Dispatches from the Creation Wars

I post some of what I write to both Positive Liberty and Dispatches from the Culture Wars, so sometimes I get comments left at one place and not the other. In response to a recent cross-posted item on the religious right and “special rights” rhetoric, I got this comment left at PL. I’m going to respond to it in detail at both places in its own post. The first thing you will notice about the comment is that it does not even attempt to engage the argument of my post. The post was about the inconsistency and incoherency of the religious rights’s rhetoric of “special rights” when arguing against adding sexual orientation to existing anti-discrimination law. The post did not attempt to argue for or defend gay marriage (though I will gladly do so now). Blake, the commenter, has simply chosen to use it as a pretext for launching an entirely different discussion. That’s fine by me, but let’s recognize that even if everything he says is valid, it does not change the fact that when religious people make an argument against gay rights as “special rights” they are being hypocritical and incoherent. Now on to the substance of Blake’s comment:

What you are missing is that gays are asking for the State to act to affirmatively protect their relationship by giving it the force of marriage. Marriage is an affirmative act of the State to protect particular relationships. The question must be asked: is a gay relationship one that the State has an interest to protect? Frankly, that discussion is by-passed by the non-sense of suggesting that there is a right to engage in sexual conduct with anyone — or anything — and that right ought to be protected.

Well, since I didn’t mention either the right of gays to get married or the right to engage in sexual conduct in one’s own home, I have no idea what you think has been “by-passed”. This issue simply isn’t relevant to the argument I made. But I’ll gladly engage it anyway. I agree with you that a very key question in the debate over gay marriage is whether gay relationships are ones that the government has an interest to protect. And my answer is a confident “yes”.

There is perhaps a corrolary question that should be asked first. Are gay relationships different from straight relationships in any relevant way that would make them less worthy of legal and financial protection? The only possible answer to this question that might argue against such recognition is the one we hear constantly from those who oppose gay marriage – that straight marriages involve children, while gay marriages do not. But this is false, for many reasons.

First, because a large number of gay relationships already involve children when they start (several hundred thousand families are headed by gay parents, according to figures from the last census). And a large number of gay relationships come to involve children later through artificial insemination, surrogate parenting or adoption. And in all of those cases, the same arguments that people make for the importance of conventional marriages apply just as strongly to gay marriages. For a child being raised by a gay parent, do you suppose it’s better on the whole for them to be raised by a parent who has temporary, transient relationships that don’t last, or by a parent in a committed relationship with all of the legal and financial protections that we automatically grant to straight marriages?

All of the practical arguments in favor of such protections and benefits for straight marriages – that it builds a more secure environment for the child emotionally and financially, etc – are just as true for the children of gay parents. Marriage and the protections that come with it helps to provide a more stable and secure environment for the raising of children, the religious right keeps (correctly) reminding us. Yet somehow that all goes away when it comes to the children of gay parents.

But unless you’re planning to take those children away from their gay parents and give them to straight people – and only the most openly bigoted and backward thinking would still suggest such a thing today – those children are going to be raised by gay parents regardless of whether those parents are allowed to get married or not. So by denying their parents the right to get married, you are only preventing all of those benefits of marriage for the child from being applicable to hundreds of thousands of such children. So yes, I think the state has a vital interest in helping make the lives of these children more stable and secure by allowing their parents to enter into permanent, committed relationships with all of the legal protections that come with them. It will provide a healthier, more stable and more emotionally and financially secure environment for those children.

Well, we don’t protect all relationships. We don’t want cousins marrying and we don’t want to encourage them to have sex. So the burden ought to be on the gay community to justify the assertion that gay relationships are such that the State has an interest in protecting their relationship. Perhaps that burden can be carried — but so far, no one has even attempted because they have rushed to make their cause one of civil rights.

First of all, let’s put to bed this notion that only the “gay community” can justify equal protection for gays. I’m not gay and I’m certainly not a member of the “gay community” (nor, by the way, are most of my gay friends, who find the notion that one can build a “community” based solely on this one trait rather silly), and I’m perfectly capable of justifying the assertion you want justified. Indeed, I just did so a couple paragraphs ago. Second, let’s also recognize that it isn’t an either/or between making a practical argument for gay marriage and a principle or rights-based argument for gay marriage. Those arguments can both be true, just as there were both practical and principled reasons to be in favor of ending the ban on interracial marriages and for black civil rights in general.

Further, gay marriage and the “equal rights” demanded by gays assume that gay relationships are entitled to protection as a basic right. Yet engaging in sex of any orientation is not a basic right.

And how, pray tell, are you deciding what is and is not a “basic right”? And what makes a right “basic” as opposed to….well, as opposed to what kind of right? I would argue that all rights are “basic” and that asking whether one has a “basic right” to do something is to ask the wrong question. The right question is whether the government has a compelling interest in preventing gay relationships or regulating them. In some cases, such as where one of them is underage, the state has the same interest in regulating such relationships as they do in regulating straight relationships. But if you can come up with some compelling reason for the state to have the legitimate authority to prohibit gay relationships between consenting adults, I’d sure like to hear it.

You see, the most basic right of all – the basis of all rights – is the right to liberty and self-determination. Each individual must be free to live their life as they see fit, with the government having only the authority to step in when one’s actions deprive another person of their equal self-determination or from harm against their will. That is the entire basis of the concept of natural rights, upon which our system is based. A gay person is merely living their life by engaging in gay relationships – mutually beneficial relationships for the adults involved, relationships that are every bit as much an expression of who they are as our relationships are an expression of who we are. That right to choose who you want to spend your life with, who you choose to commit your life to, is as fundamental to the pursuit of happiness as anything I can imagine. So no, I don’t think it’s incumbent upon gays to show that they have a “basic right” to make this most personal of decisions of who to share their life with; it is incumbent upon those who claim the authority to interfere with such a decision to provide a compelling reason why they have such authority.

Neither can we base such rights easily on orientation without sexual conduct. If gays are allowed basic rights on the same basis as race, such a view ignores the fact that sexual orientation is not an all or nothing equation. Some persons may well be gay but the latest evidence suggests that there is a continuum of orientation ranging from fully hetero to those who can be attracted by either sex to fully gay. The issue is more complex biologically than the simple comparison with protected categories suggests. So to whom would we extend this right without just saying everyone has a basic civil right to be in relationship with anyone they want? In so doing, we emasculate civil rights.

This strikes me as complete nonsense. In fact, I think it hurts your argument rather than helps it, for the obvious reason that questions of race are also a matter of a continuum rather than a simple yes or no. The races have long intermingled and formed a continuum. There is virtually no such thing, in any large society, as someone purely of one race. So it sounds to me like this is very much an apples to apples comparison. And yes, for the reasons I stated above, there is a basic right to form relationships among consenting adults. Indeed, it’s hard to imagine a right more basic than that.

Further, why should we compare sexual orientation with protected categories like race, religion and gender? Do we protect the relationships of those who want to have sex with little boys? Do we protect those who want to marry their cousins? How about a protected category for those who a-sexually love their horses and want to have special benefits to protect that relationship?

Ah, the tried and true pedophile and beastiality comparisons. This is so idiotic that there’s no point in even bothering to point out the obvious differences. Anyone engaging in such a comparison is either too dishonest or too fanatical to ever be convinced otherwise.

There is however a very sound reason to protect religious beliefs. It is on par with free speech. It is essential to an ordered liberty that respects freedom and requires a justification for the State to interfere with relgious beliefs and those acts that can be accomodated without interfering with essential job functions. Heavy equipment operators cannot smoke peyote while operating that equipment even if they otherwise have a religious belief that smoking peyote is sacred. There are rational limits to religious expression — but where are the limits on gay sexual acitivity?

The rational limits are precisely the same as for straight sexual activity. We regulate heterosexual sex with regard to the age of consent and familial relationships now because there is a compelling interest in doing so; the same would obviously be true of homosexual sex. If that’s not a rational limit on gay sex, then please explain why it’s a rational limit on straight sex. If you can’t, then you’re unwittingly making an argument for incest and pedophilia.

Further, granting such rights would grant the same rights to all room-mates since we certainly don’t want police nosing into a relationship to make sure that sex is really a part of the relationship. So extending such rights inevitably results in trivializing them by protecting room-mate relationships on the same basis as basic civil rights. That is a pretty high price to pay.

Why? Do you not think this already goes on in straight relationships? I know older people who have gotten married strictly for a little financial security. They don’t love one another, they don’t live as though they’re married, but as a practical decision it made sense. This already goes on in straight relationships. Does that trivialize your marriage or anyone else’s? Does it change anything about your marriage or anyone else’s? Precisely what high price do you pay because of that reality?

Comments

  1. #1 Matthew
    June 20, 2006

    I’m pretty conflicted on incest. I can see where it can be a problem, but I’m not sure it’s the government’s place to draw lines which are, for the most part, completely arbitrary. It also neglects partners who don’t have children or can’t have children, and they certainly should be protected the same as everyone else. Mostly it seems like a law built on social taboo, but it also scares me as a potential slippery slope of government control.

  2. #2 Chance
    June 20, 2006

    Further, granting such rights would grant the same rights to all room-mates since we certainly don’t want police nosing into a relationship to make sure that sex is really a part of the relationship. So extending such rights inevitably results in trivializing them by protecting room-mate relationships on the same basis as basic civil rights. That is a pretty high price to

    I may be misunderstanding his argument but it seems to me that room mates would get no rights for the simple reason they are not married. If they where the folks get the rights regardless of whether they have sex or not.

    If a couple gets married they get the rights contained within. If a couple chooses to live together sans marriage they get no benefits. People are free to make the choice. Currently gays lack said freedom.

    Besides many married folks will tell you sex ends when you get marriedanyway:-)

  3. #3 theRidger
    June 20, 2006

    Actually, for what it’s worth, Europe, Canada, and a bunch of states permit cousins to marry (Alabama, Alaska, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Maryland, Massachusetts, New Jersey, New Mexico, New York, North Carolina (though not double first cousins), Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, and Maine with a certificate of genetic counselling.) And of course, if you marry in one of those states and move to one of the others, you’re still married.

    So that’s another straw man.

  4. #4 theRidger
    June 20, 2006

    Also, your relgious rights aren’t really being threatened by allowing others to get married, any more than my not keeping kosher or praying five times a day or wearing a cross threatens them. I mean, really, are they? Is someone going to force you to marry someone of your own sex? If your religion doesn’t want women to be church leaders, is the election of a woman bishop violating your rights? If your religion wants the “races kept separate as God intended”, should we prohibit interracial marriage? Come on – that one’s a non-starter.

  5. #5 theRidger
    June 20, 2006

    And once more –

    Further, granting such rights would grant the same rights to all room-mates since we certainly don’t want police nosing into a relationship to make sure that sex is really a part of the relationship. So extending such rights inevitably results in trivializing them by protecting room-mate relationships on the same basis as basic civil rights. That is a pretty high price to pay.

    No. Are you being willfully stupid? That’s why we want an actual civil contractual marriage – so that the government doesn’t have to grant “the same rights to all room-mates” – only to the ones who are willing (and anxious) to take on the whole marriage contract.

    You want to keep “room-mates” out of the equation? Make it possible for gays to marry their partners. Then you can deny privileges to all the unmarried you want without being unfair to those who want to marry, but can’t.

  6. #6 theRidger
    June 20, 2006

    umm – possible point of confusion. It’s only Maine that requires genetic counselling. Should have put that in parenthesis like I did the North Carolina comment.

  7. #7 theRidger
    June 20, 2006

    Sorry to be so disjointed … Forgot to add that some states allow cousins to marry with some restrictions (obviously aimed at preventing children (oooo! isn’t that the point of marriage? how can that be legal?):

    Arizona- if both are 65 or older, or one is unable to reproduce.

    Illinois- if both are 50 or older, or one is unable to reproduce.

    Indiana- if both are at least 65.

    Utah- if both are 65 or older, or if both are 55 or older and one is unable to reproduce.

    Wisconsin- if the woman is 55 or older, or one is unable to reproduce.

  8. #8 Clark Goble
    June 20, 2006

    I disagree with Blake on this issue. But I think the issue about religious rights being threatened arises with whether religions can discriminate over their recognition of homosexual marriages. i.e. is there a conflict between what a religion can recognize and the state determining what marriages are or are not recognized.

    The traditional answer to this is simply to say religions don’t have to recognize gay marriages. But in many ways they do. Religions will have to provide services in any hiring they do and in any services they provide in such a way that they recognize marriages. Indeed that appears to be the whole point of state sponsorship of marriage. To ensure by force certain performances by the public.

