No, Justice Kennedy Didn’t Just Call a Bunch of People Bigots
Or: “Everyone’s a Little Irrational Sometimes.”
Chief Justice Roberts’ dissent is in some ways the most interesting of the opinions in U.S. v Windsor. He didn’t believe the court had jurisdiction — a complicated question in its own right — but he did say something quite important (and quite right as far as it goes, in fact) about the majority’s holding:
That the Federal Government treated this fundamental question [i.e., the gender of marriage partners] differently than it treated variations over consanguinity or minimum age is hardly surprising—and hardly enough to support a conclusion that the “principal purpose,” ante, at 22, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.
Nor would I! And yet I think Kennedy’s opinion is basically correct. The truth is that, were we to try to infer motives, considering the minds of the individuals who enacted DOMA as 428 utterly impenetrable black boxes, we might infer bigotry, but we wouldn’t have to.
In some cases, I feel very justified when I infer bigotry. Strom Thurmond, Trent Lott, and Jesse Helms all voted for DOMA, after all. These individuals all but certainly did have a bare desire to harm gay people. Bigots, each one of them, on multiple accounts.
Here’s the tricky and possibly tendentious part: By the rule of means-ends fitness, they were acting rationally. They wanted to achieve the end of hurting gay people, and DOMA was a fit means to that end. Strictly speaking, that’s rational, even if the free-floating desire to do harm is evil. Which it is.
We can’t likewise claim rationality for some of the others. Let’s remember that politicians do sometimes act irrationally — I hope that’s not too controversial — and let’s also recall just what the word “irrational” means. I think this says it pretty clearly:
an action or opinion given through inadequate use of reason, emotional distress, or cognitive deficiency.
By this definition, we are all sometimes irrational. We all experience emotional distress and cognitive deficiency. We all sometimes reason inadequately.
Politicians are by no means immune. Sure, they look like really with-it people, but they aren’t. If anything, they face a particularly great temptation to irrationality, namely the fear of not winning re-election. Definitely a source of emotional distress! Venal as all hell, that, but it’s recognizably human.
When politicians substitute the rule of political expediency for the rule of doing what’s right, they are using a rule that ill fits the situation. That’s what irrationality is. We have no particular reason to think that the rule of political expediency should fit, not ever. But that rule was certainly in play when DOMA passed. It’s that or think that Bill Clinton was a bigot, which I don’t believe. All I need to believe here is that he was a few days out from an election, which was undoubtedly the case when he signed DOMA. The same was true of most other individuals who voted for it.
It’s that or think that Bill Clinton was a bigot, which I don’t believe. All I need to believe here is that he was a few days out from an election, which was undoubtedly the case when he signed DOMA. The same was true of most other individuals who voted for it.
Another narrative that’s easy to adopt is the one that says “if I don’t do this, I risk a Constitutional Amendment.”
A Constitutional Amendment may or may not have passed in 2004 (when Gay Marriage became huge on everybody’s radars) but I suspect that it would have passed back in 1996. If a Constitutional Amendment *HAD* passed, it would have affected everybody for decades and decades and goodness knows how long it would take for there to be only 12 states that would be against repeal… While DOMA only lasted until a Constitutional Amendment would not pass in the first place.Report
I agree, JB. I suspect both DADT and DOMA were to buy time; or as it’s known in politics, pushing the can down the road.Report
“kicking”Report
Thank you, Pinky. I new it was wrong, but I migraine, and language eludes.Report
I wouldn’t even be able to look at a computer screen.Report
“going to”?Report
This is a good point. But when we get into intertemporal strategies for rational behavior, we are deeply in Derek Parfit’s territory, and my brain has a tendency to melt.Report
I think it’s really important to place this in context of the time, Jason, and that context was certainly defined by the AIDS epidemic. Within the previous decade, we’d seen the emergence of AIDS, I clearly remember the first rumors, “a disease of gay men who have over a thousand different sexual partners a year.” Some quick math suggested to everyone, these dudes are having sex like three times a day, with a different partner each time.
While the importance of ‘safe sex’ was part of the vernacular, the damage of that branding from the early 1980’s still held sway in many folk’s minds when the considered ‘gay.’ They saw gay pride parades, with much of its extremes, but the kind, considerate couple next door hadn’t yet made much impact.
The great irony here is that most of the gay couples I knew were ultra conservative in most other ways, they did not want to draw undue attention to themselves. It took thousands upon thousands of acts of courage to step out of the closet and proffer the alternative of ‘marriage’ that we see today.Report
There has to be a name for this phenomenon, Shooting the Messenger is close but doesn’t quite fit: the gay community had been running health clinics for quite a while — they spotted AIDS in their own patients, though HIV/AIDS had been spread heterosexually (and through IV drug abuse) for years. Somehow HIV had made the jump from apes to humans in Central Africa and had been killing thousands of people before it arrived in the West.
The gay communities understood their own promiscuity. To that end, they were obviously more concerned about STDs. Heterosexuals are promiscuous and vulnerable to STDs — and via the same routes but the gay community had the good sense to check their own.
Well, thank goodness DOMA’s been overturned. But well within living memory, being outed could destroy a person’s life and career. DOMA was the last, angry rearguard action, trying to stop Teh Gays from Destroyin’ Our Precious Cultural Axioms. I remember when DOMA was passed, twitting a bunch of fundamentalist Christians, saying “If we want more stable married couples raising children and less of this furtive, dangerous promiscuity, a defense of marriage act should encourage gay couples to marry, thus cutting down on what we don’t want.”Report
I have several friends who were, in their youths, joined in marriage to members of the opposite sex; it was what you did.
They all speak with tremendous remorse at the pain the caused their ex-spouses because they could not enter the marriage whole-heartedly because they were gay/lesbian.
Acceptance of gay relationships and gay marriage supports and adds to traditional marriage because it will help end the false marriages so many people felt they had to enter to protect their secret gay identity. My brothers both grew up in a world where there were no role models, no one to mentor them. All the world’s message was that straight was the way to be; there was no consideration for any other way. I can’t imagine how isolating that must have been, how difficult. And I’ve tried to imagine. When I talk to my remaining living brother about it, he weeps. Nobody should have such pain over something essential to themselves.Report
There’s an irritating… well, I hesitate to call it a “talking point”… going around saying that DOMA was a Clinton law, Don’t Ask Don’t Tell was a Clinton policy…
Dude. THAT IS BECAUSE THE OTHER OPTIONS WERE EVEN WORSE.
Yes, DOMA being overturned because it’s unconstitutional and immoral might be a black mark if it weren’t the half a loaf that was considered better than the constitutional and immoral other option that was nowhere *NEAR* as overturnable.
JEEZReport
People seem to forget that DADT was an improvement in the previous situation. Also that while Clinton signing DOMA was distasteful, it had no practical consequence because DOMA passed with veto-proof majorities.Report
“I’m only punishing you now so that you don’t get in worse trouble later. Believe me, this is the least-bad of a number of bad options. You’ll thank me later; you’d be thanking me now, actually, if you were able to think about this rationally instead of emotionally. Honestly, this hurts me almost as bad as it does you. Now shut up and accept your second-class citizen status, because if you cry about this too much it’ll look bad twenty years from now.”Report
Not bad, but hardly your best stuff.Report
We’ve been through this before – a person can oppose gay marriage without being a bigot; a person can oppose gay marriage without intending to harm anyone. I think you started out trying to say that, but somewhere along the way you ended up saying nearly the opposite.Report
I said the choices are two — bigot, or irrational. And irrational is a lot more common than most people think.
I’m not sure where you thought I ended up saying anything different. Really, I’d thought my control of the theme was exemplary throughout.Report
I think it might be helpful if you referred to yourselves as Gaytriots.
I think the basic issue is not so much “bigotry,” or the desire to see others harmed, but seeing a group of people as “other” enough that you don’t extend them the same empathy you would the members of your family or tribe.
I realize that is a kind of fuzzy distinction, but the stereotypical picture many people have of gay people is of the naked guy with the feather duster up his ass marching in a gay parade in New York City. Outside of our bigger cities, I wouldn’t be surprised if a substantial plurality of people don’t even know if they know any gay people, so they’re left with nothing but a bunch of cultural stereotypes to deal with.
That’s why I think that, in this historical moment, the cultural ground that is being gained by gay people will not ever be lost. All of the changes in legal and cultural norms will only help to bring them more centrally into the cultural mainstream: marriages, mortgages, children, and all that stuff.
It’s kind of shocking to see a “comedy” from the 70s or 80s when it was still fashionable to play on cultural stereotypes of homoanxiety and simpering queens for cheap laughs. And a solid majority of all Americans support gay marriage or civil unions, which would have been unthinkable only twenty years ago.
So I think that for most, the idea is more that gay people are an “other” that they don’t understand, and don’t extend particular sympathy towards, much more than wishing any specific harm on them.
The flip side of that is that “gay culture” is dissipating as the need to nurture a sense of “otherness” and solidarity diminishes with relative cultural acceptance. I remember a friend from the 70’s that used to advocate for a literal gay nation (he was thinking of commandeering one of the Hawaiian islands for his cause. I could only anticipate some obvious demographic problems…)Report
a person can oppose gay marriage without being a bigot
I don’t think this is true. It’s like saying a person could oppose segregation without being a bigot; or a person could oppose women voting without being misogynist. This person might not think they’re a bigot, most people don’t want to think so of themselves. But embracing bigoted policies results in institutionalizing bigotry, and is, in fact, bigotry.Report
Good point. If “being a bigot” is an objective property in the world, then a person could be a bigot without realizing that they are. That seems clear enough to me.
The real dispute at that point isn’t about intentions or ignorance/awareness or self-concepts or hurt feelings or attacking another person’s character. It’s about what actually constitutes bigotry as a real, objective property in the world. That’s a conversation preempted by antagonism, it seems to me.Report
a person can oppose gay marriage without being a bigot
There’s a hidden premise here, which is that people always act rationally — that is, all their actions are in accordance with some rule that can be laid out in noncontradictory fashion.
“I just want to hurt gay people” is one such rule. It’s an evil rule, but one can definitely act in accordance with it, and it’s not inherently self-contradictory.
What I’m saying here isn’t that this rule isn’t evil. I’m saying that the hidden premise is wrong, and people act for all sorts of reasons that are contradictory, don’t answer to means-ends fitting, or are otherwise irrational.Report
There’s a tendency to assume that “deeply held religious belief” and “bigotry” are completely disjoint sets. I don’t think that we can fairly make that assumption.
If it is my deep religious conviction that women are unfit to vote (or drive cars, or basically do anything I don’t tell them to do), is that bigotry?Report
I think the tendency in modern conversation is to assume that “deeply held religious belief” and “bigotry” are identical.Report
Maybe. I look at it the other way: given that the harms incurred to gays from codifying “traditional marriage” are so clear, then why would a person not revise the religiously-based beliefs which justify imposing that harm?Report
Because it is religiously based. That’s the nature of the beast. Also, human nature: people are resistant to changing their deeply held beliefs especially as they relate to taboos.Report
I don’t think that’s accurate either. I think that the two sets often have substantial overlap, which for me makes arguments that sound like, “I’m not bigoted against you. It’s just my religious belief that you should have fewer rights than I do,” pretty thin gruel.
So is the discrimination against women in, say, Saudi Arabia born of bigotry or something else?Report
I think the tendency in modern conversation is to assume that “deeply held religious belief” and “bigotry” are identical.
Nonsense. There are vastly many deeply held religious beliefs that are not bigotry:
–I believe that God wants us to practice kindness.
–I believe that giving to the poor is a good work.
–I believe that God’s grace is sufficient to save me.
–I believe that it is wrong to lie.
Et cetera, et cetera. And I see no one calling such beliefs bigotry.Report
a person can oppose gay marriage without being a bigot; a person can oppose gay marriage without intending to harm anyone.
Unless they’re irrational in the sense Jason suggests, this is really the only alternative, because no harm has been demonstrated, just vague “Oh, won’t somebody think of the children” type fears of unspecified hypothetical harm.
As I noted at Tim Kowal’s blog, it’s hard to say “I don’t want you to have the good thing I have” without there being animus. If there’s no bigotry, no intention to harm someone, and no evidence of any harm resulting from letting them have the good thing that you have, what actual motivation can there be for opposing SSM?
I wrote about 4 years ago at the now defunct Positive Liberty that there were no good arguments against same-sex marriage. I wrote that because I’d read as many of them as I could find, and found none of them logically persuasive. These several years later, I still haven’t seen a logically persuasive one. Irrational fear and animus/bigotry are about all the explanation that’s left.Report
I believe that marriage is a societal institution set up to protect that relationship which is most likely to create children and provide a stable environment for them. It isn’t *just* that, but it is that. As such, male-female marriage has been afforded special protections. It’s not bigotry to recognize that all relationships are not capable of producing children: for example, due to infertility, menopause, or non-complimentary sex organs. We can’t be sure which people are incapable of having children in the first two cases, barring medical examination. We can be sure that homosexual couples can’t create children.
There’s nothing bigoted about that. I’m not saying anyone’s too old, too gay, too differently-colored-skinned. I’m saying that the male-female committed relationship is unique. I don’t much care if you agree with my reasoning, but it’s neither religious nor bigoted. The problem is with you, if you can’t accept disagreement without seeing evil.Report
Do you think society and/or the state have an interest in people adopting unwanted or orphaned children?Report
Pinky, for what it’s worth, I agree with enough of that to shrug and then say “So What?”
I think that marriage is a good thing, meant to protect a good thing, meant to help people raise children and that’s a good thing.
What I don’t understand is why that not only wouldn’t be strengthened by two dudes in life partnerships getting married, why it cannot peacefully co-exist with two dudes in life partnerships getting married.
We got into this on Brother Tim’s blog. He keeps trying to frame his argument as him arguing on behalf of traditional marriage. From where we sit, NOBODY IS ARGUING AGAINST TRADITIONAL MARRIAGE. We’re just arguing for recognition of two dudes getting married as well.
And if two dudes getting married does harm to traditional marriage, I’d kinda like that explained to me because that’s what I’m not seeing. And I say that as someone who is in a vaguely traditionalish marriage.Report
The people arguing that two dudes getting married harms a traditional marriage are the same people arguing that women being out of the kitchen and in the workforce, even making more money than their husbands, harms a traditional marriage. What that proves other than that they are bigoted in more than one way I’m not sure.Report
Well, the bigotry here wears many faces.
Women who are not married often have children; not too long ago, this was considered an abomination, and these children wore the label ‘bastard,’ their mothers were slut-shamed. It’s only within the last 20 years or so that there’s even a legal requirement father’s financially support their children; this is a very new thing. The standard, through time, is that men sire children and men have a responsibility to the children of the woman they’re currently having a sexual relationship with.
Women who are past child-bearing and who’s children are grown marry, there is no intent to produce more children; the intent is to share company and care for one another despite there being no hope of procreation.
Gay couples, while being unable to co-mingle their genes, do have children; and co-parent those children. I have friends, two gay couples, one male, one female, that co-parent their child and share joint custody, though I believe the biological parent in each couple actually has the legal custody.
People adopt and foster children regularly. There is not need to be a child’s biological parent to love or care for that child; it’s just the most common way to come by a child.
The male-female committed relationship may be special, but I think only viewing that through the lens of procreation fails to value of other committed relationships.
I’d argue the commitment of mother to child or father to child is the actual special relationship you’re arguing for; and this relationship does not in any way, shape, or form require the mother and father be in committed marriage.Report
The question isn’t whether those protections should be afforded. The question is whether they must remain “special” in order to fulfill their original purpose. I don’t see how they must, especially when there are clear social benefits to affording those protections to others.Report
The question is whether they must remain “special” in order to fulfill their original purpose. I don’t see how they must, especially when there are clear social benefits to affording those protections to others.
Exactly. This strikes me as the most compelling challenge to TradMar. (Props to Jaybird for making this argument as well.)Report
This argument is irrational, and I will explain why.
One of its key claims is that marriage is designed to create a stable environment for children, and to set up that environment in just exactly the place where children are most likely to be found.
Let’s grant this claim from the outset.
Now let’s look at what happens when children don’t or can’t arrive.
If the man has no sperm in his semen, a heterosexual couple can still marry.
If the woman is too old to conceive, a heterosexual couple can still marry.
If the man entirely lacks both a penis and testicles, a heterosexual couple can still marry.
And so forth. As Jonathan Rauch once observed, infertility is never an impediment to heterosexual marriage. But it’s always an impediment to same-sex marriage.
And yet — there are more 100%-certain infertile heterosexual couples than there are 100%-certain infertile gay couples. The result is an exceptionally bad fit between one’s professed values and the action one has taken to further them. And that’s… irrational.Report
The argument I keep seeing to justify a distinction between all opposite-sex mariages (even those that will obviously be childless) and same-sex ones is the essentialist one: It is is the nature of a man and a woman to procreate together, and not in the nature of two men or two women. This essential nature is what matters, not the specifics of the individuals. That’s not irrational, even if it’s unsatisfying to me. It illustrates a difference, I think, between the religious view of the world and the agnostic/atheist one: whether things in the world have an intended purpose which it is sinful (for lack of a better word) to subvert, or whether the world is just what it is and we do the best we can with it.Report
Yeah, but this teleological position is also not supported by any reasons.
Suppose I am warranted in saying that It is in the nature of men and women, it is their telos, to reproduce in monogamous unions, and the state is sanctioning, encouraging, and rewarding that natural behavior. But how do I know that is the proper end of people? (All people. Jesus was pretty keen on many people not marrying, IIRC.)
