This has led a lot of commenters at both the Volokh Conspiracy and other sites conclude that there simply is no reasonable defense for Gallagher's position and that, in fact, her arguments are a thin cover for anti-gay bigotry.
Here's where I stand in this debate. I strongly believe that same-sex couples should have the same legal rights as opposite-sex couples (though I'm not opposed to the civil union/domestic partnership solution, as long as it truly confers similar rights on the partners). At the same time, I don't believe that everyone who opposes same-sex marriage is a bigot or a hater, or someone who necessarily regards gay sex as "icky" and gays as inferior. And I think that the legalization of same-sex marriage does have potential social and cultural repercussions that cannot be easily dismissed.
On the "bigotry" issue: In particular, as someone who has read a lot of Gallagher's past work (I reviewed her first book, Enemies of Eros, for The Detroit News in 1990), I have to say that she has never struck me as anti-gay. If there an animus toward anyone in Enemies of Eros, it's heterosexual men who (in Gallagher's view) exploit women -- either by having sex with them without any intention of marriage, or by walking out on their wives and children, or even by staying married but balking at taking on the sole-breadwinner role so that the wife has the choice of devoting herself to nurturing children.
I strongly disagree with many if not most of Gallagher's ideas, from her 1950-ish view of sex roles in the family (she is not opposed to women having careers but firmly believes that nurturing children and caring for the home is, biologically, the woman's role) to her insistence on treating women as victims (in Enemies of Eros, she asserts that if a woman who is not prepared to shoulder "the burden of paternity" in case of conception is being exploited, even if she consents "fully, knowledgeably, enthusiastically" to such "exploitation"). But I don't believe she's a gay-basher, and I don't believe that her opposition to same-sex marriage stems from bigotry. Gallagher's chief concern for her entire career has been the protection of traditional marriage for the benefit of women and children -- some of the commenters seem unaware of her longstanding opposition to no-fault divorce -- and I'm sure she sincerely views her stance on gay marriage as being in the same category.
As for Gallagher's argument, which some of the commenters managed to summarize better than she did: the crux of it is that legalizing same-sex marriage is going to deal a death blow to the already weakened link between marriage and procreation, by formally recognizing the union of two people who are biologically incapable of reproducing. Many of the commenters seem to assume that Gallagher is saying that heterosexuals get married primarily for procreative purposes, and proceed to easily knock down that assumption. But to some extent, they are knocking down a straw man. Somewhere in the midst of her ramblings, Gallagher explicitly states that she is not arguing that people marry solely or mainly in order to have children. Rather, she is arguing that the reason the sexual union of male and female is and has always been surrounded by special legal protections, and has been accorded a special status, is that such unions are known to result in children. Take away procreation as a crucial element of marriage, and the rationale for special government sanction for marriage vanishes (and perhaps the rationale for cultural support, as well); it becomes just another private relationship in which society has no special interest. The end result, Gallagher predicts, will be "the de-institutionalization of marriage altogether." And like it or not, she has a point. Unless children are an issue, why should the government take an interest in whether we settle down with a steady partner in a sexual relationship? Yes, there is evidence that married people are happier and healthier than singles, but that doesn't necessarily justify government involvement; there is also plenty of evidence that people who have a network of close friends are happier and healthier than loners, but we don't have special legally mandated benefits for friendships.
I think Gallagher is probably wrong about the "de-institutionalization of marriage," if by that she means that the marital "benefit package" will be abolished. Taking away benefits people already have is never a popular move (which is one reason the legalization of same-sex marriage in Massachusetts is likely to stick). It is more likely that some of the benefits now associated with marriage will be extended to other close relationships. Actually, The New Republic's Gregg Easterbrook, a supporter of same-sex marriage, predicted this very scenario in an online column shortly after the Massachusetts Supreme Judicial Court ruling on same-sex marriage:
If significant numbers of gays and lesbians begin to wed, the 100 million single people may become more dismayed that still more people wearing rings get special deals while they do not. Equally important, for every gay or lesbian pair who weds, winning benefits, a couple of single people must be taxed more to fund these benefits. Benefits can't just be demanded; someone must provide them. Marriage benefits for gays and lesbians will not come from the pockets of those in traditional one-man-one-woman unions. The benefits will come from the pockets of the single.
You chortle now, but as same-gender unions gain acceptance, prejudice against the single may become the final frontier. Marriage definitely isn't for everyone; some people were made by God to be single, and why should society punish them for that? Millions of people wish to marry but cannot find suitable partners; why should society punish them for that? The single makes substantial contributions to society, including often assisting in the all-important raising of children. Many single people form long-term or even life-long bonds to each other based not on eros but Platonic friendship; why shouldn't such people be able to pool their credit, inherit each other's property without taxation, and so on? ... At any rate, complaints from the single seem the next logical progression of this debate, and complaints from the single are going to be hard to rebut.
Indeed, one could argue that when married employees are permitted to include their spouses in their health and retirement benefits, this effectively amounts to a "marriage bonus" that single employees are denied (unequal pay for equal work?).
If some of the benefits of marriage are extended to non-marital relationships, will it harm marriage? Probably not in any practical sense (how many people weigh their spouse's insurance policy as a factor in deciding to marry?), but marriage would lose its special status and hence, probably, some of its prestige as well.
A radical decoupling of marriage and procreation would bring about other cultural changes -- or rather, accelerate them, since they have been underway for some time. Straight couples would probably face less of an expectation that, once married, they will have children as a matter of course. And that expectation definitely still exists: in a comment at the Volokh Conspiracy, "Law Student Kate" writes that on many occasions, when she has told people she doesn't intend to have children, she has been asked why she bothered to get married. (For the record, I find that incredibly rude; however, I do think that less obnoxious pro-natalist social pressures serve a useful purpose.) However, I think a more pressing concern for Gallagher is not that people will stop having babies, but that fewer babies will be raised by a mother and a father. And again, I don't think her worries are wholly groundless.
The other day, I read a very moving article by Jonathan Rauch about a wedding of two young men he attended recently in Massachusetts. Asked by Rauch why he wanted to marry, one of the grooms replies, "I wanted the stability, I wanted the companionship, I wanted to have a sex life that was accepted, I wanted to have kids." Perhaps this is very old-fashioned of me, but I found the last part of this comment rather striking. Obviously, in a biological sense, this young man does not need marriage to have kids. (A partnered gay friend of mine who adopted a child from a Russian orphanage actually had to pose as a single guy for the adoption to go through.) Rauch would no doubt say -- and I think it's a strong argument -- that this young man's desire to raise children in a marriage even though he didn't biologically need a spouse for the purpose is actually a powerful endorsement of marriage as an institution. But one can see another side to this as well. Once you take away the ideal of the procreative couple, is there any reason to believe that the family unit best suited for raising a child is a pair whose union is based on romantic love? Sure, two caregivers are better than one, but why shouldn't the other caregiver be a relative or even a friend?
In the past 20 years or so, there has been a growing trend of women becoming single mothers by choice. Many other women are held back by the fact that the prospect of solo motherhood is too daunting, financially and practically. But what if two close female friends, who are straight but haven't found "the right man" -- or, perhaps, aren't very interested in having a permanent male partner -- decide to pool their resources and take advantage of marriage laws, perhaps even enabling one of them to stay home or to work part-time? In a culture where female friendships are often viewed as more central to women's lives than romantic bonds with men (a year ago Salon.com ran an article provocatively titled "Girlfriends Are the New Husbands"), could full acceptance of same-sex marriage lead to acceptance of such child-rearing partnerships between heterosexual women? I think it's (pardon the inevitable pun) conceivable. To me, this would be indisputably a bad thing, since it would result in the further alienation of men from children and family life.
One more point to ponder: if the primary purpose of marriage is the romantic happiness and satisfaction of adults, then staying together for the sake of the children even if romantic passion and intimacy have one out of the marriage -- an ideal many people who are neither reactionary nor bigoted would like to reclaim -- becomes a far less tenable proposition.
The argument that procreation is a fundamental element of marriage, however, has a serious weakness: opposite-sex couples in which one partner is infertile, or in which the woman is past childbearing age, are permitted to marry. Gallagher says that "both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all." What she means, I believe, is that infertile male-female couples are in some important way exactly like couples who are planning to have children but don't have any yet, and elderly husbands and wives are in some important way exactly like parents with grown children; a same-sex couple is fundamentally different, since non-generativity is inherent in their very gender (rather than being a medical problem or a life stage).
While the pro-SSM commenters at the Volokh Conspiracy seemed baffled by Gallagher's argument, I can see her point: A male-female coupleis the basic biological unit involved in reproduction , even if this particular couple happens to be non-procreative for one reason or another. But there are some pretty powerful counterarguments, too. Surely in some ways, a same-sex couple that plans to adopt or to have a baby biologically related to one of the partners has far more in common with an opposite-sex couple planning to have children than either of them has with newlyweds in their '80s, or with a career-oriented couple "child-free" couple in which both husband and wife have opted for sterilization. If older and infertile couples can be "the exception that proves the rule," why not same-sex couples?
Another important counterargument to Gallagher's reasoning is that the trends she deplores -- the shift toward a view of marriage centered around romantic love rather than procreation, divorce, single mtoherhood, the weakening of traditional sex roles in marriage and of social pressures to marry and have children -- are already here. So is de facto gay marriage (some churches and synagogues have been marrying same-sex couples for years). Preventing state recognition of same-sex marriage is not going to reverse those trends. But I think that for Gallagher and many other social conservatives, the legalization of same-sex marriage amounts to an official death certificate for traditional sexual arrangements and an affirmation that the forces of modernity have won.
This post is threatening to meander, so I'll sum up my basic view of the debate. I think it's possible that the legalization of same-sex marriage will lead to social changes that will result in the loss of the special status of marriage as we know it, and perhaps in more children being raised in family units other than married couples (straight or gay). It is also possible that it will lead to none of these consequences, and will have a marginal, if any, effect on heterosexual marriages. It could even, as Rauch argues, have the effect of increasing respect for marriage. I think that we need an honest discussion of these possible outcomes, and of how we as a society can manage the recognition of same-sex unions (which I think is a matter of basic justice and dignity) in such a way as to minimize potential negative repercussions.
My view of marriage and family is very different from Maggie Gallagher's, but I do agree with her that a healthy society should ensure that children, in general, are raised by their mothers and fathers. The small number of gay couples with children hardly poses a threat to this social norm. Let's talk about how we can respect their rights, and promote more stable heterosexual families as well.
Update: Maggie Gallagher responds.
Update: See also my other posts on this topic:
Marriage, sexual complementarity and difference
Some closing thoughts on the same-sex marriage debate
94 comments:
Good comments, Cathy. What frustrated me about Maggie's arguements are her assertions that 1) We cannot predict what sort of things will happen once we legalize SSM and that 2) We know for certain that all the effects will be negative. It's just a bizarre argument.
