Ruth Institute Blog

Yes. You’re right. There’s probably going to be need of further legislation and judges’ discretion in order to accommodate the legal recognition of non-heterosexual couples. Then again, if your argument rests on an appeal to simplicity, why not revert to the old system of the paterfamilias? That removed ALL judicial oversight on family dynamics and was the epitome of laissez-faire policy. Why not revert to the old presumption that a married woman could not be raped or abused by her husband–laws protecting women’s (and children’s) rights have caused countless complications and resulted in greatly expanded government power. The answer, of course, is that sometimes complicated legislation is necessary to preserve people’s rights, among which, according to our state and federal courts, is the right to marry. The fact is that same-sex couples already exist, and are already raising children–thousands of them in this country alone, in fact. Contrary to what the religious right says, gay parenting isn’t a “social experiment”–it’s a social reality. It would take a complete abdication of one’s conscience to believe that those children’s interests are not best served by having their same-sex parents recognized as married, and afforded the full financial and legal protections of the institution. Or does NOM’s favorite slogan about “protecting children” have a “gay-parented children not included” caveat?

If you think that human sexuality and the human urge to form lifelong bonds of mutual affection and support, can be marginalized and demeaned as mere “sexual desires,” then I am very sorry for you. I hope you don’t conceive of your own sexuality in purely such terms. I certainly don’t conceive of mine that way, and government, in its justification for naming marriage as an individual right, doesn’t either. Marriage has been called such precisely because it encompasses the individual’s realization of such a core component of what it means to be human–to form a romantic attachment that brings with it emotional and physical benefits. That core human need is accommodated by the state’s guardianship over a contractual relationship called marriage. It’s very interesting how anti-marriage advocates talk about “why” marriage is a right, seeming to forget that rights don’t exist because they’re “useful”–they exist as part of every person. Government can neither grant them nor strip them away. We don’t say that we believe in free speech because everyone’s free speech will be in any way useful to society. We believe in free speech because we believe that humans have a certain innate dignity that encompasses the right to self-expression. The same goes with the right to marry, or any other right. Unlike in collectivist ideologies, the American idea is all about individual rights–regardless of societal benefits or approval or disapproval.

Finally, I see you’ve conveniently neglected to address the real and pressing issue of gay parents and their children, and how to PROTECT and enhance the well-being of those families. It seems to me that your side has three options when it comes to this issue: 1) do as David Blankenhorn did, and acknowledge that same-sex marriage would be a great good for gay families, 2) pretend that somehow gay families and lives don’t matter or wouldn’t be affected by the very real benefits of marriage, or 3) do as you seem intent on doing, and pretending the issue doesn’t exist. Just be warned–it won’t go away. It’ll only become more and more common of a family situation, and you’ll eventually HAVE to contend with it.

“It’s pure nonsense” is a rather glib way of dismissing something so central to human self-identification and expression. But you’re entitled to your sterile view of human life. It’s not the view shared by many of your peers, both pro- and anti- same-sex marriage, it’s not the view enshrined in Constitutional and legal interpretation, and it’s not even the view of Jewish tradition and halacha, which sees love (albeit only heterosexual, married love) as a powerful and profoundly good force to be sought out and enjoyed. Perhaps you don’t believe in individual freedoms at all, or in the primacy of the individual spirit and conscience in the priorities of the State. Whatever your beliefs, they have very sad implications for all people, both gay and straight.

I’m still wondering how many back-and-forths it’s going to take for you to acknowledge that annoying issue that just won’t go away–the children of same-sex couples. Maybe you and your allies can truly, in the name of “truth and love”, ignore thousands of innocent, good people, their lives and needs. Woe unto you.

The very same arguments that are being made for SSM can be made for polygamy.
Further, I believe that it is in a child’s best interest to know that the surrounding society does not agree with their parents’ distorted view of reality. How nice to hear that one is not alone in thinking something is odd or wrong, especially when the child gets no support for their position at home.
Can you imagine saying that alcoholism is OK so a child won’t feel that there is something wrong with his or her alcoholic parent?

