Civil and religious marriage *UPDATED*

This is the second in my series of marriage posts.  My first draft, which was a failure, tried to trace the history of marriage, something that’s much better done by better informed people.  What I realized from that valiant, although pointless and time-wasting effort, is that what I’m really interested in is a religion’s interest in marriage, a state’s interest in marriage, and the intersection between those two in America.  This post may ultimately not end up being any more useful or interesting than my abandoned effort, but it still accurately represents some of the things I believe we need to think about before signing off on gay marriage.

Before I dive into the substance of my post, let me say here what I always say in connection with these gay marriage posts.  I think gay marriage represents a sea change in human relationships.  Since the dawn of time, in all cultures, marriage has involved men and women, and that’s true whether we’re talking polygamy or monogamy.  Even in Greece, a culture people like to point to as one that encouraged homosexual relationships, marriage itself was still strictly a male/female event.  This traditional approach to marriage reflects basic biology, something I explored more here, in my post about the procreative component of marriage.

In other words, what’s being proposed now is something that runs counter to all of human history — and a facet of human history deeply rooted in human biology.  That’s not in and of itself a good reason to issue a categorical “no” to gay marriage.  It is, however, a very good reason not to rush into the subject and definitely not to let judges, who are one of the weakest links analytically, intellectually and emotionally in modern society, to make the decision for us.  This is a topic that requires debate and thoughtful analysis, and I’m doing my bit here, at my blog.  So, back to the post:

Religion and marriage:

As far as I know — and please correct me if I’m wrong — all of the world’s major religions incorporate marriage as a component of faith.  The Catholic Church defines marriage as one of the sacraments.  For the uninitiated (and I count myself among that crowd), Wikipedia has what seems to me to be a nice summary of what the sacraments are:

According to the Catechism, Jesus instituted seven sacraments and entrusted them to the Church.[46] These are Baptism, Confirmation, the Eucharist, Penance, Anointing of the Sick, Holy Orders and Holy Matrimony. Sacraments are visible rituals which Catholics see as providing God’s grace to all those who receive them with the proper mindset or disposition (ex opere operato).

In other words, marriage, if it is at all possible to achieve that state, is an integral part of the Catholic faith.  Deliberately shunning marriage is, I presume, tantamount, to turning your back on God’s grace. Although I’m shaky on Protestant doctrine when it comes to marriages, I have the sense that, while Protestantism abandoned the terminology of the “sacraments,” it kept the concept, with marriage being an integral expression of religious faith.

Jews too see marriage as an essential act of faith, putting into effect both (1) God’s direct command that his followers are fruitful and multiply, and (2) God’s intention, expressed when he created Eve as Adam’s companion, that men and women form lasting companionable partnerships.

And as we all know Islam also strongly advocates the marital relationship.

A little research reveals that in Hinduism, too, marriage is a sacred religious covenant.  About.com has a brief summary, which I quote from here at length, since it leads to my next point about religion and marriage:

In Hinduism, man and woman represent the two halves of the divine body. There is no question of superiority or inferiority between them. However, it is a scientific fact that the emotional side is more developed in women. This does not mean that intellectually, women are inferior. Hindu history is witness to the super-women, like Gargi, Maitreyi and Sulabha, whose faculty of reasoning was far superior to that of ordinary mortals. But owing to organic differences in their physical and emotional constitutions, women are temperamentally more emotional than men.

[snip]

The idea behind the institution of marriage in Hinduism is to foster, not self-interest, but love for the entire family. Practice of self-restraint is the ideal of marriage in Hinduism. It is the love and duty cultivated for the entire family that prevents the break-ups.

[snip]

The present-day Hindu husbands fail to recognize the sacrifices and lofty ideals of Hindu wives, and thus compel them to follow the worst of the West. During the nuptial ceremony in a Vedic marriage, both the bride and the bridegroom take oath for the practice of self-restraint, to work together for the welfare of the family and to help each other to attain spiritual peace. This lofty ideal of sanctity is a great gift of Hinduism to the world at large.

As you probably noticed, the above description has all sorts of pragmatic reasons for marriage:  self-restraint, companionship, family and the complimentary nature of male and female emotional lives.  Judaism, too, has a focus on marriage that can be seen as very pragmatic, and untied to things spiritual:  children and companionship.  Indeed, I’m willing to bet that, if you go back in time and study the origin of marriage in each of the world’s religion, you’ll see that it’s tied to some practical goal.

At this point, of course, advocates for changing marriage start to argue that since marriage is a pragmatic means to an end even in the context of religion, religions should be changed to accommodate gay marriage, which is also a means to an end of companionship, family and (through adoption or insemination), children.  This argument is plain wrong, though.

Regardless of the reasons the religions advance for marriage, the fact remains that heterosexual marriage is an integral part of each religion, and is seen as a necessary step for any given religion’s practitioners to take to achieve religious fulfillment or commitment.  A civil society cannot change these fundamental doctrinal facts, no matter how much it is able to rationalize the reasons for the nexus between marriage and faith.  Any given religion’s control over the marriage of its practitioners is sacrosanct and untouchable no matter how much you try to rationalize it away.

The state and marriage:

The modern state encourages marriage.  Why?  Originally, states were inextricably intertwined with religion.  Starting with Constantine, where the ruler went, so went the people.  If religion demanded marriage, well then, dammit, so would the religious state.  That’s not the case anymore, especially in America.  Thanks to the First Amendment, the American government cannot mandate that everyone get married because “X” religion says so, nor can it demand that all who want to get married have to do so under the aegis of “X” religion.

Although there can be no religious element to marriage in American, the state is nevertheless heavily vested in the union of men and women.  This involvement is completely separate from religious unions, although, confusingly, they share the same name:  marriage.  The deal in America is that, if you want to have a solely religious marriage, that’s fine — only you won’t get any of the benefits the state extends to people who simultaneously enter in a civil marriage contract.  What are those benefits?  Here’s a partial list proponents of gay marriage assembled (from an alleged total of 1400 benefits), along with some comments from me, in blue:

