Sunday, February 27, 2005
Good Same-Sex Marriage Discussion
Over at Justin Katz' Dust in the Light, the discussion on SSM continues. The most interesting part for me was in the comments section, which dealt with some important concepts. I added a note on the concepts of sexuality and sexual orientation. (Discussion comments follows.)
I appreciated Becker's and Marty's arguments, because they have been carefully thought through and dealt with clarifying some concepts.
On a small aside, one thing I see very frequently is the conflation of homosexuality to homo orientation. Human sexuality is not equal to sexual orientation. The first encompasses the second. Human sexuality is the full aggregate of a person´s psychology (both conscious and unconscious), their intellectual thinking, their attitudes, their values, their desires, their dysfunctions, their emotions, and their behaviors about sex/body/intimacy. It is like equating a button on your computer to the entire computer.
Furthermore, the concept of "orientation" itself has been thoroughly dumbed down for the masses. "Attraction" is a very complex psychological subject. When people say John Doe is attracted to other men, this "attracted" can mean very complex psychological problems, there are a great variety of "attraction" feelings (there isn't just one type of attraction), there are complex feelings that generate these so-called "attraction" feelings, etc.
Part of the legitimizing of homosexuality is based on the following logic: "John Doe" feels a certain type of attraction, therefore this attraction must be valid, simply because it is a type of attraction that has a sexual component to it. Which is a great fallacy, but a standard in a culture where any form of sexual pleasure is promoted as good and as overriding everything else.
related entry: A Barbaric Society´s Idea of "Hate" Crime/Speech
Comments: An Analogy That Doesn't Work
Except under anti-miscegination laws, the options were unreasonable. Yes, blacks could marry, as long as they married other blacks. Whites could marry as long as they married other whites. What makes it untentable is that it denied people the right to marry people of different races (who the love, are attracted to, and want to make a life-long committment) because the status quo believe such relationships were wrong.
The flip side is that, yes, gays and marry non-gays and non-gays can marry gays. But it is untenable to deny gays the right to marry people of the same gender (who the love, are attracted to, and want to make a life-long committment) because the status quo believes such relationships are wrong.
Just because you don't want to discuss the parallels with anti-miscegination laws because they point out the inherent bigotry doesn't mean the parallels aren't apt.
Posted by Res Ipsa at February 25, 2005 12:22 PM
But there are two big ways in which the parallels are not apt:
1. Interracial couples are generally capable of reproduction, while same-sex couples are not.
2. Interracial couples are capable of engaging in the type of sexual intercourse which results in reproduction, even if they are infertile, while same-sex couples are not.
It is not enough to make parallels between one situation (interracial marriage) and another (same-sex marriage). You must also argue why the DIFFERENCES between the two are not significant. I know, some SSM supporters do make such arguments, but why thus do so many keep jumping back to the clearly inferior argument about there being no difference between interracial marriage and SSM?
Posted by R.K. Becker at February 25, 2005 04:42 PM
Since the ability to reproduce is not--not ever has been--a requirement for marriage, there is no reason to argue that point. Throwing out straw arguments that are completely unrelated to the legal statue of marriage does not make the argument work. My example is related to the legal requirements of marriage.
Posted by Res Ispa at February 25, 2005 04:47 PM
Oh, of course, you're going to fall back on that "but some opposite-sex couples don't reproduce either" argument. Still a big difference, because no same-sex couples are capable of reproducing through sexual activity. What I'm saying is that because of this, the argument that the prohibition against SSM is perfectly analagous to the prohibition against interracial marriage falls apart. Yes, the link between marriage and reproduction may not be rigidly legally encoded, but it is a big leap to say that it should be abandoned totally, and SSM does this because it in essence extends the meaning of consummation to include acts which never result in reproduction, anywhere, anytime.
Posted by R.K. Becker at February 25, 2005 05:41 PM
But reproduction is not a legal requirement for marriage. Consummation is not a legal requirement for marriage. That some religious people believe it is about procreation does not mean it's the law or make it so. While it may shape the church's cultural meaning of marriage, we don't live in a theocracy that requires states to follow the cultural traditions and beliefs of the church when creating LEGAL rights.
Thus, until we reach the point that reproduction and heterosexual sex are a requirements for marriage, the comparison to mixed-race bans stands.
Posted by Res Ipsa at February 25, 2005 05:51 PM
Oh, that would be so much easier if the idea of marriage as between opposite sexes were merely a tradition of the church rather than a universal human cultural tradition.