Obviously, there is no sexual basis for presuming one man to have impregnated another man; or one woman to have been impregnated by another woman.

Indeed, there is no sexual basis for the “parentage” notion that SSMers would hope to see supplant the marital presumption of paternity. There is nothing that an all-male or an all-female scenario would do sexually that would establish the parent-child relationship, at law.

Alex, you might concede as much before returning to your emphasis on the homo-hetero dichotomy that features so prominently in your comments.

* * *

Consider the following, as per your own stated standards of argumentation:

The fact is that incestuous couples already exist, and are already raising children–thousands of them in this country alone, in fact. Contrary to what the SSMers often say, parenting by closely related people isn’t a “social experiment”–it’s a social reality. It would take a complete abdication of one’s conscience to believe that those children’s interests are not best served by having their incestuous parents recognized as married, and afforded the full financial and legal protections of the institution.

You could fill-in the polygamists and polyandrists, also. Even underaged people, too.

If you include them in your complaint, okay, be upfront about that. If not, why not? It clearly cannot be about sexuality, right? Nor about deny children what you believe would be a great good for the group you have emphasized throughout your comments. Right?

* * *

There are no absolute rights in our laws; and there is no legal right to marry that does not depend on what marriage actually is and that does not depend on societal regard (such as esteem) for the societal significance of the social institution.

The legal individualized right, as such, flows from marriage, not the other way around.

And the meaning of marriage, its essentials, its core, arises from certain givens — stuff we do not socially construct but rather acknowledge and to which we respond. This social institution arises from the two-sexed nature of humankind, the opposite-sexed nature of human procreation, and the both-sexed nature of human community.

This is the source for the universality of marriage. It arises from the combination of man and woman, rather than from the lone individual. That said, our humanity is clearly indistinguishable from our sexual embodiment. Human dignity, and respect for human dignity, is not cut-off from the need to balance social goods.

I may be mistaken, but even in your own comments above you hinted that this was of great significance to how you viewed the SSM issue. You’d tip the balance toward the atomized individual, however. But also you’d tip heavily toward the identity group you favor.

When you referred to thousands of people doing such-and-such, you raised proportionality as a legitimate concern, right? If so, please recognize that there are many thousands of people living in polygamous families today. And, due in no small part to the practice of using “donated” gametes, there is a rise in consenting incestuous relationships — based on genetic sexual attraction.

And, apart for these sexualized examples, there are tens of millions of people residing in arrangements where parents and adult children are raising children and fending for themselves outside marriage — and, presumably, would fend for themselves outside of SSM should it be imposed. Yet millions of these people live in one-sexed parenting scenarios. In fact, such scenarios have long-existed without a demand that the courts rearrange the basics of marriage to fit these nonmarriage arrangements.

Are they included in your arguments for SSM? Are they different, somehow, from your favored subset of nonmarriage? Howso, if so?

Alex said: “We don’t say that we believe in free speech because everyone’s free speech will be in any way useful to society. We believe in free speech because we believe that humans have a certain innate dignity that encompasses the right to self-expression.”

To a significant extent your thinking there is circular.

In any case, as you are aware, self-expression is not an absolute right. And the legal right, as such, depends on what is meant by free speech. Restrictions can be applied, legitimately even if contentiously.

In terms of the SSM issue, the choice to form a one-sexed arrangement (sexualized or not) is a liberty exercised not a right denied. Within the nonmarriage category, there are millions of people whose arrangements, relationships, and types of circumstances do not make them eligible for marriage.

The SSM campaign disregards the rest of nonmarriage and promotes the demand for a special status for the subset that is embodied in the gay identity group. Now, if the sexual stuff is as important as you said, then, how does that figure into the objective rules for determining parental status?

