Same-Sex Marriage and Discrimination

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85 Responses

  1. Avatar Boegiboe says:

    David,

    I appreciate the reserve and respect with which you approach this topic. I think there are important problems with each of the two of your pieces you referenced.

    The first is regarding your comments about marriage as a cultural institution. Your implication, if I understand it, is that, whereas some benefits and recognitions of the government are matters of law alone, yet some are cultural institutions that the law has simply had to address in limited ways, but does not really define or regulate, at least in the minds of members of our culture. Marriage is one of these predominantly cultural institutions.

    My difficulty with your piece stems from your use of the word “ours.” I am not clear (and perhaps you yourself were struggling) on who is included in “ours.” Is American culture “mine”? Does it belong to my husband? My daughter? It may be you intended exactly this ambiguity, but then I would challenge you that your piece was an excellent example of writing that can be read however anyone wants to take it.

    Second, and more serious, is my problem with this statement about anti-miscegenation statues:

    “Whether or not you believed in the category of race, and whether or not the category of race was meaningless or not, the statute either included or excluded you.”

    Once again, one pronoun is the problem, but here I think there is a lot more behind it. You claim that anti-miscegenation statutes include or exclude “you”, and based on your other comments, this is a singular “you” who is a member of a class protected by the 14th amendment. Because a pair of people, in their pair-hood, cannot be a member of a protected class.

    But, anti-miscegenation statutes never addressed a single type of person. They barred the union of certain types of mixes of people. They didn’t bar the Black man from marrying the White woman, nor the other way around–they barred anyone involved from allowing the marriage itself to happen.

    The only way that mixed-race marriage was protected by the 14th amendment was by the following algebra:
    A wants to marry B.
    A is a member of a protected class relative to B.
    Law C bars B and A from being legally married.
    …therefore…
    Law C discriminates against A as a member of a protected class AND against B as a member of a protected class because A is different from B in a protected way.
    =Loving v Virginia.

    If gender is a protected class, there is no way this algebra fails to hold for same-sex marriage.

    To go out on my own limb, I would suggest that what is behind the opposition to same-sex marriage is a deep-seated belief that gender should NOT be a protected status. I posit that the people who think SSM is wrong, whether or not they give reasons for their thinking, universally believe men and women are fundamentally different, and should do different things in our society. That isn’t to say that people who support SSM don’t believe that. I’m just saying that denying the validity of SSM requires the belief that men are not equal to women as caregivers, parents, lovers, and/or breadwinners.

    P.S. FYI, in case you hadn’t seen it in an earlier comment, I am Jason Kuznicki’s husband. Just for full disclosure. 🙂Report

    • @Boegiboe,

      As I understand it, sex is given less scrutiny under 14th amendment jurisprudence than race is. I may be completely misremembering it, but I’m pretty sure that one of the arguments against the Equal Rights Amendment was that it would necessitate gay marriages. If sex were a class subject to strict scrutiny (as the ERA would have had it) the algebra would carry over, but as it stands I’m not sure that it does.Report

      • Avatar David Schaengold says:

        @James Vonder Haar, I’ll respond in more detail later to these helpful criticisms, but since it takes no time to clarify a point of fact, you’re correct, James, that while laws regarding or impacting racial differences are given “strict scrutiny,” laws regarding or impacting gender differences are given “intermediate scrutiny.”Report

      • Avatar Dave says:

        @James Vonder Haar,

        In Varnum v Brien, the Iowa Supreme Court applied intermediate scrutiny to sexual orientation as opposed to strict scrutiny and that was more than sufficient to strike down the prohibition against same sex marriage on equal protection grounds. The court never had to determine whether strict scrutiny was appropriate.Report

        • Avatar David Schaengold says:

          @Dave, Interestingly, the point of Boegiboe’s comment is that current marriage law discriminates on the basis of gender, not sexual orientation.Report

    • Avatar David Schaengold says:

      @Boegiboe, Thanks for your response, which challenges my post on a number of substantive points. I probably didn’t make clear enough that the first link wasn’t meant to be an argument about same-sex marriage at all but about the way it is being debated. My objective in writing it was to try to change that debate by pointing out that the debate really is about the worth of committed homosexual relationships, not about fairness. One of the strongest arguments for recognizing same-sex unions as marriages is that they already are like marriages. When one partner is sick you inquire after him or her of the other, you invite them jointly to events, and so forth, or at least you should. Given this contingent reality, the argument would go, it is a kind of cultural self-contradiction not to recognize them. I at least find this argument much more convincing than the argument that the addition of a particular class of relationship which has come into being only recently to the category we use to single out certain sexual relationships for praise is a matter of basic fairness.

      About the question of whether marriage law that doesn’t recognize same-sex unions discriminates on the basis of gender there’s more to say, but I’ll have to say it later.Report

      • Avatar Boegiboe says:

        @David Schaengold, I understand now about the first piece. I hope you’ll forgive my misunderstanding of the point of the piece when I suggested it was overly ambiguous. I think your list of examples about how same-sex relationships are essentially already like marriage might have been a good addition to the original piece.

        I don’t think it’s up to other people, though, to decide the worth of my relationship to Jason. I expect people who know me (or want to know me) to know also that Jason is the most important adult in my life; that he is my companion whenever possible, and that, among other things, he should be invited with me to events where spouses are invited. As you suggest, it is a cultural contradiction for people who don’t know us to pretend that we aren’t married, or that laws could be changed to make us not be married.

        On my second point, I was really digging into the specific comment of yours that I quoted, which said that laws against miscegenation explicitly targeted individuals because of their race. I wanted to call attention to the fact that this was not the case; that those laws discriminate against the couple because of their mix of races, not one member or the other of the couple. Anti-SSM laws do the same thing, but against a couple because of their mix of genders.

        It seems to me, therefore, that these laws are wrong because they bar people from associating in certain ways in particular types of groups. Marriage is a status recognized by the government in certain legal ways, and I don’t see how a legal status that is OK for adult men to be a part of, and OK for adult women to be a part of, can have any rational basis for excluding any particular mix of adults of these genders. So, the question of level of scrutiny doesn’t even come up.Report

  2. Avatar Murali says:

    Anti-miscegenation laws relied extensively on the concept of race.

