I was a signer of the recent statement
on the Brandon Eich affair, “Freedom to Marry, Freedom to Dissent: Why We Must
Have Both,” which denounced the use of blacklists against those who oppose
same-sex marriage. Eich, the CEO of Mozilla, was forced to resign by a
coordinated boycott of his company – a boycott intended to drive him out -
because years earlier he had contributed to the campaign to prohibit same-sex
marriage in California. The
statement declares:
Sustaining a liberal
society demands a culture that respects and welcomes robust debate, vigorous
political advocacy, and a decent respect for differing opinions. People must be
allowed to be wrong in order to continually test what is right. We should
criticize opposing views, not punish or suppress them. . . . We
strongly believe that opposition to same-sex marriage is wrong, but the
consequence of holding a wrong opinion should not be the loss of a job.
Inflicting such consequences on others is sadly ironic in light of our
movement’s hard-won victory over a social order in which LGBT people were
fired, harassed, and socially marginalized for holding unorthodox opinions.
The statement has now been
criticized in two blog posts by distinguished scholars: one by Peter Berkowitz and the other by Ryan
Anderson and Robert P. George. Berkowitz
writes:
The signatories of "Freedom to
Marry, Freedom to Dissent" do not go so far as to acknowledge the merit in
arguments against same-sex marriage. ... their public statement indicates that
in their view their opponents have little to say that is reasonable. Unwavering
in their commitment to same-sex marriage, they imply that those who disagree
are at best benighted, ignorant, or confused.
Similarly, Anderson
and George:
It
is rational to support marriage as the union of a man and a woman, and
supporters of same-sex marriage should stand up and say so, condemning attempts
to disparage belief in marriage as a conjugal partnership as irrational -- the
moral and intellectual equivalent of racism, misogyny, and other forms of
bigotry. The statement issued last month
falls short of such a declaration, lacking a clear acknowledgment that those
with the contrary view hold a rationally defensible position.
I wholeheartedly joined “Freedom to
Marry, Freedom to Dissent,” but these writers (all of whom, as it happens, are
friends of mine) are asking for more than I can give them. I think that opposition to same-sex marriage
was once rational, in the same way that adherence to Ptolemaic astronomy was
once rational, but that there is now nothing to be said on behalf of that
view. I say this as a proponent of
same-sex marriage who has worked at
least as hard as any other scholar to understand the other side’s views
fairly and accurately.
I don’t think that I have to concede
that the view is reasonable in order to respect those who hold it. The demand that I do overlooks the
possibility of the kind of cold respect that has for a long time been the basis
of American religious liberty.
About four in ten Americans think, most of them for religious
reasons, that homosexual sex is never morally acceptable. These people are not homophobic bigots who
want to hurt gay people. On the
contrary, gay people are marginal
to their view of the world. Justice
Alito nicely summarizes the position, as it applies to same-sex marriage: “marriage is essentially the
solemnizing of a comprehensive, exclusive, permanent union that is
intrinsically ordered to producing new life, even if it does not always do
so.” Whatever the merits of this notion,
it is not about gay people. It is focused
on the value of a certain kind of heterosexual union. The existence of gay people is a side
issue. The function of marriage law, on
this view, is to protect a human good that gay people happen to be unable to
realize: marriage laws do not discriminate against them any more than art
museums discriminate against blind people.
I think that these people’s religious ideas are
obviously wrong. But that is what I
think about an enormous range of religious beliefs. Most Americans surely agree that some religious
beliefs are worthless, harmful, weird delusions. They do not agree about which ones. This is nothing new. It is the chronic condition of the United
States, probably the most religiously diverse nation in the history of the
world.
If tolerance had to be based on a concession that
the other guy’s views are reasonable, there wouldn't be much tolerance in
the world.
Both gay people and religious conservatives seek space in
society wherein they can live out their beliefs, values, and identities. As with the old religious differences that
begot the Establishment Clause of the First Amendment, each side’s most basic
commitments entail that the other is in error about moral fundamentals, that
the other’s entire way of life is predicated on that error and ought not to
exist. Coexistence has nonetheless been
achieved in the religious sphere. The
United States is a longstanding counterexample
to Rousseau’s dictum that “[i]t is impossible to live in peace with people whom
one believes are damned.”
A particularly troublesome aspect of the Eich affair
was the pressure for Eich to publicly recant his earlier political views –
pressure clearly intended to intimidate anyone with similar ideas. The ritual of public humiliation that was
demanded is unpleasantly reminiscent of the old World War II-era campaigns to
force Jehovah’s Witnesses to say the pledge of allegiance. You can recognize the viciousness of those
campaigns without thinking that the religious beliefs of the Jehovah’s
Witnesses were reasonable.
Some religious beliefs are not only false but
destructive. Pertinently here, some give
transcendent sanction to discrimination and inequality. When this is the case, they must be deprived
of their cultural power. With respect to
the religious condemnation of homosexuality, this marginalization is already
taking place. But that does not mean
that the conservatives need to be punished or blacklisted. There remains room for the kind of cold
respect that toleration among exclusivist religions entails. That’s what Brendan Eich is entitled to, and was
wrongly denied.
A loud secular "hear, hear" (or "here, here") to Andrew Koppelman for this post.
ReplyDeleteAs a strong supporter of same sex marriage, I am wary about the case highlighted in the letter.
ReplyDeleteI would carp a bit about the "majority share view" -- the person was not pressured simply for having a view. It was the active support -- which is his right of course -- to pass Prop 8, which didn't even trust the legislature to handle the situation.
I don't know if a majority "shared his view" that such a measure was a good idea, at least to the degree they would donate money toward the cause.
I share the sentiment that it is too much to ask for that it be deemed "rational" as in reasonable to oppose same sex marriage. It is not. It is a bit much after some strong supporters go out of their way to show tolerance that is asked. But, I guess it's a sign of how far we have come. It's like those who say that civil unions should satisfy. Many not too long ago would have laughed at the idea. Now, it's 'hey at least we both have rational positions to politely disagree with'!
And, I think a good case can be made that pressure for him to resign because of a $1000 donation (what if he was an active spokesperson for it? would that make a difference?) was problematic. On THAT I think rational minds can disagree.
A particularly troublesome aspect of the Eich affair was the pressure for Eich to publicly recant his earlier political views – pressure clearly intended to intimidate anyone with similar ideas.
ReplyDeleteWith all respect, I think this is nonsense. The issue was whether a company wanted its public image associated with bigotry. Had Eich renounced his previous views, Mozilla would have been happy to let him stay because it could then argue that he no longer besmirched their public image.
The renunciation was unique to Eich, not a "warning" to others.
If it had been an attempt to intimidate others, btw, I'd have no problem with that. I don't see any reason to keep silent when others express bigotry; my own free speech rights permit me to call them out. That's just not what was going on in the Eich case.
Mark Field's comment reminds me of something else. The concern about the "brand" (which also arises in the Stirling case) is a good argument for the other side.
ReplyDeleteWe were told by some that corporations can have consciences and all. If so, especially for one that tries to retain a certain all-inclusive image as an Internet firm might, what happened here is reasonable.
Still, the net result here would be to pressure him and others in a similar position (one where their views might be seen as problematic to their company etc.), making the views basically out of the realm of polite society akin to opposition to integration.
So, "nonsense" is a bit strong.
The "nonsense" is the implication that there was some organized pressure by liberals calling for Eich to recant. The call to recant was internal to Mozilla, which was perfectly within its rights to make a business decision about its image.
ReplyDeleteAbout four in ten Americans think, most of them for religious reasons, that homosexual sex is never morally acceptable. These people are not homophobic bigots who want to hurt gay people. On the contrary, gay people are marginal to their view of the world. Justice Alito nicely summarizes the position, as it applies to same-sex marriage: “marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” Whatever the merits of this notion, it is not about gay people. It is focused on the value of a certain kind of heterosexual union. The existence of gay people is a side issue. The function of marriage law, on this view, is to protect a human good that gay people happen to be unable to realize: marriage laws do not discriminate against them any more than art museums discriminate against blind people.
ReplyDeleteYou do not need a religious or even any moral basis, nor have any opinion on sodomy, to recognize this reality. Marriage is the primary and demonstrably best social relationship for raising civilized and productive children. This does not even get to the various productivity, social and health benefits married men and women provide one another.
Homosexual unions (m+m / f+f) are not even similarly situated to one another, nevertheless to marriage. SSM proponents must attack excluding homosexual unions from marriage as utterly irrational and hateful to prevail in court. Thus, the current witch hunt.
The company has a "right" to do what it does, but it acted in part because of outside pressure based on a belief the person here was wrong.
ReplyDeleteIf the person admitted he was wrong, basically recanted, it very well might have gone another way. The opposition was "organized" (and not just from "liberals" probably) in some fashion.
We can carp on exact word choice, but do think there was some form of pressure at the end of the day that in the long run is not singled out on one person. That is part of the point -- to make certain beliefs so out of the range of polite society that donating money etc. will result in negative consequences to people.
Andy hits the nail on the head when he writes, "these writers ... are asking for more than I can give them." (My emphasis)
ReplyDeleteThe writers he quotes are demanding that he change his beliefs, or perhaps at least falsely claim that he has changed them. But the most that one can demand of another is that the latter seriously consider the former's position, and Andy has done that.
This observation:
ReplyDelete"Marriage is the primary and demonstrably best social relationship for raising civilized and productive children."
doesn't explain "unproductive" traditional marriages. (I'm not getting personal on this point.) Many SSM do raise "civilized and productive children."
Of course, some in traditional marriages do so for secondary reasons, such as love/companionship, as do some in SSM, contributing towards civilization without productive children.
And this observation:
"SSM proponents must attack excluding homosexual unions from marriage as utterly irrational and hateful to prevail in court. Thus, the current witch hunt."
fails to recognize this as reactive to rants of homophobes. If the homophobes showed more tolerance, there would be no witch hunt. But many homophobes are convinced homosexuality is a choice. I'm not aware of any significant portion of the LBGT community promoting their situation for society; rather, it is a matter of tolerance, recognizing who they are as people, having suffered irrational hatred (including physical) at the hands of homophobes over many years.
I tolerate homophobes, as their exercises of 1st A speech rights over many decades in the end have been exposed as irrational hatred.
Shag:
ReplyDeleteBy defining marriage as the union of a man and a woman, you cover 100% of procreation. The observation that a small minority of heterosexual unions cannot procreate is irrelevant and again ignores the various productivity, social and health benefits married men and women provide one another.
Bart writes, "Marriage is the primary and demonstrably best social relationship for raising civilized and productive children." He thereby makes the case for gay marriage for couples who might raise children. And, since he is willing to allow marriage for straight couples who choose not to raise children, he would presumably do the same for gay couples who choose not to raise children.
ReplyDeleteIn his subsequent comment, he changes the subject from raising children to procreation, but I doubt that he believes that "Marriage is the primary and demonstrably best social relationship for [procreation that does not include raising children]." He seems really to be speaking of raising children, and, again, if marriage is best arrangement for straight people to raise children, it must also be the best arrangement for gay people to raise children.
Joe, it's possible there was some "organization" that I didn't see. I think I'm pretty aware of the liberal blogosphere, but I didn't even see the Eich story until after he resigned. I could have missed it, but if Prof. Koppelman wants to claim that there was some organized effort at intimidation, I think he needs to document that.