Please keep in mind that SSMers tend not to argue against polygamy, in principle, but rather in terms of other utilitarian stuff that are not really about an innate right to marry. Likewise incestuous relationships between consenting adults. Dittoe for consensual underaged arrangements. Yet that seems to stand against your view of an innate right to SSM; and against your view of the elevated importance of sexuality.

Also, please keep in mind that the more elaborate argument that SSMers have offered against polygamy, for one example, is that it would be too complicated to regulated in our laws. That is not a good enough objection based on what you said earlier, right? It just has to be worked out because of this innate right that government must expand to protect.

It may surprise you, but respect for human dignity sometimes means discriminating between different things. Society may justly discriminate between marriage and nonmarriage. This is fundamental to the very notion of society issuing a license to marry, enforcing eligiblity requirements, and according special status to the social institution.

Before you pin the label “marriage” on a right, you need to distinguish the thing — the type of human relationship — from all the rest.

The fact that individual liberties have limitations doesn’t justify any and every additional limitation placed on such liberties. Every limitation on free speech, for instance, must have a rational relationship to legitimate state interests to be valid–thus, the state can arrest someone who shouts “fire” in a crowded theater, in the interest of protecting other citizens’ lives, but cannot arrest someone who makes non-physically-dangerous but still offensive or stupid speech.
The same goes with marriage. Our starting presumption must be that every person is free to marry the person of their choice, and if the state wishes to prevent someone from marrying a person of their choice, the state must show that such a limitation on personal freedom has a rational relationship to state interests. Thus, we don’t allow minors to marry because they cannot consent to any contractual relationship. Similarly, I personally believe there are legitimate state interests served by limiting marriage to two people and to non-relatives, because it seems clear that incestuous and polygamous relationships are intrinsically exploitative. But polygamy and incest will have to be debated on their merits. They bear no more of a relationship to monogamous gay relationships than they do to monogamous straight relationships. Saying that “gay marriage will lead to polygamy” makes no more sense than saying “interracial marriage will lead to polygamy.” Furthermore, no one is born with a “polygamous” or “incestuous” orientation. Polygamy and incest are solely identifiable as ACTS, whereas homosexuality is identifiable as both a series of acts AND as a strong romantic affinity and orientation. But, if your only reason for believing that same-sex marriage (or polygamy, for that matter) ought to be banned is that it doesn’t fit your metaphysical “definition” of marriage, then you might want to consider if you’re trying to skirt the issue of whether a rationally identifiable state interest exists here, or just a religious conviction about what marriage is in God’s eyes.

I’d like to mention what I think is a powerful statement issued by the late Justice Blackmun, in his dissent in Bowers v Hardwick:
“…before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is ‘an abominable crime not fit to be named among Christians.’” In this case, Blackmun was referring to laws proscribing gay intimacy. But his words could just as easily be applied to what NOM and RI are doing right now–sidestepping the issue of the deprivation of gay citizens of access to a legal relationship at the core of the human experience by claiming, essentially, that gay people and their actions are contrary to a metaphysical order of things, beyond rational investigation and legal expansion. It’s an intellectual fraud, and it’s quite clear from history that it’s been used to try to shut the door on expanding liberty for all sorts of people. Once upon a time, all the rational, clear arguments that pointed to blacks being equal to whites and meriting the same legal status were dismissed because the “definition of humanity” simply did not include black people. Once upon a time, the “definition of marriage” could have been wielded like an axe against those who tried to transform it from a property arrangement in which a woman was transferred from her father’s to her husband’s custody, into a union of willing equals. In fact, I would argue, it is precisely the former “redefinition” of marriage that makes same-sex marriage so much less foreign to Westerners in 2010 than to, say, the ancient Greeks or medieval Franks or even 1950′s Americans. But the point remains that people have held many attributes to be “essential” to marriage, to humanity, and to any number of other things, as a way of shutting the door on reasoned argument. The fact is that while it may or may not be possible for God to give his formal seal of approval to same-sex marriages (or to second marriages, or to interfaith marriages), it is perfectly possible for the state to issue licenses, use spousal terminology, and extend benefits and immunities to the participants in the contract. That is possible, and has already been done in almost a dozen countries, including five states in the U.S. The onus is on you to demonstrate why it oughtn’t be done. I urge you to try and muster some reasoned argument, and not simply trot out the “marriage definition” tautology.

