Left2Right

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Posted by: John F. Opie

Sorry to irreverant, but it reminds of a one-liner I read somewhere regarding gay marriage.

When asked about whether he supported gay marriage, one elderly man replied:

"Why? Haven't these people suffered enough?"

:-)

Which fits into what Sowell is saying. And that's all I'm gonna say on this subject...

Posted by: John F. Opie | Jan 4, 2005 9:56:06 AM

Posted by: Paul Deignan

Unfortunately (or not depending on your stance), dignity cannot be achieved by co-opting the goodwill earned by others by fraud. Since a heterosexual marriage and the proposed homosexual marriage are identifiably two different types of unions, I think that we will find that they will always be considered as such if and until homosexuals demonstrate the same (or better) fidelity, etc. that have given heterosexual marriages such enviable status.

So for these purposes, it is counterproductive to call the two unions by the same name at this time. Dignity claimed by force is always suspect in the same way that the propaganda of fascist states is suspect. Now ask the question, "Is what is desired really 'dignity'?"

Posted by: Paul Deignan | Jan 4, 2005 10:05:01 AM

Posted by: Steve Horwitz

And this should be an issue that the left and libertarians can agree on, at least in the world of the second best. Folks from both camps have also argued that perhaps it's time for the state to get out of the marriage business altogether, which is fine and dandy by me. But, as with the thread on tsunami relief, given that the state IS involved with marriage for the forseeable future, the question is what it should do now. In that world, the issue is pretty much as Don frames it: equality and dignity. I also happen to think that the social consequences of permitting same-sex marriage are, on net, largely positive.

Posted by: Steve Horwitz | Jan 4, 2005 10:08:54 AM

Posted by: Lynn Sanders

Saying "marriage is a restriction" is a way for Sowell to evade the question, why should state-sanctioned marriage be for straight people only?

If Sowell is really against special privileges, why doesn't he argue that no couples should expect their coupledom to be endorsed as marriage by the state. Like gay ones, straight couples may make their own contracts, have their own ceremonies, and so forth.

On Don's broader argument, I'm not sure that the striking resistance to gay marriage that Americans are currently expressing is at bottom a result of an unwillingness to extend basic respect and dignity (though there's certainly plenty of that going around). Instead, vehement straight opponents of gay marriage seem to fear a loss: if the state redefines marriage to let gay citizens do it, they won't really be married any longer. Or, put another way, there seems to be a conception that equality and dignity are zero-sum: extend them to too many people, and they won't be worth much anymore.

Posted by: Lynn Sanders | Jan 4, 2005 10:21:06 AM

Posted by: Dallas

If we extend marriage rights to gays and lesbians, we are saying that in the eyes of the law their relationships are worthy of respect, equal to those of straight couples who want to make the same commitment.

Now, I see! The law is to be used as a therapeutic device! We shall raise the self-esteem of homosexuals! Very clever!

Posted by: Dallas | Jan 4, 2005 10:21:55 AM

Posted by: isabel

Re: "Since a heterosexual marriage and the proposed homosexual marriage are identifiably two different types of unions, I think that we will find that they will always be considered as such if and until homosexuals demonstrate the same (or better) fidelity, etc. that have given heterosexual marriages such enviable status."

A couple of questions:

1) Besides gay marriage being between two people of the same gender, how else is it identifiably - and relevantly - different from hetero marriage?

2) What are the statistics re: "fidelity etc." of hetero marriages v. gay unions?

Thanks.

Posted by: isabel | Jan 4, 2005 10:25:03 AM

Posted by: slarrow

Prof. Herzog: I certainly hope you didn't mean to, but you left out the core of Sowell's piece. These are the money grafs:

"The issue is not individual rights. What the activists are seeking is official social approval of their lifestyle. But this is the antithesis of equal rights.

If you have a right to someone else's approval, then they do not have a right to their own opinions and values. You cannot say that what 'consenting adults' do in private is nobody else's business and then turn around and say that others are bound to put their seal of approval on it."

The first half of Sowell's piece is to establish that the cited benefits of marriage that certain homosexuals claim they want is a red herring. Most of those "instrumental" points you mention can indeed be established through contract law instead of creating homosexual marriage. He claims that it's a smokescreen because the real issue is legitimacy. (Incidentally, I think you've confirmed that with your post, Prof. Herzog.)

I would like to see you re-evaluate your piece in light of the statement I quoted. Do you think the "dignity" and "legitimacy" that homosexual marriage would entail is so obviously proper that you're willing to legislatively override the objections millions of Americans would register?

At its heart, this is a question of exactly what "tolerance" means.

Posted by: slarrow | Jan 4, 2005 10:26:58 AM

Posted by: Terrier

Before this thread dissolves into skull-bursting invectives let me just say what you hinted at and we all know. To some people, the sight of two men or two women on a public street holding hands or exchanging a peck on the lips is so terrifying that they will gladly squeeze themselves into any kind of legal, moral, or religious straitjacket necessary to prevent it. They actually have a physical reaction to this because it has been ingrained in them as a taboo. If you don't feel this, imagine having sex with a sibling and contemplate your own taboo driven revulsion. Sowell is one of these people. When he says he is afraid of the "stamp of acceptance on homosexuality"; what he is really afraid of is feeling his learned reaction to homosexuality. What can we do about this? Typically these people will tell you that they are not against equality and they are not homophobes and they just have to be convinced that there is some reason blah, blah, blah, blah, blah, blah... bullshit! We are, each one of us, responsible for our own feelings, thoughts, desires, and actions. Talking heads, posting professors, or assorted gay people are not capable of convincing anyone to lose this feeling. These people must accept their responsiblility and either overcome this feeling or admit that they do not support equality.

