Same Sex Marriage Breakdown

by Kieran Healy on October 19, 2005

Since my earlier post about it, Maggie Gallagher’s guest appearance at the Volokh Conspiracy has taken a rapid turn for the worse. She keeps putting up scattershot posts that resolutely fail to engage with any of the reasonable questions and criticisms an increasingly exasperated group of commenters have repeatedly offered her. It irritates the commenters no end that she begins posts with phrases like “Let me clarify” and then doesn’t clear anything up. Gallagher now seems reduced to presenting quotes from sociologists allegedly intent on destroying civilization—surely the last refuge of a desperate conservative.

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{ 59 comments }

1

lemuel pitkin 10.19.05 at 11:41 pm

Wow. The commenters hate her. Maybe Volokh’s not so bad…

2

Seth Finkelstein 10.20.05 at 12:18 am

Actually, it’s the Conservative vs. Libertarian split in action.

Conservatives are extremely invested in certain notions of “morality”, having to do with family, children, etc. Libertarians write articles about how selling your kids would be a proper way to bring the magic of the market to the formation of families (I jest only very slightly).

This division is apparent in gay marriage, where the Conservative view that family structure is the foundation of human society can clash deeply with the Libertarian view that contract is the foundation of human society. Because gay marriage can be viewed either as family structure or personal contract.

3

McDuff 10.20.05 at 1:22 am

There is no argument against gay marriage except “gays are icky and Jesus doesn’t like them.” This is shown time and time again when seemingly intelligent people try to argue against it without saying the magic words and just sound like they don’t know what they’re talking about, because the logic and reason have to get thrown out of the window.

“Think of the children” doesn’t work, “it’s always been this way” isn’t true, “it’ll be dogs next” is just stupid.

Every conservative has to have a go at preserving the status quo of discrimination without coming across like a reactionary jerk, and none of them manage it. It’s like a rite of passage, or something.

4

Adam 10.20.05 at 1:48 am

I posted this in the comments over at Volokh, but I’d be interested in the reaction of people here to the slippery slope argument. The following arguments are adapted from the arguments at Wikipedia, based on Eugene Volokh’s paper on the slippery slope:

“Gay marriage may lead to widespread breakdown of the traditional nuclear family.”

Cost-lowering: Once gay marriage is recognized, the social costs of having a non-traditional family structure will tend to decrease, thus making it easier for people to break their families structure in ways that are not good for society or for the other members of the family.

Attitude altering: People may begin to think of marriage as a institution for personal pleasure and fulfillment rather than for childrearing, and thus regard broken families and deviant family structures less seriously.

Small change tolerance: People may ignore long-term monogamous gay marriage because it constitutes just a small change, but when combined with other deviancies, it could lead to widespread breakdown of traditional families.

Political power: Gay marriage may create a constituency of people who see marriage as an economic benefit, and the constituency will grow and lobby legislatures to expand their new-found right to more people, thus further altering people’s conception of families.

Political momentum: Once the government has recognized gay marriage, it becomes easier to pass other laws redefining traditional social structures.

5

abb1 10.20.05 at 4:30 am

Adam, you should be able to either empirically confirm or empirically rebut this theory – first civil unions were implemented in Scandinavia 15 years ago. You may want to read this piece and various responses to it.

But if the traditional nuclear family will indeed be transformed into something else – why would it necessarily be a bad thing?

6

Daniel 10.20.05 at 5:04 am

I’ve always thought that a lot of what’s wrong with American politics is the lack of a Gaullist party and this lady (“woman” seems somewhat inappropriate in context) would clearly be part of it.

7

SamChevre 10.20.05 at 6:57 am

But if the traditional nuclear family will indeed be transformed into something else – why would it necessarily be a bad thing?

Abb1–I wouldn’t say it would NECESSARILY be a bad thing, but that the changes so far have been a disaster from a social perspective, so I’m super-cautious about more. In no liberal nation are birth rates high enough for the current citizenry to be self-sustaining–and a key goal of any society would be that it be sustainable.

8

mds 10.20.05 at 7:37 am

the changes so far have been a disaster from a social perspective

Which social perspective? I mean, abb1′s example invoked Scandanavia, the hellhole of the planet.

