Ruth Institute Blog

Cooper echos the Loving v. Virginia (miscegenation) decision, which said:

“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…”

I keep asking, what about two men or two women playing house together is “fundamental to our very existence and survival”?

@Marty
So tell me, who exactly is adopting those older kids and brown kids? You know the ones, they get passed from one foster family to another until they’re 18, and then it’s, “good luck!”

I wish everyone a free trip to the optometrist, the myopic views are quite interesting.

Interesting.

Well, if this is to be the argument, then infertile couples should be banned from marrying. That includes elderly couples. Those who lost the ability to procreate due to cancer treatment should have their marriages annulled.

This assumes that marriage is not a statement of love for one another, but rather purely a statement announcing reproduction.

Bob and Julien, kudos to you both for stating the obvious. Marriage is about love first and foremost, and only secondarily about children, IF the couple even decide to have and/or raise them. The weirdest thing for me about the anti-marriage equality position is the assumption that if same-sex couples are allowed to marry, that somehow this will cause all heterosexuals to stop marrying and/or making babies. They rail on about how “[t]he marital relationship is fundamental to the existence and survival of the race,” as if allowing same-sex marriage is going to lead to the end of civilization as we know it. I’m not sure if they think that all heterosexuals will suddenly all “turn gay” or if straight people won’t want to marry any longer because “those queers” can do it too. Either way, it’s really quite bizarre if you ask me. Is it too much to ask for rational arguments? Oh wait, there are none when you strip away religion, fear and hatred–all irrelevant to the discussion of legal rights in a civil society.

@Julien
Procreation is at the root of this issue. You can’t understand why marriage takes the form that it does without first acknowledging that.

When we’re talking about marriage, procreation is the reason why marriage is limited to couples. Every person on this earth has exactly two natural parents — who are always, in every single case, one man and one woman. Marriage exists to integrate the procreative pair into the fabric of society. When you alter the one man/one woman form of marriage, you also throw out the rational basis for preserving marriage as a pair bond.

And before anyone starts in with the whole “well, in SOME cultures…” bit, I’d like to point out that even polygamy still preserves the most basic definition of marriage as the union of one man and one woman. In a polygamous society, a husband with four wives has four separate marriages — not a single group marriage containing four people plus himself.

So: without the link to procreation, what’s the rational reason to limit marriage to a union of two, rather than three or more?

Julien :Interesting.
Well, if this is to be the argument, then infertile couples should be banned from marrying. That includes elderly couples. Those who lost the ability to procreate due to cancer treatment should have their marriages annulled.
This assumes that marriage is not a statement of love for one another, but rather purely a statement announcing reproduction.

Marriage only needs to be narrowly tailored to a procreative purpose, IF it is a Fundamental Right. Fundamental rights, like Free Association and Procreation exist apart from the state, endowed to everyone by Nature. Marriage – State recognition of a relationship – is not a fundamental right. It need only be rationaly related to legitimate state interest, or (if sex discrimination) substantially related to an important state interest.

@Heidi
People won’t stop marrying because “those queers can do it”. They’ll stop marrying because state sanctification of love is a nutty idea.

@Julien
What a cruel thing to say. Does it contribute to the “stable family environment” to which Cooper refers to dissolve once-fertile marriages after they’ve stopped having children? Your comment willfully ignores the other points made in the article.

@Heidi
Sorry, Heidi–the institution of marriage doesn’t make sense if it’s not first and foremost about children. The fact that childless marriages exist doesn’t undermine that basic point. If pairings were only about love and/or sex, it shouldn’t matter with whom you pair or how many partners you have. Nor should there be any outside interest (beyond gossip) in your activities. Why should the gov’t give tax incentives for people to have lovers? Why should it care with whom you sleep?

When, however, there are children involved, suddenly these things make sense. Children need extended care to get them to maturity, and marriage between their biological parents provides a degree of stability and security that is unmatched by other arrangements. Tax breaks and other administrative recognitions are the government’s way of incentivizing this arrangement, unique in its ability to produce children.

Only the union of a man and a woman can be greater than the sum of its parts.

H: Marriage is about love first and foremost, and only secondarily about children…

It’d be difficult to find a more historically inaccurate statement. You want to remake marriage into something new, we get it. But you can stop pretending right now that it’s already happened.

I know I shouldn’t be, but I’m still amazed to find what a low opinion of “marriage” supporters of SSM have. It’s like we aren’t even talking about the same thing!

As long as “traditional” male-female marriage is allowed for individuals who are known to possess no ability to have kids, for examples aoopheric (no ovaries- for example due to bleeding issues), post-hysterectomy. or atesticular (no testicles- for example due to prostate cancer), then equal treatment by the law prevents such criteria from being used as a legitimate bar. I will buy that the possibility of sexual procreation could be considered an objective bar, but not if that possibility does not exist and yet marriages are still allowed.

If the possibility of sexual procreation is a condition for marriage, than no post-menopausal woman (for example) should be allowed to enter into one. Same again for any other identified preventor of procreation known at the time of attempted inception for the union. Any union later found to have had such a factor in existence at the time of inception should be annulled, just as would a marriage found later to be between two first-degree relatives or two members of the opposite sex in most states.

I believe people should be allowed marriage even if they can’t have kids via sexual procreation, regardless of the reason. No bars, again save first-degree progeny, not already in an existing union, and the number two for objective fiscal reasons. All reasons that can be applied to all human beings without any regard to any bias whatsoever.

Oh yes, Marty, supporters of same-sex marriage have such a low opinion of marriage! You’re the one who reduces it to the combination of opposing body parts and procreation! You’re the one who denies the sacred purpose of marriage: to unite two people who love each other, excluding all others, in a lifelong committed relationship. Really, who’s denigrating marriage here?

I frankly don’t care about history. If we used history as our guide, than we could really say that the purpose of marriage was to sell off women to the highest bidder for the sake of the men involved in the transaction. I think most people in this day and age would reject this “historical” purpose of marriage. Marriage has finally evolved to its God-given intended purpose–that of two people making a promise and public declaration of love and commitment to one another.

Norrie, of COURSE the institution of marriage makes sense even without children! Yes, the marriage relationship provides protection for the children who are produced during it’s tenure (which is why the children of same-sex parents deserve it too), but it ALSO provides protections for the individuals involved. The state has a legitimate interest in encouraging long-term monogamous relationships in which the partners commit to the economic support of one another. More people involved in marriages equals fewer people on state aid in their old age.

Big Wig, if marriage is narrowly tailored to a procreative purpose, then people who cannot or choose not to have children shouldn’t be allowed to marry. If that is really the purpose of marriage, why do we allow 85 year-old couples to tie the knot? Why do those individuals choose marriage even so late in life? Here’s a hint: because marriage is so, so, so much more than making babies. People fall in love first. Sometimes, they wait until they marry until they have children. Sometimes, they have children before they marry. Sometimes they have children but never marry. Sometimes they marry but never have children. My best friend is married but infertile. Should we revoke her marriage license since she cannot fulfill the procreative purpose of marriage? My goodness, can’t you people see the illogic to your arguments?

Even if I never have the opportunity to legally marry the woman that I love, I am blessed to be with someone who understands the value and sanctity of marriage. How sad it would be to be married to someone who thought it was merely about making and raising children.

LWW: “individuals who are known to possess no ability to have kids … equal treatment by the law prevents such criteria from being used as a legitimate bar.”

Exactly! There isn’t event a TEST! All you have to do is be a man and a woman — the lowest bar possible — extremely efficient too! Regardless of race, intention of children, medical defect (or natural aging processes), or even (gasp) sexual orientation.

You want to make this about “no ability”, yet deny that there is an inherent ability in every one of us to procreate. And the magic number is two. And it’s only magic when theres a man and a woman. And it’s WHY marriage exists.

LW, let me see if I can illustrate the problem in your line of thinking:

Say I’ve noticed that my neighbor, who has a fishing license, faithfully goes fishing, and never ever catches anything. Say I decide to ask for a fishing license of my own. I explain that I have never fished, and have no intention of ever fishing, because I own no tackle and have an intense loathing of all that swims. Also, I am violently allergic to fish and cannot permit myself to come in contact with them.

