Eugene Volokh: One of Same-Sex Marriage’s Biggest Opponents

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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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196 Responses

  1. Avatar Barrett Brown says:

    Very spot-on account. Before you came on to the League I wrote an analysis of Stanley Kurt’s bizarrely influential essay in alleged refutation of the study on gay marriage in Scandinavia. I don’t think I’ve ever seen so many mathematical and statistical monstrosities in a paper written by someone who is billed as a scholar. There are a great number of issues on which honest and reasonable men can disagree, but gay marriage is not one of them.Report

  2. Avatar MFarmer says:

    I know it will never happen, but how do you feel about government having no say whatsoever in marriage, leaving it entirely up to how it all works out in the private sector, which would remove all tax advantages, regulations, all of it — nothing government does would have anything to do with marriage?Report

    • Avatar Jason Kuznicki says:

      It just so happens that I’ve got a Cato Institute policy analysis soon appearing that discusses just this subject. The short form is that for a lot of things, it would be great, but that for a few things, state recognition of marriage may be the most efficient policy at our disposal. The presumption that children belong to both parents — without having to demonstrate anything in particular to the state — is one such area. Marriage creates a presumption of legitimacy, and it’s probably for the best that it does. There are a few others, but I’ll discuss them in more detail here when the analysis is published.Report

    • Avatar Francis says:

      First, you gotta persuade the electorate. As best I can tell given the heat generated by this debate, people like (by a lot) the idea that their government recognizes their commitment to their spouse. Also, laws governing property, taxes, insurance, health care, family, death, and evidentiary privileges (and that’s just off the top of my head) would need to be re-written.

      Do you honestly see a progressive state like California, much less Alabama, treating every household as just two roommates who have kids together? It may be possible, but you’ve got a very long way to go.Report

  3. Avatar James Hanley says:

    This is unexpected and very disturbing, particularly the tone of the comments over there.

    Barrett, would you do us the favor a link to the piece you wrote?Report

  4. The central problem with the argument is that there’s no way to take away the victimhood tactic from the religious right- any diminution of privilege will look like oppression to them, and they’ll be able to sell it just as well. If the gay rights movement is at all successful, the victimhood rhetoric will be present and it will be at least somewhat persuasive to some people.

    That said, it seems just to limit the social coercion we exercise, as we asked the majority to do so when we were more reviled than we were now. His policy of accommodation won’t win us equality any faster, but it’s probably the right thing to do. Living in a pluralistic society means dealing with a few bigots every once in awhile.Report

  5. Avatar Barry says:

    Jim Henley over at highclearing.com once said of Euguene that aside from matters concerning free speech and gun rights, he tends to be the sort of person who mightily and conspicuously worries before coming down on the side of the State. That’s the best summary I’ve seen of him.Report

  6. Avatar North says:

    I don’t follow Volokh closely enough to render any judgments. But I would like to say that Rauch’s essay is spot on in my opinion and oddly pertinent to your post Jason.
    It seems to me that it should be expected that a centrist lawyerly site like Volokh.com could be expected to go from vigorous support of gays when they’re in the minority to a more tempered and worried tone once their supporters achieve majority status.
    I agree with you that the structural laws of this country would prevent the kind of oppression that Volokh fears. But I also think that gay rights supporters and the gay rights movement still should assert, as I strongly believe, that even if the structural laws didn’t protect the rights of the religious we still wouldn’t pursue and harry them the way they pursued and harried us.
    As Rauch says, we’re after equality, not revenge (though thankfully equality would be our most vicious revenge against our historic oppressors as well).Report

    • Avatar Jason Kuznicki says:

      I’ll worry about that after we have legal equality, not before. To “deliberately leave room for homophobia” right now means only to deliberately leave room for what amount to a lot of lies, misrepresentations, and direct political activism against my family. I have no intention of leaving room for that.

      When excluding gays is a matter of religious ritual alone, sure. But not until then. When they make it political, I make it political. And they’re still making it political.Report

    • Avatar Trumwill says:

      But I also think that gay rights supporters and the gay rights movement still should assert, as I strongly believe, that even if the structural laws didn’t protect the rights of the religious we still wouldn’t pursue and harry them the way they pursued and harried us.

      Yes on this. I know more than a few liberals who believe that churches should be compelled against discrimination or lose their tax exemption. I have no worry that the views of these people will carry the day, but they make it harder for people in my camp (in support of gay marriage and against compulsion) to state the simple truth that the churches have nothing to worry about.Report

    • Avatar Barry says:

      Is there some part of the First Amendment that you don’t understand?Report

  7. Avatar BobN says:

    It may be neither here nor there, but Rauch appears to be quoting a piece that Gerson and Wehner don’t seem to have published anywhere….Report

  8. I tend to agree with the quote, but it isn’t from Volokh- it’s from Jonathan Rauch.

    http://advocate.com/printArticle.aspx?id=156878Report

    • Avatar Jason Kuznicki says:

      Sure, but Volokh was quoting him uncritically. It’s a measure of how, at least as it looks to me, the site has gradually but decisively changed in tone. Volokh loves to quote arguments of this type.Report

      • He might have been quoting him uncritically, but does that mean that he’s against gay marriage? Also, then shouldn’t there be criticism for Jonathan Rauch who is gay and is promoting this viewpoint?Report

        • Avatar Jason Kuznicki says:

          He might have been quoting him uncritically, but does that mean that he’s against gay marriage?

          Let me put it this way. If I could move as many people toward favoring same-sex marriage as Volokh appears to have moved people toward opposing it, I’d consider my advocacy work on the issue completely successful. He says that he is in favor of same-sex marriage, but every post he seems to make on the topic, so far as I can recall, is a concern about it or an appeal to move more slowly.

          While I have deep respect for Jonathan Rauch, he does not always say to go slower — only, it seems rather recently. That’s why I’m less inclined to criticize him.Report

  9. Avatar Joe Carter says:

    ***What’s worse, he’s started accepting the outright lies of the religious right, and claiming that they are actually reasonable objections to same-sex marriage.***

    Remember when the contributors at the League could be expected to be civil and thoughtful, even when you disagreed with them? I miss those days.Report

    • Avatar Jason Kuznicki says:

      Remember when being civil meant noting candidly when someone, ah, tells a fib? I miss those days, too.

      So if you have an example of a church that actually has been sued for declining to marry two men or two women, please, kindly bring it to our attention. No credit for churches that are merely being denied state grant money because they wanted to discriminate when the state doesn’t let recipients do so.Report

      • Avatar Joe Carter says:

        ***No credit for churches that are merely being denied state grant money because they wanted to discriminate when the state doesn’t let recipients do so.***

        How about for parents that don’t want their children to be taught about homosexuality in public schools? A court ruled that if parents didn’t want their children indoctrinated on the state’s politically correct position (e.g., same-sex marriage should be accepted by all) that they could homeschool or send them to a private school.

        I’m sure that you have no problem with that. You likely believe that opposition to homosexual behavior is a form of discrimination that should be rooted out. But for a lot of us, that is a “reasonable objection” that should not dismissed out of hand.Report

        • Avatar Barrett Brown says:

          Yes, but you also consider creationism to be a “reasonable objection” to the various sciences, and we teach those. Should this be done differently, and why?Report

        • So I have a question. I’m gay and partnered and I’m for same-sex marriage. But since I’m also a pastor, I know of people who are as equally devout as I am in my faith and yet is not favorfable towards gay marriage. I believe that acceptance of gay couples and same sex marriage on a national level will happen, but how do we allow for space for those might never agree for whatever reason?Report

          • Avatar Joe Carter says:

            ***how do we allow for space for those might never agree for whatever reason?***

            That’s an excellent question and one that goes to the heart of the debate. By framing it as an “anti-discrimination” issue, some advocates of SSM are essentially saying, “You bigots will eventually lose so you might want to get onboard now or in the future you’ll be viewed like the Bob Jones-ers.”

            If the ultimate outcome of the advancement of same-sex marriage is that people who are opposed to it are treated the same as racial bigots, then it shouldn’t be surprising that some people are going to fight tooth-and-nail to prevent it.Report

            • Avatar Jaybird says:

              Luke 10:25-37 Modern Evangelical Edition

              And a lawyer stood up and put Him to the test, saying, “Teacher, what shall I do to inherit eternal life?”

              And He said to him, “What is written in the Law? How does it read to you?”

              And he answered, “YOU SHALL LOVE THE LORD YOUR GOD WITH ALL YOUR HEART, AND WITH ALL YOUR SOUL, AND WITH ALL YOUR STRENGTH, AND WITH ALL YOUR MIND; AND YOUR NEIGHBOR AS YOURSELF.”

              And He said to him, “You have answered correctly; DO THIS AND YOU WILL LIVE.”

              But wishing to justify himself, he said to Jesus, “And who is my neighbor?”

              Jesus replied and said, “A homosexual man was going down from Jerusalem to Jericho, and fell among robbers, and they stripped him and beat him, and went away leaving him half dead.

              “And by chance a priest was going down on that road, and when he saw him, he passed by on the other side.

              “Likewise a Levite also, when he came to the place and saw him, passed by on the other side.

              “But a Samaritan, who was on a journey, came upon him; and when he saw him, he felt compassion,

              and came to him and bandaged up his wounds, pouring oil and wine on them; and he put him on his own beast, and brought him to an inn and took care of him.

              “On the next day he took out two denarii and gave them to the innkeeper and said, ‘Take care of him; and whatever more you spend, when I return I will repay you.’

              “Which of these three do you think proved to be a neighbor to the man who fell into the robbers’ hands?”

              And he said, “The two Religious Jews who ignored the homosexual. At least they didn’t kill him like it says in Leviticus.” Then Jesus said to him, “This day you have entered into the Kingdom of Heaven.”Report

            • Avatar Mike Schilling says:

              Are you seriously saying “I feel justified in denying people human rights because some of the people on the other side say things that offend me”? If so, I think the fact that some Christians teach that I’m going to Hell for being a Jew is a valid reason to shut down all the Sunday Schools.Report

        • Avatar James Hanley says:

          Joe,

          The other day my 3rd grade daughter asked if we thought illegal aliens should be able to earn college scholarships. Her teacher had said they should not. My wife and I vigorously disagree. Do I have a right to make sure her school doesn’t teach the current politically popular position on that?

          Seriously, do you think you Christians are the only ones whose kids are taught things in the public schools that you don’t like? My kids are being taught that America is the greatest country on earth and is in the right in all its foreign affairs. There’s really no plausible argument that supports that. Can I sue and prevent that from being taught, or should I be forced to home-school my kids if I don’t like it?

          Have you ever thought about the possibility of a public education system teaching only those things on which there is universal political agreement, given how little universal political agreement their is?Report

          • Avatar Koz says:

            “The other day my 3rd grade daughter asked if we thought illegal aliens should be able to earn college scholarships. Her teacher had said they should not.”

            Was that the teacher’s opinion or part of the curriculum?Report

            • Avatar James Hanley says:

              The teacher’s opinion–but I don’t get to control every expression of a teacher’s opinion anymore than I get to control every element of the curriculum. And the teaching of America’s moral perfection is part of the curriculum–a part supported precisely by those conservatives who complain that teaching things they don’t like is a violation of their rights.Report

              • Avatar Koz says:

                No, you control the teacher’s opinion much less, that’s the point. Ie, your daughter wasn’t “taught” anything in particular about education policy for illegal aliens, that was just a byproduct of her and the teacher being at the same place at the same time.Report

              • Avatar James Hanley says:

                A) You’re cherrypicking. You conveniently ignore the other issue I mention.

                B) You don’t think SSM opponents go ballistic if a teacher offhandedly mentions her support for it?

                I really don’t see that my analogies are in apropos.Report

              • Avatar Koz says:

                A. Ok. What other issue was that?
                B. No.Report

              • Avatar James Hanley says:

                A. Teaching the myth of America’s alleged moral perfection.

                B. Seriously? Seriously?Report

              • Avatar Koz says:

                A. I’d be surprised to hear your daughter was taught anything about foreign policy in the 3rd grade.
                B. Seriously.Report

        • Avatar Francis says:

          You mean you won’t have your every last prejudice still catered to? Bummer dude. Btw, replace “homosexuality” with “inter-racial marriage” in your comment and you’d have fit in just fine in the 50s. And while white supremacists still get to tout their creed in whatever forum will have them, the rest of us get to point and laugh.

