From today’s New York Times:
There’s nothing like a touch of real-world experience to inject some reason into the inflammatory national debate over gay marriages. Take Massachusetts, where the state’s highest court held in late 2003 that under the State Constitution, same-sex couples have a right to marry. The State Legislature moved to undo that decision last year by approving a proposed constitutional amendment to ban gay marriages and create civil unions as an alternative. But this year, when precisely the same measure came up for a required second vote, it was defeated by a thumping margin of 157 to 39.
The main reason for the flip-flop is that some 6,600 same-sex couples have married over the past year with nary a sign of adverse effects. The sanctity of heterosexual marriages has not been destroyed. Public morals have not gone into a tailspin. Legislators who supported gay marriage in last year’s vote have been re-elected. Gay couples, many of whom had been living together monogamously for years, have rejoiced at official recognition of their commitment.
As a Republican leader explained in justifying his vote switch: “Gay marriage has begun, and life has not changed for the citizens of the commonwealth, with the exception of those who can now marry who could not before.” A Democrat attributed his change of heart to the beneficial effects he saw “when I looked in the eyes of the children living with these couples.”
The anti-marriage equality people aren’t done in Massachusetts yet, of course; they have a new ballot measure to ban both same-sex marriage and civil unions, which the voters will get to consider in 2008. But a March 2005 Boston Globe poll found that 56% of Massachusetts voters favor same-sex marriage, and that percentage will only increase over the next three years. I expect that the numbers that favor civil unions, which the ballot measure will also ban, are even higher. Unless equality advocates in Massachusetts totally mess things up, I don’t see how they can lose in 2008.
The anti-equality line in Massachusetts has now been defeated in both the courtrooms and in the legislature. When it gets defeated in a voter ballot in 2008, what new excuse will equality opponents find to refuse to acknowledge legitimate government actions?
I was particularly struck by the Republican the Times quoted, who said “Gay marriage has begun, and life has not changed for the citizens of the commonwealth, with the exception of those who can now marry who could not before.” Damn straight. The odd thing about the fight for marriage equality is that, in and of itself, it won’t change very much.
Don’t get me wrong – for those lesbian and gay couples who want to get married, it’ll be a huge difference, and I’m outraged at the injustice done to same-sex couples unfairly barred from equality.
Nonetheless, marriage equality is not a radical change, in and of itself. Marriage equality is just the latest step of two long-existing trends.
One trend is the increasing gender neutrality of marriage; although there’s still a long ways to go, the “separate spheres” that once defined marriage have become overlapping spheres. Although stay at home dads are still a small minority, their numbers are increasing, and the idea no longer seems outlandish. The number of households in which both mom and dad contribute to the homemaking and the breadwinning has increased to the point that it’s probably the norm (although most mothers still do an unfairly large share of the shared labor).
There have been a number of laws that have changed as this trend towards greater sex equality has continued. Wives can now own property independently, have the right to refuse sex with their husbands, and women in general have many more protections from discrimination in the marketplace and workforce.
As marriage becomes less and less about “wives and husbands fulfill two strictly-bounded separate roles,” the rule that only women may marry men and vice-versa has lost its basis in our society.
The second trend, of course, is the increasing acceptance of sexual minorities as equal human beings and equal citizens. The increasing acceptance of queer equality has been going on since the Stonewall riot, at least, and marriage equality is just the latest phase of this long-term movement.
Both sex equality and queer rights are important long-term movements in our society – and both of them, over the last several generations, are radical changes. Same-sex marriage, however, is just one more effect of these larger social movements. Gay marriage isn’t a radical step; it’s just the next step.
Robert,
Horns would be kinda kool… Think of all the money a good capitalist could make accessorizing them, writing books about the virtue of horns, and selling folks on the concept of bigger horns are better. Folks without horns should remain at the bottom of the society and unable to wed or have equal rights, as clearly those with horns rule… We still have yet to see if the Kid gets her looks from her mom, I am a bit suspicious. (Does she have horns?)
I have to admit it; I was a Neo-Conservative Young Republican, (after being a Left wing, long hair Carter man). It happened when I turned to the black and white world of me wanting to make a lot of bucks so I would not have to suffer any pain. Then I understood that there is no escaping it so why not try and share it by working with others to deal with theirs? (Pain that is.) Which brings us to this thread; many folks are suffering as a result of a polarized legal system that is beginning to grow where it sees that it needs to have a correction. This is good. The pain that many are feeling that are threatened is called growth, which is a good thing. It probably is half of what the pain our GLB friends are feeling and have been for years. Progressive…. Hmm, Progress-ive. I like to be associated with that thought process.
BritGirlSF, It is great to see your post, I like the way you cut to the chase. (Even when I have been the subject of your knife.) Blessings
In short, it invites critical thinking.
…indeed. Which is, in my value judgement, exactly the ability that public schools ought to instill into future citizens. ;-)
Reading pseudo-scientific rationalizations of racism is a real drag.
I’m not talking about racism, I’m talking about the difference between fact and interpretation.
I agree with the statement “the races are equal”.
I just don’t think that my prejudices are facts.
I’m talking about the difference between fact and interpretation.
Racism is one of the things that happens between fact and interpretation. That you think “the races are equal” is a statement of prejudice tells me a good deal about your mind, and again, I do appreciate your not making that tedious long post exploring it.
I agree with the statement “the races are equal”.
How can you agree with that statement? What is a ‘race’? Which races are we talking about? By ‘equal’ do we mean no significant differences, or exactly alike, or geneticially identical but culturally different, or what?
If you think this is frivolous, please consider that “the races are equal” can, depending on context and speaker, mean “There are no real differences between people; we are all the same, no matter our skin color” or “Finally, we have overcome racism and everyone, no matter the color of their skin, has the same opportunity and treatment under the law.”
I don’t know how Jesurgislac was using it. I meant it as “whatever small differences may exist between the races, as individuals we are all basically the same, and we should treat one another accordingly.”
Robert: I meant it as “whatever small differences may exist between the races, as individuals we are all basically the same, and we should treat one another accordingly.”
That’s pretty much how I meant it, too. The difference is that you think this is a “prejudice”: I see “we are all basically the same” as a scientifically-established genetic fact.
And you’re mistaken. It’s not. For one thing, what “basically the same” means is itself subject to interpretation. Do we all have basically the same intelligence level? No. Do we all have basically the same physical competence? No. Our similarity is in our moral and spiritual standing – something that science lacks competence to address.
We should treat one another in a similar (and “fair”) fashion because it’s the right thing to do, not because some mythical biologist somewhere has proven that we’re the same. S/he hasn’t.
You two knock it off long enough to give me a definition of “the races”.
Easy. “Race” means whatever the person saying it thinks it means.
The word has no consistent external referent, and so I conclude that it is a shorthand word for whichever sets of individuals the speaker feels like grouping together.
The “race” conversation is getting a bit unecessarily meta, don’t you think? Sure, from a scientific/medical point of view the term is essentially meaningless, but in practical terms it’s anything but.
Rock, I’m not sure whether to be flattered or perplexed. You know that you are far too nice for me to ever turn the knife on you. I reserve it purely for asshat-skewering purposes.
You two knock it off long enough to give me a definition of “the races”.
“Race” is a political construct. “The races” are groups of humans who have been classed together for political reasons, generally by the color of their skin. The genetic variation across the whole human species is small: the largest spectrum of human genetic variation (and, compared to our closest relatives, this is still tiny) is found within Africa. All “races” of humans found outside Africa are, as species go, genetically similar apart from minor cosmetic differences.
The concept of black Americans and white Americans being genetically different races is certainly unscientific: although black Americans are in part descended from Africans (from a relatively small area of that continent) in large part they are are also descended from the Americans of European origin.
This began as a discussion of what one can say as fact to schoolchildren. It is a scientific fact that the range of genetic variation across the whole human race is, compared to many other species, tiny: that the political concepts called “race” are determined by small differences in visual appearance.
It is not science, but politics, both historical and present, that means that a person who has seven great-grandparents who came from London, Stockholm, Paris, Glasgow, Bristol, and Brussels, and Berlin, and one great-grandparent who came from Lagos, is, in the US, “black”.
All “races” of humans found outside Africa are, as species go, genetically similar apart from minor cosmetic differences.
All “races” of humans found inside and outside Africa are pretty similar, too. We’re talking tiny differences, genetically speaking.
Sure, from a scientific/medical point of view the term is essentially meaningless, but in practical terms it’s anything but.
When you’re making a flat, contextless statement about “race” it’s a good idea to know whether we’re talking about the social construct (whereby Aborigines get stuck in the same category as Americans who are three-quarters Irish and one-quarter Ghanaian, purely on the basis of skin color) vs. some genetic notion. Those two get conflated all the time.
It is not science, but politics, both historical and present, that means that a person who has seven great-grandparents who came from London, Stockholm, Paris, Glasgow, Bristol, and Brussels, and Berlin, and one great-grandparent who came from Lagos, is, in the US, “black”.
Bingo.
When you’re making a flat, contextless statement about “race” it’s a good idea to know whether we’re talking about the social construct (whereby Aborigines get stuck in the same category as Americans who are three-quarters Irish and one-quarter Ghanaian, purely on the basis of skin color) vs. some genetic notion. Those two get conflated all the time.