Alex, you do you realize, of course, that to assert a right to something the first order of business is to clearly specify what that something actually is. Otherwise you are being arbitrary and irrational.

Please plainly state the essential(s) of the type of relationship you have in mind when you refer to “marriage”. Afterall, you are claiming there is a universal human right to form this type of relationship. You need not be so fearful of being anything but indiscriminate. You need not be fearful of clarifying your views in a reasoned and objective manner.

Given your own comments earlier, the essential(s) can’t be something that the government creates or that the government dishes out. The essential(s) must be intrinsic to the type of relationship; indeed the essential(s), as such, differentiate it from other stuff. The essential(s) make it possible for government, on behalf of society, to distinguish between that which merits the name, the license, the status of marriage.

Then, on that basis, and not on things extrinsic, limitations might be assessed.

You have not done any of that, yet, Alex.

* * *

Taking pot shots at religous beliefs is a pretty weak tactic, on your part, especially since I did not present a religious argument in my previous comment. The core meaning of marriage provides the basis for the bilinear limitation, the relatedness limitation, and the age limitation.

You, on the other hand, have taken several leaps of faith in your hop-skip-and-jump approach to the fundamentals you have ellided.

For example, you assume that the legal age to contract is identical with the legal age to marry. But whether or not that assumption is valid, it is irrelevant, since an age limit begins with that to which it is applied. Not the other way around. If you are not being arbitrary, then, you can explain the age limit in the context of marriage itself rather than something else. Perhaps you are stuck on an abstract notion of consent and have not actually thought this through.

* * *

Alex said: “Furthermore, no one is born with a “polygamous” or “incestuous” orientation.”

Well, Alex, people are born related. You cannot deny that. And other people are born affiliated — usually not of their own choice but by the choices others made or will make.

The phenomenon of genetic sexual attraction fits your own “definition” of “a strong romantic affinity and orientation.”

But said anything about sexual attraction? There is no legal requirement for that anyplace where SSM has been imposed. Nor for “romantic affinity”. You can’t use that as an excuse to discriminating, according to your own stated standards.

Polygamous acts are identifiable as acts. Incestuous acts are identifiable as acts. Same-sex sexual acts are identifiable as acts.

As for an affinity or an orientation, there is plenty of science that points toward the natural inclination of human beings toward multiple sexual relationships of one kind or another.

But, again, no SSM law makes same-sex sexual behavior mandatory for those who’d show-up for the state-issued license and for the special status. So how is affinity and orientation even relevant to polygamy and incest, anyway? You may feel you’ve made some great argument, there, Alex, but your simply undermined your own stated viewpoint.

* * *

Look, there is an identifiable core meaning for the social institution of marriage. You can’t come up with one for SSM so you’ve glibly assumed, mistakenly, there can’t be a reasoned definition for this foundation of civilization.

Besides, in your own remarks you implicitly depended on an anemic redefinition. If you are going to dismiss religious beliefs, as you just did, and “metaphysical definitions”, as you just did, then you should not be so dependant on leaps of faith and metaphysical definitions like that.

And if the redefintion upon which you depend is so arbitrary and purposeless, as it certainly appears to be, then, your own viewpoint lacks a rational basis for government recognition in the first place. Limitations don’t even enter into it, really, since your redefinition does not merit special licensing nor special status. You haven’t shown that the type of relationship you have in mind merits anything on par with marriage. Indeed, you haven’t distinguished it from other stuff — from the rest of nonmarriage or even from SSM.

None of that is concealed by your quoting from the Bowers case.