Where did the evidence for this being the telos come from? Well maybe I just know that is our telos. I just know it as a brute fact.
If so, I could say it is also a fact that I just know that it is in the nature of gay men (and women) to form loving couples and adopt children. And the state should sanction that natural end in the exact same way. If one person gets to claim that they just know witout evidence that the telos of straight men and women is to reproduce in monogamous couples (actually I suspect polygamy is more our natural state, but so be it), then I get to claim that it is the telos, the nature, of gay men and women to be in marriages where they adopt.
And the polygamist will make the same essentialist grounds, with the same claim to just knowing what is rational.
But the anti-gay marriage person will reject others claims of just knowing what is natural as irrational and unproven, even though his own claim has the exact same epistemic status.
That is irrational.Report
Now you’re talking.Report
So in other words we should remain utterly indifferent to any notion of particular, enduring, and important reciprocal interest between parents and their offspring? That would be the implication of a rejection of Pinky’s original claims, which hardly anyone, except Jaybird, has directly addressed, and even Jaybird immediately shifts to the different question to the admission of same sex couples to the civil-legal institution previously defined in relation to sexual reproduction.
It’s not a “telos,” it’s an immediate biological fact, or fact of life, where particular babies generally come from. Though we can invent all manner of partial exceptions to the general rule – turkey basters, surrogates, fringe technologies, etc. – and can happily acknowledge the existence of bad traditional parents and good same sex parents, a vast array of still quite operative assumptions at all levels of social life from birth to death derive from that facticity of man + woman -> child.
We still presume, for instance, that a hospital that fails to re-unite a mother with her child and no other will have done rather a disservice to them. We still presume that, failing significant negligence, a mother and father will retain primary rights and responsibilities regarding the upbringing of their biological child, in many instances surviving divorce and re-marriage. We still recognize the interest of an orphan in learning about biological parents, siblings, and other family she may have been raised without ever knowing. Yet we are at a point in our public discourse where relating these – and a vast web of interrelated assumptions – to their origin, and acknowledging their significance and utility, is somehow in poor taste or evidence of “bigotry.”
We can support extension of the institution of same sex couples, including full parental, custodial, and inheritance rights, while still acknowledging a place for these biologically derived default assumptions. Yet the existence of the latter will already contradict any notion of “equality” as “equivalence” or “sameness,” both as a matter of custom and law as well as of simple acknowledgment of the obvious.Report
The reason no one has addressed it is because no one is denying it: making and raising babies is important for society, and therefore there is good reason to think the state has an interest in it. It also has an interest in adoption, particularly by stable couples.
Also, no one has claimed that gay and straight couples are identical in every way.
It’s you, then, who hasn’t addressed anything anyone has said, Pinky or his critics.Report
Chris, referencing Pinky’s second comment on this thread – https://ordinary-times.com/blog/2013/06/no-justice-kennedy-didnt-just-call-a-bunch-of-people-bigots/#comment-558705 – at the top of this sub-thread – where did Pinky say anything other than what you have just claimed “no one is denying”? Pinky said that “male-female marriage” is unique, and has thus been afforded “special protections,” including the societal institution that up until the day before yesterday was simply called “marriage.” Yet he (I’m accepting you have reason to believe Pinky is a “he”) is called an irrational bigot.
True, as you say, no one has claimed that gay and straight couples are “identical in every way,” but there is a tendency to claim that gay and straight couples are identical in every “meaningful” way. Now also referencing Pinky’s earlier comment, if you believe that the institution is unique and important, and you believe that a societal institution is stronger if afforded a special status, then you may or may not be arguably wrong to believe that keeping it as it is, or even making it more exclusive, would be justified. But being incorrect in relation to some set of social goals or goods is not the same thing as being “bigoted” or “irrational.”
We then receive arguments – pace Hanley, Kuznicki, Frog, Shazbot directly above – based on the infertility of some heterosexual couples admitted to the civil-legal institution, or based on the circumstances of single parents or same sex parents and others, or based on a counter to a vulgar natural law argument, and so on – of which none touches on the central facts inspiring the social conservative desire, in this sense no different from anyone else’s, to see their social concept reflected, reinforced, and advanced in institutions of the state.
Kuznicki and others are prone at this point to compare social conservatives to defenders of slavery, which is a civil libertarian corollary to Godwin’s Law, in my opinion. I don’t agree with the common social conservative approach to this question, but I also don’t agree that being denied the right to a civil-legal certification of your commitment to another person is quite the same as being kept in chattel slavery, or that a different general preference for mode and “naming rights” of civil-legal certification of committed relationships is the same as Jim Crow.Report
Kuznicki and others are prone at this point to compare social conservatives to defenders of slavery…
[Citation needed.]Report
here’s one involving Kuznicki – though unfortunately I didn’t keep the entire exchange:
http://zombiecontentions.com/2013/04/01/ignorance-be-not-proud-all-things-are-in-sex-edition/Report
Fail.
You did not show me comparing social conservatives to defenders of slavery. I am fairly certain that I never have.
I will however happily compare the question of same-sex marriage to that of interracial marriage. The parallel there is quite exact, and I stand by it entirely.Report
Mr. Kuznicki: The comparison between “interracial” and “same sex” marriage arguments cannot be “exact,” unless you believe that “race” is exactly the same as “sexual orientation,” or had the “exact” same meaning in this context. Your tweet meant to observe this “exact” comparison actually reinforces the difference: Whereas racists or, as they sometimes like to describe themselves, “racialists,” recognize in “miscegenation” a direct threat to supposed racial purity, since it produces “mixed-race” children and families, homosexuality very precisely does not do that. In the imagination of patriarchal white racists, interracial marriage is thought to dilute the blood of the corporate body, while homosexuality is thought to promote “degeneracy” of that body. In the imagination of social conservatives, but not just social conservatives, both notions in less virulent forms may survive and are likely connected, but they remain distinct from each other.
Just going on the twitter exchange in the post I linked, and comments such as the above, you apparently want to deny that you bring up such in your mind “exact” parallels between ideological racists and social conservatives without seeking to exploit presumptive rejection of the former against the latter. Maybe you know of defenders of “racial purity” who are not also defenders of the Confederacy and the “other side” of the slavery question, or Nazis, who also practiced and defended slavery. Likewise, it was just by chance that you brought up three far right Southern Senators with notorious histories on race, and attributed pure anti-gay malice and “free-floating evil” to them, in a post that presumes, as is the normal and virtually compulsory position among marriage progressives, that opposition to SSM must be based on a bigotry exactly like racial bigotry, but which forgives DOMA-supporting politicians for being bigots merely objectively and opportunistically, rather than also subjectively.
I disagree with that view. If supporting DOMA or opposing SSM is obviously and exclusively attributable to bigotry, malice, and free-floating evil, then those politicians were clearly bigoted, malicious, and evil enough to let their opportunism overwhelm whatever doubts they, as reasonable individuals able to discern the obviousness of the evil they were embracing, may have felt. If the evil was not necessarily obvious, if there were arguments for the position that a reasonable citizen of good will and acting in good faith might rightly or wrongly consider decisive, then holding the position is not in itself evidence of bigotry.Report
If supporting DOMA or opposing SSM is obviously and exclusively attributable to bigotry, malice, and free-floating evil
This is at least the second time you have mistepresented the OP, which explicitly suggested irrationality as an alternative to bigotry and malice. Please re-read.Report
Don’t change the subject, Mr. MacLeod.
You were wrong to claim that I likened prohibitions on same-sex marriage to slavery. I did no such thing.
I likened prohibitions on same-sex marriage to prohibitions on interracial marriage. That’s because they are alike, and very exactly so.
Note that this does not require any likening between race and sexual orientation. It does however require a likening between race and gender, and that’s one I am happy to affirm. People have suffered wrongly for their race and for their gender since the dawn of history. Both are unjust and stupid.
And here is how they are exactly alike: It is always — and identically — wrong to make someone suffer needlessly for a trait that they did nothing to incur.Report
Professor H: “This is at least the second time you have misrepresented the OP”
I’ll not follow your advice to re-read, Professor, because you simply disagree with my actual reading of the OP as self-contradictory and incoherent, or as wanting to have things both ways, and then you call this reading a “misrepresentation” without addressing the justifications for it that I provide. Mr. Kuznicki might have had in his mind a nice distinction between subjective and objective bigotry, but I do not believe that that distinction holds. In the end, at least in this context, bigot is as bigot does. I think the OP is wrong, and that on this point Roberts is right and Justice Kennedy for the majority did “call a bunch of people bigots,” just as Justice Kuznicki and many others like to do, if sometimes while speciously offering a “pass” to selected members of the other side.
What’s the real point of calling political opponents “bigots”? In our public discourse, the word “bigot” has a very special place. The bigot is someone whose speech is not merely odious to us, but is presumed odious by definition to all qualified members of the political community. Not to find it odious is to disqualify oneself, because bigotry is seen as inherently contrary to the necessary pre-suppositions of public discussion, or necessary comity, in a liberal-democratic order founded on “equal creation.” Expressions of bigotry are therefore subject to special restrictions: We are encouraged to shame, silence, and quarantine the bigot. In exceptional situations under some liberal democratic orders it may even be illegal to traffic in them. In our own relatively very free country, the bigot is punished, one is tempted to say ritually punished, for bigoted statements by loss of employment, ostracism, humiliation, and so on. His or her speech is proscribed speech. Even repeating it for purposes of discussion is proscribed – thus “the N-word” and other dashed fighting words.
The charge Kuznicki et al also like to make, of “irrationality” (see comment above), is closely tied to this exception to a regime of general freedom of speech. (He concedes in the OP that his treatment of different types of “irrationality” is “possibly tendentious” – and I think here he’s right except for the “possibly” part.) The irrational or mad person is also politically disqualified, is read out of public discussion, silenced and quarantined. The evil person is likewise intolerable even under this regime of general tolerance: To call someone “evil” is to call for his exclusion and the peremptory exclusion of his followers, for the destruction of their works, and, if necessary, for their actual destruction (or is empty speech). To call people opportunists is to accuse them of “bad faith,” which is already very close to an accusation of evil, a kind of mildly technical form of the accusation of evil, since (the) “bad faith” makes (the) “good faith” impossible, or undermines the possibility of an honest discussion in shared pursuit of a common “good.”
All of these charges, when they are thrown around loosely at all, have the same tendency: To approach discussion under terms that implicitly declare discussion impossible, intolerable, or undesirable undermines any possibility of discussion. Eventually we will all be included out. It may be that our public political discussion has already reached or passed that point, that it’s not really a discussion at all any longer, if it ever was. The next question is whether our discussion of that non-discussion must also be turned against itself.Report
That’s just silly. They compare economic liberals to defenders of slavery.Report
@Jason.
No, they’re exactly the opposite. If interracial marriage laws had been like DOMA, black people could only marry white people, and white people could only marry black people. Intra-racial marriage would’ve been prohibited. It’s pretty much the system Hollywood has used since the 1950’s. ^_^
@CK MacLeod.
Good points, and Twitter and other online tools are reducing our discourse to digital lynch mobs and shaming campaigns based on pretend offenses.
A week or so ago there was a major dust-up among the Science Fiction Writers of America (SFWA) because two old hands used the term “beautiful lady” when asked to write about the women in the science fiction community prior to the 1960’s. There were death threats and calls for extermination camps.
A bit over a month ago I was viciously attacked elsewhere for starting a thread titled “Police tragically shoot coed hostage during burglary attempt.” The first commenter ignorantly decided that “coed” was a term of derision and the pile on ensued, with some angrily demanding that I should have said “female undergraduate college student,” I pointed out that such a phrase doesn’t fit well in a headline. Some others said it was sexist to mention the victim’s gender, which is utter nonsense. Half who commented just said they didn’t even realize that “coed” (n) meant a female college student. The other half were sure it was a term laden with sexist overtones. Not a single one said a word about a girl getting shot in the head because a testosterone fueled policeman charged into a known hostage situation to play hero.
I pointed out that the term is still used routinely in the headlines of the New York Times, LA Times, CNN, and other quite liberal news outlets, and I linked the etymology and current accepted use of the word. That really pissed off the sanctimonious lynch mob. Then I said:
“First they came for “niggardly”, but I didn’t speak up because I wasn’t a miser. Then they came for “jungle” but I didn’t speak up because I didn’t live in a rain forest. Then they came for “coed” but I didn’t speak out because I’m not a female undergraduate.”
So they banned me. ^_^
That’s what passes for discourse and debate in certain circles; bogus charges, accusations of bigotry or racism, sanctimonious self-justifications brimming with ignorance, and then censorship and lynching. I don’t know if we’ve been skipping vast sections of thought in our public school system, or if the profound lack of cogent thought and reasoned argument within narrowly self-selected groups has created a large class of people who have never in their lives encountered reasoned political, philosophical, or moral disagreement before.Report
Mr. Kuznicki, if I wanted to change the subject, I would change the subject, but I didn’t change the subject. In this discussion I was also, of course, not restricting my observations to you personally, but speaking to many others who are not content merely to exploit such associations under whatever remnant rhetorical reticence, but happily go the whole nine yards in explicitly identifying social conservatives (and others), on this topic and related ones, with “history’s greatest monsters.”
As for yourself personally, you have many fans and defenders, and for good reason, but I’ve made no secret of my criticisms of your polemical style, which in my view applies too much force for its own higher purposes. Your use of the word “exactly,” as in the above discussion and elsewhere (for instance in your recent post on “Nothing to Hide” in reference to “Writs of Assistance”) would be an example of this tendency, in my opinion. You also like to pretend, in a manner suggestive of “in sorrow, not in anger,” that you are normally reserved in your use of potentially incendiary expressions and associations. Maybe this is something you honestly believe about yourself, but just this morning yet another example of the same ploy turns up on my timeline: https://twitter.com/JasonKuznicki/status/351029294216122368
In these exchanges – the evidence is right up there in black and white on my screen – I did not claim that you “likened prohibitions on same-sex marriage to slavery.” I wrote: “Kuznicki and others are prone at this point to compare social conservatives to defenders of slavery.” Do I need to spell out the difference? I believe, for the reasons stated and in the ways described, that your approach does what I said it does: tie today’s social conservatives to the same people who yesterday were defenders of “racial purity.” I believe the association is clearly both implicit and intended, though I accept your assertion that you have never actually made the explicit claim that being a slave and being in a gay relationship, yet being denied marriage rights, would be equivalent. I would be surprised if you ever had, as you seem far too sophisticated to risk making such a statement in so many words.
As a matter of fact, I don’t think that the larger comparison or assertion of kinship, between so. con.’s and Confederates, would, viewed honestly, as I have also indicated, be entirely incorrect. Depending on how it’s stated, however, it will quite often tend to be destructive to discussion – thus my garbled reference to Godwin’s Law. The aim of having an open discussion of the underlying questions verges on the absurd, because our political culture, for very good reason, is built on the suppression of that discussion, as a discussion that is not to be tolerated and can serve no purpose greater than the injuries it would cause and has caused and, wherever it turns up, inflicts again. Precisely because we will not presume to discuss the relative superiority of “races” (whatever “races” are), or the value of “racial purity,” associating any topic with such discussion amounts to wishing that topic into the public policy “Cornfield.”
That’s where, I surmise, you’d like to see all discussion of another side on SSM, defined as any opinions that stray from the narrowly set terms of an “equality” doctrine that also rests on inexact parallels we are instructed to treat as exact equivalences. I don’t think that position is intellectually tenable or, in the long run, wise and risk-free for the supporters of an open and inclusive society, but I suppose that saying so may be my own ticket to the cornfield, if you have your way.Report
I wrote: “Kuznicki and others are prone at this point to compare social conservatives to defenders of slavery.
Where is your evidence that Jason is prone to do this?Report
No, they’re [interracial and SSM marriage] exactly the opposite.
That’s not quite right. There are a lot of similarities between the, in particular, that in each case the law restricted the legal permissions of individuals to engage in an activity (marriage) of their own choosing for purely culturally established normative reasons. In that sense, they’re exactly the same.
And I have to say – preemptively, perhaps – that arguing that government never prohibited a person from engaging in Opposite Color marriage (OCM) constitutes a further similarity between the two cases. The issue isn’t that the law was non-discriminatory formally, it’s that the law was (and is) discriminatory substantively. (An argument I think you’ve conceded upthread.)Report
I did not claim that you “likened prohibitions on same-sex marriage to slavery.” I wrote: “Kuznicki and others are prone at this point to compare social conservatives to defenders of slavery.” Do I need to spell out the difference?
You don’t. I’ve done neither of these things. It’s also a distinction without a difference, but I’ll grant it to you for the sake of argument. If I made the one comparison, I would necessarily have had to imply the other, either way.
And, as long as we’re going ad hominem: What seems clear to me is that you are intensely self-satisfied. You pride yourself on being both more cosmopolitan than I am — because you claim, at least as a rhetorical ploy, to understand the anti-SSM side better than I do, for which I see no evidence, but no matter — and also I infer better able to argue for the fundamental justice of same-sex marriage, a position you claim to support, but never in fact get around to supporting.
It’s tiresome. It really is.Report
the social conservative desire, in this sense no different from anyone else’s, to see their social concept reflected, reinforced, and advanced in institutions of the state.
This is, of course, incorrect, a false equivalency. The social conservative desire is different, because it seeks to deprive others of a good enjoyed by the social conservatives, whereas the supporters of SSM do not seek to deny anyone of the good they enjoy.