Obviously, the question of whether or not you can make legal loopholes for an idea is different from determining whether or not the idea is culturally wise.
To say that consummation and reproduction are not absolute legal requirements for marriage is a far cry from saying that the link between them has not been legally recognized. Marriages are frequently annulled because there has been no consummation.
What we're seeing here is an argument that because a link has not been rigidly enforced, it therefore should not exist at all.
Posted by R.K. Becker at February 25, 2005 06:37 PM
Theres such a huge differnce between descrimination over an unrelated distinction, and MAKING a distinction that is so clearly relevant.
RI: Since the ability to reproduce is not--not ever has been--a requirement for marriage, there is no reason to argue that point
Of course there is no coercive "requirement" to reproduce, or even to show the ability to do so in anything but the most abstract sense -- one man one woman. But in that same abstract sense, opposite sex couples ALWAYS reproduce -- and same sex couples NEVER do. This is such a vastly more important distinction than "skin color" that i'm suprised you even have the courage to say "straw man" in the next sentance. It's truly baffling.
Posted by Marty at February 25, 2005 07:47 PM
It's a distinction that has NOTHING to do with the legal instution of marriage. It is no different from making distinctions based on race since neither the ability to procreate or race are part of the legal requirements for marriage in the United States. While it is a distinction, it is not a distinction that matters when it comes to determining whether the state should bar people from the legal privileges of marriage.
Posted by res ipsa at February 25, 2005 09:36 PM
You do realize, don't you, Res, that your arguing like this only serves to add validity to "slippery slope" arguments, which SSM proponents are otherwise trying so hard to belittle?
Posted by R. K. Becker at February 25, 2005 09:56 PM
I can live with that risk. I just think it is important to remember that this is a legal question and we need to focus on the legal issues, not get sidetracked into religoius arguments that have nothing to do with the legal status of marriage.
Posted by res ipsa at February 25, 2005 10:31 PM
I just think it is important to remember that this is a legal question and we need to focus on the legal issues, not get sidetracked into religoius arguments that have nothing to do with the legal status of marriage.
But it not merely a legal question. (And the legal discussion must resolve, first, whether the courts are empowered to impose such changes.) It's surely inadvertent, but there's a whiff of oligarchy underlying such arguments.
At its most civil (in the government sense), the legal status of marriage is what citizens say it is through the laws that they develop through their representatives. SSM advocates like to pretend that there's some objective and inviolable LAW, but unless we are drifting toward a sort of judicial theocracy in which judges must interpret (or define) cosmic truth, that's simply a fantasy.
So, if it's true that the people are empowered to define the legal status of such things as marriage, then by necessity they can apply their votes however they want and for whatever reason, whether religion or sciencism. It's easy to declare that we must "focus on the legal issues," because in a legalistic arena we can square all sorts of circles. This is especially true at a time when repeated overreach of the judiciary has made a muddle of basic legal principles.
The bottom line, however, is that the pro-SSM side can't focus on the law, because their objective requires mushy concepts such as love, choice, and commitment, and because the law properly read requires them to take their case to the people — a group whose opinion they do not want.
Posted by Justin Katz at February 25, 2005 10:45 PM
"I can live with that risk."
Okay, but next time you hear an SSM opponent arguing that it will lead us on the slippery slope toward polygamy or sibling marriage, the arguments that you've made put you in a very poor position for trying to refute him.
"I just think it is important to remember that this is a legal question and we need to focus on the legal issues, not get sidetracked into religoius arguments that have nothing to do with the legal status of marriage."
Well, as Justin well puts it, it's not just a legal issue. Nor are the arguments against it merely religious ones, as much as you would like to reduce them to that. (Have I given you even one religious argument, Res? I happen not to be religious). The bigger question is whether SSM will harm society more than it helps it.
Posted by R.K. Becker at February 26, 2005 12:29 AM
That is just so FUNNY when this happens. First we hear "there is no slippery slope", then we get arguments that lead directly down the non-existant slope, then, when feet are finally held to the fire: "I can live with that risk." IOW: "I want what i want what i want and i dont care how it may affect anyone else but me!"
Sorry kiddo, I'm not prepared to live with the risk that you just acknowledged is very real, after denying that it existed at all.
Posted by Marty at February 26, 2005 09:54 AM
On an intellectual level, there is a slippery slope to pretty much every argument. The slippery slope, for instance, of insisting marriage is connected to reproduction is that the state will require fertility testing before handing out marriage certificates and that the state (or more likely, the church) will annul marriages of people who don't have children within a specific period of time. That's a slippery slope.
