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May 17, 2005

Comments

Mark Miller

Op-ed:

First let me say that while I do support giving legal acknowledgment to same-sex couples, I do not happen to believe the denial of such is a result of gender discrimination.

Now … you wrote: “Finally, stick this ruling in your "nothing bad has happened yet" pipe and smoke it. Really, one would expect someone who touts their math abilities not to be so easily swayed by the argument from ignorance fallacy anyway.”
------ To use this ruling as an reference to a bad consequence of the Mass SSM ruling not to mention your obnoxious response is a staggering example of ignorance on your part. The ruling basically says that stepparents do not fall under the laws against incest. Are you attempting to infer that due to the SSM ruling, someone will get away with rape? Please. No such thing happened. The rape will be prosecuted. Ironically, this is the same tactic used by SSM advocates when a domestic abuse situation occurred for an Ohio same-sex couple and because of the amendment passed denying any legal acknowledgment to same-sex couples, the abuser could not be prosecuted under domestic abuse laws. Some SSM advocates argued that people lost legal protections against getting abused due to the amendment. And based on your stellar logic, I guess they must be right. Also, the case you mentioned referred to stepparents – therefore, a divorce must have occurred and the relationships between the parents and children were not biological but custodial. Therefore, you are saying that a ruling that results in step-parenthood being treated legally different than kinship is a bad consequence of the SSM ruling. This seems to me to be inconsistent with your view that same-sex couples don’t deserve legal acknowledgment because they cannot create children on their own.

How is that pipe now?

Galois

Whatever definition of "gender discriminatory" you are using to claim marriage is "gender discriminatory" applies equally to same-sex marriage as both are defined in terms of their gender content. Thus if your goal is to remove all forms of gender discrimination from the law, SSM is an inconsistent answer.

Well, if I were to advocate only recognizing same-sex marriages and not opposite-sex marraiges that would be true, but I am not doing so. I do not want the law to use gender to determine the validity of a marriage. There is nothing inconsistent in that.

While you are free to wallow in your own inconsistencies, trying to pass them off as reasoned position won't fly. Not that you've ever mentioned what goal is served by your simple-minded forced equality of the sexes to begin with.

I'm wallowing? I never noticed. In any case, my views are only unreasonable under your mistaken belieft that I advocate prohibiting opposite-sex marraiges. There was an onion article along those lines, but they weren't serious. And I have indeed mentioned why I support gender equality in a number of posts. A good place to start would be a series of three posts I wrote last summer beginning with "What Bugs Me About Discrimination."

Not to belabor your inconsistencies further, but for that matter you have yet to explain why "gender discrimination" is bad, but number discimination (your devotion to the number two) is good, or for that matter why species discrimination is good.

Please, belabor away. I have explained this. You apparently have not bothered to read through my blog. In short, gender discrimination is problematic because of my belief in our common humanity. Gender discrimination generally places the importance of gender above the importance of the individual human being. I believe that as human beings we should all be equally protected by the laws. Drawing distinctions between an individual human being and more than one human being, or between a human being and something else is not troubling. These do nothing to deny our common humanity. In fact they reinforce it. These ideas are not uncommon. The law in Massachusetts and elsewhere guarantees that equal protection should not be denied on account of sex. It says nothing--nor should it--about denial of equal protection on account of number or account of humanity. That would be ridiculous.

In general, your position that judicial activism, or any other form of government influence, should be involved in dictating social attitudes is putting the cart before the horse. Government is of, not at, the people.

That is not my position. The people enshrined their belief that the government should guarantee all the equal protection of the laws and that should not be denied on account of sex. The SJC said that even without the extra line about denial on account of sex, the marriage laws were not guaratnteeing all the equal protection of the laws and thus they must become more inclusive. The court did its job, and the people support this decision.

Finally, stick this ruling in your "nothing bad has happened yet" pipe and smoke it. Really, one would expect someone who touts their math abilities not to be so easily swayed by the argument from ignorance fallacy anyway.

Mark already made a few comments about this obnoxious statement. I am curious, though. What in the world does this ruling have to do with same-sex marriage? I did not know that I've been touting my math abilities. I never published my CV on the blog. Perhaps my English abilities aren't up to par, though. I have no idea what ignorance fallacy is. And how do you know I was easily swayed? Maybe it was quite difficult.

And finally as for your attack on Trey, you don't know what you're talking about. Marty has referred quite explicitly and quite often to adoption. Most recently, he had a snide remark for the couple mentioned in my post who experienced the joy of seeing their son married. He said "one can only wonder at the sense of loyalty that child will show towards his grandparents who may or may not be his kin at all." He is once again talking about adoption. Marty seems to believe that one who is adopted isn't fully a part of the family and is less loyal to the family because they aren't "kin". One can only wonder at his basis for this belief.


Galois

On Lawn, well we seem to be talking past each other. You claim I am not responding to your points, and you do not seem to be responding to mine. What are we to do? I will try better to understand your position and see if there are actually any areas of disagreement between the two of us.

With regards to women's suffrage, is it your claim that marriage was responsible for this?

With regards to discrimination, is it your claim that restricting marriage to opposite-sex couples is gender discrimination but that the discrimination in this case is a good thing? Or is your claim that it is not gender discrimination?

Is it your claim that eliminating gender references in the definition of marriage is itself gender discrimination? If so, do you mean discrimination by the government or the individual? Whom, if anyone, do we deny the equal protection of the laws by this discrimination?

Is it your position that allowing two people in the same class to marry is discrimination on the basis of that classification? If so, when is this discrimination justified, and when is it unjustified?

Let us start with these questions. If there is anything that you are unclear on with regards to my own positions, please ask me. I agree with you that not all discrimination is bad. I just feel that when are to dicriminate on the basis of gender, race, ethnicity, or faith (to name just a few classifications) the discrimination needs extra justificaiton, because far too often those classifications have been used unjustly.

op-ed

What in the world does this ruling have to do with same-sex marriage?

Only that it was a predicted consequence.

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; - Scalia, for the dissent, Lawrence v. Texas

The ruling basically says that stepparents do not fall under the laws against incest.

