Balkinization  

Tuesday, August 19, 2008

Federalist society debate on same-sex marriage

Andrew Koppelman

The Federalist Society has graciously sponsored an online debate on same-sex marriage, with Prof. Dale Carpenter of the University of Minnesota and myself arguing in favor, and Prof. Amy Wax of the University of Pennsylvania and Prof. Robert Nagel of the University of Colorado arguing against. It can be found here.





Comments:

The two key normative issues in my mind, which are not really addressed here, are:

1) Do homosexual unions provide any benefit to society, nevertheless the level of that provided by marriage, which merits society redefining marriage to include homosexual unions and thus extending the same recognition and subsidy provided to marriage?

2) Does redefining marriage to include homosexual unions provide any measurable benefit to homosexual couples entering into civil marriage, nevertheless the enormous well documented benefits marriage provides to husband, wife and their children?
 

I admire your patience in debating people like Wax. But I have to question whether any good can come of this. There really aren't that many anti-gay people susceptible of convincing.

This is basically a moral and emotitonal, and not an intellectual, issue. People either know gays and lesbians personally and treat them with decency, or mouth old stereotypes about LGB inferiority. I don't think clear rational argument ever convinced people that, say, slaves were fully human and deserving of human rights. It was just a gradual accretion of emotional responses, of a willingness to recognize others as full human beings.

It's a pity that people like Wax lack that kind of basic compassion. And it's sad that anti-gay academics in general tend to wrap their arguments in abstractions, rather than own up to the ugly foundations of their advocacy: a belief that gay people are less than human and less than deserving of civil rights, founded on nothing more than unreasoned disgust and unexamined tradition.
 

It is interesting that, of your two interlocutors, Nagel was unable to come up with any concrete arguments against gay marriage generally (beyond a hand-waving reference to "stripping the richness of a deep institution"). Rather, he was forced to retreat behind typical process-based concerns about the power of the courts that were not responsive to the query, which, perhaps deliberately, was phrased in the passive voice ("whether or not the right to marry should be extended to same sex couples," eliding who will do the extending). It's odd that you should characterize his concerns as "normative"--his express concern is not whether or not gays are entitled to a certain measure of dignity or respect, but whether courts are the ones to give it to them. Nagel's position, then, is little different from Justice Brown's 102 years ago: "If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane."

At least Amy Wax, whose concerns touch on both social norms and their effects, was willing to engage you on the merits of the question itself, even at the risk of demonstrating the fundamental weakness of her position.
 

"Bart" DePalma is clueless:

1) Do homosexual unions provide any benefit to society, nevertheless the level of that provided by marriage, which merits society redefining marriage to include homosexual unions and thus extending the same recognition and subsidy provided to marriage?

2) Does redefining marriage to include homosexual unions provide any measurable benefit to homosexual couples entering into civil marriage, nevertheless the enormous well documented benefits marriage provides to husband, wife and their children?


WTF cares about "benefits"? Arguably, slavery provided "benefits" to "society" (when these terms are suitably circumscribed).

But I'm afraid that even under "Bart"'s pecuniary calculus here, it is his burden to show that these "benefits" do indeed inhere in all heterosexual marriages, and do not inhere in any gay marriages. If he can't show this, then such discrimination is not narrowly tailored to achieve the (purported) societal interest, and he'd be better off in seeking changes that do achieve the alleged goals more effectively.

Even were he to meet this goal, there's the additional issue of showing that there is a cost to "non-productive" marriages such that they should be prohibited. This is probably the weakest 'argument' amongst the homophobes; hey simply can't say what damage is done to society (or even them).

Cheers,
 

Arne:

This is not an argument about personal freedom, its a demand for societal recognition and subsidy.

Gays are perfectly free to "marry" right now. A gay couple can exchange vows and rings with a Universalist reverend presiding and then proclaim to the world that they are "married" and the government will not persecute them in any way.

Rather, the issue is on what basis do homosexuals demand the societal recognition and subsidy that is generally reserved for marriage.

There is no right to societal recognition and subsidy by simply being in a "committed loving relationship." To borrow a metaphor, there are a rainbow of different committed loving human relationships, but society holds marriage above all others for special treatment because it is literally the foundation of civilization. In short, marriage is of enormous benefit to society and the married couples themselves and thus deserves special recognition and subsidy.

Thus, it is perfectly fair to ask what measureable benefit homosexual "marriage" would provide to society and even the members of a homosexual union that would merit such extraordinary recognition and subsidy.

Why are proponents of homosexual "marriage" afraid to offer argument and evidence as to the value of such unions?

If a law professor asked a student whether she agreed or disagreed with the holding of a case and then asked why, it is not an acceptable answer to simply blurt out: "Well, it's just not fair." Rather, the prof would demand that the student explain the reasoning and basis for her opinion.

I would expect no less when we are proposing to toy with a fundamental cornerstone of our civilization.
 

The narrowness of the conversation about gay marriage, here and elsewhere, is stunning...

Why is it, exactly, that advocates of same-sex marriages must necessarily bear some burden of proof that these marriages benefit society in some way? Why not extend this burden of proof to heterosexual marriages - especially those which are arranged hastily, say, as the result of an unplanned pregnancy? Exactly what societal benefit do THOSE marriages offer? The supposed "normative" value of heterosexual marriage is not sufficient to exempt heterosexual marriages from Bart's burden of proof - after all, the identity systems of "homosexual" and "heterosexual" did not arrive in the public discourse until the late 19th century. There is nothing "natural" about either type of marriage. Period.

Setting aside Bart's point: ultimately, the debate about marriage does not stem from the fact that same-sex couples are not allowed to apply the simple term "marriage" to their relationships. Indeed, civil unions or, as Bart suggested, private civil ceremonies might provide the "marriage" label adequately without state involvement. The "marriage" problem is really a problem of rights: fact is, even though civil unions provide certain rights to same-sex couples, they do not provide a group of rights that is even somewhat comparable to the benefits that heterosexual couples receive in marriage. Rights conferred by way of civil unions are rarely transferable across state lines, and again, the rights themselves pale in comparison to the ones awarded in heterosexual marriage. As such, civil unions are wildly inadequate.

Having said that, a final point: marriage in and of itself, of any flavor, is extremely problematic. If society chooses to confer some rights based on marital status, why not take things a step further and make marriage a prerequisite for ALL rights? Save the good parking spaces or good seats at the movies for "proper" married citizens, for example. Or maybe let only married people vote? Grow up, people! Get married like a good citizen! It seems to me that marital status (and the subsequent dangerous obsession with the nuclear family as an organizing principle of contemporary life) is a poor qualifying standard for awarding state and federal benefits.

Why not give people rights based on something entirely different? Citizenship status, for example? Sure, this rubric might be problematic in its own right. But it seems to me to be far less problematic than one requiring citizens to be married before they are deemed truly legitimate in the eyes of the state.
 

If a law professor asked a student whether she agreed or disagreed with the holding of a case and then asked why, it is not an acceptable answer to simply blurt out: "Well, it's just not fair." Rather, the prof would demand that the student explain the reasoning and basis for her opinion.

This leaves out the equal protection argument that similar cases be treated similarly. Also, the due process argument, that marriage -- whatever that means -- is a fundamental right. When non-lawyers say "it's not fair," they are usually making equal protection or fundamental rights arguments, but don't know enough to use the correct lingo.

The question is whether there is a justification for excluding gays from marriage that is also applied to straights in a principled manner and is not being conjured today as a pretext to maintain marriage as for straights only. In other words, is are same sex couples dissimilar to straight couples for purpose of marriage in any meaningful way?

What is the argument that same sex couples are not similarly situated? It's not procreation, since straights are not required to procreate, or even to be able to procreate, to get married. So that is a straw man. It's not children, since many gay couples have children and gays can adopt in 49 states. So that is a straw man. It's not monogamy because straights are frequently non-monogamous and gays are not materially less so, especially as a percentage of the entire population. So that too is a straw man.

As for the different norms argument, I always find it interesting that many of the people who would question the right of a gay couple to marry, particularly because they might not take marriage as seriously as straights (think Professor Wax) would never think to question, for example, the right of Brittany Spears to get married and divorced in the course of a single weekend, and then to remarry in the same year, or for Larry King to get married and divorced, I think it is now 8 times. It seems as though the average (straight) Hollywood marriage lasts less than 3 years and frequently ends with or because of adultery. Do these events not have a more damaging effect on what the average straight couple thinks of their marriage than anything that could happen from allowing SSM? Once again, a straw man.
 

ndesanti said...

Why is it, exactly, that advocates of same-sex marriages must necessarily bear some burden of proof that these marriages benefit society in some way? Why not extend this burden of proof to heterosexual marriages - especially those which are arranged hastily, say, as the result of an unplanned pregnancy? Exactly what societal benefit do THOSE marriages offer?

The literature and proof of the benefits of marriage fill libraries and cannot be fully posted here, but three major measurable benefits of marriage are:

1) The protection of and provision for women bearing and raising children. For most women who do not have Madonna's resources, raising children in a single parent household is a sure route to poverty. Furthermore, women sharing their home with "boyfriends" are more likely to be subject to violence. Homosexual unions do not produce children and thus do not reap this benefit.

2) The civilization and enhancement of the health of men. Married men are far less likely to commit crimes or other anti-social acts and are more responsible in their work and their use of the resulting income. There is no measurable evidence of which I am aware which shows the same result from a homosexual marriage where it exists. Indeed, the percentage of gay men who wish to marry is miniscule.

3) By far the best arrangement to create and raise intelligent and civilized children. Children raised in intact homes by a married couple are far more likely than in other arrangements to avoid crime and other anti social behavior and to do well in school. Once again, homosexual unions do not produce children and do not qualify. At most, they raise the children of other heterosexual unions or have another male outside of the lesbian couple impregnate them.

