Changing the Laws of Marriage

Lately, I've been thinking about two seemingly unrelated arguments against same-sex marriage.  One is that we shouldn't change the laws of marriage, which apply to the heterosexual majority, for the sake of accomodating the homosexual minority.  The other is that if we are going to allow same-sex couples to marry, why not allow polygamy or incestuous marriage.  My most detailed response to the latter argument came last February in a series of two posts and a follow-up.  I just wanted to emphasize one point that might have gotten lost in all of that. And it relates to the first argument above. 

Same-sex marriage, at least in Masachusetts and several other states, would not change the laws which govern the marital relationship.  Same-sex couples would be subjected to the exact same laws that currently apply to opposite-sex couples.  Likewise opposite-sex couples who marry would continue to have the exact same laws apply.  For example, should same-sex marriage become legal in Connecticut, the laws which govern my marriage to my wife will not change.  One can argue--and we certainly do--about the cultural impact of allowing SSM, but in terms of the law the only change would be which couples may enter into marriage, not the legal consequences of marriage.  Polygamy, on the other hand, changes a law which governs marriage and it changes it for everybody.  Whereas the law now says a married person may not remarry without obtaining a divorce, it would no longer require that.  Although this is not the only problem with polygamy, it is a serious one.  I believe it would have a  significant  detrimental impact on the marital relationship.  Likewise no-fault divorce changed the laws which govern the marriage relationship itself.  The rules for what may end the marriage changed, and this quite naturally had an impact on the marital relationship.  Again since the laws changed for everybody, its potential effect reached everybody.  Even those that don't get a divorce are aware that divorce could happen even if they do nothing wrong. 

In some sense, changing the prohibitions with regards to incestuous marriage is more like the change in same-sex prohibitions in that, with regards to marriage, it is a change of who may enter into the relationship and not a change of the laws which govern the consequences of marriage.  But such a move does indeed change the laws which govern those other kinship relations.  So just as legalized polygamy and no-fault divorce could impact the marital relationship, legalized incestuous marriage could impact other family relationships.  In this respect alone I see a huge difference between same-sex marriage on the one hand and no-fault divorce, polgyamy, or incestuous marriage on the other.  And, of course, there are other differences as well.   

Comments

[Ben Bateman]

Gabriel,

Rules against SSM, incest, and polygamy are all limits on whom you may marry.

I agree that incest is logically closer to SSM than polygamy for two reasons. First, it prevents an individual from marrying, rather than a couple. Second, as you say, it could change the rules of existing marriages.

But the point on incest I find utterly baffling. The point of anti-incest laws is to prevent birth defects. But same-sex couples can't produce children. So if we must have SSM, why shouldn't a man be able to marry his brother?

[lucia]

Ben,
Do incest laws exist to prevent birth defects?

I think Gabriel's suggestion that incest exist to promote or protect kinship relationships makes at least as much sense based on the history of those laws and existing laws.

Incest laws, such as those listed in Leviticus, predate Mendel, who was born in 1822 and did his work a bit later.

Quite a few existing and historical laws prohibit marriages between step-parents or step-children. Other states follow the genetic model. If you read "War and Peace" you will see that Russian Orthodox incest laws prohibited you from marrying your inlaws.

I have to say that, had I been a 17 year old girl with a step-father, I would have been somewhat alarmed had my step-father begun "courting" me in anticipation of persuading me to marry him when I turned 18. Examples similar to this one explains why the kinship based incest prohibition make sense in terms of family dynamics.

This page supposedly describes which states follow the "western state- birth defect" model for incest laws, vs. the "biblical kinship model".

Interestingly, in Illinois, where I live, you can marry your cousin, provided you are both over 50 years old. However, you cannot marry your sibling at any age, even if you can prove yourself completely infertile, as I am.

This would suggest that both the "kinship" and "genetic" ideas are involved in Illinois's laws. If only genetics mattered, not only should two brothers be permitted to marry, but I should be permitted to marry my brother, father, uncle or anyone. I am not permitted to do so.

(BTW, the thought of marrying my brother, father, or uncle, is one I find repulsive. So, you won't ever see me going to court to sue for that right.)

[Galois]

If I believed that incest laws were only about preventing birth defects then I would see no reason to prevent brothers from marrying. Or a brother and sister if one were infertile, or a brother and sister if the sister were over sixty, or a brother and sister if one were adopted, etc.

In fact if I believed that incest laws were only about preventing birth defects I wouldn't have them at all. Incest doesn't cause birth defects, it just makes it more likely for recessive genes to appear and many birth defects are recessive. Nor do we don't prevent people with congenital diseases from marrying.

Fortuantely, as Lucia noted, I have made it quite clear in a number of posts here that I think there are other reasons besides birth defects to have incest prohibitions. These reasons apply to all of the above sibling categories. As she noted we didn't even know about genetics until the 19th century, but had incest prohibitions long before then.

[Ben Bateman]

As with marriage and infertility, laws against incest may reflect different goals and principles, but that doesn't mean that there isn't a primary principle behind incest.

People understood that incest was a bad idea long before we had Mendelian genetics. In fact, many kinds of animals "knew" that incest was a bad idea long before there were people. Google "incest avoidance" and you'll find that field biologists have long observed an aversion to incest in all sorts of sexually reproducing species. Some researchers have concluded that the degree of incest avoidance correlates pretty well with the degree of kinship, so that an animal's resistance to mating with its parent is twice as strong as its resistance to mating with a sibling, and so forth.

