April 14, 2004

Why It's Called Same Sex Marriage

by PG

I was at an interesting wedding Saturday -- weddings, in fact, uniting a Jain woman and a Christian man, with a ceremony from each person's religious tradition. But not nearly as interesting as the wedding I missed Thursday night:

Big Gay Wedding
You are cordially invited to the wedding of Dan Savage and Amy Jenniges, a showcase of everything that's wrong with letting the gayest gay man in the Western tradition and The Stranger's token lesbian unite in holy matrimony. (They'd much rather marry their own boyfriend and girlfriend, respectively.) The joining of these two in the most unholy alliance ever sanctioned by the institution of marriage will be officiated by Reverend Wm. Steven Humphrey and celebrated by serenades from the flamboyantly talented likes of Sarah Rudinoff and Nick Garrison. Drinking will happen, cake will be sliced, dancing will ensue. It's a full-blown gay marriage, wedding dress and all, and to the horror of conservative naysayers, it's completely legal.

That wedding would have cost me a $10 donation to Lambda Legal, though, and the one I attended was free. It also was planned well ahead of the Savage-Jenniges union, which was invented earlier this year after a visit to the Seattle licensing office. (via girlfag and eclecticism):

I'm happy to have a "marriage license." It's not the marriage license I'd like to have, of course. But, still, let me count my blessings: I have a 10-year relationship (but not the marriage license), a house (but not the marriage license), a kid (but not the marriage license), and my boyfriend's credit-card bills (but not the marriage license). I don't know what a guy has to do around here to get the marriage license. But I guess it's some consolation that I can get a meaningless one anytime I like, just so long as I bring along a woman I don't love and my $54.
The Savage-Jenniges union may be over by the time you read this, as they planned to file for divorce in just a little more time than it took Britney Spears.

One blogger managed to miss the point:

Who cares that you are queer? Certainly not the State, who doesn't care if you are gay, straight, rich, poor, or even if you are in love. This is called being treated equally, Dan. Thanks for illustrating that point so perfectly.

Actually, it's not being treated equally. Dan's boyfriend Terry is not being treated the same way Amy is being treated, because she can marry Dan and Terry can't. Amy's girlfriend Sonia is not being treated the same way Dan is being treated, because he can marry Amy and Sonia can't. This is blatant gender inequality.

Although everyone from Equal Rights Amendment advocates (who do not count President Bush in their number) to Eugene Volokh has disagreed with this view, the failure to recognize same-sex marriages is properly seen as sex discrimination, not sexual orientation discrimination.

Gay people can get married, and many have. Unfortunately, they've only been able to marry people of the opposite sex, which frequently results in making both spouses unhappy and causing divorce. So I'm definitely not urging anyone who's a lesbian to marry a man, or for that matter, urging anyone who's straight to marry someone of her own sex.

But marriage has been an option for gay people. There is no "are you straight?" test before granting marriage licenses. No one asked, and if a spouse did seem to be gay, or even engaged in homosexual behavior, it was deemed to be no one's business except that of the happy couple.

This distinguishes marriage discrimination from that involved in the workplace or hate crimes. People have been fired and murdered for being gay, but no one has been refused the recognition of his marriage because he is gay -- only because he wants to marry another man.

If I wanted to marry a female friend who lacks health insurance and who in return has agreed to care for my pet rabbit, explaining that I'm straight wouldn't convince the Commonwealth of Virginia to give us the benefits of marriage. The state discriminates against me not because of my sexual orientation, but because of the sex of the person whom I choose to marry.

BoifromTroy argues that Kerry's position on same-sex marriage is "is even more vile" than Bush's support of the Federal Marriage Amendment -- despite Kerry's vote against the 1996 "Defense of Marriage Act," despite his support for civil unions -- because Kerry has said that homosexuality is "in your genes" yet still opposes legalizing marriage between two people of the same gender.

Boi's view appears to be that Kerry's insistence on reserving the term "marriage" for man-woman unions, while giving all the rights and protections of the institution through civil unions, is worse than Bush's opposition to any recognition of same-sex partnerships because if someone believes homosexuality is genetic, then he must agree that homosexuals should be able to marry as they wish.

John A. Kalb challenges the idea that homosexuality is entirely genetic, noting that people "move back and forth too much," experimenting sexually with people of both genders. Many people consider themselves bisexual, attracted to men and women.

