Further Thoughts on Perry

Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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28 Responses

  1. Michael Drew says:

    This is the only issue I recall in which you posit the idea of an “ideal state” that we can consider, but that we oughtn’t hold the existing one up to in earnest critique and tear it to shreds for falling short. I applaud you doing that here, and I’d applaud you doing it elsewhere, as well.Report

    • Jason Kuznicki in reply to Michael Drew says:

      @Michael Drew,

      I am not sure I follow you. Could you rephrase your first sentence? I’m not just being pedantic. I don’t follow the relationship among the parts.

      I remain deeply agnostic about all ideal states, and I thought I’d posited one here only because many other people had done the same — “If only we had civil unions for all!” is a pipe dream of plenty of people all across the political spectrum. It’s also a cheap way to defer any form of marriage equality indefinitely. That’s exactly why I reject it.Report

      • Bob in reply to Jason Kuznicki says:

        @Jason Kuznicki, are you distinguishing between “a civil marriage regime,” (“the best we can do”) and “civil unions,” (“a pipe dream”)?

        How do you see civil marriage differing from civil unions?Report

        • Jason Kuznicki in reply to Bob says:

          I certainly am distinguishing between them, because they are two factually distinct things.

          A civil marriage regime is one in which the state recognizes things called civil marriages, which are not religious in nature, and which confer certain rights and responsibilities to the couples in question. A civil marriage regime currently exists in every state in the union, some with and some without same-sex marriage. At the federal level, only heterosexual civil marriages are recognized; DOMA forbids the recognition of same-sex civil marriages by the federal government, even while these marriages are recognized by some state governments.

          Civil unions are not marriages and do not typically confer all of the same rights as civil marriages, particularly at the federal level, where civil unions are generally not recognized. Proponents of the “civil unions for all” plan suggest that the federal government and the states should all agree to stop offering civil marriages to anyone, and should instead offer civil unions to both hetero- and homosexual couples. Under their proposal, these civil unions would confer the exact same rights as marriage, albeit without using the divisive word marriage.

          Word choice aside, this is not what civil unions do now, and I find it politically a very difficult sell, for the reason I mentioned above.Report

      • Michael Drew in reply to Jason Kuznicki says:

        @Jason Kuznicki, I was under the impression you posited it because you agreed with them in theory, and I am applauding your identifying that notion as Utopian, and would applaud further such open acknowledgement of Utopian tendencies in your thought.Report

        • Jason Kuznicki in reply to Michael Drew says:

          @Michael Drew,

          I consider myself among the more anti-utopian of libertarians. I’ve even had some affinity for agnarchism — the idea that I don’t know whether, in utopia, we would need a government or not.

          What I think I have are principles that can be demonstrated to be true, but by no means do I have a road map for enacting them perfectly. I’d be happier if more libertarians would admit as much and refrain from saying “in my ideal society we would…” Let’s focus on the present, and on the clearest and most obvious abuses of liberty instead.Report

  2. North says:

    Great points on Maggie. She’d have wilted like a hothouse flower in a winter gale on the stand.Report

  3. Bob says:

    @Bob, I’d only point out that civil unions could be structured as to provide the same rights and obligations as civil marriage, as in the United Kingdom. I understand, however, that the term marriage carries more clout.

    “Civil partnerships in the United Kingdom, granted under the Civil Partnership Act 2004, give same-sex couples rights and responsibilities comparable to civil marriage.[1] Civil partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner’s children,[2] as well as responsibility for reasonable maintenance of one’s partner and their children, tenancy rights, full life insurance recognition, next-of-kin rights in hospitals, and others. There is a formal process for dissolving partnerships akin to divorce.”


    • Jason Kuznicki in reply to Bob says:


      All this is true enough and clearly works in the UK. But in the United States, things sit differently politically. National civil unions for gays and lesbians would likely not be a permanent solution here if it even is one on the other side of the pond, which after all it might not be.

