Blog powered by Typepad

« Interview with Rauch | Main | Religion and the Pluralistic Society »

April 27, 2004

Comments

Ben Bateman

Gabriel: "it is up to individuals to decide whether or not to procreate. Thus the goal of getting more people to procreate is an impermissible legislative objective."

Is it always an impermissible objective, or just under current circumstances? Suppose that we have a plague or a war that kills off a large number of people.

Or suppose that birth rates simply decline below the replacement rate due to increased prosperity and other social factors, as they already have in many countries. I left a bunch of links on that in the previous thread, or you can Google "demography population decline" and variants of it. The statistic that sticks is my mind is that, according to the UN, 44% of the world's population lives in a country with a declining population.

Suppose that the US gets the situation Germany now faces, where they have an extensive social insurance system that relies on an expanding population. People have put money into that system all their lives, and now the declining population means that there won't be enough young workers to pay the taxes to fund the retirees' pensions. It's a big political problem all across Western Europe.

Suppose that we get the situation they're facing in France. In addition to the pending collapse of the pension system, they have a significant and fast-breeding Muslim population that refuses to assimilate. The government is only just now taking small steps to control radical Islam within its own borders, but there's a certain hopelessness to it. Those who consider themselves part of French culture are not procreating fast enough to replace themselves, while those who reject French culture in favor of Islamic culture are procreating young and often.

There's an old saying that demography is destiny. These trends work slowly but inexorably. Cultures that refuse to procreate will tend to die off, while cultures that actively reproduce will predominate. That may not be a pleasant thought, but the logic is hard to avoid. Immigration with assimilation can reverse those trends to some extent, but the US and Western Europe have refused to pressure immigrants to assimilate. I expect that you would consider a ban on cultural assimilation of immigrants to be another constitutional requirement.

So are you sure that, in our country, the constitution forbids the government from encouraging procreation?

Mark Miller

Ben: "Is it always an impermissible objective, or just under current circumstances? Suppose that we have a plague or a war that kills off a large number of people."

Are you saying that there might be circumstances where you would support laws that mandate procreation ? Would this mandate include the provision that the couples marry ?

In this scenario, what is your main objective ? Is it procreation at a rate so that society could continue to replace themselves ? Or is that those children produced would have married and committed parents (opposite sex only, presumably). Or are you suggesting that the law, in this scenario, mandate both ?

In any case, if the argument against SSM is going to be that same sex couples cannot procreate, then to be consistent, you must also support the prevention of any couple, to marry unless they procreate, As a matter of fact, your logic leads that marriage should be solely based on having biological children. Therefore, a solution to this could be that the law not recognize any relationships unless they have biological offspring.

Wouldn't that solve the problem of the objective of encouraging procreation ?

Galois

So are you sure that, in our country, the constitution forbids the government from encouraging procreation?

No, this is not something I'm sure of, but the courts have consistently interpreted the constitution to this effect. The Mass SJC was bound by the decisions of Griswold and Eisenstadt. I tend to agree with the US Supreme Court on this matter. I think the decision on whether or not to have a child is a personal one and the right to decide that for ourselves is part of what it means to live in a free country. So even if there was a plague, I would find forced procreation objectionable. Encouraging procreation would probably depend on the methods. Supporting those that decide to have or raise children, I think is not only acceptable, it is to be applauded. I would always have a problem, though, with telling someone whom they may or not marry in order to increase the population.

You are correct that I would consider required assimilation constitutionally prohibited. In fact, I think the freedom of cultural diversity is what makes our country so great. It is especially important to me seeing as I'm part of a cultural minority. My traditions have taught me to avoid assimilation. In the United States I'm free to celebrate my Jewish heritage and still be an American. In the United States someone who was just naturalized is as much a citizen as someone who's family came over on the Mayflower. We are a nation of immigrants.

How to solve the problems of maintaining social security is certainly a challenge for our legislators, but the solution is not mandatory procreation. When people decide whether or not to have children I should hope that pumping up the social security system is not a primary consideration.

Ben Bateman

Mark: "your logic leads that marriage should be solely based on having biological children"

Ah, the good ol' infertility / don't-plan-to-procreate argument.
1) It's not exactly news that government programs can be over- or under-inclusive of the group they're trying to benefit. It happens all the time.
2) There are enormous practical problems involved in identifying before the fact those OS couples that are absolutely, irrefutably incapable of procreation.
3) Discriminating against the rare OS couples who are totally and obviously infertile when they marry would amount to disability discrimination, which we try to avoid.
4) People can get drivers' licenses even if they don't intend to drive and in fact never drive. And they can get marriage licenses even if they don't intend to procreate. In both cases, it's about potential, not intent or actual future behavior.

Mark: "You would support laws that mandate procreation?"

There is a world of difference between mandating procreation by specific individuals and encouraging it generally. Encouraging != mandating.

Gabriel: "Encouraging procreation would probably depend on the methods."

Which methods would you find acceptable? What makes marriage benefits as a method unacceptable?