In short, homosexual unions can imitate or borrow the form and children of marriage, but the union itself does not produce the benefits of a marital union.

Once again, I challenge proponents to demonstrate similar measurable benefits from homosexual marriage which earn the societal recognition and subsidy provided for marriage.
 

zachary:

In what ways are homosexual unions similarly situated with marriage that merit equal treatment under the law.

Be precise here because the two courts which are alone in creating homosexual marriage on EPC grounds have largely glossed over this problem in their opinions.
 

In many parts of the US where there isn't full same-sex marriage, gay couples can already adopt children. If that's disallowed, people in gay couples can even have their own biological children by various means, though admittedly the child will only be the genetic descendant of one partner at most (a situation that also obtains for many straight couples). There's no reason to think the advantages of marriage for straight couples with children won't carry over. Of course this is just arguing about the burden of proof again.

It's a nice catch-22--same-sex marriage as a modern legal institution is very new everywhere, and the only way to have any significant body of data on the benefits of legal same-sex marriages is to have them somewhere for long enough to collect the data. So opponents who insist on positive empirical justification can basically argue that it shouldn't be allowed on the basis that it hasn't been allowed.
 

Matt:

It's a nice catch-22--same-sex marriage as a modern legal institution is very new everywhere, and the only way to have any significant body of data on the benefits of legal same-sex marriages is to have them somewhere for long enough to collect the data.

Professor Carpenter claimed during the debate that: "Gay families have been living and functioning as real families for decades now without full marital sanction." In essence, he is arguing that we have a proven population engaging in common law homosexual marriage.

There is the source of your potential proof.

I am not arguing that the label "marriage" has some magic effect on husband and wife. Rather, I am arguing that the marital relationship provides these benefits. Marriage would still exist and provide the same social benefits without state recognition.
 

"Bart" DeHomophobe:

This is not an argument about personal freedom, its a demand for societal recognition and subsidy.

Not when civil unions and domestic partner benefits already exist.

But don't piss on me and tell me it's raining. You may say it's "not an argument about personal freedom", but you don't get to decide what others are arguing, much as you would like to.

Gays are perfectly free to "marry" right now. A gay couple can exchange vows and rings with a Universalist reverend presiding and then proclaim to the world that they are "married" and the government will not persecute them in any way.

Yes, they will. You and your ilk will. Any way you can.

No one (and no law) is forcing your church to marry gays. So WTF is your problem?!?!?

Rather, the issue is on what basis do homosexuals demand the societal recognition and subsidy that is generally reserved for marriage.

Because it's the right thing to do? You haven't said why it should not be done.

There is no right to societal recognition and subsidy by simply being in a "committed loving relationship."

Yet people get married by the state all the time (including me, back in June). Fancy that. Once the state gets in the business, it has no right to discriminate.

... To borrow a metaphor, there are a rainbow of different committed loving human relationships, but society holds marriage above all others for special treatment because it is literally the foundation of civilization....

What a Pile'O'Crapola. But if you insist that it is "[held] ... above all others", then why are you denying such to gays?!?!?

... In short, marriage is of enormous benefit to society and the married couples themselves and thus deserves special recognition and subsidy.

In short, your 'argument' consists of 'argument by means of repeated [and trite] assertion'.

Care to answer the questions I posed?


Thus, it is perfectly fair to ask what measureable benefit homosexual "marriage" would provide to society ...

Why? Does anyone ask what benefit any marriage provides to society???? What about, say, Anna Nicole Smith's marriage?

... and even the members of a homosexual union that would merit such extraordinary recognition and subsidy.

Care to explain how the "benefits" here are any different for straight and gay marriages?

That is, if we even accept that the measure of the validity of marriages is the "benefit to society" ... you know, like the "benefit to society" of slavery....

Why are proponents of homosexual "marriage" afraid to offer argument and evidence as to the value of such unions?

You are the one that wants to make a distinction. It is incumbent on you to show that there's at least a rational basis for your distinction.

If a law professor asked a student whether she agreed or disagreed with the holding of a case and then asked why, it is not an acceptable answer to simply blurt out: "Well, it's just not fair." Rather, the prof would demand that the student explain the reasoning and basis for her opinion.

And I asked you for the reason for your distinction here. You haven't answered.

I would expect no less when we are proposing to toy with a fundamental cornerstone of our civilization.

ROFLMAO. Yes, I know that Vermont, Massachusetts, and California have become seething dens of iniquity in the last half a decade. They are rife with problems never seen in any other state of the union. That's what happens when you " with a fundamental cornerstone of our civilization"....

You're a real dork, "Bart". A real dork. And an amoral and hateful one at that. Just a FYI.

Cheers,
 

Do homosexual unions provide any benefit to society

Unless your wife puts a bullet in your head, I can't imagine any possible benefit that your marriage provides for society. Until you can prove otherwise, kindly shut your homophobic pie-hole.
 

arne:

"Bart" DeHomophobe...

Name calling does not establish your case, but appears to be what passes for argument for you. You did bring up one valid point which deserves to be addressed, then I will go back to ignoring you.

BD: This is not an argument about personal freedom, its a demand for societal recognition and subsidy.

Not when civil unions and domestic partner benefits already exist.


Such benefits provide some or all of the subsidy society grants marriage, but none of the societal recognition.
 

"Bart" DeHomophobe:

The literature and proof of the benefits of marriage fill libraries and cannot be fully posted here, ...

I note for the record that "Bart" insists on the great wonders and virtues of marriage (calling it in fact the "foundation of civilization") and then insists that we shouldn't let people who want to get married. Go figure.

And lack of cites duly noted.

... but three major measurable benefits of marriage are:

1) The protection of and provision for women bearing and raising children....


"Barefoot and pregnant".... Wow. Mrs. "Bart" will look up to him lovingly for that pearl of wisdom.

But as noted, marriage neither requires children, nor are gays prevented from having children.

... For most women who do not have Madonna's resources, raising children in a single parent household is a sure route to poverty. Furthermore, women sharing their home with "boyfriends" are more likely to be subject to violence....

So do we as a society require that these women marry their abuusers?!?!?

Also, cum hoc ergo propter hoc.

... Homosexual unions do not produce children and thus do not reap this benefit.

ROFLMAO.

Nonetheless, this doesn't explain why we allow infertile straight couples to marry. Why?, "Bart"...

2) The civilization and enhancement of the health of men....

Didn't work, did it? You're still a class-one azo.

... Married men are far less likely to commit crimes or other anti-social acts and are more responsible in their work and their use of the resulting income....

More cum hoc ergo propter hoc. Enough of the logical falacies, "Bart". It's downright embarrassing.

.. There is no measurable evidence of which I am aware which shows the same result from a homosexual marriage where it exists....

It's your burden to show that such doesn't exist.

... Indeed, the percentage of gay men who wish to marry is miniscule.

(even if true) SFW? If the number is so small, what's the freakin' damage here?

3) By far the best arrangement to create and raise intelligent and civilized children...

Castrating oafs like you would be more efficaious. That's just my simple observation.

... Children raised in intact homes by a married couple are far more likely than in other arrangements to avoid crime and other anti social behavior and to do well in school....

That cum hoc ergo propter hoc again. But why not let gays marry then?

... Once again, homosexual unions do not produce children and do not qualify....

SFW? But false at any rate.

... At most, they raise the children of other heterosexual unions or have another male outside of the lesbian couple impregnate them.

And your problme with this?

In short, homosexual unions can imitate or borrow the form and children of marriage, but the union itself does not produce the benefits of a marital union.

Not if "Bart" can help it....

Once again, I challenge proponents to demonstrate similar measurable benefits from homosexual marriage which earn the societal recognition and subsidy provided for marriage.

Nope. Burden is yours.

And a false argument nonetheless. Even if all the benefits accrued itoall straight marriages (as you claim) and if none of these benefits accrued to gay marriages and if this "benefits" calculation is the proper yardstick (a quite dubious argument), this still doesn't show any harm from letting gays marry.

Cheers,
 

"Bart" DeScaredOfTheMeanOldGays:

"Bart" DeHomophobe...

Name calling does not establish your case, but appears to be what passes for argument for you....


Nonsense. That was two words in a long post you choose to ignore. Everyone sees this. And they also see that my appellation is justified.

... You did bring up one valid point which deserves to be addressed, then I will go back to ignoring you.

["Bart"]: This is not an argument about personal freedom, its a demand for societal recognition and subsidy.

[Arne]: Not when civil unions and domestic partner benefits already exist.

["Bart"]: Such benefits provide some or all of the subsidy society grants marriage, but none of the societal recognition.


So what's the freakin' cost?!?!?

What IS your freakin' problem here?

Cheers,
 

Prof. Carpenter:

But dignity and respect are not necessarily bestowed by judicial decree. Indeed, now that a court has required that homosexual couples be included within the circle of marriage, such couples may feel increased sensitivity to any remaining signs—including signs less overt than the possible passage of a proposed amendment prohibiting gay marriage-- that many Americans do not view homosexual marriages as being worthy of as much respect as traditional marriages. If so, this remaining hurt will seem even more intolerable than older inequalities....

"It's for their own good, I tellya. We're just trying to protect them from more hurt down the road. We, such rational people, will decide what's best for them. Not to mention, you give those queers an inch, they'll demand a mile too...."

Cheers,
 

society holds marriage above all others for special treatment because it is literally the foundation of civilization.

This is news to me. When discussing the characteristics of civilizations, most of my fellow archaeologists point to things like craft specialization, sedentary farming, and a complex sociopolitical system, to name a few.