I agree, and I was, throughout this thread, being very clear that I was referring to “some genetic notion”. We were trying to discuss facts, and Robert and others kept trying to claim (as far as I could see) that the lack of genetic variation across the human species was somehow a prejudice, not a scientifically-established fact.
I think that little dig was actually aimed at me, Jesurgislac. My point was that there is very little real difference between the “races” even from a scientific point of view, but that in spite of this some people insist on believing that there are huge differences which justify treating certain groups of people less well than other groups of people. Clear enough for you this time?
Given that all humans actually share 95% + of our DNA with non-human primates the idea that one can make assumptions about people based on a concept as nebulous as “race” is ludicrous.
My point was that there is very little real difference between the “races” even from a scientific point of view, but that in spite of this some people insist on believing that there are huge differences which justify treating certain groups of people less well than other groups of people.
Why, yes, I was agreeing with you on this point. I’m sorry if that’s not as exciting as imagining you’re the subject of a “dig”.
Eh, I’ve been busy arguing with the the MRA’s lately so I may be a bit ovesensitive. Still a bit snide on your part, though.
Sorry, RonF, I’m just back from the Isle of Man so this is a bit late.
I would say that the change from woman entering marriage as a chattel to woman contracting marriage as a free citizen was a more significant change that any which will be brought about by same sex marriage.
After all, SSM is not going to bring about any relationshiip which would not have happened anyway or is already in existence. No-one at all is going to be forced into such a marriage – not something you could claim as always true of heterosexual unions – it will simply offer a greater degree of social and legal recognition to relationships which already exist. In time it will lessen some of the pain and hassle which has sometimes beset such relationships.
This is, of course, an opinion. You stick with yours and I’ll stick with mine. History will report in due course.
Still a bit snide on your part, though.
I really can’t prevent you from imagining a tone it makes you feel most righteously put-upon to hear. And yes, I’m being snide now.
Maureen
All theses changes elevating the wife to an equal postion with her husband, did not change the basic understanding of marriage as a sexual, potentially conceptional, union, of the two sexes. This concept of marriage is universal. SSM by its same sex compsosition eliminates this concept. Marriage thus becomes a “union of two persons”.
The same can be said of trinary relationships, which like same sex relationships, exist anyway, some even with children. Polygamy has existed in various cultures around the world both “officially” and unofficially, including the Unites States. Why not take the hassle out of those relationships by granting them legal status?
http://www.brusselsjournal.com/node/301
All theses changes elevating the wife to an equal postion with her husband, did not change the basic understanding of marriage as a sexual, potentially conceptional, union, of the two sexes.
The point you’re continually evading is that this change was a fundamental, basic and enormous change in the millenial-old conception of “marriage”. As even you have admitted in the past, marriage as man-woman has not been, and is not, “universal”.
You’ve already been given examples of cultures that allowed same-sex marriage. Can you point me to a single example of a culture that allowed wives equality with their husbands?
Everyone always thinks that the changes to marriage happening in their own time are somehow more “essential” than those that happened in the past. But in 1886, the idea that a woman could be both a wife and an independent person was so radical that a judge legally declared that such a marriage could not be legally recognized.
Logically, all you’ve said here is “all the previous changes were not the same as the current change.” But at the time those previous changes took place, they were changing OTHER basic understandings of marriage that were (to the people at the time) just as important. Why was it okay to change basic understandings of marriage back then, but wrong now?
Your argument amounts to “if something’s (almost) always been that way, then it must be wrong to change it.” But if you take that view, then to be consistant you must logically think that it was wrong to get rid of coverture laws, and that husbands should be legally permitted to rape their wives, since it had (almost) always been that way up until the time those changes were made.
I assume that’s not what you think. Therefore, you must not believe that “it’s always been that way” is always a reason to be against change.
You keep on bringing up polygamy. Let me ask you: Are you saying that even if there are no other plausible reasons to avoid SSM, we should be against it in order to protect the culture from polygamy? Or do you think the two things are separate issues?
You’ve already been given examples of cultures that allowed same-sex marriage. Can you point me to a single example of a culture that allowed wives equality with their husbands?
The Iroquois and Cherokee (and most likely many others) in North America, and the Minangkabau of Sumatra, documented by Peggy Reeves Sanday in her book “Women at the Center.” The Vanatinai of Oceania. The Moso of China, but they don’t have marriage, however, the older women are the heads of the households.
This website: http://www.suppressedhistories.net lists others, and the anthropologist I mentioned above, Peggy Sanday, has written a book called “Female Power and Male Dominance” which discusses egalitarian vs. male-dominant cultures.
What the others have said – no need for me to repeat it.
Crystal, certainly there were societies where women had power in their societies and relationships, owned land, had matrilineal descent, and so on–but I’m not aware that even the cultures you mentioned treated wives as fully equal to, and having the same rights as, their husbands. Certainly there is no such tradition in the Western version of marriage that anti-SSm activists enshrine as the One True Way.
I do not dispute the existence of marriage like same sex unions in various cultures in history, though it seems to be more prevelant among smaller tribal commnities. It certainly did not exist among those European nations that colonized the NA continent. If it did, why did it die out. Apparently we have a different view of what constitutes “universal”. Suppose we were to list all of the nations, nation states, and recognized tribal entities over the past 1000 years, to use Robert’s time period. If we break down that list into two columns, one for those that recognized SSM alongside of OSM, and those that didn’t. Which would be the longer list?
I’m not quite sure of your objective regarding the question? Are you speaking today, fifty years ago, a hundred years ago, etc. ? Let’s assume for the sake of argument that I cannot name a single one, what does that mean?
Amp
All of those “significant” changes you stated did not eliminate the core concept of marriage. Marriage was, and still is to a significant degree, understood to be a male female, sexual relationship. Not one of those changes altered the meaning or redefined marriage to in essence a sex less union of two persons. Look at our marriage laws, there’re filled sexual language such as “consumation”, “begetting children”, “marital relations”, a clear unmistakeable indication that marriage is, from a legal standpoint, a sexual, potentially conceptional, union. Adultery, although rarely enforced, is still a crime in many states. John Howard over at Family Scholars Blog, described marriage as licensed procreation. Is that what government is doing by licensing marriage? I would modify that to mean licensed sex with the possibility of conception, physical obstacles notwithstanding. Shouldn’t sexual intercourse be reserved for the marital relationship? Men and women will still continue to have sex inside and outside of marriage, and babies will still be born as a result. So why not keep it within marriage? As for “legal” sex, is there not a presumption in the law that “normal marital relations” is part of the marriage contract? That failure to engage in such, physical obstacles not withstanding, is gounds for divorce? Certainly this does not mean sex on demand, nor forced sex by either husband or wife. However, either one has a legitimate expectation of such relations.
SSM cannot be based on a sexual potentially conceptional concept by virtue of its same sex compostion. Thus government is asked to license an intimate adult relationship based, not on sexual intercourse and its natural purpose, as its foundation, but rather on what the participants deem to be an emotionally satistfying bond complete with government benefits.
Why is it that most SSM advocates won’t touch trianry marriage, or polygamy with a ten foot pole? That too represents a significant change to marriage as we understand it to be, at least from a binary perspective. Why is it so difficult to accept, particularly in view of todays lifestyle diversity, that there are rational adults who enter into, and maintain, trianry relationships? Including those with children? So what makes more sense, a man who lives with two women in a trinary marriage complete with two children both of whom he has fathered, one with each woman, or two men who buy an egg, rent a womb, and mix their sperm so neither one know’s who the biological father is? The former at least preserves the sexual, potentially conceptional, concept of marriage.
Wasn’t it Drynad who stated she was involved in a trinary-esque relationship?
More on the polygamy issue later.
Ciao mi amici
Let’s assume for the sake of argument that I cannot name a single one, what does that mean?
That your insistence on a “core” version of marriage which cannot be changed is a lie. “Wife and husband are equal” has been a feature of fewer societies than same-sex marriage. There is no precedent for it in Western culture. It is more solidly a feature of Ye Olde Marriage than the requirement that the marriage have male and female.
The fact that you are willing to dismiss one of the most hallowed, long-term aspects of marriage in all cultures (male supremacy), while clinging desperately to another that has not been a constant (one man, one woman) makes it clear that you’re not really interested in historical accuracy or consistency; you just don’t, personally, think a marriage should have same-sex partners. No matter how many examples of SSM you are shown, or how many times it’s pointed out that you don’t mind other “millenia-old” traditions being discarded, you inevitably forget these things and drift back to parroting the same old same old.
John Howard over at Family Scholars Blog, described marriage as licensed procreation.
That’s because John believes it should e illegal to have sex or get pregnant outside of marriage. He’s also wrong about the ‘license’ thing.
Why is it that most SSM advocates won’t touch trianry marriage, or polygamy with a ten foot pole?
Because they correctly recognize it as a scare tactic–let the queers marry and Katie bar the door! There’s no reason that allowing two women to marry allows four men to marry.
Why don’t you direct some of that concern about marriage to making states change their laws so they don’t have to honor the nuptial vows of pedophiles?
One question for Hellcat – let’s assume for a moment that the legalisation of SSM does fundamentally alter the nature of marriage as an institution (I don’t think it does, by the way). Why is this necessarily a bad thing? Why assume that the institution must remain static? Most institutions /social contracts evolve over time – why should this one be any different? That’s the question I’ve yet to see any opponent of SSM provide a coherant and convincing answer to.