In no liberal nation are birth rates high enough for the current citizenry to be self-sustaining—and a key goal of any society would be that it be sustainable.

Is that “liberal nation” in the sense of “life, liberty, and the pursuit of happiness”? Because that’s a potentially disturbing correlation with the existence of personal liberty. Of course, “liberal” could also specifically mean “godless socialist European.” Either way, there aren’t enough laws left banning divorce, or mandating a minimum number of offspring, so many such nations are on the wrong track. But if it’s already too late, because these nations value personal freedom too highly, then why fret about gay marriage? Liberal nations will be even more doomed, because heterosexuals will be deserting in droves for a chance to gay marry? Or marriage will be cheapened so much by making it a social contract between two people who love each other, that residents of liberal nations will be less likely to get married?

It will be interesting to see if Massachusetts, with its extremely low divorce rate, soon starts achieving the much higher rates of the conservative, Jesus-loving US states. Because of the slippery slope, you know.

9

Matt 10.20.05 at 7:42 am

Samchevre said,
“the changes so far [from what?] have been a disaster from a social perspective”. Is this true? A disaster? That seems like at least a bit (I’d think more) of an exaggeration, don’t you think? Some good has come with various social change and some bad, but it’s not as if, say, life in the 50′s (the real 50′s or the mythical ones) were all wonder and joy. So, this seems to need a lot more support.

10

SamChevre 10.20.05 at 7:46 am

MDS–the social perspective of “societies need to have and raise enough children to maintain their population.” And yes, I mean liberal nation in the sense of “life, liberty, and the pursuit of happiness.”

By “the changes so far,” I mean the changes in marriage/family law since, say, 1900. In 1900, every wealthy Western nation had enough children of citizens being raised in 2-parent homes to grow its population; now none does.

11

rea 10.20.05 at 7:58 am

“In 1900, every wealthy Western nation had enough children of citizens being raised in 2-parent homes to grow its population; now none does.”

So, racism, sexism and homophobia are all essential elements of a properly functioning society?

There are more than 300 million Americans now–wtf do we need with more of us?

12

serial catowner 10.20.05 at 7:58 am

Older readers will remember communes. Communes were what we got when the nuclear family went critical in the 60s. Maybe it only stands to reason that a “baby boom” would involve a lot of people who shouldn’t have been parents- and a lot of marriages that shouldn’t have endured.

Speaking from a part of the country where the population has doubled in the past 30 years, and the quality of life has been halved, you cannot imagine how stupid it sounds to hear someone insisting we must increase our population.

13

nik 10.20.05 at 8:05 am

“In no liberal nation are birth rates high enough for the current citizenry to be self-sustaining”

This is just not true. Take the UK: 104,000 more births than deaths in 2003-4. The “population crisis” brigade just don’t understand demography. They assume that 2.1 births per woman are needed to maintain the population. This is only true in a population where life expectancy is stable, this is not the case in any liberal nation.

http://www.statistics.gov.uk/cci/nugget.asp?id=950

14

Seth Gordon 10.20.05 at 8:06 am

OK, I think I understand. I don’t agree, but I understand.

I have a greeting card that I bought for a friend of mine (and his wife), but was too lazy to ever send. On the outside, it says “Remember how everyone kept asking you, ‘So when are you getting married?’ Well, nobody is going to bug you about that ever again.” On the inside, it says “So when are you going to have kids?”

According to Gallagher, this is What Marriage Is All About.

15

Andrew Edwards 10.20.05 at 8:08 am

I know this isn’t quite fair, but I’m honestly curious:

Isn’t the “shortage of people” argument a little bit racist? I mean, there’s no shortage of people in the world. Human population is expanding dramatically and will continue to do so no matter what the US does.

And the US is an attractive place to live. If it wants more people, there are probably 600 million Indians who’d be glad to move, and you could have your pick of the smartest, best educated 3% of them to immigrate.

The only thing there risks being a shortage of if the US birth rate falls is native-born Americans.

Is this just a fear of declining numbers of white people? Or is there something else to it?

16

Thomas 10.20.05 at 8:13 am

This, it seems to me, is the crucial bit: “But both advocates and opponents of SSM see that something big has changed when marriage becomes a union of any two persons.”

