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08/10/2008

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On August 10, 2008 the Becker-Posner Blog debated Gay Marriage. Judge Posner's article is entitled The Economics of Gay Marriage--Posner and Professor Becker's article is entitled Should Gay Marriages be Allowed? Becker Judge Posner Judge Posner does n... [Read More]

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Francisco

Great article and great conclusion.

In Spain we have not observed any mayor negative consecuence after homo marrige being legalized. It was intereseting to realise how fast the fears went away after implementing the gay marriage.

The only negative consecuence was that some countries put barries to Spanish children adoption (Note: Spain is one of the largest countries in terms of international children adoptions) because they did not want a child to be adopted by a gay/lesbian couple.

I am not sure how the Government dealt with that. The government could restrict the adoption to hetero couples, but that would be discriminatory under our own laws. let adoptions to be cut in origin has also negative consecuences because those children are not matched with the adopting families. I guess the best way to solve it is being transparent to those countries and letting them to discriminate against gay couples, until those countries realize there is no problem indeed. It is unfair with the gay couples, but it's better for the children.

MWeitz

"The people who worry about the effect of gay marriage on the institution of marriage are those most committed to the institution, and they are unlikely to desert it."

I don't see how this addresses their concerns that the marriage rate could fall lower. Generally, those who worry about adverse effects of policy on social cohesion are not worried about themselves, but about what influence those policies will have on others.

BenjaminBarrett

The easiest answer to the question why gay people want to get married is to ask why heterosexuals want to get married. The main driving force behind getting married is not economic; it lies within those things you brushed aside: Gay children grow up with the expectation and hopes of getting married and having children just like heterosexual children do.

While in the past, gay people accepted the fact that they were pariahs and second-class citizens without rights, today, they are prepared to fight for first-class citizenship.

Arguments such as the right to sponsor a spouse for immigration, estate benefits, etc. are all used for persuasion, but those are all simply discussion points. Gay people simply want to get married and are willing to press for the right to do so.

avidreader

BenjaminBarrett, Neither Posner nor Becker is brushing aside any important issues because those issues that you have mentioned have been thoroughly discussed and been acknowledged. What Posner was saying is purely from an economic point of view how gay marriage would change the hetereosexual's ideals of what "marriage". And what they are saying is nill, there won't be any significant economic difference. So purely on the point of being treating everyone equal, gay or straight, everyone should have equal rights.

Alvin

Judge Posner,

I really enjoyed reading this post. However, this is now at least the second time you've stated that sexual preference is genetic. I would love for you to cite any scientific, peer-reviewed article(s) - in a reputable journal like Science or Nature magazine - that supports your claim. There isn't any. It is much more clear that sexual preference is based on cultural or environmenal factors, not genetic or innate ones.

James

Genetics Has A Role In Determining Sexual Orientation In Men, Further Evidence

ScienceDaily (Nov. 8, 2007) — Is sexual orientation something people are born with - like the colour of their skin and eyes - or a matter of choice?

Canadian scientists have uncovered new evidence which shows genetics has a role to play in determining whether an individual is homosexual or heterosexual.

The research was conducted by Dr. Sandra Witelson, a neuroscientist in the Michael G. DeGroote School of Medicine at McMaster University, and colleagues at Sunnybrook Health Sciences Centre in Toronto who studied the brains of healthy, right-handed, 18- to 35-year-old homosexual and heterosexual men using structural Magnetic Resonance Imaging (MRI).

About 10 years ago, Witelson and Dr. Cheryl McCormick, then a student of Witelson's, demonstrated there is a higher proportion of left-handers in the homosexual population than in the general population -- a result replicated in subsequent studies which is now accepted as fact.

Handedness is a sign of how the brain is organized to represent different aspects of intelligence. Language, for example, is usually on the left - music on the right.

In other research, Witelson and research associate Debra Kigar, had found that left-handers have a larger region of the posterior corpus callosum -- the thick band of nerve fibres connecting the two hemispheres of the brain -- than right handers.

This raised the hypothesis for the current study -- whether the anatomy of the brain of the sub-group of right-handed homosexual men is similar to that of left-handers.

