You say changes in sexual mores can be explained in largely economic terms. If so, why can't we use economics to predict further changes?

Hi Judge Posner,

Always enjoy reading your take on things. Do you have any data supporting your comment that "In communities (and there are still some) in which premarital sex is strongly disapproved, young people marry to have sex, but marriages so motivated are likely to end in divorce, producing more unmarried people and so more demand for nonmarital sex"? I would've expected a lower divorce rate. I think of women who are promiscuous, I doubt they make good future marriage partners - less likely to remain faithful to their husbands, less feminine and traditional, more selfish. Again, not a good candidate for long-term marriage.

I wondered about that part too. When premarital sex is "disapproved of" in a community, it's usually because people there still respect the institution. Marriage is not just a social liscense to have sex.

I think of women who are promiscuous, I doubt they make good future marriage partners - less likely to remain faithful to their husbands, less feminine and traditional, more selfish.

FYI, "willing to participate in premarital sex" is not the same as promiscuous. Furthermore, this stereotyping of women is completely unfair since for every woman having premarital sex, there is a man having premarital sex (or worse, sex outside of his marriage). Thus, if your point about marriage holds, it is just as likely to be the fault of the men involved as the women.

Erica,

You sound extremely naive if you think a man having pre-marital sex is the same as a woman having pre-marital sex. Young men have more testosterone (thus, the need for sex) and face more pressure to engage in pre-marital sex than women. Men can "recover" and still have strong committed marriages after having pre-marital sex. Once a woman is "tainted", it's harder for these women to settle down, change their ways and make good marriage partners. Of course, there are lots of stupid men out there who don't care. But a women who is having pre-marital sex is unlikely to find a "good man".

AJ,

You are joking, right?

While the chance of sitting in on one of their lectures would be a small one, I enjoy being able to read their writings and process their ideas. Thank you Dr. Becker and Dr. Posner for having this blog.

But a women who is having pre-marital sex is unlikely to find a "good man".

I'm willing to side with Erika--note the "k" for future reference, ne?--on this issue. I don't think I can agree where that comment was going unless I'm inferring your point incorrectly. Using vague qualifiers like "good" or "bad" makes the discussion spin its tires for me. What is a "good man"? What is a "bad man"? Either way, any broad generalization about human sexuality between the sexes is going to have a hard time being defended.

Generalizations are not generally unfounded, heh heh.

In the above dispute, if women tend to do more child-rearing and men tend to do more bread-winning, the husband has more to lose from his wife sleeping around and bearing a child by another man, which the husband than supports for years, than vice versa, where the husband may have another child out somewhere that he does not have to support by virtue of marital ties to the mother. That is a valid generalization.

The only major question, then, is whether women tend to be more nurturing and child-rearing by nature, and men tend to be the competitive go-getters who win the bread for the family by nature. That is how men and women by and large are in the world today, cross-culturally and cross-historically. Hard to chalk that up solely to the caprices of cultural habit.

I have one economic factor to add to the mix. I think it is subtly very important, perhaps moreso than people might thing, and that is the public education entitlement. The education entitlement has dramatically lowered the cost of having a baby out of wedlock or by a financially irresponsible man. Once the child turns 5, and 4 in some states, daycare is guaranteed for most of the working hours of the day, and it is paid for by the state. Hence, sexual irresponsibility (having unprotected sex out of wedlock without birth control) comes at a significantly lower price. The long-term effects of this sort of economic entitlement creep into culture over a period of decades–as the cost of irresponsibility is lowered, the social mores against it also tend to water down over time, to the point that responsibility is actually castigated by many people.

In criminal terms at the district court I work at, sentencing defendants with multiple children by multiple mothers they have never married is the rule, not the exception. This will continue, because irresponsibility continues to breed as long as the economic cost of that is low.

RWS's comments about irresponsibility make me wonder a bit if society might be a bit on the far side of the pedulum swing in terms of sexual morality. Often the argument about sexual morality takes on a tone of "it's gotten worse, therefore it will keep getting worse". However, if you think of this in terms of the economic cost of responsibility, the cost of being irresponsible cannot keep going down. Eventually some other factors will come into account and drive the cost of being irresponsible back up. Whether that cost be medical (like AIDS) or monetary (obligation to support all children one creates), an increased cost should increase responsibility.

To look at it in a less economic light, perhaps society is in something like it's college days of sexual morality. The heady fragrence of sexual freedom leads people to take too much advantage of that freedom. That does not mean the freedom was bad; it will just take time for people to learn how to not abuse it.

I think of women who are promiscuous, I doubt they make good future marriage partners - less likely to remain faithful to their husbands, less feminine and traditional, more selfish. Again, not a good candidate for long-term marriage.

Thanks AJ. You have aptly demonstrated a point I was trying to make on a couple of British blogs. Apparently, Britain is even further removed from traditional sexual mores than the US: sex on the first date is exceedingly common in Britain and dates are not as formal as in the US. I made the point that American men often discount the suitability of such women as long term partners.

AJ succintly describes some of the causes of "Chasing Amy" syndrome. (IMDB the term if you aren't familiar.) I wonder how much "Chasing Amy" syndrome impedes sexual satisfaction or mate-search satisficing in the U.S. compared with more libertine nations?

I think it is interesting that the article mentions the conservative religious communities, for lack of a better terms, view of marriage and sex. Specifically, the idea that the only reason why couples get married is to have sex.

I do not really dispute this claim, having grown up in a similar community. I recognized that I did not wish to participate in this almost utilitarian view of marriage a few years ago. If I marry, it will not be to have sex. Rather, it will be because I wish to spend my life with this particular person and to raise a family with her.

I am currently (between studying for exams) reading John Paul II's book "Love and Responsibility". In it, he outlines his "personalistic" norm for marriages. Quite frankly, it is a challenging book. It calls for greater love and respect then I am naturally inclined to give the fairer sex. Basically, it calls me to be a better man (ala Jack Nicholson in As Good As It Gets).

To RWS:

Granted, I won't say that there aren't kernels of truth to broad statements, but when you start stating that "good" people do X while "bad" people do Y, I tend to automatically ask "Why?" or "Where is the proof?". It may be there, but just stating "Once a woman is 'tainted', it's harder for these women to settle down, change their ways and make good marriage partners" seems way off base.

I would think these kind of women could easily change their ways if someone would be willing to give them a chance. It is just that the "taintedness" makes potential mates take a bee-line away from such people. The more that I think about this issue, I would imagine that it is just a case of being unable to end the cycle. Granted, choices a person made during adolescence and early/mid/late twenties are a good sign as to how the rest of their life is going to develope, but let's not call the issue dead and bury them.

Erika, AIDS is an interesting phenomenon from an economic perspective. In this country, it appears to spread rapidly through permiscuous homosexual cultures. Incredibly, permiscuous homosexuality appears to persist in the face of AIDS. I have several friends (younger) who frequent gay bars and engage in promiscuous sex that is almost certainly unprotected, even after we have had 20 years living with AIDS. The tendency towards more monogamous homosexuality, in my observations, is more frequent in older, highly educated gay couples (over 40 or 50 years old), and monogamy in several I know seems to me very likely and is stable. But, among the young, the male enjoyment of promiscuity is just too large a pull. Some of the young gay men I know have expressed a desire for a woman, but the great expense of finding a compatible one and dating for a long time and showing great commitment, not to mention the exposure to shame of rejection and so forth, is just too great in the face of much pleasure at lower cost.
I think that AIDS has changed *how* people have sex, though. That goes especially for homosexual relationships. Let’s not get into that one, *wink*, but there are less risky activities that have grown up in response.

The problem with child support being a deterrent to out-of-wedlock births is that, often, it is not really a deterrent. In federal criminal sentencings, that issue often comes up, and the simple fact is the men generally have no known assets, or credit card debts that greatly exceed assets. Amazingly, too, a lot of women refuse to go to court to get child support. That is just not that great a deterrent for all too many men.

I think Posner is omitting the primary causal factor--increases in urbanization.

The relative economic freedom of women only explains (partially) one side of the equation. For every committed female, there is a committed male. Has male economic freedom increased? If so, would this explain the effect?

Urbanization leads to distributed social burden sharing. This later factor is more accurately that factor which undermines marriage as an institution. The notion that it is only due to the relative economic independence of females relies on "old-fashioned" stereotypes of women as servants in an unfair bargaining position. How can this be when the whole institution relies on a 1-1 pairing? Supply and demand doesn't square with this preposition. The only change in that equation is in the distribution of goods being supplied and demanded (follow this line too much further and trouble lies ahead....).

So the primary dynamic is an integrated economy (mechanization), leading to urbanization, leading to social burden sharing, leading to the decreased need for vertically structured relationships (families), leading to a decreased need for stable marriages.

On the other hand, there are societies where woman share an equal social status and do have stable families/marriages but which are not urbanized.

One trend that Posner doesn't mention but that may also be at work relates to the interpretation of texts.

Protestantism has since its inception emphasized the use of biblical texts in arriving at moral judgments as to what moral principles are God's. An economist might say that the protestant movement itself was made possible by the invention of the printing press, which allowed much cheaper access to those biblical texts. Traditionally, believers had to rely on those who could afford an education and books to tell them what God's will was. Since the reformation, the trend toward believers better informed on what scripture actually says had led to more, and more nuanced interpretations of scripture.

As Posner points out I think accurately, the Bible has relatively little to say about sex. The traditional interpretations of what little it does say have remained almost unchallenged since around the Reformation perhaps because of the cultural factors that Posner cites didn't change much in that period and because of a background norm that exists within Christianity of leaving traditional beliefs unchallenged without convincing evidence against them.

In the last 100 years in the United States, protestants have begun to move from a "plain meaning" approach to the interpretation of scripture into a more nuanced "contextual" approach that incorporates more of an understanding of the historical background to the texts, and even the personalities of the authors (a consideration that the plain meaning approach tends to shun). As a result, there are some who calls themselves Christians today who would have experienced tremendous internal and external resistance had they tried to do and maintain a particular lifestyle even fifty years ago. Peter Gomes, for example, has given a pretty careful analysis of each passage in the bible that traditionally has been interepreted to show homosexuality sinful, concluding finally that these interpretations are not the most accurate.

If it's true that information and education is cheaper now than it ever has been, then it seems a greater variety of more nuanced intepretations of scripture might be possible now than ever before, allowing for many who could not traditionally without at least psychological tension call themselves Christians and engage in a particular behavior to do so with at least some claim to legitimacy. Thus I think that at least some part of the sexual revolution in the United States may be a result of the explosion of the traditional, simple Christian justifications for certain moral beliefs about sexuality into a multitude of more sophisticated moral beliefs still ultimately tied to the bible (and so Christian in that sense) but not necessarily to the traditional conclusions.

At least by protestants, sex might come be treated as a morally indifferent activity not because it is no longer considered dangerous physically, but because it is no longer considered morally relevant scripturally. Or at least, because it has become so much more difficult for any particular scriptural interpretation to claim superiority socially.

As always, an interesting topic. However, I'm left wondering if there are additional factors not directly attributable to economics and the role of women in society. Modern, urban culture, though possibly created in part by a change in the role of women, has created a new social dynamic. Communities are larger and more diverse.

With this increase in community size, there is an increase in annonymity. Members of the community become less involved in the activities of their neighbors and the instance of being caught declines, as does the level of punishment for the crime. Individuals from small rural cultures are highly aware of the crimes of their neighbors, while large communities make this much more difficult. Likewise, being shunned from a small society is much more common and damaging to an individual, whereas being shunned from a large city is next to impossible. The lack of recognition of and punishment for a socially evil act makes doing the act much more common. Urbanization has brought this about and is the reason that in many communities around the world today, there is a direct correlation between the size of the city and moral decline.

Increase in globalization has also created a situation where communities are much more diverse than in the past. This diversity exposes people to differing viewpoints, including those regarding sexual mores. This exposure cannot be exclusively responsible for the change in moral attitudes, but I believe it is a significant factor that cannot be ignored.

This argument is obviously not exclusive to Catholicism, but is as true of Catholics as it is of Jews and Moslems.

I was wondering whether Judge Posner had read Roger Finke and Rodney Stark's book Acts of Faith, which is an economic study of religion by two sociologists. In it, they argue that the fall in the supply of Catholic priests, nuns and monks is due to Vatican II, which fundamentally changed the psychic incomes of religious professionals. For instance, V2 relaxed the strict requirements that religious professionalism was needed for "spiritual perfection" - it was perfectly legitimate and holy call for a Catholic to serve in a "secular" calling.

My thoughts, after reading the book, were that if it is true that the current priest shortage (which they note in the book) is due to Vatican II, then perhaps the pedophila among priests is due to adverse selection in the labor supply of priests created by Vatican II. For instance, if there always existed two reasons for men to enter into the clergy (one being a spiritual call; two being sexual guilt), then Vatican II, by reducing the benefits of being a priest (while holding constant the costs, such as celibacy), could have reduced the incentives needed to produce the right kind of priests. This might then explain the church's reluctance to fire erring priests - Vatican II had created a shortage, and the priesthood now consisted of a larger proportion of wayward priests.

Heh heh. Posner said "extrude." Heh heh heh he heh heh.

joking now, right?

I think scott's correct about Vatican 2 and the supply of priests. To echo what he said, a Catholic buddy of mine told me that the "unstated" viewpoint on homosexuality and the priesthood was that it was a good place for them because, *wink*, they shouldn't be having sex anyway.

I also think that ch's point that urbanization leads to lower social condemnation of sexual licentiousness is very key, to which I would add that the cost to one's reputation among members of the other sex of sleeping around has also gone way down in urban communities.

Interesting link to a libertarian argument in favor of a traditional approach to sexual relationships:

http://www.policyreview.org/apr05/morse.html

What about that "AIDS notwithstanding?"

How can you "notwithstanding" AIDS when you're claiming that the cost of sex is reduced?

And how can you claim that the cost of sex really is reduced, partly due to things like condoms, when AIDS is running rampant -- suggesting that many people in the U.S. and the world aren't using them? (Condoms, that is.)

And how can you explain anything in seemingly rational "economic" terms when people aren't taking the di minimis extra cost of condom usage and using it to minimize the risk of AIDS?

Doesn't AIDS in fact completely defeat the idea that sex can be seen as "largely" an economic cost-benefit thing? Any rational actor would use the rubber and avoid the death. But we're not dealing with rational actors when we're dealing with sex, we're dealing with mystic darkness and pure reptillian brain-stem evolutionary responses. You can't economize that.

(I'm not even going to touch RWS's suggestions as to homosexuality.)

As a male, I wonder how the invention of the condom for (relative) safe sex has affected men's view of the sexual act. For the most part, I can agree with JP II when he says that contraceptives lead to a utilitarian view of the partner. In the end, I do think there is a causual relationship in contraceptive use and the objectivization of women, from a man's perspective.

