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07/17/2005

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Palooka

"Even if there WAS empirical data, it isn't any more of an argument against gay marriage as it was when prople tried to use it against interracial marriage."

Actually, you're wrong. Racial disctinctions are subject to strict scrutiny, and homosexuality is subject to rational basis analysis. Therefore what would meet rational basis does not necessarily meet strict scrutiny.

Moreoever, let us say there is, hypothetically, a statistical differences in, say, black and white family efficacy. This would be because race is a loose proxy to income, education or even culture. Nobody would suggest race is a causal factor in parental efficacy, though gender diversity as a casual factor is not controversial. It is not inconceivable in the least to posit that a mother and a father is a superior family structure to two mothers or two fathers. That's a substantive difference, unlike that of race.

"PS - the suggestion of quotas on posts was ridiculous, especially when one is under attack as you have been. please post away!"

OK, you asked for it =) I am not sure why you suggest that "few" would support the removal of children from the homes of substance abusers. That happens all the time, and depending on the severity of the addiction and the substance, it is completely justifiable. I have also pointed out that there is a plausible argument that marriage (within its historical and traditional boundaries) may be considered a "fundamental right." New definitions, such as that of gay marriage, because of the lack of historical and legal support, is a different story.

Of course the denial of gay marriage equality is discrimination. The government discriminates--treats different groups differently--all the time. This should not be in itself a controversial thing. You say that one should look to parental "quality" instead of limiting all gay marriages. Well, you seem to believe that substance abuse is a legitimate qualitative factor to consider. Yet I am sure you also know that it isn't a PERFECT qualitative factor. One is bound to exclude parents who are very good parents despite their addiction. This is an inherent problem in ANY exclusion of any group, however rational that exclusion may be on a macro level. The alternative is to have a case-by-case analysis, but that, too, is not perfect. In fact, it may be less perfect (and thus less rational) than a policy of blanket exclusion.

CTW

"I am not sure why you suggest that "few" would support the removal of children from the homes of substance abusers."

simple - cynical ignorance. I infer from the mindless "pro-family" rhetoric of most gay marriage opponents that any rational approach to child nurturing is off the table. if that inference is wrong in practice, I am delighted.
"you seem to believe that substance abuse is a legitimate qualitative factor to consider. Yet I am sure you also know that it isn't a PERFECT qualitative factor"
of course, which is my point. substance abuse may result in a home environment that is suboptimal - on a scale of 1-10 with 10 being most promising, say 6. if gay parents result in a home environment that is 5, it would seem obviously prejudicial to restrict gay parenthood but not "junky" parenthood. on the other hand, if the rating for gay parents is 2, then it might be quite appropriate to restrict gay parenthood (altho not necessarily gay marriage).
really, the only disagreement between us is political. you say "there are rational reasons to be cautious" re gay parenthood. I agree, and as noted earlier, also have concerns about the purely economic implications of gay marriage (or more accurately, marriage in general). unfortunately, the dominant anti-gay marriage political forces don't care about rational concerns - they just don't like gays. so, you have the problem of guilt by association, altho I am now convinced that in your case, that is unfair. my apologies for any suggestions to the contrary.

darvid

Addressing the fear that SSM might encourage some people to "choose" homosexuality, Judge Posner notes: "[T]here is compelling evidence that sexual orientation is an innate (probably genetic) rather than acquired characteristic. It is not clear what weight, if any, society should give to opinions formed on the basis of scientific error."

This is an intriguing point. In private economic matters, the artifacts of commonly held fear may support legal protection, even if the fear is scientifically unfounded. For example, some courts have allowed a homeowner to recover damages for a decline in property value that can be traced to a pollutant spill, or the opening of a sanitarium, on nearby land, even if it is scientifically impossible for any contaminants or contagion to reach the homeowner's property. The point is that the fear, factually unfounded or not, may be real, natural, and widespread enough to have demonstrable economic consequences on the neighborhood. If the neighbor incurs a benefit or avoids a cost based on her behavior, she might be required to pay for that privilege even if, scientifically speaking, the behavior isn't hurting anyone. In these circumstances, the courts do not simply tell the entire neighborhood that its fears are scientifically silly and that its only recourse lies in educating the public so property values can be maintained at the old levels.