They found that the posterior part of the corpus callosum is larger in homosexual than heterosexual men.

The size of the corpus callosum is largely inherited suggesting a genetic factor in sexual orientation, said Witelson "Our results do not mean that heredity is destiny but they do indicate that environment is not the only player in the field," she said.

While this is not a litmus test for sexual orientation, Witelson said this finding could prove to be one additional valuable piece of information for physicians and individuals who are trying to determine their sexual orientation. "Sometimes people aren't sure of their sexual orientation."

The researchers also undertook a correlational analysis which included size of the corpus callosum, and test scores scores on language, visual spatial and finger dexterity tests. "By using all these variables, we were able to predict sexual orientation in 95 per cent of the cases," she said.

The research was just reported in the on-line edition of the Archives of Sexual Behaviour prior to the release of its printed version.

McMaster University (2007, November 8). Genetics Has A Role In Determining Sexual Orientation In Men, Further Evidence. ScienceDaily. Retrieved August 10, 2008, from http://www.sciencedaily.com­ /releases/2007/11/071107170741.htm

Homosexual Behavior Largely Shaped By Genetics And Random Environmental Factors

ScienceDaily (June 30, 2008) — Homosexual behaviour is largely shaped by genetics and random environmental factors, according to findings from the world's largest study of twins.
See also:
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* Heritability
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Writing in the scientific journal Archives of Sexual Behavior, researchers from Queen Mary's School of Biological and Chemical Sciences, and Karolinska Institutet in Stockholm report that genetics and environmental factors (which are specific to an individual, and may include biological processes such as different hormone exposure in the womb), are important determinants of homosexual behaviour.

Dr Qazi Rahman, study co-author and a leading scientist on human sexual orientation, explains: "This study puts cold water on any concerns that we are looking for a single 'gay gene' or a single environmental variable which could be used to 'select out' homosexuality - the factors which influence sexual orientation are complex. And we are not simply talking about homosexuality here - heterosexual behaviour is also influenced by a mixture of genetic and environmental factors.

The team led by Dr Niklas Långström at Karolinska Institutet conducted the first truly population-based survey of all adult (20-47 years old) twins in Sweden. Studies of identical twins and non-identical, or fraternal, twins are often used to untangle the genetic and environmental factors responsible for a trait. While identical twins share all of their genes and their entire environment, fraternal twins share only half of their genes and their entire environment. Therefore, greater similarity in a trait between identical twins compared to fraternal twins shows that genetic factors are partly responsible for the trait.

This study looked at 3,826 same-gender twin pairs (7,652 individuals), who were asked about the total numbers of opposite sex and same sex partners they had ever had. The findings showed that 35 per cent of the differences between men in same-sex behaviour (that is, that some men have no same sex partners, and some have one or more) is accounted for by genetics.

Rahman explains: "Overall, genetics accounted for around 35 per cent of the differences between men in homosexual behaviour and other individual-specific environmental factors (that is, not societal attitudes, family or parenting which are shared by twins) accounted for around 64 per cent. In other words, men become gay or straight because of different developmental pathways, not just one pathway."

For women, genetics explained roughly 18 per cent of the variation in same-sex behaviour, non-shared environment roughly 64 per cent and shared factors, or the family environment, explained 16 per cent.

The study shows that genetic influences are important but modest, and that non-shared environmental factors, which may include factors operating during foetal development, dominate. Importantly, heredity had roughly the same influence as shared environmental factors in women, whereas the latter had no impact on sexual behaviour in men.

Dr Rahman adds: "The study is not without its limitations - we used a behavioural measure of sexual orientation which might be ok to use for men (men's psychological orientation, sexual behaviour, and sexual responses are highly related) but less so for women (who show a clearer separation between these elements of sexuality). Despite this, our study provides the most unbiased estimates presented so far of genetic and non-genetic contributions to sexual orientation."