    Now it would seem to me that a more Libertarian perspective ought be to get the State entirely out of the marriage business entirely. Make it purely an issue of private contract law. But the problem there would be things like laws forcing businesses to given services to the spouses of employees. All of this though clearly is a kind of “unfunded mandate” by the State. It’s one thing if a private company decides, as a matter of negotiation with employees to do this. It seems an other when the state forces it.

    I’m no Libertarian mind you. But it is interesting how many Libertarian oriented blogs I’ve noticed that seem to see no inherent problem with the state imposing by force how we ought accept marriages.

  9. #9 theRidger
    June 20, 2006

    Churches already have to accept marriages they don’t approve of, though, Clark, in the way you’re speaking of. They have to accept civil marriages, where no church is involved at all. They have to accept mixed marriages, childless marriages, remarriages of non-annulled-married folks …

    What we need is a clear separation between the civil contract and the religious ceremony. Maybe civil unions for everyone and extra, non-state-recognized religious marriages for those as want one?

  10. #10 Clark Goble
    June 20, 2006

    That’s my point. The reason I think the strength of argument is on the gay marriage side (whether you agree with it or not) is because the state already is involved in forcing people to accept marriages and provide services based on that recognition.

  11. #11 theRidger
    June 20, 2006

    Ah. Sorry – it’s been a looonng day.

  12. #12 Ed Brayton
    June 20, 2006

    Clark Goble wrote:

    The traditional answer to this is simply to say religions don’t have to recognize gay marriages. But in many ways they do. Religions will have to provide services in any hiring they do and in any services they provide in such a way that they recognize marriages. Indeed that appears to be the whole point of state sponsorship of marriage. To ensure by force certain performances by the public.

    I guess I’m not clear on what a religion or a church would have to do in terms of recognizing gay marriages. Certainly no one suggests that they will have to perform gay marriages. There is some question over whether someone who owns a business could, for example, refuse to perform services for a gay wedding (like catering or printing services), but that’s not really germane to the question of whether there should be gay marriages. The same is true of someone who owns a business but objects to any number of marriages now – interracial, interfaith, marriages involving divorced people, and so forth. So it’s really a separate issue, and one could certainly argue that the solution to that is to change the law so that no business is forced to take business that they have a moral objection to.

  13. #13 Chance
    June 20, 2006

    They have to accept civil marriages, where no church is involved at all. They have to accept mixed marriages, childless marriages, remarriages of non-annulled-married folks

    This is a somewhat mistaken post. Protestant churches accept the civil marriages as they view marriage as a contract . As to the acceptance of non-annulled marriages in Protestant churches it is unnecessary as divorce ends the marriage. Annullment is a catholic undertaking and frankly less than rational.

    To me this is the real cost of religion. Not the wars and such but the daily million paper cuts it forces onto people. Imagine being a person who suffered the tragedy of divorce for whatever reason only to find love and a fresh start with someone else only to find a religious bigot not wanting there business. Now in America this is unlikely unless you happen to be gay.

    And it is no less sad.

  14. #14 kehrsam
    June 20, 2006

    You covered quite a few topics there, Ed, which is one reason the gay marriage debate is so complex and fractious.

    1) The argument about there existing a spectrum of sexuality and therefore we should not recognize gays as a class is just weird. Anthropologists have long since pointed out that — unlike the vast majority of species — humans have an unlimited sex drive, at least as teenagers. There is a strong evolutionary component to this, as human social patterns associated with manipulation of sex allowed for increased success of the group. Depending on circumstances, this may lead to lots of differing sexual structures.

    The result is that social evolution has always featured ways to manipulate sex to achieve societal goals, the same as with food. The pro-MPA folks are simply wrong when they claim that marriage in its current form is an historical universal. Yes, it is true that society has always needed a man and woman to come together to produce the next generation. However, there are plenty of examples of cultures in which men, women, or both undergo lengthy periods where the only sex is homosexual, or, like ancient Greece, where both are enjoyed simultaneously.

    The difference between modern society and past centuries is not sexual desire but freedom: We are now rich enough to support relationships which are not self-supporting through the production of cheap labor (kids). My Great-grandfather needed all 12 kids to work his farm. Today, as the cost of raising a child skyrocket, the advantage is actually with the “non-productive” relationship. We should expect to see more gay relationships, not fewer, strictly through economic analysis (and gays are now one of the wealthiest demographics — because they don’t have kids!).

    2. Following from the first point, we should understand why conservatives are mistaken on this subject: Since it has always been economically unfeasable to engage in a long-term homosexual relationship in Western nations, we should not be surprized that gay relationships are a recent development except among the wealthy. This leads directly to…

    3. The biggest misunderstanding going on in this debate is the mistaken notion that law governing socially-dependant variables is unchangeable. Aside from basic rights, law is properly a response by the society to manage personal and impersonal relationships in a manner which derives the greatest benefit to society while leaving as much individual freedom as possible.

    Ironically, the best example of this in the last 50 years is divorce law. Divorce was difficult last century because it really didn’t matter how well the couple got along; if 12 children were required, you did what was necessary. One of the things wealth has bought us is the ability to afford romantic love (this is a wonderful development).

    As the economic and social ties were released, it became impossible for society to trap persons in hopeless reationships, the same as jury nullification gradually brought about reform of homicide law. This despite the tremendous collateral damage as a result of broken homes and a severing of the economic partnership that still forms the basis of marriage.

    So I would argue that the recognition of gay marriage is merely the natural result of law catching up with culture: The relationships already exist, the only real question is whether we will recognize them, thus giving them the same protections as regular marriage, or whether we will continue to impose extra liabilities to try and discourage the practice. In other words, it is the pro-MPA crowd who are attempting social engineering here!

    4. As contentious as things now stand, this is very much a generational conflict, and the future is much brighter for recognition of gay unions.

    I attend a very conservative Baptist church, and there is no question that the current pastor will never accept gay unions. This is not for any of the arguments which Blake tries. Rather, he does not believe that gays should even exist, much less be covered under the law.

    But he is now 61 years old, and that comes into play as well. I expect within 20 years the issue will be as dead as Loving v Virginia is today.

  15. #15 Blake
    June 20, 2006

    Ed: Your response is exactly what I expected — lots of self-superior ad hominems and avoiding the real issues. First, you break your own rules of civil discussion that I had to certify I would obey before signing onto this blog: “let’s recognize that even if everything he says is valid, it does not change the fact that when religious people make an argument against gay rights as “special rights” they are being hypocritical and incoherent.” That response is called an ad hominem. It accomplishes nothing to call names except to expose your failure to engage civilly.

    So let’s see if your responses hold any water. First, you don’t show any State interest in gay marriages per se. You give the old kennard: gays can adopt and have artificial insemination so we have to protect those children. You of course by-pass the critical issue as to whether gays ought to be able to adopt in the first place. Without that discussion, you beg the question (your second glaring logical fallacy in two paragraphs). But let’s talk about that. It is of course a glaring distinction that gays cannot naturally have children. If everyone were gay, the entire human race would cease within one generation. That’s a pretty big distinction and shows why the State has a compelling interest to protect hetero relationships. Now as a pragmatic fact, I concede that that won’t happen;, but it shows why the State doesn’t have an interest in fostering gay relationships per se. It only has an interest in protecting children. However, the State has a further interest in fostering hetero relations that it doesn’t have in gay relationships — the perpetuation of society and the human race. So your response is not about gay relationships but about children and begs the question — again.

    Should gays be allowed to adopt? The evidence is mixed on that issue. However, I believe that we can all agree that a healthy hetero family is preferable to a family where only one gender is modelled. Moreover, show me the studies showing that children in gay relationships are more stable and do better than those in single families. I’ll look for your citation to those studies.

    I don’t advocate taking children away from an established situation; but I do advocate finding out more about the effects of being raised by a gay couple (or gay group) before we allow children to be placed with gay couples. Maybe the studies will show there is no harm: but the studies to date do not have sufficient sampling sizes and we need longitudinal studies not mere anectdotal evidence from gay-rights advocates in the APA.

    Ed says: “And how, pray tell, are you deciding what is and is not a “basic right”? And what makes a right “basic” as opposed to….well, as opposed to what kind of right? I would argue that all rights are “basic” and that asking whether one has a “basic right” to do something is to ask the wrong question. The right question is whether the government has a compelling interest in preventing gay relationships or regulating them. In some cases, such as where one of them is underage, the state has the same interest in regulating such relationships as they do in regulating straight relationships. But if you can come up with some compelling reason for the state to have the legitimate authority to prohibit gay relationships between consenting adults, I’d sure like to hear it.”

    As I suspected, you don’t have any notion of what could ground a basic right. Well, I do — such a right is essential to protect an ordered society and foster the well-being of its inhabitants. But you have shifted the discussion here. You are asking for reasons that the State has to stop gays from having sex — so far as I know, it doesn’t have any. But that is a very different question that whether the State has an interest in extending the protection of marriage to gay couples. The issue of the State prohibiting gay sex is not the relevant issue because you are arguing for rights to be extended; not for jsutification for stopping conduct. The fact that you fail to make this distinction shows why your thinking is so muddled on this issue. Further, not all rights are basic, contary to your assertion . I have a right to drive a car, but I don’t have a right to drive the car regardless of age or past driving record. That right is not basic.

    Second, you ignored the argument that gays can now achieve everything they seek thru contractual relationships. You haven’t identified anything that cannot be accomplished thru contractual relations rather than taking the drastic step of establishing basic civil rights. This is an important issue because establishing basic rights will impact other basic rights. The issue is momentous because it entails that those who disagree with you may have federal funds cut off, tax exempt status denied and their own basic right to voice their opinions silenced. Just last month, after over 100 years of providing adoptions, Catholic Charities shut its doors in Mass. because the State mandated that it had to do gay adoptions. Rather than permit adoptions to the extent consistent with Catholic beliefs, the State mandated that Catholic Charities give up its beliefs and do gay adoptions. So Catholic Charities got out of that business rather than compomise its beliefs. This is one example of how recognizing gay relationships as basic civil rights impacts those who disagree. So the cost is truncating religious and free speech and free exercise rights — and that is a very high price to pay indeed.

    Moreover, you don’t disagree that gay marriage would trivialize marriage; you argue instead that it is already trivialized. In fact, marriages can be annulled when they are not consummated and the State has no interest whatsoever in promoting room-mate relationships. Much less do we all have an interest in paying much higher premiums into an insurance and benefits system that it already on the brink of collapse to foster such banal relationships. It can happen now that heteros scam the State, but we ought not set ourselves up for it further. Frankly, this is just a poor argument that argues that two wrongs make a right.

    Ed says: “Ah, the tried and true pedophile and beastiality comparisons. This is so idiotic that there’s no point in even bothering to point out the obvious differences. Anyone engaging in such a comparison is either too dishonest or too fanatical to ever be convinced otherwise.”

    Once again, you violate your own rules of engagement in civil discourse for this blog. The point I was making was obviously that the State doesn’t simply protect all relationships and these relationships are not protected — indeed, the State has an interest in discouraging them. Note how you ducked the real issue and once again called names and engaged in an ad hominem attack. Is this what passes for intelligent discussion here? So once again — the State doesn’t have an interest in protecting room-mate relationships. To argue that it already does so inadvertantly is beside the point and a misdirection. Gay relationships are on par with room-mate relationships. Therefore, the State doesn’t have an interest in extending protection beyond contractual protections that persons can enter freely without the State mandating them at the expense of other interests. How did you miss that argument?

    Nothing you have said argues in favor of extending the protections of marriage and the imrimpatur of the State on gay couples. Since gays already pair off and engage in sex without State approval, marriage means nothing more than the Good Housekeeping stamp of approval in this arena. Since gays can already achieve eveything they seek thru contracts, the cost of extending such rights far outweighs the State’s seal of approval.

  16. #16 Spike
    June 20, 2006

    What cost? Blake said, “Since gays can already achieve eveything they seek thru contracts,…” Well, so can heterosexual couples. So Blake made an excellent argument for dispensing with State-endorsed marriages completely!

  17. #17 Chance
    June 20, 2006

    So Catholic Charities got out of that business rather than compomise its beliefs. This is one example of how recognizing gay relationships as basic civil rights impacts those who disagree

    Tht doesn’t make the catholic action correct. Perhaps their beliefs are wrong and the state is correct. It reminds one of taking the toys and going home.