In considering acceptable methods, would you agree that the legislature may encourage procreation in situations that are more likely to result in better children? ("better" = e.g. healthier, more likely to be economically productive as an adult, less likely to become dependent on the state)

Galois

People can get drivers' licenses even if they don't intend to drive and in fact never drive.

As I said before, they must show they are capable of driving, though.

Discriminating against the rare OS couples who are totally and obviously infertile when they marry would amount to disability discrimination, which we try to avoid.

Or it would be age discrimination. But many states (include MA) try to avoid sexual orientation discrimination, and all states try to avoid gender discrimination.

Which methods would you find acceptable? What makes marriage benefits as a method unacceptable?

Actually I do find marriage acceptable. I just find it unacceptable to withhold marriage from someone because they won't procreate.

In considering acceptable methods, would you agree that the legislature may encourage procreation in situations that are more likely to result in better children?

Yes. That is I would agree that the legislature can try to provide the best conditions possible for procreation. I would not say that they can deny the people the right to procreate because they do not happen to be in the "optimal" setting. Rather they should strive to improve the conditions for all who procreate.

lucia

In considering acceptable methods, would you agree that the legislature may encourage procreation in situations that are more likely to result in better children? ("better" = e.g. healthier, more likely to be economically productive as an adult, less likely to become dependent on the state)

Snarky comment alert:
Ben, do you mean would I prohibit the legistlature from permitting old pedophiles from marrying 14 year old girls because 14 year old girls tend to have unhealthy or inferior babies? Who might become a drain on .....

Uhmmm.. yeah.... I would prohibit that.

But the "inferior babies" issue would be a secondary reason for the prohibition!

My real reason: 14 year old girls need to be protected from pedophiles because it harms the 14 year old girl who is molested by the pedophile! Yep. I oppose the marriage to protect both the 14 year old child and her possible infant even if the pedophile seduced the girl and gets her pregnant before marrying her!

I'm sorry Ben, but my mind is still reeling that you said, repeatedly, that you tolerate what I consider to be pedophilia! (Other readers unfamiliar with the history: scroll to the end of Changing the laws of marriage. Obviously, each reader can decide for themselves whether Ben is advocating permitting opposite sex pedophilia. )

Mark Miller

Ben: "It's not exactly news that government programs can be over- or under-inclusive of the group they're trying to benefit. It happens all the time."

— Yes, it does happen all the time. So why not over-include by including same sex couples ?


Ben: "There are enormous practical problems involved in identifying before the fact those OS couples that are absolutely, irrefutably incapable of procreation."

—- I agree. But like same sex couples, there are other examples of identifiable couples that absolutely, irrefutably incapable of procreation - such as couples where the woman is biologically past that capability.


Ben: "Discriminating against the rare OS couples who are totally and obviously infertile when they marry would amount to disability discrimination, which we try to avoid."

— I agree, we should try and avoid discrimination. So why would you discriminate against same sex couples who cannot procreate with each other but not discriminate against OS couples where the woman is clearly (and identifiably) unable to have children ?


Ben: "People can get drivers' licenses even if they don't intend to drive and in fact never drive. And they can get marriage licenses even if they don't intend to procreate. In both cases, it's about potential, not intent or actual future behavior."

— Gabriel has already addressed this. In addition, the analogy between a drivers license and marriage license is silly. A drivers license is meant to insure the public that the person is capable of driving for safety purposes. A marriage license is different on many different levels.


Ben: "There is a world of difference between mandating procreation by specific individuals and encouraging it generally. Encouraging != mandating."

—- I agree. I see nothing wrong with encouraging procreation or, more importantly, encouraging the taking on of a parental responsibility. But your argument is aimed at denying the right to marry based on the fact that procreation cannot occur. There is a world of difference between that argument and having the law generally encourage procreation. Ben's argument !=Encouraging.

Dan

Ben Bateman:

Ah, the good ol' infertility / don't-plan-to-procreate argument.
1) It's not exactly news that government programs can be over- or under-inclusive of the group they're trying to benefit. It happens all the time.
2) There are enormous practical problems involved in identifying before the fact those OS couples that are absolutely, irrefutably incapable of procreation.
3) Discriminating against the rare OS couples who are totally and obviously infertile when they marry would amount to disability discrimination, which we try to avoid.
4) People can get drivers' licenses even if they don't intend to drive and in fact never drive. And they can get marriage licenses even if they don't intend to procreate. In both cases, it's about potential, not intent or actual future behavior.

Yeah, that good ol' argument.

1. The mere fact that some other laws are under-inclusive for their claimed purposes is not a justification for making this one under-inclusive.

2. It may not be feasible to identify all infertile couples who apply for a marriage license, but many could be readily identified by methods no more costly or intrusive than existing procedures. First of all, you could simply ask them. Beyond that, you could check their medical records. In many cases, certain or near-certain infertility would be apparent from their ages. If your purpose in denying marriage to same-sex couples is to restrict marriage to fertile couples, it is irrational to ignore the much greater number of infertile opposite-sex couples than same-sex ones.

3. If the infertility is chosen (as in, say, vasectomy) it would hardly qualify as a disability. But if your interpretation of disability discrimination is that broad, then same-sex couples could claim that their inability to be attracted to someone with whom they could biologically procreate also constitutes a disability. In fact, Jonathan Rauch makes exactly that claim.