Moreover, basing acceptance of same-sex relationships on whether the participants are genetically fated to homosexuality is highly problematic. If I can be attracted to both people of the same sex and those of the opposite sex, should I be constrained to opposite sex relationships only? This is heterosexual supremacy, deeming opposite-sex relationships always preferable whenever possible.

If Dan Savage can feel a smidgen of sexual attraction to his temporary wife, that's hardly a justification for abandoning his partner and co-parent, even though some conservatives may encourage him to do so. As Andrew Sullivan has said, "Reducing people's relationships to mere sex is a subtle way of dehumanizing them." Same sex marriage, just like opposite sex marriage, ideally is not just about sexual attraction. It's about committment, first and foremost -- otherwise, why get married?

April 14, 2004 06:24 PM | TrackBack
Comments

I'm pretty much in the same shoes as Dan Savage. Great partner? Check. Lovely home? Check. Terrific kid? Check. Marriage license? No dice.

For my part, I'll take John Kerry's position over George W. Bush's any day. It's not perfect, but the difference is Kerry's position would afford my family the same rights and protections as any other family. Ulimately that's what's important to me—that in the event that something should happen to me or my partner, the remaining partner (left to take care of our son) will have all the same rights and protections as a married spouse. Currently we don't. Yes, we have wills. We have advance directives. We have medical power of attorney for one another. That's about three out of more than 1,000 rights and protections granted by the federal government on the basis of marital status. So, Kerry favors granting my family those protections under civil unions. While Bush seeks to constitutionally deny them to us under any circumstances.

Posted by: Terrance at April 14, 2004 09:20 PM

Chris, Chris, Chris...

If this shows anything, it's that the argument that marriage has to be based upon love is a crock. It doesn't. This fellow has entered into a sham marriage, but that marriage--well, so long as he's in a state that doesn't require consummation, as Alaska still apparently does--can't be challenged.

His boyfriend isn't being treated 'unequally' in this marriage, because he's not being treated at all. It's not about Dan or Amy.

This is the kind of stunt that proves the point: if homosexuals wish to marry, it has to be because of something more than because they've got a 'loving relationship,' since that's simply not required. The marriage isn't 'unholy' in terms of civil marriage, because civil marriage isn't holy or unholy. The fact that this kind of stunt is considered acceptable--and lauded by those like you--does point to one reason I'm willing to side with religious folks on this one: the mockery shows a particular lack of respect for an institution valued by others, simply on the grounds of base desires--or 'love,' if you insist.

Posted by: A. Rickey at April 15, 2004 10:19 AM

Rickey hon, this isn't Chris. Not only did you not look at the author, you don't seem to have looked at the last para, in which I said that marriage is *not* centered upon physical attraction, but on commitment.

I didn't say Terry was being treated unequally by the marriage. He is being treated unequally by the state. Because Terry is male and not female, Washington will not allow him to marry Dan. That is gender inequality at its most basic.

As for the value that is placed upon civil marriage by certain people, why aren't they protesting the granting of licenses simply on the basis of having $54 and two people of opposite sexes, then? Why not start requiring people to show evidence of being ready for a lifelong commitment? Why do the religious folks only want to limit the marriages entered into by two people of the same sex, instead of the marriages entered into by Britney Spears?

The vast effort deployed by those who claim to be "defending" marriage is focused entirely on "defending" it from Dan & Terry, not from Dan & Amy. If Dan *were* able to marry Terry, do you think he would have done this sham marriage? Have you missed the entire point of the charade?

Posted by: PG at April 15, 2004 10:55 AM

The Vigilance Matters blogger, quoted as saying "Who cares that you are queer? Certainly not the State, who doesn't care if you are gay, straight, rich, poor, or even if you are in love. This is called being treated equally," dropped my jaw.

I mean, the WHOLE FRIGGING POINT of this gay marriage issue is that the State DOES CARE if you're queer, and refuses to grant a same-sex couple any of the thousands of benefits enjoyed by a married mixed-sex couple (. That is called being treated unequally. It is also despicable.

Posted by: Visible Hand at April 15, 2004 01:09 PM

No, VH, it's not nonsensical. A gay person can get married. They just can't get married to a person of their sex. In that sense, the law does not care what your sexuality is.

This is the 'talking around the definitions' point. At the moment, marriage is pretty much 'defined' as a 'union between a man and a woman.' In which case, there's no discrimination: as the case above shows, a gay person can get married to someone of the opposite sex--he merely probably doesn't want to.