So I think it's pretty obvious that genetics is the primary reason for laws against incest, though other principles probably affect those laws. Perhaps some states extended the idea of incest to adoptions out of concern for family relationships, out of loyalty to scripture, or even with the idea that a significant proportion of adoptions would be men adopting their illegitimate children.

At the risk of repetition: The fact that some incest laws extend to non-genetic family members doesn't prove that incest law isn't primarily about genetics, just as the fact that the infertile may marry doesn't prove that marriage is not primarily about procreation.

Both Gabriel and Lucia say that they would oppose incest among same-sex couples. Lucia says that she finds the thought of marrying a male relative repulsive. I assume that would extend to the thought of marrying a female relative.

This intrigues me as a political matter. I can't find a search function on this site, so I'm not sure what Gabriel's reasons are for opposing incest among same-sex couples. But whatever those reasons are, I doubt that a majority of Americans would find them as compelling as the reasons for opposing SSM. So even though you oppose same-sex incest, do you really think that there is a chance that it won't become law within a few years after SSM becomes law?

To put the point more broadly, the elites who favor the destruction of all morally based legal constraints on behavior are close to radically redefining a basic institution of civilization without so much as a democratic vote. If they succeed in demolishing what remains of that centuries-old institution, do you really think that your personal sense of ickiness is going to stop them from eliminating the rules that you think ought to be in place, such as laws against incest and polygamy?

Put another way, if the elites succeed in changing the law to contradict the moral beliefs of a solid majority of Americans, don't you see that your moral beliefs won't be safe either?

To catch a glimpse of the future after SSM, try this site: http://www.bway.net/nambla.org/

[Galois]

As with marriage and infertility, laws against incest may reflect different goals and principles, but that doesn't mean that there isn't a primary principle behind incest.

Yes, and while I seem to often disagree with you about the primary principles in these cases, it's not that relevant. As long we recognize that there are multiple interests, there is no problem unless a conflict of interests arises. So for example, focusing on this thread, since forbidding brothers from marriage does not itself increase the chance of birth defects--except in so far as not giving birth reduces the chances--the other reasons for banning sibling marriage still apply. It doesn't matter whether you think the other reasons are primary or secondary.

I can't find a search function on this site, so I'm not sure what Gabriel's reasons are for opposing incest among same-sex couples.

Yes I would like a search function, but I'm afraid I don't know how to add it. If anybody reading this wants to help me with that, please do. In any case my reasons are covered in the body of this post, and in more detail in the earlier posts linked to in the body of this post. The short of it is that I beleive it would interfere with the sibling relationship and thus harm families. They are the same reasons I would oppose brother-sister incest, even in cases where the siblings can't conceive or genetically distant.

So even though you oppose same-sex incest, do you really think that there is a chance that it won't become law within a few years after SSM becomes law?

Not only do I think there's a chance it won't become law within a few years, I think there's practically no chance that legalized incest would become law in even the fairly distant future. So how about a proposition? SSM will become legal in Massachusetts next month. If after a year same-sex incest is still illegal you donate $10 to HRC. If after two years it is still illegal you donate $20 to HRC, and so on for up to ten years (and a $100 donation). If at any point during that time, Massachusetts legalizes same-sex incest I will donate $100 to an organization of your choice. (So 4 years is the "break even" point). I would have no way of verifying, so it would all be on our honor.

Put another way, if the elites succeed in changing the law to contradict the moral beliefs of a solid majority of Americans, don't you see that your moral beliefs won't be safe either?

Well the law already fails to conform to my moral belifs, nor do I think it should conform to them. The belief that same-sex marriage is per se immoral is not held by what I would consider a solid majority (say three quarters). And prohibiting SSM comes into conflict with some other guiding principles of our society, like for example we should be judged based on who we are as individuals and not by our gender.

And your last sentence is on par with "To catch a glimpse of the future if we don't legalize SSM, try this site".

[lucia]

Lucia says that she finds the thought of marrying a male relative repulsive. I assume that would extend to the thought of marrying a female relative.

I think you are assuming that I might find my father, brother or Uncles attractive if they were not related to me. Although Uncle Bill was, literally, Steve McQueen's body double in a movie, and has aged relatively well, I'm afraid I do not "go" for 70 year old men. (He will be one tomorrow.)

I also find the thought of marrying the toothless old man at the gym repulsive. Yes.. I would find the thought of marrying the toothless old woman at the gym repulsive also.

My neighbors, some guests, my husband and I once had a discussion of the relative attractiveness of men with lots of body hair. (This discussion arose because we were examining a swimsuit catalog for tan through bathing suits.)

Betsy was astonished to learn that I thought body hair extending to completely cover a man's back was repulsive. She insisted that body hair was "hot", and thought no body hair repulsive.

Such is repulsion and attraction! One person's "ick" is another person "yum".

So
do you really think that your personal sense of ickiness is going to stop them from eliminating the rules

I do not consider the fact that I find something "icky" good basis prohibiting marriage.

[lucia]

Ben,

I would guess it unlikely that all laws could be made to conform entirely to both Gabriel's and my moral beliefs. My guess is based on the fact that Gabriel has a "religion" category for his blogs. Having clicked, and read, I am under the impression that he is devout.

Amazingly enough, so far, Gabriel and I seem to have fairly similar views on the basis for good law. However, I am certain we will, eventually, find some differences of opinion on something major.