On the same token, the slippery slope of SSM is that the state will be forced to recognize polygamous relationships, relationships between siblings or relationsips between humans and their pets. Sure, it is a slippery slope, but that doesn't meant that all discussion should stop just because some slippery slope can be identified.
It's a bit of a red herring--sort of like using loaded terms like "judicial activism"--and therefore is a risk woth taking to argue a specific point.
Posted by res ipsa at February 26, 2005 10:21 AM
marriage is not a random set of legal rights and responsibilities that the goverment gives away to this group or that at liesure. It is a cultural institution that govermant promotes.
As in "Promote the GENERAL welfare"
It is general - not specific as to each individual or group.
And goverment (did not create it) but only promotes it.
and it does so because it is in the welfare of the people (generally speaking to do so)
Posted by Fitz at February 26, 2005 12:45 PM
Res Ipsa said:
"The slippery slope, for instance, of insisting marriage is connected to reproduction is that the state will require fertility testing before handing out marriage certificates and that the state (or more likely, the church) will annul marriages of people who don't have children within a specific period of time."
Let's apply a little bit of common sense to this argument shall we? Which is more practical and cost effective for the government to enforce - 1) that all spouses be of the opposite sex regardless of fertility, or 2) mandatory fertility testing and monitoring for every married couple?
Posted by smmtheory at February 26, 2005 01:03 PM
RI, no red herrings here:
If you're saying that the opposite sex distinction is not important enough to be upheld, then you'll have little to no basis for upholding distinctions based on age, consangunity, or quantity -- nor even (and perhaps most importantly) singlehood.
And when there is no distinction made between a single person and a married person (because to make such a distinction would be "unfair"), the institution will officially be dead. People will still have the ceremony, but it will be legally meaningless.
Posted by Marty at February 26, 2005 02:12 PM
If you're saying that the opposite sex distinction is not important enough to be upheld, then you'll have little to no basis for upholding distinctions based on age, consangunity, or quantity -- nor even (and perhaps most importantly) singlehood.
I'm sorry but the slippery slope argument is a classical logical fallacy (cf. http://www.fallacyfiles.org/slipslop.html)
I can think of many reasons that each one of those distinctions can be maintained if we remove an opposite sex disctinction and wouldn't necessarily follow. Age: we have age laws for hundreds of things, military service, driver's licenses, alcohol consumption, etc. Consanguinity: we feel that familial relationships should be limited to one, that is, if I have a sister (one familial relationship) I cannot form another familial relationship with her (by taking her as my wife). Polygamy: we value monogamy and polyamory is a practice, not an orientation.
None of these have anything to do with whether or not two unrelated men can marry each other.
Posted by Michael at February 26, 2005 02:36 PM
Michael,
You can't turn around and say polyamory is a practice not an orientation when you've been saying all along that homoamory is an orientation not a practice. If you compare stuff, you need to compare the right stuff. Mono-gamy to poly-gamy, not mono-gamy to poly-amory. Do you understand the distinction?
Posted by smmtheory at February 26, 2005 02:51 PM
Michael,
You have read this, have you not?
http://www1.law.ucla.edu/~volokh/slipperymag.pdf
The slippery slope argument may not be as fallacious as we've so long been told. I think there's a good case to be made that the line between a slippery slope argument and a cause-and-effect argument can be very thin.
Posted by R.K. Becker at February 26, 2005 03:42 PM
None of these [age, consanguineous, or polyamourous, etc] have anything to do with whether or not two unrelated men can marry each other.
You'd be right, if not for the legal precedents that are being set in your quest for same-sex marriage. Nearly ever single justification your side has to offer applies equally to the person who thinks they've been discriminated against by age, consanguinity, polyamory, or singlehood.
If this is a matter of fairness, as claimed, then the only "fair" solution is no special "marriage status" at all. You're either single with kids or single with no kids, in the eyes of the law.
Posted by Marty at February 26, 2005 04:12 PM
>> None of these have anything to do with whether or not two unrelated men can marry each other.
This also shows the weakness in the conflation of sexual orientation and sex classification that is espoused by some, but hardly most, SSM advocates.
As with closely-related combinations, the same-sex combination is unmarriagable due to too much sameness. But that traditional objection would be put aside if the radical individualism of SSM were to be elevated above the marriage idea itself.
1. Closely-related combos are deemed unmarriagable largely by virtue of the traditional line drawn around family, as Michael suggested, but also due to concerns about significant problems in reproduction. Note that the answer to the question of which related combos are too closely related varies across jurisdictions.