Posted by: Terrier | Jan 4, 2005 10:31:21 AM

Posted by: Michael

In order to write a convincing rebuttal, Professor Herzog would need to address Sowell's strongest argument, and he fails to do so. Sowell's main point is that marriage laws have developed over hundreds of years to confront issues uniquely posed when two people of different genders decide to have children. Merely transposing the existing marriage edifice, which developed for a specific purpose that Sowell finds incompatible with gay unions, is unlikely to benefit gays in terms of "equal rights." Sowell believes that gays know this, and that the "equal rights" rallying cry is a deception. The real issue is full acceptance of a lifestyle that most Americans do not wish to recognize. Professor Herzog shows that he misunderstands Sowell in the last line when he says that we should talk about "equality [of recognition, I think he means] and dignity," rather than "freedom of contract and 'special priveleges.'" This is PRECISELY what Sowell is saying.

Posted by: Michael | Jan 4, 2005 10:34:22 AM

Posted by: Steve Horwitz

slarrow writes:

Do you think the "dignity" and "legitimacy" that homosexual marriage would entail is so obviously proper that you're willing to legislatively override the objections millions of Americans would register?

Now there are clearly differences between interracial and same-sex marriage, but on one point there is a clear analogy: in both cases, public opinion was strongly against legalization. In fact, the opposition to interracial marriage was greater, according to most polls, in the mid-60s than is the opposition to same-sex marriage today. Given that, let's rephrase slarrow's question:

Do you think the "dignity" and "legitimacy" that *interracial* marriage would entail is so obviously proper that you're willing to legislatively [I think you meant "judicially" - SH] override the objections millions of Americans would register?

The Supreme Court did just that in 1967 and the world did not come to an end. Not only that, it was the right thing to do, both in terms of justice, equality, and dignity AND social consequences. The whole point of having a constitution and the checks and balances that a judical branch can provide is *precisely* to override the popular will when that will is in conflict with underlying constitutional provisions/rights. (And yes, I'll gladly make the case that same-sex marriage can be defended on constitutional grounds, or you can see the excellent book by Evan Gerstmann: *Same-Sex Marriage and the Constitution*, Cambridge, 2004.)

Don has just happened to stumble across an issue that fires me up, so it looks like little real work will get done today!

Posted by: Steve Horwitz | Jan 4, 2005 10:35:55 AM

Posted by: Steve Horwitz

Michael writes:

Sowell's main point is that marriage laws have developed over hundreds of years to confront issues uniquely posed when two people of different genders decide to have children. Merely transposing the existing marriage edifice, which developed for a specific purpose that Sowell finds incompatible with gay unions, is unlikely to benefit gays in terms of "equal rights." Sowell believes that gays know this, and that the "equal rights" rallying cry is a deception.

It's not at all clear historically that marriage developed to solve the problems that you think it did. Moreover, if that's the case, why do we permit childless or infertile couples to marry? And given that we do, and the world doesn't come to an end, what is the objection to extending marriage to same-sex couples who cannot, at least in the same biological way, have children? And what is the objection to extending marriage to said couples when they CAN have children in some ways that heterosexual couples do (e.g., adoption, artificial inseminiation)? If same-sex couples wish to be parents, shouldn't your argument that marriage is about the problems raised by children *support* the case that said couples should be legally entitled to the same form of marriage as heterosexuals? And why are the problems that marriage solves with respect to children (and I agree that that is a significant part, but not the only one, of what marrriage "does") apply only to opposite sex parents? Why are the issues they face in raising children different than those faced by same-sex parents in such a way that marriage solves one but not the other?

For a guy from New York, I sure have a lot of questions!

Posted by: Steve Horwitz | Jan 4, 2005 10:42:02 AM

Posted by: slarrow

Steve--I did indeed mean judicially. My error there. I would accept, however grudgingly, legislative enactment, and I think Sowell might as well. I don't think he likes the notion of disingenous argumentation to get there, though, which is the point of his article.

I think, however, the argument by analogy between homosexual marriage and interracial marriage fails for a number of reasons (primarily that sex is integral to the concept of marriage in a way that race is not.) Consequently, I am little moved by "the world didn't end" and "liberals got it right in the past" arguments (while making no concessions to the actual correctness of those statements.)

To answer your question: no, I do NOT think the dignity and legitimacy of interracial marriage is sufficient to override the objections of millions of Americans (presumably a majority.) But that's because I don't think "legitimacy" and "dignity" of anything justifies circumventing the constitutional processes. Now, if you can make a solid case on "constitutional provisions/rights" grounds that a particular law violates the constitution (as it was written and understood by the writers!), that's a different story. If you're trying to get a law passed based on the dignity and legitimacy it offers, that's fine too; if I agree with it, I'd even vote for it. But the tactic Sowell is describing short-circuits all that, I submit.

Posted by: slarrow | Jan 4, 2005 10:53:46 AM

Posted by: Daniel M.

Slarrow hits the nail on the head when he centers his comments on the central graphs of Sowell and narrows his focus to tolerance: I am of a similiar mind.

State "approval" does not gaurantee acceptance. While I approve of gay marriage, all any social group can hope for is tolerance, NOT acceptance. And that the SJC "approved" gay marriage in Massachusetts in no way confers a democratic approval (though a constitutional approval may be argued).

Posted by: Daniel M. | Jan 4, 2005 10:54:37 AM

Posted by: D.A. Ridgely

Regardless of what Sowell did or did not mean, I agree entirely with Mr. Herzog. I once mentioned flag burning as one issue about which the non-libertarian Right is simply irrational. Marriage (as a civil institution) for homosexuals is another. (If nothing else, principled federalism requires that civil marriage qualifications be a matter for each of the several states to decide.)

I have also argued in other threads that Western society and civilization have benefited greatly by moving from a status based culture to a contract based culture. We speak of marriage as a contract but in fact it constitutes a distinct legal status. (Note that contracts can almost always be rescinded merely by the mutual agreement of the parties. Not so, obviously, with marriage ‘contracts.’) Thus, just to grind my libertarian axe here for a moment, I’d prefer if all civil marriages were reduced to mere contract status, recognizing that the relationship between parent and child is still a status relationship that requires different sorts of legal implications.