Marriage, on the other hand, is present in every kind of society. Better to say that marriage is the foundation of society, rather than civilization.

Attempts to prevent others within a given polity from marrying is therefore an explicit attempt to exclude them from one's society. This goes as much for anti-miscegenation laws as it does for the resistance to same-sex marriage.
 

Bart...a few points:

You said:

"1) The protection of and provision for women bearing and raising children[...]Homosexual unions do not produce children and thus do not reap this benefit."

Leaving aside the fact that your phrase "protection of and provision for women bearing and raising children" practically translates to "the commodification and trafficking in a woman's sexuality for a man's benefit"...your assertion that homosexual unions do not produce children is simply laughable. I know plenty of people who prove that argument absolutely false. And even if I took your argument to be true - why is it that the ability to bear children is suddenly a qualifying factor for marriage? What about infertile straight couples? They cannot reproduce, either.

You also said:

"2) The civilization and enhancement of the health of men. Married men are far less likely to commit crimes or other anti-social acts and are more responsible in their work and their use of the resulting income. There is no measurable evidence of which I am aware which shows the same result from a homosexual marriage where it exists. Indeed, the percentage of gay men who wish to marry is miniscule."

For someone seemingly so opposed to gay marriage, you do seem to know a whole lot about the broad leanings of the gay community. Your argument here doesn't really strike me as anything surprising - of course there isn't "any measurable evidence" of marriage benefiting gays in the ways you describe, because so few of them are allowed to get married in the first place! It's no wonder we have a small sample size when people continually argue against marriage. Beyond that, your argument relies on dated stereotypes about "men" who need to be "civilized" through a "marriage" process. Though I suppose you also tend to rely on stable identity categories such as "women" and "men", as well as the notion of "gender difference" in your arguments, and other authors have shredded those terms far better than I can in this space. See Judith Butler, Chrys Ingraham, etc.

More:

"3) By far the best arrangement to create and raise intelligent and civilized children. Children raised in intact homes by a married couple are far more likely than in other arrangements to avoid crime and other anti social behavior and to do well in school. Once again, homosexual unions do not produce children and do not qualify. At most, they raise the children of other heterosexual unions or have another male outside of the lesbian couple impregnate them."

Again, your argument that homosexual unions do not produce children is terribly empty. But setting that point aside: I would argue that the "intact homes" element is FAR more important than the gender identities of the partners in a committed marriage. Hetero marriages are just as likely, if not more so, to create unstable living environments for children through marital strife and divorce. Furthermore, I believe that homosexual marriages are FAR more likely to remain intact - after all, homosexuality is still hugely stigmatized in this country, and as such, gay men and women are more likely to be awfully careful about choosing a partner they can connect with, lest they separate and end up single again in a hostile society.

And finally, to address a point you made in response to someone else, in addressing civil unions you said:

"Such benefits provide some or all of the subsidy society grants marriage, but none of the societal recognition."

To suggest that the rights and privileges awarded to same-sex couples through civil unions are even remotely comparable to those that are awarded to heterosexual couples is ridiculous. The benefits gap between civil unions and state-sponsored marriage is enormous:

Marriage vs. Civil Unions

Anyone care to address my earlier criticisms of the institution of marriage in the first place? I realize most people think I've got my head in the clouds when I criticize marriage like I did in my first post, but I'm curious to hear what you all think.
 

When the issue of gay marriage first entered the broad public square, I hoped it would stimulate the kind of discussion proposed by ndesanti, specifically reconsideration of the appropriateness of government-funded benefits based on marital status. This naivety was soon dispelled as it became clear that opponents were typically motivated by prejudice (although in the interim, public expression of that prejudice has admittedly abated - or at least become less blatant) and vis-a-vis material benefits, proponents often seemed interested primarily in getting in on the largesse.

As evidenced by the debate and the lack of substantive response to ndesanti's comment, it appears that little has changed. "Recognition" concerns still seem motivated primarily by religion-driven morality, social impact concerns ignore the seemingly obvious mismatch between the impacts of the actions of some miniscule fraction of the populace and the illicit sex-saturated pop culture; and no one seems interested in addressing whether family support benefits which may have made sense in the "Ozzie and Harriet" era should be revisited given today's substantially altered social structures.

And I second the essence - if not some specifics - of the comment by "commenter", viz, the seeming futility of changing many minds through debate. Based on my observations, knowing gays is much more persuasive. Harder to wish bad things on your own nephew, best friend's daughter, etc, than on unidentified strangers pursuing their libertine "agenda".

- Charles
 

pms:

The anti-miscegenation analogy does not work.

Anti-miscegenation laws outlawed men and women from entering marriage based on their race and did not attempt to redefine marriage.

In contrast, there are no law criminalizing homosexual "marriage." As I noted to arne, gays are free to "marry" with rings and ceremony and then proclaim themselves to the world as married. Other citizens are free to recognize that "marriage." None of this is unlawful. Rather, the movement here is to redefine marriage to compel societal recognition and subsidy of homosexual unions as marriages.

BTW, I do not consider a society without civilization worth living in, thus the importance of marriage's necessity to civilization. If you doubt this, try walking down the streets of a neighborhood dominated by broken or single households.
 

BTW, I do not consider a society without civilization worth living in, thus the importance of marriage's necessity to civilization. If you doubt this, try walking down the streets of a neighborhood dominated by broken or single households.

# posted by Bart DePalma : 1:52 PM


Then why are you so determined to prevent gays from marrying?
 

try walking down the streets of a neighborhood dominated by broken or single households

Do they have a broken marriage problem in Baghdad?
 

ndesanti said...

BD: "1) The protection of and provision for women bearing and raising children[...]Homosexual unions do not produce children and thus do not reap this benefit."

Leaving aside the fact that your phrase "protection of and provision for women bearing and raising children" practically translates to "the commodification and trafficking in a woman's sexuality for a man's benefit"...


That comment is amazing and more than a little disturbing. The successful reproduction and raising of progeny is a prerequisite for the survival of our culture in particular and the species as a whole, not for the pleasure of males of the species.

The alternative is the EU, which is declining to reproduce and killing off many of the children they do produce through abortion to the extent that their civilization is literally dying off. The left in this country is following suit.

...your assertion that homosexual unions do not produce children is simply laughable. I know plenty of people who prove that argument absolutely false.

I would be pleased to hear you explain how a pair of the same genders reproduce naturally or even artificially.

And even if I took your argument to be true - why is it that the ability to bear children is suddenly a qualifying factor for marriage? What about infertile straight couples?

This is another nonsensical argument. The union of man and woman can reproduce, while a pair of humans of the same gender cannot. Whether a married couple chooses to reproduce is irrelevant. There are always an exception to every rule. That does not mean the rule is invalid.
 

Do homosexual unions provide any benefit to society

Just as with straights, they encourage single people to settle down with a lifemate, making for happier, more stable citizens.

Does redefining marriage to include homosexual unions provide any measurable benefit to homosexual couples

Sponsoring your spouse for a green card, Social Security/Medicare/veteran's spousal benefits, mandated family/medical leave, mandated employer health covergare, preference for adoption and child custody, 5th amendment spousal incrimination privilege, enhanced domestic violence protection, tax law considerations (e.g., estate tax exemption).

Anti-miscegenation laws [...] did not attempt to redefine marriage.

The law defines civil marriage, and thus these laws (or repealing them) redefined civil marriage.

In contrast, there are no law criminalizing homosexual "marriage"

You can't possibly think restrictions against civil marriage for inter-racial couples would survive a court challenge even without a criminal penalty.
 

Whether a married couple chooses to reproduce is irrelevant. There are always an exception to every rule. That does not mean the rule is invalid

If you are correct, then the state could choose to not offer civil marriage to the elderly and infertile. That's not going to survive a court challenge.
 

Whether a married couple chooses to reproduce is irrelevant.

That is simply absurd. If you're going to prevent people from marrying because they can't reproduce, that should apply to everyone. Why should infertile scum like you have more rights than gays?
 

Bart...in your own words:

"There are always an exception to every rule."

Interesting. What about the exceptions "sperm donor" or "surrogate mother" to your still-laughable "rule" that same-sex couples shouldn't be awarded marriage benefits because they can't reproduce "naturally?"

I would be pleased to hear you explain how a pair of the same genders reproduce naturally or even artificially.

Done. You're welcome.
 

pms:

The anti-miscegenation analogy does not work.

Anti-miscegenation laws outlawed men and women from entering marriage based on their race and did not attempt to redefine marriage.


It's not an analogy. It's another example in the category of "attempts to exclude people from society."

As for the definition of marriage, it is quite mutable and depends entirely upon sociohistorical context. Even if supporting same-sex marriage were construed as a "redefinition" of marriage, such a change would be consistent with the continuing evolution of social categories and their boundaries. Societies aren't likely to collapse, and neither are civilizations.

BTW, I do not consider a society without civilization worth living in, thus the importance of marriage's necessity to civilization.

No, try "thus the importance of craft specialization to society." Marriage has nothing to do with civilization.
 

just_looking said...

BD: Do homosexual unions provide any benefit to society

Just as with straights, they encourage single people to settle down with a lifemate, making for happier, more stable citizens.


Interesting contention. Do you have any evidence at all to support it?

Does redefining marriage to include homosexual unions provide any measurable benefit to homosexual couples

Sponsoring your spouse for a green card, Social Security/Medicare/veteran's spousal benefits, mandated family/medical leave, mandated employer health covergare, preference for adoption and child custody, 5th amendment spousal incrimination privilege, enhanced domestic violence protection, tax law considerations (e.g., estate tax exemption).