2. Concerns have been mitigated in some jurisidictions which have additional requirements for cousin combinations, for example -- one of the individuals must be beyond reproductive age or confirmed as surgicially sterilized. Same-sex combinations -- related or not -- are presumed to be nonprocreative and thus would not be burdened by these additonal requirements. But why is the line drawn around those with previous familial relationships that happen to be closer than second-cousins?
3. The actual medical science behind the concerns about reproduction have been shown to be well-founded but not nearly as significant as once thought. Also, unrelated combinations known to carry the high risk of passing on specific physical deficiencies are considered marriagable without additional requirements.
The man-woman criterion of marriage builds-in the presumption of sexual relations *and* procreativity -- even in the negative sense as per additional requirements on cousin combinations.
If the tradition (or 'social construct') of family bonds is considered to be more fragile today than in the past -- as per elevated rates of family dissolution and nonmarital births and blended-families and cohabitation -- then the traditional line drawn around familial relations is highly vulnerable. That line would be breached for the purpose of avoiding undue burdens on the individualized choice of one person to marry another person -- regardless of degrees of affinity.
Likewise with the increased prevalence of sperm and ova donation. How could society maintain useful lines that stand to be breached increasingly if unknowingly? Cue the diversionary SSM argument about infertile couples and the absurdities of invasive means legislated by the people's representatives.
The legalistic logic of SSM taken to its appalling ends would reveal that the argument against a brother-sister combo is no more compelling than that against any combo of unrelated men. All that would be left is the authority of the Constitutional amendments to repudicate, or head-off, the Court.
The enactment of SSM would separate procreation from marriage in the most fundamental way. If there is a right to marry the person of one's choice regardless of the man-woman criterion and the presumption of procreative combinations, then it is hard to see how there would be any closely related combinations who are too closely related.
In fact, buddy unions between closely-related persons (in loving and committed but nonsexual relationships) could become quite popular. But these would not be marriages any more than same-sex combos can be considered to be marriages. They are substitutes that vary in form.
Again, the replacement of marriage would be the outcome. If enactment of SSM is not the very end of the slippery slope, it would provide the hard push over the cliff's edge.
The marriage idea itself would be subsumed. This would lead to the eventual dispersion of the utility of marriage policy. An individual's choice, rather than the social institution, would be deemed more benefitial to society and thus society will guard that choice rather than benefit the social institution of marriage.
Posted by Chairm at February 26, 2005 05:28 PM
I can think of many reasons that each one of those distinctions can be maintained if we remove an opposite sex disctinction and wouldn't necessarily follow.
That you can think of reasons to maintain distinctions is immaterial. The more relevant point is that the rhetoric being employed to bring about SSM doesn't allow those distinctions to be drawn.
If SSM advocates were pursuing their ends through legislation, then maybe you'd have an argument, but through the courts — declaring a right to exist beyond the reach of legislation — not a chance.
Posted by Justin Katz at February 26, 2005 05:52 PM
Chairm,
Some additional thoughts related to the issue of genetically-related marriages.
If marriage is held to no longer be primarily about procreation, then what grounds would there then be to deny a marriage license to two cousins, or even siblings, on the assumption that they even intend to have children?
By severing the link between marriage and procreation, it could then be argued that any denial of a license based on a couple's greater likelihood of having children with birth defects is making an assumption about that couple's intentions which is not only not the state's business, but is irrelevant to the question of marriage anyway.
It is not so far fetched to imagine then hearing arguments like this:
"Marriage is not a license to have children. It isn't even about having children. Besides, siblings or cousins are equally capable of having sex and giving birth to children without getting married. To prevent this from happening, should we then also just prevent siblings and cousins from seeing each other at all, to prevent any chance of such children being born, whether deformed or not? If a brother or sister, or two cousins, love and care for each other and want to be together, what basis is there for the government or society to deny them this right on the assumption that they are planning something which has nothing to do with marriage anyway?"
The mechanism of argument sounds familiar, doesn't it?
Posted by R.K. Becker at February 26, 2005 06:27 PM
Heh, all these scenarios are great fun: if the prohibtions against siblings and cousins marrying are largely due to procreation, what on EARTH would those prohibtions have to do with two gay brothers? Not a darned thing, so they must be struck from the law. Afterwards, will only same-sex siblings be allowed to marry, while opposite sex cousins cannot? What a strange twist of sexual orientation discrimination THAT would be!