Maybe this is from my experiences in university, but most sexual acts are short term, with no real intention of commitment. In the end, the guys are using girls to achieve orgasism. That is the only reason why there is a girl. I do not know about anyone else, but I would be hurt if someone did that to me.

Paul Gowder:

The economic answer to your concern is that some people obviously ascribe an exceedingly high value to sexual activity, enough to offset the risk of AIDS. They also may have a high discount rate, which means that they value their future life significantly less in present value terms than they do their present quality of life.

Economics fully explains such phenomena. The people you suggest are so irrational as to lack all economic explanation would almost certainly not engage in sexual activity if someone were pointing a gun at them and guaranteed that they would be shot to death upon completion. At that point, the cost and certainty of the activity outweigh the gains, and so they do not do the activity.

In addition, the fact that someone may consider sex with a condom to be much less satisfying does not defeat the fact that this preference can be subjected to economic analysis. That is his value judgment, which is then entered into the cost-benefit marginal analysis.

Economics also explains such things as tree pollen strategy, insect feeding behavior, and so on. Consciousness or “sophistication” of thought is not a prerequisite for economic analysis.

Why no mention of the rise of consumerism and increasing sophistication in identifying and selling towards a particular consumer's needs, wants and desires? We're talking about the commoditization of desire, which affects how we think of sex and sexuality. I'm not referring as much to the incidences of sex in popular media (which is simplay a reflection of the times), but, rather, the use of behavioral science in business and marketing.

Sex sells on many different levels. Of course, it's not just sex, but all of the other human frailties like greed, envy, hate, hubris, et al. Each of those weaknesses is a starting point for manipulation. And, if the only virtue left is to get people to take a particular action, then we really are worse off.

But I don't think it's so much that social mores have changed all that much. Rather, I think that what was once inherently private or kept behind closed doors of clubs and families is now increasingly public due primarily to technology. Sex and promiscuity are universal to every culture that I've experienced. And we're kidding ourselves in defining a purer, more innocent time in our own western culture. There was perhaps a time when propriety constrained certain actions and expressions of human desire. But make no mistake that the desire and behavior have always and will always be there.

So, rather than an erosion of public morality, we have simply become a more tolerant (ironic, isn't it), honest, transparent society.

Judge Posner,

Speaking of legalizing abortion in response to a change in sexual more, please tell me one state -as opposed to a court decision within a state - where the people (including elected members) have recently passed laws granting more freedom to have abortions? It has been the exact opposite. States and Congress have both passed laws to restrict late term and partial birth abortions, only to have judges strike them down. You're talking about judge-made law.

As for the costs of sex in relationship to AIDS -

It may be the case, too, that in ethnic communities, where biracial matching is relatively rare, and the ratios of men to women are relatively low, that males have disproportionate power in the bargaining over whether or not to wear a condom. It is known, for instance, that women incur more risks from unsafe sex than men, both in terms of possible fertility risks (though abortion and the pill have reduced these), as well as a higher probability of contracting and STD. The probability of infection from male-to-female is 20% higher than it is for female-to-male. Plus, condoms reduce the sensual pleasure for males, and probably have a negligible effect on females. Hence, with asymetries in the risk across the two partners, low sex ratios (and therefore increased male bargaining power in a Nash cooperative game context) and low biracial matching, you may have both increased concurrency (ie, simultaneous sexual partnerships) among men, as well as decreased condom usage. That could account for the HIV/AIDS epidemic among blacks, which exhibit low sex ratios at the urban level (the lowest sex ratio since modern censuses began taking note, actually), low rates of biracial matching, and diminished condom usage.

Also, Emily Oster at Harvard (second year graduate student) has an upcoming QJE publication on HIV/AIDS in Africa and its relationship to the presence of STDs. If there are high occurences of STDs in a population, then those alone may explain as much as 50% of the HIV/AIDS rate, because many STDs amplify the transmission of HIV/AIDS. For instance, ones that create open wounds near the genitalia may amplify the transmission rate of HIV/AIDS.

Lastly, to Paul's point, keep in mind that when you are thinking about disease transmission, you may be dealing with instances where an individual does not fully internalize the social costs of his actions. For instance, we know that STD epidemics are largely driven by both high average number of sexual partners in a population, as well as the variance of the number of parters in that population. If you have a population in which the average individual has several partners in their lifetime, and you have a "core group" of individuals who are extremely sexually active, then that core group can help drive the entire epidemic. Yet, when they increase their partnerships, while putting the network at greater risk because of their high connectivity, they most likely are not internalizing those kinds of social costs (if that is the right way to think about it). Ian Ayres and Katherine Baker have a law review article that came out recently (I think it was either Yale law review of Chicago law review) called "Criminalizing Reckless Sex" in which they discuss one possible policy response to these types of externality problems in sexual networks (they propose to criminalize first-time sexual contacts in which individuals do not wear condoms. It's a compelling article, and discusses the problem not only from an economic perspective, but also from a social norms perspective).

To bring up the conservative community again, Posner says "In communities (and there are still some) in which premarital sex is strongly disapproved, young people marry to have sex, but marriages so motivated are likely to end in divorce, producing more unmarried people and so more demand for nonmarital sex". I don't think this is accurate. We have to ask "Why is premarital sex strongly disapproved?" Probably because of religion. So those that follow the community norm of not having pre-marital sex are probably more religious on average and are not getting married primarily to have sex, but for religious reasons as well (starting a family, etc.). Being raised in such a community, I will say that sex is a strong incentive to getting married - but not the primary factor.

I would expect less divorce in such communities because not only are these people more religious and looking for religious people to marry, but just as there is strong disapproval of premarital sex, there is strong disapproval of divorce too. I view this as a good thing. If I have to tough it out through rough times in marriage, I am more likely to have a more fulfilling marriage overall. If I divorce at the first sign of trouble, then I am likely to have multiple, shallow marriages.

Also, what's the economic explanation for suicide in cases where there's no terminal disease or chronic disability? Teenagers jumping off cliffs, etc.

Paul, I think you make good points, but the extreme you present is not actually that far off. Economics (or, at least, microeconomics) is the science of decisionmaking under budget constraints. It is not a theory of the world, metaphysics, self-hood, or anything else. It sounds like that is where you are having a problem. Economics merely explains, in positive terms, the process of decisionmaking. Trees maximize the number of other trees they can fertilize under the budget constraints of sunlight, water, etc. If conditions change, they probably will change their fertilization method by the process of genetic evolution. In that respect, physics, biology, and economics are all sciences. Economics is just a specialized form of explaining the process of decisionmaking among humans.

I think humans have some free will, but not unlimited free will. We live in the real world, which is a world of decision-making under budget constraints.

As far as the economics of suicide, I’m sure you can guess my answer: that can be explained by extreme conditions in which the value placed on future existence, when perceived benefits and costs are calculated, is negative. It may be unfortunate or tragic or anything else, but that is the explanation for the decision process. The goal for those who want to deter suicide is obviously to try to get the person to value life more and consider costs to be less. Sounds a little dry, but that is part of it. I mean, that is what you usually see in the “person on the window sill ready to jump” scenes in movies. The hero either tries to encourage a revaluation of some sort.

This sort of explanation tends to be accompanied by criticisms that it’s life-negating or missing something or whatnot, so as for my own assessment of how it intersects with life, I go to church every week and do lots of volunteer work, but I also enjoy economics. No different to me than being Catholic and accepting Galileo and Darwin.

Didn't Gary Becker win his Nobel partly because of his work in the economics of marriage and such? He's already broken those eggs for a round or two. Judge Posner also has a book on sex and law, though I haven't ever looked at it. Anyway, that's kind of interesting now that they are blogging on the subject.

RWS: I guess that's my core objection to economics in general (which shows up in dozens of different ways). It's just so immensely reductive (and yes, life-negating), turning humans to nothing more than the pattern of their choices, and at the same time nihilistic, in that it presumptively makes all decisions (such as the suicide thing) into presumptive cost-benefit analyses -- even when those decisions are influenced by mental illness or drunkenness or some such. (And, indeed, economics probably would impute drunkenness-decisions to some implied cost-benefit analysis in the decision to get drunk...)

I think we need to remember that science (and I'll concede arguendo that economics is a science, though I question the committment of its practicioners to the scientific method) is the servant of philosophy, not the other way around. Human life, being finally constrained by mortality, is only worth anything if it is given some meaning -- any meaning -- beyond that of mere unreflective stimulated action. ("The unexamined life is not worth living," as it were.) There is no question that we in fact have a consciousness that attempts to give meaning to what we do, and that consciousness influences our decisions. In the face of that, I'm inclined to categorically reject any science that refuses to take this consciousness into consideration.

But hey, I'm an existentialist (somewhat). You pick your own philosophical poison. There are any number of schools of philosophy that are perfectly compatible with the reductive theory of economics. However, I think it's important for those who espouse economics to realize that there are also a significant, substantial number of attempts to find meaning for humanity that are incompatible with economics as presently practiced, and are yet still legitimate and both internally and externally consistent. Economics, science though it may not be, is not an exclusive system: its explanations must necessarily permit of alternative, equally valid, explanations.

Paul, post the entire link. For some reason, that link is not working for me. I keep getting sent to a blogger sign-in page. -sc

This is not because these religions have become increasingly prudish (though Catholicism takes a harder line against abortion than it did until the nineteenth century . . .

Increased opposition to recreational sex may indeed be a sign of increasing "prudism," but I don't see how a change in attitude on the life-and-death issue of abortion can be so characterized.

Hyh's comment: "I'm not referring as much to the incidences of sex in popular media (which is simplay a reflection of the times), but, rather, the use of behavioral science in business and marketing."

I think it's a mistake to see the media as a reflection rather than a projection of the times. Everyone knows that the media is constantly pushing the envelope of what is immoral in order to make it permissible. The media normalizes immoral behavior, an easily observable fact in every medium that I am surprised the judge omits from his analysis.

The weakest presumption in this analysis is the idea that the male marries in order to have a stay-at-home wife to raise children. How can this be more than an exception in an economy where the vast majority of couples both work?

So Posner is left with the obvious contradiction to his utilitarian thesis: people marry. On one hand he posits that originally, this was done for sex. Yet, the economies throughout US history were stable in regards to child raising. Couples would marry when they expected to be able to afford a family and raised the size family that could be accommodated by their local economy--all this despite the fact that we did not have social insurance or AFDC. Out of wedlock childbirth was relatively rare. Yet, contraceptives were also rare. So, the human animal must have applied some control that is not being applied today.

Becker seems to believe that such control is impossible. Well, history asserts otherwise.

Again we are left with the question, "Why do people marry?" Posner has no good answer according to his utilitarian view. Companionship does not require marriage.

Well, the answer is obvious (I discussed it earlier). This fundamental dynamic however entirely escapes Posner's model of human behavior. Isn't it odd to have a model of a process with no plausible explanation of the fundamental character of the process?

Pope John Paul II seemed unusually conservative in matters of sex not because he was making Catholic sex doctrine more severe, but because he was refusing to yield to strong pressures to relax it. He was swimming against the tide.
Wouldn't a better metaphor be "He was standing firm against the tide"? After all, he wasn't changing the rules, just reaffirming them.

Didn't Karl Marx try to explain history as a progression of economic (production) relations? This sounds like another attempt to explain the present without any reference to subjective human choice and only as a result of economic circumstances. Not only that it predicts the evolution of the future by extending a "straight line".

What do you mean Posner has "no good reason for why people marry"? They marry because the the joint utility exceeds the single utilty. Why that is the case mayh be because of public goods within the family (children, for instance), economies of scale, whatever. but there's nothing in Posner's argument that I can detect which states marriage is somehow an anomaly.

Scott,

How is that precisely? Posner does not say. In fact, the criteria underlying the trends that Posner cites do not explain the simple fact that people marry.

The explanation that Posner offers is pathetically weak and contradictory to the great percentage of married working couples in our economy.

How is marriage an economic or social benefit? For a while (before tax reform) it was actually penalized.

It is a gaping hole in his model.

"The costs of engaging in sexual activity have fallen dramatically over the last half century (AIDS notwithstanding), for many reasons. One was the discovery that penicillin is a safe, certain, and inexpensive cure for syphilis."



In it's place we have new diseases that have no cure, you're lucky if you just get syphilis - Hepatitis A, B, C, to infinity and beyond!, herpes, venereal warts (HPV), etc... there's plenty we have no cure for, AIDS is just one in a million.



This is not to even mention that penicillin-resistant syphilis, gonorrhoeae, and staphylococci is on the rise...

Paul,

There's no gaping whole. I don't know what is difficult to understand, but I suspect the source of your confusion is found in your caricature of economics.

Economics allows for social and emotional value. That is included in what economists call "utility." The utility (benefits) of marriage exceeds the costs of marriage for those who marry (or at least expected benefits and costs). Those benefits can exclusively be personal satisfaction. I really don't think you have reflected on this very much. Many monetary exchanges serve purely emotional ends, yet economics explains those transactions perfectly fine. Economics is not just about transactions, but about decision making of any kind. Is that what is giving you trouble? Think of benefits and costs as broadly as possible, and that is what economics uses. Economics isn't just about money and economic growth. It is about human decisiion making. Economists can come to opposite conclusions without ever doubting the power of economic thinking. The difference is found in the assessment of the costs and the benefits. Difference can also be found in how rational individuals behave. Maybe you think humans run more off of instinct without reflection. That's legitimate. But that doesn't mean economics cannot, in its way, explain human behavior. It would only mean that economics provides a false description. Which is your position?

Palooka,

Precisely, in economic terms, what is the utility of marriage as opposed to cohabitation?

Saying that economics includes emotional valued items is hand waving.

As far as concrete benefits, there are all those "incidents" of marriage which gays are now clamoring for, apparently. Those nearly one thousand benefits which it is absolutely unjust to keep from them, remember?

Secondly, there is often religious and social value attached to being married over cohabitation. It is a way to signal to your partner and to society a level of committment that cohabitation does not provide. Again, I am not sure what is so difficult to grasp.

It's not hand-waving. One of the things people value which causes them to undergo the marriage commitment is the love and companionship they receive from marriage. Take that benefit out and marriage is less likely to occur. You are correct that it is part of the decision process but wrong to believe that decision science cannot include that in the mix of factors, and also wrong to believe that Judge Posner is oblivious to that. His post is not an all-encompassing statement of his views on these matters or some comprehensive model, and should not be taken as such.

RWS, Palooka:

In a model, it is necessary to identify the key forces that make the thing work.

Do people get married for simplified estate planning? Is that what all the trouble is about?

Is there a social stigma to cohabitation that is so serious as to overcome the loss of opportunity (divorces can be costly)?

If for religious reasons, then explain the Catholic phenomena.

Love and companionship? Phooey! That does not require marriage.

Even still, people marry and marry again. Why?

What is the value of marriage?
(If you don't get it by next go round, I will not leave you dangling for long).

Chicks dig weddings.

^ Nail, meet hammer.