Allow me to clarify. I am speaking of benefits derived from the institution of marriage itself, not the subsidy provided by the state to encourage marriage.

You can't possibly think restrictions against civil marriage for inter-racial couples would survive a court challenge even without a criminal penalty.

No I do not because men and women of all races are similarly situated with one another. Homosexul couples are not similarly situated to heterosexual couples.
 

My, oh My!

Hasn't our own Dear Bart been a busy little "loathsome spotted reptile" on this thread.

The last time we tried reasoning with Bart on this subject, it got to the stage where I wondered whether he was in fact a homophobe by reason of repressed homosexuality. But he assured us that there there is a "Mrs Bart" who has survived 20 years' of wedlock. The poor dear !

Perhaps Bart is still coming to terms with the fact that the Pentagon's bathrooms were desgregated in 1948 or that desgregation of Denver's Schools was mandated by SCOTUS in 1972 [Keyes v. School District No. 1, Denver, Colorado 413 U.S. 189] .

As you may know, the UK has moved from homosexual copulation being a felony to Civil Partnerships with all the benefits of marriage in just half a century. I personally, do not think the nomenclature matters much provided the benefits are the same.

Just for amusement, some of you may care to read how the UK Armed Forces coped with the change: Civil Partnerships

When "don't ask don't tell" meets its inevitable demise and the US Army publishes something similar, perhaps Bart will fall into line like the good little "loathsome spotted reptile" he is.

Still, while it's an excuse or a plea in mitigation rather than a defence, I did notice this in one of his diatribes above: "I do not consider a society without civilization worth living in...".

Quite. So when Bart eventually gets his brain up to speed [reptile brains are less complex and therefore slower], he may yet come to the realisation that to afford equal rights to all, regardless of race, gender, religion or sexual orientation, is a mark of civilisation.

One lives in hope.
 

Just as with straights, they encourage single people to settle down with a lifemate, making for happier, more stable citizens.

Interesting contention. Do you have any evidence at all to support it?

Gays are human beings, just like straights. You think they tick differently?

I am speaking of benefits derived from the institution of marriage itself, not the subsidy provided by the state to encourage marriage.

Not being treated as second-class citizens. That is, we will give you the goodies, but please sit at the civil union table, not our marriage table.

No I do not because men and women of all races are similarly situated with one another. Homosexul couples are not similarly situated to heterosexual couples.

How are gay couples not similarly situated with infertile and elderly straight couples?
 

In what ways are homosexual unions similarly situated with marriage that merit equal treatment under the law.

I honestly don't know how to answer this except to turn it back onto you (as you have attempted to turn it back onto me): in what ways are they not similar, except for the obvious way in that they are two people of the same sex?

That is really the argument: that same-sex couples are similar in every meaningful way to opposite-sex couples, except for the sex of one member of the couple, and that factor makes no difference when you consider the logical reasons for having civilly recognized marriage in the first place, as well as current realities regarding adoption, public acceptance of gays, etc.

So why the distinction between what legal arrangements are available, or what they are called, except for animus? That is the question.

Of course, you can argue that no one should have these arrangements, but since marriage isn't going anywhere and most people like it, the easier way to get to equity is to let gay couples in rather than throw straight couples out.
 

Mourad, must you repeatedly insult reptiles in here?
 

Bart:

This conversation thus far has all been about the "benefits" side of your cost-benefit analysis. Could you list, with specifity, the *costs* of gay marriage that you claim will occur?

Do you mean that hospitals have to give visitation rights? Gay couples can file taxes as married folks do? What, exactly? And please note which costs could not currently be incurred all the same through private contract.

Or is it non-economic -- the "undermining of heterosexual marriage," that sort of thing. If so, please let me know how the marriage of my sister to her partner hurt your marriage, my marriage, or the marriage of any straight person you know.

Also, please describe the harms that jurisdictions that permit gay marriage have incurred from these costs. How has Massachusetts been damaged by these costs, for example?
 

"Bart" DeSFSMOTFOTE gave out this emanation:

Anti-miscegenation laws outlawed men and women from entering marriage based on their race and did not attempt to redefine marriage.

Nonsense. They said that marriages may only exist between people of the same race. Prior to these laws, such marriages were legal. Afterwards, they were not. Talk about "defining" marriage....

Cheers,
 

"Bart" DeBigoted:

As I noted to arne, gays are free to "marry" with rings and ceremony and then proclaim themselves to the world as married.

And wouldn't that have been true of mixedp-race couples as well?

Cheers,
 

"Bart" DeBigoted:

Rather, the movement here is to redefine marriage to compel societal recognition and subsidy of homosexual unions as marriages.

You mispelled "gummint".

And as pointed out, civil unions and domestic partner benefits have the same "subsidy" 'problems' ... although it's not quite clear what you think the "cost" is here. Could you clarify that?

Cheers,
 

just_looking said...

Just as with straights, they encourage single people to settle down with a lifemate, making for happier, more stable citizens.

BD: Interesting contention. Do you have any evidence at all to support it?

Gays are human beings, just like straights. You think they tick differently?


Isn't that self evident? There are a variety of fundamental differences in how the two genders think, interact and respond to their environments. Men and women view and benefit from marriage differently based on gender. Thus, it is safe to assume that homosexuality, which appears to be a genetically based variation on the standard two genders, would have different reactions than either men or women.

BD: I am speaking of benefits derived from the institution of marriage itself, not the subsidy provided by the state to encourage marriage.

Not being treated as second-class citizens. That is, we will give you the goodies, but please sit at the civil union table, not our marriage table.


Here is a very un-PC thought: All other human relationships are second or third class when compared to marriage and the parent-child relationship and society should treat them as such.
 

Also, please describe the harms that jurisdictions that permit gay marriage have incurred from these costs. How has Massachusetts been damaged by these costs, for example?

# posted by jslater : 4:43 PM


Actually, the state of Massachusetts has had an epiphany. Upon realizing that gays would come from other states to get married, and spend money here in the process, the legislature repealed a 1913 law which was preventing gays from other states from being married in Massachusetts.

Not only are we surviving, we should make some money out of the deal.
 

Here is a very un-PC thought: All other human relationships are second or third class when compared to marriage

What the fuck does that have to do with treating people fairly?
 

"Bart" DeRacist:

The alternative is the EU, which is declining to reproduce and killing off many of the children they do produce through abortion to the extent that their civilization is literally dying off.

Norway will let you know first if and when they see that this is a problem. In the meanwhile, would you please take off your KKK ... ummm, sorry, I meant CCC .. robes and leave the racist sh*te off this blog. One almost thinks you think that Virginia had the winning argument in Loving v. Virginia:

On 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."



And this:

In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim, 197 Va. 80, 87 S. E. 2d 749, as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. Id., at 90, 87 S. E. 2d, at 756.

BTW, here's a tidbit from Loving:

Other central provisions in the Virginia statutory scheme are 20-57, which automatically voids all marriages between "a white person and a colored person" without any judicial proceeding,...

So much for "not redefining marriage". So much for "Bart"'s lies....
 

zachary said...

In what ways are homosexual unions similarly situated with marriage that merit equal treatment under the law.

I honestly don't know how to answer this except to turn it back onto you (as you have attempted to turn it back onto me): in what ways are they not similar, except for the obvious way in that they are two people of the same sex?


Homosexual unions are different in every way from marriage except for the fact that a few share the characteristic are committed loving relationships.

I have a committed loving relationship with a lifetime friend from high school. However, that does not mean that my friend and I are similarly situated with my wife and I.

You might observe that homosexual couples also share a sexual relationship that my friend and I do not. However, sodomy is not sexual intercourse. The purpose of sexual intercourse is reproduction, not self gratification. At most, sodomy is a pale imitation of sexual intercourse necessitated because a homosexual is attracted to the same gender and cannot have sexual intercourse with the person to which he is attracted. Thus, homosexual unions and marriage is not similarly situated sexually.

Thus, once again, we return to the common denominator of a committed loving relationship, which is insufficient to claim similar situation with marriage because marriage encompasses so much more.
 

Gays are human beings, just like straights. You think they tick differently?

Isn't that self evident? There are a variety of fundamental differences in how the two genders think, interact and respond to their environments. Men and women view and benefit from marriage differently based on gender. Thus, it is safe to assume that homosexuality, which appears to be a genetically based variation on the standard two genders, would have different reactions than either men or women.

Sure, if you start with the premise that gays aren't real men and women, then you can demonize them - they can't possibly be seeking happiness like the rest of us.

All other human relationships are second or third class when compared to marriage and the parent-child relationship and society should treat them as such.

That's defensible, but you then must grant infertile and elderly straight couples the same second-class status.
 

The purpose of sexual intercourse is reproduction

How old are your kids?
 

Thus, once again, we return to the common denominator of a committed loving relationship, which is insufficient to claim similar situation with marriage because marriage encompasses so much more.

If committed, loving relationship isn't sufficient for the state to offer civil marriage, what more makes it sufficient?
 

jslater said...

This conversation thus far has all been about the "benefits" side of your cost-benefit analysis. Could you list, with specifity, the *costs* of gay marriage that you claim will occur?

I usually do not argue from the cost position. We do not even need to go there because there is no benefit against which to balance costs.

Because you ask, though, I do think there is a danger of devaluing marriage as an institution in the effort to reduce it to simply a contractual relationship from which the parties derive government benefits. However, this damage would be difficult to measure without implementing a changed definition of marriage for multiple generations.

There is no need to engage in this social engineering experiment and incur potential damages if the argument is disposed of based on the fact that homosexual unions provide no benefits to merit a redefinition.
 

Bart:

So in short, you cannot identify any actual costs.

