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February 11, 2005

bait and switch

Don Herzog: February 11, 2005

In November, Michigan voters joined the stampede and adopted Proposal 2, amending the state constitution by adding Article 1, Section 25:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

I was opposed, because I'm strongly in favor of gay marriage.  But I also suspected that the legal force of that tangled wording especially that funny last phrase, "or similar union for any purpose" would forbid public employers from according domestic partnership benefits to gay and lesbian couples.  Something fishy, I thought, was going on.

A few of us here in Michigan worried aloud about partnership benefits, but champions of the proposal pooh-poohed the worry.  From The Detroit News, with its usual errant grammar, 10/27/04:

    Citizens for the Protection of Marriage, the group that ram-rodded the petition drive to get the issue on the ballot, said it is not focused on benefits or discrimination.  Members don't want same-sex marriages validated here like judges and politicians have done in Massachusetts and California.
    "This is about defining marriage of one man and one woman," said Kristina Hemphill, of Southfield, a communications director for Citizens for the Protection of Marriage.  As for people losing benefits, "nothing that's on the books is going to change.  We continue to confuse this issue by bringing in speculation."

The Roman Catholic Church insisted the measure was about protecting marriage and was silent about domestic partnership benefits.  From The Washington Post, 10/28/04:

    Detroit Cardinal Adam Maida urged Michigan's 2.25 million Catholics, nearly a third of the state's registered voters, to pass the amendment in an eight-minute videotape that every Catholic church in the state was strongly encouraged to show during Sunday services this month.
    "From the beginning of human memory, marriage has always been understood as the union of one man and one woman," Maida said on the tape.  "Let us do our part here in Michigan to preserve that sacred understanding and definition of marriage."
    The Michigan Catholic Conference also sent an Oct. 15 letter and a brochure titled "Between One Man and One Woman" to all 596,000 registered Catholic households in the state.  And Michigan's seven Catholic dioceses contributed $500,000 to Citizens for the Protection of Marriage, about half the war chest of the umbrella group pushing for the amendment.

Looks like this is the brochure, with not a word about benefits but with an assurance "that every sign of unjust discrimination should be avoided."

Before the election, The Thomas More Law Center, "a not-for-profit public interest law firm dedicated to the defense and promotion of the religious freedom of Christians, time-honored family values, and the sanctity of human life," already had sued Ann Arbor's public schools to try to force them to stop providing domestic partnership benefits to gay and lesbian couples.  The county circuit court ruled that the parties they assembled had no standing in the matter and the case went up to the state Court of Appeals.  Now the Center is urging that the new constitutional amendment strengthens their case.  Federal law generally frowns on taxpayer standing, but in these matters Michigan doesn't (see MCLS § 600.2041).  I claim no insight on the legal merits of the action.  But I don't see how "family values" are threatened by domestic partnership benefits.  And I will say that the lawsuit seems repulsively meanspirited, the very opposite of Christian charity.

What groups have protested the Center's lawsuit?  Round up the usual suspects:  the Michigan Educational Association and the ACLU.  Citizens for the Protection of Marriage and the Roman Catholic Church have fallen suspiciously silent.  Nor have I heard a whisper from the American Family Association of Michigan.  A week before the election,  Association president Gary Glenn declared that the proposal was all about marriage.  From his 10/24/04 op-ed in The Detroit News:

    Now that the issue of marriage has been forced onto the table, someone will decide. The only question is who.
    In Massachusetts, it was four judges.
    In Michigan, it will be four million voters including you.
    If Proposal 2 fails, Michigan's marriage laws will remain unprotected and vulnerable to the agenda of activist judges, politicians, and constant pressure for change from activist groups and the media.
    If Proposal 2 is approved, one-man, one-woman marriage will be safely secured in our constitution, protected from legal challenge.

A week after the election, Glenn changed his tune.

Many citizens of Michigan were opposed to gay marriage.  Many others thought it not the sort of issue courts should decide.  I don't think many supporters of Proposal 2 thought they were supplying legal ammunition to those trying to block domestic partnership benefits.  But that's what they did.

You might point out that the supporters I've quoted aren't responsible for what the Thomas More Law Center decides to bring to court.  You might say that I've no evidence that the supporters have even communicated with the Center.  So talk of a vast right-wing conspiracy, or a measly one, would be entirely premature.

Sure, but there's a smoking gun in the case, right in the language of the amendment.  All those supporters knew that Proposal 2 had oddly tangled wording and that funny last phrase, "or similar union for any purpose."  I don't know who drafted the language, but groups don't spend hundreds of thousands of dollars supporting a constitutional amendment without getting expert legal advice on what that amendment would do.  And had the only point been to save traditional marriage, the language would have been much more straightforward.

So the public got sold a bill of goods.  The duplicity is contemptible.

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Comments

Posted by: oliver

I suppose there you have an argument against legislation by referendum.

Posted by: oliver | Feb 11, 2005 8:40:35 AM


Posted by: jpe

That ambiguous second sentence, a variant of which was in every proposed amendment, has so much potential for mischief. I wrote a brief post about this back in November re: the Kentucky amendment, which has similar language; the domestic benefits are just the first target of this trojan horse of an amendment.

Posted by: jpe | Feb 11, 2005 9:02:45 AM


Posted by: Terrier

Yep! They say, "now, I'm not a bigot." They even get indignant when you suggest that they want their prejudice to continue to be enshrined in law. But as I've said before, they are emotionally repulsed by homosexuality and the threat of exposure to it is more than they can bear. However, none of that has any place in this discussion! You either support freedom or you don't. You can't allow freedom except for what makes you uncomfortable and expect to have freedom yourself. Quite frankly that's also why I think civil unions are a fat red fish. Some will say they support civil unions - they just don't want the term 'marriage' used - but the point is, the rights of marriage are what we are talking about. Which rights will they subtract from civil unions? Likewise for the little red fish of bestiality, polygamy, polyandry, and whatever else they may drudge up to fuel fear in the minds of the like-minded - none of those little trout concerns them more than the prospect of two men or two women walking thru the local mall holding hands that sport matching rings. To prevent that there is probably very little that they will not do.

Posted by: Terrier | Feb 11, 2005 9:38:19 AM


Posted by: Keith DeRose

There's a similar vagueness is the proposed federal marriage amendment. Backers often claim it doesn't rule out states or local governments from passing measures that would grant some of the legal benefits of marriage to same-sex couples, but I think the wording actually does rule that out. (Well, it doesn't seem to rule out *passing* such legislation, but it does rule out construing any such legislation as granting such benefits. Making it impermissible to construe the leg. as doing what it's designed to do is equivalent to banning it, in my book.)

Posted by: Keith DeRose | Feb 11, 2005 9:43:25 AM


Posted by: rtr

So where's the praise of the NYT for a citizens' initiative? Where's the Hollywood movie staring Julia Roberts?