[Galois]

Lucia,

Good points. I'm sure just as there are plenty with which we agree, there is plenty with which we disagree as well. At some point down the road I'm hoping to post on such issues as "moral relativism vs. pluralism", and "what role should morality play in the law".

Some might be surprised that I do feel morality should (and does) play a key role in the law and our decisions of what the law should be. As I believe in pluralism, though, I don't believe the law should in all cases be based entirely on the majority view of what is moral. Part of that stems from a desire for individual freedoms and the principle of respect for the minority. Part of it, though, is that there simply is no majority view of what is moral. If one were to try to elaborate such a view from a majority vote on a case-by-case basis it would be filled with self-contradiction. That is not because of individuals holding contradicting views (although that occurs as well, myself included), but rather a well known (and proven) problem of social decision making.

[Ben Bateman]

Gabriel: "Well the law already fails to conform to my moral belifs, nor do I think it should conform to them."

Should your moral beliefs have any effect on the law, or should you sit quietly and keep your morals to yourself while somebody else tells you what the law will be?

Lucia: "I do not consider the fact that I find something "icky" good basis prohibiting marriage."

Then why do you oppose polygamy or gay incest? What's the difference? Isn't that just another arbitrary moral view that you want to impose on people to prevent them from having their fun?

Gabriel, you misunderstood my link to the NAMBLA site. I wasn't just taking a rhetorical cheap shot. If you actually read the page, you will see that the pedophiles are already making many of the same arguments that SSM supporters are.

Personally, I think their logic holds. I don't see any rational way to allow SSM but forbid polygamy, gay incest, pedophilia, bestiality, and all sorts of other sexual practices.

The spirit behind the SSM movement is that one person's method of sexual gratification is just as good as another. If Tom prefers to have sex with Steve instead of Mary, then we should treat his relationship with Steve exactly as we would his relationship with Mary, because it doesn't matter how he likes to have sex. Amazingly, the fact that he might have a baby with Mary and not Steve is considered irrelevant. The theme of the SSM movement is that procreation doesn't matter.

The trouble with that logic is that there is no stopping it. If Tom likes to have sex with his brother Bob, who are we to frown on that? You feel that it wouldn't be good for their sibling relationship. So what? Who are you to say what their relationship ought to be? We've been hearing for years about the redefinition of the family, how any group of people that calls itself a family should be treated like one. Steve and Bob are just innovators in the brave new world of creative family relationships.

In fact, we can put together some cute little anecdotes about how happy Tom and Bob are together, and how the fact that they're brothers only makes their relationship more special. Together they're raising Bob's daughter from a prior marriage, and she is being denied the benefits of her two daddies being married.

Tom and Bob aren't some weird monsters from another planet. They're ordinary folks, just like you and me! Their marriage won't hurt your marriage, so why should you care if they marry? They just want better health insurance for the little girl. They just want to be free to love and live the way they choose. You aren't going to deny them that, are you?

(If I've missed any of the major pro-SSM arguments, please point them out and I'll happily turn them into pro-gay-incest arguments. Out of a sense of decorum, I've left out the part of this argument that implies that if you don't think that Tom and Bob should be able to marry, then you're a bigoted reactionary troglodyte who probably wants to put us all under Islamic law. But the real argument would include that part as well.)

If Tom wants to have sex with three women at once, or with eight-year-old Timmy, or with Bessie the cow, who are we to say that's wrong as long as it's all consensual? Why shouldn't a man be free to love the way he wants, free from government interference and societal pressure?

I'm not saying this to be sarcastic or mean. I believe it quite literally and seriously: The only major logical distinction I can see between different consensual sexual practices and relationships is between those that are procreative and those that are not. Everything else is just a matter of preference.

If SSM succeeds in establishing the principle that there is no rational basis for distinguishing between procreative and nonprocreative sex, then it will open the way for the legitimization for every consensual sexual practice you can think of.

If you think that the zeitgeist will be satisfied with SSM, you're just fooling yourself. It wasn't satisfied with no-fault divorce. It didn't care about the resulting epidemic of promiscuity, divorce, and children raised in single-parent homes. It wasn't satisfied with nondiscrimination against homosexuals. It won't be satisfied with SSM. NAMBLA is waiting in the wings with the same arguments and tactics.

[Galois]

Should your moral beliefs have any effect on the law, or should you sit quietly and keep your morals to yourself while somebody else tells you what the law will be?

This is a complex issue that I hope to deal with in the coming weeks. In short, my moral beliefs do effect what I push for in the law. For example, it is my moral beliefs that are behind my desire for same-sex marriage. But just because I find something morally wrong, doesn't mean I necessarily push for a law to prohibit it. For example, I find bigotry morally wrong, but I still support freedom of speech. I support freedom of religion even though other religion's beliefs and practices differ from my own. If slavery were around today I would push to end it because it is morally wrong. How do I decide when I would allow others to do what I consider morally wrong? Generally I prefer to leave it to others to make the moral decisions concerning their own lives.

If you actually read the page, you will see that the pedophiles are already making many of the same arguments that SSM supporters are.

And the Taliban were making many of the same arguments that SSM opponents are. If someone makes an argument, respond to the arguement. Don't simply say group X or group Y makes the same argument. If you feel there is no rational way to forbid SSM, but forbid all of those other practices then feel free to push for those practices when SSM is legal. I wil continue to oppose them.

The spirit behind the SSM movement is that one person's method of sexual gratification is just as good as another....The trouble with that logic is that there is no stopping it.