          Solutions to your loss of control over the message about the ‘sin’ of homosexuality?
          A. Suck it up. Most people don’t like something about their child’s school curriculum and mostly they don’t do anything about it. You could join that club.
          B. Complain. There’s always a group of idiots somewhere trying to get evolution eliminated from their school curriculum. Join your message to theirs.Report

        • Avatar Jason Kuznicki says:

          My argument was that churches would not have to worry about discrimination claims. Public schools are a different matter entirely, and in this context they are a red herring.

          Still, I note public schools teach about the existence of Hindus, Nazis, and even — gasp — atheists. I can’t imagine that teaching about the mere existence of gays and lesbians could be all that objectionable. If it is, then maybe homeschooling really would be the best option for people of your beliefs.

          And anyway, what would you have the public schools teach about homosexuality? I’m sincerely curious here. Be sure to steer clear of Establishment Clause challenges, and justify your answer, if you can, with reference to scientific consensus.Report

        • Avatar Drew says:

          Can you describe a school curriculum which advocates that gay marriage should be accepted at all.

          People often confuse being taught about something with being taught that it’s right. The “worst” examples I’ve seen of this indoctrination is materials that describe gay people and gay couples as normal parts of our society. Which they are. I think ultimately a lot of social conservatives object to THAT, and see it as indoctrination to even accept the reality of gay normalcy in our society. But it’s not. And that’s just not a legitimate objection to teaching about a social reality and accepting that people are decent (which, again, just isn’t the same thing as teaching people what they should think about gay marriage as an issue/institution).

          That’s a heck of a lot more reasonable than what used to be taught, if mentioned at all: that gay people are dangerous perverts lurking in the bushes, preying on people.Report

          • Avatar Jason Kuznicki says:

            Indeed. If some think the Sisters of Perpetual Indulgence are offensive, I’ll just say I find this a thousand times worse:

            Report

        • Avatar Boonton says:

          How about for parents that don’t want their children to be taught about homosexuality in public schools? A court ruled that if parents didn’t want their children indoctrinated on the state’s politically correct position (e.g., same-sex marriage should be accepted by all) that they could homeschool or send them to a private school.

          What does this have to do with SSM?

          First just because its legal doesn’t mean the state says its great. Anna Nicole Smith’s marriage to that old billionaire was legal, but many people thought she was taking advantage of an old man. Just because the state allowed them to get a marriage certificate doesn’t mean it was giving them a ‘stamp of approval’.

          Second, what does this have to do with SSM? ! It sounds like your objection is the public schools ‘teaching’ that all legal marriages are good marriages. I have no problem arguing against the schools doing any such thing. But then why does that translate into no SSM? Why not no divorce too? It would seem the problem you cite is a few public schools overstepping their bounds and the solution would be that the school retreat to a neutral position of ‘just the facts’ (i.e. this is what the state marriage laws say, people take different views on this for religious and other reasons etc.). Prohibiting SSM doesn’t solve the overstepping school, it just ignores it.Report

      • Avatar tom van dyke says:

        So if you have an example of a church that actually has been sued for declining to marry two men or two women, please, kindly bring it to our attention.

        Jason, I don’t see where that claim is made anywhere in the Volokh essay, or by Mr. Carter.

        Jonathan Rauch writes:

        If you object to facilitating same-sex weddings or placing adoptees with same-sex couples, they’ll slap you with a fine for discrimination, take away your nonprofit status, or force you to choose between your job and your conscience.

        I believe he’s talking about the photographer case, and of course the RC Church ceasing its adoption work in Massachusetts. There was also something about gay cupcakes in the original Rauch piece.Report

        • Avatar Jason Kuznicki says:

          Your last paragraph answers your initial objection, does it not? But the quote from Rauch is a hypothetical, and I don’t find it one worth taking seriously. I explained why above.Report

          • Avatar tom van dyke says:

            I’m not quite following you here, Jason. I was simply seeking clarity. I didn’t see any arguments about ministers being coerced into performing SSM.

            However, I’d have found it more helpful if you engaged the Rauch piece directly, since it seems to be targeted exactly toward folks like yourself, and some of the commenters here.

            But you say you don’t take Rauch’s “hypothetical” seriously. OK. The. End. Volokh just seems to be collateral damage.Report

  10. Avatar Koz says:

    Let’s bring back Lawrence v. Texas. That should solve most of the problems.Report

    • Avatar Jaybird says:

      “He doesn’t get to touch your junk, only *WE* get to touch your junk” can be the new text on the Gasden Flag.

      It never ceases to amaze me exactly how much reach some conservatives think that the government ought to be able to have.Report

      • Avatar Koz says:

        Let me ask you about something Jay that I’ve never understood too well. Here and other places in the current cultural environment, doesn’t gay rights as a civil rights issue ever seem horrifically tedious for you?Report

        • Avatar Jaybird says:

          I admit that I don’t have a dog in the fight, per se.

          I do have a couple of Uncles who are decent and kind and have been together since I was a little kid.

          If they said “we ought to be able to get married!”, I don’t know that I would have a single argument against them. I mean, *I* got married. Why shouldn’t they get married?

          Then someone like (oh, pick somebody) comes in and tells me that my Uncles shouldn’t be able to get married.

          My general response is something to the effect of “HOW IS IT ANY OF YOUR FREAKING BUSINESS???”

          Joe Carter, I presume, is acting (much like the Blues Brothers) on a mission from God. Fair enough. I try not to argue with folks who have God on speed-dial.

          But there are folks out there who aren’t particularly on Pope-level terms with God who feel the need to tell me that whether my Uncles get married is, in fact, their business.

          When I try to get into extended arguments with them over why two aging gay dudes in Florida are their personal business, they tend to abort the conversation.

          Is the debate over the gay marriage thing tedious? Eh. I find it interesting to argue against those who oppose gay marriage. Such people are usually a gold mine of stuff that would never, ever occur to me.Report

          • Avatar Koz says:

            Yeah, yeah, yeah I get that. But isn’t there a point where the whole thing is just fucking boring beyond all measure?

            Does the P-51 Mustang perform better or worse than the Zero? Does Elmore Leonard write trash or actual literature? Is Tootsie Dustin Hoffman’s best movie? Anything else, geez.Report

            • Avatar Jaybird says:

              I have friends who, when we go to Wal-Mart, can look across a crowded parking lot and say “that’s a 1974 Mustang!”.

              I look across the parking lot and I just see a field of cars and SUVs.

              They look at life differently than I do. I mean, I saw Transformers and I thought it was the most boring amalgam of crap I’d ever seen. They watched it and said that this car was “sweet” or that car was “cherry”.

              I can’t really say that their experience of life is better or worse than my own.

              Which brings us back to gay marriage:

              It would never occur to me to enshrine in law that movies as stupid as Transformers should not be made.

              Because it’s none of my freaking business.

              Arguments with people who want the government to be able to censor movies are interesting to talk to. They think things that would never, ever occur to me.Report

              • Avatar Koz says:

                “It would never occur to me to enshrine in law that movies as stupid as Transformers should not be made.”

                Okay. But there are some people who want to enshrine heterosexuality in marriage as law, just like there are some men who want to have sex with other men. Can’t we just let ’em both be?Report

              • Avatar Jaybird says:

                Well, by enshrining heterosexuality into marriage as law, they’re pretty much outshrining homosexuality at the same time.

                This would be less of a big deal if they weren’t the exact same freaking people who are suggesting that the government have the power to arrest guys for having sex with each other.Report

              • Avatar Koz says:

                Ok, maybe they can figure out how to have sex with each other with each other without getting arrested by John Law and the rest of us can dwell on how Diet Dr Pepper can taste so much like regular Dr Pepper.Report

              • Avatar Jaybird says:

                If there are folks out there who not only think that the government ought to have the power to arrest consenting adults for humping in their own bedrooms *AND* who think that the government *USING* this power *TO DO SO* is a *GOOD THING*, I dare say that… no.

                They’re probably going to be pre-occupied doing one of two things:

                1) Fighting the good fight and explaining how the government ought not be so large nor so expansive to be able to pry to intimately into privacy.

                2) Making damn sure that the sword of the state is wielded by their hand rather than by the hand of the Jesus People.

                Bringing up Lawrence v. Texas as a good thing is a lot more likely to result in 2 than 1, dude.

                Seriously, modern Republicans are little more than dusted off progressives who believe that the state can make people better.

                God help us all.Report

              • Avatar Koz says:

                They’re probably going to be pre-occupied doing one of two things:…”

                Really? A lot of Americans want to go faster on the nation’s roadways than is legally allowed in our various jurisdictions. A lot of the time, maybe even most of the time, these motorists buy a fuzzbuster to alert them to the presence of law enforcement, with the intention of preventing themselves from being cited or detained.Report

              • Avatar Jaybird says:

                You’re the one who supports the speed limits, dude.Report

              • Avatar Barrett Brown says:

                Dr. Pepper kicks so much ass it’s not even funny.Report

              • Avatar Koz says:

                “2) Making damn sure that the sword of the state is wielded by their hand rather than by the hand of the Jesus People.”

                Well, under current Constitutional precedent the government has no such power and Jason et al are doing this anyway.Report

              • Avatar Koz says:

                “You’re the one who supports the speed limits, dude.”

                No. Repeal the speed limits, buy a fuzzbuster, pay the fine, slow down through the speed traps, whatever. Just figure it out already and let us move on to something else.Report

              • Avatar James Hanley says:

                there are some people who want to enshrine heterosexuality in marriage as law, just like there are some men who want to have sex with other men. Can’t we just let ‘em both be?

                Is this a serious question, or are you being sarcastic?

                doesn’t gay rights as a civil rights issue ever seem horrifically tedious for you?

                I know the question wasn’t addressed to me, but as someone who has been arguing for several years that gay rights is a civil rights issue, the only thing I find tedious about it is that some people continue, against all logic, to deny it.Report

              • Avatar Koz says:

                “Is this a serious question, or are you being sarcastic?”

                Facetious in phrasing, serious in substance.

                “doesn’t gay rights as a civil rights issue ever seem horrifically tedious for you?”

                I guess not.Report

              • Avatar James Hanley says:

                Maybe when those civil rights are actually secure it will become tedious to dwell on them. But as long as those rights are not yet secure, I struggle to see how calling the discussion of them “tedious” as anything other than an effort to denigrate them, dismiss them as unimportant, and so try to prevent people from achieving them.Report

              • Avatar Jason Kuznicki says:

                Agreed. I find celebrity gossip tedious, but I rarely point out the fact. I just don’t talk much about it. It can’t really be “tedious” to you if you are constantly tempted to talk about it. Rather the opposite — I suspect you find SSM deeply, profoundly fascinating.Report

              • Avatar Koz says:

                “Agreed. I find celebrity gossip tedious, but I rarely point out the fact.”

                Not at all. By comparison celebrity gossip is much more interesting.

                “Rather the opposite — I suspect you find SSM deeply, profoundly fascinating.”

                Well, let me definitively assure you that is not the case.Report

            • Avatar Jason Kuznicki says:

              If it is boring because you are genuinely indifferent, then you might as well give us gays and lesbians what we are asking for.

              If you think that it would have serious negative consequences for the country, then it is your duty as a citizen — boring though it may be — to articulate those consequences, and, if possible, prevent them from happening.Report

              • Avatar Koz says:

                I have and I guess I probably will in the future but can’t you have butt sex already and let the rest of the world go back to Dancing With The Stars?Report

              • Avatar Jaybird says:

                YOU’RE THE GUY WHO SUGGESTED BRINGING LAWRENCE V. TEXAS BACK!!!!

                WHAT THE HELLReport

              • Avatar Koz says:

                Ok, if I forgo undoing Lawrence v Texas, can we make it go away then?Report

              • Avatar Jaybird says:

                YOU’RE THE GUY WHO BROUGHT IT UP!!!!!Report

              • Avatar Koz says:

                No, no, no, no. This whole thing was going way before I got here.Report

              • Avatar MFarmer says:

                Uh, I’ve not gay, but I think it’s about more than “butt-sex”. Just guessing.Report

              • Avatar Jaybird says:

                I always see that as a form of projection.

