Today, Alan Turing, one of the formative giants of the computer age, a man who saved many lives during WW2 and helped ensure victory for the Allies, would have been 92. That is, if he hadn't been hounded to suicide by government homophobes.
via BoingBoing
USA Today is running a story on the recent decision by publisher New American Library to cancel plans to republish a novel (Sisters) featuring positive portrayals of proto-feminists, prostitutes and lesbians (Publisher cancels reissue of racy novel by Lynne Cheney). The reason the poorly-written book was to be republished was because of its author, Lynne Cheney, wife of the Vice-President. Of course, a book that featured an empowering view of the love that dare not speak its name would be an embarrassment to a White House seeking to ban homosexuals from equal protection of the laws. Amazon describes the book thus (Amazon.com: Books: Sisters):
Sophie Dymond had overcome nineteenth-century prejudices to succeed as publisher of a hugely popular women's magazine. But when she left New York to revisit her native Wyoming, where her sister had died mysteriously, she left her prestige and power far behind. Waiting for Sophie was a world where women were treated either as decorative figurines or as abject sexual vassals...where wives were led to despise the marriage act and prostitutes pandered to husbands' hungers...where the relationship between women and men became a kind of guerilla warfare in which women were forced to band together for the strength they needed and at times for the love they wanted. In her effort to grasp the meaning of her sister's life and death, Sophie discovers the secret that tainted her life and begins to understand the experience of the vast majority of silent, trapped women.
Be sure to read the readers' reviews.
In any case, although used copies of the book are going for more than your standard paperback, Cheney's lawyer had this to say, "If there is a serious demand for this 25-year-old book, I am confident that America's used bookstores will be able to satisfy it."
According to her bio, Mrs. Cheney "has loved history for as long as she can remember, and she has spent much of her professional life writing and speaking about the importance of knowing history and teaching it well." But not her history, apparently.
An English professor at Princeton looks at the novel, here: Lynne Cheney, Feminist Intellectual?.
An annotated WIKI of the novel would be a great idea, I think.
via LawGeek
I'm really not that familiar with family law and only skimmed the literature so I probably have no idea what I'm talking about, but ...
Why haven't the children of a committed gay couple sued to let their parents get married?
When discussing the issue of gay marriage, the proponents frequently structure their arguments around the rights of adults to marry their chosen partner. Opponents frequently claim that this adult rights argument misses the point, since marriage is not about the adult couple, but rather is meant to recognize the state interest in procreation and child rearing. The reason for this is that if the state acknowledged that one of the purposes of marriage was to benefit heterosexual couples regardless of parental status, or to promote companionship, the justifications for excluding homosexuals from marriage would be much harder to make. For example, in Goodridge v. Dept. of Public Health, the State of Massachusetts claimed
three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a "favorable setting for procreation"; (2) ensuring the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex"; and (3) preserving scarce State and private financial resources.
Proponents of gay marriage should take the second argument ("It's for the children") seriously and see where it takes them.
First, let's note that children receive an awful lot of benefits from having married parents. For example, Goodrich noted:
Where a married couple has children, their children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth's strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, the fact remains that marital children reap a measure of family stability and economic security based on their parents' legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one's parentage. [citations omitted]
If you take the child rearing argument seriously, then one should look at the question of gay marriage from the point of view of a child. That is, can the state deny marriage to the parent of a child, thus denying the child the benefits that accrue to children with married parents, because that child's parent's desired partner is the same sex? In other words, can the state discriminate among children by providing the benefits of marriage only to children whose parents are heterosexual?
After all, is there any benefit the state might deny to children of single parents because the parent is homosexual? Is there any benefit the state could withhold from the child of a single lesbian mother but not from the child of a single heterosexual mother? If not, why can the state deny the benefits of marriage to the child, if marriage is about benefiting the child?
I would argue that discrimination based soley on the sexual orientation of a child's parent is unconstitutional under the equal protection clause of the Fourteenth Amendment as well as a denial of due process because of a status which attaches to the child at birth. Although there are no cases directly on point (that I am aware of), there are a number of cases regarding equal protection and benefits to children that might support my argument.
Standing
If, as many states contend, marriage is in essence a contract for the benefit of the child, I don't see why a child could not sue as a third-party beneficiary of the civil marriage contract. It would be hard to claim a child has no interest in the matter, since the entire basis of the government's argument is that the child is a third-party beneficiary. Of course, the gay couple should also be parties to the action, but the real party in interest would be the child.
Gay Parents Could Adopt Instead
Some may argue that this is not an issue, since the second gay parent may adopt (except in Florida, where the 11th Circuit permits the state to deny gay adoption while permitting gay foster parents). Two-parent gay adoption does provide many of the same benefits to children that gay marriage would, but it does not provide all of the benefits. Clearly, marriage and two-parent adoption are not identical nor equivalent. Even after marriage, one partner will likely deem it necessary to adopt the children of the other partner. In any case, if adoption and marriage were equivalent, there could hardly be a rational justification for permitting gay adoption but denying gay marriage. If they are not equivalent, then, for the state's argument that marriage benefits children to be valid, marriage must provide some additional benefits to children that adoption does not.
Equal Protection Argument
In Levy v. Louisiana, the Supreme Court held that a state may not deny children the ability to bring a wrongful death lawsuit based on their legitimacy. In fact, in general, the Supremes have held that discrimination based solely on illegitimacy is unconstitutional under the equal protection clause of the Forteenth Amendment.
