Same-sex marriage bans in Washington and New York

Friday 4 August 2006

Washington and New York states both recently upheld their bans against gay marriage, and with very similar logic. But the reasoning is pretty flimsy.

Basically, both states’ courts said the legislatures could ban gay marriage because the state has an interest in ensuring procreation. This is a laughable reason to preclude state recognition of stable relationships.

First of all, plenty of heterosexual couples get married without procreating. When two 90-year-olds get married, it’s considered a heart-warming event that makes it onto the local news. Will states begin refusing marriage licenses to infertile couples, arguing that only by reserving marriage for the fertile can they guarantee the continuity of humanity? It’s absurd.

As Ellen Goodman wrote in today’s Boston Globe:

If marriage is for procreation, shouldn’t they refuse to wed anyone past menopause? Shouldn’t they withhold a license, let alone blessings and benefits, from anyone who is infertile? What about those who choose to be childless? Nothing borrowed or blue for them. Indeed the state could offer young couples licenses with sunset clauses. After five years they have to put up (kids) or split up.

Of course the states’ other interest is in families “headed by the children’s biological parents.” Why then give licenses to the couples who are raising 1.5 million adopted children? We can ban those blended families like, say, the Brady Bunch. And surely we should release partners from their vows upon delivery of their offspring to the nearest college campus.

This is where the courts’ reasoning leads us, and I use the word “reasoning” loosely. If anything, these two decisions are proof that the courts and the country are running out of reasons for treating straight and gay citizens differently.

Second, many gay couples intend to raise children, and are in fact allowed to do so by both New York and Washington state. Are we to believe that it is good to raise adopted children, but married parents are not important for those kids?

As Dan Savage said in the New York Times:

These defeats have demoralized supporters of gay marriage, but I see a silver lining. If heterosexual instability and the link between heterosexual sex and human reproduction are the best arguments opponents of same-sex marriage can muster, I can’t help but feel that our side must be winning. Insulting heterosexuals and discriminating against children with same-sex parents may score the other side a few runs, but these strategies won’t win the game.

I think it is inevitable that society will come around to recognizing gay marriage, just as 50 years ago we recognized inter-racial marriage. It’s only a matter of time.

Comments

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daniel 11:01 AM on 4 Aug 2006

What you "think it is inevitable", I wish and hope will happen, the sooner the better. Perhaps I'm biased due to my parents' inter-racial marriage :)

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Dennis Doughty 12:29 PM on 4 Aug 2006

In addition to the arguments here, I've often thought that the appropriate response to all of the defense-of-marriage rhetoric would be to insist upon their corresponding support for the elimination of divorce if children are living at home. Especially since many prominent anti-gay-marriage lawmakers have been divorced.

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Shane Hathaway 3:04 PM on 4 Aug 2006

The legalization of gay marriage is likely to quickly lead the legalization of polygamous marriage. Ned, how do you feel about that?

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Shane Hathaway 3:05 PM on 4 Aug 2006

Correction: s/quickly lead the/quick lead to the/

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Rob McDonagh 3:42 PM on 4 Aug 2006

@Shane: That's a horse of a different color. That argument usually goes hand in hand with a similar argument about legalization of human-animal marriages. Both are apples-to-mangos comparisons, and a third similarly illogical consequence would be adult-child marriages. Polygamous marriage will remain against the law because it is an inherently unequal arrangement that inevitably leads to reduction of rights for members of one sex (women, at this point in history). The reasoning used in these recent court cases, of course, would not outlaw polygamous marriage. But then, as Ned says, neither should it outlaw gay marriage.

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Ned Batchelder 3:45 PM on 4 Aug 2006

Shane: I'm not sure who out there would be arguing for polygamous marriage in any case. Do you really believe there are enough people interested in that to push for its adoption? And if there are, it doesn't mean we have to legalize it.

The absurdist argument that legalizing gay marriage somehow makes Anything Legal is simply a scare tactic. You might as well argue against tax cuts because it logically leads to There Being No More Taxes At All! We need to decide what to legalize, and legalize it. If there are follow-on proposals, we need to consider those on their merits (or lack thereof).

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Shane Hathaway 4:24 PM on 4 Aug 2006

There are thousands of polygamists in Utah, even though such practices are forbidden by both law and the dominant religion. It seems to me that all of the reasoning applied by gay marriage activists could also be applied by the polygamists.