                I mean, I’m married to Marianne. We do stuff like go grocery shopping together, divvy up chores, argue about literature, listen to music, tend the cats, watch movies, and just sit around. One of the things we do is she sits in this room right here and uses the computer while I play on my 360 in the next room. We yell back and forth to each other but the important part is that we have each others’ phermones in our sinuses/bloodstreams.

                Sex? Yeah, we have sex. It ain’t *ABOUT* sex. It’s just something that happens.

                If it’s about anything, it’s about the phermones in our sinuses/bloodstreams and how much less crazy we are when we have those phermones in constant supply.

                When someone says that homosexuality is about the fucking, I wonder what their own (I assume that they’re former) marriages must have been like.

                Two people who didn’t know how to smell each other.Report

              • “but the important part is that we have each others’ phermones in our sinuses/bloodstreams.”

                This too is sex.Report

              • Avatar Pat Cahalan says:

                > When someone says that homosexuality is about
                > the fucking, I wonder what their own (I assume
                > that they’re former) marriages must have been like.

                Always makes me wonder where their marriages are going, too.

                “They are all farmers. Farmers talk of nothing but fertilizer and women. I’ve never shared their enthusiasm for fertilizer. As for women, I became indifferent when I was eighty-three. “Report

              • Avatar Koz says:

                “I always see that as a form of projection.”

                Well, yeah. Maybe I don’t need the rest of the world to endorse my sexual partners.Report

              • Avatar Jason Kuznicki says:

                Maybe I don’t need the rest of the world to endorse my sexual partners.

                Neither do I. All I ask for is equal legal treatment. After that, you may condemn my choice of partners as much as you like, and for any reason that pops into your mind.Report

        • Avatar MFarmer says:

          It’s just gay marriage as civil rights issue, it’s the larger issue of rights to pursue happiness when it’s not harming anyone else. Government has no business interfering in our private lives — they should simply be protecting our right to life, liberty and pursuit of happiness — to me that’s the bottom line. Social science has come up with so many theories the technocrats can cling on to so that they can perform their intelligent social engineering — screw ’em.Report

        • Avatar Francis says:

          Not if you’ve known even one man whose family denied him access to his lover when he was dying. Made a big impression on me.Report

        • Avatar Dave says:

          What I find horrific is the belief that people think a 50% plus 1 democratic majority can pass whatever it pleases whenever it pleases. Lawrence said that isn’t is the case and Romer hammered that point home even more.

          There is nothing tedious about using the 14th Amendment of the Constitution to evaluate the proper use of the state police power when such use of that power is to specifically target a group of individuals based on the characteristics of that group.

          You can say that opponents of SSM don’t do that if you’d like, but the findings in fact in Perry dispute that as does reality every time that nitwit Maggie Gallagher opens her mouth.

          As it is, it’s not a matter if it happens, it’s a matter of when. At that point, it will be a tedious discussion because the law will be where it should be. At this point, it isn’t.Report

  11. Avatar MFarmer says:

    It’s NOT just gay marriageReport

  12. Avatar Bill Kilgore says:

    First, at least one state, Massachusetts, has had same-sex marriage continually for six and a half years years now. In that time, churches have not been compelled to do anything against their teachings — unless, of course, they want to take government grant money, after which he who pays the piper calls the tune.

    Does the author of this post recognize that comparing the impacts from the Massachusetts, where SSM was fostered by a state court ruling that had no 14A dimension, with the posited situation where we have a 14A based decision is so absurd that no one with even a remedial understanding of the topic at hand could take him seriously after he made the analogy?

    So if you have an example of a church that actually has been sued for declining to marry two men or two women, please, kindly bring it to our attention.

    There is currently no 14A ruling that would form the basis for such a suit. Suggesting that the existing state-of-affairs will remain unchanged if Judge Walker’s effort remain good law would also lead an educated observer to conclude that the author here is either unfamiliar with this area of law or is being deliberately dishonest. So, which is it?

    There is no evidence in this post to support the charge encompassed in its title. Either the author should provide some or he should simply acknowledge that what he really objects to are people who disagree with his view and he will attack them with laughably dishonest stylings if they fail to relent. Such would be pathetic of course, but still a step up from this effort.Report

    • Avatar Jason Kuznicki says:

      Does the author of the comment not realize that the Massachusetts constitution has something very like the Fourteenth Amendment written into it?

      There is currently no 14A ruling that would form the basis for such a suit. Suggesting that the existing state-of-affairs will remain unchanged if Judge Walker’s effort remain good law would also lead an educated observer to conclude that the author here is either unfamiliar with this area of law or is being deliberately dishonest. So, which is it?

      The author of the comment should likewise appreciate that I’m not talking about Perry here. But even if I were, there are certainly plausible outcomes from that case that would not implicate anyone outside of California, and even churches within California would still be protected by the First Amendment to the U.S. Constitution, with which the author of the comment is no doubt familiar.

      As to the charge encompassed in the title, I’ve explained myself in the comments above. Anyone who can move as many people in a given direction as Volokh seems to have done fully deserves to be called an advocate for the side toward which he’s moved them. Even if he is an advocate despite himself.Report

    • Avatar James Hanley says:

      Does the author of this post recognize that comparing the impacts from the Massachusetts, where SSM was fostered by a state court ruling that had no 14A dimension, with the posited situation where we have a 14A based decision is so absurd that no one with even a remedial understanding of the topic at hand could take him seriously after he made the analogy?

      I’ve taken constitutional law courses, including civil rights and liberties, at the undergraduate and graduate level. I’ve TAed such courses at the graduate level. I even once taught the subject at the undergrad level. I don’t consider myself a true expert, but I think that passes the remedial understanding test. And I don’t consider the comparison as absurd at all. The 14thA has an equal protection clause. The Mass. constitution contains an equal protection clause. Comparing an equal protection clause with an equal protection clause…well, you’ll need to actually make an argument for why that’s not reasonable.Report

  13. Avatar Bill Kilgore says:

    Something very like the 14th Amendment? This is supposed to be serious legal analysis?

    But even if I were, there are certainly plausible outcomes from that case that would not implicate anyone outside of California

    But of course, you don’t want that and you’ll work to insure such doesn’t happen. And so will most SSM supporters including the ones pushing the litigation efforts. Accordingly, pretending that the embarrassing effort to limit Perry in that way forecloses the concerns behind the Perry reasoning is deeply dishonest.

    and even churches within California would still be protected by the First Amendment to the U.S. Constitution, with which the author of the comment is no doubt familiar.

    And this is where the strain of SSM supporters who advocate for their Cheneyesque version of the Constitution do themselves- and honest SSM supporters- such a disservice. Sure the 1A would protect churches, were it to be interpreted in accordance with its text. But there’s no reason to assume such and ample reason to assume the reverse. So-called progressives (who form the bulk of SSM support) have already hacked off a chunk of the 1A, have their President demanding- in Hannatian fashion- that we hack off some more to protect us from scary for-ners, and, further, support laughably dubious Constitutional jurisprudence like we find in Heller and McDonald. Suggesting that the plain text of the Constitution will protect churches from SSM is the most laughable claim of all. The 1A will only do that until it “evolves” to do otherwise. And there is zero reason to assume that it won’t do exactly that. The problem with the infinitely malleable Constitution is that it protects nothing. When you are ruled by men and not law, you can’t point to the law and suggest that it provides protection. It does no such thing.

    SSM proponents have two primary choices. They can either engage their fellow citizens and explain why expanding the definition of marriage is an obvious good thing or they can enforce that proposition through judicial fiat. If they adopt the former approach they will be able to honestly argue that the Constitution will insure that churches who have no interest in SSM won’t be sued into oblivion. If they adopt the latter approach, they can make that same argument. But they will have no credibility when they do so.

    As to the title, you have offered no support for the claim. As you know.Report

    • Avatar Jason Kuznicki says:

      Something very like the 14th Amendment? This is supposed to be serious legal analysis?

      No, it’s supposed to be a comment at a blog post. But unless “equal protection” changes its meaning when you cross state lines, there is a very real point to it, one that you’re not rebutting with your mockery.

      But of course, you don’t want that and you’ll work to insure such doesn’t happen. And so will most SSM supporters including the ones pushing the litigation efforts.

      If the proponents don’t have standing, they don’t have standing. Nothing dishonest about that. Just the way the cookie crumbles.

      Sure the 1A would protect churches, were it to be interpreted in accordance with its text. But there’s no reason to assume such and ample reason to assume the reverse.

      Ample reason? You mean like the presumption of tax-exempt status that is still extended to racist churches? Or do you mean the tax-exempt status that Orthodox Jews have enjoyed all along, despite their reluctance to perform interfaith marriages? Same-sex marriages for traditional Christians would be just the same.

      Suggesting that the plain text of the Constitution will protect churches from SSM is the most laughable claim of all.

      It would not be the plain text of the Constitution, of course. It would be lawyers from the well-funded and well-organized Christian conservative faction of the country. And I would support them. I don’t want to be married in their churches anyway, not any more than I’d want to be married in an Orthodox Jewish synagogue.

      As to the title, I stand by it. Want evidence? Here you go….

      Here’s Volokh resurrecting the slippery slope argument about how gay marriage leads to polygamy.

      Here’s Volokh making the argument that Prop. 8 was an amendment and not a revision, and thus it met that constitutional test.

      Here’s Volokh predicting that a Nebraska decision — which basically no one nowadays remembers — will provoke a backlash against same-sex marriage.

      Here’s Volokh worrying about the resurrection of a Federal Marriage Amendment if Perry stands.

      Here’s a long fret about slippery slopes and how you never know where they lead. Here’s the law review article it was based on.

      Here he is being quoted by a same-sex marriage opponent, favorably. Hardly the only time, but a good one. Here’s another, where some of his claims help support Maggie Gallagher (I do think he’s wrong on those claims, but you probably guessed that).

      At every single turn, he’s either saying “slow down” or else regurgitating the opposition’s arguments. If that’s advocacy for, then what on earth is advocacy against?Report

      • Avatar Jason Kuznicki says:

        Here’s more. Volokh quotes approvingly the claim that marriage isn’t the norm among gays and lesbians, so we shouldn’t have it legally. This strikes me as putting the cart before the horse, but that’s the argument.

        Here he is worrying at length about incestuous marriage, despite admitting that his worries are “ill-founded.” Here he calls the analogy to incest an “eminently legitimate argument.” Here he complains that a a county clerk’s office may have to accommodate an individual with religious objections to domestic partnerships. Here he cherry-picks responses from his abundant e-mail so that he can talk about how wise and persuasive the anti-SSM side really is.

        Does he object merely to the judicial means of enactment, you say? Nope! He writes: “the California Legislature has no authority to by itself reverse — even with the Governor’s approval — an initiative statute, such as the California ban on same-sex marriage (enacted in 2000); reversing such an initiative statute through the legislative process requires a subsequent popular vote. The legislature may at most place the amendment on the ballot.”

        With friends like these, I think I’d rather go it alone.Report

    • Avatar James Hanley says:

      So-called progressives (who form the bulk of SSM support) have already hacked off a chunk of the 1A,

      Beyond campaign finance laws, which limit free speech and not freedom of religion, exactly what chunk of the First Amendment has been hacked off? About the only religious freedom hacking of late that I’m familiar with is Oregon v. Smith, a decision to which most progressive object. You’re making vague assertions, rather than really providing clear evidence.Report

    • Avatar Barrett Brown says:

      It’s “ensure” in this context, not “insure.”

      Obviously Jason has you covered on most of this, but I’m curious about this:

      “The problem with the infinitely malleable Constitution is that it protects nothing.”