Meanwhile, did you really just say that sex acts that do not have the purpose or effect of reproduction are not "sexual intercourse"? So Clinton was telling the truth when he denied having sexual relations with Lewinsky?
 

[just_looking]: You can't possibly think restrictions against civil marriage for inter-racial couples would survive a court challenge even without a criminal penalty.

["Bart"]: No I do not because men and women of all races are similarly situated with one another.


Why, that's just what Virginia argued in Loving v. Virginia:

The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same.

See! Everyone's "equal"! Everyone's "similarly situated"!

Cheers,
 

Bart is mistaken about this point:

there are no law criminalizing homosexual "marriage."

Actually, there is at least one state that criminalizes same-sex marriage.

THe Delaware code prohibits (among other things) marriage "between persons of the same gender." (Title 13, Chapter 1, Subchapter 1, Section 101.)


Section 102, Entering into a prohibited marriage; penalty, adds:

The guilty party or parties to a marriage prohibited by § 101 of this title shall be fined $100, and in default of the payment of the fine shall be imprisoned not more than 30 days.
 

"Bart" DeClueless:

I usually do not argue from the cost position...

"... in fact, I avoid it like the plague, because I have no answer."

... We do not even need to go there because there is no benefit against which to balance costs.

"Argument by repeated assertion" [or is that repeated assumption: "Thus, it is safe to assume that homosexuality, BLAH-BLAH-BLAH..."] is not a valid form of argumentation. If you want to assert "no benefit", you have to show "no benefit". Do so or STFU.

And if there's no "cost", Just WHAT is your eff'in problem?!?!?

Not to mention the "cost/benefit" analysis is hardly a valid one; as I stated above, such 'analysis' could well argue for the legalisation of slavery (as did many proponents of slavery back a century and a half ago).

Cheers,
 

All other human relationships are second or third class when compared to marriage and the parent-child relationship and society should treat them as such.

You are right about one thing, that is a very un-PC thought.

Indeed, it is a bigoted one. You are saying that two lesbians who have lived together for 50 years and cared for each other have a second or third class relationship when compared to Britney Spears' relationship with her children or Amy Winehouse's relationship with her husband.

There's no other way of interpretating your statement other than that the relationships of gays are automatically second class because of their sexual orientation.

And that, at the end, is what this is about. Some people believe that the government should discriminate against gays and lesbians because of who they are. And that's nothing more than bigotry.
 

Baghdad, how does a person who has been married for 20 years with no children find the nerve to argue that the ability to reproduce is the determining factor in who should be allowed to marry?
 

OK. Enough. Can we all agree that "Bart"'s pathetic mewlings have been pounded into dust and pulp and just move on? He hasn't said anything new in the last ten posts (for that matter, in the last ten years; this is a retread of his comments on previous threads). There comes a time when "enough is enough".

Cheers,
 

["Bart"]: No I do not because men and women of all races are similarly situated with one another.

["Arne"]: Why, that's just what Virginia argued in Loving v. Virginia:

I think Bart is correct on this one small point. Current marriage is law is distinguished from Loving because anti-miscegenation laws disfavored blacks by keeping the races "pure" to perpetuate white supremacy. In contrast, neither men nor women are disfavored as a group.

However of course, gays are disfavored.
 

just_looking:

["Bart"]: No I do not because men and women of all races are similarly situated with one another.

["Arne"]: Why, that's just what Virginia argued in Loving v. Virginia:

I think Bart is correct on this one small point....


You agree with Virginia's position?!?!?

... Current marriage is law is distinguished from Loving because anti-miscegenation laws disfavored blacks by keeping the races "pure" to perpetuate white supremacy....

That wasn't the 'argument' I pointed out. As I said, Virginia argued that their laws did not discriminate, citing to Pace v. Alabama, because all parties were similarly affected; both blacks and whites equally were forbidden to marry someone of another race.

Of course, the unanimous U.S. Supreme Court saw through this BS and rejected this reasoning.

... In contrast, neither men nor women are disfavored as a group.

Just as in Loving.

However of course, gays are disfavored

Just as the Loving inter-racial couple was in the aptly named Loving v. Virginia.

Cheers,
 

[just looking]: In contrast, neither men nor women are disfavored as a group.

[Arne]: Just as in Loving.

No. SCOTUS did not find that neither blacks or whites were disfavored as a group. They rejected Virginia's claim of the races being "similarly situated" specifically because blacks were disfavored.
 

[just looking]: In contrast, neither men nor women are disfavored as a group.

[Arne]: Just as in Loving.

No. SCOTUS did not find that neither blacks or whites were disfavored as a group. They rejected Virginia's claim of the races being "similarly situated" specifically because blacks were disfavored.


Not exactly. As I said, the state's position was this:

"Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element [388 U.S. 1, 8] as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race."

That's argument #1. And they cite to Pace [an 1883 case] in support of that.

"The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages."

That's the racially motivated animus (as in the first quote I gave from Loving).

Here's what the court said as to the first argument: "[T]he fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race."

To quote again:

The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated 'Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.' McLaughlin v. Florida, supra, at 188. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate official state sources of invidious racial discrimination in the States."

Having rejected the argument that mere "equality of application" is sufficient to immunize from strict scrutiny (and place the analysis into a "rational basis" category, as Virginia then proposed to do), the court looked further into whether there was "invidious racial discrimination".

Looking at both the context and the history of the anti-miscegenation laws, the court quite reasonably found that there could be no purpose other than racial animus. One could say the same for the anti-gay-marriage laws; there simply isn't any rational basis for such, as shown here.

Cheers,
 

Bart:

Meanwhile, did you really just say that sex acts that do not have the purpose or effect of reproduction are not "sexual intercourse"? So Clinton was telling the truth when he denied having sexual relations with Lewinsky?

Sexual relations cover all sex acts, not just sexual intercourse. Thus, Mr. Clinton did commit perjury.
 

dilan said...

BD: All other human relationships are second or third class when compared to marriage and the parent-child relationship and society should treat them as such.

You are right about one thing, that is a very un-PC thought.

Indeed, it is a bigoted one. You are saying that two lesbians who have lived together for 50 years and cared for each other have a second or third class relationship when compared to Britney Spears' relationship with her children or Amy Winehouse's relationship with her husband.


Actually, yes.

I am speaking about the relationships involved - marriage and the parent-child relationship v. your cohabiting lesbians.

While marriage and the parent-child relationship's value to society can be reduced by the abuses of the parties to that relationship ala Spears and Winehouse, the lesbian relationship is incapable of offering value to society regardless of the acts of the parties.

If you disagree, demonstrate the benefits to society offered by homosexual unions which are remotely comparable to marriage and the parent child relationship.
 

demonstrate the benefits to society offered by homosexual unions which are remotely comparable to marriage and the parent child relationship.

# posted by Bart DePalma : 10:25 AM


I have a better idea. How about if you demonstrate the benefits to society of your childless marriage?
 

Arne,

Your 9:43 AM comment supports my claim that Bart got one thing correct: current marriage law does not discriminate on the basis of gender.

As your quotes from Loving show, the Court established that so-called "equal application" is not sufficient to determine if discrimination has occurred. You may or may not have discrimination, further analysis is required.

In Loving, there was imperssible racial discrimination. With current marriage law there is certainly sexual-orientation discrimination, which may or may not be permissible. But, there isn't gender discrimination.
 

How about if you demonstrate the benefits to society of your childless marriage?

Other than the obvious Darwinian advantages, of course...
 

Let me echo bartbuster from his 10:32 AM post.

Bart has repeatedly been asked to distinguish the infertile and elderly from same-sex couples, but has not yet provided any argument.
 

Meanwhile, did you really just say that sex acts that do not have the purpose or effect of reproduction are not "sexual intercourse"? So Clinton was telling the truth when he denied having sexual relations with Lewinsky?

I was shocked when I realized that a pretty substantial minority of Americans in fact does NOT consider oral sex to be "sex". This was news to me, but for people roughly 40 and under today, it's apparently a widely held belief.
 

bb:

I have a better idea. How about if you demonstrate the benefits to society of your childless marriage?

The laws recognizing and subsidizing marriage need only pass a rational relationship test where there is a rational relationship between the law and the government purposes of promoting the welfare of the partners in marriage and their children. The definition of marriage does not have to be refined to the point where all persons unwilling or unable to advance some or all of the purposes of marriage are removed. The general definition sufficiently advances the government purposes.
 

Wouldn't polygamy produce more benefits to society under a cost/benefit analysis? The male isn't limited by one wife's gestational period or menopausal status to further procreate, the wives can work together and distribute homemaking and child-rearing duties in a more efficient and sensible manner based upon each's strengths/weaknesses, and we have more single men to go and die in wars. This seems to be an advance in social engineering beyond "single spouse" marriage, to the best benefit of society. In fact, only those with preferred attributes should be allowed to marry and procreate, otherwise, we would have a offspring of a lower caliber, clearly a cost to society. If your IQ isn't 140+, you don't get your four wives. After all, Buck v Bell hasn't been expressly overruled, and "three generations of imbeciles are enough." If we don't have sufficient men with such attributes, we can allow married men to have concubines for some periods to increase the number of offspring. Remember the mine shaft solution from Dr Strangelove? I think Mr. DePalma is onto something by the utilization of cost/benefit analysis to determine the proper value and primacy in law of various human relationships...
 

The laws recognizing and subsidizing marriage need only pass a rational relationship test where there is a rational relationship between the law and the government purposes of promoting the welfare of the partners in marriage and their children.

Baghdad, that is a big steaming pile of bullshit. There is no "rational relationship" between restricting marriage to reproductive couples, but still allowing barren bigots like you to marry.
 

Beating a dead horse:

Sexual relations cover all sex acts, not just sexual intercourse. Thus, Mr. Clinton did commit perjury.