  • joint parenting; [This is a biological one:  his sperm, her egg.  However, it can be circumvented by having the non-biological parent adopt the child, something that has happened in step-families for centuries]
  • joint adoption; [My understand of adoption is that both parents have to be vetted.  I assume there's an extra procedural hurdle to issue the adoption papers for John Smith and John Doe, as opposed to Mrs. and Mr. John and Jane Doe.  However, it certainly hasn't stopped numerous gay couples I know from adopting.  Adoption is always a procedural pain in the neck from the stories I've heard.]
  • joint foster care, custody, and visitation (including non-biological parents); [See above.]
  • status as next-of-kin for hospital visits and medical decisions where one partner is too ill to be competent;  [This can be arranged contractually.]
  • joint insurance policies for home, auto and health;  [This can be arranged contractually.]
  • dissolution and divorce protections such as community property and child support; [This can be arranged contractually.]
  • immigration and residency for partners from other countries;  [I'll agree that this is definitely a difference between people married, versus people merely committed to each other.  Marriage would seem to add some credibility to the claim that the non-resident is involved in a true relationship with the American citizen, rather than a sham for immigration purposes.  Given that both our immigration policies and are marital policies are increasingly sham-like themselves, it's hard to believe that this is an insurmountable hurdle.]
  • inheritance automatically in the absence of a will; [Write a will.  Most married people I know have written wills anyway, because the "one size fits all" of an intestacy statute is a disaster waiting to happen.]
  • joint leases with automatic renewal rights in the event one partner dies or leaves the house or apartment;  [In San Francisco, landlord tenant laws are such that this is not a valid reason to claim marriage as a benefit over non-marriage.  Once you're in an apartment, you've got squatters rights, which is one of the reasons I refused to yield to my husband's importuning that we buy residential properties in SF to rent.  I don't know the law in places that don't protect tenants as much.  Again, though, change the contract.]
  • inheritance of jointly-owned real and personal property through the right of survivorship (which avoids the time and expense and taxes in probate); [Properties can be held in joint tenancy by non-married people.  This is again a contractual matter.  You can set up trusts, re-title property, etc.]
  • benefits such as annuities, pension plans, Social Security, and Medicare; [I have no idea about this, but suspect that it's true that federal government benefits cannot be amended by contract.]
  • spousal exemptions to property tax increases upon the death of one partner who is a co-owner of the home; [I don't know about this -- taxes are a blank slate for me -- but I assume that there are again contractual or commercial steps one can take to circumvent this problem.  I freely concede I may be wrong here.]
  • veterans’ discounts on medical care, education, and home loans; joint filing of tax returns;  [Joint filing of tax returns is no privilege, it's a penalty.  I don't know about veteran's benefits but, given that the military won't recognize homosexual relationships, I'm sure it's true.]
  • joint filing of customs claims when traveling; [BFD.]
  • wrongful death benefits for a surviving partner and children; [If you've adopted the children, I don't believe that they can be deprived of wrongful death benefits.  I don't know about the surviving partner, although I assume that, again, most business and insurance companies have set this up so that a person can be named contractually.]
  • bereavement or sick leave to care for a partner or child; [Again, adoption solves the child problem; and I don't know about the partner problem.]
  • decision-making power with respect to whether a deceased partner will be cremated or not and where to bury him or her; [This can be resolved contractually, if the deceased is an adult.]
  • crime victims’ recovery benefits;  [Don't know.]
  • loss of consortium tort benefits; [Probably depends on the state in which the consortium tort benefits are claimed.]
  • domestic violence protection orders;  [Depends on the state, I guess.  Also, anyone who is the victim if violence can, in theory, get a protective order.  The problem is that, whether you're partnered or not, they don't do much good.  Also, if you're not married, you theoretically have an easier time getting out of the domestic violence situation than someone who is married and whose life, as a matter of law, is deeply entwined with that of the violent partner.  In other words, this sounds redundant.]
  • judicial protections and evidentiary immunity [Evidentiary immunity -- no doubt about it.  There is no law saying a gay partner cannot be forced to testify.  I don't know about other judicial protections.]

Clearly, a lot of the automatic benefits — and burdens — bestowed on married couples require some extra work for gay people.  And there are definitely some benefits that won’t go to gay people at all.  None of these details, though, change the fundamental question:  Is it in the state’s interest to make all these benefits automatically available to gay people?  States that have legalized civil unions have said yes, taking away the complaint that the local state government is depriving gays of the same ease of access to government benefits that is granted to straight married couples.  Presumably, the federal government could do the same thing without actually calling it marriage.

But I’ve digressed — again.  Let me restate my question:  Why the heck does a civil state care about marriage to the point where it extends all these benefits?  There are lots of answers.  I’ll start with a few, and leave you to fill in the rest.

One of the primary reasons is convenience, both for the married people and for the state.  Since our culture’s default setting is for heterosexuals to pair up, and since our Judeo-Christian heritage has seen to it that this pairing up falls under the rubric of marriage, it’s infinitely easier if the state treats these pairs as a single entity.  Half the tax returns (even if people are penalized for filing them), half the number of adoption forms, half the this and half the that.  This also allows for huge numbers of presumptions about parenting — who has genetic rights in the children, who can be relied upon to care for the children, who would want his or her estate to go to the children, etc.  The efficiency of treating permanently joined couples as one, and of making certain presumptions about them as a matter of law, is overwhelming.  This benefit — to the state and to married people — would not change if marriage were extended to gay couples.

Intangible societal benefits also flow from marriage, and this is one of those things where the state’s benefit is our benefit too.  As I’ve mentioned in my first post about gay marriage, marriage stabilizes men by focusing their testosterone on the protection of their wives and children and, by extension, on the protection of a stable, coherent society that will provide the maximum benefit to those same wives and children.  Marriage is also beneficial to women since, biologically, they spend a lot of down time being pregnant and caring for children.  A stable marriage ensures that they won’t have to be dependent on themselves, strangers or the state for these basic needs.

Stable married couples also tend to demand stable communities.  To begin with, they want safe, attractive communities for their children.  They also tend to be much, much more sociable.  The moment I had children, I realized I’d joined the largest club in the world.  It was no longer a matter of sporting the right clothes, or walking a dog in the right neighborhood, or having the right hobby in order to find people to talk to.  Everyone who has ever had or wanted a child was an instant acquaintance.  This creates intangible community bonds that are invisible to those who don’t have children.  These bonds, again, encourage a thriving society where everyone, for his or her own benefit, works for the common good.

Frankly, gays with children can join this club too, and would have these interests too, so the state should be encouraging gays to have children.  The question, of course, is whether marriage is a necessary prerequisite to encourage gays to have children.  I don’t have the answer to that.

Do the above factors include “encouraging traditional values?”  I don’t know.  If by “traditional values” we mean having children and raising them to be useful members of society, defending our country, keeping our communities safe and thriving, etc., the factors I’ve set out above are definitely policies aimed at preserving and encouraging traditional values, whether or not civil marriage is extended to gays.  If we think “encouraging traditional values” must include as one of those values “heterosexual marriage,” we come to a standstill.  In that case, the state cannot simultaneously preserve heterosexual marriage while opening marriage to gays.