      Is this actually your position? If so, shouldn’t I be concerned that the First Amendment also won’t prevent Christian dominionists from taking control of the branches and instituting a law by which every citizen would have to bow down and worship trashy knicknacks? If so, maybe we should discuss that thing. Or is the Constitution only under assault from, say… everyone with whom you disagree on fundamental issues?Report

  14. Avatar Heidegger says:

    While I tend to agree with Koz regarding the insufferably tedious nature of this subject–at this point, believe me, I would much prefer to drink molten lead than ever have to think about it again in this lifetime–what I find particularly shameful, dishonest, and downright insulting is the never-ending analogizing of SSM to interracial marriage. It’s a desperate and pathetic attempt to manufacture a similar victimhood between one that represents a genuine and clear violation of the basic fundamental civil right of one man to marry one woman, or one woman to marry one man, and one that seeks to radically and completely redefine the entire institution of marriage. There is absolutely NOTHING in common between the two. Zero. Can you please, and forever more, strike that from your arsenal of arguments to amplify this transparently fallacious analogy. Judge Walker says it’s all about love, love, love–so be it. Anytime SSM has been put on a ballot, it’s been handily defeated. I think the vote up to this point is 30-0. And please, please, please, let’s not get into the tyranny of majority rubbish. For the time being, the federal government will define marriage as the union of one man and one woman. The Defense of Marriage Act, which was passed in the Senate by a 85-14 and House, 342-67 like it or not, is the law of the land as it applies federal recognition of marriage. The states still have the power to regulate it in the way they see fit. I remember very, very well when that was the stated and desired goal of gay rights activists—federalism, with the states deciding for themselves whether to legalize SSM but as usual, the goalposts keep getting moved back until every living breathing human being in this country completely and wholeheartedly accepts every aspect of this lifestyle. I’m sure this will cost me my new friends on this very interesting site, but what the heck? (Okay, I know I probably have no new friends here) But why lie and ingratiate myself to appear “open minded”? Within the established parameters of the way this subject is framed, it is utterly impossible to disagree and not be considered an intolerant bigot. I challenge any of you to say there is room for disagreement on SSM and specify precisely what you consider a valid argument against SSM. Now where is that molten lead….Report

    • Avatar Heidegger says:

      Sorry–I never reread or edit any comments so please forgive typos, poor grammar, etc. Thanks.Report

    • Avatar Jaybird says:

      Hey, Heidegger.

      For my part, I don’t compare SSM to Interracial Marriage.

      I just compare the people who oppose SSM to the people who opposed Interracial Marriage. The arguments against both are very, very much the same. Let’s look at Virginia v. Loving (the case that was called up to the Supreme Court and became Loving v. Virginia):

      In the dicta of his ruling, Leon M. Bazile said Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

      See that? In an argument against Interracial Marriage, the guy managed to bring the will of Almighty God into it.

      Here’s a dirty little secret that nobody really likes to focus on: He wasn’t particularly unique in his views. He may have been holding them later than many who shared them… but he wasn’t unique in them.

      Which brings us back to SSM. The lion’s share of arguments against it that I’ve encountered have relied to some degree or another upon the Opinion of Almighty God. There are a handful that don’t, of course… but they’re in the minority.

      Anyway, that’s the comparison that I make. Not between SSM and IRM.

      But between those folks who oppose(d) them.

      Hope that helps.Report

      • Avatar Heidegger says:

        Thanks for the reply, Jaybird. Where we fundamentally disagree is that in your example it is demonstrably apparent that an entirely new component to marriage was added to make it illegal for different races to marry–the component of race. Interracial marriage does not in any way, cause a restructuring of redefining of the institution itself, that is, the union of one man and one woman, which is exactly how it was defined at that period of time–it was a clear and inarguable denial of the basic civil right and liberty to marry without restrictions based on racial discrimination 0n and racial classifications. Hey, hope this doesn’t sour our discussions–I love reading your comments! This just might be one of those things that is unresolvable–at least at this stage.Report

        • Avatar Jaybird says:

          Dude, I just quoted a guy who made appeals to God Almighty in his defense of traditional marriage.

          Please don’t tell me how today’s appeals to God Almighty in defense of traditional marriage are substantively different from yesterday’s appeals to God Almighty in defense of traditional marriage without, you know, documentation.

          And, dude, I am too sweet to be sour.Report

        • Avatar James Hanley says:

          Interracial marriage does not in any way, cause a restructuring of redefining of the institution itself, that is, the union of one man and one woman, which is exactly how it was defined at that period of time–

          That’s factually false, Heidegger. In Virginia, marriage was not defined “exactly” as the union of one man and one woman, but as one man and one woman of the same race. That definition is what was challenged and overturned in the courts. So your argument is flatly contradicted by the facts of the case that is under discussion.

          And don’t try to pretend that wasn’t the “real” definition of marriage, somehow. In the U.S., marriage has always been defined individually by the sates. The only meaningful legal definitions were the individual states’ definitions. (That may have now changed, because of both DOMA and Perry, but it was true when Loving was decided.)

          This gets back to my claim that there are no good arguments against SSM. I have yet to see one that doesn’t depend on either empirically false claims or a desire to limit others’ liberty. Here you clearly depend on an empirically false claim.Report

    • Avatar James Hanley says:

      There is absolutely NOTHING in common between the two.

      Sure there is. There’s the fact that two adult people who have decided to commit their lives to each other are explicitly told by the state that their love doesn’t deserve legal recognition, while another couple’s love does. There’s the fact that no matter how many years together, when one is dying in the hospital, the other can be denied access to their bedside. There’s the fact that in neither case does their commitment to each other harm anyone else. There’s the fact that it’s absolutely none of your business nor mine. It’s easy to type the words “absolutely nothing in common,” but that doesn’t make it true.

      And please, please, please, let’s not get into the tyranny of majority rubbish.

      He says without making the slightest effort to explain why it’s not tyranny of the majority.

      I challenge any of you to say there is room for disagreement on SSM and specify precisely what you consider a valid argument against SSM.

      Well, I’ve previously claimed that there are no good arguments against SSM. I stand by that. I have yet to see an argument that’s not based on either false empirical claims or a desire to limit others’ liberty.Report

      • Avatar mark boggs says:

        He says without making the slightest effort to explain why it’s not tyranny of the majority.

        Because James, it isn’t tyranny of the majority if you’re part of the majority, right? Just good common sense…and for the children.Report

        • Avatar Jason Kuznicki says:

          It’s not tyranny of the majority if it’s not tyranny.

          To distinguish tyranny from non-tyranny, we need something more than a mere count of noses. Come, let us reason together.Report

    • Avatar Pat Cahalan says:

      > I challenge any of you to say there is room for disagreement
      > on SSM and specify precisely what you consider a valid
      > argument against SSM.

      Here’s a position where there is room for disagreement on SSM. “It isn’t the business of the federal or state government to sanction, encourage, endow, subsidize, or otherwise get involved with the household makeup of the citizenry, nor enshrine cultural norms as legal constructs.”

      Hey, now we don’t have any secular marriage at all. That’s a reasonable position, as it’s consistent.

      I think most of the people above have laid out a pretty fair framework for arguments against SSM. Give an argument against SSM that doesn’t rely on either specious empirical evidence of nebulous harm or that relies upon the Almighty.

      You’ve provided one: “Most people don’t want it”. That doesn’t rely upon either of the above, but assumes that “most people” are basing their wants on principles that are reasonable… that’s a pretty weak sauce argument, dude, especially when you offhandedly dismiss any possibility that the tyranny of the majority is a reasonable counterargument without any support whatsoever. Why should I give a crap what most people want? Most people wanted to go to war in Iraq. Most people want tax cuts and increased benefits (at least for themselves). Most people aren’t particularly clever.

      Put another way: just because I can’t think of a reasonable argument against SSM doesn’t mean there is one. Just because most opponents of SSM haven’t provided anything resembling a reasonable argument doesn’t mean that there isn’t one. But it’s not up to me to come up with your argument for you.Report

      • Avatar Heidegger says:

        Pat, I have not provided ANY argument against SSM. I did not intend to provide ANY argument against SSM. I said that it is a poor, poor, analogy to compare genuine victims of civil rights discrimination (African-Americans) and the issues involved with SSM. Period. I am just sick of the whole damn bloody banal subject. The war of attrition has been won. Whoopie! Celebrate! You can now marry frogs, goats, sisters, brothers, mothers, fathers, canaries, wolves, penguins, rattlesnakes, cobras, polar bears, iguanas and the more, the merrier!! Hey, it’s really worked out great in the Netherlands, hasn’t it? Now there’s a case study that ought to lend great weight in why the state ought to overturn Prop. 8, no? Males, within the marriage contract average 6.5 sexual partners a year. Sure sounds like a stable household environment to rear children, to me,Report

        • Avatar CLS says:

          Did you study to be this offensive or does it just come naturally?

          Normally when I see such raw statements I realize the person doesn’t provide arguments because they have none, other than their own prejudices. But you pretty much admitted as much.Report

          • Avatar Heidegger says:

            It’s been lots and lots and lots of hard work. My walls, everywhere, are adorned with Ph. Ds in bigotry and homophobia from the finest universities in the world.Report

        • Avatar James Hanley says:

          The Netherlands allow people to marry polar bears? I didn’t even know they had polar bears in the Netherlands.Report

          • Avatar Heidegger says:

            “The Netherlands allow people to marry polar bears? I didn’t even know they had polar bears in the Netherlands”.

            Damn, that just made me laugh!!!Report

      • Avatar Heidegger says:

        “It isn’t the business of the federal or state government to sanction, encourage, endow, subsidize, or otherwise get involved with the household makeup of the citizenry, nor enshrine cultural norms as legal constructs.”

        You’re forgetting the wee little problem of the huge financial investment the state has in sanctioning marriage. As in begetting, mentally and physically, healthy children. There is simply no compelling interest or reason why the state should redefine marriage. But who cares? You’ve won the war of politically-correct attrition on this subject. Check this out–Sisters of Perpetual Indulgence—Classy and quite impressive!

        Report

        • Avatar North says:

          My, for a fellow who’s weary of the whole issue and wishes it’d go away that’s a lot of passion and sour grapes.Report

          • Avatar Heidegger says:

            This subject has probably made it impossible for me to participate in any further conversations about, whatever. Hope not, but would perfectly understand a decision by the administrators to burn me at the stake. Hey, I’ve already provided the gas!
            Good luck and best to all! HReport

            • Avatar North says:

              Other than a little pushback from the commentariate I don’t see any indication that any of the League’s administrators have any desire to ban you so I’m confused where this concern is coming from. At the moment you appear to be filling the roles of both the truth telling martyr tied to the stake and the barbarian piling the fuel around the base yourself.Report

              • Avatar Jaybird says:

                At the moment you appear to be filling the roles of both the truth telling martyr tied to the stake and the barbarian piling the fuel around the base yourself.

                iluReport

        • Avatar James Hanley says:

          So what about gay people who raise children? Come on, H, these same points have been raised, and have failed, before.Report

          • Avatar Heidegger says:

            Sadly, James, they have. I should not have waded back into the shark infested waters regarding the subject of SSM. Is there anything to be gained by such an exercise, with an all too predictable outcome? None, but much lost. I will, (unjustifiably, I think) be forever branded a bigot.Report

            • Avatar Travis says:

              Nothing unjustifiable about a label which your own statements hath bestowed upon you. Wear it with pride. Aren’t you proud to be oppressing a minority group? Makes you feel all warm and fuzzy inside, I bet.Report

        • Avatar Pat Cahalan says:

          > You’re forgetting the wee little problem of the huge financial
          > investment the state has in sanctioning marriage. As in begetting,
          > mentally and physically, healthy children. There is simply no
          > compelling interest or reason why the state should redefine marriage.

          It’s not my argument, m’friend, it’s just one that I think is reasonable. There are drawbacks to it, of course.

          For example, the “get the State out of my household” folk could argue that while society has a vested interest in having well-adjusted citizens, there is no compelling evidence to indicate that the State’s sanction of marriage in a legal fashion promotes mentally or physically healthy children any more than the lack of the State’s sanction does. This is a question that can be investigated empirically; correcting for existing socioeconomic factors, do children of single parent households do “worse” than children of two-parent households? Do children of heterosexual parents perform “worse” than children of homosexual parents? Do children with two adults in the household (say, single parent but grandparent) do “worse” than others? Do societies without recognized legal marriage have more or less cohesive social units? Do societies without legal divorce have lower rates of spousal abuse?

          Most of the evidence I’ve seen on this score leads me to believe that there are little actual differences between even “two parents” and “one parent”, when you take out the economic factors, particularly if the child still has multiple adult role models. There is some, granted, but not a lot. About as much evidence points to multi-generational households being better for children than just a child-parent relationship. We don’t outlaw nursing homes. We don’t provide economic incentives for people to have their grandparents move in with them. We don’t make grandparents part of legal households. If society has a vested interest in the children, why not?