Domestic partner benefits is as invalid as domestic friends benefits, or benefits giving one the right to transfer such benefits to any and all persons they may so desire. I doubt any or only an extreme minority few care to prevent private businesses and entities from giving out any sort of private benefits they may so desire. Benefits are not given out to domestic partners in the public school system. They are *forced*. They are discriminatory against the religious beliefs of some. The taxpayer is the employer, not the leftist elite and unions dis-educating the children as they rob upwards of 70% from their administrative skim.

If this was to be consistent with the usual every-day leftist intolerance the country has become accustomed to, "similar union for any purpose" would be interpreted as preventing all private individuals and their transactions from funding benefits for any non-heterosexual relationships. It is not anyway near that. It's time for a taxpayer class action suit to have all monies paid for domestic partnerships by the State refunded to the taxpayer, and individuals and institutions acting in violation to be held in contempt and prosecuted criminally and civily.

Having been born and raised in Michigan I can appreciate the Militia State now and then. Well, I'm waiting for the topic linking the 2nd amendment and the Michigan Militia. That has e-x-p-o-s-e' written all over it.

Posted by: rtr | Feb 11, 2005 9:58:33 AM


Posted by: john t

Don Herzog, On first reading I se some ambiguity in the ovarall position of the pro-tradition forces. This will leave some unhappy nonetheless. By ambiguity I mean ,concerning same sex unions and benefits,the door of which would remain open. You assert that Mr Glenn has changed his tune but he cites a provision where benefits would still be available but not on th basis of sexual orientation. So? Why would it be the basis of the state and taxpayer who goes to bed with who? We all,myself included,have fun pointing out the inconsistencies of others,but we did spend 8 recent years listening to how the erotic escapades of a guy from Arkansa were private as well as a lifetime of being told that the State shouldn't interefere/regulate what goes on in the bedroom,now we're being asked to subsidize it. First post on this,but first a word; if Burke "sputtered" would to God more more of us could sputter like him

Posted by: john t | Feb 11, 2005 9:59:16 AM


Posted by: miab

"From the beginning of human memory, marriage has always been understood as the union of one man and one woman," Maida said on the tape. "Let us do our part here in Michigan to preserve that sacred understanding and definition of marriage."

I've heard this kind of thing a lot. Why do so many on the anti-gay-marriage side feel the need to say this? It's patently false -- and it's kind of shocking if a Catholic Cardinal doesn't know that; what are they teaching in seminary these days?

Polygamy is standard in the bible (and so is concubinage -- now there's old-time religion! maybe that's something we should look into reviving? In some ways, it's a lot like "civil unions").

Polygamy is still practiced in Islam and in parts of Africa. A few cultures have had polyandry.

Serial polygamy/polyandry (by divorce and re-marriage), and group parenting (by mixed families with parents and stepparents and shared custody arrangements) are now standard in the U.S., but would have been considered shocking not so long ago.

There's a strange tension here. The anti-gay-marriage advocates feel the need to assert that heretomonogamous marriage is and has always been the only practice. But that's just not true. Are they worried that if they acknowledge that accepted practices have evolved over time, they no longer have a good case against homosexual marriage?

Do you think we could get a groundswell of support for a marriage amendment that said: "the union of one man and one woman in marriage, or any other arrangement recognized as a marriage or similar union in the 2000 years preceding 1950, shall be the only agreement recognized as a marriage or similar union for any purpose."?

Posted by: miab | Feb 11, 2005 11:06:43 AM


Posted by: David Velleman

It would be tragic if public employees lost the ability to cover same-sex partners -- tragic not only for the employees and their partners but also for the public institutions by which they are employed. My University will lose many extremely valuable faculty and staff if same-sex partners are denied benefits.

That said, I have to admit that I find the University's policy on domestic-partner benefits difficult to understand. Consider:

Eligibility
If you are eligible for benefits at the University of Michigan, you can cover your same-sex domestic partner. To be eligible, you and your partner must:
  • Be of the same sex; and
  • Not be legally married to another individual; and
  • Not be related to each other by blood in a manner that would bar marriage; and
  • Have registered or declared the Domestic Partnership in the manner authorized by a municipality or other government entity; and
  • Have allowed at least six months to pass since the dissolution of a previous same-sex domestic partnership in the manner authorized by a municipality or other government entity.
This definition is clearly an attempt to define a marriage-like relationship, complete with its own incest-taboo. Until I looked up the policy, I had assumed that domestic-partner benefits were based on a domestic relationship -- that is, on the constitution of a household. But the policy appears to be based on the constitution of a romantic, sexual relationship, which strikes me as irrelevant to the purpose.

Why does the University grant me fringe benefits that also cover my wife? Is it because we're in a committed, monogamous romantic and sexual relationship? How odd. Does the University really care about my sex life? I had no idea.

I thought that my fringe benefits cover my wife because -- to put it very roughly -- we have cast our lots together, decided to share our lives and our fates, thus constituting ourselves as unit. And I assumed that the policy was based on marriage only because marriage is a convenient proxy for the relevant kind of union -- or, at least, it was a convenient proxy, at the time when such institutional arrangements were first designed.

Marriage may no longer be a workable proxy for the domestic unit. There are more and more married couples who don't share their lives in any meaningful sense; and there are more and more people who share their lives in the relevant ways without getting married (or being allowed to marry, at least for now). By all means, then, let's re-think how we allocate benefits that were previously granted on the basis of marriage.

But why rethink these arrangements by defining another marriage-like relationship, with constraints of the sort that are designed to regulate sex? Why can't first cousins or siblings be domestic partners, for the purposes for which domestic-partner benefits are intended?

I am not questioning whether my gay and lesbian colleagues and friends should receive the benefits that they receive from the University. I am questioning particular assumptions about why they should receive those benefits.

Maybe by asking ourselves this question, we can design a policy that wouldn't be vulnerable to the new constitutional ban on gay marriage, because it wouldn't be an attempt to define a "similar union".

Posted by: David Velleman | Feb 11, 2005 11:40:50 AM


Posted by: miab

Under the UofM defintion you must:

"1. Be of the same sex; and
2. Not be legally married to another individual; and
3. Not be related to each other by blood in a manner that would bar marriage; and
4. Have registered or declared the Domestic Partnership in the manner authorized by a municipality or other government entity; and
5. Have allowed at least six months to pass since the dissolution of a previous same-sex domestic partnership in the manner authorized by a municipality or other government entity."

This is clearly discriminatory against heterosexual couples -- maybe in an attempt to balance out discrimination in the other direction, but nonetheless clearly discriminatory.

Why not just strike requirement 1 (and the other references to "same-sex", and in requirement 4, ("Have registered or declared the Domestic Partnership"), add "or marriage" after the words "Domestic Partnership"?

To address DV's concern, you could add another requirement of maintaining a joint household, but there are enough commuter marriages that this could be a real problem.