I am told that none of that is a bar to getting a fishing license, so I conclude that a fishing license must really have nothing to do with fishing.

I further conclude that it’ll be okay if I use a fishing license to go deer hunting, which is what really want to do. After all, there are similarities between fishing and deer hunting — eg, they both take place outdoors, involve animals, etc.

Here’s what you and hypothetical me are really arguing:

1. The fact that a person can qualify for participation in a given institution (marriage, fishing, whatever), but also be unable or unwilling to fully carry out the purpose of that institution (form a permanent, exclusive union of husband and wife that can procreate; harvest fish; etc), means that the institution therefore has nothing to do with its intended purpose.

2. And that therefore, the fact that I can come up with ~something~ that resembles the institution in some ways (as fishing bears some similarities to deer hunting, or as a relationship between two men or two women has some things in common with the union of husband and wife) — but that does not reflect the institution’s purpose — means that society must accomodate me in substituting that ~something~ for the institution, or by adding the ~something~ to the definition of the institution. Or else I’m being wrongfully discriminated against.

And both of those conclusions reflect faulty reasoning.

Lww – You are demanding that Civil Marriage be narrowly tailored to meet a secular purpose of responsible procreation. A law only needs to be very specific if it a) infringes a Fundamental Right or b) singles out a “suspect class”.

If 8 is ruled to be unconstitutional, I don’t see how you can exclude first-degree progeny, since marriage will be been found to have nothing to do with procreation. I don’t see how you bar Polygamy either. Financial reasons are no exucse to infringe a fundamental right or single a class of people out.

Big Wig, of course you can exclude first-degree progeny and polygamy even if same-sex marriage is legal. Here’s why: under the equal protection clause, a state may not make classifications that discriminate against similarly-situated classes without a legitimate purpose that is rationally related to the classification. An example of this is laws that treat 18 year-olds differently than 21 year-olds for purposes of drinking alcohol. Both are legal adults and are therefore “similarly situated.” However, the state has a legitimate purpose in preventing drunk-driving accidents, which statistics prove happens more when the legal drinking age is below 21. When the classification interferes with a fundamental right, or involves a suspect classification, the state must have a important or compelling purpose and the law must be narrowly tailored to achieve that purpose.

What would the legitimate purposes be for preventing first-degree progeny from marriage? Well, there is the issue of genetic defects in any offspring that could result. See when focused on an EPC question, the focus is on the classification, and the reason for it–NOT on the legal institution itself. The same applies for polygamy. First, polygamous groupings are not “similarly situated” to couples. The very fact that there is more than two in the polygamous relationship means that the two groups are different, not similar. Second, there are legitimate reasons to treat polygamous groups differently from monogamous couples that do not involve arbitrary and capricious discrimination. One is the evidence of harm that has been documented for women and children involved in those relationships. The second is more pragmatic. Upon divorce, how would the state divide assets? What if there are children? How would the state determine custody? More than two people creates a completely different scenario than that which is involved with a couple.

So, we know that because marriage is a fundamental right, the state must have at least an important reason for discriminating against same-sex couples that is substantially related to the differing classification for similarly situated groups: heterosexual couples and same-sex couples. So, what is that reason, and how is the classification that treats same-sex couples differently substantially related to that classification? Keep in mind that simple discrimination on the basis of an arbitrary characteristic is NOT even a legitimate state purpose, let alone an important one. We can’t say the reason is based on procreation, because if that were the case, the classification would have to extend to any couple that did not procreate. Otherwise, the classification does not serve its purpose. Additionally many people procreate without getting married, and many same-sex children raise children. Therefore the classification is both overbroad and underinclusive, and cannot be said to be substantially related to its purpose. And if procreation was the important state purpose for marriage, the state would have to bar those who didn’t marry from procreating, which would infringe on another fundamental right!

I hope this helps to sort the constitutional analysis out a bit. I would strongly encourage you to read the Iowa Supreme Court’s marriage decision. It is the best decision I have seen to provide the proper constitutional framework, and I think it will guide your understanding of the issues involved in the eventual U.S. Supreme Court decision.

Marty:

“It’d be difficult to find a more historically inaccurate statement. You want to remake marriage into something new, we get it. ”

Heidi’s view of marriage may not be the historically dominant view, but A) I’m not sure why that should matter to us, legally or morally, and B) it’s also hardly a new view of marriage. It’s found in Genesis, which tells us that we get married because God says it’s not good that man should be alone. And it’s elegantly distilled in the traditional Christian wedding ceremony. In the 1928 Book of Common Prayer, for example, we read that the union of husband and wife is “intended by God for their mutual joy; for the help and comfort given one another in prosperity and adversity; and, when it is God’s will, for the procreation of children and their nurture in the knowledge and love of the Lord.” That’s a lot closer to Heidi’s view than to the view–repeated over and over in this thread–that THE purpose of marriage is procreation and, worse, that marriage doesn’t make sense if it’s not “about” child-bearing.

But Big Wig doesn’t want us enshrining this “nutty” idea of marriage, the one expressed in most of our wedding vows: he wants to see a legitimate state interest in marriage, and can’t find one other than procreation. I don’t think he’s looking very hard–I’ve said it before, but here goes: even without children, married people are healthier, longer-living, and more productive than their single counterparts. They are more financially stable, more likely to make investments, less likely to miss work, less likely to use drugs or drink heavily. They are less likely to engage in risky sexual behavior and therefore less likely to catch and spread STDs. This isn’t pie-eyed romanticism. It’s clearly recorded fact, and it makes sense that individuals committed to each other for life tend to behave more responsibly than the unattached.

This is why we celebrate childless marriages–not because they look like procreative unions, or because we can’t tell fertile couples from infertile ones beforehand, or for whatever demeaning reasons are dreamed up on this site. We celebrate them because marriage makes us better people. Because, again, it is not good that we should be alone.

@Heidi

“What would the legitimate purposes be for preventing first-degree progeny from marriage? Well, there is the issue of genetic defects in any offspring that could result.”

Unmarried people aren’t capable of committing incest and procreating incestuously? It’s interesting that when the topic turns to incestuous marriage, you suddenly agree that marriage has something to do with society’s interest in how procreation takes place, after all.

Besides, if preventing genetic defects is issue, then are you saying that the state can also prevent individuals with genetic disorders from marrying non-incestuously? Why or why not?

Also, are you saying that the state has no legitimate reason to refuse to recognize incestuous marriages between reproductively sterile individuals?

“First, polygamous groupings are not “similarly situated” to couples. The very fact that there is more than two in the polygamous relationship means that the two groups are different, not similar.”

And a same sex relationship is different from marriage because the relationship itself is ~categorically~ sterile due to its same-sex nature, and not ~incidentally~ sterile due to the health status of one or both of the individuals involved. Remember, you’ve already conceded that marriage has something to do with society’s interest in how procreation takes place.

“Second, there are legitimate reasons to treat polygamous groups differently from monogamous couples that do not involve arbitrary and capricious discrimination. One is the evidence of harm that has been documented for women and children involved in those relationships.”

Examples of harm can be found for any kind of human relationship. Why should this be more relevant for polygamy than for homosexuality?

“The second is more pragmatic. Upon divorce, how would the state divide assets? What if there are children? How would the state determine custody? More than two people creates a completely different scenario than that which is involved with a couple.”

Why isn’t up to us to accommodate this difference with appropriate legal procedures? Certainly, there are societies that have developed ways of settling these questions. Why shouldn’t we?

“Keep in mind that simple discrimination on the basis of an arbitrary characteristic is NOT even a legitimate state purpose, let alone an important one.”

But the human characteristic relevant to marriage is sex — not sexual orientation. Sex differences aren’t arbitrary characteristics: they’re how the human race reproduces itself. And marriage, as you’ve admitted, DOES have something to do with society’s stake in how procreation occurs.