I think this is also relevant to several other threads, e.g., the “Christian Nation” thread. What we seem to have here is a long history of convergence between the religious concept of marriage and the social concept. Now, the social institution of marriage existed in some manner or other long before it was ‘sacramentalized’ in the Judeo-Christian tradition, and I think it is a fundamental and necessary institution for the perpetuation of human civilization. But we need not and should not continue to confuse these two quite distinct (albeit sometimes complementary) concepts in our secular institutions.

I’m not sure the state should be in the dignity affirming business, but it sure as hell shouldn’t be in the dignity denying business. If there are secular reasons against gay marriage less risible than fear that heterosexuals might ‘convert’ or that institutionalized gay monogamy might somehow increase the spread AIDS, I’d be happy to hear them. But I haven’t encountered one yet.

[Shameless Self-promotion Section: Speaking of the Liberty Fund, let it be known far and wide that I am available at the proverbial drop of a hat for any of their numerous conferences. I attended one several years ago and had a splendid time. Alas, no subsequent invitations have been forthcoming, but I continue to live in hope for a return engagement. So, if any of you academic types might be putting together a recommended invitation list for the folks back in Indianapolis to consider and are looking for, shall we say, a bit of intellectual diversity, I’m your boy! – DAR]

Posted by: D.A. Ridgely | Jan 4, 2005 10:59:26 AM

Posted by: Paul Deignan

isabel,

Probably a bit more boring than you were hoping, but in answer to your questions:

1) Just identification by gender was all I was thinking. That is enough for people to start to form opinions between two groups.

2) Don't know. I suppose if we had something like a civil union then we could start to develop statistics of all sorts. For the record, I think that civil unions should be open to both heterosexual and homosexual couples. That would also help in comparing apples to apples.

Marriage per se is a state co-option of a religious structure. Since the state did this largely in concordance with the practices of the major religions (the state recognized marriages performed by these institutions for its legal purposes as the covenant between the individuals without additional provisions), there was no great problem in the past. Now we can and should expect problems as the state or parts of it attempt to take a divergent path. A simple and direct legal arrangement would be for the state to establish a state union for the good of the state and to call this union something different from "marriage". Then, the state can set its own standards without affront to the religious sensitivities of the population and without confusion. This is an honest method of settlement here. Again, note that the union would necessarily need to be open to heterosexuals as well. (The state could play around with age restrictions, sanity requirements, etc.)

Posted by: Paul Deignan | Jan 4, 2005 11:08:15 AM

Posted by: Michael

Mr. Horowitz, I was only attempting to explain those points that Sowell made that Professor Herzog misunderstood, not presenting my own views. I think that Sowell's column is unconvincing as long as he neglects the excellent questions you've asked.

This issue is complicated, of course. Subjecting the marriage tradition to a rigorously rational analysis is certain to yield contradictions. This happens with every tradition. I don't think that inconsistency alone constitutes sufficient grounds to discard a tradition. For example, if gays were to gain the right to marry, one cannot rationally deny other types of marriage: polygamy, man-beast, etc. All that would prevent those things would be tradition and taboo. Now, admitting that there are counterexamples, it seems clear that the marriage tradition developed as a way of fitting the biological need to procreate inside the setting of civilized society. This is inapplicable in the case of gay marriage. The justification for gay marriage would then need to be different than the justification for straight marriage. It would need to arise out of a different tradition and incorporate different taboo myths and conventions. This is what Sowell and many other conservatives are against. Sowell is saying, and I agree to an extent, that gay marriage is not about tax breaks or hospital vistation rights. It is about breaking new ground in terms of social conventions and revolutionizing the grounds of marriage that have stood in our society for hundreds of years. Where you stand on this latter issue determines where you stand on gay marriage.

Posted by: Michael | Jan 4, 2005 11:11:04 AM

Posted by: Bernard

For the record, I'm almost entirely in agreement with DA Ridgely on this issue.

To my occasional shame the idea of gay men disgusts me in a way which affects the way I react to them personally, but if this were sufficient grounds for legislation then Jay Leno would long since have been declared illegal.

Posted by: Bernard | Jan 4, 2005 11:14:15 AM

Posted by: Steve Horwitz

Slarrow writes:

I think, however, the argument by analogy between homosexual marriage and interracial marriage fails for a number of reasons (primarily that sex is integral to the concept of marriage in a way that race is not.)

I'd be interested in hearing the argument for that assertion. It seems to me it's definitional - sex (I assume you mean the category sex, not the act) is only central because of how we define marriage. When we think about the *functions* of marriage as a social institution, the centrality of the sex of the partners, particularly as marriage has evolved in the last 50 to 100 years, seems to me to have less and less importance. And that diminution, which is part and parcel of other changes in gender roles and the family, is precisely why the issue of SSM has risen to the surface.

Let me pose a question for the conservatives who read L2R:

How is it that you can claim to support the dynamism and discovery processes of the market, yet want to stand athwart culture and yell "stop" when the very same dynamism and discovery processes operate there? If the spontaneous ordering forces of the market are so beneficial, why isn't the same true of the spontaneous ordering forces of the broader culture? Why isn't the evolution of marriage and family just like similar ongoing change elsewhere? (Before you say "because the state intervention has caused these undesireable changes in the family", that argument, while having some truth, won't get you there.)

More interestingly, how can conservatives hold those positions when many of the changes in the family, including the demand for SSM, are largely *the result of economic changes brought about by the ongoing evolution of markets/capitalism*? You can't have it both ways my conservative friends: it's economic growth produced by capitalism that has created the groundwork for the evolution of gender roles, the institution of marriage, and the institution of the family. You can't put the toothpaste back in the tube, and the only way to even attempt it will involve all sorts of interventions into the economy that conservatives normally claim to opppose. You can't just convince women to go back to the home (as if women being in the home were the norm rather than the exception in human history) when every single economic-structural incentive says otherwise.