It is an energy balance.

Marriage provides micro-stability (trading entropy for energy) that allows the couples to concentrate their energies elsewhere.

Sex is an energy sink (not the great recreational source that some imagine--this is actually potential energy being expended that might better be used building castles and such. This is actually a common thread throughout cultures).

That micro-stability is necessary not only to raise children which may have some future economic utility (not so much these days), but also to allow the individuals to focus their productive energies in their professional careers.

Both sides of the equation are seeking security through a social construct that gives up sexual opportunity as the cost of creating the social barrier within which these microcosms of stability can be created.

So, contrary to Posner's take on sex as a good to be acquired and bargained for (this makes no sense when sex is essentially free), it is the stability of limiting sexual opportunity and minimizing its energy cost that people seek in marriage (so much for romance). An integrated society that provides social insurance devalues this security since overall risks to economic viability are lessened. Nonetheless, since the need for economic growth is a consistent force on the individual, we seek ways that allow us to focus our limited energies towards this end. Marriage helps us leverage our energies.

Of course it is possible to translate energy to economic values.

The point is that Posner has the relationships fundamentally wrong.

His model would be unstable in terms of marriage.

This essay reminds me of essays that medievals used to write about the origins of the universe and man, etc. Posner uses an accepted modern discipline, economics (in medieval times, exegetical readings of the bible & rhetorical logic) to create a bunch of seemingly plausible propositions, which he strings together into a seemingly comprehensive essay about modern sexual behavior with absolutely no proof. It's more revealing of his own personal prejudices than it is of any "truth." Note especially the paragraph on women entering the workforce--because, he says, of the increased availability of "service" jobs--light labor that we weak women could handle. I have news for Judge Posner--women have always worked, including performing manual labor. Whether we worked outside the home, whether we were paid and whether we controlled our economic products or destiny is another question. Women receive paychecks now, we have a legal right to property, and a theoretical legal right to hold nearly any job we want (excepting, notably, the priesthood). This isn't because now we have a "service" industry which we didn't have before, it's because of changes in the law.

The comments similarly do a better job revealing the writers' (mostly misogynistic) biases. I don't count myself as an exception, don't worry.

The variety of alarmism that attends most pop-statistics about sexual behaviour from a variety of interest groups of various stripes should not be taken as evidence for the institutionalization of casual sex. The fact remains that sex is mere liesure only amongst those that have the time for such liesure in lieu of any other activity. Further, lacivious behaviour has never been encouraged or unproblematic in any society, even those fun-loving ancient greeks.

Paradoxically, and sadly, those in the worst position to raise well-adjusted offspring are most likely to have children in significant numbers despite the availability of contraception. Sexual knowledge, like any variety requires of the participants some understanding of the mechanics and stakes involved. The same people who would lack the education or attention span to pick up a book are less likely to follow doctor's directions about the proper use of birth control, or "coincidentally" end up being the 1 in 500 who suffer "condom malfunction."

The goal of any social policy should be to maintain balance between our animalistic urges, and our capacity for higher reason. Neglecting the former leads to what Nietzsche disparagingly referred to as "decandence" not unlike religious zealots preaching complete abstinence as the sole message of sexual education, and neglecting the latter leads to social decay and barbarism.

When you're young and have little to no life beyond the basic fulfillment of your bodily urges, you tend to spend the preponderance of your time on those urges which has the unfortunate side-effect of producing more human beings. Sadly, our popular culture is full of the kind of nihilism and skepticism that implies that immediate material gratification is all there is.

A possible, although troubling, solution is some variety of government-sponsored birth control programs where one can target communities where teen-pregnancy rates are high. This has the rather unsettling odour of eugenicism, but as Holmes put it in one of his more eugenically sympathetic moments, and as a visit to any bar or liquor store would support:

"public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence... Three generations of imbeciles are enough."
-Oliver Wendell Holmes [Buck v. Bell (1927)]

Where is Becker's reply to Posner's poses? I just got this and am curious.

There is an extremely interesting possibility that niether Judge Posner nor Prof Becker, nor anyone posting comments has addressed regarding religion. Namely, certain religions, such as the Roman Catholic Church may have an economic motivation to become more distinct from the mainstream, rather than follow (witha lag) mainstream culture. To see this imagine that people choose their religious affiliation based based on standard U=u(...). Now think about what might go in the function (i.e. fill in the (...). Obviously, a number of variables would not have an impact on the non-mainstreamness of the reglion (e.g. people choosing a relgiion to foster social connection.) However, a critical variable is going to be the desire for some eternal reward and the somewhat related concept that adhering to special rules (which of course may be a way to further one's eternal reward). Both of these elements, seperately and in tandem, are obviously major factors in many relgiions: think the special dietary laws of orthodox jews, the special dress of the Amish, the special dress and dietary restrictions of conservative muslims. If a religion such as the Catholic Church adopts adopts certain restrictions that run counter to the rest of society they may attract adherents who get particular utility from special practices. Of course they will lose adherents who do not want to follow special practices or who find these special practices offensive. However, tis MAY not be a bad thing from an economic perspective since these people may have been less comitted in the first place and been more "price conscious" (i.e. more willing to go to another church). In other words, a stricter theology, may alienate some adherents but gain other adhenerents with more inelastic demand. On balance this may be in the interest of the church.

Now coming out of theory world I am not sure whether this would explain the conservatism within the Catholic church. At least in Europe and North America the vast majority of catholics do not follow the church's teaching on contraception. On the other hand this is not where the church is gaining adherents. in addition dramatic growth has occured in mroe conservative strains of a number of relgiions (Wahabism in Islam for example). This could also be explained by people's desire to follow special rules and/or through this adherence to spcial rules gain some type of eternal reward. In short, I am not sure that Posner and Becker are correct in their implicit assumption that relgions such as the Catholic Church will become less strict as societal mores change. A plausible economic arguemnt exists that they may become mroe strict.

Sex can never be equated with eating. We know in our hearts that sex is different than eating. Just think of our obsession with sex. Do people spend hours on the internet looking at pictures of steaks and apple pie? Sex is biological, but it is much more than that.

Fascinating discussion - I have one wee point.

Paul Barnes stated: "For the most part, I can agree with JP II when he says that contraceptives lead to a utilitarian view of the partner. In the end, I do think there is a causual relationship in contraceptive use and the objectivization of women, from a man's perspective."

With all due respect to the Pontiff, I don't think it is the condom that leads to the utilitarian view of one's partner because men have been using women for sex with or without condoms, whether for pleasure and/or reproduction, inside and outside of marriage, well since time began, though usually men of "higher station" if I may use that archaic term, and women have always paid the higher price historically for having let themselves be so used, regardless of their station.

Because historically marriage has been more about economics and reproduction than love and sex, via the arranged marriage, I suspect many husbands and indeed wives have viewed their spouses in purely "utilitarian" perspectives. [As a modern example, think Chuck and Di - she was just there to provide the heir and the spare except someone forget to tell Di, she thought she was entering a "companionate" marriage]

M. Webb makes some very interesting points.

Will the Catholic Church get more strict or loosen the rules regarding contraception?

The problem I have with the Catholic Church's position on contraception is what about the economics of uncontrolled or unsustainable population growth.

Ironically the Church's largest growing constituencies are in those areas where populations are already having a problem with sustainability.

Let's look at China - you may hate the one child per family policy [it is going to create its own problems admittedly since I hear the current generation has a disportionate ratio of males to females, I'd read the ratio is 3 males to 1 female, because of the unfortunate preference of a male over female child, but then again it means there will be far fewer females to reproduce the next generation which is a good thing if you are trying to limit population growth] but the general consensus is that if the Chinese had not implemented the one child per family policy when they did, the results would have been catastrophic. China has since been able to push itself forward economically and is reportedly loosening up the policy a bit.

Even if you could get most people to "behave", does there come a time when the economics of uncontrolled or "unsustainable" population growth, even if decades, centuries away yet, comes into a direct clash with religious doctrines?

Practical realities vs principle?

Unsustainable population? In what sort of an economy?

Family sizes vary by society based on degrees of mechanization. So the size of a sustainable family is larger in poorly mechanized societies than in those such as Western Europe which has to import labor from abroad (also the US).

China has the problem it has because of draconian central planning and dictatorial control. The society is far less stable than that of the US because of these policies. Chinese authorities fail as a matter of policy to mechanize agricultural production so as to concentrate manufacturing capabilities so as to leverage its clout in international affairs. Meanwhile, they have a policy of isolation of rural peoples to prevent political upheavals.

This is not "unfortunate"; it is a human rights travesty.

One reason for the need for legal marriage, as opposed to cohabitation, is how marriage benefits the female. Without a legal contract, the female may be caught in the midst of a type of hold-up problem in which, after she's made some kind of relationship-specific investment with this man, he opts to leave her after impregnating her. So, in exchange for intercourse, the female has a guarantee that she will be supported while she leaves the labor market to have children.

Don't ask me if I believe what I just wrote. I'm just saying that that may be one economic explanation for why marriage would persist and is preferred over cohabitation. Also, Posner is clearly drawing upon Becker's 70s, 80s and 90s articles and books on marriage and the family. You should check those out, if you haven't (not meaning that to sound condescending at all; simply saying that if you want to criticize the model that Posner is working out of, you should familiarize yourself with Becker's work on the subject).

Judith - the usuallly respond to comments towards the end of the week. This one will probably merit a lengthy response from both, given the activity in the forum.

Paul - Becker's models, FWIW, never prescribe a single motivation for marriage. He also, at least in the original JPE pt. I paper from what I remember, focused just on marriage. But in it, I think he began simply with the assumption that the joint utility from marriage had to exceed the single state. So whatever reason people marry for is not important to his models - they do so because the match leaves them with a higher personal level of utility than otherwise was possible. The consumption of the public goods in marriage are, I believe, the reason for the match. And if some of those public goods are positively related to marriage over cohabitation, that is the place to begin. I do think that the hold-up problem I mentioend could have some justification to the institution of marriage, although I am not going to tell my wife that just yet.

"public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence... Three generations of imbeciles are enough."
-Oliver Wendell Holmes [Buck v. Bell (1927)]

You know, if you are going to quote that case, you should disclose that Holmes was actually approving of the forced sterilization of a mentally disabled mother who had been raped while under the care of an institution. Some 60,000 Americans were forcibly sterilized in the years following. Later, an evil Nazi doctor quoted the case in his defense at the Nuremburg Trials. It has never been explicitly overruled. Just some fun facts.

"... you tend to spend the preponderance of your time on those urges which has the unfortunate side-effect of producing more human beings."

Did No-Kidding have a recruitment drive on college campuses or something? Its easy to be cynical. Wisdom does not lie on that path.

This week's discussion makes me want to tell a good economist joke. How many economists does it take to... you can fill in the rest.

I can't think of a topic less suited to dispassionate economic analysis than intimacy and procreation. When relationships are the primary focus of an activity, a science which treats each person as an individual, self-interested market actor is bound to produce stupid results. There is a deep and interesting legal scholarship explaning why.

Judgo Posner makes an interesting point that the "sexual revolution" is related to the changing economony and, specifically, the changing role of women. But I think Judge Posner avoids -- perhaps consciously -- discussing the sexual revolution as a political movement spurred by the political awakening of 52% of the population. I think it should be obvious to any student of history that the expanded economic opportunities for women were a product of this political revolution, and once women gained a more or less equal position in society, they demanded sexual freedom (which men had previously, through prostitutes and mistresses). That sexual freedom necessitated the right to use birth control and the right to have abortions.

As to Judge Posner's comments on homosexuality, I think he ignores the fact that it has always been present, just not out in the open. This too is a political revolution that is just starting to happen. The backlash among social conservatives is not unexpected, but it will probably be short-lived. 50 years ago, there was the same sort of opposition to inter-racial dating and marriage.

David, I think the current majority opposition to homosexual marriage runs a bit deeper than interracial dating issues. Homosexuality, the choices involved, and the psychology of it have been the subject of cultural discussion across continents and history. I don't think that, 50 years from now, we will look at discussions of the normative aspects of homosexual activity as being kind of silly in the way that we look at miscegeny questions.

Riding the righteousness of the civil rights movement will only get gay marriage so far. I love how Andrew Sullivan and others decry the scaremongering of the polygamy question. But what would have civil rights leaders said about gay marriage flowering from the elimination of miscegenation statutes? I think, quite rightly, they would have insisted that was nonsense and scaremongering. But here we are today, where perfectly reasonable people think that gay marriage is the natural extension of Loving v. Virginia but can't fathom the possibility that Goodridge could be a basis for legalizing polygamy or polyamory. That logic never fails to astound me. Loving was different because that was addressing racial classifications which hold a special and established place in our history and legal traditions. Unfortunately, or fortunately depending on your perspective, there is no such basis for court-mandated gay marriage. Finding a "right" to civil marriage based on sexual orientation does, indeed, open up a can of worm which Loving, by virtue of the classification it addressed, did not.

"That sexual freedom necessitated the right to use birth control and the right to have abortions."

At least today, I don't think women are any more likely to favor abortion rights than men. In fact, I think they may be slightly less likely. Let me fill you in on a little secret, the legalization of abortion in this country wasn't the result of democratic processes. Roe overturned abortion laws in every state in the union. Some populist revolution.

Scott,

I'm just referring to Posner's model presented in the post.

I have not read any material outside this, do not infer it, and do not presume that anyone else has either.

So here is Posner's model:

1. Sex is a good to be maximized. We are currently maximizing sex through advances in technology.

2. Institutions that stand astride of this dynamic will diminish since these constraints are artificial.

3. The stability point for sexual gratification is satiation.

Criticisms of this model:

1. Sex is a controlled variable that has an inherent cost in terms of energy. It produces nothing of lasting value outside of a committed relationship.

2. Sex produces something of value within committed relationships.

In short, "recreational" sex is a symptom and not a cause of the fundamental dynamic which has not changed significantly despite the cost adjustments brought on by widely available contraceptives. There is an intrinsic limit, also, to the ability to satisfy the recreational sex demand in an economic maximization problem due to the necessity for the development of energy preserving social micro-structures.

So, my fundamental criticism of Posner's analysis is that it is "half-baked". Again, I attribute this effect to technology (as advertised in the commercial media and spam) and admit that this technological effect produces a stable energy dissipating cycle that is peripheral to the fundamental dynamic (so we have this essay and an otherwise inexplicable demographic for red Corvette/Porshe demand).

Why men marry:

Men want sex from the highest quality women they can get but prefer not to be in committed relationships. Women want a committed relationship (with sex) from the highest quality man they can get. If a man chooses a woman that is below his qualtiy level, he gets sex without a relationship. However if a man chooses a woman who is above his quality level, he has to give her a committed relationship to get sex. While it is true that the couple has sex before marriage and the man can leave when he is tired of having sex with her, he implicitly promised marriage when having premarital sex. The same as we do not explicitly have to give a tip after a good meal but we all do it anyway.