    Moreover, you don’t disagree that gay marriage would trivialize marriage; you argue instead that it is already trivialized. In fact, marriages can be annulled when they are not consummated and the State has no interest whatsoever in promoting room-mate relationships. Much less do we all have an interest in paying much higher premiums into an insurance and benefits system that it already on the brink of collapse to foster such banal relationships. It can happen now that heteros scam the State, but we ought not set ourselves up for it further. Frankly, this is just a poor argument that argues that two wrongs make a right.

    So essentially your arguing that any marriage that doesn’t include sex isn’t a marriage. How freaking bizarre. My vote for the dumbest paragraph I’ve read on the internet. And then calling these marriages ‘banal’. Please explain how these sexless marriages cost us insurance money?

  18. #18 kehrsam
    June 20, 2006

    Blake, I appreciate your comments, but have to take issue on a number of points.

    1. The state has precisely the same interest in gay marriages as in others: To provide stability to families, both those with children and without. Marriage not just involves children, but also property, income, and literally a thousand other issues. If all society wished to accomplish by law was to ensure the proper raising of children, we would not allow marriage to childless couples or poor people. As I pointed out earlier, society uses sex to promote cohesion and stability, in many different ways. Why this should be good for straights and not gays is a point that has not been answered.

    2. Virginia has passed a law that it will not recognize any contract that seeks to approximate marriage or civil union. So there goes that argument.

    3. The Mass Catholic Church Adoption Services issue is not that the state is forcing its ideology on the Church: The Church can continue to pursue adoption policies that exclude gays if it wishes, just without state funding. They chose not to go that route. A similar situation did not shut down Bob Jones University. Accepting state benefits implies accepting the state’s rules for the use of those benefits.

    4. How does wanting to join an institution “trivialize” it? Are you doing something to keep J-Lo from trivializing the institution? This is simply flatus vocus.

    Lots of hetero couples choose not to marry. So what? The trend in Europe is for couples to only get married when they are getting around to having kids. Why should the law not change to account for new trends?

    Your argument seems to be that NO gay relationship is as stable as the AVERAGE hetero relationship, and hence not worthy of state protection. This, obviously, in not true. Further, you are undercutting your earlier argument that the only reason the state recognizes any marriage is for its own purposes, not as a means of providing the Good Housekeeping Seal of Approval, but because it is socially advanmtageous to do so.

  19. #19 Clark Goble
    June 20, 2006

    (Too bad comments aren’t numbered so you can refer to explicit points — hopefully names will do)

    Spike, I think the arguments for getting the State entirely out of the marriage business are extremely strong. My personal feeling is that State involvement in marriage is inherently an issue of social engineering and I fundamentally don’t think the State ought do that. However I’m also pragmatic enough to recognize that this will never happen if only because the two majorities in the debate (the strongly pro-traditional marriage and strongly pro-gay marriage sides) want the state involved because fundamentally both sides want social engineering.

    However once you accept the idea of social engineering then it really becomes the will of the people over what outcome they wish to impose. The pro-gay or pro-tradition sides can make all the rational arguments they want. But it’s irrelevant. If the State is social engineering then it will be the general aesthetic of the people that will decide. I think the pro-gay side have the stronger arguments but ultimately it doesn’t matter. There is a generational gap over acceptance of homosexual relations so the rising generation accepts gay unions more. However one must also note that conservative religion seems to be growing in numbers and they certainly are breeding faster. I suspect it a foregone conclusion that the US will accept gay marriages eventually (although not for a few decades). But it is possible that the nation will become more socially conservative.

    The point being that once you accept social engineering as a given good you really put yourself at the mercy of these forces that are ultimately issues of dogma and aesthetics.

  20. #20 Clark Goble
    June 20, 2006

    Chance and Ed, Blake touched upon some of the religious freedom issues I was going to raise. While I don’t agree with everything Blake says, I think one has to acknowledge that recognizing gay marriages will have the State forcing religious bodies to either abandon their doctrines in practice or get out of such things as schooling, adoption, and other actions.

    Now those who think the Churches wrong won’t mind this. That’s the point of social engineering. Instead of having a nation of relatively free individuals who can associate, rightly or wrongly, as they wish, we end up with a State deciding what is right or wrong in associations and forcing everyone to be good. While I’m no Libertarian I admit that the thought of that is rather scary.

    All I can suggest is that those so willing to take away religious liberties be aware that the power may be on the other side and others may take away your liberties for what they perceive to be good. It’s very hard to make ethical arguments “objective.” Ideally we should maximize our freedoms as much as possible. When we move beyond freedom into ethics by force then the law of unintended consequences looms large.

    Further, one shouldn’t be surprised that religious bodies become quite activist if there is a good reason to think that their religious liberties will be infringed. That may have its own consequences and unforseen implications.

  21. #21 kehrsam
    June 20, 2006

    Clark, I have to disagree with your analysis. How does the state acknowedging a marriage not recognized by a church force that church to “recognize” anything?

    The Catholic Church has not abandoned any of its doctrines just because the state recognizes marriages between previously married persons, or did I miss something? Trust me, my home church will never recognize a gay couple as members, at least not in my lifetime. They will be under no mandate to do so.

    Where the religion chooses to be a part of the world, accommodations will be required: This has always been so. The majority of the children who attend my church’s daycare are from single-parent families, althought he church is for two-parent families: You learn to live with it. Religion is about finding ways to cope with reality; any transcending is at the spiritual level, not the practical.

  22. #22 Ed Brayton
    June 20, 2006

    Clark Goble wrote:

    Chance and Ed, Blake touched upon some of the religious freedom issues I was going to raise. While I don’t agree with everything Blake says, I think one has to acknowledge that recognizing gay marriages will have the State forcing religious bodies to either abandon their doctrines in practice or get out of such things as schooling, adoption, and other actions.

    You’re going to have to be more specific as to what specific things churches are going to have to do that they would object to. In many such cases, I am on record as favoring RFRA-style exemptions from such laws as long as it does not destroy the goal of the law in so doing (in the case of Catholic Charities and gay adoptions in Massachusetts, for example, I argued that they should give them an exemption from the law and allow them to continue to facilitate adoptions and send gay couples to other adoption agencies). I can’t think of any other situations in which this would affect a church. Again, no one is suggesting – and I would strongly oppose – mandating that churches be forced to perform gay marriages.

  23. #23 Chance
    June 20, 2006

    Clark,

    I find your argument wrong for this reason:

    the State forcing religious bodies to either abandon their doctrines in practice or get out of such things as schooling, adoption, and other actions.

    The state is doing no such thing. If the religious bodies do this they do it on their own accord. There own decision. If they did it for interacial marriage and the roofs didn’t fall in why here. Alternatively they can carry on as they wish just minus state funding. They still have their freedom.

    relatively free individuals who can associate, rightly or wrongly, as they wish, we end up with a State deciding what is right or wrong in associations and forcing everyone to be good.

    No one is preventing anything. The state decides which liberties every citizen is entitled to and if there is any reason to prevent one from having the same liberty as another. They are not forcing a church to do anything.

    so willing to take away religious liberties be aware that the power may be on the other side and others may take away your liberties for what they perceive to be good.

    I find this comment ironic. The gays seeks nothing in the way of reduced liberty fr others. But the ‘other’ side seeks to prevent them from having said liberty. There are no religious liberties being infronged upon here. If two guys or girls marry it willnot stop me from churching as I see fit. It won’t affect me at all.

    one must also note that conservative religion seems to be growing in numbers and they certainly are breeding faster. I suspect it a foregone conclusion that the US will accept gay marriages eventually (although not for a few decades). But it is possible that the nation will become more socially conservative

    Nope. It will pass and soon. The USA despite the blatherings of the fundies is becoming much more deistic in nature. A general spirituality.

    I suspect this is the end result of having so much religious competition. It brings folks into churches but also makes folks aware that each groups claims contradictory ideas. The end result is people believe in God but not dogma and doctrine.

  24. #24 Blake
    June 20, 2006

    Spike: I actually adovocate for the State getting out of the marriage business and leaving it as a religious function. I believe that the State involvment trivializes marriage — with divorce rates being exhibit #1.

    Chance: I would argue that the State has an interest in fostering sexless hetero marriages to the extent it: (1) promotes hetero marriage in general; and (2) many couples don’t believe they can have childen and then later can have children and we have an interest in protecting children and the potential for them by insuring that the relevant protections are in place. Such potential doesn’t exist for gay couples. So I list your comment as the most obtuse statement on the internet. Your reasoning suggests that the State must protect and promote room-mate relationships — and that truly is banal.

    Kehrsam said: “The state has precisely the same interest in gay marriages as in others: To provide stability to families, both those with children and without. Marriage not just involves children, but also property, income, and literally a thousand other issues. If all society wished to accomplish by law was to ensure the proper raising of children, we would not allow marriage to childless couples or poor people. As I pointed out earlier, society uses sex to promote cohesion and stability, in many different ways. Why this should be good for straights and not gays is a point that has not been answered.”

    You are correct that marriage addresses other interests including property, and “income” — but all of these issues can be addressed thru contracts and wills and no special marital status is needed. You’re not suggesting that gay couples can’t provide for conveyances of property or receive income unless they are married, do you? Further, the Virginia law will be struck down under the contract clause.

    Further, you are simply incorrect about Catholic charities — they were not relicensed unless they did gay adoptions. There contract would be terminated unless they did gay adoption. It wasn’t a matter of funding. See here: http://www.ccab.org/letter_to_donors_03.20.06.pdf

  25. #25 kehrsam
    June 20, 2006

    And see here, Mr. Blake. http://www.boston.com/news/local/articles/2006/04/15/church_units_not_penalized_for_refusing_gay_adoptions/

    There was no reason for the Agency to stop adoptions other than political posturing.

  26. #26 Chance
    June 20, 2006

    Blake,

    If I choose to marry a woman for whatever reason. Choose not to have children but wish to enjoy the company and benefits finacially and socially of marriage that is perfectly acceptable in a free society.

    What you call room-mate marriage is anything but to millions of people. In fact it’s downright insulting. People marry for many reasons. Not any necessarily more valid than others. And yes I think room-mate marriage is better for society than a lack of such marriages.

    promotes hetero marriage in general; and (2) many couples don’t believe they can have childen and then later can have children and we have an interest in protecting children and the potential for them by insuring that the relevant protections are in place

    Not everyone marries for children. Not everyone wants children whether they can have them or not. These people should have every benefit bestowed upon them as those who do wish these things. It seems to me that your argument for marriage as a children only enterprise is a little naive’.

    You are correct that marriage addresses other interests including property, and “income” — but all of these issues can be addressed thru contracts and wills and no special marital status is needed

    But why address them through these means when a marriage will do just fine?

  27. #27 kehrsam
    June 20, 2006

    Further, are you (Blake) suggesting there is no difference between receiving title through probate and getting it through right of survivorship in a tenancy of the entirate? One does not require a new deed, nor can it be challenged in court. Guess which is which.

  28. #28 Ed Brayton
    June 20, 2006

    Blake wrote:

    Chance: I would argue that the State has an interest in fostering sexless hetero marriages to the extent it: (1) promotes hetero marriage in general; and (2) many couples don’t believe they can have childen and then later can have children and we have an interest in protecting children and the potential for them by insuring that the relevant protections are in place. Such potential doesn’t exist for gay couples. So I list your comment as the most obtuse statement on the internet. Your reasoning suggests that the State must protect and promote room-mate relationships — and that truly is banal.

    But that already is the case with lots and lots of straight marriages now. There are lots of loveless, sexless, roommate-style marriages among straight people now and no one thinks that this harms anyone else’s marriage, or diminishes the “sanctity” of marriage, or does any other bad thing. And as I pointed out, there are over half a million families headed by gays already, so doesn’t the state have the same interest in making sure those protections that are good for children are in place there as well? Or does the fact that their parents are gay suddenly mean they don’t deserve or need such protections?

    As far as the argument that the ends of marriage can be achieved through private contract, given that the state has the same interest in the protection of both types of relationships – which you have not attempted to dispute so far – why should they treat gay relationships differently and require gay couples to spend what could be thousands of dollars to have lawyers draw up contracts to do what the law does automatically for straight couples?

  29. #29 Clark Goble
    June 20, 2006

    Ed, the issue is that one would have to pass religious exemptions. Are such exemptions guaranteed if gay marriage becomes the law? I think religious people are right to be somewhat skeptical. But I do agree that a combination of religious exemptions (appropriately proposed) and then gay marriage laws is a very defensible position.