“We can’t say the reason [for marriage as a union of husband and wife] is based on procreation, because if that were the case, the classification would have to extend to any couple that did not procreate. Otherwise, the classification does not serve its purpose. [etc]”

Faulty reasoning. Please see my earlier post (#13). You haven’t explained why your assertion here is ~necessarily~ the case.

“And if procreation was the important state purpose for marriage, the state would have to bar those who didn’t marry from procreating, which would infringe on another fundamental right!”

Again, why does this necessarily follow? You don’t give a reason. The state ~may~ set a penalty for someone who hunts without a license. But it may also choose not to do that in cases where the unlicensed hunter was merely trying to avoid starvation. That doesn’t mean that the state is agreeing that whether one has a hunting license is irrelevant to whether one may lawfully take game. The state can recognize marriage and the concept of wedlock, but you ~haven’t~ shown that it necessarily follows that the state must actively penalize people who give birth out of wedlock.

Lefty, your analogy in #13 is faulty. You’ve got to account not only for people who go fishing but never catch a fish, but also for people who never even try to catch a fish and people who apply for this ‘license’ even knowing (ahem) that their poles have been broken for years and their lures were lost long ago. Why would those people apply for a fishing license?

They wouldn’t.

But they might buy a camping permit. And that camping permit might give them access to some great fishing holes. But that doesn’t mean that fishing is the point of a camping trip, or its only purpose, or that camping doesn’t make sense without fishing.

Are analogies ever perfect, Fuerte? I think the one I came up with gets the job done as far as pointing out the unwarranted assumption that was at issue.

You object: “Why would those people apply for a fishing license? They wouldn’t.”

That’s just not true. For instance, some environmentalists have discussed whether buying fishing and hunting licenses might be one way to force Fish&Game departments to give priority to their concerns, since those departments are funded through the sale of permits — and therefore view their mission as serving the interests of hunters and fishermen. Individuals do sometimes assert a right to participate in an institution for reasons that are different from — or even opposed to — society’s purpose for that institution.

LWW said: “As long as “traditional” male-female marriage is allowed for individuals who are known to possess no ability to have kids, [...] I will buy that the possibility of sexual procreation could be considered an objective bar, but not if that possibility does not exist and yet marriages are still allowed.”

The opposite-sexed basis of marriage is not merely a tradition.

As for you list of “individuals who are known” to be disabled, I see you did not list homosexuality as an illustrative disability. So you would disagree with Heidi’s emphasis on sexual orientation, on that score. Good.

On the other hand, the lack of the other sex is not a disability. It is not infertility. It is not subfertility. It is not a medical condition. The nonfertile one-sexed scenario is never fertile and thus is never infertile. Not without the other sex.

So your list is bogus and you know it very well.

Also, please note that you misrepresented the marriage idea as a government mandate to procreate. There is no law forcing married people to procreate; nor is there a law forcing childless marriages to dissolve. You are desperately propping up the tired old SSM strawman argument.

Responsible procreation is not compulsory procreation. And its set of principles is not a standalone but manifests as part of a coherent whole — i.e. a social institution. Get that and you will take the first step in improving your understanding of the actual disagreement.

In the meantime, LWW and Heidi and fuerte, your comments above regarding procreation in particular have invoked rules of argumentation that would destroy your own SSM idea. That is self-defeating and so it is stuck on stupid. Move on.

Heidi, LWW is on the record as conceding that marriage is a privilege, which contradicts your claims of a fundamental right.

Also, you both have denounced “traditional” marriage in that you assert that tradition is insufficient reason for the marriage law. Yet you both recite rhetoric that invokes the tradition of romance, the tradition of life-long union, the tradition of barring some related people (but not all related people), and the “tradition” (as per your own peculair use of quote marks around this term) of the limit of one man and one woman which you would distort into the “new tradition” of sex-neutral two.

Tradition is either the unacceptable basis for the marriage law or it is the firm basis for your version of how the law should be formed. Which will it be?

Also, in your remarks to Lefty, you’ve revealed that you don’t have a good grasp of lawmaking 101. I very much doubt that you would use the same sort of thinking when it comes to testing your version of marriage law. Indeed, your SSM idea can’t survive such absolutism.

And so you will eventually show us that you are fearful of being anything but indiscriminate — to the extent that you won’t be able to explain, much less to justify, the principled basis for society discriminating between marriage and nonmarriage.

Lefty, when I first read your comment, and saw “fishing bears some similarities to deer hunting”, I thought — fishing bears sounds terribly dangerous. Take a rifle. Take a crossbow at the very least!

Heh. Great comments in defense of the marriage idea.

@fuerte
Fuerte – with respect to the health benefits of Marriage:

1) I expect the health Benefits of Marriage were the result of Hetero Marriages. Those Benefits can only be extrapolated to Same Sex Marriages if you think Men=Women. They are interchangable. Most people reject that idea, especially Homosexuals who can not abide a union with somebody of the opposite sex. Sex does matter.

2) Tangntial to your point – If the purpose of Marriage is to promote health and well being – Marriage is NOT a fundamental right. There are lots of activities that can increase general public health – that does not mean the government must provide them. Many Same Sexers try to make a Fundamental Right argument so the institutuion will be subject to strict scrutiny. (I actually expect this is what Judge Walker will do…but that will certainly be overturned by the Supreme Court)

3) Even if we assume Marriage is primarily about adult well being and Same Sex Couples can reap some benefit from a long term monogomous relationship – it does mean they must be included in Civil Marriage. Civil Unions can serve the same purpose with out bluring the sex and generative differences in the unions. The Definition of Marriage/CU’s would be a decision for Legislatures and Electorates – not judges.

It is odd that an advocate of SSM would bring-up monogamy.

There is no legal requirement that persons of the same sex engage in same-sex sexual behavior, anyplace where SSM has been imposed. And the SSM campaign does not propose that the Government make it compulsory for those who’d show-up for a license to SSM. Indeed, SSMers runaway from justifying special status on the basis of homosexuality, even as they emphasize just that in their rhetoric.

The pro-SSM argument against the centrality of responsible procreation in the social institution of marriage easily destroys the talk of sexual orientation and sexual monogamy within the SSM idea. That goes as easily for the SSM merger in all but name (i.e. Civil Union) as it does for merger in total (i.e. SSM).

Shortly after the SSM-merger was imposed in Massachusetts, the legislators dropped the requirement for blood tests and STD tests. So SSMers should be careful not to promise the opposite of what has already been done to accomodate the merger.

Meanwhile, marriage has a sexual basis that is opposite-sexed, not one-sexed and not sex-neutral. It is expressed most prominently in the marital presumption of paternity. When fuerte bemoans the centrality of responsible procreation he deliberately drops the responsible part and does not challenge LWW’s proposed procreation restriction for some married people under LWW’s vision of an asexual type of relationship status.

Huh, oddly enough I mostly agree with Big Wig above in post #24. I’m not exactly sure marriage is a fundamental right, either. It’s certainly not mentioned in the Federal Constitution, nor really even strongly alluded to as is the right to privacy being batted back and forth the past half-century or so. Where I still see some judicial role in resolving this is still, however, equal protection under the law as guaranteed in the 14th Amendment. Equal protection suggests, if not requires, that groups should be treated equally without regard for form. Whether or not marriage is a right, it is still bestowed currently by governments, and therefore governments must administer it while providing equal protection. The question is, does equal protection allow discrimination in government administration based on sex? As I see it, that’s the basic question.

Lefty said, “And a same sex relationship is different from marriage because the relationship itself is ~categorically~ sterile due to its same-sex nature, and not ~incidentally~ sterile due to the health status of one or both of the individuals involved. Remember, you’ve already conceded that marriage has something to do with society’s interest in how procreation takes place.”