I should add that I do not buy the opportunity cost argument for increasing the presentages of women in the workplace due to light industry.

However, if there is a thorough economic analysis that can back up this assertion (one that includes the value of domestic work adjusted for the relative worth of vertical structures (families) v. horizontal structures (social insurance) I might be persuaded otherwise.

It appears for now that the workplace disparity of the past was an adaptation to maximize total economic good through specialization that continues today in many industries despite the alleiviation of the aforementioned costs, i.e. the degree of specialization relies on intrinsic factors not a part of this model. I think this was recently discussed by Summers.

JS,

Then explain Prince Charles. Yikes!

Good point.

Palooka: what's wrong with legalizing polygamy? (Apart from the logistical problems that it would create with inheritance and tax laws.)

Consenting adults should be able to arrange, and legally establish, their romantic relationships on any basis they please, non?

BTW, the simplest generic relationships are the most efficient for intergenerational development.

The key aspect is making the information-responsibility loop most direct. Otherwise, society would have to pad the relationships (and they would be less efficient). Note that diversity requires male-female pairings.

So polygamous relationships should not be encouraged by law. Be sure to distinguish between encouragement and prohibition. Any sort of private sexual relation (except with minors, farm animals (FDA problems), pets (SPCA), etc. is de facto allowed--see Lawrence.)

Paul D.: are you suggesting that we should somehow be concerned about encouraging breeding, or breeding in a certain fashion? And all this time, I thought we were overpopulated, with predictable consequences for our media, democracy, etc. (Massification of public discourse, lack of access to both governmental and corporate decisionmakers, etc. -- read some Habermas to start, The Structural Transformation of the Public Sphere is useful on issues of massification, though I don't recall him tracing it to overpopulation, I do.)

I didn't know Judges blogged!

"Palooka: what's wrong with legalizing polygamy? (Apart from the logistical problems that it would create with inheritance and tax laws.)

Consenting adults should be able to arrange, and legally establish, their romantic relationships on any basis they please, non?"

No. I don't have an opinion on whether polygamy should be criminal or not, but the state is not required to give that relationships any sort of "legal" recognition at all.

Paul G:

While things are more crowded then they used to be, technically speaking, there is no overpopulation problem. As long as there is a responsibility-information linkage between the procreators and the economic cost/benefit of procreation, history has shown that humans adapt very well to their environment.

Problems occur when the linkage is destroyed or broken down or when sudden unpredictable environmental changes occur (potato famine, displacements due to war).

All societies need to encourage "breeding" in order to persevere. The US and Western Europe are presently facing a gentrification problem because of the influences of socialistic governmental policies. Otherwise, we would have adapted naturally to the economic influence of technology as a time scale compatible with that technology.

In short, contraception is not necessary for population control as long as the responsibility of parenthood is borne adequately by the procreating decision makers.

History supports this analysis. The system is inherently stable.

By the way, Palooka... Abortion was legal in at least a couple states before Roe v. Wade was decided. The democratic process was working. In my opinion, it's even stronger evidence that Roe was wrongly decided.

Roe is a perfect illustration that the sexual revolution was a political movement and was not wholly an economic phenomenon. Roe (and her lawyer-advocates) convinced the Supreme Court of the United States that a woman has a fundamental right to control her reproductive function. The groundwork for that decision was laid in Griswold, in which the Court recognized the fundamental right to personal sexual choice regarding birth control. Perhaps economic factors had something to do with the changing societal view of sex, but politics had much to do with it as well.

Also, I dispute Posner's point that the sexual revolution was necessarily related to technological advances (e.g., the birth control pill). True, that was part of the equation. But many nations in the world today (Saudi Arabia, for instance) have yet to undergo a sexual revolution, despite the existence of the technology. Those countries will "catch up" to the west when their politics changes; that is, when women begin to assert their political muscle, and when egalitarian-minded men aid the cause of women's rights. This is starting to happen in some countries, but in sexually-repressed societies, it will be a slow and volatile process, as it was here.

Alternatively, the West will find that promiscuity is not good policy and that stable productive societies rely on social responsibility.

"Catching up" infers progress towards some goal. That doesn't really fit the situation that we have arrived at.

"By the way, Palooka... Abortion was legal in at least a couple states before Roe v. Wade was decided. The democratic process was working. In my opinion, it's even stronger evidence that Roe was wrongly decided."

Yes, but those laws were far more restrictive than what Roe allows, and were therefore nullified. I am not sure what you mean by "the democratic process was working." It's always working if it's translating majority preferences into law. That may or may not be a good thing in a particular case, but just because you don't like the law doesn't mean democracy is broken.

"Roe is a perfect illustration that the sexual revolution was a political movement and was not wholly an economic phenomenon."

What is the SOURCE of the political movement? Is it really moral philosophy of "choice" and bodily autonomy? I have no doubt those are contributing factors, but it's unwise to dismiss the power of economic forces. It's supportive of Posner's thesis (though one could attribute it to other variables) that educated women are more likely to support abortion rights. As the opportunity cost of pregnancy increases, one would expect abortion to become more acceptable. That seems a perfectly plausible explanation, unless you think economic realities can never effect moral decision making. And I doubt any one thinks that is a rational position, do they? Can economic forces never effect moral decision making?

Palooka: legally, at least, the state must have a rational basis for its legislative classifications -- the Supreme Court has recognized "class of one" challenges under the equal protection clause, and class challenged not based on any traditionally suspect class (see Village of Willowbrook v. Olech for the first and Cleburne, Tx. v. Cleburne Living Center for the second, as I recall -- I don't have cites handy, but a google search can probably produce 'em.)

I don't think there's any rational, legitimate reason that the state has to limiting the legal benefits of marriage to a man and a woman. The only reasons anyone ever cites are biblical, which aren't legitimate per the establishment clause. I suppose encouraging breeding, but nobody in this debate has ever suggested that as a reason for these laws (and it would be a pretty stupid reason, although the state is allowed to propound stupid reasons to resist equal protection challenges). As for polygamy, there's probably a rational basis in prohibiting that because of, as mentioned earlier, the whole inheritance/tax problems it would create.

But really, what reason does the state have for putting its fingers in marriage at all?

Paul D: I'm not talking about an overpopulation problem in terms of taxing resources. I think there IS one, worldwide, but not necessarily in the U.S. In the U.S., however, there's quite clearly an overpopulation problem straining out democratic and social institutions. The sheer mass of people means that individual citizens and small groups have next to no influence in the political process (just try and get an elected official on a larger scale than town council on the phone), few opportunities to become meaningful participants in the public discourse or politics.

It amazes me to think that, at the time of the American Revolution, Thomas Paine could circulate "Common Sense" and have some reasonable shot at influencing people with it. Today, he'd have to compete with 10,000 other, slightly different, common senses, and if Atrios or Instapundit didn't link him, forget it! Martin Luther? Hah! Religions schism on a daily basis today, but the schisming isn't felt beyond the local congregation.

The mass media and the mass politics have all but gutted any chance for real, non-media-personality, non-wealthy, people to participate in the public culture at any meaningfuly level and rate. And that is why I say we are overpopulated.

You must not follow the gay marriage debate very closely if you think the only reasons cited for prohibiting it are "biblical."

I am well aware of rational basis review, and believe Goodridge failed to apply it properly. The only gay or lesbian on the Masssachusetts Supreme Court, Judge Sosman, wrote a powerful dissent to that effect. You won't hear that little factoid in the media.

Rational basis review is a highly deferential examination. It doesn't mean the Court must be persuaded by the wisdom or rationality of the distinction, there must only be a "conceivable" rational basis for the distinction which furthers a legitimate state interest. The importance of marriage not being in dispute, the state's interest in the health of the institution should not be in question. Is the policy of limiting marriage to one man and one women "conceivably" rational, given the information available to the state? Yes. It is uncertain how gay marriage would impact the institution of marriage, or if gay marriages are equally efficacious in the rearing of children (probably the principal reason for the state's involvement in marriage). Uncertainty of the effect of the policy is reason alone for the state's discrimination under rational basis review. Moreover, it is important to take note that heterosexual and gay marriages would probably be quite different on average. The former having and raising children, the latter usually for companionate reasons alone. Further, the state has traditionally been involved in marriage to protect unequal gender spouses. Gay marriages, of course, lack this hallmark of traditional marriage. When things are substantively different, it usually makes sense to treat them differently.

Paul G:

If you have been following the Social Security problem at all, you will understand that the US does not have an overpopulation problem, it has a gentrification problem. At the same time, we import labor and export labor-intensive jobs.

Ergo, we have an underpopulation problem in social and economic terms.

Furthermore, democracy is scalable. One person may not be able to influence national events: so? In the time of Paine, he could not influence the politics of Europe. On the other hand, today a handful of senators can. Meanwhile, were you to show up and speak as eloquently as Paine at a city commission meeting, you could influence 10,000.

I, an engineering student, influence 1000 people a month just with several hours worth or thought and writing. Posner reaches Paine-like numbers in relative terms through his blog.

BTW, if you have a really good idea, it is worth the value of its merit today to a far more accurate degree of approximation than ever before. (Check out the blog USS Clueless--its been dead for over a year and still racks up huge numbers based on the quality of den Beste's thoughts. Den Beste is a pauper, Paine was an aristocrat. What's your complaint?

People read Kos not for the thought, but for the social connection (that's the brilliance of his format). Kos can influence many, but not with original critical thought--just affirmation of what his readers want to believe.

Who changes minds? Well, I do. (read through my blog if you don't believe me.) You can do the same. In a world of banality, a good thought stands out like a beacon of light, thus the four million in the streets of Rome this past week.

Buck up, think smart, and have the courage to speak truth to power (they hate that).

Here's a rather convincing post on the social effects of gay marriage.

http://www.janegalt.net/blog/archives/005244.html

No biblical arguments, and I believe this would probably be enough for a state law to pass rational review if it were applied properly.

Quite frankly, what I do or don't do with my genitals is no ones concern but my own. Unless of course, they figure into an assault or become a public nuisance or public health hazard.

As for the economics of it all; there are major concerns about the crass commercialisation of the ontological issues of existence and being by a relentless and rapacious business community that lessens and degrades humanity to the status of nothing more than a consumer unit to be exploited.

In terms of the religious take on the subject, the question was answered at Worms Germany some 484 years ago. When the reality of it all was expressed in the phrase, "Here, I stand, I cannot do otherwise, God help me!"

Paul G,

The Jane Galt article shared by a commenter above is superb and I recommend it.

I have no doubt that some (maybe even most) gay couples who choose to adopt children (or have through artificial insemination) make satisfactory parents. I am also sure there are some who make absolutely outstanding parents. But I have to say that if you have two similar couples, one gay and one straight, I think the straight couple will do a better job raising children. The reason I believe this isn't at all predicated on gays being less moral or less smart or anything like that. It is predicated on gender. Ask yourself this: Are you happy you had a mother AND a father? If you didn't have both, didn't you want the one you were missing and not just another father or mother? Are you happy you had a feminine and a masculine upbringing? I think every child should have both a mother and a father. Of course this is the ideal, and it is many times unfulfilled by absence or death. Nevertheless, I think it is an ideal which is rational to preserve and protect by limiting the benefits of marriage to heterosexual couples.

Paul G:

Actually, the 2002 NIE is a prime example of my point. Their intelligence was wrong so they got it wrong. They were bound to their bad intelligence like slaves.

"Alternatively, the West will find that promiscuity is not good policy and that stable productive societies rely on social responsibility."

What is a more stable, productive society: Western Europe, or the Arab world? I would note that gay marriage is legal in several European nations.

The sexual revolution was (is) about decoupling the notions of "responsibility" and "abstinence." One can be sexual active (whether married or unmarried) and a "responsible" citizen at the same time. The idea that sex should occur only during marriage is outdated and prudish. Of course, "promiscuity" carries dangers, like anything taken to extremes. But we don't ban beer because of the existence of alcoholism.

What the west has discovered -- and this is an advance -- is that the government should stay out of personal sexual relations. Sooner or later, the culturally "conservative" parts of the west will realize that this principle is not limited to heterosexual relationships.

To push the issue farther: why is the government in the marriage business to begin with? Why shouldn't all marriages be private matters? Custody, survivorship, and other partnership rights can be dealt with by contract - like all other private arrangements.

Well, custody rights can't be dealt with by contract because the primary interested party is vulnerable and incapable of contracting. But there's no reason to tie marriage to custody. Otherwise, I agree with you David: the state shouldn't be in the marriage business.

"To push the issue farther: why is the government in the marriage business to begin with? Why shouldn't all marriages be private matters?"

First, as a descriptive matter, "the government" already has the power to structure marital relations and the authority to exercise it. The question, then, is whether the government has used it well in the past and how it should use it in the future.

Second, calling it the "marriage business" I think goes deeper than mere colloquialism. You're presuming that marriages are nothing more than contracts, thereby excluding categorically from the government's power to regulate marriages any public impact or public function of recognizing them. This, of course, is begging the question.

Third, given your categorical exclusion of publicness from marriage regulation by the state, one wonders just how far "privacy" extends and whether this notion drifts into other areas traditionally regulated by the state with a similar element of publicness, e.g., criminal law. Under your formulation, why wouldn't domestic violence be a "private" matter? Isn't marital rape "private"? Is it "private" to smoke crack in front of your children while at home? Is it "private" to sodomize your dog in your bedroom with the shades closed and door locked?

Fourth, even if you can articulate a workable and efficient conception of "privacy," why shouldn't a majority of citizens in a democracy be able to do the same: articulate a common conception of "privacy" in their legislature(s) and vote for it? Let's say that has already been done and the relevant law contradicts your conception. Does your disagreement necessarily invalidate the law? If so, when were you elected Mayor, Governor, or President?

Palooka's argument is that heterosexual marriage is a means to transmit proper masculine and feminine roles to children. This is problematic, because it is possible that a heterosexual marriage is so nontraditional and postmodern that "proper" masculine and feminine roles are transmitted to a child less than they would be by same-sex parents.

For example, let's imagine Couple A. Couple A keeps their sex life private from their kids, but in bed Wife never lets Husband penetrate her and instead does the penetrating. Wife absolutely controls all finances and expenditures but permits Husband a measly allowance. Out of view of the kids, Husband is a crossdresser (every day, he wears frilly lace panties.) Wife bans Husband from driving and Husband cooks every night. Wife is head of household and tells her children the Bible is wrong to say that the man is head of the household. Wife is also cuts off Husband when he speaks and her decisions, once made, are final.

Of course, Palooka would say that Couple A is exceptional. But how do we (and legislators) know that? If heterosexual marriages are a means -- a tool -- shouldn't we accumulate empirical evidence that tells us how effective it is in reality? And if heterosexual marriage is an ineffective means of transmitting certain gender norms, shouldn't we incentivize/disincentivize individual behavior so that it comports with these gender norms? Doesn't that require policing behavior that may violate gender norms more strictly than the Constitution permits? I would think so if all we're basing this on is our personal prejudices (and not empirical evidence).