To reach that conclusion the MSJC had to overrule itself. In Commonwealth v. Smith, a pre-Lawrence incest case, the court found exactly the opposite:

Moreover, the "[p]ersons within the degrees of consanguinity" to whom the statute's prohibitions of intermarriage and sexual intercourse apply are not limited to blood relations, but include also certain affinal kin as well as stepparents. [emphasis added]

Telling that the same court that ruled in favor of same-sex marriage ruled in favor of incest by step-parents. Telling, too, that supporters of SSM also line up in defense of the relaxed incest standard.

The rape will be prosecuted.

By this view we need no incest laws at all, since all incests could be prosecuted as rapes anyway. While this whole journal is based on the notion that less distinction is better, the fact is, the impact of incest goes well beyond just the rape.

Gender discrimination generally places the importance of gender above the importance of the individual human being.

In your quest to tear down the wall between the men's and women's dressing rooms, have you ever considered that actual differences exist between the sexes? The current legal "strict scrutiny" standard is significantly more enlightened than your simplistic notion that we should simply pretend these differences away. Gender based laws need to be confined as reasonably as possible to actual, rather than incidental differences between the sexes.

I believe that as human beings we should all be equally protected by the laws.

Back to wallowing in incosistency. Apparently groups of three humans don't have the same humanity nor deserve the same protections that groups of two humans do. Simply saying that discrimination based on numbers is not sex discrimination and therefore is acceptable is begging the question. It is this numeric confusion that causes you to assign individual traits like gender to couples of individuals and concepts of individual rights to groupings of individuals. The fact is, any individual can become part of a marriage regardless of sex. Your appeal to our "common humanity" and our individual rights, therefore, is already met.

I did not know that I've been touting my math abilities. ... Perhaps my English abilities aren't up to par, though.

Either your English abilities or your ability to scroll. From the header of your web page:

Galois A mathematician's thoughts on same-sex marriage [Emphasis added]

I have no idea what ignorance fallacy is.

Interesting defense...

And finally as for your attack on Trey, you don't know what you're talking about. Marty has referred quite explicitly and quite often to adoption.

Not in this thread. Even if what you say about Marty were true, you'd still simply be endorsing the "Hey, look over there" exit tactic. Comments Marty makes elsewhere should be dealt with elsewhere. Comments Marty makes here should be dealt with here.

Mark Miller

"By this view we need no incest laws at all, since all incests could be prosecuted as rapes anyway. While this whole journal is based on the notion that less distinction is better, the fact is, the impact of incest goes well beyond just the rape"

------ Yes, and the impact of domestic abuse goes well beyond the physical assault also - as I referenced in my earlier comment. Must be nice to pick and choose which inconsistencies you'll wallow in.

Galois

Only that it was a predicted consequence...

Your quote from Scalia seems entirely irrelevant. First of all it was from a dissent in Lawrence, not Goodridge. Even if your claim were that Lawrence led to Rahim, it is unfounded. The quote does not mention the situation of Rahim at all, so it can hardly be called a prediciton of it. Thirldy the decision in Rahim was neither based on Lawrence or Goodridge. You might as well as say Rahim was a predicted consequence of Brown v. Board of Education.

To reach that conclusion the MSJC had to overrule itself.

Actually they did not overrule Smith, and in fact relied on Smith in the Rahim decision. They ruled that the references to affinal relationships in Smith were dicta and evidently incorrect based on the wording of the law. Just as in Smith they ruled that if the legislature wanted to cover other sexual acts in the statute they must specify that, the court in Rahim ruled that if the legislature wanted to include affinal relationships they had to do so. The fact that the legislature specifically refered to consanguinity and not affinity prohibited the state form charging Rahim with incest (although they did charge him with many other offenses).

Telling that the same court that ruled in favor of same-sex marriage ruled in favor of incest by step-parents. Telling, too, that supporters of SSM also line up in defense of the relaxed incest standard.

And how telling it is. J. Marshall who signed onto and is beleived to have written the majority Goodridge decision dissented in Rahim. Likewise J. Greaney who signed onto the majority in Goodridge and wrote a concurring opinion in Goodridge likewise dissented in Rahim. In fact, the decision in Rahim which you condemn was written by J. Cordy who had dissented in Goodridge. So contrary to your assertion that the supporters of SSM lined up in defense of the narrow reading of the incest statutes in Rahim, it was the other way around. Telling indeed.

In your quest to tear down the wall between the men's and women's dressing rooms, have you ever considered that actual differences exist between the sexes?

I am not trying to tear down any dressing room walls. Do NOT attribute claims to me that I do not make. I am warning you once. I do, in fact believe there are actual differences between the sexes. I have never claimed otherwise.

The current legal "strict scrutiny" standard is significantly more enlightened than your simplistic notion that we should simply pretend these differences away.

Again I have never claimed we should pretend differences away. I have merely argued that (1) these cases should be decided under strict scrutiny (I'm glad we agree on that) and (2) It cannot pass that test. Under strict scrutiny the burden is on those that wish to use sex as a basis for denying the marriage. I have yet to hear a compelling reason for doing so.

Back to wallowing in incosistency. Apparently groups of three humans don't have the same humanity nor deserve the same protections that groups of two humans do.

Well, you know me. I'm a wallower. If you remove one from a group of three humans you have two humans. If you remove one from a group of two humans you have one human. The difference between one human and two should be and is recognized. I am treating each individual with the same humanity, but I am noting that the law must treat two and one differently. If we take two adult citizens with the right to vote. One human gets to vote once, and two humans each get to vote once for a total of two votes. I find nothing wrong with that and honestly can't believe you do.

The fact is, any individual can become part of a marriage regardless of sex.

And interracial marriage prohibitions allowed any individual to beome part of a marriage regardless of race. So what? I am claiming it is problematic to use one's sex to determine whether one's marriage is valid. My marriage is valid because I am a man. If I were a woman it would be invalid. The issue is not whether one can become "part of a marriage".

Either your English abilities or your ability to scroll. From the header of your web page..

I am a mathmematician. I never said I was a good one. (I'll say it now. I believe I am a good mathematician.) Still I don't know what an ignorance fallacy is, and you have yet to explain what it is.

