Responding to Blake, Part 2

In the incredible flood of comments on yesterday's gay marriage post (they were coming at a rate of one every few seconds for a while there), I missed completely Blake's response to the post. I saw several of his later responses to others, but missed the main one to me. I'm moving it up here so it doesn't get lost in the shuffle. He writes:

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.

First of all, I have no requirements for commenting on this blog that anyone has to agree to. The only requirement is a typekey account and that is only to stop spammers (and it works). Second, you are wrong in thinking that what I said is an ad hominem. That's not a surprise, most people don't know what ad hominem really means. The religious right's rhetoric about gays asking for "special rights" when asking for sexual orientation to be added to anti-discrimination laws is hypocritical and incoherent, for all of the reasons I explained in my initial post, none of the substance of which you bothered to respond to. Instead, you changed the subject completely to gay marriage, while my post was solely about whether adding sexual orientation to the civil rights laws constitutes "special rights".

Since the very people who make the "special rights" argument already have those rights guaranteed them, it is patently obvious that asking for those same rights is not an argument for "special" rights, but for the same rights already granted to others. Not only that, but those same people not only have those rights, but a whole set of mandatory exemptions and accomodations that are given to no one else, solely on the basis of religion (and that's fine with me, by the way, I am generally a supporter of such accomodations and exemptions). For someone who is granted the right not to be discriminated against and to have their beliefs accomodated and exempted from all manner of generally applicable laws to characterize someone else's request to not be discriminated against as "special rights" is, therefore, both hypocritical and incoherent. And there is nothing about this argument that is an ad hominem, not by a longshot.

First, you don't show any State interest in gay marriages per se. You give the old kennard (sic): 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).

You are as unaware of what the phrase "beg the question" means as you are of what ad hominem means (your second false claim of a logical fallacy in two paragraphs). Not arguing an issue you think should be argued does not constitute begging the question. More importantly, you simply do not engage the substance of my argument at all. Even if you are absolutely right that gays should not be allowed to adopt (and I'll show why you're wrong on that shortly), it still doesn't change the fact that there are hundreds of thousands of children with gay parents already. Some of those children are biological, some are the result of insemination (which is of course perfectly legal), and some of them are the result of adoptions that have already taken place. Every single argument that you make for why government protections for straight marriages helps provide a more stable and secure environment for children applies equally well to those children, who now number over a million in this country.

But let's talk about that. It is of course a glaring distinction that gays cannot naturally have children.

Of course they can naturally have children, just not through gay sex. But gays have been having children for as long as the human race has been around, primarily by having heterosexual sex in order to conceive. And of course, today they can have artificial insemination (for the women) or surrogate mothers (for the men) as well.

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.

Nonsense. For this to be true, there would have to be some link between allowing gay relationships and decreasing straight ones. But there is no such causal link. A small percentage of the population is gay. That percentage of the population is going to be gay regardless of whether gay marriage exists, and the same overwhelming percentage of the population is going to be straight even if there is no such thing as marriage at all. People will continue to have children and form relationships no matter what the state does. The only question is whether those relationships will have legal and financial protections that come with them or not.

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.

Again, not without an internal link between protecting gay relationships and damaging straight ones. If the state extends the protections of marriage to gay couples, are straight couples going to stop forming relationships and stop having children and put the perpetuation of the society and the species at risk? Of course not. One cannot possibly come up with a coherent argument for such a result. So it's not an either/or. The state does not have to protect straight relationships by banning gay marriages because the recognition of gay marriages will have no effect at all on straight marriages.

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.

Why would it be necessary to show that children with gay parents do better than those with straight parents? It should be more than enough to show that they do about the same, and study after study has found that to be true. Every single prominent organization in the field, from the American Academy of Pediatrics to the American Psychological Association to the Child Welfare League of America, has an official policy in favor of allowing gay parents to adopt. Why? Because every single study ever done - and we're talking about several dozen studies now, comprising tens of thousands of subjects - has shown that children raised by gay parents do no worse by any relevant measure than children raised by straight parents. These studies have looked at social, emotional and cognitive development, the quality of their relationship with their parents as well as with others, the ability of the children to form normal relationships with both genders, how well they do in school, and many other factors.