The constant bringing up of polygamy by opponents of SSM is a bit odd. From a legal point of view I’m not seeing why redefining marriage to include people of the same gender has anything to do with redefining it to include more than 2 people. Such a change is possible, of course, but I don’t see why it would be assumed. One change could lead to others, but it’s fuzzy logic to assume that it would automatically do so.
“”And yes, I’m being snide now. ”
Yawn. I can think of a MUCH better word for it, but politeness prevents me from using it here.
There’s no reason that allowing two women to marry allows four men to marry.
OK.
What reasons would you advance for justifying the ban on four men marrying?
Let’s open the question to any SSM advocates, not just you. What conceptual/philosophical justification do you accept for ANY state restriction on the marital union?
Well, if there are not going to be “ANY state restriction”s, that’s the same thing as saying “government should get out of the marriage business” – marriage shouldn’t be legally recognized at all. But I think it’s obviously beneficial for people to be able to have a life partner legally recognized as their closest kin (which is what marriage actually does – it turns two non-related adults into each other’s closest relations).
As for why we shouldn’t have legal recognition of four men marrying, there are two obvious reasons. First of all, the strongest legal argument (in my view, and that of some law professors) that the ban on SSM is unconstitutional is that it’s sex discrimination, plain and simple. Just because the government shouldn’t be discriminating based on sex, doesn’t mean that the government is likewise forbidden from discriminating on any basis at all. For example, just because it’s illegal to say “I won’t hire any women to the open manager position,” that doesn’t in any way make it illegal to say “I won’t hire four people to the open manager position.”
This “slippery slope” people keep on claiming exists simply doesn’t exist. Robert, name one example of a prohibition on sex discrimination which, once struck down, led to a prohibition on discrimination by number of people being struck down. Is there a single example of a job which used to be open only to men, which employers are now forced against their will to allow collectives to apply for because they have to allow women to apply? Is there a single golf club which, because they now admit women members, has also been forced to allow collectives to jointly join? Now that courts are no longer allowed to keep women off of juries, are they forced to admit collectives onto juries as if they were individuals?
Show me a single example of this slippery slope operating in practice – where no longer discriminating based on sex means that it is no longer permissible to discriminate on basis of numbers.
Second of all, now that there is no longer any real distinction between the sexes in the law (except for selective service), there’s no rational government interest in preventing SSM. It is extremely easy to apply the exact same laws to Jill and Jane as are applied to Ken and Jenn. The same can’t be said of multiple marriage. To quote Gabriel Rosenberg,
If you read through the arguments made by the governments in the various SSM lawsuits, none of them have argued that there is any practical difficulty in administering SSM. Having SSM will not make it hard for the state to know who inherits, who makes medical decisions, etc… One of the practical benefits to the State of having marriage laws is that it allows there to be one person legally recognized as the sole closest relative, with a clear-cut precedence in decision making. So, unlike SSM, the state does have a rational reason to want to avoid recognizing multiple marriages.
Note that I’m not saying that there shouldn’t be legally recognized polygamy. But the claim that it is impossible to be logically for SSM and against legal polygamy simply isn’t true.
What reasons would you advance for justifying the ban on four men marrying?
Marriage law as currently formulated assumes people marry two by two. Allowing same-sex couples to marry is a minor change: no radical restructuring of marriage law is required.
Restructuring marriage law to allow for legal unions of three, four, five, or more people would require major reconstruction work – of a kind rarely if ever seen in a Western country, presuming that all partners were to be equal partners in a multi-way marriage.
Ah. (Preview) Ampersand already said it. Never mind.
What reasons would you advance for justifying the ban on four men marrying?
Gee, I guess that would depend on what argument you first made stating that the ban on four men marrying violates the Equal Protection Clause or some other portion of your state’s constitution, wouldn’t it?
Still waiting on that one. “Number” isn’t a suspect class.
I never claimed that marriage for 90% plus of its history has not been male dominated, including I might add most of the examples of recognized same sex unions. I readily agree with you that marriage has been a “man’s world”, and that equality of husband and wife is a relatively new concept. As for changing its “core” concept, isn’t that what this disagreements about?
Male supremancy:see previous paragraph
One man-one woman: actually I maintained it was male female, which would take into account polyagmy.
Historical SSM examples: http://en.wikipedia.org/wiki/Same-sex_marriage#North_America Don’t dispute that there is SOME historical examples of recognized same sex union, primarily male, in other cultures. Disagree over its prevelance as compared to OSM.
Even in the classical world, male same sex unions would often split up so that the younger partner could find a wife and start a family, with the assistence of his mentor/partner.
Redefine legal marriage as it currently exists (Mass excluded)? I do not see a compelling need. Provide alternative legal recognition for SSC? Sure.
Okay… why does government “license” marriage? If not for sex and or procreation, what is it licensing?
BritGirlSF
Valid question, and a good point. Social institutions do evolve over time and rarely remain static. I can agree with that perspective. Honestly there’s something about neutering marriage, legally, that doesn’t seem right, if it aint broke, don’t fix it. I will add that the practice of marriage-high divorce rate, increasing numbers of out of wedlock births, generally decline in marriage rates combined with increased cohabitation, etc. -is the problem. I do not mean in any way shape or form that somehow the quest for SSM has caused this. Things have been screwed up for some time now.
You’re absoultely right, there’s no reason why it would be assumed. Both SSM and TriM represent significant changes from our current form of marriage. The former render’s it gender neutral, and asks government sanction of non-procreative/ non-sexual (as in intercourse) intimate adult relationships. The latter eliminates binary marriage, but maintains, provided we’re referring to OSTriM, the sexual procreative nature of marriage. Each has some historical precedence on this continent, ssm among some native american tribes, and TriM in the Midwest (Utah) during the 19th century. Each is currently unoffically practiced, although SSM has some legal recognition. Both have advocates and or practioners who have sought legal remedy through the courts. Both forms of unoffical marriage involve children. Why would we recognize one but not the other? Is it simply easier keep the number two but change everything else? Or is it something else? If we can create legal domestic partnerships/civil unions for SSCs why is it not possible to craft legislation for Trinary relationships?
Okay… why does government “license” marriage? If not for sex and or procreation, what is it licensing?
What is the penalty for having sex or procreating outside of marriage? Is that penalty harsher than the penalty for driving without a license?
(The answers are: There is no penalty and no.)
So much for that argument. Others have explained it better than I will, but here goes…
The government licenses marriage so that legal kinship (in fact “closest living relative”) between unrelated adults will be recognized. What the government is licensing when it licenses marriage is, in point of fact, marriage. Just like a drivers license is for driving.
Y’all haven’t answered my question.
What affirmative grounds does the state have to justify its legitimate sphere of action in regulating marriage – whatever boundaries you might personally believe ought to apply to that sphere?
Robert, I’m quite sure I’ve answered your questions – and instead of admitting that, now you’ve presented a brand-new question.
Also, you haven’t answered my question about the slippery slope. I’ll repeat it:
No, you didn’t answer. You started to, but then you digressed to why SSM doesn’t constitute a slippery slope (which isn’t where I’m going, btw) and why number is different than kind. That’s all very well, but I want to know your philosophical position: what is the basis for government regulation of marrige in the first place.
As to your question, I don’t know of any examples of the kind of slippery slope effect you specify.
Hellcat: Honestly there’s something about neutering marriage, legally, that doesn’t seem right, if it aint broke, don’t fix it.
And as the institution of marriage as it presently exists over much of the US is “broke” – it does not permit same-sex couples to get the same legal rights and responsibilities towards each other and their children as mixed-sex couples can get, it clearly needs to be “fixed”. Not by “redefining marriage”, or “neutering marriage”, but by keeping the institution as is, and allowing same-sex couples to be married. That fixes the problem of discriminating against people in same-sex relationships, and their children.
Robert wrote:
Sigh. Okay, Robert, is it now your claim that you didn’t ask this question?
Because you asked that question, I answered it, and now you’re seemingly denying that you asked it at all.
Seriously, I can now see how you could ask that question and not be heading towards the slippery-slope argument. But given the context of this debate, where people are constantly asking about the slippery-slope nonsense, I think you could have made your question a lot clearer.
* * *
As for why we regulate marriage at all, there are practical reasons to want to encourage marriage: married people tend to be healthier, more secure, more successful at raising children (probably because of the shared income effect), better able to weather bouts of unemployment, less likely to cheat on each other, etc. Although there are many individual exceptions, in general society is healthier if the country is supportive of and encourages marriage; and the government has a legitimate interest in trying to find ways to make society healthier.
There’s also the fact that – since long before our government (or any government) existed – it has been nearly universal human behavior to create and recognize new kinship relationships through marriage. There are many legal repercussions regarding who is kin and who isn’t – property rights, inheritance, parental rights, tax issues, immigration, etc.. It would create a major burden on both courts and citizens if the government refused to recognize the primary family relationship that most people form in their lives, instead recognizing only born blood relations. The government has a strong, legitimate interest in trying to avoid that sort of burden, on itself and on citizens. One way of avoiding that is to make marriage a legally recognized category, and in order to do that it’s necessary to have some standards for what is and isn’t a marriage, hence regulation.
OK, apparently I’m communicating very badly here. Can we start over?
What gives the state the right to tell people that they cannot marry?