    Current laws rely extensively on the concept of gender/sex. To whit, whereas anti miscegnation laws did not prohibit blacks from marrying, it prohibited blacks from marrying whites. Similarly current laws do not prohibit men and women from marrying, it simply prevents men from marrying other men and women from marrying other women. The parallels with anti-miscegnation laws are so extensive that the reasoning for and against can be lifted wholesale with just minor changes in terminology. i.e. if we replaced “different race” with “same sex”, how has the issue changed?Report

  3. First, dozens of states (not to mention DOMA at the federal level), either through legislation or constitutional amendment have “formally” banned same sex marriage. This makes your argument moot or incredibly abstract.

    Second, even if the law is not explicit and “formal” – if you are legally prevented from doing something I’m not sure how relevant the distinction between “formal” and “informal” discrimination is. Much of “Jim Crow” was informal. Although the law might be “formally” non-discriminatory, it was informally discriminatory as blacks, though not denied justice de jure, were denied justice de facto, as part of a consistent government program. Although interracial marriage might have been formal discrimination, I’m not sure the distinction was necessarily important to those being discriminated against. Furthermore, if anything, informal discrimination is actually more invidious than formal discrimination. Would you rather have a law to point to that is explicitly discriminatory, or have people respond to your de facto discrimination by claiming that de jure, the law does not discriminate and, therefore, you have nothing to complain about.

    Third, the history of marriage saw all sorts of discrimination, both formal and informal throughout its history. For centuries marriage law referred to “husband” and “wife”. For centuries, people would say that marriage law was non-discriminatory. After all, marriage consists of husbands and wives, right? Yet, we came to see that invidious de facto gender discrimination arose out of formally non-discriminatory legislative language, and thus begat the replacement of “spouse” for “husband” and “wife” in marriage related legislation. Again, the fact that the discrimination wasn’t formal, but was hidden by seemingly benign and neutral language in the end was even more invidious than formal discrimination.

    Fourth, it is the very fact that marriage legislation is no longer gendered that makes a switch to same-sex marriage no big deal legislatively. No changes in marriage law must be made to make same sex marriage legal except to simply allow it. You concede this point, but again, it does not help your argument, but undermines it. If the “formal” law seems to allow for same-sex marriage (which, because it is gender neutral, it does), then to deny same-sex marriage is even worse discrimination than the “formal” discrimination of anti-miscegenation laws.

    What could be more exclusionary than for people to deny that you are being excluded at all?Report

  4. Avatar Jason Kuznicki says:

    The difficulty I have — I can’t quite say it’s a problem — is that marriage is a conglomerate entity. It contains both civil (that is, state) and private (that is, religious and family) aspects. These have never been convincingly disentangled in either the pro- or the anti-SSM camp, I don’t think. But they need to be if we’re going to really understand what’s going on here.

    As such, I find that talking about marriage as “ours” is not terribly productive. Which part do you mean? I can’t say that civil marriage is fully mine at all, for example. Yet I’ve thought of myself as privately married for many years.

    Other examples abound. Some racist churches won’t marry blacks and whites, although the mixed-race couple is free to get married at many other churches and in the eyes of the law. The same is true of same-sex marriages in many jurisdictions, though not with the federal government.

    Until we recognize the conglomerate nature of marriage — some parts private, some parts civic — we’ll mostly just talk past one another.Report

    • Avatar Murali says:

      @Jason Kuznicki,

      Question, in american law, do you not have separate civil and religious ceremonies? At least in Singapore, the state only recognises the civil ceremony, without saying anything about the religious ceremony.Report

      • Avatar Simon K says:

        @Murali, In American law, the state licenses legal marriages. Officials of religions can marry people if they are appropriately licensed and the state recognises that, without the need for a separate civil ceremony. Nothing stops religions from “marrying” people who can’t legally be married in the eyes of the law (several gay couples and one straight couple of my acquaintance have done this) but the state doesn’t recognise those marriages because there’s no marriage license.Report

        • Avatar Jason Kuznicki says:

          @Simon K,

          Exactly. I’ve often wondered why we haven’t clearly separated the civil and religious ceremonies.

          In American law, the civil and religious ceremonies are deemed to happen concurrently. That’s right — you actually had two marriages. (Did you know?) But you had one officiant, in one time, in one place, taking one action.

          It’s enough to make a Thomist’s head explode, but I digress. (Hi, Bob!)

          Although I understand that the unified ceremony doesn’t violate the Court-established tests for the First Amendment, it does seem like it would work no harms to separate them, and it would do much to clarify the nature of the institution, which the current setup seems determined, almost, to hide.Report

          • Avatar Lyle says:

            @Jason Kuznicki, My simple solution is we change the name of the document the state issues to a civil union license, which takes effect upon being signed by both parties after being issued (no ceremony required). Marriage is then whatever the parties and their family/friends want to make of it.Report

            • Avatar North says:

              @Lyle, Sadly it’s pure political poison Lyle. You’ll change the name of the document that heterosexual couples use only over the smoking carcasses of every politician in Washington and every religious and media figure in the country.Report

            • Avatar Jason Kuznicki says:

              @Lyle,

              What North said. I have no intention of waiting that long for equality.Report

    • Avatar Rufus says:

      @Jason Kuznicki, I was thinking sort of the same thing last night after reading this post.

      As far as I can remember, when I first understood “marriage”, as a child, it was as a union of two people who love each other and have agreed to live together for the rest of their lives. This was how my parents explained it to me. They didn’t talk about it as a union in the eyes of God, even though they were married in the Church. It’s possible, I guess, that they didn’t talk about that because their own faith was lapsed. But, really, I think it was just for the sake of accuracy. There were already (this was the early 70s), plenty of people who were married in the eyes of the state, but not in the eyes of the Church. They just go to the courthouse or get a humanist officiant or whatever. The broader definition is therefore just more accurate in that it covers the full spectrum of people who are considered “married” in the country. Given the pantheon of religions, the civic definition is probably easier to conceptualize as well.