Posted by: miab | Feb 11, 2005 11:59:44 AM


Posted by: David Velleman

We should also note that what makes these constitutional provisions so pernicious is the fact that access to health care in this country is tied to employment. Employers have been put in the bizarre position of making public policy about domestic arrangements because they have been left holding the bag by our failure to fund health care in a remotely rational way.

Posted by: David Velleman | Feb 11, 2005 12:13:52 PM


Posted by: Josh

"Sure, but there's a smoking gun in the case, right in the language of the amendment. All those supporters knew that Proposal 2 had oddly tangled wording and that funny last phrase, "or similar union for any purpose." I don't know who drafted the language, but groups don't spend hundreds of thousands of dollars supporting a constitutional amendment without getting expert legal advice on what that amendment would do. And had the only point been to save traditional marriage, the language would have been much more straightforward."

You can't possibly be serious. I work for the state of California's retirement system, so I deal with the PERL (Public Employees Retirement Law) on a daily basis. The phrasing in the law (much of which was submitted by employee unions and other interest groups) is so vaguely worded that some of our subject-matter experts have to spend HOURS deciding what the meaning of a single paragraph is. A poorly worded amendment is hardly a smoking gun for collusion.

As far as the argument that people pointed this out during the campaign, once an piece of legislation has been approved for a vote, I'm fairly sure it is difficult to re-word (I admit I don't know the specifics of Michigan law in this regard). With all the expenditure of time, energy, and money to get it to that point, they were hardly going to take it off the ballot to re-word for another vote later.

Posted by: Josh | Feb 11, 2005 1:38:17 PM


Posted by: mw

Hmmm. Given David's valid concerns about the UM definition, it would seem that *if* the Thomas Moore Law Center prevails in its case, the UM could relax its definition to include committed relationships that need not be not similar to marriage (no sexual relationship implied, no incest taboos, etc).

As to the larger question -- yes, supporters of the amendment declared (perhaps disingenuously) that it would not affect domestic partnerships. But given the margin of victory, is it clear that it would not have passed EVEN IF that had been part of the declared intent? It's a depressing thought, but I suspect it would still have passed under those conditions and that a majority of voters will therefore not mind if UM's domestic partnership benefits are disallowed.

On the other hand, if the benefits are ruled illegal and a majority are upset about it -- well, there's nothing to prevent another ballot initiative, is there?


Posted by: mw | Feb 11, 2005 1:41:50 PM


Posted by: duus

I think we should also keep in mind this should disallow any heterosexual, non-married couples from sharing any benefits as well.

Posted by: duus | Feb 11, 2005 1:47:08 PM


Posted by: john t

I think a tactical mistake was made here and you can thank the Mass. Supreme Court. Having looked at and discovered the right to gay marriage in the constitution they issued their opinion. The fact that nobody else saw it for close to 225 years troubled them not. There was some chortling thereafter about the full faith and credit clause of the U S Constitution,and then the door was slammed shut. Referenda both before and after the election have gone against the cause. The perception seems to exist that same sex unions are a stepping stone back to marriage but on the whole,Michigan aside and like it or not,same sex unions will gain legitimacy. I favor heterosexual marriage,blemishes and all.

Posted by: john t | Feb 11, 2005 2:24:11 PM


Posted by: Steve Horwitz

No one discovered a "right to gay marriage" in the Constitution, any more than there's a "right to wear a green hat" in the Constitution. The point is that constitutions have many unenumerated rights and that the burden of proof should be on the state to show that any particular interference with people's liberty serves some compelling state purpose and is being written and enforced equally across groups. One argument for legalizing same-sex marriage, or better yet, extending the right to marry to same sex couples, is that current marriage laws fail this test. Where is the harm to third parties from preventing same-sex marriage and does current policy violate equal protection considerations? This is one, but not the only, way to look at it. We need not "invent" rights to gay marriage, we need only ask whether the state, or any state, has a compelling interest in preventing it.

Posted by: Steve Horwitz | Feb 11, 2005 3:59:27 PM


Posted by: rtr

I thought leftists didn't like unequal pay. Health benefits as provided by employers constitute discriminatory wages. I seem to recall a lot of lawsuits regarding this matter along the lines of race and sex. Why should someone who is married or who has a lot of kids be paid more for the same work than someone who is not married or does not have kids? Is there any a priori moral justification or otherwise for discriminating upon the characteristic of having kids or not versus discriminating upon the basis of race or sexual orientation?

Thus these socialists who are so accepting of forcefully imposed discrimination instituted by the State on many a basis should keep in mind they would similarly be for super majority imposed discrimination upon the basis of race or sexual orientation. What these cases are showing is that the so called moral values or intellectual basis of leftist thought always was non-existent.

These health care plans have a market value that is being paid for in liew of cash (stripped of taxes etc.) wages. If someone adopts three children or twenty children they are being subsidized for their behavior by the taxpayer in the case of public institutions or at the expense of the wages of other employees in the case of private institutions. Smells like discrimination to me. Equal value, equal wages, of which health care benefitis are a part of wages, for equal work, correct?

I'm fond of the idea of cla$$ action lawsuits of late, so this seems like another potentially lucrative angle.

UofM could indeed avoid lawsuits regarding the provision of "family" benefits by removing the word "marriage", limiting it to one person, and a limited capped number of dependents. Indeed, everyone should get the same benefits as the next so if one was not currently in a "relationship" they should have the right to donate their health benefits to another homeless person of number of children of the tsunami disaster (or whomever) to surrogately receive their employee benefits to the exact proportion that couples and those with children are paid.

This opens the more expensive door to funding benefits to hetersexually married couples, same sex union couples, and the likewise for the temporary boyfriends and girlfriends of employees subject to the six month waiting/changing list. This will play right into the hands of the right wing religious conservatives who would argue if it doesn't pave the way polygamy et al it certainly paves the way to serial monogamy. The future generations should get ready to read My Twenty Daddies, My Fourteen Mommies, Here Comes the Village People, etc. Of course, such "family" initiatives are a big part of the religious agenda: higher costs for out-of-wedlock beings increases the incentives for the State company town regulations on the liberty of social life, which always occurs when such a total monopoly is controlling the purse strings. Thus, I propose the thread title be changed to "Date and Switch".

Posted by: rtr | Feb 11, 2005 4:10:39 PM


Posted by: Perseus

I know Don Herzog doesn't like the idea of original intent, but I would argue that if even "the group that ram-rodded [sic--spearheaded] the petition drive to get the issue on the ballot said it is not focused on benefits or discrimination," then that is compelling evidence of what was meant by "similar union" (i.e. domestic partnerships benefits are not included in the definition).

Don Herzog also writes: "the lawsuit seems repulsively meanspirited, the very opposite of Christian charity." As Ronald Reagan would say, "There you go again" using that tired liberal epithet "meanspirited" as well as the trope that Christian charity entails subsidizing what many Christians believe is sinful behavior.