Kieran pointedly doesn’t agree, disagree, or otherwise engage that. Instead we get some dodgy crap about “sociologists allegedly intent on destroying civilization”, when that, quite obviously, isn’t the point at all.

17

Ray 10.20.05 at 8:22 am

Something big changed when marriages stopped being for life. The number of gay marriages we could see are always going to be smaller than the number of (hetero) divorces.

18

SamChevre 10.20.05 at 8:33 am

Andrew,

It’s not a fear of “declining numbers of white people.” (And Japan has the same problem.) Rather, it is that I very much hope that the rest of the world will become more like the liberal nations over time; as a corollary, I would like for the liberal nations to be work towards sustainable lifestyles. (It’s similar to the argument for eating less meat; sure, Americans can eat all they want now, but it would be an environmental disaster if the Chinese and Indians copied that lifestyle.)

19

Uncle Kvetch 10.20.05 at 8:38 am

Let’s see where we stand here:

Adam gives us no fewer than five things that may or may not happen if the “deviancy” of gay marriage is embraced. (Nice choice of terms, Adam, btw.) He apparently assumes that these would all be bad things if they really did happen, although it’s not entirely clear why, and he really doesn’t say.

For his part, Thomas ups the ante by focusing not just on things, but on the big kahuna itself: “something big.”

This much is clear: gay marriage is about things. These things may or may not happen, but what’s important is that they may potentially be very big indeed. The anti-SSM contingent has made this point most eloquently, and now it’s up to us civilization-hating armchair sociologists to refute them. The ball’s in our court, people. I’d offer to take up the charge myself, but I promised my fellow deviant that I’d make the coffee this morning.

20

nik 10.20.05 at 8:38 am

The really big changes (aside from divorce and no-fault divorce) are:

(1) The abolition of Bastardry.
(2) Allowing spouses to hold property independently.

It’s interesting to speculate on what changing the situation back would do. Why should Fathers have rights over children if they (and the mother) haven’t consented to this by marriage? And why should people be able to share pensions and remain seperate legal entities?

21

Andrew Edwards 10.20.05 at 8:47 am

Samchevre:

Fair enough, I don’t want to imply that you’re racist, and that seems a coherent non-racist explanation.

Maybe I’m just speaking too much from my own life.

I live in Toronto, where more than half the population are first- or second-generation immigrants, and legal gay marriage has had no impact, whatsoever, on anything in my life except the number of weddings I attend.

But given that there are still billions of potential US immigrants living in developing countries, aren’t we a few centuries at least from this being any kind of problem? How much would the global population have to decline before we had a problem?

22

Uncle Kvetch 10.20.05 at 9:00 am

Samchevre, I’m curious about something: You seem to be suggesting that marriage laws should be tailored to ensure certain societal goals; in this case, maintaining an adequate birth rate. So my individual choice needs to be constrained in order to protect some greater common good.

How do you square this with what you’ve referred to elsewhere as your libertarian beliefs?

23

Christopher M 10.20.05 at 9:19 am

I like this bit from Gallagher:

But marriage in a particular society is not inevitable; death by sexual disorganization is always an option. Happens quite a bit actually. cf. Roman empire.

You can tell subtle analysis is at work when there’s an absurdly vague proposition followed by a citation of the form “cf. [massive centuries-long civilization].”

24

Sam Dodsworth 10.20.05 at 10:12 am

Happens quite a bit actually. cf. Roman empire.

I don’t suppose she noticed that the late Empire was Christian, and that the ‘Fall of Rome’ only affected half of it? Lucky those Byzantines were so much more ‘sexually organized’, whatever that means.

25

SamChevre 10.20.05 at 10:25 am

Uncle Kvetch,

You seem to be suggesting that marriage laws should be tailored to ensure certain societal goals.

Correct. I’m a libertarian; I believe people ought to be free to do as they please without state interference. (So if you want to form a life-long relationship with your boyfriend, that’s fine. If you’d rather have a different boyfriend every week, that’s fine too. Change gender of the statements if it’s more in line with your preferences.)

But I don’t view the state as equivalent to society. I have no problem with social pressures so long as they aren’t backed up by state force. I want smoking pot to be legal; that doesn’t mean that I think that doctors telling people, “Too much pot-smoking is bad for your health,” is illegitimate.