At least you have the foresight to consider that there will be consequences, but we some may be good ones, some neutral, some bad.
How can we predict the consequences? Not easy, I suppose, but perhaps the best way is to look at the last time the definition of marriage was changed, when interracial marriage was legalized. Yes, there were plenty of objections, and dire predictions, but few today would argue that the problems in today's marriage stem from that decision.
Other than that, we are merely speculating. And mere speculation is hardly a reason to deny basic rights to gay people.
And there is also another possibility -- that Maggie is exactly right. But everyone assumes that decoupling marriage from procreation is a BAD thing. Perhaps it is. But perhaps it will show people that having children is not an inevitability, that they have choices, and one of them is not having children. I have seen far too many parents who are terrible, and never should have had children. So maybe this whole "marriage is the ideal for everyone, and having kids is essential" doesn't work for everyone, and it's high time we realized that.
Oh, and is Maggie an anti-gay bigot? I don't know for sure, but I know that she wrote a column fully supporting the notion that any gay man can become straight if he really really tries. (Sorry, no evidence that that can happen.)
Additionally, she aligns herself closely with such organziations a Focus on the Family, and Family Research Council, both of which are notoriously anti-gay. If you play with pigs, you're gonna get dirtly, and she should at least try to distance herself from those groups if she doesn't want to come across as a bay-basher.
And she should learn everyone else knows, that people are gay because they are, just as the heteros are straight because they are.
Worries over the welfare of children raised in non-traditional homes like your pairs of straight women are overblown. The experience of Israeli kibbutz children shows that the slope can only slip so far toward communal child-rearing.
Humans have survived for millenia "allowing" the least able to be parents. Adding a few non-traditional cooperative relationships to the mix seems more likely to improve child-rearing on the whole than to cause problems.
the crux of it is that legalizing same-sex marriage is going to deal a death blow to the already weakened link between marriage and procreation, by formally recognizing the union of two people who are biologically incapable of reproducing..
She, and you, are making a ridiculously naive assumption here. Technology has already advanced enough that people believe that two women or two men will be able to have a child together very soon, perhaps in three to five years. All of Maggie's points would support marriage for couples that might consider procreating together.
Society will have to debate the ethics of allowing this. Is it beyond the "Enough" point, should it be banned? Or is it a right to try to create a child from whatever materials a scientist wants to use? It is mind-boggling to me that we are even considering these as seperate debates. The right to have children together is are the sine qua non of marriage - every marriage has this right, and every marriage must have them to be a marriage.
The argument that procreation is a fundamental element of marriage, however, has a serious weakness: opposite-sex couples in which one partner is infertile, or in which the woman is past childbearing age, are permitted to marry
They have a right to procreate, they just don't. Simple as that.
Young: I think that we need an honest discussion of these possible outcomes, and of how we as a society can manage the recognition of same-sex unions (which I think is a matter of basic justice and dignity) in such a way as to minimize potential negative repercussions.
That's a great way to move this debate forward. What does Gallagher propose in terms of recognizing same-sex unions?
Thanks Cathy,
I knew there was something to MG's arguments (especially her final summary) that struck me as plausible, and I think you've hit the nail on the head here. There probably are unforeseen social consequences of the legal recognition of SSM. Giving MG the benefit of the doubt as a non-bigot, the debate may boil down to whether you think those changes are likely to be good or bad.
Are 'traditional' gender roles a positve or a negative? I think SSM advocates, almost by definition, believe the latter, but the former is not an indefensible position. Just sticking with child-rearing, once you remove the 'mother and father', that is to say that a couple is the best way to raise a child? Maybe 3 is better, but 4 is too many. Parenthetically, how could this possibly be tested empirically?
i had a couple questions for maggie during the volokh.com discussion, and my only comment to your response would be to address the section about opposite sex couples with no children.
my distinct impression from maggie's posts was that she would not oppose state action to prevent marriages in which no children could be born, nor using state power to enforce traditional sex roles.
if you look at her agruments about "the end of western civilization" coming about following same sex marriage, which i don't believe was hyperbole, she was very serious about the perceived threat from falling birth rates in industrialized nations, which predate the gay rights movement. she acknowledged (sort of) that factors such as state entitlements, retirement savings, and a manufacturing/service economy contributed, along with women coming into the workplace. she suggested (or it seemed to me) that the answer lay in the restoration of traditional gender roles, whatever the method of doing this, even if it means tighter state regulation of marriage and relationships to achieve it.
Adoptive parents with a genuine interest in caring for their children are as good as the best biological parents - and a good deal better than all of the mediocre and bad parents who are free to have as many children as they want. The alottment of genitalia in these relationships seems entirely beside the point.
The intuitive, received-wisdom that a mother and father are the "best" parents is coincidentally quite self-serving to hetero, coupled commentators. There may be good reason to support that notion "in general" but those of us who aren't also hetero and coupled - but who do have genuine interest in nurturing our children - deserve more justification than received wisdom and biological determinism...
While your post makes Maggie's case better than she did, I am writing solely to chastise you for your mis-use of "exception that proves the rule," where clearly the exception you mention (infertile heterosexual couples) explicitly DISproves the rule -- which was precisely the point.
"Exception that proves the rule" refers to the demonstration of a "default" rule by reference to an exception from it.
If a statute says, "property will be divided among all close relatives", one might argue whether or not an uncle constitutes a "close relative" or not. With nothing more to go on, the default definition of "close relative" is not obvious.
If, however, another unrelated statute says, "debts will be paid by all close relatives except uncles," we now have an exception (uncles excepted from a "close relatives") that proves the rule (absent the exception, we assume that uncles ARE close relatives.)
It doesn't work unless you have two rules -- one that needs to be "proved", and one that has the exception that proves it.
perhaps it will show people that having children is not an inevitability, that they have choices, and one of them is not having children.
Who is it that you think hasn't already learned that lesson? The birthrate in most first-world nations has already falled to below the replacement rate.
wrote a column fully supporting the notion that any gay man can become straight if he really really tries. (Sorry, no evidence that that can happen.)
You're mistaken. The evidence that it can happen is certainly weak (and I don't personally accept it either), but the existance of men who were clearly gay in the past and currently claim to be heterosexual is mostly certainly evidence for Gallager's claim. Maybe you meant to say that there is no *proof* of her claim?
I said this during the debate, but it bears repeating, given your hypothetical: your scenario of straight people marrying to get benefits is *exactly* the sort of gaming I predicted, and that others dismissed as unlikely.
It's extremely likely, and I'm really astonished you don't see that such gaming would ultimately end marriage benefits. What sort of revenue hit would the government take if everyone could qualify for estate tax exemptions, social security benefits, and married tax status? More to the point, what's the reason for providing them?
You see this as a positive--hey, just hand out money to everyone! I see it as ultimately unsustainable. That could be a positive development, though, as it might ultimately allow us to spend more money on benefits for parents and children, and less to people who just happen to be married.
It's amazing how downright silly intellectuals can be, and this discussion (and Cathy Young's intro) is a prime example.
We have to explain to you why gay marriage is an absurdity? No, we don't.
Outside of a very few legality obsessed eggheads, there is no public interest in this issue. The guy who changes the oil in your car recognizes the foolishness of this discussion.
Eggheads, just because something seems ideal and clever to you...
Well, I'm wasting my time even trying to explain it to you, aren't I?
I think Cathy Young ignores the evidence that Maggie Gallagher may be an anti-gay bigot, which is other than a few words in tepid support of second-parent adoptions, she has not endorsed even a tiny speck of civil rights for gays.
I think Ms. Gallagher's arguments are weaker than Ms. Young thinks they are, but even if we assume that the arguments have some force, nonetheless, we know that (1) many, many people use the issue of same-sex marriage as a wedge issue to distract from more fundamental hatred of homosexuals and a desire to deny them civil rights, and (2) Ms. Gallagher didn't utter one word against sodomy laws, in favor of gays in the military, in favor of civil unions, against employment discrimination against gays and lesbians, or in favor of any sort of legal civil rights protection for gays and lesbians.
If she wants to be taken seriously as someone who is not prejudiced but simply wants to protect marriage, it seems to me that she should come clean as to where she stands on these issues. I suspect that, in actuality, she probably takes the anti-gay position on most or all of them, and that's why she won't tell us. And if she does take the anti-gay position, I think we can infer that her argument is being made in bad faith.
Actually, Stephan and others, there IS a state interest in allowing gay marraige. Why do you think marraige laws include a whole list of responsibilities that have nothing to do with children?
Married couples are responsible for each other, financially and otherwise. It allows you to designate who is, legally, your most immediate family. For example, my girlfriend is highly at risk for alzheimers. If it surfaces, by then, it is highly unlikely she will have any surviving immediate family. If she isn't married and she gets the disease, she is the states responsibility. If we were able to marry, she would be my responsibility. Having more couples take on legal responsibility for each other is absolutely in the public's interest.
Z
Cathy,
Your comments are thoughtful and interesting. They lead to the conclusion that the country should not rush into SSM, certainly not at the hands of the judiciary, which is institutionally incapable of balancing possible long term adverse social consequences against the seemingly urgent claims of the particular individuals standing before the court.
IMHO, this is where federalism provides a solution. Let a handful of states (Vermont, Massachusetts) experiment to their hearts' content with SSM and other forms of non-traditional "marriage" (polygamy, polyandry, whatever) while the rest of us sit back and observe how it all plays out over a couple of generations. If at the end of that time, none of the harmful social effects that so many of us fear have come to pass, well, then, other states might also decide to change their rules regarding marriage. On the other hand, if SSM turns out to be a social disaster, then the disaster will be confined.
So how about this as a solution that confers equal benefits for all couples while maintaining the "sacred" institution of marriage:
1. All people who are currently married are granted the status of "domestic partners."
2. All future couple who wish to receive legal-spouse benefits (including: 5th ammendment Spouse-Spouse privelage) must register as "domestic partners" in order to receive said benefits.
3. If you can find a church to marry you & your partner, you can get married under that church. However, you must register as "domestic partners" if you wish to receive legal rights as a couple.
Kirk, thanks, I never understaood that. It reminds me of a great sermon i heard about Jesus's time in the desert when he was supposedly tempted by Satan. People suggest that means he was temptable, but the pastor offered this story to show what it meant:
As a boy, he remembers watching the railroad build a bridge over a river. When they were done, they brought in two heavy locomotives to go across it together, to test it. The boy asked a worker "why are you testing it, do you think it will fail"? And the worker said "no we're testing it to prove that is safe" That's why Jesus allowed himself to be tested by satan.
But Jeremy, same-sex couples shoudl not HAVE equal rights! Only male-female couples should have the right to procreate together. Combining genes from two people of the same-sex (or three, or one person and an animal, etc) would be unsafe and unethical and should not be allowed.