David V. writes: "Marriage may no longer be a workable proxy for the domestic unit" because it gets in the way of "constituting ourselves as unit" as we see fit. But one of the primary purposes of marriage is indeed "to regulate sex" for the sake creating a healthy environment for the generation and rearing of children. Arguing that traditional marriage should be ended (or fundamentally altered) because it interferes with "constituting ourselves as a unit" as we see fit is nothing short of an unprecedented attempt at "defining deviancy down," as Daniel Patrick Moynihan would say.

Posted by: Perseus | Feb 11, 2005 5:26:07 PM


Posted by: Perseus

Sorry about the typo. It should read "(i.e. domestic partnership benefits are not included in the definition)." Too bad we can't edit our posts.

Posted by: Perseus | Feb 11, 2005 5:46:08 PM


Posted by: AlanC9

I'm not sure why the drafters' intent counts. Shouldn't statutes adopted by referendum be interpreted according to what the voters thought they were voting for?

And if liberals can't call that lawsuit "meanspirited," let's cut out talk of "sinful behavior" too. Or better yet, let's leave both opinions out there.

Posted by: AlanC9 | Feb 11, 2005 5:51:57 PM


Posted by: Don Herzog

Josh points out that PERL is badly worded. Plenty of statutes are very badly worded. But I think more work goes into deciding how to word a constitutional amendment in the first place. The group that wants it to get to the ballot has to supply actual language, and that language will be going on petitions and subject to judicial challenge before it gets to a vote. So no, I wasn't kidding.

Posted by: Don Herzog | Feb 11, 2005 6:07:41 PM


Posted by: David Velleman

Perseus: Don't make assumptions about my views on same-sex marriage. I haven't expressed a view on that issue. To be perfectly frank, I don't yet have a view. I think both sides of the debate are mainly talking nonsense. I've been reading about the history of marriage, and if I ever manage to figure out what to think about same-sex marriage, I'll let you know.

I certainly agree that one of the (many) purposes of marriage is to create an environment for the rearing of children, and if you read my post on "Family Values", you'll see that I have definite views about what that environment should be, at least ideally. But the idea of marriage as an institution for regulating sex -- that idea is dead. That train left the station over 30 years ago, and it's not coming back. An institution like marriage has to conform to social reality to some extent, and social reality is that extra-marital sex is normal and accepted.

In any case, the purposes of marriage are not necessarily relevant to the purpose of extending employee benefits to parties other than the employee. My question is why we extend benefits in that way, and I see no reason to assume that our purposes in doing so are identical with the purposes of marriage.

Posted by: David Velleman | Feb 11, 2005 6:12:39 PM


Posted by: Perseus

David V: I actually think that your claim that "the idea of marriage as an institution for regulating sex -- that idea is dead. That train left the station over 30 years ago, and it's not coming back. An institution like marriage has to conform to social reality to some extent, and social reality is that extra-marital sex is normal and accepted" is far, far worse than supporting same-sex marriage because it "defines deviancy down." Even though I'm skeptical, I do not reject out of hand the so-called "conservative case for gay marriage" (or preferably civil unions) precisely because it would tend to reduce promiscuity and fornication (to use more traditional language).

Not surprisingly, the importance of family stability is also why support the idea maintaining the connection between the extension of benefits and marriage or marriage-like institutions.

Re: Original Intent. The reason why I mention it is because I suspect that the public's understanding of the proposition probably coincided with the statements put forth by its originators. This is also a plea to social conservatives for consistency. Since they are generally supporters of the idea of original intent, don't try to pull a stunt like this. It gives the impression that original intent is just a slogan and will only be applied when it is convenient. That is just flat out WRONG.

Posted by: Perseus | Feb 11, 2005 7:20:15 PM


Posted by: D.A. Ridgely

I do hope when Mr. Velleman writes “social reality is that extra-marital sex is normal and accepted” he means non-marital sex. I fear many, however, will take his statement as literally true, as well.


In any case, Mr. Velleman’s earlier observation that all of this political maneuvering would be unnecessary were we to stop making the employer-employee relationship the principle mechanism by which people secure health care insurance is quite correct. Alas, however, I fear that he and I would differ significantly as to what sort of change in the status quo would be “remotely rational,” let alone satisfactorily rational.

Posted by: D.A. Ridgely | Feb 11, 2005 8:12:21 PM


Posted by: David Velleman

Correction accepted. Careless choice of word.

Posted by: David Velleman | Feb 11, 2005 8:21:15 PM


Posted by: David Velleman

Perseus: According to a report from the Centers for Disease Control, 69% of never-married women and 64% of never-married men were sexually experienced by age 18-19. Are you claiming that over 60% of the population is "deviant"?

Posted by: David Velleman | Feb 11, 2005 8:40:17 PM


Posted by: Mona

I've been away for some time due to a combination of disabling computer problems and demands at work. (If you emailed me in the last month or so, I did not get it, please try again.)

On to the topic at hand: Let us move past the sterile debate over "strict constructionism." What matters is that our culture is not yet evolved toward an acceptance of gay marriage or, possibly, even acceptance of civil unions. When I was born Ricky could not be shown in a bed w/ Lucy unless said bed was twin and he had one foot on the floor. Now, we have Will and Grace and myriad other filmed and written depictions in which being gay is accepted, if not cool. But our society is yet some 15-20 years away from organically, peacefully, accepting gay marriage.

The Mass. S. Ct. decision was a huge mistake. It pushed the issue to the forefront before the culture was where it has been evolving, namely, toward a willingness to extend the same state-conferred benefits to gays that it extends to straights via the civil institution of marriage. It is right to extend those state-conferred benefits to gays, and it was coming, but the time was not yet ripe. The MI and the other 10 initiatives are the depressing result of attempting to coerce the culture.

Cultural evolution has to be respected. Coerced change, before society can accept and absorb it, creates chaos and acrimony. Yes, Brown v. The Board was finally necessary, but what followed in its wake is not to be desired. Armed troops at school doors and riots are an acceptable price when the forces of liberty have long struggled and cannot prevail against entrenched bigotry. But that is a terrible, disruptive cure, and ought to be avoided whenever possible.

We, in the U.S., have moved far toward acceptance of gays, and it was getting better every year. Pushing the marriage issue precipitously energized forces that otherwise would have lost in another generation. This is the political reality, and respecting the natural evolution of a culture is usually a good idea, even if that process is slower than many of us would like. The alternative is usually worse, and with reference to gay marriage, forcing the culture has led to a backlash that will set back equality for gays long and badly.


Posted by: Mona | Feb 11, 2005 8:52:10 PM


Posted by: Perseus

David V: I took the meaning of "extra-marital sex" literally, so the correction is welcome.

As for your question, yes, I regard sex by those under the age of 18 as a form of "deviance" or vice (though how serious would depend, of course, on the age of the adolescent, the number of partners, etc.). The whole point of the idea of "defining deviance down" is that too many people are beginning to regard as "normal"--and hence acceptable--behavior that is not good for individuals and society. And, no, I don't think that this particular form of deviance is irreversible.