Unless you're Chris, yourself, or the people making the other side of the argument. in which case it's definitionally 'the union of two people.' In which case, yes, there is discrimination--sexually and on the basis of gender--going on here. But then there's the burden of why 'two' or 'people' are requirements of the new definition.

VH, if I'm willing to accept your definition of marriage then you're right--the argument makes no sense, and the jaw would drop. But that's begging the question, since the definition is the very issue at question.

That's why this stunt is sort of nonsensical--it 'proves,' 'highlights,' or 'demonstrates' precisely nothing.

Posted by: A. Rickey at April 15, 2004 02:11 PM

No, Tony, it's not 'talking around the definitions,' it's challenging the definition & arguing it's unconstitutional.

Your statement that "[i]n that sense, the law does not care what your sexuality is," is just as baffling as the first blogger's.

The Government happily extends hundreds of benefits & rights to millions of 2 people units, all of whom are male-female. It refuses to extend those very same joint benefits/rights to any M-M or F-F duo; that's gender discrimination. That should be unconstitutional. That is the law caring what your sex is--it won't grant you & me the same benefits/rights it would grant you & PG. Undeniably, that's gender discrimination, and arguably unconstitutional.

As to your strawman/slippery slope question regarding "the burden of why 'two' or 'people' are requirements of the new definition," it is easily answered.

Do you seriously fear somebody "marrying" a horse or a dog? Don't. Obviously the many benefits & privileges the state grants to married couples would not pertain to a man-on-dog relationship (ie, the dog's not filing a tax return, joint or singly, nor testifying in court, etc etc).

As to "two," that seems like an easy discrimination to reasonably justify (after all, the governtment discriminates all the time, young v old etc, and it must just do so reasonably--and discriminating on the basis of innate characteristics, like race, gender or silly things like eye/hair color, obviously is not reasonable).

Marriages break up, people die. When these things happen, it's a lot easier to divide property among 2 parties than among X (or simply to pass it along to the spouse, in the latter case).

Lastly, you write: "VH, if I'm willing to accept your definition of marriage then you're right--the argument makes no sense, and the jaw would drop. But that's begging the question, since the definition is the very issue at question."

That's the issue here, Tony, and one I've yet to figure out where you stand. Just how do you conceive of marriage? How is it anything but a state-approved institution which confers upon its 2 members hundreds & hundreds of benefits/privileges not otherwise available to non married individuals & groups? And how is the state's decision to confer said rights/benefits/privileges solely to M-F units, and not to M-M & F-F units, anything but straight-up gender discrimination?

Posted by: Visible Hand at April 15, 2004 03:50 PM

If you've read most anything I've written on the subject, I don't think marriage should be a civil institution--gay or straight. Nonetheless, most of your arguments above don't stand up to the facts:

(a) So long as there's no consummation requirement, the law really doesn't care what your sexuality is. Otherwise the gay couple above could not (as opposed to shouldn't have) gotten married.

(b) You're right--you are challenging the definition. Nonetheless, at present the definition of marriage in our society is settled--as much as things can be settled--on the man/woman side of the equation. Unless you wish to appeal to some transcendent, natural law definition of marriage, it can't be discriminatory until the definition is changed. I suppose you may resort to natural law, but otherwise, you have to change the defintion first, by more than just sheer weight of opinion.

Marriages break up, people die. When these things happen, it's a lot easier to divide property among 2 parties than among X (or simply to pass it along to the spouse, in the latter case).

This is the single-lamest argument against polygamy ever. The 10th century Japanese (among others, but these folks are my speciality) managed some rather complex polygamous relationships while managing to settle complex issues of legitimacy and inheritance, as well as rank, status, and social standing. They managed to do this in a system limited to brush and paper. Given that not only Heian Japan, but a significant number of cultures have managed to figure this out in the past, I think it's fair to say that if this is a 14th Amendment violation, sheer 'simplicity' isn't really a barrier.

Posted by: A. Rickey at April 15, 2004 07:35 PM

Well you obviously didn't read what I just wrote. And I've never understood anything you've written to say that the state should revoke the literally roughly 1,000 benefits/privileges that result from being married (which is to say, arguing that marriage should not be a civil institution).