Rather, she is arguing that the reason the sexual union of male and female is and has always been surrounded by special legal protections, and has been accorded a special status, is that such unions are known to result in children.
Take away procreation as a crucial element of marriage, and the rationale for special government sanction for marriage vanishes (and perhaps the rationale for cultural support, as well); it becomes just another private relationship in which society has no special interest.
Special government protections for marriage just so happen to allow for collateral inclusion of opposite sex marriages that do not or cannot result in children.
Arguments I hear for SSM seem to be based on the deisre to be included collaterally as well. "It's only fair that same sex couples be allowed to marry and not bear children, just as opposite sex couples are allowed to."
I do not think it is easy to discern effects, harmfull or otherwise, to including SSM into the mix. But lets be clear about what we are considering.
I do believe it is possible to make everyone happy here if we can change the framing of the debate from "Allow this or we are going to make it happen, and oh by the way, you must hate us if you don't like it" to "lets find a way to make this work so we don't break it".
Some of you are rather short-sighted in the "what about the future" department...
Some have pointed out that in the not-so-distant future, same-sex couples will be able to reproduce. Two men will be able to hire a surrogate and combine their genetic material to make a new person. Two women could do the same, minus the hiring a surrogate part. However, this will be merely the beginning of a whole new world of sexual and procreative evolution.
Let's look at what is also possible "in the future". Remember, this is not randomly speculative science fiction, but things that are inevitable. These may seem silly to point out, but the laws we decide on today will be the foundation for what's to come. The part that's speculative is when these things will happen, but I'll do my best to order them in difficulty (i.e. likely chronological order).
1) Parents choose genetic material from two completely different people and make a child with the result... Being sure to filter out any diseases and to select advantageous traits. Any laws that we piece together regarding parenthood and marriage will have to take this into account. Headline from the future: "Parents sue doctor for failing to filter out homosexuality in George Michael child."
2) Sexual orientation can and will be modified. In the future, parents may opt to chemically alter their children's sexual orientation before they develop into adults. It could be as simple as filtering out a certain genetic factor before birth or modifying the chemistry of the brain at some point. Should we ban this type of modification? Should we protect it? Do we *really* want to limit this type of power to only married couples, or do singles qualify? Quote from the future: "Having gay children is against my religion"
3) Sex change operations suddenly stop being "cosmetic only". If we have SSM, and one of the partners changes sex, could this be grounds for divorce? Quote from a future critic of the trial: "Just take a heterosexual orientation pill you gay wuss." Male partners may change sex temporarily to raise children (assuming #4 isn't ready yet).
4) No womb required. If children can be raised from the test tube to adulthood without ever entering a womb, what does "marriage as procreation" theory think about that? Will only married couples be allowed to utilize human incubators?
5) Non-human children. No, I'm not talking about aliens. I'm talking about human genetic material that's been modified so much, it no longer classifies as "human". Will our marriage laws of today prevent couples of different species from mating?
Just some things to think about.
There are two "rights" at issue. The "right" to be married to whom ever you choose and the "right" to a protected legal status. I have not heard arguments that entail criminalizing those institutions that conduct ceremonies to memoralize same-sex couples monogamous commitments to each other. People have the right to enter into monogamous relationships and nothing is preventing gays from doing this now.
Protecting and subsidizing a status and relationship produces a burden that must be balanced by some social benefit. The burden of proving the benefit to society is on those seeking the benefit.
Let those who want to form same-sex couplings maintain monogamous relationships, show thier benefit to society in a quantifiable way and society will respond by encouraging these relationships.
Why should society be required to roll the dice.
Ms. Gallagher didn't utter one word against sodomy laws, in favor of gays in the military, in favor of civil unions, against employment discrimination against gays and lesbians, or in favor of any sort of legal civil rights protection for gays and lesbians.
Different people have different ideas about gay rights. For example, you might see a law banning employment discrimination against gays as a victory for civil rights. Many conservatives and most libertarians see it as a loss for civil rights, because it violates a real right (the employer's right to freedom of association) in favor of a phony right (the right to a job).
For libertarians and many conservatives, "gay rights" means "it should be legal to be gay, and to engage in homosexual sexual activity with a willing partner or partners", and nothing more. So from our perspective, the gay rights struggle is already over -- gays are now legally accepted, and rapidly becoming socially accepted too.
I think Young does a fantastic job of laying out the issue here, and reveals the fundamental flaw in Gallagher's and others' arguments against gay marriage.
Yes, it will change the definition of marriage, relationships and families. But will it destroy them? Will it singlehandedly lead to their demise? Of course not. The point that Gallagher and otehrs are making is really a small one. They don't want the definition of the word 'marriage' to shift ever so slightly.
Will some of the changes to attitudes about marriage be bad? Perhaps. But is that possibility really worth denying gay families their right to be recognized? I honestly don't think so. I think if you're going to exclude perfectly capable people from an institution, you'd better have a good reason. And the (continuing) shift of marriage simply isn't good enough.
It seems to be like gay marriage is simply a symptom of a larger societal trend toward non-traditional relationships and families. A lot of these traditionalists think they can stop this shift by blocking what is simply one aspect of it. I remember reading last year that only 25 percent of children are now being raised in 'traditional' families, with a mother and father, both on their first marriages, no stepkids, adopted kids, divorces, etc.
And as for the 'problem' of two female friends getting together and raising a child, what's to stop man and a woman from doing that now? The high regard for marriage that this society holds, i think, is what keeps that from becoming prevalent. I think a 'marriage-light' arrangement like civil unions, which would bestow all the benefits of marriage but be less binding, is the real threat to marriage. Which is why gays should be allowed to marry, not get civil-unioned.
Good post.
Another concern of social conservatives is that left-wing government schools will use SSM to trash OSM even more than they do now.
The State will also use legal SSM to force Trads to recognize relationships that they consider to be sinful and to put their immortal souls in peril. They will have to choose between sin and civil forfiture (for violating civil rights laws) -- an unfortunate choice.
A few points to consider in response to the comments:
1) There are already plenty of gay and lesbian couples in monogamous relationships. And many of them are raising children. There is not one study to show that this is harming anyone else, and in fact, benefits society, since many of these couples adopt children. What more proof do you need?
2) The Congressional Budget Office two years ago issued a report on the tax revenue consequences of allowing gay marriage across the US. Their conclusion is that there would be a slight net gain for the US treasury.
3) Regarding gay males turning into straights. The report that Maggie based her column was a research project written by Dr. Spitzer, the same person who successfully stated that homosexuality is not a disease and should be removed from the list of psychological diseased. He "research" consisted of telephoning a group of men who went through reparative therapy and asking them if they had become straight. About one-third of them said they were.
The problems of this were numerous, that self-reporting is notoriously unreliable, the sample was self-selected, not random, among others. Even, then, even if you take the report at face value, only one-third of the most highly motivated gay men became straight. The report was immediately denoucned by his peers as too flawed to be of any use.
Nonetheless, maggie wrote a column, leaping on this to prove that ANY gay man can change his orientation IF he really really wants to and makes the effort. Conclusion? Any man who is gay obstinently refuses to "get with the program" and become straight.
Because of people like her, Dr. Spitzer wrote a followup column in the Wall STreet Journal denying that he ever said anyone can change, and decried attempts by conservatives such as Maggie who make reparative therapy seem like a viable solution. He specifically stated that the vast majority of men and women cannot change their sexual orientation, but that perhaps there are a few, who were likely bi-sexual to begin with, who might be able to.
Most research debates even that point. But nonetheless, the point is that Maggie believes gay men can change their orientation. So it's not inconcieveable that this is a reason she is against gay marriage -- she may believe that if you want to get married, just change your orientation!
A few points to consider in response to the comments:
1) There are already plenty of gay and lesbian couples in monogamous relationships. And many of them are raising children. There is not one study to show that this is harming anyone else, and in fact, benefits society, since many of these couples adopt children. What more proof do you need?
2) The Congressional Budget Office two years ago issued a report on the tax revenue consequences of allowing gay marriage across the US. Their conclusion is that there would be a slight net gain for the US treasury.
3) Regarding gay males turning into straights. The report that Maggie based her column was a research project written by Dr. Spitzer, the same person who successfully stated that homosexuality is not a disease and should be removed from the list of psychological diseased. He "research" consisted of telephoning a group of men who went through reparative therapy and asking them if they had become straight. About one-third of them said they were.
The problems of this were numerous, that self-reporting is notoriously unreliable, the sample was self-selected, not random, among others. Even, then, even if you take the report at face value, only one-third of the most highly motivated gay men became straight. The report was immediately denoucned by his peers as too flawed to be of any use.
Nonetheless, maggie wrote a column, leaping on this to prove that ANY gay man can change his orientation IF he really really wants to and makes the effort. Conclusion? Any man who is gay obstinently refuses to "get with the program" and become straight.
Because of people like her, Dr. Spitzer wrote a followup column in the Wall STreet Journal denying that he ever said anyone can change, and decried attempts by conservatives such as Maggie who make reparative therapy seem like a viable solution. He specifically stated that the vast majority of men and women cannot change their sexual orientation, but that perhaps there are a few, who were likely bi-sexual to begin with, who might be able to.
Most research debates even that point. But nonetheless, the point is that Maggie believes gay men can change their orientation. So it's not inconcieveable that this is a reason she is against gay marriage -- she may believe that if you want to get married, just change your orientation!
Revenent:
Funny. Jerry Falwell was interviewed by Tucker Carlson, and Falwell stated that gays and lesbians should be protected from discrimination in housing and employment, just like everyone else. Carlson said, wouldn't that be giving them special rights? Falwall said no, these are civil rights, and everyone should have them.
Now, if your religion requires you to be mean and nasty to every gay person you know, there is no law that stops you from doing so. And no gay person is asking for a law that would stop you from doing so. So you are indeed free to "not accept" gay marriage -- you can refuse to go to their weddings, refuse to invite them to your house, and refuse to bake them a pie when they move next door.
As for employment, that argument of free association died in the 60s. Back then, white folk said that they should have the freedom to hire and fire any black folk they want to -- but the Civil Rights Act put and end to that argument. No one has a "right" to a job, but they cannot be discriminated against based on sex, color, religion, pregnancy status, age, or disability as it is. Now, some argue that sexual orientation is a choice, but all peer review research says the opposite, and in any case, religion and pregnancy status are choices, are they not? Why adding sexual orientation to this list will suddenly break your back, I don't quite know....In fact, you probably already work or have worked with someone who was gay -- you just didn't know it.
Research Summary:
Joseph Berger
The Psychotherapeutic Treatment of Male Homosexuality
See Introductory Pages for full
explanation of format.