It’s still shocking to me that anyone could say the supporters of legal equality are no different from the opponents of legal equality.Report
While for me it is utterly predictable that ideologues would react to what they find convenient to read rather than to the words before their eyes. The phrase “in this sense,” Professor, directly acknowledges that in other senses the two things being compared may be quite “different.” So you’re being “shocked” by a statement of equivalency that exists only in your own mind.
The claim in your first paragraph is begging the question. You presume that “supporters of SSM” – a coalition that happens, though this fact is irrelevant to the argument, to include me – are correct that SSM does not “deny anyone of the good they enjoy.” You apparently have in mind a notion of some particular good attached to being married in the eyes of the state. The goods that the SSM opponents believe are being threatened derive from the privileged and protected status of what until the day before yesterday was called “marriage.” If marriage is a “good,” then as an economist – you are some kind of economist or an academic with an interest in economics, right? – you should be able to recognize that an alteration in the terms and content of the “market” must affect the “value” of the “good” at least marginally, and that even marginal alterations in value-dependent incentive structures can have outsized effects over time. That such effects may occur is not to say that they must occur. The expansion of the institution to include SS couples may turn out to relatively trivial in the grand scheme of things, or grand super-market of social goods, but the presumption has to be that some impact will have to be absorbed.Report
what until the day before yesterday was called “marriage
At that stupidly false statement, read just after I saw you grossly misrepresent Jason’s OP for the second time, I realized I was engaging someone unconcerned with factual truth and stopped reading.Report
I also don’t agree that … a different general preference for mode and “naming rights” of civil-legal certification of committed relationships is the same as Jim Crow.
Your error is to treat it just as a name, without looking at the legal (and perhaps social) effects of that name. When the dufferent name results in a more limited set of rights for the couple, it is precisely analogous to Jim Crow.
And if we avoid that problem by making it truly equal, so the only difference is the name, then the burden is on the social conservatives to explain what legitimate–if not, as a matter of law, compelling–public interest there is in denying one group that name.
Social conservatives vague talk about some unspecifiable social good just isn’t sufficient when it’s stacked up against clearly specified social harms.Report
Dude, you are not arguing against me, or anyone here. And you’re not arguing against us in a lot of words. Read my short comment again, and feel free to address where you think it implies the difference between Pinky and his critics lies. Or write another long comment addressing someone, somewhere calling Pinky and those who think like him bigots. Either way, I look forward to seeing what you have to say next.Report
I’m not sure, Chris, why you feel entitled to speak for “anyone here.” “Pinky and those who think like him” – a rather open-ended description – have been called “bigots,” as well as “irrational,” and possibly “evil,” from the OP to the current last comment on the thread.
I’ve re-read your comment, and, other than invite you to re-read my replies, I’m not sure how to respond, since I don’t see what obvious point regarding Pinky’s statements you believe I have missed. I’ll note, however, that the interest that you are happy to recognize, “making and raising babies is important for society, and therefore there is good reason to think the state has an interest in it,” is not in fact recognized by all participants in this discussion, such as those who believe that the state should, as they say, get out of the marriage business, or those who believe the state should take a neutral stance regarding the character of marriages or marriage-like arrangements. It was this assumption that guided prior court decisions supporting conservative legislation – for instance, to point to the other thread, illegalization of polygamy.Report
<em€“Pinky and those who think like him” – a rather open-ended description – have been called “bigots,” as well as “irrational,” and possibly “evil,” from the OP
That seems doubtful, since the OP is titled, “No, Justice Kennedy Didn’t Just Call a Bunch of People Bigots,” and Jason explicitly said, ” were we to try to infer motives…we might infer bigotry, but we wouldn’t have to” (emphasis added).Report
Hmmm, big time failure on the tags there. Sigh.Report
CK, now you’ve said something relevant. I will only reply that marriage is not the only institution through which society and the state cab promote reproduction and child rearing, and reproduction is not the only part of society’s interest in children (see my two comments bringing up adoption as a fairly straightforward justification of gay marriage on Pinky’s terms).
So, we can have no state sponsored marriage and still treat children as important to society and the state, and we can have gay marriage because marriage is about child rearing (presumably adopting more children is a very important societal and state interest). Neither position questions Pinky’s basic premise about the state’s interest.Report
I don’t understand what people are asking for when they say things like this. What concrete action could we take to make gay marriage OK while still giving a tip of the hat to the union of sperm and egg? Some sort of statement at the bottom of the marriage certificate?
“Initial here to give a Big Thumbs Up to men and women making babies!”
It just doesn’t seem to me that heterosexual sex and the production of children is a notion that requires all that much of a boost.Report
For a values conservatives, Mr. Frog, the question doesn’t reduce to “heterosexual sex” and “production of children.” It extends immediately to family bonds and child-rearing, and from there to socialization and community, and finally to the most tenacious interests and attendant sacrificial impulses known to us.
As I stated, in my own view there’s nothing that would necessarily bar same sex couples from the marital institutions of society conceived in this way, any more than childless couples, elder couples, and others must be. There is, however, disagreement over how to describe and depict such a societal concept or any societal concept at all, since the traditional one is treated as an obsolete and dispensable concept, despite the lack of a fully-fledged replacement. I found the unconsciousness of Mr. McLeod (the other one), in his polygamy post, of any difference between “conjugal union” and “sexual relationship” to be telling in this regard, as, frankly, is your own comment and perhaps some of the others I’ve mentioned.
The tendency may have something to do with the libertarian-individualist sensibility that tends to predominate in these parts. Or maybe it’s something as simple as the average age of participants here, though I think the tendencies are clearly tied to much larger historical or complex social-evolutionary processes that I don’t think political conservatives cope with any better than anyone else does. They often express their intimations of moral chaos, uncertainty, and loss in destructive and offensive where not simply pathetic ways. If they didn’t think of themselves as besieged, they might handle this matter more positively, not least in relation to their own interests, but there are other reasons why doing so is difficult if not impossible for them, and that go beyond the fact that marriage progressives have a penchant for calling them bigots and treating them as simply mad or “evil.”Report
For a values conservatives, Mr. Frog, the question doesn’t reduce to “heterosexual sex” and “production of children.” It extends immediately to family bonds and child-rearing, and from there to socialization and community, and finally to the most tenacious interests and attendant sacrificial impulses known to us.
Anything that vague and unspecified must be meaningful!Report
James,
Off topic, but that is one heckuva pet rooster you got there.Report
“pet rooster”
That’s a polite euphemism. 😉Report
It reminds me of a Chocobo.Report
Chocobo
??? {Googles furiously; reads, “a fictional creature from the Final Fantasy video game series…”}
Oh. Man this place is full of gamers. It’s the one topic guaranteed to make me feel out of place. 😉Report
now that you say that shaz, i see my self riding the rooster while the gold circle music plays.Report
CK MacLeod:
I’m trying to separate this argument into categories. First, there’s the fact that marriage is related to procreation. Second is that marriage has a lot of other emotional and social aspects to it. As far as I can tell, the difference between heterosexual and homosexual couples is only the first, which is why I’m interpreting your point in one particular way. If, from the perspective of social conservatives, there is some critical difference in the second category, they should try to articulate it clearly. Most of us aren’t seeing it, so we’re having some trouble figuring out what they’re on about.
It seems to me that there’s less of a concrete reason why gay couples don’t fill those roles than there is a general unease with something outside the norm. While it may not be politically productive to call it “bigotry” it does seem to have some overlap with the term.
I’d like to hear more about this. First, what do you mean by “depict” in this context? Second, the difference between “conjugal union” and “sexual relationship”: I would probably define the two differently, but I’d like to know how you’re defining the two such that the difference draws some distinction between homosexual and heterosexual couples. Can gay ocuples engage in one and not the other?Report
Mr. Frog,
It’s easier to snipe back and forth on side issues, but I think your serious questions, as well as your collegial invitation to expand on a prior comment, are more deserving of a reply. Unfortunately, because they’re serious questions, they require serious thinking. Though I’ve written on them many times, or perhaps for that reason, it can be difficult condense answers into a comment thread, off the cuff, and end up satisfied at all with the results.
We can separate the question into your two categories methodologically, but in so doing we may tend to extend the division conceptually in a way that tilts the inquiry. The conservative view, including on the difference between “sexual relationship” and “conjugal union,” rests on the interconnection and indeed the simultaneity of the two ideas, that is, of 1) procreation and 2) everything else, first because, without procreation, there wouldn’t be anything else. “Sex contains all.”
Under the conservative societal concept, and under traditional concepts even in many societies with dissimilar marriage practices (polygamy, arranged marriages, etc.), the family unit remains the basis of society, and every society is understood as a society of families for families. Marital customs shape that most basic unit of society both on its own terms and within the society of corresponding “units.”
Under this concept, what we generally mean by “sexual relationship” is almost a contradiction in terms, and at best a de-natured, trivializing form or (especially for very strict religious conservatives) deformation of a primary bond. Sexual reproduction is usually the one thing we typically seek to prevent while pursuing love affairs, and by a long tradition the offspring of such relationships have been at systematic disadvantage to the offspring of “conjugal unions,” which are arranged (perhaps literally “arranged” rather than “freely chosen”) specifically for the care, upbringing, education, and socialization of offspring – and not as an optional lifestyle accessory or diversion, but as both the normal result of the “conjunction of the sexes,” to employ one older way of putting the matter, and the central organizing principle of all human societies.
I took the old phrase “conjunction of the sexes” from a typical passage on the subject from a 225 year old book. Hume on the origin of “justice”: “[S]uppose the conjunction of the sexes to be established in nature, a family immediately arises; and particular rules being found requisite for its subsistence, these are immediately embraced…” Hegel derived the foundational ethical principles of modern society even more directly from marital monogamy and from the sex act itself properly understood, that is, not as a diversion, but as realization of the generative principle of union of opposites.
These are ideals productive of norms, not the norms themselves. It would be as false to assume that every sex act fulfills them as it would be to assume that other sex acts deny them, or even more absurdly, that non-sexual acts deny them. There might be many ways to refer to or recapitulate these ideals as ideals other than in the procreative sex act.
On this note, and since Mr. Kuznicki, while in the process of chastising me for other sins as well, criticized me for claiming to be supportive of SSM but saying nothing on its behalf, I’ll say this: It has sometimes been held, for instance among the ancient Greeks, but also among some contemporary gay activists who have been reluctant to embrace SSM as a cause, that non-procreative love was always a higher or more ideal expression of love than the family-forming (“breeder”‘s) variety. As someone noted on this thread – I’m not sure how seriously – there is a deeply Christian tradition along these lines as well.
A more inclusive or synthetic perspective might accept same sex marriage within the expanded confines of the traditional institution both for the practical reasons that, for example, Chris stresses, but also as a re-affirmation and re-vitalization of marriage as the “marriage of true minds,” not merely as a social-economic and animal-biological enterprise. During an epoch (who knows how long it will last?) in which we’re still absorbing exponential rates of population growth and major extension of life expectancy, possibly stressing the Earth’s resources and eco-systemic limits, reinforcement and extension of the ethical principle underlying same sex marriage may deserve deeper consideration, not necessarily as a replacement for the older one, but as a more advanced and comprehensive articulation of it under radically new conditions.Report
Also, don’t blame me: It was Hegel and Hume who said that stuff. I’ve been thinking of doing a post on dirty jokes of the famous philosophers.Report
That’s a damn fine comment CK. I particularly like the writing in the last paragraph. I’ve had thoughts along those lines myself and haven’t been able to clearly formulate the content let alone articulate it.
Nicely done.Report
Generous of you to say so, Stillwater. (Also, it was my fault not H & H’s on the parts I’m still not happy with. So I’m two or three times at fault, and counting, just on this.)Report
A more inclusive or synthetic perspective might accept same sex marriage within the expanded confines of the traditional institution both for the practical reasons that, for example, Chris stresses, but also as a re-affirmation and re-vitalization of marriage as the “marriage of true minds,” not merely as a social-economic and animal-biological enterprise. During an epoch (who knows how long it will last?) in which we’re still absorbing exponential rates of population growth and major extension of life expectancy, possibly stressing the Earth’s resources and eco-systemic limits, reinforcement and extension of the ethical principle underlying same sex marriage may deserve deeper consideration, not necessarily as a replacement for the older one, but as a more advanced and comprehensive articulation of it under radically new conditions.
There seem to be two rationales here. The first I like — the true meeting of the minds, which is a characteristic that same- and opposite-sex marriages might potentially share.
The second, though, stinks. It’s basically “gays are okay because they’re a check on our exploding population growth.”
The problem with it is simple. As you yourself ask — who knows how long that will last? The industrialized democracies are already experiencing declining birthrates, with unsustainable population numbers as regards their welfare states. We might very soon find that we wished we had more young people around, not fewer. Japan is already severely strained by this demographic trend, and most of Europe will be soon if not already.
As a result, and if we accept the premise that marriage exists for the sake of society — not, in other words, a free meeting of the minds, but a demographic lever to be employed by the state — then we ought not to be tolerating same-sex marriages. We ought to be if anything forbidding them, no? Got to keep the population numbers up!Report
Jason,
The second, though, stinks. It’s basically “gays are okay because they’re a check on our exploding population growth.”
Yeah, that’s why the view is hard to articulate: either because it stinks or the subtlety of the concept is really hard to tease out.
I tend to move in the direction of the latter, tho. I understood CK’s comment this way: social norms are ever-changing, in part as a response to the contribution of changes – natural or otherwise – in our environment. One of the changes that could effect social norms in the future is over-population, and not necessarily on highly conscious or intentional level. I don’t think he’s saying “overpopulation ought to (normatively) change people’s attitudes about same sex relationships”. The way I’m reading it, the claim is this: it may be that overpopulation causally changes people’s attitudes about same sex relationships. So the claim is merely descriptive and not normative.
I dunno tho. As I said upthread, it’s view I sometimes entertain but can’t quite formulate. That might be the case because at the end of it, the view just stinks.Report
In order to reply to Mr. Kuznicki and to Stillwater, I’m taking the discussion to the bottom of thread because it takes me a while even to find the comments I’m responding to, and still mis-locate the replies.Report
“So in other words we should remain utterly indifferent to any notion of particular, enduring, and important reciprocal interest between parents and their offspring?”
No, not at all. You are arguing poorly here.
My point was it isn’t rational to accept one claim about what a natural relationship is and deny another with the exact same lack of foundation.
If we want to talk empirical psychology and biology, it is established that gay men and women are excellent parents for adopted children and there is no harm done and much benefit done to children in gay couples having their parents marriage’s recognized.
If we’re asking “Won’t someone think of the children” and we are rational we should be for gay marriage.Report
“infertility is never an impediment to heterosexual marriage. But it’s always an impediment to same-sex marriage.”
Along similar lines, we don’t do genetic tests when people marry. Thus it is likely that people have been married who were not XX and XY, and some of those may have been misclassified as, say, “male” when they weren’t.
So genetics has never been an impediment to marry either.Report
Pinky,
I’m saying that the male-female committed relationship is unique.
You have not made that case.
1. A homosexual couple may have a child that is biologically unrelated to either of them, in which case they are in an identical situation to my brother-in-law and sister-in-law, who could not have children of their own and adopted. What logic supports favoring their marriage over the marriage of a gay couple with adopted children?
2. A homosexual couple may have a child that is biologically related to one of the parents, in which case they are in an identical situation to my brother’s former marriage, in which he had a stepdaughter who was the biological child of his wife. What logic supports favoring their marriage over the marriage of a gay couple with a child that is the biological offspring of one of them?
3. Imagine a lesbian couple where the brother of partner A provides sperm for in vitro fertilization of partner B, or a gay male couple in which partner A provides sperm for in vitro fertilization and surrogate motherhood of the sister of partner B. In this case, although both members of the couple are not biological parents, both are biological relatives of the child, one the father/mother, the other the uncle/aunt. Is that so far removed, biologically, from dual biological parenthood that it must be differentiated and treated as less valuable?
4. If the primary concern is the raising of children, should not all relationships that raise children be supported? If only some relationships that rear children are to be recognized, and not others, on what welfare-of-the-children basis would we choose which to recognize and which not?
These are the questions your approach does not satisfactorily answer. You only produce hand-waving about the male-female relationship being “unique” without explaining what is the effect of that uniqueness, and why that effect is significant enough to justify differential treatment as a matter of law and policy.Report
James,
We might make you a liberal again based on your entire performance on this thread 🙂
Come back from the libertarian-side, we have organic cookies that are redistributed from the rich.Report
Well, thanks, I suppose. Although it’s a sort of a back-handed kind of compliment. ;). You can keep the organic cookies, though. I don’t want to actually go progressive.Report
We have Oreos too, we just eat them in private so as to avoid setting a bad example for the less discerning.Report
If you have 2% milk, too, count me in.Report
We. Drink. Skim.
And we’re going to pass a la making you drink skim, too.Report
I don’t know…you did get angry when I said that the new name of the Western Addition is NOPA.
Shouldn’t a libertarian welcome the name change as representing economic development and commerce? 🙂
You will be happy to know that the Page is still around and probably still has the same carpet that it did when you lived in SF. The beer selection is probably better.Report
Angry? I don’t think I was as who should say “angry.” More aesthetically appalled at the ugliness of NOPA. Not that Western Addition has any claim to aural beauty, either, but I was always amused at the “western” addition being in roughly the center of the city, much as I like the fact that the “Mid” West is clearly in the Eastern half of the U.S., and–even better–that my home state of Indiana is part of the old Northwest Territory. Such historical oddities and idiosyncrasies should be preserved at all costs; by force of law forcible silencing if necessary.Report
The Maps still call the neighborhood the Western Addition.