If he were making an argument that heterosexual marriage is an end in and of itself, say, because the definition of marriage is "vaginal intercourse," which is a universally transcendent good, then I don't think the same criticism applies. But a means-based defense of heterosexual marriage necessarily leads to a comparison between some heterosexual marriages and others, heterosexual marriages and homosexual marriages, and monogamous heterosexual marriages and any polygamous unions. We'd actually have to determine which tool best meets the stated objective.

Interestingly enough, the New York Times recently had an article about a Harvard educated Iraqi woman who is part of the constitution drafting process. She is pushing for polygamy because it will benefit women, especially since the society is 55% female in the wake of two wars that depleted the male population. Her argument is explicitly means-based also, and I fail to see how Palooka could reject her argument based on his own.

John Smith,

You are simplifying Palooka's observation beyond the point that he makes. Gender typing the female as feminine and male as masculine is not specifically what he has done.

The essense of the presentation is the superiority of gender diversity in parenting. This goes far beyond the crass physical functioning and authoritarian relationship that you describe.

Think about it some more.

"I would note that gay marriage is legal in several European nations."

I would note that economic growth is slow in several European nations. All things European aren't good.

The essense of the presentation is the superiority of gender diversity in parenting.

Yes, Paul, that is correct. GENDER diversity. Not SEXual diversity. Palooka makes this clear:

"The reason I believe this isn't at all predicated on gays being less moral or less smart or anything like that. It is predicated on gender."

He then makes clear that he does mean strict masculine and feminine roles by gender, when he states: "Are you happy you had a feminine and a masculine upbringing?" The means for supplying children with masculine and feminine identities, according to Palooka? "I think it is an ideal which is rational to preserve and protect by limiting the benefits of marriage to heterosexual couples."

Now, to this you say "Gender typing the female as feminine and male as masculine is not specifically what he has done." But that is not true, because after he explains that transmitting gender (masculine and feminine) to children is the objective, he then equates that with sex "I think every child should have both a mother and a father." That means he is treating sex and gender as materially equivalent. He explicitly IS gender typing the female (mother) and feminine and the male (father) as masculine.

If GENDER diversity were all that was needed, then there'd be nothing wrong with having a bulldyke for a father and a femme lesbian for a mother, because there would be GENDER diversity. Likewise, a butch man and a drag queen would suffice for dada and mama. And if there WERE something wrong with it, you'd have to prove it by way of empirical evidence, because you're talking about GENDER, which is socially constructed, not sex, which is biological.

You should read more closely.

But that is not true, because after he explains that transmitting gender (masculine and feminine) to children is the objective

Where do you read this into the argument? You are making a correspondence over a subset of properties that is not strictly given. There is no need for this limitation. Palooka did not specify it and I think it would be a bit unfair.

BTW, I am using the common English "gender" not the new-wave gender studies (whatever that is) meaning. You can understand "gender" to be either male and female determined by chromosomes explicitly.

Now, what is your argument against gender diversity as a generically superior parenting archetype?

"This goes far beyond the crass physical functioning and authoritarian relationship that you describe."

That is an oversimplification of my argument, which only used the example of Couple A as an illustration of one point. Perhaps you are not aware that power, authority, and sexual mores are a part of gender (so it's an oversimplification to reduce Couple A's activities to "physical functioning," as one can imagine there are psychological benefits and costs of being penetrated and being the penetrator; in other words, the role reversal is more than merely physical). In any event, I could have easily used an example where the couple is heterosexual and both have masculine gender, or both have feminine gender, which would not transmit gender diversity at all, while sexual diversity would be present. The point with Couple A was that male and female does not guarantee ANY particular distribution or transmissal of gender roles. That fit into the larger point, which you could really just scroll up to read, that defending heterosexual marriage as a means of accomplishing XYZ invites comparison with other possible social models and possible legitimation of them if they are as good or better at accomplishing that goal. That should be rather obvious, actually. I think it was not apparent to you because you were offended by the substance of Couple A's marriage, regardless of how effective it was as a means of transmitting gender roles. But, of course, mere prejudice is not a sufficient reason to prohibit it. I hope our legislatures don't ban marriages because they find them "crass".

Is there any evidence for the proposition that having gender diversity in parenting leads to children with some desireable quality? Or is it sheer speculation? (And I don't consider conformity to social gender roles to be a desireable quality, in the absence of evidence therefor and the fact that such roles are often used to reinforce inequality.)

(How about a butch and a lipstick lesbian?)

Main Entry: [1]gen·der
Pronunciation: 'jen-d&r
Function: noun
Etymology: Middle English gendre, from Middle French genre, gendre, from Latin gener-, genus birth, race, kind, gender —more at KIN

the behavioral, cultural, or psychological traits typically associated with one sex

Like I said, you are trying to tie gender and sex, and there is no necessary connection. Perhaps your failure to comprehend what gender means is why you cannot read his argument properly. And I'm not a New Wave-y person, at all.

Lets put it this way. What is the public interest in regulating marriages and keeping the franchise exclusive to any certain combination of competent adults? 100 words or less, word limit not including any references to evidence or suggestions where evidence can be found for any otherwise reckless suggestions with regard to childrearing.

Anyone?

Anyone?

"Is there any evidence for the proposition that having gender diversity in parenting leads to children with some desireable quality? Or is it sheer speculation? (And I don't consider conformity to social gender roles to be a desireable quality, in the absence of evidence therefor and the fact that such roles are often used to reinforce inequality.)

(How about a butch and a lipstick lesbian?)"

Paul Gowder,

Thank God someone other than me gets it. That's exactly the point. Why not a butch and a lipstick lesbian? They are of different genders. To determine if gender diversity with sexual diversity is better than same-sex gender diversity, we'd need to do some empirical studies. And in doing so we might find out that polygamy is better than monogamy and drag queens make better mommies than females. In other words, Palooka's defense of heterosexual marriage as a means of benefitting children is what I would call the "Opening Pandora's Box Defense".

Also, anyone who tries to justify keeping the marriage relationship exclusive to certain combinations of competent adults and not others on the basis of the protection of children has to explain why the direct forms of regulation of childrearing (i.e. armies of social workers and teachers and mandatory child abuse reporting and massive public socialization through the schools) are somehow insufficient, that we need to use a blitheringly indirect and speculative way of regulating childrearing by restricting marriage.

"What is the public interest in regulating marriages and keeping the franchise exclusive to any certain combination of competent adults?"

There are two:
1. Gay people are icky.
2. It is not a franchise, but a fundamentally human common good. Heterosexual marriage is not a means to any benefits, it is an end per se. Public recognition, however, is a means: it strengthens social norms and funnels otherwise indifferent individuals into the institution (at which point they become grateful). Public recognition of homosexual unions, however, would dilute the public recognition of heterosexual marriage by making future generations indifferent to which model they chose and possibly increasing the long-run incidence of bisexuality in the culture. It would also dilute the law, making it so general that consenting adult incestuous relationships and consenting adult polygamous relationships would have justifiable arguments for extending marriage to cover them. In the very long-run, the downplay of heterosexual marriage would so disincentivize vaginal intercourse as a means of orgasm maximization that, alongside technological advancements (which become cheaper over time), it might not occur at all. Given that all animals with penises and vaginas engage in this activity, and humans have engaged in it for millenia, to structure a future society that does not do it seems contrary to human nature.

Jane Smith,

Your predjudices are showing. I guess intelligent debate has ended.

"Wht I have found is that males and females process information differently."

That has nothing to do with gender. That has to do with sex. Worse, but I don't think any reasonable person would say that gender roles have anything to do with information processing (unless you mean "that woman better information process me my dinner by the time I get home"), nor do I think "information processing" is relevant to regulating marriage. I think that's bullshit, frankly. You still haven't proven that gender and sex necessarily connect. (Because you can't.) The only way to do so is to presume it as a generalization, which is the problem. If a litigator came into court with the argument that a law prohibiting girls from being accepted to military academies because they process information properly was valid, the Supreme Court would rip him to shreds.

Gender \Gen"der\, n. [OF. genre, gendre (with excrescent d.), F.
genre, fr. L. genus, generis, birth, descent, race, kind,
gender, fr. the root of genere, gignere, to beget, in pass.,
to be born, akin to E. kin. See Kin, and cf. Generate,
Genre, Gentle, Genus.]
1. Kind; sort. [Obs.] ``One gender of herbs.'' --Shak.

2. Sex, male or female. [Obs. or Colloq.]

Like I said, I'm using definition 2.

Jane,

How can you argue with statistics?

Now you are just being absurd.

Actually, I'm a dude, and if you read up, I just defended heterosexual marriage as an end, not a means. All it takes is literacy to see why I find means-based arguments insufficient. But to assume I'm a woman because I disagree with you, gee, that's just outright misogynistic. You must not have had a feminine mother. The lack of gender diversity must have done it.

Paul D.: the data (assuming, very very generously, that a pool of less than 300 people, all blog users, and probably largely self-selected, can be generalized under any statistical theory known to man) you link to would equally well support barring marriage to all couples except those of opposite political leanings, since political divergence is as strong or stronger in that data set than gender divergence.

Also I doubt there's any basis for assuming that parents are the only source for an "information-rich" environment, at least with regard to the thinking strategies you describe. Especially if Piaget is to be believed, the thinking of children probably isn't even compatible with one mode or another particular mode of processing information as you describe it in myers-briggs terms until age 7 or so, by which time they're in schools and most of their social interaction comes from said schools.

I anticipated this argument, and almost included a pre-emptory response to it in my original post, but I thought I'd see if anybody brought it up on their own.

It's possible that a homosexual couple could reach a level of "gender diversity" which equals or exceeds that of an average heterosexual couple. But such exceptions are of little use in forming policy based on the general population.

I have known several mannish lesbians, but beyond similarities in appearence and superficial interests (sports, fishing, etc), that is where their masculinity ended. I still considered them women, as they I am sure viewed themselves.

I am sure most effeminate gay men would take offense to being called the equivalent of a woman, and I am equally certain most mannish women would take offense at being called a man. That means, in their own estimation, that "butch" lesbians are more female than male, and feminine gays are more male than female. Your point seems more appropriate for true transgendered gays (which actually consider themselves the opposite sex).

Paul G,

The study is statistically significant. I think you will find it is consistent with any other M-B study in terms of gender.

This is sort of obvious.

"How can you argue with statistics?"

Statistics are generalizations. They describe properties of groups. They do not describe the properties of individuals. To apply a statistic to an individual, one must make a presumption.

For example, "Women aren't CEOs." True enough, most women are not. The statistics reveal as much. But some women are. Presuming that a given women is not a CEO simply because most women are not CEOs is prejudice. Gender is made up of prejudices like that. Gender is synthetic.

Sex, on the other hand, describes traits that are necessarily true of every single female. They are categorical, as opposed to condititonal. For instance, "Females have vaginas." How true. Can't find one without one. Sex is analytic.

When you mix the two, you treat gender as analytic because sex is analytic. It is not. It requires additional information. You don't need to ask a woman if she has a vagina to determine if it it so. But you might want to ask your date what she does for a living before you presume she's not a CEO, because if you offend her, you might never get to see her vagina.

Actually, I'm a dude, and if you read up, I just defended heterosexual marriage as an end, not a means. All it takes is literacy to see why I find means-based arguments insufficient. But to assume I'm a woman because I disagree with you, gee, that's just outright misogynistic. You must not have had a feminine mother. The lack of gender diversity must have done it.

What's in a name? A rose by another name is just as smelly.

I'm calling you Rose from now on until you use a proper e-mail.

But such exceptions are of little use in forming policy based on the general population.

See above where I note "Palooka would probably say that Couple A is exceptional".

"For instance, "Females have vaginas." How true. Can't find one without one."

That's a generalization. ;)

Note also that what is relevant is not how masculine or feminine Palooka or the misogynist guy thinks butch dykes or lipstick lesbians are, but how effective their union is at benefitting kids. That is not a subjective analysis ("I think they're less male"; "they think they're less male"), but an objective one ("How effective is their union at accomplishing XYZ"?). After all, we're talking about public policy for everyone, not constitutionalizing our personal prejudices over the objections of others (for instance, insisting that gender and sex are the same and putting that into the law).

Paul D.: I don't know about other myers-briggs studies, but I do know that your sample is far from random -- at best, it might be generalizable to the blogosphere -- a discrete self-selected population with characteristics not shared with the community you propose to regulate at large.

Rosie,

Whose "the misogynist guy"?

[["For instance, "Females have vaginas." How true. Can't find one without one."

That's a generalization. ;)]]

No, actually, that's true in every single case. It's NOT a generalization. There are NO exceptions. That's the point. It's an analytic truth. All females have vaginas. I realize you are joking, but I cannot let that pass. But just to compromise, what say you and I inspect every single female just to make sure? That way we will settle this debate.

You were the one equating them to the opposite sex. I merely pointed out lesbians don't view themselves as male, and gay males don't view themselves as female. I think their own estimation of their gender identity is better than mine own or yours. That's my point.

Paul G,

True enough. That is the best critique of the study. Nonetheless, as I show, whether from dKos or Polipundit, or stron Dem or strong GOP, there is a gender difference.

So with that sort of mixing, I don't see much of a reason to suspect self-selection falling out consistently as it does.

Again, if you would like, I am sure we could find other studies.

Paul,
you asked for an argument. I gave you one. It's the Catholic Church's argument, not mine. Whether you think it holds water or not, it is reasonable, and one could reasonably believe it, and I don't think one needs to be a religious fanatic to pass a law with it in mind. What you transliterate, though, is that it isn't a means-based argument, so "sexual desire" is not what the argument is about. Heterosexual marriage is not a means for satisfying sexual desire, it is an end in and of itself. Public recognition is a means for encouraging people to join the institution. It does that by saying it is a good, noble thing, not by making people lusty.

[["For instance, "Females have vaginas." How true. Can't find one without one."

That's a generalization. ;)]]

No, actually, that's true in every single case. It's NOT a generalization. There are NO exceptions. That's the point. It's an analytic truth. All females have vaginas. I realize you are joking, but I cannot let that pass. But just to compromise, what say you and I inspect every single female just to make sure? That way we will settle this debate.

======

I'll get right on that. :) No, seriously... Think about it. There are most certainly exceptions, even if they are extremely rare. I was just being a devil's advocate (remind you of anyone?). No need in actually debating it!!!

"I merely pointed out lesbians don't view themselves as male, and gay males don't view themselves as female. I think their own estimation of their gender identity is better than mine own or yours."

Of course they don't. But they do think of themselves as masculine or feminine. Because they recognize that gender and sex are different, as I do. I don't know any bulldykes who don't think of themselves as self-consciously taking on a masculine role or any drag queens who don't realize that dressing up as a "woman" is gender-bending and acting feminine.