Posted by: Perseus | Feb 11, 2005 11:47:07 PM


Posted by: Perseus

I'd also ask David V. if the mere fact that a practice has become widespread is sufficient to render it no longer deviant (except in the statistical sense), then would he would no longer classify cheating as socially deviant simply because 75% of students admit to doing it? I'm sure your students would like to know. Link: http://www.academicintegrity.org/cai_research.asp

Posted by: Perseus | Feb 12, 2005 1:17:16 AM


Posted by: Ralph Wedgwood

This is slightly off-topic, but am I the only person to feel rather taken aback that the Cardinal of Detroit would say: "From the beginning of human memory, marriage has always been understood as the union of one man and one woman"?

I read this as the claim that from time immemorial, marriage has been not only heterosexual but monogamous. But if that is the meaning, it is wildly false. Aren't Cardinals of the Roman Catholic Church supposed to read the Old Testament from time to time? Did his Eminence somehow fail to notice that many of the kings and patriarchs of the Old Testament were enthusiastic polygamists?!

In general, the rule that marriage must be monogamous -- that one must not have more than one spouse at any one time -- is something that we quite clearly do *not* owe to our Judeo-Christian heritage: Judaism did not outlaw polygamy until well into the Middle Ages; and there is nothing explicitly against polygamy -- not one word -- in the entire New Testament. Monogamy is something that we owe, very clearly, to Roman Civil Law -- i.e., to the predominantly secular legal code of a pagan society.

If people were just slightly better informed about the fascinating history of the institution of marriage, they would recognize how radically marriage has already changed, and would perhaps be less anxious about changing it again so that it no longer unjustly excludes same-sex couples. (David, you say you've been reading up on the history of marriage: I do hope that this is true of you!)

Posted by: Ralph Wedgwood | Feb 12, 2005 1:22:36 AM


Posted by: David Velleman

Yes, Ralph, it is quite true of me. Part of the reason why I say that I don't know what to think about same sex marriage is that I don't know what to think about the legal institution of marriage, full stop. Learning about the history of marriage even over the brief life of the United States has made me realize how drastically the institution has changed during my lifetime. Of course, everybody knows in some superficial sense that the law of marriage and divorce have been changing over the past 50 years, but I had not fully appreciated how deep the changes have been. That's part of why I said, above, that both sides of the same-sex marriage debate seem to be talking nonsense. Both sides talk as if there is some social consensus about what marriage is, so that there can be some shared topic of disagreement. As far as I can tell, the changes in marriage over the past 50 years have pulled the rug out from under any such consensus that there may have been. So I have the strangely disorienting sense that people don't know what they are disagreeing about.

Posted by: David Velleman | Feb 12, 2005 6:49:57 AM


Posted by: David Velleman

Perseus: Do I think that student cheating is wrong? Of course. Do I think that it's "deviant"? Unfortunately, no. But I wouldn't use the word "deviant", to begin with, precisely because its standard use is to stigmatize mere divergence from what is common or typical. Cheating isn't deviant because, unfortunately, it doesn't diverge from the statistical norm. Now, if you use the word "deviant" to indicate divergence from the moral norm -- with no allusion to the statistical norm -- then I think you're using the word in a non-standard sense. Why not just use the word 'wrong'? 'Deviant' expresses a sensibility that stigmatizes mere difference.

Do I think that non-marital sex is wrong? No, I don't. Do I think that non-marital sex among 18-to-19-year-olds is wrong? No again. I am very concerned about the rate of sexual activity among 15-to-16-year-olds. But the law of marriage is not directly relevant to the sexual behavior of 15-year-olds.

I realize that the current trend is to address the rate of teenage sexuality by teaching "abstinence until marriage". I think that's wrong, too: it's very bad advice to give young people. I would advise them to abstain from marriage until they've had sex -- as most people now do.

Of course, I would counsel teenagers to abstain from sex until adulthood, and then to have sex only as an expression of love within an exclusive, committed relationship. But our society now accepts that exclusive, committed relationships need not involve legal marriage. That is what I was referring to earlier as the "train" that has "left the station". I frown as sternly as anyone on promiscuity, but sex without marriage is a non-issue.

Maybe you regard my talk of "an expression of love within an exclusive, committed relationship" as new-age claptrap. And of course many readers may think that I've now diverted the discussion from its original topic, which was same-sex marriage. But I've made this digression in order to bring out a point that I think is little appreciated in the gay-marriage debate. I suspect that when you and I talk about marriage, we aren't talking about the same thing. You may be talking about a legal institution for the regulation of sex; I think that marriage has little or nothing to do with the regulation of sex. You may think that to recognize "love within an exclusive, committed relationship" is to accept a cheap counterfeit of marriage; I think that it is an important and healthy development in our way of life.

Before we can argue about same-sex marriage, we need to argue about marriage itself. Otherwise, we're just talking past one another.

Posted by: David Velleman | Feb 12, 2005 8:31:25 AM


Posted by: pedro

Perseus: On what basis do you argue that non-marital sex is vice?

Posted by: pedro | Feb 12, 2005 8:42:15 AM


Posted by: john t

"if a man consider the originalof this great ecclesiastical dominion,he will easily perceive that the papacyis no other than the ghost of the deceased Roman empire sitting crowned on the grave thereof: for so did the Papacy start up on a sudden out of the ruins of that great heathen power". Hobbes. Yes Roman civil law affected a considerable part of our culture as did Greek practice,monagamous with side visits to the Hetari. And marriage has changed,but then so have table manners. But in the above posts I see nothing that sanctions homosexual marriage,other then the well known fact of change and the equally well known fact of variation,all of them hetrosexual. As to the marriage ain't what it was argument,squabbling and all that,unless ther's a presumption of some higher tolerance or greater love on the part of gays,give them time and gay unions won't be what they were either.

Posted by: john t | Feb 12, 2005 8:42:17 AM


Posted by: D.A. Ridgely

I suppose the historians and anthropologists would have to weigh in here, but I think a reasonable case can be made for the notion that monogamous heterosexual marriage, varyingly institutionalized from age to age and culture to culture, has been statistically normative in human history. Of course, polygamy has been common among the rich and powerful as well, but the rich and powerful have never felt any strong inclination toward being bound by normative behavior.

If I recall my one and only sociology course (and one was quite enough!), religious institutions function as instruments of socialization, whether intentionally or incidentally, so there’s a whole “chicken or egg” problem with citing the role of religions in the history of marriage. In any case, in a contemporary pluralistic society (or, for Mr. Herzog’s peace of mind, a non-“Christian Nation”), the case for monogamy or for restricting whatever we call marriage to heterosexuals will have to be made on grounds of its social utility and acceptability to the prevailing positive morality of society vis a vis other alternatives. In that sense, the train really has left the station.