In Levy, the state argued the purpose of the discrimination was "based on morals and general welfare because it discourages bringing children into the world out of wedlock." A pretty good argument actually, and very similar to the one used against gay marriage. It seems reasonable that a state could presume that a married two-parent family is generally superior to a single-parent or unmarried family and seek to discourage such unions. And certainly, the state is permitted great latitude in making such distinctions.
However, in Levy, the court noted that the "rights asserted here involve the intimate, familial relationship between a child and his mother." I see no reason to distinguish the importance of the rights asserted by a child seeking the benefits of married gay parents, which also involve an intimate, familial relationship. I do not see how the state can deny that a child being raised by a gay couple has the same intimate, familial relationship as did the family in Levy.
In determining the equal protection question the court asked why a child should be denied benefits merely because the child was illegitmate. "Why should the illegitimate child be denied rights merely because of his birth out of wedlock?" I ask why a child should be denied the benefit of having married parents merely because the child was born to a homosexual parent.
Some might argue that the homosexual parent could marry a partner of the opposite sex. But the child does not get to choose the parent's intimate and familial partner. This is the same as claiming that illegitimacy could be cured by the parents marrying. The child does not get to force his parents to marry.
In Levy, the harm (the death of the mother) was entirely unrelated to the status (legitimate or illegitimate) of the children. In contrast, one might argue, the harm (no benefits of marriage) is related to the status (gay or heterosexual parents). However, this is a circular argument. This would be the same as arguing that the harm (benefits of legitimacy) was related to the status (legitimate or illegitimate).
Even if one could distinguish Levy, there is still the problem that the distinction fails the rational basis test. After all, will denying the benefits of marriage to children of homosexuals discourage children from having homosexual parents?
One might argue that the ban would discourage adults from engaging in homosexual relationships. First, is this a legal goal for the state? After all, under Lawrence, homosexual sex is as permissible as using contraceptives (Griswold) or having an abortion (Roe). Is it permissible for the state to discriminate based on constitutionally protected acts? Could the state deny marriage to women who had abortions or used contraceptives?
Second, even if discouraging homosexuality is a legal goal, would it still be rational? As opponents of gay marriage tirelessly point out, people who are in a homosexual relationships will not "naturally" have children, so you don't have to worry about homosexual couples that don't want children. The goal of the law must therefore be to discourage homosexual couples who desire children from having children, which doesn't seem to jibe with states that permit same-sex adoption. Moreover, nature has already done as much discouragement as possible: homosexuals must take additional action to have children. Homosexuals know going into the game that having children will require an explicit decision to act on their part beyond that of many heterosexual couples. Given the explicit decision and action necessary for homosexuals to have children in the first place, it does not seem rational that denying benefits will discourage homosexuals who desire children from having children anymore than denying workman's comp to illegitimate children will discourage adults from having illegitimate children.
Finally, even if it did discourage such relationships, to put "this condemnation on the head of an infant is illogical and unjust." Weber v. Aetna Casualty & Surety Co.. Sure, the state wants to discourage unmarried people from having children, but you don't punish the children. If the state wants to discourage homosexuality, don't do it by denying benefits to the children of homosexuals.
In Gomez v. Perez, the court summed up the Fourteenth Amendment case against discrimination on the basis of illegitimacy thus, "a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." If the state may not discriminate against illegitimate children (who are obviously progeny from relationships the state seeks to discourage), why is it not invidious discrimination to deny the substantial benefits of marriage from children with homosexual parents?
Due Process Argument
Okay, so the equal protection argument doesn't float your boat. How about due process?
Opponents of gay marriage, including the state of Massachusetts, claim that they seek "the optimal setting for child rearing." That's great. However, even if a "a two-parent family with one parent of each sex" is the optimal setting for child rearing that does not mean it is acceptable to deny the benefits of marriage to children with gay parents. Even assuming that this very contentious assertion of the abstract superiority of heterosexual couples generally is legitimate, that does not mean the state may discriminate in the particular without violating due process.
In Stanley v. Illinois, the Supreme Court held that the state could not, consistent with due process requirements, merely presume that unmarried fathers in general and the petitioner in particular were unsuitable and neglectful parents. According to the court, parental unfitness must be established on the basis of individualized proof.
Well, it seems that the state of Illinois simply assumed that unmarried fathers aren't good parents, or conversely that a two-parent family with one parent of each sex is the optimal setting for child rearing. Seems pretty reasonable and sounds familiar. However, even if the goal is reasonable, the means to achieve the goal are not.
In Stanley, the Court asks, "What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case?" Sure, the state wants to discourage illegitimacy and to ensure the welfare of children, but given that there already is a particular illegitimate child does it make sense to strip the child from the particular unmarried father without cause? The Court asks, "What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case?" Indeed.
Ok, so the State has an interest in encouraging two-parent heterosexual families for child rearing. Yet, given that you have a particular child with a homosexual parent desiring marriage, what is the state interest in preventing a child from having married parents without a hearing designed to determine whether the parents are fit in a particular case?
"It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents. It may also be that Stanley is such a parent and that his children should be placed in other hands. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children." [footnotes omitted]
It may be, as the State insists, that most homosexual couples are unsuited and neglectful parents. It may also be that a particular couple is such and that the children would not benefit from the marriage of the couple. But all homosexual couples are not in this category; some are wholly suited to rearing children.
If, as the states claim, marriage is about optimum child rearing, they go about it in a strange way. The state assumes that all heterosexual couples are fit to raise children as a married couple, denying them custody of children only upon proof of neglect. Interestingly, even if a state takes children from a married couple that is guilty of neglecting those children, the state does not then dissolve the marriage, even though neglecting children is proof positive that the couple is not an optimum unit (to say the least). Yet the state assumes that homosexual couples are not fit to raise children as a married couple with no proof.