What makes polygamy an inherently unequal arrangement? While I can think of things that are likely to go wrong in the relationship, I can't think of anything that would be inherently unequal.

This isn't intended to be an absurdist argument. I personally see very little difference between legalizing gay marriage and legalizing polygamy. If gay marriage is legal, I don't see any barrier for polygamy also being legal.

Forgive me if I've erred. :-)

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Jay P. 5:27 PM on 4 Aug 2006

Shane:
Well, the number of men in the marriage does not equal the number of women. I'd call that unequal.

The reasons applied against gay marriage tend to be about fear and hatred of gay people (even if the opponents of gay marriage don't explicitly say that).

The reasons against polygamy tend to be about the numerous cases of abuse and civil rights violations that have often gone along with them.

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Shane Hathaway 6:43 PM on 4 Aug 2006

Hmm, that sounds like an arbitrary inequality to me. It doesn't inherently affect anyone's rights.

You may be right that many people oppose gay marriage based on fear and hatred, but I know many people who oppose it based on non-emotional reasoning rooted in social science. Obviously, we know different people.

There does seem to be a link between polygamy and abuse, but alcohol is also linked to abuse, yet alcohol is no longer banned. Thus concerns about abuse don't seem like a major barrier.

Anyway, I'll stop posting contrary viewpoints on Ned's board. :-)

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Ned Batchelder 9:08 PM on 4 Aug 2006

Shane, no one, certainly not me, is asking you to stop posting contrary viewpoints. It's the other viewpoints that make conversations like this interesting.

I'd love to hear some of the "non-emotional reasoning rooted in social science". I don't think you'll change my mind, but I do want to hear what people think. Understanding the other side deepens my understanding of the entire issue.

I'll be blunt though: I don't think there is a rational reason to preclude gay marriage. Support for gay marriage boils down to whether you believe homosexuality deserves parity with heterosexuality in society's eyes. I've listened to a lot of arguments, and I've never found someone who claims to fully accept homosexuality, and can then explain why they don't support gay marriage.

As to polygamy: I think it is foolish to believe that any of these issues are decided on entirely rational bases. How people view these things depends on their environment. What they've been exposed to affects how they make their "rational" arguments. The founding fathers believed in equality for all, just not blacks or women. That wasn't because they didn't believe in equality, or weren't thinking straight. It was because their world view included the idea that men and women were fundamentally different, and that equality between them wasn't an important issue.

Gay marriage is going to be legalized, not because we will finally have gotten to the bottom of a thorny legal conundrum, but because enough people's world views will have changed to include the idea that homosexuality is acceptable, and that gays deserve rights that are currently reserved for heterosexuals. Legalizing gay marriage won't automatically imply legal polygamous marriage: polygamy is not accepted by nearly the number of people who accept homosexuality, and there aren't nearly enough people demanding polygamous marriage to push the issue to completion.

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Michael Chermside 11:05 PM on 4 Aug 2006

I wonder if Shane realizes that legalizing interracial marriage will ALSO lead to the legalization of polygamous marriages by the exact same argument!

The absurd thing is that I have friends who are in a committed, long-term family relationship involving two men and one woman. They have been happily "married" for oh, about eight years now, and they are raising two young children. They have a more stable, supportive relationship than many of the opposite-sex couples I know. (And if it's what you care about, I suppose they're procreating too.) I'm not advocating legalization of polygamous marriages, but honestly, I can't think of any reason why we SHOULDN'T allow them.

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David Boudreau 5:29 AM on 5 Aug 2006

Ned, I still don't buy into the idea that marriage is for something _besides_ procreation, and for being able to track down the fathers of children. Otherwise, what is the point of marriage, this constant in every human society since the beginning of time? I don't think the purpose is just to warm hearts on the evening news, or even fight discrimination against gays for that matter. I think there's something more that hasn't been fairly considered here.

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Ned Batchelder 8:06 AM on 5 Aug 2006

David, you seem to be agreeing with the Supreme Courts of NY and Washington that marriage is about procreation, and should be denied to homosexuals because they cannot procreate. In other words, that marriage should be reserved for those who can procreate.