Author and Source:
Joseph Berger
American Journal of Psychotherapy, 48(2), 251-261, (1994).
Brief Description:
Describes three cases with male patients. In two of these cases, the "abortion of a pregnancy conceived by the male patient may have led to the patient 'coming out'" (p. 251), or turning from heterosexuality to homosexuality.
Stated Goal of Therapy/Treatment:
Varied. Two clients entered therapy due to work-related issues; one due to a failed heterosexual encounter.
Stated Definition of Change:
Not specified.
Actual Change:
Change in Homosexual Behaviour (eliminated)
Change in Heterosexual Behaviour (commenced)
Change in Homosexual Fantasy (decreased)
Description of Method: Psychotherapy.
Length of Treatment:
In two cases, lengthy. In one case, therapy was terminated early.
Follow-up:
Almost 20 years for "C"; no data was given for other patients.
Summary of Results:
Client "R" was initially heterosexual in behaviour with no homosexuality mentioned. His heterosexual behaviour stopped, and his homosexual attraction and behaviour began, after the young woman with whom he had enjoyed a successful sex life became pregnant and got an abortion. After therapy, he returned to heterosexual behaviour and relationships, and has only occasional homosexual fantasies.
Client "D" was "quite heterosexual and had had a number of successful sexual relationships with women " (p. 254). After a women who had become pregnant by him had an abortion, he became exclusively homosexual. He discontinued therapy early.
An unnamed female client, briefly mentioned, had an abortion after becoming pregnant. After that, she had only homosexual relationships for 25 years. She entered therapy after "experiencing an upsurge of heterosexual fantasies" (p. 256).
Because clients "R" and "D" and the unnamed female clients were not initially exclusively homosexual (K6) or predominantly homosexual (K5), they will not be considered further.
Client "C" had homosexual fantasies and sexual encounters since adolescence, with no heterosexual behaviour reported. As an adult, he attempted to develop heterosexual relationships due to family and cultural pressures. These were not successful. After a long therapy, he married, fathered three children, and is having a "heterosexually fulfilling and enjoyable life" (p. 255). Some occasional homosexual fantasies are reported.
Discussion of Relevant Results:
While Berger does not specifically state that "C"'s homosexuality from adolescence to his mid-30's was exclusive, there is enough other evidence in the text ("numerous homosexual fantasies," frequent "homosexual encounters in such places as bathhouses," no report of heterosexual behaviour or interest) to consider him at least predominantly homosexual (K5).
After therapy, "C" is married, involved in heterosexual behaviour, and not involved in homosexual behaviour.
The "numerous" homosexual fantasies have now become "occasional fleeting homosexual fantasies" (p. 255).
No clear statements are made about his attractions, nor as to whether he now also has heterosexual fantasies.
Thus, we can only say that he experienced a change in behaviour from homosexual to heterosexual. This change has an almost 20 year follow-up period.
Strengths:
Lengthy follow-up on client "C".
Limitations and Shortcomings:
Greater detail on the subjects' sexual histories and Kinsey-type ratings before and after therapy would have been helpful.
--------------------------------
Research Summary:
Joseph Wolpe
"Spontaneous" Reversal of Homosexuality After Overcoming General Interpersonal Anxiety
See Introductory Pages for full
explanation of format.
Author and Source:
Joseph Wolpe, M.D.
The Practice of Behavior Therapy. Elmsford, NY: Pergamon Press, 1969. Pages 255-262. This case is described in less detail in Stevenson and Wolpe (1960); the 1969 book was chosen as it was cited by Nicolosi.
Brief Description:
This is a case study of a man who "spontaneously" found himself becoming heterosexual. A longer description appears below in the "Description" section.
Stated Goal of Therapy/Treatment:
To overcome fear and submissiveness in social situations.
Stated Definition of Change:
Not applicable. Wolpe at the time believed change was not possible.
Actual Change:
Change in Homosexual Behaviour
Change in Heterosexual Behaviour
Change in Homosexual Attraction
Change in Heterosexual Attraction
Full Sexual Orientation Shift
Description:
The client went into treatment for "rising anxiety" related to his continuing homosexual behaviour. The therapist felt that his religious convictions and beliefs were responsible for much of this anxiety and stress. Thus, he determined to give the client a different religious perspective, and gave him a book to read. By the sixth session, the client had come to "see that he had taken sin, particularly in relation to sexuality, too seriously" (p. 257).
When the client asked Wolpe if he could assist him to "overcome his homosexuality," Wolpe replied that he could not. Instead, they addressed the client's fears and submissiveness in social situations. To do this, Wolpe spent five sessions helping the client use assertive behaviour, and made progress.
About one year later, the client reported that, even though he had been "doing just what he pleased," he was no longer responding sexually to men. He had also met a woman and found her sexually arousing. This relationship did not last, as she rejected him.
Six months after this rejection, in January 1956, the client wrote to say that he had met a woman and was strongly attracted to her. "At the time of writing he had made love to this woman almost every night for a month, always with complete success, and with greater enjoyment than he had ever experienced with men" (p. 261).
Wolpe had follow-up interviews with the client later that year and the following year. In January 1959, the client wrote to say that he was married and finding his sex life "was still in every way satisfactory" (p. 261).
Length of Treatment:
Not applicable, as the treatment did not focus on changing the client's homosexuality but on other issues. In fact, the therapist did not believe that homosexuality could be changed, and told the client as much.
Follow-up:
At least1 eighteen months from the first report of significant changes to the last interview. There were three and one half years between the first report and a letter reported that he had married and that his sex life was "still in every way satisfactory."
Summary of Results:
Before going into treatment, the client had no sexual attraction to women, nor was he sexually involved with them. Instead, he was attracted socially and sexually to men. He "found pleasure in the company of men and had formed a succession of attachments to men with whom he had sexual relations" (p. 256). On this basis, he would be rated as exclusively homosexual (Kinsey 6).
Because of his religious upbringing and beliefs, he felt that homosexuality was sinful and was anxious about his sexual involvements. Wolpe influenced him to change these beliefs, which he did. As a result, he did "just what he pleased" (p. 259) in regard to sexual involvements with men.
Later, he noticed that he had stopped responding sexually to men. He became attracted to and sexually aroused by one particular woman. He was sexually involved with another woman over a longer period of time and found this more satisfying than his previous involvements with men. On this basis, he would be rated as exclusively heterosexual (Kinsey 0).
Discussion of Relevant Results:
In brief, this is the case of an exclusively homosexual man who became exclusively heterosexual. It is not clear how this happened.
This case is unique for two reasons:
Wolpe said that he could not help the client change his homosexuality. Instead, he influenced the client to change his religious beliefs, in order that he might accept his homosexuality and be comfortable with it. This goal was achieved. Wolpe worked with this client in the 1950's, yet his actions are in line with the common, contemporary beliefs that:
homosexuality cannot be changed;
religious beliefs are often the real problem; and
the therapist's role is to help the client to accept his or her homosexuality.
The client found his sexual feelings and behaviours changing, even though he accepted his homosexuality and no longer wanted to change.
Strengths:
There would be no reason for the client to lie about what was happening in his life, especially as:
Wolpe did not believe change was possible. Thus, giving a false report to "please the therapist" does not apply.
The client had changed his religious beliefs, and accepted his homosexuality. There was no need for him to pretend he had changed.
Limitations and Shortcomings:
A follow-up period of at least five years would be preferable.
Wolpe did not interview friends or acquaintances of the client to confirm the reported changes. He also did not speak to the women with whom the client was involved. However, in light of the situation, this is not a significant shortcoming.
Cross References:
Nicolosi #16
Reviewed and Critiqued in:
Fine 1987 (Fine reviews this case as it appeared its shorter version in Stevenson & Wolpe (1960))
Cathy, I am anti-SSM (though I do not think of myself as anti-gay or anti-lesbian). I thought your comments were excellent. I think you did a better job of presenting Maggie's arguments than she did. I was really looking forward to Maggie presenting a long-form, cogent case against legalizing SSM, but I would agree that she failed. I thought some bits and pieces were very good, but in generally it was poorly organized and not particularly persuasive.
I appreciated your post, Cathy. I wanted to comment on the last part:
My view of marriage and family is very different from Maggie Gallagher's, but I do agree with her that a healthy society should ensure that children, in general, are raised by their mothers and fathers. The small number of gay couples with children hardly poses a threat to this social norm. Let's talk about how we can respect their rights, and promote more stable heterosexual families as well.
If you agree that it's most healthy for children to be raised by their mothers and fathers, then even if gay couples with children don't pose much of a threat to the larger social norm, they still subvert, by design, what is most ideal for those children. In other words, no children intentionally brought into a gay relationship get to be with their own mother and father. What about those children's rights? We should talk about how to respect their rights as well, probably by discouraging situations where we know from the beginning that they will never be raised by their own, married parents. (And yes, I'm equally concerned about the single-mothers-by-choice group.) It may not be possible to outlaw a given arrangement, but the law can have a role in the encouragement or discouragement of social choices.
Anonymous (the one who posted the research studies),
And your point was...?
I'm a statistician with several years in research. Case studies are the lowest on the totem pole in terms of research validity. The fact is, based on case studies, you CAN NOT EVER draw conclusions about populations of people. There is an exception to every rule, and those are usually the cases that are interesting enough to publish. I really hope you are not personally basing your view of whether or not gays can change their orientation based on these.
Z
Riskable, those things you mention (and thank you for mentioning them) are not inevitable. We can and should ban all forms of procreation that are not the union of a man and a woman. Then we can direct our research and our resources toward finding the causes and cures of real diseases that cause real suffering. It must be done. We can't pretend that the technology is in control of us, we are in control of the technology.
The ban would be effective, unlike trying to ban people from having sex, because it would be on scientists, labs, clinics, researchers, etc. They would be banned form the research, and punished with long jail terms. Other countries should be subject to sanctions (the UN banned cloning, and they would surely expand that ban to other procreation that they feel would disadvantage countires that would still rely on natural procreation.)
Kimberly:
So children raised by their own parents are the ideal? Then children reaised by adoptive parents are, by design, subverting that ideal. Perhaps they should be outlawed as well?
Big cities such as NY and LA are filled with teenagers who ran away from homes. Homes that were less than ideal....
What about all those kids in foster care -- did you just forget about them? Or because they don't have their natural parents, we'll just considert them somehow lost?
Look -- marriage may be one ideal, but there are many other ideals. And sometimes you just can't have the ideal -- sometimes there is divorce, sometimes one parent dies. What we ought to be doing is making sure every child has not the ideal, but the best chance available. Sheesh, even Dr. Laura, who thinks all gay are diseased and deformed, agrees that it's better a child get adopted by a gay couple than remain in foster care.