Seems to me that denying marriage to a child's gay parent without a hearing deprives the child of equal protection. Children of heterosexual parents can gain the benefits of marriage without a hearing, but children of homosexual parents cannot gain those benefits at all.
Conclusion
The state has an interest in protecting the welfare of children, of this there is no doubt. Many states claim that the purpose of marriage is to promote the welfare of children. In other words, the benefits of marriage are for children. Given this, is it permissible for the state to provide substantial benefits to children generally, but deny them to the small subset of children with homosexual parents?
Children should have the right of the benefits of marriage where they have a parent willing to be married. Obviously the state can't force a parent to enter an unwilling marriage, but can the state deny marriage benefits to children with willing parents?
Opponents of gay marriage claim such unions are sub-optimal for child rearing. But it is odd to make such argument from the point of view of a child with a homosexual parent. Even if a family with a homosexual couple and child is sub-optimal, does it make sense that the state should reduce benefits to that family? If anything, we should provide more benefits to the children of sub-optimal families. That is like saying financially stable families are the optimal setting for child rearing, therefore, the state will subsidize financially stable families and deny benefits to impoverished families.
This is why I wonder why the child of a homosexual couple has not brought a lawsuit protesting the lack of marriage for the child's parents.
Eugene Volokh is an ultra smart guy and cool person. Yet I just don't understand his position on gay marriage, which he does not seem to personally oppose. Like many opponents of gay marriage, however, he does not think that gay marriage should be imposed by the judiciary interpreting the law. While he opposes the Federal Marriage Amendment, he notes what would be a "quite defensible" amendment (Marriage Amendments):
No part of this Constitution shall be interpreted as requiring any state, or the federal government, to recognize or allow same-sex marriages.
Why is this defensible? Why would one who didn't oppose a thing want to ensure that it will never be recognized as a right? This is not a question of whether or not Volokh believes that the Constitution recognizes or should recognize a right to gay marriage, but whether Volokh thinks the question of that interpretation should be (effectively) forever foreclosed? I mean, why? Does Volokh think that such an interpretation would irreparably damage or violate the Constitution in some way?
Do we really want amendments of this nature in the Constitution? If, a couple of decades from now, gay marriage is universally (or almost universally) adopted throughout the states (a not unlikely scenario), will it not seem strange that gay marriage is uniquely constitutionally disabled? Do we really want such attacks on judicial independence enshrined in the Constitution? What precedent is there for this form of judicial control?
I also wonder what other amendments would be justified by this line of reasoning:
This amendment would indeed protect states from national meddling, as opposed to the Federal Marriage Amendment, which will just replace one sort of national interference with another. I think the amendment may be premature, since I doubt that the judicial interpretations that it would prevent will actually happen. But I may be mistaken, and I can certainly see the argument for forestalling them now, rather than waiting until later, when the Amendment may be still harder to pass.
Wouldn't such logic (and even nearly exact language) also have applied, to give just one example, to Loving v. Virginia? After all, following Brown v. Board of Education and other civil rights decisions, it was pretty clear what path the Supreme Court was on, and it didn't favor anti-miscegenists. Indeed, they were lucky when the Court decided not to hear Naim v. Naim in the mid-fifties. I doubt there was a better time to pass an anti-miscegenation amendment forbidding the decision in Loving than in the immediate aftermath of Brown.
It is certainly plausible, nay likely, that the current Supreme Court would not recognize a right to same sex marriage. But why would we want to foreclose this court or future courts from finding such a right in the broad and inclusive language of our Constitution? The First Amendment has never been so broadly interpreted as it is today. Would it have been wise to prevent such expansive interpretation because of the narrower view of free speech in the past?
Of course, I'm not sure that even this amendment would prevent judicial intervention. After all, if a court can't require same sex marriage even though the court concludes that equal protection is being violated by the disparity, couldn't the court simply declare that the state could no longer be in the "marriage" business at all (Why the FMA Would Be the Death of Marriage)?
In the end, I only note that heterosexuals do not have to worry about rights of theirs that aren't yet recognized being pre-emptively snuffed out by amendment because a court might recognize them. Some may think it proper that a minority wait patiently for its rights to be recognized and granted by a bigoted majority. The history of civil rights in this nation, and the very nature of our Constitution, speak out against this notion.
According to the New York Times (reg. req.) a number of state legislators are taking up the issue of gay marriage and many are proposing state constitutional amendments against the practice (won't those states look foolish and backwards in 20 years, or less) (Legislators Push for State Action on Gay Marriage). Democrats in Georgia have a unique response to the call for a state amendment against gay marriage. They (facetiously, it seems) propose an amendment against adultery. Now, of course, an anti-adultery amendment doesn't make a lot of sense. The costs of enforcement would bankrupt the country. Besides which, you don't really want to throw people in jail for private acts, do you? On the other hand, we don't want people to think that adultery, which seriously undermines the most "fundamental institution of society" (in President Bush's words), is taken lightly. Thus, I propose a compromise.
What better way to show that adultery is not to be taken lightly then by holding our office holders to a higher standard? Not everyone is perfect, of course, and a blanket ban might occasionally be unjust, so I also leave room for exceptions to be made. Forthwith, my proposed amendment:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken vows of marriage, shall have committed adultery. But Congress may by a vote of two-thirds of each House, remove such disability.
Ask your members of Congress if they would support such an amendment and if not, why not.