Of course, one can reverse this argument to my friends on the left: understanding the role played by market-driven economic growth in making possible the changes in gender and family that we've seen in the last 100 or 200 years should be yet another reason to be respectful of the positive effects of market capitalism in achieving the sorts of gender equality that the left champions.

More recommended reading: John D'Emilio, "Capitalism and Gay Identity" - a classic article on that relationship that has been reprinted in a number of readers on gender and sexuality.

Man, I need to lay off the Starbucks French Roast.

Posted by: Steve Horwitz | Jan 4, 2005 11:17:24 AM

Posted by: Paul Deignan

How is it that you can claim to support the dynamism and discovery processes of the market, yet want to stand athwart culture and yell "stop" when the very same dynamism and discovery processes operate there?

Steve,

In a word: diversity

Posted by: Paul Deignan | Jan 4, 2005 11:32:03 AM

Posted by: noah

I think Judge Posner would not rule that the U.S. Constitution requires the recognition of same sex marriage...I daresay that virtually everyone who commented here at l2r and elsewhere would have to agree that no one really came even remotely close to refuting his legal philosophy...mainly because no one was able to provide a knock down reasoned arguement for any particular moral belief which would of course be decisive.
Perhaps if we lived in some idealistic libertarian world with some other constitution which permitted expansive judicial interpretation he would rule otherwise but I doubt it.
We have all seen what happened following Roe v. Wade. What is wrong with just following the Constitution? All attempts to prove that same sex marriage is the only acceptable moral position are doomed...why is it right for judges to impose their beliefs on anyone?

Posted by: noah | Jan 4, 2005 11:49:11 AM

Posted by: Terrier

Thanks Bernard for being a big enough human to admit a failing to yourself and for trying to overcome it (many here have not taken the hint.) Since someone did bring up the ridiculous argument of society-ending polygamy, bestiality and blah, blah, blah, blah... Wake up!! Come on, when you receive a marriage proposal from a German Shepard then I'll revise my views on bestial marriage. As for polygamy, polyandry, and other diverse arraingements - does anyone think that people who want to live this way are not now doing it? And does that number approach the number of homosexuals in our world? And again, so there is no misunderstanding - old guys marrying housefuls of child brides is not polygamy - it is child-abuse pure and simple. These objections are all just big squiggly crimson fish used to avoid facing your own self.

Posted by: Terrier | Jan 4, 2005 11:53:34 AM

Posted by: slarrow

"...sex (I assume you mean the category sex, not the act) is only central because of how we define marriage." Pardon me for just a moment while my mind boggles at that statement, Steve! *wink*

Sex is central because of how we define marriage? Well...yeah. It helps if you understand that I mean both the act and the category. Marriage both legitimizes particular sexual behaviors and provides the framework for dealing with the children that sexual behavior can produce. That's what the whole debate is about: changing the definition of marriage.

I think Maggie Gallagher's formulation of this is the best I've seen. She says, "If sex between men and women did not make babies, marriage would not exist as a universal human institution. It is core to the project in this sense: it is the main social problem that marriage as a public and legal institution addresses...The solution to the problem, in our culture, is to prefer that most men and women get married, because once they are in this kind of sexual union, you no longer have to worry about the fact that sex makes babies. It may or it may not, but it is no longer a social concern." (http://www.marriagedebate.com/mdblog/2004_11_28_mdblog_archive.htm#110201377859676695) That should get at both your category and act concerns.

In fact, read the rest of that archive page if you have time; it covers some of this ground far more thoroughly than we have here, including the question of childless couples. (And it is an actual debate with real exchanges between sincerely committed opponents, which is nice.)

As for your second question, I think you're creating a contradiction where none exists. The market and the culture just aren't similar enough for the same practices to apply. The short answer to "[i]f the spontaneous ordering forces of the market are so beneficial, why isn't the same true of the spontaneous ordering forces of the broader culture?" is that potato plants don't produce oranges.

A more specific answer is that the free market actually does have some ground rules and that the activity of that market does not affect those rules. In the kind of so-called spontaneous social change I think you're talking about, though, it's all about changing the ground rules. Put another way: conservatives like to conserve institutions, and the free market itself is one of those institutions. But we don't demand that the particulars of one institution must play out in all other institutions. So your charge that because I support the effects of the rules of the institution of the free market, I must also apply those effects to social institutions that have different rules...that just doesn't compute to my mind.

As for your claim that I can't work in the social realm to ameliorate some of the effects from the economic realm without rejecting one or the other...again, I don't see the contradiction. Of course I can press for the prosperity that comes from the implementation of free market principles while attempting in the social realm to reduce the hold that an improper valuation of personal prosperity has on a person's soul. Money ain't the root of all evil; it's the love of money that's the root of all kinds of evil, and that human failing really doesn't have anything to do with free market principles.

Finally, you say, "[y]ou can't just convince women to go back to the home...when every single economic-structural incentive says otherwise." Of course I can, because people aren't motivated solely by economic incentives. I can do so without ever destroying the economic incentives by suggesting to families that children need mommies more than families need neater stuff. People who accept this freely without coercion will indeed change market conditions (e.g., lesser demand) without changing market principles. Again, I just don't see the conflict.

And that really will have to be my last word on it for a while; other duties call. Steve, it's been a very enjoyable exchange.

Posted by: slarrow | Jan 4, 2005 12:08:51 PM

Posted by: Steve Horwitz

Noah asks:

What is wrong with just following the Constitution? All attempts to prove that same sex marriage is the only acceptable moral position are doomed...why is it right for judges to impose their beliefs on anyone?