          In any event, we don’t outlaw divorce, so this clearly isn’t “just about the children”.

          So there’s very little actual societal benefit to marriage, other than legal shorthand for inheritance, power of attorney, medical decision making rights, etc. All of that legal shorthand is nice in and of itself, since it streamlines things, though. I’m certainly not a fan of red tape, and I doubt people want to sign 21 different legal contracts instead of seeing a JotP.Report

          • Avatar Heidegger says:

            Pat–you’re AWESOME! I want to you on the Supreme Court. Great comments, thanks. This proletariat has to go to work and cut some sugar cane. See ya.
            Looking forward to responding to you.Report

    • Avatar Aaron W says:

      The stage was set for same-sex marriage with the invention of reliable birth control and loosened divorce laws. This is what radically reinvented marriage in the first place to make same-sex marriage almost inevitable.

      As for valid arguments, I consider the strongest valid argument against SSM to be that marriage is intended for procreation. However, there are a number of valid, and even stronger counterarguments to this. Namely, if this is true, why do we let old people and the infertile get married? They should not be allowed to marry under this logic. In addition, gay people may not be able to literally procreate, but there are methods for them to raise children (adoption and surrogates…and let’s face it, anyone can get pregnant but the hard work of procreation is raising the children.) Almost all empirical studies show that there is no difference between same sex parents or traditional couples.

      I hope no one here has called you a bigot, and reading through most of the comments, I do not think anyone has. I also hope that you feel that you can express your opinion in this space without being ostracized.

      And when did the comments section here get so much rowdier? I must have missed something.Report

      • Avatar J. Peron says:

        Aaron: Marriage was radically reinvented several times before birth control. It was first reinvented when monogamy came to dominate Western culture. Prior to that most cultures practices polygamy. We had a revolution in the 4th Century when Rome banned gay marriages after a Christian emperor comes into power, the church itself did not have marriage rites of any kind for several centuries. In 1545 there was another major change as the Roman church said marriages were only valid if performed by the a Catholic priest with 2 witnesses. Calvin, around the same time demanded that the State had to be involved, not just the church.

        Then you have a major revolution with the industrial revolution which changed dramatically the nature of marriage. Individuals were now productive enough to marry for love. Previously marriages were often arranged for the purpose of economic success. The idea that one married to procreate was not dominate through most of history since people had no problem reproducing without marriage. It was heavily property and wealth that determine marriages and when capitalism increased prosperity marriage for love become possible. (Gay marriage is just another version of marriage for love.)

        Sociologist Barry Adams wrote: “Capitalism laid the groundwork for voluntary relationships based on personal preference, the precondition for ‘romantic love.’ Capitalism did not cause romantic love, it allowed it to flourish.”

        The historians John D’Emilio and Estelle Freedman, in their history of sexuality in America, Intimate Matters, wrote: “Sons and daughters not only chose mates with less attention to property and familiy considerations but some young people even disregarded parental opinion altogether. Operating within a political climate that decried tyranny and exulted the rights of the individual some children married over parental objections while others failed to inform their parents at all.”

        Classical liberalism brought in the idea that marriage was a private contract. In many ways classical liberalism and capitalism changed the nature of marriage so that it was seen more as a contract, and one based on love, not property, not status, not reproduciton.Report

    • Avatar John D says:

      I’m not comparing same-sex marriage to interracial marriage. Opponents to same-sex marriage kick up such a fuss that I’ve dropped that one.

      It hasn’t stopped Julian Bond, the former chair of the NAACP.

      It didn’t stop Coeretta Scott King, the widow of the Reverend Martin Luther King, Jr.

      It didn’t even stop Mildred Loving, the plaintiff in Loving v. Virginia.Report

  15. Avatar CLS says:

    The First Amendment protects churches, cults and sects from having to treat gay congregants as equal to their other parishioners. Churches have never been forced by law to love people they hate.

    What I don’t get is that so many people are worried the state might regulate churches while ignoring that the main reason gays can’t get married is that the legislation is reflecting church theology. Remove religion from the debate and marriage equality would have been established long ago.

    The purely religious aspects, ceremonies, rites, who preaches, etc., are exempt from anti-discrimination laws — even while Christians insist the secular world MUST never be allowed to discriminate against them, (and I’m not referring to govt. discrimination). For instance, FCC regulations say that secular stations must equally employe Christians for jobs but Christian stations may reject non-believers for similar jobs. The Religious Right wants to eat their cake and have it too.

    Where the anti-discrimination laws come into play is in areas outside the religious functions. A church owned business that sells used clothes to the public for instance. Or a church-owned pavilion that is rented to the public but not a church, and which got tax exemption on the basis that it is a “public service.” In MA it was a Catholic run adoption agency that wanted to take tax funds out of the pockets of gay taxpayers but refuse to hire them for jobs. Anti-discrimination laws have never interfered with the church itself. It has wrongly interfered with private business and rightly prevented tax funded organizations from discriminating. But none of that is actually related to marriage. The three main cases I know about Catholic Charities in MA, the church pavilion in NJ and a wedding photographer in NM.

    The only state that had gay marriage was MA and the case was about the Charity sucking at the state’s tit, not about doctrine or theology. The charity closed down because the church didn’t want to try to fund it privately, it wanted tax funds instead. A Mormon adoption agency had the same antigay policies and never in dispute because it didn’t take tax funds. The NJ pavilion had a tax exemption based on the promise that it was open to the public. When it chose to not honor that agreement it lost the tax exemption but was never forced to do anything. And NM didn’t have gay marriage and the anti-discrimination law still applied (wrongly in my view).

    These are two sets of very different laws and preventing gay marriage will have zero impact on whether or not the anti-discrimination laws (which are already there) are enforced. To conflate marriage with anti-discrimination legislation is certainly a dubious argument.Report

  16. Avatar John W. says:

    Writing this post without mentioning the name of Dale Carpenter seems like a pretty big oversight.Report

    • Avatar Jason Kuznicki says:

      Dale Carpenter’s views are well known, and Volokh has said that he agrees with them.

      What I’m reacting to here is the way that, while he professes agreement, Volokh’s substantive posts almost invariably say “slow down” or else point out how reasonable the anti-SSM side is, and how strong the anti- side’s arguments are. Take out the professions of agreement — usually offered without any argument of his own to support them — and he’d easily be counted an opponent. The fact that Carpenter is a co-Conspirator is irrelevant here.Report

  17. Avatar Heidegger says:

    Well, well, well, I most certainly cannot say discussion of SSM with this crowd is tedious! Thankfully, quite to the contrary. I’ve read all of your comments very carefully and want to thank all of you for your very thoughtful, well-articulated replies. North–“At the moment you appear to be filling the roles of both the truth telling martyr tied to the stake and the barbarian piling the fuel around the base yourself.” Now that’s just damn funny! I loved it and I hope I never lose the ability to laugh at myself–please, anyone, don’t hesitate to give me a good slap upside the head if you suspect this is the case. I was somewhat disappointed no one spoke out against the offensive mockery of the communion service by the drag “Sisters of Perpetual Indulgence.” I found it sickening. Not the best tactic to win hearts and minds. And therein lies the big problem. I was raised in a very strict Catholic household–nuns, priests, Jesuits, Latin Tridentine Masses, choir boy, altar boy, the whole deal, and as much as I’d like to think I’ve been able to pull away (hey, I was even a militant atheist at one time!) from all the dogma and influences of the Church I realize, that’s just not the way it works. In my case, at least, that whole experience formed a very strong core in my personality making it impossible to look at this subject, SSM, in a rational, objective manner. I’m sure, with this admission, it completely invalidates any comments and thoughts I have on the subject, and this is not an attempt to justify it but merely an acknowledgment that it’s a very difficult subject to come to terms with. And that very offensive stunt with the “Sisters” at Communion (and several other similar “guerrilla style street-theater pranks inside churches”) just freaked me out beyond words. I would never have thought I’d have such a reaction for the reasons I’ve already expressed. So, there you have it. I know it must sound extremely trivial, silly, biased, unsophisticated, bigoted, whatever, but I would advise proponents of SSM to at least take into consideration that there are very deep feelings below the surface regarding this subject, and not to so easily dismiss out of hand those with whom you disagree as being simple knuckle-dragging Neanderthal bigots. James, I’ll have to look into that–I think the racial classification laws you cited were add-ons and that the general, legal State and /Federal understanding of marriage was the union of one man and one woman. A question: Interracial marriage laws were forcibly enforced in the 1700s and 1800s–particularly against churches who performed such ceremonies. If the tables were turned, and SSM wss the law of the land, what would prevent the legal authorities from prosecuting priests for refusing to marry same-sex couples?Report

    • Avatar North says:

      Heidegger, I’m far from an expert on the cruelty and oppression of the interracial marriage issue in the 1700’s and 1800’s but I’d hazard to say that even at that time while the discrimination was going on it would likely have been considered technically illegal under the strict reading of the constitution had anyone ever been able to get an unbiased judge. I mean here we had government officials invading churches and dictating behavior. But then again the entire interracial issue in the States flew in the face of the country’s constitution repeatedly as far back as “all men being created equal” being drafted by slave holders.

      I don’t see how the modern judiciary, modern populace or modern culture of the country would tolerate such an invasion of churches in current times. Other than situations where Churches are entangled with government in various rent and subsidy seeking schemes there haven’t been any instances of SSM or gay supporters successfully (or as far as I know even trying) interfering.

      I didn’t comment on the Sisters because I was pressed for time and little to say. A quick review of wiki tells me that these “dames” were founded back in 1979. That gives me even less to say. I can understand that a person with your religious background and heritage would find the lot of them shocking. I believe that was and is their intent. Similarly gays in the early 80 probably found it shocking that so many of their young number who dwelled in Castro did so because they were exiled from their families, communities and churches because of their sexual orientation. The Sisters behavior is typical of the behavior of most minorities fighting against the routine social crushing of their members and especially against the attempt by social conservatives to deny the very existence of gays in American life. It is an assertive, shocking and undiplomatic refusal to be invisible, to dwell meekly in the shadows and margins of society. To wit the offensiveness of it was probably the point. In that they appeared to be non-violently expressing themselves I don’t see where you feel condemnation is due. Perhaps you feel the archbishop should have refused them sacrament? (I’m not Catholic so I don’t know, does communion have a dress code?)Report

      • Avatar Heidegger says:

        North, no dress codes that I’m aware of. Platinum blond wigs and speedos are sort of pushing the outer limits, don’t you think? And not to be forgotten, these offensive stunts were taking place inside CATHOLIC CHUCHES. This is no accident–the very point of this kind of “protest” was to shine public light on the “bigotry” of the Catholic church for being opposed to SSM. This is precisely why I think the gay rights agenda won’t stop until they have complete and total acceptance by both Church and State. I’m quite certain that when civil legal recognition is granted to same-sex marriage (and it will in the not too distant future), the final piece of the agenda will be a very militant, relentless attempt to force churches to do the same. Let’s not forget that not too long ago, the gay rights activists sole goal was state recognition of same-sex marriage, with states have the right (power?) to define marriage as they see fit—10th Amendment of the Constitution–“”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Well, guess what? The people HAVE spoken–in 31 states, to be exact, and have, by a very wide margin, rejected the right of same-sex couples to marry. SCOTUS may very well dismiss the appeal of Prop. 8 on the same grounds Baker v. Nelson was dismissed–“for want of a substantial federal question.” It appears the “people have spoken” is only accepted if you’re on the winning side.
        Didn’t Obama’s ordering all hospitals that receive Medicare and Medicaid to allow patients the right to decide who can visit them, put an end the “visitation rights” issue?Report

        • Avatar Heidegger says:

          I guess I’ll have retract my previous statement awhile back that SSM is “banal” and “tedious”. Far from it, thanks you learned folks!Report

        • Avatar Boonton says:

          This is precisely why I think the gay rights agenda won’t stop until they have complete and total acceptance by both Church and State.

          This is an example of a big SO WHAT argument. Yes some people think the Catholic Church should adopt SSM. Other people just think the law should just have SSM. If the law has SSM half of those people go home happy, the rest remain seeking to change the Church. Again so what?