You repeatedly do this, Ben. You determine what somebody's argument is and then note the problem with that arguement, as opposed to responding to that person's actual argument. I don't agree that the spirit of the SSM movement is about sexual gratification.

Amazingly, the fact that he might have a baby with Mary and not Steve is considered irrelevant

If Mary is infertile for whatever reason then he couldn't have a baby with her. So at the least we should treat his relationship with Steve the same way we would treat it with Mary in this case. We would still allow him to marry Mary, so we should still allow him to marry Steve.

You feel that it wouldn't be good for their sibling relationship. So what? Who are you to say what their relationship ought to be?

Did you even read my posts? The point is not that it is bad for Tom and Bob's relationship. The point is you can't just allow Tom and Bob to marry. You must allow any pair of siblings to marry. That is bad for every sibling relationship and hence every family. Just as no-fault divorce didn't just affect those couples that divorced, it changed the rules for every marriage.

how any group of people that calls itself a family should be treated like one

Well Tom and Bob are already a family.

and she is being denied the benefits of her two daddies being married

Actually it's her dad and her uncle.

Their marriage won't hurt your marriage, so why should you care if they marry?

As I've pointed out it's not that their marriage would hurt my mariage, it is that it would hurt the relationship between my children.

They just want better health insurance for the little girl.

Well I do support universal health coverage for children. I hope you can support me in that.

If I've missed any of the major pro-SSM arguments, please point them out and I'll happily turn them into pro-gay-incest arguments.

Sure, denying SSM unjustly discriminates against people based on their sex, a suspect classification. We shold be judged on who we are as individuals, not on our whether our chromosones are XX or XY.

If Tom wants to have sex with three women at once, or with eight-year-old Timmy, or with Bessie the cow, who are we to say that's wrong as long as it's all consensual?

How can an eight year old or a cow give consent?

The only major logical distinction I can see between different consensual sexual practices and relationships is between those that are procreative and those that are not. Everything else is just a matter of preference.

So you think there is no major logical distinction between gay sex and sex between sixty-year olds or otherwise infertile couples. And you see no problem with doctor-patient sexual relationships (as long as they're procreative) or lawyer-client sexual relationships (as longs as it's protective), or a prisoner and prison guard (as long as it's procreative). It's also interesting that you note no distinction between sex acts that are loving and those that are abusive (if still consensual). You note no distinction between those that are part of a deeper permanent commitment, and those that are part of a business transaction.

By the way, do you accept my proposition concerning whether Massachusetts will legalize incest in a few years?

[lucia]

Ben:They just want better health insurance for the little girl.

Gabriel:Well I do support universal health coverage for children.

I want to keep government funded social benefits to a minimum. So naturally, I want legal parents to pay for their own kids needs using the same mechanisms available to other parents. Why should I and the American tax payer ultimately have to pay for that kid just because her parents are gay?

The fact is, Ben, I'm not nice. I'm not trying to be nice. I'm concerned about my own pocket book!

[lucia]

Ben:
The only major logical distinction I can see between different consensual sexual practices and relationships is between those that are procreative and those that are not.

I would like to gain a greater understanding of your position here.

Your statement sounds consistent with the reasoning I have read here:
humanae vitae

Do your morals also oppose birth control?
If not, could you clarify the difference between your opinion and that of Pope Paul VI?

[lucia]

To all: Sorry to break my response up, but there are so many isolated questions it is difficult to frame this as an essay.

Ben asked me:
Then why do you oppose polygamy or gay incest?

Ben, I was tempted to type up an answer. But, instead, I went to Google and searched on:
Galois incest polygamy.

If you read Gabriels various posts, and similar posts, then we can discuss my views further.

Gabriel tends to focus on principles, most likely because he thinks that is sufficient to support his stand. However, I can supply concrete examples to illustrate his points, should that be necessary.

[Galois]

I want to keep government funded social benefits to a minimum

See, I knew it wouldn't be that hard to find something on which we disagree.

[lucia]

Well.. there is my stinginess and the fact that I think you should have a bite of this, very delicious, ham and cheese sandwich. Would you like a side order of shrimp with that? :0!

[Ben Bateman]

No time to respond to everything this morning, so I'll be brief. Let's try to pull back and talk about smaller things:

"denying SSM unjustly discriminates against people based on their sex"

Current law doesn't discriminate among individuals. It discriminates among couples. It recognizes that some couples are likely to be procreative and some are not. Everyone is free to marry someone of the opposite sex.

In its Feb. decision, the Mass. Supreme Court describes its Goodridge decision last fall in terms sexual desires, not chromosomes:

"After reviewing the marriage ban under the deferential rational basis standard, the court concluded that the Department of Public Health '"failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.'"

Let's repeat that phrase. The discrimination is against someone who "wishes to marry someone of the same sex." It's their wish that's being discriminated against, not their sex.

"You repeatedly do this, Ben. You determine what somebody's argument is and then note the problem with that arguement, as opposed to responding to that person's actual argument. I don't agree that the spirit of the SSM movement is about sexual gratification."

I'm not talking about YOUR views, Gabriel. You've thought about this way, way more than most SSM supporters. I'm talking about the views of the people who are actually doing this within the legal system. Politically, their views are the only ones that count. They don't intend to let you OR me vote on the matter. That's what makes SSM so dangerous.