Queen Mary, University of London (2008, June 30). Homosexual Behavior Largely Shaped By Genetics And Random Environmental Factors. ScienceDaily. Retrieved August 10, 2008, from http://www.sciencedaily.com­ /releases/2008/06/080628205430.htm

JamesBerles

A most interesting post this week, gentlemen. As I always do, I read all the comments after reading Posner's and Becker's posts, and I was most moved by Benjamin Barrett's. I am a married heterosexual male. I have several family members who are homosexual--a brother in law, sister in law, two first cousins, and one second cousin. (Probably more I don't know about.) My wife and her sister and brother were subject to identical environments while being raised by a traditional, middle class heterosexual couple (with a mother who was a homemaker throughout their childhood). They attended the same church, same schools, lived in the same house, and shared similar cultural experiences. Yet two of the three children are homosexual. The same holds true for my cousins. Consequently, I conclude that Posner is correct that homosexuality is the result of genetic, not environmental or cultural, forces--even though he does not support that conclusion by citing to any scientific or medical journals. I therefore respectively take issue with Alvin, who also, of course, provides no scientific citation to support his opposite conclusion. Getting back to Benjamin, his point about homosexual children growing up with the same hopes and dreams of one day being part of a stable, monogamous relationship is very well taken, and that is likely a more significant factor motivating the homosexual men and women who are rallying for the right to marry than are the factors addressed by either Posner or Becker. Be all that as it may, I come away from this discussion with one primary question in mind, which both Posner and Becker pose--why all the opposition from heterosexuals? Some of it is certainly religiously based (although obviously many opponents simply use that as an excuse or justification for their prejudice)and some of it is nothing more than ignorance or misunderstanding about homosexuality. When Woody Allen said in his brilliant film "Manhattan" that "People are meant to mate for life, like Catholics or pigeons," he made no mention of sexual preference. But American society still makes that distinction when debating the nature of the marital union. All of this is changing, albeit slowly, and as our society becomes more evolved and sophisticated the topic of gay marriage will eventually become what it should be--a nonissue.

Eric Roiter

Is it too late in our history and our jurisprudence to purge the term "marriage" from our civil (and criminal) statutes and to substitute "civil union" or "domestic partnership" for all couples, heterosexual and homosexual? In my view, the role of government is not to confer "married" status on anyone but rather to determine whether to recognize committed relationships, that is to say, whether to assign rights and obligations enforceable in our courts to couples who agree to accept them. The concept of "marriage," of course, would not disappear from our culture or vernacular but would take its place in the private and religious realms. I believe that much of the emotion inhering in the debate over "gay marriage" would dissipate, at least over time, if we settled on a neutral term such as civil union. Those who, for religious reasons, believe that "marriage" is the union of one man and one woman will remain free to adhere to that view, a view that will likely be reinforced by the religious denomination to which they belong. So, for example, a Roman Catholic, Southern Baptist, or Orthodox Jew who today is against "gay marriage" can say, "Well, a same-sex union is not, in my religion, a marriage and our civil laws do not grant that status to a same-sex couple." A same-sex couple who wish to enter into a committed relationship can enter into a "civil union" as would committed heterosexual couples and may choose to subscribe to a religious denomination that recognizes marriage among same-sex couples. If so, the same-sex couple would, of course, be free to undergo a religious ceremony within that denomination and obtain, for religious purposes, the status of "married" couple. One advantage in my approach is that religious denominations, unlike our states, are not subject to the full faith and credit clause of the U.S. Constitution. I recognize that my approach has some practical problems, not the least of which is what is to be done about everyone who today is recognized under our civil laws as "married." Perhaps we simply could grandfather their status and pick a starting date after which every couple, homosexual or heterosexual, wishing to enter into a committed relationship would enter, for civil law purposes, a civil union. A second problem, of course, is that we are dealing with 50 sovereign states and, short of a constitutional amendment, we cannot impose this approach uniformly on the states. But this does not make matters worse: we are faced today with an emerging patchwork quilt of inconsistent treatment by the states. Another issue is whether the states (and the federal government) would accord equal treatment to civil unions of homosexual and heterosexual couples alike. I would let those issues play out in the states and Congress, subject to overriding constitutional protections, notably the equal protection clause.