John: Well, sure, if we define our desired conclusion as an intrinsic good, one can argue for any position. That's called begging the question.

Paul Gowder as world dictator isn't a means to any benefits, it's an end per se. Therefore, all world governments should immediately surrender their power to me in aid of that end. Wow, logical. :-)

No, I'm not begging the question. I'm not saying the union of penis and vagina is intrinsically good because I say so. I am saying that any reasonable who has it can access the truth that it is intrinsically good. What I think or say is irrelevant. It's not a deductive argument, it's an inductive one. For instance, people learn to play violin just to play violin, not as a means to something else, like money or fame. You would only understand this by learning to play violin, and being one of these people. or scholars become scholars for the sake of knowledge. Knowledge for knowledge's sake. To understand that knowledge is intrinsically good, you must have some. It's intrinsic goodness is not dependent on what I say, it's dependent on you having it in reality. So, the argument is inductive. Don't take my word for it. Go have some vagina-penis sex and find out if you doubt me.

I don't concede that lesbians consider themselves as masculine as a male, or that gay men consider themselves as feminine as a female. I think when you get that far, then you're talking transgendered, which is a different subject entirely.

It's still begging the question because you can't explain WHY it's good. Just saying knowledge is good is insufficient. We all accept knowledge is good because we can explain why it is good.

Paul D.: interesting. I'll concede the difference then -- that study, assuming the norms were appropriately drawn (which I think is safe to do, even though they only refer to someone else's study for the norms, on the assumption that such a study by a respected institution like the FAA would avoid relying on garbage norms), does seem to show a substantial difference across gender in that dimension of the myers-briggs.

It doesn't get you all the way, unless there's some reason why early exposure to different aspects of one dimension of the myers-briggs scale is good for children, and even if that were the case, I still have Piaget to rest on -- whatever the thinking/feeling dimension purports to measure, it certainly isn't going to be meaningful before the concrete operational stage of development, by which time the little whippersnappers are in school. Really, I doubt it would be terribly meaningful until the formal operational stage.

Correction: That is a US study.

No, it doesn't "weaken the intrinsic good". That isn't the argument. The argument is that it makes people indifferent to being in a heterosexual marriage. In other words, the incidence of occurrence of the intrinsic good does down. Marriages aren't made less good per se, they happen less often. That is the argument. It's no more ridiculous than the argument that if we legalize gay marriage, it will happen more often. In fact, it is the same argument.

It's also no less sane than the argument that easy divorce "weakens" marriage.

John: yea, but in a significant enough number? Gay people aren't going into het marriages now. At most, you're talking about the bi population. Who cares? I mean, is the incidence of long-peg-into-round-hole rare enough that the bi population having a less than 100% but higher than 0% incidence of homosexual marriage causes any harm?

right. bedtime for me, I sense there's an impasse and I have an interesting book on the french revolution.

"We all accept knowledge is good because we can explain why it is good."

No, we all accept knowledge is good, because we have some and prefer having it to not having it. There is no difference here.

Paul D.: the point is not that gender is meaningless until about age 7, of course that's not true. The point is that these decisionmaking methods, the difference between "thinking" and "feeling" (and if those aren't biased terms to attach... but anyway), aren't likely to have any impact in a child's life until they become capable of some basic reasoning in the first place, and that's around the concrete operational stage. Since, by the time the thinking/feeling methods will have a meaningful effect the kid's already got a broad range of influences, no problem. (although neither of us are child psychologists, so perhaps there's other factors to consider. any any rate, this real-time blog-commenting business is going a bit overboard)

At most, you're talking about the bi population.

That's an assumption. I said "long-run," like hundreds of years, or millenia, for as long as we have had heterosexual marriage. The point is that public recognition changes mores which may make bisexuality more acceptable and marriage out of fashion. You may believe that sexuality is entirely biologically determined, but I think it is safer to assume that sexuality is some part nature and some part nurture. My point is only that a socialization shifts from heteronormative to everybody-get-laid the number of pure heterosexuals and people who only want exclusively traditional heterosexual marriage goes down. I mean, the number of people who use the divorce option has skyrocketed ever since no-fault has been permitted. It's not just genetic adulterers or cuckolds who exercise the option; now everyone thinks divorce is no big deal, and having several wives or husbands or having stepchildren isn't seen as so bad anymore. The norms change and how people act changes too -- and it's not just biologically determined.

I think all this debate underscores a pretty unavoidable truth--that the question is complex, the likely results mirky and uncertain. The appropriate solution is to allow democratic experimentation and debate, not Courts ordering gay marriage by judicial fiat.

The appropriate solution is to allow democratic experimentation and debate, not Courts ordering gay marriage by judicial fiat.

Uh, no, that's the problem, and basically makes my argument. Many of us don't want "democratic experimentation". That means comparing various alternatives of acheiving the same social goals. Ewww. That means polygamy and so on are plausible alternatives that must be explored with empirical investigation. Which takes us back to the "gays are icky" argument, which is really a good argument, if one recognizes that it's not an argument that gay people are bad, but that most people justifiably don't want to live in the radically altered society that is consistent with gay activist objectives. But NAMBLA does, and so do polygamists and atheists.

"I think when you get that far, then you're talking transgendered, which is a different subject entirely."

I don't think transgendered people exist, other than hermaphrodites and transsexuals.

Paul G: How about the idea that within the confines of the constitution, states have the ability to pass laws that conform to the moral values of their people. We really don't need empirical studies proving the effect that gay parents have on children because it is enough that most people think it is a perversion of the institution (See Jane Galt).

But in the alternative, we've reached the point where we can study children who have grown up entirely in homes with same-sex parents. I can't remember where the study is or what the exact stats were, but boys with gay parents are much less likely than usual to have sex and girls are much more likely to have sex at a younger age and with multiple partners. I'm not trying to argue whether this is a good or bad thing, but there are effects on the children. We should defer to the state legislatures in this matter (assuming no full faith and credit issues).

Paul G:

Well, I beg to differ. When a child wants nuturing and empathy, there is a learned gender preference (you can ask them).

Even an infant will respond differently to being held by its mother v. father. So the MBTI divergence is one measurable aspect of a larger gender distiction.

Since the child can recognize and identify with one parent or the other there must some aspect of the gender distinction that makes an impression on them beyond mere physical differences.

"We really don't need empirical studies proving the effect that gay parents have on children because it is enough that most people think it is a perversion of the institution."

No, actually, it is not, because that would be regarded as an "animus" argument, which has no rational basis. Mere presumptions and generalizations about gender or sex will get you nowhere. And even if you had sociological studies, you still might fail, as did Virginia Military Institute when it faced Justice Ginsburg's feminist wrath. With all do respect, Jane Galt's argument has no basis in constitutional law.

"Since the child can recognize and identify with one parent or the other there must some aspect of the gender distinction that makes an impression on them beyond mere physical differences."

That isn't necessarily true. It might merely be that the child can recognize specific sex differences because the child has spent more time with the mother (in the womb, etc.), e.g., what she smells like. It doesn't mean that the child prefers the mother because of gender differences (like that the mother earns less money for equal work). You really need to give up trying to equate gender and sex.

"Researchers have found that parents hold discrepant expectations regarding their sons' and daughters' emotional expression and that they consequently reinforce emotional expression differently in sons and daughters (Birnbaum & Croll, 1984)."

This, for example, is about socialization, or gender, not about sex, or biology. It's about what behavior we accept and instill in people despite their natural impulses because of their sex: it is explicitly about typing a sex as a gender. As was mentioned before by many people, one can get gender diversity from two men, so long as one is masculine and the other is feminine; the same is true of two women; one can also get gender diversity from a heteorsexual couple where the woman is masculine and the man is feminine. In any event, this kind of investigation leads to comparing various models of getting the desired outcome, which means equating heterosexual marriage with any other possible combinant of partners. That isn't much of a defense of heterosexual marriage.

"But in the alternative, we've reached the point where we can study children who have grown up entirely in homes with same-sex parents. We should defer to the state legislatures in this matter (assuming no full faith and credit issues)."

That is not the problem. The problem is the means-based argument. If state legislatures claim that heterosexual is the best means of providing gender diversity and it turns out upon empirical investigation that it is not, then those state legislatures have no rational-basis for their exclusive heterosexual marriage laws. They would have to open up marriage to any other combinant of partners that provided the same benefits. If, on the other hand, state legislatures made an ends-based argument in advance of the common good, then there is no comparison needed, because the analysis of heterosexual marriage itself is not means-based. The means-based analysis then focuses on how effective the public recognition of heterosexual marriage is at getting people hitched. That, of course, is easy to prove: we spent x dollars on pro-marriage programs and y number of people signed up and z of them stayed married past the 3rd year, beating the national average.

There's no animus involved, just normative judgement. (aren't you the guy who said "gays are icky" anyway?) States have always passed laws that conform to the values of their residents. Since this is traditionally a rational basis for a law, state laws against sodomy SHOULD pass constitutional muster.

I'm not going to get into what it would take to convince Ginsburg... but that has very little to do with the constitution in my opinion.

"I can't remember where the study is or what the exact stats were, but boys with gay parents are much less likely than usual to have sex and girls are much more likely to have sex at a younger age and with multiple partners."

I am familiar with the study also, it was in a NY Times Magazine article. The problem, of course, is not that the boy lacked sex diversity, but that he wasn't shaped into what we would consider to be masculine. You could say that if there were a male in the house, he would have gotten the right role model, but that isn't true if the male in the house were a drag queen. So we're not really talking about sex, or biology, we're talking about the social roles per se. I don't think there are very many people who think that males have a right to be men: either they think that males=men as a matter of nature or they think that being a man is socially contingent while being male is biologically fixed and changing the society produces different kinds of men. This is just a change, they'd say. Perhaps it is good that women are becoming more sexually free and men are becoming more respectful of women. That's how they'd spin it. Personally, I think there is too much tinkering with manhood in this culture as it is, which is why I think the empirical investigation itself is offensive. It's scientific experimentation on a very perverse level, kind of like Dr. Mengle's experiments on Jews: "Let's see how long Jews can survive underwater with no air." It's science, it yields results, but why put children in such a situation just to yield empirical results? Should we have 'test cases' of polygamous marriages to see if they work? That's what they're considering in Iraq. It seems like no one has read A Brave New World.

"Since this is traditionally a rational basis for a law, state laws against sodomy SHOULD pass constitutional muster."

Ok, well this invalidates your entire argument. State laws against sodomy DON'T pass constitutional muster, and neither would the laws your propose. What's the point of making an argument that has NO basis in reality? Ginsburg is on the court, and Lawrence v. Texas is precedent, whether you like it or not.

"There's no animus involved, just normative judgement. (aren't you the guy who said "gays are icky" anyway?)"

Yes, and the "gays are icky" argument is the one you just made. You may not call it that, but that's how the court would receive it, before it invalidated your law as unconstitutional.

Justice Ginsburg's feminist wrath

And this is the problem. One side is arguing logic while the other is arguing power.

The assault on discourse continues with:

Ginsburg is on the court, and Lawrence v. Texas is precedent, whether you like it or not.

And blatant speculative appeals to authority:

You may not call it that, but that's how the court would receive it, before it invalidated your law as unconstitutional.

Justice Ginsburg's feminist wrath

And this is the problem. One side is arguing logic while the other is arguing power.

No, actually that was a logical argument. "Justice Ginburg's feminist wrath" was a shorthand. If you had paid attention, you would have noticed that I mentioned the VMI case more than once. I am not arguing power. I am pointing out, as she did there, that presumptions about gender are not enough to justify discriminating against people, because there are exceptional individuals. If there were a categorical proposition, one about sex, for instance, that was beyond question, the court would have no problem with marriage laws being based on that distinction. But there is nothing rational about presuming something without evaluating its merit when it is discriminatory. There is no question that limiting marriage to a man and woman is discriminatory -- after all, various groups are lobbying quite hard for what they believe is their right to marry too. If your justification is that het marriage is a better means of providing some social goal, you'd have to prove it, not just presume it. That was the same argument that Justice Ginsburg, in a majority opinion, ripped apart in VMI. Even there, there were recent sociological studies that said women and men learned differently (information processing) and women could not survive in the "adversative" envirnoment of the military academy; that the instruction would have to change to accomodate women. This was not enough, because statistics are generalizations -- properties of groups and not individuals. You cannot discriminate against an individual because of a general attribute you impute to a class of which they are a member. When you make the means-based argument in advance of the status quo you fight the same uphill battle. It isn't a matter of power; it's a matter of logic. If the argument has been losing for the past 20 years, it's rational to think you might want to get a new one.

I know that's the argument I'm making... and once again, I'm not getting into what it would take to get past the current court. Lawrence was wrongly decided in my opinion. Rational review should have been applied, and despite all of O'Conner's posturing to the contrary, it was NOT applied.

Of course I'm making the same argument. I AGREE WITH IT. If you've changed your position since last night (or if I misunderstood you) and you would like to argue that public values are irrelevant, maybe you'd like to start with something like "Public values are not a rational reason because..." or "Rational review should not be applied because..."

"Ginsburg disagrees with you" is hardly convincing to someone who disagrees with Ginsburg, you know?

"And blatant speculative appeals to authority:

You may not call it that, but that's how the court would receive it, before it invalidated your law as unconstitutional."

It's not speculative. Go read Lawrence v. Texas. It's quite clear. You seem not to understand how stare decisis works. If the court rejects Argument XYZ in favor of Law ABC and your argument is exactly like XYZ in favor of a law just like ABC, it doesn't take "speculation" to know your law is invalid.

Daniel,
I agree with you. I don't like Ginsburg either. "Justice Ginsburg's feminist wrath," contrary to idiotic opinion, was not a favorable or charitable description. The point was only that the argument wouldn't work...in reality, which has been my critique of the means-based arguments from the beginning. I am not saying it shouldn't work. I am saying it won't. So a better argument is the end-based one. Because it has a shot of working.

"You cannot discriminate against an individual because of a general attribute you impute to a class of which they are a member."

Of course we can. The people decided they don't like sex between cousins (don't start... the birth defects claim is being debunked farther every day) so they pass a law against incest. They don't like people starting fires, so they pass a law against arson. These laws are about CONDUCT, not PEOPLE. Anti-arson laws are not prejudiced against pyromaniacs, they are prejudiced against people who start fires.

Rosie,

Your whole "case" is an appeal to authority.

You can't make a case that something is in fact beneficial or not by asserting that an authority agrees with you.

A good analysis is based on facts and relations. So all reference to some justics on the court is beside the point as are all references to cases that were decided one way or the other.

"Go read Lawrence v. Texas. It's quite clear. You seem not to understand how stare decisis works. If the court rejects Argument XYZ in favor of Law ABC and your argument is exactly like XYZ in favor of a law just like ABC, it doesn't take "speculation" to know your law is invalid."

You've read Lawrence and you don't see why this is funny? Whatever your thoughts on that case, it had very little to do with stare decisis.