Please explain then why we don't deny marriage to the infertile? If it is important to keep gays from marrying to encourage heteros to marry so they can procreate, surely we need to prevent the infertile from marrying to encourage the fertile to marry, no?

And also please explain why those states allow gays to adopt. If, all things being equal, married parents are better than unmarried parents, then surely married gay parents adopting children is better that unmarried gay parents adopting children. Yet these states allow the latter and forbid the former. It makes no sense.

So if you can, explain the "something more that hasn't been fairly considered here".

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Matt Henderson 9:29 AM on 5 Aug 2006

My beliefs as to what's "right" and "wrong" have been formed, I suppose, through cultural influences, religious influences and personal experiences. As a result, there are many issues that can be argued rationally, but remain, at the core of my belief system as "wrong."

We are not going to escape the natural desire of all individuals that the practices and laws of their society are aligned with their own belief system. And I am quite sure it wouldn't be too difficult to find issues that other societies have adopted as rationally acceptable practices, that those in favor of gay marriage (in our own society) would argue are wrong, simply on the basis of morality.

So, in my opinion, it's as unfair and inappropriate to categorically discount the opinions of those against gay marriage as "absurd" and generalize them as "haters and fearful of gays", as it is for those against gay marriage to discount the fact that a society's collective definition of right and wrong (as reflected in its laws) can never align perfectly with the personal beliefs of every member of that society.

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Ned Batchelder 11:15 AM on 5 Aug 2006

Matt, I agree with you that "right" and "wrong" change over time as people's perceptions change. I used the word "absurd" not to characterize opposition to gay marriage, but to characterize the inconsistencies in the "rational" arguments against gay marriage but for gay adoption.

You may not want to call those opposed to gay marriage "haters and fearful of gays", but I predict in time you will. For example, how would you now characterize those who are still opposed to inter-racial marriage?

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Matt Henderson 11:48 AM on 5 Aug 2006

Ned,

I honestly haven't heard enough people making arguments against inter-racial marriage to feel in a position to make a generalization. Of the few I have heard, their opinions seemed to be rooted more in racism than either rational arguement or moral belief.

I don't know that I would consider inter-racial marriage, and gay marriage as closely comparable issues. I think the notion that the basic family unit consist of a man, a woman, and (possibly) children, is far more deeply rooted in our society, than any notion that races shouldn't mix ever was.

Let me ask you this: How legitimate is it in this debate, to simply express an opinion based on personal belief?

Do you feel that the laws which currently (and historically) have prevented gay marriage were established on the basis of rational argumentation, or on the basis of society's moral beliefs at the time? If it's the latter, do you feel it's incorrect that a society's laws reflect its collective moral beliefs, over rational argument?

When you say that the law will change because, "enough people's world views will have changed to include the idea that homosexuality is acceptable" it seems you are acknowledging the acceptability of basing laws on the collective "beliefs" of society.

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Ned Batchelder 12:15 PM on 5 Aug 2006

I do accept that laws are based on the collective beliefs of society. In fact, I don't see how they can be based on anything else, at the deepest level.

In math, axioms are accepted as true, and then theorems are derived from them. In society, there are fundamental beliefs, and laws are argued (derived) from them. The difference with society is that we don't agree on the fundamental beliefs before moving on to write laws based on them. (Occasionally, a very smart person does express the beliefs before writing laws: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.")

The important thing here is that society's beliefs change over time. In 1800, "equality for women" was nonsensical. In 1900, it was something people could argue about. In 2000, it's accepted as a given.

When people say they are making "rational" or "non-emotional" arguments, they are talking about the derivation process. But the fundamental beliefs are far from "rational". And they underlie *all* of our laws. Some of those beliefs are so fundamental it's hard to see alternatives, but some are in flux, and will result in friction as the laws change with them.

The civil rights movement in the 1960's was one of those times. The gay rights marriage debate will be another.

To get back to an earlier commenter: the reason gay marriage will not lead to polygamous marriage is because the fundamental beliefs about homosexuality are changing, but the fundamental beliefs about polygamy are not.

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Matt Henderson 12:33 PM on 5 Aug 2006

Ned,

From what you just wrote, I think we are in agreement that it's perfectly acceptable for a person to be against gay marriage based simply on personal beliefs, and then push for laws supporting those beliefs, even when presented with opposing rational argumentation.