I'm all in favor of following the constitution. There is a series of SC cases that treat "the right to marry" as a fundamental right (starting with Meyer v. Nebraska in 1923). There is a 14th amendment that guarantees equal protection. Unless the case can be made that there is some overriding reason that equal protection doesn't apply here, or that some serious harm will be done by applying it, the SC can put the two together make the case. And it's one that even a fairly mainstream jurist could acceot. One doesn't even need to go to more radical arguments about the 9th amendment and unenumerated rights (even though I think they are stronger ones).

Should the SC declare SSM constitutional, it would hardly be judges legislating morality any more than was Loving v. Virginia or Lawrence v. Texas (or insert your favorite here). Yeah, Roe was bad law, but not because it recognized that the right to abortion was protected by the constitution, but rather because of how it got there.

Posted by: Steve Horwitz | Jan 4, 2005 12:11:03 PM

Posted by: Steve

The reason conservatives oppose gay marriage is because they see heterosexual marriage as a unique and valuable way for people to live, and offering the State's sanction to this way to live (by calling heterosexual duos 'marriage,' and by not calling non-heterosexual, or non-duos, 'marriage') is a way to encourage people (adults as well as children) to live in this way. Generally, conservatives don't want to remove other options from the way people live: homosexuals are free to live together, groups (in the form of communes, or trios, or whatever) are free to live together, adult children are free to live with aged parents. Conservatives simply don't want to offer the same State sanction to those living arrangements.
Note that every 'logical' argument used by liberals for homosexual marriage can be used for any marriage arrangement whatsoever. There is no 'logical' distinction between heterosexual marriage, homosexual marriage, marriage between adult children and parents, marriage between siblings, marriage between groups greater than two, or even marriage between a person and a pet or a can of soup (the last is not as facetious as it sounds: people bequeath their estates to pets all the time. Why not marry them?). I am presuming that noone (or at least very few) want to redefine marriage to include all the above cases (or any other absurd case one could come up with). Thus, pro-homosexual marriage proponents, really want to do what anti-homosexual marriage proponents want to do (draw a logically indefensible line, define marriage as a logically indefensible something)-they just want to draw the line in a slightly different place.
Thus, pro-homosexual marriage proponents are playing a bit of a con game. They use the logical argument ('there is no logical difference between heterosexual and homosexual marriage, therefore there is no justifiable legal distinction), in order to draw a logically indefensible line, and demand non-logically defensible benefits (dignity, State and societal sanction, recognition of one's 'humanity', etc). If marriage really is 'just' a contractual arrangement, then marriage is unnecessary-one could get the same benefit by simply establishing the contractual arrangements through the legal system (visitation at hospitals, shared assets, etc etc). Obviously 'marriage' is something over and above a contractual arrangement-State recognition and sanction of one (of many possible) living arrangements. The Left are using a logically based argument for a value-laden consequence, which is itself not logically defensible. Stripped to its essence, the Left is saying "Logically, if we recognize and sanction heterosexual marriage, we are obligated to recognize and sanction gay marriage," which, of course, absurd ("Logically, we are obligated to recognize and sanction membership in the Communist Party," "Logically, we are obligated to recognize and sanction a menage a trois," "Logically we are obligated to recognize and sanction alcohol abuse," and so on through any possible lifestyle choice).
In essence, if you want to argue that homosexual marriage should be allowed because it is equal to heterosexual marriage and thus deserves the same State sanction, it would be an acceptable argument (though one with which I disagree). Its not a very good argument to make, though, because it is arbitrary, and not really winnable (there is no 'right' answer to whether heterosexual marriage, homosexual marriage, or commune living-or any other- is appropriate for society-it just depends upon the society, the society's traditions, etc etc. And in our society, you probably won't win).
But when you make the argument that logic demands that homosexual marriage be allowed in our society, you are both making an argument that doesn't apply to a values-based judgement, and making an argument to the judge, rather than to society itself.

Steve

Posted by: Steve | Jan 4, 2005 12:13:23 PM

Posted by: HispanicPundit

I read Sowell religiously, and although I agree with his overall conclusion, I agree with your general point, Sowell made a very weak case against Gay Marriage. To all the readers reading this, please don't let this one article give you the wrong impression of Sowell's true talent. He is an extremely smart man, and one that should be read by everybody, especially liberals, if they want to understand the mind of a conservative.

Posted by: HispanicPundit | Jan 4, 2005 12:29:04 PM

Posted by: Henry Woodbury

As of the first of the year, California now recognizes survivorship, parental authority and other civil rights of gay couples. No doubt gay couples in California will continue to push for recognition of gay marriage, as well they should. The civil rights argument is not a deception; it is a strong argument, contract alternatives notwithstanding, but it is not the only argument.

One reason the proposed federal marriage amendment is so appalling (and thankfully, dead on arrival) is that it undermines the process by which the issue can be examined (by courts and legislatures) on a state by state basis. My feeling is that the success of gay marriage in one state will encourage acceptance and adoption by others.

This status quo, like constitutional law before Roe v. Wade, is one that permits federalism to work. I would prefer a sea-change in national attitude, myself, but better for the 50+ individual states and territories to have authority than to give a Federal entity arbitrary power over the issue.

Posted by: Henry Woodbury | Jan 4, 2005 12:32:25 PM

Posted by: AlanC9

Whether SSM would change the meaning of marriage depends on what you think marriage is really about. From where I sit, marriage in our culture is about the romantic union of two people, so extending it to gay people seems to be the only logical position. That certainly seems to be how the popular culture handles marriage.

And could we stop the sloppiness about the "religious concept" of marriage? It's a particular religious concept of marriage that has a problem with this, not religion in general. Right now, the only kind of gay marriages available to an American are religious ones. I'm waiting for a Free Exercise challenge to the ban.

Posted by: AlanC9 | Jan 4, 2005 12:33:20 PM

Posted by: Daniel M.