ReplyDeleteHenry:
ReplyDeleteThere is ample evidence that marriage produces far more productive and civilized children than unmarried heterosexual relationships. That is because commitment changes the relationship between men and women. There is no evidence of any difference between adopted children raised by a homosexual couple in or out of SSM.
Consider the impact of divorce in traditional marriages in raising civilized and productive children. As for SSMs with children, divorce is somewhat new and only slowly developing; perhaps when divorce rates become comparable to those in traditional marriages there may be apples-to-apples comparisons.
ReplyDeleteAnd this observation:
"By defining marriage as the union of a man and a woman, you cover 100% of procreation. The observation that a small minority of heterosexual unions cannot procreate is irrelevant and again ignores the various productivity, social and health benefits married men and women provide one another."
takes for a definition not natural law but positive law, until recently modified. It also "ignores the various productivity, social and health benefits [SSM couples] provide one another." Sauce for the goose and the gander may garnish the goose-goose and gander-gander. Gaggle over that!
Shag:
ReplyDelete"It also "ignores the various productivity, social and health benefits [SSM couples] provide one another."
What would those be?
Men and women are hardly interchangeable, nor are their combinations.
I guess the gaggle was confusing but it was claimed that a non-procreating traditional marriage "is irrelevant and again ignores the various productivity, social and health benefits married men and women provide one another." How is this traditional marriage couple productive, providing social and health benefits to one another than a non-procreating SSM couple?
ReplyDeleteIn the past (and perhaps presently to a lesser extent) it was not unheard of for one or both members of a traditional marriage so fearing, for many reasons, the irrational hatred of homophobes that such traditional marriage provided a beard for one - or both? - as a cover while remaining in the closet.
Bart is a proud libertarian, except when he isn't.
ReplyDeleteApologies if someone said that already.
Mostly he's a bullshit spewing ass-hat. Apologies to hats.
ReplyDeletePope Francis said, on the subject of gays, "Who am I to judge?" The Supreme Court was asked to judge in DOMA. Of course, neither is infallible. CSPAN featured recently before a forum the young lady attorney who, pro bono, successfully represented (albeit 5-4) the gay woman seeking certain federal tax benefits as the survivor of their SSM. In the course of the discussion, the attorney (Ms Kaplan) pointed out that in Justice Kennedy's opinion for the Court, Justice Kennedy stressed over and over the dignity of gays. She suggested that perhaps Justice Kennedy had been influence prior to his appointment to the Court by individuals who were important in his development, whom he respect, and who may have been gay. Dignity is a two-way street.
ReplyDeleteBy the Bybee (expletives deleted - I couldn't resist for old times sake!), I don't know if Ms Kaplan had held herself out at a constitutional lawyer/scholar, but I wish those who claim to be were as forthright as she was in her approach to representing her client. She's a top notch attorney.
I guess we can't we tell exactly what he means without clarification, so it is not useful to go further. The term 'intimidation' does warrant careful usage.
ReplyDeleteOff topic, looking at an old thread, I saw that Shag -- probably after most had moved on -- wrote a few long posts about sports in Boston and the like.
ReplyDeletehttp://balkin.blogspot.com/2014/04/schuette-v-bamn.html
[bottom]
Thanks for that.
On point, Ms. Kaplan was on C-SPAN the other day.
ReplyDeleteAs to Kennedy, he has been supportive of gay rights from back to the days he was on the appellate bench. Even when upholding the military policy at the time (c. 1980), e.g., he recognized privacy rights applied to gays.
When he said Bowers was wrong the day it was decided, public statements of his at the time might be found to suggest he thought so at the time.
I don't recall reading anything about a personal connection. The notable connection there to me as applied to his work on the Court is his past (along with his father) as a lobbyist.
It has been suggested Pamela Karlan had a big role in writing Blackmun's Bowers dissent.
D. Ghirlandaio said...Bart is a proud libertarian, except when he isn't.
ReplyDeleteRecognizing the world as it actually exists is a libertarian trait.
Ignoring reality and persecuting those who do in pursuit of government enforced utopias is a totalitarian trait.
Joe,
ReplyDeleteOn your "off topic" point, I had planned to add to my comments subsequent personal experiences along the same lines but with my eyesight problem it was difficult working the archived post. Perhaps your providing the link may facilitate additional experiences of mine that may be of interest to some.
Shag: "How is this traditional marriage couple productive, providing social and health benefits to one another than a non-procreating SSM couple?"
ReplyDeleteMarried heterosexual couples are more likely to work longer at better jobs to support the family, less likely to engage in anti-social behavior like domestic violence or other criminal activity, less likely to engage in self self destructive behavior like drug abuse, more likely to be happier, healthier and to live longer.
Marriage is far, more than a contract between two or more assorted adults for government benefits.
Bart
ReplyDeleteYou are argue that, at least for heterosexual couples, marriage provides all kinds of benefits for the participants and society.
Why deny that to same sex couples (and to society) by not recognizing SSM?
Mista Whiskas said...
ReplyDeleteBart You are argue that, at least for heterosexual couples, marriage provides all kinds of benefits for the participants and society.
Why deny that to same sex couples (and to society) by not recognizing SSM?
There is no evidence that the combinations of m+m or f+f have the same beneficial effects as f+m.
This is easy to test.
SSM is not illegal in any state in the union, it is simply not recognized in most states definition of civil marriage. Homosexual couples are all free to tell the world they are married and then we can see if it makes any difference to the partners.
This from the May snows of CO:
ReplyDelete"There is no evidence that the combinations of m+m or f+f have the same beneficial effects as f+m."
not so subtly changes the direction of the discussion with the insertion of the word "same." Yes, there are differences, but let's not be in denial that there are beneficial effects by sticking one's head in a snow pile and ignoring lots of evidence out there.
Bart, about your statement, "Married heterosexual couples are more likely to work longer at better jobs to support the family, less likely to engage in anti-social behavior like domestic violence or other criminal activity, less likely to engage in self self destructive behavior like drug abuse, more likely to be happier, healthier and to live longer."
ReplyDeleteDo you have actual evidence for this statement? I have a lot of personal knowledge that you are wrong.
If one lives and works in a rural, idyllic, gated, apparently gayless mountaintop community, the evidence may be disguised by a beard or two. There is ample evidence in urban, suburban communities to challenge the alleged "purity" of the driven May snows in CO.
ReplyDelete
ReplyDeleteTeresa:
Google "benefit of marriage for men:"
http://www.menshealth.com/mhlists/benefits_of_marriage_and_commitment/index.php?cm_mmc=MSN-_-Health-_-Can-love-be-unhealthy-_-benefits-of-marriage
http://www.askmen.com/sports/health_400/463_health-and-marriage-benefits-for-men.html
Google "benefit of marriage for women:"
http://www.mercatornet.com/family_edge/view/11164
http://www.ehow.com/list_6866732_benefits-marriage-women_.html
Marriage also protects women from men with far lower incidences of domestic violence.
Marriage also provides a far better support system for the mother's children.
The overall benefits are not remotely at issue.
Shag:
ReplyDeleteGay folks live everywhere, not just in "enlightened" blue cities and suburbs.
The suggested Google search "benefit of marriage for men:" and the suggested Google search "benefit of marriage for women" seem to relate to traditional marriages. I assume that for purposes of a more detailed research our May snowbound researcher from CO may have neglected variations for SSMs between men and SSMs between women to provide comparatives. It is possible that such comparatives my be in the early stages of development since SSMs are of more recent vintage than traditional marriages. So this may be cherry-picking in the snow, a real snow job.
ReplyDeleteThere is no evidence that marriage is the cause of these benefits. Do you honestly believe that two unmarried people in an abusive relationship would be more likely to be in a committed and loving relationship by getting married? The truth is that the sorts of people who get married these days are wealthier, more educated, and stable than their unmarried peers. It's not that marriage causes these people to be behave differently, but rather their differences that causes people to get married.
ReplyDeleteShag from Brookline said..."I assume that for purposes of a more detailed research our May snowbound researcher from CO may have neglected variations for SSMs between men and SSMs between women to provide comparatives."
ReplyDeleteThere are no scientifically established comparatives.
The populations of SSM couples are so tiny that all I have seen are generally self serving "studies" based entirely on subjective anecdotes.
Indeed, you would never be able to tell from all the noise that the populations involved are a small fraction of 1% of the citizenry.
This is basically an argument about where the Overton window is. Certainly for many years after Loving, it did not include inter-racial marriages, and certainly for just a few decades before that it did not include marriages between Christians and Jews (on both sides). Perhaps some of the protagonists might think of that.
ReplyDeleteIn any case, that history should put shut to let's do it for the kids arguments.
Does this:
ReplyDelete"Indeed, you would never be able to tell from all the noise that the populations involved are a small fraction of 1% of the citizenry."
suggest a variation on the 99% vs. the 1% that battledWall Street? It's amazing that the noise is so great that it bothers our rural snow man in CO.
"SSM is not illegal in any state in the union, it is simply not recognized in most states definition of civil marriage. Homosexual couples are all free to tell the world they are married and then we can see if it makes any difference to the partners."
ReplyDeleteOh, come on Bart. One thing the activists on both sides of the SSM argument agree on is that by recognizing and endorsing unions the government lends support to them. So you can't just say 'well, if gay marriages are as good for society as government recognized and supported straight marriages, just let them live in non government recognized and supported gay marriages and prove it!'
"The overall benefits [of marriage] are not remotely at issue."
ReplyDeleteWhich is why it seems so wrong, for the couples seeking it and for society who would reap some of these benefits, to deny it to gay and lesbian couples.
There is no evidence that the combinations of m+m or f+f have the same beneficial effects as f+m
ReplyDeleteI would expect supporters of constitutionally-mandated same-sex marriage would be happy if opponents made this argument to Justice Kennedy. I suspect his opinion striking down state DOMAs would emphasize how this argument injures the dignity of gays and their relationships.
Mr. W:
ReplyDeleteMarriage and its benefits long preexisted government licensing and subsidy.
Once again, the benefits men and women provide one another and their children in marriage are not replicated in f+f or m+m relationships, nor is there any reason to believe they would be, no matter how hard we play pretend.
" just_looking said...I suspect his opinion striking down state DOMAs would emphasize how this argument injures the dignity of gays and their relationships."
ReplyDeleteYou may very well be correct. Kennedy's decisions in this area have far, far more to do with feelings than the law.
Kennedy's decisions in this area have far, far more to do with feelings than the law
ReplyDeleteAre you saying that the law shouldn't care that your argument injures the dignity of gays and their relationships, or that your argument doesn't injure the dignity of gays and their relationships in the first place?
Recently Rick Santorum made some comments on the 2nd Amendment, pointing out that his wife had more guns than did he, which he thought was appropriate. (The Colbert Report had a feature on this last week in connection with Georgia's "Guns Everywhere!" new law.) So I guess our snow man in CO might include this as a traditional marriage benefit not available to SSMs.
ReplyDeleteBD: "Kennedy's decisions in this area have far, far more to do with feelings than the law."
ReplyDeletejust_looking said... "Are you saying that the law shouldn't care that your argument injures the dignity of gays and their relationships, or that your argument doesn't injure the dignity of gays and their relationships in the first place?"
Yes.
I have no problem telling people uncomfortable truths and dispelling their rationalizations and illusions. Such is the life of a criminal defense attorney.