I view the state as an organization that is designed to use force to benefit society. Thus, to the extent that the state uses force, I think that use of force should be actually beneficial to society. Thus, to the extent that the state regulates some relationships and not others, its choice of which relationships to regulate and how to regulate them should be designed to (as best we can guess) benefit society, not the particular individuals in the relationships. (Whether it’s corporation law or marriage law.)

26

Thomas 10.20.05 at 10:33 am

UK, that’s clever and all, but the interesting piece is not the “something big”, but the “both advocates and opponents of SSM see”.

27

Matt McGrattan 10.20.05 at 10:34 am

Samchevre. you do realise that:

I view the state as an organization that is designed to use force to benefit society. Thus, to the extent that the state uses force, I think that use of force should be actually beneficial to society. Thus, to the extent that the state regulates some relationships and not others, its choice of which relationships to regulate and how to regulate them should be designed to (as best we can guess) benefit society, not the particular individuals in the relationships. (Whether it’s corporation law or marriage law.)

is utterly inimical to libertarianism as ordinarily conceived. Indeed, it’s pretty much the exact opposite of libertarianism.

It just shows that at best you are someone adopting a libertarian pose.

28

SamChevre 10.20.05 at 10:42 am

Matt, I think that’s in the mainstream of libertarian thought. (The government ought to do as little as possible, but what it does should be beneficial, not harmful, to the public interest defined as the aggregation of individual interests.) What am I missing?

29

Ray 10.20.05 at 10:45 am

It does seem to be saying that you have no problem with a state that decides not to bother with equal treatment before the law, if it can be argued that equal treatment does not benefit society.

30

Matt McGrattan 10.20.05 at 10:49 am

No, the whole libertarian tradition is that the state only legitimately exists and only has legitimate power to the extent that the state protects the rights of individuals.

The power of the states goes no further than that.

The very notion of a public interest and a state entitled to act in that interest is completely and totally at odds with pretty much the whole of the libertarian tradition.

The notion that the state can rule over people’s rights to get married because of public interest concerns is so far outside the genuine libertarian tradition it’s almost laughable.

You clearly don’t have the remotest clue what the libertarian/minarchist politicial tradition involves.

31

Matt McGrattan 10.20.05 at 10:52 am

Indeed, the idea that the state can overrule the rights of individuals in the public interest is pretty much the whole substance of the libertarian comnplaint against various forms of socialism and social-democracy.

32

Kieran Healy 10.20.05 at 10:52 am

Kieran pointedly doesn’t agree, disagree, or otherwise engage that.

My “earlier post”:http://crookedtimber.org/2005/10/18/same-sex-marriage/ deals with Gallagher’s substantive argument about the special nature of marriage. As her commenters at Volokh repeatedly try to get her to acknowledge, she has yet to produce a shred of evidence that SSM will lead to the kind of cataclysmic consequences for the social order that she alleges. Sure, it’s a pretty big deal to extend marriage to same-sex couples: but something big doesn’t necessarily mean something bad, and while it’s certainly a big deal for the SS couples who are presently not able to marry, we’ve seen no evidence that it will have any effect on the marriage preferences of heterosexuals. Gallagher keeps insinuating the latter, but so far no real argument or data have been forthcoming.

33

Ray 10.20.05 at 11:06 am

“the kind of cataclysmic consequences for the social order that she alleges”

the latest is that if gay marriage is allowed, in 200 years time there will be no such thing as Western civilisation.

34

SamChevre 10.20.05 at 11:13 am

Matt–I’m not arguing that the state “can overrule the rights of individuals in the public interest.” I’m arguing that there is no individual right to get what you want from the state, because someone else who wanted something else got what he wanted.

To restate–the state shouldn’t hinder any adult from entering into any relationship they please. That doesn’t mean that the state should regulate all relationships identically. My preference would be that the state not regulate any relationships, at all; I don’t, however, see any libertarian rule that the state must apply the same regulations to all relationships.

(More practically, I don’t see how libertarian ideas can tell anything about who ought to get targeted tax deductions–the whole idea of high enough taxes that one would care doesn’t really exist in a libertarian framework.)

35

Ray 10.20.05 at 11:17 am

Do you think it would be okay for the state to apply different rates of taxation to gay and straight people?