This is the root of what bothers me when following these debates. Very often, people supporting gay marriage insist that those with opposing "beliefs" simply get out the way, and quit becoming a henderence to the natural progress founded in logical, rational argumentation.

As you say, at the end of the day, the laws reflect the society's collective beliefs. And, at the individual level, those beliefs may *legitimately* come from rational analysis, culture, religion, personal experience, and inumerable other influences.

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David Boudreau 12:37 PM on 5 Aug 2006

We don't deny marriage strictly on the basis of infertility because of how we can't be so sure about fertility- while one man may not be able to father with his wife, the marriage bond says he should not have children with other women, basically (a possibility). While women go through menopause, you can't be so sure with aged men. One thing you can be sure of, however, is that a child will not be produced from any socially recognized or practiced bond between two men or between two women. Marriage is about the possibility of procreation, and making sure a kid's father can be tracked down easier, because if he doesn't do his job, society is left to pick up the tab.

So then there are gays who are allowed to adopt, but still not marry. I don't follow if you're saying that because they are filling the parental role, they should therefore be allowed marriage status. That would be backwards to me, actually... The adopters aren't the ones who introduced the problem of those kids needing parents; marriage was supposed to be one of the things preventing the situation from happening in the first place. If gays are willing to take on those kids and raise them, that doesn't mean they automatically get marriage status, because frankly it's irrelevant to what marriage is for. If someone adopts, the only reward should be intrinsic, in providing a good home, keeping the kid off the streets and away from drugs etc. and that's it basically. If the adopter is interested in using adoption for some other primary aim (fighting discrimination in this case), then maybe adopting isn't best for all concerned. Parenting is often thankless work, regardless of sexual orientation, in any case.

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Ned Batchelder 1:09 PM on 5 Aug 2006

Matt, I think some of the frustration supporters have with opponents is the disingenuous "rational" arguments the opponents make. They'll claim we can't legalize gay marriage because if we do, we'll also get polygamous marriage. Or if we do it, will undermine heterosexual marriage. Or if we do, procreation will suffer. None of these arguments make any sense. They're desperate rationalizations by people motivated by their different fundamental belief about the legitimacy of homosexuality.

I think if most opponents were honest with themselves, the argument they would make would be, "Homosexuality is a bad thing, and we should not encourage it". Personally, I respect that argument more because at least it is genuine. I don't agree with it, and I think over time fewer and fewer people will agree with it. But at least it gets at the heart of the matter and isn't some cock-a-mamie rationalization that makes no sense.

David: you may want to read the Supreme Courts' arguments against gay marriage. They view the reason for marriage very differently than you do. The vast majority of the general public does too. Your reasons may make a fine anthtopological argument about why marriage developed in society milennia ago, but it has no resonance with people arguing either side of this debate now.

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Ed Bunbury 2:45 AM on 6 Aug 2006

You (and perhaps the courts) were right. The law needs to change and hopefully will. OTOH, it seems to me that the courts do not need to find great reasons to let the people's legislator's law stand. I.e., not all bad or stupid laws are illegal/unconstitutional. So rather than having the court come up with some logic to overturn the laws, in a better world, the solution is for the legislature to pass a good law fixing this. E.g., in order to achieve the laudible goal of desegregation, the courts had to come up with eating at a Wolworth counter in NC affected interstate commerce. Like programming, it is better if the writers of the code fix it rather than waiting to catch it in the QA of the courts.

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Giacomo 2:13 AM on 7 Aug 2006

I for one should thank the lawmakers of the United States of America, because without them, one of my best friends wouldn't have moved from San Francisco to Manchester (UK). Next month, he's going to "marry" his partner. He'll go back as soon as gay marriage is introduced in the U.S., or so he tells me.

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Nate Finch 11:54 AM on 9 Aug 2006

David - can't be sure about fertility? What about a woman who had a hysterectomy? A man who had testicular cancer and had to have his testicles removed? There are certainties, and no one is denying them marriage rights. There's no checkbox on the marriage license indicating you are able to have children. And I don't think anyone is trying to say there should be. So I ask, what does procreation have to do with marriage?

Marriage isn't about promoting procreation. There's absolutely zero legal incentive needed to encourage people to have children... millions of years of the continuation of our race proves that (regardless of creationism vs. evolution). Hell, in China, they have laws *preventing* people from having kids, and they're still maintaining their population.