      This doesn’t mean that the religious definition need change, which strikes me as a matter for churches to decide amongst themselves. But if the state definition is non-religious, and that’s how I’ve understood it for over thirty years, the question for me then becomes whether or not homosexuals are capable of either feeling romantic love for one another or making romantic commitments over the long term. I think there are plenty of (heterosexual) people who understand homosexuality as a sort of sexual rebellion against the natural order and probably don’t believe there’s a romantic component. But, when you’re familiar with people who are openly gay, it becomes harder to buy this. You see people in relationships who seemingly love each other and want to make the commitment and the state definition seems like it logically already includes them.

      Now, I don’t want to say that homosexual relationships are identical to heterosexual relationships- the different mix of hormones probably rules that out. But the differences don’t strike me as significant enough to rule out the civil definition for gays.

      Or, at least, that’s how I explain my own understanding to myself. To be honest, I never cared about the issue before it came up in the western democracies. And, I’m not sure I care about it now. However, I have found myself, to my own surprise, quite often forgetting that same sex marriages are not licensed in some parts of the US. It’s come to seem fairly normal, and I think it’s because the larger civic definition was always the main way I understood “marriage”. So, for me, the state hasn’t kept up with the institution.Report

  5. By your definition, same-sex marriage looks like formal equality to me. Just as interracial couples wanted race to be removed from the marriage laws, gay couples want sex removed from the marriage laws. On a formal basis, changing “two people of the same race can marry,” to “two people can marry,” looks precisely analogous to me as changing, “two people of the opposite sex can marry,” to “two people can marry.”

    On this theme, it’s worth noting that Proposition 8 specifically mentioned and banned same-sex marriage, as do many statutes passed in other jurisdictions. The case is much easier to make in light of such statutes.

    I think this illustrates how unhelpful the distinction between formal equality and other kinds of equality is. Excluding gay couples from marriage is fine, until you actually claim that you’re excluding gay couples, and then it becomes illegal. I think if we go down this path we come up with some counterintuitive results. If the distinction really matters, then there’s a substantive difference in the legal regime between California five years ago and California after prop 8. The first is fine because it doesn’t explicitly mention same-sex couples, but the latter is problematic because the discrimination is mentioned in the statute.

    Finally, your statement that marriage is ours to define is just… well, surprising, given that the debate is about who to include and not to include. And at least a smidge insensitive. Suffice it to say that as a queer, I don’t particularly feel that I’m included in the the “our” that denotes the collective ownership of marriage.Report

  6. Avatar Robert Cheeks says:

    Is there a reason, legal, moral, or otherwise, why three people who truly loved each other could not be joined in holy, or otherwise, matrimony? And, outta curiosity, what’s the accepted librul position re: inter-specie marriage?
    I’m only being partially snarky here because the delightful legal discourse above seems to point to a decidedly slippery slope.
    Now, I’ve got to go buy a boa and get ready for a parade…I do love parades.Report

    • Avatar Jason Kuznicki says:

      @Robert Cheeks,

      Depending on your definition of “holy,” three people could certainly be united in holy matrimony. Whether they could be united in a civil marriage is another question entirely.

      I don’t know what the libruls think, but this classical liberal already weighed in on civil polygamy — claims in favor of it don’t arise out of deeply held, generally shared social values or out of the process of immanent critique. The same is true of interspecies marriage.

      Claims for same-sex marriage arise out of a conflict among several of our more or less deeply held values. We have various ways of resolving that conflict before us now, and we’re discussing. Claims for polygamy are raised either merely as hypotheticals or, at best, are drawing on legal and cultural traditions far removed from our own.Report

      • @Jason Kuznicki, I think your reply to Bob misses a key component which is that society is going to have to weigh in formally on the desirability of monogamy, regardless of gender. Without that formal declaration i think the slippery slope is just that. Beyond that, it is going to be interesting to watch homosexuals, who believe their relationships are completely normal and natural, try to explain to potential bisexual and heterosexual polygamists why their relationships are not.Report

        • Avatar Jaybird says:

          @Mike at The Big Stick, so the argument is that if we allow gay marriage, we’ll have to allow polygamy and since we can’t allow polygamy, we can’t allow gay marriage?

          Couldn’t we argue that if we never allowed mixed-race marriage, we’d never have the gay marriage debate and so since mixed-race marriages led us closer to polygamous marriage, those were a mistake too?

          Or is that just nuts?Report

          • @Jaybird, I never said we can’t allow gay marriage – I just think that unless we’re willing to stake out a pro-monogamy position now, we can expect more challenges.Report

            • Avatar Jaybird says:

              @Mike at The Big Stick, what do you mean “we”, white man?

              Maribou and I have staked out a pro-monogamy position. First marriage for both of us!

              It’s those folks out there with starter marriages and those folks who, you have to understand, got into their second marriages to get back at the person who was in their starter marriage and so the third marriage is the one that needs to be counted that are the ones screwing things up for the “pro-monogamy” crowd.

              You know, the leaders of it.Report

        • Avatar Rufus says:

          @Mike at The Big Stick, I hear what you’re saying, but it always makes me nervous when we start saying that society needs to weigh in formally on something. I feel like I can make up my own mind about monogamy without society weighing in formally on the topic. Nevertheless, as far as I know, society is heavily weighted towards the pro-monogamy camp, and it’s hard to imagine that changing even if society becomes more pro-homosexual-monogamy.Report

          • @Rufus, I agree that society prefers monogamy, but given the poll numbers we could also say the majority prefers heterosexual marriages only. I just don’t see a legal way to limit marriage to two partners only given the revisions to marriage law that are occuring today.Report

            • Avatar Simon K says:

              @Mike at The Big Stick, Question – If there weren’t stable, otherwise conventional same sex partnerships out there, do you think the courts would be able to find no rational basis for limiting marriage to straight couples?

              There’s endless evidence you could use to limit marriage to two partners if rational basis review was applied. There simply are no stable, conventional poly families and that would be quite enough.Report

            • @Simon K,

              I think you’re going to have to back up such a broad statement. There are thousands of poly family in the US and millions worldwide. Surely there are plenty of stable ones.