Leaving aside the fact that the definition of "sexual relations" was strangely and curiously circumscribed by Wright following an objection by Clinton's lawyer (so that actual falsity here is arguable), "Bart"'s statement here is in error. Perjury doesn't require falsity (and in fact, in theory, a perjury prosecution could be sustained even for a statement that was literally true). It requires that the affiant believe that the statement was false. In addition, it requires that the statement be "material" (see U.S. v. Gaudin), another element lacking here.

I've pointed this out to lawyer "Bart" here repeatedly. He's ignored it every time, and keeps repeating his falsehoods.

Cheers,
 

The laws recognizing and subsidizing marriage need only pass a rational relationship test where there is a rational relationship between the law and the government purposes of promoting the welfare of the partners in marriage and their children.

That assertion is not settled law, but let's accept it for the sake of argument.

The definition of marriage does not have to be refined to the point where all persons unwilling or unable to advance some or all of the purposes of marriage are removed.

That's the wrong hypothetical to test your assertion. Instead of forcing the removal of the infertile from marriage, consider a state which chooses to exclude the infertile. If your assertion is correct, such a statute would be permissble under rational basis review. I highly doubt that this statute would survive a court challenge, and further believe it would be subject to rigorous scrutiny per Zablocki.
 

just_looking:

Your 9:43 AM comment supports my claim that Bart got one thing correct: current marriage law does not discriminate on the basis of gender.

I wasn't talking about anti-gay-marriage laws (albeit I suggested that there's an equivalence to these in the anti-miscegenation laws).

Here's the parallel:

Virginia statute:

If you're black, you can marry a black.
If you're black, you cannot marry a white.

IF you're white, you can marry a white.
If you're white, you cannot marry a black.

This is neutral in that the punishment is the same for all in violating the laws. As the SCOTUS pointed out, though, while "neutral" in that respect, it nonetheless included racial classification in its text, and that race of the parties would matter, not in the severity of the punishment, but in the definition of the crime, was what the court rejected, saying they could see no crime that could be made so on the basis of the colour of the skin of the participant(s).

There is a parallel with the anti-gay-arriage laws:

If you are a man, you can marry a woman.
If you are a man, you cannot marry a man.

If you're a woman, you can marry a man.
If you're a woman, you cannot marry a woman.

Leaving aside the fact that the Virginia statutes included criminal penalties, even the laws that nullified interracial marriages was struck down (and see above for statutes that make gay marriage a crime, and for he Virginia statutes that also nullify and void the inter-racial marriages).

There is an equivalence. The best argument for allowing such anti-gay-marriage laws is that sexual discrimination is not held to the "strict scrutiny" standard of racial classifications, but rather is evaluated under an "intermediate scrutiny" (above "rational basis" but allowing more leeway). But I think that's bogus too; as discussed here, there doesn't even seem tobe a "rational basis" for the anti-gay-marriage laws.

As your quotes from Loving show, the Court established that so-called "equal application" is not sufficient to determine if discrimination has occurred. You may or may not have discrimination, further analysis is required.

True, but that's not what I was getting at.

In Loving, there was imperssible racial discrimination. With current marriage law there is certainly sexual-orientation discrimination, which may or may not be permissible. But, there isn't gender discrimination.

Yes, there is. See my equivalence analysis above. The main question is whether the laws survive intermediate scrutiny (or even "rational basis" tests).

Cheers,
 

nerpzillicus:

If we don't have sufficient men with such attributes, we can allow married men to have concubines for some periods to increase the number of offspring. Remember the mine shaft solution from Dr Strangelove? I think Mr. DePalma is onto something by the utilization of cost/benefit analysis to determine the proper value and primacy in law of various human relationships...

If I ever live to see some court citing "Dr. Strangelove, or HILTSWALTB" in opinions, I might think that law has finally entered a rational age once again and might consider getting back into it....

Cheers,
 

nerpzillicus said...

Wouldn't polygamy produce more benefits to society under a cost/benefit analysis?

Yes.

Given that marriage is a now considered a fundamental right, polygamists would have a far better argument for expanding the definition of marriage than homosexuals. In Reynolds v. United States, 98 U.S. 145 (1878), the appellant polygamist made a Free Exercise Clause argument and lost. I am unaware of whether polygamists have tried an EPC argument at some later point. If they did, I suspect that the courts applied a rational relationship test to uphold the anti-polygamy laws.
 

just_looking said...

Instead of forcing the removal of the infertile from marriage, consider a state which chooses to exclude the infertile. If your assertion is correct, such a statute would be permissble under rational basis review. I highly doubt that this statute would survive a court challenge, and further believe it would be subject to rigorous scrutiny per Zablocki.

This would put the courts in an interesting bind.

The way out, of course, is to hold that marriage of one man and one woman is a fundamental right under the Ninth Amendment based on the well established law in the country and that other combinations are not because they are not established or were in fact repudiated by the People.

In this way, the infertile would have a fundamental right to marry and other combinations seeking inclusions into the definition of civil marriage would fall under the rational relationship test because they are not well established.
 

Arne,

Your equivalence anaylsis does not establish gender discrimination because the following does not establish racial discrimination:

If you're black, you can marry a black.
If you're black, you cannot marry a white.

IF you're white, you can marry a white.
If you're white, you cannot marry a black.


Many state supreme courts have addressed this issue. Only Hawaii found gender discrimination. Additionally if you are correct then both Lawrence and Limon would have been examples of gender discrimination. Neither was.
 

The way out, of course, is to hold that marriage of one man and one woman is a fundamental right under the Ninth Amendment based on the well established law in the country and that other combinations are not because they are not established or were in fact repudiated by the People.

You have misconstrued the liberty interest at stake much like the Bowers court did (since corrected in Lawrence).

In Bowers, the Court said the liberty interest was homosexual sodomy. In Lawrence, the Court said it was the right to sex as one aspect of a deeper interpersonal relationship, and therefore applies to both same-sex and opposite-sex couples.

In the present case, you think the liberty interest is homosexual marriage. I argue it is the right to access a state institution designed in part to encourage people to settle down with a lifemate, and therefore applies to both same-sex and opposite-sex couples.
 

Lawrence does provide the legal fiction methodology which would be required to find a "right" to homosexual marriage.
 

While marriage and the parent-child relationship's value to society can be reduced by the abuses of the parties to that relationship ala Spears and Winehouse, the lesbian relationship is incapable of offering value to society regardless of the acts of the parties.

That's an ipse dixit. More important, though, it is simple bigotry. Straights don't have to justify the value of their relationships to get married, because they are straight and their relationships are assumed to be first class. Gays do have to justify the value of their relationships, because their relationships are assumed to be second class.

In other words, straights always > gays. At some point, Bart, you are going to have to join the 21st Century and learn to accept gays and lesbians as your equals.
 

Bart DePalma said...

Given that marriage is a now considered a fundamental right, polygamists would have a far better argument for expanding the definition of marriage than homosexuals.


A masterful Bartian move, Mr. DePalma, I tip my hat to you. As is clear form my post, I don't care about polygamy vis-a-vis GAY marriage, but polygamy vis-a-vis "one man, one woman" marriage. If you agree with that the cost/benefit analysis of polygamy rates that institution superior to monogamous marriage, then why, as a society, are we not encouraging plural marriage over the monogamous one? as you said,


Here is a very un-PC thought: All other human relationships are second or third class when compared to marriage and the parent-child relationship and society should treat them as such.


doesn't that mean monogamous marriage should be placed as a second class relationship to the far more efficient and beneficial first class plural marriage? If not, doesn't it necessarily follow that there must be more to the evaluation of the value of various human relationships than simply the cost/benefit to society any particular one produces? If so, isn't your argument here, as most of your others elsewhere, completely wrong?
 

benefit to society
value to society
for producing children for society
so forth and so on

Starting to sound like "From each according to his ability, to each according to his need". The various 'benefits to society' claims look to be red herrings since that's not the issue at hand. It wasn't the issue in Loving, and it isn't the issue now.

This really is a human dignity issue. When wounding the dignity of a group for no real reason (nobody has provided a material reason beyond groundless claims), the dignity of all is injured because a society that tolerates such indignity advertises itself is less civilized and principled, as more willing to marginalize a group for no real reason other than distaste.

For the government to marginalize a group some compelling and clear material reason needs to be tendered. That is, for the government to act, the reason must be more than the disputed and irrational opinion(s) of a group or individual. Otherwise, the government becomes capricious in its determinations, bringing its power to bear on a matter for inconsistent and possibly irrational reasons. Those reasons need to be grounded in more than opinion, and even the smallest appearance of impropriety should be avoided, particularly in matters whose nature is sensitive to individuals.

Genuine and material consistent harm directly uniquely resulting from same-sex marriage needs to be demonstrated to justify the government prohibiting it. Sweeping generalizations such as the 'foundation of civilization' or the 'good of society' are so broad that they are blunt and can as easily be the basis to prohibit any kind of distasteful to any given group.
 

At some point, Bart, you are going to have to join the 21st Century and learn to accept gays and lesbians as your equals.

# posted by Dilan : 2:47 PM


If there is one thing I have learned from reading Baghdad's rantings the last few years, it is that he is more than capable of ignoring reality as long as necessary to justify his world view.
 

"Bart" DeClueless:

Arne,

Your equivalence anaylsis does not establish gender discrimination because the following does not establish racial discrimination:

If you're black, you can marry a black.
If you're black, you cannot marry a white.

IF you're white, you can marry a white.
If you're white, you cannot marry a black.


