your logic would be more interesting if your premises were correct.

# posted by

jpk : 8:56 PM

jpk:

However I urge you to keep on fighting fornication, genetic engineering, and same sex marriage, separately and together, connected or not connected, as long and loudly as you please. This is America. If you have views on fornication, you should fornicatingly well express 'em!

It is A'mur'kah, land of the free and all that. I just wish that Mr. Howard would express his OCD behaviour over on his own fornicatin' blog, where those that take an interest in abnormal psychology may appreciate it at their leisure.

Cheers,

# posted by

Arne Langsetmo : 9:26 PM

I write --
"Countries like this have looked at these procedures and said basically "If you can't conceive without these procedures adopt"

Jpk :(responds)
"Dead wrong.
Adoption by gay couples is illegal in Italy, as is adoption by individuals."

Neither gay couples nor single individuals can use IVF. Only male female couples are capable of availing themselves of these reproductive technologies.. so ..(with laws against IVF) ergo, those couples should adopt.

The further regulation of adoption only by married couples simply reinforces this norm The norm being the intact married natural family as the superior and socially approved environment for childrearing.

simple.

# posted by

Fitz : 2:30 PM

Neither gay couples nor single individuals can use IVF

Hello?

Yes, gay couples can use IVF.

Yes, single women can.

Just like straight couples, married or unmarried.

All of the above can also use donor conception, with or without IVF.

Once again, your opinions would be more interesting if you got your facts right.

But it is a tad unsettling that in this case, the facts that you have yet to master are the elementary ones about the birds and the bees. This wasn't mentioned at some point in your primary education?

# posted by

jpk : 3:05 PM

Dude, he's talking about Italy: single people cannot use IVF, and no donor conception is allowed. They apparently only facilitate married conception (not sure what "stable relationship" means), like many clinics used to do here until a year or so ago when a lesbian sued and won. I think that decision should be reversed and only married couples should be allowed to use IVF to join their own gametes. I'm not even sure that IVF should be allowed, since it leads to a much higher risk of birth defects and makes people think of babies as products to be ordered rather than new people to be welcomed and cared for, but privacy seems to protect a couple's right to use IVF.

But at any rate, in this country, at this time, it seems marriage has nothing to do with any of those things. But even here, even now, marriages still protect a couple's right to conceive children together. We haven't yet started prohibiting marriages from attempting to conceive with their own genes yet. We shouldn't give that right to same-sex couples. Stop insisting on having am equal right to conceive with someone of the same sex and you'll see things improve for same-sex couples nationwide.

# posted by

John Howard : 3:28 PM

Fitz, thanks for the supportive comment. One thing though - they are already demanding equal rights, haven't you noticed? They aren't waiting for SSP to be ready to demand it, they are demanding the right to do it in advance, right now, by demanding equal marriage rights. And another thing - they won't have to demand the right to do it, because it is not illegal. we have to demand that Congress enact a law to stop genetic engineering, it won't happen by itself. And until it happens, any lab is free to try any method they want to create a genome for a human child (well, some states say it has to be the product of fertilization of egg by sperm, but do not define the terms egg and sperm, only Missouri stipulates that they have to be fro a man and a woman).

That includes conception rights.

# posted by

John Howard : 3:35 PM

he's talking about Italy

Ah! Then the word is "may" not "can". Another item covered in primary education.

in this country, at this time, it seems marriage has nothing to do with [IVF, donor conception]

You are correct, sir.

But even here, even now, marriages still protect a couple's right to conceive children together.

Say again? Is there something I missed that threatens any couple's right to conceive? What additional protection does marriage confer?

We haven't yet started prohibiting marriages from attempting to conceive with their own genes yet.

This is simply nonsense. Marriages don't conceive; people do. If this is to mean anything at all, probably best to rewrite from scratch. We haven't done what to what that does what now?

We shouldn't give that right to same-sex couples.

Presumably you mean a right to conceive with their own genetic material?

We have already done so. Same sex couples already can and may conceive a child, half of whose genetic material comes from one of those parents. We give the same right to individuals and to opposite sex couples married and unmarried. Which of those rights did you want to take away?

# posted by

jpk : 3:45 PM

we have to demand that Congress enact a law to stop [human] genetic engineering

Apparently I must once again inform you of the basic birds-and-bees facts that most of us picked up earlier in life.