Not in this thread...Comments Marty makes elsewhere should be dealt with elsewhere. Comments Marty makes here should be dealt with here.

Once again you are absolutely wrong about Marty's comments. Marty talked about the grandchild not having loyalty to his or her grandparents because they were not "kin". That was a comment in this thread. (Perhaps you are the one who needs to work on your ability to scroll).

op-ed

Your quote from Scalia seems entirely irrelevant...You might as well as say Rahim was a predicted consequence of Brown v. Board of Education.

Brown does not mention incest, let alone make any predictions about it. Therefore, equating Brown and Lawrence on the subject of incest is completely unwarranted and visibly desperate.


Even if your claim were that ...

By the very statement, you acknowledge you are chasing a strawman here. No further comment is necessary.

Actually they did not overrule Smith... They ruled that the references to affinal relationships in Smith were dicta and evidently incorrect

Ah. So they didn't overrule themselves, they ruled that they were incorrect. Thanks for the clarification.

So contrary to your assertion that the supporters of SSM lined up in defense of the narrow reading of the incest statutes in Rahim, it was the other way around. Telling indeed.

Actually, you supply all the ammunition necessary for that assertion. You and your cronies in support of SSM are the ones who, with the barest of provocation, lined up in defense of liberalizing incest by a step-parent. Feel free to break that down into which neurons were involved, but the fact remains.

Again I have never claimed we should pretend differences away.

I'll take you at your word on that one.

I have merely argued that (1) these cases should be decided under strict scrutiny (I'm glad we agree on that) and (2) It cannot pass that test.

Ah, but it can. Society is impacted by and incurs liability from the procreative potential of a couple. There may be no good reason that procreative potential exists only between members of the opposite sex, but that is the case nevertheless, and the MSJC has failed to change that fact with Gooding.

If you remove one from a group of three humans you have two humans.

You may have intended counting backward from three to one as a dazzling mathematical tour de force, but you still fail to point out why gender mentions need to be eliminated from marriage, but numeric mentions need not. Surely you wouldn't want to deny domestic abuse protections from consenting adults simply because there are three of them.

I am claiming it is problematic to use one's sex to determine whether one's marriage is valid.

Give me an example. Given the couple (J,K), which individual and which sex means the couple cannot marry?
a) J-male
b) J-female
c) K-male
d) K-female
So as not to stress your mathematical abilities, I'll remind you that one's sex would mean making one selection from the above. Your pretended example of you and your wife involved choosing both sexes, which is actually two selections.

Regardless of whether it makes sense to you, the capacity of a couple to procreate does depend on the presence of both genders. It is even restricted to two people.

The issue is not whether one can become "part of a marriage".

'Nuff said.

I am a mathmematician. I never said I was a good one.

Claiming you are a mathematician certainly "touts [your] math abilities," as I said. What you fail to realize in constructing this clintonian defense is that I never said you were touting your "good" mathematical abilities, either.

(I'll say it now. I believe I am a good mathematician.)

Based on...?

Still I don't know what an ignorance fallacy is, and you have yet to explain what it is.

True, true. Rather than Googling for "appeal to ignorance" you could simply assert that since you don't know what an appeal to ignorance is, it must not exist. But then, that would be an appeal to ignorance. Need more? Saying you are a good mathematician because you do not know what an appeal to ignorance is would be another example.

Once again you are absolutely wrong about Marty's comments. Marty talked about the grandchild not having loyalty to his or her grandparents because they were not "kin".

Did he? Reread it for yourself. Marty never says a grandchild will not have loyalty to his or her grandparents because they were not "kin." Further, even if Marty said exactly that, it still says nothing about what he thinks about adoption.

Finally, this one's for Mark, who also believes in changing the subject to escape a contradiction:

Yes, and the impact of domestic abuse goes well beyond the physical assault also - as I referenced in my earlier comment. Must be nice to pick and choose which inconsistencies you'll wallow in.

Either produce a quote where I even talked about domestic abuse, let alone two contradicting quotes or simply continue on in your role as the comic relief in this whole discussion.

Galois

Therefore, equating Brown and Lawrence on the subject of incest is completely unwarranted and visibly desperate.

About as desparate as your claim. Scalia specfically referred to adult incest, which was not the issue of Rahim. Further Scalia was talking about striking down such laws. Rahim did not strike down any law and made clear that the legislature could it if wished extend the incest laws to cover stepparent relationships. Still, as you seem to note by your reference to strawmwen none of this has anything to do with Goodridge which was what this post was about. So what in the world is your point?

Thanks for the clarification.

Your welcome.

You and your cronies in support of SSM are the ones who, with the barest of provocation, lined up in defense of liberalizing incest by a step-parent.

I have cronies now? Cool. But as we noted before it was those opposed to same-sex marriage that supported the Rahim decision. Those who supported same-sex marriage opposed the decision. Why do opponents of SSM condone incest?

As for the gender classification passing strict scrutiny your gorilla link provides no compelling interest. At most it exlains an interest in having opposite-sex couples marry, not in limiting marriage only to couples who can reproduce sexually. The general procreation argument I have dealt with extensively in this category.

You may have intended counting backward from three to one as a dazzling mathematical tour de force, but you still fail to point out why gender mentions need to be eliminated from marriage, but numeric mentions need not.

I have explained it. You just choose to ignore it. You admit that the gender requirements subject it to strict scrutiny, thus the burden is on those who would keep the gender requirements to justify it. No such justificaiton is needed for "numerical" discrimination. I have explained in detail in this in this category. If you insist on some justification, here's but one example (more is given in the linked category). Suppose a person dies. The surviving widow is responsible for making all post-mortem decisions. With two (or more) spouses there are conflicts as to who make the decision.

Give me an example. Given the couple (J,K), which individual and which sex means the couple cannot marry?

If you insist on doing this mathematically, it would go something like this. Claim: The validity of the marriag depends on the sex of J. Proof: Fix K. Without loss of generality we may assume that K is female. If J is male, the marriage is valid. If J is female the marriage is invalid. (The proof would be similar if we assumed instead that K was male). QED. But again this is irrelevant as you admit there must be a compelling interest for the classification. Whether the classification is necessary to achieve that interst is the core of our disagreement.