In this day and age, marriage isn't about creating a stabilizing force to keep our society from crumbling (disregarding for the moment what effect gay marriage might have on society's stability). We're not a loosely coupled tribe living in straw huts and wandering the barren plains. We're nearly 300 million people living in skyscrapers and farmhouses, driving SUVs and flying in airplanes. Nothing short of nuclear war, a vast plague, or some other truly cataclysmic event is going to destabilize our country to such an extent that it would have a significant impact on the average American's daily life.

So what is marriage about? Why do we have this "institution"? Since we're talking about laws and lawmaking, we must look at it from a legal standpoint. The legal ramifications of marriage can be categorized in two general groups: rights and privileges automatically given to the partners (such as power of attorney and joint ownership) and financial benefits (such as tax benefits).

The first group is what I see as the main benefit of marriage - rolling up hundreds of hours of paperwork into a single document. A couple *could* imitate the benefits of marriage by signing power of attorney documents, making their partner their next of kin, etc... and in fact my father and his partner of 9 years have done this. It is time consuming, painful, and expensive. The main problem is that when you're married, if something in the laws changes to allowed married couples further rights, you don't gain that right automatically. You have to go and do all the paperwork for it every time the laws change.

The second group of benefits are monetary - filing jointly, head of household, all that jazz with the taxes and the deductions. This is one of the few "incentives" I know of for getting married, and it's far less compelling than the lack of paperwork I described above, especially since filing jointly can sometimes *increase* the amount of taxes you have to pay (as happened to a couple friends of mine).

So, given that these are what constitutes marriage in a law-makers' sense... why should two women or two men not be allowed these benefits? The first group of benefits is really more of a shortcut than anything... by filling out one license, you get a whole bunch of stuff done quickly. The second... well, I'm not even all that clear why we have them, but what the heck, if any two random oppositely sexed people can get them, why not two random same sexed people?

I think the problem is that marriage is really two things that are often thought of as one - there's marriage under the law and there's marriage under your religion. If they weren't seperate, you wouldn't have to get a marriage license at the town hall and have your priest/rabbi/whatever bless you in a church.

If you think homosexuals shouldn't be able to be married for religious reasons, ask your priest/rabbi/whatever not to perform marriages of that type. But unless you can think of a reason why homosexuals shouldn't be able to get married without taking a religious stance, then I don't think you can argue for a law preventing it.

Matt - you mentioned how morals come from religion, personal experience, culture, and rational analysis... I wonder how any of those save religion could cause one to think that homosexuality is morally wrong. It hurts no one... in fact, in general it has no effect on other people at all. It would be like outlawing masturbation in the privacy of your own home. There were people who used to think that was morally wrong, too. But then we realized it was silly, since it really has absolutely no effect, positive or negative on anyone. Same is true of homosexuality. And I don't think we should have laws banning things that hurt no one. Laws should be there to prevent people from doing things that hurt themselves or others, and to encourage them to do things that help themselves and others, and that's it. Since marriage (homosexual or not) doesn't fall into either of those categories, it probably shouldn't be regulated at all. Since it already is, I say, let fly with homosexuality.

As for polygamy... I don't have anything intrinsically against it. I don't think it's for me (given how much trouble I get into with *one* significant other), but why does another man's exploits in his bedroom affect me at all? The major problem with legalizing polygamy is that the benefits from marriage generally assume a binary relationship. If you die, your spouse gets your stuff. If you go into a coma, your spouse has power of attorney. But if you have multiple spouses... who gets what? It would require a rewrite of many laws. Also, what happens if you are married to multiple people who are also married to multiple other people? What's your legal relationship to them? It's such a twisty legal road... far more twisty than "ummm... yeah, marriage never said anything about the sex of the spouses, so we don't really need to change any of the laws".

So... yeah. Why should we disallow same sex marriages again? Are these people, denied their marriage, likely to turn straight and marry someone of the opposite sex? Is that what anyone really expects? So, what is the purpose in denying them? How is that benefiting society?

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Giacomo 1:43 PM on 9 Aug 2006

The second... well, I'm not even all that clear why we have them, but what the heck, if any two random oppositely sexed people can get them, why not two random same sexed people?