First off, I’m not willing to entirely concede that a same-sex relationship is “categorically” sterile. I’m going to ask Mary and Chairm some questions below, but you are free to chime in there, too. Even if I were to buy your assertion, though, it still isn’t persuasive to a lot of people. As long as options allowed to sterile opposite-sex couples who ARE allowed to marry can also be used successfully by those who are not, that’s not equal protection. Likewise, it is as much a fact as your assertion that post-menopausal women cannot conceive children without technological assistance. Couples with a post-meniopausal woman are as “categorically” sterile as same-sex couples. If you argue that they “once were” sexually fertile, well so were many people involved in same-sex relationships. If you deny same-sex partners marriage simply based on sexual fertility within the relationship, it extends that you’d have to deny a newly incepted marriage to women who have lived past their menses. And before Chairm chimes in about “tests and exams” invading the privacy of prospective spouses, I know some “men” and “women” you’d never be able to tell were such without a lot of examination. Birth certificate sex is based on the attending physician’s best guess, and it’s not always right.

And as far as procreation happening at all. Yes, procreation is one possible function of marriage, but given it’s not a requirement of marriage for opposite sex couples, it can’t be one for same sex couples either. If it is possible to both (and it is), and you don’t require it of one, you cannot legally require it of another.

Chairm and Marty, here’s a question for you. What exactly makes a man? Seriously, given intersex and surgical transsexual situations, I’d really like to know what criteria you hold as to what makes someone a man? Or for that matter a woman? This is not a rhetorical statement given I really don’t know myself in any absolute terms. Trust me, the snarky line “I know one when I see one” doesn’t work given what I’ve seen. You draw such a harsh line between the sexes, can you help me understand what exactly strictly separates them?

And no, there is no “inherent ability in every one of us to procreate” as Marty maintains. Many people never can. And what is “magic when theres a man and a woman”? Why is that uniquely “WHY marriage exists”? Please elaborate. Perhaps I missed something really important in my 40 odd years, and here’s your chance to help me see the light.

LOL, Chairm — and thanks!

I like your point about marriage as a coherent whole.

Big Wig said, “Civil Unions can serve the same purpose with out bluring the sex and generative differences in the unions. The Definition of Marriage/CU’s would be a decision for Legislatures and Electorates – not judges.”

I really would like to believe this. I’m on record repeatedly as being willing to entertain the idea of civil unions achieving the same functional status as marriage, just without the name and connotations which cause such consternation in some. Still, I’ve seen the carrot of “separate but equal” civil union held out before. In both my own state and one I border, DOMA amendments were passed not long after the MA decision. In each case, those groups proponing these laws made clear repeatedly, on the record and recorded on video by the media, that they were ambivalent on the issue of civil unions and their status vis a vis marriage. They simply wanted to protect the good name in institution of marriage, specifically, from reinterpretation. Per these people, the DOMA amendments had no effect on civil unions. Many took them at their word, and measures ended up passing by reasonable margins. Fast forward a few years to efforts to pass laws creating civil unions and/or extending all state and local governmental functions of marriage to such unions. The same exact people who stood up to the cameras previously to express ambivalence were now berating the civil union efforts and warning the state that civil unions were not legally consistent with the state DOMA amendment. Same exact people- the media had no problem juxtaposing film clips to great effect. Fortunately, in my state at least, we got the full equality laws passed and they have withstood legal challenge and, resoundingly to an extend greater than the DOMA, a proposition challenge. The actions of certain “defense of marriage” groups don’t exactly foster an environment of trust going forward on the topic.

LWW said: “Equal protection suggests, if not requires, that groups should be treated equally without regard for form.”

And what is the “form” of the “same-sex” group? No doubt you are using yet another euphemism for homosexuality.

The conjugal type of relationship has a form, which is essentially opposite-sexed, but the marriage law does not have a sexual orientation criteria — homosexuality is not a criterion for ineligiblity and heterosexuality is not a criterion for eligibility.

LWW said: “. The question is, does equal protection allow discrimination in government administration based on sex?”

During the past decade or more, various courts, including those with majorities that favored the SSM merger, the “discrimination on the basis of sex” has lost favor. Meanwhile, the marriage law’s man-woman criterion requires equal participation of both sexes as intrinsic to qualification for forming the two-sexed sexual type of relationship long known as the marital union.

This is not about treating groups equally. The constitution provides for individualized rights, not group rights, and marital status is a special status, not merely a protective status. It is legitimate to discriminate between marriage and other types of arrangements.

Even the pro-SSM majority of justices in Massachusetts rejected the argument that the man-woman criterion is unjust sex discrimination — with just 1 of 7 justices thinking otherwise. And there was no majority formed that decided the case on supposed unjust sexual orientation discrimination.

The Goodridge pro-SSM decision is heralded as the beacon for the SSM campaign’s courtcentric efforts. Yet it is as flawed as the SSM idea itself.

LWW said: “If it is possible to both (and it is), and you don’t require it of one, you cannot legally require it of another.”

It is not possible for a one-sexed arrangement to be fertile. It is nonfertile. It is not sterile and does not become sterile — nor does it become subfertile nor infertile. Compared to the constancy of the nonfertile one-sexed scenario, regardless of the age, number, and sexual orientations of the individuals in such a scenario, the one-sexed scenario is categorically not the equivalent of the two-sexed scenario.

The one-sexed scenario is 100% nonfertile, always, everywhere, no exceptions.

The two-sexed scenario is variably fertile, subfertile, infertile, and sterile. This directly reflects the two-sexed nature of human procreativity. I’ve explained this, LWW, but you wish to screen out those who are disabled and equate them with the entire one-sexed category.

In your previous comment you explicitly referred to groups. Well, if you really did not mean to say that the same-sex group is categorically homosexual (despite the euphemisms that keep cropping up), then, this point regarding fertility demonstrates that the two groups — same-sex and opposite-sex — are very different when it comes to fertility in all its variablities. And that difference is not due to sexual orientation nor the way the Government treats people.

You are simply lost at sea if you are oblivious to this most basic and obvious and highly significant fact of human existence.

LWW said: “And before Chairm chimes in about “tests and exams” invading the privacy of prospective spouses, I know some “men” and “women” you’d never be able to tell were such without a lot of examination. Birth certificate sex is based on the attending physician’s best guess, and it’s not always right.”

Oh come on.

What you call a best guess is very nearly 100% correct very nearly 100% of the time. Where there is ambiguity, there are reasonable accomodations.

The whole “intersexed” subtopic that you dwell on is peripheral to the marriage issue. Even within that subtopic the vast majority of cases are men who choose to undergo superficial changes (surgical or homoronal, for instance, or just social) to “present” as what they are not in fact — as women. You are straining to declare the rarest of exceptions as the new general rule for lawmaking.

Only an absolutist would expect Government (of all things!) to be flawless and operate on some perfect level of certainty about all matters all the time. If there is any tiniest of doubt, the law must be remade to remove all doubt? Really.

The marriage law recognizes a pre-government social institution. It is not the Government’s unerring forecasting mechanism of who will be proven fertile. Yet, perhaps a big surprise to you, the decisive features of the social institution of marriage are two-sexed, not one-sexed, and not sex-neutral.

1. Sex integration,
2. Responsible procreation,
3. These combined as a coherent whole.

I did not say that procreation is madated by the Government; I did not say that the Government forces people to make babies; and I did not say that fertility was the test for eligiblity. You keep flogging strawmen arguments and that means you are not paying attention (for I give you credit for not deliberately misrepresenting the disagreement).

If you want to play numbers, then, consider that the vast majority of women, for example, marry before they reach menopause and almost all marriages have children. Some people experience inferility which is an actual disability and if you really think that the government should be looking over their shoulders, then, you have no clue as to the realworld experience of infertility and subfertility. It is not a choice. It is not the equivalent of nonfertility which is intrinsic to the one-sexed scenario in all shapes and sizes and ages and numbers.

And since you are so concerned about sex discrimination, you tell us how your perfected Government would justly bar post-menopausal women while most men remain potent throughout their lives. And you tell us how the Government would predetermine which apparently healthy women will experience infertility during marriage. You do realize that typically, as opposed to the more rare exceptional instances, the individual learns of fertility problems after having had lots and lots of coital sex, right?

Are you really arguing that if only the Government had made premarital sexual relations mandatory, and premarital conception, pregnancy, and childbirth compulsory, then, you would, in all your absolutist empathy and optimism, grant that responsible procreation was at the core of the social instituiton of marriage?