Regarding the posts showing that gay men might change their behavior -- first I notice these case studies date to the 50s. Things have changed quite a bit. The fact remains that the American Psychiatric Association, the American Psychological Association and the American Medican Association have all clearly stated that there is no credible evidence that gay people can change their sexual orientation, no matter how much YOU would like it. We can all admit that there is a portion of the population that is bi-sexual, and you can suppress the same sex desires if you try hard enough, but that doesn't change your basic orientation.
Every single reparative therapy association, such as Exodus, refuses to publish their "success" rates, and in fact they themselves are now admitting that changing your orientation may not be possible, and for others, it's a "lifelong" struggle.
And frankly, even if possible, what exactly is the point? why should anyone change their orientation if they are happy with it, as I am? You think I am going to give up my Judy Garland recordings, or my good taste in decorating, just so I can swill beer in front of tv set watching football? I think not!
revenant:
If Maggie said she was opposed to all employment discrimination laws, that's a libertarian position. But very few people take that position-- many more support such laws but just don't want them extended to gays and lesbians. The latter position is motivated by simple animus.
Further, I reject that even libertarians have nothing more to say about the matter now that sodomy laws have been overturned. (And by the way, Ms. Gallagher didn't even say she opposed sodomy laws.) Even hard-core libertarians should support civil unions, as a second-best solution if the government is unwilling to get out of the marriage business altogether. Further, hard-core libertarians should support gays in the military and some sort of ban on OFFICIAL discrimination against gays and lesbians.
Finally, a non-bigoted libertarian would at least personally condemn animus against gays and lesbians. He or she would not blithely align him- or herself with groups that specifically advocate bigotry against homosexuals, at least without personally repudiating those beliefs. Ms. Gallagher has done none of that.
The truth is, these sorts of arguments are more theoretical constructs than actual arguments. Sure, it is possible to be someone who opposes many protections for gays and lesbians without the position being motivated by animus. In the real world, however, few people do; and, in contrast, many people oppose civil rights for gays and lesbians because they hate and/or fear them, and hide behind the more "respectable" position of opposing gay marriage.
With respect to Maggie's argument the fact that infertile hetero couples are allowed to marry is not a bug it is a feature. Unless both partners are infertile, one of them has the ablitity to procreate, but are not. Basically if the couples are following their vows neither partner will have any children, so there will be less children without complete families. The fertile partner has found some to have sex with and society is safe because there won't be any children born out of wedlock.
I am guardly for gay marriage as long as it comes about by the legaslative process. I feel there would be too much fall out from a court imposing gay marriage because it would short circuit the debate amoung the countries citizens.
Maggie Gallagher is no libertarian, she's a traditionalist who apparently believes that marriage law as it's been handed down across the millenia doesn't need fixing.
It seems to me that libertarians should advocate the abolition of marriage as a legal construct rather than its extension.
But the bottom line on this discussion probably comes from the collision of the modern concept of marriage as the fulfillment of romantic love vs. the traditional notion that it's about children and inheritance. This change has much more profound consequences for society than gay partnerships which at most affect a tiny number of people.
Anon (one of them) said
IMHO, this is where federalism provides a solution. Let a handful of states (Vermont, Massachusetts) experiment to their hearts' content with SSM and other forms of non-traditional "marriage" (polygamy, polyandry, whatever) while the rest of us sit back and observe how it all plays out over a couple of generations. If at the end of that time, none of the harmful social effects that so many of us fear have come to pass, well, then, other states might also decide to change their rules regarding marriage. On the other hand, if SSM turns out to be a social disaster, then the disaster will be confined.
Certainly J. Brandeis's 'social experiment' school of federalist thought is implicated. However, I think the "full faith and credit" implications of marriage or marriage-like associtions creates problems. What happens when an LGBT married couple moves from Vermont to Ohio and wants to get 'divorced'? What happens when they move there when one gets a state job, and wants his or her partner to get in on family health benefits?
In my mind the most intractable problem created by SSM is the 'gaming' issue created. Of course, this issue exists even in a purely OSM regime (see Green Card. Actually don't, but you get the point.), but it is certainly possible that the explicit removal of traditional procreative roles will be the last straw in turning state recognized marriage into a legal ficion similar to incorporation. That might be a better argument for ending spousal benefits then for restricting SSM, however. If its wrong to discriminate based on sexual orientation, then it remains wrong regardless of the costs associated with rectifying that wrong.
It's a difficult question, and I think Cathy, in one post, does a much better job of laying out the potential dangers of SSM then MG did in a week at Volokh
Falwall said no, these are civil rights, and everyone should have them
I'm not sure why you feel Falwell's opinion is relevant to my comments. He doesn't speak for most conservatives or (to my knowledge) any libertarians.
As for employment, that argument of free association died in the 60s.
No, the right to free association died in the 60s. The argument that humans possess a right to freedom of association is alive and well, thank you very much.
the Civil Rights Act put and end to that argument.
By that standard, the Defense of Marriage Act has put an end to the idea that gays are entitled to marriage rights. So why are you still arguing that gays should be allowed marriage rights?
Perhaps because, like me, you don't think "Congress passed a law denying people their rights" means "any argument that people possess those rights is de facto invalid".
I'm a statistician with several years in research. Case studies are the lowest on the totem pole in terms of research validity. The fact is, based on case studies, you CAN NOT EVER draw conclusions about populations of people. There is an exception to every rule, and those are usually the cases that are interesting enough to publish. I really hope you are not personally basing your view of whether or not gays can change their orientation based on these.
I personally know a FORMER lesbian, something that homosexual activists insist cannot happen.
Instead they try to paint the thousands of Americans who have left the homosexual lifestyle as either liars or "not really homosexual in the first place." (IE: "No true Scotsman fallacy".)
Homosexuality is not an inborn genetic trait, no matter how much activists want to lie and pretend that it is.
Certainly J. Brandeis's 'social experiment' school of federalist thought is implicated. However, I think the "full faith and credit" implications of marriage or marriage-like associtions creates problems. What happens when an LGBT married couple moves from Vermont to Ohio and wants to get 'divorced'? What happens when they move there when one gets a state job, and wants his or her partner to get in on family health benefits?
Article IV Section I of the United States Constitution reads: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Congress has exercised the power outlined in Bold above with 28 U.S.C. §1738C, which states:
"No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
relationship.
The United States Supreme Court in Williams V North Carolina outlined the same principle: Article IV, 1 of the Constitution not only directs that 'Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State' but also provides that 'Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
In addition to this express statement in Williams, the United States Supreme Court has also ruled in two other important and relevant cases relating to this issue:
The first; Pacific Employers Ins Co V Industrial Accident Commission of California 306 US 493 (1939) The High Court held: "[W]e think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events."
The High court restated this principle in Sun Oil CO V Wortman 486 US 717 (1988) where it stated "The Full Faith and Credit Clause does not compel a state to substitute the statutes of another state for its own statutes dealing with a subject matter concerning which it is competent to legislate."
Activists seem to believe that the Full Faith and Credit Clause permits a single state to establish national policy. This contention is completely without merit. The Supreme Court of the United States has clearly established that “[T]he Full Faith and Credit Clause does not require a State to apply another State’s law in violation of its own legitimate public policy.” Nevada v. Hall, 440 U.S. 410 (1979)
Using the activist's erroneous interpretation of the Full Faith and Credit Clause, a single State could mandate that all the other Sovereign and Individual States recognize bigamy, polygamy, marriages between blood relatives or marriages involving minor children, despite the will of the People of those States, and despite the Public Policy of those States.
This is not a valid interpretation of the intent of the Full Faith and Credit Clause. Accordingly Just as Utah or Alabama does not have the right to legislate for California or Massachusetts, the reverse is also true. Under our system of government, with the power over marriage being delegated to the states, each state must make it's own policy with regards to the situation at hand.
On top of this, While Congress has exercised Constitutional power under the Full Faith and Credit Clause with 28 U.S.C. §1738C, that power need not necessarily have been exercised to have the effect congress wanted. Indeed it is somewhat redundant as there is an already established exception to the Full Faith and Credit Clause of the United States Constitution.
A longstanding important and time-honored legal principle called the "Public Policy Exception", allows states or nations that have a strong public policy exception to the laws of another state or nation, to enforce their own public policy on issues important to the people of that State or Nation.
The question to be asked by a Court confronted with Conflict of Laws between states or nations rests along the lines of: "[W] hat specific law should be applied to the case at hand?"
How does this relate to conflicts between the marriage laws of individual states? In this instance, it is rather simple as this issue is addressed in the Conflict of laws: The Restatement (Second) of Conflict of Laws #283(2) (1971) states the general rule as follows:
A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state.
State Constitutional Amendments, such as the one in question in this case, automatically meet the Public Policy Exception, as the citizens of that state have went to the extraordinary method of coding a particular policy statement into the State's Constitution. Likewise, Public Policy Statements in marriage statutes, that expressely detail the state's strong Public Policy in regards to this issue, would also qualify.
States do not have the right, nor does our Constitution permit, a single state to force it's public policy on another, or the nation as a whole.
Quote:
John Howard wrote: "We can and should ban all forms of procreation that are not the union of a man and a woman."
I have to ask... Why? What legitimate purpose would this serve? This language would certainly ban in-vitro fertilization.
Is there something un-ethical about a woman having a baby on her own without a father? Further still, what is un-ethical regarding a homosexual couple having a child together? What does the parents' sexual orientation have to do with effectively raising a child?
If your argument is that society will view them as "different" and/or this will somehow put them at a disadvantage over a heterosexual couple, then why stop at homosexual couples? This same argument was used in the defense of bans on inter-racial marriages. What about adoptions involving parents with a different skin color their their child?
The acceptance issue is legitimate, but not in the sense that we should revert our society to some sort of repressive pre-sexual revolution state. Codifying the moral values of one group (even if it is the majority) into law leads to both oppression and the retardation of societal progress. Not to mention that it has the immediate effect of labeling a group of people and placing them into a subclass ("Separate is almost always not equal").
Laws must be written with ethics in mind, not morals. Morals are personal and develop into a person over the course of their life from many sources. Ethics is based on logic and fairness.
The biggest argument that I see against SSM is precisely what you were talking about in your post. People feel that the governmental acceptance of SSM will somehow undermine their ability to induct children (usually their own, but I tend to see a lot of OPCS: Other People's Children Syndrome) into their idea of what makes an acceptable lifestyle. "If the government says it's OK, then it must be so."
This brings me back to how the problem of societal acceptance should be solved: With natural societal progress. As a society we need to stop demonizing homosexual activity. All it does is make it more difficult for completely innocent people to live freely without oppression.
Sorry, another comment:
Why adding sexual orientation to this list will suddenly break your back, I don't quite know....In fact, you probably already work or have worked with someone who was gay -- you just didn't know it
You have no basis for assuming I'm a homophobe. Do you assume that the members of the ACLU who defended the Skokie march were all, themselves, Nazis? For that matter, do you realize that the overwhelming majority of those Americans who favor gay rights aren't actually gay themselves? It is, shocking as this apparently must be to you, possible to support another person's rights even if you have no interest in exercising those rights yourself.