At the civil side, it all seems to boil down to what one believes should be the state’s ultimate goals.  If one believes that heterosexual marriage is an ultimate goal, or if one believes that the nature of the gay lifestyle is such that, even extending marriage to gays would not bring them into the “stable society” fold, the debate is over.  There is no societal virtue in having the state recognize gay marriage.  If one believes, however, that gay marriage would increase the state’s ability to impose on its citizens all of the traditional virtues (but for heterosexual marriage, of course), while simultaneously increasing convenience for both the state and its citizens, gay marriage becomes a viable option.

Religious freedom in America versus gay marriage

Again, though, that’s not the end of the analysis.  We continue to have problems because of America’s unique nature, which has seen the law develop so that the courts and the government have the power to prevent private individuals and organizations from depriving fellow citizens of rights.  Even if we agree that the state will not be compromised by allowing gay marriage, we still run the risk of creating a Constitutional Frankstein’s monster.

As we’ve seen already from legions of newspaper stories, both at home and abroad, gays are routinely, and successfully, suing religious individuals and organizations (or bringing administrative proceedings) in an effort to force them to fall in line with state norms about homosexuality, even if those norms are antithetical to religious norms.  Individuals and organizations that don’t want to extend benefits to same sex partners, or who don’t want to arrange adoptions for gay couples, or who don’t want to use their venues to host same sex marriages, or whatever else is being asked of them, are being challenged through the courts and through government bureaucracies.  Their religious convictions are being attacked through state vehicles.

These bureaucratic and judicial attacks would seem to run directly counter to the First Amendment’s first clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The government is prohibiting the free exercise of someone’s religion if it forces that person to lose his livelihood or his home or his business if he won’t engage in acts antithetical to what are still fairly mainstream religious beliefs.

In other words, no matter how one tries, as I did, to make a pro and con list of the religious and civil aspects of marriage, one still runs into a single, possibly insurmountable problem:  For the state, in the form of the federal government, to impose gay marriage throughout American means that Congress will, by definition, have enacted a law prohibiting the free exercise of someone’s religion.  That violates the First Amendment.  The only way not to violate it is to enact a Constitutional amendment, something that might state “Congress may pass a law allowing gay marriage and that will be the exception to the prohibition against Congress passing a law prohibiting the free exercise of religion.”  Absent that change, which is an enormous undertaking, I actually don’t see how the feds can allow gay marriage without violating the existing Constitution.

Of course, given the increasing activism of the Courts and government bureaucracies, and their routine willingness to subordinate religious freedom to the intangible goal of equality of outcome, my question, while academically interesting is probably moot.  I can assure you that, in an Obama Supreme Court, the justices will easily find some intangible right to gay marriage that entirely trumps the First Amendment.

I feel I should state some sort of conclusion here, but I don’t rightly now what my conclusion is.  I can summarize my argument, though:  Most religions do not and cannot be forced by the state to recognize gay marriage.  The state’s more pragamatic interests in marriage probably would not be too greatly compromised by gay marriage.  The state’s vision of society might or might not be comprised by gay marriage, depending on what that vision is.  But all of that may be moot because it appears that, if Congress recognizes gay marriage, which is the ultimate gay demand, it will create a fundamental clash with the First Amendment that will be resolved only by the Supreme Court.  And as the tight victory for the Second Amendment reveals, even the currently composed Supreme Court could go either way.  An Obama Supreme Court will toss religious freedom out the window.

As is always the case, the way this should be resolved is through a Constitutional amendment (which is how the abortion matter should also be addressed), but the activists will never go that route when they think they have the Courts in their pockets.

Your thoughts?

UPDATE: Here are to further points. First, this is an example of what happens in a society when men don’t get the calming influence of marriage and the societal-beneficial investment into a family.

Second, I wanted to point out something I hadn’t made clear in my post, namely the fact that, in America, freedom of worship is not limited to doctrinal practices.  That is, it’s not simply that the government can’t make a law prohibiting church services or banning the reading of the Torah.  In case after case (many involving Jehovah’s witnesses in the 30s through 50s), the Court’s have held that people cannot be forced to engage in day-to-day life practices antithetical to their beliefs.  The most obvious example is the fact that the government has routinely issued conscientious objector status to those who can show that they are true adherents of religions that genuinely have pacificism as a core part of the belief system (such as Quakers).

UPDATE II:  It’s people like this gentleman (and I’m being generous saying, not only “gentleman” but also “people”), who are common fixtures at gay pride parades, who may give some Americans the impression that gays are agitating for marriage for reasons other than merging with societal norms.  That is, perhaps they’re just making a political point:  We want it, not because it leads us to our ultimate goals of societal normalcy, but because we currently don’t have it.

UPDATE III: Scott’s comment and an email from DQ both tell me I need to clarify something. Here goes:

The distinction I have in mind when I make my First Amendment argument is predicated on the differences between “mere” cultural practices and core religious doctrine. Both Scott and DQ are correct that there is nothing to stop the state from issuing civil marriage licenses. No one would contend that, if it did so, though, that law would force religious authorities — rabbis, priests, imams, etc. — to perform gay marriages.  I know that the state would not get involved in church affairs in that way.

The people I’m thinking about are the ordinary citizens whose lives or livelihoods intersect with the marriage business. Examples of this would be the Massachusetts Catholic charity that was put out of business because it felt doctrinally barred from giving children to gay couples. Another example, which happened in England (but could happen here under new laws) is the owner of a fancy reception hall being fined and put out of business because he won’t open his home to gay weddings.

Incidentally, the ban against polygamy (which DQ mentioned in his email to me as an example of the US messing with religious marital principles) was grossly unconstitutional if one believes that, as of the 1860s, Mormonism was, in fact, a true religion. The only way the US gov got away with it was (1) because Mormonism was not an established religion and (2) Utah wanted desperately to move from being a territory to becoming a state.  Islamic polygamy, which is banned under anti-polygamy laws, actually has the same problem, although I don’t know Islam enough to know whether one can argue that polygamy is a cultural practice, not a doctrine.  If the former, it can be banned.  If the latter, it’s questionable whether it can be.

With the major faiths – Christianity, Judaism, Hinduism, Islam, etc. – we take it as given that they’re true religions and not merely convenient fictions for certain behaviors (which is the negative view Americans of the 1860s took of Mormonism). Even when we separate core doctrines, central to the religion itself, from practices rising up around the religion, we see that marriage is a central practice to each religion. Given that marriage is not merely a ritual or habit but is, instead, vital to the religion, the US theoretically should not be able to force religious citizens (as opposed to their priests, rabbis and imams) to participate in gay marriage ceremonies – or, worse, to be punished for refusing to participate.