Monty Python offered a perfect biting skit that applies here in their film The Life of Brian:
http://youtu.be/Dgp9MPLEAqA
Andrew: "About four in ten Americans think, most of them for religious reasons, that homosexual sex is never morally acceptable. These people are not homophobic bigots who want to hurt gay people. On the contrary, gay people are marginal to their view of the world. Justice Alito nicely summarizes the position, as it applies to same-sex marriage: “marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” "
ReplyDeleteSimilar things were said about interracial marriage, and I can produce a quote from a Virginia supreme court justics which is just as honest and no worse than Alito's comment.
ReplyDeleteThe right to form nongovernmental blacklists is as fundamental as the right of free speech itself. You may argue that it is counterproductive or likely to cause a backlash or whatever. But that criticism applies to much free speech. In the end it is an individual right and responsibility to decide where to draw the line.
Our snow man from CO (he must be puddling by now) now comes up with this snow job:
ReplyDelete"I have no problem telling people uncomfortable truths and dispelling their rationalizations and illusions. Such is the life of a criminal defense attorney."
Is this really, really the "life of a criminal defense attorney" whose goal is to advocate for his/her client? Such advocacy often bends the truth with rationalizations and illusions to show reasonable doubt. I assume our snow man from CO, if he is successful as a criminal defense attorney, bends (etc) a tad to get a good result for his criminal defendants. Or does he plead them out as a result of convincing them of "uncomfortable truths?"
Meanwhile, in Arkansas:
ReplyDeletehttp://sblog.s3.amazonaws.com/wp-content/uploads/2014/05/Arkansas-ruling-on-marriage-equality-5-9-14.pdf
http://talkingpointsmemo.com/news/arkansas-1st-gay-marriage-license
Shag:
ReplyDeleteAs a tax attorney, are you really in a position to challenge the veracity of criminal defense attorneys?
I find that jurors have pretty good BS detectors and it is far more effective to stick to the facts.
Bart, you spew more BS than anyone I have ever encountered.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteI challenge the veracity only of one (self-described) criminal defense attorney, to wit, our witless snow man from CO. I've had contact over the years with many such attorneys and I'm confident that our snow man's "philosophy" does not square with the criminal defense bar in their committed roles in providing with their advocacy skills a proper defense for even clients who have admitted guilt to their attorneys.
ReplyDeleteShag:
ReplyDeleteThe vast majority of the guilty enter pleas. Most of the few percent of criminal cases which go to trial are close or actually losers which the prosecution brings because they are aggressive or because of internal office policy.
Some criminal defense attorneys, it is said, encourage pleas in exchange for minor sentences rather than run the risks of a heavy sentence with trial, even if the client claims innocence. And of course there is the matter of coming up with the fees for going to trial.
ReplyDeleteAnd this is why the vast majority of balkinization threads have closed comments.
ReplyDeleteCan't you guys go to facebook or reddit to argue about the cultural issues de jure seasoned with snarky, interpersonal bickering and leave the comment threads on legal blogs alone?
"Marriage and its benefits long preexisted government licensing and subsidy."
ReplyDeleteBut as I said, the activists arguing against SSM seem to be quite in agreement that government licensing and subsidy is an important endorsement, one whose effect can solidify or further the benefits of marriage. Therefore it seems bizarre to argue that SSM proponents should engage in unrecognized marriages and then we could see if they provide the same benefits of long recognized and subsidized unions.
"Once again, the benefits men and women provide one another and their children in marriage are not replicated in f+f or m+m relationships, nor is there any reason to believe they would be, no matter how hard we play pretend."
Why would there be any reason to believe otherwise? The features of traditional marriage which seem to lead to the benefits you speak of: the commitment of it, the obligations, the mutual affection, the double income, etc., none of these seem to rest on the reproductive organs of those involved. If gay or lesbian couples say 'I do' and are then recognized with all the benefits and obligations that come with that, if they join in unions because of mutual affection, if they two incomes are better than one, etc., they, and we as a society, should get the same benefits (comparatively stable unions of people that care for and support one another).
Marriage is the union of a man and woman who through this union of marriage, exist in relationship as husband and wife; once you make the erroneous claim that in order to be married, it is no longer necessary for a couple to exist in relationship as husband and wife, you have, in essence, invalidated the validity of marriage as any relationship can be defined as marriage if one so desires.
ReplyDeleteBart's argument seems to be 'we have never recognized gay unions so there is no reason to think and no evidence to show that recognized gay unions have any of the benefits of straight marriage.' That strikes me as like saying 'we have never allowed women to vote, serve on juries or hold property when married, so we have no reason to think and no evidence to show that allowing that would have any of the benefits of allowing men to vote, serve on juries, hold property when married.'
ReplyDeleteNancy, I think your argument just begs the question. The entire debate is about how we should define marriage, so saying that marriage JUST IS defined as one man + one woman begs the question. In our history we have had several features thought 'essential' to marriages worth recognition, such as number (excluding polygamy), gender (excluding same sex couples) and race (excluding interracial marriages). We had a debate over race and decided it should not define what marriages are allowed or recognized. Now we are debating about gender.
ReplyDeleteThis is why Mr. Koppelman points out that activists on the anti-SSM side eventually ground their position in the procreative potential of heterosexual unions, because that seems to be the only or at least main way that the gender's of the union become essential. Gay couples should be able to love each other, support each other, and commit to each other similarly to heterosexual ones. The only argument to exclude them is to argue that the potential to have kids is a critical element of what a marriage is. But most people in our society have stopped seeing marriage as a vehicle for procreation, nowadays most people will say they marry first and foremost because they want a partner for life and love. I see no reason to think that for a man attracted to a man that partner being a man makes their union substantially different than mine with my wife.
Brad, I would like less snark but I honestly do not think many legal issues can be divorced from cultural debates. Heck, read a Kennedy opinion if you disagree!
ReplyDeleteMr. W: "But as I said, the activists arguing against SSM seem to be quite in agreement that government licensing and subsidy is an important endorsement, one whose effect can solidify or further the benefits of marriage."
ReplyDeleteThat is the conservative position. I take the libertarian position that government should not be in the business of licensing or subsidizing marriage in the first place. Marriage provides benefits because of the relationship, not because the government favors the relationship.
"Why would there be any reason to believe otherwise? The features of traditional marriage which seem to lead to the benefits you speak of: the commitment of it, the obligations, the mutual affection, the double income, etc., none of these seem to rest on the reproductive organs of those involved."
All agreements involve obligations, all human relationships involve affection and any partnership pools resources, but none of these apart from marriage provide the myriad of benefits I noted above. The relationship of a man and woman in marriage is what produces the benefit. There is no reason to believe that a woman would have the same effect on another woman or a man on another man. The relationship dynamics are fundamentally different from marriage and indeed from one another.
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ReplyDeleteBart, what in the world are you arguing, that sexual orientation of gays is not like that of straights other than which direction it runs, or that gay relationships do not have the same elements or opportunities of affection and pair bonding? I see no reason to doubt that for those whose sexual orientation runs in that direction that their lust, love and affection are likely equivalent to those with heterosexual leanings.
ReplyDeleteMr. W:
ReplyDeleteI am discussing gender interaction, not sexuality.
Do I really need to point out that men and women are fundamentally different human beings and thus the dynamics of the relationship combinations of f+m, f+f and m+m are likewise going to be fundamentally different?
NONE of these combinations is interchangeable with the others.
This has long ago become ridiculous. Even if Bart's baseless claim were true, it is not an argument against same-sex marriage. Who said that gay people have to prove that their marriages would confer the same benefits on them as straight marriages confer on straights in order to justify being allowed to marry?
ReplyDeleteBart,
ReplyDeleteHow about you walk us through at least two areas where traditional marriages benefit the partners and society and show how male-female interaction specifically garners that benefit.
I would have thought that, for example, the lower likelihood of married couples to be poor or victims of crime, to take two examples, had to do with two people earning and two people watching out for each other, but you seem to say it rests on how men and women interact. Explain.
Mista, regardless of desire or consent, a man is a man, and a woman is a woman; we are not, in being, an object of sexual desire/orientation. The essence of marriage is existing in relationship as husband and wife.
ReplyDeleteIt is not unjust discrimination that only a man can be a husband and only a woman can be a wife, just as it is not unjust that only a female can be a daughter, and a male, a son.
Henry said..."Even if Bart's baseless claim were true, it is not an argument against same-sex marriage. Who said that gay people have to prove that their marriages would confer the same benefits on them as straight marriages confer on straights in order to justify being allowed to marry?"
ReplyDeleteIn order to justify an equal protection claim, yes.
SSM proponents have to convince a court that the traditional definition of marriage is irrational and hateful. This is rather difficult to accomplish when the defenders of traditional marriage can offer a parade of social benefits to marriage which are not present in homosexual relationships.
Mr. W: "How about you walk us through at least two areas where traditional marriages benefit the partners and society and show how male-female interaction specifically garners that benefit."
ReplyDeleteOnly two?
Women civilize men and given them direction.
Married men are less likely to engage in anti-social or self-destructive behavior; they work harder, longer and at better jobs; the live healthier and longer lives.
Men provide security and support for women.
Married women are far less likely to be impoverished and they also live healthier and longer lives.
Follow the links I provided above.
Once again, there is no evidence that SSM provides the same social benefits.
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ReplyDeleteThis comment has been removed by the author.
ReplyDelete"Once again, the benefits men and women provide one another and their children in marriage are not replicated in f+f or m+m relationships, nor is there any reason to believe they would be, no matter how hard we play pretend."
ReplyDeleteYou can't prove that. Not enough same sex marriages for a long enough period of time for adequate longitudinal studies.
However, if you'd bothered to read the text of the CA prop 8 trial you would know you are way off base already. There is reason laws against marriage equality are losing in all of the courts. No rational reason exists to discriminate against same sex marriages .
Bart appears to believe that his argument (gays are not similarly situated to straights with respect to marriage) does not injure the dignity of gays and their relationships.
ReplyDeleteI thought that civil marriage encourages people to find their lifemate because people with a lifemate are more likely to be happy, healthy, well-adjusted, productive citizens. It seems to me if you argue that gays don't get these benefits from finding their lifemate, you injure the dignity of them and their relationships.
Bart, I'm not sure you answered my challenge at all.
ReplyDeleteI don't see how the benefits you note are specific to the gender relationship of male-female.
If men can provide security and support in general, then two men together should be quite secure and supported. If women civilize then two women would be super-civilized. Those seem like pluses to me (especially considering that, being homosexual, it is not like these 'resources' are going to be employed in heterosexual unions, rather these benefits would just be thrown away).
An additional point: I know you style yourself a libertarian. Yet at the same time you seem to be arguing here that the government should intervene providing recognition and support for a particular type of personal relationship on the grounds that it is 'good for' the people in them and society. It would seem you have a libertarianism that frowns upon the government 'picking winners and losers' in the marketplace, but blesses picking winners and losers in personal relationships. That seems odd.
"When this is the case, they must be deprived of their cultural power."
ReplyDeleteStates which have actually set out to do this as a conscious matter have a rather ugly track record, I will note.
just_looking said..."I thought that civil marriage encourages people to find their lifemate because people with a lifemate are more likely to be happy, healthy, well-adjusted, productive citizens. It seems to me if you argue that gays don't get these benefits from finding their lifemate, you injure the dignity of them and their relationships."