Jaques

Personally I consider that marriage is a word for describe only a heterosexual union. Gay unions, might be named civil unions, but ethimologically marriage is a word reserved for the heterosexual unions.

I also wanted to raise a question about an implicit cost of gay marriage. It's obvious that gay couples can't have children, and if there are more and more gay couples our western societies won't grow as much as posible, I know that they are a minority but maybe with the new progay laws, the gay population may increase (in some countries like Spain this is a reality). Related with the children issue, who will pay the future pensions of the increasing gay population?

I get the points stated by judge Posner. However I see the children issue, like an implied cost to the societies, especially for western societies whose have very low birth rates, and I'm afraid that the gay unions issue won't help at all.

Sorry, for my bad english.

Thomason

The dismal economic health of the U.S. must be the subtext here - a recent post blogged about leaving your estate to your dog, now the focus is on leaving it all to your samesex partner. Not the grist of liquidity and inelasticity that economists mostly like to dissect. But so,...
Even as an opponent of gay marriage, it is somewhat befuddling why "the law" should care whether persons choose to share ownership of property and live in a familial manner with another person, regardless of gender. If two guys co-own a house and its contents, carpool, split the cooking & cleaning, pax taxes, will everything to the other, etc., - then, why should "the law" or anyone really care? The moral objection stands, but legally and economically who should care?

Jim

Just a note to the discussion:

George Washington was married without a marriage license.

Historically, all the states in America had laws outlawing the marriage of blacks and whites. In the mid-1800’s, certain states began allowing interracial marriages or miscegenation as long as those marrying received a license from the state. In other words they had to receive permission to do an act which without such permission would have been illegal.

Blacks Law Dictionary points to this historical fact when it defines "marriage license" as, "A license or permission granted by public authority to persons who intend to intermarry." "Intermarry" is defined in Black’s Law Dictionary as, "Miscegenation; mixed or interracial marriages."

Give the State an inch and they will take a 100 miles. Not long after these licenses were issued, some states began requiring all people who marry to obtain a marriage license. In 1923, the Federal Government established the Uniform Marriage and Marriage License Act (they later established the Uniform Marriage and Divorce Act). By 1929, every state in the Union had adopted marriage license laws.

To same sex couples I would say be careful what you wish for. It all seems to me to be tortuous arguments about a non issue save for governments trying to regulate every aspect of human existence.

John

A couple of comments:

First, while it's true that few same-sex couples have been married in Massachusetts, this is only a statement about in-state same-sex couples, since Massachusetts has disallowed out-of-state same-sex couples from marrying there based on an old anti-mixed-race-marriage law. I think California has seen a bigger jump in marriage license issuances than Massachusetts did (although I don't have the figures handy right now), probably in part because it's a bigger state and in part because of out-of-state couples marrying there. The out-of-state phenomenon is interesting since most out-of-state couples marrying there will receive absolutely no economic benefit right away (and possibly some legal hassles). As for Massachusetts residents, they may not bother to get married simply because as long as DOMA remains, the benefits are small, as you point out.

Second, I didn't see it mentioned anywhere so I thought I'd bring it up: Seems to me that extending marriage provides at least one benefit to the state, namely that it encourages interdependence between/among private individuals and lessens dependence on the government. If I die before my partner does, he (whose income is lower than mine) will be much better situated to take care of himself financially if he can inherit my estate, and would therefore be unlikely to need any sort of government assistance in his old age. In addition, we help out both our families financially in various ways (e.g. college funds for our nieces/nephews), many of which would be easier and more effective if we were treated as a married couple for federal purposes. Allowing us to do such things more easily enables us to "take care of our own" much better--which is better for us AND better for the government.

Certainly, given a small percentage of the population this latter benefit may be negligible, and I haven't given much thought to how to calculate the value of this benefit.