Whether I've misrepresented the views of the important SSM supporters is a factual question. Shall I cobble together some quotes from the Goodridge decisions and the rogue mayors and clerks around the countries issuing same-sex marriage licenses? Shall I then compare those to quotes from the NAMBLA page? I thought the comparison was pretty obvious, but if you really don't see it and have an open mind on the topic, I'll be happy to lay out some details for you.

Let me try to condense my argument:

1. X is a bundle of arguments, slogans, and tactics that are politically effective in bringing about SSM and eliminating a legal discrimination among sexual relationships and practices based on likelihood of procreation.

2. Most of the components of X would also be effective at destroying any other legal discrimination against a consensual sexual practice or relationship.

3. Marriage is an ancient and fundamental institution in our society. A solid majority of Americans want to keep it as it is. Politically speaking, it is an extremely powerful force.

4. But there is a good chance that it will lose. X seems to be close to destroying marriage in its traditional form, against the will of a majority of Americans.

5. You have an argument for discriminating against some other sexual relationship or practice, such as incest, polygamy, or pedophilia.

6. As a political matter, your argument for that discrimination--no matter how brilliant--will not be as politically powerful as arguments for traditional marriage.

7. Therefore, as a political matter, once X has demonstrated its strength by ignoring the clear will of a majority of the American people and imposing SSM, it will easily be able to steamroll your arguments on incest, polygamy and pedophilia. Again, X won't do this intellectually, it will do this politically.

If they don't care what my view is on SSM, why do you think they'll care what your view is on other sexual topics?

[lucia]

Ben: "No time to respond to everything this morning, so I'll be brief."

I agree! Let's be brief! :-)

Ben wrote: Current law doesn't discriminate among individuals. It discriminates among couples. It recognizes that some couples are likely to be procreative and some are not. Everyone is free to marry someone of the opposite sex.

If I understand it, the case presented by the State of Virginia in Loving vs. Virginia was:

The law prohibiting marriage between colored people and white people did not discriminate as to race. It recognized that some people were colored and some people were white. Everyone was free to marry someone of the appropriate color.

Ben wrote: "......wishes to marry someone of the same sex." It's their wish that's being discriminated against, not their sex."

Likewise, in Loving vs. VA, it was only the wish of the Lovings to marry each other that was being discriminated against, not their race.

Ben wrote: "I'm not talking about YOUR views, Gabriel. You've thought about this way, way more than most SSM supporters."

Ben, this is disingenuous.

Gabriel and I could post views of hypothetical SSM opponents who are not posting at this blog and demolish those arguments too. We could claim these hypothetical people are all a bunch of evil wild eyed New Testament thumping homophobic bigots and ask you to deny it. We could note that you want some of the same things they want, and smear you by association.

What would be the point? The people who seem to be reading this thread are: You, me, Gabriel and Chairm. As far as this forum goes these hypothetical arguments are straw-man.

All Gabriel and I can say about these hypothetical people and their hypothetical argument is this:

That is not my argument. If you wish to argue with that person, go find them!

Ben said "Politically, their views are the only ones that count. They don't intend to let you OR me vote on the matter. That's what makes SSM so dangerous."

You are wrong. Our views count. Besides that, there are plenty of opportunities for people to vote. The courts are not the only forum in this country, and everyone knows it.

Let me try to condense my argument:
Thanks! I like condensed versions. After all... one should be brief! :-)

All italics that follow are Ben's words. The rest are mine, Lucia's.

1. X is a bundle of arguments, slogans, and tactics that are politically effective in bringing about SSM and eliminating a legal discrimination among sexual relationships and practices based on likelihood of procreation.

Since I do not yet know what the variable "X" represents, I can hardly agree or disagree.

2. Most of the components of X would also be effective at destroying any other legal discrimination against a consensual sexual practice or relationship.

Well... you will need to define X before I can agree of disagree. There may be some components of X which do what you claim. Not knowing what X is, how am I to assess whether I think the first word should be: "all", "most", "many", "some", "a few", "a couple" or "none"?

3. Marriage is an ancient and fundamental institution in our society. A solid majority of Americans want to keep it as it is. Politically speaking, it is an extremely powerful force.
If you are correct, amending the constitution should be a snap!

4. But there is a good chance that it will lose. X seems to be close to destroying marriage in its traditional form, against the will of a majority of Americans.
So, you are suggesting that, in all probability, your premise #3 is false?

5. You have an argument for discriminating against some other sexual relationship or practice, such as incest, polygamy, or pedophilia.
I agree that Gabriel has presented very persuasive arguments to ban incest, polygamy and pedophilia. I'm glad to see you have read them and now concur.

6. As a political matter, your argument for that discrimination--no matter how brilliant--will not be as politically powerful as arguments for traditional marriage.
This appear to be a bald claim. It is possible that you can predict the future. I can't.

In any case, if your 6 is true, you should have no difficultiy ammending the constitution to suit your views.

7. Therefore, as a political matter, once X has demonstrated its strength by ignoring the clear will of a majority of the American people and imposing SSM, it will easily be able to steamroll your arguments on incest, polygamy and pedophilia. Again, X won't do this intellectually, it will do this politically.

If they don't care what my view is on SSM, why do you think they'll care what your view is on other sexual topics?

I thought X was a bundle of arguments? Is X now a group of people with political will? You will need to tell me what X is, because, based on my reading, I am unable to find a value for "X" that meets all criteria you stated. (I'm not sure I can find and X that meets both #1 and #2.)

In any case, assuming X is a bundle of arguments, it would appear that Gabriel and I do not believe argument contained in the collection "X".