          There are people who think the Catholic Church should recognize divorce, some who think they should elect Bishops, some who think they should ditch their veneration of Mary. The Catholic Church is more than capable of taking care of itself even with the fact that 100% of people aren’t happy with it 100% of the time.Report

        • Avatar North says:

          Heidegger, if the “Sisters” are Catholic, and since they seem to want communion I guess they are, then this would amount to an internal Catholic issue. Since I’m not a Catholic and have no Catholic background your astonishment and outrage that they’d do this just doesn’t parse for me. All I can say is that in that they are non-violent if gaudy. What exactly is their crime? Insufficient deference to religious authority?

          Heidegger, the last couple SSM referenda were won by very narrow margins and those margins continue to decrease. I’ll note that you left out the old standard right wing trope about leaving it to the legislature. Presumably because, of course, SSM has been winning in legislatures so now the anti-SSM crowd is forced back into their last redoubt of appeals to populist referenda. And you accuse Pro-SSMers of moving goalposts? You can be sure that the referenda will start being won by Pro-SSMers in time too. You can almost hear the flop-sweat start up on Maggie Ghallager start up every time the demographics of SSM support/opposition is mentioned.

          As for hospitals, that’s nice, but it would last precisely until the next Republican President rescinds the order doesn’t it? Nor does it help in situations where the patient is unconscious. You may find this shocking but gay people in bad medical situations suddenly find family members (that they hate) turning up and slinging their weight around when they’re not in a state to tell them to get lost.Report

          • Avatar J. Peron says:

            North said: “You may find this shocking but gay people in bad medical situations suddenly find family members (that they hate) turning up and slinging their weight around when they’re not in a state to tell them to get lost.”

            Below is a link to one such story. Patrick Atkins meet his partner Brett Conrad when they were college students. Some 25 years later they were still together, shared a home and Patrick had built up a multi-million company. On a business trip to Atlanta he had a stroke and incapacitated completely. His very religious Catholic mother swooped in and said she was family where Brett was nobody. She took over the company, ordered the hospital to prevent Brett from visiting his partner, took over Patrick’s bank accounts and ordered Brett out of the house they had shared. Even when physicians told her that Patrick improved greatly when he could spend time with his partner she told them she would rather her son died than get well and return to his sinful lifestyle. (Lovely woman!) The courts ruled that Brett had no standing legally and that Jeanne Atkins could get away with what she did because under Indiana law gay couples have no legal recognition at all. The court lamented that even though Patrick and Brett had been together longer than Patrick ever lived with his parents, Brett was legally a stranger with no rights. The judge even acknowledged that the parents would not give Patrick the sort of care he would get from his partner but said the legislature had tied their hands by passing one of these “defense of marriage” laws. The court even read a letter Patrick had sent his parents before the stroke: “I want you all to know that Brett is my best friend in the wold world and I love him more than life itself. I beg all of you to reach to him with the same love you have for me, he is extremely special and once you know him you will understand why I love him so much.” The parents refused that request. That is just one example of what North mentioned.

            http://freestudents.blogspot.com/2007/08/one-of-most-hateful-mothers-i-have-read.htmlReport

    • Avatar Francis says:

      If the tables were turned, and SSM wss the law of the land, what would prevent the legal authorities from prosecuting priests for refusing to marry same-sex couples?

      1. The First Amendment.
      2. The fact that anti-discrimination laws explicitly do not cover religious activity. (If a priest were also the city clerk, and he refused to grant civil marriage on the basis of his religion, then he would and should lose, but I assume that you’re talking about religious marriages only.)
      3. The fact that the legal authorities would face immediate condemnation / recall from the whole public – both liberal and conservative.
      4. The fact that neither the pro-SSM nor the legal community have any interest in interfering with private religious activity.Report

    • Avatar James Hanley says:

      A question: Interracial marriage laws were forcibly enforced in the 1700s and 1800s–particularly against churches who performed such ceremonies. If the tables were turned, and SSM wss the law of the land, what would prevent the legal authorities from prosecuting priests for refusing to marry same-sex couples?

      The analogy doesn’t work because those two things go in opposite directions. That is, if churches actually were prosecuted/fined/whatever for performing such ceremonies, it was because they were performing illegal ceremonies, not because they were refusing to perform legal ones.

      The better analogy would be to a church being prosecuted/fined/whatever for performing a same-sex marriage in Michigan today. Assume somehow they’ve gotten the marriage certificate, and the minister signs it, so it’s more than a mere ceremonial gesture-in that case the minister could potentially face some kind of charges for participation in some kind of illegal paperwork/documents type scheme.

      But your analogy is to a church refusing to perform a legal ceremony, which is fundamentally different from a church insisting upon performing an illegal ceremony. And since I have heard no cases of a church being punished for refusing to perform an illegal ceremony–I’ve yet to hear of a minister being prosecuted for declining to preside over an inter-racial marriage ceremony–then I just don’t see much reason to worry about it happening with homosexuals, either.

      And of course the reason no minister/church gets prosecuted for declining to perform ceremonies that they legally could perform is, as Francis notes, the First Amendment, which prohibits the government from compelling them to perform such ceremonies. The ministers/churches have the legal option to do so, not the legal obligation.Report

      • Avatar Heidegger says:

        James, nice. You’ve laid this out very nicely and you’re obviously correct. I just have to ask myself, “what in the hell was I thinking?” I think I was trying to fuse the idea of the danger of government getting involved and forcing churches to do anything, one way or the other. Your Michigan analogy clarified that entirely. So, you will state, for the record, that you are 100% opposed to any legal authority forcing churches, any churches, to mandatorily perform same-sex marriages? Just want to make sure I understand you correctly.Report

    • Avatar James Hanley says:

      Oh, as to the Sisters of Perpetual Indulgence, I’ve never met them, nor have I actually paid any attention to them. Did they do anything illegal, or just act obnoxious?

      I don’t critique you for being shocked. That’s rather natural, and I would have been equally shocked at one time in my life, so I understand it ( even though I’ve since experienced and observed far too many shocking things to find anything shocking anymore).

      But of course they were trying to shock people, right? And as hard as it is to muster equilibrium when people are seeking to offend, there’s no better way to steal the would-be shocker’s power than to refuse to express shock. A mere raised eyebrow as you go about your business can be mighty deflating (which is not to make a claim that I can always manage to respond that way myself)/Report

    • Avatar BobN says:

      just freaked me out beyond words

      You must be deeply susceptible to freaking out.

      Put aside the sensationalism of the news broadcast for a moment. Holy Redeemer is a majority-GAY, Catholic parish in San Francisco’ Castro district. Was it a bit much to show up in Sisters drag (which looks more Hindu than Catholic these days)? Perhaps. Do you notice that no one in the video really cares?

      In a subsequent interview, one of the Sisters in the video explained that he showed up that way because he had a busy day ahead of him raising money at a charity event — which is the official Sisters function — and didn’t want to have to go back home to put on his costume after services. As I recall, one of the guys apologized for “embarrassing” the archbishop — he didn’t even know the archbishop was going to be there.Report

      • Avatar Boonton says:

        Wow, but don’t you know that SSM wasn’t legal in CA when that happened? How can that be, how can the state not having SSM somehow cause someone to walk into a Catholic Church in drag? Hmmmmmm I thought that we are supposed to be opposing SSM because it somehow prevents drag queens from entering masses?

        Here’s something better. Someone shows up to church in drag, the priest, preacher or whoever is in charge of the Church asks them to leave. If they don’t they call the police and ask the guy to be removed and charged with trespassing. It’s all that simple.Report

    • Avatar Barry says:

      “If the tables were turned….?”

      The First Amendment to the Constitution, and the (IIRC), fourteenth.

      I don’t mean to be argumentive here, but haven’t you seen this before? As has been pointed out in various forums, there are church which will refuse to marry: interracial couples, intersect couples and couples one of which is not free to re-marry (in the eyes of the particular church).

      None of these has been prosecuted.Report

  18. Avatar Allen Lanning says:

    I don’t want to pile on against Heidegger, who seems reasonably good-humored through all of this commentary, or Koz but I have to say it rankles a bit to hear the issue called banal, let alone horrifically tedious.

    Who does it matter to?

    It matters to me, as an American guy married to another guy. You see, it’s my life you’re deciding. I’m real. I am not perfect, but I am every bit as decent of a person, as productive a member of our society, as good of a citizen as any of you. It matters to my husband. And, even if she doesn’t know it yet, it sure matters to our wonderful, innocent fourteen month old daughter.

    It also matters to me as an attorney. I am a firm believer that our American system of government, while not perfect, is the best model that has been conceived in theory and and the best structure that exists in practice to properly promote both freedom and equality of the individual, in a way which allows people to thrive in a free society. America is fundamentally fair. Inequality for gay people and gay couples specifically, is fundamentally unfair. I had thought that race or gender would be the last hurdles for our society and government to overcome. But now there is this.

    Sadly, even though I am a religious man, and complete supporter of religious freedom, when I reiterate my beliefs that anti-ssm churches will be protected by the first amendment, and my willingness to go to bat on their behalf once gay equality is achieved, I am generally not believed.Report

  19. Avatar BobN says:

    Back to Volokh, I’ve tried in his comment threads to get him to address why he thinks religious institutions need special protections NOW that they’ve done without for decades now, all along being forced to, for example, recognize the divorces of their gardeners and the pagan marriages of their accountants, at least for employment benefits purposes.

    No luck.Report

  20. Avatar J. Peron says:

    I would like to inject a personal story to illustrate the importance of this issue. I was living overseas and in a same-sex relationship for 10 years. Where we lived became too violent for us to stay. We found a temporary place we both could stay safely. But it was impossible for me to bring my partner of 10 years to the US because our relationship does not exist legally and couldn’t. I couldn’t stay any longer where we were. He couldn’t come to the US with me.

    The only option was to leave him someplace safe or both of us go back to where we have been subjected to three armed attacks. In two of those he got the worst of it, including having a loaded gun pushed up against his head as the gunman screamed at him that he would kill him. I was tied up next to him and believed that in seconds I would see a bullet go through his head. He suffered great trauma from the last two attacks. In the last attack I was shot at but they missed. To stay together would mean sending him back to that, and I wasn’t willing to do that to him. I loved him too much and thus was forced to separate. I loved him too much to stay together.

    I came back to the US. He is now a citizen where he is at and is safe and happy. We originally tried to come to the US but immigration attorneys here told us to forget it. There was NO way he would recognized as my spouse and they said it would cost a huge amount of money and take years to process an application for him and that it would be turned down anyway. Had our relationship been legally recognized in the US we would have come here.

    So, the fact that gay marriages are not legally in the US, especially at the federal level (thanks to Bob Barr) we were forced to end a 10 year relationship. That’s bad enough but then the Religious Right claims gay relationships are unstable to boot! Mine relationship was stable until it ran in the legal walls they set up against us.

    So, yes, I do take these issues very personally. And the reason is that these laws were applied to me very personally.Report

  21. Avatar Regan DuCasse says:

    As Jason pointed out, the only religious people or orgs that ran afoul of gay couples and litigation, is because the Christians in question breached the contract regarding public accommodation for public facilities and either tax exemption or public funding.
    And these situations were anecdotal and few, hardly trends.
    But the anti equality factions, blew each of these incidents into conjecture.
    Reality hasn’t born out any of such conjecture.
    I haven’t heard of a gay couple who sought a religious ceremony, suing or forcing the government to sanction any particular place of worship. There are plenty of gay friendly religious institutions that will, and it’s still not a reason to discriminate against gay couples since, as also pointed out, OTHER couples who meet the criteria for objections from churches and temples, aren’t discriminated against as a PREVENTIVE measure to protect religious communities.
    It is the 1st amendment that will do that.

    Mores the point, this is just another layer of the victim mentality perpetrated by the anti gay. Religion is non enforceable in our country because of the freedom to choose whichever one, and to what degree one chooses, just shy of encroachment on another person’s freedom.
    Case in point, there are several things done legally and freely every day that is objectionable by people of faith.
    Autopsies, contraception and organ and blood donation for example.
    No one is arguing that other citizens can’t use them, nor do they call it an infringement on religious freedom and expression if they do, so that bans are in place or considered for who chooses to engage in them.