AlanC9 writes: "And could we stop the sloppiness about the "religious concept" of marriage? It's a particular religious concept of marriage that has a problem with this, not religion in general. Right now, the only kind of gay marriages available to an American are religious ones."

First you need to open your mind and realize it may be a sloppy argument to YOU, but that it is far from being sloppy.

And secondly, unless you've been out of country for a while, gay couples have been getting married here in Massachusetts since May of last year.

Posted by: Daniel M. | Jan 4, 2005 12:46:17 PM

Posted by: Bret

Yeah, Sowell must've been having a bad day. I've never seen such a weak argument put forth by him.

Like several above, I also think the State should just get out of the marriage business. Each state can have standard civil contracts between people that define how the individuals divvy up the income, etc. and the federal government can recognize certains types of contracts as being valid for modifying income taxes, inheritence taxes, SS benefits, etc. The race, gender, and number of people should be irrelevant. Heck, animals can be included for all I care.

Then marriage itself would be something that communities do, whether religious or not. Couples would get married by their church before God (homosexual or heterosexual) or by their community (before God or not). Various groups would treat polygamy different - sometimes adding one spouse at a time, sometimes marrying the whole group.

But the legal aspects and the non-legal aspects should be seperate - and equal.

Posted by: Bret | Jan 4, 2005 12:58:47 PM

Posted by: Paul Deignan

Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Food for thought to the legal eagles on this site: This clause does not require that a certain covenant of one type be treated the same as a covenant of a different type by a different state. If marriage is a legal agreement between certain parties that is conditioned on the gender of the parties in one state, then it is a separate legal entity from an arrangement without such condition.

For example, the state of Indiana may pass a law allowing me to drink alcohol if I am over a certain age; however, Texas does not need to respect that privilege if their age limit is higher. Likewise, Indiana may allow me to file taxes jointly if I cohabit with Y for X years. California may have a different provision.

Note that the marriage certificate is not a federal document.

This is just a thought that occurred to me reading the Constitutional post (the Constitution is silent on the matter except for this).

Posted by: Paul Deignan | Jan 4, 2005 1:00:41 PM

Posted by: AlanC9

Daniel, I didn't follow that. The sloppyness is implying that there is a neat division between a single religious perspective and a nonreligiuous perspective on marriage. This simply isn't the case.

But yes, I should have been more specific. The only kind of marriage an American can get now is religious, unless he or she lives in Massachusetts. Better?

Posted by: AlanC9 | Jan 4, 2005 1:05:53 PM

Posted by: AlanC9

Whoops! Should have said "gay American" there.

Posted by: AlanC9 | Jan 4, 2005 1:06:32 PM

Posted by: Tony

What alarms me about the gay marriage debate is that the real, material well-being of actual people is ignored in favor of abstract or speculative arguments about what marriage "means" or what the constitution requires.

Let me share with you two small anecdotes.

A few years back, a correspondent of mine was in a long-term relationship with another man. They shared a house and a lot of property. His partner, unfortunately, died unexpectedly of a heart attack. His partner's parents had the locks on the house changed while he was AT THE FUNERAL, and he lost EVERYTHING HE OWNED because he could not establish his legal title to it. (The house was in his partner's name.)

I mean, can you imagine? This kind of thing goes on all the time, and is a nightmare for the surviving partner. It takes quite a lot of work to cover your bases, but legal marriage would solve these property problems immediately.

Much is made of the "societal approval" of marriage. As a counterculturally-oriented person who doesn't really give a damn about approval, I've long dismissed that, but I had an experience one day that changed my mind. I had a casual, long-time friend that was - how shall I put it? - kind of a dumpy person. He didn't have much pride in himself, and it showed.

I ran into him on the street one day after not seeing him for a few years, and didn't recognize him. I was startled when he spoke to me, and said "Gosh, you look so different, what's up?" His three word answer said it all: "I got married!" It's rare to see such a dramatic transformation in a man's carriage and manner. And I realized that, yes, approval is important, and withholding it when it is needed and deserved is simply cruel.

What is most vexing about this debate is the entrenched attitude among conservatives that homosexuality is a "vice". No, it's not. Virtually every gay person will tell you the same thing: you are born gay, it is a trait that affects your every waking moment, and it is as permanent and all-encompassing as gender. There is no effect in either encouraging or discouraging it; the only "choice" is whether you are going to accept it, or make gay people's lives miserable by tormenting them every day.

Being gay in America is like being a dog that is beaten every day for no reason whatsoever. Is there any wonder that the gay community has pervasive mental health problems? That's simply what happens with continuous abuse! Forget questions of rationality, constitutionality, and the "sanctity" of that failed institution called "marriage". All of these are overwhelmed by the simple, callous cruelty of conservatives, a problem which overwhelms all the particulars of the struggle for gay rights. If that cruelty were replaced by understanding, all these issues would disappear.

Posted by: Tony | Jan 4, 2005 1:19:55 PM

Posted by: Paul Deignan

Tony,

If this problem you mention could not have been easily rectified in advance by a specific contractual arrangement, more people might be persuaded about the need of your proposed remedy. The same thing can happen to cohabiting couples (or just people sharing an apartment) irregardless of their sexual proclivities.

Remeber, people who engage in contracts have rights AND responsibilities. We cannot have a contract without consideration.

Posted by: Paul Deignan | Jan 4, 2005 1:36:25 PM

Posted by: Terrier

Tony - If those who oppose gay marriage were honest about their objections they would stop talking about constitutions, pets, state laws, soda-cans, and Mormon child-abusers. If someone is uncomfortable it is not my fault! They should take responsibility for their own feelings! Grow up!

Posted by: Terrier | Jan 4, 2005 1:38:10 PM

Posted by: Paul Deignan

And to add another thought that might strike some as profound: marriage is not a license for sex (at least not anymore).

So considerations of sexual proclivity have no relevancy to the issue at hand.

Posted by: Paul Deignan | Jan 4, 2005 1:40:20 PM

Posted by: Paul Deignan

If someone is uncomfortable it is not my fault!