I didn't say it did. It was this presentation that the State of Virginia used to claim that it was not discriminating. The SCOTUS found otherwise, based in part on the refreshing honesty of the representations of Virginia in the various court proceedings and the history of such laws.

They found an equal protection violation.

Many state supreme courts have addressed this issue. Only Hawaii found gender discrimination.

So far, California, Hawaii, New Jersey, and Massachusetts have all found discrimination in such laws. Call it what you will, I'd point out that no such laws have referred to the sexual orientation of the couples; every one of these laws have said that marriages between men and men or women and women, regardless of their sexual orientation, is prohibited. How can you keep a straight face (so to speak) and claim that such laws have to do with sexual orientation and not with gender?

Additionally if you are correct then both Lawrence and Limon would have been examples of gender discrimination. Neither was.

Limon was an "equal protection" case. What was at issue is what level of scrutiny to use (the article suggests that a "heightened" level, perhaps the "intermediate scrutiny" of gender discrimination cases, was actually used).

But, as I pointed out, the gender discrimination equivalency is pretty plain to see for those that have a simple understanding of logic. I know the courts are trying to avoid the issue like the plague, but maybe you can provide your own take on how these laws are not "gender discrimination" in the same sense that Loving was racially discriminatory.

Cheers,
 

How can you keep a straight face (so to speak) and claim that such laws have to do with sexual orientation and not with gender?

Because they do not disfavor men or women as a group, but they do disfavor gays as a group.

New York, Washington, Maryland, Massachusettes, New Jersey, Vermont and California somehow came to the same conclusion. Ditto for Kansas in Limon, and O'Connor (explicitly) and SCOTUS (implicitly) in Lawrence (the laws in Limon and Lawrence mention gender, not sexual orientation).

maybe you can provide your own take on how these laws are not "gender discrimination" in the same sense that Loving was racially discriminatory.

Because they do not disfavor men or women as a group, but anti-miscegenation laws disfavor blacks as a group.

Maybe you can address my argument this time?
 

just looking:

[Arne]: How can you keep a straight face (so to speak) and claim that such laws have to do with sexual orientation and not with gender?

Because they do not disfavor men or women as a group, but they do disfavor gays as a group.


So the anti-gay-marriage laws are anti-"queer" in the same sense that the anti-miscegenation laws were anti-"n*gg*r". The laws themselves are not discriminatory on the text, it is the application (and the impetus) that is discriminatory. OK, I'll buy that.

Do you think they would find more or less favour with the courts had they been honest and (at least attempted to) deal(t) with sexual orientation? I ask because gender discrimination is looked at with intermediate scrutiny, while (as some judges have poined out) so far most courts haven't said that groups of certain sexual orientation are "disfavoured groups".

New York, Washington, Maryland, Massachusettes, New Jersey, Vermont and California somehow came to the same conclusion. Ditto for Kansas in Limon, and O'Connor (explicitly) and SCOTUS (implicitly) in Lawrence (the laws in Limon and Lawrence mention gender, not sexual orientation).

Agreed. But as pointed out, they are "neutral" as to gender (in the same sense that the Virginia laws were "neutral" as to race). Has sexual orientation (and animus based on such) risen to the level of being a "disfavoured group" warranting heightened scrutiny against invidious discrimination? If so, good (but look at the HLR link I put in earlier for the confused state of any standards).

[Arne]: maybe you can provide your own take on how these laws are not "gender discrimination" in the same sense that Loving was racially discriminatory.

Because they do not disfavor men or women as a group, ...


But the Virginia laws didn't disfavour blacks as a group. Only those with the impertinence of wanting to marry our white daughters....

... but anti-miscegenation laws disfavor blacks as a group.

Only a subset.

Maybe you can address my argument this time?

I see where you're coming from, and I think we're not too far apart. It is, to some extent, the intent of such laws that is dispositive as to whether there is an "equal protection" violation.

But "Bart", in denying that the anti-gay-marriage laws are discriminatory, would have to conclude the same WRT the benighted Virginia officials of 1967.

Cheers,
 

Has sexual orientation (and animus based on such) risen to the level of being a "disfavoured group" warranting heightened scrutiny against invidious discrimination

Only in California.

But the Virginia laws didn't disfavour blacks as a group. Only those with the impertinence of wanting to marry our white daughters

No. SCOTUS concluded that anti-miscegenation laws were motivated by keeping the races "pure", and thus perpetuated white supremacy over all blacks.
 

Sarn, I'm late to the party again, and sad to see that everyone has forgotten about the biggest issue: whether same-sex couples should be allowed to try to conceive children together, using their own genes.

Bart, stop saying that same-sex couples cannot procreate together, when Kaguya the fatherless mouse proves that they can, or at least that they can try and that it might succeed. Start saying same-sex couples cannot procreate ethically. This puts them in the same position as siblings: they can procreate, but they cannot procreate ethically, so they are NOT ALLOWED to procreate, and thus are not allowed to marry.

Couples that cannot ethically procreate together are not allowed to marry. Couples that are allowed to ethically procreate are allowed (if no longer required) to marry first.

Same-sex procreation is not illegal, it is allowed to attempt to conceive children using modified gametes in most states (except Missouri). But it shouldn't be allowed! Like all genetic engineering using modified gametes, same-sex conception should be illegal, like incest is. Couples that are prohibited from conceiving together shouldn't be allowed to marry, or else that will strip conception rights from marriage and make it impossible for a married couple to claim a right to conceive using their own gametes at some point in the future. Marriage must continue to protect the couple's right to use their own genes.
 

sad to see that everyone has forgotten about the biggest issue: whether same-sex couples should be allowed to try to conceive children together, using their own genes

I didn't forget. I just think you're a lunatic.
 

just_looking:

No. SCOTUS concluded that anti-miscegenation laws were motivated by keeping the races "pure", and thus perpetuated white supremacy over all blacks.

I think they looked at more than just the purported (and refreshingly honest) "justification" for these laws. I think they saw through that, and saw the base racial animus at play.

Cheers,
 

"Sarn, I'm late to the party again, and sad to see that everyone has forgotten ..."

We didn't miss you. Go away.

Cheers,
 

bartbuster, you're wrong, it's the people who want to attempt same-sex conception that are lunatics. They really exist, even if you refuse to acknowledge that they do.

Transhumanism is a the world's most dangerous idea, and it must be stopped. SSM = Transhumanism.
 

No, I'm pretty confident that you're the lunatic.
 

same-sex couples need equal protections, not conception rights. Stop insisting on all the same rights as a marriage man and woman, accept that only a man and a woman should have conception rights. Then, it will be possible to get CU's federal recognition as marriages and provide a model to implement them in more states. Change your priorities.
 

Change your priorities.

My current priority is to not listen to lunatics like you. I think I'm going to stick with that.
 

How does that help Ellen and Portia or other couples that do not have federal recognition? They probably don't want the same right to have a baby together, though maybe they are one of the few that do. Actually, it just might be a rich politically motivated couple like them that signs up with Dr Richard Scott's lab in New Jersey to attempt to conceive from a stem cell derived gamete. Or, more likely it will be some unknown couple that does it first, so that it can remain underground longer until it is "proven safe".

But at any rate, until we start hearing from them that they do indeed demand the right to conceive children together, why should they choose it over CU's with that one fewer right, since they could get those CU's right now?
 

why should they choose it over CU's with that one fewer right, since they could get those CU's right now?

# posted by John Howard : 4:55 PM


Just out of curiosity, what rights would you give up in order to get people to take you seriously?
 

Is it just that you don't think it would get taken seriously? Look, you'd be the one saying it, don't you believe that people take you seriously? Why else do you visit these sites and defend gay rights, if not to persuade people and achieve something? Well, here's you chance to prove you're up to the challenge: persuade people that I'm right, and achieve equal protections for Ellen and Portia right now. I really think you can do it, or at least start it off.
 

Is it just that you don't think it would get taken seriously?

I'm pretty confident that virtually no one is taking you seriously.

Why else do you visit these sites and defend gay rights, if not to persuade people and achieve something?

I'm not here to persuade you of anything. You're too far gone to be persuaded of anything. I'm here to make fun of you.
 

Homosexual unions are different in every way from marriage except for the fact that a few share the characteristic are committed loving relationships.

I'm sorry; merely saying that they are different does not make them so. How are they different? When you say they are different "in every way," specifically, what do you mean? You provide no examples, so there is no way to credit this argument as anything more than ignorance.

I have a committed loving relationship with a lifetime friend from high school. However, that does not mean that my friend and I are similarly situated with my wife and I.

Maybe so, but that is your relationship with your high school friend. I don't see why that extrapolates to every non-hetero relationship. That is a non-sequitur. Again, this intimacy trope is just ignorant: it assumes that gay relationships are no more intimate than your deep friendships.

In any event, no one is required to have a committed loving relationship with someone to get married to them currently. If your high-school friend was a woman, you were both of age, not related to each other and not otherwise married, you could mary her if you chose. I could marry any woman I want without regard to the intimacy of our relationship; the only qualification is that we are of the opposite sex, above a certain age, are not close relatives, and are not married already to someone else. Why would there be a different rule for gays?

How would the government verify the level of intimacy anyway, other than by defaulting to the parties' claims of intimacy and love? Would there need to be objective proof of intimacy? Is that something we want the government to get involved with? (And even if there was some sort of objective requirement of intimacy or length of relationship, many same-sex unions would qualify and many straight marriages would not, so this argument still gets you nowhere.)

Consider: Brittany Spears married someone for the weekend (!), divorced him and then married again in the same year. I think we can presume that she did not have the same level of relationship with her first husband that you do with your wife (at least I hope not). Yet, no one would say that she should not be able to marry that husband; the decision as to whether the relationship was marriage-worthy would be left up to her.