The financial benefits are usually meant to be the real incentive to procreation, at least here in Europe where having a child is often a huge financial stress. That is the only thing that I, for example, would really object to be extended to singles and same-sex marriages, as somebody is trying to do.

For everything else, I do think that stable homosexual partners should enjoy the same legal status as stable heterosexual partners; I know of situations in which one partner dies and his parents, which he hated and who could never forgive his being gay, "reclaimed" his body and legally (and unceremoniously) shut out the other partner. This should not happen.

This is all part of a debate about how we should change the concept of "family" in the age of indivdualism and overpopulation.

And Nat, do you a favour and simply ignore the polygamy argument. Just considering it (and even more saying things like "I don't have anything intrinsically against it"), you are not doing your side any favour.

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Nate Finch 3:35 PM on 9 Aug 2006

Giacomo... as has been stated before, not all married heterosexual couples have kids, not all couples with kids are married, and many gay couples have kids. So, if the benefits of marriage are to offset childcare, it is a misalignment of intent and result.

In the US, children are taken as a deduction on your taxes, completely separate from whether or not you're married. For example, my parents were divorced and decided each of them should be able to claim one of us on their taxes. It is a perfect system for getting government funded benefits for having children. (well, perfect in theory) That way, it doesn't matter if you're gay, straight, married, divorced, single, etc. You have kids? You get government money to help raise them.

So, the financial benefits of marriage must be there to promote marriage over non-marriage, since marriage is not a determining factor for childbearing. What is it that the government thinks is so great about marriage in and of itself that it requires incentives? I honestly don't know.

As for not doing my side any favor by saying I'm open minded... well, politically, that may be true, but luckily, I'm not a politician, so I don't have to try to play the moderate.

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flubber 7:42 PM on 9 Aug 2006

Nate, that seems awfully presumptuous to wave your hand and say that homosexuality, "...has absolutely no effect, positive or negative on anyone." Is that true? Is there any science to back that up? Is there no negative psychological effect on the people involved? On their adopted children? How do we know?

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Nate Finch 10:12 AM on 10 Aug 2006

Flubber - "Is there no negative pschological effect on the people involved?"

I'm sorry... I don't understand. Are you suggesting that the two homosexuals in the relationship might have a negative psychological on themselves? We weren't discussing adoption, which is a completely different matter, so any effect on adopted children is irrelevant, since marriage doesn't automatically entitle you to adopt.

Do I have scientific proof that homosexuality isn't psychologically harmful to society? Umm.. no. Do you have proof that it is? I would say that the burden of proof should be placed on those people who want to restrict freedoms rather than those who want to exercise them.

How about this, from the American Psychological Association's website (http://www.apa.org/topics/orientation.html) :

"Studies comparing groups of children raised by homosexual and by heterosexual parents find no developmental differences between the two groups of children in four critical areas: their intelligence, psychological adjustment, social adjustment, and popularity with friends."

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David Boudreau 12:08 PM on 10 Aug 2006

I've read the Washington court opinion (in full here ). While I'm no lawyer, my understanding of the legal consequences remains yet unchanged. No one is prevented from getting married, as the law applies equally to everyone; the restrictions are that you can't get married to someone of the same sex, as the state does not have the interest in those unions that it does have with opposite-sex unions. It's similiar with marriage to one's sibling, or marriage to a child. (Even the gay community at large has ostracized and outright discriminated against NAMBLA for years now.)

btw I don't think "promotion of procreation" means "greater numbers" necessarily. Yes, in this day we're not lacking for mouths to feed. However, since procreation happens naturally and happens to be how human existence itself continues to survive, it's more about quality than quantity.

But more relevant to the legal side, I see the state's interest in marriage to be about the _possibility_ of offspring, and tracking the father. Procreation is not possible with same-sex couples (at least, not without adoption- again, something state-sanctioned). Yes, the state doesn't require married couples to have children, so there is no checkbox on the form and no need to show testicles. If the state somehow knows for a certainty of _both's_ infertility? Talk about an unnecessary invasion of privacy! The opinion ref'd above says "Under the highly deferential rational basis inquiry,
encouraging procreation between opposite-sex individuals within the framework of marriage is a legitimate government interest furthered by limiting marriage to opposite-sex couples. The State also argues that rearing children in a home headed by their opposite-sex parents is a legitimate state interest furthered by limiting marriage to opposite-sex couples because children tend to thrive in families consisting of a father, mother, and their biological children."

