The Problem with Arguments Against Same-Sex Marriage

Via Michael Brendan Dougherty, this CNN op-ed by Paul A.Robert P. George, Sherif Girgis, and Ryan T. Anderson is the best anti-same-sex marriage (SSM) argument I’ve read in a while. And I suppose I would feel that way, considering that the authors spend the clear majority of their essay sounding like supporters of SSM:

All human beings are equal in dignity and should be equal before the law. But equality only forbids arbitrary distinctions. And there is nothing arbitrary about maximizing the chances that children will know the love of their biological parents in a committed and exclusive bond. A strong marriage culture serves children, families and society by encouraging the ideal of giving kids both a mom and a dad.

Indeed, if that is not the public purpose of marriage law, then the “injustice” and “bigotry” charges comes back to bite most same-sex marriage supporters. If marriage is just the emotional bond “that matters most” to you — in the revealing words of the circuit judge who struck down California Proposition 8 — then personal tastes or a couple’s subjective preferences aside, there is no reason of principle for marriage to be pledged to permanence. Or sexually exclusive rather than “open.” Or limited to two spouses. Or oriented to family life and shaped by its demands.

In that case, every argument for recognizing two men’s bond as marital –equality, destigmatization, extending economic benefits — would also apply to recognizing romantic triads (“throuples,” as they are now known). Refusing such recognition would be unfair — a violation of equality — if commitment based on emotional companionship is what makes a marriage.

So when it comes to scaring you into really listening to their position — and the piece is clearly written for an audience that does not already oppose SSM — the authors lean heavy on the whole polyamory stuff. They imply the rise of the polys is something that’ll have an affect on society equivalent to the LGBTQ movement because, otherwise, who cares? The fact that they imply rather than prove tells you all you need to know about whether or not this is a near- or medium-term conversation. (For what it’s worth I don’t consider this line of inquiry to be, in the abstract, foolish.)

But even if we shrug off moral panic about Sally getting bold with Harry, Mark, and John, George et al are still making an interesting argument. What’s striking about it to me, however, is just how much the hypotheticals they lay out reflect the mainstream view of marriage. When they write that a ban on SSM would be unfair if marriage was nothing more than the ultimate friend with benefits situation, I think they’re right. Where they’re wrong is framing it hypothetically at all. The not-conservative mainstream does view marriage that way. And I would bet it’s all the more pronounced among my generation.

Now keep in mind, I’m not describing a finished process. I’m sure we could find more than a few places in the US where the disapproval of the friends-with-benefits relationship is only matched by ignorance of what that phrase could possibly mean. But I am comfortable in saying that I think this is an inevitable process. Once it started it wasn’t going to stop. So the game was lost, if you’re politically inclined to see it that way, much earlier than in the past five years, decade or even generation.

For social conservatives who find SSM to be an enervating confirmation of some of their worst fears, the war ended when sex became disentangled from procreation. Any argument against same-sex marriage that can’t or won’t grapple with this larger ideological schism between themselves and the “mainstream,” no matter how elegant or fairly put, is doomed for failure.

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81 thoughts on “The Problem with Arguments Against Same-Sex Marriage

  1. Same-sex marriage was a ridiculous slippery-slope fallacy argument back in the “Loving vs. Virginia” days.

    “What’s striking about it to me, however, is just how much the hypotheticals they lay out reflect the mainstream view of marriage. ”

    But isn’t “the mainstream view of marriage”, in the sense of two exclusive partners in a relationship expected to be permanent, exactly what SSM proponents want?

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  2. While I don’t agree with the quoted argument, at least it does not rely on “tradition” to try to justify denying basic rights to fellow citizens. Often, those against gay marriage will attempt to appeal a vague historical framework they call “traditional marriage” as though there once existed a universal definition of that term. Of course, the truth is that marriage has meant many different things at many different times to different people. It’s just a part of the simplistic and largely fabricated view of history used by social conservatives to justify their views.