4. Why is marriage "about" the "potential" of a couple to procreate, rather than "about" whether they intend to, or whether they actually do so, or something else entirely, or a mixture of things? And if marriage is "about" the "potential" to procreate, infertile opposite-sex couples don't have that potential any more than same-sex ones do, so this claim undermines rather than supports your position that infertile opposite-couples should be allowed to marry.

Ben Bateman

Permissibility of Encouraging Procreation
Gabriel:
In your original post in this thread you said this: “the goal of getting more people to procreate is an impermissible legislative objective.”

Later you said this:
“So even if there was a plague, I would find forced procreation objectionable. Encouraging procreation would probably depend on the methods. Supporting those that decide to have or raise children, I think is not only acceptable, it is to be applauded.”

Is that a change in your view? Not that there’s anything wrong with changing your view, of course. Remember, we aren’t talking about forcing anyone to procreate. Suppose we’re offering, say, cash payments for every baby, or tax breaks for having children, because the plague has ravaged our population. Is that impermissible?

Constitutional Law Generally
I find this sentiment, which is common, utterly confusing:
"just because the prohibition against SSM fails to pass the rational basis test today, does not mean it would have always failed to pass such a test in the past."

What makes this confusing is that we’re talking about a constitutional requirement. In my lexicon, the Constitution is a document. It’s a finite set of words that serve as super-laws because a supermajority of the people voted for them. I don’t understand the idea that the meaning of the Constitution changes while the words within it do not. I know that it’s a common view, but that doesn’t make it right.

Suppose that you loan me $1000. You’re a careful man, so you want a promissory note to record the transaction. So you ask me to sign a document that reads: “Ben promises to pay Gabriel $1000 by January 1, 2004, with 12% interest compounded daily.”

The months fly, and just after Christmas you remind me about the debt. I don’t want to pay you the money back, so here’s what I say:

“Y’know, a lot of changes have happened in our society since I signed that note. We’ve had a presidential election and lots of interesting events in the court. Troubling economic news. And I’ve realized that, when I said I’d pay you a thousand dollars, I didn’t really mean that I’d pay you back a thousand dollars. That’s such a literalist interpretation! What it really means is that I have to pay you back $100, and I’ll do it on January 1, 2010 or whenever I find it convenient. Oh, and my buddy the judge here agrees with my interpretation.”

How would you respond to this? You’d call it absurd, of course. You might appeal or take political action to remove the corrupt judge. And you’d be right in doing so. In thinking through your arguments, this one might occur to you:

Why did you have me sign the promissory note? Lots of people borrow money on verbal promises all the time. The reason you had me sign a promissory note, the reason we created a written document to memorialize the transaction, was to prevent these kinds of nonsensical arguments. We write down agreements in order to prevent faulty memory and moral hazard from mischaracterizing what the agreement was when the parties agreed to it.

Now, if you want to adopt the British idea that the Constitution is an amorphous spirit of tradition and justice only loosely connected with historical documents, then go ahead. But if you want to claim that the Constitution is an actual finite set of words written down as a legal document, then I don’t see how you can claim that its meaning changed over time.

You’ve asked in the past whether I would have opposed Brown v. Board of Education. Yes, I would have. I think it was a matter for the Congress to address, which it did only a few years later in the Civil Rights Act of 1964.

The harm that decision did was not merely in diffuse damage to democracy. The harm was quite direct, in that the US Sup Ct, having had a taste of power, took another swipe at ‘fixing’ race relations with a disastrous series of forced bussing decisions in the late sixties. I had the good fortune of taking a class in law school that covered those decision in great detail. I still have the book around somewhere. So if you’re interested in the full story of judicial hubris on race and education, I’ll be happy to give you all the facts you can stand. But I’ll tell you right now, it’s a pretty ugly story. After you’ve heard it, you won’t be so proud of the decision that started the idea that courts should micro-manage school districts to achieve racial goals.

Also, I note that the court’s opposition to racial discrimination in education didn’t last very long. Today it tells us that the constitution permits racial discrimiation in education, at least for a few more years, as long as the discrimination favors the correct races. This finger-to-the-wind approach to constitutional law is the natural result of severing it from the actual written document.

As you probably know, in formal logic you can prove anything from a contradiction. If your premise is that constitutional law is an ever-changing set of rules based on an essentially fixed set of words, then constitutional law can be anything at all.

Infertility and Drivers’ Licenses
Mark and Dan:

Constitutional law does not forbid legislatures from doing things imperfectly. In issuing drivers’ licenses, does the state check for every conceivable reason that someone might be an unsafe driver? Do they check for mental stability, family history of epilepsy, and likelihood of developing narcolepsy? I don’t think so. All I recall is a vision exam, a written test, and maybe a driving test of a few minutes. And I think that the requirements would have been lower had I been eighteen instead of sixteen.

Why don’t they require full driver medical exams every six months? I don’t know. Maybe they should. Maybe some legislature will. It’s a balance of cost and intrusiveness versus efficiency. Write your legislators. But it’s not a constitutional issue.