    Chance, I never stated that the State is right now imposing on religious entities. I was rather saying that it is very likely if gay marriage became the law without exemptions for religion that they would. The most benign form of this would be cessation of government funding for religious universities and charities. In a stronger form one may well have religious bodies being forced to offer benefits to employees who are homosexual and married, despite the religion thinking this unethical.

    I think there are obvious structural parallels to interracial marriages. And many gay marriage proponents have noted this. However I think the big difference is that for most religions homosexuality and marriage are fundamental issues in a way that race simply isn’t. One can of course argue over this. But realize that at that point you are arguing with religious people over what they ought believe. i.e. you’ve changed the nature of the debate. My sense is that most religious people are not apt to be convinced by non-believers telling them what they ought believe theologically.

    You further say, “The state decides which liberties every citizen is entitled to and if there is any reason to prevent one from having the same liberty as another. They are not forcing a church to do anything.”

    Do you not see the inherent contradiction in this? Clearly the state imposes against liberties in this issue. When the state says I have to do something that is an imposition on liberty. It may be an imposition you don’t mind. But let’s not kid ourselves that impositions on liberty are “real” only when they are liberties we care about. That way lies relativism. Even a law against spitting in public is an imposition on liberty. It may be justified. But it is the state, by force, imposing on people a set of appropriate behaviors. Further when the state tells companies what benefits they must give to marriage partners that’s clearly an imposition on liberty. It may be an imposition the general populace agrees with. But once again it is what it is.

  30. #30 Clark Goble
    June 20, 2006

    Kershon, to be fair, it required special legislation to prevent the issue of Catholic adoption. This is like Ed’s point about religious exceptions. The issue from the religious side is probably whether they want to be left to the vagaries of individual States regarding such liberties.

  31. #31 Clark Goble
    June 20, 2006

    (Sorry, should have put my points together)

    Ed, I don’t think it the case that people believe loveless marriages, divorce or worse wouldn’t hurt the sanctity of marriage. Rather I think it the case that many believe legislating on those matters would hurt the sanctity of marriage. So I’m not sure that a fair way to go. From what I can see most religions are pretty opposed to the common failings in marriage. They just think the solution to that isn’t legislative.

  32. #32 Monimonika
    June 20, 2006

    I’m surprised Ed didn’t refute this part yet, but I will:

    Ed says: “Ah, the tried and true pedophile and beastiality comparisons. This is so idiotic that there’s no point in even bothering to point out the obvious differences. Anyone engaging in such a comparison is either too dishonest or too fanatical to ever be convinced otherwise.”

    Once again, you violate your own rules of engagement in civil discourse for this blog. The point I was making was obviously that the State doesn’t simply protect all relationships and these relationships are not protected — indeed, the State has an interest in discouraging them. Note how you ducked the real issue and once again called names and engaged in an ad hominem attack. Is this what passes for intelligent discussion here?

    (sorry if the html doesn’t work)

    I knew when I first read this part of Ed’s post that Blake (or someone similar) wouldn’t get the point, and I was right. Blake, here’s the obvious difference that Ed felt needed no explanation:

    CONSENTING ADULTS

    Got that? Here it is again:

    CONSENTING ADULTS

    With pedophilia, there’s the issue that the younger half of the relationship isn’t mature enough to reasonably know what he/she is really doing and the consequences of his/her actions. This is considered not a problem in a consensual adult relationship (barring mental disorders, and being gay doesn’t count as a mental disorder).

    In bestiality, the very fact that we humans can’t effectively communicate with animals in a precise manner pretty much keeps any human relationship involving non-human animals from being considered consensual. Actions by animals can only be interpreted based on human biases and that is nowhere specific or accurate enough to be sure the animal in question is consenting to the relationship. Until humans can come up with a way to communicate with other animals so that very detailed, precise thoughts can be transmitted and understood, bestiality will forever be outlawed.

    Just in case you missed the obvious:

    CONSENTING ADULTS

  33. #33 kehrsam
    June 20, 2006

    I agree, Clark, but what are the odds that the proper exemptions will not be put in place? The “War against Christ” may be a staple of Fox News, but it is unlikely to affect law any time soon. I’ve been a politician and a lawyer, and I’ve learned not to bet against “God.”

  34. #34 Ed Brayton
    June 20, 2006

    Clark Goble wrote:

    Ed, the issue is that one would have to pass religious exemptions. Are such exemptions guaranteed if gay marriage becomes the law?

    Well, we have the RFRA at the Federal level and in most states. But I have to ask you again to please be specific about what churches and religious organizations will allegedly be forced to do after gay marriage becomes a reality. I can’t think of anything and you haven’t given even a single example.

    Ed, I don’t think it the case that people believe loveless marriages, divorce or worse wouldn’t hurt the sanctity of marriage. Rather I think it the case that many believe legislating on those matters would hurt the sanctity of marriage. So I’m not sure that a fair way to go. From what I can see most religions are pretty opposed to the common failings in marriage. They just think the solution to that isn’t legislative.

    It still makes no sense to argue against the recognition of genuinely loving and committed relationships on the basis that a few of them might be loveless when there are already such marriages on the books and no one thinks that’s a reason to do away with straight marriage.

  35. #35 Clark Goble
    June 20, 2006

    I think Kehrsam that what will happen is in areas where people are less religious (or at least less adhering to more conservative forms of religion) there wouldn’t be the exemptions whereas in the more conservative religious states there would be. Thus the focus on dealing with it at the national level.

    But I do agree that right now most states would create exemptions. The religious university issue might be a tad trickier and less likely to garner public support. Just a guess mind you.

    However my basic view is just that having any government involved in social engineering is a bad thing. So I’ll stick with the position that the arguing by both sides over what form of social engineering is best is misplaced and apt to increase infringements on liberty. I wish I knew of a practical way to get public support for getting the State out of the social engineering business.

  36. #36 Chance
    June 20, 2006

    The most benign form of this would be cessation of government funding for religious universities and charities

    So? If they want to be on the public dole then personally I feel they need to get in line with all other organizations receiving public funding. That is only just. To give them special treatment because of unfounded and inherently irrational beliefs is simply irrational.

    But realize that at that point you are arguing with religious people over what they ought believe. i.e. you’ve changed the nature of the debate. My sense is that most religious people are not apt to be convinced by non-believers telling them what they ought believe theologically.

    It’s not just non-believers. And it never hurts to inject reason into a discussion in any event. Hiding behind ‘faith’ is neither respectful or rational. People should be able and perhaps it is best if they are made to defend their position. Often times it leads to a change of heart.

    When the state says I have to do something that is an imposition on liberty.

    The stae is not doing anything other than allowing a citizen to exercise the same activity as another. It is not imposing anything. I just don’t see how people see this as an imposition.

    That way lies relativism.

    I prefer provisional ethics.:-)

    Even a law against spitting in public is an imposition on liberty. It may be justified. But it is the state, by force, imposing on people a set of appropriate behaviors.

    Yes but it is not denying a particular subset of the nation a liberty shared by the rest. It is an across the board action. I think your analogy fails here.

    Further when the state tells companies what benefits they must give to marriage partners that’s clearly an imposition on liberty.

    In an across the board sense I agree with you here. BUT again, it is irrational to give such benefits to some while denying them to others.

  37. #37 Blake
    June 20, 2006

    Monimonika: Are you just incapable of understanding the distinction! Not all relationships are protected as a basic right. Is that so hard?

    Room-mates.

    Let me say it again.

    Room-mates.

    I am not arguing that gay sexual relations are like pedophilia or bestaility or anything else except in this respect: these are all relationships that the State doesn’t have an interest in fostering so not all relationships are basic rights. Here, let me say it again:

    Room-mates

  38. #38 kehrsam
    June 20, 2006

    Clark, I appreciate the feedback. However, my contention is not that law will force anyone to do anything, but, rather, that law itself is the recognition by society of changes that have already happened.

    Thus, a Catholic university (say) already knows when it is swimming against the social tide. That is not going to change.

    There is no protection (currently, or proposed) for sexual orientation as a Federally protecteed class. Therefore, Notre Dame could avoid the problems you propose by simply firing everyone who applied for spousal benefits who indicated that the spouse was of the same sex. It’s Draconian, but legal, and that is not about to change.

    So who really is under the gun in this debate?

  39. #39 kehrsam
    June 20, 2006

    Blake: Why do hetero roommates qualify for protection but not homosexual? Or am I missing something?

  40. #40 Spike
    June 20, 2006

    Blake – Except marriage is not the sole property of religion. Never has been, never will be. And governments stuck there nose in the marriage business long, long, ago. Long before divorce rates began to increase.

    Your analysis of marriage as a way to protect family relationships is off base as well. The main reason for marriage has been to protect property-transfer relationships. In terms of building up property, marriage has been the main tool for sanctioning the transfer of wealth from one family to another. In the case of property division, if every (literal) bastard had the same legal claim to the land as every child of marriage, the property would be divided down to nothing quite quickly. So the government has protected inhertance by the “legitmate” heirs and the rest were out of luck.

    It hasn’t been just wealth that has allowed more options for romantic love, but changes in the laws that eased the transfer of property via sales contracts rather than family ties.

    Nowadays, even when folks get married, they still have to put both names on most contracts if both people want rights in those contracts (making distinction for tenants in common, etc.)

    By the way, if you’ve ever studied how badly the state treats your family if you die intestate (without a will) you will run down to your lawyer’s office tomorrow. ESPECIALLY if you have children.

    So, having explicit contracts, including wills, trusts, medical directives, and guardianship agreements, is much better than relying on what your state will or won’t enforce in a marriage contract.

    But, if you want to marry someone, you don’t need to beg the indulgence of the church.

    So the problem has been solved: Churches do not have to “recognize” homosexual marriages, because a church wedding ought to have no legal binding anyway. And the state only has to recognize homosexual marriages in the realms of sharing of property and employer benefits, health care issues, and guardianship of children.

  41. #41 Clark Goble
    June 20, 2006

    Chance if your position is simply that all discussions over religious liberty ought be decided by public object facts then I think you’ll get little support. I recognize that such movements have in the past been popular. (That was the basis of the secular humanist movement for instance) However in general religious people will, understandably, see such approaches as inherently a threat. That is you are simply saying that their decision in a democratic society ought only count to the degree that it can be publicly demonstrated. Once again I understand why some feel that way. Recognize that most people don’t.

    As to whether there ought be religious educational facilities at all. I understand both sides of the issue. However once again be aware that if your position entails that funding ought dry up for such facilities that many people will inherently discount your ideas. You may not see this as a problem but clearly many will.

    As to whether there are impositions, I’ll just drop it. If you can’t see being forced to do things like not spit or to pay people’s health care as impositions then the linguistic gap between us is so huge as to make communication pointless. As I see it one can defend such matters as justifiable impositions but one can’t simply pretend they aren’t impositions on liberty.

    It’s been my experience that most people tend to see liberty in terms of liberties they want or care about and discount those they don’t as “not really liberties.” It’s unfortunate and is an approach to government that often has rather negative unexpected consequences.

  42. #42 Ed Brayton
    June 20, 2006

    Blake continues to babble about “roommates” like Rainman and Judge Wapner, without bothering to respond to those who point out that there are lots of such marriages among straight people already. And he continues to talk about “basic rights” without responding to the detailed arguments against his claims in that regard in my post above.

  43. #43 kehrsam
    June 20, 2006

    Clark: Amen to your last post.

  44. #44 Clark Goble
    June 20, 2006

    Kershom, are you sure that Notre Dame could simply fire anyone asking for benefits because they are gay?

  45. #45 Spike
    June 20, 2006

    Clark, this is a very clear description of the differences in how people think:

    As to whether there are impositions, I’ll just drop it. If you can’t see being forced to do things like not spit or to pay people’s health care as impositions then the linguistic gap between us is so huge as to make communication pointless. As I see it one can defend such matters as justifiable impositions but one can’t simply pretend they aren’t impositions on liberty.

    It’s been my experience that most people tend to see liberty in terms of liberties they want or care about and discount those they don’t as “not really liberties.” It’s unfortunate and is an approach to government that often has rather negative unexpected consequences.

    That’s the biggest fight, I think. Many people belive that so long as their wishes are being carried out, the costs to others are irrelevant. But they fail to see that restricting, or taxing, or compelling, or regulating “the other guy” eventually comes back on their shoulders as well.

  46. #46 Ed Brayton
    June 20, 2006

    I’m still waiting for someone to tell me what exactly churches and religious groups will be forced to do if gay marriage is passed.