Your point A does not address anything I said, nor does it even seem to get basics of the original story blogged about. It wasn't a same-sex couple getting married, and I never said the law didn't care what my sexuality is. I said, quote, "That is the law caring what your sex is--it won't grant you & me the same benefits/rights it would grant you & PG. Undeniably, that's gender discrimination, and arguably unconstitutional"

As for B, I don't need to appeal to some aspect of natural law, because I'm appealing to the Constitution. I don't see how unequal treatment & discrimination based solely on gender--that is, the state granting this huge bundle of rights/privileges to M-F duos but not to M-M or F-F duos--is constitutionally defensible (much as the post above compares it to Loving and race.

Yes, I know gender is not explicitly written into the 14th (that was the whole reason for the ERA), but the Govt must have some reasonable basis for discriminating. I don't think there is one. What is yours?

Sorry you don't think my response to the polygamy/slippery slope is persuasive, but I find your response similarly utterly irrelevant. We're not Japanese. Our law descends from England, and we've a long, long tradition of marriage among 2 partners. But most importantly, justifying a discrimination based simply on number doesn't/shouldn't take much, and surely less than a simple nod to "tradition" or judicial economy (in not having to settle disputes between 2 husbands when their wife dies).

The government choosing to grant rights privileges to any group of 2 people doesn't upset me or seem troublesome at all. I can choose any one person & enjoy rights with him/her (divorce & try another). Of course, that's only if same sex marriages are allowed. Right now, I only have the choice of choosing any woman to enjoy those rights/privileges with, as the Govt is currently discriminating based on GENDER.

I fail to see how that's constitutional, desirable, or defensible.

Posted by: Visible Hand at April 15, 2004 09:24 PM

Ahem: I didn't say it was a same-sex couple getting married. I said it was a gay couple. In as much as both partners are gay and neither seem to have the slightest inclination to consummate the marriage (though what do I know there), it is in fact a gay, though not same-sex, couple getting married. To me, that's the most interesting part of the whole affair above.

We're not Japanese. Our law descends from England, and we've a long, long tradition of marriage among 2 partners.

Yes. It also has a long tradition of marriage being between a man and a woman. You can't hearken upon our English tradition in one breath and deny it in the next. You're talking about a rational basis--but if tradition is a rational basis, then I've won and we can go home. (After all, I can site the majority in Lawrence v. Texas here: "Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage." Now, isn't 'legitimate state interest' more than 'rational basis'?)

The government choosing to grant rights privileges to any group of 2 people doesn't upset me or seem troublesome at all.

Funny. It seems to bother certain groups in Utah. Are we simply talking a matter of numbers here? Were the pro-polygamy Mormons to suddenly gain, say, a 3-4% share of the voting population, would this suddenly become 'troublesome'? Or is it merely that it's not troublesome to you? Or to well-educated legal elites? Is rational-basis review, let alone intermediate scrutiny, dependent upon what is 'troublesome'?

The fact remains that however much you wish to call discrimination by number 'troublesome' or outside of 'English' tradition, there is no argument you're raising that makes a distinction, in either fact or principle. You can't argue it's 'easier,' since in fact the solutions are relatively simple, certainly no more so than we've gone through with homosexuals thus far. You can't argue that it's traditional, because then your whole argument falls swiftly to pieces. And you can't argue that it's untried, because it just ain't. The most you can argue is that the minority inconvenienced by this--polygamists, polyandrists, and Mercedes Lackey--are lesser in number and less vocal. (Though I'll grant you that Oscar Wilde is more fun to read that Ms. Lackey, if that's a difference.)

This, however, rather shafts the whole 'you can't pick on minorities' angle. Rather a conundrum, unless we fall back on the idea that it's simply not 'troublesome.'

Posted by: A. Rickey at April 15, 2004 10:54 PM

The state discriminates against me not because of my sexual orientation, but because of the sex of the person whom I choose to marry.

I think you and I both know that this is semantical hogwash. A lesbian doesn't want to marry just another woman, a lesbian wants to marry another lesbian woman.

Using gender discrimination to analyze the ban on gay marriage is, as one of my old professors crudely put it, mental masturbation.

If you want to see a group of judges wrap their brains around this awkward concept, check out a ten or so year old case from the Hawaii Supreme Court called Baer v. Lewin.

Posted by: Brian at April 16, 2004 01:09 AM

Tony, the reason I see it as untroublesome is simple (and I responded in much greater length on the other thread), and I have to believe you're being deliberately obtuse here.

Number is not an innate or immutable characteristic. Gender is.

Got it?

It would be troublesome for the Government to say only Blondes can acquire pilot's licenses. That's retarded & unfair, because hair color is an innate characteristic & this rule discriminates against individuals who possess it simply by the accident of birth.