And Rosie,

If you want to argue stare decisis start with justifying Plessy or Dred Scott and then show how the court is infallible.

Even the Catholics church is not as dogmatic as your arguments.

As to policy--it doesn't have to be proved to be beneficial. That is why the people get to vote on laws rather than a committe of experts.

Policy simply has to conform to the Constitution and whatever statutes exist. All policy is discriminatory in one wat of the other. All laws discriminate. Some benefit and some are penalized.

"You've read Lawrence and you don't see why this is funny? Whatever your thoughts on that case, it had very little to do with stare decisis."

I didn't say Lawrence followed the doctrine of stare decisis. I said that the doctrine of stare decisis means that Lawrence is good precedent for future cases. Your equivocation is showing.

"You can't make a case that something is in fact beneficial or not by asserting that an authority agrees with you. So all reference to some justics on the court is beside the point as are all references to cases that were decided one way or the other."

Actually you can. To do so is only a fallacy if the authority is inappropriate, such as deferring to a neurosurgeon for baseball history and going to a baseball historian for brain surgery. There is nothing wrong with going to a neurosurgeon for brain surgery or asking a baseball historian about baseball statistics. You obviously know nothing about stare decisis, because it is premised in part on the authority of the court.

Anti-arson laws are not prejudiced against pyromaniacs, they are prejudiced against people who start fires. "You cannot discriminate against an individual because of a general attribute you impute to a class of which they are a member."

Actually, you're wrong about that. I don't remember the case name, but there was a Supreme Court case involving chicken thieves of two types, those who stole them by borrowing and those who stole them by burglary. In other words, Man A says, "Let me borrow your chickens," then he never returns. Man B just breaks into your farm and takes your chickens. There was a criminal sanction of sterilization for the chicken thieves who did so via burglary, but not for the chicken thieves who tricked you. The reason was a presupposition that white-collar criminals, those who trick others in gentlemanly transactions, are more intelligent and sophisticated, and that people who just burglar chickens are white trash, and so don't deserve to bear children. The decision didn't say that sterilization was unconstitutional absolutely, only that if any chicken-thieves were going to be sterilized, all chicken thieves had to be sterilized. All or none. Categorical or not at all. So, again, I wasn't talking about discrimination across classes, as you seem to think -- the difference between arsonists and non-arsonists. I was talking about discrimination within a class -- the difference between some arsonists and other arsonists. Or the difference between the generalization (most women) and individuals (this particular woman).

Marriage, as a state institution, is not a right. It is a policy of government.

Anyone can "marry" anyone else. It is just that the state recognizes only certain arrangements for the benefit of the state as policy.

Even so, all people have equal access to this institution whatever their sexual proclivities. Marriage does not license sex (you can do that without the state's permission). So your "right" to marry is actually to have a marriage recognized and given some legal status, which anyone can do--one marriage at a time to an eligible person of the opposite gender.

"If you want to argue stare decisis start with justifying Plessy or Dred Scott and then show how the court is infallible."

I don't think I said the court is infalliable, but thanks for the straw man. I think I said the argument would be invalidated by the court. Whether the court is right to do so is irrelevant to my original statement.

"Even the Catholics church is not as dogmatic as your arguments."

Wow, thanks for the ad hominem. We can see that logic is your strong suit.

Rosie,

You seem like you want to argue a case in court. This is not court. Stare decisis is an inappropriate constraint unless you are analyzing the potential viability of a case before a judicial body.

No one here is concerned with that here.

Likewise, no one has authority here either--that's why we are discussing the matter.

"So your "right" to marry is actually to have a marriage recognized and given some legal status, which anyone can do--one marriage at a time to an eligible person of the opposite gender."

That's much like the argument in favor of anti-miscegenation laws. Black people can marry black people and and white people can marry white people and neither can marry interracially, so it's equal. That kind of formalistic equality doesn't work either.

Rosie,

If I say that your arguments are dogmatic, that is not an ad hominim attack. Calling someone misogynistic is, however, a nice example of such an attack.

"Idiotic" also qualifies. So does "illiterate", allusions to incompetence, etc.

"Likewise, no one has authority here either--that's why we are discussing the matter."

That is a stupid argument. Please explain to me what the point is of making an argument that ha no basis in reality and no application in reality? I would think that common sense has authoriy here, but perhaps not. Given that you're the same person who didn't recognize the difference between gender and sex, I think we know where you're coming from, and why you rejected the knowledge for knowledge's sake argument.

Sterilizing chicken thieves... I honestly don't know how to respond to that so I'm just going to let it go :)

You quoted yourself by the way, and then simply stated my view. I hope you got that backwards, but this conversation has been so fraught with misunderstandings I can't be sure. Are YOU saying that you agree that anti-sodomy laws are proscribing a particular conduct rather than "condemning a group of people"?

Well, no. Idiocy corresponds to an actual IQ rating. If you misunderstand something that everyone else who reads it understands, then perhaps you have poor litercacy skills. As for being incompetent, if you don't know the difference between gender and sex, you kind of make your own reputation.

That's much like the argument in favor of anti-miscegenation laws. Black people can marry black people and and white people can marry white people and neither can marry interracially, so it's equal. That kind of formalistic equality doesn't work either.

No, this is an example of a rascist criteria. The Constitution does not allow racial discrimination (and such laws that do discriminate are de facto unconstitutional). However, the Constitution does recognize gender differences.

It also allows for discrimination based on sexual orientation.

"I think we know where you're coming from, and why you rejected the knowledge for knowledge's sake argument."

That is begging the question, John Smith. You can't just say something is good, trust me on it. It's circular logic. X is great, X must be promoted. Trust me. Calling it "intrinsic" goodness doesn't change the circular logic of your argument.

"Are YOU saying that you agree that anti-sodomy laws are proscribing a particular conduct rather than "condemning a group of people"?"

I never made the discrimination argument with regard to anti-sodomy laws. I'd suggest you re-read my arguments. I have been explicitly talking about generalizations attributed to a class applied to exceptional individuals within a class, such as with regard to sex and gender. You brought up sodomy laws, and I think all I said was that the court has invalidated them, so a principle in defense of them is not a foundation for a workable argument. I didn't say your argument otherwise was inherently good. I just said you need to find another route to making it: don't confuse our colloquy for the one I am having with the dude who can't read.

Well, no. Idiocy corresponds to an actual IQ rating. If you misunderstand something that everyone else who reads it understands, then perhaps you have poor litercacy skills. As for being incompetent, if you don't know the difference between gender and sex, you kind of make your own reputation.

I'll just highlight these passages.

That is begging the question, John Smith.

No it is not. Begging the question is deductive. I am making an inductive argument. In other words, go out and get some knowledge, and trust yourself. Don't trust me. Go and investigate. Using the same methods, you will come to the same conclusison. It's called science.

Daniel,

You know, sexual orientation, is a state of mind. It is a choice.

Main Entry: id·i·ot
Pronunciation: 'i-dE-&t
Function: noun
Etymology: Middle English, from Latin idiota ignorant person, from Greek idiOtEs one in a private station, layman, ignorant person, from idios one's own, private; akin to Latin suus one's own —more at SUICIDE
Date: 14th century
1 : a person affected with idiocy; especially : a feebleminded person having a mental age not exceeding three years and requiring complete custodial care

Is saying something that is true fallacious?

"You cannot discriminate against an individual because of a general attribute you impute to a class of which they are a member." - John Smith

You said this. It's an argument taken directly from O'Conner's concurring opinion in Lawrence. I was responding to it by using that case as an example. The law proscribes homosexual sodomy, it does not discriminate against "homosexuals."

If you weren't trying to make this point, maybe you need to be more clear. I'm sure Paul can read.

"However, the Constitution does recognize gender differences."

And so I point you back to the VMI case and Ginsburg's majority opinion.

Ad hominem are not considered logical fallacies because they may or may not be true, they are considered fallacies because they are irrelevant to the argument being considered. If someone is an idiot, they may still be right.

Sorry, paul... not sure I know what you're saying. Did I imply that it wasn't a choice? I'm trying to stay away from that argument... although I'm sure it weighs heavily when voters decide whether to pass a law on the issue.

So, again, I wasn't talking about discrimination across classes, as you seem to think -- the difference between arsonists and non-arsonists. I was talking about discrimination within a class -- the difference between some arsonists and other arsonists. Or the difference between the generalization (most women) and individuals (this particular woman). -- John Smith

In the anti-sodomy case, you want to get me to say that anti-sodomy laws are invalid per se. Does the above paragraph support that conclusion? If it did, I would have said that sterilization is wrong per se. I did not. I said that discrimination within groups is no good (applying generalizations). In other words, WHY ARE YOU ARGUING WITH ME? I never said that antisodomy laws are discriminatory. I said the court struck them down in Lawrence, so an anti-Lawrence argument wouldn't work, unless you got the court to overrule itself -- AGAIN.

That is begging the question, John Smith.

No it is not. Begging the question is deductive. I am making an inductive argument. In other words, go out and get some knowledge, and trust yourself. Don't trust me. Go and investigate. Using the same methods, you will come to the same conclusison. It's called science.

-----------

It's still begging the question, even if you think others will glory in the "intrinsic goodness." The premise of your argument, intrinsic goodness, has to be proved for your arugment to stand. But you don't prove it, you assume it's true. That's begging the question.

Sorry Daniel,

You made the point that the Constitution does not recognize sexual orientation. I was just elaborating that sexual orientation is a state of mind.

Now, I don't think that makes your belief invalid or that a law predicated on such a belief would be unconstitutional, but it doesn't make for a particularly stimulating policy discussion.

Ad hominem are not considered logical fallacies because they may or may not be true, they are considered fallacies because they are irrelevant to the argument being considered.

I do not think it is irrelevant that the argument was made by an idiot. The likelihood that an idiot has made a salient point is quite low. I don't see how that is fallacious.

Ad hominem are not considered logical fallacies because they may or may not be true, they are considered fallacies because they are irrelevant to the argument being considered.

I do not think it is irrelevant that the argument was made by an idiot. The likelihood that an idiot has made a salient point is quite low. I don't see how that is fallacious.

====

True, but saying someone is an idiot does not refute their argument, that's why it's a logical fallacy. And, of course, there is always the chance someone is just calling someone an idiot because they can't respond to the "idiot's" argument.

But you don't prove it, you assume it's true. That's begging the question.

You seem to miss the point. I'm not making a deductive argument, so there is no question begging. I have experienced the intrinsic goodness of heterosexual sex. I did not know or presume it was there before I encountered it. I can only speak for myself. In other words, I am not making a categorical proposition. But here's the thing, if something is true in reality, then you can test to see if it is. E.g., if a stone is right in front of us, all of us with sight should be able to see it. I'm not presuming the stone is there: I have looked at it. If you would like to determine if the stone is there, open your eyes. Your argument is like saying "scientists are presuming that the scientific method works." Yes, technically, they are. But they aren't question begging on individual hypotheses. You're right, I'm begging the question that how I perceive reality corresponds to how it actually is. Sorry for not being a total skeptic.

"True, but saying someone is an idiot does not refute their argument, that's why it's a logical fallacy."

I never called him an idiot to refute his argument, Palooka. Read up. I called him an idiot because he thought I was siding with Justice Ginsburg when I was making fun of her. I called him an idiot for having an obviously false belief.

Oh boy... Judge Posner starts a conversation about sex, and we end up with two guys comparing the size of their...

IQs.

Sorry Daniel,

I'm just having fun. :)

I would note by the way, that ends-based arguments have seemed to work in the wake of Lawrence in regard to sex toys and other contexts that would seemingly be affected by the decision.

Not gonna lie, John, I've been confused by your distinction between "ends-based arguments" and "means-based arguments." Here's what I think you mean... please tell me if I'm wrong. Yes, I'm going to use Lawrence again as an example.

You're saying that you disagree with the result in Lawrence, but it is impossible to fight against that decision. Rather than argue that the case was wrongly decided, are you trying argue that the need to "stop" homosexuality is a stronger state interest than anyone has claimed in the past? Perhaps there is even a strong enough interest to pass whatever level of scrutiny that the Court applied in Lawrence if people would just make a case that homosexuality is "icky" enough?

IF that is actually what you're saying (and please don't respond to this part if I'm wrong...), I don't think there's much difference. I agree that there is a legitimate state interest, but no matter how high you hold that interest, the constitutional bar applied in Lawrence will always be higher. This is why we agree that Justice Ginsburg is wrong. (although I'd point my finger at O'Conner first)

[[Not gonna lie, John, I've been confused by your distinction between "ends-based arguments" and "means-based arguments."]]

Then don't confuse it further by talking about Lawrence. The distinction is very simple. One is an argument that heterosexual marriage is an end per se. The other is that it is a means to an end, such as supplying children with normative gender roles. Means-based arguments require comparison. If I say x is the best at doing abc, I can't just presume that, I have to prove it, because you could say z is the best as doing abc.

The reason why there is so much means-based analysis of the ends-based argument is 1) people who are utilitarian see everything in terms of means and have trouble comprehending ends-based arguments (they instrumentalize everything, or always ask, "what is it good for?"); and 2) after I made the ends-based argument, I then attached a means-based argument about public recognition, which is a separate argument, and so led to confusion (for utilitarians who ignored that the ends-based argument even existed).

You can re-read what was said above to see that the argument I made is the following:
1. Heterosexual marriage is good per se.
2. Public recognition is an effective means to promote heterosexual marriage.

None of it has anything to do with Lawrence or sodomy. The critique of the ends-based argument is that it begs the question that heterosexual marriage is good, which it does not, as it is an inductive argument. That is explained above as well.

"You're saying that you disagree with the result in Lawrence, but it is impossible to fight against that decision."

No, I am saying that regardless of whether Lawrence was rightly decided, it is the law -- I didn't actually take a position about its rightness or its methodology, which is what is confusing you. Lawrence has nothing to do with my positive claims/argument, but I did point out that it is an obstacle to those of you making arguments that treat Lawrence as if it is not the law.

"Perhaps there is even a strong enough interest to pass whatever level of scrutiny that the Court applied in Lawrence if people would just make a case that homosexuality is "icky" enough?"

That is a political and majoritarian argument that I (perhaps) have sympathy with, probably adding to the (specifically your) confusion, but I also made clear that it would not work in court.

http://www.nationalreview.com/document/bradley200504140800.asp

A manmade institution as a good in itself?

Even a masterpiece of art has value only in its appreciation or use as kindling.

In the domain of human affairs, man stands alone as the only end in and of herself.

(Now I am being dogmatic).

John, John, John -- I don't think anyone has really addressed your "gays are icky a priori" "argument." I'm absolutely NOT going to participate in any more real-time commenting (I can't imagine poor Judge Posner reading all of this), but this "intrinsic goodness of heterosexual sex" based in experience business has got to stop, unless you've also experienced homosexual sex and can make a comparison. Seriously. How can you say that one thing is intrinsically good in comparison to another when you've only experienced one? (Admittedly, I'm ASSUMING you've only experienced one. Feel free to correct me.)

