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07/24/2005

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Yesterday I posted a link to Richard Posner's blog post about homosexual "marriage." See here. Judge Posner has now replied to the comments posted on his site. See

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Milk for Free

Quite so. I would also note that there may be a biological explanation even for homosexual behavior in all-male environments. A number of animals experience physiological changes when put in single-sex environments. Human females who move into communal housing quickly (and unconsciously) synchronize their menstrual cycles, for instance.

Frank Riely

State sponsorship of marriage is a violation of the principle of the separation of church and state. That violation occurs every time a minister on the altar says "By the power vested in me by the State of ...", or every time a minister signed a marriage license in the back of church after the ceremony. We somehow need to do a better job distinguishing civil unions from religious unions.

The anxiety about the use of the word "marriage" when talking about homosexual relationships is, I think, rooted in our understanding of the religious implications of the act of marriage. The confusion is in assigning religious meaning to state-sanctioned marriages.

Many on the right increasingly see government as an extension of the Church, with a corresponding religious significance to state actions. This distorted view allows many to view strictly civil marriages as having some religious meaning (which they do not). It also allows more extreme individuals to erroneously assign religious meaning to the current war in Iraq: that the President is doing "God's work" there.

If the constitutionality of state involvement in church weddings were ever successfully challenged (if it could be), that might hasten the age of contract unions. Those who choose could still have church weddings, but the legal implications would be separate.

Palooka

Thanks for the extenstive reponse, Judge Posner. On the issue of homosexuality being the equivalent of race, I would like to point you and readers to a Shelby Steel article (full article: http://www.opinionjournal.com/extra/?id=110004846). I as I stated in the comments, I am not unsympathetic to the view homosexuality should be treated more like race, but they are far from perfect analogs. The more accurate analogy, in my opinion, is that of gender. Something which is immutable but also something which is undeniably different (not better or worse, just different). Because of this difference, both discrimination based on gender and homosexuality is sometimes morally (and certainly legally) permissable.

Here is the relevant part:

"To say that gay marriage is a civil rights issue is to imply that homosexuality is the same sort of human difference as race. And even geneticists now accept that race is so superficial a human difference as to be nothing more than a "social construct." In other words, racial difference has been made officially innocuous in our culture, and its power to stigmatize has been greatly reduced. Evidence of this is seen in the steady, yet unremarked, rise in interracial marriage rates for all of our races. So if gay marriage, like race, is about civil rights, then homosexuality is a human difference every bit as innocuous. Thus, America should treat homosexuality like it treats race and give gays the "right" to marry as it once gave blacks the right to vote.

So gays benefit from the comparison to both race and civil rights, and this has provoked hostility and even outrage in black America. Black leaders as liberal as Jesse Jackson have distanced themselves from the gay marriage issue, and among black churches an actual movement against gay marriage is unfolding. There is a religious dimension to this, but more broadly there is a simple resentment at having blackness implicitly compared to homosexuality.

The civil rights movement argued that it was precisely the utter innocuousness of racial difference that made segregation an injustice. Racism was evil because it projected a profound difference where there was none--white supremacy, black inferiority--for the sole purpose of exploiting blacks. But there is a profound difference between homosexuality and heterosexuality. In the former, sexual and romantic desire is focused on the same sex, in the latter on the opposite sex. Natural procreation is possible only for heterosexuals, a fact of nature that obligates their sexuality to no less a responsibility than the perpetuation of the species. Unlike racial difference, these two sexual orientations are profoundly--not innocuously--different. Racism projects a false difference in order to exploit. Homophobia is a reactive prejudice against a true and firm difference that already exists."

Palooka

Further, as I recall reading in your book Sex and Reason (which I recommend), there is much less evidence for genetic detemination for lesbians. If it was determined that lesbianism was not genetically determined, would you feel any differently?

I don't think the genetic argument really gets anyone anywhere. It's window dressing. If someone believes homosexuality is unhealthy they will not much care if it's genetic or not. The extreme case of this is the question of whether anti-social disorders are genetically determined. If they are, few us would have much sympathy for decriminalizing murder done by anti-social criminals.

The question which resolves this confusion, I think, is to ask if the trait is morally neutral (does it harms others). That is where the debate lies, and trying to circumvent that discussion by arguing all genetic factors deserve special sympathy seems to me a fallacious argument. I believe homosexuality is amoral, and I think the constructive way to resolve irrational discrimination is to explain why it is amoral, rather than to dismiss the other side's moral concerns because, hey, being gay may be genetic.