All human beings naturally experience xenophobia. Every society and social group supports and reinforces such fear in one area or another. In some instances this naturally arising, socially channeled fear presents itself as profound disgust and takes on moral overtones. It certainly has economic consequences. Indeed, it often demonstrably lowers property values. Nonetheless, our legal system no longer condones discrimination in most settings based on race. Antimiscegenation laws are no longer enforced although mixed-race couples have long faced social rejection and physical violence. As a society we have, at least on paper, declared that our schools, restaurants, hotels, factories, offices, military units, and bedrooms must be shared by all races even though this regime still makes many people profoundly uncomfortable and continues to impose significant economic burdens on the participants, including but not limited to the matters of emotional utility discussed by Judge Posner. In each of those settings, courts previously upheld segregation on the basis of hallowed principles, most of which could be traced to the fact that a substantial number of citizens in the white majority feared that they or their loved ones would be debased by contact with other races. The courts' recent determination to override these fears, and to deprive them of legal sanction, does not merely constitute a finding that the fears are not scientifically accurate, or that they are not natural or widespread. Rather, our society has recognized, or articulated, or discovered, or created, a constitutional basis for declaring such fears unworthy of community support.

A changed legal regime cannot eliminate naturally occurring or socially reinforced xenophobia. Nor should it impinge on religious doctrine as such. But our constitutional jurisprudence and the social framework it creates may, over time, reduce the impact of such fears and their social and economic costs.

Same-sex civil unions or marriages, like homosexuality itself, terrifies some people -- enough to inspire dread, lower property values, and impose other economic costs. Should society support such fear in matters of public accommodation? We have gradually applied the same nondiscrimination principles to matters of sexual orientation as to matters of race. The trend seems clear, even if the timeline is not.

Corey

"Actually, you're wrong. Racial disctinctions are subject to strict scrutiny, and homosexuality is subject to rational basis analysis."

Come on, yes I know the current state of the law. The law also says no gay marriage. I think you could reasonably assume that if I am arguing for a change in THAT law, then I probably also don't think sexual orientation should be getting rational basis.

But I'll be clear. I believe sexual orientation AND gender should be getting full strict scrutiny.

And I believe that within my lifetime that will occur, and I will celebrate, and I won't know any of you then, so you can close your eyes for a minute and imagine me saying, "see, I told you so" with a smile and raised pint.

David

I am a little bit surprised that in light of Lawrence, courts have not laid siege on the military's ridiculous "don't ask, don't tell" rule. I think there are two explanations. First, courts are reluctant to interfere with the military in any way, even in what should be basic matters of civil rights. Second, I think that the "elites" who make up the federal judiciary, liberal and conservative alike, regard military types as philistines to begin with, and thus expect and tolerate a certain amount of bigotry from them. Either rationale, in my view, is shortsighted and wrong.

The same logic applies to rules banning women in "combat." Though, as a practical matter, women in combat support positions participate in combat every day.

Mike

I'd like to widen the scope from that of gay marriage to marriage in general, and view that broader subject as proposed here. With that in mind, I bring attention to the decision of Court of Appeal in Balfour v. Balfour (1919).

Here's my take on it. In Balfour we have a case of a woman trying to enforce a promise made to her by her ex-husband when they were still married. In the spirit that is being advocated by Judge Posner, where marriage is viewed as an institution with its basis in contract law, the lower court applied the doctrine of consideration to enforce this particular promise. Just to underscore the point as I see it, the court viewed the broad institution of marriage through the lens of contract law, and applied contract doctrine to a particular agreement reached between the married couple.

However, the Court of Appeal saw applying contract doctrine to marriage as inappropriate. As I understand it, they reversed the decision of the lower court on the technical grounds that her acceptance of this promise did not constitute consideration. However in looking at the opinions of the judges, they were concerned with greater issues of social policy, not the technicalities of applying the laws of contracts to marriage.

To quote Atkin, "The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts....[E]ach house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted...."

If the basis of marriage in general is to be found in contract law because it serves a utilitarian and economic purpose as proposed by Judge Posner, what about the individual agreements that arise between marriage partners? It seems to me that if the principle applies to the broadly defined marriage relationship, then by extension it will inevitably apply to the all the components that make up that relationship. As the judges describe here, agreements never intended as matters of law could come to be litigated as legal grievances.

If that were to be the result, then all the economic and utilitarian advantages that would attain to the marriage qua contract argument would be outweighed by the disadvantages of such a view.

Again, to quote Atkin, "All I can say is that the small Courts of this country would have to be multiplied on hundredfold if these arrangements were held to result in legal obligations."

Anonymous

Hey Corey, Newsflash:

You are gay.

MikeTheBear

"This is an intriguing point. In private economic matters, the artifacts of commonly held fear may support legal protection, even if the fear is scientifically unfounded."

I think I remember reading once of a law in one state that required a homeowner to disclose to a prospective buyer whether a murder or suicide had occurred in the dwelling. I guess "ghosts" bring down property values.

vrimj

Why stop at marriage?
I think the whole issue of gay marriage is the tip of a much larger iceberg. Kinship relationships in our society are usually based on relatedness and assumed by state statutes. Living in more mobile societies, it is not unusual for the people that are closest to you to be unrelated by blood or marriage at all.
I like the idea of contracts for marriage. 1 I just don't see why it should stop there, a system of social contracting for kinship would make a lot of sense.