Why wouldn't the arguments we set forward, permitting SSM be convincing, while the remaining, permitting pedophilia, be feeble?

Of the people reading this list, it is only you who seem to be fusing them together!

So, please explain why permitting adults to do something means we must permit children to do the same thing?

I am violently opposed to pedophilia. My argument has nothing to do with procreation. Many thirteen year old children are physically capable of procreating, and I'm still against it.

I have no qualms about arguing with people advocating pedophilia just as I argue with you.

Frankly, as to being steamrolled, I am much more worried that those insist that sex is ok as long as you are married, fecund and of the opposite sex will manage to convince people they are correct. Those are the only criteria that matter!

Afterwards, we will all be on the slippery slope to lowering the minimum age of marriage to 13 years old! (Where it has been in the past, and is in some countries.)

I ask you, Ben. Having allied yourselves with these pedophiles, and advanced their argument for them, how will you block it?

[Ben Bateman]

Lucia:
1. I tried to argue recently that the essence of the SSM debate is to consider homosexuality as equivalent to race or disability. By bringing up the miscegenation argument, haven't you proved my point?

2. I know you're fond of this idea that an amendment to the constitution is the way the people are supposed to be heard at the Supreme Court. But that's historically wrong and practically impossible. The Supreme Court is supposed to restrain itself. Judges are supposed to act like judges, not little dictators. We don't yet have a practical system in place to put political pressure on judges. But I think we should.

3. "Ben, this is disingenuous. Gabriel and I could post views of hypothetical SSM opponents who are not posting at this blog and demolish those arguments too."

"I ask you, Ben. Having allied yourselves with these pedophiles, and advanced their argument for them, how will you block it?"

Geez, how can I be clearer on this? I'm not allying myself with pedophiles. You and Gabriel are doing that, by encouraging the success of a political movement for total sexual freedom that acknowledges no boundaries. You think that the political forces you're allying yourself with are going to stop with SSM, but they aren't! The NAMBLA page makes that very clear, but pedophilia is just one example:

In Britain they've got a bill right now--I'm sure if it's law yet, but it's passed the house of lords--to allow anyone to declare himself to be of the opposite sex for all legal purposes. Do you think freedom of religion was a serious objection? If so, then you don't know modern politics. The real issue before the legislature was sports teams.
http://www.olimu.com/Journalism/Texts/Commentary/AbolitionOfSex.htm

In Canada they've got a proposal to make it a crime to criticize homosexuality. Free speech and freedom of religion are nowhere to be seen. A man has already been fined for the "human rights offense" of publishing a newspaper ad listing Biblical verses critical of homosexuality:
http://www.usnews.com/usnews/issue/040419/opinion/19john.htm

Here's quote from the second article that's particularly relevant to the present discussion:

"Pedophilia and sadism are among the conditions listed by the American Psychiatric Association under "sexual orientation.""

Now Lucia and Gabriel, I'm not saying that you agree with the people who support these ideas. But politically, you're on their side, and you're helping to put them in power. Be honest with yourselves about what the consequences will be if they succeed.

[Nick Kiddle]

In Britain they've got a bill right now--I'm sure if it's law yet, but it's passed the house of lords--to allow anyone to declare himself to be of the opposite sex for all legal purposes.

You may be referring to the Gender Recognition Bill, which enables people who were born with bodies not matching their brains and who are having medical treatment for this birth defect to be recognised for what's inside their heads rather than what's inside their pants.

I agree wholeheartedly that the social changes that make SSM possible have made this possible. I cannot understand why you apparently think it's a bad thing.

[Galois]

I'm not sure if I mentioned it before, Ben, but I did agree with your post as MD.com about it often being helpful to pull things back to smaller parts.

[I started writing this and had to come back to it later. In the meantime Lucia has made many of the same points I would have, but hey it's my blog so please bear with me if I sometimes repeat something similar]

Current law doesn't discriminate among individuals. It discriminates among couples. It recognizes that some couples are likely to be procreative and some are not. Everyone is free to marry someone of the opposite sex.

First of all, as we've been discussing, the current law does not classify based on a couple's procreative ability. It classifies based on sex. And it's not simply a matter of sex being used as a convenient marker for procreative ability, because as you noted we would still allow nonprocreative opposite-sex couples to marry even if we knew them to be nonprocreative. We don't desire to restrict marriage to procreative couples only.

As for discrimination against the couple or the individual that depends on how you look at it. As an individual Julie was denied the ability to marry Hillary because of Julie's sex. If Julie had been a guy she could have married Hillary. To say that Julie could marry a guy instead implies that people are interchangeable. This sort of reasoning was rejected by the California Supreme Court in Perez which I discuss here.

And this is where the miscegenation analogy comes in. The argument (if made properly and I understand even some SSM proponents do not do that) is not that we allowed interracial marriage therefore we must allow same-sex marriage. It is that certain arguments like "it's against the couple not the individual" or "they are still free to marry somebody else" have been considered and rejected before. The reasons those arguments were rejected are laid out in the various miscegenation cases--but I think nowhere better than Perez, which was decided when segregation was still legal. Blacks and whites were still free to marry someone of the same race. Likewise we could imagine laws which forbid (or require) interfaith marriages. Does that discriminate on the basis of religion, or is it okay because it's just the couple and nobody is denied the right to marry a person of the same (or different) faith?

Let's repeat that phrase. The discrimination is against someone who "wishes to marry someone of the same sex." It's their wish that's being discriminated against, not their sex.