Not Corey

Thanks for the link, Palooka.

David

Judge Posner is on the right track, with one caveat. He agrees that it does not seem rational to condemn homosexual conduct, for "moral" or other reasons. However, he is afraid to criticize the "religious" view that homosexuality is wrong, simply because that view stems from religion. Posner gives too much deference to religion in his policy-making process. Religion has, at times, been the source of all kinds of bigotry, including opposition to interracial marriage and, of course, the current Islamic extremism. On the other hand, religion has at times been a force for great good - for instance, the abolitionist movement of the early 1800s was rooted in religion.

In short, sometimes religion is on the right side of a policy debate, and sometimes it is on the wrong side. In a debate about policy, the "religious" view should be given no more credence than any other. The government should decide policy through neutral principles. The First Amendment religion clauses say merely that the government may not establish a religion and may not compel individuals to have any particular beliefs. They do not compel societal bigotry in the name of religion.

David

I also want to comment on Judge Posner's view that Brown v. Board of Education would have been "pragmatically unsound" in 1900. I beg to differ. If, in 1896, Justice Harlan's dissent would have been the majority in Plessy, this country would have been spared 60 years of Jim Crow and racial divisiveness. There would have been some turmoil in the south, but no more than the turmoil of the 1960s. In fact, the turmoil probably would have been less, because the south was not so far removed from reconstruction, and Jim Crow was not yet ingrained. Basically, Plessy prevented the north from completing the victory it achieved in the civil war until 60 or 70 years later. As a result, racial justice in this country is 60 or 70 years behind where it could and should be.

Nathan Meinzer

I believe you underestimate the role religious beliefs have played in opposing gay marriage. Far from being merely one influence among many, religious beliefs form the fundamental bedrock which the opposition to gay marriage has been built upon. Concern for adopted children (many of whom would benefit being out of abusive, and unstable heterosexual unions), misgivings about the high turnover rate of gay relationships (evidence that is probably skewed in that there is no standard for when a gay relationship is to be considered established), and all other social arguments against gay marriage are the red herrings that are unconvincingly used to distract the away from the obvious--that religious belief is the primary impetus behind opposing full and equal rights for gay couples. You said:

"In a democratic society, one has to respect religious beliefs; and no reasonable theory of the meaning of the religion clauses of the First Amendment permits one to argue that religious belief cannot be permitted to influence secular law. No one supposes that punishing murder is an establishment of religion just because the Ten Commandments--a religious code--states 'Thou shalt not kill.'"

This analogy obfuscates the issue by failing to note that religious beliefs simply agree with the social prohibition of murder without providing any its intrinsic justification. Furthermore, religious opposition to murder may be seen historically as the buttressing of a previously existing and necessary social prohibition. In this vein, then, there have been many societies within in which homosexuality was not considered taboo. And lacking any evidence that same-sex marriage would significantly disrupt the social order, there is no reason, apart from those supplied by unsubstantiated religious belief, for prohibiting it.

Matt

Quick follow up point. It is not "gay marriage" or "homosexual marriage" or "same-sex marriage" that gays and lesbians are seeking. It is marriage, pure and simple. Same rights and responsibilies for all. Understanding this will allow both sides of the debate to join in the conversation.

KJ

The idea that recognition of marriage is a violation of the "establishment" clause is difficult to even fathom without seeming a jerk. What religion pray tell is established by a state recognizing marriage? Does it matter than the people who ratified the 1st Amendment obviously didn't see it that way? Apparently not to some.

While I agree that homosexual behavior is a different question than homosexual orientation, that doesn't really solve anything does it? We don't, in general, outlaw orientation, we outlaw behavior. Thus, race is an orientation regardless of behavior. A black man wishing to eat in the diner is not engaging in different conduct than the white man; his blackness is the issue, not his conduct.

Homosexuality is only apparent with behavior. The marriage of two same sex persons is conduct different than the marriage of different gendered persons. The analogy fails.

I will explain my dispute with the so called analogy of homosexuality and race with an imperfect analogy of my own: in the 80's, there was much talk of a violent gene - one that made some males pre-disposed to violence. The liberal criminal appologists used to to urge a repeal of the death penalty and less harsh penalties for violent criminals. Of course, the gene and the pre-disposition was never the problem. The violent conduct was. We as a society rejected the argument and didn't use pre-disposition to rewrite out criminal laws.