Or that if a wife, for example, became infertile through illness, that this would nullify the “in sickness and in health” idea of marriage? Or that the Government would unilaterally dissolve marriages once women reached menopause — with mandatory checkups each year just to check that each married woman was indeed still fertile? Because if you think that the Government could justly bar people on that basis from marrying in the first place, (again if only the Government was truly making fertility mandatory), then, you tell us how that could jive with the Government “allowing” (your word) post-menopausal women to remain married.

No, you are not reasonable in your insistence that procreation and fertility are irrelevant to the man-woman criterion of marriage.

Besides we are discussing responsible procreation, which is a set of coherent principles, and which is exemplified by the marital presumption of paternity — which is indeed mandatory in the marital relationship. When people enter the social institution, they say yes to this presumption. If they seek some challenge to it, subsequently, then, the basis is sexual, just as the basis for the presumption is sexual, and that is two-sexed, not sex-neutral.

Also, as you keep dodging, responsible procreation is not a standalone. It is combined with sex integration as central to marriage as a social institution. Equal participation of the sexes is a requirement. It is mandatory.

You can elide these things, I guess, by seperating marriage from sex integration, as per your vague SSM idea, and by divorcing responsible procreation from the social institution, as per your remarks about Government “allowing” people to have children or not to have children. In other words, you can continue to describe how you’d deconstruct marriage into disconnected bits and pieces, but you still offer no coherent alternative.

And, that, LWW, turns upside down your absolutist approach to the marriage law.

LWW said: “You draw such a harsh line between the sexes, can you help me understand what exactly strictly separates them?”

And then also said: “Please elaborate. Perhaps I missed something really important in my 40 odd years, and here’s your chance to help me see the light.”

Those 40 years must have been very “odd” indeed, LWW, for you to consider the two-sexed nature of humankind to be harshly imposed by either myself or Marty (or anyone else for that matter).

For the man who would like to be considered a woman, for example, sex difference might be consider to be of life-and-death importance. For the lesbian, it might be as fundamental as limiting who’d she choose to form a household with. For the user of the “sperm banks” it might mean the difference between impregnation and nonfertility. For the child of unwed parents it might mean the difference between establishing paternity and remaining fatherless, at least socially.

I’m sure that Marty, and others, can come up with examples pertaining to fatherhood and motherhood and childhood.

What precisely are you looking for, LWW?

I mean, you have concocted some wierd procreation restriction in your imagined pro-SSM worldview. Such a restriction depends on genetics, according to you, and yet you offered no method by which to predict with 100% certainty which related couples would create children with the genetic problems — with 100% certainty — so as to justify your absolutist approach to Government and to lawmaking and to “equal protection”.

So if you cannot live up to your own stated standards, even while seeking enlightenment on sex differentation (physiological, social, cultural, biological, genetic, etc), what are you really looking for — precisely?

While individuals might be considered “intersexed” (rather than “transexed”) and some asexual and some even more ambiguous than either of those, the nature of humankind is two-sexed, the nature of human procreation is opposite-sexed, and the nature of human community is both-sexed. These are givens. We don’t impose these on humankind.

LWW said: “The same exact people who stood up to the cameras previously to express ambivalence were now berating the civil union efforts and warning the state that civil unions were not legally consistent with the state DOMA amendment.”

Your account is ridiculous.

First, you choose to see some sort of contradiction in expressions of ambvialence and eventually opposition based on clarifications that occured in the meantime.

Civil union has been used as a weapon. You can blame the SSM campaign for this clarification. Civil union, when proposed during the past decade, was supposed to settle things — even in the way you would describe it — but now it is berated as bigotry.

People have come to learn that civil union is just an SSM merger in all but name.

Marriage is not just a name. It is a foundational social institution and so the name carries great meaning. If you gut marriage of that meaning, then, you make it very difficult for a society to talk about marriage — about the institution — about the idea — because language is important to expressing ideas. George Orwell explained (and illustrated) this very well about half a century ago.

So, for a start, we need the name because we need to express the core of the social institution; that is the bare minimum for protecting the social institution from yet further decline; and from there we can strengthen the social institution and benefit all of society by bequeathing it to subsequent generations.

The SSM campaign thinks that it owns the word, marriage, and so it will not stop at appropriating it just because civil union is in the statutes. Culturally, they want to abolish the core meaning of marriage from our civilization.

You seem to be fixated on doing just that, anyway, and so your civil union idea is no different than your SSM idea. What is the difference, really, other than you think the former makes the latter more palatable and therefore more politically achievable?

Right, I thought so.

Thanks, Betsy! I’d like to change some minds here, but I know it’s unlikely, so I’ll settle for raising a chuckle.

Lefty: You’re right, all analogies are imperfect. But my problem with yours is that it assumes something that is still up for debate, for me at least: that the purpose of marriage is as specific as the purpose of a fishing license.

And you’re also right that “Individuals do sometimes assert a right to participate in an institution for reasons that are different from — or even opposed to — society’s purpose for that institution.” But do you really think that’s what going on with elderly couples that decide to get married? Or with couples that get married but don’t intend to have children?
Given the fact that society celebrates those marriages–we eat cake! we dance to “My Girl”!–doesn’t it make more sense to accept that society’s purpose for the institution of marriage goes beyond procreation?

And on a personal level, if I can borrow your terms again, I know firsthand how good the fishing is in marriage. In fact, my wife and I are reeling in our own little fish right now: we’ve got a baby daughter due at the end of the summer. But our marriage has NOT been a fishing trip. It’s been a much broader experience: we’ve hiked, we’ve gone swimming, we’ve spent many nights relaxing by the campfire. And if we had never caught a fish, it still would have been an amazing trip. And if the couple at the campsite next to us has kept their fishing equipment out of the water, or if (again, ahem) neither one even has a fishing pole, I’m not going to assume for one second that my trip has been better than theirs, or that they somehow missed the point of camping.

Big Wig:

“I expect the health Benefits of Marriage were the result of Hetero Marriages. “

First of all, I don’t believe that men and women are interchangeable, so let’s drop that. But I would like to see you make your argument. We’re talking about a public, lifelong commitment to a shared life and property between two individuals. Do you really believe that gay and lesbian couples in those commitments won’t tend to behave more responsibly, and therefore be healthier and more financially stable than their single counterparts?

The preliminary research suggests they will, but if you want to place your bet that it won’t hold up, that’s fine. But you’re betting against marriage, and I have a feeling that the more data we get, the more mistaken that decision will look.

“If the purpose of Marriage is to promote health and well being – Marriage is NOT a fundamental right.”

I was responding to your argument that the state promotes marriage because it has a legitimate interest in doing so. I agree that the state has an interest in marriage, I just think it’s broader than procreation.

(If that’s not your argument, correct me. There are a lot of words on this thread, and I admit I’ve read through them pretty quickly.)

“There are lots of activities that can increase general public health – that does not mean the government must provide them.”

True, but the government does promote marriage, so the question is why? Again, your answer seems to be procreation. I think it goes beyond that.

LWW in #27 asks some questions that I missed earlier. Appalling questions really, hardly worth responsing to (you, a partnered lesbian ask if there is a significant difference between men and women???), but I will say this much:

1. You mention “intersex & transexual surgery etc”, as if the <1% of such birth defects are not the exception that proves the rule! You may as well argue that humans are not bipeds with two opposing arms — because some people are borned with deformities!

2. Every human being has an inherent ability to procreate. That some people have medical problems that prevent this doesn’t mean it’s not still a fact. Every single one of us, without exception, is the result of the union of exactly one man and one woman. No more, no less, no exception.

3. If you cannot recognize or admit to the “magic” or superpotency (as opposed to social infertility, in your case) of one man and one woman and it’s relationship to Marriage, then yes, you have missed the forest for the trees in your 40 years. But I think you know EXACTLY what I’m talking about, and are just in denial about it… because the truth reveals that the lifestyle you’ve chosen for yourself is simply not equal. It’s not infertile, or subfertile, or medically depressed — it’s sterile, and impotent, by design.