Yes and in Perez the discrimination was against some who wished to marry someone of a different race. It was their wish, not their race. The problem is that the only reason the wish is being denied is because of one's sex. The same person with the same wish would have it granted if her sex were different. Note once again it is not her ability to procreate. Even if she were a sterile man she would still be able to marry Hillary.

So you see by bringing up the miscegenation analogy it is not comparing homosexuality to race, it is comparing a wish to marry someone of the same sex to a wish to marry someone of a different race. It is sex that plays the role of race in the analogy, not homosexuality.

They don't intend to let you OR me vote on the matter. That's what makes SSM so dangerous.

We don't vote on any court's decision with regards to constitutional interpretation unless it is by voting whether not to amend the constitution which occurs here. Mary Bonauto and the staff at GLAD wrote an excellent brief with some detailed arguments backed up by case law. There were also several amicus briefs filed in support of many of the points made by GLAD. You can find these documents here. If you would like to write a brief on behalf of NAMBLA or siblings wishing to marry, etc., using this as a guide, I would be glad to reply to it. (And there were indeed reply briefs as well as amicus briefs opposed to SSM filed before the SJC). I think you will note in preparing it that the arguments do not carry over very well at all.

That covers the legal arguments. As for the political arguments, I think you have even less to worry about. As you note, support for SSM varies from state-to-state but is nationally probably somewhere from 30%-40%. I haven't seen any polls on the subject but do you believe support for incestuous marriage or pedophilia or bestiality, or what have you, is even close to that? I know you think justices are acting like dictators, and not acting in good faith. But even supposing they are, and that's the only reason they are ruling for SSM, do you think the justices are big fans of pedophilia and bestiality?

I am not on the side of pedophiles any more than you, Ben, are on the side of the Taliban. It is quite possible that the sickos at NAMBLA don't undertand the true arguments made for SSM, but that does not mean a justice won't understand the differences. In fact, I think most people understand that there is a difference between pedophilia and homosexuality. I am really amazed that you see no difference.

[Galois]

One more thing...

You and Gabriel are doing that, by encouraging the success of a political movement for total sexual freedom that acknowledges no boundaries

The movement to decriminalize sodomy is different than the movement to legalize SSM. A solid majority of the country thinks sodomy should be legal. That being said, the movement to decriminalize sodomy is not one for total sexual freedom as you put it. If it were, that would imply we have a solid majority in favor of legalized pehophilia, which I'm guessing you would agree we don't. The vast majority even of those in favor of legalized SSM don't believe there should be no limits on sex. They just don't think those limits should be defined by whether or not the sex is procreative. Most people do not view contracepted sex the same as they view pedophilia. They think there are more important distinctions, like for example as Lucia noted, whether the individual is an adult.

[lucia]

Italicized sentences are Ben; the others are lucia.

Ben said:"1. I tried to argue recently that the essence of the SSM debate is to consider homosexuality as equivalent to race or disability. By bringing up the miscegenation argument, haven't you proved my point?"

No, it does not prove your point that those supporting SSM bring this up. Here's why not:

I didn't bring up the miscegenation point, you did. I included your quote justifying banning SSM and responded to it. The fact that if one replaces "race" with "sex" in your quote makes your argument indistinguishable from that used by the state of Virginia in Loving vs. Virginia is not my fault.

If you do not believe you brought this up, scroll back, and re-read your post.

I would like to add: On Alas a Blog, you specifically asked me to bring up the issue of race and the 14th amendment present a hypothetical argument based. I did so quite some time ago. You have not commented. If you don't want to bring up the issue of race, then don't bring it up!

2. I know you're fond of this idea that an amendment to the constitution is the way the people are supposed to be heard at the Supreme Court. But that's historically wrong and practically impossible. The Supreme Court is supposed to restrain itself. Judges are supposed to act like judges, not little dictators. We don't yet have a practical system in place to put political pressure on judges. But I think we should.

You claimed that is it impossible to amend the constitution before, on Alas a Blog. You have not brought forward examples to suggest amending the constitution either theoretically or practically impossible to amend the Constitution of the United States of America.

I realize this argument over the proper role of the judiciary has been going on since John Adam's administration. Nevertheless, I do not believe the justices of the supreme court act like petty dictators. If you believe they do, I would be happy to read any evidence you can supply.

Geez, how can I be clearer on this? I'm not allying myself with pedophiles. You and Gabriel are doing that,

How can we be clearer? We are not allying ourselves with pedophiles!

In case you are still concerned that I haven't gotten the message: I was perfectly aware that you were saying Gabriel and I are allying ourselves with pedophiles. If I understood Gabriel's point, he said he he is aware that you have accused us of allying ourselves with pedophiles. I am sure that everyone who has read this thread is aware of it. You have made yours opinion very clear.

All I am saying is that, despite your clear accusation, your position permits pedophilia. Our does not.

You can remedy your failure to provide even one argument against pedophilia by providing the argument. Refusing to read our argument and claiming 1% of our argument overlaps that of pedophiles simply won't do.

In Britain they've got a bill right now-

I am not tremendously concerned with the Constitution of Britain, which as far as I know does not apply in the US.

In Canada they've got a proposal to make it a crime to criticize homosexuality.
I think this is very wrong headed of the Canadians, but as far as I know, the Canadian Constitution does not apply here.

I suspect the US Supreme Court, using those dictatorial powers you despise, would strike a similar bill down. I consider that a good thing.