Gabriel on this topic: “they must show they are capable of driving, though.”

It depends on what you mean by “capable of driving.” For adults in most states, I’m not sure that they ever have to get behind the wheel of a car. That’s a fact question, though. Check it if you like.

But even if every state requires that you successfully operate a car for a few minutes, that’s not really what we’re talking about, is it? We’re talking about whether someone will be a safe driver over the long term. On the every-law-must-be-a-perfect-fit theory, we should screen out people who have had whatever psychiatric conditions correlate to road rage, drunk driving, falling asleep at the wheel, and other behaviors that tend to cause wrecks. We need studies! We should withdraw licenses from people who get sick. We should scrutinize epileptics and narcoleptics because they might not take their medicine. If someone is at risk for being a bad driver, the state should test them more frequently, and demand medical records.

Oh, and in Texas we have a law that if you’re a minor and you’re caught smoking, then they’ll take away your driver’s license. As far as I know, tobacco use doesn’t correlate at all with driver safety. Does that prove that the rules for issuing drivers’ licenses are completely unrelated to driver safety?

(Whee! These arguments are fun and easy!)

To the battlements! Legislatures are not doing everything possible to identify safe drivers! It’s letting some bad drivers through, and it could be doing more! This proves that the rules for getting drivers’ licenses aren’t really related to driver safety at all! They’re really an evil plot to discriminate against the visually impaired!

You say that lots of couples are infertile, but the state only prevents the SS ones from marrying. The state could do more to screen out the infertile, but it tellingly chooses not to. This proves that marriage isn’t really about procreation at all. It’s really just an evil plot against gays.

I say that lots of people aren’t safe drivers, but the state only denies drivers’ licenses to those who are visually impaired. It could do more to screen out alcoholics, epileptics, narcoleptics, and those prone to panic attacks. But it tellingly chooses not to. This proves that drivers’ licenses aren’t really about driver safety at all. It’s really an evil plot against the visually impaired.

Join me in a march upon the Department of Motor Vehicles. Let’s demand that they stop this clearly unconstitutional practice! ;)

I’m having a bit of fun here, but I’m serious about the logic: It is not a constitutional issue if a state imperfectly accomplishes its objectives. The blind clearly can’t drive while other bad drivers get licenses. SS couples clearly can’t reproduce while other infertile couples get licenses. So what?

Galois

Permissibility of Encouraging Procreation

I'm sorry about the confusion, here. That's my fault. I think it depends on what we mean by "encouraging" procreation. I consider tax breaks or payments (in the form of tax credits) not as encouraging procreation, but recognizing the added costs of raising a child. So the government is helping to support these costs.
The idea is not incentives for childbirth, but rather helping people to take care of their families. I'm all for helping people to take care of their families. Some might consider this "encouraging" child raising, I would not, but that is why I said it depended on method. Note that I would also oppose such tax credits being withheld from adopted children.

Constitutional Law Generally

You say that you find the idea that something could become unconstitutional confusing, but I gave an explanation in the post and you didn't respond to it. I gave the example of how giving women the right to vote eliminates one possible reason for requiring opposite-sex marriage. Legislation might originate trying to solve a pressing problem, but once that problem disappears the legislation might no longer be justified. In our specific case the equal protection amendment clauses of the Mass constitution have always required that the law treat similarly situated people similarly. Because the role of gender in the law has changed, same-sex couples are now similarly situated to opposite-sex couples. In the case of Brown, it was a matter of new evidence coming to light. Whereas it was thought segregated schools could be equal, the court believed new evidence supported the claim that they were inherently unequal. But even if you oppose the numerous civil rights cases from the 40's, 50's, and 60's they are still well settled law and the Mass SJC can hardly be blamed for relying on them.

Infertility and Drivers’ Licenses

I'm not aware of any state that will grant a driver's license to someone who's never been behind the wheel of a car. You generally need either (1) a previous license (2) a driver's test or (3) have taken a driver's education course which included driving. In any case we can agree that the state does not want people who cannot drive to have driver's licenses. As you note, it might not do everything within its power to achieve this goal, but it is the goal.

I have already mentioned that if the state had the goal of keeping all infertile couples from marrying, it would not (under rational basis) to do everything within its power to achieve that goal. Thus denying licenses to same-sex couples could pass the rational basis test, if one believed this was a conceivable goal. But even you admitted that the state doesn't really want to stop all infertile couples from marrying. It's not that it is too costly or ineffective to stop 70 year old couples from marrying, it is that there is no problem with 70 year old couples marrying. So your analogy falls apart completely. (Fun and easy!)


Ben Bateman

Gabriel:
Sorry to let this thread go so long. Work has been busy.

Permissibility of Encouraging Procreation
"I consider tax breaks or payments (in the form of tax credits) not as encouraging procreation, but recognizing the added costs of raising a child. So the government is helping to support these costs."

That's probably the right to interpret child-oriented incentives currently in the tax code. No argument there.