I discovered an interesting fact in reading yesterday's Washington Post (reg. req.) letters to the editor section (Letters to the Editor: Expanding the Definition of Marriage). In December of 1912, an amendment to the Constitution was introduced to abolish racial intermarriage:
Intermarriage between negros or persons of color and Caucasians . . . within the United States . . . is forever prohibited.
This history of the amendment is rather interesting as described here: The Socio-Political Context of the Integration of Sport in America:
Jack Johnson, the first black heavyweight champion, he held the heavyweight title for seven years before losing it Jess Willard in Cuba in 1915. [The famous James Earl Jones' movie "The Great White Hope" was based on Johnson's life.] Johnson had a profound effect on race relations. His flamboyant personality and his incessant appetite for confrontation and white women ultimately led to his demise. Johnson married three white women and had numerous affairs with others. He was fearless and had little respect for the conventions of the day (Wiggins, 1993, p.27).
It was this behavior that earned him the name “Bad Nigger.” A Bad Nigger, in black folklore, was a black man who did not play by the rules of convention; they dressed well and had unquenchable sex drives. They lived hedonistic lifestyles with a blatant disregard for death or danger. The term was used a badge of reverence among blacks (Roberts, 1983, p69).
In December of 1908, Johnson beat Tommy Burns in Sydney, Australia for the heavy weigh title. In 1910, he beat former heavyweight champion, Jim Jeffries so badly that it humiliated whites. Not only did he beat him, but he taunted him and rubbed in the face of white Americans. Race riots ensued all over America as a result of this event (Rust and Rust, 1985, p.147).
Because of Johnson's arrogance and love for white women, many whites considered him a serious threat to racial order. After Johnson married Lucille Cameron (a white woman), two ministers in the South recommended lynching him (Gilmore, 1975, p.107). In a reaction to the Johnson-Cameron marriage, in 1911 Rep. Seaborn Roddenberry of Georgia introduced a constitutional amendment to ban interracial marriages. In his appeal to congress, Roddenberry stated that
"Intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit. It is abhorrent and repugnant. It is subversive to social peace. It is destructive of moral supremacy, and ultimately this slavery to black beasts will bring this nation to a fatal conflict" (Gilmore, 1975, p.108).
Influenced by Roddenberry and others, miscegenation bills were introduced in 1913 in half of the twenty states where this law did not exist.
The historical similarities are obvious.
One of the underlying disputes in the debates about homosexual marriage is what, exactly, is marriage?
So asks and answers Donald Sensing in an essay on his One Hand Clapping blog (What makes a thing a thing?). For Sensing, marriage is about the metaphysical possibility of procreation for heterosexual couples (infertile couples notwithstanding). For me, marriage is about creating and sustaining family.
Actually, the question Sensing is asking is what is the "essential character" of marriage.
Why is this question important? Actually, it is not, unless you accept the underlying "natural law" jurisprudence assumption behind Sensing's essay. The basic concept is that there is a natural order to things that is prior to any man-made law. The jurisprudence is that human law should comport itself to natural law.
Natural law as such doesn't impress me too much (I'm more of a James/Pierce pragmatist), but it can be useful to study and discuss, so let's take a look at what Sensing has to say.
Sensing first sketches out two opposing camps in the debate, the marriage "traditionalists" vs. proponents of gay marriage. According to Sensing, "traditionalists insist that marriage is the legal and sexual union of a man and a woman for the purpose of bringing forth the next generation." In opposition, "proponents of same-sex marriage insist that it is the fulfillment of love and affection they have for one another to which childbearing is incidental." Having staked out two radically diverging positions, Sensing has now properly prepared the ground for a rhetorical middleground of his own devising ... almost.
The next move in the argument is to bring in some "gee, ain't I learn-ed" philosophy. In this case Sensing invokes the ancient (Plato and Aristotle ancient) concept of "The Problem of Universals." Without writing a philosophical treatise, I'll simply copy Sensing's version of three answers (there are other answers) to the "The Problem":
- Nominalism (Roscellinus): only the particular or individual is real. Universal terms are merely a word or a name, a flatus vocis, or "breathing of the voice," entirely subjective and mental, which serves as a sign for common objects.
- Universalism (William of Champeux): Individuality is only an accidental variation or modification of universal essence.
- Conceptualism (Abelard): a kind of moderated realism. Universal concepts are more than mere names and are actually abstractions of general characteristics objects possess in common. These natures do actually exist, but only in the objects which possess them. "Tree" as a universal category is an isolation of the mind of common features present in all trees. But "tree" does not exist as a universal being on its own. Universals are indispensable forms of knowledge we need to know the world.
Try to guess what position Sensing takes before you continue reading.
You probably guessed right: marriage traditionalists are Universalists and proponents of same sex marriage are Nominalists. Sensing rejects these extremist claims for the more sensible middle ground of Conceptualism. In Sensing's words:
The Conceptualist advantage is that it does not require every example to conform to the abstraction in every detail, as the Universalist position does (its real weakness as an argument), and as the Nominalist position holds as irrelevant. [emphasis in original]
Hey, that's great. One small problem, though. Who gets to decide what the permissible exceptions to the rule are? The Conceptualist does, of course. Just perfect for those times when you want to declare that marriage is about the bearing of children. This way you can claim that the very small % of married couples that are same sex and unable to bear children are an impermissible exception to the child bearing rule while the much larger % of married couples who are heterosexual and infertile or no-children-intended couples is a inconsequential exception. See how easy it is to get the result you want?