So, again in theory, not only does not the rabbi not have to perform the ceremony, the Jewish caterer should not be sued for hundreds of thousands of dollars for refusing to provide the food. It’s the latter person who concerns me at a Constitutional level (the caterer), not the former (the rabbi), whom I know the government will leave alone.

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  • http://explorations.chasrmartin.com Charlie (Colorado)

    Sorry, Suek, I realize I left off one chunk of your points. You’re asking whether there is a State interest in marriage at all, and as I said, I’m more or less on your side in that. If you want to argue that the whole concept of “marriage” as something special ought to be eliminated from civil law and made a religious concept only, I’ll agree and I’ll even send $10 to your advocacy group.

    We’re not there, however: there is currently a thing called “marriage” codified in the law. You’ve said that “marriage” is a magic word, and Brian is arguing that there is some special status, an “imprimatur”, given by the word “marriage”.

    That’s why I raised this question:

    I don’t have a strong reason for preferring, as I said, if we call this “marriage”, “civil union” or “Fred”. I’d just like to see the hypothetical I proposed earlier be answered: if calling it “civil union” is appropriate, would it be acceptable if the whole state-defined institution were renamed “civil union” for both same-sex and opposite-sex couples? Would this preserve the “sanctity of marriage”?

    If anyone has taken a shot at actually answering that, I’ve missed it, and I think it’s a pretty core question. It would seem to solve the problems pretty admirably: on the one hand, same-sex couples can be partners; on the other, their partnerships aren’t called “marriage”, which is, according to some of the base assumptions we started with, a Sacrament from God. (As some of you understand God.) So, the Sacrament is “marriage”, and the civil contract is a civil contract.

  • suek

    >>Or maybe even some other religion?>>

    Ok…we get it. Some religions – including Buddism – do not have the same idea of marriage. Are you proposing that all homosexuals are Buddists? Or that Buddists are in a majority in the USA? If not, then why should their traditions/rules have any influence on the laws in the USA?

  • http://explorations.chasrmartin.com Charlie (Colorado)

    You must be a lot older than I am.

    Probably, and I suspect a lot more widely read.

    You must also be a feminist.

    Not by any current meaning of the word. What I am is pretty committed to the notion that “all men are created equal” — in the root meaning of “man”, not males only. Is that a bad thing?

    Please – since I’m totally unfamiliar with the cultures you describe – tell me what these cultures have accomplished, and how they are “better” than the culture we presently live in.

    Right after you find the guy who suggested they were better. I’m just saying ours isn’t the only culture in the history of the species.

    In other words, what benefits pertain to changing our culture to one in which males are just “sperm banks” (acknowledging once again the reproductive role, by the way). How would society be improved?

    Again, I suggest you find the guy who argued that it would be improved, and argue with him. You might also look out for the guy who said males don’t have a reproductive role; he needs help.

    What I’m suggesting is that once we free women of male domination, let them own property, have jobs, live separate lives without requiring the protection of men, that we’re very possibly changing society so that conventional patrilinial, patrilocal — strictly “virilocal”, “following the male”, rather than “patrilocal”, “following the father”, since we tend to make separate households, unlike the Romans — patriarchal family organizations don’t make sense either.

    Interesting as that is, though, it’s still a red herring, another topic for another time maybe. The pending questions still seem to me to be:

    given that we have an existing legal structure that conveys certain benefits to certain pairs of partners, should we exclude same-sex pairs from that legal structure? If so, why?

    – given that we don’t exclude same-sex pairs from the equivalent legal protections, is that “marriage” in the law? (I’ll stipulate without hesitation that it wouldn’t be “marriage” in the eyes of the Abrahamic religious traditions.)

  • BrianE

    Bookworm said:

    I still think it’s the subject for a Constitutional Amendment, not for some judge’s idea of “what’s right.” The conservative side of me deeply resents treating the Constitution like silly putty that can be folded, spindled and mutilated to accommodate every new idea, whether or not it can reasonably be read in the Constitution.

    It’s not a red herring. Bookworm raises the issue and I agree with her.

    Buddhism can’t be used as a moral compass for this country, since we are to the point, or are heading this way like a speeding locomotive, where any religious point of view must be rejected merely because it is religious. Unless you don’t count Buddhism as a religion.

    I will plead ignorance to Smith’s TMS, but seems to me, it will still lead to majority rule.

    But if we are going to accept a religious moral compass, I would suggest that the Judeo-Christian foundation would be a good one.

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Ok…we get it. Some religions – including Buddism – do not have the same idea of marriage. Are you proposing that all homosexuals are Buddists? Or that Buddists are in a majority in the USA? If not, then why should their traditions/rules have any influence on the laws in the USA?

    Maybe they shouldn’t. Maybe the majority religion ought to be able to impose their will on minority religions — or minorities who don’t share the same religious beliefs , freethinkers — without hindrance. They seem to like that notion in Saudi Arabia. The ideas of free practice of religion, religious tolerance, freedom of conscience, are all pretty unusual in human society.

    Seems like one hell of an assertion to make on 4 July, though.

  • http://explorations.chasrmartin.com Charlie (Colorado)

    It’s not a red herring. Bookworm raises the issue and I agree with her.

    Yeah, and the question of what the specific Constitutional change she would suggest is still hanging around up there, unanswered.

    Buddhism can’t be used as a moral compass for this country, since we are to the point, or are heading this way like a speeding locomotive, where any religious point of view must be rejected merely because it is religious. Unless you don’t count Buddhism as a religion.

    That’s another argument for another time, but it could be made: Buddhism doesn’t believe in a everlasting soul, it doesn’t believe in a Creator, and Gautama Buddha, “the” Buddha, tended to dismiss questions about those religious things as “not productive”. But for our purposes I think it’s a religion.

    I will plead ignorance to Smith’s TMS, but seems to me, it will still lead to majority rule.

    It can be pretty rough going, even to an Enlightenment geek like me. (It’s never come up, but my background is formal philosophy with a strong emphasis on mathematical logic; when I wasn’t looking, mathematical logic turned into computer science and mathematics, so now I are a mathematician. I also got really interested in the Enlightenment as well. Locke, Hume, Leibnitz, Jefferson, Voltaire, all that stuff.) But P.J. O’Roarke treats it pretty usefully in his gloss on The Wealth of Nations, which is good reading in general.

    In any case, it doesn’t; it leads more to Golden Rule, if you will. He starts out by observing we all have inherent feelings of sympathy for others in distress — which, 230 years later, turns out to have a physical basis in what are called “mirror neurons” — and builds from there.

  • suek

    >>Right after you find the guy who suggested they were better.>>

    Are you saying that they’re not? Why in the world would we want to imitate a culture that is less satisfactory than the one we have?