People have a natural human right to freedom of association. If a person decides he only wants to hire straight white men, or gay black women, or tatooed bisexual Chinese/Mexican Wiccans, that should damned well be his right. He'll just be missing out on a lot of talented employees who don't meet his criteria (plus a lot of people who DO meet his criteria but don't like his attitude).
I'd never voluntarily work for a company that refused to hire gays. I would also never voluntarily attend a Muslim religious service. I am nevertheless bothered by the government's decision to strip people of their right to discriminate, just as I would be bothered if the government decided to ban the practice of Islam. Neither decision would have any personal effect on my life -- it just bothers me when other people's rights are violated.
Anonymous said (A lot of stuff about DOMA)
Oops. That's what happens when you forget that laws have been passed since you took ConLaw. I stand very much corrected.
Cathy,
You and your readers should find this both interesting AND amusing! Enjoy!
And spread the word! I am opposed to outlawing gay marriage in Texas and would like to remain married besides!
Gus Van Horn
Anonymous (the one with the former lesbian friend)-
Activists tend to see things a little bit more black and white than necessary, because it helps promote their cause.
In reality, sexuality is a continuum. A lot of people are completely heterosexual, a few people are completely homosexual, and a fair number of people are somewhere along the continuum from almost completely heterosexual to almost completely homosexual. Like most things, it is easier to categorize people into 3 groups, rather than try to place where they really are on the continuum. It gets dicey, and people start talking past each other when they have different definitions for inclusion in these groups. So, based on what you said, I would say you define sexual orientation operationally (based on current behavior). By that definition, your friend certainly is a former lesbian.
I, on the other hand, define sexual orientation as a persons innate capacity for attraction to and romantic love for either the same or opposite sex. By my definition, your friend is bisexual because she has demonstrated the capacity for sexual attraction to and romantic love for both genders. The fact that she isn't currently interested in the same sex doesn't change that. By the same token, a gay priest is still gay, even if he remains celebate for the rest of his life.
Z
I appreciate your pointing out (quoting Mr. Easterbrook)that we singles may have cause to question why "people wearing rings get special deals while they do not." A question antecedent to whether gays should be able to get the benefits conferred by the government on married persons (I leave to the side benefits granted by society or religion) is what, if any, such benefits should be keyed to marriage (as opposed, e.g., to child-rearing) in the first place. If and when a rationale for such benefits is identified, it should be relatively simple ("relatively" being the key word, perhaps) to debate whether gays are within the scope of the rationale. To the extent that no such rationale can be identified, why would the answer be to extend them to married gays rather than to treat married and single people alike equally.
Cathy, I think you're basically right, except here:
I think Gallagher is probably wrong about the "de-institutionalization of marriage," if by that she means that the marital "benefit package" will be abolished.
Your argument is that because our system generally makes it difficult to take away benefits that exist, the above won't happen. But if you give the same benefits to non-married people as to married people, that is taking away the marital benefit package. It simply becomes a "benefit package," not a "marital benefit package."
Would this hurt marriage? Absolutely. No, people aren't going to get divorced because of it, but they'll be less likely to get married. What's the number one rule of economics? People respond to incentives.
We've already taken the sex benefit away from marriage -- that is, nonmarital sex is neither unusual nor frowned upon nor penalized -- so how much is left?
Thanks for the comment, everyone!
I hope to reply to all the salient points that have been raised (though you'll have to forgive me if I'm a bit slow -- I'm composing another blogpost on this debate, and I have a deadline in my paid work), but right now I want to tackle the issue of whether Maggie Gallagher is an anti-gay bigot. Not that my purpose in getting into this debate is to defend Maggie's honor, but just because I think some of the points here are worth answering.
To be honest, I think that until the same-sex marriage debate began in earnest, gays and gay issues really weren't on Maggie Gallagher's radar screen too much. The same is true of many other categories of people -- for instance, women who have no interest in having children. Her "issue" is the protection of mothers and children, as she understands it.
Maggie's primary association is with the Institute for American Value, which, as far as I know, has not engaged in gay-bashing rhetoric. I don't know the extent of her association with Focus on the Family and the FRC. However, it's true that she could and should have done more to distance herself from gay-bashing rhetoric on the right. Stanley Kurtz, another leading critic of same-sex marriage, has, I believe, stated his opposition to anti-sodomy laws and has criticized anti-gay discrimination in several other areas as well.
A couple of other quick points. Randy R says:
... the best way is to look at the last time the definition of marriage was changed, when interracial marriage was legalized. Yes, there were plenty of objections, and dire predictions, but few today would argue that the problems in today's marriage stem from that decision.
I agree that there are analogies between same-sex and interracial marriage -- freedom to marry the partner of your choice is the obvious issue -- but I don't think legalizing interracial marriage "changed the definition of marriage." First of all, anti-miscegenation laws did not exist in all states, and where they did exist they were often introduced at a fairly late date. Second: under anti-miscegenation laws, marriage was not defined as "the union of a man and a woman of the same race." (I understand that many miscegenation statutes were limited solely to bans on marriages between whites and blacks.) These laws barred racially mixed couples from access to the existing definition of marriage. Note that interracial marriage was explicitly banned; same-sex marriage was not, because it wasn't even a concept.
Now, SSM advocates argue, often persuasively, that all the salient features of traditional definition of marriage do apply to same-sex couples -- we just didn't realize it until recently. And that may well be true. But still, the change is far more radical with SSM. For one thing, SSM requires us to change the basic language of marriage, which is based on sexual dualism. After the legalization of SSM, Massachusetts changed its marriage license forms, replacing "Husband" and "Wife" with "Spouse A" and "Spouse B."
Z says:
Married couples are responsible for each other, financially and otherwise. It allows you to designate who is, legally, your most immediate family. For example, my girlfriend is highly at risk for alzheimers. If it surfaces, by then, it is highly unlikely she will have any surviving immediate family. If she isn't married and she gets the disease, she is the states responsibility. If we were able to marry, she would be my responsibility. Having more couples take on legal responsibility for each other is absolutely in the public's interest.
Excellent point, but doesn't it also bring us back to Gregg Easterbrook's question about quasi-marital benefits for singles? On February 27, 2004, The New York Times published a front-page article by Jane Gross about a new trend of single, divorced, or widowed middle-aged and elderly women teaming up with female friends to face aging together -- often jointly buying a house and making legal commitments to each other (so far, unregulated). Is it also a state interest to encourage such partnerships?
More later.
kipp:
Adoptive parents with a genuine interest in caring for their children are as good as the best biological parents - and a good deal better than all of the mediocre and bad parents who are free to have as many children as they want. The alottment of genitalia in these relationships seems entirely beside the point.
The intuitive, received-wisdom that a mother and father are the "best" parents is coincidentally quite self-serving to hetero, coupled commentators. There may be good reason to support that notion "in general" but those of us who aren't also hetero and coupled - but who do have genuine interest in nurturing our children - deserve more justification than received wisdom and biological determinism...
First of all, I will note for the record that I am happily single.
Second: without in any way putting down adoption, it's important to remember that it is very seldom the first preference of heterosexual couples. In most cases it is a contingency response to infertility, which is generally perceived, I daresay, as nothing short of a tragedy. (Though some couples who have biological chlidren of their own adopt orphans or abandoned and neglected children out of altruism.)
In addition, I hate to point this out, but all other factors being equal, children raised by adopted parents appear to have somewhat more negative outcomes than children raised by their biological parents.
Of course, this doesn't mean that adoption is a bad thing. The vast majority of adopted children did not have a choice between adoptive parents and similar biological parents; adoption was almost certainly the best outcome possible for them. And of course there are many wonderful adoptive parents (I know some of them personally), and some crummy biological ones (ditto). I am saying simply this: recognizing and respecting the benefits of adoption should not detract from a cultural consensus that, generally speaking, being raised by two biological parents is the best setting for children.
On Full, Faith and Credit:
From Tax Board of California v. Hyatt (2003): 'full faith and credit command "is exacting" with respect to a final judgment rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, Baker v. General Motors Corp., 522 U. S. 222, 233, but is less demanding with respect to choice of laws.'
Doesn't this imply that states can opt out of recognizing an out-of-state SSM (choice of laws) if they have a DOMA, but not opt out of enforcing the judgment of an out-of-state divorce of a prior SSM?
RE: I strongly believe that same-sex couples should have the same legal rights as opposite-sex couples.
What about other than couples? What about three or more? If we're going to consider a new form of marriage (a man married to a man) then why not consider an old form of marriage: polygamy!
Of all the arguments I've heard in favor of allowing the new form of marriage, they also support polygamy. So . . . why not consider it?
Suppose Larry Ellison wants to have a half-dozen wives. Is that anybody's business? Suppose Carly Fiorina wants a couple of husbands. Why not?
Why deny these people the right to marry who they want?
The arrogance of this discussion is staggering. The arrogance of Ms. Young is using the words "anti-gay bigot" to describe the traditional religious proscriptions against homosexuality is breathtaking.
Within a space of about 30 years, the leftist intellectual crowd has decided that the experience of their few years on earth trumps all of human traditional and religious history.
You know, from a legalistic standpoint I have just about no opinion on this issue. I am, however, astonished by the assurance of these posters that, in their short time on earth, they've resolved a moral dilemma that humans have struggled with for millenia.
Don't you see the potential deadly consequences of this arrogance?
I am truly amazed by the hubris. Reminds me of snot nosed teenaged kids who've discovered that their parents' experience is useless and stupid.
Riskable had to ask..."Why [ban attempts at procreation that are not the union of a man and a woman]? What legitimate purpose would this serve? This language would certainly ban in-vitro fertilization."
No, IVF combines a sperm and an egg, ie, it is the union of a man and a woman.
I don't think you understand that I am only talking about things like combining two eggs, or using stem cells to try to allow two men to procreate, without input from a woman (except as a surrogate womb).
This isn't science fition, scientists are working on just this sort of thing, and same-sex couples are eager to try it as soon as they can. They don't like having to use a third party, they would like to both be the parents, just like men and women are.
The purpose of banning non man-woman procreation is the same as the purpose of banning cloning and banning animal-human hybrids and genetic engineering. I suggest reading Bill McKibben's "Enough" for a pretty good exploration into the reasons why we should take control of reproduction back from the scientists. Basically, we need to say "natural man woman procreation, where we are the children of real people, is Enough, we don't need to improve this system. Actually, it is not only Enough, it is Perfect that we are all the children of a man and a woman" (McKibben doesn't get into the issue of same-sex procreation himself, but I infer that it would be on the other side of the Enough point, even though it doesn't involve attempting to improve the child's DNA)
It is unethical to attempt these things not only because of safety issues, but because of many other issues, from global fairness and eugenic concerns, to issues about how it would affect the relationship of the sexes, as well as all the reason people cite about SSM.