And by choice, in your case.

I agree Marriage is about more than procreation, but it is the primary secular interest. Health and well being of the adults is ancillary.

Gays might be able to benefit from long term committed relationships, but I’ve seen several studies, confirmed in message boards discussions, and reiterated by influential Gays’s like Andrew Sullivan, that Same Sex Commitment does NOT equal sexual exclusivity. Sexual exclusivity plays a huge role in the Health and Well Being benefits generated by marriage.

As California Justice Carol Corrigan (who is a lesbian) said in her dissent “plaintiffs seek both to join the institution of marriage and at the same time to alter its definition.” Sexual Monogomy is implicit in Marriage, and Paternity is assumed in Married hetero Couples. Same Sex Marriage will alter that assumption.

Thanks for the response, Big Wig.

“I agree Marriage is about more than procreation, but it is the primary secular interest.”

Of course I disagree, and I’ll leave it at that to avoid being more repetitive than I’ve already been.

“Gays might be able to benefit from long term committed relationships, but I’ve seen several studies, confirmed in message boards discussions, and reiterated by influential Gays’s like Andrew Sullivan, that Same Sex Commitment does NOT equal sexual exclusivity.”

Those studies, at least the ones I’ve seen referenced here, tend not to have anything to do with gay marriage, and are often wildly misused by both the mainstream press and anti-gay-marriage folks.

And I’m not sure that anyone ever appointed Andrew Sullivan the spokesperson for the gay marriage movement, or why his views should be taken as more representative than, say, Jonathan Rauch’s.

For the record, I’ve known lots of gay couples, and none have been openly non-monogamous. But even though it flies in the face of my personal experience, I’m willing to accept that gay male (emphasis on male) couples might be less exclusive than straight couples. But 1) not to the extent that’s imagined here and 2) that doesn’t mean monogamy has nothing to do with their desire to get married. And 3), as I’ve seen mentioned in discussions on this board, that also may be the result of not ever having had access to the institution of marriage and all of the benefits it entails.

Chairm said elsewhere, “LWW said: “I don’t believe there is a legal basis for requiring it given we allow divorce and do not require remarriage after the death of a parent. ”
Perhaps you believe that Government should be tyrannical, too. I dunno, LWW, but your remarks give strong hint of an absolutist view of lawmaking but a view that conveniently would apply only to the deconstruction of marriage rather than the construction of some one-sexed alternative.
The legal basis is right under your nose. The marital presumption of paternity is two-sexed, not one-sexed. Our society even tries to extend the basics to unwed paternity. The sexual basis for this vigorously enforced presumption is not a social construct but arises from the two-sexed nature of humankind, the opposite-sexed nature of human procreativity, and the both-sexed nature of human community. Maybe you would hope that the principles of responsible procreation would be abolished in the law and in the culture when your asexual version of nonmarriage is imposed on society via the SSM merger.”

I don’t believe government should be tyrannical. I certainly would NOT suggest we require remarriage, or limit divorce (although I’ve said my piece on remarriage after divorce). I just maintain that laws must be applied equally.

As far as the rest, perhaps I don’t understand your perspective. Please explain in detail exactly what you mean by the “marital presumption of paternity”.

Chairm said elsewhere, “LWW said: “From an equal protections perspective, a sterile couple is a sterile couple.”
And yet no one-sexed scenario is sterile.
It is nonfertile.
You are making the common error of confused categories.
How can a nonfertile type of arrangement — which as a type is never fertile — be or become sterile? It cannot.
On the other hand, human fertility varies in many different ways. The human individual begins life pre-fertile; it is the nature of human fertility that the individual’s powers of procreation emerger during maturation. Those powers are never realized without the other sex. That is just the essence of human procreativity. I doubt you’d deny that much, at the very least.
Some people are born with a disability and, when they form a man-woman duo, their disability is shared with the other sex. Some become disabled either through illness, or through medical treatment (such as life-saving surgery), or [gasp!] old age. Always, a husband and wife’s fertility is varied by their being a combination of the sexes. Human generativity can and does vary during the typical lifetime of a marriage. This is not foreign to the core meaning of the social institution.
The lack of a husband, or the lack of a wife, is simply the lack of the other sex. This is not infertility. This is not subfertility. This is neither primary nor secondary fertility. This is not a medical disability on par with the variations that can and do occur within the spectrum of human fertility. This lack is simply a nonfertile scenario.

Okay, interesting distinction, and one that might have some merit save for one thing. Based on your logic, it seems you would have to place someone who never had the ability to create effective gametes as “sterile”, in the same class as a same-sex couple, regardless of who they paired with. Examples would include anyone with absent, insufficiently developed, or malformed ovaries or testicles. There may not be a lot of them in the big scheme of things, but your logic seems to deny such people any existance within marriage- same or opposite- assuming the law is applied equally. They’d be sterile in any circumstance.

Chairm said elsewhere, “LWW said: “I think the data has shown that quality of family is far more effective a predictor of happiness than the conception details. ”
You are abusing social scientific terms, again.
1. What data?
2. Quality is subjective as per your own remarks so “show” is inappropriate useage.
3. Your “far more effective” depends on item 2 and thus is not a “predictor” measure in the way you speculated.
4. Measures of happiness as per your own remarks does not justify “show”.
It is okay to speculate, of course, as optimistically as you desire. But that is not the same thing as making a social scientific assertion of certainty as per your remark above.”

I’m not in a really good position to provide citations on a regular basis, again given that time thing. That said, here is an article describing how kids born of donated eggs developed equivalently to kids concieved via “statndard” IVF with parental gametes. They don’t follow kids into adolescence, but it is suggestive. Here is a review article that concludes children concieved with 3rd party sperm via IVF develop normally and that pschosocial development up to age 8-10 is “reassuring”. I’ve read elsewhere of much the same results, but I don’t have the citations on tap. One very relevant article found here actually addresses the lesbian parent question with a willingness to be skeptical. It states, “Despite many concerns about the well-being of these children, no adverse effects of this alternative family structure on child development could be identified.” That said, the final sentences of the whole article go on to state, “A limitation of studying only lesbian DI families is that findings cannot be automatically generalized to heterosexual DI families, as there are important differences between both family types with regard to the presence of a father figure. The social father in the heterosexual DI families might play an important role in the child’s process of identy formation.” Fair enough. Pretty much, things look good so far but the jury is still out. That was in 2001, and the data that I see continues to suggest no major issues. That said, there is lots of data showing the events during upbringing can have significant effects on a child- divorce, poverty, violence, abuse, neglect, etc. I still maintain that these present factors loom larger in a child’s life that the circumstances of conception, assuming no major phenotypical disadvantages (i.e. deformaties, mental development issues, etc) which can happen in any pregnancy.

Chairm said, “I see that you’d change the meaning of marriage to that of an asexual type of arrangement. That is not the same thing as saying that conjugal relations is optional for this or that married couple, you know.”

I intended to convey that marriage need not have a sexual component, although one is certainly allowed. I’d say the same whether the union is between two women, two men, or a woman and a man. Please explain how you would differentiate between “asexual” and “conjugal relations is optional” differently than I do.

Chairm said, “Your absolutist tendencies lean heavily toward totalitarianism: you really think that the Government “allows” married people to be childless? If that is the way you think, then, you are not really concerned about the meaning and implementation of equal protection under a system of justice.”

Not really. I am recognizing that government bestows marriage on opposite sex couples that cannot have kids. You’re the one who says government should be discerning differences between circumstances, making sometimes arbitrary discriminations. I suggest government should get out of the winnowing business save for counting on two fingers and let consenting adults build their own lives.

One thing I will state clearly, for I am absolute on this, and fortunately so is the law. A marriage is tested under the circumstances of its inception. Regardless of what changes thereafter, as long as the participants do not wish to sunder the marriage, it remains valid. The government doesn’t “allow” married couples to remain childless- redefining an existant marriage is beyond its purview, but it does allow couples with no potential to have children to get married. As long as some sterile couples are allowed to get married, it seems all must per the 14th Amendment.