Nate, I appreciate your addressing my original question: "What is the institution of marriage?" Regardless of any anthropological interest I may have in asking it, it was my attempt to get to the heart of the matter and demonstrate that we can't even agree on what exactly is this popular institution that so many take part in. I am willing to question my assumptions, and I thought by doing so, it would help us understand each others' view points. If that's too offbase and has no resonance with anything in this discussion, well, I guess I'll just have to disagree.

When you say signing power of attorney docs is time consuming, painful and expensive, do you mean like, doing your taxes kind of painful, or another kind? Maybe it was different for me when I had to do a power of attorney (gave my brother my car while out of country)... hardly a hassle in my case. I don't have a big estate or anything though, but I'm curious to know if/how it's different for your father.

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Ned Batchelder 12:36 PM on 10 Aug 2006

David, thanks for digging into the legal opinion. You've pulled a very interesting quote, and maybe you can help me understand it:

"rearing children in a home headed by their opposite-sex parents is a legitimate state interest furthered by limiting marriage to opposite-sex couples"

I don't see how limiting marriage to straights will further the cause of children being raised by married straights. How does gay marriage reduce the number of children being raised by straights? If that want to ensure that children are raised by straights, they need to ensure that they can't be raised by gays, something that a gay marriage ban doesn't accomplish.

This legal opinion sounds like it's arguing against gay adoption, but it is not. It simply doesn't make any sense. Preventing gay marriage doesn't guarantee (or even improve the odds) that kids will be raised by a married man and woman. It just guarantees that if a kid is raised by a gay couple, that couple will not be married.

People who argue against gay marriage on child-rearing grounds, but don't object to gay adoption, are either lying, or not being honest with themselves, about their true reasons.

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flubber 5:50 PM on 10 Aug 2006

Nate -- "Do I have scientific proof that homosexuality isn't psychologically harmful to society? Umm.. no. Do you have proof that it is? I would say that the burden of proof should be placed on those people who want to restrict freedoms rather than those who want to exercise them."

Point very well taken. I agree that freedom should be closely guarded.

So I guess that my point is, I'm very uncomfortable relying solely on scientific or "rational" arguments ("it doesn't seem to hurt anyone, so why not?") in deciding these sorts of matters. Our country was not founded on cold science and rational thought, but on crazy ideals (unalienable rights, freedom, pursuit of happiness, and all that).

We are a nation made up of people that should agree on those few foundational principles, but are then free to disagree on all kinds of other principles. When our ideals conflict, we have to settle them ultimitely with a vote (which is so much better than alternatives). We try to convince others to vote our way, but in some cases, such as with the homosexuality issue, the foundations of our beliefs on the matter are so divergent, that we end up really talking past each other. "God says it's bad, God knows all, so there." "I don't even believe in God, now what?" The arguments get ugly, but I guess we just need to remember that it's the debate without violence, and ultimately being good sports and going along with the vote, that makes this nation so great. Reading the intelligent comments on this blog has been really interesting, so much less hateful than many other debates on the matter I've seen. I wish it were like that more often, but I guess if every issue were lukewarm life would be dull.

Oh, and Ned, "People who argue against gay marriage on child-rearing grounds, but don't object to gay adoption, are either lying, or not being honest with themselves, about their true reasons." I have not met anyone who opposes gay marriage, but who feels good about gays raising kids. I'm young and didn't pay attention enough in the past to know how we got to our current state of affairs in WA, but I agree with you, seems very screwy. It may just be one of those strange political compromises that happen. I'm from Washington, but live near the border of Oregon, a state that has all kinds laws that seem to be strangely conflicting. You are allowed to kill yourself (doctor assisted suicide) but not pump your own gas. You may smoke medical marijuana, but a constitutional ammendment defining marriage basically banning gay marriage was passed recently. Is Oregon "red" or "blue?" Heck if I know.

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David Boudreau 5:12 AM on 15 Aug 2006

I don't see how limiting marriage to straights will further the cause of children being raised by married straights.

The rest of the quoted opinion continues "...because children tend to thrive in families consisting of a father, mother, and their biological children. The State cites testimony before the House Law and Justice Committee on February 4, 1998, during the hearing on HB 1130, some of which cited studies said to support this proposition." Even if you don't accept that, I don't see how recognizing same-sex marriage will necessarily help the cause, either. The opinion seems to center on supporting that cause of children thriving.