That's much different from saying you need X qualifications to be a pilot, or saying only 2 people can file a joint tax return, or you can only 1 other person who the Government cannot force to testify against you.

Any individual in the country can be that 1 person. That rule is equally discriminatory. A rule that forces me to pick only individuals of the opposite gender to enjoy those privilges with me discriminates againts roughly half of the population, based simply on the accident of their birth.

That is troublesome. Get it?

Posted by: Visible Hand at April 16, 2004 11:52 AM

Not particularly. Again, you seem to have drawn an arbitrary line that states that 'equal protection' applies only to immutable characteristics. While that's part of the analysis, it certainly isn't all of it.

Similarly, you're making a semantic nudge which is precisely what I'm not accepting: that this is a 'gender' as opposed to a 'sexuality' issue. But gender is inherently an individual characteristic: marriage is not a matter of one but two. What we're really talking about here is sexuality. Otherwise you run into the incest-distinction problem: why not let two brothers 'marry' each other, if we're simply talking about a package of government benefits? After all, there's no rational reason why my brother and I can't marry--it certainly would have been useful for health benefits at points in my life--since there's no great problem with the standard argument against incest, genetic issues. Indeed, since we don't want to have sex, this isn't a problem.

By reducing marriage to being merely 'a package of government benefits' which accrue to 'individuals,' you've made yourself definitionally secure in a world that doesn't exist. Marriage is not about individuals, but about couples. Generally based around pair-bonds, long-term relationships, and familial units. But once we throw out tradition--which dooms same-sex marriage--you have to come up with a reason to keep going from pair-bond sexuality to multiple pair-bond sexuality.

This is not being 'deliberately obtuse.' Rather, it's forcing you to realize that whilst you've conducted a bit of linguistic legerdemain to homosexual marriage to be a matter of an individual characteristic, it's actually a matter of a dual characteristic--what gender you are and what gender your preferred partner is. I don't buy that linguistic slide.

Posted by: A. Rickey at April 16, 2004 02:17 PM

Well, at last we've reached the point that truly bridges us. Like you, I don't buy your semantic dodge--this truly is about gender & not sexuality.

I can only choose to enter a marital relationship with a woman. And, as the the marriage mentioned way above shows, my choice is not limited by sexuality, because I can actually marry a lesbian. Dan & Amy proved that. The state is not limiting my marital choices based on sexuality--it's limiting them based on gender! (ie I truly can choose to marry homosexuals--lesbians--but I simply cannot marry any men).

Also, I truly do see marriage "merely [as] 'a package of government benefits,'" or at least that's the most important way to view it legally. Because that's what it is.

Marriage in an institution, sanctioned by the state, that confers rights & privileges to the individual members of a couple--I gain the right to see the state unable to compel my partner's testimony, to file a joint return with my partner, etc. The government is restricting whom I may call my partner, and doing so simply on the basis of gender.

Also, I don't object to incest (obviously only when it's two consenting adults--child abuse is clearly something far different). So I don't encounter that 'problem.'

My problem is that the state has created these many hundred benefits accruing to marriage, and decided only to confer them to me when I choose to enter a marital relationship with a woman.

That the state wants to limit conferring benefits to duos rather than trios or quintuples can be justified very easily, the same way that acquiring a driver's license at 16 can be defended against claims that 15 1/2 year olds or 15 year olds should be able to drive. The government can draw such lines relatively easy in such cases. In cases dealing with race, gender & other innate characteristics, the line drawing must be done with considerably more care.

Posted by: Visible Hand at April 16, 2004 02:40 PM

VH,

The fact is that, in reality and not a theoretical world, you will only marry a straight woman, not a lesbian and not a man. Indeed, to argue otherwise actually plays into the hands of gay marriage opponents who want to protect the sanctity of marriage because you, as (I assume) a heterosexual man, are arguing for the right to marry another man. A right, which in reality for you, is truly hollow and without meaning. Any such marriage that would arise from such a right would only be to prove a rhetorical point thus making a farce of marriage. Whether that's better or worse than Brittney Spears in Vegas is open to debate but it certainly would rank down there.

I actually think it demeans the rights of homosexuals to look at this from a gender discrimination point of view when the clear issue is indeed about sexual orientation.

Additionally, although you're not using it in a purely legal context, I'm fairly certain the "accident of birth" and "immutable characteristic" lingo is from Justice Brennan's Frontiero decision that only garnered three other votes, thus, it isn't really a part of Equal Protection analysis.