But suppose Al Qaeda detonates a dozen nukes in our largest cities, and suddenly our population is way, way down, especially among those in childbearing years. A bill is introduced to specifically encourage the production of children by those few young women left, with a bonus if they're married to the fathers. There's no requirement that they actually raise the child. Would you hold that law unconstitutional as pursuing an illegitimate objective?

Constitutional Law Generally
We have different ideas of what would make a law illegitimate. You take it to mean that an objective isn’t important any more due to changes in society. I take it in more of a moral and timeless sense.

But taking your view for purposes of argument, if circumstances do change to render an objective unimportant, why would the courts be the proper place to change those laws? Are they endowed with special awareness of changes in society? Wouldn’t the citizenry, though its elected representatives, be in a better position to observe those changes and respond to them? Who appointed the courts as monitors of social trends?

And even if the courts accurately observe a social trend, what are they supposed to do about it? Is it a good trend or a bad trend? Will the trend continue or fade away? Will it overcome a counter-trend? If the trend survives, does that demonstrate that it was a good trend? Sandra O’Conner says that racial discrimination in education will be OK for another 25 years or so, and then the Constitution will forbid it. How does she know in the next 25 years?

Courts have no business trying to answer the questions about societal changes in gender roles. Legislatures or the people themselves are supposed to set policy goals through legislation or constitutions. Courts are supposed to interpret the law consistent with those goals. Despite their pretentions, judges are not trained, qualified, or well-situated to measure and react to social trends. Legislatures are good at it; they’re designed to do it.

It seems I’m not alone in taking a skeptical view of Brown v Board of Education. Two black scholars who lived through that period seem to share my opinion here and here.

Infertility and Drivers’ Licenses
“I have already mentioned that if the state had the goal of keeping all infertile couples from marrying, it would not (under rational basis) [be required] to do everything within its power to achieve that goal. Thus denying licenses to same-sex couples could pass the rational basis test, if one believed this was a conceivable goal. But even you admitted that the state doesn't really want to stop all infertile couples from marrying. It's not that it is too costly or ineffective to stop 70 year old couples from marrying, it is that there is no problem with 70 year old couples marrying. So your analogy falls apart completely.”

You’re forgetting the reason that I wouldn’t object to infertile couples marrying: We have other values that intersect the main goal. The same is true with drivers’ licenses. It’s been proposed that a medical test for infertility would be pretty simple and cheap. The same is true for driving. The state could ask a few nosy questions about psychiatric history, drug use, and disposition to certain illnesses. But I’m pretty sure it doesn’t, because we have countervailing policies, e.g.: We don’t like the government nosing into people’s medical records, and we don’t like government evaluating people on their tendencies rather than their actions.

We’re also losing perspective on this: The infertility argument purports to demonstrate that marriage isn’t really about procreation because it doesn’t perfectly achieve that goal. I’m not sure if you agree with this argument, Gabriel, but don’t lose sight of the fact that we aren’t arguing about SSM generally. You’ve already said—I think—that you view encouraging procreation as an illegitimate governmental objective. If that’s your position, then it shouldn’t matter to you whether marriage is about procreation, because you don’t think procreation is important.

Galois

But suppose Al Qaeda detonates a dozen nukes in our largest cities...A bill is introduced to specifically encourage the production of children...Would you hold that law unconstitutional as pursuing an illegitimate objective?

There's a resaon courts can only decide on cases directly in front of them, and generally only with two adversarial parties. It's hard to rule on a hypothetical, and you should be able to read a brief from each side presenting their case. My initial reaction, though, is yes it would still be pursuing an illegitimate governmental objective.

You take it to mean that an objective isn’t important any more due to changes in society.

What is much more significant is changes in the law which themselves come from changes in society, but even changes in society could effect things as well. For example I'd have no problem with a judge noting that people more often use cars and buses for transportation, and not so much horses anymore.

Wouldn’t the citizenry, though its elected representatives, be in a better position to observe those changes and respond to them? Who appointed the courts as monitors of social trends?

Well every political body needs to be aware of and respond to social changes. The courts, though, were generally assigned by various Constitutions to be the judicial body. They need to make judgements, including judging whether laws are constitutional. But as I said, I'm not just talking about social trends, but specific changes in the law. The fact that women can vote and that married women can own property is not just a social trend, it is a significant change in the law.

Courts have no business trying to answer the questions about societal changes in gender roles. Legislatures or the people themselves are supposed to set policy goals through legislation or constitutions.

Yes, but the courts must react to those changes.

It seems I’m not alone in taking a skeptical view of Brown v Board of Education

No, you're not. But it shows that we've been living under a "judicial tyranny" for 50 years, probably for about 200 years. I think most people for all their gripes about specific cases are generally okay with the system as a whole.

The infertility argument purports to demonstrate that marriage isn’t really about procreation because it doesn’t perfectly achieve that goal.

No, it purports to demonstrate that procreation is not the sine qua non of marriage. That marriage can exists without it. It's worth asking, though, what is the countervailing interest that allows elderly couples or couples known to be infertile to marry?

If that’s your position, then it shouldn’t matter to you whether marriage is about procreation, because you don’t think procreation is important.