How does gay marriage reduce the number of children being raised by straights? If that want to ensure that children are raised by straights, they need to ensure that they can't be raised by gays, something that a gay marriage ban doesn't accomplish.

Restricting marriage to the type of union most conducive to best child-rearing (opposite-sex couples) naturally encourages the intended objective, though (and why the state has any involvement at all in marriage in the first place). I don't think the state is in much of a position to be so picky about it when gays do take on other people's offspring- isn't it just saying "gay adoption is not our first choice"? (The opinion acknowledges gay adoption, as you mention.)

The Fairhurst dissenting opinion also questions this situation, percieves discrimination, and promotes legislating from the bench as the right thing to do about it. If we really wanted DOMA changed, it should be up to us instead of the judges.

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Nate Finch 10:03 AM on 15 Aug 2006

How does gay marriage reduce the number of children being raised by straights?

David said:
Restricting marriage to the type of union most conducive to best child-rearing (opposite-sex couples) naturally encourages the intended objective

See, you didn't answer the question. You just said "it does". I don't understand how. Letting homosexuals marry does not reduce the number of married straight couples nor does it affect those couples' ability to raise children. So... again, how does banning gay marriage reduce the number of children being raised by straight married couples or otherwise adversely affect children being raised by those couples?

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Nate Finch 10:04 AM on 15 Aug 2006

And in case you're wondering, I think the whole thing about needing a mother and father is completely wrong, given that I was raised by a single mother (albeit with a gay father I saw regularly), and I turned out really damn well, if I do say so myself ;)

I don't think the sex or sexuality of parents affects a child's development. I think it all comes down to love, the personalities of the parents, and the environment they provide for their children.

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flubber 8:41 PM on 15 Aug 2006

I just found a really great read on this subject, written by a libertarian who claims to ultimately not have an opinion on gay marriage. It explores arguments from both sides and was really eye opening for me. OK, actually, I haven't finished it yet, it's really long, but I'm plowing through. Anyway, here it is:

http://www.janegalt.net/blog/archives/005244.html

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David Boudreau 3:42 AM on 17 Aug 2006

Flubber, indeed that was a good read (btw about 97% of the text on the page is comments from others). Simply assuming our personal cases are the marginal cases, as described, is not valid. Instead of likening this to a righteous civil rights cause from the 60s, I think it best to at least consider more things like increased divorce rates. "What's more, easy divorce didn't only change the divorce rate; it made drastic changes to the institution of marriage itself. David Brooks makes an argument I find convincing: that the proliferation of the kind of extravagent weddings that used to only be the province of high society (rented venue, extravagent flowers and food, hundreds of guests, a band with dancing, dresses that cost the same as a good used car) is because the event itself doesn't mean nearly as much as it used to, so we have to turn it into a three-ring circus to feel like we're really doing something." I don't think that'll solve everything but I also hear it as "Wait, someone's having a three-ring circus? I want a three-ring circus!!"

In response to Nate's See, you didn't answer the question. You just said "it does", Flubber's link goes into detail about what's possible, but banning gay marriage lets the state sanctify ideal households where children are concerned, and doesn't require the state to sanctify households lacking a mother or those lacking a father, under the intended aim of what's the best environment for children. If you don't have a mother or don't have a father in that household, that might be better than nothing at all but that's not good enough to be called a marriage.

btw in rereading my own earlier comment, I realized what may read as a contradiction- I said "If gays are willing to take on those kids and raise them, that doesn't mean they automatically get marriage status, because frankly it's irrelevant to what marriage is for. If someone adopts, the only reward should be intrinsic...." Of course, raising one's own kids and owning up to that responsibility certainly is relevant to marriage. I just don't think the granting of adoption rights to households absent of a mother, or households absent of a father, should automatically qualify either one for marriage status.

In the NY Times article ( here if you don't subscribe) Dan Savage asks "Both courts have found that my son's parents have no right to marry, but what of my son's rights to have married parents?" I would ask him why he'd deny his son a mother as one of those "married parents", to use his terms.

Nate, I didn't say you looked fat in those genes, but if the health of sperm is important, then sorry but I'm not going to endorse people wearing them.

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