Regardless of whether it makes sense to you, the capacity of a couple to procreate does depend on the presence of both genders.

But there is no explanation as to why the validity of the marriage must depend on the capacity to procreate.

Based on...?

Why do I think I'm a good mathematician? I got my PhD from Columbia University. Among other things I proved that any uniform tree which contains a nonuniform lattice must contain a nonuniform lattice of any real covolume and any uniform tree whose automorphism group is not discrete contains an infinite tower of uniform tree lattices. My work is well respected in the field. Why do you care, though?

Actually I agree that just because there is no evidence of a compelling interest to restrict marriage to opposite-sex couples it does not necessarily follow that no such compelling interset exists. Still, until such time as I see such evidence I am going to work under the assumpion that it does not exist and support extending marriage to all couples regardless of gender.

Did he? Reread it for yourself. Marty never says a grandchild will not have loyalty to his or her grandparents because they were not "kin."

What he said was:


one can only wonder at the sense of loyalty that child will show towards his grandparents who may or may not be his kin at all.

I honestly don't know how you're reading that.


op-ed

As for the gender classification passing strict scrutiny your gorilla link provides no compelling interest.

Do tell...

At most it exlains an interest in having opposite-sex couples marry, not in limiting marriage only to couples who can reproduce sexually.

So let's summarize. The state has a compelling interest in procreation, specifically responsible procreation. To that end, it can recognize a relationship based on its procreative potential, which it does with marriage. This meets the strict scrutiny test you proposed. Strict scrutiny requires the treatment in question address a compelling interest, not a proof there are no alternative treatments. Your "only to couples who can reproduce sexually" attempt is dealt with specifically in the gorilla reference.

No such justificaiton is needed for "numerical" discrimination.

Why not? Your appeal to the "humanity" of the situation supports strict scrutiny of "numerical" discrimination the same as discrimination on gender. That darn consistency bug-a-boo again!

With two (or more) spouses there are conflicts as to who make the decision.

The potential for conflict does not prevent society from acting. Courts, legislatures all deal with conflict on a regular basis. For example, a child is allowed to have two parents even though the parents may not agree on the child's post-mortem arrangements.

Claim: The validity of the marriag depends on the sex of J. Proof: Fix K. Without loss of generality we may assume that K is female.

Tsk, tsk. Math abilities again. The claim was the sex of one nullifies the marriage. Your proof deals with the sex of two, which does nothing to establish the claim about one. Don't worry, I'm sure lots of mathematicians mistake one for two these days.

But there is no explanation as to why the validity of the marriage must depend on the capacity to procreate.

Come now! You've admitted society's interest in defining a relationship based on its procreative potential. True, that relationship need not be marriage. I suppose it could be some other relationship, but the fact is, it is marriage. What relationship are you proposing should be defined by that potential? Without its procreative potential, what compelling interest would society have in recognizing marriage at all?

Why do you care, though?

My bad. Didn't mean to make you think I did. Not that you're looking needy or anything, but I'm sure your Ph.D. thesis makes up for the whole one vs. two difficulty.

Still, until such time as I see such evidence I am going to work under the assumpion that it does not exist...

So, you're wedded to the argument from ignorance. I get that. You don't understand marriage. You don't understand why all societies throughout all time and across culture and religion have defined it in terms of its procreative potential, and your lack of understanding means we should change it. I'm sure there are some circles where that amounts to a compelling argument for change, but for some reason it just doesn't do it for me.

Let's try a less emotion driven example. Say you took your car to the mechanic. When you go to pick it up, the mechanic presents you with a box of parts and says, "When I put everything back together there were all these extra pieces. I have no idea what they do, so I just left them off." Are you going to drive that car home, let alone are you ever coming back to that mechanic again? What if he turns the key and the engine starts up? Are you convinced now?

I honestly don't know how you're reading that.

Wow. Another appeal to ignorance. Not that your honesty isn't touching. I can tell you I'm still not reading the word adoption in there.

I wonder what you had for breakfast. Must mean you didn't have any. Must mean I think diner operators should be shot on sight. Let's talk about gun control. Hey, look over there!

Hayleyanne

Galois wrote:
"Again I have never claimed we should pretend differences away. I have merely argued that (1) these cases should be decided under strict scrutiny (I'm glad we agree on that) and (2) It cannot pass that test. Under strict scrutiny the burden is on those that wish to use sex as a basis for denying the marriage. I have yet to hear a compelling reason for doing so."

Just a reminder-- that if gay marriage is decided under equal protection with gender as the suspect classification-- it would not be subjected to "strict scrutiny". Gender classifications get "intermediate scrutiny". The state interest must be an important one but not a compelling one. And I don't think it must be as narrowly tailored. Under a fair application of intermediate scrutiny, I don't think that defining marriage as between a man and a woman would fail. Of course, it failed in Massachusetts under the rational basis test-- so who knows. But the fact that it failed rational basis is what is so disturbing about the Goodridge opinion. It is why Goodridge is such a perfect example of judicial activism in my opinion. Given how rarely laws fail to pass muster under the rational basis test it was shocking that a traditional marriage statute failed. Moreover, it is shocking to me that the court (4 out of 7) had the audacity to hold that the marriage law was "absurd". And in essence that is what they said when they concluded that there was no rational basis whatsoever for marriage to be defined as between a man and a woman. It boggles the mind.

op-ed

Hayleyanne -

Galois wrote: "...these cases should be decided under strict scrutiny..."
...Gender classifications get "intermediate scrutiny".

Thanks for the correction. I knew about "intermediate scrutiny," but I never understood what the difference between strict and intermediate was. Thanks for explaining that. Frankly I never understood why there were different levels of "scrutiny" to begin with. Seems if a law is worth looking into it is worth looking into all the way.

"Strict scrutiny," as both he and you have defined it, is an essential tenet to Galois's position because it enables his second and most fundamental point, the fallacial argument from ignorance. He may now either abandon his position or rest it on the ignorance appeal entirely unsupported by "strict scrutiny."