  47. #47 Clark Goble
    June 20, 2006

    “However, my contention is not that law will force anyone to do anything, but, rather, that law itself is the recognition by society of changes that have already happened.”

    Perhaps. And I think that true to a degree. What is interest to me is the liberties of minority groups. i.e. those bucking social changes. For instance I’d argue that anti-sodomy laws were always wrong. Likewise I suspect those favoring homosexual marriage would argue they ought always have been allowed.

    What I’d like to see is that there is a social consensus on liberty even for things that aren’t socially acceptable. Of course I’m enough of a cynic to doubt it will happen. But I’d definitely like to see it more than I do. Perhaps you’d agree. But I do agree that society at large sees nothing wrong with imposing social consensus by force. Perhaps the consequences when the consensus are good aren’t too bad. (i.e. interracial marriage) However I do worry when the consensus aren’t.

  48. #48 Chance
    June 20, 2006

    Clark,

    It’s not that I don’t uderstand you. it’s not that I even totally disagree with you on alot of what you are saying. It’s just that I don’t see preventing a gay couple from getting the same protections and benefits allowed to others as an imposition on others.

    As to whether there ought be religious educational facilities at all. I understand both sides of the issue. However once again be aware that if your position entails that funding ought dry up for such facilities that many people will inherently discount your ideas

    I have no problem with religious educational facilities. Attended one myself. BUT if they expect to be on the public dole. They should expect no special priveleges in relation to anyone else on said dole. If they discount that idea I must wonder about their inherent honesty, fairness, and rationality in a free society. And I think your wrong. People do understand this. More and more every day.

    If you can’t see being forced to do things like not spit or to pay people’s health care as impositions then the linguistic gap between us is so huge as to make communication pointless.

    Well it wouldn’t be so pointless if you would read what I wrote. I wrote:

    In an across the board sense I agree with you here. BUT again, it is irrational to give such benefits to some while denying them to others.

    Essentially if a company is required by law to give it’s married employees said benefit package it is then a restriction on a segment of society to exclude some from that which you are already doing. Now if you want to discuss whether the government should be requiring it at all thats a different story.

    It seems to me the biggest problem is that people on one side seem to think of marriage in a mythical sense akin to fitting a unicorn for hat. Something that never was in effect. In this regard I think Spike hit the nail on the head. Like many things some argue for what they want things to be rather than what they are and always have been.

    There never has been a ‘sanctity’ of marriage. It has always been about property, possessions, inheritance, and children. It is still so for much of the world.

  49. #49 Blake
    June 20, 2006

    Ed: Religious organization will be forced to either recognize gay marriage and gay couples or they may face: (1) loss of tax exempt status; (2) loss of student loans and grants for religious schools; (3) loss of licensing to conduct adoptions and marriages. Do we really want to take away the tax exempt status from religious organizations? They provide by far and away the most charitable support for the poor, for social services and counseling, for adoption and for charitable giving in general.

  50. #50 Clark Goble
    June 20, 2006

    Ed, I thought I had made a post to that extent but can’t find it so it appears to have been lost. I’m about to call it quits for the day and perhaps all the points have now been made so I’ve not much I could say.

    I think the biggest worries are with regards to benefits by institutions to homosexual partners. As I think about it Kehrsam is right that (assuming there aren’t anti-discrimation laws) any religious institution could just fire such groups. So what is left is the afore mentioned issue of charities such as adoption. You mentioned religious exceptions as being able to deal with this. But clearly independent of legislation for exceptions those would be issues of force on religions.

  51. #51 Clark Goble
    June 20, 2006

    To add, one could also argue that religious individuals would have to countenance what they find immoral. So that is an issue independent of the issue of religious institutions. Thus religious individuals might argue that they are being forced to accept and pay benefits for relationships they find immoral.

  52. #52 Clark Goble
    June 20, 2006

    To add, one could also argue that religious individuals would have to countenance what they find immoral. So that is an issue independent of the issue of religious institutions. Thus religious individuals might argue that they are being forced to accept and pay benefits for relationships they find immoral.

    But clearly the argument from the individual is weaker, although it may be very persuasive to some people.

    Chance, one last comment and then I’ll drop it. All you are arguing now is that it isn’t an imposition if it is across the board. That is you don’t think it an imposition to pay benefits to gays if it is already a force of government to pay it to heretrosexual marriages. Once again if you can’t see how that is still imposition I’m not sure what I can say. Just because something is more equitable doesn’t mean it somehow isn’t an imposition. I stand by my position that you’re simply seeing impositions you see as just as not really impositions.

  53. #53 Chance
    June 20, 2006

    Thus religious individuals might argue that they are being forced to accept and pay benefits for relationships they find immoral.

    Then perhaps they will search and ask themselves if in fact they have a rational reason to do so.

    These things have already happened in Europe and the sky hasn’t fallen.

    And in answer to Blake, there are many who would favor revoking the tax except status for religion. I waver on this myself. That churches buy up huge chucks of real estate in my area thus raising the taxes on everyone to support their largess is a problem for me.

    But I see the value in their social services. But if one has enough money to purchase the Compaq center they have enough money to pay taxes and feed poor people.

    And lets not kid ourselves religion is big business.

  54. #54 kehrsam
    June 20, 2006

    Clark: It depends on your conception of what “Law” means.

    My interpretation is that law seeks to keep pace with cultural developments. It does so for two reasons: 1) to contain them and work them into the existing framework of social relationships; and 2) to allow for cultural evolution. Just as natural selection works at the species level, cultural evolution works at the level of human societies: Thos which are more effective at providing food, sex, religion, etc., tend to force out those which are less efficient.

    If you accept this definition, then all law does is recognize relationships which have already been formed, and which the culture is likely to repeat (and hence replicate the culture, where cultural forms take the place of DNA).

    Conservatism has a value, too, particularly in stability, and so conservative cultures have often had an advantage in competition. But where change occurs as frequently as in our current society, conservatism is often a problem (take the Islamic world, as an example).

    Consensus is good, but in a period of rapid change, is highly unlikely. It is a difficult problem, to be sure.

  55. #55 Chance
    June 20, 2006

    Clark,

    Which part of I agree with you are you not reading. I never said it wasn’t. But you take it one step further than that.

    and :

    Thus religious individuals might argue that they are being forced to accept and pay benefits for relationships they find immoral.

    The Protestants might argue that they are being forced to pay benefits to catholics in support of people they find immoral.

  56. #56 Blake
    June 20, 2006

    Ed: No I didn’t fail to respond to your arguments. I simply posted them and for some reason they didn’t appear. I suspected a conspiracy to make sure that my comments didn’t appear and then you could complain about it — but I’m far too mature for that.

    Here’s your problem. I suggested that marriage of hetero couples who don’t have children supported hetero marriage in general. You ignored that. That is sufficient justification. I also said that your position adopts the view that the State has an interest in protecting room-mate relationships and that such a suggestion is absurd. So I take your position to be absurd — the State ought to protect any relationship between consenting adults through marriage if they so choose. But that is just too broad to be taken seriously.

    Further, you are the one ignoring responses. You suggest that gay couples already have children and lived together and they need protection. Really? What from? What does a marriage ceremony give them that they don’t already have the capacity to do thru contracts. You haven’t identified anything. I suggested that gay marriage has a cost and you shouldn’t expect anyone who cares about religion to just adopt your view that religions must knucke under to the recognition of gay marriage or lose their ability to perform adotpions and so forth. You ignored that too and even feigned that it hadn’t been explained.

    I should get extra credit just for recomposing some of what I previously wrote — and if you did delete my prior response, shame on you. If you didn’t — forgive me for jumpting to unwarranted conclusions.

  57. #57 Chance
    June 20, 2006

    Blake,

    Your not really answering Ed’s question.

    1.

    So I take your position to be absurd — the State ought to protect any relationship between consenting adults through marriage if they so choose. But that is just too broad to be taken seriously

    Why? Why should not the state protect these relationships? Don’t just say it’s absurd, give actual reasons. In other words answer the question.

    2.

    Really? What from? What does a marriage ceremony give them that they don’t already have the capacity to do thru contracts.

    marriage has over 1500 benefits. Whyshould it be denied? Why should they need additional contracts when one will do?

    3.

    I suggested that gay marriage has a cost and you shouldn’t expect anyone who cares about religion to just adopt your view that religions must knucke under to the recognition of gay marriage or lose their ability to perform adotpions and so forth

    Saying that religions don’t like it isn’t really an argument at all. The organizations can still perform adoptions just not on the public dole. Either that or come in line with the Constitution if it comes to that.

  58. #58 Rod
    June 20, 2006

    The “roommates” thing is just lame. “Roommates” implies nothing more than two or more people sharing housing. There’s no relationship there to protect. They are not asserting that they are partnering, engaging in a mutually supportive and protective relationship. People have a natural inclination to partner, choosing someone they trust to watch out for their best interests, and whose interests they will protect in turn. Marriage is a legal recognition of that partnership and confers many rights and powers superceding the claims anyone else might make on one of the partners.

    Since same-sex partnerships already exist, they should be able to avail themselves of the same rights and powers. These in no way impedes religious organizations that wish to provide services, unless they wish to discriminate against same-sex partnerships, but still use public funds. The taxes that provide these funds are, in part, paid by people who do not share those organizations beliefs, and indeed by those very same-sex partnerships.

    The responsibilities assumed by one partner when the other is incapacitated relieve the state of having to assume those responsibilities, so it is of benefit to the state to recognize and support those partnerships. I do not see how this impinges on the liberties of anyone who is not a part of the partnership.

  59. #59 Monimonika
    June 20, 2006

    To Blake,

    I’m sorry, but what part of the word “roommates” is supposed to be obviously connected to homosexual relationships?

    Going by the more common meaning of “roommates,” two (or more) people occupy/live in the same room/house. Assuming this is a more-or-less permanent residence for both parties, they can both sign their names on paperwork to show shared ownership of the residence. If one of them were to die, does that mean the survivor gets the rights to the deceased’s possessions contained within the residence? I don’t think so. It’s because they’re just “roommates”.

    Now, if the two people living together were married, things would be different, wouldn’t they? Unless there’s a will involved, it’s pretty much assumed that the surviving spouse will be entitled to a significant portion of the deceased’s possessions. The reason they’re not considered just “roommates” is because they agreed to be legally “married.” Whether the two people were actually in love and were planning to raise children together is irrelevant.

    Now, which is more unacceptable (in general principle)?:

    Two people (who happen to be the same sex) are in love and one of them has children from a previous marriage (which ended with the untimely death of the spouse, so this parent has been going it solo). They can’t marry, even though they are raising children together, love each other, share the same residence, etc, etc. Yet they are to be considered “roommates” only (since why should the state care about so-called “families” that are headed by homosexual parents?).

    OR

    Two people (of opposite sexes) get married to cash in on the tax benefits, even though they will never have children, do not love each other (in fact, they frequently “cheat” on each other), etc., but are to be considered a “married” couple that deserve this “basic right.” Obviously, their intentions on how they use marriage benefits don’t matter at all to the state, do they?

  60. #60 kehrsam
    June 20, 2006

    Blake: You want an example of something that can’t be protected by contract? How about familial rights?

    Currently, if one member of a gay couple is in hospital, does the other have the right to visit? Not if the parents object.

    How about if one dies and the other is not the biological parent of the children. Who has the advantage under state adoption law? Not the other gay parent. How does one remedy this by contract, when contracts are broken by issues of capacity?

    There are countless more issues, even ignoring issues such as tax advantages foregone. How is this all a matter of contract.

    By the way, I see no reason why the Federal right to contract should have supremacy over a state “health and welfare” issue in the Virginia matter. Contract validity is normally adjudicated as a matter of state public policy issues.

  61. #61 Blake
    June 20, 2006

    Chance: 1. I take it to be obvious that the State doesn’t have an interest in marrying room-mates. It is absurd because there is no compelling interest to persuade us to put the resources of tax money and vast costs of protecting such relationships into place. If you believe room-mate relationships ought to be protected, then the burden is not on me but on you to articulate why the State ought to do so.

    2. Benefits are not denied by not conferring marriage. They simply are not extended. Moreover, I am still waiting for someone to point out a benefit of marriage that cannot be procured thru contract — and thus not denied but it is simply the case that the State has not put its coercive force behind such efforts.