Once upon a time, I think it really was a Western Addition to the city. Divisadero used to be the last part of SF.Report
I always assumed that was the case; presumably it was built up before the Sunset was. In the same way, Indiana, Michigan, Wisconsin once upon a time really were the Northwestern most part of the U.S.
Maybe I just like that Western Addition sounds more homely than NOPA, which sounds really hipster. Heh, when I lived in SF there were still folks who adamantly refused to say SOMA, because they thought it was cheap hipsterism trying to mimic New York’s SoHo. Is that still the case, or has everyone given in by now?Report
We all use “SOMA” in the Brave New World.Report
I read a book that said the Sunset was not developed until the 1940s when builders were able to develop mass construction techniques. A la Levittown stuff.Report
Wiki says it began after the Earthquake (’06), and filled in completely in the ’50s. And of the Western Addition it says it began filling in around the turn of the century. So maybe not a huge headstart on the Sunset, but definitely coming first? Not that I really know, obviously, or I wouldn’t be relying on Wiki.Report
Mike,
I’m embarrassed to admit I just now got the joke. Your humor is apparently wasted on a dim bulb like me.Report
Agreed. You have been right and clear about everything on this thread, IMO.Report
Et ‘tu, robot?
Aiyyaiyai … yaiyai.Report
I mean, everything but what you and Still say about each other.Report
Good point. Apparently I swore on the soul of my father Domingo Juan Pablo Montoya to never adhere to the commenting policy again. And surely that’s not right, even if it’s clear.Report
Just another day in paradise.Report
Suppose it were possible to replace the DNA in a sperm cell with another person’s DNA, making it possible for two women to conceive a child (a daughter) via IVF. Would that alter your opinion of female-female marriage?Report
I believe that marriage is a societal institution set up to protect that relationship which is most likely to create children and provide a stable environment for them.
The problem, as many have pointed out, is that there seems to be no end to the ways that government has felt it necessary to “protect” this relationship. Taxes, social security benefits, automatic ability to make decisions in case of serious injury, etc. The example that still sticks with me is old.
I was in the last group of 19-year-olds who got numbers in the draft lottery, and my number was low enough I would be in the first group inducted. I was trying to sort out what I was going to do when Nixon cancelled the draft — let the Army take me, walk down the street and enlist in the Air Force (which would have kept me tightly in hand in the States because I could program computers), run to Canada… During a discussion with one of the anti-Vietnam-War groups that had a presence in the student union, it was pointed out to me that they maintained a list of women who would marry me in order to get me a deferment (student deferments had been discontinued). Of course the marriage would be on paper only, but draft boards weren’t allowed to do the same kind of testing that it was a real marriage that immigration could do when someone was seeking citizenship. I didn’t have to have children; I didn’t have to have any intent to have children; all I needed was a marriage certificate with appropriate signatures and I was immune from the threat of being sent to the other side of the world where people who were unhappy that I was there would try to kill me.
I can understand providing certain benefits in the case that there are children. I understand allowing a spouse who has taken 20 years out of their prime earning years to raise children to continue to get half their spouse’s Social Security check after that spouse dies. I understand tax benefits for families with children, if you want to encourage children, as children are expensive to raise. I even understand protecting a father or mother from getting their ass shot off in a “police action”. I don’t understand giving financial benefits to childless married couples on the theory that someday, maybe, they might have a child.Report
Can, yes.
Should be assumed to be, no.Report
As a writer, I’m always happy to repair to a definition–and “inadequate use of reason,” it seems to me, could cover the entire political scene since the invasion of Iraq….Report
I guess I reject the inferences drawn from the definition, to some extent. While I’m willing to concede the definition of rationality employed in the OP (even tho I don’t think it’s complete) I don’t think the dichotomy of “bigot or irrational” as applied to politicians can be shown from that definition. Jaybird has given a perfectly good example of a type of reasoning that appears to be rational but in which neither bigotry nor irrationality can be inferred from a politician’s refraining from “doing what’s right”.
Politics is complicated. It’s defined by compromise, the art of the possible, both short and long term strategery, etc. etc.Report
I understand that politics is complicated. But when it comes time for a court to review the reasons behind a law, what role do you think political expediency should play?
In other words, should the Supreme Court maybe have said, “Gee, it was an election year, and people were afraid about a constitutional amendment, and I guess that means we have to give it a pass?”Report
Jason, the Supreme Court doesn’t get to weigh in on the legality of laws passed until there’s been harm done due to the law that cannot be resolved in the lower courts, let alone pass judgment on any given law’s constitutionality.
I suspect the real reason DOMA was deemed unconstitutional lays in this:
She’s clearly focusing on an intent to single out a class of people for discrimination in the Congressional debate; and at that point, is not giving election-year shenanigans a pass.
Source: http://guardianlv.com/2013/03/justice-elena-kagan-takes-the-spotlight-on-doma/Report
I am not attempting to give election-year shenanigans a pass. I am saying that Stillwater’s comment may have brought someone to that implication, which I reject.Report
It seems like this is a clear instance of the difference between bigots and bigotry, and how the latter can be committed by people who are not the former.Report
So we need a definition of “bigot” other than the obvious one: a person who practices bigotry. What would that be?Report
One who practices it because of bigotry. There’s the businessman who doesn’t serve blacks because he doesn’t want them in his store and there’s the one who’s afraid of losing his white customers. They’re different.Report
I think the word we’re missing here is cowardice.Report
Or “non-heros” anyway, which is most of us.
The Civil Rights Act enabled the non-heros to do the right thing without risking retaliation against themselves and their families, thus increasing their freedom. This is, interestingly, never discussed by people who take a purely proprietarian view of liberty.Report
That’s probably more fair. After writing it I was pondering just how much of a coward I myself might be. It’s more comfortable to ponder how much of a non-hero I am.Report
I don’t know about you, but I’ve certainly spent my life risking opprobrium and penury to do what’s right instead of what’s conventional. Anyway, I would have had the situation ever arisen.Report
Actually, after Shelby, the SCOTUS could have said ‘times have changed, and therefore DOMA is unconstitutional’.Report
I have to agree with Chief Justice Roberts. The judicial branch can’t overturn laws passed by the legislative and signed by the executive merely on the basis that they don’t like the legislators or the President, or assert that everyone in their co-equal branches are racist, bigoted, wife-beating homophobes. If that is indeed the case, shouldn’t all Clinton era laws be struck down on approximately the same grounds, since they were passed by the same people?
Under that standard Obamacare could be trivially struck down in its entirety because the intent of the legislators (all of whom are older and envious of young, healthy people), was to punish those young, healthy people by making them subsidize the health care costs of everyone else. It was passed out of malice and bigotry toward those who can still compete in the X Games and date hotties.
The court demeans itself when it mistakes vapid partisan talking points fit for The O’Reilly Factor for sound legal arguments.Report
No george is was done just to hurt old white republicans. To make them die sooner to make room for illegal immigrants. Didn’t you listen to what Alex Jones was telling you.Report
But the Voting Rights Act needed to be gutted, because it was renewed only to pander to minorities and be mean to Southern whites.Report
… because the intent of the legislators (all of whom are older and envious of young, healthy people), was to punish those young, healthy people by making them subsidize the health care costs of
everyone elsetheirownselves when they got older.Fix’t.Report
Oops. The opposite of fix’t.Report
Show me one comment in the Congressional record that backs up your statement.Report
I have to agree with Chief Justice Roberts. The judicial branch can’t overturn laws passed by the legislative and signed by the executive merely on the basis that they don’t like the legislators or the President, or assert that everyone in their co-equal branches are racist, bigoted, wife-beating homophobes. If that is indeed the case, shouldn’t all Clinton era laws be struck down on approximately the same grounds, since they were passed by the same people?
I am not a legal expert, but I do not believe that is what they are saying. The criteria seems to be that if a law 1) discriminates between one class of people and other in a way that is harmful to the class being discriminated against and 2) does not functionally serve any policy purpose, it must be overturned. Call it belief, call it animus, call it political expediency, the people backing DOMA failed to make the case before the courts that the law accomplished anything other than discriminating against gay people out of disapproval of gay marriage. They didn’t manage to demonstrate that it benefitted heterosexual marriage, or advanced any other policy objective outside of discrimination, in any way. And discrimination against a minority group because you disapprove of them is unconstitutional.Report
Except every Supreme Court Justice does this at many points during their careers.Report
It was passed out of malice and bigotry toward those who can still compete in the X Games and date hotties.
Ha.Report
This was meant as a reply to George.Report
Well, to follow up, all the Democrat’s tax increases can likewise be struck down because they were passed out of malice and a bare desire to harm and punish rich people, who as a class form a class (the upper one). Unlike DOMA, the Democrat legislators haven’t even tried to hide their hatred and bigotry toward the rich, using them as punching bags at every campaign rally, demonizing them endlessly and frequently, and building an entire platform out of class warfare and envy. Therefore such taxes are unconstitutional.Report
Well, to follow up, all the Democrat’s tax increases can likewise be struck down because they were passed out of malice and a bare desire to harm and punish rich people, who as a class form a class (the upper one)
By this logic, we’re going to throw out a lot of laws you like because they’re obviously born of malice and a bare desire to harm the poor.Report
(War on Drugs? Zoning? Licensure?)Report
Personally, I think George’s point is that the condition of “malice” is too broad to be useful as a measure of the illegitimacy of a law. He’s engaging in a bit of a reductio on the whole premise. And it’s in that sense that he agrees with Roberts. Now, whether or not Roberts’ alternative proposal makes any sense is subject to some dispute.
As to your point, tho, I can see how you’d see it that way. Lots of really bad laws would be rejected based on that single criterion.Report
Dude, you won’t get any argument from me. I think the whole system is designed to fish the poor.Report
Nobody likes the poor, until they are one.Report
And even then, they may still hate The Poor.Report
Oh, you still hate the other poor, usually, yes.Report
And then they hate the rich and guillotine them.Report
Near as I can tell, most people love the rich, they just resent not being one of them.Report
Yeah, but there is a breaking point, IMO. where the poor say to themselves “We are poor because of you” and that is not a point we want to reach.Report
Two administrations failed to prosecute fraud from the financial meltdown. Neither even issued a ton of subpoenas to, say Goldman.
Most of the country still votes for all those folk.
I think “We are poor because of you” is still a pretty small motivator.Report
There are many laws and programs set up specifically to help the poor. There are also many laws that—often with the enthusiastic backing of the left—reduce inefficiency and make us all poorer, and the negative effects of this fall disproportionately on the poor because they have less to spare. There aren’t many laws that are actually designed to hurt the poor, though.Report
“reduce efficiency,” rather.Report
And this is the reason the war on terror, and all the efforts to snoop on you and I, would survive; it’s non-discriminatory. Everyone has their data collected. Everyone.Report
Being non-discriminatory is a necessary condition, not a sufficient one.
A law holding that absolutely everyone was to have their right hands chopped off would be unconstitutional for all kinds of other reasons. But it wouldn’t be discriminatory.Report
+1.
I mean, you’re right. And it’s not at all a trivial point. The opposite, in fact.Report
(Stillwater, you realize he’s making the pro-DOMA argument, right?)Report
Who, Jason K? I don’t think he is, actually.
But my agreement was with the claim that being non-discriminatory is a necessary condition for the legitimacy of a governmental policy, not a sufficient one.Report
Maybe I’m misunderstanding you. How is non-discrimination part of the pro-DOMA argument?Report
“Everybody is free to marry someone of the opposite sex”Report
Nice.Report
I think it would discriminate against right-handed people; lefties would finally have an advantage.
But it is good that we’ve (sort of) reached this point of recognizing that discrimination in the law is unjust; and laws that are passed with the intent of discrimination against a specific class of people are particularly unjust and should be challenged.Report
Change the hypothetical until it does what you so clearly know that I intended it to do. Then come back to me.
And when you do, don’t patronize. I’ve “sort of” reached the point that I think discrimination is unjust? Really?Report
Jason, I was joking in my original comment, And this is the reason the war on terror, and all the efforts to snoop on you and I, would survive; it’s non-discriminatory. Everyone has their data collected. Everyone.
I do not understand why you prickle so at most of what I say in comments.
I will stop responding to you and on you’re posts, if you’d like.
But some consideration that I’m not always being a bitch would be appreciated.Report
I’ve only “sort of” grasped that discrimination is bad. And my idea of justice is so weak that I’m eager to defend the surveillance state as being nondiscriminatory… but I shouldn’t be upset at this characterization?
I’ll try not to be. I guess.Report
You’re reading a lot into what I said, (and said with the intent of dark humor, too.)
You might also have read into my comment concern that the law was passed, the SC has determined that privacy does is not violated when a third party (telephone co., internet) is used for communication, and because there’s no profiling done in data collection because they’re harvesting all data, there seems to be fewer and fewer grounds for ending data collection.
But you read it as a critique of you.
Get over it. You’re not that important, really.Report
You can either talk to me, or you can affirm that I am too unimportant to talk to. Take your choice.
Incidentally, I never did say I was important. I know I’m not really all that.Report
Neither am I (important, that is).
I was talking to you, suggesting that you’d read something into my comment that was not there, and (sadly) not for the first time. And I went so far as to offer to refrain from talking to you, if it so irritates you as to provoke ungenerous response; for I never suggested you don’t get discrimination. Like me, a woman, as a gay man, you’ve lived with discrimination for a long time.
I’ve told you this before: I admire your thinking. I don’t always agree, but it’s always worth consideration.Report
Since we’re all confessing, I would like to admit that I am impotent, too.Report
I’m often impatient.Report
A dont know how to use apostrophe’s.Report
Or spell the word “I”.Report
zic, if I seem a little on my guard when discussing with you, well, I am.
I’ve become sensitized to your comments, because they often do seem to insinuate all sorts of bad things about me — without directly making any accusations. It appears to happen a lot, and once that notion gets in a person’s head, it appears to happen even more.Report
(blockquoted because the indents here are pretty thick).
I think the problem is that discrimination is just looking at favor from the other side. Congress passes all kinds of legislation to favor certain groups, activities, or outcomes, and that necessarily means that other groups are not so favored. Social Security favors the elderly at the expense of the young. Child labor laws favor children over adults. Sexual discrimination laws, by their nature, are themselves discriminatory. Aid for country A discriminates against all countries that are not A. Aid for dairy farmers discriminates against chicken ranchers. In essence, that’s what most legislation is.
By the simple trick of imputing legislative malice without proof, Kennedy’s measure would mean any judge could strike down almost any law on the books (except the wiretapping, as you point out) on a whim. In essence, the ruling shifts veto power from the executive to the judicial branch, which is unconstitutional because only the President was given the power to veto a law without requiring a profound legal argument as to why, and Kennedy’s accusation of malice is not a legal argument, it’s a smear.Report
Yes, those poor children who are prevented from ever growing up to be adults on social security. The poor hard-working adults who never had the chance to be non-working children. And those poor chicken farmers who are banned from ever getting any subsidies. Poor bastards.Report
I seriously can’t tell of you’re agreeing with George, or hitten him with a smack down.Report
Read again after you’ve sobered up. 😉Report
No it’s still not clear. George is arguing that the attribution of malice shouldn’t be a criterion by which constitutionality is determined, because any law can be viewed as discriminatory by some party or another.
In response you offered three examples. People expecting social security; child labor laws; and broiled chicken subsidies (hiccup). The first is a program paid into by people who have a legitimate expectation of receiving their benefits in proportion to their payments. The second can be covered by children not being agents capable of making their decisions and therefore ripe for explotosion … explotision … (hiccup) exploitation unless certain laws are passed. The third seem like the only example which constitutes clearly preferential treatment of the kind which George is referring to (hiccup).Report
Ok, I was too subtle, obscure or something. Gays can’t become straight, so they can’t select into the favored group. By contrast the kids will all eventually be eligibke for social security, and the grownus all previously benefited from child labor laws. And the farmer can change his crop (not that it matters, since they’re nearly all receiving subsidies, whatever they grow).
So his analogies are not apt, and don’t demonstrate his point. What he’s carefully avoiding considering is the motivation for depriving a small subset of the population, who can’t change, of what others see as a basic right.
It’s just like all the other conservative arguments on SSM, a facile and intellectually incoherent effort to pretend that deprivation of basic rights, relegation to second class citizenship, is just fine and dandy; couldn’t possibly be motivated by any ill-feeling, since it doesn’t actually harm anyone.Report
What he’s carefully avoiding considering is the motivation for depriving a small subset of the population, who can’t change, of what others see as a basic right.
Ahhh. I don’t see it that way. I think he’s carefully expressing that attributing the motivation of malice to lawmakers isn’t a sufficient reason to overturn policy. That it’s a double edged sword cutting lots of directions. OK, that analogy sorta fails. But is it sober enough to pass muster for you?Report
I’d say that malice on its own isn’t sufficient, but finding no compelling reason but malice is. That’s another key difference. Maybe laws favoring the blind are unfair to the sighted, but there are practical reasons for those laws beyond the legislature’s apparent distaste for people with good vision.Report
I’d say that malice on its own isn’t sufficient, but finding no compelling reason but malice is.
Absolutely. I don’t think George has said anything inconsistent with that. And for the record, I certainly wouldn’t, either. I don’t think the bar needs to be set nearly that high, myself.Report
I think your reading George too charitably, Still.