36

SamChevre 10.20.05 at 11:22 am

Ray–equal treatment before the law is tricky, because you have to define exactly what should be treated equally. “The law, in its magnificent impartiality, forbids both rich and poor from sleeping under bridges.” I don’t see any libertarian principle that sheds any light at all on, “Is a relationship between two men equal to one between a woman and a man?” To the extent that in either casee there is a privately negotiated contract, the government should enforce it equally; whether the government ought to be required to impose particular contractual terms on one if it does on the other is less clear.

37

Matt McGrattan 10.20.05 at 11:24 am

Samchevre:

Thus, to the extent that the state regulates some relationships and not others, its choice of which relationships to regulate and how to regulate them should be designed to (as best we can guess) benefit society, not the particular individuals in the relationships.

That looks very much like arguing ‘that the state “can overrule the rights of individuals in the public interest.”’

Unless, for you, regulation is some wierd process that doesn’t involve dictating what individuals can and can’t do?

And if you are saying that the state’s regulation of individuals’ behaviour ought to be carried out in the interests of society — which after all is what you DID say — then you emphatically _are_ saying that the state has the right to infringe people’s liberties in the public interest.

You straight out and said it.

A libertarian who thinks the state has the right to forbid people from marrying other people is no libertarian at all.

38

Ray 10.20.05 at 11:27 am

But aren’t you starting from the other end, arguing that the state can decide to treat certain groups _unequally_, because it has decided that is in the best interests of society?
In this case, there is no confusion about what equal treatment means – allow gay couples to form partnerships that are entitled to the same legal protections as straight couples. There is no _imposition_ of contractual terms. The state is _offering_ terms to some people, and not to others. How is this compatible with the equal liberty of all?

39

SamChevre 10.20.05 at 11:28 am

Ray–gay people and straight people who were otherwise identical and identically situated? No.

On the other hand, if the question is, “Can government tax birth control methods that are only of interest to straight people?” or “Can the government treat married people differently for tax purposes than unmarried people, when gay people are less likely to be able to marry their preferred partners?”, I would say yes. (I would prefer that there be no tax consequences related to marriage, but that’s another topic.)

40

Thomas 10.20.05 at 11:30 am

Kieran, your previous post didn’t address any of the predictions made by Gallagher or the various sociologists she mentions.

You say that “she has yet to produce a shred of evidence that SSM will lead to the kind of cataclysmic consequences for the social order that she alleges.” Let’s break that down. Do you mean she hasn’t produced any evidence that SSM will lead to a certain set of consequences? Or that she hasn’t demonstrated that those consequences will be cataclysmic? It must be the latter; she’s relying on the professionals–those sociologists mentioned–for the former. The question of whether those consequences are cataclysmic or wonderful or something else comes only after the prediction about what the facts will be. So, yes, something big doesn’t mean something bad, only that it’s something big.

To be more clear: if, as you say, Gallagher hasn’t produced any evidence for her prediction, then you’re saying that there’s no evidence for this:

“Legitimizing gay and lesbian marriages would promote a democratic, pluralist expansion of the meaning, practice, and politics of family life in the United States, helping to supplant the destructive sanctity of The Family with respect for diverse and vibrant families. . . . If we begin to value the meaning and quality of intimate bonds over their customary forms, people might devise marriage and kinship patterns to serve diverse needs. . . . Two friends might decide to “marry” without basing their bond on erotic or romantic attachment. . . . Or, more radical still, perhaps some might dare to question the dyadic limitations of Western marriage and seek some of the benefits of extended family life through small group marriages arranged to share resources, nurturance, and labor.” Judith Stacey, Gay and Lesbian Families: Queer Like Us, in All Our Families: New Policies for a New Century 117, 128-29 (Mary Ann Mason, Arlene Skolnick & Stephen D. Sugarman eds., Oxford U. Press 1998).

Should we take it up with Professor Stacey? Is Stacey a fringe character? Unqualified? Is this unacceptable sociology? If Gallagher shouldn’t rely on the work for some reason, please, tell us what it is.

41

Ray 10.20.05 at 11:32 am

“gay people and straight people who were otherwise identical and identically situated? No.”

Okay, so you’re saying the state can’t offer tax credits to straight people and refuse them to gay people.
But the state can offer a bundle of legal protections and rights – marriage – to straight people and deny that same bundle of protections to gay people.
What is the difference between the two benefits?