In 2001, Judith Stacey and Timothy Biblarz did a review study of more than two dozen previous studies on the question. They concluded that "every relevant study to date shows that parental sexual orientation per se has no measurable effect on the quality of parent child relationships or on children's mental health or social adjustment, there is no evidentiary basis for considering parental sexual orientation in decisions about children's "best interest."" For a list of nearly 25 such studies and the results they found, click here.

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.

How large a sample size do you think is required? Most of the studies deal with a few dozen subjects, but one study in the UK tracked over 14,000 children and another one in the US tracked over 12,000. And many of them are, in fact, longitudinal studies that have continued to evaluate the same samples over the course of many years. No single study is ever going to be perfect, especially in the social sciences, but when you add up the conclusions of dozens of studies that all say the same thing, it becomes very difficult to explain away. And this is especially true when there is not a single valid study that reaches the opposite conclusion.

ME: "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:

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.

You have it exactly backwards. A basic right is not something that is essential to protect an ordered society and protect its citizens, a legitimate governmental authority - something that would justly violate a right - is something that is essential to protect an ordered society and protect its citizens. Rights preexist governments and they are to be violated only when it is essential to protect an ordered society and its citizens. You have given the definition not of a basic right, but of when it is permissable to violate such a right.

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.

This is utterly incoherent. You seem to think that if there are any restrictions that may legitimately be placed a right, then the right is not "basic". But this is clearly false. Surely you would agree that freedom of speech is a "basic right", yet there are restrictions on free speech as well - you cannot engage in perjury or fraud or slander, for example, nor could you give away troop movements during a war. Even those rights we consider most basic still have legitimate restrictions placed upon them, including free speech, free press, free exercise of religion, and much more. Since there is not a single right for which one cannot imagine legitimate restrictions in some circumstances, by your reasoning, there must be no such thing as a "basic right" - which shows pretty obviously why your criteria for distinguishing between a basic right and some other kind of right is meaningless.

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.

I didn't ignore this at all. I pointed out, in fact, that it undermines your argument for the importance of state protection of straight marriages. You can't have it both ways here. You can't say, on the one hand, that it is crucial for the state to protect state marriages even though the same protections could be gained through private contracts, but then turn around and dismiss the need for such protections to gays.

More importantly, you're simply wrong that everything can be achieved through private contracts. One of the most basic rights of parenthood and marriage cannot be determined by private contract: custody of the children. Let's say a woman gets pregnant by artificial insemination and she and her lesbian partner raise the child until age 12, then the biological mother dies. If it was a straight couple and they were married, custody goes automatically to the father, but not so with a gay couple, and private contracts cannot determine custody, only a court can. And we have seen many cases where courts have taken children away from gay parents solely because they're gay and given them to other family members (the Sharon Bottoms case) or even to abusive fathers (ex parte H.H. in Alabama).

And lastly, I think even if your argument was 100% true, it simply isn't very convincing. Let's take that example again of the couple from the last paragraph. Surely we know that the child is better off with two parents rather than one, and better off with her parents in a committed, monogamous relationship than with a mother in a series of transient ones. Thus, clearly the state has an interest in encouraging a more stable and secure relationship for that child by providing basic legal and financial protections for that committed relationship. So tell me, then, why those two parents should have to go and spend thousands of dollars to have a lawyer draw up an enormously complex private contract (the GAO has identified over 1400 different rights and privileges given to married couples under the law, so it's gonna have to be a hell of a thorough agreement or series of agreements to cover all of those contingencies) to achieve for themselves what any other set of parents gets automatically and takes for granted?

This is not an abstract question, Blake. I have friends going through it. Imagine for a moment what it's like to be the non-birth mother in a situation like that and to travel to a state that refuses to recognize that she is anything but a stranger to the child she has raised since birth. Imagine how terrifying it would be if her partner is in a serious car accident on that trip and, in the eyes of the state they're in, she has no legal rights at all that a hospital is bound to recognize. And despite your Rainman-like repetition of the word "roommate", that is not what this relationship is.

Imagine for a moment being my friend Jason and his partner Scott, two wonderful people who will make great parents, having to spend an extraordinary amount of time doing research on a vast range of legal and financial questions just to decide which state to live in and to determine what legal protections they have there, and anywhere they might travel, so they can make sure that all of the basic things that you and I take for granted in our relationships are protected. In fact, here is Jason's response from his own experience:

There are many rights that cannot be obtained except through marriage, and many others that are routinely denied to same-sex couples even if they jump through all the legal hoops that would supposedly permit them to exercise these rights.