Homosexuality (as an orientation) means nothing to the public policy debate without the conduct. Moreover, I do believe that people are pre-disposed on a continum to homo/hetero conduct. But no matter where on that spectrum you fall, you may engage in either or both conducts. Some people in prison don't choose homosexual conduct despite the "opportunistic" rationale, and some people don't choose any sexual conduct (e.g., faithful Priests).

The conduct doesn't prove the orientation, but the orientation doesn't mean much to the outside world without the conduct.

We are all asked to supress our pre-dispositions. I don't take stuff I want without paying or receiving permission from the owner. I respect property rights, but I am also somewhat greedy. I like to make money and have things. I suppress that desire for criminal justice and moral reasons. Saying homoexuality is a pre-dispostion just doesn't answer anything in this debate.

BTW, if we also determine that some people are truely bi-sexual, does it follow that they should be entitled to a spouse of each gender?

If a psychologist tells us that some people can't be faithful, do we need to open the door to polygamy.

These sound like smart aleck questions, but they aren't. The logic from one step to the next is obvious. Maybe we should just recognize the wisdom of thousands of years of western civilzation and leave our western marriage alone.

David

KJ is right. I would add that constitutional rights are the results of a consensus, a majority opinion about what principles will govern. If we cannot find a rational basis for the results of that consensus, then that result may very well be arbitrary. But, in any case, the majority has that power. Even the circumscription of majority power enshrined in the Bill of Rights is expression of the will of some specific majority. In absolute terms, the American polity could define marriage as between a man and a woman, and the basis of that could be religious, notwithstanding any nonestablishment objections, because the non-establishment clause itself can be changed, in fact or by implication, in interpretation of its scope. In that case, non-establishment would be circumscribed by some more important value.

The fact that constitutional rights can be created by mere consensus does not detract: we don't agree on a rational apriori basis for such rights. Hence, without the consensus mechanism, supposing that there were a common will to carry out the conclusions of apriori congitations of law makers, perhaps we wouldn't have any rights.

One angle on this debate, which I haven?t seen addressed in the above, is whether allowing gays to marry would dilute the institution of marriage. If it does, then it would threaten the basis of the Republic, if that Republic, as de Tocqueville and others have argued, is founded and sustained by the families which the time hallowed institution of marriage makes possible. I think that is the common concern between religious and nonreligious opponents to gay marriage, and I might add, both heterosexual and homosexual. The history of Rome bares out this concern. One of the reforms which Augustus Caesar thought most important was the revitalization of marriage. He and many historians see that failure as a contributing factor to the decline of Rome.

That the American democracy necessitates some specific set of norms is born out also by the difficulty with which other societies, eg, Russians, have had in establishing the same degree of liberty by transplanting the visible parts of American institutions.

I don't think we really understand how important marriage is to large scale societies. But, if you just look around the large scale civilizations of the world: European, Chinese, Indian, Muslim, you notice one common feature: monogamous bonds for life between the sexes. (I don't know about Aztecs, Mayans and Incas, or larger tribes of sub-Saraha Africa.) One common feature of many small scale tribal societies in North America, African was the absence of monogamous bonds for life. The possibility that monogamous marriages between the sexes is really the consequence of property rights, and hence, it was property rights which resulted in great civilizations, does not undermine this point.

jc

It seems that some people here have at the very center of their opinions and thoughts, fairly mixed up ideas of what homosexuality is. For some it is defined by the behavior (willed acts). Others mention the word orientation (innate dispositions). Have these people taken the time to answer these questions about a complex and fundamental aspect of their subjective life - their own (hetero)sexuality? Is heterosexuality genetic? Possibly. Is it demonstrated by behavior? Possibly. Can any of these academics or moralists please get to the point and admit that they too have sex, and the object of their acts is quite superficial compared to the act itself.

The heterosexual reaction is based primarily on mental images of sexual acts from which they cannot derive pleasure themselves, so it holds no value for them. Cannot we reformulate the argument that all of this is a question regarding the acceptablity of the form of pleasure - that pleasure is ok as long as it involves not two with the same genitalia?

jc


I have been sexually active with my partner of six years. It is a morally sound act, however, because my partner has different genitalia than me. It is very pleasurable. I have always felt attracted to the opposite sex. I'm not sure if it is genetic or if I learned it from my classmates. Either way, i had urges that had to be dealt with.