However, Mr. Velleman’s claim that marriage now has little or nothing to do with the regulation of sex seems to me to be too strong a claim. When we endorse loving and exclusive, committed relationships as the preferred context for human sexuality we are socially regulating sex whether or not we legally proscribe other forms of sexual behavior. Certainly, we are also taking advantage of the collateral benefits to society such relationships have for purposes of child rearing, etc.; but the social benefits aside, we are urging or recommending one sort of behavior versus other sorts because we have found throughout history that it works better for the individual couples, themselves.

None of that goes to any argument against homosexuals, per se, or against homosexual civil unions or marriages, whatever the distinction between the two may be. Indeed, even the most ardent opponent of homosexuality should nonetheless (however grudgingly) prefer homosexuals to live in committed, loving long-term relationships if the only alternative is promiscuity. No less a homophobe than St. Paul may have preferred celibacy to chastity for heterosexual Christians, but he (grudgingly) acknowledged that marital chastity was appropriate for those who could not manage celibacy. History and our own experience teaches us that celibacy isn’t a viable option for the overwhelming majority of heterosexuals, so we shouldn’t be surprised to find that it is no more so for homosexuals.

Posted by: D.A. Ridgely | Feb 12, 2005 9:39:19 AM


Posted by: D.A. Ridgely

rtr wrote: I propose the thread title be changed to "Date and Switch".

Given that what contemporary Americans really believe in is serial monogamy, perhaps a better title would be “Mate & Switch.”

Posted by: D.A. Ridgely | Feb 12, 2005 9:55:08 AM


Posted by: LPFabulous

Mr. Velleman’s claim that marriage now has little or nothing to do with the regulation of sex seems to me to be too strong a claim. When we endorse loving and exclusive, committed relationships as the preferred context for human sexuality we are socially regulating sex whether or not we legally proscribe other forms of sexual behavior.

Are the people saying this actually serious? There are really people who still believe that marriage regulates sex? I have never in my life met anyone who seriously believes this. And I'm not just some Pauline Kael living in the intellectual backwater that is Manhattan. I grew up in the conservative suburbs in one of the richest counties in the country (read: Republican Central!). And no one has ever said this to me in anything like a serious fashion. It's just perfectly obvious to everyone that marriage has nothing to do with sex. Sure, it involves regulating/institutionalizing an arrangement for raising children, but our society has also successfully detached sex from purely reproducive functions. Why in the world are we still having this discussion?

Posted by: LPFabulous | Feb 12, 2005 12:37:53 PM


Posted by: D.A. Ridgely

Indeed I am serious. Suggest to the average husband that he call his wife and tell her “Honey, I’ll be home late tonight. I’m going off with some guys from the office to pick up some hookers.” and see what the reaction is. (Insert your own “wife tells husband about the pool-boy” joke here, or swap them around. No need to be sexist about it.)

Many people may not do well at fidelity in their relationships, including marriage, but the overwhelming majority do aspire to it. Moreover, most of them, including several homosexual couples I know, want to make that relationship public and official through the institution of marriage, however they may otherwise understand it, including whether they see it as a religious matter or want to have children, etc. That’s why many previously divorced (even several times divorced) people remarry without any interest at all in having children.

So, I don’t know if this exchange qualifies as finally having met someone who seriously believes what I wrote; but it does suggest you might want to widen your circle of acquaintances.

Posted by: D.A. Ridgely | Feb 12, 2005 1:13:10 PM


Posted by: David Velleman

D.A. Ridgely -- Do you mean that the reason why the man doesn't feel free to consort with prostitutes is that he is married? You mean, if he and his wife were just living together, then the hookers would be OK?

That's odd, because the man may well live in a state in which adultery is not a grounds for divorce. (My own state, Michigan, for example.) So how exactly is marriage enforcing sexual fidelity in this case?

To say that marriage doesn't regulate sex is not to say that nothing regulates sex. The standard of fidelity is alive and well. It just doesn't rely on the law of marriage.

Posted by: David Velleman | Feb 12, 2005 1:25:45 PM


Posted by: Mona

DAR writes: So, I don’t know if this exchange qualifies as finally having met someone who seriously believes what I wrote; but it does suggest you might want to widen your circle of acquaintances.

I also "seriously believe it," and, indeed, believe the anthropological evidence for the claim is overwhelming. It matters not one whit whether the folks in the 'burbs articulate the view, but rather what is the actual truth of the matter.

Marriage evolved as a means for fathers to be sure of their paternity, whether they had one wife or seven. The only way to be certain was to regulate the sexuality of the females, via marriage; to give the males an enforceable claim to exclusive use of the female's sexual services.

As time went by, many culures also began to see marriage in romantic terms, in which it should be a companionate arrangement of two people in love. But the sexual control function remained the basis for the institution. No one designed it that way, and it does not matter whether the average Joe even understands it, but that is the basis for the social evolution of marriage.

Today many who enter marriage do so only for its companionship aspects, and with no intention of having children. However, it remains as true in our culture as in any orther that heterosexual sex often makes babies, and not just any old ethos of coupling will do to protect the interests of children. No social regulation of sex at all is not a good thing, because of the children who result.

At this point, we have no effective ethos for regulating sex. This is why some are lobbying hard to bring back respect for marriage, and I can see why a non-religious person (such as myself) might see the social utility in doing that.

None of which impacts on my view that homosexuals should be allowed the same state-conferred benefits of the institution given to heterosexual couples. None of the anti-gay marriage apologists have remotely persuaded me that the crisis in heterosexual marriage is related to homosexuality, or that gay marriage would prevent we straights from putting our own house (and children) in order.

Posted by: Mona | Feb 12, 2005 1:41:29 PM


Posted by: D.A. Ridgely

Mr. Velleman:

I don't think it's an "either / or" situation, and I would be surprised if you did, either. I want to say only that marriage goes toward the social regulation of sex, not that it and it alone regulates sex. No doubt, also, its impact in that regard varies from couple to couple. People tend to think that they should remain faithful to their partners whether or not they are married, but I think most people tend to think their bond of fidelity is stronger in the context of marriage than otherwise. Does that really strike you as an odd claim?

Posted by: D.A. Ridgely | Feb 12, 2005 1:52:06 PM


Posted by: Mona

David V. writes: Do you mean that the reason why the man doesn't feel free to consort with prostitutes is that he is married? You mean, if he and his wife were just living together, then the hookers would be OK?

That's odd, because the man may well live in a state in which adultery is not a grounds for divorce. (My own state, Michigan, for example.) So how exactly is marriage enforcing sexual fidelity in this case?

But marriage traditionally was the "regulation" that offered sexual exclusivity. That some cohabitation arrangements have arisen in which such exclusivity is also expected and desired just means people still want a marriage-like arrangement. MI has abolished common law marriage for being a "meritricious" relationship, and so "punishes" people by declining to extend benefits and protections to them that those who formally enter the civil arrangment are extended. But until MI so declared, common law couples expected to be treated as if they were married. The institution guided their expectations, and often still does in the fidelity department.