A Conceptualist argument of marriage could examine the history and results of marriage for literally back to the stone age and identify certain essentials that, as a group, marriage has:
Don't know too much about the sources Sensing has been studying, but as far as I know, the details of social organization and marriage (as such) in the Stone Age are not readily apparent. Being as we have no historical record of the Stone Age, I would be wary of basing public policy on the suppositions of archaeologists, but that's just me. Still, let's look at the examination of history Sensing puts forward:
Marriage has always, in all times, cultures and place, been the union of a man and a woman. There is no reason to doubt that homosexuals have also lived in all those cultures, but there is no evidence that their relationships have ever determined the nature of marriage.
Even if this were right (Canada, Belgium, The Netherlands), it would still be a singularly unpersuasive argument. Indeed, it is kind of stacking the deck. The whole point of the debate is whether or not to permit same sex marriage. The fact of the debate itself kind of assumes that we don't have same sex marriage. Is this what natural law is about? A claim that it has always been thus, therefore what is is natural? This argument is a tad circular isn't it? How does change ever occur?
In any case, what a burden of proof Sensing demands. In every culture I am aware of, homosexuals are in the vast minority, so it is no surprise that their relationships have not determined the general nature of other relationships. For example, until very recently, there was no evidence that existence of homosexuals ever determined the nature of human rights. Does it then follow that homosexuals have no human rights?
It is also rather unfair to place this burden on homosexuals when homosexuality was frequently persecuted throughout history. Some cultures tolerated certain types of homosexuality, but very few granted homosexuals full rights. Hard to imagine homosexuals influencing the nature of marriage when homosexuality was grounds for everything from ostracism to execution. Sensing's argument here is just only if persecution of homosexuals is just.
The affirmation of love and affection of the spouses for one another has only rarely been a cause for marriage in human history. Until recently in the West (including America), the emotional feelings that spouses had for one another was not considered very important; what was important was their social or economic similarity, and their compatibility in a myriad of other ways. Marrying because of love is a latecomer to the scene and is not really the norm in most of the world's people now. There are billions of people living in cultures in which brides and grooms hardly have met before their wedding day.
You know, these arguments from history aren't really valid natural law arguments without something more. Natural law theory holds that human beings have natural rights, such as "freedom of conscience." History will show that prior to the late 18th century such rights were almost never recognized and, even today, are frequently questionable in much of the world and for a majority of humanity. There are billions of people living in cultures in which freedom of conscience doesn't really exist. Does this mean that our concept of human rights, which includes "freedom of conscience," is invalid?
Those poor people forced into arranged marriages might be legally "married," but does that mean their relationships express the "essential character" of marriage? The People's Republic of China would claim that its citizens enjoy "freedom of conscience," but does that mean what happens in Communist China expresses the "essential character" of freedom of conscience?
Save for the exceptions that he himself allows, what Sensing's arguments seem to be about so far is reductionism across all human existence. A thing is only that which is common across all of the various expressions of a thing. However, that doesn't seem to work very well when it comes to concepts that govern and regulate human society. The concept of citizenship, for example, didn't incorporate women. Women, in the vast majority of cases, were second-class citizens. Yet, now the concept of citizenship in many (though not all) cultures includes women. How do Sensing's arguments apply to such cases?
I don't know about Sensing, but I prefer a concept of marriage in which love and affection are part of the "essential character" of marriage, and the fact that some cultures force people into "marriage" doesn't impress me.
Moreover, given that I belive marriage is about creating and sustaining family as part of the development of the individual and since "love and affection" goes a long way toward sustaining family, it thus seems proper to me that "love and affection" are "essential" elements of marriage. Sensing's arguments seems almost biological as if the purpose of humans was merely to replicate, like bacteria or something. Call me an old-fashioned Kantian, but I think social institutions should allow humans to be ends and not means.
The very fundamental purpose of marriage has been and remains the propagation of the next generation. Look at it this way: just as "a hen is an egg's way of making another egg," marriage is the means by which parents become grandparents. While it is biologically possible for children to be born outside the marital bond (obviously), it is empirically provable that what biologists call "survival advantages" of those children is so relatively low that non-marital childbearing is literally a dead end.
This is the crux of Sensing's argument and, frankly, it is just plain weak.
Marriage is a cultural institution, it is not a biological one, but Sensing is claiming that it is biological. What are we, animals? Are we to structure all of our relationships according to Sensing's concepts of biological determinism? I thought human beings developed culture so that we could structure ourselves in ways not dictated by simple biology. We may as well get rid of civilization and live as nature intended, in loose bands, like the other primates.
Do I need mention that homosexuality is also part of our biology, apparently? A number of studies have found homosexual behavior among many different animal species in nature. That sort of makes it natural too, doesn't it? Since evolution hasn't eliminated homosexual behavior, it must also have some "survival advantages" for the species. One could certainly argue that homosexuality has "survival advantages" as far as humans are concerned (they have more time to develop art and scientific advances).
I might also note that this argument from biology creates a pretty good justication for polygamy. Sure, marriage between man and woman is good way to propagate the next generation. However many examples from primate studies as well as human society demonstrate that marriage between man and woman and woman and woman works out pretty good for propagating the next generation as well. And people claim that the arguments in favor of gay marriage justify polygamy.
In any case, Sensing seems to be rather obsessed with the procreation issue. It seems to me what is more important both biologically and culturally is not child-bearing, but child-raising, and that is accomplished by families. In Sensing's terminology, but my argument, procreation seems to be incidental, while raising children in a family seems to be the critical element. Procreation is going to happen whether we have marriage or not. What we need is something called a "family" to ensure the results of procreation propagate.