Galois

So let's summarize. The state has a compelling interest in procreation, specifically responsible procreation. To that end, it can recognize a relationship based on its procreative potential, which it does with marriage. This meets the strict scrutiny test you proposed. Strict scrutiny requires the treatment in question address a compelling interest, not a proof there are no alternative treatments.

It does not meet the strict scrutiny test. You have argued for a compelling interest in doing X. It does not follow that there is a compelling interest in not doing Y. You need a compelling interest for not recongizing same-sex marriages. So far you have presented none. Repeating your interest in recognizing oppposite-sex marriage does not create an interest in not recognizing same-sex marriages. Since opposite-sex couples could still marry without resorting to gender classifiation the use of the classification has yet to be justified.

Why not? [require strict scrutiny for numerical discrimination]

I assume your question is why shouldn't the law require strict scrutiny for numerical discrimination. For the fact of the matter is the law does not. As to why it shouldn't, I thought I had explained. If we have worth as an individual human being, then the law should recognize two individual human beings as two people. They should have two votes. They should each have the right to own property. They should each be able to make decisions for themselves. This was one problem with the notion of coverture where a wife's legal identity was subsumed into the husband's. It denied the individual worth and humanity of the wife which is not forfeited by her marriage to her husband.

The potential for conflict does not prevent society from acting. Courts, legislatures all deal with conflict on a regular basis. For example, a child is allowed to have two parents even though the parents may not agree on the child's post-mortem arrangements.

Exactly. But I'm not arguing that the state could not create some system to deal with it. I have offered, however, a legitiamte reason why the state may not want to do so. A state is not required to do everything it can do. In this case it may decide that the harms outweigh the benefits.

Tsk, tsk. Math abilities again. The claim was the sex of one nullifies the marriage. Your proof deals with the sex of two, which does nothing to establish the claim about one.

The claim was the validity of the marriage depended on the sex of J. That claim was proven. That the sex of K was also relevant does nothing to invalidate the proof. I could also claim that the parity (whether a number is even or odd) of a sum depends on the parity of a summand. This is true and any mathematician would tell you it is true. That the parity cannot be determined without also knowing the parity of the other summand does not mean it does not depend on the parity of the one.

Come now! You've admitted society's interest in defining a relationship based on its procreative potential. True, that relationship need not be marriage. I suppose it could be some other relationship, but the fact is, it is marriage.

I have not claimed society has an interest in defining the relationship based on its procreative potential, nor have you demonstrated one. We have agreed that there should be a relationship, marriage, which is important for responsible procreation. I see no need to base the validity of the marriage on the procreative potenetial of the couple.

Without its procreative potential, what compelling interest would society have in recognizing marriage at all?

Jonathan Rauch's book, Gay Marriage, does a great job of answering that question in detail. I have answered it at some length elsewhere on this blog. (See this category). Here's three short answers. (1) Even couples who cannot procreate may have children, and society has an interest in governing the relationship between those parents (2) Marriage, and even the prospect of marriage, has a stablilizing influence on society. As Rauch puts it, it "settles" young adults. (3) Society has a great interst in individuals having someone to care for them in times of need. Marriage provides the best first line of care in a variety of situations. (This is part of the reason society has an interest in the marriage of the elderly). Still, the question remains not what interest society has in the marriage of those couples who cannot reproduce, but rather what interest does it have in not recognizing such relationships. I have yet to see one.

Are you convinced now?

No. Your car analogy was pointless. There can be (and is) more than one purpose to marriage. To say that marriage is only about creating children would be ludicrous. Marriage obviously has other purposes including the raising of children. So it makes sense for the marriage laws to include couples other than those who can procreate.

Just a reminder-- that if gay marriage is decided under equal protection with gender as the suspect classification-- it would not be subjected to "strict scrutiny". Gender classifications get "intermediate scrutiny".

That is under federal law. We were discussing Massachusetts law in this thread (except when op-ed drifted into talking about Lawrence). Massachusetts and many other states subject gender classifications to strict scrutiny. You are correct, Hayleyanne, that the court in Goodridge ruled that it failed even to pass the rational basis test. That does not mean the marriage law was "absurd" or even that there was no rational basis for defining it in gendered terms. It means that the state failed to present any legitimate interest that was furthered by using the gender classifications. Since opposite-sex couples could still marry even if same-sex couples were also allowed to marry, it was not enough to say that marriage was important for opposite-sex couples. There had to be some reason why it was important to restrict it to such couples.

I knew about "intermediate scrutiny," but I never understood what the difference between strict and intermediate was. Thanks for explaining that. Frankly I never understood why there were different levels of "scrutiny" to begin with.

I could tell. Interestingly in New Jersey they do not use this three-tiered system of review. Instead they subject the law to a balancing test which weighs the state's interests against the individual's.

By the way, op-ed, where do you believe I used an appeal to ignorance. In a number of cases I pointed out that I have not seen evidence of a claim, but I never claimed that as proof that the claim was not true. I'm simply not going to be convinced of some claim without some reason to believe it is true. For example, we have seen no harm in Massachusetts from allowing same-sex couples to marry. Can I be sure there was no harm? No, but without evidence to the contrary I will continue to believe that no harm was done, and as noted above a great deal of good was done.

On Lawn

I accept your proposition for a what I see as a reboot of this conversation. They were very good questions. As this discussion has branched in a slightly different direction, I took the liberty of responding in a new thread created on Opine.

But while gender discrimination remains as a disputed topic, I'll catalog those that you've dropped:

-- Much like ol' Sharkey's program of sharing meant the shire was shafted in the last part of "Lord of the Rings", so does this notion of equality smack of cover-smoke for nefarious goals. Rhetoric turned up just a little to hot there? Maybe, but I've been looking into this issue for a while and find the cover-screen of equality to have echoes in the past as well as litterature.

-- One thing is for sure, across the US and other nations the trend has been that in the areas where the debate is allowed to flourish amongh the populace the self-evident truths of marriage have become manifest. The danger of supreme court rulings is that they can quelch debate, remove power from the people and lead to tyranny. That you celebrate such a move because it furthers your own agenda is, well, deplorable. Much like how the court ruled that blacks and white relationships were infertile, or the Supreme court ruled that a tomato is a vegetable. Well, once that happens what are you going to do about it? In your surveys, the answer seems to be to just acknowledge and move on.