He says, “[Anti]Sexual discrimination laws, by their nature, are themselves discriminatory.”
By analogy, he would be committed to saying, “[Anti]Racial discrimination laws, by their nature, are themselves discriminatory.” It’s the reverse racism that is just as discriminatory as the racism. you see.
But James is right that there is a conceptual and normative difference (a huge one) between laws that effect people differently depending on how they behave and laws that effect people dependent upon inalterable genetic and biological features, like race and skin color and sexual orientation, as you surely agree.
Certainly, much of what the government does effects people differently depending on how they behave: taxes, tax credits, environmental regulatios, etc. However, it is a stretch of the natural-language use of “discriminatory” in this context to label these things as such. (At best, you could call it “good discriminatory” )
But laws that effect people on the basis of inalterable genetic features are and should be subject to a stricter standard of scruting to determine of they are just and /or constitutional, precisely because they are discriminatory in the proper sense of discriminatory. In the absence of evidence that society gets a serious good outcome out of treating people unequally on the basis of some inalterable genetic feature like race or gender, it should always be against the rules of justice and against the constitution. (Which it is. We apply strict scrutiny in cases of racial discrimination, and we should in cases of anti-gay discrimination.)
If George or you has something to say besides this, I wonder if it is relevant to the topic at hand of anti-gay discrimination.Report
Stillwater,
I disagree. He’s trying to claim that we can’t be sure it was malice that motivated lawmakers, and he’s doing so by analogy to other types of policies that discriminate between different groups. But the analogy fails, because he’s comparing two very different things: favoritism toward a minority and disfavoritism toward a minority. Since his argument was built on that fatally flawed analogy, his argument necessarily fails also.
If I’m wrong, I’ll fall back on T-Frog’s comment. Favoritism toward a particular minority can easily be demonstrated to have a basis other than animus toward the majority, whereas it’s difficult to demonstrate that disfavoritism toward a minority has any basis other than either malice or irrationality. But again, the very different types of discrimination are crucial, but overlooked by George.Report
Shaz, I tend to agree with George that anti-discrimination laws that take the form of Affirmative Action are discriminatory. My question has always been that given that, are they justified? I’ve consistently answered somewhere between an unqualified “yes!” and “maybe they’ve lived on past their utility”. But I’ve always assumed that the burden is on me to justify those policies.
As to the second part of the comment, I think George is making a valid point that malice inferred from the mere presence of preferential policy isn’t a good standard by which to reject that policy. Your argument – similar to James’, I guess – is that gay people have no choice about their sexual orientation, so laws that discriminate against them are inherently unjust.
But as far as my limited understanding of this goes, whether or not people are gay by choice or biological determination is irrelevant to George’s point. He’s arguing that the attribution of malice, inferred, no doubt from preferential legislative treatment, isn’t sufficient to overturn legislation as being unconstitutional. And you guys demonstrated his point. Malice alone isn’t enough to overturn DOMA. You’ve both been arguing that biological determinism suffices for equality under the law (or something to that effect).Report
James, you wrote
He’s trying to claim that we can’t be sure it was malice that motivated lawmakers, and he’s doing so by analogy to other types of policies that discriminate between different groups.
Here’s Goerge’s comment that initiated all the discussion:
The judicial branch can’t overturn laws passed by the legislative and signed by the executive merely on the basis that they don’t like the legislators or the President, or assert that everyone in their co-equal branches are racist, bigoted, wife-beating homophobes.
I think it’s pretty clear that he’s not making an epistemic point in that comment.Report
Exactly, Stillwater. The 10th Amendment argument that DOMA was an intrusion into state prerogatives was quite valid and should have been sufficient.
I’d also argue that the law wasn’t so much about equality, because under the law both gays and straights were treated equally (as I’ve argued before). A gay man and a straight man were free to choose partners from exactly the same subset of marriageable women (excluding their own sisters, etc). The law was completely blind on the subject, as if gays and straights had exactly the same inclinations as to who to marry. Unfortunately that didn’t map to reality, but it was blind and equal. It’s still blind and equal, because with gay marriage now both gays and straights can marry members of the same sex or the opposite sex.
We never had a law that said that gay people were forbidden from marrying anyone. In fact, the law doesn’t even have a way to determine if someone is gay or not. It’s not on your driver’s license, it’s not on your birth certificate. We’ve never required separate schools for gay people, or made them live in isolated communities, or prohibited them from voting.
Most of the country back then just didn’t think that two guys or two girls could marry each other, or two guys and one girl, or a guy and a fern, or various other possible constructs. It just didn’t make much sense, like arguing that the man should be the mother and bear the children while the woman gets to be the father, or that you can be your own parent. That gays wanted to marry within the same sex was noted, but didn’t fit the established and accepted concepts of what a marriage was.
As it turns out, the concept and definition can be altered, and needed to be at the federal level once states began to shift and completely innocent parties were getting hit with massive tax penalties that shouldn’t have applied. As in all things, if the IRS is making a lot of money from it, it must represent an immoral and unconscionable evil and an attack on the fabric of American society.
Whatever my opinions were on gay marriage, if the IRS is going after gay couples I’ll get ordained and perform the ceremonies myself, because IRS agents about as well loved as crack-dealing pedophile jihadist suicide bombers with small pox.Report
Or I should say, a point about epistemic uncertainty.Report
And there we have it–George finally lets the cat out of the bag. I was pretty sure all along that he had some kind of asinine defense of the ban on SSM up his sleeve, and Stillwater unfortunately fell for it hook, line and sinker, thinking George was up to something more intellectual.
But of course George has taken the most shallow view of what gay people are seeking when they seek marraige, because a ban on SSM means straight people can marry the love of their life, while gay people can’t. That’s George’s idea of equality: straights can marry happy; gays can’t. That’s one hell of a “philosophical” point.Report
Well, yeah.
Another point is that most laws are punitive in nature (thus punishment, jail sentences, fines, and the like). Almost all such laws are passed with what could be described as malice toward the intended behaviors, perpetrators, and miscreants. If that alone renders such laws unconstitutional, then what’s the point of having a legislature since the only permissible laws would be ones encouraging people to hold hands and sing Kumbaya? A great many of our most cherished laws were passed not just with suspected malice, but in full blown righteous indignation, outrage, and anger.Report
1. The justification for laws against those actions are that they harm other people. That justification holds, even if malice also plays a role in passing those laws. But you can’t make that argument about bans on SSM, so once again you rely on comparisons that have absolutely no validity at all. In pushing so hard on the point that malice alone doesn’t justify striking down the law, you repeatedly fail to recognize that bans on SSM weren’t struck down solely because malice was part of their making, but because they lacked any justification except malice.
2. Even were you making a better argument here, it wouldn’t offset the gross stupidity of your claim that gays are equal because they can marry the opposite sex. I’ve always enjoyed challenging idiots who made that claim by pointing out that banning opposite-sex marriages and allowing SSM would also be “equal,” since straights would be just as free to marry the same sex as gays are. The most stupid of all the straight people I ever talked to could grasp how that would be unequal for them. Can you?Report
and Stillwater unfortunately fell for it hook, line and sinker, thinking George was up to something more intellectual.,/i>
Jesus James, you’re really insufferable, the way you can reach into people’s minds and divine their true motivations and all. If I didn’t know better I’d think you were an objectivist about value and rationality.
Fact is, I could give a rats ass about where George might want to go or actually is going in your fevered dreams. He made a good point, one I agree with and will repeat to you: the attribution of malice derived the existence of preferential treatment is not a good, or desirable, or functional, or even legitimate criterion by which to overturn legislation. Why can’t you see that point for what it’s worth? The libertarian in you ought to rejoice at a proposal like that.Report
But of course George has taken the most shallow view of what gay people are seeking when they seek marraige
But that just shows you don’t understand what George is talking about, since his views – the views I’m discussing anyways – have nothing whatsoever to do with the desires of gay people. They have to do with justifications available to the Supreme Court to overturn existing law.Report
Exactly. You could reverse DOMA and argue it just as well the other way. Why would the federal government have recognized gay marriage during the Clinton years? To insult the values and spit in the face of over a billion people in India, over a billion in China, over a billion in the Muslim world, over a billion in Africa, half a billion in Latin America, half a billion in Western Europe, and half a billion in the old Soviet bloc. In fact, during the Clinton era not a single country in the entire world recognized gay marriage, so the only reason Congress would’ve passed such a law is to codify into law their bigotry and hatred of other cultures, rendering such a law unconstitutional under the Kennedy standard.
That’s why entirely subjective opinions about people’s motives and their assumed bigotry and racism shouldn’t be the sole standard for court decisions. It’s equally valid to argue that recognizing gay marriage is purely the result of bitter, racist hatred of Indians and Muslims and their culture. To favor one group necessarily means to discriminate against another, and such decisions are made with full knowledge and debate, not because Satan is beaming signals into Congressmen’s brains.Report
Stillwater, George made no good points. Everything in hs argument worked toward the conclusion that a ban on SSM was non-discriminatory and not based on malice. I’ve seen conservatives take thatbapproach before. There must be a playbook or something. It was all of a piece and I’m truly sorry you couldn’t see through it.Report
Everything in hs argument worked toward the conclusion that a ban on SSM was non-discriminatory and not based on malice. I’ve seen conservatives take thatbapproach before. There must be a playbook or something. It was all of a piece and I’m truly sorry you couldn’t see through it.
Yup, that’s pretty much what he’s argued. What does it have to do with whether or not the attribution of malice is a legitimate reason to overturn legislation?Report
I suspect the problem here is that while one can always make an inference of malice — in any legislation whatsoever — there are only a very few times when one is seemingly forced to make an inference of malice, and when one’s only other alternative is irrationality.
So while George may be correct that all legislation that gives some preferential treatment to some group might be called an act of malice, that inference can very often be deflected, and quite easily at that. Only in some cases is it all but impossible to deflect.
Talking about the trivial, easy-to-deflect cases, when this clearly isn’t one of them, is sophistry.Report
Well said, Jason.
Stillwater, I’ll stop now.Report
{{Another long skinny thread…}}
Couple things Jason.
First, the purpose of the OP – at least on my understanding so correct me if I’m wrong – is to basically agree with Roberts that the attribution of malice expressed as a desire to inflict a “bare harm” on gay people is not a sufficient reason for the Court to reject DOMA unless it can meet a substantial burden, including attributing “malice” to Bill Clinton when he signed it into law. Roberts implicitly rejects that the standard can be met.
You point in quoting Roberts to the length you did, however, was to argue that even tho you agree with that position “as far as it goes”, you sorta-somewhat agree with Kennedy;
The truth is that, were we to try to infer motives, considering the minds of the individuals who enacted DOMA as 428 utterly impenetrable black boxes, we might infer bigotry, but we wouldn’t have to.
On my reading, given the two comments, it seems like your not only rejecting that the attribution of malice is a sufficient condition for overturning DOMA, you’re also rejecting that it’s necessary.
I think that’s actually been George’s point all along, one I’ve tried to argue and clarify, and one which I think he’s been pretty consistent about. So I’m not sure what all the hubbub is about – except that it’s George saying it. If I were to argue exactly as George has (content-wise!), I don’t think Hanley would be so enraged by the argument. It seems to me I would merely be elaborating on two points that (I believe) you’ve already expressed in the OP. And certainly – as the OP demonstrated – leaving open the question of how those two opinions (Kennedy’s and Roberts’) are ultimately reconciled.Report
And to fill that out some, when George writes
The 10th Amendment argument that DOMA was an intrusion into state prerogatives was quite valid and should have been sufficient.
He’s suggesting that the Court already had all the tools at it’s disposal to overturn DOMA without making any appeal to the psychological properties of legislators and Presidents who enacted it. I mean, that’s just crystal clear to me.
Now, whether George thinks that individual states ought to have the constitutional authority to ban SSM is another question, one which I don’t find particularly relevant in the context of this discussion (tho Hanley apparently does).Report
First, the purpose of the OP – at least on my understanding so correct me if I’m wrong – is to basically agree with Roberts that the attribution of malice expressed as a desire to inflict a “bare harm” on gay people is not a sufficient reason for the Court to reject DOMA unless it can meet a substantial burden, including attributing “malice” to Bill Clinton when he signed it into law. Roberts implicitly rejects that the standard can be met.
I would not have characterized it this way. The justices’ task is not to pull out the lamp of Diogenes, looking for one non-malicious vote cast in DOMA’s favor. It’s to ask about what reasons prompted the legislation, and whether those reasons are both (a) non-malicious and (b) rational.
One could imagine, for example, a harmful law that was passed without malice, but through irrationality. Perhaps there was something in the water, or maybe a disease that affected the brain. The law might then meet all the formal tests of being a law, but if it commanded all Americans to wear tinfoil hats to keep out the martian brain signals, well, that would be a law to strike down.
The claim here is that DOMA’s supporters were either bigots (which some were), or that they were acting under a similar duress — namely, a set of political considerations that existed in the early fall of 1996, but that do not exist today.
On my reading, given the two comments, it seems like your not only rejecting that the attribution of malice is a sufficient condition for overturning DOMA, you’re also rejecting that it’s necessary.
I’d say that if there were no reasons other than irrational or bigoted ones, the law would fail. That means that bigotry is a sufficient condition (if all involved were rational bigots). But it’s not necessary (if all involved were irrational).
The problem with using only the Tenth Amendment here is that it doesn’t get us the result in this case — it gets us the result in Baker v. Nelson (1972). In that case, the Court declined to issue a ruling, holding that the question of same-sex marriage was not a federal one at all, and thus there was nothing it could do.
The problem with that reasoning, very a slight one which the Court has now corrected, is that there are lots of federal consequences to marriage, and those consequences do make the recognition or non-recognition of state-level marriages a federal question, at least as long as DOMA still stood.Report
If I were to argue exactly as George has (content-wise!), I don’t think Hanley would be so enraged by the argument.
Yeah, that tallies really well with your (accurate) complaint that I was being insulting to you, as well as our history of impolite debate.
And I’m amused at how you try to divine my motivation, after having written: Jesus James, you’re really insufferable, the way you can reach into people’s minds and divine their true motivations and all.
It’s that classic Stillwater double standard again–it’s only insufferable when others do it. Particularly funny this time, given it’s in the same subthread and less than 24 hours have passed.Report
I’d say that if there were no reasons other than irrational or bigoted ones, the law would fail. That means that bigotry is a sufficient condition
Maybe. I’m not sure how you could establish that, tho. Irrationality is much easier, it seems to me. Establishing that DOMA is solely the expression of bigotry and a desire to inflict harm requires an inference in this context, one that – as George has pointed out – opens up a Pandora’s box of unintended consequences, but is also an irrelevant consideration and not practically possible in any event. Eg;, in this situation, according to your hypothesis, the Court would be justified in overturning DOMA on the grounds that the was passed for the express and sole purpose of inflicting harm on gay people. As Jaybird has pointed out, that argument doesn’t even get off the ground since doing so requires attributing malice to Clinton when he signed it into law. But it’s mind boggling to think that Clinton’s psychological state when he signed it was one of deliberate malice towards gays. As Jaybird has pointed out, both DOMA and DADT were regarded as better options than the alternatives.
Re: the comment about the 10th Amendment: I quoted George on that point to show that his argument all along has been that attributions of bigotry aren’t necessary or sufficient for determining whether DOMA is constitutional or not, and not to express agreement with the substance.
And as a last note, I find it somewhat surprising that libertarians are defending an argument which attributes unknowable psychological properties to people as if those properties are or could be objectively determined, and that the mere (asserted!) existence of those psychological facts suffices to reject or overturn a piece of legislation. It’s especially puzzling because the conflict between DOMA and specific Constitutional provisions is so entirely obvious (to me anyway) that I wonder why anyone would go down that road. I’m really not sure what benefits accrue to adopting that strategy. It seems like a category error. All I see are downsides to arguing that way.Report
James, why? Why did you reply with that much hostility and venom? It’s truly amazing to me how quickly you fly off the handle and try to engage in trivial gotchas.
We have a disagreement, one that apparently makes you so angry you need to insult people. To make it personal. I just don’t get it.Report
Oh James… I still love ya.Report
@Jason
No, that is not at all a sufficient condition. A court can’t strike down a law just because they have a low opinion of legislators and allege bad motives to them. That would be tyranny of rule by judges who serve for life. If we went with that standard all the famous Supreme Court cases striking down segregation wouldn’t have needed to invoke constitutional arguments involving equal protections, they would’ve just pointed out that the segregation laws were passed by Democrats, all of whom were racist pigs whose legislation on anything could be disposed of by the Court.
But the whole system of slavery was allowed in by the Founding fathers, who were obviously racist pigs, so the Bill of Rights can likewise be dismissed because it was authored by racists. We can also rule Social Security and the New Deal programs unconstitutional because they was authored by legislators who didn’t grant women full and equal treatment, having been passed prior to Rosie the Riveter, much less the sexual revolution. And of course all of Johnson’s great society programs can be rejected because none of legislators back then believed in gay marriage, legalized marijuana, or over-the-counter abortion pills.
In essence, what such a ruling would hold is that the American public’s votes only count as valid if they elect representatives whose personal beliefs coincide with those of a Supreme Court justice in the future.
In contrast, what the judges are supposed to do is only strike down a law if they find it violates the contract that the people signed with their government, that short little document guarantees that the government will function in a certain way, respect an enumerated but open list of the citizens rights, and not take actions beyond the limits imposed upon it. There’s nothing in there that says Republican judges can strike down laws because they don’t like Democrats and think they’re crazy, or vice versa.