    >> I’m just saying ours isn’t the only culture in the history of the species.>>

    No one said that it was – but it’s _ours_. Gays are the ones who are setting out to change what has been largely successful for a very long time…why should we?

    >>given that we have an existing legal structure that conveys certain benefits to certain pairs of partners, should we exclude same-sex pairs from that legal structure? If so, why?>>

    Why are the benefits given? what is/was their purpose? If their purpose is not served by giving the same benefits to same sex couples, why should those benefits be extended to them? Are married couples somehow “better” than singles? Why does the government discriminate against singles? is there something “wrong” with being single?

    >>given that we don’t exclude same-sex pairs from the equivalent legal protections, is that “marriage” in the law? >>

    Well, now…that _is_ the question, isn’t it? I’d say no…marriage has a particular meaning in our language. What gays want – other than the legal benefits – is to change the concept that is the definition of the word. Calling wet dry doesn’t make it so – although dry wine may still be wet…. There isn’t much point in having language to communicate with if it doesn’t mean the same thing to one person as it does to another.

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Actually what the argument is this. We can’t trust Native Americans not to raid us and take slaves from white settlements, when their chief says “peace” but his warriors or another tribe he doesn’t control, haven’t agreed to “peace”.

    Dude, we not only didn’t take white slaves, we never quite got that whole “slave” notion down well at all; when we Choctaws bought black slaves from the white man, they tended to marry into the tribe.

    But don’t even start me on the white people not being able to trust the Indians. Just don’t even go there.

    (You really just like stirring the, um, pot, don’t you?)

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Are you saying that they’re not?

    I’m saying that they exist. My grandfather used to say “if the bird and the book disagree, believe the bird.” I’m just trying to observe the bird.

    Why are the benefits given? what is/was their purpose? If their purpose is not served by giving the same benefits to same sex couples, why should those benefits be extended to them? Are married couples somehow “better” than singles? Why does the government discriminate against singles? is there something “wrong” with being single?

    All good questions, but I’m going to be stubborn: answer some of my questions first.

    I’d say no…marriage has a particular meaning in our language. What gays want – other than the legal benefits – is to change the concept that is the definition of the word. Calling wet dry doesn’t make it so – although dry wine may still be wet…. There isn’t much point in having language to communicate with if it doesn’t mean the same thing to one person as it does to another.

    We change the meanings of words all the time. Again, as I say, I’m fine with the notion of calling the civil contract something else.

    If, on one hand, it’s “just a word” and gays shouldn’t care about having “civil unions” instead of marriage, then opposite-sex couples shouldn’t either; if not, if there is some “magic” in the word “marriage”, then what justification can be made for restricting the word other than on the basis of the majority religion?

    Or are you saying that since the majority religion imposed that definition we ought to leave it alone out of tradition? (Remember, if you use the tradition argument, I’m going to come right back and ask why that tradition is “better” than the one that said blacks and qhites couldn’t marry.)

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Oh, and I’m off to my July 4th party; see you all later.

  • suek

    >>If, on one hand, it’s “just a word”>>

    Ummmm…I didn’t say it was “just a word”…I said it was a concept expressed by a word. What gays want is to change the underlying concept. Why do gays want to change the concept?

    Enjoy your July 4th party…

  • BrianE

    As I have mentioned, Adam Smith and David Hume were friends, and Smith’s moral theory (with his economic theory) shows Hume’s influence. But Smith disagrees with Hume at a number of points. Perhaps the most important is this. According to Hume, the reason why we approve of the various good moral qualities is because we see their usefulness, either to the person who has them or to mankind generally. Smith rejects this. He does not deny that the moral qualities are useful, but he maintains that it is not the perception of their usefulness that makes us approve them. Those who consider some virtue in the abstract see its usefulness, and do not form a concrete image of any one particular action that comes under that general category. But ‘it is only when particular examples are given that we perceive distinctly either the concord or disagreement between our affections and those of the agent… When we consider virtue and vice in an abstract and general manner, the qualities by which they excite the general sentiments seem in a great measure to disappear, and the sentiments themselves become less obvious and discernable’. The effects of virtue and vice ‘seem then to rise up to the view, and as it were to start out…’ (p.246). The idea that we value virtue because it is useful is a philosopher’s illusion, due to his abstract consideration of the matter. Ordinary people approve or disapprove by their immediate emotional reaction to the situation from which the action arises – the object of their judgment is the action in relation to its causes and circumstances, not to its useful or harmful effects. ‘The usefulness of any disposition… is seldom the first ground of our approbation'; ‘the sentiment of approbation always involves in it a sense of propriety quite distinct from the perception of utility’. (p.246-7)

    (emphasis mine)

    I arrived at that point from this.
    Part of an essay from here:
    http://www.humanities.mq.edu.au/Ockham/y64l01.html

    Maybe I’ll do some reading.

    Have a happy Fourth of July.

  • http://northstarmartialarts.com/blog1 Scott in SF

    Just for the record, I’m not angry at all. In fact I’m quite happy that I won the argument.

    Wow I just realized that most people don’t know what sex is!

    Christopher Hitchens argues this is because religious indoctrination is a form of child-abuse. Hhhhmmm.

    I’m available to explain sex to Bookworm’s children if indeed they are experiencing some confusion or cognitive dissonance from trying to shop during Gay Pride last year. (I’m serious, but like everyone else reading this blog, I also know it is highly unlikely.)

    Friends, the basis for my morality is indeed religious. But it is a precept of my religion that I don’t proseltyze, so I’m not going to talk about it. The basis for action is an honest assessment of the way things actually are. Not the way we wish them to be.

  • Ymarsakar

    What I’m amazed at is the amount of arrogance and parochialism inherent in the byproducts of Berkley and San Francisco Leftist culture. You’d think such environments would create cosmopolitan individuals and adults, but they don’t. Cosmopolitanism ends at the state borders, it seems.

  • suek

    This seemed appropriate…

    “Civilization in the best sense merely means the full authority of the human spirit over all externals. Barbarism means the worship of those externals in their crude and unconquered state. Barbarism is the worship of nature.” G.K. Chesterton, All Things Considered

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Suek, it sounds lovely — but when you figure out how the human spirit can assume full authority over, say, gravity, I hope you’ll teach it to me.

    BTW, I’m writing pay copy today, but will zoom back through once the bills are paid.

  • BrianE

    … the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment.

    From the California Supreme Court Ruling.

    Here is a link to a thread on the effect of the California ruling in relationship to polygamy.
    http://volokh.com/posts/1211292450.shtml

    So Charlie, here’s the crux of the matter. Nine people decided the only distinction between same-sex marriage and polygamy was the detrimental effect on the family.