              Also, I don’t think the ‘stability’ factor is legal criteria. otherwise why marriage for gay men with the low monogamy rate among them? Why allow lower class Americans to marry with such a high divorce rate? The govt has to assume every marriage will turn out perfectly when making law, not citing the ones that don’t.Report

        • Avatar Jason Kuznicki says:

          @Mike at The Big Stick,

          If you want to advocate polygamy, go ahead. It’s a free country.

          Otherwise, perhaps you could explain why you do not support it. (I’ve already done that; see above.)Report

        • Avatar Robert Cheeks says:

          @Mike at The Big Stick, Mike, how would ‘society weigh in formally’ in the matter of homosexual marriage? Isn’t that question addressed by the legislature, the courts, and the state referendums?Report

    • Avatar North says:

      @Robert Cheeks, To quickly fill in a hole that Jason skipped Bob, the accepted “librul” position as I understand it on both interspecies marriage, furniture marriage and child marriage is that one of the two entities married in such unions is inherently unable to give informed consent. Thus any of those aforementioned unions would be inherently acts of either despicable violence or meaninglessness (in the case of inert objects) perpetuated on the non-consenting entity.Report

      • Avatar Robert Cheeks says:

        @North, Thanks North, that makes sense for this time. However, do you think, assuming you ‘progressive/librul/commies’ continue to dominate society that it’s possible the ‘consent/age’ criteria could be, shall we say ‘modified’, in whatever direction? What I’m arguing is that, even though I agree with your ‘consent/age’ paradigm that fact is that the cultural ‘norm’ is flexible, changable, e.g. relative. And, as you know that concerns me because it means that ethics/morals/communal conduct declines into a function of some form of domination whether it’s intellectual or through violence.Report

        • Avatar Robert Cheeks says:

          @Robert Cheeks, North, also I want you/Jason and whoever’s outta the ‘closet’ around here to comment on the idea of a homosexual civil union. I don’t have any problem with a legal ‘union’ and youns can call it marriage if it trips your switch or you can get a librul/commie Lutheran/ Presbyterian/Anglican preacher to go along.
          I really don’t thing homosexual couples should be discriminated agaisnt legally e.g. in terms of inheritance, or in any legal activity common among heteros.
          Now I do have a problem, as a Christian, in acknowledging this ‘union’ as a ‘marriage.’ And, that’s for the biblical teaching on the sin.Report

          • Avatar North says:

            @Robert Cheeks, Perhaps consent ages may be modified in the future Bob? I don’t know. I’d say it’s kind of libel to accuse the left of that. Child brides are more of a religious right thing really.

            Civil unions have been an idea I’ve been sympathetic to and certainly in the late 1900’s and early 2000’s they probably would have ended the discussion WRT to gay marriage. Unfortunately there’s no trust on the issue now. The civil unions that were enacted were promptly attacked by ballot initiatives by right wingers or hollowed out into empty useless shells by right wing politicians so no one really believes that they’d be offered as an honest solution. Maybe during the Republican political dominance of the Bush era civil unions would have been a good idea but with full civil marriage increasingly within their grasp why would gay marriage supporters suddenly accept a half measure from a decade ago?

            I remember Jonah Goldberg wrote an article on NRO back in the era of the first Vermont civil union where he mused that all the howling and screaming the right was putting up against civil unions risked having their entire position on marriage in general being overrun, turns out to have been rather prophetic. Personally my major interest is being able to legally keep my psychotic (rabidly religious) mother in law out of me and my husband’s legal affairs without having to shell out ten grand and being told that if I got the wrong judge the whole thing could get heaved into the trash. Politically speaking I suspect the civil unions may be past their best by date. If they are going to be sold as a compromise it’d have to be a right wing politician proposing them and considering the dominance of the social right in the party what do you think those odds are?Report

          • Avatar Jason Kuznicki says:

            @Robert Cheeks,

            If civil unions are unlike civil marriages, then I do not want them. If civil unions are like civil marriages, then there is no need for a different set of words.Report

        • @Robert Cheeks,

          I find that pretty unlikely. Cultural conservatives have an unfortunate tendency to assume that an overturning of their values means a descent into no values, when in fact it simply means that a different value system has been adopted. The changes in the sexual ethic have tended toward more permissiveness toward consensual actions, but also more condemnation for those actions that are between partners or within relationships that are of questionable ability to consent. The taboos around having sex with someone much younger than you are much higher now than they were even fifty years ago, to speak nothing of the time when child brides were the norm. Those societies that tend to be more accepting of homosexuality, sex outside of marriage, and non procreative sex acts tend also to be the most vigilant about protecting its youngest members from sexual abuse. So if the liburul commies continue to reshape values around sex, I think the trend shows that we’ll see a strengthening of the taboo around sex with minors.Report

    • Avatar Francis says:

      @Robert Cheeks, the legal reason is that state law (i’m personally aware of California’s law, and I suspect it’s true in every state) limits civil marriage to two people.

      Want to create legal polygamy? Go for it. It took the gay community about 50 years to go from open discrimination to open acceptance. Polygamists face an even harder task (even though there are far more biblical references to polygamy) because many of the legal issues that are automatically addressed by a two-person marriage (inheritance, decision-making) become much more difficult in a triune relationship.Report

    • Avatar Simon K says:

      @Robert Cheeks, Yes. We don’t have social norms for polygamy, polyandry or polyamory. I don’t know any polygamous families but I do know some polyamorous ones, and their most distinguishing features (beside the obvious) are the never-ending ever-proliferating lists of rules these people have about who does what with whom and when. And even then their lives are constant swirl of drama as one person or another’s expectations about what was going to happen got breached, leading to more rules and still further drama. As a consequence most such arrangements end up mired in nastiness and misery. That’s at least partly because there are no social rules or expectations such families can adopt to make their relationships work. Given that there is no useful template for plural marriage our there that we could adopt into law, there’s no way we could make the institution work.