This is interesting because it relates to the difference between how conservatives and liberals view things. It turns out that conservatives respond to information in a more "thinking" manner on aggregate as measured by the Myers-Briggs as opposed to "feeling". It is an error to project feelings of discomfort as representative to the norm of conservative thought to the same degree as considered by the average lib/progressive.

For those interested in the left2right communication thesis, there is actually a pretty neat study with results and data at my site (linked by my name). It may be of interest to many here.

Posted by: Paul Deignan | Jan 4, 2005 1:45:29 PM

Posted by: Tony

If this problem you mention could not have been easily rectified in advance by a specific contractual arrangement, more people might be persuaded about the need of your proposed remedy.

What is often lost in this debate, and what is routinely ignored by educated conservatives and libertarians, is that the cost of a contract is extraordinary. You need the education and English skills required to understand it; you need to enlist the services of a lawyer; and you need to know that it's an option in the first place. Discussions of this type are too often predicated on the assumption that everyone is well-informed and well-educated. But they aren't.

Personally, my partner and I have our bases covered for nearly all the benefits of marriage, but it cost about $500 and I still fret about the legality of the documents now that some of the witnesses that signed it have left the state. Contracts are complicated; marriage is simple. There is an urgent need for a similarly simple contract that can be executed as easily as marriage itself. What you call it isn't nearly so important as having it available.

Posted by: Tony | Jan 4, 2005 1:53:20 PM

Posted by: Terrier

Paul Deignan: I don't understand your point. Just because someone is labeled a conservative it does not follow that they cannot decide a particular issue based on their feelings rather than their reason. Oftentimes people who make decisions on emotional grounds justify them by imputing them to reason. That is my point.

Posted by: Terrier | Jan 4, 2005 2:15:10 PM

Posted by: Paul Deignan

Tony,

It sounds like what you need is a civil union. You would gain support by calling it by this name.

Posted by: Paul Deignan | Jan 4, 2005 2:18:06 PM

Posted by: Paul Deignan

Terrier,

Actually, it’s the other way around. People define themselves as liberals or conservatives by their method of information processing. As we have seen, there are really not too many people who do not vote in a predetermined pattern based on personality (at least not in the national presidential elections).

This is why my election predictions were as confident and as close as they were. Most all vote as a reaffirmation of their identity -- especially liberals.

Posted by: Paul Deignan | Jan 4, 2005 2:22:07 PM

Posted by: Terrier

Paul Deignan: do you have an emotional attachment to the word "marriage?" What if you give him your support and he obtains his "civil union" and then has the gall to walk around calling himself "married?" What makes you uncomfortable about Tony using that word?

Posted by: Terrier | Jan 4, 2005 2:26:30 PM

Posted by: Achillea

While I would take issue with Prof. Herzog's by-blow implication that all positive social change has taken place via those noble libs/Dems championing them over the objections of those evil cons/Reps (I still remember who announced 'segregation now, segregation forever,' and he wasn't in President Bush's party), that's an issue for another thread. Not having read Mr. Sowell's column, I can't comment as to the weakness or strength of his argument against legalizing SSM in particular, but most of the usual suspects seem to've turned up here in the comments.

1) It violates (or lies outside) the 'purpose' of marriage. Arguments have been made that that's a practical purpose (to facilitate child-rearing/encourage the stability of monogamy) and/or a cultural purpose (to confer perceived legitimacy). There have been some very good articulations of these, but still not persuasive. The first is violated and/or ignored by plenty of heterosexual married couples every day, without legal penalty to their marriages or the institution itself. As to the second, it's not the job of the law to grant or deny cultural legitimacy, it's the job of the law to keep us out of each other's hair while we do that granting/denying ourselves.

2) It's not the traditional concept of marriage. As has been pointed out, neither was interracial marriage once upon a time. Slavery was a traditional labor arrangement. Feudalism was a traditional social/political/economic arrangement. While I sympathize with the desire to cling to old, familiar forms, the simple fact is things change. Every tradition had a time when it was brand new, and there is no cutoff date for when they can arise.

3) It cheapens marriage. Nothing could cheapen marriage more than 'Who Wants to Marry a Millionaire,' 'The Bachelor,' etc. Without some moral/ethical requirement for those participating, some 'higher standard' to which they're held, marriage has no elevated status to lower.

4) It will lead down a slippery slope to people marrying multiple other people, their siblings, their children, their pets, or even inanimate objects. The latter two are silliness, and minor children are protected by child abuse laws. As far as people marrying their siblings or adult children, it makes me go 'ick,' but so does peanut butter. I still haven't seen any compelling reason either should be illegal. Ditty polygamy (or polyandry -- I wouldn't mind a few husbands around to keep me in the style to which I'd like to become accustomed ... but I digress).

5) It's an undesirable state, so homosexuals shouldn't want it. If that's the case, why do so many heterosexuals not only enter into it but stay there?

Have I missed anything?

Posted by: Achillea | Jan 4, 2005 2:30:21 PM

Posted by: Achillea

While I would take issue with Prof. Herzog's by-blow implication that all positive social change has taken place via those noble libs/Dems championing them over the objections of those evil cons/Reps (I still remember who announced 'segregation now, segregation forever,' and he wasn't in President Bush's party), that's an issue for another thread. Not having read Mr. Sowell's column, I can't comment as to the weakness or strength of his argument against legalizing SSM in particular, but most of the usual suspects seem to've turned up here in the comments.

1) It violates (or lies outside) the 'purpose' of marriage. Arguments have been made that that's a practical purpose (to facilitate child-rearing/encourage the stability of monogamy) and/or a cultural purpose (to confer perceived legitimacy). There have been some very good articulations of these, but still not persuasive. The first is violated and/or ignored by plenty of heterosexual married couples every day, without legal penalty to their marriages or the institution itself. As to the second, it's not the job of the law to grant or deny cultural legitimacy, it's the job of the law to keep us out of each other's hair while we do that granting/denying ourselves.