42

SamChevre 10.20.05 at 11:36 am

Ray,

In this case, there is no confusion about what equal treatment means – allow gay couples to form partnerships that are entitled to the same legal protections as straight couples.

But that’s saying that libertarianism requires the government to treat different things similarly. The same argument would say that government has to offer businesses the same ability to receive tax-free income that it gives to non-profits, or that the government has to offer trains the same right to drive on the streets that it offers trucks.

And Matt, for the third time: I don’t think government should be able to forbid any adult from entering any sort of relationship he pleases. I don’t see that it follows that the government must necessarily regulate and subsidize all relationships called marriages, without conditions as to what kind of relationships they are.

43

Antoni Jaume 10.20.05 at 11:39 am

Nik says in post (20) “(2) Allowing spouses to hold property independently. ” That may be new in the USA and UK, but has been the norm in Catalonia for centuries, even during dictatorships like those of Franco. In fact it is the default there.

DSW

44

SamChevre 10.20.05 at 11:47 am

Ray,

Okay, so you’re saying the state can’t offer tax credits to straight people and refuse them to gay people.
But the state can offer a bundle of legal protections and rights – marriage – to straight people and deny that same bundle of protections to gay people.
What is the difference between the two benefits?

One is conditioned on behaviour, one on identity.

The state can (with equal legitimacy, although I really don’t consider any of these legitimate) regulate relationships that produce biological children, or relationships that include members of the both sexes, or relationships that are of a specific contractual form, or any combination of the above. Similarly, the government can subsidize medical school and not seminary, or road-building and not railroad-building. A libertarian government wouldn’t do any of these things, but I don’t see that there is a libertarian argument that if you do one of them you must do all of them.

45

harry b 10.20.05 at 11:47 am

thomas,

yes, I guess I do think that Stacey is a fringe character. The vast majority of proponents of gay marriage do not advocate “marriage by any two people”, just that being of the same sex should be no barrier to marriage. If you think, as Stacey seems to, that this is a slippery slope, its up to you spell out how the slope lies, and why this particular measure pushes us irredeemably down it. Most of the Stacey quote is just silly; the kind of thing you say when you are stuck in a pomo desert and disconnected from anything that is going on outside. If you want to furnish evidence that anythign Stacey predicts would actually happen go ahead — she doesn’t, because she can’t.

As I insisted in the previous thread on this, and ampersand intimated in a fine link, Gallagher and her cohort have provided an incredibly powerful argument for same-sex (but not polygamous, or bestial) marriage, and it is contained in her book The Case for Marriage. Read it, and try to figure out why the powerful considerations she gives for promoting marriage would not apply to same sex (and especially male same-sex) marriage.

Here’s the ampersand link:

http://www.amptoons.com/blog/archives/2003/12/07/since-when-has-heterosexual-intercourse-been-central-to-the-definition-of-marriage-since-sometime-after-2000-according-to-the-institute-for-american-values/

46

Uncle Kvetch 10.20.05 at 12:00 pm

Thomas, you all but proved my point: Prof. Stacey’s prognostications, exactly like Adam’s, exactly like Gallagher’s, are one long train of “mights.” (I might add that none of her “mights” seem all that cataclysmic to me, but that’s beside the point.) When you’re advocating discrimination against a class of people, I think the burden is on you to do somewhat better than that. Gay marriage is now legal in several countries and one US state. What effect, if any, has this had on anyone beyond the gay couples who have taken advantage of the change in laws in order to marry? We keep asking, and they keep not answering.

47

Steve LaBonne 10.20.05 at 12:13 pm

It’s sad that conservatroid lunatic bigots can induce rational people to waste large amounts of time considering their “arguments”, which in no way deserve such respect. Reminds me of the way Creinists and IDiots force scientists to waste precious time and neurons trying to counter the baleful influence of the stupid-rays they shed on our once-great land.

48

Thomas 10.20.05 at 1:40 pm

UK–
I think you missed a “would” in there, didn’t you?

I certainly agree that the question whether something will happen (or “might”!) is separate from whether it is cataclysmic or otherwise. See my previous comment.