-- why exactly is it that you are the only one hear unclear of your agenda?

And I'll only add that whether intermediate or strict scrutiny, I'm still anxious to hear how you justify endorsing gender preference in marriage. An "important" reason will do.

Galois

Thanks for your answers On Lawn. I will try to continue the conversation over there shortly (in the next few days). I'll address your loose ends/dropped topics here.

As for the ROTK reference, I did not feel there was anything to respond to. You suspect nefarious goals. That's a bit insulting, but I don't care all that much what you think of me or my goals, so I have no desire to press the issue.

As for my deplorable celebration of the court's decision, we almost certainly disagree with whether the court was doing its duty to uphold the law in reaching that decision. Even those who believe the court's decision was wrong, though, can still be happy for the couple's involved and wish them the best. I don't believe the decision quelched debate. On the contrary the decision has brought the debate to the forefront in Massachusetts.

Finally you ask why I am the only one unclear on my agenda. I had thought my agenda was to help more families gain the protections of marriage. I don't find that deplorable. I doubt you would find that idea deplorable, ergo you must believe me to have some other agenda. I still do not know what this is and I tend to doubt that everyone else here knows what that is.

Mark Miller

Op-ed:
As long as I understand your rules – you can refer to a non-SSM related ruling as an example of a bad consequence of the Goodridge ruling. But when someone refers to another ruling as a bad consequence of a state marriage amendment passed for purposes of making an analogy, the response is to plead ignorance.

Keeping up with your lead, will you produce a quote when anyone mentioned the incest ruling? Because obviously you feel it is not appropriate to use an argument in a discussion that hasn’t been specifically referred to previously.

My point was this: You use the Mass SJC ruling of treating kinship differently than step-parents in the context of incest laws as a bad consequence of Goodridge. Yet this seems inconsistent with your view that legal acknowledgment of relationships which are not based on kinship should be treated differently than kinship relationships. Wouldn’t any ruling that resulted in treating kinship differently than custody be a good consequence in your view ?

But the response of ‘you changed the subject’ does seem to work well for you.

Let me also say that being referred to as ‘comic relief’ by someone as reasoned, articulate and intelligent as you have shown here hurts more than you could ever know.

On Lawn

As for the ROTK reference, I did not feel there was anything to respond to ... I had thought my agenda was to help more families gain the protections of marriage.

*sigh* Nothing to respond to except that you wish to do the same thing.

Its like saying you hate looking at the consequences of your actions and determining just what they might bring. You say that in another place as well...

Even those who believe the court's decision was wrong, though, can still be happy for the couple's involved and wish them the best.

But the main point, "[your] deplorable celebration of the court's decision" is puposefully glossing over its problems. You can air out your reasoning for liking the decision, but to duck under their robes in some tautological legal defence its-legal-because-they-say-it-is is a dangerous tyrannical appologist cop-out. Justice Marshall seems to wish the same defence by emminance, "I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."

Gottlieb (who is a good mathematician) is so afraid of the consequences of their over-reaching that he proposes that some sort of panel should review and let the people over-rule such vain re-definitions as the Mass. Court employed.

-- Now if the Massachussets Supreme Court can change the milleniums old meaning of the word marriage, it can change the meanings of other words such as Freedom of Speech, Cruel and Unusual Punishment, Man, Women, or any language written in the Constitution to reestablish the traditional meaning of marriage. Most of those words do not appear from the beginning of mankind in some form and are not found in most present day cultures. This is a very frightening development and requires a new check and balance. I propose a Constitutional amendment to the effect that a jury of scholars be appointed yearly, people who know the history of words, and science and statistics and mathematics, and when they see hijackings of common words such as marriage, they can nullify the courts decision subject to a popular referendum of the people. And if the decision of the Court is over ruled by the people, then the court must resign and a new one be appointed. --

Seventeen of the eighteen Harvard law professors who wrote a friend of the court brief in favor of same-sex marriage disagree with it as, "self-intoxicating narcissism and arrogance right on the surface" and it was "as sloppy of an opinion as you could want to read".

But you are just going to sit there and celebrate it? Oh, and hope the best for the people in the case in spite of everything else.

In the end you only see what you wish to see, and your participation and where it leads seems to be immaterial as long as it allows same-sex marriage. I don't think you know or care what you are doing here, assuming it is the onus of those defending the equity of marriage to meet your demands.

op-ed

You have argued for a compelling interest in doing X. It does not follow that there is a compelling interest in not doing Y.

Well, before you change the subject, let's recap. There is a compelling societal interest in marriage as an institution with the potential to procreate. For whatever reason, that potential requires the presence of each sex, so it contradicts your point that marriage should be "gender neutral" and therefore not necessarily procreative. I have argued X, you have argued not X. To your credit, rather than taking up the clearly unsupportable position that society does not have an interest in the fundamentally procreative union, you now choose to shift the discussion to Y. Fine.

What is Y? Well, it could be societal recognition of fundamentally non-procreative unions. In that case, the statement is trivially true and empirically so. Society's interest in marriage does not preclude its interest in any other type of union. Society recognizes all kinds of non-procreative unions each under a different theory of interest. Hospitals are not procreative, yet receive specific treatments under the law. Same with law firms, limited partnerships, corporations, and universities. Notice society is able to take notice of these institutions without calling them "marriage." But then, I am putting words in your mouth. Do tell, what is Y?

(1) Even couples who cannot procreate may have children, and society has an interest in governing the relationship between those parents

Society already safeguards this interest by recognizing the parent-child relationship and regulating it.

(2) Marriage, and even the prospect of marriage, has a stablilizing influence on society.

Lots of things "stabilize" society even without being called marriage. The theory behind the mortgage deduction is that home ownership stabilizes society. That is no argument that home ownership should be called marriage.

(3) Society has a great interst in individuals having someone to care for them in times of need.