For example, the state has the right to tell people that they can’t kill each other. This is because the state is entrusted with the police power, to maintain public order. Public order is very badly damaged when people are killing each other – so the state can defend this legitimate interest by banning killing. So if I was asking my “what gives them the right” question in the context of murder, your answer could be “to maintain public order”.
So what’s the answer in the context of marriage? Please note that I am not looking for a positive answer of “marriage is good and family relationships incur organizational costs and so the state can regulate them” – that’s undisputed. I’m asking what legitimate grounds, in your view, the state may claim to justify the PROHIBITION of marriage. As you sau, “it’s necessary to have some standards for what is and isn’t a marriage” – agreed. What standards may the state acceptably advance to bar marriage, and what’s the philosophical underpinning for the standard?
Robert, I’d be interested in knowing if you have an answer to your own question. If you aren’t shooting for a slippery-slope argument, I would assume that you have an answer for the question “What gives the state the right to tell people that they cannot marry?”
Personally, I have read enough studies of various relationship arrangments to know that the most stable and the most equal (those involved having equal power to determine their own lifepath) are those between 2 people – preferably of the same gender. Same gender couples also have some additional positive outcomes when it comes to childrearing. So I’d say that gives the state the right to tell opposite sex couples they cannot marry and same-sex couples they can, and it gives the state the right to limit marriage to arrangments between 2 people. It produces better societal outcomes. Of course, I recognize that not having marriage available to opposite-sex couples might have some drawbacks such as decreased social support which could lead to greater promiscuity and STDs for those couples, so I guess the state may want to let them marry too. *sigh* If we must.
Sure!
There are multiple standards, not just one single standard.
For instance, the philosophical underpinning for banning polygamous marriages (which I’m not certain I personally agree with) is good government. The government has a letigimate need for clarity in the law and consistantly enforcible laws; creating a marriage law which gives people two or more people who have the “final word” and are considered “closest kin” would severely undermine the clarity of the law and the ability of courts and other institutions to know who the closest relation is, or who the legal decision-maker is, at exactly those times when clarity is the most needed.
It would also create confusions – if Harold and Mamby divorce Jack, are Harold and Mamby still married, or is the entire union divorced? It would require rewriting the whole law from scratch, essentially – which the government has a legitimate reason not to want to do.
(Again, I’m not certain I agree with all that, but that is the logic.)
Another example would be the requirement that two adults marry, and not a six-year-old and a 40-year-old, or two 7 year olds, or whatever. This is banned for a totally different reason – the concept of consent; children are not considered legally able to consent to a legal contract as important as marriage. For the same reason, people aren’t allowed to marry anything incapable of consent, such as a turtle or an endtable.
I’m getting confused here and on something a US lawyer – if we have one handy – might want to check.
In the UK and, I believe, in other jurisdictions the two individuals marry each other: they are not married by the priest, rabbi or the registrar. Nor is the nature of the relationship defined by the state. My only direct experience outside the UK was a wedding in NZ where this holds true.
The UK simply asks that the marriage take place with a modicum of formality, in a location registered for the purpose and in the presence of someone who is empowered to make a formal record of the event – that’s a registar, a priest of the established church or any other minister of any religion who applies to have himself and the place of worship put on the list for this purpose.
Once there is that formalised record then the state will recognise the marriage for next-of-kin issues and to allow some benefits including a substantial tax-free inheritance by one partner from the other, the state clearly regarding stability and mutual support as conducive to the public good.
Up to now the state has been willing to recognise only heterosexual relationships but from next month it will recognise same-sex unions – not called marriage at the moment which probably got it onto the statute book without too much hysteria but watch this space!
It seems more likely than not that the basis for US law on the subject crossed the Atlantic in the seventeenth century but somebody, please, check it out – I don’t want to have to do a whole law degree to find out.
OK, Amp, so far you’ve given me one that you accept – the legal concept of consent. (Since you say you don’t necessarily agree with the convenience-for-lawyers argument that undergirds anti-polygamy laws, I can’t use that one.) Could you give me one or two others?
Jesurgislac Writes:
October 4th, 2005 at 3:29 am
And as I stated earlier, it also assumes people marry, accept each other as husband and wife, consumate their marriage, and continue to enagage in marital relations. Allowing same sex couples to marry IS a radical change in what type of relationship the law presumes marriage to be. Marital law, which I stated earlier presumes a sexual relationship between husband and wife, its considered part of the marriage contract. Same sex couples cannot, by definition, fulfill this presumption.
Okay… why does government “license” marriage? If not for sex and or procreation, what is it licensing?
Well if one is married, it considered adultery, which is still a crime in many states. If one is not married, there is no penalty.
Is that penalty harsher than the penalty for driving without a license?
(The answers are: There is no penalty and no.)
So much for that argument. Others have explained it better than I will, but here goes…
Okay, I’ll accept that for now. Why are there so many references to sexual intercourse within marriage laws? [ Perhaps not as a requirement to enter into marriage, but as a presumption of the marital contract ]
Hellcat: Allowing same sex couples to marry IS a radical change in what type of relationship the law presumes marriage to be.
No, it’s not. The law presumes marriage to be the type of relationship where two people live together on intimate terms as a sexual couple, who may or may not have children together. There is no radical change whether the couple who are married are same-sex or mixed-sex.
Same sex couples cannot, by definition, fulfill this presumption.
Only if you think same-sex couples don’t have sex.
“For instance, the philosophical underpinning for banning polygamous marriages (which I’m not certain I personally agree with) is good government.”
It obviously depends someone on the jurisdiction – so we have to be careful about generalisations. But, apart from the “ick” factor, the reason for banning polygamous and incestuous marriages is to maintain the inheritance tax system. I’m entirely serious – marriage isn’t about love it’s about property rights. When civil partnerships were discussed in the UK one of the major concerns would be that people would use it for tax avoidance (for this reason, a woman can’t enter a civil partnership with her daughter).
“Once there is that formalised record then the state will recognise the marriage for next-of-kin issues”
Certainly in the UK next of kin issues are doubtful. It’s not a legal term, when you go to hospital you can nominate who you like as your next of kin (i.e. who can see you). There isn’t any notion of proxy consent. You can consent for yourself and only you, and if you can’t it’s down to the doctors to do what they feel is in your best interest.
I also think Hellcat has a point. Let me try and explain it.
“Okay… why does government “license” marriage? If not for sex and or procreation, what is it licensing?”
What is the penalty for having sex or procreating outside of marriage? Is that penalty harsher than the penalty for driving without a license?
I’m speaking from a UK perspective. There are very serious penalties for procreating outside (or inside) marriage. If your wife has a child, you automatically gain parental responsibility – have a right to a say in bringing up your child, their education, religion, medical treatment, and so on.
If an unmarried mother has a child she has sole parental responsibility. The unmarried father has no automatic parental responsibility and can only gain it if:
* He marries the mother (mother’s permission needed),
* Register the birth of the child (mother’s permission needed),
* Make a formal agreement with the mother (mother’s permission needed),
* Become the child’s guardian (mother needs to die first),
* Obtain a court order (can be contested and refused – by no means a right).
People have a lot to gain or lose by having a legitimate as opposed to an illegitimate child. There’s a very fundamental way in which marriage is about having children – even for infertile couples, as they are still granted rights over any potential future children – and this just can’t apply to a SSM.
You know, what with all the back-and-forth about equality, race, and affirmative action, with all of the hand-wringing over how SSM would alter the basic premise of marriage, folks have yet to address this one, basic question:
How is denying two consenting adults the same rights you have making your life any better?
At the end of the day, people who oppose SSM are promoting discrimination. They are allowing straights to have familial rights and government recognition that is denied to gays. Their churches don’t have to perform the ceremonies or bless these marriages. They don’t have to go and marry members of the same sex, and I highly doubt that anyone is going to get divorced because Kofi and Fred or Naomi and Akiko got hitched.
And don’t give me the civil unions route. If civil unions aren’t good enough for straights, then why are they supposed to be good enough for gays?
How, exactly, is it beneficial to discriminate against an entire group of people? Why is it such a threat to some people?
Perhaps I should clarify the question as I don’t seem to have communicated it well.
What are the penalties for having or procreating without being married?
There are none. Therefore marriage is not a “license to procreate or have sex.”
Urggh! Stupid proofreading failures.
What are the penalties for having sex or procreating without being married?
That’s what the question should have been.
Nik: The unmarried father has no automatic parental responsibility and can only gain it if
That was the case, it is no longer. The law in England and Wales, and I think soon in Scotland, is that if a mixed-sex unmarried couple register the child together, the father gets automatic parental rights and responsibilities.
There’s a very fundamental way in which marriage is about having children – even for infertile couples, as they are still granted rights over any potential future children – and this just can’t apply to a SSM.
In England and Wales, a same-sex couple can adopt a child, or the step-parent can adopt her partner’s child (without her partner giving up any maternal rights). The same change in the law to make this possible is also planned for Scotland.
In any country in the world, a lesbian can decide to have a baby, get pregnant, and have a child. If she has a partner, and her partner is bringing up the child with her, for the child’s own welfare, her stepmother (other mother: co-parent: whatever you want to call the relationship) should have legal rights and responsibilities towards the child. (And will have, in the UK, from December 5th.)
And your point was?
Jesurgislac;
I don’t think we disagree on fact, so much as are stressing different points.
That was the case, it is no longer. The law in England and Wales, and I think soon in Scotland, is that if a mixed-sex unmarried couple register the child together, the father gets automatic parental rights and responsibilities.