BTW, in MI, fault, including adultery, can be and is used as a basis for penalizing the offending spouse in the property settlement. Some feel this has somewhat taken MI out of no-fault divorce law, altho the courts have placed limits on how severe the settlement penalty can be. (Caveat: I have not practiced family law in MI in about a decade, and that was the state of the law when I did.)

Posted by: Mona | Feb 12, 2005 2:01:32 PM


Posted by: D.A. Ridgely

Welcome back, Mona! I’ve felt a little lonely around here without you.

Look, there’s “regulate” in the purely legal sense and “regulate” in the broader social sense. I meant it largely in the social sense, but there’s no getting around the fact that the legal institution has a regulatory effect simply because it is legal. Forget pre-nups and no-fault divorce and all the rest of the ways marriage has become far less difficult to extricate oneself from, it’s still much harder to walk away from than living with someone or even the contractual equivalents gay couples have attempted to use in substitute for civil marriage. It’s not just a contract, it’s a change in social and legal status. However pro forma the process may be, married couples need a court’s permission to divorce. Lawyers get involved. Statutory waiting periods apply. Property settlements get really, really nasty. Etc., etc.

Now, I’ll gladly grant that people undertake such a change more lightly than they once did (too lightly, in fact), knowing that it isn’t necessarily “until death do us part.” (I am reminded of a ‘religious’ wedding where the minister said “You’re only married for the first time once.”) But, yes, I definitely do think that partners in marriage are more reluctant to acts of infidelity than non-married partners, and I don’t think that’s only because of the largely bygone threat of charges of adultery, etc. I think they undertake to restrain themselves in a way they previously had not done, and I think the fact of the legal institution and our encouragement of that decision to use it is a form of social regulation of fidelity.

Posted by: D.A. Ridgely | Feb 12, 2005 2:33:08 PM


Posted by: David Velleman

D.A.Ridgely asks: "I think most people tend to think their bond of fidelity is stronger in the context of marriage than otherwise. Does that really strike you as an odd claim?"

There's nothing odd in the claim that people feel their bond of fidelity to be stronger because of their having made a public declaration of their mutual commitment. But many same-sex couples have public commitment ceremonies, without the benefit of legal marriage. No doubt, those couples feel that their bonds of fidelity are stronger after being expressed in a public commitment. And what would legal marriage add to those bonds? I don't know, since the enforcement of fidelity is has virtually disappeared from the law of marriage.

Yes, Mona, marriage was the way in which the law expressed and enforced the obligation of sexual fidelity: but it isn't that any more. And I don't think we really want to talk about what marriage has "traditionally" been, since one of its primary traditional functions was to extinguish the legal personhood of the woman, by making her a legal appendage of her husband, unable to own her property, make contracts, press legal claims, earn her own wages, choose her own place of residence, and so on. People who talk about "traditional" marriage should be careful, since the tradition is not a pretty one. The more I learn about "traditional" marriage, the less I understand why anyone would want access to it.

I don't see what the status of common-law marriage in Michigan has to do with the matter. The fact that common-law marriage was called "meretricious" is just a piece of rhetoric. And the "punishment" meted out for this meretricious relationship, as you describe it, was simply the denial of the "benefits and protections" of legal marriage -- which no longer include a right to sexual fidelity (except perhaps in the division of property at divorce). So what is the point?

I ask readers who are married to take a moment to list what they know about their legal status as husbands or wives. (Not you, Mona -- you've practiced family law.) Here is my list:

1. We can file a joint tax return.
2. Um...

I know there are some provisions about property and inheritance, but damned if I can say what they are. How exactly did getting married change my property rights? I have no idea. I know there are provisions about custody of children, but I don't know what those are, either.

My guess is that most people don't really know what being married amounts to, legally speaking. And it's the legal institution that we're arguing about when we argue about same-sex marriage.

Posted by: David Velleman | Feb 12, 2005 3:16:28 PM


Posted by: Perseus

David V: I was only using the word "deviant" because of my original mention of Daniel Patrick Moynihan's argument. It's not my preferred term either.

Posted by: Perseus | Feb 12, 2005 3:34:00 PM


Posted by: David Velleman

OK, Mr. Ridgely, now I see what you're getting at. Legal marriage gives people an incentive to remain in a relationship, by entangling their affairs in ways that are difficult to disentangle. Of course: that's understood. But now we've come a long distance from "regulating sex".

Remember how we got here. This line of discussion started when I spoke about having decided to share my life with another person, creating a union. I said that a union of this kind isn't necessarily or essentially about sex. And then people said "No, no ... marriage is all about the regulation of sex." Now it turns out that what you meant by the regulation of sex was -- well, the legal formalization of a union. And we're back where we started.

There are all kinds of fidelity -- many different ways of being true to the people to whom we are committed. Legal marriage does formalize fidelity in a relationship. But it isn't specifically sexual fidelity, at least not any more.

Posted by: David Velleman | Feb 12, 2005 3:51:06 PM


Posted by: Paul Shields

And it's the legal institution that we're arguing about when we argue about same-sex marriage.

Why is this David? On the surface it seems to me that legal institutions are the subject of the civil union debate, but that the question of same-sex marriage is about a much larger cultural concept.

Posted by: Paul Shields | Feb 12, 2005 5:26:55 PM


Posted by: Mona

David V. writes: Yes, Mona, marriage was the way in which the law expressed and enforced the obligation of sexual fidelity: but it isn't that any more. And I don't think we really want to talk about what marriage has "traditionally" been, since one of its primary traditional functions was to extinguish the legal personhood of the woman, by making her a legal appendage of her husband, unable to own her property, make contracts, press legal claims, earn her own wages, choose her own place of residence, and so on.

Well, pace David V., but I do want to talk about what marriage has traditionally been, and I also disagree that marriage no longer enforces sexual fidelity (depending on what you mean by "enforces.") It is true that 19th century America imposed a very unfair legal scheme on married women, to the point where they could virtually never be awarded custody of their children in the event of a divorce. But it is also true that the evolution of marriage was driven by the need to ensure that fathers would care for their offspring; much evidence indicates that men who are unsure they are the father of a child will not care for it, and very frequently will refuse to do so when they are very sure a child is not theirs.

It may not accord with contemporary notions of gender equality, but controlling female sexuality via marriage served the good of the species. Women always know their children are theirs; men could have reasonable certainty about that only when they "owned" their wives' sexual services. It is not surpising that successful cultures devised institutions to meet this problem.

Further, women become pregnant and in most times and places nurse them. This inhibits their mobility and options, especially so when marriage meant a dozen or so pregnancies. Therefore, it made sense for society to evolve such that the women would be in charge of domestic matters, while men tended to affairs outside the home, which usually meant supporting the household by sweat of brow. This division of labor may seem unequal to us today, but we live in a time where labor-saving technology, goods and devices have largely freed us from the division's necessity. (Maytag, ready-to-wear clothing and contraceptive technology have more to do with my liberation than does NOW.)