Anyway, thanks for a very interesting post!

planetralph

The religion issue is the reason for opposition to Gay Marriage. Gay marriage combined with anti-discrimination laws create a very effective hammer to deploy against religions that oppose gay sex as sin. Religious organizations that won't employ married gays are discriminating. Religious organizations that won't allow gay married couples to adopt children won't be permitted to facilitate adoptions. The goal is to marginalize churches who teach that gay unions are sinful to the same extent that churches that encourage discrimination based on race are marginalized.
Treating the whole question as a religious freedom issue would clarify it much more than treating it as a discrimination issue. Some churches believe gay unions and behavior are a gift from God just as straight unions are; some churches believe gay unions are sinful. How does the state take a neutral stance without "establishing" one view over the other?

John

planetralph, I agree that religious beliefs are the basis for lots of people's objections. But I don't see how establishing same-sex marriage as legal prevents anyone from holding any particular belief. Even today many churches and religious organizations maintain prohibitions today on interracial, inter-religious, and inter-ethnic marriages, without any legal action or meaningful threat thereof. Of course, many churches have also removed similar prohibitions, but not because of any legal action. Why would legal same-sex marriage be any different?
The adoption example is a little different, imho, because it involves the state giving the church money to provide a service, so I think it's reasonable for the state to dictate some terms as to how the service is provided. (And I'll admit the religious objection to adoption has always seemed a little disingenuous to me: shouldn't the group oppose placing children with couples of other religions too? Shouldn't it matter more to them which god(s) the parents-to-be teach the child to believe in, rather than what their anatomy or bedroom behavior is? But I guess that's just me...)

Richard

Judge Posner cites the Defense of Marriage Act, and the relatively low number of same-sex couples who have wed in Massachusetts (I haven't seen data on that; I'll take his word for it), as limiting the impact of same-sex marriage on society.

I am confident that the Defense of Marriage Act, and other laws limiting LGBT rights regarding marriage and other aspects of life, will eventually be repealed. Polls consistently show that opposition to LGBT rights is stronger among the older age groups. The process of generation should take care of that situation.

I say "eventually" repealed; of course, I can't put a number of "eventually".

If the percentage of same-sex couple taking advantage of newly-won marriage rights is small, perhaps it will take time for the notion of being eligible for marriage to sink in, for some of us.

I'm a rather mature gay man, and I did not grow up thinking I could marry Mr. Right some day. If future generations grow up with that expectation, perhaps they will marry at rates at least as high as those of the heterosexual population.

PlanetRalph

John,

Thanks for responding to my comment. The courts mandating that same sex marriage must be allowed because denying it violates a "right" to gay marriage is what puts churches in an awkward position. If a legislature just implemented gay marriage without creating a protected class of individuals it wouldn't be a problem. Even if a court ruled that the state had no rational reason to prohibit gay marriage other than a religious reason which violates the establishment clause, it would be fine. Churches can be marginalized by a right to gay behavior (or a protected class of gay individuals) because a lot of things within the traditional mission of a church like providing adoption services "are a little different" because the state is heavily involved. For example organizations sponsoring universities, hospitals, and housing for the poor need government cooperation and funding to operate on an equal footing with competitors.I think most of the religious opponents of Gay Marriage want the state on their side in religiously motivated opposition. In the future, they might wish the state was strictly neutral on the religious question, which would mean allowing gay marriage.

neilehat

All this reminds me of something I heard in movie back when: "Do you like oysters or do you like snails? How about both or perhaps neither? You see, it's really all a matter of taste." Unfortunately, discussions about what people do or don't do with their genitals If find quite tasteless, not too mention sophmoric.

With that said and done, let's move on to union's and marriage. Perhaps, it might be easier to draw the distinction by developing two bodies of Law; Civil and Canon. As for Union's these fall under the Civil category and are regulated by the State. For Marriage this falls under the Canon category and is regulated by the various Churches. Currently the State requires a liscense (it's authority under Civil Law) the Church requires a union before God and assembled (it's authority under Canon Law). Living in Nation with a fundamental separation of Church and State, the Courts have little say in the Church's use and application in Canon Law. Just as the Church has little say in the State's use and application.

So where is the problem?