    3. Religions have to have state contracts and licenses to perform adoptions and these can be denied as they in fact were for Catholic Charities. So they are not on the public dole — they don’t receive public funds to carry out their charitable missions. To the contrary, they donate billions that the tax-payers would otherwise have to pick up. I do Constitutional litigation — there is a great difference between promoting or fostering something and prohibiting it. Are you suggesting that the religions who disagree with you aboutr gay marraige ought to be held to have violated the Constitution?

  62. #62 nicole
    June 20, 2006

    Further, you are simply incorrect about Catholic charities — they were not relicensed unless they did gay adoptions. There contract would be terminated unless they did gay adoption. It wasn’t a matter of funding. See here:

    Sorry, Blake, but this “unless they did gay adoption” business is incredibly misleading. They did do gay adoption. They had been placing children with gay families since 1987. That’s right, for almost nineteen years. The board of directors fully approved of this. Let me state this one more time: Catholic Charities of Boston was already doing gay adoptions for nineteen years, in full compliance with the law.

    So then what happened? Well, after the child-molestation scandals, which everyone knows came out worst in Massachusetts, the general trend in Massachusetts was back to orthodoxy, to keep the Catholic base happy — since people were abandoning the church in disgust. And it was church officials who decided these gay adoptions were unacceptable, over the objections of the board of directors. In fact, several members of the board resigned because they had been forced into a decision to give up adoption entirely rather than to continue with gay adoptions.

    So, yes, Catholic Charities had to end adoption services altogether because they wouldn’t allow gay couples to adopt. But that was not because of any kind of new legal development. It was because of a law in place since 1987 that they had previously been in full compliance with. It doesn’t have anything to do with gay marriage or any recent political developments other than those within the Church itself.

    Oh, and I probably don’t have to add this, but the children that were given by CC to gay families? They were older, they weren’t white, they had developmental problems, and they tended to have been in the foster system. What a travesty it was to give them to the gays…

    Anyway, here’s a link, as if it matters.
    http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/

  63. #63 kehrsam
    June 20, 2006

    Blake: I just pointed out two such instances. Pay attention.

  64. #64 John T. Kennedy
    June 20, 2006

    Ed,

    Here is the best part of your post:

    You see, the most basic right of all – the basis of all rights – is the right to liberty and self-determination. Each individual must be free to live their life as they see fit, with the government having only the authority to step in when one’s actions deprive another person of their equal self-determination or from harm against their will.

    Unfortunately for the rest of your post it means the state can have no authority to grant any married individuals legal rights, privileges and protections that single individuals lack since staying single doesn’t harm anyone or deprive anyone of equal self-determination.

    By the most fundamental right you’ve identified the state can have no authority at all to regulate or define marriage.

    Therefore expanding the legal institution of marriage to include gay marriage is a move in precisely the wrong direction. None of the legal rights or privileges of marriage are consistent with the basic individual right you’ve identified – the only proper course is to evict the state from marriage.

  65. #65 Blake
    June 20, 2006

    kehrsam: Under HIPPA one person can choose to allow non-family members have access to the hospital room and all medical records by filling out a simple form (at least as simple as anything gets with hospitals).

    The children can be taken care of by a will or special codicil that names a guardian after death.

    As for Virginia’s law regarding contracts and same sex couples — it will easily be revoked under the Contract clause. It is a statute, not a State Const. and the State concern is easily trumped by the Supremacy Clause in any event.

    Indeed, taking special care of children thru contracts is far superior to marriage.

  66. #66 kehrsam
    June 20, 2006

    Funny, Blake, why was it that heterosexuals get married, anyway?

    I don’t know about where you live, but here in North Carolina, wills and codicils have precisely zero legal standing for child custody purposes: Relationship is all that matters, and the Court is not required to even look at non-lineal relationships. Sorry.

  67. #67 Chance
    June 20, 2006

    I take it to be obvious that the State doesn’t have an interest in marrying room-mates. It is absurd because there is no compelling interest to persuade us to put the resources of tax money and vast costs of protecting such relationships into place. If you believe room-mate relationships ought to be protected, then the burden is not on me but on you to articulate why the State ought to do so.

    Room-mates is such a made up issue/term I don’t even know why we are using it.

    Two people choose to marry. It is legal to do so in the USA. They get married. The state then honors this agreement and bestows upon the couple the benefits associated with marriage.

    Now why shouldn’t these two people be married? And the burden is on you Blake, you are making a claim that is different from what is legally allowed in this nation. So make the case that these folks shouldn’t be married. In essense change the law.

    Are you suggesting that the religions who disagree with you aboutr gay marraige ought to be held to have violated the Constitution?

    No, but if they deny service and are on the public dole than they are breaking the law. Plain and simple.

    just because you are a religion doesn’t(or shouldn’t)give one license to sidestep the Costitution.

  68. #68 Monimonika
    June 20, 2006

    Since Blake keeps repeating how “contracts” are supposed to be the solution to everything, can someone make a list of just how many individual “contracts” a gay couple would potentially have to draft and sign just to get the equivalent rights automatically associated with heterosexual marriage? The number of items would surely put things in perspective, whether in favor of Blake or not.

  69. #69 Ed Brayton
    June 20, 2006

    Blake wrote:

    Ed: Religious organization will be forced to either recognize gay marriage and gay couples or they may face: (1) loss of tax exempt status; (2) loss of student loans and grants for religious schools; (3) loss of licensing to conduct adoptions and marriages. Do we really want to take away the tax exempt status from religious organizations? They provide by far and away the most charitable support for the poor, for social services and counseling, for adoption and for charitable giving in general.

    Evidence for this? No one who is pushing for gay marriage that I know of favors such things. Everyone that I have seen would exempt churches from having to perform or recognize gay marriages and no one thinks they should be forced to perform them. When it comes to generally applicable laws like with the Catholic Services adoption issue, the RFRA applies at the Federal level and in most states.

    Ed: No I didn’t fail to respond to your arguments. I simply posted them and for some reason they didn’t appear. I suspected a conspiracy to make sure that my comments didn’t appear and then you could complain about it — but I’m far too mature for that.

    I checked the unpublished comments and there are none from this thread. Sometimes comments do get blocked, but they’re still saved and I can send them through to be published. There are no such comments on this post at all, I just checked. Whatever you think you wrote, you didn’t post it here.

    I suggested that marriage of hetero couples who don’t have children supported hetero marriage in general. You ignored that. That is sufficient justification. I also said that your position adopts the view that the State has an interest in protecting room-mate relationships and that such a suggestion is absurd. So I take your position to be absurd — the State ought to protect any relationship between consenting adults through marriage if they so choose. But that is just too broad to be taken seriously.

    But you’ve completely ignored my substantive argument for why there is a state interest in protecting gay relationships as well – for the very same reasons you want them to protect straight relationships. There are over 500,000 families headed by gays in this nation, with over 1 million children involved in them. If encouraging permanent, committed relationships for straight parents with children is a good thing, then surely encouraging permanent, committed relationships for gay parents with children is also a good thing, and for all the same reasons. Thus, the state has the same interest in protecting gay relationships as they have in protecting straight relationships – encouraging a more stable and secure home for children. Nowhere have you even attempted to answer that argument.

    You suggest that gay couples already have children and lived together and they need protection. Really? What from? What does a marriage ceremony give them that they don’t already have the capacity to do thru contracts. You haven’t identified anything.

    But if you really meant this, it would undercut your argument for why straight marriages deserve state protection. Why should we recognize marriage at all if the same benefits that you say are so important can be gotten through private contracts? Your argument here kills your argument for the importance of state protection for straight marriages.

    I suggested that gay marriage has a cost and you shouldn’t expect anyone who cares about religion to just adopt your view that religions must knucke under to the recognition of gay marriage or lose their ability to perform adotpions and so forth. You ignored that too and even feigned that it hadn’t been explained.

    I am not in favor of forcing churches to recognize or perform gay marriages. No one that I’m aware of favors such a thing. Furthermore, there is no legal basis for this claim. The ministerial exception that governs church policies and exempts them from anti-discrimination law would render any law that did require such recognition from a church to be unconstitutional. And if that isn’t enough, the RFRA covers it as well. It is absolutely false to claim that churches will be forced to perform gay marriages or recognize them as binding. Gay adoptions is a separate issue, but even there the Catholic Charities chose to stop performing adoptions, they were not forced to perform gay adoptions. And in such cases, I favor RFRA exemptions and think most people would as well.

  70. #70 Blake
    June 20, 2006

    Nicole: The State refused to relicense Catholic Charities unless they did gay adoptions. The State of Mass did that because of the Sup. Ct’s decision that gay marriage is a basic right. It was a matter of either being forced to change commitments or abiding by a gay marriage law. That was the cost. You are correct that CC had done gay adoptions previously — but it should have had the right to comply with the Vatican’s more recent directives re: gay marriage and adoptions rather than face being disenfranchized by the State of Mass. For what it’s worth, I don’t agree with the decision by CC — I believe that should have fought it. I don’t agree with the State of Mass. forcing such a decision either.

  71. #71 Rod
    June 20, 2006

    ” Religious organization will be forced to either recognize gay marriage and gay couples or they may face: (1) loss of tax exempt status; (2) loss of student loans and grants for religious schools; (3) loss of licensing to conduct adoptions and marriages. Do we really want to take away the tax exempt status from religious organizations? They provide by far and away the most charitable support for the poor, for social services and counseling, for adoption and for charitable giving in general. ”

    (1) I certainly don’t see how the tax exempt status of a church would be threatened, but that of other religiously affiliated organizations that are operating in the secular sphere probably could be. I would contend that would be appropriate, since the organization would be engaging in politics. How is it charitable to discriminate?
    (2) Then let your churches and related organizations fill the gap. Why should public funds be used to subsidize their discrimanatory practises?
    (3) Churches are already allowed to choose who they will and won’t marry. Adoption is not a religious function, but a legal one. Adoption organizations should be required and ready to follow the law. This does not infringe on anyone’s religious rights, just their ability to conduct their business in an illegal manner.

  72. #72 Ed Brayton
    June 20, 2006

    John T. Kennedy wrote:

    Unfortunately for the rest of your post it means the state can have no authority to grant any married individuals legal rights, privileges and protections that single individuals lack since staying single doesn’t harm anyone or deprive anyone of equal self-determination.

    Nonsense. My statement referred to when the government can prohibit or ban individual conduct. That has nothing to do with whether the government can positively reward behavior (negative liberty vs positive liberty).

  73. #73 Clark Goble
    June 20, 2006

    Monimonika, presumably a person could have a boilerplate contract to deal with all the specific contract clauses. I’m anything but a lawyer but I don’t see that as a major problem.

    Blake, regarding your examples, how do you respond to Kehrsam’s question about whether hiring or firing gays wouldn’t resolve the whole issue. That is if, as Kehrsam claims, one can religiously discriminate against gays (i.e. not hire someone because they are a practicing homosexual) then what problem presumed by gay marriage wouldn’t already be resolved by this? It seems a tremendously strong argument he makes.

    Ed, regarding comments, I noticed a few of mine were lost and then somehow I got logged out so I couldn’t post. I suspect it’s a bug in your blogging software somewhere.

  74. #74 Karl
    June 20, 2006

    I find these arguments to be very similar to the ones on SB about Ev vs Creationism. I think that those in favor of gay marriage need to recognize that all of the arguments given for opposition to it are just rationalizations for what the anti’s don’t want to say directly – THE BIBLE SAYS that homosexuality is bad, and therefore gays should not have rights at all. Everything else is just window dressing.
    Just one further point – about how allowing gay marriage would destroy the institution of marriage. We had this come up locally in a letter to the editor. My wife replied: “I fail to see how allowing two gay people to get married would affect my 46 year marriage.”

  75. #75 Clark Goble
    June 20, 2006

    Kari, I don’t think that fair. I think few of those opposed to gay marriage would today think the State ought make homosexual acts illegal. The problem is that we have a concept, marriage, that is treated as partially religious and partially legal. Thus to change the legality is to change the public religious meaning. I think that ultimately though the issue is over symbolism. With a few exceptions that Kehrsom mentioned (child custody, funerals, perhaps some medical) it seems that the real issue isn’t practical rights. It is the symbolism.

    Even if a civil union was made that gave homosexuals all practical rights married people have vis a vis children, health care, and so forth most homosexuals would want there to be gay marriage.

    And even if there were exceptions put into law to cover all the practical impositions Blake mentioned I suspect most religious people would still oppose gay marriage.

    I think the problem arises because there is a de facto involvement by the State in religion and thus it becomes primarily a religious issue. As I’ve said many times the best solution is to get the State out of the marriage business.