Posted by: Brian at April 16, 2004 06:09 PM

The state is not limiting my marital choices based on sexuality--it's limiting them based on gender! (ie I truly can choose to marry homosexuals--lesbians--but I simply cannot marry any men).

Technically, this would only be in a state that doesn't allow annulment on the basis of lack of consummation. (Which, just quickly looking in Lexis, at least includes Alaska.) Unless, of course, you sleep with her, in which case we get into the entire 'is she a lesbian' bit.

Also, I truly do see marriage "merely [as] 'a package of government benefits,'" or at least that's the most important way to view it legally. Because that's what it is.

In which case you'd have no problem with me making all marriages 'civil unions,' getting marriage out of the business of the state, and resolving it my way...

Marriage in an institution, sanctioned by the state, that confers rights & privileges to the individual members of a couple--I gain the right to see the state unable to compel my partner's testimony, to file a joint return with my partner, etc. The government is restricting whom I may call my partner, and doing so simply on the basis of gender.

Marriage also instills certain duties, VH, and these are also based upon sexuality. Adultery, for instance, in many states is defined only in terms of procreative sex.

Also, I don't object to incest (obviously only when it's two consenting adults--child abuse is clearly something far different). So I don't encounter that 'problem.

I would invite you, then, to write amicus briefs mentioning that very very loudly to any court considering sanctioning homosexual marriage. Nick, I hope you're listening, because that slippery-slope argument you weren't worried about: it's here.

Posted by: A. Rickey at April 16, 2004 08:01 PM

Now that I've had a night to think on it:

The trouble is two-fold, here. First, if your definition of 'rights and benefits' conferred by marriage is the sine qua non of what marriage is--if there's nothing more--then you can't in fact marry a lesbian. Or at least, it won't go unchallenged in many instances.

For instance, try marrying a British lesbian and then getting her to apply for citizenship based upon your 'marital' relationship. The INS is unlikely to buy it. Hence, a 'benefit' occurred upon 'married' people--citizenship for their spouses--is unavailable to you. It's a marriage 'of convenience'--albeit in your case to make a political point rather than to take advantage of immigration laws--and doesn't attract legal validity.

Marriage is, legally, more than just a package of rights and benefits. It's a relationship recognized by the state for policy reasons to do with family, etc. (My argument for removing those benefits from marriage mainly centers around the idea that traditional 'marriage' as we know it has diverged from those policy aims in an era in which we have multiple divorces, geographically remote family units, and yes, a desire for non-traditional relationship recognition.) In simplifying the definition of marriage, you're again making your argument easier, but not talking about the institution as it is.

Like you, I don't buy your semantic dodge--this truly is about gender & not sexuality.

The problem is that then both you and Nick bear the burden of distinguishing between the terms 'gender' and 'sexuality' in some meaningful way. I've argued that gender is truly innate--it exists in the individual in isolation from their relationships with others--while sexuality is essentially a social concept: it has no meaning for a single individual.

Both of you get around that distinction by making 'marriage' an individual concept. You do this by admitting there's two variables, but then holding one constant. (In traditional marriage, these are 'husband' and 'wife,' but since these are gender-laden terms it will confuse the issue. For sake of this argument I'll use 'yin' and 'yang,' which although they have gender connotations, aren't as strongly correlated to physical gender.) You essentially say that it's a singular relationship because you hold yang constant ("You could marry PG, but not me"), and thus settle it on a single variable. But of course, from a social view, we have two variables, this is actually a four-square grid [1], and we're actually talking about relationships between two people--why you talk about MM and FF marriages, instead of just M ones.

So if you don't buy my semantic 'dodge,' then both you and Nick have to find some more reasonable method of distinguishing 'gender' from 'sexuality.' Other wise they become Trojan horses that you can trot out at whim, 'sexuality' when you want rational basis review and 'gender' when you want scrutiny that's intermediate in word but strict in fact. ;)

Which brings us to Nick repeatedly asking me about Loving and challenging me to reject it. This is less a question of logic and semantics (as above) and more a function of my skepticism as to whether arguing from precedent in Supreme Court jurisprudence in this kind of strictly 'logical' manner, even granting the logic, is useful.