    However, it is equally pernicious to suggest that marriage only exists for the purpose of reproduction. Long before we faced the issue of gay marriage, our society had accepted that women did not shed their right to marry at menopause. The idea that marriage is only for those capable and willing to bear children has never been the sole justification for recognizing partnerships and it should not be a barrier to the marriage of same-sex couples now. Recognizing and fostering strong family relationships, no matter what the identities of the partners, helps to build a strong and stable base for society.

    If conservatives are being honest and consistent about the reproduction argument, shouldn’t they also be advocating for the denial of marriage licenses to couples where one or both partners are unable to conceive? What about those who make no secret of their plans to have no children? Who gets to decide?

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  3. Here is the proper liberal response, IMO, to the slippery slope towards polygamy.

    1. Polygamy shouldn’t be illegal or punishable as a way of living. Spousal abuse and certain kids of cultish arrangements -which can happen in polygamy and outside it- that involve brainwasing or whatever (a la David Koresh) should be illegal and in cases punishable. We’ve got polygamy and cultish relationships confused because the two used to overlap, and maybe there is a propensity to overlap, but we made the wrong one illegal. (NB: I get that it will be hard to make cultish, brainwashed realtionships illegal and we will have to only go after the worst cases in any new law.)

    2. There are small to medium sized practical and legal problems that would likely result from extending legal sanctions of marriage to polygamous or polyandrous marriages. There are the problems of custodial rights. If man 1 is married to women 2 and 3, and man 1 dies, causing women 2 and 3 to begin fighting, but the child is biologically related to 2 but more attached to 3, how should we view this case? Should immigration rights be denied to marriages that already have 60 or 70 members? How do we settle which spouse has last say in determining what will happen to another spouse who hasn’t filled out a DNR. Will tax benefits accrue to larger polygamous marriages?

    All these smaller problems are not irresolvable, but we might want different solutions for different sorts of marriages, e.g, 3 people as opposed to 70. And the rules for multi-person marriage would then be different than singular marriage, so we wouldn’t really be extending the legal sanction of marriage to polygamous families, we would be creating a new (maybe similar) sanctioned institution for polygamous relationships. Indeed, each type pf polygamous marriage might be better off creating their own contract that all the members enter into than trying to jump into a state sanctioned version of the marriage. (Perhaps the state should offer some limited tax and immigration benefits to any group of people who enter into a contract to take care of each other, just to be fair.)

    3. There is a social cost to marriages with one man and many women, in that in the future, men may have difficulty finding partners. That many unmarried men could be detrimental to society. It also will hurt the gene pool to have fewer men be the fathers of more of the children. And unlike SSM, it is very unclear if there is a psychological cost to children raised in polygamous homes. (Interestingly, polygamy isn’t universalizable in a Kantian way, either, though singular marriage is.)

    As a result of 2 and 3, the state has a legitimate practical interest (although maybe further research will prove that the state has no such interest) at this point in not sanctioning polygamous marriages.

    4. In most states, there isn’t and likely won’t be a demand for polygamous marriage any time soon.

    Notice, SSM is disanalogous at each point. It is legally easy and costless to extend marriage to cover same sex couples. SS couples’ children are proven to do very well. There is no social cost to extending martiage to same sex couples like the potential problem of “lost boys.” And in every state there is a strong demand for same sex marriage that there isn’t for polygamy.

    I conclude that decriminalizing polygamy, while also offering some tax incentives for groups that sign contracts to live together and take care of each other, while allowing those groups to specify their legal commitments to inheritance, custody, etc. is a sufficent solution for polygamy now, which we could revist in the future if polygamous relationships are proven to be socially harmless.

    Game. Set. Match.

    :)

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    • I want to second just about everything Shaz says here. I oppose legal polygamy for a host of reasons. I can sorta see how SSM could lead to discussions on polygamy (the FLDS certainly does), but they are worlds apart, as far as I’m concerned. The logistical barriers to polygamy are substantial, and unlike SSM, legalized polygamy *does* have secondary effects on those in man-woman marriages.

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      • Some of my lawyer friends and I occasionally try to come up with polygamy laws as an intellectual exercise. We can’t think of any legislation that is both equitable and workable. The real problem comes with the dissolution of marriage and the resulting division of property and custody battles. Determining if their any limits is also a problem.