It seems to me that families are the means by which parents become grandparents. Heterosexual couples are great, but for the vast majority of human history an isolated heterosexual couple would have slim chances of survival. You might say that nuclear heterosexual couples are literally a dead end. Heck, the concept of the nuclear family is a relatively new idea in our conception of marriage (hence, the use of the word "nuclear"). Even today, children in nuclear families are a single accident, firing or other mishap away from slim chances of survival. Want to ensure a child has the best chance to survive? Embed them in an extended family.
And you know something, empirically, homosexuals make great moms, dads, aunts, uncles, brothers, sisters, grandparents and other assorted family members. There is no reason to doubt that homosexual couples would not fill the same niche in families as infertile heterosexual couples. Speaking of which, in Sensing's dogma, infertile couples are sort of accidental, neither here nor there. In my view, infertile couples are as important and valid as fertile couples. Sensing thinks marriage is about procreation, I think it is about family.
Of course, even if marriage is about procreation, why does it follow that marriage is for men and women? Logic would seem to dictate that marriage may be restricted to fertile men and fertile women without harming the biological necessity of propagation of generations. Sure, you can define marriage as for men and women, and there would be propagation. But you could also define marriage for homosexual and heterosexual couples, and there would still be propagation. What is so self-defining about the line that Sensing draws? At least my line gives equal dignity to infertile and fertile couples.
Hence, marriage is self-perpetuating, self-referent upon itself and self-defining. Marriage throughout human history has never needed to be defined be relying on something else. However, same-sex "marriage" has no existence or meaning apart from male-female marriage. Male-female marriage is self-perpetuating within itself; same-sex marriages cannot self-perpetuate within itself at all. In fact, if not for male-female marriage, same-sex marriage cannot occur at all. Self-perpetuation is the critical element of marriage without which a same-sex relationship, no matter how affectionate, fails to be marriage. [emphasis in original]
Nope. Marriage is not self-perpetuating. Families are self-perpetuating. Marriage is a means through which families perpetuate themselves. As such, marriage is neither self-referent nor self-defining. [Of course, if marriage is "self-defining", why are even debating the issue?]
To explain a bit further, and since Sensing brought up the evolutionary metaphors ("a hen is an egg's way of making another egg"), let me run with that concept a little. Let me first point out that that specific metaphor is humorous, but somewhat misleading. Evolution doesn't operate on the basis of individuals, it operates at the level of species. A more accurate statement might be, "a hen is the chicken species' way of making more members of the chicken species." To apply the metaphor to the topic at hand then, marriages are the family's way of making more families. However, evolution teaches us that not all members of a species must procreate in order for the species to thrive. In many species, significant numbers of the species aren't intended to procreate at all (see, ants, bees, etc.).
To say that marriage is self-perpetuating is like saying individuals are self-perpetuating. Individuals do not perpetuate themselves. Species perpetuate, individuals procreate. Individuals are the means through which species propagate, but not all individuals must procreate to enhance the propagation of a species. Just so, some marriages procreate, some marriages do not, but all marriages enhance the propagation of family.
Both heterosexual and homosexual couples can play important roles in the perpetuation of families. Consequently, there is no objective, "self-defining" reason why we can't call both types of committed couples "married." Unless by "self-defining" you mean "tautological."
Sensing is also wrong to claim that marriage "never needed to be defined by relying on something else." Marriage has always been defined as relying on and in relation to something else - the community - orginally, the families involved Marriages must be witnessed and recognized by the community to be valid, whether civil or religious. A heterosexual couple can claim to be "married" but there is nothing to distinguish them from an unmarried couple until the state or church recognizes the marriage. Apparently, Sensing believes a couple can whisper "I thee wed" in each others ears and that is a "marriage."
Elements of marriage such as property rights and the like do not centrally define what marriage is. Indeed, the historical and present record shows that such matters have varied widely across human cultures and experience. The wife as an equal partner is a modern development, but its lack in other times and places does not obviate the essential character of marriage, the procreation of the next generation. The various legal and social rights and recognitions that pertain to married couples are the result, not the cause, of marriage, intended to buttress its central purpose. Therefore, they are added or discarded inasmuch as they do so, though not without other influences as well. Thus, the legal rights and social claims of married partners are incidental, not essential, to defining what marriage is.[emphasis in original]
Sigh. If the legal rights and social claims of married partners are incidental to "marriage", how does one tell an unmarried heterosexual couple from a married one? Both couples procreate. Which of the couples is "married"? Couple One suffers tragedy and the child dies. Couple Two thrives and their child lives on to procreate. Is this the difference that constitutes "marriage"?
Sensing is right that many of the legal rights and social claims of married couples vary significantly and are unimportant with regard to the core of the meaning of marriage. For example, joint tax filing is not part of the "essential character" of marriage. However, there is one legal and social claim that is essential to marriage, and that is recognition of the marriage itself. As I noted above, one is not married unless some community recognizes the marriage as valid. Once recognized, that marriage is valid within that community, regardles of the other incidentals of marriage.
After all, isn't that what this debate is really about? Homosexual couples are demanding that the political community known as the United States recognize their committed relationships as "marriage." Beyond that, homosexual couples are not asking for special privileges, but merely to be treated the same as other marriages within the United States.