The fact is, a ban on human genetic engineering would have no effect whatsoever on family medical options for same sex couples, any more than it would on options for opposite sex couples, married or unmarried, or individuals.

The fact is, genetic engineering has nothing whatsoever to do with how same sex couples conceive.

Do you need a diagram, with circles and arrows and such? Is there a biology course at your local high school, perhaps? Could you have your child explain it to you?

# posted by

jpk : 3:55 PM

A marriage is commonly understood to be between two people, each of whom have genes, and each of whom conceive with each other, using the genes that come from the two people in the marriage. The right to do that is the "conception right of marriage" I keep talking about. Same-sex couples should not have the right to combine their genes to create offspring. All marriages should have the right to combine their genes (or if you insist: the two people in a marriage should have the right to combine their genes to create offspring).

Perhaps your misunderstanding is because you aren't aware of same-sex procreation being possible today. See my blog for links to articles on this research.

# posted by

John Howard : 4:03 PM

jpk, you're exactly wrong. A ban on genetic engineering would limit how children are created to a man's unmodified sperm joining with a woman's unmodified egg. Thus, it would not effect any person's right to use their unmodified genes to have children with someone of the other sex. But it would totally prohibit, obliterate, the right of people to attempt same-sex conception, because it requires modifying the genetic imprinting to make one partners imprinting complementary. One partner would have to have their genes switched to the other sex, using stem cell derived gametes grown in hormones, perhaps inside another person's gonads. Changing the imprinting is genetic engineering, "engineer" means "change", the root is the same.

# posted by

John Howard : 4:09 PM

Now Roseanne Barr is attacking blacks:

Barr scolded the 70 percent of California's blacks who voted for Prop 8 that they have conspired to "destroy" the Constitution and have made "a mockery" of marriage.:
They showed themselves every inch as stupid, bigoted and ignorant as their white christian counterpartners who voted for mccain-palin. "Now all these ni**ers walking around with their ni**er attitude will suddenly seem like they have manners because there is one half breed ni**er puppet in the white house"

Barr blamed "immoral and hateful black pastors and clergy" for the results and preached her solution before calling for religious black voters to "repent"

I wonder why the No-on-8 folks have not blamed the Jews yet. The ultra-orthodox Jews of Jerusalem are some of the biggest homophobes around -- they have violently demonstrated against gay parades.

So the anti-gay marriage folks won this time -- maybe the pro-gay marriage folks will win next time. So maybe California and other states will have see-sawing on-again, off-again gay marriage rights. The pro-gay marriage folks should simply recognize that we don't have the kind of consensus that is necessary to create stable and uniform gay marriage rights and should just forget about pushing gay marriage, at least for the time being, and should push for civil unions instead.

# posted by

Larry Fafarman : 5:10 PM

Larry Fafarman:

I wonder why the No-on-8 folks have not blamed the Jews yet. The ultra-orthodox Jews of Jerusalem are some of the biggest homophobes around -- they have violently demonstrated against gay parades.

... and assassinated their own prime ministers ... and gone into mosques and gunned down dozens of innocents.

But clue fer ya, Larry: They live in Israel, not California.

FWIW, homophobia is a problem in African-American society; one they will have to deal with. Just as is it in white society....

Cheers,

# posted by

Arne Langsetmo : 5:32 PM

A marriage is commonly understood to be between two people

You bet. Although I wouldn't want to slight the traditional values of the LDS. Or King Solomon.

each of whom have genes

Make that each of whom has a set of genes, and you're on target.

and each of whom conceive with each other

And make that each of whom conceives with the other, and your grammar works, but of course you ignore the hundreds of thousands of married opposite-sex couples in this country who have conceived not with each other but rather by the use of donor conception.

The right to do that is the "conception right of marriage" I keep talking about

Lovely. Is it in some danger of which I was not aware?

All marriages should have the right to combine their genes (or if you insist: the two people in a marriage should have the right to combine their genes to create offspring).

Very well, let's all celebrate that right. Perhaps you have noticed that rights and abilities are two separate questions. I have the right, so far as I know, to lift 500 pounds. Now: there are literally millions of marriages In America that are not able to exercise the right you so passionately advocate here. They include the infertile, the elderly, those with genetic damage, people with hysterectomies or irreversible vasectomies, people whose genes simply don't combine, people who have or still suffer from the effects of diseases that have affected their reproductive capabilities, and various other groups of people who physiologically can't combine their genes. Do you want to deny their marriages? Do you want to take away their rights to medical options for having a family? How far do you go?