      There is a very strongly ingrained suspicion here of “separate but equal” anything, unlike in the UK, where the concept doesn’t have quite the same odium. There’s also a much greater psychic value attached to marriage here, one that impels gays and lesbians not to be so happy with anything less. I wouldn’t expect a compromise like this one to last very long.Report

      • Katherine in reply to Jason Kuznicki says:

        I don’t entirely get the “seperate but equal” argument against civil unions.

        In segregation, “separate but equal” referred to facilities and government services. Eg, segregated schools were inherently unequal and were always going to be so because black schools would always be underfunded by racist white governments. If you have separate services for two different classes of people, the minority group will always have inferior ones.

        But the argument on civil unions is about a legal status, not facilities. If the government passes a law saying that people in civil unions have all the same rights as people in marriages, then civil unions are, for all intents and purposes, equal to marriage.Report

        • Dan Miller in reply to Katherine says:

          @Katherine, If that’s the case, then the question that immediately springs to mind is “why have a separate status at all”? Given the history of the issue, gay rights advocates are totally justified in being suspicious that the answer to that question is some form of anti-gay bias.Report

          • Bob in reply to Dan Miller says:

            @Dan Miller, another question that occurs to me, if separate but equal had been scrupulously enforced and funded would that have been okay? Without going back and looking at the Brown v Board decision the Court found “separate” inherently unequal.Report

  4. Rufus says:

    Thanks. I haven’t had time to read the ruling, but I thought this was very helpful.Report

  5. James Hanley says:


    I join you in your surprise at how bad the pro-8 argument was. Before Positive Liberty died, I wrote a piece arguing that after having students write for several years about same-sex marriage, I thought I’d seen all the arguments against it, and that there were no good ones. The arguments in this case reinforces my certainty that I was right. No argument was made here that I hadn’t seen my students make, and the arguments that were made weren’t made with any more sophistication than I’d seen from my students. I hope Justice Kennedy is taking notes.Report

  6. BobN says:

    “And this is the very best you can do?”

    In their defense, all the really good expert witnesses were on European holidays with their rent-boys.Report

  7. quincyscott says:

    “An ideal state might grant only civil unions, consisting only of negative rights and default legal understandings regarding property disposition, child custody, medical and legal decisionmaking, immigration/residence rights, and a few other very low-cost, easily understood guarantees of noninterference in family life. Churches and families would decide on a case-by-case basis which relationships they would elevate to the level of marriages. These institutions wouldn’t always agree, but then, they wouldn’t need to.

    In reality, no one is going to tolerate all existing “marriages” being retroactively demoted to mere “civil unions.” They’re certainly not going to tolerate it in the name of a political-theory abstraction like all of the above. Maybe the best we can do, then, is a civil marriage regime for all, and religious marriage according to our particular churches and beliefs. That’s just what Perry offers.”

    These last two paragraphs sum up my exact views on this issue, something I have tried to communicate with far less eloquence. People can certainly maintain their own religious biases, as long as they don’t hurt anyone over them. But how people choose to love, commit themselves, define their families and divvy up their property is nobody else’s business.Report

  8. William Malmstrom says:

    “Or she might have said that kids need a mom and a dad. ”

    The response to this should be: How will marriage equality for gay people PREVENT any given children from having a mom and dad??Report

  9. Chris says:

    One reason Maggie didn’t testify is that she’s not really an “expert” on anything except how to read talking points. If she had testified, she just would have been another David Blankenhorn — a political hack with an axe to grind, not a scientist like the plaintiffs’ experts. She probably wouldn’t have had a tantrum on the stand like Blankenhorn did, but at the end of the day Walker probably would have found that she’s not qualified to offer opinions in psychology, sociology, or any other field of study.Report

    • John D in reply to Chris says:

      Let me enlarge on Chris’s comment:

      Mrs. Srivastav has a BA in Religious Studies. She has done no research concerning marriage. Her credentials are shakier than Blankenhorn, who at least has a MA in Comparative History (and a thesis on cabinetmakers).

      Mrs. Srivastav is a pundit, nothing more.Report