If times change and an old law no longer fits modern sensibilities, then there’s not a thing in the world preventing the people, through their elected Representatives, from changing it. That’s how the system is supposed to work.Report
No, that is not at all a sufficient condition. A court can’t strike down a law just because they have a low opinion of legislators and allege bad motives to them.
Existing legal precedent disagrees with this in all sorts of different instances — not as regards low opinion, but certainly as regards bad motives.. The animus found in a discriminatory measure, the cruelty of a punishment, even evidence of wishing to set up a separate but equal regime — all of those allow courts to strike a law.
If we went with that standard all the famous Supreme Court cases striking down segregation wouldn’t have needed to invoke constitutional arguments involving equal protections, they would’ve just pointed out that the segregation laws were passed by Democrats, all of whom were racist pigs whose legislation on anything could be disposed of by the Court.
Not so. Those were equal protection cases, all of them. The legislature had acted to deny the equal protection of the laws to a particular group, and the courts said no, you can’t do that. Particularly not on a question of race, the very category that the Fourteenth Amendment was designed to address.Report
Stillwater,
It’s very simple. You consistently engage in the use if double-standards, and I’m very hostile to people who do thsat, because my bottom-line ethic is what I call the sports officiating rule: whatever may be the rules you want, you have to live them being applied to your team just as they are to the othervteam. Start operating that way and I’ll probably treat you decently. Keep doing doing as you’ve been doing and I’ll keep treating you hostilely. Understand, the repeated use of a double standard destroyed the respect I initially had for you.Report
Jason, I don’t want to speak for George on this, but here’s my take on what he was arguing above:
Courts are justified in overturning based on a criterion of malicious intent only if the resulting legislation in fact incurs demonstrable harms. Leaving aside the ever-changing conception of what constitutes a demonstrable harm, the fact remains (as I see, anyway) that without them, the argument from malicious intent would make no sense. But if the harms resulting from a policy actually can be demonstrated, then intent drops out as either a necessary or a sufficient condition for invalidating unjust laws. A consideration of malicious intent might be relevant wrt determining the purpose of a law, of course, especially insofar as proponents of that law are unable to articulate compelling reasons justifying it. That’s fair enough. But also far enough.
So it is or can be part of the overall argument, it seems to me. But it doesn’t need to be. Nor is it enough all on its own.Report
Understand, the repeated use of a double standard destroyed the respect I initially had for you.
{{{Jesus}}}Report
Simple question, buddy: are you “insufferable” for “divining” my motive? Or do you think you did simething other than divining my motives when you said I only attacked because it was George commenting?Report
See my comment just below this one.Report
No, legal precedent does not or Chief Justice Roberts wouldn’t be waving a red flag saying the court has never gone there before. Cruel punishments aren’t struck down because of suspected animus towards child murders, they’re struck down because the contract the people have says “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” It’s right there in the fine print.
The same with equal protection. The Supreme Court didn’t even bother accusing the Democrats of racism, animus, and bad motives because those had been glaringly obvious for two centuries. What they found in one case was that “separate” was not “equal” when it came to schools.
Bad motives don’t invalidate laws, because all our laws are built with bad motives. The Democrats pass measures designed primarily to help them win elections, and the Republicans do the same. That’s a bad motive. Then, to get the legislation passed, they all swap favors and add little riders, filling the bills with pork. That’s a bad motive, in fact you could argue that it’s a compromising one. Yet that’s how the sausage gets made.
If you empower a court to strike down any law where such motives exist then the court can strike down any laws it doesn’t like, because all laws are like that, just to spite Congressmen and Presidents for not inviting the justices to the best Washington cocktail parties. A judge is supposed to reason based on the law, not what demons he thinks burns in the hearts of lawyers.Report
Against my considered judgment, I choose to PROCEED.
Here’s a comment from James H to me:
I’m very hostile to people who do thsat … Start operating that way and I’ll probably treat you decently. Keep doing doing as you’ve been doing and I’ll keep treating you hostilely.
This is from the commenting policy:
This site exists for the purpose of advancing debate and understanding of any number of issues across various ideological lines. Perhaps no principle is more essential to this purpose than the basic concept of civility.
Am I correct in thinking that the first comment expresses a desire to deliberately act inconsistently with site’s Commenting Policy?Report
Heh, nice job of deflecting the focus from your behavior to my behavior. Avoidance is a great life skill. Of course others might think that condeming others for doing only what you yourself have done is also a violation of civility.Report
So, your answer is no, then? You believe “treating me hostilely” is consistent with the commenting policy?Report
I didn’t give an answer, because I’m still trying to elicit an answr from you. (I did ask first, so civility might require that you answer my question before demanding that I answer yours.)
Rephrased, my question is: Do you think what you did (comment on my motivation) was different than what you critiqued me for doing (commenting on George’s motivation)? If not, are you insufferable, as I am?Report
This will be a two parter James.
Part 1: Is that really where you want start with who hit who and when? Seems to me my first encounter with you on this thread was in a comment where you gave three examples which you thought refuted Goerge’s view. Responded to that comment saying I couldn’t tell if you were agreeing with George or giving him a smack down. Your response?
Read again after you’ve sobered up. 😉
I viewed that as a pretty hostile (uncivil) response to a legitimate confusion on my part. My next comment outlined exactly why was confused by going thru each of the cases you presented. Your response?
Ok, I was too subtle, obscure or something. , which I took as a concession that my initial comment had some validity. And more importantly, that the initial hostility wasn’t warranted.
The next “dust up” was about this comment:
Stillwater: We’ll have to agree to disagree!
J@m3z Aitch: You’re free to be wrong. God bless America.
Stillwater: See, that’s unhelpful, James. I could go on about why you’re actually wrong about this, but I haven’t and I won’t because it’s not that interesting to others – it gets deep in the weeds – and because I’m completely willing to allow you to hold your beliefs irrespective of whether I think they’re correct or not.
You, on the other hand, leave a parting shot that I’m wrong. I find that sort of insulting. Especially since, from my pov, you haven’t addressed any of the points I’ve made. You think it’s about one thing but it’s actually about another, one which you have no curiosity about.
J@m3z Aitch: “I find that sorta insulting.”
Well, drunk or not, at least this time you understood me.
In this comment, you’re admitting to deliberately, intentionally insulting me. (Which I think is a comment violation, no? It’s interesting that you admitted it…)
After all that, we finally get to where you want to pick of the story of who hit who and when. It focuses on this comment from you.
And there we have it–George finally lets the cat out of the bag. I was pretty sure all along that he had some kind of asinine defense of the ban on SSM up his sleeve, and Stillwater unfortunately fell for it hook, line and sinker, thinking George was up to something more intellectual.
It should be no surprise that I viewed that comment as an expression – a deliberate one – of unprovoked hostility, since you took shot at me in a comment responding to an argument presented by George. I found it insulting on two levels: the first is that it attributed to me a gullibility that wasn’t warranted by anything I’d said, or anything George had said, since the only point of his I was agreeing with was his claim that the attribution of malice isn’t sufficient grounds to overturn democratically enacted legislation.
Of course, your comment was problematic for on another level: you attributed a gullibility in accepting one of George’s arguments, but your criticism was based (on my view, no doubt) a misunderstanding of the both the actual words George wrote as well a principle of charity regarding not imbuing content to a writer that extends beyond their clear expressions. Fact is, I think at that point in the conversation George had written comments explicitly agreeing with my characterization of his views.
My response to what I perceived as a hostile comment from you?
Jesus James, you’re really insufferable, the way you can reach into people’s minds and divine their true motivations and all. If I didn’t know better I’d think you were an objectivist about value and rationality.
It’s at this point that you began criticizing me for engaging in a double standard, and became even more openly hostile.
Starting with this
Yeah, that tallies really well with your (accurate) complaint that I was being insulting to you, as well as our history of impolite debate.
followed by this:
It’s very simple. You consistently engage in the use if double-standards, and I’m very hostile to people who do thsat, because my bottom-line ethic is what I call the sports officiating rule: whatever may be the rules you want, you have to live them being applied to your team just as they are to the othervteam. Start operating that way and I’ll probably treat you decently. Keep doing doing as you’ve been doing and I’ll keep treating you hostilely.
I see know other way of undestanding that last comment of your as expressing a desire to deliberately violate the commenting policy of this site. I also think the timeline shows that you were increadibly hostile long before I engaged in any so-called “double standards”. I’m not even sure what double standards your referring to since the comment I made to you which you believe expresses that double standard was, from my pov, deliberate expression of hostility that can in no way be said to have been provoked.
You, of course, will strenuously disagree.Report
Part 2: If you mean the question to be understood as “do I think you were justifiably upset that I criticized your “attack” on me (as phrased it upthread) as being motivated by a predisposition to reject George’s view”, then perhaps. Either you found that insulting, or you didn’t, and presumably you did.
But you did in fact attribute to George a set of beliefs that were wholly unjustified given the content of the discussion. To wit:
And there we have it–George finally lets the cat out of the bag. I was pretty sure all along that he had some kind of asinine defense of the ban on SSM up his sleeve, and Stillwater unfortunately fell for it hook, line and sinker, thinking George was up to something more intellectual.
In that comment you attributed to George a bunch of shenanigans that, from pov, don’t follow from anything he said. Insofar as you think those “shenanigans” do follow, a less hostile comment to both George and me would have been warranted, so’s to better tease out where the disagreement actually lay.Report
I think you’re missing something important here. Your tendency to employ a double standard became clear to me months ago, and I challenged you on it then. You never dealt with it, but continue to engage in it, which is why I rarely am willing to grant you much respect. And now you still don’t want to consider that maybe there’s anything unkosher about your behavior, but want to focus solely on mine, which, ironically, is yet again a double standard.
You want civil behavior from me? Quit pulling that shit on me and you’ll have it, guaranteed.
(For the record, though, my “sober up” statement was a joke, based on the fact that it was a weekend night, and that I thought (apparently inaccurately) that my comment’s snark quotient was clear; hence the smiley face. Apparently the joke didn’t deliver successfully, although it seems to me that any time someone uses the smiley emoticon, a joke should be assumed, even if not understood.)Report
You want civil behavior from me? Quit pulling that shit on me and you’ll have it, guaranteed.
OK. I think that settles it. You will continue to intentionally violate the commenting policy wrt comments directed at me.
I’d like file a formal complaint with the League PTB.
Anyone? Bueller?Report
Part 2. Way to not answer the question. I did not deny attributing motivation to George, so re-emphasizing that I did so takes you nowhere.
But you fail to address the issue of whether you did the same thing. Instead you reword the question to once again shift focus away from your own action and put the focus on my response, whether I found it insulting ot not. Why would you do that?
Please just answer the questions:
1. Did you attribute motivation to me?
2. If you did, are you, by the standard you applied to me, insufferable?Report
Short answer: No. You explicitly attributed a motivation to George. I’ve quoted the comment twice now.Report
As well as attributing gullibility to me, I might add. Neither of those accusations were justified by the content of the words expressed. You had to infer psychological properties wholly outside the scope of the discussion to make those claims.
Which ironically, one of the main topics under discussion.Report
OK. I think that settles it. You will continue to intentionally violate the commenting policy wrt comments directed at me.
I’d like file a formal complaint with the League PTB.
Will you at least answer my question before you get me banned?Report
Short answer: No. You explicitly attributed a motivation to George. I’ve quoted the comment twice now.
Dude, that’s not the question. I’ve not denied it, so you’re reiterating a point on which we do not disagree.
The question, which you have now ducked multiple times is, did you attribute a motivation to me?Report
Okay, if I yell “Time Out! Everybody! Jesus!”, will that be seen as hypocrisy because Libertarians ought to believe that nobody should ever be told anything, ever?
Because, if not, Time Out! Everybody! Jesus!Report
Are you asking whether I attributed a motive to you in this comment
If I were to argue exactly as George has (content-wise!), I don’t think Hanley would be so enraged by the argument.
?
Yes! Based on your having in fact attributed nefarious (“shenanigans”) to George. How am I invoking a double standard by attributing to what you already agree to?Report
For the record, here is what you said.
So I’m not sure what all the hubbub is about – except that it’s George saying it. If I were to argue exactly as George has (content-wise!), I don’t think Hanley would be so enraged by the argument
How is that not “explicitly attributing” to me the motivation of only attacking because it was George?Report
Sorry Jaybird. This seems like a silly way to spend a Saturday afternoon, I admit. But frankly, I’m a bit incensed that Hanley has rather forcefully stated that he intends violate the comment policy by responding to me with open hostility.Report
Do you mean to say I was right in attributing motive to you wrt Goeorge, but was wrong to think that it was restricted to only George and you would have “attacked” me anyway?
Sure, have it your way.Report
I cannot speak for anyone else but I will do what is within my power to ensure that it is open hostility that meets our commenting policy.Report
Uh, no, Still. The fact that I read a nefarious motive into George’s argument doesn’t mean I’m attacking only because it’s George. It means that I think that set of arguments is–as I noted–something I’ve seen before, and it was always before associated, imo, with nefarious motives.
But in your view, apparently, your attribution of motive to me, though false, is justified. So there we are, your double standard made clear–I do X (motive attribution/use a pseudonym) and it’s bad; you do the same X and of course you’re right in doing so.
Nothing insufferable about that.
Go ahead and write your formal complaint, the League’s free to do as it pleases, as always. But stop pretending you’re a wholly innocent party here. Have the courage to critique yourself as quickly as you critique others.
Jaybird–good man for intervening. Fortunately my daughter wants to go to the mall, so you have good timing.Report
But in your view, apparently, your attribution of motive to me, though false, is justified.
Huh?
Stillwater: You explicitly attributed a motivation to George. I’ve quoted the comment twice now.
James: I’ve not denied it, so you’re reiterating a point on which we do not disagree.
How is what I said false? You admit it? How is that a double standard?
James, go to the mall, enjoy your afternoon. This is really ridiculous. You insist on attacking because you perceive I employ double standards all the time, yet the only double standard you accuse me of is attributing a motivation to you that admit to.
Weird.
I look forward to more hostility from you in the future.Report
I’m also impressed that you keep going at it with George. I’ve long give up on him.Report
So you don’t think that laws requiring products to contain a certain percentage of domestic labor discriminate against foreign labor? You don’t think that laws the require union labor discriminate against non-union labor? You don’t think that laws that gave massive price supports to tobacco farmers discriminated against farmers who chose to grow radishes instead? You can’t move someone to the head of the line and claim that the rest of the line is unaffected. If there is a preference for, then there’s a preference against. Just because a judge can choose to cast the preference against as “malice” doesn’t mean all such laws we pass are unconstitutional.Report
You don’t think laws banning sales from places with slave labor discriminate against slaves.Report
George, you might want to think about which cases concern people who can change the status by which they are disadvantaged and which cases concern poeople who can’t. Or put another way, in what important way is “radish farmer is to tobacco farmer as gay is to straight” a false comparison?Report
We have laws favoring the blind, but it’s not discriminatory because you can choose poke out your own eyes? Much of state marriage law gives women preference regarding child support and custody, obviously discriminating against the fathers, who as a class can’t choose to become the mothers instead. A judge could easily find that such laws were passed because society doesn’t respect or value men who run off with a younger woman and divorce their wives, or whose abusive actions instead caused their wives to terminate the marriage. Therefore should all domestic laws favoring a woman in child support and custody cases be struck down?Report
Laws favoring the blind? Laws that ensure equal access make the blind more equal than others? Are you even taking time to think before you type?
Yes, laws that automatically favor either gender in child custody should be struck down. For christ sake, your very example was based on a ckear assumption of animosity toward men, because those actions could be used in custody judgements concerning those particular men without being the basis for a law automatically discriminating against men.
Why the hell you’re working so hard to spin excuses for those who would deprive others of basic rights is a mystery to me. Maybe you just like being the fly in the ointment, but we’re talking about real people’s lives that have been fucked with, and all you seem concerned with is using sophomoric logic to urge us to be nice to the people who fucked up their lives. Fuck them and all who defend them. Their actions were motivated by either animus or idiocy, and neither deserves defense.Report
James, George is making what’s known in the trade as a “philosophical” point. (I’m surprised Shazbot didn’t see it, but being a robot and all…) It’s pretty simple actually. And pretty inarguable, it seems to me.
That is, independently of whether George favors SSM or opposes it, the point he’s making holds. Which is: that malice inferred from preferential treatment isn’t a good reason to determine the constitutionality of a law.Report
Stillwater,
No, he’s making what’s known in the trades as a bad analogy. The difference between 1) being able to change one’s status to take advantage of a benefit given only to a few, and 2) being unable to change one’s status and so being deprived of an advantage given to the many is pretty damned significant in judging whether malice lies behind the policy.
“Nobody gets this but the rice farmers” doesn’t denote malice toward the excluded majority.
“Everybody gets this but the gays” (or blacks, or Jews, etc) does tend to denote malice toward the excluded minority.
At the least, they’re not at all the same thing, and using the former to explain the latter doesn’t work. “Inarguable” isn’t really the best adjective available here.Report
We’ll have to agree to disagree!Report
You’re free to be wrong. God bless America.Report
See, that’s unhelpful, James. I could go on about why you’re actually wrong about this, but I haven’t and I won’t because it’s not that interesting to others – it gets deep in the weeds – and because I’m completely willing to allow you to hold your beliefs irrespective of whether I think they’re correct or not.