It still is the case. But I think you’re mis-reading what I wrote (which may be my fault as it’s abrupt riddled with gramatical errors) . You say “If a mixed-sex unmarried couple register the child together, the father gets automatic parental rights and responsibilities”: I totally agree. I try to say that in post #151 bullet point 2.
But that doesn’t change the point I was trying to make: if the mother decides not to register the child with the father – which she has every right to do – the unmarried father doesn’t gain parental rights. While a married father in the same situation automatically gains them.
Marriage changes peoples legal position in relation to children born in the marriage – that’s part of it’s fundamental reason for exisiting (hence the historic obsession with bastardry). Regardless of the pros of cons of SSM, this reasoning doesn’t apply to SSM.
In England and Wales, a same-sex couple can adopt a child, or the step-parent can adopt her partner’s child (without her partner giving up any maternal rights). The same change in the law to make this possible is also planned for Scotland.
I totally agree. But if a woman in a OSM becomes pregnant the husband automatically gets parental rights (is the “presumed father”). If a woman in a SSM becomes pregnant her partner doesn’t automatically get parental rights – hence the need for adoption. That’s provides a reason for the existance of OSM that doesn’t apply to SSM.
And your point was?
My point is just that the two situations of OSM and SSM are disanalogous in a fundamental way. The point that Hellcat made and was shot down about.
P.S. I want to reread the Adoption Act, then I’ll return to your point on adoption.
Hellcat: Allowing same sex couples to marry IS a radical change in what type of relationship the law presumes marriage to be.
If same sex couples have sex, as oppossed to being sexual with each other, then what type of birth control do they use?
If same sex couples have sex, as [opposed ] to being sexual with each other, then what type of birth control do they use?
Same sex couples have sex, no “if” about it. Birth control is not required in order to have sex for either mixed or same sex couples. Your question doesn’t make any sense.
Why not?
Suzy and Lori are married. Suzi gets pregnant (using sperm from a sperm bank, say). The law presumes that Lori, because she’s married to Suzy, is a legal co-parent.
What’s so impossible about that scenario?
Nik: “Marriage changes peoples legal position in relation to children born in the marriage… Regardless of the pros of cons of SSM, this reasoning doesn’t apply to SSM.”
Ampersand: “Suzy and Lori are married. Suzi gets pregnant (using sperm from a sperm bank, say). The law presumes that Lori, because she’s married to Suzy, is a legal co-parent.
What’s so impossible about that scenario?”
You’ve posed a really interesting scenario. Here are my observations:
(1) If a wife became pregnant with donor sperm, the husband would not be the legal father (at least after presumption was disproved with a DNA test), and would not have any parental rights or obligations to the child. Similarly, if they were married, Lori would have no parental rights or obligations.
(2) The husband could consent to becoming a parent after ART with donor sperm, and become a legal parent (if all parties agree). So could Lori. But, so could an unmarried man and his partner. I don’t see that marriage alters this situation at all – it has nothing to do with people’s legal position in relation to children born between them in a marriage.
(3) There are potential problems regarding the source of the sperm. If the donor’s rights weren’t artificially legally annulled, the biological father in all situations could claim parental rights and responsibilities. This would also stop Lori (or the husband) becoming a legal parent, if that’s what they wanted, since the biological father could – quite rightly! – object to someone being made a parent of his child.
(4) If the donor’s rights were legally annulled then we are in the same situation as a birth out of wedlock to a dead biological father. The husband/partner can take upon themselves parental rights, but only if they want, they are under no obligation to do so. It is entirely in the mother’s (and the court’s) gift.
Essentially, if someone fathers a child upon a person he’s married to he has a range of right (and obligations), that he doesn’t have it he wasn’t a husband. There’s no parallel here for SSM.
Ampersand: Suzy and Lori are married. Suzi gets pregnant (using sperm from a sperm bank, say). The law presumes that Lori, because she’s married to Suzy, is a legal co-parent.
What’s so impossible about that scenario?
That’s precisely the change in the law that the British Human Fertilisation and Embryology Authority envisages following the introduction of civil partnership. (Their response to a consultation on civil partnership is available here as a PDF file.)
It seems very likely that, in the next year or two, the law will be changed in the UK so that if a child is born to a woman in a civil partnership, conceived via donor sperm, her partner will be the child’s other legal parent. The HFEA sees a clear parallel between children born in a civil partnership and children born in a marriage – and so they should.
if the mother decides not to register the child with the father – which she has every right to do – the unmarried father doesn’t gain parental rights.
No, that’s not so – not following the passing of the Family Law Act. The mother can go to court to prevent her male partner getting PRR, just as she could go to court to prevent her husband getting PRR, but the default position is that, married or unmarried, the father of the child gets PRR.
Nik, you don’t seem to know much about the law on donor sperm and parentage.
(1) If a wife became pregnant with donor sperm, the husband would not be the legal father (at least after presumption was disproved with a DNA test), and would not have any parental rights or obligations to the child. Similarly, if they were married, Lori would have no parental rights or obligations.
If a married woman becomes pregnant with donor sperm, and her husband consented to the treatment, her husband is the legal father of the child, and has full parental rights and obligations to the child. He can opt out of them, but if he had previously consented to his wife’s treatment, he would find that hard to do so. The HFEA (study linked to in previous comment) considers that the parallel should apply to a female partner of a woman in a civil partnership.
If an unmarried woman becomes pregnant with donor sperm: if she has a male partner, the male partner can opt in to legal fatherhood, in which case he has full parental rights and obligations to the child. The HFEA (study linked to in previous comment) considers that the parallel should apply to a female partner of a woman pregnant with donor sperm, though at present that option does not apply.
(2) The husband could consent to becoming a parent after ART with donor sperm, and become a legal parent (if all parties agree). So could Lori. But, so could an unmarried man and his partner. I don’t see that marriage alters this situation at all – it has nothing to do with people’s legal position in relation to children born between them in a marriage.
Well, marriage (or civil partnership) is considered to make a difference with regard to pregnancies by AID. Married partners must opt out of legal parenthood: unmarried partners must opt in. There is no reason why the same parallels cannot apply to same-sex partners.
(3) There are potential problems regarding the source of the sperm. If the donor’s rights weren’t artificially legally annulled, the biological father in all situations could claim parental rights and responsibilities. This would also stop Lori (or the husband) becoming a legal parent, if that’s what they wanted, since the biological father could – quite rightly! – object to someone being made a parent of his child.
The biological father could not, however, object to someone having parental rights and responsibilities for his child.
(4) If the donor’s rights were legally annulled then we are in the same situation as a birth out of wedlock to a dead biological father. The husband/partner can take upon themselves parental rights, but only if they want, they are under no obligation to do so. It is entirely in the mother’s (and the court’s) gift.
No, not entirely. True, the mother can evade the issue if getting pregnant via donor sperm by avoiding getting her husband’s or her civil partner’s or her cohabitee (male or female) consent. But the husband would still have to opt out of legal parenthood, and her cohabitee could still opt in. It is not exclusively in the mother’s gift, unless of course she promptly breaks up with her partner. With the proposed changes in the law in the UK, the parallels would apply to same-sex partners.
Essentially, if someone fathers a child upon a person he’s married to he has a range of right (and obligations), that he doesn’t have it he wasn’t a husband. There’s no parallel here for SSM.
As has been pointed out to you extensively above, oh yes, there is. :-)
Essentially, if someone fathers a child upon a person he’s married
If same sex couples have sex, as [opposed ] to being sexual with each other, then what type of birth control do they use?
It does, and you know the point I was making. I also did not say birth control was required in order to have sex. Same sex couples can be sexual with each other, but cannot, by virtue of the fact they are of the same sex, have sex, as in sexual intercourse. Three couples, one male same sex couple, one female same sex couple, an one oppostie sex couple, all state they are going to have sex. Let’s also assume that they are in there mid to late twenties, the median age at which people marry. All healthy and fertile. All three enagage in “sex” . Obviously this means different things to each couple. Of those three couples, which one has to take into account the possibility of conception when they have sex? Also when marriage law refers to sex, as in the act of, what sexual act is it pertaining to?
Hellcat, the issue is that from the point of view of those of us who support SSM, the institution IS broken, because it excludes a significant number of people from claiming it’s benefits.
I think the real difference of opinion here is over the question of whether or not marriage is designed to give people permission to have sex and have children. I don’t think that’s what marriage is for, the “closest relative” definition above makes more sense to me. In any case, it does seem that those of us who don’t think that people ought to need permission to have sex or have kids are more likely to be in favour of SSM than those who think sex and childbearing should be somehow regulated.
In reality, the idea that the purpose of marriage is to give a couple permission to reproduce is already on it’s way out, IMO. We happily allow people who are incapable of reproducing because of old age to marry as long as they are not of the same gender. We allow people who are sterile to marry. I think that the evolution of what marriage means has already happened, and it hasn’t really meant “now it’s OK to have sex and have kids” for most people who are not intensely religious for quite some time. If that’s true then Amp’s right and the institution has already evolved to the point where there’s really no logical reason not to allow SSM.
That’s what always puzzles me about the anti-SSM arguments – most of the dire things that those who oppose SSM fear have in fact already happpened. You’re trying to lock the barn door after the horse is long gone.