All we're looking for here, RI, Michael, is a simple and pure Principle that will allow us to say "we'll go this far, but no further, on principle".
Posted by Marty at February 27, 2005 12:18 AM
I appreciated Becker's and Marty's arguments, because they have been carefully thought through and dealt with clarifying some concepts.
On a small aside, one thing I see very frequently is the conflation of homosexuality to homo orientation. Human sexuality is not equal to sexual orientation. The first encompasses the second. Human sexuality is the full aggregate of a person´s psychology (both conscious and unconscious), their intellectual thinking, their attitudes, their values, their desires, their dysfunctions, their emotions, and their behaviors about sex/body/intimacy. It is like equating a button on your computer to the entire computer.
Furthermore, the concept of "orientation" itself has been thoroughly dumbed down for the masses. "Attraction" is a very complex psychological subject. When people say John Doe is attracted to other men, this "attracted" can mean very complex psychological problems, there are a great variety of "attraction" feelings (there isn't just one type of attraction), there are complex feelings that generate these so-called "attraction" feelings, etc.
Part of the legitimizing of homosexuality is based on the following logic: "John Doe" feels a certain type of attraction, therefore this attraction must be valid, simply because it is a type of attraction that has a sexual component to it. Which is a great fallacy, but a standard in a culture where any form of sexual pleasure is promoted as good and as overriding everything else.
related entry: A Barbaric Society´s Idea of "Hate" Crime/Speech
Comments: An Analogy That Doesn't Work
Except under anti-miscegination laws, the options were unreasonable. Yes, blacks could marry, as long as they married other blacks. Whites could marry as long as they married other whites. What makes it untentable is that it denied people the right to marry people of different races (who the love, are attracted to, and want to make a life-long committment) because the status quo believe such relationships were wrong.
The flip side is that, yes, gays and marry non-gays and non-gays can marry gays. But it is untenable to deny gays the right to marry people of the same gender (who the love, are attracted to, and want to make a life-long committment) because the status quo believes such relationships are wrong.
Just because you don't want to discuss the parallels with anti-miscegination laws because they point out the inherent bigotry doesn't mean the parallels aren't apt.
Posted by Res Ipsa at February 25, 2005 12:22 PM
But there are two big ways in which the parallels are not apt:
1. Interracial couples are generally capable of reproduction, while same-sex couples are not.
2. Interracial couples are capable of engaging in the type of sexual intercourse which results in reproduction, even if they are infertile, while same-sex couples are not.
It is not enough to make parallels between one situation (interracial marriage) and another (same-sex marriage). You must also argue why the DIFFERENCES between the two are not significant. I know, some SSM supporters do make such arguments, but why thus do so many keep jumping back to the clearly inferior argument about there being no difference between interracial marriage and SSM?
Posted by R.K. Becker at February 25, 2005 04:42 PM
Since the ability to reproduce is not--not ever has been--a requirement for marriage, there is no reason to argue that point. Throwing out straw arguments that are completely unrelated to the legal statue of marriage does not make the argument work. My example is related to the legal requirements of marriage.
Posted by Res Ispa at February 25, 2005 04:47 PM
Oh, of course, you're going to fall back on that "but some opposite-sex couples don't reproduce either" argument. Still a big difference, because no same-sex couples are capable of reproducing through sexual activity. What I'm saying is that because of this, the argument that the prohibition against SSM is perfectly analagous to the prohibition against interracial marriage falls apart. Yes, the link between marriage and reproduction may not be rigidly legally encoded, but it is a big leap to say that it should be abandoned totally, and SSM does this because it in essence extends the meaning of consummation to include acts which never result in reproduction, anywhere, anytime.
Posted by R.K. Becker at February 25, 2005 05:41 PM
But reproduction is not a legal requirement for marriage. Consummation is not a legal requirement for marriage. That some religious people believe it is about procreation does not mean it's the law or make it so. While it may shape the church's cultural meaning of marriage, we don't live in a theocracy that requires states to follow the cultural traditions and beliefs of the church when creating LEGAL rights.
Thus, until we reach the point that reproduction and heterosexual sex are a requirements for marriage, the comparison to mixed-race bans stands.
Posted by Res Ipsa at February 25, 2005 05:51 PM
Oh, that would be so much easier if the idea of marriage as between opposite sexes were merely a tradition of the church rather than a universal human cultural tradition.
Obviously, the question of whether or not you can make legal loopholes for an idea is different from determining whether or not the idea is culturally wise.