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        • On the property side, if you follow the precedent of community property dividing the joint property would not be to difficult: take the sum of all the community property, and divide by the number of folks involved and each gets that sum (a generalization of the current community property law,), of course while the states are at it they should all go to the community property system.
          Custody would be somewhat more of a problem, both in the event of death and/or dissolution of marriage, with death in particular the death of the mother, does the child go to the father, or to the grandparents on the mothers side?

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      • So you oppose polygamy because its worlds apart from SSM? Isn’t that kinda the same argument between SSM and interracial?? Interracial heterosexual is worlds apart from SSM, its only used as political civil rights grab…

        If we really want true separation of church and state why can’t we get the gov out of marriage in the first place… look into history of marriage, marriage licenses and PRIVATIZED MARRIAGE… One can define their ‘union’ however they desire, hetero, homo, poly, man and housewife, whatever? And the churches would perform traditional marriage.

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      • We’re already faced with the Polygamy Problem. When I was handling a Somali family, it came up. For some reason, it is tolerated when the marriage is concluded outside the USA: they’ll let the whole “family” in. But you can only have one wife for sponsorship, so there’s a lot of jiggery-pokery going on, a lot of odd “sisters” start turning up on the applications.

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  4. I disagree with the George article, and I disagree with you, Elias. (As you might expect, my disagreement with you is more of a quibble than my disagreement with George.)

    George writes:

    …there is nothing arbitrary about maximizing the chances that children will know the love of their biological parents in a committed and exclusive bond.

    Well, yes there is. Marriage in its currently-prevailing legal form is neither required for, nor mandated by, biological conception. (See also, no-fault divorce.) Consequently a law prohibiting same-sex marriage is both irrelevant to and overbroadly-drawn with respect to realizing the goal of “maximizing the chances that children will know the love of their biological parents in a committed and exclusive bond,” which irrelevance and overbreadth makes the law arbitrary. Even if the highly deferential “rational basis” test for the constitutionality of a SSM ban is used, and the state’s encouragement of the creation and maintenance of families of this idealized nature is conceded to be a legitimate state objective, the SSM ban is nevertheless not rationally realted to achieving that objective because of its irrelevance and overbreadth. That is arbitrariness, from a legal perspective.

    Isquith writes:

    When they write that a ban on SSM would be unfair if marriage was nothing more than the ultimate friend with benefits situation, I think they’re right. Where they’re wrong is framing it hypothetically at all. The not-conservative mainstream does view marriage that way.

    In my experience, marriage is not just the ultimate form of being “friends with benefits.” Marriage is a social declaration and affirmation that “we’re in this together,” a public declaration of a commitment and a bond, and a demand for social acceptance of their relationship. Fishbuddies don’t have that. Which is why it matters that we have same-sex marriage, not just same-sex civil unions.

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    • “In my experience, marriage is not just the ultimate form of being “friends with benefits.” Marriage is a social declaration and affirmation that “we’re in this together,” a public declaration of a commitment and a bond, and a demand for social acceptance of their relationship.”

      This.

      There are many reasons I got married. ‘Gettin’ some’ was not among them. If it were no different for us than living together, we wouldn’t have done it.

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      • Generational gap alert! Never trust anyone older than 29 alert!

        More seriously, I don’t think this is universal, as I hoped to make clear in the OP:

        “Now keep in mind, I’m not describing a finished process. I’m sure we could find more than a few places in the US where the disapproval of the friends-with-benefits relationship is only matched by ignorance of what that phrase could possibly mean. But I am comfortable in saying that I think this is an inevitable process. Once it started it wasn’t going to stop. So the game was lost, if you’re politically inclined to see it that way, much earlier than in the past five years, decade or even generation.”

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  5. Those two gentlemen are Maine fashion plates. First two men to legally wed here, too.

    Someone raised this on one of the doc’s threads the other day, too. And the folk making this argument typically imagine plural marriages where one man has multiple wives.

    But never one woman with multiple husbands. I think it’s time.

    But as an argument against SSM? Meh. The problem with polygamy is, as I understand it, mostly with divorce, the complexities of child custody and distribution of property.