See (2), above. But let's deal with this from a proof by contradiction point of view. A similar contradiction argument exists for (2). Let's assume that society has a sufficiently compelling interest in having individuals take care of each other that it abandoned its compelling interest in responsible procreation and defined marriage as individuals taking care of each other. But then, three individuals can take care of each other at least as well as two, and four at least as well as three. Thus promoting taking care of each other would argue for a treatment that allows, if not encourages, groups larger than two. Yet, you argue that marriage should be restricted to only two, which is a contradiction.

No. Your car analogy was pointless.

Those two statements contradict. That you are unconvinced that the car will still accomplish its purpose after turning it over to the self-confessed ignorant mechanic is exactly the point. That even after hearing the engine run you remain unconvinced in the mechanic's argument from ignorance shows the impotence of your own argument from ignorance.

There can be (and is) more than one purpose to marriage.

This does not argue for the removal of any one of those purposes.

That is under federal law. We were discussing Massachusetts law...

Well, I have to admit I didn't think you'd actually abandon your claim just because it was wrong. Rather than flagrantly rest unaided on your argument from ignorance you rush quickly to stuff the "strict scrutiny" crutch back under it. You are not arguing that location should determine the validity of a marriage.

...where do you believe I used an appeal to ignorance.

You argue marriage should be gender neutral because you see no reason it should not. Your desperate reach for "strict scrutiny" shows you know this.

Mark -

As long as I understand your rules...

You don't, and it took you way too many words to admit you don't have the quotes. See you in the funny papers.

"Seventeen of the eighteen Harvard law professors who wrote a friend of the court brief in favor of same-sex marriage disagree with it as, "self-intoxicating narcissism and arrogance right on the surface" and it was "as sloppy of an opinion as you could want to read"."

Absolutely correct. The Goodridge opinion represents true judicial hubris. And Galois, if you have any doubts about its political/agenda driven nature-- consider how the court set an artificial date on which the legislature had to respond. That date just happened to be the 50 year anniversary of Brown v. Board of Education. If that is not a political statement, I don't know what is. Also, as I understand it, the chief judge is a friend of the attorney for the plaintiffs. Why did she not recuse herself?

Second point: the level of scrutiny that federal law would apply is still very relevant as it is federal constitutional law that will dictate whether a state must recognize a gay marriage recognized in a sister state under the full faith and credit clause.

Oped raises an interesting point. What is the important state purpose behind a state defining marriage as between a man and a woman? Assuming that the interest in procreation is not an "important" one and the courts mandate gay marriage-- what then is the interest in limiting it to two people? Does the answer boil down to a strictly mechanical application of constitutional law? I.E. The level of scrutiny shifts to rational basis because we are looking at "number" instead of "gender"-- and a "number" limitation is tested under rational basis?

In any case, I have a real problem with a court holding that the government does not have an important interest in defining marriage the way it has been defined throughout history.

Hayleyanne

My post above-- I forgot to put in my name! Hayleyanne

Ampersand
Seventeen of the eighteen Harvard law professors who wrote a friend of the court brief in favor of same-sex marriage disagree with it as, "self-intoxicating narcissism and arrogance right on the surface" and it was "as sloppy of an opinion as you could want to read".

You misread your link; it doesn't support your statement at all. The article you linked to establishes that three Harvard law profs disagree with the Goodridge decision; none of those three, however, were among the 18 who signed onto Tribe's brief.

Hayleyanne

Ampersand-- I was agreeing with the thrust of the statement that the opinion amounts to "self-intoxicating" narcissism and "arrogance". It is an awful opinion. It not only thumbs its nose at the democratic process -- it flagrantly misapplies the rational basis test. It is the worst kind of judicial opinion. And there were political repercussions across the nation, as well there should have been, when four state supreme court judges ignore democratic principles and forget that they are not the Legislature.

Ampersand
The Goodridge opinion represents true judicial hubris. And Galois, if you have any doubts about its political/agenda driven nature-- consider how the court set an artificial date on which the legislature had to respond. That date just happened to be the 50 year anniversary of Brown v. Board of Education. If that is not a political statement, I don't know what is.

This is a completely ad hom attack on Goodridge. The reasoning of Goodridge is good enough to stand, or it is flawed and cannot stand. That is all that matters; what alleged agenda the judges had or didn't have is logically irrelevant.

Regarding failure to recuse: A criticism similar to yours was leveled against Scalia when he ruled on a case that his hunting buddy Vice-President Cheney was a party to. I thought the criticism of Scalia was misguided; merely being friends with someone doesn't make it impossible to rule fairly on their case, and it's unreasonable to expect judges to not associate with other government officials or with other lawyers. Similarly, I think your criticism in this case is misguided.

What is the important state purpose behind a state defining marriage as between a man and a woman? Assuming that the interest in procreation is not an "important" one and the courts mandate gay marriage-- what then is the interest in limiting it to two people?

As I understand it, nothing in Galios' argument assumes that the interest in procreation is not "important." However, even though the interest in procreation is indeed important, it doesn't follow that it's the sole and exclusive important interest; it is more accurate to say that marriage is justified by several important interests, of which procreation is one, but not the only one.

As for the slippery slope argument, I don't think it's relevant to same-sex marriage. If you oppose polygamy, then you must have independent arguments showing why polygamy is harmful or wrong; you should rely on those arguments to prevent polygamy.

Suppose, for the sake of argument, that it is a grave injustice to same-sex couples to forbid them to marry. Does the possibility of a slippery slope make it okay to commit injustice? It's not clear that it does. To commit an injustice to same-sex couples in order to protect society from polygamy is not justifiable, any more than committing an injustice to Jews or women or blacks would be justifiable if the injustice prevented polygamy.

However, as a matter of legal logic, what you wrote is correct; numeretic discrimination is scrutinized at a lower level than sex discrimination, and is furthermore much easier to justify.

In any case, I have a real problem with a court holding that the government does not have an important interest in defining marriage the way it has been defined throughout history.

Historically, the definition of marriage has changed significantly. To claim that it's had a unitary definition throughout history is inaccurate.

In any case, I'm not aware of anyplace in the Massachusetts Constitution (or the US constitution) in which it is stated that the government has a compelling interest in legally mandating tradition for its own sake.