Marriage is therefore a social institution, not a merely personal one. All society has a vested interest in the propagation of the next generation and the health thereof. As a social institution, marriage is defined in aggregate, not in particular. This fact argues against a Nominalist position that if two same-sex persons obtain a marriage license, that they are in fact married. It also shows why the pro side's snark that many male-female married couples never have children is irrelevant: out of any random 100 heterosexual marriages, the overwhelming majority will conceive children of their own, within the marriage bond, but out of any 100 same-sex unions, exactly zero will do so. Hence, the lack of children in a small minority of male-female marriages is accidental to what marriage does and what it is for, but the inability of same-sex unions to have children within the bond is inescapably central to their relationship.[emphasis in original]
Hey, I thought that marriage was "self-defining" and "never needed to be defined by relying on something else." No fair changing your argument now. As a social institution, marriage is defined by the society. That is how "social institutions" work. If marriage is "self-defining" then, by definition, it exists regardless of society. I mean, really, how can something be both "self-defining" and "defined in aggregate"? If something is "self-defining" you don't need an aggregate to tell you what it is. Methinks Sensing is a little confused by his metaphysics.
Yep, society is interested in the propagation of the next generation. Of course, I'm putting my money on families, not nuclear marriages, as best propagating that generation. And in my concept of families, committed ("married") homosexual couples can play important roles.
The fact that it is marriage-encompassing families that are critical for propagation, and not the oddly theoretical possibility of procreation, shows why the anti side's snark about reproduction is irrelevant. Out of any random 100 heterosexual and homosexual marriages viewed as parts of a communities and families, fully 100% will be able to contribute to propagation of the next generation. Out of any 100 heterosexual marriages outside of society (if such a thing is definitionally possible) there won't be much of a next generation, and certainly no second generation after that. Hence, the lack of procreation in a small minority of all marriages (both heterosexual and homosexual) is accidental to what marriage does and what it is for, but the inability of isolated, self-defining, non-legally and socially recognized marriage units to propagate is inescapably central to their never needing to be defined by relying on something else.
All of which is to say that marriage is about the creation and propagation of families, whether the members are heterosexual or homosexual.
It has now become the consensus "moderate" position, at least according to prominent members of both major political parties, that while "marriage" is only between a man and woman, some form of "civil union" for gay couples might be acceptable.
Fine.
The NOLO website has a nice, abbreviated list of rights granted to married couples here: Marriage Rights and Benefits.
Will someone endorsing the "moderate" position please point out which of these rights granted to married couples should not be given to members of civil unions and why? It is nice to talk about the purpose of marriage in the abstract and how homosexuals shouldn't get married. However, if you endorse the possibility of civil unions, then you will need some concrete arguments as to why, for example, an exemption to certain estate taxes for surviving spouses should not be part of civil union benefits.
Of course, in the end, it will only be about the word. Rather than call them "moderates" they should be called the "Hysteric-Just-Don't-Call-It-Marriage Brigade".
via Atrios
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
What is in a Word?
Marriage. Not the institution, the word. Semantics is what the Federal Marriage Amendment is all about.
Whether or not the FMA will permit states to have both heterosexual marriage and homosexual civic unions, there is strong case to be made that it will permit one-size-fits-all civic unions if the state abolishes civic "marriage."
After all, is there anything that requires a state to recognize the institution of marriage? Must a state recognize a couple's supposed marital status? Where is the list of legal incidents a state has to provide to the married? I doubt there is such a list, as states have previously been free to change the legal incidents of marriage at their will. Used to be that one couldn't rape their spouse, now you can. Divorce was difficult to get, now it is easy. And taxes, whoa boy, is there some guarantee that people can file their taxes as a married couple?
If a state abolishes "marriage" and establishes a same-sex permitting "civic union" law, how would the FMA apply to that state? Would it be unconstitutional to abolish marriage? If so, would we have some sort of minimal Federal Marriage Law requirements that states would have to abide by? If marriage were abolished, would the Supreme Court declare that certain aspects of civic unions were actually elements of a "marriage" even if a state claimed they were civic unions? Wouldn't this inevitably lead to a Federal Common Law of marriage?
Abolishing Marriage through the Courts
Massachusetts' state constitution has been interpreted by the state's Supreme Court to require that marriage rights be granted to both homosexual and heterosexual couples; mere civic unions for gays would not be sufficient to meet the Massachusetts Constitution's equal protection requirements. Imagine if the FMA were passed and the Massachusetts courts had to address the issue again.
Undoubtedly, the unequal treatment would still be repugnant to the equal protection measures of the Constitution of Massachusetts. However, Massachusetts courts would be forbidden from requiring that marriage rights be given equally to homosexuals. However, this would not prevent the Massachusetts courts from declaring that marriage itself must be abolished to correct the disparate treatment. The FMA prevents homosexuals from having the same privileges as heterosexuals. It does not prevent heterosexuals from having their privileges taken away to make them equal to homosexuals.
After "marriage" was abolished, there would be no constitutional issue in Massachusetts establishing an equal rights friendly "civic union" law.
How to Ignore a Constitutional Amendment
Imagine that the FMA has now passed, over the objections of several states. Rather than permit such an injustice, some of the protesting states abolish marriage within their borders. Over time, acceptance of same-sex unions grow as does the idea that civic unions are the proper purview of the state and marriages the purview of the various churches.
Undoing a constitutional amendment requires another constitutional amendment, which is very difficult to do. Rather than go through that process, as individual states become more same-sex friendly many would abolish marriage rather than work on amending the constitution. Ultimately, the FMA and civil marriage becomes irrelevant, quaint legal relics similar to the Third Amendment.
The Federal Benefits Question
Actually, marriage would not be entirely abolished. States would still have to permit vestigial "marriages" in order for heterosexual couples to receive various and sundry federal benefits. Marriage would come to be defined as the union of a man and woman for purposes of receiving federal benefits.