      That’s quite the opposite of same-sex marriage, where gay and lesbian couples have for many decades now openly (and before that tacitly) adopted the norms of heterosexual marriage, and they’ve done so successfully to the extent that it now seems odd and unfair that these relationships are treated differently.Report

  7. David – I’m glad you’re working through this. I have cited your old Plumb Lines post on the comparison between SSM and anti-miscegenation laws many times. Great stuff!Report

    • Avatar Robert Cheeks says:

      @Mike at The Big Stick, David, I agree with Mike. You should follow up with a discussion on the nature of the sexual sin, the ever popular ‘libidon dominandi,’ and the concurrent insight provided by the Adamic Fall (or why none of us want to go to Hades) and the commonality, regardles if we’re homo/hetero, of the distortion of sin in the category of ‘representative humanity.’Report

      • Avatar Jaybird says:

        @Robert Cheeks, I, very much, do not want “sin” to have a legal category.

        Give one to “harm”. Give one to “Rights”. Please don’t give one to “sin”.

        You might be amazed at what becomes a “sin” tomorrow.Report

        • Avatar North says:

          @Jaybird, Jaybird, keep in mind that Bob is not a big fan of the enlightenment compromises so you two may be parting company on first principles here.Report

          • Avatar Robert Cheeks says:

            @North, Yes, the big “E” begins the institutionalization of a ‘closed’ philosophical system that had the deleterious effect of hypostatizing the tension of existence. But, like all human endeavors there were positives.
            First principles have lines-of-meaning. Perhaps, the LOOG might explore these.Report

            • Avatar North says:

              @Robert Cheeks, I’m gonna have to read a lot more if I hope to understand all the stuff you say sometimes Bob ol boy.Report

            • Avatar Boegiboe says:

              @Robert Cheeks, what do you mean when you say “hypostatize the tension of existence”? Do you mean “accept as truth that reality exists independent of perception”? And perception here could be the perception of God, I suppose. Or am I way off the mark?Report

            • Avatar Robert Cheeks says:

              @Robert Cheeks, North, you get me all excited and off I go…!
              Boegiboe: To ‘hypostatize the tension of existence’ is, in this particular instance, for something or someone to treat either pole (immanent/transcendent) of the tension of existence as if it they were independent entitites. The ‘tension of our existence’ is described or bounded by the poles of immanence and transcendence. It is an existing/functioning categorical explication of our existence. Our Greek palsies discovered this ‘existence’ as they discovered the ‘nous’ during the Axial Age when the Israelites were in the desert engage in pneumatic irruptions…it was a time when man and God drew closer in freedom and in love. Heavy stuff…dude.Report

            • Avatar Boegiboe says:

              @Robert Cheeks, Thanks, Bob. I can’t say I understand for sure. It’s possible I take for granted that the “immanence” of reality has, is, and always will be the case, given that it goes on no matter how many people live and die.

              Transcendentalism, for me, is the idea that our wills have effects outside of those created by our own bodies. It makes me feel more “free” to think that way, and so it helps me to live actively and in brotherhood with my fellow Oms.

              But, as far as hypostatizing which pole of existence is true, it isn’t necessary to prevent that to gain all the benefit of understanding both poles.

              I thought everybody knew that 🙂Report

          • Avatar Jaybird says:

            @North, I see these things not as “enlightenment compromises” but as incomprehension in the face of such things as the Lisbon Earthquake.

            When you stand back and say “I cannot comprehend the mind of God” but say it in sorrow rather than wonder, you’re stuck forging your own (dare I say) existential response from the granite of the world rather than joyfully getting rid of everything that doesn’t look like a proverbial elephant.

            If you know what I mean.Report

        • Avatar Robert Cheeks says:

          @Jaybird My point re: ‘sin’ was in regards to a philosophical/spiritual dialectic. However, isn’t the codification of our ‘law’ in many instances a reflection of societies understanding of ‘sin’ interpreted as the cause, or one of the causes, of social disorder?Report

          • Avatar Jaybird says:

            @Robert Cheeks, I see you putting the cart before the horse.

            The things that cause society to break down are codified by the powerful as “sin”.

            The problem is that, historically, there were a lot of false positives so that (YAY I GET TO BRING THIS UP AGAIN!) shrimp were considered abominations, a guy who has sex with his wife when she’s riding the cotton pony has the couple “cast out from their people”, how blasphemy is a death penalty-worthy crime, prohibitions against wearing mixed fabrics, and that whole “sodomy” thing.

            Let me tell you a story.

            You know me, I’m a big fan of debating scripture. One of the pieces of scripture I debated once was on the topic of the Wedding at Cana and the whole “turning water into wine” thingamabob. The debate was *NOT* whether such a thing “really” happened as it was when we debated with Brother Chris, but whether Jesus would really have turned water into wine when he could have turned water into non-alcoholic grape juice or a tasty raisin paste.

            Have you had this particular debate? Witnessed it?

            Anyway, I quoted John 2:10 as evidence that, yes, people back then were familiar with drinking wine and they sure as hell knew the difference between wine and grape juice.

            I received the answer: “I know in my heart that Jesus wouldn’t turn water into wine.”

            Now I look at the Christian attitude towards Levitical “sin” and, once again, we see this pop up. How does God feel about the surf and turf? Well, you have to understand, we live under a new covenant now… How does God feel about mixed fabrics? Well, you have to understand, we live under a new covenant now… How does God feel about exile for couples that make the beast with two backs whilst the wife has her muse? Well, you have to understand, we live under a new covenant now…

            And how does the Christian know these things?

            Of course he knows them in his heart.

            Which brings us back to homosexuality.

            The christian knows in his heart that God, seriously, totally still means *THAT* one. But!, they point out magnanimously, they no longer believe that homosexuals ought to be put to death!

            And how do they know that?

            Well, they know it in their heart.

            Gotta say, Bob… the codification of “sin” into law strikes me as a whole lot of people throwing rocks for stuff they know in their heart.

            I ain’t a fan.Report

            • Avatar Robert Cheeks says:

              @Jaybird, Check out your state/local/fed ‘laws’ and let me know if you think that many or most of ’em may be grounded in the Judeo/Christian codex?
              Re: Leviticus, I’m going to see if I can drag the beloved into this. I’m with the ‘new covenant’ crowd, which as a former Evan you’re intimately aware of, even if you no longer believe…life is all about choices. She’s working now, so maybe I can get her to respond this evening?Report

            • Avatar Jaybird says:

              @Jaybird, Check out your state/local/fed ‘laws’ and let me know if you think that many or most of ‘em may be grounded in the Judeo/Christian codex?