To say that consummation and reproduction are not absolute legal requirements for marriage is a far cry from saying that the link between them has not been legally recognized. Marriages are frequently annulled because there has been no consummation.
What we're seeing here is an argument that because a link has not been rigidly enforced, it therefore should not exist at all.
Posted by R.K. Becker at February 25, 2005 06:37 PM
Theres such a huge differnce between descrimination over an unrelated distinction, and MAKING a distinction that is so clearly relevant.
RI: Since the ability to reproduce is not--not ever has been--a requirement for marriage, there is no reason to argue that point
Of course there is no coercive "requirement" to reproduce, or even to show the ability to do so in anything but the most abstract sense -- one man one woman. But in that same abstract sense, opposite sex couples ALWAYS reproduce -- and same sex couples NEVER do. This is such a vastly more important distinction than "skin color" that i'm suprised you even have the courage to say "straw man" in the next sentance. It's truly baffling.
Posted by Marty at February 25, 2005 07:47 PM
It's a distinction that has NOTHING to do with the legal instution of marriage. It is no different from making distinctions based on race since neither the ability to procreate or race are part of the legal requirements for marriage in the United States. While it is a distinction, it is not a distinction that matters when it comes to determining whether the state should bar people from the legal privileges of marriage.
Posted by res ipsa at February 25, 2005 09:36 PM
You do realize, don't you, Res, that your arguing like this only serves to add validity to "slippery slope" arguments, which SSM proponents are otherwise trying so hard to belittle?
Posted by R. K. Becker at February 25, 2005 09:56 PM
I can live with that risk. I just think it is important to remember that this is a legal question and we need to focus on the legal issues, not get sidetracked into religoius arguments that have nothing to do with the legal status of marriage.
Posted by res ipsa at February 25, 2005 10:31 PM
I just think it is important to remember that this is a legal question and we need to focus on the legal issues, not get sidetracked into religoius arguments that have nothing to do with the legal status of marriage.
But it not merely a legal question. (And the legal discussion must resolve, first, whether the courts are empowered to impose such changes.) It's surely inadvertent, but there's a whiff of oligarchy underlying such arguments.
At its most civil (in the government sense), the legal status of marriage is what citizens say it is through the laws that they develop through their representatives. SSM advocates like to pretend that there's some objective and inviolable LAW, but unless we are drifting toward a sort of judicial theocracy in which judges must interpret (or define) cosmic truth, that's simply a fantasy.
So, if it's true that the people are empowered to define the legal status of such things as marriage, then by necessity they can apply their votes however they want and for whatever reason, whether religion or sciencism. It's easy to declare that we must "focus on the legal issues," because in a legalistic arena we can square all sorts of circles. This is especially true at a time when repeated overreach of the judiciary has made a muddle of basic legal principles.
The bottom line, however, is that the pro-SSM side can't focus on the law, because their objective requires mushy concepts such as love, choice, and commitment, and because the law properly read requires them to take their case to the people — a group whose opinion they do not want.
Posted by Justin Katz at February 25, 2005 10:45 PM
"I can live with that risk."
Okay, but next time you hear an SSM opponent arguing that it will lead us on the slippery slope toward polygamy or sibling marriage, the arguments that you've made put you in a very poor position for trying to refute him.
"I just think it is important to remember that this is a legal question and we need to focus on the legal issues, not get sidetracked into religoius arguments that have nothing to do with the legal status of marriage."
Well, as Justin well puts it, it's not just a legal issue. Nor are the arguments against it merely religious ones, as much as you would like to reduce them to that. (Have I given you even one religious argument, Res? I happen not to be religious). The bigger question is whether SSM will harm society more than it helps it.
Posted by R.K. Becker at February 26, 2005 12:29 AM
That is just so FUNNY when this happens. First we hear "there is no slippery slope", then we get arguments that lead directly down the non-existant slope, then, when feet are finally held to the fire: "I can live with that risk." IOW: "I want what i want what i want and i dont care how it may affect anyone else but me!"
Sorry kiddo, I'm not prepared to live with the risk that you just acknowledged is very real, after denying that it existed at all.
Posted by Marty at February 26, 2005 09:54 AM
On an intellectual level, there is a slippery slope to pretty much every argument. The slippery slope, for instance, of insisting marriage is connected to reproduction is that the state will require fertility testing before handing out marriage certificates and that the state (or more likely, the church) will annul marriages of people who don't have children within a specific period of time. That's a slippery slope.