Unfortunately for him, I have no problem saying Loving is logically incoherent, and that the argument that he rejects--largely on the basis that it was rejected in Loving--is actually logically coherent. Like most of the opinions of that era, Brown, Loving, Roe, they were works that accomplished subtantial justice at the expense of intellectual clarity. From the perspective of a Realist, this isn't a problem: after all, if you're willing to use stare decisis when it suits you (Casey) and set it aside when it's annoying (Lawrence), then you don't really have to set good and coherent precedents. As I've said above, sadly Con Law is turning me into a realist, which means that arguing from precedent is more and more a matter of placing importance upon fictions to justify others.

Here, however, the Loving court has a pretty good excuse. It wanted to get rid of something that was substantially unjust and arguably unconstitutional, and to do so, it elided the difference between racial discrimination as an innate matter and race in relationships. As mentioned before (though in the other thread), this is relatively easy because in the case of interracial marriages, no one making the argument was focusing on those who--for one reason or another--exclusively wished to date members of the opposite race. [2] A class of people who would identify themselves as 'miscegenists,' therefore, didn't arise, and race is much less arguably part of an essential definition of marriage. The Loving court could therefore cast it as racial discrimination.

Much like those who liked the outcome of Brown but questioned whether it could be justified on neutral principles, I have no problem saying that in order to do 'good,' the Court did some semantic and logical juggling. Which is, of course, the role of us skeptics: to look at the decisions that we celebrate because they ushered in massive acts of social change and wonder if the emperor has any clothing, or whether it is in fact just a naked exercise of power.

Now, the question to ask is, "Did the Loving court mean to strike down marriage laws on the basis of sex, or even set precedent for doing so?" I think that would be a hard argument to make. And for a Court that was already willing--just as conservatives back in the Lochner era had been willing--to expand upon interpretation to fit its substantive whims, making the distinction wasn't so important anyway: whatever result was wanted when same-sex marriage would come before the Court could be reasoned around either way. Hence, I'm not sure how much importance I'd put on the Court having held something precedentially similar in Loving when we're talking about this, unless we think that Warren was itching to pull a Goodridge and just never got the chance.

Ah well. At least all this has been great for my review of the Equal Protection clause...

[1] Actually slightly more complicated, since you have bisexuals, but the argument holds.

Posted by: A. Rickey at April 17, 2004 11:43 AM

Tony (quoting me)
" 'Also, I truly do see marriage "merely [as] 'a package of government benefits,'" or at least that's the most important way to view it legally. Because that's what it is.' (me)

In which case you'd have no problem with me making all marriages 'civil unions,' getting marriage out of the business of the state, and resolving it my way..."

I don't. Yay! End of debate. I just want the state to grant the exact same bundle of rights & benefits to me & any 1 other person in this country. I don't care what you call it, but if the state gives M-F duos the rights to do X-Y-Z, then it needs to give M-M & F-F duos the same rights--I don't care in the slightest what they call the institution.

Also, I still don't buy your lengthy semantic dodge. Look, I'm holding me constant, because I'm me! The state is telling ME I can marry PG & enjoy rights XYZ w/ her, but not with you, or any other man. That's limiting my choice solely on the basis of gender. I am an individual, and my right to choose with whom to enjoy these many benefits of coupledom is being limited by the state to include only females.

Lastly, as to incest. Look, I see no need to have a law on the books about this--I'm no biologist, but aren't we're genetically hard-wired not to want to do anything romantic/sexual with those we grow up alongside? Brother-Sister relationships are, I believe, pretty much frowned upon by every culture in the world, and (some sort of mental illness aside) don't happen very often. But, if two rational, consenting adults, who happen to be brother & sister, want to enjoy these many benefits of coupledom, so what. If they want to procreate, and the child is likely to come out a few eggs short of a dozen, well, they shouldn't be allowed to do that--that'll cause harm to another individual. But if they want to file a joint tax return or whatever, why not? Who's that harming? I just don't see a big incent lobby itching to marry one another, and, as a result of our make-up, I see it as very, very unlikely to happen.

Posted by: Visible Hand at April 17, 2004 01:10 PM

I've been thinking about Burdick v. Taskushi, in reference to terrence's post about the 997 benefits of gay marriages that can't be accomplished with, say, living wills and well-drafted partnership agreements.
In Burdick, the court rejected the right to vote for the person your choice, although this would seem to be a fundamental right like the right to marry the person of your choice. The court looked at the availability of alternatives (enter a primary, be an independent, be a minor party candidate), applied lax review, and denied that there was a right to a write-in vote.
So a gay marriage case -could- turn on this sort of analysis, looking at whether the alternatives are close enough to satisfy due process.
So I'd like to have a better grasp of what gay marriage accomplishes that can't be done in some other way. Is there a list somewhere?
(I'm relatively uninterested in the marriage penalty or the deductibility of medical insurance; these problems could be fixed with changes to the tax code. I'm also not too interested in symbolic statements, more in concrete consequences.)
I'm -not- saying that there aren't things that can only be accomplished by gay marriage, I'm just not clear on what those are.