ReplyDeleteYou have hit on what the SSM movement is really all about.
SSM isn't about equal protection under the law.
SSM is a self esteem movement.
BD: "Once again, the benefits men and women provide one another and their children in marriage are not replicated in f+f or m+m relationships, nor is there any reason to believe they would be, no matter how hard we play pretend."
ReplyDeleteTeresa Wyeth said..."You can't prove that. Not enough same sex marriages for a long enough period of time for adequate longitudinal studies."
SSM proponents bear the burden of proving similar situation, not I.
Mista Whiskas said..."I don't see how the benefits you note are specific to the gender relationship of male-female. If men can provide security and support in general, then two men together should be quite secure and supported. If women civilize then two women would be super-civilized."
ReplyDeleteOnce again, you are assuming without basis that men and women are ciphers.
Men produce more for women in a marriage. They do not produce as much for women out of marriage and there is no evidence of a productivity effect for other men in or out of marriage.
Women civilize men in marriage, not so much out of marriage and there is no evidence of a civilizing effect for other women in or out of marriage.
Mr. W: "An additional point: I know you style yourself a libertarian. Yet at the same time you seem to be arguing here that the government should intervene providing recognition and support for a particular type of personal relationship on the grounds that it is 'good for' the people in them and society."
I guess you missed my remark to you above: "I take the libertarian position that government should not be in the business of licensing or subsidizing marriage in the first place. Marriage provides benefits because of the relationship, not because the government favors the relationship."
As a matter of law, however, government has every power to do so and the equal protection arguments for redefining civil marriage to include homosexual unions have no merit.
SSM isn't about equal protection under the law.
ReplyDeleteSSM is a self esteem movement.
# posted by Blogger Bart DePalma : 9:13 AM
I'll bet that even a dim bulb like you can easily list multiple legal benefits that result from being married.
Blankshot, if the only benefit of SSM is self esteem, why are you so vehemently opposed to it? Do you see it as a threat to YOUR self esteem?
ReplyDeleteOur by now puddle of H2O in CO continues to dig a deeper hole with his increasingly irrational rants on SSM. Perhaps he needs a shave.
ReplyDelete"Once again, you are assuming without basis that men and women are ciphers."
ReplyDeleteAm I? I almost think you are doing that. According to you men and women have no general securing and civilizing functions generally, but only in relation to each other. That seems like an odd thing to claim. And, of course, you seem to assume that is not the decision to commit oneself to another or the relationship itself that has these effects, but it is the relation between the genders that produces these effects. I say you seem to, because you at the same time argue that men and women in non-marriage relationships do not get the benefits. So it's quite a neat trick you have going: you acknowledge benefits for straight couples flow from their getting married, and then say there is no such evidence for homosexual couples when, of course, they are denied the very thing that you acknowledge produces these effects for straight couples.
Let's remember that we are talking about government recognized marriage. Claims about the benefits heterosexual marriages had before government recognition strike me as the equivalent of philosopher's mythical 'states of nature.' For many centuries governments have not only recognized marriage, they have required it for sexual unions, punishing other unions with laws criminalizing sodomy, bigamy, cohabitation, adultery and so on. Of course there is no evidence of the kind you want to demand of homosexual marriages producing these benefits, until quite recently such unions could not exist. But to conclude from that that such benefits would not flow is to assume that men and women, and indeed couples in general, and the decision to commit recognized and supported by government, do not produce these effects, but rather only the relation between a man and a woman who make the same decision does. That's a pretty big assumption I'd say.
BD: "Once again, you are assuming without basis that men and women are ciphers."
ReplyDeleteMr. W: Am I? I almost think you are doing that. According to you men and women have no general securing and civilizing functions generally, but only in relation to each other."
Actually, the evidence suggests that the benefits arise from the relationship of a man and a woman in marriage. There is no evidence of a "general securing and civilizing function."
Mr. W: "And, of course, you seem to assume that is not the decision to commit oneself to another or the relationship itself that has these effects, but it is the relation between the genders that produces these effects."
Both the combination (f+m) and the relationship are required to produce the effects. You do not see nearly the same results with the combination outside of marriage.
Mr. W: "So it's quite a neat trick you have going: you acknowledge benefits for straight couples flow from their getting married, and then say there is no such evidence for homosexual couples..."
Just as the combination without the relationship does not provide the benefits of marriage, there is no reason (or evidence) to believe that the relationship with different combinations will provide them.
"For many centuries governments have not only recognized marriage, they have required it for sexual unions, punishing other unions with laws criminalizing sodomy, bigamy, cohabitation, adultery and so on."
There is no evidence to believe that the benefits of marriage arose from the government punishing other relationships.
Bart is correct. Women civilize men, and men provide security. Despite these obstacles, as an unmarried single man, I managed to brush my teeth, take a shower, get dressed and take the subway to work without eating someone's hand for breakfast (even though I ate a nice young girl's ear last night for dinner).
ReplyDeleteProfessor Koppelman... Bart De Palma's comments are the best example as to why you are wrong on the need to show these people respect.
They have a First Amendment right to pray in their hate filled churches, preach anti-scientific bullshit, while managing to receive a tax-exemption to boot. The irony is their social views are pretty comparable to the one of the Shariya law that their crowd is always worrying about.
However the rest of us have the same First Amendment right to say that they are scumbags who deserve ridicule for their insistence that a corporation's religious rights has greater rights than an employee's medical decisions, or what the rest of us can watch on television, or who people choose to cohabitate with.
A couple people noted that since state authorized same sex marriages are recent affairs, the data is somewhat in its infancy.
ReplyDeleteI would note that marriage here is but a complete recognition that reminds me of the "sticks" of property. You know, property is seen as a "bundle of sticks" such as right of occupancy etc.
State authorized marriage is relatively new but the various sticks that make up it, less so. For instance, as Mr. W. suggests, marriage used to be a monopoly for sex, cohabitation etc. (at least legally -- people had sex outside of marriage back to biblical times).
Some of the people married officially now in fact were married unofficially for years. The value could be studied. Official marriage adds another level of security etc. but the value of two people having a couple decade long commitment (often after some sort of oath ceremony that was quite binding to them as oaths have been for a long time) is apparent too.
So, I think there is evidence, unless somehow (strangely) official marriage won't further what already is seen here, including with a range of benefits that only the state offers, down to such things as testimonial immunity and other aids to spousal intimacy.
Bart's Vatican argument that marriage is fundamentally about procreation fails the demographic test. The mean age of marriage is now about 30, half-way through a woman's fertile life, but a third of the way through her whole life. A very large number of subsisting marriages are between couples who cannot biologically reproduce any more; perhaps a majority. Of course, they may well still be supporting children emotionally and financially into their old age, but that's also available to SSMs through adoption.
ReplyDeleteAfter reading Joe's comment, I checked out Larry Solum's Legal Theory Blog for my first visit there today. Lo and behold, Solum has posted on Linda C. McClain's essay "Common and Uncommon Families and the American Constitutional Order" with a Solum "Recommendation." The essay is a short 19 pages that I may get to this afternoon. Solum provides a link to the essay. The abstract suggests the essay my be relevant to the discussion at this thread.
ReplyDeleteJames:
ReplyDeleteBy defining marriage as the union of a man and a woman, you cover 100% of procreation. The percentage of heterosexual unions who will or cannot procreate is irrelevant.
The percentage of heterosexual unions who will or cannot procreate is irrelevant.
ReplyDelete# posted by Blogger Bart DePalma : 3:26 PM
Of course it's relevant if your argument is based on procreation.
But then the basis for your argument changes constantly. When the non-procreation argument falls apart, you switch to the procreation argument, and vice-versa.
BB:
ReplyDeleteIf a compelling or even rational government interest in civil marriage is to promote procreation within marriage the traditional definition of marriage achieves this goal completely.
If a compelling or even rational government interest in civil marriage is to promote procreation within marriage the traditional definition of marriage achieves this goal completely.
ReplyDelete# posted by Blogger Bart DePalma : 3:59 PM
That leaves us just as many compelling reasons for same sex marriages as there are for your marriage.
"you do not see nearly the same results with the combination outside of marriage."
ReplyDeleteAs I said, you admit you only see the benefits when there is a recognized marriage and then turn around and remark that there is no evidence that homosexual unions, which are denied recognized marriage, have the benefits. I guess I have to admire the audacity of such an argument, if little else.
"There is no evidence to believe that the benefits of marriage arose from the government punishing other relationships."
I did not offer it as such, I offered it as going towards explaining why there is only evidence of recognized heterosexual marriage having these benefits and no evidence of benefits of recognized marriages of homosexuals, because for centuries non-heterosexual unions were not only not recognized and subsidized as heterosexual ones were, but they were criminally punished.
just_looking: I thought that civil marriage encourages people to find their lifemate because people with a lifemate are more likely to be happy, healthy, well-adjusted, productive citizens. It seems to me if you argue that gays don't get these benefits from finding their lifemate, you injure the dignity of them and their relationships
ReplyDeleteBart: You have hit on what the SSM movement is really all about. SSM isn't about equal protection under the law. SSM is a self esteem movement
I cannot figure out how you reached that conclusion from my comment. Perhaps, you can further explain?
" SSM isn't about equal protection under the law. SSM is a self esteem movement"
ReplyDeleteWell, SCOTUS has said of this "expressions of emotional support and public commitment...are...an important and significant aspect of the marital relationship"
I just finished reading Linda C. McClain's essay which is a review of Mark E. Brandon's book (2014) "States of Union: Family and Change in the American Constitutional Order." The history in America set forth is most interesting, especially in distinctions from the marriage concepts of England and the English common law, as well as sectarian aspects of America as a Chistian nation.
ReplyDeleteI trust a couple of you may read this essay. It was relatively fast read, even with my eyesight problems.
I recognized the person Shag flagged since she has wrote some guest articles over at the Verdict/Justia website. Her c.v. also includes various writings, including books, on the general subject at hand.
ReplyDelete"If a compelling or even rational government interest in civil marriage is to promote procreation within marriage the traditional definition of marriage achieves this goal completely."
ReplyDeleteBart, I know you are all about procreation as the reason for hetro marriage. It's a false argument. Why? Childless hetero couples either by choice or inability to have children. You're not going to advocate that these couples not be allowed to marry are you. Unless you are the whole procreation argument is a smokescreen. And without your procreation argument you have no reason to object to same sex marriages.
Theresa:
ReplyDeleteHow many ways can I explain this? I honestly do not see what is so difficult about these concepts.
Allow me to be blunt.
Married men and women provide one another with a myriad of benefits I have detailed above and provide by far the best social unit for creating and raising civilized children.
These are your compelling government interests - plural.
Men and women outside of marriage and other combinations of genders in or out of "marriage" DO NOT provide these social benefits.
This is why marriage is unique and not similarly situated to homosexual unions or any other human relationship.
The traditional definition of marriage (f+m) reaches 100% and is thus narrowly tailored to achieve these benefits.
Once all the sophistry is cleared away, Just Looking offered the real motive for redefining marriage to include homosexual unions: "It seems to me if you argue that gays don't get these benefits from finding their lifemate, you injure the dignity of them and their relationships."
I'm sorry, but enabling less than 1% of the population feel better about themselves and their sexual relationships is not a valid legal or policy ground for redefining a foundation of civilization.
"I'm sorry, but enabling less than 1% of the population feel better about themselves and their sexual relationships is not a valid legal or policy ground for redefining a foundation of civilization."