But there remains the issue of seeing to the children. I am not prepared to simply jettison the social conventions that brought Western culture as far as it has come, and one of the most important of these for children is marriage, and some constraints on "anything goes" sexual activity. It is not good for, say, 14-yr-olds to be sexually active, because they cannot be expected to assume responsibility for infants -- children deserve adult parents, preferably two in a stable relationship, who are mature enough to assume parental responsibilities. Traditional marriage, with its focus on fidelity and commitment to home and family, was and is good for children. Taboos on too-young or other "inappropriate" sexual activity are also good for children.

My point is, notwithstanding some of the collateral injustice that traditional Western marriage did sometimes include, it is folly to simply abandon it wholesale when it has served a very important social function. Tearing it down is easy; it is not easy to simply find and impose an equally salutary social arrangement.

About my comments on common law marriage and its abolition in MI. I wasn't very clear there, but I was trying to convey that even couples who cohabit frequently adopt the mores and expectations of traditional marriage. But for good or ill, MI courts decided the "real thing" is so important that those who decline it will not be accorded any of its protections, even tho they want them. I would argue this is not a bad public policy position, if it encourages people to enter traditional marriage. My further point is in response to someone up thread who seemed to think that because a lot of folks cannot articulate the reasons a culture develops marriage, does not mean they do not intuitively wish the securities that attend to it, or that the reasons do not exist. I think those in non-married sexual relationships, who expect fidelity, are demonstrating the validity and legitimacy, indeed, the great importance, of marriage as a social glue.

I'm waxing Hayekian. (I often do.) While I reject coerced social arrangements, and have no objection to change when it occurs organically and calmly, I am deeply suspicious of slash and burn hostility to a convention that has evolved over millennia, and which may offer benefits and a stability we cannot well do without.

Posted by: Mona | Feb 12, 2005 5:50:31 PM


Posted by: D.A. Ridgely

Mr. Velleman:

Hmmmm, well, in answer to your question regarding marriage:

You are automatically each other’s next-of-kin for purposes of, say, medical procedure authorizations, and countless other legal representations;

You typically have a right to inherit against an adverse will made by your spouse (common law dower and curtsy rights) or you get common property rights in western states, absent a strong pre-nuptial agreement;

If you are the father of any children by the relationship and your spouse dies, there is a strong presumption at law that you will get custody as opposed to the legal next-of-kin;

You have an insurable interest in the life of your spouse without raising undue suspicions;

You can jointly, with rights of survivorship, own real estate in ways that permit direct inheritance outside of any testamentary devise requirement.

And I suspect I could think of a few more (and I assure you I’ve never practiced family law nor even taken a class in it.

Anyway, yes, I see where the conversation began. But goodness gracious, all I said originally was that I thought your statement was a bit too strong, not that it was fundamentally wrong. And I certainly never said marriage was all about regulating sex.

Posted by: D.A. Ridgely | Feb 12, 2005 7:23:39 PM


Posted by: David Velleman

Mr. Ridgely: You missed the point of my question. (If I want legal advice, I know where to find it.) My point was that people feel intuitively certain that they know what they are arguing about, when they argue about marriage, but on reflection they will find that they have very little idea. I was asking readers to inventory their own knowledge of their legal status as husbands and wives. The question on the table is whether same-sex couples are to be accorded that status. Insofar as people don't know what the status is, they don't know what they are arguing about.

(You may not have practiced family law, or taken a course in it, but I note that you do not rule out the hypothesis that you have some specialist knowledge of the law. So the erudition shown in your comment doesn't persuade me that the general public knows much at all about the law of marriage.)

Paul Shields: The President has proposed a constitutional amendment. He has done so because courts in Massachusetts and now New York have ruled that same-sex couples have a right to marry. Both the court decisions and the constitutional amendment are about the legal definition of marriage -- not any "larger cultural concept". So, yes, we are arguing about the law of marriage, since that's all the courts and the constitution can define.

Mona: I think I have made it clear that I am concerned about teenage sexuality as you, and equally disturbed by "'anything goes' sexual activity". I've also made it clear that I think marriage is the proper environment for the raising of children. But if you think that defending traditional marriage is the way to address the problems of promiscuity and teenage sexuality, then you are (in my opinion) out of touch with social reality. (I think the expression I want is something like "closing the barn door after the horse has fled" -- but I'm a city boy, so I've probably got it wrong.)

Others: I invite gay and lesbian readers to tell us how they conceive married status, and why they regard it as desirable. (I have temporarily enabled anonymous comments, to facilitate this discussion.) I, for one, have learned about various features of marriage law only by hearing of the difficulties encountered by same-sex couples who have been deprived of them. My guess is that same-sex couples today have a better appreciation of legal advantages of being married than married couples do -- precisely because they cannot take those advantages for granted.

Posted by: David Velleman | Feb 12, 2005 9:45:46 PM


Posted by: Mona

David, if you will permit me to offer one benefit of marriage, since my appreciation for it comes wholly independent of direct professional training or experience. Heterosexuals who fall in love with foreign nationals may marry them, and the alien spouse is thereby eligible for citizenship.

A former very close friend of mine is a gay male, and his SO is from Austria. They met in a top tier American law school and have been together for over ten years now. However, the Austrian half of this couple was under constant threat of deportation, and when last I was in communication with them -- before the NY court had ruled as it just did on SSM -- they were playing games with the (now defunct) INS to convince it that, as a NY real estate attorney, the Austrian was filling an employment niche in which there were no qualified Americans available. (The absurdity of this charade never ceases to make me giggle, as if there is ever a freakin' shortage of lawyers of any sort in NYC. But that is the transparent nonsense they were forced to press if the Austrian was to be allowed to stay, since marriage and one of its very important benefits was foreclosed to them.)

Anyway, we are in basic agreement on SSM, it would appear. It is also not clear to me that we are in much disagreement about the valuable social role of traditional marriage, and I'm wondering of it is the word "traditional" that has you thinking we are far apart in our views. You seem to agree that marriage is the proper setting for bringing children into the world. I think so, too, but I'm not advocating a return to a scheme in which women are infantilized by the institution.

That being so, and setting aside the religious right's opposition to SSM, why could people of our view not support them in privileging marriage over other arrangements, especially when children are involved?

I mean look, I do not seriously think non-marital sex is going to end any time soon, and also would not even claim to think it is wrong for adults who are responsible with birth control. (Not to get into the too much information realm, but I'd be the worst hypocrite to claim otherwise.) But I do not see what would be wrong with encouraging our media and others who transmit culture to elevate and promote marriage and fidelity therein.

Posted by: Mona | Feb 12, 2005 11:49:24 PM


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