You, on the other hand, leave a parting shot that I’m wrong. I find that sort of insulting. Especially since, from my </i<pov, you haven't addressed any of the points I've made. You think it's about one thing but it's actually about another, one which you have no curiosity about.Report
I find that sort of insulting.
Well, drunk or not, at least this time you understood me.Report
I still love ya bro.Report
James, depriving gay couples of the financial benefits of marriage was an intended part of DOMA:
You are spot on.
Source: http://www.gpo.gov/fdsys/pkg/CRPT-104hrpt664/pdf/CRPT-104hrpt664.pdfReport
Stillwater–Seriously, don’t.
Zic–Exactly. And any effort to pretend that malice isn’t at issue here, or that a law being motivated by malice isn’t sufficient to strike it down, is not going to get a respectful hearing from me. I’ve grown very impatient with excuses for fucking over minorities.Report
And any effort to pretend that malice isn’t at issue here
I certainly haven’t argued that view.
or that a law being motivated by malice isn’t sufficient to strike it down
Yes, there’s where I disagree. Malice alone isn’t sufficient to strike it down.Report
Malice alone isn’t sufficient to strike it down.
Uh, targeting a minority out of malice is pretty much the definition of violation of equal protection… isn’t it?Report
Uh, targeting a minority out of malice is pretty much the definition of violation of equal protection… isn’t it?
I don’t think so (or so I’ve argued!). Enacting legislation that gives preferential treatment to a privileged class of people could be overruled as harmful, but not necessarily (or sufficiently) on the grounds that the legislation was enacted as an act of malice. The leg. could be – and I think should be – overturned because it violates equal protection, independently of the motivation.Report
If the sole justification is malice, the law fails both struct scrutiny and rational basis.Report
Mike, the point isn’t that the principle holds. It’s the establishing the principle requires determining that an actual harm is codified by that legislation. The proposal on the table is that DOMA can be rejected because it’s passage was the result of individuals exhibiting malicious intent to gays. How is that argument supposed to be determined? Presumably that there is no good rationale for the passage of that law other than a desire to inflict bare harms on gays.
But that’s just false. For the claim to go thru, a compelling case that Clinton was acting out of pure malice when sigining that legislation would have to be made. is there a way to construct that argument without begging the question re: intentions? Is it enough for Clinton (or anyone else?) to say that the motivation of enacting DOMA was something else? How would that claim be demonstrated?
So the argument isn’t that malicious intent isn’t a relevant consideration when the Courts review legislation. It’s that intent isn’t enough to justify overturning the law. Actual harm has to be demonstrated. And if actual harm can be demonstrated, then intent is irrelevant.Report
No, for two reasons. Even if almost the sole motive was malice, like Congress declaring war on Japan after Pearl Harbor (and it’s hard to get more malicious than total war), it doesn’t invalidate the action. There is no provision in the Constitution that says only bills passed without malice by both chambers can be signed into law.
Second, there’s probably never been a bill based purely on malice. Even an act you’d find totally heinous would have had some yea votes from Congressmen who were passing the bill so they could secure funding to rescue orphan kittens in another upcoming bill. All laws passed by Congress have orphan kitten rescue lurking in their somewhere, even if behind the scenes.Report
I’ll say it again: if a bill discriminates against a protected class, and had no motive other than malice, it’s going to fail any test that allows that discrimination.Report
So we have to let sexual predators live next to elementary schools now? It would seem to be an egregious violation of the fair housing act based in pure malice against child rapists.
I don’t think there are any Americans who aren’t in one protected class or another, if for no other reason than that we all have genes, and people with genes form a protected class under the Genetic Information Nondiscrimination Act. Even the sex predators have genes.
And in fact the recent ruling raises as many issues as it laid to rest, because now a gay couples’ rights under federal law are dependent on which state they live in. A gay couple in Texas, which doesn’t recognize gay marriage, don’t get the same federal tax breaks or survivor benefits as a married gay couple in Massachusetts. If what we are discussing is indeed a fundamental right (and I’d argue that marriage to the person you love might not be a fundamental right or people could file civil rights lawsuits over having their marriage proposals rejected), then simple application of the Equal Protection Clause could probably be used to reverse this recent ruling because it doesn’t establish the same benefits for all gay couples regardless of where they reside.Report
And had no motive other than malice
But that’s just the issue, Mike. How would the court go about determining that there’s no other motive than malice (for one thing) when there is a perfectly good demonstrable harm sitting right there in front of them to reject the policy (for another)?
Malice cannot be a sufficient condition to overturn legislation, since any complaint of malice (at least, addressed by the court) will certainly include a demonstrable harm. Otherwise the accusation of malice isn’t even coherent.Report
So we have to let sexual predators live next to elementary schools now?
There’s no doubt laws constraining where sexual predators can live have gotten out of hand, but I have to wonder about a person who can’t discern some reason other than malice for not letting them live next to an elementary school.
I think George must have set some kind of record for bad analogies, comparisons, and examples in this thread. It’s almost performance art.Report
And yet you can’t think of a single reason, other than malice, why no countries in the entire world recognized gay marriage prior to the year 2000?
In fact, can there be any other reason for supporting gay marriage other than extreme racism and bigotry aimed at all of India, Africa, Central Asia, Russia, the Islamic world, most of the Hispanic world, China, the Pacific Rim, and almost everywhere else?
That’s it! I’ll just accuse anyone who disagrees with me of being a racist bigot and pretend that nothing they do or say flows from anything but paranoia, hatred, racism, and condescending arrogance and contempt for any other culture, since they obviously find all other cultures, races, and religions grossly inferior to their upper-middle class, white, heterosexual, post 20th century norms from The Daily Show, to the extent that any members of those cultures, especially brown or yellow skinned ones, can be dismissed as subhuman, uncivilized primitives.
Boy, that’s a lot easier than making a reasoned argument or logical point! Why wasn’t I doing this before?Report
I’m all ears, George. I mean, we know that homosexuals have been persecuted in a wide variety of cultures around the world and throughout history, but if you’ve got some good non-malice based reasons for denying them marriage rights, by all means don’t keep an ignorant schmuck like me in the dark; enlighten me of wise one.Report
And yet you can’t think of a single reason, other than malice, why no countries in the entire world recognized gay marriage prior to the year 2000?
You know, Stillwater kept insisting that you weren’t denying malice was behind the ban on SSM, but that your point was that malice alone isn’t sufficient to strike down a law. Perhaps you were saying that, too, but damned if I wasn’t right that you’re denying the malice behind SSM bans.Report
Have been persecuted? Good thing those days have faded into the mists of distant history.
You don’t step outside the latte lounge and coffee shop much, do you.Report
You got it, George: Best to avoid making arguments at all, since you’ll end up trying to make a good argument, and in so doing imply that you’re capable of making a better argument than the other person, or, even more pretentiously, cruelly, and tiresomely, may have a better grasp of the subject in relevant particulars.Report
I don’t think much of the “malice” argument either, at least the way I understand that term — it’s perfectly possible to feel that homosexual acts are Wrong but still not feel malice towards gays and lesbians as people. Under this view, it’s sad for them that they are the way they are, and there’s no active desire to harm them — there’s just a desire to not have the government sanction what’s seen as an immoral act.Report
We never really needed an official language because we spoke so many… then, with the advent of radio (and all of the subsequent pop culture) everybody spoke English because the good stuff required English. You want to listen to Superman on the radio? You want to watch The Honeymooners?
Everybody spoke English. You didn’t even need to think about passing a law about “Official” languages. We *HAD* one. It was the one that everybody spoke.
Now? Things are changing. More people are not only not speaking English but not really thinking that they ought to.
And what’s showing up? People making rumblings about making English the national language.Report
But that’s not true. When there were lots of Italians one one neighborhood, the older generation spoke Italian, sang Italian songs, and shopped where the signs were in Italian, and it was their kids who learned English. Same for the Poles and Polish and the Jews and Yiddish. Now it’s the Latinos and Spanish. People forget how things used to be, project their desires backward, and then talk about how the country’s gone to hell. (They also did this in the good old days).Report
but damned if I wasn’t right that you’re denying the malice behind SSM bans.
He’s engaging in a reductio on the premise that the only motivation for the absence of SSM marriage laws is malice towards gays. That you fail to see that isn’t indicative of the argument he’s making, only the argument you appear to think he’s making. And that’s part of the reason why this conversation keeps going round and round.Report
My point, if I had one, was that homosexuality was considered a mental illness until what? 1973? Dude! That’s in our lifetimes! Oh, wait. Kazzy’s here as well.
Anyway, it wasn’t *THAT* long ago that homosexuality was seen (like, *OFFICIALLY* seen) as something that was broken (and, as something broken, something that we, as a society, had a responsibility to address).
It’s just the way that it always was. The authorities said so. Science.
And now we know better than we did then. We have different attitudes about the rules given us from God, we have different attitudes towards mental health, and we have different attitudes about what constitutes the best ways to address “broken”.
And as we stop thinking that trepanning homosexuals is a good way to deal with something that… wait… why did we always do it this way? What are we doing?
And we wake up and realize that we are participants in an open-ended free-form Milgram experiment (and the scientists are nowhere to be found) and, for my part, I’m not going to be a guard anymore.
The folks on the left seem to argue that if only we were good guards that everything would be better and the folks on the right seem to argue that they’ve been doing it this way for as long as anybody can remember so what’s all this talk about not being good guards… and, dudes, seriously.
The scientists are gone. Long gone. Wake up.
If I had a point, it’d be that.Report
Mike beat me to the punch on the “English” thing. I’d also add that while there is a fear that a lot of folks don’t think they need to speak English, there doesn’t seem to be much basis for that fear. Univision is no substitute for… everything else.
As an aside, I much prefer pointing these things out rather than the sneering at people who are concerned about such things. Suggesting that either the only reason they have these misconceptions – or even worse, the only reason we should be concerned about people not learning English if that were the case – is due to malice.
On the other hand, this is all tangential to the point that Jaybird was trying to make, which was a good one.Report
@CKM:
I’m not sure you have a whole lot of room to talk about serious argument given that you simply lied about Jason Kuznicki. I ask you once again what is your evidence that he is “prone…prone at this point to compare social conservatives to defenders of slavery.”Report
@George:
Have been persecuted? Good thing those days have faded into the mists of distant history.
Well, that’s an odd way of persuading me that malice doesn’t explain the ban on SSM. But I notice that you dodged the question of what non-malice (or to keep the OP in mind, non-irrational) justifications the bans have. It’s your point, I’m just asking for you to provide evidence.Report
@Stillwater,
If I’m insufferable for trying to divine George’s motives, are you also insufferable for trying to divine my motives?
If I was bad to use a pseudonym, are you bad to use a pseudonym?Report
I’m insufferable…
Yes you are as a matter of fact. I completely agree.
Neither example works James. I initially criticized you for attributing psychological properties to people that weren’t inferred by the content of their comments; the motive I attributed to you could be inferred from your words since it relied on your actually (and admittedly!) attributing psychological properties to George.
I never criticized you for using a pseudonym, James. I criticized you for trolling me under a psuedonym. Which, sorta surprisingly, you admitted to doing.Report
One other thing James: none of this has anything to do with the thread or the roll bigotry plays in the gay v traditional marriage debate. If you want to talk more about my double standards, I’d be happy to. My email is whitesr {{at}} live {{dot}} com.Report
Stillwater,
I asked you challenging questions, the same as you so often have done to me. But there’s your double standard–you ask challenging questions of orhers; others troll you.
As to your excuse for why it’s ok for you to assess my motivations but not ok for me to assess George’s motivations, it’s all of a piece. More special pleading to justify yourself in doing what you criticize others for doing.
I’ve no interest in emailing you, but if you’d like to drag this out in some misguided effort to change my mind about your hypocrisy, my email’s public. Just remember that email has no commenting policy.Report
James, My request to pursue this via email is based on the recognition that many of the comments you make to me violate the commenting policy.
a comment will be deemed inappropriate if it makes no attempt to address a point germane to the original post or another comment and instead contains nothing more than a blanket personal attack directed at the author or another commenter
Repeatedly accusing me of engaging in double standards and generally “treating me hostilely” seems to satisfy those criteria, especially given that those comments constitute an attack on my personality or argumentative style and not the content of my claims. There’s a way to challenge the content of my claims that isn’t accusatory and hostile. Insofar as you feel compelled to make criticisms which arise from hostility, let’s take it to email. I’ll talk about all you want.
It’s a polite request.Report
James, check your emails.Report
Professor: Mr. Kuznicki and I discussed that statement in a series of comments, and I’m not inclined to rehearse the exchanges again for you, especially since you’ll proceed to read selectively, prejudicially misread, or not read at all, as usual. If Mr. Kuznicki is able to get over the perceived injury to his honor and “grant” the difference between the accusation he originally and you now attribute to me, and the statements I made, then that’s good enough for me.Report
CK,
Please do not try to pretend that “prone at this point to compare social conservatives to defenders of slavery” is a misreading of “prone at this point to compare social conservatives to defenders of slavery.” Instead of admitting that your claim was at least an overstatement you try to shift responsibility to others for reading the words as you wrote them.
Please stop. Your pose of intellectual rectitude is insufferable, and the harder you try to pretend you are blameless the smaller a man you appear.Report
Stillwater,
I provided supporting evidence for my claims, they were not baseless accusations or mere insults.
And there are few things more uncivil than claiming a right to behave in ways that you criticize others for. I have no objection to being criticized for attributing particular motives to someone, but I do object to the person who voiced that criticism turning around and doing the same thing to me. That’s not civil at all.Report
Email me!Report
If Mr. Kuznicki is able to get over the perceived injury to his honor and “grant” the difference between the accusation he originally and you now attribute to me, and the statements I made, then that’s good enough for me.
Honor has nothing to do with it. Your statement that I likened social conservatives to the defenders of slavery remains unsubstantiated despite what I presume to have been your best efforts.
I’m not surprised at this. The idea of making such a comparison immediately struck me as odd, and quite wrong. Not like me at all. I did some searching and couldn’t find that I’d ever done it.
Whether this was dishonesty or simply an error on your part (or, perhaps, a memory lapse of mine) hasn’t been definitively settled, but I incline toward it being an error on your part, given the evidence.Report
When an employer hires disabled people, including the blind, they can get tax breaks that they don’t qualify for if they hire non-disabled people. If they hire a disabled veteran they can get even more tax breaks, along with accessing several government programs that will even offset many of the costs of job training. So disabled veterans get preferential treatment. Yet everyone can’t choose to become a disabled veteran to qualify for the tax breaks. To do so they have to convince the military to accept them, and then they have to start a war (perhaps by hiring someone to shoot an arch duke in Serbia), and then convince an enemy soldier to shoot them in the leg, or have the gods of fate do so on their behalf. Not all government programs are like growing radishes.
As for outlawing the favoring of women in child support and child custody cases, here you are advocating it when that very outcome was one of the key fears of opponents of gay marriage. In most states, under law, mothers and fathers are not considered equal. As a class, men have traditionally had more earning power (which upsets many women) and can’t lactate worth spit. Many mothers dropped out of the workforce to raise the children full time, and even if they landed a new job, most of the income would go toward paying someone else to babysit. There’s a reason so many programs are aimed at working single mothers.
And the main point is that your opinions are subjective. You support such discrimination if the goals suit your purpose, but reject discrimination if it doesn’t and want such measures ruled unconstitutional. Well, to address the various social inequities to which a society is inevitably subject, we elect representatives and urge them to put their thumb on the scales. If that’s forbidden the moment someone claims that the motives behind the thumb are less than pure, then the government has to stop all such programs because there will always be people who see evil thumbs everywhere.Report
Still,
Do you still think this is “a philosophical point?”
Sounds to me like an attempt to throw a bunch of nonsensical red herrings out to distract from anti-gay, unjust, discrimination driven by animus.Report
Yes, I do, actually. Most certainly. He’s questioning the legitimacy of using malice (motive, whatever psychological property you want to IMBIBE) as a criterion for judicially overturning democratically passed legislation. It’s a philosophical point because what he’s saying ought to hold necessarily, irrespective of the circumstances.Report
Sounds to me like an attempt to throw a bunch of nonsensical red herrings out to distract from anti-gay, unjust, discrimination driven by animus.
I think that somewhat confirms his argument, in fact. You’re discounting what he’s saying because you’re reducing his arguments to an expression of malice.Report
And regarding the comment above the comment above this comment …
I’m saying that attributing malice isn’t a sufficient condition to overturn policy, consistent with TFrog’s quite accurate observation somewhere on this thread that I can’t conveniently point to.Report
One, becoming a wounded veteran is rather a matter of choice, since we have a volunteer army and it’s not that hard to hurt oneself in a training accident.
Two, you fail to address distinction between favoring a minority and disfavoring a minority, and how malice is likely to play very different roles.
You’re reduced to making purposely silly arguments about what it takes to change one’s status to wounded veteran and ignoring the critical fact that depriving a minority of a basic right enjoyed by the majority is fundamentally different than granting a minority a special privilege not enjoyed enjoyed.
Fail.Report
Gays were never deprived of the right to marry just like everybody else. In fact, quite a lot of them were in traditional marriages. There was never a “gay” checkbox on our driver’s licenses or birth certificates. The government had no way to know who was gay and who was not. It’s pretty hard to deny someone a fundamental right if you can’t even figure out who that someone is.Report
George:
Gays were never deprived of the right to marry just like everybody else. In fact, quite a lot of them were in traditional marriages.