              Until recently, we had blue laws. You couldn’t sell a car or a bottle of booze on Sunday.

              That strikes me as being fairly rooted in the Judeo-Christian tradition. Kinda.

              The problem is that when you look at stuff like laws against murder or laws against theft, you can look at the Code of Hammurabi or stuff that China did or stuff that they did in the wacky Druid parts of the North and you find out, yep, they had laws against Murder and Theft too.

              So it’s not that our laws are rooted in the Judeo-Christian tradition but deeper than that.

              Sucessful societies root themselves in a number of things. Ideas of “Rights” and “Property” and “Harm”. Judeo-Christian society, as an example of a successful society, did so… as did bunches of successful societies that had never heard of The Book until it was brought to them.Report

            • Avatar Robert Cheeks says:

              @Jaybird,
              “So it’s not that our laws are rooted in the Judeo-Christian tradition but deeper than that.” As I related to North, if you follow Spengler, Toynbee, and Voegelin you’ll see that the period from about 800-500 BCE, the so-called Axial Age, provided for mankind an epoch in which we continue in terms of the classical Greek discovery of the ‘nous,’ (Reason in tension with the divine ground) and the pneumatic/spiritual revelations of the Israelite desert fathers (and, yes around the world there were additional ‘irruptions.’ )
              This Western version of ‘reason/revelation’ provided a divine oriented ‘truth’ that taught us the direction of order. Further, it provided the means to seek out and participate in the metaleptic (divine/human) relationship that reveals and answers to one degree or another, depending on the person and his/her choices, the fundamental questions dealing with the intrinsic nature of being(man) e.g. perhishing/imperishing, order/disorder, reality/non-reality, etc.
              If we are captured by one or other of the various ideological disorders of our age it becomes evident that in many/most cases the individual finds that all experiences (phenomenological) of divine reality are eclipsed and the symbols for the transcendent becomes deformed, sometimes in terms of propositional metaphysics, sometimes as a longing/yearning for ‘doctrinal ideology.’ Here, it is a common example to see an individual moving toward one ideological statist position or another, or expressing a certain anxiety at questioning a ‘revealed’ truth. We see this phenomenon as far back as the collapse of the polis in classical antiquity..it is common and can easily be overcome.
              And gee, I haven’t even mentioned the Logos!Report

            • Avatar Jaybird says:

              @Robert Cheeks, I’m totally with you Bob… except that at the same time that we’re discovering the nous, we’re also discovering things that absolutely are *NOT* nous.

              Mixed fabrics, for example.

              I suppose that we can just as easily argue that, hey, they were a desert people. They *NEEDED* these rules under the covenant they held with God.

              And, of course, we live under a new covenant now.

              Which brings me to ask how do you know what we’re able to toss away from the old covenant and what we, seriously, totally need to keep?

              Is it stuff you know in your heart?Report

            • Avatar Robert Cheeks says:

              @Jaybird, My brother, I am cutting hay and racking wood…will continue this evening and plead with she-who-must-be-obeyed to address your ‘covenant’ critique.Report

            • Avatar dexter45 says:

              @Jaybird, Congratulations on saying something eloquently where I would have been sarcastic.Report

            • Avatar Jaybird says:

              @dexter45, I prefer my sarcasm to be more of the “icebox” variety.

              When one goes to the icebox for some chicken later that evening, the thought “Hey, that’s not what he meant!” goes wandering through one’s mind.

              If I can’t do that, I figure that I might learn something if I tackle the subject seriously or, at least, sharpen what I already know.Report

  8. Avatar Simon K says:

    I think there are problems with both of these arguments.

    The first one, as I see it, is essentially the argument from cultural tradition. I see this as being the strongest argument against gay marriage, actually, but I still don’t think it works. Traditions do change. If we’re going to respect tradition we have to face that and answer the question “when should traditions change?” coherently. Within the larger western tradition one answer is “we should try changing traditional practises when they seem to be harming people and not doing any good”. I think the argument we’ve reached that point with regard to the standing of gay couples is very strong. If we can’t change traditions when their defenders can’t produce any arguments in their favour at all, when can we change them?

    I’m afraid I don’t understand the distinction you’re trying to make in your second argument at all. Anti-miscegenation laws allowed black (and white) people to marry. They just prevented them from marrying white (or black) people. Current marriage law allows gays to marry. It just prevents them from marrying other men. I don’t see the distinction you’re trying to make, I’m afraid – in both cases the targets of discrimination still have access to the institution, its just not very useful to them.

    The difference you seem to be really aiming for is that race is a problematic category and gender isn’t. Certainly race is a problematic category, but I’m not really sure that this difference really makes a difference (leaving aside the question of whether gender is also a problematic category – certainly there are people who’ll argue that it is).Report

  9. Avatar dexter45 says:

    Jaybird Nuance is nice, but some people believe things that can’t be proven and call you stupid when you say “What?”. I wish it were different, but diplomacy has never been my strong point.Report

    • Avatar Jaybird says:

      @dexter45, there are folks with whom it is not mine either.

      In my dotage, however, I find that the folks who are least likely to hold power over me are the ones that are easiest to not be sarcastic with.

      Bob Cheeks, for as much as I disagree with him (and fundamentally), will never be in charge of decisions for my life nor will anyone who vaguely reminds me of Bob Cheeks.

      The Progressive Statists, on the other hand, will be the ones holding the whip over my back in the future. I have much less patience with them… and you’ll find it much more likely that I will be snarling at them.Report

  10. Avatar dexter45 says:

    Jaybird, as long as we are being cordial, could you please, in twenty-five words or less, give me your definition of free trade? I believe that I am suffering more from free traders than statist.Report

    • Avatar Jaybird says:

      @dexter45, sure.

      I would like to give you this X right here in exchange for your Y.

      You, at the same time, are interested in giving me your Y in exchange for my X.