You might observe that homosexual couples also share a sexual relationship that my friend and I do not. However, sodomy is not sexual intercourse. The purpose of sexual intercourse is reproduction, not self gratification. At most, sodomy is a pale imitation of sexual intercourse necessitated because a homosexual is attracted to the same gender and cannot have sexual intercourse with the person to which he is attracted. Thus, homosexual unions and marriage is not similarly situated sexually.

This is just off the wall. The procreation argument is a double standard that has been raised and debunked endlessly. Also, sodomy, as usually defined, is practiced by many hetero couples, as well as homo couples. And MANY people would dispute that the purpose of sex is reproduction and not gratification. Especially the married couples who are either incapable of having children, or don't want any.
 

You're personally, purposefully, denying same-sex couples equal protections, just because it is fun to make fun of me? I'm trying to accomplish something, BartBuster, not insult people. And I'm telling you that you have the power to get equal protections to same-sex couples right now, if you could convince other people that same-sex couples don't need and shouldn't have equal conception rights as a man and a woman.

And Zachary, it's about rights, not ability or desire: same-sex couples should not have the right to conceive children using their own genes, it should be prohibited with a federal law. Only unmodified gametes should be allowed to conceive children with. No one should be allowed to attempt to create a person any other way than joining a man and a woman's unmodified gametes.
 

Zachary:

BD: Homosexual unions are different in every way from marriage except for the fact that a few share the characteristic are committed loving relationships.

I'm sorry; merely saying that they are different does not make them so. How are they different?


C'mon now. This is obvious.

The individual members of the relationship are different. Homosexuals are obviously not heterosexuals and have different gender traits. Man and women have fundamental gender differences and homosexuals fall in between with their own combination of traits.

The combination of members in the relationship are different - M+F v. M+M v. F+F. Indeed, what you call same sex marriages are themselves different - M+M and F+F. Thus, social interactions in each combination are different by definition. You cannot expect the same dynamics to be present present between M+F, M+M or F+F.

The sexual relationships are obviously different. I assume you do not need a blow by blow description here.

The ability to procreate is obviously different. M+F with very limited exceptions can procreate. F+F need to bring in another M for one of the Fs to procreate, but cannot do so as a result of the F+F union. M+M can not procreate naturally at all unless we start getting into Brave New World territory.

Any commonality between marriage and homosexual unions which you can provide will have to be so basic and undefined (ie committed loving relationship) that it will be shared with several other types of human relationships other than marriage and thus will not similarly situate homosexual unions in any meaningful way with marriage.
 

Homosexuals are obviously not heterosexuals and have different gender traits.

The first part is obvious by definition, but the whole point of this discussion is whether that is relevant to whether marriage should be legal for them. The second part (gender traits) is obvious if you are referring to genitalia (but who cares) but is far from obvious, if you are referring to gender norms. After all, we wouldn't care if an effeminate man wants to marry an effeminate woman, so why would we care if an effeminate man wants to marry a masculine man? (or any other combination of masculine and effeminate.

The combination of members in the relationship are different - M+F v. M+M v. F+F. Indeed, what you call same sex marriages are themselves different - M+M and F+F. Thus, social interactions in each combination are different by definition.

That is also definitionally true, but what does that have to do with whether marriage would be allowed? Marriage does not currently depend on the nature of the social interaction between men and women.

The sexual relationships are obviously different. I assume you do not need a blow by blow description here.

Yes, different but not relevantly so.

The ability to procreate is obviously different. M+F with very limited exceptions can procreate. F+F need to bring in another M for one of the Fs to procreate, but cannot do so as a result of the F+F union. M+M can not procreate naturally at all unless we start getting into Brave New World territory.

This has already been addressed in my last post: the procreation trope is a double standard that has nothing to do with whether marriage is allowed for hetero couples, so should have nothing to do with whether marriage is allowed for gay couples.

Any commonality between marriage and homosexual unions which you can provide will have to be so basic and undefined (ie committed loving relationship) that it will be shared with several other types of human relationships other than marriage and thus will not similarly situate homosexual unions in any meaningful way with marriage.

As I noted before, there is no way to verify the commitment level of hetero marriage, yet we seem to be able to deal with that just fine. The definition is not "basic," but is actually the same as marriage (that is the whole point) except for the opposite sex component.

The more you try and come up with a difference that justifies the distinction between allowing opposite sex marriage and not allowing SSM, the more that it is clear that you just think gay relationships are not as "deep" as your relationship with your wife, or others' relationships with their wives -- but you have no evidence of this besides your own preconceptions.

When you compare the sometimes decade-long monogamous intimate relationships of gay couples with the ephemeral relationships of people like Brittany Spears, who are allowed to marry and remarry by society without a second thought, your claim concern is revealed as ridiculous and a double standard.
 

the procreation trope is a double standard that has nothing to do with whether marriage is allowed for hetero couples, so should have nothing to do with whether marriage is allowed for gay couples.

But it does have something to do with hetero couples Zachary: If they publicly cannot ethically procreate, they are not allowed a license to marry. Couples that publicly cannot ethically procreate include siblings and other close relatives (both by blood and law), people already married to someone else, and children.

Same-sex couples are just like those couples in that they publicly cannot ethically procreate. As Bart says (thanks Bart), it requires getting into "Brave New World" territory and it should be prohibited the same way incest and adultery and statutory rape are prohibited. (Bart, you should join me in calling for a comprehensive law against use of modified gametes. If a couple is allowed to legally procreate, they should certainly be allowed to marry first. It isn't radical to say that some couples are not allowed to procreate, as long as it is based on a pubic relationship and there is a supportable basis to prohibit that type of relationship from conceiving together. It would be wrong to prohibit individuals from conceiving, but certain relationships would be unethical to conceive, like siblings and same-sex couples.
 

Zachary:

You asked how homosexual unions were different from marriage for what I presume was for the purposes of an Equal Protection argument. I noted the high points of the self evident and rather fundamental differences.

Now you want policy arguments. Once again, homosexual unions offer society nothing in return for the societal recognition and subsidy being demanded for being equated with marriage.

The burden is not on the critics to demonstrate why marriage should not be redefined to include dissimilar homosexual unions, but rather on the proponents of redefinition to demonstrate the merits of doing so - something that no one here seems to be willing or able to accomplish.
 

Bart: You asked how homosexual unions were different from marriage for what I presume was for the purposes of an Equal Protection argument. I noted the high points of the self evident and rather fundamental differences.

None of your differences are relevant to the Equal Protection argument.

Come on, Bart be honest. Your problem with gay marriage is that you have a problem with "gay".
 

The difference is that heterosexual reproduction does not require modifying the genetic imprinting, a man and a woman's genes can be joined to create offspring ethically (except in those certain relationships where marriage is not allowed), whereas homosexual reproduction will necessarily require genetic engineering to modify the imprinting in order to trick the genes into joining and creating a viable embryo.

We should not allow people to start doing human genetic engineering, whether it for eugenic purposes or just to try homosexual reproduction. Both of them are unethical for different reasons. Only heterosexual reproduction is ethical.

All marriages should be allowed to conceive offspring of the marriage, using the marriages own genes. That right is under attack and must be preserved.
 

You're personally, purposefully, denying same-sex couples equal protections, just because it is fun to make fun of me?

I'm not denying anything to anyone. I'm making fun of you because you are a lunatic.
 

Whew, I'd have to say that, based on which side is actually making reasoned arguments, and which side is spraying equal parts of spittle and invective, that Bart has the argument, hands down.

A pity, because there actually are reasonable arguments for letting homosexuals have an arrangement analogous to marriage. They're just getting lost in the spittle.

Now, is there an argument for heterosexual marriage being fundamentally different from same sex marriage? Absolutely! The two sexes are psychologically different, and as Bart points out, when a man marries a woman, it usually results in the man behaving in a much more socially responsible and productive manner than men do living apart from women.

There are actually THREE relevant types of marriage here: Heterosexual, same-sex male, and same-sex female. They are distinctly different.

It's arguable that male-male same sex marriage would result in two men enabling each other's worst behaviors, rather than moderating them as happens in heterosexual marriage. There seems to be at least some evidence of this when you look at the flamboyant excesses of male homosexual culture. (Yes, there are exceptions, I know some of them.)

Whereas lesbian 'marriage' appears to be all moderator, no U235. Rather staid, as a matter of fact, and you don't see much concern directed against it.

But as far as enabling reproduction, I think Bart has the worse of the argument. Presuming that homosexual marriages were otherwise the same, (Unfortunately, a dubious presumption.) society has little reason to distinguish between a married couple raising children they conceive themselves, or their utilizing artificial insemination, or adopting.

Nor would I discount the possibilities of artificial conception for same-sex couples; I don't think it's all that far off.

No, I think it's the relative moderating vs enabling character of marriages between a man and a woman, vs two men, that's really the strong argument, with little in the way of argument available against lesbian same sex marriage.

Ok, spittle shield in place, invect away!
 

I don't think same sex couples should be required to get married.

Oh, that's not the issue here.

OK, I don't think any couples should be required to get married.

Oh wait, that's not at issue either.

OK, I don't think marriage should be banned.

My bad again! Not at issue.

So what, marriage should be allowed for couples who want it? That's it? That's the whole proposition? This is somehow controversial?

We shouldn't be denying marriage to couples of different skin tones? Uh, duh. Of course not. Institutionalized racism is wrong and is not America.

We shouldn't deny it to couples of different genders? Duh again. Institutionalized homophobia is no less ugly and wrong. Duh.

Is this somehow confusing to some people?

Do the Federalists really think this is controversial, you can debate it?

Will they next have a debate about the shape of the earth?

Can I not come to that one?
 

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