ReplyDeleteHonestly, this is beyond condescending and down right thoughtless. The 1138 federal benefits associated with federal recognition of all marriages are not there to make couples in either hetro or same sex marriages feel good about themselves.
And no, I don't think you're the least bit sorry. Every word you write tells me that.
Just Looking offered the real motive for redefining marriage to include homosexual unions: "It seems to me if you argue that gays don't get these benefits from finding their lifemate, you injure the dignity of them and their relationships."
ReplyDeleteBart - I still have no idea what your argument is. What is the "real motive" that can be inferred from my statement?
"other combinations of genders in or out of "marriage" DO NOT provide these social benefits."
ReplyDeleteOf course we don't, indeed can't, know this because other combinations of genders have not been and are not currently allowed recognized marriages (you seem to get this at some level with your scare quotes around the term in reference to them).
"enabling less than 1% of the population feel better about themselves and their sexual relationships is not a valid legal or policy ground for redefining a foundation of civilization."
The problem is that according to SCOTUS marriage is a right, one that brings with it personal, religious and governmental benefits so that when the government bars, it violates that right and it has to have a darn good reason to do that.
Mista, in the end it is about equal treatment of Americans as they make the choice to marry. And you're right that this is already case law thanks to the SCOTUS.
ReplyDeletehttp://thinkprogress.org/lgbt/2014/05/13/3437660/breaking-federal-judge-overturns-idahos-ban-on-same-sex-marriage/
ReplyDeletehttp://freemarry.3cdn.net/7e8f2bfd
d20cf720ac_sbm6bhssz.pdf
Bart: Just Looking offered the real motive for redefining marriage to include homosexual unions: "It seems to me if you argue that gays don't get these benefits from finding their lifemate, you injure the dignity of them and their relationships. [...] enabling less than 1% of the population feel better about themselves and their sexual relationships is not a valid legal or policy ground for redefining a foundation of civilization."
ReplyDeleteThe injury you cause by insisting that only straight relationships promote happy, healthy, well-adjusted, productive citizens does not affect the self-esteem of gays. They know their relationships are equally worthy of marriage. Instead, the injury you cause is to make them inferior in the eyes of society.
For those too busy to read Linda C. McClain's review essay, take a few minutes to read the closing paragraph on the last page. WARNING: If you do, you just might be tempted to read the entire essay.
ReplyDeletejust_looking said..."The injury you cause by insisting that only straight relationships promote happy, healthy, well-adjusted, productive citizens does not affect the self-esteem of gays."
ReplyDeleteDo not misrepresent my posts.
It is a fact (not merely my assertion) that marriage (f+m) creates a myriad of benefits for its partners and their children. Heterosexual relationships outside of marriage do not produce these benefits.
Being unmarried does not mean that you cannot be a "happy, healthy, well-adjusted, productive citizen." These outcomes are simply more likely for a married man and woman.
"They know their relationships are equally worthy of marriage. Instead, the injury you cause is to make them inferior in the eyes of society."
Once again, you hit it on the head. SSM is a self esteem movement.
Bart, surely you know that there are dozens of legal advantages to being married.
ReplyDeleteBart, I think he is trying to say that self esteem and social esteem or stigmatization are two different things.
ReplyDeleteBart, surely you know that there are dozens of legal advantages to being married.
ReplyDelete# posted by Blogger Henry : 10:02 AM
He also knows that those advantages destroy his argument, so he's going to pretend that they don't exist.
Separating fact from fiction and fantasy seems to be a problem for our H2O from CO. Consider his:
ReplyDelete"These outcomes are simply more likely for a married man and woman."
Is there a tad of hedging with his "more likely" over his earlier seemingly absolute clims? Divorce and family law has changed over the years for traditional marriages, raising social issues of concern. Of course similar concerns may surface with SSMs over time. Changes have taken place in America from colonial days to its its founding to the present with respect to the concept of marriage, some of which are described in Linda C. McClain's review essay. It is "change" apparently that troubles our H2O from CO, who has in the past cited the Gilded Age as the best of times in America. What was the concept of marriage during the Gilded Age? Read McClain's review essay. Should we revert to the Gilded Age?
Henry:
ReplyDeleteI am approaching this issue as an equal protection claim. The government has to offer a rational purpose to offer subsidies to marriage, but not other human relationships. I have noted several compelling reasons above. The subsides themselves are an end, not a purpose.
I was looking at Shag's article and notably Turner v. Safley comes up. Somewhat surprised this case isn't cited more in same sex marriage cases -- it has a long paragraph on the variety of aspects of marriage and they apply both to same sex and different sex marriages.
ReplyDeleteThe changing definition of "family" and "marriage" is clear. Back in the 1970s, Moore v. City of East Cleveland counsels against a narrow view of family. A "a larger conception of the family" is honored, there the nuclear family is rejected as the only one that is constitutionally protected.
I have seen people, including those who should know better, blithely use the term "traditional" marriage. The term, as suggested by the article or E.J. Graff's earlier book etc. had range of things, including the husband having a legally superior role (rejected back in Reed v. Reed on rational basis grounds), we readily reject now.
I will not yet again try to refute the argument against SSM, but do note one thing. Marriage doesn't only affect the couple. Justice Kennedy, e.g., referenced the children in same sex marriage. Marriages also in a range of ways affect others.
Not that rights suddenly become unimportant if a small minority (one tenth of one percent of our population, btw, is over 3 million) are denied them.
Shag:
ReplyDeleteProfessor Brandon's argument that the family has been in a constant state of flux over the history of our Republic and SSM is simply another example of this flux is strained to say the least.
With the exception of Mormon polygamy, the structure of marriage has always been the same (f+m) and the courts rejected the argument that the Constitution granted a right to polygamy. As an aside, the arguments in favor of SSM can equally apply redefining civil marriage to include polygamy.
Over the history of the Republic, the functions of the marital partners may have changed and more recently the partners gained the option to dissolve their marriages on demand. However, none of this provides an argument in favor of redefining the structure of marriage.
To correct my math, the percentage comes out more like 300K.
ReplyDeleteWhy don't we get down to the real basics of marriage Bart. It is a union between two people. And you're right, the only derivation in this country has been polygamy. If we're going to insist on the most basic definition of marriage lets get it right.
ReplyDeletePerhaps our H2O from CO can take us through the Constitution as a self-professed textualist to demonstrate how marriage is deemed constitutionally ordered as only between a man and a woman. Domestic tranquility?
ReplyDeleteTeresa:
ReplyDeleteCivil marriage has NEVER been defined as the union of two random people, but rather as the union of one man and one woman who are unrelated biologically to a designated degree.
Shag from Brookline said..."Perhaps our H2O from CO can take us through the Constitution as a self-professed textualist to demonstrate how marriage is deemed constitutionally ordered as only between a man and a woman."
ReplyDeleteDon't misrepresent my posts.
The fact that the EPC of the Constitution does not compel states to redefine marriage to include homosexual unions does not mean that state legislatures do not have the power to do so under the Tenth Amendment.
"the functions of the marital partners may have changed and more recently the partners gained the option to dissolve their marriages on demand. However, none of this provides an argument in favor of redefining the structure of marriage."
ReplyDeleteI certainly don't know if that is true. If the function of marriage has changed from procreation to one where the focus is on "the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons" then that applies to same sex couples as much as heterosexual ones, and suggests opposite genders is not a necessary structural feature
Blankshot, I'm pretty sure that a marriage between a male and a female of the species is also, at it's most basic level, a union of 2 people.
ReplyDeleteExcept that a union of two people is the most basic level as a description of marriage. Bart, I don't have to tell you that two men or two women are just as basic as a man and a woman. You've made such a big deal about wanting marriage to be between the most basic union of people. It's just that a man and a woman are not the most basic unit.
ReplyDeleteBD: "the functions of the marital partners may have changed and more recently the partners gained the option to dissolve their marriages on demand. However, none of this provides an argument in favor of redefining the structure of marriage."
ReplyDeleteMr. W: "I certainly don't know if that is true. If the function of marriage has changed from procreation to one where the focus is on "the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons" then that applies to same sex couples as much as heterosexual ones, and suggests opposite genders is not a necessary structural feature."
The function of marriage has not changed and certainly not as you described to "the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons" - whatever that means.
The functions of the husband and wife have changed over the years from where the husband held a preeminent role and added legal powers to the equal partnership of today.
Bart, I think you mean to say characteristic or feature of not 'function,' since I do not think even you hold that the function or purpose of traditional marriage was 'the husband [holding] a preeminent role and added legal powers' or is 'the equal partnership of today'.
ReplyDelete"'the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons' - whatever that means."
Bart, which part of that can you not understand? I think it is how most people today understand marriage's purpose, rather than procreation (in fact, see this polling data here: http://www.pewsocialtrends.org/2013/02/13/love-and-marriage/ ). It's Alito's quote btw, from his dissent in Windsor.
Evaporation seems to have overcome our H2O from CO. I made no attempt to misrepresent his posts in focusing on his textualist approach to the Constitution. I had assumed that he actually read McClain's review essay in full and with care. Her essay included discussion of author Brandon's "Uncommon Families," Mormonism and the Court's decisions regarding the latter.
ReplyDeleteFollowing the Declaration of Independence America experimented in many ways with its new form of governance. The Articles of Incorporation did not function well. As a result we got the Constitution.
Marriage is entwined with families. In the 19th Century, Brandon identifies a number of expe riments in various parts of America this area, including: The Community at Ephrata; Brotherhood of Zion and the Roses of Saron; the Shakers (great furniture makers); the Oneida community; and the Mormons and polygamy.
Recall that Mormonism was an American homegrown religion, distinct from northern Europe's Protestant religious group that had earlier settled here. Recall the alleged persecution of Mormons for their religious views, forcing them to head west to the Utah Territory. It was the U.S. Supreme Court (not state courts) that in effect rejected polygamy as incompatible with Christian civilization, rejecting 1st A free exercise claims of Mormons. (Query: Was the Court in effect establishing by this Christianity as America's religion?) Brandon points to many Court decisions on Mormonism.
The federal government, including the Court, took steps to change the centuries ways of the Native Americans with respect to polygamy and other matters.
Brandon referred to this as the Court's "familial jurisprudence."
Back to a textualist approach to the Constitution in addressing the constitutional ordering for these results. Response? Meantime, let's sing a chorus of "We Are Family."
Being unmarried does not mean that you cannot be a "happy, healthy, well-adjusted, productive citizen." These outcomes are simply more likely for a married man and woman.
ReplyDeleteBut, what you fail to address is the logic behind why these outcomes are more likely for straight married couples implies an underlying truth that these outcomes are also more likely for gay married couples. And when you ignore that logic and the underlying truth, you demean gays and their relationships, and such demeaning suggests your opinion is based on constitutionally impermissible animus.
I still do not understand your argument that because gays are demeaned when you do not recognize that gays are more likely to be happy when they marry, SSM is therefore a self-esteem program. If I argue that straights aren't more likely to be happy if they are married, I am demeaning their relationships. Can I then argue that traditional marriage is a self esteem program for straights? That doesn't sound right to me.
Songs from my youth occasionally pop in my mind for what seems like no particular reason. Recently, up popped Frank Sinatra's version of "Love and Marriage," perhaps because of this post and thread. These (love and marriage) go together "like a horse and carriage." But we are well beyond the horse and buggy days, even apparently in NYCity. Change, always change.