Same-sex couples should not have the right to combine their genes to create offspring.

I take it you think you're standing up for a principle here, drawing a line, taking a stand. Very well, stand tall! You might want to consider, however, that if you get exactly what you want, the result will affect almost no one.

The number of children of same-sex couples combining genes is zero.

The number of same-sex couples I know who want to be a genetics research project is zero. Children yes; frankenbabies, no thanks.

So I urge you to strive mightily and steadfastly in your crusade which will accomplish nothing.

# posted by

jpk : 7:14 PM

A ban on genetic engineering would limit how children are created to a man's unmodified sperm joining with a woman's unmodified egg.

Hello? Are you really that clueless, or just careless? There are various proposals floating around to limit human genetic engineering. Perhaps by "a ban" you mean your proposal for a ban?

Thus, it would not effect [sic] any person's right to use their unmodified genes to have children with someone of the other sex.

Correct. No effect.

But it would totally prohibit, obliterate, the right of people to attempt same-sex conception

Correct. Also no effect.

I urge you to fight strong and hard in your quest to fight a problem that isn't a problem.

# posted by

jpk : 7:21 PM

jpk, quit pretending I didn't make my point. Same-sex couples should be prohibited from conceiving with their own genes. No marriage should be prohibited from conceiving with their own genes.

Infertile couples have the right, they do not have the ability. Same-sex couples should not have the right, even if, with genetic engineering, they have the ability.

I know most gay couples don't want conception rights, that is why it is so ridiculous that they insist on them.

Oh, and the conception right of marriage is NOT to use donor gametes, that is adultery, it has never been a right of marriage. By implying that they are the same thing, you are denying the right to use the marriage's own genes. Yes, that endangers the right, it makes people think it is right to use donor gametes rather than try to use their own. There is no guaranteed right to have a child, just to try, with your own genes. If it doesn't happen, you haven't been denied a right. There is no right to use someone else's genes if yours don't work, or someone else's uterus, either.

# posted by

John Howard : 7:29 PM

Hello? Are you really that clueless, or just careless? There are various proposals floating around to limit human genetic engineering. Perhaps by "a ban" you mean your proposal for a ban?

I like the Missouri wording in their 2006 Amendment 2 that prohibits implanting an embryo that is not the product of a man's sperm and a woman's egg. I also like the President's Council On Bioetics 2004 recommendation to "prohibit attempts to conceive a child by any means other than the union of egg and sperm." Even better would be to combine the two, to get the "of a man" language from A2 and the "conceive a child" language from the PCBE. Other laws, like Massachusetts's, leave the door open for same-sex conception and genetic engineering and thus are worse than useless.

But it would totally prohibit, obliterate, the right of people to attempt same-sex conception

Correct. Also no effect.

Wrong. Currently, people are allowed to attempt same-sex conception, there is no law against it. A ban on GE would mean same-sex couples suddenly would be prohibited from attempting to conceive.

I urge you to fight strong and hard in your quest to fight a problem that isn't a problem.

Well, don't you consider it a problem that thousands of same-sex couples don't have federal recognition or state recognition of their relationships? I am offering this solution: banning something that very few people want to do, in order to come up with a constitutional Civil Union that can get passed in Congress and almost every state, even if they amended their constitution to prohibit "substantially identical" CU's.

And don't underestimate how much better things will be after we affirm everyone's right to use their own genes to have children with their spouse. And how much money and energy would be saved if we stopped research into same-sex conception. Even if you don't consider the possibility of genetic engineering a problem, you should support the Compromise for same-sex couples across America. Prove that you don't insist on conception rights.

# posted by

John Howard : 7:47 PM

same-sex couples should be prohibited from conceiving with their own genes. No marriage should be prohibited from conceiving with their own genes.

Very well; let's say both are granted you. A wave of the wand, perhaps, and -- shazam -- you have the law you like. Congrats! You have now secured a right which was never in danger at any time, and taken away a "right" which is physically impossible to exercise, and has been for all history.

I congratulate you once again on your accomplishment of nothing.

I urge you to stand strong in your further pursuit of nothing. Fight on, brother!

And I urge you also to keep marginalizing yourself with extremist positions. State control of sex and reproduction, oh yeah! People make love and children only on terms acceptable to you, you bet! Fight on!

# posted by

jpk : 8:26 PM