    So let’s see, same-sex marriage offers:

    Divorce rates a magnitude higher than heterosexual marriage.
    Children raised in an environment that condones or promotes unfaithfulness.
    A confusion of gender identity by the children.
    Exposure by the children to many forms of sexual behavior, before the child is psychologically equipped to deal with it.
    We still don’t know all the effects of gay relationships on children since it’s such a recent phenomenon, essentially deciding to experiment with the next generation.
    A radical change to the family structure, which flys in the face of human history.

    Seems detrimental to me.

  • BrianE

    Oh, by the way, hope all of you had a great holiday.
    I live in a suburban neighborhood nestled in a small valley– and watching from the top of a hill as a square mile of fireworks burst from the houses– a skirmish here, a salvo there, was very cool.

  • suek

    “the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment.”

    a) why does the State care if there is a “sound family environment”? Isn’t that the respnsibility of the individual? That same rationale might also work in prohibiting divorce…

    b) who’s to say that polygamous and/or incestuous relationships are potentially detrimental to sound family environment? Did they provide any studies or just make the assumptions?

    c) who decides just exactly what a “sound family environment” is? If it’s in the interest of the State to see that there are “sound family environments”, does that mean that children can be removed from families lacking same?

    Sounds more like social manipulation than sound law. Quelle surprise.

  • http://explorations.chasrmartin.com Charlie (Colorado)

    So Charlie, here’s the crux of the matter. Nine people decided the only distinction between same-sex marriage and polygamy was the detrimental effect on the family.

    No, that’s the crux of your red herring. We might argue the detrimental effect, but I’m not interested in the judicial activism argument right now; besides, the definition of judicial activism is generally “I didn’t think it was rightly decided.” Let’s argue out whether it was wrongly decided before we decide it was judicial activism.

    Divorce rates a magnitude higher than heterosexual marriage.

    Based on 19 years experience in places where divorce rates are very high, and rising, anyway.

    Children raised in an environment that condones or promotes unfaithfulness.

    Basically, Brian, sez you. You don’t have a good sample, and you don’t strike me as an objective observer.

    A confusion of gender identity by the children.

    Again, sez you. What studies I’ve seen suggest that children in those situations don’t have a lot of trouble telling if they’re concave or convex.

    Exposure by the children to many forms of sexual behavior, before the child is psychologically equipped to deal with it.

    Again, sez you. Brian, you’re missing the whole point of my bringing up all the other cultures with other customs: you keep asserting that “people all do this” and “religions all say that” and “children aren’t prepared to deal with the other”, but somehow I keep finding people who don’t do “this”, and major religions that don’t say “that”, and cultures that do “the other” in which the children manage to grow up just fine without psychological damage.

    Technically, this is called a “counter-example”, and when you present a counter-example to a general assertion like that, it’s called “a disproof.” Which is to say, “wrong”. “Mistaken”. “Not correct.” “Isn’t the case.”

    We still don’t know all the effects of gay relationships on children since it’s such a recent phenomenon, essentially deciding to experiment with the next generation.

    So is no-fault divorce. So is letting gays be openly gay without legal peril. And letting “colored people” use the lunch counter, the front of the bus, and the same bathrooms. As was allowing women to own property and have careers. Not to mention voting. As was living in a Federal Republic with no monarch.

    I understand the impulse to be conservative about these things, but honestly, the wish to keep things from changing is a fool’s dream.

    A radical change to the family structure, which flys in the face of human history.

    Sorry, disproven by counter-example. What you mean is “flies in the face of that little proportion of human history I’m familiar with and find convenient.”

  • suek

    Interesting thread on your link, Brian. Also longer list of comments, though they’re not numbered. Maybe just as well…it could be discouraging! Doesn’t appear that they reach any more of a conclusion than we have, other than the probabilty of polygamous marriages being legalized is more likely in the event that same sex “marriages” are made fully legal.
    In fact, it seems to me that there would be further justification – since if SSM is practiced with any regularity, it would lessen the pool of males available for traditional marriage…!

    We already have serial polygamy/polyandry…why not just eliminate the divorce/remarriage portion of the cycle. Save the antagonistic feelings.

    I still go back to the question of “if marriage is a “right”, then what business does the state have in licensing it or limiting it in any way?” If it’s _not_ a right, then what is the State’s function in defining who may avail themselves of its licensing? And why?

  • BrianE

    Charlie,
    The fact that divorce rates among gays are 50 to 170% higher in Scandanavian countries since same-sex marriages were adopted in 1993 is just a fact, regardless of what the rate is among straights.
    I cited an article from Gay.com, a pro-homosexual website that acknowledges the issue of ‘open relationships’ and said some people in that community consider it a problem. Just a fact, according to them.
    The gender identity is not just concave or convex.
    I know you keep raising cultural attitudes around the world, but we aren’t deciding these issues for Borneo, just the United States, and we have a particular culture and tradition here– which is exactly why it drives the Europeans crazy– we aren’t them (thankfully).
    They still eat people in certain parts of the world. Does that mean we should eat people?

  • suek

    >>I’m not interested in the judicial activism argument right now; besides, the definition of judicial activism is generally “I didn’t think it was rightly decided.” Let’s argue out whether it was wrongly decided before we decide it was judicial activism.>>

    Baloney. Judicial activism is defined as judges finding in the law a right that wasn’t in the law as it was intended. Marriage in the US has been defined as between a man and a woman since July 4 of 1776. After 232 years, suddenly a right has been found – a right of legally “marriage” between two consenting adults. Again I say – if marriage is a _right_, then the State has no right to license it. If the State has the right to license it, then it isn’t a _right_.

    Try driving without a license.

    There really is no point in “deciding” if the decision was “wrongly” decided – it has nothing to do with right or wrong. It has to do with judicial activism – finding “rights” within the law that don’t exist.

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Brian, do you have an argument here? I’m not seeing it.

    Yes, I understand that Scandinavians have a high divorce rate, and that it’s higher among same-sex marriages. (Which have been legal since 1989, check your facts there.) There are some sub-populations among opposite-sex couples that have very high divorce rates too, eg, grad students and non-commissioned officers in the military. None the less, we let Army sergeants marry.

    Yes, I understand that there are open relationships among gay people; there are among straight people too. You say that Ga.com cites it as a “problem”; I thought your high dudgeon above was that you didn’t think gays were offended or worried or saw those non-conventional things as a problem. Pick one, and make your argument.