Posted by: arbitraryaardvark at April 17, 2004 03:26 PM

Not that it matters, but it seems to me the incest question is a red herring. And a stinky one, at that.

It not only cranks up the emotive components of the debate a notch, making it easier for conservatives to avoid an outcome driven by logic, but it leads to other questionable statements even on the part of liberals.

For example, Visible Hand (with whom I've found myself in agreement on just about everything else in this debate and whose logic I otherwise admire) makes the comment that incest is "pretty much frowned upon by every culture in the world." He apparently didn't do even the quickest Internet search on the topic, or he would have seen this. The Pharoahs and royalty of other cultures were also said to have married their own siblings. No doubt, non-royal people have also lived together as man and wife in numerous cultures (including our own) throughout history.

Likewise,

If they want to procreate, and the child is likely to come out a few eggs short of a dozen, well, they shouldn't be allowed to do that--that'll cause harm to another individual.

So far as I know, though, this is a considered incorrect by biologists. One etext on the Gutenberg website notes,

Inbreeding (endogamous) or straightforward incest is the norm in many life forms, even among primates (e.g., chimpanzees). It was also quite common until recently in certain human societies - the Hindus, for instance, or many Native American tribes, and royal families everywhere.

And, incidentally, that provides more evidence that both points Visible Hand made about incest are, at least, questionable (and probably incorrect).

Not that it matters to this debate. As I said, it's a stinky red herring.

Posted by: Rick Horowitz at April 17, 2004 03:53 PM

Thanks Rick--I agree, it is a red herring. I did note I'm not a biologist & recognized I was headed into territory where I'm not well-informed. Thanks for those links--it's good to learn. I'd thought I might have heard something about research now indicating that incest isn't anywhere near a rock-solid guarantee that the offspring will come out more than a little off, but I wasn't sure. But, in the long run tho, isn't that still true? I mean, look at dalmations & other pure-bred dogs...

Again, I'm definitely treading into areas where I'm largely ignorant here, so I may very well be wrong...

Posted by: Visible Hand at April 17, 2004 06:36 PM

I'm not a biologist, but I do play one on....

Just kidding. My background has been rather eclectic, because my undergraduate focus was philosophy with an emphasis in cognitive science.

Essentially, Darwinian principles are going to remain applicable to all populations, even those that are in-bred. In other words, under normal circumstances if in-breeding results in harmful characteristics, they'll be weeded out, just as they are in the species at large.

Dalmatians probably couldn't exist without the specific intermeddling of humans. Mine, I know, couldn't continue to exist if it weren't for my wife.

Populations that are in-bred are not any more, or less, susceptible to the normal issues of inheritance. If the population contains "bad" genetic material, this could be an issue. If it contains "good" genetic material, it's not.

A population with genes for beautiful, smart, tall — make up your own list of desirable traits — people which had no genes causative of harmful characteristics might actually be protecting itself by in-breeding, by blocking out the chance that an outsider would introduce genes resulting in harmful characteristics.

Mutations, on the other hand, are freakish accidents, large or small, which are not (so far as I know or have ever read) either increased or decreased by in-breeding. They occur in all living things. Some are harmful and fairly quickly disappear (unless their presence in recessive genes allows them to "hide out"; it's a balancing act). Some give their carriers an advantage. This advantage allows, over time, for the potential improvement of the species.

That's how we get non-Republicans.

Posted by: Rick Horowitz at April 17, 2004 07:37 PM

Boy, that sure killed the conversation, eh? ;)

Posted by: Rick Horowitz at April 20, 2004 05:11 PM

What exactly is it about gender that makes it a uniquely individual characteristic, A. Rickey?

Also, regarding the argument that the "definition" of marriage - a recently legally reinforced definition - makes it impossible to argue that it is discriminatory, because it is definitionally between a "man and a woman," I might say that the definition of a slave as 3/5 of a person could probably have provided solid grounds for some legal arguments in the 1800's that we don't want to have to think about now.

Posted by: David at August 10, 2004 08:55 PM
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