    To discriminate against homosexual people, or homosexuality, is another layer of such religious contradictions, if not hypocrisy.
    Gay people have been around before any cultures arranged themselves around particular belief systems. Indeed, gay men and women and homosexuality itself have been a consistently stable and universal part of all human life, where one particular religion never has been.
    I’d argue that the human and civil rights of gay people deserve consideration as a birthright, before someone’s religion deserves to be.

    My point is, a great deal of things objectionable for religious reasons COEXIST with things that aren’t in our society.
    Hetero and homosexual people, COEXISTING under the same requirements and responsibilities, rights and freedoms is reasonable, while trying to justify discrimination really isn’t.Report

  22. Avatar Boonton says:

    It’s interesting to note that for decades, maybe even centuries, divorce was recognized by civil law but not by the Catholic Church. We’ve had plenty of divorced people getting married that the Catholic Church insisted could not be married because it did not recognize their divorce.

    To my knowledge there has never been a case of the Catholic Church being forced to recognize divorce or marriage of people who were divorced. As you may know the Catholic Church has lots of operations including very large charities, schools, and hospitals that touch the lives of numerous non-Catholics.

    Regardless even if it were the case that the Church was forced to recognize divorce, that’s not an argument against divorce. That’s an argument for preserving the right of Churches to set their own path on what marriages they are and are not ok with.Report

    • Avatar BobN says:

      Of course there are cases of the Church being forced to recognize divorce, and they are in those operations you mention. The large Catholic Charity groups, including schools and hospitals, don’t just hire Catholics in good standing. Besides, even a “good Catholic” can have a divorce forced on him/her. Do you think the HR department of the diocese just ignores lawfully binding divorce papers? Of course they don’t. They process them just as an non-religious employer would. You hubby divorced you? He’s off the spousal dependent registry.

      The Church, in its fight about recognition of same-sex relationships, is lying about its willingness and ability to recognize or not recognize those relationships.

      I think the main reason is that while there are relatively few divorces among workers at Catholic organizations, there are a boatload of gay people. And the Vatican knows it.Report

      • Avatar Jason Kuznicki says:

        Of course there are cases of the Church being forced to recognize divorce, and they are in those operations you mention.

        Find one such case. Just one. When it comes to remarrying these people, the Church won’t do it without an annulment.Report

        • Avatar Heidegger says:

          Jason, I am certainly hoping you’re correct. I think it is a very large part of this debate–with the people I’ve spoken to, it invariably comes up, because there is deep concern of churches, of any denomination, being legally forced to recognize and accept same-sex marriages. Would you be willing to go the record as one who categorically accepts civil, legal, recognition of same-sex marriage, and allowing churches to decide on their own whether or not to accept this? I hope you reply because I have the greatest respect for you and your vast knowledge on this subject. Thanks.Report

          • Avatar Boonton says:

            I’ll so go on the record. I think there should be civil SSM but churches are and should remain free to do what they feel their theology requires.

            The Catholic Church is Case A. Before you can be married in a Catholic Church you must jump through a host of hoops that are not required in civil law. You must be Catholic, must not be divorced (even if your divorce was from a non-Catholic marriage), you must attend pre-Canna classes etc. None of this is required by civil law yet no one has ever challenged these rules in civil court with any success.

            This argument is pretty annoying IMO. Just say for the sake of argument that civil law CAN force a Church to accept a marriage it doesn’t want to. If this was honestly the case, the solution to me is pretty clearly fixing whatever it is that doesn’t give churches the freedom to operate and associate as they please. The solution IS NOT trying to make the law conform to the theological demands of politically popular Churches.Report

        • Avatar BobN says:

          I’m not talking about forcing the Church to perform marriages. That argument is a caricature of the issue. NO ONE believes the government will force the Church to perform marriages.

          I was replying to someone who said the Church DOES NOT recognize divorce. Of course they do.Report

      • Avatar Boonton says:

        Do you think the HR department of the diocese just ignores lawfully binding divorce papers? Of course they don’t. They process them just as an non-religious employer would.

        The Church here is acting as a non-religious employer by choice but it’s not recognizing the divorce or remarriage of the employee. Just because you get health benefits for your 2nd wife doesn’t mean your divorce and remarriage has been approved as consistent with Catholic teaching. If you went to a priest he’d tell you all is not well.Report

        • Avatar J. Peron says:

          This is correct. It is important to distinguish between what the church does in a secular capacity (such as an employer in some capacities) and what it does theologically. That it recognizes a divorced secretary’s remarriage doesn’t mean that it has to change any of its views on marriage when it comes to church rituals, rites or dogma. So a divorced person can not force the church to perform their second marriage any more than a Jew can force them to perform his first marriage. And just because opposite sex marriage is legal that doesn’t mean it has to admit married priests. Given all these examples of how churches are not legally required to recognize the marital status of straight people the whole hysteria over them being forced to recognize the marital status of gay people is nothing more than a bugaboo.Report

      • Avatar Boonton says:

        More importantly, there’s nothing stopping that. The Catholic Church can, for example, say only Catholics in good standing can teach at their schools, even do jobs as minor as janitor or lunch lady. They choose to be a secular employer because they deem such requirements to be unnecessary for maintaining its faith.Report

        • Avatar BobN says:

          There most certainly is something stopping them from exercising religious discrimination in the hiring for non-pastoral, non-educational positions.

          THAT’s why they’re fighting for EXTRA rights to bar gay people.Report

          • Avatar Boonton says:

            That something sounds like the market as well as theology. Trying to run a full hospital while at the same time only employing good Catholics would be very difficult, if not impossible. Likewise there’s no particular theological reason for a Catholic hospital to deny employment to, say, a Jewish doctor.Report

  23. Avatar Johnny In Georgia says:

    Unless I missed it, I guess no one called Heidegger a bigot. But I will. As is typical on blog comments on this topic, opponents initially start out civil, but it always devolves into name-calling, charges of deviancy, bestiality, etc. *YAWN* Nothing new there.

    But no argument they can make sufficiently covers the stench that their position is rooted in plain and simple bigotry. Thanks Jason for deconstructing the downright bizarre semantic machinations of Eugene Volokh on this issue. You’ve brought to the fore what I’ve long thought reading his blog — the sly “I’m with you, I really am” . . . but analysis that undermines the very proposition. The man has issues. And then just read though the blog posts from his faithful wing-nut commentators getting all riled up. It’s repugnant and revolting. I’m sure Heidegger is among them.

    I needn’t reiterate the pro-SSM arguments (in a word, they are devastating; to dismiss this is to be unable to think critically or process rational arguments, well, ok — that is a hallmark of anti-SSM types) — or rebutting the anti in these posts in specific detail. It’s this simple:

    1. Homosexuality is biologically determined, not a choice and an immutable characteristic.
    2. Non-theologically based arguments against SSM are simply incoherent (procreation is the purpose of marriage – duh!; the children! But see recent UCLA study — maybe you SHOULD have had two lesbian Moms!)
    3. ALL other opposition arguments to SSM are founded on theology and a belief system incompatible with science and the world as we know it in 2010 (construct Venn diagram of those opposing SSM with those favoring teaching “creationism”, LOL – just to begin).
    4. Therefore opponents of SSM (or any other equality measures for LGBT’s) really do hate us, they really do! — Just for who we are.
    5. We live in a secular society — the government should not and can not be in the business of legislating policy grounded on the religious beliefs of one group (even if a majority) to discriminate in services, economics, and/or treatment of another group. Period. It’s the sine qua non of hate. (See Colorado Amendment No. 2, SCOTUS over-turning, or Judge Walker’s opinion and others).

    On the plus side — bigotry IS protected speech. Bigotry in religion is protected. To all you anti-SSM haters, embrace the bigot that you are. But don’t tell me I have to live in a country and under a government that institutionalizes your bigotry in its laws and treatment of all citizens.Report

    • Avatar Jason Kuznicki says:

      I try very hard never to call anyone a bigot, even if it’s true. I don’t find it to be a constructive claim or one that moves the conversation forward.

      Otherwise, I basically agree with you.Report

      • Avatar Johnny In Georgia says:

        Ordinarily, I’d say that as well. But let’s deal with reality — the arguments against LGBT full equality — in the arena of SSM and otherwise — are risible. In 2010 this isn’t abundantly clear? What does our country, our Constitution stand for if not clearly this — equality of treatment divorced from the influence of narrow-minded religious beliefs, grounded in medieval texts and that reject science and most of what we’ve learned in modern history?

        I’ve been waiting my entire life for equality. I am part of a bi-national couple and my partner is currently banned from traveling to the US (Oh, shit — forgot — I should just go marry that opposite sex hooker in Bangkok and I can get her back here legally in 48 hours, to hell with my 10 year relationship!). It’s beyond ridiculous. We know better. We should have learned more from the struggle for civil rights.

        Frankly, my patience is worn thin. Read again Jason the arguments that are proffered by our opponents to support continued discrimination — they’re spurious, indefensible and built on irrational, fear-based stereotypes. Let’s stop being nice and call it what is. It’s time.Report

      • Avatar Johnny In Georgia says:

        And I also should have added look at what opponents of equality DO — they opposes equality for LGBT Americans by perpetrating falsehoods, outright lies, distorting the conclusions of legitimate studies, concocting dubious studies/reports/articles researched by fringe scientists/researches, abuse LGBT youth with reform therapies, well – the list goes on an on (See FRC, NOM, and others). There is no lower depth to which they will not stoop; there is no sincere concern for the innumerable individuals and at-risk youth they are willing to harm. The damage they have inflicted in real and enormous. And they continue it. Their hands are bloody. It truly boggles the mind as to what motivates the animus and wholesale rejection of legitimate argument and research.

        To that end — to engage them in a legitimate debate and expect them to function in a critical and rational way — is a waste of time. The red-herring of the threat of religious discrimination is only the most recent example and the center subject of this blog post — but the tactic is not a new one. It’s a hypothetical threat with absolutely no credibility. And when you strip away all their so-called arguments, all their so-called research — in fact everything they say — you are left with one thing: HATE.Report

      • Avatar Heidegger says:

        And can we also add that Chopin, might very well be the greatest composer for the piano the world has ever known?! ( Appealing to those Polish roots/genes/ , Jason!

        And Tchaikovsky is a great, GREAT music composer, not a great, great composer of “gay music.” This is not bigotry but an impassioned plea to, once and for all, not “sexualize” the arts with the sexual orientation of the artist–it severely diminishes the greatness and genius of Mr. Tchaikovsky and the many, many other great gay artists. What the hell is “gay music”, by the way?Report

        • Avatar mark boggs says:

          No, it doesn’t diminish their greatness and it speaks at a rather loud volume that you seem to think it does, H. I think why people might point out the sexuality of some of these folks is to remind those who think that gays are somehow subhuman and undeserving of equal protection of the laws that gay people have always been with us and (horrors) some of them have painted the paintings and written or performed the music so many humans (including those who otherwise find homosexuality sinful and abhorrent) have enjoyed for many years. It’s another way of pointing out that being gay does not preclude one from being a productive or even outstanding member of the human race. Most people who bring up their sexuality would very much like it if the sexuality didn’t matter, but in so many areas of life, unfortunately as in the case of equality, it does.Report

          • Avatar Heidegger says:

            Hey Mark, great to hear from you! Allow me to clarify the Tchaikovsky remark. I in now way, meant to suggest that Tchaikovsky’s homosexuality would/should in any way taint his reputation or standing as one of the great, great composers of all time. His art so far transcends such prosaic sexual identifications, that I just think it’s not necessary tag on the “gay” qualifier. He had an enormously painful and difficult life and I sometimes wonder if he would have been as great of a composer if he was heterosexual. Life is funny when fate is part of the picture. And for the record, since I’ve been outed as an irredeemably bigot, when I was in music school, one of the greatest, most beautiful musical experiences I’ve ever had was having the honor to play a Mozart violin and piano sonata (K.380) with a great friend and violinist and yes, you guessed it……he was gay.Report

            • Avatar mark boggs says:

              Ahh. Well, I assumed (wrongly, probably) that you were criticizing people who want to point out the sexual preferences of some notable humans. I was simply pointing out my own reasoning for why people may be wont to do that. My only question to you, and I’m assuming you knew the violinist well, is this: You would actively seek to limit his freedom to enter into a contract with another person of his choosing?Report

              • Avatar Heidegger says:

                Mark, writes,

                “You would actively seek to limit his freedom to enter into a contract with another person of his choosing?”