You talked of the number two but that was shown to be superficial mimickry rather than an actual structural basis for assuming, as do you, that homosexuality is the special ingredient that makes-up for fatherlessness or motherlessness in other arrangements.

Chairm, sexual behavior, whether homosexual or heterosexual, means nothing for parenting. Period. First, let’s get that straight. Hopefully, we can both agree.

I just go one further and maintain that sex, sometimes confused with gender but it’s not, by itself has no relevance specifically to parenting (what happens post birth). Until someone can show me evidence or otherwise convince me that there are fundamental differences between types of low-conflict two-parent families, whether they be mom-dad, mom-mom, or dad-dad, I have to fall back on the evidence I’ve seen in the literature and my own personal experience that the key is TWO PARENTS. I’ll agree to add ‘in a low conflict arrangement’ as I’d agree with you there. The special ingredient is two present, engaged, and loving parents. Sex (or gender) is irrelevant insofar as I can tell.

Can you show me studies where low conflict, loving, engaged two parent circumstances outside “traditional” marriage have been shown to be sub-par to those within marriage? Please, if you can show me that comparable arrangements, with comparable circumstances, yield dissimilar results, I’ll seriously consider it. I probably won’t divorce, especially since I don’t get do-overs like the rest of y’all, but I’ll certainly value the education.

“government should get out of the winnowing business save for counting on two fingers ”

What’s so special about the number 2, LWW? Hmmm?

LWW, are you asserting that the passage of the 14th Amendment legalized same-sex marriage across the United States? Is that really what you’re saying here???

Marty,

I’ve explained my reasoning for the number two elsewhere. It is an objective criteria that makes no differentiation between people, allowing all to be treated equally without regard to any identifying factor. Group unions also have different fiscal implications, which suggest as well placing it in a different category. I can’t see any objective way of reserving marriage to male-female without discriminating people on the basis of sex. And that is the crux of the 14th Amendment argument being made in CA right now. Equal protection requires that people be treated equally, and that discrimination on form not be undertaken by any government ruled by the Constitution. The only question seems to be what is form, and what is function, when it comes to marriage?

1. You mention “intersex & transexual surgery etc”, as if the <1% of such birth defects are not the exception that proves the rule! You may as well argue that humans are not bipeds with two opposing arms — because some people are borned with deformities!

And the government cannot discriminate on form related to those deformities, true? Law must be applied equally, and there is no “exception that proves the rule”. If it happens, the law must accommodate it equally to all people.

2. Every human being has an inherent ability to procreate. That some people have medical problems that prevent this doesn’t mean it’s not still a fact. Every single one of us, without exception, is the result of the union of exactly one man and one woman. No more, no less, no exception.

But what if someone is born without any ability to procreate? What if their very genes preclude it? What is inherent for these people? Do they get to marry?

3. If you cannot recognize or admit to the “magic” or superpotency (as opposed to social infertility, in your case) of one man and one woman and it’s relationship to Marriage, then yes, you have missed the forest for the trees in your 40 years. But I think you know EXACTLY what I’m talking about, and are just in denial about it… because the truth reveals that the lifestyle you’ve chosen for yourself is simply not equal. It’s not infertile, or subfertile, or medically depressed — it’s sterile, and impotent, by design.

Marty, whether I was married to a man or a woman, I’d be a sterile woman. I was born without a uterus. Gestational motherhood has been denied me since before I was born. That will always be my greatest sadness. As far as the “magic” you refer to, I have seen it with my parents, my sister and her husband, and countless others close to me. I have never been able to differentiate between their magic and the magic my wife and I have created and shared the last 20 years. It’s the same magic I’ve seen in dedicated gay and lesbian acquaintances of ours. The magic I’ve seen is committed love, and it seems blind to gender to me.

LWW, the presumption is a vigorously enforced legal essential of marriage law but it is far more than a concept of law.

So the presumption is not my invention nor is it peculair to the court system in the USA. In one form or another it is embedded in the traditions, customs, cultures, and the most basic precepts of justice around the world — across the historical and anthropological records.

If you don’t know what this presumption is, sayso and I will explain the birds and the bees to you.

LWW said: “Based on your logic, it seems you would have to place someone who never had the ability to create effective gametes as ‘sterile’, in the same class as a same-sex couple, regardless of who they paired with.”

No, not according to the reasoning I’ve outlined above.

But, yes, according to your reliance on a rhetorical rule of perfect consistency and on your confusion of categories.

Your remarks strongly suggest that for you the logical approach to lawmaking is to make Government tyrannical. You denied it, but that denial is inconsistent with your insistence on the rule of perfect consistency.

LWW you said: “I don’t believe there is a legal basis for requiring it [procreation] given we allow divorce and do not require remarriage after the death of a parent. ”

And then you said: “I certainly would NOT suggest we require remarriage, or limit divorce (although I’ve said my piece on remarriage after divorce).”

1. Since Government allows divorce, you believe there is no legal basis for responsible procreation. 2. Since Government does not mandate that widowed parents remarry, you believe there is no legal basis for responsible procreation. 3. You don’t think that Government should limit divorce. 4. You don’t think that Government should require widowed parents to remarry.

In sum, if only Government actually did items 1 and 2, you’d believe there is a legal basis for responsible procreation, but you do not want Government to do either item 1 or item 2. So even if it did those things, which it does not, you’d disagree anyway.

First, tell me, why would you look for a legal basis for responsible procreation by looking at divorced and widowed parents?

Second, how could you miss it even as you looked there? The marital presumption of paternity survives both the divorce of parents and the death of parents.

Third, the sexual basis for marriage is expressed in legal provisions for consummation, grounds for annulment, grounds for adultery-divorce, and the marital presumption of paternity. The legal basis arises from that sexual basis, which is opposite-sexed, not one-sexed and not sex-neutral.

LWW, your latest remarks on third party procreation do not support your previous remarks. It is appropriate, however, that you downgrade your rhetoric and now use terms such as, suggestive, inconclusive, the jury is still out. Also that you’d maintain rather than conclude. When you speculate, no matter how reassuringly, you speculate.

LWW said: “there [are] lots of data showing the events during upbringing can have significant effects on a child- divorce, poverty, violence, abuse, neglect, etc.”

1. Most children living in same-sex households (a Census term that assumes the adults are in homosexual relationship) migrated from the previously procreative relationships of their mom-dad duos. So divorce is a common factor — much more common than in marital households.

2. The structure of families matters a great deal and, despite your protestations, the circumstances of conception and birth are big parts of family structure. How children are attained is a huge factor: see step-parenting and adoption as per my previous remarks.

3. If you pin your reasurances on the tiny fraction of children raised in same-sex households who happen to have been the product of third party procreation and the technologies, well, your speculations are whittled down drastically. That is now self-evident, surely.

The point is there is much harm done to the public discourse when conclusions are predrawn from inconclusive evidence and insufficient study. Again, we have recent history as prologue. The scant study of divorced parenting and outcomes for children at the time of the no-fault divorce revolution produced speculations that have since been discredited. Even those who believe in “the happy divorce”, for example, concede the nuances are far more significant societally than the early speculators had wishfully opined.

If you really want to pin your hopes on third party procreation, then, grapple with the ethical problems that plague the industry that manufactures human beings. From your remarks, you’ve not lifted a finger to grapple with your most treasured underlying assumption about “inception”.

LWW said: “I intended to convey that marriage need not have a sexual component, although one is certainly allowed.”

When you say marriage, you mean this or that particular marriage, surely. But the social institution into which people entery when they marry certain does have a sexual basis that is foreign to your own SSM idea. I think you mistake the particular for the general and thus miss the forest for the trees.

LWW said: “I am recognizing that government bestows marriage on opposite sex couples that cannot have kids. You’re the one who says government should be discerning differences between circumstances, making sometimes arbitrary discriminations.”

Government bestows? Telling words.

Well, as for what you say I have said, nope, I have not said that.

You have insisted that I should say what your strawman says in your ventriloquist act.