Hellcat, the issue is that from the point of view of those of us who support SSM, the institution IS broken, because it excludes a significant number of people from claiming it’s benefits.
But this will always be true. Marriage will always exclude some people’s desired couplings.
It would thus seem that you are demanding access to an institution which by your explicitly stated standards is permanently broken.
One might wonder about the good faith, under that circumtance.
My guess is that the statement should be amended to say:
Of course, BritGirlSF can speak for herself, but that’s my guess.
but cannot, by virtue of the fact they are of the same sex, have sex, as in sexual intercourse
Thank you, President Clinton. Do you also believe that disabled people who cannot have vaginal intercourse should not marry, since they can’t have sex in your view?
maureen, I can’t figure out what your actual question was in there.
What affirmative grounds does the state have to justify its legitimate sphere of action in regulating marriage – whatever boundaries you might personally believe ought to apply to that sphere?
Sorry, that’s not really a question, either; you’re first asking whether the state can justify regulating marriage, then sneaking in a comment about ‘whatever boundaries,’ as if it were yes/no: either the state can regulate marriage however it likes, or it can’t regulate it at all.
Still waiting for an answer to my question: On what basis is a “two only” requirement potentially unconstitutional?
Hellcat: It does, and you know the point I was making …..
All of your comments in this post would require people outside the relationship to take a prurient interest in private actions that are none of their business.
All three enagage in “sex” . Obviously this means different things to each couple.
Indeed. And precisely what each couple “does” when they “engage in ‘sex'” is none of your business. And it’s none of the government’s business. Marriage, to be valid (certainly for immigration purposes, as well as in the general perception of marriage) consists of two people living together on intimate terms. Precisely what they do is their own business.
Amp of course interpreted my comment correctly. The current system is broken in that it is discriminatory. Open it up to include all legal adults regardless of sexual preference and it will no longer be broken.
“Marriage will always exclude some people’s desired couplings.”
In principle, why? The only justifiable exclusions I can think of are those designed to prevent harm, ie there is a valid reason for the state to prevent 5 year olds from marrying as they are not yet competent to make such serious decisions. This is also why SSM advocates have no intention of allowing people to marry their dogs, regardless of what Mr. Santorum seems to imagine. Adult lesbians and gay men are competent adults who are in no need of that kind of protection. They are also citizens who are entitled to the same rights as their straight compatriots.
Interesting that you seem to assume that someone arguing in favour of SSM must want something out of it for themself. I’m already married, to a man, so my support for SSM isn’t based on any benefit I might derive from it being legalised. It’s a matter of morality, fairness and compassion. Difficult as this may be for you to grasp, not all of us base our political beliefs on entirely selfish motivations.
The current system is broken in that it is discriminatory. Open it up to include all legal adults regardless of sexual preference and it will no longer be broken.
This an entirely arbitrary distinction. What’s the difference between SSM and 1st cousin marriage? If you get SSM, the institution is still discriminatory.
It will always be discriminatory – there will always be someone excluded. That you find certain exclusions acceptable is fine, of course – but why are the exclusions you can accept any different than the exclusions you can’t?
Robert: That you find certain exclusions acceptable is fine, of course – but why are the exclusions you can accept any different than the exclusions you can’t?
In the US, the property laws say you can own a house, a dog, a car, or a tree. You are not allowed to own a human being. Do you see this exclusion of human beings from property as an arbitrary distinction? If you can accept this exclusion, why is it different from other exclusions of “what one can legally own” in the US? Would you be okay with it if lesbians and gays were not excluded from being property?
Jesurgislac;
I appreciate that you think I don’t know about about family law and am mistaken. However, I’d ask you to appreciate that I have exactly the opposite view! I mean this very nicely. I’m going to try to explain why I the law supports my view and try and change your mind.
You’re mistaken about the recent change in the law. The father, if he is married to the mother, automatically has PR. If he is not married to the mother he does not automatically have PR. He can get this by registering the birth with the mother – if the mother consents to this – that is the recent change.
The mother does not have to go to court to prevent her male partner getting PR. The partner can in some circumstances get PR by going to court (with no guarantee, it can be contested; the husband is guaranteed PR automatically). The default is that an unmarried father doesn’t have PR.
I also want to stress that this aspect of marriage – defining rights over biological children of the union – doesn’t apply as a justification of SSM.
http://www.gro.gov.uk/gro/content/births/parentalresponsibility/index.asp
On the question of your points about (proposed, future) legislation for SSM and assisted reproduction. There are already get outs to the usual procedures – donor sperm is already a unique legal entity (in that it is legally fatherless).
AID carried out without the husband’s consent is grounds for divorce on the basis of unreasonable conduct. If the husband did not consent to the treatment he is not the legal father (this is easy to prove, clinics are legally obliged to keep records). There’s an exact parallel to laws on adultery here, where you’re presumed to be the father of your wife’s child; but when it is demonstrated that you are not, then your obligations cease.
I’m no sure what you’re getting at. The biological father can’t object to the mother being awarded parental rights for his child upon the birth (obviously). He can object to someone else, such as the mother’s husband or partner, adopting his child. Adoption law is build around allowing people to voice this objection.
In the US, the property laws say you can own a house, a dog, a car, or a tree. You are not allowed to own a human being. Do you see this exclusion of human beings from property as an arbitrary distinction?
No, I don’t.
But we aren’t talking about differences in kind, or kingdom. We’re talking about human beings, and just human beings.
If your objection to the bar on SSM is that the institution of marriage is discriminating against adult human beings, then simply admitting gays and lesbians to the institution will not fix what you’re objecting to.
Robert: If your objection to the bar on SSM is that the institution of marriage is discriminating against adult human beings, then simply admitting gays and lesbians to the institution will not fix what you’re objecting to.
It will fix it for same-sex couples. Do you have some objection to fixing it for same-sex couples? That’s what I’m trying to grasp. You seem to feel that if it can’t be fixed for everyone who wants to get married, it shouldn’t be fixed at all. The US used to make the arbitrary distinction that anyone defined as Black couldn’t marry anyone defined as White. The US now makes the arbitrary distinction that no man can marry another man, and no woman can marry another woman. In Massachusetts, it no longer makes that distinction, and hopefully, soon, nowhere in the US will make that distinction. What is your problem with fixing marriage where it’s broken? Why do you feel that marriage ought not to be fixed for same-sex couples?
You seem to feel that if it can’t be fixed for everyone who wants to get married, it shouldn’t be fixed at all.
No, I’m trying to get a handle on the philosophical positioning of SSM advocates. Some of them say that they want SSM because marriage is discriminating; I want to know how they justify continuing to discriminate against all these other categories if that’s really their motivation.
Why do you feel that marriage ought not to be fixed for same-sex couples?
I don’t think it’s broken. (I do support civil unions for consenting adults; see my personal blog for the long version.)
Robert: No, I’m trying to get a handle on the philosophical positioning of SSM advocates.
No, I really don’t think that’s what you’re doing. You’re trying to set up some ostensibly-neutral position from which you can say “see? you don’t deserve to be allowed to get married, because look at all these other people who aren’t allowed to get married”.
But if you really, really haven’t grasped what the philosophical position of gender-neutral marriage is, let me summarize it for you in a few easy points.
1. Many same-sex couples wish to marry.
2. The law in the US (except in Massachusetts) does not permit them to do so.
3. There is no good reason not to permit same-sex couples to marry. *
4. Therefore, the law should be changed so that marriage becomes gender neutral.
I don’t think it’s broken.
Since same-sex couples in most of the US cannot marry, obviously it is broken. You should rather say “I don’t think it’s worth fixing it” since that appears to be what you mean.
*I can say this definitely, after a couple of months of reading anti-SSM blogs. Advocates of continuing discrimination against same-sex couples have effectively three sets of arguments: one tautological, one illogical, one homophobic.
-Tautological: Marriage has always been mixed-sex, therefore marriage should always be mixed-sex.
-Illogical: marriage is about procreation, same-sex couples cannot procreate, therefore same-sex couples should not marry.
-Homophobic: ranging from too offensive to summarize here, to the guarded “we hypothesise a bad effect on society, therefore we choose to deprive LGB people of the freedom to marry to protect ourselves from these hypothetical bad effects”.
Neither tautological nor “homophobic” arguments are intrinsically without merit. Nor are you accurately summarizing the “illogical” argument.
Homophobes would naturally feel that a homophobic argument had intrinsic merit. Denying minorities civil rights because bigots have bigoted arguments against their having civil rights is not something that I could ever claim had any intrinsic merit.
The tautological argument is worthless: that’s the definition of a tautological argument.
The illogical argument is perfectly summarized, if a little tetchily so: I’ve had it with enough people by now to recognize it.
What’s the difference between SSM and 1st cousin marriage?
SSM is when two people with the same type of genitalia get married. 1st cousin marriage is when two people who are first cousins and have different types of genitalia get married.
But seriously… I have no problem with 1st cousin marriage. My grandparents were 1st cousins (cue the banjos, Hungarian style). The most recent research that I have read indicates that first cousins having children creates a miniscule increase in risk of genetic disease. So let 1st cousins marry.
Nor are you accurately summarizing the “illogical” argument.
Can you summarize it better?
Homophobes would naturally feel that a homophobic argument had intrinsic merit.