1-I had an unofficial contract for the first 5 years of my marriage, we still look it over as a way to talk about how we want our relationship to work.

Palooka

In response to the many comments about "xenophobia" and the like:

Disgust or moral revulsion of behavior should not be an inadequate justification in every circumstance.

Let us examine a few examples. Bestiality. It's been brought up in this thread, and has been said that because animals lack the ability to consent, it can thus be criminalized. We don't require animals' consent for work they perform or consent to be slaughtered and eaten, so I don't see why consent for sexual acts would be required. We do outlaw cruelty and torture of animals but this would only mandate that bestiality which was cruel and harmful be outlawed. Is it impossible that an animal could actually enjoy sex with a human? We only need to look at the behavior of a neighbor's dog to find that answer. Oh, and ask Lassie if he thinks getting a blow job is cruel. What about the donkey in a donkey show? I don't mean to disgust or throw rhetorical bombs, but I think it should be obvious the reason society outlaws this sort of behavior is that it is REVOLTING and not because animals lack the ability to consent or that all bestiality is harmful to them. Revulsion is either legitimate or its not, and if it's not I am not sure how one justifies outlawing some forms of bestiality which clearly do not hurt or torture animals.

A second example is that of non-procreative incest. Incest which is potentially procreative can produce offspring with severe abnormalities, so I concede that can be outlawed consistent wtih the sort of Millian philosophy so many here seem to subscribe to. But non-procreative incest is different, from a strict application of Mill's principles outlined in On Liberty, there is no reason the state should outlaw two brothers or sisters from having sex (or an elderly woman and her son).

Does anybody here really believe moral revulsion, even if almost universally held, is a an illegitimate basis of law? And if you do, how do you justify outlawing the examples discussed above in a way which does not offend your principles?

Anonymous

Mr. Posner,
On you column "Bad News" I wish to say, that I am happy there are bloggers and Fox News. For a long time, listening to the MSM, I felt that no one else objected to their opinions like I did and now I have an outlet, a news media that does't slant to the left. There is now a place where I can hear news that isn't anit-American, anti-tradional. A media outlet exists that doesn't accept false documents presented by Rather and CBS in an election year. Yes, finally freedom of the press for all of the people. Vicki Strickland

Corey

I decided to change my mind. What did it? Well, Canada has just legalized gay marriage.

Let us say that the cost of changing our law and society so that gay marriage is legal is 5. The cost of transporting all gay people in the United States to Canada (including them becoming Candadians), however, is 3. Should we round them up and send them off?

The obvious answer is yes, because of the cost-savings. It's worth it! All we need is a President brave enough to do it!

Corey

OK, so once again someone has decided to post
pretending to be me. Not a very convincing impersonation though. Please stop doing that,
it is very inconsiderate and further dumbs down the debate here. Forging posts is easy to do here, but if it happens much it will become impossible for _anyone_ to maintain credibility.

And as far as I am concerned, this carefully reasoned response...

"Hey Corey, Newsflash: You are gay."

...makes me feel very good about the company I keep over on my side of this debate. Peace be with you.

Corey

I am a schizo!

Frank Riely

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

MikeTheBear

"Does anybody here really believe moral revulsion, even if almost universally held, is a an illegitimate basis of law? And if you do, how do you justify outlawing the examples discussed above in a way which does not offend your principles?"

From an economic perspective, laws based solely on moral revulsion don't make sense. You will probably ask, "Where do you draw the line?" Let's take your bestiality example. If an individual decides to have sex with his dog in the front lawn, that type of conduct should definitely be prohibited. Deviant sexual conduct, and even "normal" sexual conduct, should not be performed in public because: (1) the deviant conduct will actually offend somebody and cause emotional harm; and (2) the normal conduct, even if it wouldn't offend some adults in our population, would be harmful for children to watch. There is a legitimate economic interest here: the preservation of emotional health. Now, suppose that individual had sex with his dog in the privacy of his home, with the blinds closed and doors locked so that curious onlookers could not accidentally walk in on the act. I am not denying that such an act is disgusting because I certainly feel it is. However, does society have a legitimate reason to police what people do in their own homes? If so, how would you enforce it? Enforcement of laws carries with it a real economic cost carried by the taxpayers. Would you be willing to have your taxes increased to pay for extra judicial resources to prosecute the man who likes his dog a little too much but who does it where no one can see? How about more prisons? What would be probable cause for arresting someone for bestiality? Would people who really like animals in a normal way suddenly need to be fearful that an overzealous law enforcement administration is constantly watching his or her every move? As a practical matter, they probably would not. Historically, there were many laws on the books, and some still remain, that governed sexual conduct that was once considered immoral that today would be considered a relatively normal part of a heterosexual relationship. The Lawrence v. Texas sodomy case came about not because the police were looking to arrest two gay men for engaging in sodomy but because the police entered the wrong apartment and accidentally found the two gay men. However, the DA's office can be quite politicaly, and you never know what crimes will be targeted for prosecution.