That is, in fact, one of the greatest threats to traditional marriage out there. I’ve talked to people who’ve been in these marriages; it’s not fair to the straight partner, and provokes tremendous guilt in the gay partner.
It’s not something to celebrate.Report
True, but we wouldn’t even be having this discussion if we hadn’t abandoned the traditional system of arranged marriages. They said marrying for love was the camel’s nose under the tent, and they were right.Report
Clinton and Obama could both have signed that law.Report
They could have signed it in any event, of course. The ability to sign future legislation was decisive for why each of them rejected the proposal.Report
Not for those two.Report
“Sure, they look like really with-it people”
Just had to say, this got a belly laugh.Report
Above, I point out a question during the testimony on DOMA from Kagan, (paraphrased) wasn’t one of the stated purposes of the law to enforce morality?
I dug up the House Report she refers to, and it makes for some fascinating reading. Remember, this is Gingrich’s house; and you can just about hear his dulcet tones in the document.
http://www.gpo.gov/fdsys/pkg/CRPT-104hrpt664/pdf/CRPT-104hrpt664.pdf
At Burt’s place, we had some discussion about the Full Faith and Credit clause; yet it is obvious from reading this document that DOMA was passed as a constitutional shorting of FFR because Hawaii appeared about to issue licenses for gay marriage.
The purpose of the law, from the above document, includes:
And from the background section:
The document is filled with almost shockingly hateful language; referring to the attempts of the gay and lesbian community to win the right to marriage an assault, suggesting such a right would never be granted by voters, and that the foisting on SSM on Hawaii by its courts creates risks courts in other states might follow suit; the contagion might spread.
Justifications go on about the threats to traditional marriage; and while the report says SSM is not a threat to traditional marriage, it justifies outlawing any federal support of SSM because these other threats exist, and it’s no time to undertake a radical experiment. And it speaks of morality; suggesting that SSM should not be allowed because some people find it immoral.
But it is 100% obvious from even a cursory reading: DOMA was to prevent the FFC clause forcing states to recognize gay marriages from other states. I clearly recognizes states have the right to regulate marriage, and sought legal means to prevent one state recognizing marriage from another.
And truth be told: this report reeks of bigotry. Kennedy man not have called a bunch of people bigots; I have no such qualms. None at all.Report
The tail of the quote from Roberts, in the OP:
What does ‘codify malice’ mean?
I could not find a single definition of the two terms used together; Codify,’ as Roberts’ used it would mean make into law.
Malice is a bit trickier; but the commonly used legal definition is that Malice in law is the intent, without justification excuse or reason, to commit a wrongful act that will result in harm to another. Malice means the wrongful intention and includes all types of intent that law deems to be wrongful. Legally speaking any act done with a wrong intention is done maliciously.
Sadly, this doesn’t really speak to malice in the practice of making law; the intent of doing harm to a specific group, and beyond any shadow of a doubt, the House Report shows intent to harm a minority that their own report shows was trying to organize to lay claim to their rights.
The House Report identifies a group struggling for equal protection, and clearly says that the very purpose of the bill is to deny that group equal protection. DOMA is needed so that states would not be forced to recognize same-sex marriages done in Hawaii (or any other state) under the Full Faith and Credit Clause; and it is the right of Congress to codify how that clause should be used. And it justifies this because no state had, at the time, approved same-sex marriages.
But the report goes beyond states rights to regulate marriage. It expresses malice in a couple of ways (and note, malice is not necessarily ill will, but the intent to do harm.) First, it says DOMA is needed to encourage morality; particularly Judio-Christian morality. Definite First Amendment territory there, it seems to me.
Second, it says DOMA will ‘conserve scarce resources’ because it will save the federal government from having to pay federal benefits to same-sex families. DOMA did a hell lot more harm the that economic harm, conserving scarce resources for some families by withholding them from others. My other brother and his husband have missed out on 25 years of marital benefits my husband and I claimed without thought. They had to pay thousands of dollars to attorneys fees to establishthe right to make medical decisions. Couples with children faced parental-rights issues and legal costs, couples had no survivors rights. Not to mention the shaming, the message from government their lives were immoral has surly caused thousands of people harm and anguish, kept them in closets and isolation from family and in fear of losing their jobs or homes.
And yet.
DOMA stood as an alternative to a constitutional amendment to define marriage. The times were charged; we were still living with the AIDS epidemic (my brother still lived; he died of AIDS two years later). We were living with the aftermath of Clinton’s sleaze. Gingrich was only beginning to hone the twisted logic he displayed in the primaries; but we hadn’t yet realized he sold snake oil.
Jason offers two rationales; malice and bigotry or irrationality. If malice does not necessarily suggest hateful feelings, does irrationality not necessarily suggest crazy? Because liberals were left with irrational choices, they were trying to find the square root of negative two.
We can only guess the might-haves; but if DOMA was the alternative to a constitutional amendment, at least it gave time. Time for my state to approve same-sex marriage at the ballot box. So faced with two irrational choices; choices both laden with malice, you make an irrational choice because it’s the only choice.
I don’t like that President Clinton signed DOMA; but I think he was irrational, not bigoted. Toward the end of the document, are the amendments offered by the Democrats. They’re amusing; one remove ‘same sex’ from DOMA; so that no state would have to recognize the marriage of any other state.
But here is absolute intent to single out gay and lesbian men and women and, despite their ongoing efforts to gain civil rights, make sure that they are treated as an unequal group, knowing this treatment ill cause them harm. That is not irrationality; that’s malice. And they codified it.
By Roberts’ own words, that it is bigotry.Report
And to be clear; I have two gay brothers. They both contracted AIDS in the early 1980’s. The youngest died a decade ago; the oldest married his husband a few months ago.Report
Awesome series of comments zic.Report
Thank you, Stillwater. I was beginning to think I was talking to myself.Report
You’re welcome. I agree with your characterization of things. And the difficulty in pinning down what constitutes malice, especially at the legislative level. So lots of agreement.
The one substantive comment I’d make about is that I disagree with you about Clinton being irrational when he signed DOMA. If we take a narrow view of rationality and apply it to only a single variable that goes into a decision, then it’s easy to conclude that CLinton was irrational. (Or bigoted, I might add.) But instrumental rationality includes a consideration of all the known variables in play. So what might be clearly irrational on a narrow view can be justified as entirely rational on a wide view.Report
And adding a bit, I think that’s a more formal way of expressing my initial criticism of this post, as well as my agreement with Jaybird’s views offered at the top.Report
Oh, I agree, Stillwater, though I lack the philosophy background to express it as you did. I was trying to frame this within the original quote from Roberts and in context of the OP; that sometimes what seems bigoted is actually irrational. But perhaps I still misunderstand.
Calling Clinton’s actions irrational rests on the metaphor of calculating the square root of negative two. The answer will always be an irrational number.Report
Nothing to do with the US Supreme Court but I just want to share some info (from the Wikipedia entry on SSM in Canada):
“Ontario (Canada) legally recognized same-sex marriage on June 10, 2003…The decision by the Ontario government to recognize the marriage that took place in Toronto, Ontario, on January 14, 2001, retroactively makes Canada the first country in the world to have a government-legitimized same-sex marriage (the Netherlands and Belgium, which legalized same-sex marriage before Canada, had their first in April 2001 and June 2003, respectively).”
and
“On December 7, 2006, the House of Commons effectively reaffirmed the legislation by a vote of 175 to 123, defeating a motion of the Conservative minority government to examine the matter again. This was the third vote supporting same-sex marriage taken by three Parliaments under three Prime Ministers in three different years.”
Glad to see the Supremes came through for life, liberty and the pursuit of happiness. Although, Scalia is a whiny loser, isn’t he?Report
Mr. Kuznicki, thank you for your thoughtful reply, and thanks also to Stillwater for some clarifying remarks (always sooner or later comes down to is/ought complications, doesn’t it?).
If I could re-write that comment, or if I ever expand on it in a different venue, I would at least adjust the paragraph Mr. K quotes to indicate more clearly that the ecological and overpopulation problems can be taken as additional reasons to develop an ideal marital ethic into account in relation to public policy, but Stillwater is also correct that I am also taking or allowing for a “where we stand is where we sit” perspective: That our ideals and our needs (or perceived needs) tend to conform to each other. If a society undergoes a population shortage believed to threaten its well-being or possibly its survival, then, presuming that it still retains sufficient interest in either, it will likely discover renewed interest in “production of offspring,” and call that interest and every measure attached to it profoundly moral, just, ideal, etc. – attach whatever other terms of highest approval to it. If some cataclysmic series of events threw us back to pre-industrial era levels of infant and mother mortality, scarcity, and modes of production, then moral concepts, including the purposes of marital institutions under whatever names, would likely also change. That such major adjustments under stress need not include homophobic attitudes, or the creation of new exclusive and privileged forms of “marriage” that did not take free and equal individual autonomy and expression as a first priority, does not mean that they wouldn’t, human beings being what they are. Adjustments under ever greater abundance, opportunity, life-span, technological inventiveness and so on might take different forms, and I do believe that our current discussion, and exploration of alternatives, is very strongly influenced by such changes.
So, yes, I believe that the reason that so-called traditional marriage, like the sexual division of labor that was related to it, has a weaker hold on society than it used to is rather clearly that it doesn’t serve the same purposes in the same ways or to the same extents that it used to. The two different “used-to”‘s are virtually the same thing, just expressed in two different ways. Every aspect of such a transformation is arguable, and therefore productive of conflict, as the ground continues to seem to shift beneath our feet.Report
C.K., I think I realize one of the reasons it’s so difficult for me to follow your comments; it’s difficult to tell where ‘you’ are in relation to them. I never know, as I read your arguments, what position you actually hold on the argument; I find you often argue against your own perspective; or at least it seems that way to me.
This is actually something I admire greatly; an ability to push back against your own assumptions and to question your own beliefs deserves admiration; it’s often a sign of a fine mind.
But I think I would like to see more of ‘you’ in your discussions; and I wouldn’t mind it one bit if you said, ‘I’m exploring this idea; it’s not necessarily what I think, I may not know what I think yet, I’m in the process of thinking.’
On this topic — acceptance of gay marriage due to population pressure — (have you read The Forever War by Joe Haldeman?) may someday matter, but I don’t think it does now. The places in the world were SSM are being welcomed also have diminishing population do to women’s reproductive rights; so I think it’s an acceptance based in a deeper understanding of what individual civil rights means, not based on the biological process of excess reproduction and scarce resources.Report
and as always, forgive my spelling; due not do.Report
due not do
Wasn’t that an album by Was (Not Was)?Report
Yes I did read THE FOREVER WAR, zic, many centuries ago. It may even have been my first exposure to the notion that sexual mores might be based on social utility rather than on intrinsic human nature or character (or that intrinsic human nature or character could be defined by such malleability). That used to be the dominant “radical” or “progressive” view. So William Burroughs’ observation that a man could be trained to react erotically to a shoe, implying that homosexuality was a choice no more or less arbitrary, or natural, than any other, was taken as very progressive. Nowadays, at least in regard to sexual orientation, the opposite view, suggesting a “scientific natural law” or “post-modern natural law” argument, that sexual orientation is in critical part or for the most important segment of self-identified gay men and women genetic and therefore innate, tends to be emphasized.
There was another speculative novel I read more recently that investigated the aftermath of a near total annihilation of the human species. The only survivors are the crews of a Russian submarine and an American missile cruiser, resulting eventually in an approximately 3 – 1 male to female ratio on a South Seas island outside the path of an otherwise world-enveloping radiation cloud. Prompted by certain further very unhappy events, the women meet separately and produce a sensible proposal for polyandry. The idyll doesn’t last long enough (it’s a VERY bleak book) for other alternatives to be developed.
As for our discussion, I just want to clarify that the environmentally determinative proposition wouldn’t be that interest in SSM develops strictly in reaction to overpopulation pressure, but rather in relation to a complex and overdetermining, orbit to ground level, long-developing structure of pressures and incentives.
It’s a long, intricate, and to me fascinating discussion, but, in sum, speaking broadly, I think we can observe without too much prejudice that the incentive structure of our society, compared to the structures of other societies, tends to favor an individualized, transactionalized morality. That just says that we think of ourselves as putting a premium on individual freedom to choose. The observation may start to become more difficult to accept if I suggest that we may be enshrining economic efficiency and interest somewhat self-deceptively under this promotional heading of personal autonomy. Looking to the right, the idea points to underlying contradictions within the contemporary American rightwing coalition that may explain some of its most prominent schizoidal tendencies: American conservatives aggressively defend an economic system whose operation is relentlessly destructive to their supposedly most sacrosanct moral commitments, though the contradiction can be sustained as long as circumstances keep one hand in the dark about what the other is doing. As I think you know well by now, however, I also think comparable, often inverse contradictions affect other political-ideological perspectives as well.
As for how I personally feel about it all, if you had been as profoundly and embarrassingly wrong as many times and in as many different contradictory ways as I have been, you might also prefer to keep that question out of things as much as possible. I also find discussions more interesting when they test the strongest attainable versions of competing perspectives against each other, than when they are pursued simply to assert the superiority of one over the other, or, even worse, the superiority of one group or individual over another. Obviously, there is a place for “politics” of that type, a perhaps unavoidable destination, but I’m in favor of the scenic route. When the discussion is more collegial, or more philosophical and less polemical, it becomes easier just to look for whatever there is to see.Report
Looking to the right, the idea points to underlying contradictions within the contemporary American rightwing coalition that may explain some of its most prominent schizoidal tendencies: American conservatives aggressively defend an economic system whose operation is relentlessly destructive to their supposedly most sacrosanct moral commitments, though the contradiction can be sustained as long as circumstances keep one hand in the dark about what the other is doing. As I think you know well by now, however, I also think comparable, often inverse contradictions affect other political-ideological perspectives as well.
I pretty much agree with this; we don’t do a very good job evaluating things; there’s too much information required, and we rely on both environmental and social signaling to guide us; often to our distress. Not all red berries, no matter how sweet, are good for you.Report
Conservatives hate it when you tell them porn and Sunday morning hangovers are just part of the market system.Report
Got-dam CK. Another fine comment. Quite fine.
Although, I noticed the absence of a corresponding critique of contemporary liberals, and that made me a bit sad.Report
I don’t want you to be sad, Stillwater. What if I claim that the specific contradictions in contemporary ideological liberalism, or social liberalism, derive from its total dependence on neo-imperialism, defined as interdependent statism, militarism, and capitalism?Report
…within a global system, of course.Report
Nowadays, at least in regard to sexual orientation, the opposite view, suggesting a “scientific natural law” or “post-modern natural law” argument, that sexual orientation is in critical part or for the most important segment of self-identified gay men and women genetic and therefore innate, tends to be emphasized.
I’m open to correction by those more deeply knowledgeable about, for lack of a better phrase, gay thought, but my understanding is that there’s a significant divide among homosexuals about this, with a good number still holding to the “old progressive” position. I’m not sure what counts as “the most important segment” of the community, though (and it’s not specified in the comment), so I couldn’t say if it’s the more important gay segment or the less important gay segment that still holds it. But I’m not disputing that, as indicated in the comment, the “innateness” approach is the “new progressive” position.Report
We have of course seen the flip side of this dynamic already — the rationale that Augustus gave for punishing homosexuality was that it would tend to depopulate the empire, which he perceived as needing more people.
I don’t accept the premise that people are a crop to be raised up by the state.Report
Mr. Kuznicki, I am replying to your comment at https://ordinary-times.com/blog/2013/06/no-justice-kennedy-didnt-just-call-a-bunch-of-people-bigots/#comment-559535, in which you return to this statement of mine that the Professor initially calls a lie, then downgrades to gross misrepresentation, then finally reduces to overstatement (while not seeming to notice that by his own logic he would have at least two sins of the same type also to expiate). I’m rushing this out now because I’m under the impression that the comment thread closure ax may fall very soon, and I’m conscious of the fact that you and I have mostly only disagreed about whatever topics we have been discussing over however long it’s been we’ve been colliding (though with some partial exceptions above, I think), and since I I suspect I may have generally been exposed to your work at its most polemical, meaning that I may not have gotten a very balanced view of it on the whole.
Whether or not my prior comments represented by “best efforts,” or whether the various claims are of the type susceptible to objective substantiation, I am not inclined to try again at this time. I think I can put my remaining uncertainty about your position in the form of a simple question: When you respond to a proposition regarding the “procreative family” with a comment on the “racially pure family,” to which racist discourse, or which racists, are you referring, and why is it a good answer? When you say “racially pure family” to me, I imagine Nazis, the KKK, and Confederates. Maybe I have done too much reading about those groups, and not enough about other racists of note.
Otherwise, without conceding anything on related, actually quite complicated and interesting questions about the differences in theory and practice between racism and heteronormative sexism, I apologize to you for grouping you with critics of social conservatives who might try to play the race card and the homophobia card together in a way that I take it you and I both consider counterproductive.Report
You’ve spilled an awful lot of electrons, but you still haven’t substantiated the claim you made earlier — that I likened opponents of same-sex marriage to defenders of slavery. (https://ordinary-times.com/blog/2013/06/no-justice-kennedy-didnt-just-call-a-bunch-of-people-bigots/#comment-558982, for those still paying attention)
Rather than seek the truth — come what may, with what risks that entails of you personally being in the wrong — you’ve obfuscated. You’ve tried to hide behind a whole lot of words and hope that no one notices.
Well, I’ve noticed, and I have no patience for that. Be a grownup, admit you can’t substantiate the claim, and let’s move on.Report