I didn't say it wasn't important. I said it wasn't a legitimate government objective. For example, I think prayer is extremely important, but that is not acceptable for there to be government programs designed to get people to pray.


Ben Bateman

Gabriel, in your mind, what makes procreation an illegitimate governmental objective? Or more broadly, what would make any governmental objective legitimate or illegitimate? I'm really not following your thinking here. Maybe you have some premises I don't know about.

"[The infertility argument] purports to demonstrate that procreation is not the sine qua non of marriage. That marriage can exist without it."

That's a pretty harsh test. Can you describe any legal status or area of law that could meet it? I can think of lots of areas of law that have pretty obvious primary purposes, and yet they serve lots of other purposes and nobody gets upset about it. That's just the nature of law. To stick with the generally familiar example, unsafe drivers can certainly get drivers' licenses.

"It's worth asking, though, what is the countervailing interest that allows elderly couples or couples known to be infertile to marry?"

We already did this one, remember? The legal system involves lots of opposing goals all the time:

It's a bad idea to make big legal conclusions hinge on medical conclusions. DNA evidence in criminal trials is still controversial, last I checked.

We try to afford people medical privacy. In fact, medical privacy is a big mania right now with HIPAA, if you're familiar with that.

We try to respect our elders, under the idea that they've accumulated wisdom in their many years. We give them benefits for living a long time instead of punishing them.

Infertility is still a very uncertain thing, even under the most recent technology. You can't ask someone to swear that they might be fertile, because in most cases they won't know, and even their doctor's won't know. Sometimes even vasectomies fail, or can be reversed.

(Looking at the list so far, these reasons apply equally well to explain why we issue drivers' licenses to people who might have medical conditions that would make them dangerous drivers.)

The law changes slowly. Technology is changing very rapidly. The law will always lag behind technology, which is as it should be. The struggle in most areas of law is to get it right, to establish a system of rules that will work as a practical matter while making happy as many sides of the debate as possible.

Galois

Gabriel, in your mind, what makes procreation an illegitimate governmental objective?

Roe v. Wade Agree or disagree with Roe, it was binding law on the Massachusetts SJC.

To stick with the generally familiar example, unsafe drivers can certainly get drivers' licenses.

I really don't get this analogy. Are gays unsafe procreators? And if somehow they are, doesn't your analogy show they should still get marriage licenses?

Although I don't personally agree that procreation is the primary purpose of marriage, I will suppose for the moment that it is. As long as there are other purposes there is no harm in allowing gays to marry.

It's a bad idea to make big legal conclusions hinge on medical conclusions.

Why is it a medical conclusion that an eighty year old woman can't conceive, but not a medical conclusion that a man can't conceive?

We try to respect our elders, under the idea that they've accumulated wisdom in their many years. We give them benefits for living a long time instead of punishing them.

But it's okay to disrespect and punish gays.

Oh, and by the way, Massachusetts requires blood tests for marriage licenses. I don't think that violates HIPAA. (My wife worked on HIPAA compliance for over a year, so I'm familiar with it).

lucia

>>Ben:It's a bad idea to make big legal conclusions hinge on medical conclusions. DNA evidence in criminal trials is still controversial, last I checked

I thought we constantly considered medical evidence, and other expert testimony, when forming legal conclusions. For example, if someone has no brain activity, they are dead. This would be a "big" legal conclusion because we apply it to all cases, not just one person, right? Medical examiner's evidence is used in criminal trials routinely. All evidence, even eye witness testimony, is controversial in some sense!

>>BenInfertility is still a very uncertain thing, even under the most recent technology.
According to the CDC more than 1/4 of women have hysterectomies by the age of 60. The infertility of these women is certain.

We try to afford people medical privacy. In fact, medical privacy is a big mania right now with HIPAA, if you're familiar with that.
Yes; I am aware of this. I am a big supporter of our right to privacy in many spheres, and I am always happy when SCOTUS upholds our right to privacy.

Ben Bateman

Gabriel:

I thought Roe v Wade was about privacy. We're talking about general incentives to responsible procreation, remember?

"I really don't get [the driver's license] analogy."

I went through it pretty thoroughly. Here's a cut and paste from earlier in this thread:

You say that lots of couples are infertile, but the state only prevents the SS ones from marrying. The state could do more to screen out the infertile, but it tellingly chooses not to. This proves that marriage isn’t really about procreation at all. It’s really just an evil plot against gays.

I say that lots of people aren’t safe drivers, but the state only denies drivers’ licenses to those who are visually impaired. It could do more to screen out alcoholics, epileptics, narcoleptics, and those prone to panic attacks. But it tellingly chooses not to. This proves that drivers’ licenses aren’t really about driver safety at all. It’s really an evil plot against the visually impaired.

Which part is unclear, Gabriel? If you don't like my statement of the infertility argument, maybe you could state your favorite version of it, and then I'll give you the driver's license parallel.

"Although I don't personally agree that procreation is the primary purpose of marriage, I will suppose for the moment that it is. As long as there are other purposes there is no harm in allowing gays to marry."

No harm at all? So all these people are just upset about nothing?

You think that there's no harm, but that's just your opinion. You can take your opinion to the legislature or your fellow voters. But if you want to deny us democracy, you need something more than your opinion.