    And yes, this is a place where we’re talking about something different happening. I don’t know how old you are, but I listed a whole bunch of things that are different that changed in my lifetime: integrated schools, integrated washrooms, legal inter-racial marriage, wiretapping restrictions, recognition of the Second Amendment as an individual right; go back a few years, we get women voting, prohibition of marijuana, prohibition and re-legalization of alcohol, the Louisiana Purchase, the Constitution and the Declaration of Independence.

    Jesse Helms (who was a sweet old man I don’t care what the NY Times said) didn’t believe in a lot of those; still, before he died he had more black staff members in his Senate office than white.

    Look, Brian, I’m making this easy for you: I’ve laid out a bunch of pretty precise, specific questions. Maybe if you looked at some of those and addressed them we could get somewhere. Right now, what I’m learning so far is that you think same-sex marriage Is Different and You Don’t Like It. And I think I’ve got that. Could we try to progress a little further?

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Baloney. Judicial activism is defined as judges finding in the law a right that wasn’t in the law as it was intended. Marriage in the US has been defined as between a man and a woman since July 4 of 1776. After 232 years, suddenly a right has been found – a right of legally “marriage” between two consenting adults.

    Suek, let’s try substitution again: From 1776 until Loving v Virginia, marriage was defined as only being between opposite-sex couples of the same race. Then the Supreme Court found a “right that wasn’t in the law as it was intended.” Are you arguing that you would defend that law, proscribing inter-racial marriage, because it was “judicial activism”?

    The analogy is especially precise, since this was preceded by Perez v. Sharp, in which the California Supreme Court made a similar ruling in 1948. All of them on Equal Protection grounds, by the way.

    Again I say – if marriage is a _right_, then the State has no right to license it. If the State has the right to license it, then it isn’t a _right_.

    Why do you keep hitting me with this one? I’ve said several times that I agree with you.

  • Ymarsakar

    Suek, it sounds lovely — but when you figure out how the human spirit can assume full authority over, say, gravity, I hope you’ll teach it to me.

    Just because civilization protects individuals from hunger and the weather, doesn’t mean it has full authority over gravity. That kind of strawman’s argument is pretty weak.

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Y, was that even supposed to make sense? If so, it escapes me tonight.

  • Ymarsakar

    Do you not comprehend what a straw man is? Do you not comprehend what the benefits of civilization vis a vis barbarism, is?

  • suek

    >>Are you arguing that you would defend that law, proscribing inter-racial marriage, because it was “judicial activism”>>

    It could be defensible… To be honest, I don’t know enough law. The Supreme Court’s job is to test laws against the Constitution. The Constitution specifically says “all men are created equal”. Given that, and given that blacks were accepted as “men”, it seems pretty clear. It also took a while before all women were considered as “men” in the Constitution – and equal under the law. Could you accept these principles and still defend segregation and its attendant laws? Probably not – although I’m not sure Jeremiah Wright would agree. There are no perfect societies, just as there are no perfect people.

    Again – you can say you agree with my statement of the question being what right does the State have to define “marriage”, but it appears to me that you then ignore the basis of the question. _What_ right has the State, and why? Are you simply accepting that the State has the right to make any rules it chooses? Might makes right? That could, in fact, be the simple truth – the might of the majority… The fact that the State grants licenses to marry indicates that marriage is _not_ a right in and of itself, but that is the basis of the claim of gays – the _right_ to marry.

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Do you not comprehend what a straw man is?

    On, I do, yeah. But she quoted “full authority over all externals.” It’s hardly a straw man if I believe her.

    Do you not comprehend what the benefits of civilization vis a vis barbarism, is?

    Better, perhaps, than most. Which is exactly why I think the desire of the human spirit to be treated as others are treated, to be able to form one’s own associations and not to be subject to legal impediments for unjust reasons, is so important. So if this is an argument at all, I see it as an argument in my favor.

  • suek

    >>I think the desire of the human spirit to be treated as others are treated, to be able to form one’s own associations and not to be subject to legal impediments for unjust reasons, is so important.>>

    You can form your own associations, and you are legally impeded from those associations. What gays want are the benefits associated with a legal status they do not qualify for.

    Do you also park in Handicapped parking spaces?

  • suek

    >>you are legally impeded >>

    Oops. “you are _not_ legally impeded”…

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Suek: Okay, posing the actual question instead of asserting what appeared to me to be a conclusion helps.

    I think the thing here is that there are really two questions tied together.

    First question: does the state have the right to regulate marriage? Now, I’m reading “right” here as in “natural right”, “Rights of Man”, a “right” as Jefferson used it in the Declaration. And in that sense, no, it’s not a right — it’s merely a law, passed more or less by agreement, which varies from jurisdiction to jurisdiction, and which is subject to and can potentially be superseded by those natural rights.

    Second question: given that the state does assume the authority to make such a law, is that authority being justly administered according to the Rights of Man? My conclusion is that in the case of same-sex marriage, it is not.

    Most of the bits of my argument are already above, so I’ll run through it in outline:

    – First (and something I think has been a mutual assumption, but I’ll state it outright now), people whose desire it is to form a family with a person of the same sex are indeed members of the human race and inhere all of the Rights of Man.

    – Second, that among those natural rights is the right to be treated equally under the law; this was (in my opinion) recognized by the 14th Amendment — recognized as opposed to granted.

    – Third, that the ability of the state to define a contractual or civil relationship of marriage is subordinate to that natural right.

    Now, as with a lot of these things, we end up with some conflicts among rights. For example, one of the restrictions we put on the ability to form that association is that we don’t allow people below a certain age to marry. This is, at the root, based on when we judge someone is competent, and in fact many states allow marriage with parental consent before it’s permitted otherwise. Many of these decisions are in some sense arbitrary; some states allow first cousins to marry, others don’t.

    Some of these restrictions were from tradition and even prejudice which was then imposed as law. In many southern states, that included the rule that people of different races could not marry. In the court cases I cited above, various courts agreed in the 40’s and 50’s that these laws were invalid, superseded by the natural rights, as recognized in the 14th Amendment, of the people involved.

    Now, sometimes the state is allowed to legally restrict some person’s natural rights under the Constitution, which is our written agreement about these rights: if you commit a crime, they can put you in jail; if you commit treason, the state can kill you. The state can’t, however, punish or impair under the law, an entire group: equal protection is an individual right. For me to be, for example, forbidden to purchase alcohol because I’m an Indian violates that right. Taking the property of, and imprisoning, all people of Japanese descent because there had been an attack on America by Japan violates that right.

    What are the arguments we’ve seen for the state impairing the rights of some people to form that association with someone of the same sex?

    (1) Some gay people do ooky things, and that makes gays unfit to marry.

    (2) Some gay people are promiscuous, and that makes gays unfit to marry.

    (3) Some gay couples may not be as good parents as some straight couples, and so that makes gays unfit to marry.