So-called defenders of the institution of marriage should be careful what they ask for.
Although this blog is generally concerned with technology, law and policy, it is, in fact, most concerned about our civil liberties. I emphasize technology and the digital age in my postings because that is what I best know. However, I feel remiss in not addressing one of the most important civil rights battles of our time, that for gay rights. So, while there are many important things happening with regard to copyright and etc. right now, I'm going to spend some time addressing the gay marriage issue.
Prof. Richard Thompson Ford of Stanford Law School has written a critique of the city of San Francisco's issuance of marriage licenses in Slate (Civic Disobedience: San Francisco chooses the wrong way to flout the state).
Ford's first arguments are non sequiturs, pointing out the limited circumstances that normally permit local jurisdictions to defy state or federal law and how they do not apply. However, as Ford notes these are not the arguments San Francisco is making. The reference to federal law is entirely out of place, as San Francisco is not making a federal law claim and no one is arguing that San Francisco is violating federal law at all.
The argument San Francisco is making is that the law prohibiting same-sex marriage is unconstitutional as a matter of California law. Ford treats this argument condescendingly,
Proving that it is indeed "The City That Knows How," San Francisco thus found a different argument to justify licensing same-sex marriages....[The constitional argument is] a clever argument but not clever enough.
Since when has choosing not to enforce unconstititutional law merely "clever"? Call me crazy, but non-frivolous arguments based on constitutional rights should hardly be dealt with contemptuously.
Ford then goes on to the core of his argument:
Even if the courts ultimately were to agree with the city on the merits, the issue is for the courts to decide, not local officials. It's simple black-letter law that otherwise valid legislation is presumed to be constitutional until and unless judicially invalidated. Until a court decides otherwise, then, local officials are bound to uphold state law.
Ford claims it is "simple black-letter law" that unconstitutional laws should be upheld until a court decides otherwise, but it does not seem to me all that clear. For example, two separate courts have so far failed to put a stop to the practice. If the issue were as simple and clear cut as Prof. Ford would have us believe, one would expect an injunction forthwith. Courts normally don't allow litigants to continue to flout well-established black letter law once a case has been brought before them.
There is also a claim that even if the courts uphold San Francisco's interpretation of the law, what San Francisco is doing is nevertheless illegal. This seems rather unlikely to me. This would have to mean that the marriage licenses already issued are invalid regardless of the outcome. And don't think that this will not be tested.
Assume that Ford is correct and San Francisco doesn't have the authority to issue same-sex marriage licenses until a court decides the issue. Subsequent to a ruling that the anti-gay marriage statute is unconstitutional, one of the 3,000+ already married same-sex couples will attempt a divorce. One of the parties will then claim that divorce is unncessary as the marriage was invalid in the first place. If Ford is correct, then the court will have to accept that argument. I think this unlikely.
This is why Ford's argument that SF lacks authority is also false:
it's that they [SF authorities] exceeded their authority (just as I would if I were to print up "marriage licenses" and start issuing them out of my back door). In purporting to license same-sex marriages, the city is less scofflaw than charlatan.
However, is it? Ironically, it is in divorce that most of the benefits of pre-court-decision marriage will accrue, such as property acquired during the marriage. When a divorce among the SF newlyweds occurs and it comes time for property division, will a court declare that property was only accrued after the court decision? This seems unlikely, in which case the city was not acting as a charlatan, as would be the case if Ford were to issue the licenses.
Why is it unlikely? Because after a court decision that the anti-gay marriage law is unconstitional, there is nothing than can be used in court to show that gay marriage licenses were not validly issued:
The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted....
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
16 Am Jur 2d, Sec 177 late 2d, Sec 256
The city has the authority to issue marriage licenses, period. If the anti-gay marriage statute is unconstitional, it is unconstitional now. Which means that SF does have the authority to issue the licenses. The city is either issuing invalid license now (if the statute is constitional), or we will know at some point in the future, that the marriage licenses are, in fact, valid as of the time they were issued.
Yes, "the city's argument—that local officials can act in contravention of state law based on their own untested interpretation of the constitution—is dangerous." Local officials should tread with extreme caution in this area. However, the parade of horribles Ford musters is singularly unconvincing: local officials permitting prayer in schools or declaring affirmative action unconstitional. In both these cases, there is well-settled law on the issue, which is not the case with same-sex marriage. If there were existing precedent opposing the issuing of such licenses, such as a court order, then I would be entirely opposed to violating the court order. There is a difference between thumbing one's nose at well-established law and not enforcing a recently passed and arguably unconstitutional statute.
In any case, there are other differences with regard to the horribles Ford cites. For example, in the case of teacher-led prayer, one would be infringing the rights of those not religious or of a different religion. In the case of affirmative action, one would be denying benefits to a proper recipient. Where is the harm in the SF decision to issue licenses? Are other marriage licenses somehow less valid? Are any benefits being denied anyone? Will any benefits other than a paper certificate be granted until the courts have made a decision? Where no harm can accrue in issuing licenses and there would be benefit in so doing (see divorce issue above), prudence would seem to favor issuing licenses in case of significant doubt.
Which is precisely why Ford's final argument lacks persuasive power. Ford argues that the city could refuse to issue any licenses, rather than participate in discrimination. However, as he points out, this would be mostly a symbolic act and a mere inconvenience to heterosexuals desiring to marry. What he doesn't point out is that a failure to issue licenses due to an unconstitional law would be a serious harm to gays desiring to marry. The balance of equities (as the courts have so far recognized) seems to weigh heavily in favor of issuing licenses to gays until the issues can be resolved with finality.