Palooka

I'm not sure if you answered the question, MikeTheBear. But you do ask some of me.

Yes, there are enforcement costs. Yes, I am willing to bear those costs (or my portion of them). That said, these sort of laws are more of a moral statement. The ability of laws to stigmatize and reinforce social norms should not be under-estimated.

Political and selective enforcement is always a problem, and these kind of laws present no special case in that regard.

jules

I must first apologize to everybody for the mistake I could have done in the writing, since english is not my mother language.

As I can figure, there are two points in Mr. Posner position :

- Firstly, the economic evaluation of social benefits of same sex marriage have to be done with a diference between the social cost of outrage and the benefits for the would-be married people.

- secondly, the equal protection clause hardly protect the right for gay people to claim for marriage.


Both of these arguments are raising questions.


- On the cost/benefit calculation of the same sex marriage :


One can hardly except the same-sex mariage from the whole debate on civil liberties.

Surely, the law protection of rights may outrage and cause harm to some part (even a major part) of society. But taking that in account supposes a very neutral attitude that can endanger the very basis of a liberal democracy.

Let's, indeed, replace the benefit of marriage by the benefit of the vote and let's replace the gays by jews or coloured people. There is no need to go far deep in history to remember that protect (or deprived people of) such rights have certainly harm a large category of people, and would have been considered as a harm to the majority under the nazi law.

Do we have to admit that such a calculation can lead a society to deprive people of rights or benefits of the law, simply because a majority is opposed to ? Calculation can't be that neutral. Values a democratic society accepts to protect by the law certainly harm a more or less large category of people, and yet we assume it has to be done because everybody is so ensured to benefit of the rights he values the most.


In other words, such a calculation have to integrate the global benefits or costs of the plurality, as the US supreme court does when freedom of speech is at stake.


Deprive a category of rights that everybody else belongs costs everybody else. As noted by Mr. Posner, "Of course it is often the duty of courts to buck public opinion; many constitutional rights are designed for the protection of minorities", which leads us to the second point.


- The constitutionnal basis of the same sex marriage


Il must admit that I can't clearly see the very economic argument that allows Mr. Posner to except sexual orientation from the benefit of a right.


The US constitution does not protect expressio verbis right of marriage between gay people. But neither does it protect the right of mariage between individuals of differents races, neither even protect the right of marriage, which, as far as remember lies in the right to pursuit happiness (which is not expressed in the US Constitution but in the declaration of independance).


For this very reason, I must say that I cannot see how the state government could deprive gay people of the benefits of rights that have been conceded to everybody else ont that ground.

FRNK

And as far as I am concerned, this carefully reasoned response...

"Hey Corey, Newsflash: You are gay."

...makes me feel very good about the company I keep over on my side of this debate

May we interpret this as tacit acknowledgement of your homosexuality?

The sophomoric "you are gay" swipe, which you do well to sidestep, nonetheless illustrates that by explictly distancing yourself from gays you are implicitly aknowledging there is something wrong with the gay lifestyle.

In fact, distancing yourself from being gay was the very first thing you wrote in your first post. "First off, I would like to assert that I am a strong supporter of gay marriege[sic] who is not gay or closely related to someone who is."

I suppose you thought that this disclosure would breathe legitimacy into your perspective? Your need to assert your heterosexuality only undermines your argument(s).

John Goudge

Your comments overlooked what is probably a driving force behind the push for gay marriage. The new wealth ñ pensions, employer sponsored healthcare and social security benefits. While a bit of foresight and the help of modestly skilled lawyer can deal with a gay coupleís old wealth such as stocks, bonds, real estate, bank accounts and life insurance, no such options exist for the new wealth.

Pensions either automatically cover the surviving spouse or can the beneficiary can elect coverage. Employer sponsored health care plans for active employees or retirees either automatically cover spouses and children or offer optional family coverage. Finally social security allows the survivor to elect to receive the deceased partnerís benefits. But the new wealth almost never allows a gay couple to have the same options as the married couple.

Result, the gay community sees that same sex marriage would permit it to share those options. In the USA, a naive belief that the full faith and credit clause of the constitution would force all states to recognize same sex marriages contracted in another state, leads to a push for gay marriage.

Matt

Regarding the terms "homosexual marriage" or "gay marriage"--it is marriage rights gays and lesbians are looking to enjoy.

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