To all of the homosexuals out there listen: you gays and lesbians don't know what you are missing. Soon we will find out the genetic truth about the matter and it will be published in scientific journals. It will be clear then to you that the most pleasurable sex takes place between a man and a woman. If you try it and still prefer homosexual acts, you are going to ruin society.

Sean Brearcliffe

Also, the equal protection clause of the 14th amendment which prevents bars to interracial marriage is only applicable to racial classifications. Moreover, even if it did apply to homosexuals, homosexuals are not prevented from doing anything that heterosexuals can do -- namely marry someone of the opposite sex. A "straight" man can no more marry another man than a "gay" man can. The law is perfectly equal in its treatment.

David

I would just like to note that the last "David" post (responding to KJ) was from a different person named "David." I've been the only "David" posting on this blog for so long that I forgot how common my name is. Maybe I should add something to my moniker.

Matt

In your post, you say "homosexuality seems to crop up in all human cultures, including ones that reprobate it"

If homosexuality is genetically determined, then one would actually expect a reverse trend (in the extremely long term) between the extent of homosexual orientation and society's tolerance of homosexual behavior. In a society that reprobates homosexuality behavior, those of homosexual orientation will be pressured into what you call "opportunistic" heterosexuality, and will presumably pass on their genes. A society that is more tolerant of homosexual behavior would expect a much smaller level of opportunistic heterosexuality, und thus a much smaller proportion of those with homosexual orientation would pass on their genes.

Joe

I have only skimmed these comments, so if I am redundant I apologize. As the father of a gay son I can assure everyone that homosexuality is not a "choice." My son did not choose to be gay, did not want to be gay and for a time resisted being gay. But, being his parents' child, he refused to live a lie so acknowledged his orientation. He and his partner since college have been together nearly 15 years. They are hard-working taxpaying citizens of the United States. They deserve equality in civil law.

They do not have equality because, despite our alleged separation of church and state, marriage is defined in religious terms with only a nod to the state (a license and registration, etc., and the marriage of atheists).

My point is simple: No church is obliged to marry anyone it doesn't want to marry. There is no rational (and I would say constitutional) basis for discriminating against my son and his partner in the civil law. "Marriage" is, in fact, a contract between two individuals. In the civil law there need be no distinction of gender. And the various and sundry religious sects can do as they please.

James Brown

Both of you seem to imply some support for at least civil unions if not gay marriage. For many good reasons, marriage has been defined for centuries as a commitment/contract between one man and one woman. Homosexuals currently have the same right as do heterosexuals under this definition; one man can marry one woman.

If you find reason to change that definition to allow same-sex unions (in the name of "rights" - personal,legal and financial), then there is no logic to continue to continue to prohibit marriage between - let's say - two men and a woman; between three women; between two brothers or two sisters; and in this age of highly effective contraception, between a brother and a sister or between a father and a daughter, etc. Such continued prohibition would deny them their "rights" of choice and financial benefits if such unions are something they desire.

jack

Matt-

Your point fails if the gene is passed to sons via their mothers.

Mel

Freud, Marx and Deep Throat have all told us to "follow the money" yet, all of this discussion has been philosophical. For the last 150 years, the United States has slowly (too slowly) expanded the rights of its citizens, be they female, immigrant, or racially distinct. Now, the present majority wants to put a halt to this expansion of rights, and maybe even, turn it's back on some already gained.

Could there be a financial benefit gained by this reactionary move by the powers now in control? Have women taken control of too many checkbooks? Have some Blacks become too uppity? And, germane to this discussion, would the financial costs of equal government treatment of gay couples be the last straw? Imagine the costs to social security and healthcare if such equal standing were permitted. As an aside, I imagine that amount to be relatively small and countered by the decrease in AIDS related expenditures. But, a politician can use these costs and scream that gays will bankrupt us all. Granting equality can be expensive and "ungodly," yet, it's still the correct thing to do. Philosophical rationalizations are BS.

Anti-Theocrat

There are clearly issues where religious beliefs have no opposition by science. Judge Posner's example of the existence of the soul is a good one.

However, on issues like creationism vs. evolution, sexual orientation, etc. their beliefs are in direct opposition to clear scientific evidence. These issues parallel older struggles for racial equality in the US, where opposition was strongly rooted in what at that time was the correct interpretation of scripture.

Why should an outraged and vocal minority be given such strong weight when it is clear their motivation is religious belief that not only contradicts science but also has great impact on the rights of others?

KJ

Yeah, Mel. This is all about how we resent uppity blacks and women with paychecks. Thank you for your constructive input.

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