You have openly been searching for circumstances to falsely equate with the nonfertility intrinsic to the lack of the other sex (a lack which is not a version of infertility).

You have held fast to two categories in your remarks. Opposite-sexed and same-sexed. Obviously, the entire same-sexed category is nonfertile. Meanwhile, the opposite-sexed category, like human fertility itself, is varied. What a discovery for you!

You mistake a difference in degree with a difference in kind. And to do that, you have strained to discern circumstances within the opposite-sexed category that you would love to equate with the constancy, the 100% certainty, and the utter ordinariness of the inherent nonfertility that features in any and all arrangements that lack the other sex. It is not a problem, a disability, that needs to be fixed or restored or accomodated.

You have done this with an arbitrariness that exemplifies the rhetorical rule of absolute consistency. As Marty pointed out, you impose the limit of two. I’ve pointed out that you have offered neither a marriage nor a parenting reason for adhering to that particular circumstance. Apparently in your mind the limit of two self-justifies.

I discern no good reason to pretend that you have engaged the actual disagreement. Responsible Procreation. Sex Integration. Combined. Coherent Whole.

I take it now that for you unless something is absolutely mandatory, it is not essential to the meaning of marriage. Likewise, if something occurs outside of marriage, then, it too is nonessential to marriage. And, unless the Government can operate with perfect knowledge and perfect forecasting powers, it cannot recognize marriage as marriage. It cannot act. It must end the societal preference for marriage and proceed as if it was unjust to have done otherwise throughout recorded human history.

How very non-arbitary of you, LWW.

LWW said: “Chairm, sexual behavior, whether homosexual or heterosexual, means nothing for parenting. Period.”

Mom-dad duos who raise their offspring would say otherwise.

As would the homosexual parent who depends on the sexual basis of the marital presumption of paternity which applied during his previous marriage (as husband and wife) even as he has left the mother of his children and now resides in a same-sex household. His parental status, and the birthright of his children, are protected even under those circumstances.

Maybe it means nothing to you. You’ve said as much so we can agree that you disagree with the sexual basis of parenthood. It is not that you disagree with me but rather with it.

LWW (Seda),

If you are digging into the available evidence, as per your claims about the available evidence, then, you can make a departure from the lesbian studies and explore the wealth of studies on family structures.

It has not yet registered with you that there are opposite-sexed parental arrangements — such as married adoptors and step-parents — who have been compared with the intact mom-dad married parental structure. I am not your gofer. The wide social scientific consensus is not that difficult to find once you get into the mainstream and out of the sideroads.

If you are keen on the “same-sex parenting” arrangement, and you are sincere about your absolute consistency rule, then, do not exclude the millions of such arrangements that are not homosexual, not “intersexed”, not part of the gaycentric identity group.

The vast majority of such arrangements are not eligible for marriage and not sexualized. Seems the perfect fit for your rule of absolute consistency.

LWW: I can’t see any objective way of reserving marriage to male-female without discriminating people on the basis of sex.

I fail to see any discrimination here when BOTH sexes are included in the union! No, discrimination would be the exclusion of one sex or another from a marriage… but no, a union founded on bigotry and gender bias is no “marriage” at all.

(Also, no one is excluded from marriage — whether they are male, female, gay, straight, sterile, infertile, deformed, handicapped, etc etc etc. It’s a simple matter of equality, whether or not YOU accept the fact that humankind is founded on the union of one male and one female. Your own birth defect changes nothing for anyone else but you)

LWW: And that is the crux of the 14th Amendment argument being made in CA right now. Equal protection requires that people be treated equally, and that discrimination on form not be undertaken by any government ruled by the Constitution.

Couple problems with the 14th Amendment argument:

1. Men and women are NOT equal. Not physically, not emotionally, and certainly not legally. So it would be a crime (of the separate yet equal type) to insist that two women were equal to two men or equal to a man and wife. Until and unless men and women ARE truly equal, your argument fails.

2. The 14th Amendment was duly ratified by the various states in 1868, and by your reasoning THAT IN ITSELF should have legalized same-sex marriage for everyone. I simply cannot imagine why that didn’t occur! Fact of the matter is that IF that amendment had been understood to mean what you say it must, it NEVER would have been ratified at all. Not then, not now.

There is no Constitutional amendment that grants a right to same-sex marriage, simply because it would be impossible to ratify such an amendment. Not then, and not now. In fact, what we’re seeing is the exact opposite — 31 states have amended their constitution to explicity declare to people like yourself that it’s not welcome.

7 more states and we’ll have the quorum needed to amend the federal constitution.

I keep wondering, what part of NO you people do not understand?

I keep wondering, what part of NO you people do not understand?

I still maintain I’m not a “you people”. I can only answer for myself. What part of NO do I not understand?

The part of NO that says some people are less than other people, less deserving of the privilidges the majority takes for granted. The part of NO that says some love is less worthy of respect than others. The part of NO that says that some children must live without the resources other children in remarkably similar circumstances have.

What part of NO do I understand?

The part of NO that caused Rosa Parks to sit at the front of the bus. The part of NO that caused Susan B Anthony and her peers to subject themselves to humiliation for the right of women to vote. The part of NO that drove Ghandi and his followers to harvest their own salt.

So Marty, what drives me to question your NO and respond with my own? In my own mind, it feels like justice.

I’ve tried in my own bumbling way to find a way of bringing it about, but I guess there is no compromise. Chairm, most of the inconsistencies you’ve seen in my posts have been from me trying to understand your logic, taking it the next logical step in my mind. You have done an excellent job advocating your perspective. I’m still not sure of some of the specifics, but I think I get the gist. I don’t think I can take any more examination of the details, and you are correct that you are not my “gofer”. I both admire and envy your certainty. Certainty is something that will always be denied me, sadly. My existance has always been ambiguous. It’s tough when you’re the <1%.

In any case, thank you all for your time. Marty, I am sorry I exasperated you. I certainly did not mean to cause you distress. I appreciate your values, and I am confident we coincide in most areas save apparently one. Like you, I think we'd be friends if we met outside the internets. And likewise, you Chairm. I have always been more comfortable in person. I truly would have liked to meet you. You fight a good fight, and I willingly concede this battle, although not the war.

Strangely enough, I like my opponents in this fight more than my allies. Mores the pity.

No problem doll. Still curious about what priviledge you think you’ve been denied… you chose a “separate yet supposedly equal” relationship, knowing full well that men and women are NOT equal.

You could have chosen otherwise. Nobody denied you anything at all.

For me, myself, I and my family have been denied little. I’ve carved out a little pocket of pre-DOMA justice, although I would not trust it to another jurisdiction. The only restriction my choices have made is in freedom to move. Fortunately, I love where I live and wouldn’t live elsewhere even if I had the freedom to move without fear my marriage wouldn’t survive the transfer. I have no intention of testing things, and as such I only limit myself and can blame no one else. All in all, I am incredibly fortunate both because of and despite my “defect” as you so quaintly put it earlier. Almost takes the sting out of not carrying my own child. Almost.

Taken out of context, I could run with your statement that “men and women are NOT equal”, but I think I know what you meant by that and will not twist things around to my benefit like others have done with my statements. I’m sure you mean that “men and women are NOT the same”, meaning there are inherent differences in the sexes which allows them to be treated differently but (hopefully) equally. Am I correct?

LWW, your words been twisted around?

Thanks for the conversation LWW (until we meet again , and yes you’re mostly correct about equal/vs/different, however in one key area — in fact the one area that my side finds critical, while your side insists is irrelevant — men and women are NOT equal under the law. When it comes to Reproductive Rights, women have them, men don’t.

From my perspective, about the ONLY chance a man has at anything resembling the reproductive rights that a woman is constitutionally guaranteed (for now), is married to a woman.

Two gay men have no reproductive rights at all, but a large checkbook helps. Two women have twice the reproductive rights as a man and wife. Just goes to show, separate isn’t equal. And either Marriage is about Family, or it aint. You certainly can’t say that reproduction isn’t about Family…

Until next time.