Frankly, the idea that one method of reaching orgasm is any better than another is just silly. I personally don't happen to be stimulated by guys, but if someone else happens to gain pleasure from it, so why? The only difference between the various orgasm-generating activities available to people of non-diverse sexes (AND diverse-sexes) and the one special one available to people of diverse-sexes is that the latter produces kids. To which I say B.F.D. I refer you to the discussion of overpopulation above. I also refer you to any resturant or airplane with screaming brats.

In fact, maybe there is something to this whole "let the states decide it" point. Y'all who believe that there's some sane argument(s) against allowing gay marriage, all of which which apparently reduce to (a) "only penis+vagina sex is non-icky" and (b) "only straight couples can raise children right" -- and (a) reduces to "only sexual couplings that can result in breeding are non-icky -- can have your state. Lets call it "Texas." Actually, let's call it "Breedocracy." And since the ultimate goal of breedocracy is children, we'll ban abortion and contraception there too, and prohibit women from working outside the home, ban all forms of sex except penis + vagina, and ban all sex outside marriage, since each of of those things is likely to increase the likelihood that more children will be born, and will be born and raised in heterosexual marriages, and those are the only values that anyone has identified as giving rise to a reason to ban gay marriage. Oh, did I mention that divorce is banned in "breedocracy?" Because, what about the children!

Y'all can go to Breedocracy. I'll go to Massachusetts, better known as Sextopia. All forms of sex, contraception, abortion, divorce, and marriage will be legal there.

We'll run them for 20 years, and see which state is happier and more prosperous at the end.

ANY GUESSES??

Very well put, Paul... and your hypothetical perfectly illustrates the next point. I probably disagree with you in saying that I'd pick "breedocracy" over "sextopia." Big whoop. Sextopia can do what it wants... that's why democracy should be local and the supreme court should stay out of it.

Yea, I suspect very few will choose Breedocracy. Oh, sure a bunch of Christian Coalitioners will go there -- but then their wives, sick of being beaten for failing to make the bannana bread nice and fluffy, and desiring to do something with their lives except spawn, will all emigrate (assuming they can escape the Defenders of the Faith which will undoubtedly be guarding the borders) and the ministers won't have anyone to boink. I'm sure they'll manage somehow, though. Probably with kidnappings and stronger border fortifications, though perhaps they'll just ban women from the schools so that they won't get the education necessary to realize there's a world other than Breeding The Wonderful Children That Are The Fount Of All Our Laws.

What the hell, eh? Lets just let Texas throw out its current legislative code and replace it with a copy of The Handmaid's Tale, eh? Because, hey, that's obviously what the People Want.

Either you didn't read me very closely, or that's awfully rude. Oh well... we all know how productive and happy hedonists are. I suppose I'm just fooling myself by choosing a monogomous marriage.

Daniel: (b). And a little bit of (c) (deliberate hyperbole).

My point is that freedom, so long as such freedom doesn't cause real harm to someone else (the second clause being the reason I think libertarianism is blind -- many "economic" freedoms are filled with externalities or deceit), is good for everyone. Majoritarianism needs to buckle to that principle. Democracy needs to buckle to that principle. The states should not be permitted to decide, no matter how democratic the process, to take away the social freedoms of others.

I'm reading a very interesting book about the French revolution right now, coincidentally. That's what happens when the majority looks up and realizes "hey, we can really SCREW all those people who we don't like!" Heads start rolling. Chop. Chop.

My committment to democracy and to state's rights does not extend so far.

Yes... I suppose I could also be rude and point out how incredibly stupid that argument is. I could go over the top in my sarcasm and do my best to insult your personal beliefs in the process.

But sarcasm is a tool of people who have given up trying to actually convince others, and it's beneath me. So I'll just leave you alone.

Consider re-reading the "deliberate hyperbole" part. (Need I omit the "re-"?)

I don't recall insulting anyone's personal beliefs. Where did I say "heterosexual monogamy is bad?" Indeed, it's my own personal relationship preference. Emphasis on the "personal." The problem comes when people start trying to remove that word. Let me repeat it again. "Personal." A good definiton of "personal" would be "not subject to legislative interference." Indeed, the groundbreaking feminist insight that "the personal is the political" perhaps could better be phrased in part as "historically, political power has inappropriately been exerted over the personal."

And yes, sarcasm is indeed a tool of people who have given up trying to actually convince others. Alas, I appear to be at that state right now.

Indeed, there's something to be said for that perspective in general. I seriously doubt anything said in any of these places by anyone is going to change anybody's mind about anything.

Ca ira.

We live in a country one of whose bedrock principles is the protection of minority rights in the context of generally republican governance. It's the "protection of minority rights" bit that means that royalists in the colonies, after the American revolution, weren't sent to the guillotine like they were in France.

"Social conservatives" seem hell-bent on eliminating that principle. Their all-out attack on the courts, on gays, on affirmative action, on the separation of church and state, and on the fillibuster, among others, are all manifestations of that mission. They want to destroy the wall of separation, for example, because, as Scalia regularly suggests, this is a "Christian" nation. And god help you if you're not a member of that majority. Replace "Christian" with "straight" or "white" or whatever, as you please.

The conservatives really believe they have a majority that is entitled, as John Smith suggested with his idiotic "gays are icky and people have a right to legislate their morality" posts, to write any damn thing they please in the laws, rights of the minorities be damned.

In that context, I utterly reject the idea that these things should be left to the democratic process. The democratic process be damned, I demand justice and minority rights.

The conservatives really believe they have a majority that is entitled, as John Smith suggested with his idiotic "gays are icky and people have a right to legislate their morality" posts, to write any damn thing they please in the laws, rights of the minorities be damned.

------

And liberals really believe they have an enlightened MINORITY that is entitled to legislate their morality and write any damn thing they please into the Constitution, rights of the majority, rule of law, and democracy be damned!

What exactly do you think suffers when judges do nothing but write their will into the Constitution? That is the rule of law which is suffers!

There is no generic minority rights clause in the Constitution. It is not what you want it to be, and trying to mold it to your political whims undermines the rule of law. The Constitution is a foundation for government with SOME minority protections. It isn't a blank check handed to the judiciary to ensure "social justice" or whatever is popular with the elites at any given moment.

Forgive me if this point has been made in one of the many previous postings... If the returns to marriage have decreased for women as they have acheived greater economic freedom, then does it follow that women are now demanding greater benefits to continue consuming the marriage product? I suspect that women are demanding more compassion and more companionship in their marriages than they did when they had less economic freedom. If true, then women may assign lower value to marriage with those men who show lower likelihood of a sustainable "companionate" marriage. Women may be willing to have relationships with such men, but may be less willing to ultimately marry them.

Birdwin,

The difference would be in the an increased acceptibility of men who are good companions but poor providers. I think we see something of that trend.

This is one of the benefits of economic equality between the sexes.

"The conservatives really believe they have a majority that is entitled, as John Smith suggested with his idiotic "gays are icky and people have a right to legislate their morality" posts, to write any damn thing they please in the laws, rights of the minorities be damned."

This is a purposeful distortion. I clearly stated that the "gays are icky" argument would fail in court and is prevented by Lawrence. The ends-based argument I have made has nothing to do with Lawrence or the "gays are icky" argument, as should be clear to anyone who reads. I even stated that before. CTRL+F for the word "confusion". I have never made an argument that minorities have no rights against the majority. But the existence of minority rights does not meant the absence of majority rule. I actually took no position on whether gay marriage should or should not be permitted. I only noted that an ends-based argument could succeed as a defense of heterosexual marriage, a means-based argument could not, and "democratic experimentalism" is in essence the means-based argument.

As an aside, I do think "the people" have the power to legislate their morality, although I never said such a power was absolute. Anyone who believes that the prohibition against murder is not a based in moral belief, or that a state legislature has no legitimate power to prohibit murder, is the idiot.

"It isn't a blank check handed to the judiciary to ensure "social justice" or whatever is popular with the elites at any given moment."

And yet that is exactly what means-based defensese of heterosecual marriage and democratic experimentalism collapse into.

"How can you say that one thing is intrinsically good in comparison to another when you've only experienced one? (Admittedly, I'm ASSUMING you've only experienced one. Feel free to correct me.)"

There is no "in comparison". I am EXPLICITLY NOT saying that heterosexual sex is BETTER than homosexual sex. THAT is a means-based argument: heterosecual sex is better than homosexual sex at acheiving goal XYZ. That is not my argument. The argument is that heterosexual sex is an end in and of itself. There is no need for comparison, because it is not a means to an end. I don't need to experience homosexual sex to know that heterosexual sex is INTRINSICALLY good. The INTRINSIC goodness of heterosexual sex has nothing to do with homosexaul sex at all. That's the whole point.

Means-based arguments invite comparison. Ends-based arguments do not.

"John, John, John -- I don't think anyone has really addressed your "gays are icky a priori" 'argument.'"

That is because I never really made that argument. I just threw it out there. I don't actually think gays are icky, and have stated repeatedly that Lawrence is a barrier to such kind of arguments. But I did provide a link to a legal scholar who makes it (which you obviously did not read).

"gays are icky a priori"

And actually, I NEVER made a sketch of an "a priori" argument in the metaphysical sense. The idea is more akin to Jane Galt's argument: people just don't agree with the gay agenda after they come to know what it truly means for radically altering society. There are so many straw-men abounding here.

I mostly agree with Posner's analysis but feel that he is missing a crucial piece of the puzzle.

Sex has two potential purposes: pleasure and children. For reasons of evolution, men have always been inclined to the view that it's for pleasure, and women to the view that the purpose is to have children.

The 20th century brought us two major changes that have strengthened the "pleasure" view. One is the development of safe contraceptive methods (as well as safe abortion), making unintended pregnancy much less likely than it was for most of our evolutionary past. The other is that (at least in the rich countries) the need to have lots of kids as a form of old-age pension plan has largely disappeared; not only are most of us now rich enough not to need support from our kids, but also any kids you have are much more likely to survive to adulthood, so you don't need to pump out twenty kids in the hope that two or three will survive. (I don't list improvements in disease treatment because those are largely a wash; for every STD conquered, a new one has appeared.)

As a result, in the modern world, nearly all sex is purely for pleasure, not reproduction, and both religion and law need to be updated to recognize that reality. Religions that don't will be discarded as obsolete; laws that don't are tyranny.

By updating the law, I mean a lot more than just legalizing all forms of sex by consenting adults, though that is certainly a moral imperative and needs to be done yesterday.

The law also needs to be changed to put authority and responsibility in the same hands in the many cases where it currently isn't.

Example: An unintended pregnancy occurs. The woman has sole authority to decide the outcome; she can have the child and keep it, have it and give it up for adoption, abort, or (in many states) even legally abandon it. She doesn't even have to tell the man that it happened. But she is free to choose the most expensive outcome -- having the child and keeping it -- and the law compels the man to pay for the result of that choice. This is horribly unfair. The same rule ought to apply as in awarding damages after an accident -- if you don't take all reasonable steps to minimize the cost of the accident, you give up the right to collect.

Several related laws amplify the tyranny here.

1) The woman can falsely promise not to keep the child if this happens, and renege and still collect. She can entrap the man deliberately by falsely telling him she's using birth control, and still collect. She can even deliberately defeat such measures as condom use, withdrawal, or sex practices not involving the vagina (by collecting and inserting the semen afterward) and still collect.

2) Child support awards have nothing to do with even a guess about the cost of raising a child. Instead, they are based on a court's (often ridiculous) estimate of the man's potential earnings. And no attempt at all is made to ensure that the money actually gets spent on the child. This, combined with 1), has created a huge opportunity for dishonest women to live at a man's expense without even having to live with him.

3) Courts routinely use contempt orders to effectively recreate the debtor's prison for men who can't pay. In addition, federal law frequently creates that very inability by forcing states to revoke the drivers' licenses and occupational licenses of men who can't pay. In effect the 13th Amendment has been worse-than-repealed for men who've been forced into fatherhood.

Honest women who want children, and who quite sensibly want to insist that the father commit himself to taking responsibility for them, have always had a perfectly good mechanism for formalizing exactly that agreement; it's called marriage, and all they have to do is insist on it before having sex (or at least, vaginal penetration).

Just as the law quite sensibly insists that people who want a contract (for large stakes) enforced put it in writing, the law should insist, as it did until about 1930, that a woman who wants to collect child support begin by getting the man's signature on a marriage license. In the absence of marriage, the law ought to expect her to either refrain from sex or to pay for the result of her after-pregnancy choice herself. Until this change is made, more and more women will enslave men by trickery.

Just to say that I fully agree with post regarding the "forced paternity". I leave in Portugal, and the law problem is the same.
Regards

John: "ends based arguments" as you call them certainly do invite comparison because there's limited resources. If Joe is going out and getting the intrinsic good of heterosexual sex, he's using time and effort which could instead be spent going out and getting homosexual sex. Since we're all mortal, one has to know whether homosexual sex is an intrinsic good too, and, if so, whether it's more or less intrinsically good, in order to justify a policy choice which favors heterosexual sex over homosexual sex on that basis.

Moreover, your idea that heterosexual sex is an intrinsic good is based solely on the evidence of the experience of engaging therein. That is all you've suggested as the basis for identifying its intrinsic goodness, and there has to be some basis -- merely saying something is intrinsically good does not permit you do avoid all need for evidence therefor, unless you are, in fact, making that assertion a priori. Since you explicitly disclaimed a priori as the basis for the intrinsic goodness, you're left with the need for evidence, which comes from experience.

But merely by saying that, you refute the intrinsic nature of the good and reduce it to an instrumental good: the experience that led you to declare heterosexual experience as an intrinsic good must have caused some consciousness-state (otherwise it wouldn't have been an experience). Consciousness-states are the only things that people can evaluate from experience: evaluation is practiced on an accessible object, and that object is the state of consciousness induced by an act. Thereofre, that consciousness-state is what the identified good would be, and the experience causing the consciousness-state (the heterosexual sex) would merely be an instrumental good in order to reach the intrinsic good of the consciousness state.

Let me rephrase for clarity:
There is no way to establish, within the limited scope of human consciousness, any intrinsic goods beyond: (a) positively evaluated states of consciousness (a.k.a. "happiness"), and (b) intrinsic goods asserted a priori (a.k.a. "truth, justice, motherhood, God and apple pie."). Since you claim that the goodness of heterosexual sex does not come from balt a priori assertion (a wise claim, since anyone can make a priori assertions), and since heterosexual sex is not itself a direct manifestation of consciousness, it follows that heterosexual sex is good only insofar as it brings, or leads to something that brings, pleasure. An instrumental good.

clarification... what I'm really saying is there can be no a posteriori intrinsic good. As an epistemological matter, that would be a contradiction.