On the same token, the slippery slope of SSM is that the state will be forced to recognize polygamous relationships, relationships between siblings or relationsips between humans and their pets. Sure, it is a slippery slope, but that doesn't meant that all discussion should stop just because some slippery slope can be identified.
It's a bit of a red herring--sort of like using loaded terms like "judicial activism"--and therefore is a risk woth taking to argue a specific point.
Posted by res ipsa at February 26, 2005 10:21 AM
marriage is not a random set of legal rights and responsibilities that the goverment gives away to this group or that at liesure. It is a cultural institution that govermant promotes.
As in "Promote the GENERAL welfare"
It is general - not specific as to each individual or group.
And goverment (did not create it) but only promotes it.
and it does so because it is in the welfare of the people (generally speaking to do so)
Posted by Fitz at February 26, 2005 12:45 PM
Res Ipsa said:
"The slippery slope, for instance, of insisting marriage is connected to reproduction is that the state will require fertility testing before handing out marriage certificates and that the state (or more likely, the church) will annul marriages of people who don't have children within a specific period of time."
Let's apply a little bit of common sense to this argument shall we? Which is more practical and cost effective for the government to enforce - 1) that all spouses be of the opposite sex regardless of fertility, or 2) mandatory fertility testing and monitoring for every married couple?
Posted by smmtheory at February 26, 2005 01:03 PM
RI, no red herrings here:
If you're saying that the opposite sex distinction is not important enough to be upheld, then you'll have little to no basis for upholding distinctions based on age, consangunity, or quantity -- nor even (and perhaps most importantly) singlehood.
And when there is no distinction made between a single person and a married person (because to make such a distinction would be "unfair"), the institution will officially be dead. People will still have the ceremony, but it will be legally meaningless.
Posted by Marty at February 26, 2005 02:12 PM
If you're saying that the opposite sex distinction is not important enough to be upheld, then you'll have little to no basis for upholding distinctions based on age, consangunity, or quantity -- nor even (and perhaps most importantly) singlehood.
I'm sorry but the slippery slope argument is a classical logical fallacy (cf. http://www.fallacyfiles.org/slipslop.html)
I can think of many reasons that each one of those distinctions can be maintained if we remove an opposite sex disctinction and wouldn't necessarily follow. Age: we have age laws for hundreds of things, military service, driver's licenses, alcohol consumption, etc. Consanguinity: we feel that familial relationships should be limited to one, that is, if I have a sister (one familial relationship) I cannot form another familial relationship with her (by taking her as my wife). Polygamy: we value monogamy and polyamory is a practice, not an orientation.
None of these have anything to do with whether or not two unrelated men can marry each other.
Posted by Michael at February 26, 2005 02:36 PM
Michael,
You can't turn around and say polyamory is a practice not an orientation when you've been saying all along that homoamory is an orientation not a practice. If you compare stuff, you need to compare the right stuff. Mono-gamy to poly-gamy, not mono-gamy to poly-amory. Do you understand the distinction?
Posted by smmtheory at February 26, 2005 02:51 PM
Michael,
You have read this, have you not?
http://www1.law.ucla.edu/~volokh/slipperymag.pdf
The slippery slope argument may not be as fallacious as we've so long been told. I think there's a good case to be made that the line between a slippery slope argument and a cause-and-effect argument can be very thin.
Posted by R.K. Becker at February 26, 2005 03:42 PM
None of these [age, consanguineous, or polyamourous, etc] have anything to do with whether or not two unrelated men can marry each other.
You'd be right, if not for the legal precedents that are being set in your quest for same-sex marriage. Nearly ever single justification your side has to offer applies equally to the person who thinks they've been discriminated against by age, consanguinity, polyamory, or singlehood.
If this is a matter of fairness, as claimed, then the only "fair" solution is no special "marriage status" at all. You're either single with kids or single with no kids, in the eyes of the law.
Posted by Marty at February 26, 2005 04:12 PM
>> None of these have anything to do with whether or not two unrelated men can marry each other.
This also shows the weakness in the conflation of sexual orientation and sex classification that is espoused by some, but hardly most, SSM advocates.
As with closely-related combinations, the same-sex combination is unmarriagable due to too much sameness. But that traditional objection would be put aside if the radical individualism of SSM were to be elevated above the marriage idea itself.
1. Closely-related combos are deemed unmarriagable largely by virtue of the traditional line drawn around family, as Michael suggested, but also due to concerns about significant problems in reproduction. Note that the answer to the question of which related combos are too closely related varies across jurisdictions.