      When we are making the exchange, the government does not kill us, or our dogs, or explain how one of us needs to pony up 3%.Report

      • Avatar Jaybird says:

        @Jaybird, fewer than 60 words, anyway.Report

        • Avatar dexter45 says:

          @Jaybird, I will admit that the government does many things I think are beyond the pale, but I like it when someone or something makes sure that your x will not kill me or my dog.Report

          • Avatar Jaybird says:

            @dexter45, and, thanks to mission creep, you end up with something like this:

            ordinary-gentlemen.com/2010/05/what-tyranny-looks-and-sounds-like/

            Is it worth it?Report

            • Avatar dexter45 says:

              @Jaybird, Like I said, I think the government does many things that are beyond the pale. How many dogs died a couple of years ago because of Bad Chinese dog food? As a side note, I think the war on drugs are one of the things the government does wrong.Report

            • Avatar Jaybird says:

              @dexter45, it seems to me that it begins with the government doing something *FOR* you and that evolves into the government doing the exact same thing *TO* you.

              See the recycling thread.

              Don’t take my word for it, though. Just keep on watching.Report

      • Avatar Bob says:

        @Jaybird, in other words, free trade is largely a fiction? The guy down the street selling his home grown tomatoes comes close. The tomatoes from the Safeway not close.Report

  11. Avatar historystudent says:

    Both of your articles cited above contribute very valuable components to the discussion. Thank you!

    One of my frustrations with the pro-traditional marriage “leaders” who “defended” Prop 8 through advertising during the election and then in court is that they were/are often too reticent about fully supporting marriage. They play on the opposition’s court instead of taking the ball onto their own. It is a muddled and faint-hearted strategy that hasn’t worked well. They would do well to read your thoughts.

    I agree that marriage does not discriminate in any way that is legally or constitutionally actionable. A blind person who sued the state for not issuing him a driver’s license and claimed discrimination under the 14th Amendment would get nowhere because sight in required for driving. Marriage also has a basic requirement: that is be a heterosexual bond between of-age, consenting people. As I’ve noted before, this “limitation” has to do with biology, not bigotry.

    There are all kinds of love — parent/child, sibling, best friends, same sex, comrades-in-arms, etc. — and each contains its own deep feeling. But the love of any of these is not exactly the same as that of a husband (man) and wife (woman) who are in love and who make a life together. They and only they have the natural God-given ability to conceive the next generation from their mutual physical love. That is special. That is unique. That is marriage. That doesn’t denigrate any of the other kinds of love, but there is no equality in terms of sameness between these different loves.

    A blind person cannot have a driver’s license, not because he (or she) is somehow being punished by government and treated differently from anyone else — everyone who drives must be able to pass the sight test — but because his condition simply prevents his fulfilling the requirements. And a rough analogy can be made with marriage. Same sex relationships do not fulfill that basic part of marriage: sexual complementarity. Anyone can marry if they marry someone of the opposite sex (of-age, not a too-close relative, and consenting), so, as you explained, there is no discrimination, no “punishment” by government. Everyone is treated the same. And same sex partners who want to dedicate themselves to one another have legal civil unions and other types of commitment ceremonies for that purpose.Report

    • @historystudent, Your argument is a tautology. According to you, marriage is “heterosexual union,” but other than tradition you offer no argument to support your assertion. The only thing that seems to distinguish heterosexual and homosexual unions is the possibility of natural procreation in some, but not all, heterosexual unions. Given that marriage serves many more purposes than simple procreation and that procreation has never been a necessary condition for heterosexual marriage, it will take more than a claim of “tradition” to make your case.

      This is more the case of not being allowed to drive, not because you are blind, but because you suffer from anosmia.

      If procreation is the key element of marriage, than why do we allow the infertile and elderly to marry? In those cases don’t we recognize that marriage serves those relationships in meaningful ways that don’t include procreation? Why then deny it to homosexuals?

      And if civil unions are sufficient for homosexuals, than why not civil unions for the infertile, elderly and those who choose to adopt (instead of conceiving their own children), reserving marriage for procreative couples?Report

      • Avatar Rufus says:

        @Ernest Miller, Yeah I was thinking, if marriage = reproduction, my wife and I should split up.Report

        • Avatar Rufus F. says:

          @Rufus, Having made that glib comment, I’d agree with Boegiboe that this is probably the strongest anti-SSM argument going.. I think I’d summarize the argument as being that a major function of marriage was to regulate heterosexual lust and prevent an epidemic of illegitimate children. I think this is still the major social benefit of heterosexual marriage, incidentally. So, as I understand it, the argument is that heterosexual reproduction is uniquely tied to the institution of marriage. Marriage is about a man and a woman having legitimate children. Same sex marriage doesn’t make sense.

          To be honest, I don’t really have a problem with the implication that my own marriage is illegitimate because we have no interest in having children. The problem I have is that, even considering the special importance of heterosexual reproduction, I can’t see how any of this is changed in any way because gays can get married. How would married gay couples encourage straights to eschew marriage? For me and my wife, every single married couple we encounter who genuinely believes in the institution serves as reinforcement for the decision we made to get married, and that’s the same if they’re old married straight couples or old married gay couples. Conversely, what seems to truly weaken marriage are those people we encounter who are all too cavalier about divorce and reject all the work of being married. I don’t think gays have gotten to that point yet, frankly.Report

    • Avatar Boegiboe says:

      @historystudent, I think this is the strongest argument against same-sex marriage that is out there. Ideally, marriage exists primarily for the sake of protecting children born by stable, heterosexual couples.

      This was a really useful, vital part of society before divorce, women’s rights, birth control, adoption, surrogate pregnancy, gender-neutral joint tenancy, and a whole bunch of other things came along.

      What I’m saying is that the marriage that some people are claiming to defend hasn’t existed in this country for decades. Mourn that if you like. Tear your shirt. Don’t rage against God, though, because it is His will that women are morally (and now more and more legally) equal to men.

      Marriage in the U.S.A. does not merely protect children. The majority of children in this country are not living with both of the parents that conceived them. This is a huge difference from when I was growing up here. Lots of kids are raised by single parents, many with help from grandparents. Lots of kids are in homes where divorce has allowed their custodial parent to find (hopefully) a better mate. And, perhaps least noticeable in all this, lots of heterosexual couples are not having children; some by choice, and some not.