ReplyDeleteAnother song was featured on one of the "Orgy" musical programs at Harvard's WHRB (95.3 FM) that went through my head for several days, Cole Porter's "Love for Sale." This was written in 1930, the tear of my birth, and over the years had become a jazz standard. It wasn't until I was well into adulthood that I became aware of Porter's personal life and that "Love for Sale" lamented a love that could not be spoken of back then. I had had a heterosexual understanding of the song. After decades, change.
By the way, in my preceding comment I should have pointed out that the 1st A specifically limited Congress, but not the Court (or the Executive). While the 14th A extended the 1st A to limit states, it did not limit the Court (or the Executive).
Mr. W: "'the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons' - whatever that means." Bart, which part of that can you not understand?"
ReplyDeleteThis definition is so broad as to be meaningless.
This definition could apply to everything from going steady in high school to a lifetime marriage.
This definition also does not reach many marriages - you can be in a common law marriage without a solemnization or a loveless or sexless marriage.
BD: "Being unmarried does not mean that you cannot be a "happy, healthy, well-adjusted, productive citizen." These outcomes are simply more likely for a married man and woman."
ReplyDeletejust_looking said..."But, what you fail to address is the logic behind why these outcomes are more likely for straight married couples implies an underlying truth that these outcomes are also more likely for gay married couples."
You need both the combination (f+m) and the relationship (marriage) to gain the observed benefits. See my lengthy discussion above.
just_looking said..."And when you ignore that logic and the underlying truth, you demean gays and their relationships, and such demeaning suggests your opinion is based on constitutionally impermissible animus."
Quite to the contrary. Because men and women are fundamentally different, it is logical to assume that their combinations (f+m, f+f and m+m) would be equally different.
When you test this assumption, you find that the combination of men and women in marriage provide one another, their children and society demonstrable benefits, while you do not find these same benefits in the other combinations.
BTW, I never listed being happy as one of those benefits. That is a completely subjective condition which differs with each individual.
Reality can be a bitch sometimes and recognizing reality is not animus.
Here's a link to a table of marriage laws in US: 50 states, D.C. and Puerto Rico that identifies where common law marriages are recognized:
ReplyDeletehttp://www.law.cornell.edu/wex/table_marriage
As to loveless love, Google: Louis Armstrong + "Loveless Love," a variation from the jazz standard "Careless Love." in checking out the lyrics, note the reference to "pure food law."
Because men and women are fundamentally different, it is logical to assume that their combinations (f+m, f+f and m+m) would be equally different
ReplyDeleteI think our views of "reality" are quite different. I see no reason why the health, financial and emotional benefits of marriage would depend on gender combinations. What is your argument about the nature of gay relationships that would deprive them from such benefits?
BD: "Because men and women are fundamentally different, it is logical to assume that their combinations (f+m, f+f and m+m) would be equally different"
ReplyDeletejust_looking said...I think our views of "reality" are quite different. I see no reason why the health, financial and emotional benefits of marriage would depend on gender combinations. What is your argument about the nature of gay relationships that would deprive them from such benefits?"
Look closer.
For example, in marriage, women demonstrably civilize men. You do not generally see man civilizing women or other men in any relationship. Women generally do not need to civilize one another because they are far less likely than men to engage in anti-social behaviors.
Additionally, in marriage, men are also demonstrably more economically productive to support their wives and children. All other men of any sexual orientation are not as productive.
You are free to offer any scientifically valid evidence (which does not include studies based on subjective anecdotes) to the contrary.
Shag:
ReplyDeleteAs an aside, the existence of marriage - formal or common law - is independent of government recognition and subsidy.
If the federal government and every state redefined civil marriage as either f+f or m+m, but not f+m, my wife and I would still be married.
This is why I previously observed that homosexuals are free to proclaim that they are "married" and demonstrate that such "marriages" provide benefits to society like traditional marriages.
Bart
ReplyDelete"This definition could apply to everything from going steady in high school to a lifetime marriage."
Going steady lacks at least some of the elements, such as the solemnization of mutual commitment. And the fact that there are loveless marriages is no more a problem for this view than that of childless ones is for yours.
"You need both the combination (f+m) and the relationship (marriage) to gain the observed benefits"
You can not say that, because other combinations have not been allowed the relationship. You do not know what the results of different combinations allowed the relationship would be.
"the existence of marriage - formal or common law - is independent of government recognition and subsidy."
ReplyDeleteRather than ask the first question that comes to mind, which is what in the world does this mean, I'll just point out that it is irrelevant since the entire debate is about government recognized marriage. Those for SSM want it to apply to their marriages, and those against SSM want it reserved to heterosexual unions.
Formal marriages are founded on positive law. C/L marriages became recognized (but not universally) as a result of the development of common law, basically judge-made law. The non-recognition of C/L marriages by most states presumably came about mostly as a result of positive law.
ReplyDeleteThe Mile High State (of mind) according to the table I linked to recognizes C/L marriage. Query: Does CO recognize C/L marriage between f-f and m-m?
Let's hear from a sharp legal researcher on CO law.
In any event, there is more to marriage that merely proclaiming the relationship. Think of all those "Mr. & Mrs. Smith" registrations over the years in motels. Marriage and family law is more complicated than that, whether traditional or SSM.
Bart makes a lot of empirical claims about 'other combination' couples. Here is some research on that subject:
ReplyDelete"Women who are in same-sex couples and in the labor force tend to make far more money than similar women in heterosexual couples, while men in gay couples tend to make slightly less than their heterosexual counterparts. People in gay couples are also more likely to be in the labor force (that is, working or looking for a job) than their heterosexual counterparts, and they're far more likely to be highly educated."
http://www.usnews.com/news/articles/2013/03/01/gay-couples-more-educated-higher-income-than-heterosexual-couples
Also found this Census cite with data which corroborates that same sex couples tend to have higher household incomes, higher levels of education, higher levels of labor force participation and only slightly lower levels of home ownership. So Bart's confident claims about how 'other combinations' do not seem to bring the same benefits as traditionally married couples is somewhat true: the former seem to have better ones!
http://www.census.gov/hhes/samesex/
Mista Whiskas, I suspect you're about to find out that that data was "skewed"...
ReplyDeleteBD: "This definition could apply to everything from going steady in high school to a lifetime marriage."
ReplyDeleteMr. W: "Going steady lacks at least some of the elements, such as the solemnization of mutual commitment."
You mean like exchanging class rings or the like?
Mr. W: "And the fact that there are loveless marriages is no more a problem for this view than that of childless ones is for yours."
Not really. Marriage is the lifetime union of a man and woman. That covers loveless and sexless marriages, where your definition does not.
BD: "You need both the combination (f+m) and the relationship (marriage) to gain the observed benefits"
Mr. W: "You can not say that, because other combinations have not been allowed the relationship."
Really? What states will legally sanction a gay or lesbian couple for getting "married?"
Indeed, there are gay and lesbian couples who are in long term relationships which would be comparable to common law marriage.
Once again, this movement is far more about gaining social approval through government recognition than the marriage itself.
"You mean like exchanging class rings or the like?"
ReplyDeleteDifferences in degree = differences in kind. By your logic since children and bros make pacts to one another that's just like marriage ceremonies. Of course the difference comes in asking for state recognition (which means state imposed obligations too, signs of a different degree of commitment).
"Marriage is the lifetime union of a man and woman. That covers loveless and sexless marriages, where your definition does not."
But your reason (well, one of them) for limiting it (or at least recognition) to man and woman involves procreation, and yet you want to recognize childless and sexless marriages.
"What states will legally sanction a gay or lesbian couple for getting "married?""
Ah, but what SSM proponents are asking for, and what their opponents want restricted to heterosexual couples, IS government recognized marriage. And since that has been denied to gay couples you can not say they do not produce the same results for themselves and society WITHIN marriage that heterosexuals do WITHIN marriage (remember, you recognize that sans marriage m+f couples do not seem to produce the benefits).
This from CO:
ReplyDelete"Not really. Marriage is the lifetime union of a man and woman. That covers loveless and sexless marriages, where your definition does not."
fails to take into consideration divorces. Of course, what may have been meant by the use of "lifetime" was that for some it would seem like a lifetime" until the divorce followed by a "rebirth" from what may have been a miserable life.
BD: "Marriage is the lifetime union of a man and woman. That covers loveless and sexless marriages, where your definition does not."
ReplyDeleteMr. W: "But your reason (well, one of them) for limiting it (or at least recognition) to man and woman involves procreation, and yet you want to recognize childless and sexless marriages."
The traditional definition of marriage I noted above reaches all procreation within marriage and thus meets strict, intermediate and rational scrutiny standards in an EPC claim.
In contrast, expanding the definition of marriage to include homosexual unions does not advance that compelling government purpose one iota.
The only folks with a valid procreation argument to expand the definition of civil marriage are the polygamists.
just_looking: I see no reason why the health, financial and emotional benefits of marriage would depend on gender combinations. What is your argument about the nature of gay relationships that would deprive them from such benefits?
ReplyDeleteBart: You do not generally see man civilizing women or other men in any relationship.
According to your link, men gain benefits from marriage because "committed relationships experience less stress" and "the combination of sharing good news and emotional support that comes from a committed relationship boosts body functioning." Ditto for your link on the source of the health and emotional benefits of marriage for women. It's the committed relationship that provides the benefits, which is not gender specific.
Mista Whiskas covered the financial benefits.
"The traditional definition of marriage I noted above reaches all procreation within marriage"
ReplyDeleteBart, can you elaborate on what this means?
I like the discussion about whether gay couples are similarly situated by the Iowa Supreme Court:
ReplyDeleteIn considering whether two classes are similarly situated, a court cannot simply look at the trait used by the legislature to define a classification under a statute and conclude a person without that trait is not similarly situated to persons with the trait.
The equal protection
clause does not merely ensure the challenged statute applies equally to all people in the legislative classification.
"'[S]imilarly situated’ cannot mean simply ‘similar in the possession of the classifying trait.’ All members of any class are similarly situated in this respect and consequently, any classification whatsoever would be reasonable by this test.”
Thus, equal protection before the law demands more than the equal
application of the classifications made by the law. The law itself must be equal. In other words, to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike.
[W]e have said our marriage laws “are rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.” These laws also serve to recognize the status of the parties’
committed relationship. Therefore, with respect to the subject and purposes of Iowa’s marriage
laws, we find that the plaintiffs are similarly situated compared to
heterosexual persons. Plaintiffs are in committed and loving relationships,many raising families, just like heterosexual couples. Moreover, official
recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples.
Bart, think what you want and say what you want about hetro marriage and same sex marriage.
ReplyDeleteThere are now 18 states where marriage equality is the law, and 38% of Americans live in a state that has marriage equality. And this does not include states this year that have seen their bans on same sex marriage overturned in the courts. They too will end up on the side of marriage equality. Every single case since Windsor has come down on the side of marriage equality.
The United States is moving inexorably forward toward nationwide marriage equality.
Your arguments have lost in every court. You can live and die by them, but they are constitutionally wrong.
"Your arguments have lost in every court."
ReplyDeleteWell, except the court of public opinion. But we're less of a genuine democracy every year.
Public opinion isn't going to do your cause any good. In fact recent polling shows 59% support for marriage equality (ABC News/Washington Post). Also a majority of young Republicans also support marriage equality.