    (4) Some gay couples get divorced, so that makes gays unfit to marry.

    All of these are dressed up with statistics, but that’s basically lipstick on the pig, a spurious attempt to make the argument look in some sense scientific: the underlying argument is that because some members of a group behave badly, that justifies punishing and impairing all members of the group.

    (5) Marriage is a Sacrament, part of a Covenant with/from (I’m not sure what the right technical phrasing should be) God. Since God says marriage is between a man and a woman, that civil association ought to be forbidden to people of the same sex.

    (6) Sexual activity between individuals of the same sex is sinful, and since marriage implies possibly having children (by adoption for both, through sperm donation for women), the civil association ought to be forbidden lest children be exposed to sin.

    Both of these then lead to the next question: whose God wins? My God(s) may not be yours, and some people don’t believe in God(s) at all. There’s been the suggestion several times that since the majority believes such and such, the majority ought to dominate the minority. Certainly that’s sometimes the way things work, but the whole point of laying out a Bill of Rights was to establish the places where the majority could not, under the Constitution, impose their will on the minority. The very first one in the list includes the right not to be forced to submit to the majority’s religious opinion.

    (7-10) some gay people do ooky things, are promiscuous, may be bad parents, may be more prone to divorce: thus allowing gay people to marry will harm their children. Thus that civil association ought to be forbidden.

    Again, all of these may be true for some gay people, but we don’t allow a whole group to be punished or impaired for the behavior of individuals. What’s more, some straight people do ooky things, are promiscuous, are bad parents, and are prone to divorce; we don’t therefore impair the ability of opposite-sex couples to form that civil association. Since we’ve assumed that gay people have the same natural rights inherent to being human, the fact that one group is not impaired for the same kinds of behavior would impel us to see impairing another group for the same behavior as a violation of their natural right to be protected equally.

    (11) Allowing gay people to form that civil association — or sometimes, more restrictively, allowing them to form that association and call it “marriage” — will harm the ability of opposite-sex people to form that association, or demean or impair that relationship among people of the opposite sex.

    It seems that most all the arguments for that come down to variants of 1–4 or 7–10, and seem to me to fall on the same arguments.

    (12) We started, way up above, with the notion that marriage is a Sacrament, and that allowing marriages that didn’t receive (invoke?) that sacrament necessarily degraded those that did. I don’t have an opinion on that per se; I’ve been a Buddhist for 40 years, and before that I went to Baptist Sunday School. We didn’t talk about sacraments, so I don’t know.

    But if it’s true, didn’t my marriage, between a genial agnostic raised Methodist and a Buddhist, with no discussion of Sacraments, performed with the “attendance” of K’uan Ssu Yin the Bodhisattva of Compassion, have the same problem? It certainly wouldn’t be considered as having fulfilled the Sacrament of Marriage as I understand Catholic Dogma. That’s why it’s important to Catholics (and a lot of other Christians) to have a “church marriage”, no? For that matter, doesn’t a marriage in a Baptist Church have the same problem for Catholics, ie, it impairs the sanctity of the Sacrament? It’s something called a “marriage” that isn’t a real marriage, no?

    Doesn’t this argument, just inherently, come down to an insistence that my concept of “marriage” ought to be subordinate to your religious beliefs?

    So, that seems to be the list; have I left any out?

  • http://explorations.chasrmartin.com Charlie (Colorado)

    You can form your own associations, and you are [not] legally impeded from those associations. What gays want are the benefits associated with a legal status they do not qualify for.

    That’s all Mildred Jeter and Richard Loving wanted, too: the benefits associated with a legal status for which, being of different races, they didn’t qualify.

    Maybe we can get at this another way: do you think the state of Virginia was entitled to forbid blacks and whites from marrying? Do you think that the Supreme Court was wrong to conclude that “equal protection under the law” was violated by that law?

    If so, say so, and explain to me why. If not, then can you explain what argument you have for distinguishing Mildred Jeter and Richard Loving from, I dunno, George Takei and his long-time partner? Is it one of my 1–12 above, or do have one to add to the list?

  • http://explorations.chasrmartin.com Charlie (Colorado)

    Damn. “… do you have one to add to the list.” I even previewed it.

  • suek

    >>Allowing gay people to form that civil association — or sometimes, more restrictively, allowing them to form that association and call it “marriage” — will harm the ability of opposite-sex people to form that association, or demean or impair that relationship among people of the opposite sex.>>

    There are monetary benefits that derive from the State in order to lend support to the family unit, which the State considers the basic unit of the society. Gays are legally permitted to form “civil unions” – which give them the legal benefits of marriage other than tax and SS benefits. They do not find “civil union” to be enough – it has to be “marriage” in order to qualify for the monetary benefits. I think that’s what it all comes down to.

    >>do you think the state of Virginia was entitled to forbid blacks and whites from marrying?>>

    Legally I don’t know enough to answer the question. Morally, I’d say no. But that’s here and now. When was the law made and why? There are a _lot_ of really stupid laws on the books, usually made to address certain particular needs of a society at a particular time – and then when the immediate problem is solved, the laws are forgotten until someone decides to use them for something arcane. If the answer is that people thought that blacks were not fully rationable human beings, then it seems reasonable – the idea would be that like children, they didn’t have the reasoning ability to form contractual obligations. Once that assumption is disproved, then it’s no longer valid.

  • http://explorations.chasrmartin.com Charlie (Colorado)

    There are monetary benefits that derive from the State in order to lend support to the family unit, which the State considers the basic unit of the society. Gays are legally permitted to form “civil unions” – which give them the legal benefits of marriage other than tax and SS benefits. They do not find “civil union” to be enough – it has to be “marriage” in order to qualify for the monetary benefits. I think that’s what it all comes down to.

    Okay, that sounds like a new one: call it (13). Now, given that these monetary benefits accrue to opposite-sex marriages, doesn’t it violate the right to equal protection to forbid those benefits to same-sex unions?

    (And, just to forestall one side-track, I’d agree in an instant that “affirmative action” has the same problem.)

    If the answer is that people thought that blacks were not fully [rational] human beings, then it seems reasonable – the idea would be that like children, they didn’t have the reasoning ability to form contractual obligations.

    But that’s not consistent with allowing two blacks to marry. I don’t doubt that great-grandfather Jeff might have made just that argument, but as you say, it isn’t true, and it doesn’t seem to fit the situation.

    It’s not like the reason for those laws wasn’t well known, even explicitly called out: it was to prevent the “mixing of the races”, miscegenation. The Loving v. Virgina page cites the trial judge:

    Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.

    Of course, seeing as I’m the product of just such a miscegenation, I don’t find this awfully convincing either.