  76. #76 nicole
    June 20, 2006

    Blake, my point about the Catholic Charities was simple: the state did not force the issue. Their license was not revoked because of anything at all to do with Massachusetts allowing gay marriage. The relevant law had been passed in 1987 and dealt simply with discimination on the basis of sexual orientation. The Church forced the issue by getting themselves into a public spat about orthodoxy and conservatism. You say Catholic Charities should have been allowed to comply with the Vatican’s new directives — well first of all the Vatican hasn’t really changed its position on the matter, but more importantly, CC didn’t want to comply, they were bullied into it by the Church itself.
    So, just to reiterate, my point here is that there is no connection between allowing gay marriage and forcing religious groups to place children with homosexuals. Gay adoption is an issue that will have to be dealt with regardless of the gay marriage question.

  77. #77 Chance
    June 20, 2006

    Clark,

    I appreciate your perspective. But don’t you think it justified to at least entertain the notion of changing peoples irrationally held prejudices?

    Symbolic or not if marriage which has always been a contract was coopted into a religious ceremony perhaps people need educated on what it really has been for centuries before any ‘sacred text’ came to be. If it means it loses religious significance for some who can’t handle the truth of marriage’s origins well so be it. what value is a belief if it is so easily trashed by truthfulness.

    And I disagree that most religious people oppose gay marriage. By poll in the USA gay marriage is gaining favor. These people who are becoming more accepting didn’t lose their religion to accomadate this aspect into their society. If your talking about fundies perhaps but they are block-headed on a whole host of ideas.

    If the state leaves the marriage business I think then you’ll have real problems. IMHO.

  78. #78 Monimonika
    June 20, 2006

    Thanks, Clark, for your response. By “boilerplate” I’m guessing you mean a ready-made contract that already has the individual rights (at least near-equivalent to marriage) specified, right?

    If so, nice :) But if such a thing exists, why does it seem so difficult to obtain (based on anecdotal testimonies that I’ve read, so I could be completely wrong here)? If it gives the same kind of rights as a marriage does, why bother distinguishing the two from each other?

    Or is it, “separate, but equal”? (sorry, it was just too tempting…)(*prepares for the predictable blast from you-know-who about how, supposedly, racism against blacks is in no way similar to homophobia*)

  79. #79 John T. Kennedy
    June 20, 2006

    Ed,

    Nonsense. My statement referred to when the government can prohibit or ban individual conduct. That has nothing to do with whether the government can positively reward behavior (negative liberty vs positive liberty).

    Can the state produce positive benefits out of thin air? Every carrot the state has to offer was taken from someone else by way of a stick.

    You’ve also just said that gays have no right whatsoever to legal marriage since they have no more right positive benefits than single people.

    Can you give an example of a positive benefit you think government should grant married people but not single individuals?

  80. #80 Clark Goble
    June 21, 2006

    Monimonika, I ‘m not a lawyer so I can’t speak to the details. As I understand it there are some legislative boundaries that limit what contract can do. Blake, who is a lawyer, seems to reject this. Kehrsam, who I presume has some legal background, expressed what was my understanding. That is that contract law can’t determine child custody nor certain extreme circumstances of control of the health of a person (when they clearly can’t sign the papers Blake mentions) So I definitely think there are some things that need done legislatively and would fully support such changes. If that were done though then I think contract law would not be separate but equal but equal and equal. There would be a terminological difference but no legal difference in any sense.

    As I said I don’t think that would resolve the dispute in the least because the dispute is primarily (in my opinion) about symbols. But it would, I feel, deal with the practical rights.

    John, while I agree with what I see as your point, I think many people do think married people should be given benefits. Those might be declaring dependents on a tax form (which I don’t think roommates can do). It would be requiring that employers provide health benefits for spouses. There are also issues of employers and others providing information. This is typically given to spouses but often is not given to people in unmarried relationships.

    Now the question is whether the government should be involved in all this in the fashion that they do. Clearly most feel they should. I don’t but I’d be the first to admit I’m in the minority. Further with respect to symbols there is the issue of social engineering and promoting certain behaviors. This is the key to Blake’s argument. The big problem I see with Blake’s argument (and I think Ed has made this point well) is that even if we promote heterosexual marriage it is not at all clear why the State doesn’t have some other interest, perhaps different, in promoting stable homosexual relationships. I don’t think Blake has (or perhaps can) make that argument well.

    Chance, I’m all for correcting irrational prejudice. But I believe this should be done via persuasion and education and not force.

    The issue of what came first: marriage as contract or marriage as religious rite is interesting. I suspect one perhaps ought say that the very notion of contract developed out of religion. But I’m not at all convinced that any social or evolutionary “origin” is that relevant for the discussion. I’ll just say that the opposition between the legal and religious seems artificial and is a relatively recent innovation. Perhaps a useful division but not one that can be pointed to as an origin.

    As to opposition to gay marriage, I’m not sure what polls you are looking at. While support for gay marriage is increasing (and probably will continue to increase) I’d say there is probably a fair connection between opposition and religious commitment. But measuring that is probably tricky. (After all some very conservative religious groups don’t necessarily attend church regularly – so I’m not sure how “religiosity” can reasonably be measured – but perhaps some sociologist has figured a way) In any case the polls I’ve seen still have a majority opposing gay marriage.

  81. #81 Chance
    June 21, 2006

    My Clark aren’t you up late. Me also but not for long. Last look in.:-)

    I suspect one perhaps ought say that the very notion of contract developed out of religion.

    No Clark on this one your wrong, dead wrong. It is very clear from looking at historical records that religion was a late comer to this party. It was a property contract and an important one. Religious aspects where added by various cultures along the way. But I may agree with you to a point that it may not be a good starting point in this discussion. But the correct history of the marriage contract would help demystify the argument.

    I’d say there is probably a fair connection between opposition and religious commitment.

    Of course no one is denying that, but in Ed’s recent post he said 2/3′s of Americans now favor legal protection in some form for gay relationships. Now this is not exactly gay marriage but a significant % moving that way. If all these religious folks where so against it I doubt you’d even approach that figure on any measure of legal representation. It just doesn’t add up.

    What it says is that many of those who profess religious belief are simply not conservative about them and those that are just flap the lip louder. Most polls show the US, especially the under 40 US moving towards a general spirituality and away from fundy status.

    There would be a terminological difference but no legal difference in any sense.

    Then why do it just to reinforce anothers bigotry? This I just don’t get. I could live with it but if I was a gay man or woman I don’t know how it would sit with me.

  82. #82 John T. Kennedy
    June 21, 2006

    Clark,

    Now the question is whether the government should be involved in all this in the fashion that they do. Clearly most feel they should. I don’t but I’d be the first to admit I’m in the minority.

    The majority is simply wrong.

  83. #83 Karl
    June 21, 2006

    Geez, I hope that Chance comes back.
    He said “It is very clear from looking at historical records that religion was a late comer to this party. It was a property contract and an important one. Religious aspects where added by various cultures along the way”

    Are you saying that back in 2000BC in the shtetl that marriage was a property contract and not a religious thing?

    As everybody says on these blogs: do you have some references? (links)

  84. #84 Clark Goble
    June 21, 2006

    Chance, I think everyone has now said about all they have to say. I’ll just say that marriage was a part of cultures long before there was a divide between religion and government. Look to the ANE. I’m not sure where you are getting your ideas on this. Presumably you are thinking of more recent European history.

    There is a big difference between favoring protection for gay relationships (something I believe even Blake favors) and supporting gay marriage. To equate the two misses fundamentally the nature of the debate.

    As Karl said, it would be nice for references to your claims. It appears to me that most of what you’ve argued is false.

  85. #85 Blake
    June 21, 2006

    Clark said: “This is the key to Blake’s argument. The big problem I see with Blake’s argument (and I think Ed has made this point well) is that even if we promote heterosexual marriage it is not at all clear why the State doesn’t have some other interest, perhaps different, in promoting stable homosexual relationships. I don’t think Blake has (or perhaps can) make that argument well.”

    I am open to the possibility that my arguments just are not convincing to you; but I believe that you have missed the point along with Ed. Your comment assumes that I must justify the State in not promoting gay relationships thru marriage. Ed’s argument, if I have properly understood him, is: “the State allows heteros to marry and therefore must justify not providing marriage for gays as well because there are no relevant differences.” I respond: (1) marriage is not a fundamental right betowed on all relationships of any kind but rather is a positive benefit conferred by the State and therefore it is not something it has an obligation to give unless there is a compelling reason to do so; (2) it is erroneous to argue that if the State does it for heteros it must also do it for gays because not all relationships are protected by the State; and (3) marriage is essentially meaningless for gays because they can accomplish thru contract what they demand the State undertake to promote their relationships. Therefore, the burden is not on me or anyone else to justify why the State treats gays differently by not performing gay marriages; rather, the burden is on those who claim that the State has an interst in protecting gay relationships just as it does hetero relationships.

    Now I am open to the possibility that this burden can be met. Perhaps gay relationships are more stable if marriage vows are exchanged. The State certainly has an interest in quelling the rampant spread of STDs in the very promiscuous gay community — especially given the millions in tax money and even more in insurance funds that we all contribute to pay. However, I don’t believe there is any eviddence to show that a marriage ceremony does anything to diminish the spread of STDs — and since committed gay couples already do what they will with or without the benefit of marriage, it begs the question to assume marriage would make much difference. Maybe, as Ed says, marriage is necessary to protect children of gay couples. I’ve done some checking and Ed has vastly overstated tghe number of children living with gay couples. Yet the point is still one worth considering. However, it begs another important social issue: should gays be allowed to adopt? Now there are probably gay/lesbian couples who have children from previous marriages so the issue needs to be addressed. But what does a formal marriage offer that common-law marriage doesn’t?

    So I see the burden of showing the justification for gay marriage to be on those who claim the State must extend marriage to gays. I don’t see the fact that marriage is given to heteros so it must be given to gays, as Ed argues, as persuasive because it is a non-sequitur. The State is not obligated to protect all relationships merely because it protects some. So your argument asks the wrong questions and frames the issue in a way that I don’t accept.

    I have also added another argument. There is reason for caution in extending marriage to gays because there is a cost to be paid. Persons have a right to believe that gay sexual conduct is sinful or wrong. They have a right to refuse to promote gay relationships in light of this belief. If gay marriage is recognized as a fundamental constitutional right, then those who hold such beliefs will be denied the benefit of tax exempt status, they may be denied licenses and contracts to perform adoptions and marriages and they may be denied student loans and grants for educational institutions they sponsor. So the price for those who believe that gay sex is sinful, as I do, is a high one. I am not arguing that government should criminalize gay sex or that we should judge those who engage in it; but I do have a Constitutional right to hold such beliefs and that right must be protected. Admittedly, there are competing interests and balancing those interests is not a simple equation — but engaging the non-seuqitur that gays must be granted protections and benefits of marriage if heteros are will not foster an intelligent discussion of these issues. Such a position merely begs the question and ignores the competing considerations.

    I have added another argument. Gays can obtain all of the benefits they seek by marriage thru wills and contracts. Clark is of course correct that there need not be 1,500 contracts — just one contract/will that covers the bases. It has been suggested that No. Carolina doesn’t allow designation of guardians by will. I looked it up and it is simply in error. Where both parents are killed in a common accident, the guardian can be designated; if only one dies then of course the surviving spouse gets the children. If there were only one parent of record, that parent can designate. So we have a much better instrument than marriage to acheive what gays seeks — why not adopt that simple approach instead? It is clear that what theyalso seek is the imprimatur of the State to bless their relationship. Now Clark asks: what about adverse employment actions against gays because of religious prejudice. That is prohibited because religious beliefs, or lack of them, are protected. Further, jobs are not held by couples but by individuals. The mere fact that a gay couple is married does not protect against such job action — only a provision designating sexual orientation would suffice.

  86. #86 Chance
    June 21, 2006

    Are you saying that back in 2000BC in the shtetl that marriage was a property contract and not a religious thing?

    Yes, most definetly. I’m a little suprised by the questions on this. we actually have ancient marriage contracts that predate that period. The Code of Hammurabi gave instructions on marital contracts and divorce. These laws predate the OT.

    If you need a source found more locally as in your own home go look at Deuteronomy in the OT there you will find reference to marriage as a contract and the proper way to divorce sans any religious mumbo jumbo.

    Clark, I don’t know how we keep miscommunicating:

    I’ll just say that marriage was a part of cultures long before there was a divide between religion and government. Look to the ANE. I’m not sure where you are getting your ideas on this. Presumably you are thinking of more recent European history.