ReplyDeleteAm I wrong? the United States is not a democracy. We're a Republic if I remember my civics class.
just_looking: "According to your link, men gain benefits from marriage because "committed relationships experience less stress" and "the combination of sharing good news and emotional support that comes from a committed relationship boosts body functioning." Ditto for your link on the source of the health and emotional benefits of marriage for women. It's the committed relationship that provides the benefits, which is not gender specific."
ReplyDeleteYou are confusing actions with results.
While hetero and homosexuals can both engage in committed relationships, share good news and provide emotional support, it is only heterosexual relationships in marriage which demonstrate the social benefits I noted above.
BD: "The traditional definition of marriage I noted above reaches all procreation within marriage"
ReplyDeleteMr. W: "Bart, can you elaborate on what this means?"
Really? OK, I will try to make this as simple as possible:
1) Only a man and woman can procreate.
2) A definition of marriage as the union of a man and a woman covers all possible procreation in marriage.
Iowa Supreme Court: "[W]e have said our marriage laws “are rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.” These laws also serve to recognize the status of the parties’ committed relationship. Therefore, with respect to the subject and purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships,many raising families, just like heterosexual couples. Moreover, official
recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples."
Like all decisions finding that the traditional definition of marriage somehow violates equal protection, the Iowa supremes eviscerated and reduced marriage to a simple contract.
Indeed, their definition of marriage is so broad that any contract between two people would qualify as a marriage. If you agreed to pay me to post a message here every day for a week, that contract would qualify as a marriage under this court's insanely expansive definition.
Marriage is the union of a man and a woman. Its purposes are for the husband and wife to provide various benefits to one another, their children and this society in general.
Now establish similar situation.
Teresa: "Your arguments have lost in every court."
ReplyDeleteHardly. The courts have gone in both directions depending on their progressive membership.
In any case, I apply the law as it is written and not the progressive policy preference of the day.
I remember when I wrote onto law review arguing how the Second Amendment should be interpreted and applied. At the time, nearly all the federal courts had written the 2A out of the Constitution and the cause appeared hopeless. Eventually, the law won out and the 2A returned to the Constitution.
Let's vary our man in CO's definition:
ReplyDelete"Marriage is the union of a man and a woman. Its purposes are for the husband and wife to provide various benefits to one another, their children and this society in general."
to:
"Marriage is the union of a man and a woman, a woman and a woman, or a man and man. Its purposes are for the respective spouses to provide various benefits to one another, their children (including by adoption), and this society in general."
Shag:
ReplyDeleteAs I noted, all SSM proponents must by necessity redefine marriage to fit their argument.
Ms Wyeth is right. Also, ask any schoolchild who says the Pledge.
ReplyDeleteWhen spam links pop up it might time to go, but still, to quote Griswold v. Connecticut:
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
As with the tenets of marriage cited in Turner v. Safley et. al., this applies to Dan Savage and his husband (raising a child), Cynthia Nixon with her wife, and a woman I know who just married a guy.
The "personal" right here applies to homosexuals and bisexuals too and in Zablocki v. Redhai, twenty-five years ago, Powell flagged how the open-ended way marriage rights were protected left open challenge to barriers to homosexuals here.
Like gun rights, these things aren't just left up to majority rule, but as noted, even public opinion is bending the way to justice here.
While hetero and homosexuals can both engage in committed relationships, share good news and provide emotional support, it is only heterosexual relationships in marriage which demonstrate the social benefits I noted above
ReplyDeleteBut that is only because the issue hasn't been studied for gay relationships (or maybe it has, http://www.nejm.org/doi/full/10.1056/NEJMp1400254). And if the issue hasn't been studied, what is the argument for concluding that same-sex married couples will not produce the same results given the evidence that commitment (applicable to all gender combinations) is the underlying cause.
BD: "While hetero and homosexuals can both engage in committed relationships, share good news and provide emotional support, it is only heterosexual relationships in marriage which demonstrate the social benefits I noted above."
ReplyDeletejust_looking said... "But that is only because the issue hasn't been studied for gay relationships."
It is not for lack of opportunity.
https://www.apa.org/monitor/2010/10/same-sex.aspx
If you are going to build an equal protection case for SSM, gathering actual evidence of similar situation might be a good place to start.
What benefits gay marriage has for society is pretty much irrelevant. People don't live for the benefit of the state.
ReplyDeleteThe cost to the state seems to be minimal while the benefits to the individual seems to be substantial.
"Like all decisions finding that the traditional definition of marriage somehow violates equal protection, the Iowa supremes eviscerated and reduced marriage to a simple contract."
ReplyDeleteWell, a committed, loving contract aimed at creating families.
"Its purposes are for the husband and wife to provide various benefits to one another, their children and this society in general.
Now establish similar situation."
Well, you just did. There is nothing about the gender that is fundamental to two people living in a loving, committed relationship which provides benefits to each other, any children they may have and society in general. As I've demonstrated, same sex couples seem to, as common sense suggested, provide benefits such as higher average household income, greater labor force participation and similarly high home ownership rates.
"What benefits gay marriage has for society is pretty much irrelevant. People don't live for the benefit of the state. "
ReplyDeleteExactly. Let's not forget we are talking about a recognized fundamental right, the right to marry. As SCOTUS has noted marriage brings religious, legal, financial and personal benefits that can be important to a person's 'pursuit of happiness.' We don't ask whether women would get the same benefits from gun ownership as men or whether Hispanics would get the same benefits from petitioning the government as non-Hispanics when looking at whether a measure which barred either group from exercising that right, we say this is a fundamental right and only a really good reason can justify denying that to someone. The burden is on the opponents of SSM to show how a particular government interest would be thwarted by allowing gays to marry.
If you are going to build an equal protection case for SSM, gathering actual evidence of similar situation might be a good place to start
ReplyDeleteThere are two cases being made: 1) EPC and 2) policy.
For the latter (repeating), "what is the argument for concluding that same-sex married couples will not produce the same results given the evidence that commitment (applicable to all gender combinations) is the underlying cause."
For the former, what makes you think that evidence (beyond that commitment, applicable to all gender combinations, is the underlying cause) is needed at the "similarly situated" step in an EPC analysis (this is prior to reaching the level of scrutiny where the chosen level influences who must provide evidence).
Bart, I'm interested in the court cases that upheld bans on same sex marriage. Which cases?
ReplyDeleteMr. W/ppnl:
ReplyDeleteTo borrow a metaphor, there are literally a rainbow of loving, committed relationships in human society. They are not all marriages. Once again, you are redefining any real meaning out of marriage.
The social benefits of marriage have nothing to do with the individual serving the state. Rather, the government must have at least a rational reason for providing recognition and subsidy to marriage, but not to other human relationships. The social benefits of marriage provide that rational reason.
Finally, marriage is indeed a fundamental right and nothing prevents a man and a woman of any sexual orientation from entering into that union. SSM is about redefining that union.
Teresa:
ReplyDeleteHere is a decent listing of cases:
http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States#Case_law
Recently, SSM marriage proponents have allied with a series of federal district court trial judges citing Justice Scalia's eviscerating dissent from Justice Kennedy's opinion in the DOMA case to claim that traditional marriage violates equal protection. What makes these citations disingenuous is that Kennedy's opinion was a paean to the state power to define marriage as they please. If Kennedy eventually upholds these lower case decisions, he will have to perform some mighty fancy tap-dancing to explain away his opinion in the DOMA case.
just looking:
ReplyDeleteThe scientific evidence of the social benefits of traditional marriage when compared with the complete paucity of evidence of similar benefits from SSM works on both the constitutional and policy levels.
I'll amend my statement about same sex marriage bans losing in court. Since 2008 all court cases have overturned same sex marriage bans except the 2009 decision from the CA Supreme Court which has subsequently been overturned in federal court.
ReplyDeleteIt's true there are older cases, but current case law and president have moved forward rapidly to overturn state bans on same sex marriage. The older cases are not relevant anymore.
"Finally, marriage is indeed a fundamental right and nothing prevents a man and a woman of any sexual orientation from entering into that union. SSM is about redefining that union."
ReplyDelete# posted by Blogger Bart DePalma
If all that you have are the exact same arguments used against interracial marriage.
Our CO gasbag, with this:
ReplyDelete"The scientific evidence of the social benefits of traditional marriage ...."
displays ignorance of what constitutes "scientific evidence." demonstrating his oxy-moron-ism.
The scientific evidence of the social benefits of traditional marriage when compared with the complete paucity of evidence of similar benefits from SSM works on both the constitutional and policy levels.
ReplyDeleteConsidering that the scientific evidence says the benefits derive from being in a committed relationship, and committed relationships apply to all gender combinations, I don't see how you reach your conclusion. Basic common sense suggests the opposite.
BD: "Finally, marriage is indeed a fundamental right and nothing prevents a man and a woman of any sexual orientation from entering into that union. SSM is about redefining that union."
ReplyDeleteBarry said... "If all that you have are the exact same arguments used against interracial marriage."
This has always been a poor analogy.
The anti-miscegenation statutes recognized marriage as the union of a man and a woman, but criminalized interracial marriage.
There is no comparable law today criminalizing SSM.
just_looking said..."Considering that the scientific evidence says the benefits derive from being in a committed relationship, and committed relationships apply to all gender combinations."
ReplyDeleteThat is like arguing that men can become pregnant just like women because men and women are both human beings.
I don't know if Civics is being taught in public schools presently. If so, this post on toleration, respect, etc, and the ensuing thread might serve informative for a class assignment.
ReplyDeleteTimothy Egan's NYTimes column today "The Commencement Bigots" attacks both left and right as does Koppelman's post for intolerance.
And speaking of toleration, respect, etc, note that tomorrow is the 60th Anniversary of Brown v. Bd. of Educ., a unanimous decision by the Court dealing with long overdue toleration and respect.
I was in my last year of law school when the decision came down, busy getting ready for upcoming bar exam. It was a HALLEJULAH! moment after so many years. I had Con/Law in the Fall of 1952 that focused primarily on the Commerce Clause, with limited attention the Bill of Rights and the Civil War Amendments.
My attraction to this Blog was based upon Jack and Sandy's analyses of Brown. I hope they will feature some posts on the anniversary in the days to come (separate from Bruce Ackerman's recent post and his plans to respond to critiques of his new book relative to Brown).
Very few will directly challenge Brown today. But much of the current gridlock and animosity (and intolerance) is deep rooted reaction to Brown and the ensuing civil rights movement.
just_looking said..."Considering that the scientific evidence says the benefits derive from being in a committed relationship, and committed relationships apply to all gender combinations."
ReplyDeleteBart replied... "That is like arguing that men can become pregnant just like women because men and women are both human beings."
Considering the scientific evidence says that getting pregnant derives from a cause (the female anatomy) not applicable to men, whereas the benefits of marriage derive from a cause (committed relationships) applicable to any gender combination, you analogy seems quite wrong.
There is no comparable law today criminalizing SSM.
ReplyDeleteAre you saying that Loving comes out differently if Virginia had only refused to solemnize interracial relationships as marriage?
A few Brown related stories, including a link to the original coverage, for those of us who weren't around when it occurred:
ReplyDeletehttp://bigstory.ap.org/article/ap-was-there-original-1954-brown-v-board-story
http://www.edweek.org/ew/articles/2014/05/14/31brown-overview.h33.html
http://www.theatlantic.com/features/archive/2014/04/segregation-now/359813/
BD: "There is no comparable law today criminalizing SSM."