There could be harm from SSM. That's all that should matter for constitutional law. The rest is for the legislature.
Me: "We try to respect our elders."
Gabriel: "But it's okay to disrespect and punish gays."

That's a pretty weak comparison. People don't choose to get old, just as they don't choose their race.

And don't lapse back into the "not just wrong, but evil" attitude. You wish that opposition to SSM was all about people who hate gays. But it's not. That much should be clear to you by now.

Refusing to elevate someone's pleasure to a vital moral principle isn't punishment or disrespect. It's just a recognition that some things are more important than others. I'm sure that the pleasures gays experience are very nice and very important to them. But those pleasures are not as important as the production of the next generation of citizens.

"Why is it a medical conclusion that an eighty year old woman can't conceive, but not a medical conclusion that a man can't conceive?"
Both are medical conclusions. I'm not following your thinking here.

Avoiding medical conclusions doesn't mean that we don't make them. They're expensive and often difficult, but sometimes they're worthwhile, and sometimes they're unavoidable. Some states do blood tests on marriage applicants for public health reasons. We need a medical test for death; there's no getting around it.

On potential fertility, we have pretty good heuristic: Most opposite-sex couples can procreate. So there's no necessity for one, and the cost outweighs the potential benefit.

Galois

I thought Roe v Wade was about privacy. We're talking about general incentives to responsible procreation, remember?

Roe (along with Griswold) said that the decision on whether to procreate is a private personal decision, not a government decision. That's why I said it depends on what you mean by "incentives". To deny somebody the right to marry because they choose not to procreate seems impermissible in that light.

It could do more to screen out alcoholics, epileptics, narcoleptics, and those prone to panic attacks. But it tellingly chooses not to.

The government might decide that a visually impaired driver is more dangerous than an alcoholic. Are you saying that same-sex couples are less procreative than 80-year-old couples? If the government believed that these things made a driver more unsafe than the visually impaired and chose to let them drive anyway, then yes I would consider that improper discrimination.

No harm at all? So all these people are just upset about nothing?

You seem to be upset because of some imagined tyranny. That has nothing to do with same-sex marriage. It would seem that you would be just as upset if the court ruled we couldn't have racially segregated schools.

That's a pretty weak comparison. People don't choose to get old, just as they don't choose their race.

And they don't choose their sex. They do choose their spouse, though. You would punish and disrespect someone for choosing a spouse of a certain sex. I don't think that's right.

Refusing to elevate someone's pleasure to a vital moral principle isn't punishment or disrespect.

But you just said refusing to allow the elderly to marry would be punishing and disrespecting them. Why wouldn't it just be a matter of recognizing that their relationships aren't as important (no disrespect meant to them, of course)?

I'd say it's a little more intrusive to check for a penis than to ask if a woman has ever had a hysterectomy or to ask her her age. But then that's just my opinion.

Ben Bateman

"Are you saying that same-sex couples are less procreative than 80-year-old couples?"

Yes. Men in their eighties can still sire children. And for centuries English law has allowed for the possibility of an eighty-year-old woman giving birth.

Gabriel: "there is no harm in allowing gays to marry."

Me: "No harm at all? So all these people are just upset about nothing?"

Gabriel: "You seem to be upset because of some imagined tyranny. That has nothing to do with same-sex marriage."

I'm upset about a lot of types of harm from SSM. Stating a belief in one doesn't imply that I don't believe in the others.

"Imagined tyranny?" People vote on a law saying that it would be ridiculous to that law to be given interpretation X. Then the courts give it interpretation X. That's not imagined tyrrany. That's the real thing.

"But you just said refusing to allow the elderly to marry would be punishing and disrespecting them. Why wouldn't it just be a matter of recognizing that their relationships aren't as important (no disrespect meant to them, of course)?"

People don't choose to grow old, or to be disabled. They generally don't have hysterectomies for fun, either. But they do choose whom to marry.

Maybe people don't choose who they fall in love with, which makes that love equivalent to other involuntary states. That seems to be a major premise in the pro-SSM mind. It seems to be the crux of the Loving v Virginia argument. Am I right about that?

Galois

And for centuries English law has allowed for the possibility of an eighty-year-old woman giving birth.

And in those centuries how often has that occurred?

That seems to be a major premise in the pro-SSM mind. It seems to be the crux of the Loving v Virginia argument. Am I right about that?

I don't think so, although I've read Perez more frequently and more recently than Loving. The crux of Perez was twofold. One, part of the right to marry was the right to chose one's spouse. So the argument that nobody was being denied the ability to marry was rejected. The other part was that as an individual Perez was denied the right to marry her choice of spouse because of her race. Had she been of a different race, she would have not been denied a license. The argument that people of other races were similarly restricted did not escape the statutes from scrutiny. Although such a parallel restriction would have been acceptable at the time for bathrrooms or train cars, it was not acceptable for one's choice of spouse because human beings are not interchangable.