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Jack

Jacques you might have to this the following through a bit more:

"I also wanted to raise a question about an implicit cost of gay marriage. It's obvious that gay couples can't have children, and if there are more and more gay couples our western societies won't grow as much as posible, I know that they are a minority but maybe with the new progay laws, the gay population may increase (in some countries like Spain this is a reality). Related with the children issue, who will pay the future pensions of the increasing gay population?"

.......... First, gays are born to hetro couples, so the relaxation of societal prejudices against them is not likely to create more gays, though there may be a few more who will be liberated from the closet or a life of pretense.

.......Marriage doesn't create more either but probably allows more to give up a single life that is more dangerous and costly to society.

.........As for "as much growth as possible" I don't think many assume that is the ideal today.

........ We all might want to consider who pays for pensions. ARE we counting on a pyramid scheme forever? And IS surplus wealth to care for retirees more likely to come from an ever increasing population or from a smaller and perhaps wealthier population?

Keep in mind that childless gays often have more time to devote to career, pay more taxes (no deductions for children) and by not putting two kids in the school system save their fellow taxpayers some $200,000 (the approx cost of K-12 education for two. It's interesting to consider that were the $200,000, typically invested in the education of the next generation, invested during those same years for retirement would make a very fine retirement fund.)

Would a lower population growth nation be wealthier per capita than a high population growth nation? Not sure, and it would seem a good topic for this board sometime. But I would think the slow growth would be wealthier as the costs for the small, existing population, to keep expanding infrastructure and building schools, homes, buildings for new arrivals is difficult in a growing population. What makes fast growth seem "wealthier" is all the jobs but a real per capita wealth increase is probably not taking place.

sohbet odaları

Thanks a lot very good

Jim

Religious objections to same sex relations in the West were(are) based on the moral foundations of natural law as espoused by Thomas aquinas in the 13th century and to a lesser extent, Thomas More in the 16th century. basically those teachings state that the essential nature of things dictates their moral function. Genitalia are therefore in the first case designed for procreation and a man and a woman form the basic unit for promulgation of the race. Christian societies have adopted that approach because of the close ties between the church and governments. Formerly "religious states are becoming more secular and therefore this discussion. The Greeks and the Romans were tolerant of same sex and bisexual relationships even within the context of marriage. If modern states wish to license "unions" of whatever stripe, so be it. That simply encourages one "view" of society. I am not at all sure that licensing or not makes any economic difference at all. Without it, divorce would be simpler and less expensive and may be less contentious. Children might be better off as well if there weren't the threat of taking half of someone's assets in a divorce.

If the economists want a model to study the economic effects of one state or another, they have a perfect model in some middle eastern countries in which same sex relationships are cause for death by stoning.

anair

Why is the government interested in endorsing a symbol of love at all? They don't ask if people love each other before they get a marriage license. Do they? Shouldn't it be that the only reason the government endorses marriage is because the marriage institution is the best situation to bring future citizens into existence while providing the two different equally important nurturing styles of a mother and a father.

And it can't be that the main reason for homosexuals' support of gay marriage is simply their desire to be treated equally with heterosexuals.

In regards to marriage, Homosexuals and Heterosexuals are treated exactly the same. As a Heterosexual I cannot enter a government endorsed same-sex marriage either. I see no reason for the government to endorse an institution that doesn't have the potential to give us many new citizens.

John

Oh, and of course, in my comment above, the example of a man discovering his homosexuality after marrying a woman happens the other way as well (woman discovering her homosexuality while married to a man), with the same awful results. I didn't mean to imply that only one of these occurs and not the other. (One might be more common than the other; I have no data on the subject.)

David

Not mentioned here is the way the "right to marry" has come about in California- the state Supreme Court's discovering a right that in somewhat different form was vetoed by the popularly elected governer several years before. There are no barriers to co-habitation, inheritance, etc, and many private employers already offer benefits to domestic partners, regardless of whether the state recognizes the partnership officially. When my fellow citizens and/or our elected representatives pass legislation conferring gov't-provided benefits on same-sex partners, and our state executives sign those into law, I'll be all for it. Until then, I will oppose forms of marriage sanctioned only by the judicial branch.

Publicola

http://calmarriagedefense.blogspot.com/

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