ReplyDeletejust_looking said..."Are you saying that Loving comes out differently if Virginia had only refused to solemnize interracial relationships as marriage?"
No.
Once again, anti-miscegenation statutes never attempted to redefine marriage. Rather, they made interracial marriages illegal.
No one claimed that the Lovings were not married. Indeed, they could not be found guilty under the anti-miscegenation unless they were married. Their marriage certificate was a prime exhibit in the case against them.
SSM seeks to redefine marriage itself.
just_looking said:"Are you saying that Loving comes out differently if Virginia had only refused to solemnize interracial relationships as marriage?"
ReplyDeleteBart replied, "No. Once again, anti-miscegenation statutes never attempted to redefine marriage. Rather, they made interracial marriages illegal."
Bart meant "Yes." just_looking asked a hypothetical question. He asked, in effect, whether if, interracial marriages had not been considered marriages, then the result in Loving would have been different.
The fact that allowing SSM "redefines" marriage whereas allowing interracial marriage did not, stems solely from the fact that interracial marriage was always allowed in some states. Its prohibition would have been just as much a violation of equal protection if all states had banned it at one time. The distinction that Bart is trying to make is specious.
Rather, they made interracial marriages illegal.
ReplyDeleteYou have said this twice as if it makes a difference. But, you also said the Lovings would have won had interracial marriage been merely not recognized rather than illegal. Thus, I am not following the significance of your above statement.
Of course it makes a difference. Under anti-miscegenation statutes it was ILLEGAL for different races to marry. My own marriage would be illegal.
ReplyDeleteUnder the anti-SSM rules, the government simply IGNORES marriages between different races. But you can still have a ceremony, and you can still construct most of the legal status, such as joint property and power of attourney, by contract. But not, of course, the tax benefits.
There's a pretty huge difference between the government refusing to recognize that you've done something, and the government criminalizing it. As many people in prison can attest.
Query: Doesn't the history of anti-mesegination laws and especially their enforcements suggest that they were aimed at African-Americans primarily rather than, say, Asians (a rather wide and varied group)?
ReplyDeleteUnder anti-miscegenation statutes it was ILLEGAL for different races to marry. [...] Under the anti-SSM rules, the government simply IGNORES marriages between different races.
ReplyDeleteIs this difference constitutionally significant? Would the Lovings have lost their case if Virginia had merely ignored their marriage?
Brett: "Under anti-miscegenation statutes it was ILLEGAL for different races to marry. [...] Under the anti-SSM rules, the government simply IGNORES marriages between different races."
ReplyDeletejust_looking said..."Is this difference constitutionally significant? Would the Lovings have lost their case if Virginia had merely ignored their marriage?"
Yes.
Some courts have engaged in the sophistry of noting that marriage is a fundamental right, redefining marriage into nothing more than a contract for government benefits, and then concluding that the government cannot deny homosexuals access to the right.
The legal error here is that marriage (f+m) is a fundamental right precisely because it is well grounded in history and law for well over three millennia. When the court redefines marriage, the institution is no longer well grounded in history and the law and is thus no longer a fundamental right.
Bart, in replying to Brett and just_looking, you rely on the significance of "redefining" marriage, ignoring my point that the distinction between redefining marriage to include SSM and declaring interracial marriage legal is specious, as it rests merely on the fact that interracial marriage was never banned by all states. If it had been, then Loving would have "redefined" marriage. Surely you don't claim that Loving should have been decided differently if no states had allowed interracial marriage.
ReplyDeletejust_looking said..."Would the Lovings have lost their case if Virginia had merely ignored their marriage?"
ReplyDeleteBrett replied... "Yes"
Amazing! I strongly suspect supporters of constitutionally-required same-sex marriage would be more than happy to rest their case on the answer to this question.
"Brett replied... "Yes""
ReplyDeleteWe may both be Mavericks, but Bart is not Brett. I have no opinion about how Loving would have fared in court under those circumstances.
"Query: Doesn't the history of anti-mesegination laws and especially their enforcements suggest that they were aimed at African-Americans primarily rather than, say, Asians (a rather wide and varied group)?"
No, they did cover marriage between whites and asians, too. In fact, specifically targeted marriage to filipinos such as my wife.
Our CO gasbag gets even more incredulous with this:
ReplyDelete"The legal error here is that marriage (f+m) is a fundamental right precisely because it is well grounded in history and law for well over three millennia. When the court redefines marriage, the institution is no longer well grounded in history and the law and is thus no longer a fundamental right."
Earlier he relied upon "scientific evidence." Now he relies on "history and law for well over three millennia," displaying his oxy-moron-ic attempts at law office history.
Our CO gasbag pooh poohs the history during colonial and post-revolutionary few centuries of America disclosed in Linda C. McClain's review essay of Brandon's book on marriage and family. There is no universal history of marriage as a fundamental right going back 3,000 years.
The use of history by those untrained in history cannot be relied upon, including particularly when used by courts, including SCOTUS. Helen Irving, a law professor with a PhD in history, sets forth in her April 2014 essay "What Would Clio Say? A Disciplinary View of Originalism" the questionable uses by courts of history in interpreting/construing constitutions. She accomplishes this in a concise 6 pages. Her essay is available via SSRN:
http://ssrn.com/abstract=2431061
Let's listen to Same Cooke's "Wonderful World" that opens with "Don't know much about history ...." If our CO gasbag really understood the theme of the song, his world might be more wonderful.
Henry: "If it had been, then Loving would have "redefined" marriage."
ReplyDeleteMarriage has always been defined as the union of a man and a woman, not the union of a man and a woman of the same race.
If the definition of marriage in an alternative world was the union of a man and a woman of the same race, then it would discriminate on the basis of race. Because discrimination based on the melanin content of one's skin does not advance any governmental interest, the racial discrimination would be unconstitutional.
The actual definition of marriage (f+m) discriminates on the basis of sexual orientation (not gender as some courts have asserted). However, limiting marriage to the union of a man and a woman advances several compelling governmental interests which expanding the definition to homosexual unions does not.
Once again, the real Loving and your alternative universe Loving do not advance the argument that the traditional definition of marriage violates equal protection.
The only way you can fit this square peg into the round EPC hole is to engage in the flimsiest forms of sophistry.
"The actual definition of marriage (f+m) discriminates on the basis of sexual orientation (not gender as some courts have asserted)."
ReplyDeleteThe soon-to-be obsolete definition of marriage obviously discriminates on the basis of both sexual orientation and sex. The person whose post we're supposedly discussing but have long forgotten--Andrew Koppelman--originated the argument that it is sex discrimination, because Fred could marry Ethel, but Lucy could not, solely because of Lucy's sex (or a different Fred could marry Wilma, but Betty could not; I forget which example Andy used; maybe both on different occasions).
Criminalization clearly is worse but Loving v. VA went beyond that and non-recognition would be unconstitutional there as well.
ReplyDeleteShag asked a question as to Asians and my understanding is yes black/white was a much bigger concern, but as shown in various cases, Asians were targeted as well. See also, the Chinese Exclusion Cases etc.
The Japanese American Citizens League was given part of the argument time in Loving v VA (see Oyez.com). A summary of the laws:
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1544&context=dlj
Until recently, it was illegal for same sex couples in various states to be in a de facto marriage, given cohabitation and sodomy laws. I'd note that the hundreds of privileges given by the state here amount more than "tax" benefits.
William Estridge in his book on same sex marriage in the 1990s put forth the sex discrimination argument.
ReplyDeleteI don't think Andrew Koppleman "originated" it ... but if someone has cite, that would be fine.
Koppelman's cv at the Northwestern University website lists "The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 Yale L. J. 145 (1988)" and "Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994)."
ReplyDeleteThe 1988 article, which is accessible at Google Books, speaks of statutes that prohibit same-sex sodomy.
ReplyDeleteWikipedia has an interesting item on anti-miscegination laws in America:
ReplyDeletehttp://en.wikipedia.org/wiki/Anti-miscegenation_laws_in_the_United_States
Perhaps the concepts of "equal protection" and "objectivity" were demonstrated by some enforcements where African-Americans were not involved.
Fred could marry Ethel, but Lucy could not, solely because of Lucy's sex
ReplyDeleteI continue to be unpersuaded (as are most courts) that not permitting same-sex couples to marry is sex discrimination. If we did the thought experiment of changing Lucy from a woman to a man, but kept everything else about him the same (and in particular, that he is still gay), he would have no desire to marry Ethel. Therefore, we cannot attribute Lucy's sex as the sole reason why she cannot marry Ethel.
Putting it another way, there is a conflict between gayness as an identity and the sex discrimination argument.
I have read Prof. Koppelman on the point but appreciate the 1980s citation. See also, e.g.:
ReplyDeletewww.samesexmarriage.ca/docs/andrew_koppelman.pdf
Thanks. Koppelman has also repeatedly (like there) addressed those not persuaded. One article, e.g., cited a myriad of problems with the discrimination in question.
Suffice to say, I think its part of the equation & enough if necessary to do the job. For instance, why do people and governments discriminate in this way? A basic reason? Stereotypical, including based on "natural law," ideas on the basic roles of men and women.
There is often not a "sole" reason against things. Also, people "desire" to marry for a range of reasons, not merely sexual attraction.
But, this is a standard debate online, some insisting sex is an obvious approach (one of the Volokh Conspiracy bloggers is an example). It isn't for a mixture of reasons. Still, it's part of it.
BD: "The actual definition of marriage (f+m) discriminates on the basis of sexual orientation (not gender as some courts have asserted)."
ReplyDeleteHenry said..."The soon-to-be obsolete definition of marriage obviously discriminates on the basis of both sexual orientation and sex."
Really? How does the definition of marriage as the union of a man and woman keep one of the genders from participating? Indeed, the elimination of one gender from the union would pretty much eliminate marriage.
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ReplyDeletejust_looking said..."Fred could marry Ethel, but Lucy could not, solely because of Lucy's sex."
ReplyDeleteThis is the worst kind of sophistry.
This is like arguing that government recognition of motherhood violates equal protection because men are not women.
"Shag asked a question as to Asians and my understanding is yes black/white was a much bigger concern, but as shown in various cases, Asians were targeted as well."
ReplyDeleteFilipinos were, in this context, considered honorary "blacks", as dark skinned asians, rather than light.
Bart (translated): If I assume the conclusion that I am trying to prove, namely that marriage can be only between a man and a woman, then marriage can be only between a man a woman. QED.
ReplyDeleteMotherhood is biologically limited to women. The definition of marriage, by contrast, is a matter of convention.
"Marriage has always been defined as the union of a man and a woman"
ReplyDeleteAlways? How many wives did Solomon have?
"This is the worst kind of sophistry."
I was thinking the same thing, but about your argument equating a legal relationship with a biological act.
For a long time juries were men only. A Bart at that time defending them against an EPC challenge would no doubt say that juries have always been all male (12 angry men), that there was a great deal of evidence about the benefits of all male juries but none about mixed gender juries, that juries just are all male bodies and to allow women would be to redefine them, etc. Now that's sophistry.
"If we did the thought experiment of changing Lucy from a woman to a man"
The thought experiment is supposed to show that it is Lucy who is being discriminated against.