In general, to restrict one's choice because of an innate characteristic does not mean one is not discriminating on the basis of that characteristic. For example, if we said women could be nurses but not doctors, and men vice versa, that is still gender discrimination even though it only affects women who would choose to be doctors and men who would choose to be nurses. It's not the choice that is involunatary, it is being denied the choice based on one's involuntary gender that is unjust.

lucia

Ben:>>"Imagined tyranny?" People vote on a law saying that it would be ridiculous to that law to be given interpretation X. Then the courts give it interpretation X. That's not imagined tyrrany. That's the real thing.

But people voted on the law having been told that it might very well be given interpretation X. Then it did. That's not tyranny. That's the courts interpreting the law exactly as some said it should be interpreted, and exactly as voters were told it would be.

No, I don't think the crux of the Loving vs. Virginia argument, or the same sex marriage argument is precisely "you can't choose who you fall in love with".

However, a portion of the argument is: If you wish to marry, the choice of spouse should be yours and not the state's.

Ben Bateman

Gabriel (on eighty-year-old women giving birth): “And in those centuries how often has that occurred?”

I bet it's happened more often than women giving http://news.myway.com/odd/article/id/396119|oddlyenough|04-07-2004::13:52|reuters.html”>themselves caesarian sections with both the mother and baby surviving. The world is a big, unpredictable place.

Besides, it can be difficult to know someone's age with certainty. Some people may not even be sure of their own age e.g. orphans and amnesia victims. Denying marriage based on age would just be an invitation to lie.

Gabriel: “It's not the choice that is involunatary, it is being denied the choice based on one's involuntary gender that is unjust.”

So is your support for SSM the result of taking sex nondiscrimination to the extreme? Is that really a major motivation for you?

Lucia: “But people voted on the law having been told that it might very well be given interpretation X. Then it did. That's not tyranny. That's the courts interpreting the law exactly as some said it should be interpreted, and exactly as voters were told it would be.”

We're going in circles here. People get told all sorts of things in considering how to vote. What matters is the intent of those who vote for it.

Suppose that we live in the same state, and there's a state constitutional amendment to allow SSM. I warn you that the courts will use that amendment to permit, among other things, polygamy. You don't believe me and vote for it anyway. Twenty years later, the court uses the amendment to mandate polygamy. Is that somehow your fault for disregarding what you thought to be a ridiculous warning?

Lucia: “a portion of the argument is: If you wish to marry, the choice of spouse should be yours and not the state's.”

That's a great argument. In fact, it's so great that it demonstrates why the government should legalize and legitimize polygamy, incest, pedophilia, and bestiality. Don't let the state limit your marriage choices!

BTW Lucia, you might want to try installing Mozilla. It's an open source free browser that works pretty darn well. I just started using it myself. I mention it because you were having trouble viewing long threads.

Jake Squid

Hey, I'm all for legalizing polygamy between consenting adults. I'm definitely in the minority here, but let me explain the difference between SSM & polygamy on the one hand and incest, pedophilia, and bestiality on the other.

SSM & polygamy can take place between consenting ADULTS. There can be no pedophilia or bestiality between consenting adults, BY DEFINITION. See, pedophilia involves a child - someone incapable of consent by our definitions. And bestiality? Well, that involves an ANIMAL - something incapable of consent as we define it. The argument against incest, as I see it, is that incest almost always involves pedophilia. But maybe somebody else has a better line of reasoning than I do. Besides, I thought that Ben had made it clear that he supports pedophilia in certain situations. If I have misunderstood that, I apologize.

lucia

Ben,
The trouble isn't all long threads-- it's that particular one. I can can't read it using Netscape. I can read it using IE. However, in general, IE displays the page in a really ugly way, that I find difficult to read.

Jake-- Ben and I seem to have different definitions of pedophilia. I think the 14 year old girls should not marry and have sex under any circumstances. I consider girls of this age marrying adult men pedophilia. Ben's response seemed to have suggested that he thinks it might be ok for her to marry if she was already pregnant.

Jake Squid

Lucia,

I have trouble distinguishing why a 35 yr old man having sex w/ a 14 yr old girl is different from marital sex between a pregnant 14 yr old & her 35 yr old husband. Maybe Ben thinks that a 14 yr old is too old to be considered the victim of pedophilia? Maybe you can ask Ben to explain?

But just as Ben has his belief (faith) about the purpose of marriage, I have my belief (faith) about what pedophilia is. And by my definition, Ben advocates pedophilia in (at least) certain circumstances. I take a strong stand against his position in advocating what I consider to be pedophilia.

Galois

I bet it's [an eighty year old woman giving birth] happened more often than women giving themselves caesarian sections with both the mother and baby surviving.

I'll take you up on that bet. You already have one documented case of the latter, but none of the former.

So is your support for SSM the result of taking sex nondiscrimination to the extreme? Is that really a major motivation for you?

Yes it is. Although I wouldn't say I'm taking sex nondiscrimination to the extreme, rather I'd say this is an extreme case of sex discrimination. Hillary cannot marry Julie solely because she is a woman. It's not just more difficult for her to marry Julie, but completely barred by the state. And there's no "equal substitute" becuase as the court said in Perez, human beings are not as interchangable as train parts.


The comments to this entry are closed.