Perhaps. However, rational people are aware that an argument is not rendered factually invalid because it is morally objectionable. If you are in a lifeboat and the only way to survive is cannibalism, then the notion of cannibalism has merit as a survival strategy, despite the fact that it is morally monstrous. The argument that a line of reasoning must be invalid because it is homophobic is analogous to saying that cannibalism won’t let (some of) the people in the lifeboat survive because cannibalism is morally wrong.
The argument that a line of reasoning must be invalid because it is homophobic is analogous to saying that cannibalism won’t let (some of) the people in the lifeboat survive because cannibalism is morally wrong.
The argument that any LGB people in the lifeboat ought to be eaten first because LGB people are intrinsically less deserving of survival than straight people, however, is homophobic.
Yeah, I suppose it would be. So what?
Homophobic is a moral label. It is, to return to a previous thread, a value statement. It has nothing to do with empirical validity.
Following up on your other points (forgive my choppiness – I’m interspersing these comments with childcare and work):
A tautological argument is not an invalid argument. All tautology means is that the assertion and the supporting points are the same. A tautology that expresses an opinion is a perfectly legitimate formulation, if somewhat lazy.
That said, the argument you’re labeling tautological, isn’t. “Marriage has always been mixed-sex, and therefore marriage ought to remain mixed sex” is an appeal to tradition, not a tautology. The first statement is a fact; the second is an opinion. (“A marriage is between people of two sexes, and therefore no relationship between people of the same sex can ever be a marriage” would be a tautology.)
I have to feed the toddler; I’ll return to address your last point.
So? Same-sex marriage is a moral issue, not an empirical issue. Arguments for or against SSM (especially against) may make empirical claims (for instance, “SSM will increase the number of single-parent and divorced parents” is a empirical claim), but in the end the issue is about non-empirical questions like fairness and justice.
So? Same-sex marriage is a moral issue, not an empirical issue.
Sure. (Well, partly sure. It’s an empirical issue too.) But Jesurgislac is advancing the claim that there are no good arguments against SSM on the grounds that all the [logically valid] arguments are immoral, i.e., homophobic. An argument can be good (IE empirically valid), while still being highly immoral. As has been the case in the past, Jesurgislac wants to conflate morality with empiricism, and confuse the terminology thereof.
Returning to the question of the “illogical” argument: Jesurgislac sums it up thusly:
Illogical: marriage is about procreation, same-sex couples cannot procreate, therefore same-sex couples should not marry.
The principal rationalization for historically giving marriage a preferential social status is that the welfare of children is a compellingly important social interest. Children (historically) come exclusively from the sexual coupling of men and women; there is historical and cultural evidence to suggest that children do best when they are raised in stable two-parent households; therefore, we choose to subsidize this particular social arrangement in order to better perpetuate the species.
We have not historically applied an actual procreative test to this nominally procreative institution, for simple reasons. One, until very recently such a test was not technologically possible. Two, many of the non-procreative couples (such as the elderly) that nonetheless get the social and economic subsidies provided to married folk are also people whom society wishes to buttress in some fashion, and so their unjust appropriation of benefits meant for procreative unions were not resented. Three, the costs of such a test in terms of social dissension, actual economic outlay, etc., would make it counterproductive. So we instead limit marriage broadly to folk who would in the ordinary course of events be expected to procreate: men and women. The elderly, who generally have already procreated, get a pass, because they don’t cost much to subsidize, they often need the subsidy anyway, and it isn’t like they’re going to be collecting tax breaks for 50 more years.
It is in the nature of subsidies that they cannot be universally applied. (“Why can’t we concentrate our resources across the board?” asks the pointy-haired manager.) Since the marriage subsidy is already very broadly applied, to extend the subsidy to couples who by definition are not able to fulfill its original mandate via the cheap and easy methods of reproduction is not really feasible. Thus, there is a concern on the part of those who think that the subsidy should exist that its extension to same-sex couples will result in the elimination of the subsidy’s practical effects. Fine, you can be “married”, and being “married” will now carry no benefit.
This argument might not hold up; some of its premises may be flawed; there may be evidence that undermines the conclusion. However, it isn’t “illogical” and it isn’t as simple as “you can’t have babies so go away”.
Jake wrote:
Well, that explains that huge cloud of paprika that always swirls around you, Pigpen style, whenever we meet.
Since the marriage subsidy is already very broadly applied, to extend the subsidy to couples who by definition are not able to fulfill its original mandate via the cheap and easy methods of reproduction is not really feasible.Thus, there is a concern on the part of those who think that the subsidy should exist that its extension to same-sex couples will result in the elimination of the subsidy’s practical effects.
So, what you are saying is that marriage needs to be limited and restricted because we need enough single people to subsidize the tax exemptions and benefits that married people now get? That if everyone could marry it would become necessary to eliminate the financial benefits of marriage. That almost sounds reasonable. But people get married for more reasons than tax breaks and financial reasons.
The principal rationalization for historically giving marriage a preferential social status is that the welfare of children is a compellingly important social interest. Children (historically) come exclusively from the sexual coupling of men and women; there is historical and cultural evidence to suggest that children do best when they are raised in stable two-parent households; therefore, we choose to subsidize this particular social arrangement in order to better perpetuate the species.
Using this rationalization, there should be SSM. Same sex couples have children: either together or from previous marriages or as single parents. Why shouldn’t same sex couples be allowed the same protections for their children as are allowed to mixed sex couples? A stable two-parent household does not have to be a man and a woman. In order to benefit the children, and society, same sex couple should have access to all the rights and benefits that are given to mixed sex couples. Unless it isn’t really about the children at all. It may not be as simple as “you can’t have babies so go away“ But it might be as simple as “gays are icky, they should go away”. Either way, it is discrimination and wrong.
Historically, no one gave a flying fuck about the “welfare of the children.” Marriage was about ensuring property and inheritance rights, and nothing else.
Ignoring the fascinating proposition that for all of human history, no parent has cared about the welfare of their child:
Inheritance rights and “the welfare of the children” have a bit of an overlap, donchathink?
Robert: The principal rationalization for historically giving marriage a preferential social status is that the welfare of children is a compellingly important social interest. Children (historically) come exclusively from the sexual coupling of men and women; there is historical and cultural evidence to suggest that children do best when they are raised in stable two-parent households; therefore, we choose to subsidize this particular social arrangement in order to better perpetuate the species.
But, this is an argument for same-sex marriage, not against it. Same-sex couples have children: this is a f act. Therefore, same-sex marriage must be permitted, for the welfare of children in those families. The fact that this is used as if it were an argument against same-sex marriage is in itself illogical, since it is fundamentally an argument that the children of same-sex couples deserve to be legally discriminated against.
However, it isn’t “illogical” and it isn’t as simple as “you can’t have babies so go away”.
Why, yes, it is: point proved, thanks. If marriage is a subsidy to reward couples bringing up children, then any couple who can potentially have children must be allowed to get married. As same-sex couples can and do have children, same-sex couples must be allowed to get married.
.) But Jesurgislac is advancing the claim that there are no good arguments against SSM on the grounds that all the [logically valid] arguments are immoral, i.e., homophobic.
Ah. You think homophobia is immoral, but not illogical, because you think homophobia is logical. But homophobia is not merely immoral: it is illogical, as any other form of bigotry is illogical. You raised the argument that cannibalism is immoral, but it’s reasonable to resort to cannibalism in a situation where not doing so means none will survive. But homophobes, like other bigots, would add the twist of illogic that says a class of people on this hypothetical boat deserve to die and be eaten first, because they are worth less. The homophobic arguments all rest on the idea that LGB people do not deserve to be treated equally with straight people. A homophobe would naturally feel that this argument has some intrinsic merit – indeed, that would be the definition of a homophobe. But no one has come up with any rational or logical reason why sexual orientation should mean legal discrimination: the only reasons offered are homophobic – they lack any rationale beyond “gays are icky”.
That said, the argument you’re labeling tautological, isn’t. “Marriage has always been mixed-sex, and therefore marriage ought to remain mixed sex” is an appeal to tradition, not a tautology. The first statement is a fact; the second is an opinion.
Nope. “Marriage has always been mixed-sex” is an ignorant statement, not a fact. Asserting a false statement, and using it as a basis to claim that this means marriage ought always to be what you say it is, is tautological. It could be an appeal to tradition, but that amounts to “We’ve always done it this way (where “We” means “people like me”, and “always” means “in the sum of my experience which I will take for the totality of experience”) and so I don’t see any reason to change”.
Robert: Inheritance rights and “the welfare of the children” have a bit of an overlap, donchathink?
Again, this is an argument for same-sex marriage, not against it.
I think this is a compelling argument.
One of the interesting features of marriage is that the (biological, adopted, consented-to-with-ART) children have the primary claim to the assets of the marriage if the parents divorce. That’s what justifies the courts from taking the father’s house from him and using it to provide a home for the children of a divorce. They can’t do this if the parents are unmarried. That’s a very valuable asset for children, if gay people want to sign up to this then should be congratulated rather than stopped.
But I still don’t think SSM is analogous to OSM. One of the reasons for marriage is to give people rights and obligations over biological children later convieved between them, this can’t apply to SSM.
Nik: One of the reasons for marriage is to give people rights and obligations over biological children later convieved between them, this can’t apply to SSM.
….so what?
Yes, no doubt the reason why some mixed-sex couples marry is to give themselves rights and obligations over biological children they plan to conceive. Not because they’re in love, or because they want to spend the rest of their lives together, but primarily because they intend to have children with each other and marriage will be a good framework for that.