"Pedophilia and sadism are among the conditions listed by the American Psychiatric Association under "sexual orientation.""
What's your point ?

I am under the impression that psychiatrists tend to be concerned with personality disorders or at least traits that make it difficult for people to function in society. I am under the impression that psychiatrists often attempt to treat people so they no longer do these things.

I assume The American Psychiatric Association does not list "fondness for bridge" or "going to mass" or any good to neutral personality traits anywhere at all. I suspect they do not try to modify these good or neutral traits.
Lucia

[lucia]

Because the matter of the courts intervening to uphold minority rights against the majority seems to be appearing in Ben's posts, and because Ben seemd to be suggesting that somehow, it might not be the role of SCOTUS to uphold these rights, I would like to post this.

These words were reported in the Daily Advertiser on June 8, 1789. James Madison was discussing his Bill of Rights.

(My reference is "Creating the Bill of Rights" edited by Veit, Bowling and Bickford. ISBN 0 8018 4100 3. Obviously, I have edited. Madison said a lot on that day. I am not attempting to distort.)

This touches on the courts and the bill or rights:

"If they [the bill or rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulate for in the constitution by the declaration of rights. "

So, it sound to me as though he was saying that the courts would uphold the bill of rights against the other branches. He thought this a good thing.

He discussed the need to protect the people's right against many thing. But, where, in his opinion, was the greatest danger?

".... The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which posses the highest perogative of power: But this is not found in either the executive or legislative departments of the government, but in the body of the people, operating by the majority against the minority. "

Yep. The majority against the minority.

The idea that one of the the court's role is to prevent violations of rights by the legislature and executive branches and to uphold the rights of the minority againts the majority are not new fangled ideas assumed by a dictatorial court. Both ideas were discussed by the James Madison, the man who drafted the Bill of Rights. He expressed these ideas to Congress to garner support for the bill.

It may be that there were other people who thought other things were required.

I'm sure it's possible to find other quotes from Madison. It was certainly the case that earlier, Madison thought we didn't need the Bill of Rights, because he'd drafted a Constitution with limited powers. However, these seems to have been his opinion in 1789 when he presented the Bill of Rights to Congress. These seem to have been the views of the promoters of the Bill of Rights where communicating to "the governed" when they obtained consent.

[Ben Bateman]

Gabriel: I've read your posts on the miscegenation argument, and the ones by Even and Volokh that you linked to. They're very interesting. My response will be in MD.com.

Lucia: We've been around the constitutional argument before, haven't we? Yes, the US Sup Ct can uphold a constitutional right against the will of the majority, but only because a previous supermajority created that right. What Madison et al didn't foresee was that the court would invent new rights that weren't in the text of the document and that clearly hadn't been intended by those who voted on the text. At that point, the court is not interpreting the constitution, and it should not have the power to override the will of the majority. I suspect you'd be more receptive to this argument if the court were inventing rights that you didn't like. Legitimate government is about the consent of the governed. When did the governed ever consent to SSM?

"your position permits pedophilia"
No, my position is that differences among types of consensual non-procreative sex are very minor compared to the difference between procreative sex and non-procreative sex. Therefore, if we can't maintain distinctions based on procreation, then there's no chance of maintaining any of the smaller distinctions.

I think we all agree on our opposition to pedophilia, incest, polygamy, bestiality, etc. We disagree on whether legalizing SSM would make legalization of those things more likely.

The point of noting that the APA is calling sadism and pedophilia "sexual orientations" is that that's the word that was used to legitimize homosexuality. IIRC, it was once considered a mental illness, then merely called a sexual orientation, and then removed entirely from the Diagnostic and Statistical Manual. I would guess that you could trace the progression of homosexuality from illness to non-illness, and then show that pedophilia is on the same track. If anybody has the history on that, I'd love to hear it.

Let me take a different tack on this argument about the transition from SSM to other sexual practices: Do you think it's impossible in theory? Or is it possible in theory but untrue in fact? And if it's a factual dispute, then what evidence could I present that would change your mind?

Gabriel: "I know you think justices are acting like dictators, and not acting in good faith. But even supposing they are, and that's the only reason they are ruling for SSM, do you think the justices are big fans of pedophilia and bestiality?"

Even ten years ago, would anyone have imagined that the courts would force SSM on this country without so much as a vote? Forty years ago, could anyone have imagined the breakdown of the family or the massive rise in unwed motherhood? When I look at that NAMBLA web site, it looks just like pro-homosexual propaganda of twenty years ago: "We just want to be free to love in our own special way."

It would be easy to parody some pro-SSM web sites by tweaking a few words to make them support pedophilia or bestiality. I especially like, "What a man does in the privacy of his own barn is his own business."

[lucia]

"your position permits pedophilia"
No, my position is that differences among types of consensual non-procreative sex are very minor compared to the difference between procreative sex and non-procreative sex. Therefore, if we can't maintain distinctions based on procreation, then there's no chance of maintaining any of the smaller distinctions.

Please elaborate how your position argues against pedophilia.

As I see it you say:

Sex is permissible in the context of marriage.
Marriage is permissible if procreatin is permissible.

So, what pray tell prevents anyone from changing the law to permit 13 year olds to marry?

You may believe we are able to fill in the blanks of your argument, but I cannot if you do not fill it in.

So, please elaborate. Simply assuring me that your position does not permit pedophilia will not convince me. (Especially whn I have asked several times, and your only response is "Although I have not read it, I am sure that your position is closer to pedophilia than mine."