Laws must be written with ethics in mind, not morals. Morals are personal and develop into a person over the course of their life from many sources. Ethics is based on logic and fairness.
Yes, it would be an ethical law that must be written, to prohibit attempts at procreation that are not the union of a man and a woman.
"If the government says it's OK, then it must be so."
This is why the current lack of a ban is particularly disturbing. Same-sex procreation is NOT OK.
Cathy, please address the issue of how reproductive technology fits into this debate.
Would the questions about the ethics of using technology to allow people to procreate with someone of their same-sex be a "supportable basis" to ban their marriage? Certainly, there's a question of whether or not to allow SSP, right? If we don't allow it, then the rights of same-sex couples will not be equal to the rights of both-sex couples, right?
You ought to love this issue. It's would be irrational and unreasonable not to discuss it.
Stephen: if someone's religion condemns homosexuality as a sin, let them preach against it. Fine by me. When they want to use the power of the law to persecute gays (and I don't just mean the gay marriage ban, but sodomy laws as well), and to force moral codes based on their religious beliefs on people who don't share those beliefs, I'll call it anti-gay bigotry, thank you very much.
Is it your position that an animus against a particular group can never be called "bigotry" if it is rooted in traditional religious proscriptions? Were those mullahs in Iran who recently orchestrated the hanging of two teenage boys for the crime of same-sex sexual relations merely engaged in an exercise of traditional religious morality? And no, I'm not comparing the Family Research Council to the Taliban. I am well aware of the difference between the two. I am merely responding to your claim that it "arrogant" to regard a belief rooted in traditional religion as bigoted.
FYI -- until recently, the word "bigotry" actually meant religious fanaticism and intolerance, not prejudice.
To John Howard: I know, from the threads at TVC, that same-sex procreation is "your" issue. To be honest I have not given it much thought, and have nothing to say about it at present.
Cathy, I’ve lived in gay communities in San Francisco and New York City for 35 years.
How exactly does a discussion of gay marriage morph into whether I approve of the Imans?
You’re Russian. Given the experience of Russian, I would think you’d be a lot more careful in these assurances that jettisoning the moral compass of the past has no cost beyond those that can be calculated in a legal sense.
The Russian revolution was preceded by 60 years of intellectual discussion that, to me, sound suspiciously akin to the discussion you’re engaging in. Advocates of revolution assured the Russian people that belief in God was just a superstition that served no purpose in regulating society. Everything would be cured simply by ending the monarchy. The religious and traditional beliefs of the peasantry were just foolish nonsense beneath the dignity of Moscow dwelling cognoscenti.
Among the earliest decrees of the Bolsheviks were directives that freed people from the bonds of marriage and assured the equality of women.
In retrospect, the Romanovs seem like lambs compared to the Bolsheviks. The destruction of conventional morality by the Bolsheviks led to a society of drunks and bastards. A country which once fed itself was plunged into starvation.
I’m not saying that gay marriage will cause any of these things. I’m saying that the assumptions behind this discussion… that conventional morality and religious belief are sort of popular superstitions that clever intellectuals should override… are very dangerous.
I’m saying that you’re playing with fire, that you have no idea what the consequences might be, and that there is very little reason to be humoring this discussion. After all, it really only concerns less than 4% of the populace, probably a lot less. The gay marriage controversy was contrived by the New York Times, and pushed through the Massachusetts courts by an elite few.
The arrogance of this discussion, I’ll repeat is an insanity. I suggest that you all take a deep breath and consider your mortality and fallability.
It's only "my issue" becuase no one else is thinking about it.
Think about it, Cathy, and it can be your issue too. I'm not at all possesive of it, and I need some help. Please think about it. Marriage is about whether or not two people can have children together, and if we say they can, then they are supposed to marry and be bound together because of that possibility sometime in their future.
Even hard-core libertarians should support civil unions, as a second-best solution if the government is unwilling to get out of the marriage business altogether.
That is, in my opinion, incorrect; it is akin to saying "libertarians should support universal government-funded health care as a second-best solution to getting rid of Medicare and Medicaid". The only legitimately libertarian position on gay marriage is "the government shouldn't be involved in marriage". I support gay marriage because I'm not entirely a libertarian.
Further, hard-core libertarians should support gays in the military
Not necessarily. Libertarians who feel that the allowing gays to openly serve would harm military discipline, and therefore the defense of the country, could quite legitimately oppose allowing gays to openly serve. The military is not a welfare program -- it exists for one purpose only (from the libertarian perspective) which is to defend America against outside threats.
He or she would not blithely align him- or herself with groups that specifically advocate bigotry against homosexuals, at least without personally repudiating those beliefs.
How do you know she hasn't personally repudiated them? If you're saying she should have made a *public* declaration to that effect, I strongly disagree. If you think a person is wrong about issue B, you don't need to condemn them before you can team up to work on issue C. Hell, I'd NEVER be able to work with a fundamentalist Christian or Muslim if I was held to that standard.
"Revenant, we'd like you and Fred to work together on the new database project"
"Ok, but first I need to say that I find the Southern Baptist attitude towards homosexuality and the teaching of evolution to be abhorrent".
... yeah. I don't see that happening.
Do Libertarians think men should be able to have children with their sister? Do Libertarians think scientists should be able to create human-animal hybrids, or genetically modify embryos so that they might have longer lifespans or greater intelligence, even though these experiments might also result in very short lifespans and very low intelligence?
Stephen: following your logic, we ought to regard equality for women as a bad thing because it was advocated by the Bolsheviks.
Tsarist Russia was a hell of a lot better than Communist Russia, to be sure, but it was also a society rife with religious intolerance (including anti-Semitic pogroms), illiteracy, superstition, and brutal oppression of women (wife-beating, among the peasantry, was regarded as entirely normal). Are you saying that all these things should have been left unchallenged because, by golly, they're "traditional"? That the people who succeeded in liberalizing Russian society in the last 60 years of Tsarist rule were responsible for paving the way for violent takeover by the Bolsheviks? (Personally, I think the problem is not that Russian society changed too much, it's that it didn't change enough.) Incidentally, if you think that rampant drunkenness in Russia is a product of Bolshevism, you really need to read more. (And for your information, I am not "Russian," I'm a Russian-born American citizen.)
I believe that gay marriage is a debatable issue, not a cut-and-dried matter of "equality" and "civil rights." However, the fact that it affects only 4% of the population is irrelevant. Jews make up only 2% of the population. So what? We do not allocate rights on the basis of numerical representation.
John Howard: I'm not a complete libertarian. I think we should tread very carefully when it comes to new reproductive technologies. It would certainly be unethical to allow the use of any reproductive methods that were likely to result in birth defects or other health risks.
With all due respect, Stephen, I think you are willfully selling the other side short in stating that:
I’m saying that the assumptions behind this discussion… that conventional morality and religious belief are sort of popular superstitions that clever intellectuals should override… are very dangerous."
First, on the issue of homosexuality, conventional wisdom and religious belief are not monolithic. I grant that there are majority and minority ranges of thought. But the issue here is primarily legal or political, not religous: how do homosexuals fit legally within our nation as citizens. Granted, this is a social issue as well.
Second, equality arguments are based on the position, with which Cathy does not agree, that the right to marry the person who you choose is a fundamental right, and guaranteed by the equal protection clause, under either strict scrutiny or a rational basis test. It is a tenet of the American experience that the religious or moral beliefs of one person, even if also held by 90% of the rest of the populace, are insufficient grounds for overriding the rights of another person. Thus, the proper area of argument is not based on any understanding of conventional morality or majority religious belief, but on determining whether the right is fundamental. The right must take precedent over the good.
Only if it is determined that the right to marry is not fundamental, is it appropriate to look at broader social arguments for and against legislation on the issue.
Third, the existence and duration of a social institution is insufficient evidence of its worth. While you speak as a traditionalist, I think it is worth pointing out that a strict traditionalist is different from a strict conservative. Conservatives tend to be realist, and to recognize that change is always occurring, but that it is not always progress. We recognize that merit is not determined by duration alone. At best, duration is a flag that signals the need for further investigation as to cause. As Cathy pointed out, many social ills have been very durable. The true conservative, in addressing change, seeks to slow it down so that it is deliberate, so that it may be channeled such that the good of the existing is maintained and there is opportunity to observe the consequences of the change and to determine if there are costs which outweigh the benefits.
Finally, I would echo Cathy on her clarification of bigotry. You are not a bigot for thinking homosexuality is wrong or a sin. You are a bigot when you attempt to legislatively impose those beliefs on others of differing beliefs. Bigot is not a nice word. No one likes to be called one. but it is an apt description for many, although certainly not all, as cathy has pointed out, who oppose granting marriage rights to homosexuals.
With regards to Stephe, who thinks this whole argument is stupid and unnecessary:
Too bad. The fact is that there are quite a few gay people who are living just as monogamously as straight people. But the issue that should concern is that many of these gay couples currently have children. How they got the children really doesn't matter, does it? But they have them.
So the state can either officially recognize those children as products of a marriage, or it doesn't. In the end, who is harmed by not recognizing the children? Why the children of course! They are at a distinct disadvantage when it comes to inheritance rights, whether the both parents adopted or only one did, Social Security survivor benefits, military survivor benefits and so on.
These numbers will be growing in the future. So you may wish the issue away, but it's going to be only bigger and bigger until there is a resolution.
As a side issue, regarding gays in the military; The ONLY reason the military has for excluding 'out' gays is that they will affect the coherence of the unit. The US Army-Navy War college came out with a report about two years ago. Turns out that Britain, Israel, Canada, New Zealand and Australia all recently allowed openly gay servicemen into their ranks (In Britian, there is even a special recruitment drive). The affects on moral have been zero. The conclusion of the War college was that gays should be able to serve openly, and there will be no detriment to the army.
Something I don't understand is this -- what, exactly, is the argument for granting legal recognition to monogamous homosexual marriages, but not to polygamous marriages?
I mean, I favor both -- or, more specifically, I think people should have freedom of contract, and be able to enter into whatever social relationships they wish, with whatever defined roles and rights they wish. But almost all gay marriage proponents, when confronted by opponents who insist that their arguments would logically lead to legal recognition of polygamy, are quick to state that OF COURSE polygamy shouldn't be legal.
The problem, as I see it, is that gay marriage opponents are entirely right -- there is no logical argument for why gays have a right to have their marriages recognized and polygamous spouses don't. The thing is, polygamy is even more strongly opposed than gay marriage is, and I don't think gay marriage proponents want to pay the public relations cost of having to fight for legalized polygamy.