Your attempt to place the burden of proof in this case on opponents of SSM is, it seems to me, a bit incomplete. You haven’t told us why we should think that this is “discrimination” of the sort that we should be opposed to–in fact, assuming that it is seems to beg the question.

Your suggestion that a “so far, so good” standard for judging the recent changes in the law isn’t supported by any argument at all. Since there’s nothing in Gallagher’s position that would require her to say that we would expect immediate and cataclysmic results from the recent changes, what relevance do they have to what she’s saying? Any at all?

49

Uncle Kvetch 10.20.05 at 1:53 pm

You haven’t told us why we should think that this is “discrimination” of the sort that we should be opposed to—in fact, assuming that it is seems to beg the question.

Why the scare quotes, Thomas? The man I have lived with for 10 years and I are deprived of access to the rights that accrue to married couples, solely on the basis of our shared gender. If one of us were a woman, we could get married–irrespective of whether we wanted children, intended to have children, or were physically capable of having children.

No slippery slope here: we’re both human beings, we’re both adults, we’re not blood relatives, and there are only two of us. But he’s a man, and I’m a man, so we can’t get married, even though we’ve shared a home and a life for 10 years.

What would prefer I call it, if not “discrimination,” Thomas?

Your suggestion that a “so far, so good” standard for judging the recent changes in the law isn’t supported by any argument at all

OK, I give up. Thomas, you’re the one suggesting that rather than judging gay marriage by looking at the places where it’s already happening, we should judge it on the basis of what Maggie Gallagher thinks might happen. If that’s the basis on which you want this argument to proceed, you can have it with someone else.

50

Thomas 10.20.05 at 2:32 pm

UK, we don’t in this country recognize marriages of, as you note, couples in which one isn’t a human or of couples who, because of their age, are incapable of consent, and we don’t recognize marriages involving more than two people. You suggest that since your case isn’t one of those, it is discrimination that your marriage to another man can’t be recognized. But why is that? And why should we think that these other cases aren’t “discrimination”? (The scare quotes are used simply because the word “discrimination” admits of multiple meanings–as your post demonstrates. Obviously we discriminate, and you apparently approve of that, considering the list you’ve set out. The question is, when is that discrimination inappropriate or immoral? The use of the word to suggest the narrower category of inappropriate or immoral or illicit discrimination is, to my mind, unfortunate.)

As I said, if you want to argue that refusing to recognize SSM is discrimination, great. But don’t insist that, in that argument, I bear the burden of proof, because not recognizing SSM is discriminatory. That’s what we’re arguing about (or would be, if we were actually engaging the substance), so you can’t assume the answer to assign the burden of proof.

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Lisa Williams 10.20.05 at 4:18 pm

I live in Massachusetts and run a community website for Watertown, MA a densely populated suburb that shares a border with Boston. I was absolutely tickled to run an item last week featuring the Exalted Ruler of the the town’s Elks Lodge. Not only is the E.R. a woman, she just married her same sex partner. Link.

Funny, I didn’t notice sidewalks ripping apart to reveal gateways to Gehenna. I looked, really. Not so much as a pothole.

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Lisa Williams 10.20.05 at 4:19 pm

Oh, and I’m married and have two kids. After some post-meatloaf soul searching, my husband and I didn’t detect so much as a neutrino of same-sex-marriage-caused existential angst about our relationship. Then we washed the dishes.

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lemuel pitkin 10.20.05 at 4:35 pm

thomas-

I love it!

You say: “If we legalize gay marriage, incest, bestiality and polygamy wil be next.”

We say: “No no, we’re against those things.”

Then you say: “See, you’re just as bigoted as the people who are against gy marriage.”

Whee!

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baa 10.20.05 at 5:00 pm

I support SSM myself — or at the very least, I support the wussified ‘civil unions’ position advanced by recent democratic presidential candidates — but I think the SSM proponents in this thread are being way too glib about the concerns voiced by SSM opponents. Certainly, the comments on Maggie Gallagher’s posts at Volokh have been almost uniformly think-headed and uncharitable.

Gallagher’s main point — as Thomas has pointed out numerous times above — is that a shift to SSM is not a minor change, it is a substantial redefinition of what marriage means to most people. This is simply uncontestable. And it is likewise true that if the primary purpose of SSM were to grant benefits (health care, visitation rights, etc) to gay couples, there would be a number of policy/legal mechanisms besides altering marriage that would accomplish this.