Nowhere in the United States can a same-sex international couple achieve legal immigration status for the foreign partner.

Nowhere in the United States can same-sex couples enjoy immunity from testifying against one another in court (except, I believe, in the state courts of Massachusetts). This is a right that all straight married couples have.

Nowhere in the United States can same-sex couples file income taxes as though they were married. I know this one from personal experience; we would have saved several thousand dollars by now if we could have done so.

There are many more rights in this category, but let's talk for a minute about the rights that CAN be achieved with a little extra legal footwork.

Want to visit your partner in the hospital? Better hope that he's taken to a hospital where you happen to have filed your papers in advance. Want to adopt kids? Better hope you live in a state where it isn't legally forbidden. Want to use domestic violence laws to punish an abusive partner? Sorry, some states are even taking THOSE away, too (see Ohio and Virginia).

Want to use a power of attorney to make medical or financial decisions? You'd better hope that absolutely every detail is spelled out in advance. And even then, you might not get what you want. I had to file three separate powers of attorney to refinance the house that we own jointly. I filed a general financial power of attorney only to see it rejected. I filed a second, more specific one, which was rejected on a technicality. The third seemed okay until the day of the closing -- when it was rejected.

Doing all this while you live in Paris is not easy, as American banks won't recognize French notaries. I had to stand in line at the U.S. embassy three different times, pay three different fees -- and then, at the last moment, a clerical oversight meant that my final power of attorney wasn't any good anyway. My name never did get on the new loan. It's a really good thing he wasn't going in for a liver transplant!

So... Before you say that everything is just fine for same-sex couples, do a little homework, will you? Talk to some of us, and at least try to understand. We're not asking for these things because we're evil and trying to wreck your marriage. We're asking for them so that we can live more or less ordinary lives, and the conservatives' overreaction here is one of the most appalling I've ever seen.

And look them in the eye and tell them that their relationship is just like a couple of roommates, so they don't deserve those basic dignities and protections that everyone else gets automatically by virtue of being straight - even if their husband or wife really is nothing more than a roommate.

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.

There are several problems with this argument. First, Catholic Charities stupidly gave up without a fight and voluntarily stopped performing adoptions. In fact, I argued at the time that under both Federal and state law, they had a strong case to be made for being granted an exemption from the requirement of facilitating gay adoptions. At the Federal level, the RFRA mandates that a generally applicable law that presents an undue burden on the free exercise of religion must meet strict criteria to avoid having to grant a religious exemption from the law. Specifically, the RFRA requires that the generally applicable law must be the least restrictive means of achieving a compelling state interest. Since there are multiple adoption agencies, all of whom routinely facilitate gay adoptions, granting such an exemption to Catholic Charities would not interfere with the achievement of the state's goal of allowing such adoptions to take place.

Now, it's true that the RFRA only applies to Federal laws and rules, but I also cited two Massachusetts court precedents that established essentially the same standard for state laws. Thus, I think that Catholic Charities had a compelling case to be made in court for such an exception and I wish they had made it. Regardless, the RFRA, and the many states that have versions of it, help to prevent exactly the kind of overreach that you're talking about.

But let me go one step further and argue that even if no such exemptions existed, I don't think you would have a compelling argument against gay marriage. The very same argument could have been used against Loving v Virginia, the ruling that overturned state laws against interracial marriage on equal protection and substantive due process grounds. But does anyone really think it would be a compelling argument to say, "We can't allow interracial marriage because people who are opposed to interracial marriage might then lose their tax exempt status if they discriminate against interracial couples"? I certainly hope not.

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.

That is a caricature of my argument. First of all, I absolutely deny that gay relationships are the equivalent of "roommate" relationships. I know many many gay couples in committed, long term relationships, many of them with children. They are like straight marriages in every meaningful way and as different from roommate relationships as those straight marriages are. So your casual equation of gay relationships with roommate relationships is false from the start. But the point is that even if a few gay marriages were of that type, so what? Some straight marriages are of that type as well, but that's hardly a compelling argument against recognizing and protecting straight marriages.