But doesn't that pretty much defeat the whole "this is about rights" thing? Imagine if Martin Luther King had marched for equal rights for black people, all the while insisting that he wasn't expecting Mexican-Americans to be treated decently.
There are plenty of arguments against polygamy.
First, it's a red herring. Everyone seems to be raising the polygamy issue EXCEPT supporters of gay marriage. I have yet to see any organization or blogger or media person or gay rights activist argue that we want gay marriage, and then polygamy next. No one is. No one, that is, except for gay marriage opponants.
So are regarding polygamy, we are all in agreement. No one wants it (at no one in the gay movement. Perhaps there are some in the Mormon movement who want it, but I havne't been keeping tract of that).
Second, opponants of gay marriage often argue the slippery slope -- once we grant gay marriage, then polygamy will follow. If that is truly the worry, then we should just have a constitutional amendment that states polygamy in these united states is prohibited. That would still allow gay marriage, but prohibit polygamy. Problem solved.
Third, there are strong arguments against polygamy as an issue of women's rights. It means that when the husband dies, either the women divide the assets equally, which means they get a smaller share of the estate and women in monogamous relationships, or they are divided unequally, which is even worse. Additionally, in polygamous marriages, you often have many children amongst many mothers, which makes matters worse. Moroever, our pension and social security systems are set up for one spouse only to benefit once a person dies -- in a polygamous marriage, benefits not calculated to support more than one spouse would be insufficient, raising the risk that the children will be indigent. Perhaps the best argument, though, is that polygamy has often been compared with slavery. Women are often forced into marriage (which is why it is so underground in Utah and other states), and are prevented from getting a divorce. If women had a choice, I dare say very few would ever want to be part of a polygamous marriage.
But don't ask me about this. Ask Maggie Gallagher, who has written that she believes polygamy is better than gay marriage, because "at least with polygamy, you have a mother and father." And heck, if SHE can't come with arguments against polygamy, then she's an obvious blowhard.
Please read this post written by Andrew Sullivan regarding Maggie & Co. I lifted it from andrewsullivan.com:
My (Sullivan's) debate with David Blankenhorn on the matter of marriage rights is now posted. In many ways, I think the most telling part of the conversation was at the very end. Blankenhorn was asked a simple question by a member of the audience: since you oppose marriage rights for gay couples, what do you support for them? What's amazing is that after decades of thinking about marriage and several years mulling the issue of marriage for gays, David still had no answer. Frum has no answer. Gallagher has no answer. Kurtz has no answer. I have to say I find this quite extraordinary. It is as extraordinary as the social right's complete indifference to the revolution in gay culture and society these past two decades. I just read Rick Santorum's book about conservatism and the "common good." It's better than I expected and has many pages devoted to excluding gay couples from civil marriage. But again: I could find no practical, constructive suggestion from Santorum on what he believes should be our civil policy toward gay couples. Should they be deterred from settling down? Should they be encouraged to make faithful commitments? Should their households, when they include offspring, be legally protected? Silence. Nada. Zip. The "common good" does not include gay people or their kids. For much of the social right, homosexuals simply do not exist. Our reality is so threatening to them that they cannot even begin to construct a viable social policy toward us. And that's why they're losing this debate. In many ways, they haven't even joined it.
revenant and randy, I have linked my article on SSM and polygamy from March 2004 in a separate post. Will add more later.
Randy, thanks for reposting the Sullivan comment. I was going to link to it, actually.
Interesting comments.
I have to disagree about Maggie Gallagher. I have been reading her columns in the NY Post and other places for years and I would say she is fairly obsessed with homosexuality in a negative way. I don't believe in calling people "bigots" casually as a way of ending an argument. On the other hand, when someone is willing to believe the worst stereotypes about a group of people, and perpetrates untruths about them, I think there is a definite bias. I don't have an archive of her columns to prove my point, but I remember columns about lesbian parenting, and particularly about AIDS, filled with very slanted anecdotes and illogically linked assertions which were highly prejudicial. So much of the "anti-gay" rhetoric depends upon untruths, which can't be believed by those who have been exposed to the realities of gay and lesbian life.
Despite some of her slanders, I believe that Gallagher thinks she is well-intentioned. I think in her world view, God (or nature) has determined certain roles for men and women, and homosexuality is morally and psychologically wrong, an aberration like a clover with too many leaves, tolerable, yet somehow also potentially infectious.
I think this is entirely self-consistent and sincere, though I don't share it. However, there is a hysteria. As if once the virus of homosexuality is loose it will be so irresistible everyone will succumb. I don't believe this. 3-5% of the population (more or less) might be significantly predisposed to homosexuality. I think greater respect for gay relationships will improve the lives of that minority without hurting the majority.
As you say in your comments, the appeals of heterosexuality are not going to fade away, it certainly makes procreation a lot easier!!
I can only speak of my social cohort (in my late 30s, major urban area.) I would say virtually every gay man and lesbian I know is in a long-term monogamous relationship, either with children or planning to have them. My synagogue (a conservative Jewish temple) performs commitment ceremonies and has plenty of kids from gay families in the religious schools. This is the reality on the ground. She can't really prevent all of this from happening, whether SSM happens soon or not.
Not one of you understood or even bothered to address what I really said.
I think this discussion is a complete fraud. It's a continuation of the discrimination mania of the 60s, and I really believe that every one of you is holding on to that precisely to enjoy the sense of grievance.
I've lived among gays for 35 years. The numbers of gays who want to marry and actually have a possible partner are miniscule. This debate is being nurtured almost entirely by the desire to continue to find a discrimination grievance. Or else, the correspondents to this post want to deliberately encourage people to be gay. After this exercise, we will move on to the next discrimination mania. It's become loathesome and tiresome, a weird sort of religion.
Cathy Young, you ignored what I said and issued your usual screed. If the populace is 4% gay, that means that less than half of those are adults, and half are women. So what does that leave? We're talking about far less than 1% of the populace. At what point does the discrimination mania simply become an excuse for grievance mongering out of habit? Answer: it already is.
This is a spoiled brat obsession. And, Cathy, your obsession with it is a pretty good argument that we may have been better off with the old arrangement between men and women, despite your predictable attempts to demonize that past as little more than a nightmare of violence and abuse.
My favorite example of the absurdity of this discussion is this statement: "Third, the existence and duration of a social institution is insufficient evidence of its worth." Really!
Jesus Christ! Folks, go home and watch a football game. Cease saving the world! Cease dreaming up phony causes! Cease imagining that some authority figure, or the government is impeding you from having a happy sex and love life.
The arrogance of this discussion is almost an insanity. You've hypnotized yourselves into believing that you're making sense. Intellectuals have a habit of doing this to themselves. This is really quite wacky, and would be humorous, if you weren't busy tinkering with the basic framework of human society.
I'm not a complete libertarian. I think we should tread very carefully when it comes to new reproductive technologies. It would certainly be unethical to allow the use of any reproductive methods that were likely to result in birth defects or other health risks.
So, what does that mean? Does saying it would be unethical to allow mean you think we should not allow it, ie, that Congress should pass a law against it, to keep scientists from attempting it? There are clearly high risks of birth defects and other problems to someone created in some way other than sexual reproduction, as well as many other issues that deserve discussion. The debate about human cloning is not entirely about health risks.
I just think that as being allowed to have children is a right that a man could have with a woman, we should be asking NOW if he should also have that right if a man. If not, then it's folly to call the relationship marriage, and it would change marriage at its core. If we do decide to allow it, then we definitely should allow SSM, or it would undercut the message that people that procreate together should be married first.
Stephen, if you find this argument tiresome, then please just go home and watch a football game. No one is demanding that you participate. That way, people like me for whom the issue is important, can discuss the issue rationally.
Yes, I'm gay, and I would like the opportunity to get married, and I have lots of gay friends who would like to get married. Some have even traveled up to Massachussetts to tie the know. Hooray!
Stephen,
I have an "obsession" with same-sex marriage? Oh for Pete's sake. I have dedicated a pretty small portion of my writing to it. And in case you haven't noticed, I have been arguing for giving more consideration to anti-SSM arguments, rather than simply dismissing them as rationalizations for bigotry.
The issue of same-sex marriage is not going to go away just because you hide your head in the sane and pretend it doesn't exist. In case you haven't noticed, SSM is now legal in Massachusetts and would be legal in California as well if it hadn't been for Gov. Schwarzenegger's veto. It is also legal in Canada and several European countries.
If the populace is 4% gay, that means that less than half of those are adults, and half are women. So what does that leave? We're talking about far less than 1% of the populace.
What on earth are you talking about? I wasn't aware that same-sex marriage was for gay men only. Your "arguments" are getting more and more bizarre.
bk -- yes, I'm familiar with this noxious species. Sigh.
Lots of interesting comments here -- a very busy day for me today, but I hope to get back to the discussion tonight or tomorrow!
Everyone seems to be raising the polygamy issue EXCEPT supporters of gay marriage
I'm a supporter of gay marriage, and I think polygamy should be legal too. So now you've heard somebody support both. In any case, the fact that few gay marriage supporters are willing to support polygamy is exactly what I was talking about when I said that most of them were being inconsistent about this alleged "right to marriage" that they claim to be entitled to.
If that is truly the worry, then we should just have a constitutional amendment that states polygamy in these united states is prohibited. That would still allow gay marriage, but prohibit polygamy. Problem solved
The question is how you, as a gay marriage supporter, can morally justify supporting a Constitutional amendment banning polygamy. Because what you suggested pretty much sounds like "I'm fine with polygamists getting screwed out of their rights so long as I get mine".
Third, there are strong arguments against polygamy as an issue of women's rights
No, there aren't, because marriage in this country is entirely consentual. You can't violate your own rights. Your argument is no different from that of social conservatives who argue that consentual gay sex harms the gay men involved in it.
Great post. This is the best post I've read so far that honestly looks at some of the consequences of same-sex marriage. (And I support SSM, btw). Just that all (or some) of the consequences that you pointed out might very well happen. Or they might not. We just have to wait and watch.
A word about adopted children. It seems that even if overall, children born into two-parent mature biological families do best, those adopted into two-parents families do MUCH better than those who remain with single teenage birth mothers. This is according to a study in 1995 from New Zealand in the Journal of Child Psychology and Psychiatry. It seems that adopted children's poorer outcomes than those in biological families have to do not with the quality of adoptive parenting but with genetics ("birth" mothers have higher rates of maladjustment than the general population) and possibly prenatal exposure (more birth mothers smoked, for instance).
Emilia Liz (emilializ@hotmail.com)
Don't let this important debate die. Everyone who's commented here has raised some very good points, and they should be preserved for anyone in the future who needs to learn the arguments on both sides. The best place to do that is at http://www.livingvote.org/. There's a Prop 8 debate active there right now.
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