2) It's not the traditional concept of marriage. As has been pointed out, neither was interracial marriage once upon a time. Slavery was a traditional labor arrangement. Feudalism was a traditional social/political/economic arrangement. While I sympathize with the desire to cling to old, familiar forms, the simple fact is things change. Every tradition had a time when it was brand new, and there is no cutoff date for when they can arise.

3) It cheapens marriage. Nothing could cheapen marriage more than 'Who Wants to Marry a Millionaire,' 'The Bachelor,' etc. Without some moral/ethical requirement for those participating, some 'higher standard' to which they're held, marriage has no elevated status to lower.

4) It will lead down a slippery slope to people marrying multiple other people, their siblings, their children, their pets, or even inanimate objects. The latter two are silliness, and minor children are protected by child abuse laws. As far as people marrying their siblings or adult children, it makes me go 'ick,' but so does peanut butter. I still haven't seen any compelling reason either should be illegal. Ditty polygamy (or polyandry -- I wouldn't mind a few husbands around to keep me in the style to which I'd like to become accustomed ... but I digress).

5) It's an undesirable state, so homosexuals shouldn't want it. If that's the case, why do so many heterosexuals not only enter into it but stay there?

Have I missed anything?

Posted by: Achillea | Jan 4, 2005 2:35:28 PM

Posted by: Terrier

Well, according to you, I'm a conservative! Damn me for thinking myself into being a liberal. I've had that test several times and came out damn near INTJ every time (my J and P are pretty equal.) I'm also a happily married heterosexual father (close to being a grandad, but thankfully not yet) and I consider the issue of gay rights to be one of the most important of our time. Does being a conservative mean you can't tell the difference between words and human beings?

Posted by: Terrier | Jan 4, 2005 2:36:14 PM

Posted by: Daniel M.

Tony writes: "All of these are overwhelmed by the simple, callous cruelty of conservatives."

Really?

Did you know that the extreme face of such simple callous cruelty in Massachusetts was none other than Philip Travis - Democrat of Rehoboth?! The one who spearheaded the DOMA bill in MA and a man full of hatred for gays?

http://www.mass.gov/legis/member/p_t1.htm

Get off it with the generalizing - I thought this site was on to something with the anti-epithet thread.

And categorizing all conservatives as framing homosexuality as "a vice?!" C'mon, Tony. We're here to have a dialogue - not arbitrarily point fingers.

Posted by: Daniel M. | Jan 4, 2005 2:36:36 PM

Posted by: Terrier

Daniel M., I think to be fair to Tony, he was defining "conservative" as someone who opposed gay marriage. I don't think he had in mind those who favored the war, high deficits, or low taxes. He was speaking specifically of the kind of "conservative" mind that must limit others to feel secure itself - a small "c", not a large one.

Posted by: Terrier | Jan 4, 2005 2:46:50 PM

Posted by: Paul Deignan

do you have an emotional attachment to the word "marriage?" What if you give him your support and he obtains his "civil union" and then has the gall to walk around calling himself "married?" What makes you uncomfortable about Tony using that word?

Hello Terrier,

Put yourself in the mindset of a computer for a little bit. Think calculation and optimization of criterions of merit and the following may make the type of sense that I intend in this short response….

In my previous posts I noted that the state recognition of what had been a religiously sanctioned practice (and before that even a matter of custom of some sort) was for the good of the state. Here we are thinking about the good of a democratic state - the collection of its citizenry.

There is a good to be achieved by state recognition of committed codependent relationships. This is a civil union. It must be distinguished by label from the practice of "marriage" which involves another state interest (the raising of future generations in a generically diverse environment).

Gender is an inseparable property of personhood. In fact, it is a more determinative factor of the behavior and attitude than any other generic property of the adult (this is a claim). Therefore arrangements involving gender will have different properties. Which is best? Well, here I agree with the idea that "it depends". Specifically, it depends on many, many factors some of which are localized to the individuals involved. So the sweep of suitability of one label and one regulation breaks down -- and it breaks down most simply along generic lines of gender (think of decision trees used for data mining).

Why is heterosexual "marriage" superior for child rearing? In a word: diversity (again, this is a claim). Thus there is a need for a distinction. Please remember, civil unions should be for both types of couples. However, "marriage" is specifically in the state's interest to preserve as a separate institution in order to capitalize on the "trust" (as opposed to contractual) relations that are absolutely necessary in raising children as well as to ensure that these children have the generically most diverse environment so that they can relate to other citizens as symbiotically as possible as they grow and learn.

What I have just skecthed for you is what I would find a useful argument and rationale.

Posted by: Paul Deignan | Jan 4, 2005 2:56:20 PM

Posted by: Paul Deignan

Well, according to you, I'm a conservative!

Terrier,

Guessing that this was to me.

As I responded in a previous post and as I make clear in the blog linked to my name, personality type is an information processing measure along several dimensions (please see the model at the blog). People are characteristically of a certain type because this is the type that they imprint from childhood in most cases (also I believe some may be genetic). People are very likely to choose their political affiliation based on personality type.

So be sure not to put the cart before the horse. It may be that some at some times do the opposite, but I do not believe that this is the trend (and the data does not show it as well).

Also, you may want to take the test again and see how you come out. Don't interpret the scores as categorical so much as values along four dimensions.

In the study, the individual is asked to self-identify their political affiliation. It is an associative disciminant test, not an exercise in labeling.

Posted by: Paul Deignan | Jan 4, 2005 3:06:25 PM

Posted by: Daniel M.

Sorry, but I was being fair. I think both sides need to look at their over-generalizations. As a Liberal republican, I get miffed by the uncalled for name-calling.

Posted by: Daniel M. | Jan 4, 2005 3:47:25 PM

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