    I SAID marriage was a part of culture. Just that it wasn’t originally a religious idea. Religion came into marriage much later long after the practice had been established via contract law.

  87. #87 Chance
    June 21, 2006

    Oh and Clark:

    As Karl said, it would be nice for references to your claims. It appears to me that most of what you’ve argued is false

    No, this isn’t the case. But it is for yourself on this aspect of the conversation. It should also be noted that:

    ‘Marriage was strictly a civil and not an ecclesiastical ceremony for the Puritans in Massachusetts Bay until 1686′

    So even it’s origins in this country carry over the civil aspect before the religious among very religious people. Now does this mean you cannot be correct-no. It just means that all the evidence points to a non religious beginning and one constructed on custom and contracts passing property i.e. the females.

    Here are just a few sources for your reading pleasure:
    Edmund S. Morgan, The Puritan Family: Religion and Domestic Relations in Seventeenth Century New England

    Jack Goody, The Development of the Family and Marriage in Europe, (New York: Cambridge University Press, 1983) pp. 136-138

    John R. Gillis, For Better, For Worse: British Marriages, 1600 to the Present, (New York: Oxford University Press, 1985) pp. 211-217.

    Patriarchy to Partnership from the Middle Ages to the Present (Chicago: University of Chicago Press, 1982);

  88. #88 Clark Goble
    June 21, 2006

    Chance, the point is that you are picking a few communities where the civil/ecclesiatical divide was made and missing that this was an innovation. This wasn’t originally the case. As I said any book on the Ancient Near East should make this quite clear.

    Blake, I understand your argument. The point is that there are other reasons one can easily argue are compelling to make the state involved in promoting stable homosexual unions. This goes beyond the issues of contract law. That, as I see it, is Ed’s ultimate point. Just because all the reasons for promotion don’t match what you see as the reason for the state to promote heterosexual marriage doesn’t mean there aren’t reasons.

    The issue of whether this has to be demonstrated empirically is a fair one. I’d just say that the state has been promoting heterosexual unions without such evidence. So I think the kind of armchair reasoning many are doing is sufficient.

    Regarding the issue of the individual who views homosexuality as sinful. Would you argue that any individual ought be able to fire an employee who is gay simply because they find it sinful? One would hope not. Can one suggest that the individual need not recognize gay marriage but must recognize gay acts? It seems that you are trying to put a distinction that seems very difficult for me to reconcile here.

    It seems to me that the point Kehrsam raised earlier ought apply. Exactly how does one distinguish between homosexual practices and homosexual marriages? i.e. if religions can discriminate based upon acts they feel are sinful where is the problem? It seems to me that you now move towards the individual. Now I fully agree that this is an issue for those conservatives who find gay marriage wrong. But don’t all these people likewise find homosexual acts wrong? How do we distinguish?

  89. #89 Chance
    June 21, 2006

    Clark,

    I think you are missreading me.

    the point is that you are picking a few communities where the civil/ecclesiatical divide was made and missing that this was an innovation. This wasn’t originally the case. As I said any book on the Ancient Near East should make this quite clear

    I’m not picking anything. I’m going to the earlist known examples of what we are talking about. I’m not being the least bit selective. Just following the evidence trail.

    And this trail leads to the fact that marriage originated as a contract between a father and a potential husband. The daughter was property and the contract signified a property transfer and created family bonds. Religion later coopted it and added much pomp,circumstance, and dogma to it.

    There was no divide because religion simply wasn’t involved in this transaction. It was a celebratory event which I guess one could claim is similiar to what religion does but the point being the contract was of primary importance.

    If there is evidence of earlier marriage contracts in other societies I would like to see sources myself. The earliest known marriage contract I know of originates in a bundle of Aramaic papyri, some 2,500 years old. It was found in the ruins of a Jewish Garrison, that had been stationed at Elephantine in Egypt. It documents that the groom landed himself a healthy 14 year-old girl bride in exchange for six cows.

    And not to belabor this further but here is an actual wording of a marriage contract from 2500 years ago as a marriage of purchase:

    Dagil-ili, son of Zambubu, spoke to Khamma, daughter of Nergal-iddin, son of Babutu, saying: “Give me Latubashinni your daughter; let her be my wife.” Khamma heard, and gave him Latubashinni, her daughter, as a wife; and Dagil-ili, of his own free-will, gave Ana-eli-Bel-amur, a slave, which he had bought for half a mana of money, and half a mana therewith to Khamma instead of Latubashinni, her daughter. On the day that Dagil-ili another wife shall take, Dagil-ili shall give one mana of money unto Latubashinni, and she shall return to her place—her former one. (Done) at the dwelling of Shum-iddin, son of Ishi-etir, son of Sin-damaqu.

    contrasted by a marriage of dowry:

    Nabu-nadin-akhi, son of Bel-akhi-iddin, son of Arad-Nergal, spoke to Shum-ukin, son of Mushallimu, saying, “Give as a wife Ina-Esaggil-banat, your daughter, the virgin, to Uballit-su-Gula, my son.” Shum-ukin hearkened to him, and gave Ina-Esaggil-banat, his virgin daughter, to Uballit-su-Gula, his son. He gave to Nabu-nadin-akhi one mana of money, Latubashinni, Ina-silli-biti-nakhat, Tasli-mu, and the outfit for a house with Ina-Esaggil-banat, his daughter, as her dowry. Shum-ukin has given to Nabu-nadin-akhi Nana-kishirat, his slave toward the one mana of money of the dowry, instead of two-thirds of a mana of money, at the full price. Shum-ukin will pay to Nabu-nadin-akhi one-third of a mana of money, the balance of one mana, and he shall receive his dowry completed to one mana in what it lacks

    As you can plainly see these are not religious ceremonies. You can see more ancient writngs and contracts here:

    http://www.fordham.edu/halsall/ancient/mesopotamia-contracts.html#Marriage

    I think that is enough to establish a non religious beginning. Simply because there is nothing earlier known than this.

  90. #90 Clark Goble
    June 21, 2006

    Chance, perhaps the problem is we’re talking about very different things.

  91. #91 Chance
    June 21, 2006

    Haha, yeah I’ve had that thought myself.:-)

  92. #92 Flex
    June 21, 2006

    While this discussion has been focusing mainly on the (supposed) effects on organized religion, there are other facets to this debate.

    Last year our company required all employees to submit marriage certificates and birth certificates for all dependants. This rather unusual request was modifed after several complaints, but the reason for it became clear shortly.

    Previously our company had a rather progressive benefit program. Declared life-partners were eligible for health care benefits, it didn’t matter if they were married or not. There were requirements for a person to be considered a life-partner, but gender was not one of them.

    Starting this year, only people connected to an employee by marriage or as a dependant are eligible for benefits.

    This idea that marriage is strictly religious and not related to any state function provides an easy jusification for companies to refuse partner benefits.

    If we allow one group of consenting adults the priviledges and privations of marriage, all consenting adults should be allowed them.

    Cheers,

    -Flex

  93. #93 John T. Kennedy
    June 21, 2006

    This idea that marriage is strictly religious and not related to any state function provides an easy justification for companies to refuse partner benefits.

    If we allow one group of consenting adults the privileges and privations of marriage, all consenting adults should be allowed them.

    This absolutely contradicts the basic right of self-determination that Brayton identified:

    You see, the most basic right of all – the basis of all rights – is the right to liberty and self-determination. Each individual must be free to live their life as they see fit, with the government having only the authority to step in when one’s actions deprive another person of their equal self-determination or from harm against their will.

    Private corporations do not harm gays by declining to offer them benefits, nor do they deprive gays of equal self-determination. Even if gay marriage were legal Brayton would have to defend the right of private entities to discriminate between gay and straight marriages as they saw fit, to be be consistent with his principle.

  94. #94 Ed Brayton
    June 21, 2006

    And I do. I would not require a company to provide benefits to anyone, gay or straight. Of course, many will choose to do so because it’s good business. In fact, the corporate world has been way ahead of the government in terms of anti-discrimination policies and benefits for domestic partners just because it’s good business and helps them retain the best workers.

  95. #95 John T. Kennedy
    June 21, 2006

    Given that existing anti-discrimination law is not going away soon, do you favor extending legal protection from private discrimination to gays as well?

  96. #96 Ed Brayton
    June 21, 2006

    My feelings are mixed on that question. As long as we have such laws, I think gays, as a group that clearly does face such discrimination, should be treated the same as other groups. But the point of the original post is that the rhetoric of “special rights” is incoherent given that the people making the argument already have the rights they seek to deny to gays.

  97. #97 Flex
    June 21, 2006

    Mr. Kennedy,

    You did notice that I didn’t say that corporations should be required to offer benefits to gay or straight, married or not, couples?

    However, as a society we do require corporations to provide certain benefits to their employees. As an example, we require corporations to maintain safe work places. We require corporations to hire people at a minimum wage.
    I’m not certain that Ed Brayton would ‘have’ to defend the right of business (your ‘private entities’) to discriminate between gay and straight marriage because the principle you quoted is referring to the rights of persons, not the rights of businesses.
    At the very least, it could be argued that the state has the right to request that any business which handles government contracts to recognize domestic partner benefits or not get government contracts.

    On their own, or through the collective bargining power of employees, corporations have offered various other benefits. Including pensions, health care, and the extension of some benefits to spouses and dependants.
    Why would a corporation offer these benefits? To attract better qualified employees and to prevent business shutdown through labor disputes. The health care benefits extended to a spouse or dependant provides a greater piece of mind for the employee and should reduce time away from the job for personal reasons.
    But are employeers required to extend health care benefits to spouses or dependants? Not to my knowledge. Did I suggest that they should be required to extend health care benefits to spouses, dependants or domestic partners? No.

    Finally, the discrimination practised by the company I work for is not between gay marriage and straight marriage. It is between marriage and any other living arrangement. Health care benefits were extended to domestic partners including straight couples. These benefits have now ceased.
    As I understand it, the passage of proposal 2 here in Michigan in 2004 has clouded the entire legal possibility of offering ANY domestic partner benefits. Our company, rather than concern itself with the legality of offering domestic partner benefits, has discontinued them.

    A passage of a proposal here in Michigan has imposed a majority viewpoint on a minority. Private corporations have responded by eliminating benefits they used to provide. This may not be physical injury, but it does mean that unmarried couples who used to be able to get domestic partner benefits have been harmed; they have suffered a misfortune.

    Of course, maybe you’re of the opinion that losing a benefit isn’t harm? Tell that to the people who are losing their pensions.

    Cheers,

    -Flex

  98. #98 John T. Kennedy
    June 21, 2006

    Ed,

    My feelings are mixed on that question. As long as we have such laws, I think gays, as a group that clearly does face such discrimination, should be treated the same as other groups.

    Your preference for equal treatment under the law can’t conceivably trump the fundamental right to self-determination, can it?

  99. #99 Alex
    June 21, 2006

    Gays can obtain all of the benefits they seek by marriage thru wills and contracts.

    No they can’t. One lack of benefit that affects me personally is the fact that you can only sponsor a legal spouse or blood relative for immigration. It is because of this that I am not living in the US right now. Why is it right that I have to choose between my country and my most important personal relationship?

    And here are just a few other benefits that cannot be obtained by same-sex couples through any contract:
    - Inheritance of Social Security or Veteran’s benefits.
    - Extension of 5th amendment rights, allowing them to refuse to testify against their partner in court.
    - In most states, you cannot sue for civil damages in the event that your partner has been killed
    - They must pay Federal taxes on any health insurance benefits paid for by their employer for their partner.

  100. #100 John T. Kennedy
    June 21, 2006

    Flex,

    When you said:

    If we allow one group of consenting adults the privileges and privations of marriage, all consenting adults should be allowed them.

    …I took you to be using “we” in the coercive political sense. You may not have intended that in this case, but I think your latest comment demonstrates that you do routinely use “we” in that sense, as in: “We require corporations to hire people at a minimum wage.”

  101. #101 Flex
    June 21, 2006

    Actually John, I was using ‘we’ in the collective society sense. Of course you’re right, there is small distinction between we = collective society and we = coercive politics. ;)

    Maybe the difference is that collective society is usually unconscious of it’s discrimination, but coercive politics is usually cleary deliberately disciminatory.

    Once collective society has identified discrimination, it’s the people who want the discrimination to remain who are being deliberately disciminatory.

    Cheers,

    -Flex

    BTW, sorry about the formating on the previous post. That’s the problem with trying to be coherent in a comment and reviewing PCB layouts at the same time.

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