Gallagher has adduced no evidence that the shift to SSM would be harmful. It would likely be difficult, however, to adduce evidence that allowing polygamy, polyandry, or group marriage would be harmful. Maybe that means that the burden of proof is on SSM opponents, and likewise on opponents of polygamy; and so absent the controlled studies their concerns can be dismissed. But I think that’s a bit too easy. This, I think, is a nice introduction on how one might think about the risks of altering long-standing insitutions.

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Shelby 10.20.05 at 5:28 pm

I started reading Gallagher’s posts skeptical of her position; she’s failed to persuade me since, but she has irritated me. In fairness to the debate, though, Orin Kerr did post a summation of the more generous-minded reading of her argument, here.

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Chris W. 10.20.05 at 8:55 pm

After reading up on the debate here and on the Volokh blog, it occurs to me that Maggie Gallagher is employing precisely the right rhetorical strategy to further her main point. I’ve spent the last 15min trying to find a concise way to say it in English, but keep falling back on the French expression “noyer le poisson”: literally, to drown the fish.

The central thing is, I think, about SSM being, is for, her a further incremental step towards a change of family structures. She hasn’t proven that this would be bad, she hasn’t even shown that this is true (though I tend to think it is, and I’m a darned glad about it), or that there *is* a crisis, or that this crisis is common to all post-industrial free-market democracies. But she has *claimed* all that, gone off tangents and equivocated. She has made, or at least implicitly stated, even stronger claims, only to be thoroughly rebutted and even refuted a number of times with solid facts.

But once all the hyperbole and tangents are been stripped away what may well remain of her muddled slew of posts, for people who are receptive to it, is a niggling idea that there might be such a path that leads down to disaster, and that we’d better avoid advancing *any* further on that slippery slope. It’s easy for heterosexuals to say “no”: after all, they aren’t personally hurt. If in doubt, do nothing.

Given the weakness of the anti-SSM argument, this “drowning the fish” strategy looks to me like the single most promising one to pursue for those who are opposed.

She does get one thing right: That the question is whether the pro-SSM stance is about liberty vs. equality (as she says somewhere, whether it’s like _race_ or _abortion_ — that would better be like _protection from racial discrimination_ or _access to abortion_). Of course, where she goes from there is laughable: it *can’t* be about equality, because that would mean she, as an SSM opponent, would be a bigot, and she isn’t. (Anyone need an example of a petitio principii?)

And I attenuate what I said about the Volokh blog: The commenters are impressive, so there is something good about it.

(I apologise for the over-long comment.)

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Chris W. 10.20.05 at 8:58 pm

(And the bad grammar from attempts to shorten it via cut-and-paste.)

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Ampersand 10.21.05 at 6:03 am

UK, that’s clever and all, but the interesting piece is not the “something big”, but the “both advocates and opponents of SSM see”.

SSM has become viable because of two very big changes in society – women’s rights, and gay rights. As marriage becomes less about “wives and husbands fulfill two separate, strictly-bounded roles,” the rule that only women may marry men and vice-versa has lost its basis. And as lesbians and gays become accepted as equal citizens, rather than perverts, denying same-sex couples substantive legal equality seems fair to fewer people. (I discuss this in slightly more detail here).

However, even though SSM could not happen without those two big changes to society happening first, SSM itself isn’t a big change to society (although it’s an important change to many lesbians and gays). And preventing SSM will not undo the large changes to society SSM reflects.

Attempting to lower divorce rates and single motherhood by blocking SSM is a genuinely ridiculous and futile position. The (until recently) increasing divorce rate – a trend that began long before no-fault divorce, incidently – is largely a result of the increasing legal and economic independence of women. That trend will not stop because SSM is blocked – or for any other reason, I hope.

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Ampersand 10.21.05 at 6:07 am

Yipes! I have to post a clarification. When I wrote “That trend will not stop because SSM is blocked – or for any other reason, I hope,” I intended “that trend” to refer to the increasing legal and economic independence of women – not to the increasing divorce rate!

I do think the divorce rate (which has gone down in recent years) should be lowered further – but not through sacrificing equality for same-sex families, which is both futile and unjust.

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