                No, as long as I was the guy he was going to marry! Okay, seriously now, Mark, that really was one helluva good question. It sheds a completely different light on this issue, and forces me to think of it not in the abstract,
                but in real life terms, with real life human beings. And no, I could never, and would never, do anything that would limit his freedom to marry whomever he wants. Hey, I’d even be his best man! Am I just being completely schizoid? There seems to be two entirely separate thought patterns going on simultaneously and I’m really at a complete loss how to bridge the two. Who knows, maybe this is a problem with a lot of people when it comes to same-sex marriage.Report

              • Avatar mark boggs says:

                Understood. Which is why encouraging a bit of openness about the issue of homosexuality brings a lot of friends and families out of the shadows and makes it much more than just a hypothetical, gay-sex-is-icky, type of discussion. I think it’s a bunch harder to be so rigid about one’s opposition to it when we’re not talking about the shock and offense of the Sisters of Perpetual Indulgence but are talking about one’s own brother or daughter. I’m happy to hear your willingness to see it in a bit different light when we speak of your violinist friend.Report

              • Avatar Heidegger says:

                Mark, if you only knew how close this subject is, in a familial sense, you’d be quite amazed. I’m never going to bring my family, both immediate and extended, into these kinds of discussions, but trust me, there are many layers to this issue. And I do mean, many. And never hesitate to toss the those grenades!

                By the way, I loved hearing how you were exposing your son to different kinds of music. Bravo! Music is the gift that keeps on giving, giving, giving. The rewards are immeasurable and the beauty, bottomless. As if I need to tell you that. I’ve done the same thing to all of my nephews–concerts, CDs–and they’re getting it–takes awhile, but once it kicks in, it’s there forever. Way to go!Report

        • Avatar mark boggs says:

          And let’s also not talk about “gay sex” then. Cunnilingus, fallatio, and anal sex are
          (anecdotal evidence alert) every bit as popular with heterosexuals as they are with homosexuals.Report

    • Avatar Heidegger says:

      “Unless I missed it, I guess no one called Heidegger a bigot.”

      Oh Johnny, you’ve definitely missed it. I’ve been dodging Molotov cocktails, grenades, RPGs, AK-47s, you name it, so just get line and hurl every insult and ad hominem you can think of.

      Is it even within the realm of possibilites to discuss SAM with the personal attacks and name calling? Please. Pretty please?Report

  24. Avatar J. Peron says:

    I would suggest that further dialogue with Heidegger is akin to hit one’s head against the wall. No matter how good it feels after you stop doing it, it is won’t accomplish anything positive.

    I do not believe he is open to reasoned debate. He repeats the same disproven claim that SSM will force churches to recognize it, over and over. The evidence in the US is overwhelming that is not the case and is not likely to be the case. Discrimination against blacks is illegal, ditto for Jews. Yet churches have remained free to refuse to perform interracial marriages or Jewish marriages. We have decades of legal precedents on anti-discrimination law (which I tend to oppose) which clearly grant exemptions to religion, which is unequal protection before the law and special privileges for the church (all people should have the same right of freedom of association, not just the church.)

    Catholic Churches are not forced hold marriages for Jews. When my Catholic father died he was refused burial in a Catholic cemetery because he was divorced. They were free to do that. They can refuse communion to whomever they want. They can refuse baptism and last rites if they wish. All their rites are protected by the First Amendment. And that goes for their “rite” of marriage as they perform it. Beyond the doors of the church they have no such right, that is they can’t deny other churches the right to perform the weddings they wish, or baptize whomever they wish.

    If SSM marriage threatens some church the threat is more imaginary than real, much as is the case with environmentalists. With legal precedents established, with decisions in the courts, from lowly to supreme, establishing the separation of church and state—which here protects the church from being forced to perform any ceremony—there is no real threat to the freedom of the churches to be as bigoted as their god demands.

    Given that the threat does NOT exist in reality but is the major locus of argumentation by Heidegger then I submit that the argument is NOT the reason he opposes SSM. It is the excuse.

    I’ve read his comments and I do think he is bigoted against gay people in general. By that I mean he holds irrationally based dislikes for a class of people based on a shared characteristic. Now, given that most people, and all rational people, dismiss bigoted arguments from the start what does must a bigot do in order to continually push their viewpoint? The only recourse they have is to cloak their reason and trot out any convenient excuse they can find. As trite and silly as many of their “concerns” might be, they aren’t immediately dismissed by rational people as bigoted thus given the anti-gay exponent a hearing, which is what they want.

    However, faced with the burden of proof of proving their case, they run into problems. This is why the Prop 8 crowd distorted the facts of various cases in the television commercials—such as claiming that Catholic Charities adoption agency in MA was forced to close down due to opposition to gay marriage, when the issue was tax funding which denied them, and they chose to close rather than not run on the taxpayers expense. They lie to scare people but without the evidence they lose credibility and over time the debate continues to evolve in the opposite direction from the one they seek. The public, watching the debate, and weighing the evidence, is constantly judging and rejudging. And the shift in public opinion shows that most people are finding the arguments of the Heideggers of the world to be deficient. Some see them for the prejudiced views that they are, some see them as factually in error, some see them as simply unjust or immoral, but regardless of why they reject such arguments the trend is in the direction of individual rights and liberty, not fear and bigotry.

    Given that his arguments have been answered multiple times, given that he has not provided one piece of evidence to support his fear—only conjecture, then I have to conclude that he has no evidence to present, and that his argument is not evidence-based, but fear-based. All he has done is express his fears much like the Klan and their allies expressed a fear of the Catholic immigrants coming to America. They lacked evidence so they beat the drum of fear repeatedly. I suspect our anti-gay friend would admit that the anti-Catholic campaign was bigoted. It was bigoted precisely because it concentrated on fear and not evidence, that is what bigotry must do in order to create other bigots. Evidence reduces prejudices, fear inflames them. So every bigot ultimately rests his arguments on imaginary fears, ignoring evidence to the contrary.

    The only reason to continue the debate then, is if you think other readers will be enlightened or won over. But from what I see this is a debate between pretty much everyone and Heidegger, without any real groundswell of support for his claims. In that case, I suggest we all have better things to do. And trust me, it will feel so good when we stop.Report

  25. Avatar Regan DuCasse says:

    There have been no prosecutions of any clergy in America for REFUSING to marry ss couples. As I mentioned, there has been litigation on the grounds of Christian orgs. breaching contracts that require non discrimination and tax exemption or public funding.
    But that’s on the religious group not holding up their end of a contract, NOT a prosecution.

    If anything, there have been clergy who have been fired, ex communicated and shunned FOR performing same sex ceremonies. What do you say to THAT, Heidegger?

    Gays and lesbians are not in this to persecute, nor have they, any person of faith.
    However, for CENTURIES, the same can’t be said for how actively the extension of punishing those of avowed faith are willing to do against gay people and their allies.

    Remember the retention vote situation in IA after a unanimous vote that the state Constitution had no grounds to discriminate against gay couples to marry.
    After that, NOM went on a campaign, charging the justices as if they were corrupt on this SINGLE decision. Three of the justices were up for retention of their positions and after an aggressive political action, as if the judges were pro gay, rather than pro Constitutional protections, the judges were removed.

    The persecuting, is being done by those opposed to see gay people treated equally. And the proof of that is everywhere.
    Proof that there is prosecuting of people of faith because of their beliefs against gay people…not so much.Report

    • Avatar Heidegger says:

      RDC: Do you realize what you’ve just said? We’re bordering on theological, canonic anarchy, now.

      “If anything, there have been clergy who have been fired, ex communicated and shunned FOR performing same sex ceremonies. What do you say to THAT, Heidegger?”

      OF COURSE THEY ARE GOING TO BE FIRED!!! There have been several readers who have sworn under oath, (okay, that’s just a bit extreme) gone on record, that they would be perfectly comfortable with a resolution of same-sex marriage which would extend civil marriage rights to same sex couples AND conversely allow churches complete freedom to decide on their own whether or not same-sex marriage should be recognized. Now I’ll really go out on a limb, and bet my life that Jason Kuznicki’s understanding of this resolution does not mean same-sex marriage recognition can vary from one Catholic church to another. I mean, c’mon now–(I think you’re probably just yanking my chain!) I can come to no other conclusion that implicit in your statement, is your belief that priests should be allowed to conduct same-sex marriages if they so desire. Sorry. That’s just not going to work–you’re talking the nuclear option now, which is not at all where I thought this discussion was heading. Catholic priests cannot just flip the middle finger to the Vicar of Christ and expect to remain employed. And you guys keep wondering why I continue to bring the Catholic church into this discussion. How can I not when comments like this keep coming up–“there have been clergy who have been fired, ex communicated and shunned FOR performing same sex ceremonies.” I thought we were making pretty good progress but if RDC is accurately expressing your sentiments, we’re really stuck in a hopeless, circular, irresolvable, conundrum. Sigh…Report

      • Avatar Boonton says:

        Why are you still bringing the Catholic Church into this argument? Who do you have ON RECORD saying the law should force the Catholic Church to alter its cannon law to be in sync with civil law? Andew Sullivan, for example, has said that he no only thinks the Catholic Church should be allowed to not recognize SSM, but that he doesn’t even think SSM can be reconcilied with Catholic theology.

        Forgive me if I’m wrong but I think you’re purposefully confusing the issue here by conflating people who think the Church *should* have SSM with the stance that the state should force it on them.Report

        • Avatar Heidegger says:

          I’m trying not to, but then there was the statement by Mr. Du Casse–“If anything, there have been clergy who have been fired, ex communicated and shunned FOR performing same sex ceremonies. What do you say to THAT, Heidegger?” That deserves a response. Are you saying, as Mr. Du Casse does, that Catholic priests should be allowed to perform same-sex ceremonies contrary to Church law?Report

  26. Avatar Regan DuCasse says:

    Heidegger, you totally misread my statement. I was NOT, I repeat NOT claiming that clergy SHOULD rebel, I was only stating that it happened and they were punished for it. And they weren’t Catholic, but the way.
    I reiterate that there are less repercussions against clergy who don’t perform the ceremonies than claimed by the opposition.
    And it’s these false claims, that do have influence on political actions. Even if there is implicit language that says so, this is denied.
    So, it’s fair for me to say that gay men and women have more veracity than the opposition.
    I don’t support that any reluctant clergy should be forced to perform ceremonies, and this IS the general belief of gay men and women as well.

    But the truth is, they aren’t forced at all. And no one gay is saying they should be. Civil ceremonies that are legal, have ALWAYS been separate from the religious one anyway. So it doesn’t even make a lot of sense for gays to be accuse of changing that fact.

    This is how deep the cynicism runs, Heidegger. Right away you thought theocratic anarchy was afoot from me just pointing out a reality.
    Slow your roll there.

    By the way, I’m not a man. I’m a tall, broad shouldered, hetero black woman all over the bullshit lies being told ABOUT gay folks.
    Echoes from my childhood when black folks got painted the same way in the cynical ploy that ALL blacks lie, are conspiring and will make systems and institutions formed by white people less valuable if blacks were treated equally.
    I’m not equating color with sexual orientation.
    I’m equating the bad and unjust treatment of both minorities and the pretzel logic used to rationalize it.
    Fair?Report

    • Avatar J. Peron says:

      Bravo Regan. So many people miss what you understand when you note that their your experiences as a black woman help drive you to debunk preconceived notions about gay people. I’m in the reverse position, as a gay man who experience a lifetime of prejudice I came to understand the problems of black people in a white culture (which was helped along by living as a white man in black culture for some years as well). It is very easy to be blind to the reality that others experience because it is not our reality, which is something I try to get my fellow libertarians to understand.

      I see we have a mutual friend in Kerry O.,Report

    • Avatar Heidegger says:

      Thanks Regan for getting back and clarifying this-appreciate it. And man, did I really mess that one up! I think it can be safely said, with unanimity,. that the twain between Church and State shall forever more not intersect when it comes to defining marriage. By the way, am I correct in stating that this debate centers around Federal recognition of SSM, not State? I know Prop 8 set the wheels in motion that will make it more than likely to end up in SCOTUS sometime next year. We’ll see, and thanks again.Report