      Yet marriage remains useful for a lot of different reasons: caring for your spouse in old age, inheritance, registering parenthood legally so custodians can be determined by the court during divorce.

      Also, taking care of kids. And those burgeoning numbers of kids who have no one but the state to raise them would really rather live with some parents who actually get to know them, who mentor them, feed them consistently, protect them from harm. That is, who raise them.

      The strongest argument against same-sex marriage, when accurately applied to today’s society, becomes the strongest argument FOR same-sex marriage. It creates more stable homes for parentless children.

      It allows coitus to be separated from parenthood. Which is what has already happened. Raise your own kids and never get divorced. Support your fellow married, heterosexual couples in their difficult times. These are all good things to do, and we’d probably fall apart without them.

      But it’s not enough these days, and my instinctive drive to take care of children well should not go wasted. My grandmother’s only objection when she found out I was gay was that I was “going to be such a good father, and now you won’t be.” I told her I’d adopt, and it didn’t take much thought on her part before she was happy.Report

    • Avatar Robert Cheeks says:

      @historystudent, Thanks for this, most helpful.Report

  12. Avatar Mike Farmer says:

    A sophisticated society becomes individuated and internally motivated — the external, social value of marriage, which was once understood mainly by the elite and promoted to help maintain order and stability among common people, loses its power when people have the luxury of choosing mates who fit their values, and raising children is an option. So, “marriage” as a tradtion and utilitarian institution for heterosexual family units is basically spiritualized in the modern sense of two kindred souls choosing to bond for higher reasons, making homosexual marriage as viable on an individual basis as heterosexual marriage. Laws still exist as a carry-over from tradition and the perceived utilitarian value which make distinctions, but to a sophisticated society no longer unconsciously controlled, at least to the same extent, by exteral forces of tradition and elite engineering, these laws don’t seem valid.

    I have no idea if this makes sense.Report

  13. Avatar Richard York says:

    1) If one “type” of marriage allows for privileges like SS survivor benefits, hospital visits, etc., and another does not, they are, prima facie, not equal. Saying they are equal is specious.

    2) All marriages must be civil unions but, not all civil unions must be marriages. As long as the rights, privileges and responsibilities of civil unions and marriages are the same, call the relationship anything you want.
    In fact, let churches conduct “marriages”, as long as the person performing the rite is also licensed by the state to conduct civil unions.
    To the best of my knowledge, no SSM proponent has ever advocated compelling religious institutions to perform marriage rites for any pair of individuals whose pairing that institution does not approve.

    3) The 14th amendment, 2nd sentence;
    “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
    Doesn’t disallowing SS survivor benefits to one pair of people and not to another amount to unequal protection?

    4) Go back and read Federalist 10. If banning gay marriage is not a consequence of “the tyranny of the majority”, what is? And don’t even begin to tell me that Madison would disapprove of gay marriage. He would not approve of miscegenation either.Report

  14. I’m one of two 26-year olds I know who has any children. I have two beautiful little girls with the same woman, and we’re unmarried. The reason we’re unmarried is not because we’re uncommited to each other. It is simply because we find the very concept of marriage to be absurd as it relates to our unique situation as members of two diferent cultures.

    If one’s definition of marriage is a mechanism to preserve wealth from one generation to the next or a mechanism to control against the inevitable spread of disease through polygamy and adultery, these definitions are anachronistic and insulting.

    If one sees marriage as a primarily religious creation, my “wife” and I are not religious. She is from a Japanese Buddhist family, and I am from an American Catholic family. Were we to have a wedding, where would it be? How would we do it? Would I insist that my family come to Japan for the ceremony? Would my “wife” insist that her family travel to America? Would the Catholic Church refuse to marry us? Would my “wife”‘s grandmother flip out because the Catholic priest didn’t offer rice to the Gods before the ceremony?

    What are our options then? Should we head to Vegas for an Elvis wedding? Should we go to the City Hall and solicit the permission of some public servant to marry and have children? (Oops, too late.) After the ceremony will he say, oh, by the way, have you paid your taxes yet for this year? I’m sorry, we’re going to need three forms of official identification. Your driver’s license is out of date. Please fill out this form and bring it to the sixth floor for processing. We’ll need a revenue stamp and letters-of-consent from each of you. Did you get tested for syphillis yet? Not exactly romantic. And not exactly natural and free either. And kind of insulting.

    Our only remaining option then is to have some kind of tacky secular ceremony. Everyone boogieing down to the Chicken Dance, Dancing Queen, and C&C Music Factory in some overpriced KofC somewhere is not exactly a moment to be treasured. And in Japan, where white foreigners are employed on a part-time basis as “priests”, it’s even more distasteful.

    My “wife” and I simply don’t care about meeting the unjustified expectations of our society’s outgoing generation. However, in order to bring my family to the U.S. this December, under current post-9/11 law, I must obtain at least a fiancee visa which stipulates that I must marry my “wife” within 90 days of entering the U.S. If I choose not to take that option, I must marry my “wife” in Japan and then wait three months before going to the U.S.

    Not that this constitutes an extraordinary and burdensome violation of my civil liberties or anything (although the government’s effectively forcing two people to to enter into a contract does seem to violate the underlying principles of a free society.), but I find it absurdly ironic that two people who could care less about getting married and just want to be left alone are forced to marry each other so they can be more easily tracked by the post-9/11 state; this while millions of gay couples who want to marry each other are not allowed to in the name of protecting some archaic and amorphous ancien regime which serves little or no purpose in modern times.

    So, since marriage doesn’t really make sense for us two members of different civilizations, and does for some gay people, but structures remain in place preventing us potential suppliers from supplying and those same unjustified structures prevent myriad demands from being satisfied, I would like to suggest a solution that may even be palatable to certain gay-hating conservatives: “marriage choice” a.k.a. vouchers!

    Can we create some sort of market system here, where I could sell my right to marry bequethed me as a heterosexual to some wealthy gay couple?Report

  15. Avatar Jaybird says:

    Hey, Bob.

    I was wondering if there was a response to the Covenant critique.

    No biggie, of course.Report