2. Concerns have been mitigated in some jurisidictions which have additional requirements for cousin combinations, for example -- one of the individuals must be beyond reproductive age or confirmed as surgicially sterilized. Same-sex combinations -- related or not -- are presumed to be nonprocreative and thus would not be burdened by these additonal requirements. But why is the line drawn around those with previous familial relationships that happen to be closer than second-cousins?
3. The actual medical science behind the concerns about reproduction have been shown to be well-founded but not nearly as significant as once thought. Also, unrelated combinations known to carry the high risk of passing on specific physical deficiencies are considered marriagable without additional requirements.
The man-woman criterion of marriage builds-in the presumption of sexual relations *and* procreativity -- even in the negative sense as per additional requirements on cousin combinations.
If the tradition (or 'social construct') of family bonds is considered to be more fragile today than in the past -- as per elevated rates of family dissolution and nonmarital births and blended-families and cohabitation -- then the traditional line drawn around familial relations is highly vulnerable. That line would be breached for the purpose of avoiding undue burdens on the individualized choice of one person to marry another person -- regardless of degrees of affinity.
Likewise with the increased prevalence of sperm and ova donation. How could society maintain useful lines that stand to be breached increasingly if unknowingly? Cue the diversionary SSM argument about infertile couples and the absurdities of invasive means legislated by the people's representatives.
The legalistic logic of SSM taken to its appalling ends would reveal that the argument against a brother-sister combo is no more compelling than that against any combo of unrelated men. All that would be left is the authority of the Constitutional amendments to repudicate, or head-off, the Court.
The enactment of SSM would separate procreation from marriage in the most fundamental way. If there is a right to marry the person of one's choice regardless of the man-woman criterion and the presumption of procreative combinations, then it is hard to see how there would be any closely related combinations who are too closely related.
In fact, buddy unions between closely-related persons (in loving and committed but nonsexual relationships) could become quite popular. But these would not be marriages any more than same-sex combos can be considered to be marriages. They are substitutes that vary in form.
Again, the replacement of marriage would be the outcome. If enactment of SSM is not the very end of the slippery slope, it would provide the hard push over the cliff's edge.
The marriage idea itself would be subsumed. This would lead to the eventual dispersion of the utility of marriage policy. An individual's choice, rather than the social institution, would be deemed more benefitial to society and thus society will guard that choice rather than benefit the social institution of marriage.
Posted by Chairm at February 26, 2005 05:28 PM
I can think of many reasons that each one of those distinctions can be maintained if we remove an opposite sex disctinction and wouldn't necessarily follow.
That you can think of reasons to maintain distinctions is immaterial. The more relevant point is that the rhetoric being employed to bring about SSM doesn't allow those distinctions to be drawn.
If SSM advocates were pursuing their ends through legislation, then maybe you'd have an argument, but through the courts — declaring a right to exist beyond the reach of legislation — not a chance.
Posted by Justin Katz at February 26, 2005 05:52 PM
Chairm,
Some additional thoughts related to the issue of genetically-related marriages.
If marriage is held to no longer be primarily about procreation, then what grounds would there then be to deny a marriage license to two cousins, or even siblings, on the assumption that they even intend to have children?
By severing the link between marriage and procreation, it could then be argued that any denial of a license based on a couple's greater likelihood of having children with birth defects is making an assumption about that couple's intentions which is not only not the state's business, but is irrelevant to the question of marriage anyway.
It is not so far fetched to imagine then hearing arguments like this:
"Marriage is not a license to have children. It isn't even about having children. Besides, siblings or cousins are equally capable of having sex and giving birth to children without getting married. To prevent this from happening, should we then also just prevent siblings and cousins from seeing each other at all, to prevent any chance of such children being born, whether deformed or not? If a brother or sister, or two cousins, love and care for each other and want to be together, what basis is there for the government or society to deny them this right on the assumption that they are planning something which has nothing to do with marriage anyway?"
The mechanism of argument sounds familiar, doesn't it?
Posted by R.K. Becker at February 26, 2005 06:27 PM
Heh, all these scenarios are great fun: if the prohibtions against siblings and cousins marrying are largely due to procreation, what on EARTH would those prohibtions have to do with two gay brothers? Not a darned thing, so they must be struck from the law. Afterwards, will only same-sex siblings be allowed to marry, while opposite sex cousins cannot? What a strange twist of sexual orientation discrimination THAT would be!
All we're looking for here, RI, Michael, is a simple and pure Principle that will allow us to say "we'll go this far, but no further, on principle".
Posted by Marty at February 27, 2005 12:18 AM
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