Ampersand-- I was agreeing with the thrust of the statement that the opinion amounts to "self-intoxicating" narcissism and "arrogance". It is an awful opinion. It not only thumbs its nose at the democratic process -- it flagrantly misapplies the rational basis test. It is the worst kind of judicial opinion. And there were political repercussions across the nation, as well there should have been, when four state supreme court judges ignore democratic principles and forget that they are not the Legislature.

Hayleyanne - When I said "You misread your link," I was intending to address On Lawn's post, not yours. Sorry for the mix-up.

As for the Goodridge decision, I disagree with you on virtually all counts. It is the legitimate purpose of the MSC to ask if the laws as applied are legitimate under the Massachusetts Constitution, and that's what they did. And rational basis was correctly applied, as far as I can tell; at the least, this is clearly a question that people of good will can disagree on.

As for the political backlash, so what? I don't want judges taking account of extra-legal questions like that when they make decisions.

Furthermore, I don't think the backlash has actually been very harmful, from a pro-queer-rights perspective. A bunch of states that were decades away from civil unions have banned SSM and/or civil unions; that's ugly and regrettable, but it doesn't make much practical difference. Meanwhile, queers in Massachusetts are finally equal citizens, and in two other states (CT and Oregon) will almost certainly get civil unions. Overall, I think it's a step forward.

Advancement without backlash is impossible. So unless we want to give up on advancing queer rights forever, we cannot accept the logic that says that backlash makes gains illegitimate and regrettable.

Ampersand

Whoops, sorry. The previous post is written by me, Ampersand.

Galois

For whatever reason, that potential requires the presence of each sex, so it contradicts your point that marriage should be "gender neutral" and therefore not necessarily procreative.

It certainly does not contradict that position. The marriage laws can (and do) include couples who cannot procreate. The gender neutral marrigae defintion does not preclude procreative couples from marrying, so once again you fail to provide any interest whatsoever in having a gendered definition of marriage. I agree with you that couples who are going to have children should marry (although I would include same-sex couples in that category), but I also think some couples who will not have children should marry as well.

Do tell, what is Y?

Recognizing same-sex marriage.

(1) Society already safeguards this interest by recognizing the parent-child relationship and regulating it.

Well if that were enough we wouldn't need marriage. It is not enough that each parent has a relationship to the child, but also that they have a commitment to each other. Parents are still related to their children after divorce, but that does not mean divorce has no effect on the children. So I strongly disagree with you that marriage is unimportant in this regards.

(2) Lots of things "stabilize" society even without being called marriage. The theory behind the mortgage deduction is that home ownership stabilizes society.

Your arguments go from stranger to stranger. I never claimed that any stabilizing thing should be called marriage. I claimed that marriage stablilizes society and society has an interest in this even if that marriage never produces children. I take it you agree with this statement.

(3) See (2), above.

I agree. See (2) above.

Let's assume that society has a sufficiently compelling interest in having individuals take care of each other that it abandoned its compelling interest in responsible procreation...

Those two interests are not mutually exclusive. In fact one supports the other. One of the ways marriage promotes responsible procreation is that the parents will have an obligation and the support to care for one another.

But then, three individuals can take care of each other at least as well as two, and four at least as well as three.

I disagree. Rauch explains this quite well. One reason he gives for why this is not true is what he calls the "freeloader" effect. If others are also in charge of support some people will be less likely to do all that is necessary figuring that the others will take up the slack. I'll tell you what, though. You provide a detailed plan for how marriage between 27 people would work, I'll look at it closely. By the way, a person can procreate with more than one other individual. Why should you not allow them to marry more than one?

This does not argue for the removal of any one of those purposes.

I'm not removing any purposes. This is the biggest (of many) problems in all of your responses. Marriage would still continue to serve its purpsoses with regards to procreation.

Well, I have to admit I didn't think you'd actually abandon your claim just because it was wrong.

What was wrong? I claimed (and you agreed earlier) that gender classifications should be subject to strict scrutiny. Hayleyanne pointed out that under federal law gender classifications got intermediate scrutiny. I agreed with her. I had assumed we were discussing Massachusetts, the topic of this post. I know you seem fond of chaning the subject, (Lawrence, Rahim, etc.) but don't get upset when I try to keep it focused.

You are not arguing that location should determine the validity of a marriage.

Indeed it does. Each state sets its own marrige laws. The general rule (with some exceptions) is that a marriage valid where performed is recognized elsewhere, but it matters very much where the marriage is performed. Which marriages are valid varies quite a bit from state to state. Constitutions also vary from state to state. What may be constitutional in one state, may be unconstitutional in another.

You argue marriage should be gender neutral because you see no reason it should not.

I see. You completely misunderstand the appeal to ignorance fallacy. The linked site gives a good explanation:


An appeal to ignorance is an argument for or against a proposition on the basis of a lack of evidence against or for it. If there is positive evidence for the conclusion, then of course we have other reasons for accepting it, but a lack of evidence by itself is no evidence.

I have given throughout this blog and even in this comment thread reasons why marriage should be gender neutral. (It would allow same-sex couples to marry thus protecting them, their children, and benefiting society in a number of ways). When I weigh this reasons for making it gender neutral against the lack of reasons for not making it gender neutral (as procreative couples could still marry) I tend to believe that gender nuetral marriage would be good. Those are policy reasons. When it comes to legal arguments, the gender classification requires justification. If no justification is given the classification must be stricken. That is to say the burden of proof is on those wishing to use the gender classification. This is not an appeal to ignorance fallacy, as the above site also notes:

There are a few types of reasoning which resemble the fallacy of Appeal to Ignorance, and need to be distinguished from it:

1. Sometimes it is reasonable to argue from a lack of evidence for a proposition to the falsity of that proposition, when there is a presumption that the proposition is false. For instance, in American criminal law there is a presumption of innocence, which means that the burden of proof is on the prosecution, and if the prosecution fails to provide evidence of guilt then the jury must conclude that the defendant is innocent.


Under strict scrutiny, interrmediate scrutiny, or even rational scrutiny, equal protection doctrine puts the burden of proof on the state when it uses a classification (how great a burden it is depends on the level of scrutiny). So noting the lack of justification for the classification is not an appeal to ignorance, but a demand that the state meet its burden of proof.


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