But if you think there is no parallel to that for same-sex marriage, you’re wrong. The parallel would clearly be same-sex couples who get married because they intend to have children with each other and marriage will be a good framework for that.
You’re denying the obvious parallel: why?
Robert, as you well know, the “distinction” is grounded in Constitutional law. You can fire an employee because his tie pattern was horizontal and you’re more of a vertical kind of guy; you can’t fire him because you heard he was Christian. The government can pass a law saying minors cannot marry, if it has a half-decent reason for doing so; it needs a really, REALLY good reason to say that whites and Hispanics cannot marry.
Ron, sorry for missing this one:
I really don’t see how arguing that recognizing a bond between two people of the same sex as a marriage is a radical change to the institution of marriage could possible be interpreted to mean that I am in favor of wife-beating, etc. Could you explain that?
Certainly. When you bring up the It’s Tradition, Marriage Has Always Been This Way, Millenia of Precedent arguments against same-sex marriage, then you’d best be aware that there are all kinds of other traditions you might not like, but which can be supported by the exact same arguments. And have, for that matter, in the case of granting wives equal rights within marriage and criminalizing marital rape and wife-beating.
What Robert and Nik are pointing out is why the state grants special status to opposite sex marriage, not why people marry. WHY people marry is not nearly as important to the state as what such union can, and often does, produce, children. Even gay people are created via the sexual intercourse between men and women.
Lets assume for a moment that all the children being raised by SSC, and were created from a previous heterosexual marriage by one or both partners, ceased to exist. Would those same couples have become parents if they had not entered into an OSM, but went straight, no pun intended, into a same sex relationship? If so what percentage do you think that would be? In an opposite sex relationship, barring any physical obstacles, the potential for conception is a factor that the couple must account for when engaging in sex. In order for SSC to become “natural” parents, one or both must interact with a memeber of the opposite sex in some manner, if nothing more than a acceptance of donated genetic materials. For male SSCs a womb is also needed. If you elimate the opposite sex sexual interaction, the chances for natural parenthood, diminish significantly, even more so for men. There’s no “oops” babies with SSCs. Should SSM be allowed because they might make a trip to the sperm bank, or buy an egg and rent a womb? Should we be encouraging “same sex conception” in this manner? Is promoting the nuclear family via marriage, even if the child is not biologically related to the father/husband, a worthwile goal?
Hellcat: WHY people marry is not nearly as important to the state as what such union can, and often does, produce, children.
And, since same-sex couples also can, and do, have children – even if the children are often biologically related only to one of their parents, or are adopted and so are not biologically-related to either parent – this is an argument for same-sex marriage.
Would those same couples have become parents if they had not entered into an OSM, but went straight, no pun intended, into a same sex relationship?
If they really wanted to be parents, yes, very likely they would. The primary difference between same-sex relationships and mixed-sex relationships would seem to be that in same-sex relationships, all children – whether conceived via AID or adopted – are wanted children.
Is it a worthwhile goal to argue that children who are not accidentally conceived, who are always wanted, always planned for, are just not worth having? That would seem to be the basis of your argument in the final paragraph – that it’s better to have children who were accidentally conceived and perhaps even initially unwanted, than to have couples plan for and conceive their children deliberately.
Oh dear, all this fuss…
I think I will quietly sit here and be happy about the one decent thing my government has done in the last few years (i.e. snuck civil unions in as a footnote on the budget!) I think it is a shame that the US (apart from Massachusetts) has such a homophobic veiw of marriage – as a country that influences so many others, it should be leading the way in gay rights, not trying to drag itself back to the beginning of the century
VK: as a country that influences so many others
I remain perpetually grateful that this part of the American fantasy is not true.
People have been suggesting above that SSM is just an extension of OSM and a continuation of historical changes: “Gay marriage isn’t a radical step; it’s just the next step”. I’m just trying to point out that it isn’t. And that SSM is disanalogous to OSM in a pretty fundamental way. That’s what.
I don’t think this is an obvious parallel. Same-sex couples can’t get married because they plan to have biological children and want to define their rights over them – they can’t have biological children.
If a married man father’s his biological child upon his wife he gets rights automatically, that an unmarried man doesn’t. This – defining rights over biological children of a marriage – is one of the historic reasons for the institution of marriage. It’s fundamental to the legal basis of marriage – and there’s no direct parallel to this in OSM.
The parallel isn’t a same-sex couple who get married because they intend to have children – because they don’t (and can’t) get rights over biological children through marriage. They get them through other means. In the case of adoption or ART the rights are given because both parents consent to the adoption or the therapy, not because of the marriage (in the same way a married couple get rights over children from adoption or ART because they both consent to it).
You may reply “so what?” or that you don’t care. Well fair enough, but I think the example shows that SSM and OSM aren’t analogous, and that OSM is a radical change.
Personally, I’m all for some form of SSM for the justification in Post #191. But there’s a fundamental part of the historic understanding of marriage and reasons for it that just isn’t replicated in a SSM.
nik: Same-sex couples can’t get married because they plan to have biological children and want to define their rights over them – they can’t have biological children.
Yes, they can, and they do. What you mean is, they can’t have biological children who are related to both of them. And, so?
but I think the example shows that SSM and OSM aren’t analogous, and that OSM is a radical change.
If you’re arguing that it’s a radical change to marriage for two people to marry when they know they can’t have biological children who will be related to both of them, well, you’re way behind the fair: that radical change already happened, who knows how long ago, the first time a man who knew he was sterile married a woman with the intention of her having children which he would parent with her. Or the first time a marriage happened when the couple knew they couldn’t have children and planned, in advance of the marriage, to adopt. When was this? Who knows: decades, centuries, millennia ago?
Marriage seems to have survived this radical change, doesn’t it?
Jesurgislac:And, since same-sex couples also can, and do, have children – even if the children are often biologically related only to one of their parents, or are adopted and so are not biologically-related to either parent – this is an argument for same-sex marriage.
These children they have, as I noted earlier, are overwhelming the product of one or both partners previous heterosexual marriage. So in that sense they acted in accordance with the state’s interest in marriage. They married, engaged in sexual intercourse, and a child was conceived, thus it was linked to its mother and father. It after they divorced that things broke down. Now if they adopted, that’s an issue for the laws of adoption of their particular state.
If they really wanted to be parents, yes, very likely they would.
Perhaps, but its not unreasonable to state that the numbers would be significantly lower, particularly for men, who in order to become a father, require the body of a woman. Its alot easier to procreate with one’s wife than it is to hire a surrogate.
The primary difference between same-sex relationships and mixed-sex relationships would seem to be that in same-sex relationships, all children – whether conceived via AID or adopted – are wanted children.
Alright I give you that one…well to a degree. Chances are none of us would be here if our mother and father had to plan to create us in the same way a same sex couple does. Heck if that were the case, the birthrate would drop dramatically. But it doesn’t mean that once here were not wanted.
Is it a worthwhile goal to argue that children who are not accidentally conceived, who are always wanted, always planned for, are just not worth having?
Not neccessarily.
That would seem to be the basis of your argument in the final paragraph – that it’s better to have children who were accidentally conceived and perhaps even initially unwanted, than to have couples plan for and conceive their children deliberately.
Not at all. It would be nice if couples planned for and deliberately conceived their children, and many a married couple have done just that. It’s not the deliberate conception that marriage serves to manage, although it helps. The reality is, its the opps babies that marriage serves to protect, if thats the right word. Sex makes babies, there’s no denying that. Two go to bed but three get up. Marriage, perhaps in theory, although not always in reality, serves to manage that. Two men can want a child all they want, but unless they either adopt, or hire a surrogate, they ain’t going to become a daddy. For women its a bit easier, well at least the conception part.
What is the difference between two homosexual women who create a child through AID, and one heterosexual woman taking the same road to motherhood? Suppose the latter plans ahead of time to raise the child with her mother. Would that be much different than the two gay women who plan for and conceive a child thorugh AID? Do a mother and grandmother trump a mother and step mother/co-mother? Are they equal in status? Is one arrangement preferable to the other?
Jesurgislac;
We’re really going about in circles here. I say my bit, you say “so what?”, I don’t think we’re getting anywhere.
So there’s no need for a legal intitution which defines the rights held by same-sex couples who have biological children that are related to both of them – since this situation is impossible. There is a need for a legal intitution which define the rights held by same-sex couples in this situation. As such the two situations are different and this provides a justification for OSM that doesn’t apply to SSM.
I’m not arguing that “it’s a radical change to marriage for two people to marry when they know they can’t have biological children”. I’m arguing it’s a radical change so extend marriage to a group of people where the circumstances that provide one of the classic justifications for marriage and the core legal basis of marriage can’t – by definition – arise.
I find it difficult to fathom a man in that situation thinking that he would “parent” a child. Raise the child as his own? Yes. Act as a father to the child? Yes.
That could easily be modified to include those couples who personally thought were incapable of creating their own biological children , but found out after adopting, that that was true.
Opposite sex couples that can’t naturally conceive on their own are the exception to the rule. They can still provide a child with a mother and father. Whereas SSCs represent a signficant change of the rules. They cannot provide an opposite sex parental pair for a child. Should marriage then be about providing children simply with two parents regardless of gender? If so, why? What does the second mother/father offer to the child, other than perhaps an additional income, and assistance with child care?