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    • As Shazbot writes above, current law doesn’t provide for those solutions. But that doesn’t mean that there’s no reason to think that it would be impossible for a legislature to craft reasonable solutions to such problems.

      When hundreds of “throuples” demand marriage rights, we can confront the issue. I don’t see throngs of “throuples” demanding plural marriage rights anywhere, do you?

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      • I don’t see throngs of “throuples” demanding plural marriage rights anywhere, do you?

        Well, slippery slopes just gather people up, ya know? They reveal hidden intentions. That’s why they’re so scary.

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        • It took nearly two generations for society to slide down the slipperly slope to the point we’re having this discusion and the oral arguments before SCOTUS next week. In 1967, the idea of same-sex marriage was so risible that it didn’t raise a weighty enough federal question even to be considered. Today, a majority of Americans support SSM.

          If it takes two generations before “throuples” (seriously, has anyone seen or used that term before reading it in the excerpt from George that Elias quoted?) are given serious social and legal consideration in a similar fashion, I choose to put my trust in the wisdom and good judgment of the electorate [EDIT TO ADD] and lawmakers that will be in place two generations hence that they will decide that issue for themselves appropriately.

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          • Yup. We’ll cross that bridge if we come to it. And we are just as likely to have to cross that bridge even if we don’t cross this one and make SSM legal. (NB: Polygamous marriage is traditional and religious. It could equally well be argued that moving marriage law in a more “traditional” or “relgious-based” direction that wouldn’t allow SSM is just as likely to result in people wanting polygamous marriages in the long term than moving marriage law in a more secular “rights-based” and “human well-being based” direction that would allow SSM. After all, polygamy was allowed in many traditional relgious conceptions of what marriage was, including many Abrahmic religions.

            Indeed, a no gay marriage rule is driving the marriage culture backwards in history and back in history is when we had more polygamy. Okay, I mean, this isn’t a good argument, but it is exactly as bad an argument as the one that is offered that gay marriage will lead us to some sort of polygamy problem. (Actually, given the tie between male authority, religion, and the bad sort ofpolygamous marriage, my argument is probably better than the anti-SSM marriage argument that SSM will lead to a polygamy problem.)

            Like I say: game, set, match.

            Really, the arguments against making SSM legal are just as awful as the arguments against interracial marriage. There isn’t a debate anymore. We’re just waiting for everyone to realize that the anti-SSM is without foundation in logic or evidence. And that is happening faster than I imagined, but not as fast as I hoped.

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              • Yeah that sounded funny,

                Actually, I want to take that claim back. Ratifying a traditional, religious conception of marriage would make more polygamy more likely, though maybe only slightly more likely. (While ratifying SSM and a more modern conception of marriage based in rights and utilitarian well-being will make abusive, awful polygamy less likely.)

                A. What is wrong with polygamous marriage as it often exists? Well, obvioulsy, one man is dominating multiple women who feel compelled by their culture to be with that one, authoritative and powerful male. He owns these women and often abuses them.

                B. Why don’t we see a large demand for polygamous marriage now, in the modern, more secular world? Because in the absence of a cultural pressure that pushes women to live in subservience to men, women don’t want (except in ery rare cases) to be in polygamous marriages (the abusive, cultish, awful ones anyway).

                C. Where did the cultural pressure that pushed women into these horrible, abusive polygamous relationships come from? Was it a secular, liberal idea? Nooooo…. Or was it an idea spawned by a mysoginistic strain of thinking, prevalent in many religious traditions, suggesting that women need to be subservient to one strong man, i.e. that women are like chattle that a man should accumulate? Yessssss…..

                D. So, if we make our cultural institutions less religious-based and less based in traditions that have often been mysoginistic, and we make these traditions more based on rights and utilitarian well-being (as legalizing SSM would do) and base them more on the idea that women and gay men should have the right to enter into any relationship as an equal, wouldn’t we be making a world with awful, mysoginistic polygamy less likely to exist?

                The secular world is more pro-feminist, and the more secular conception of marriage that we are moving towards is more in favor of making marriage something that you choose to enter into because it is good for you, your children, and society, and that you have a right to enter, not enter, or leave marriages. When we view marriage this way, a polygamous marriage of the mysoginistic sort that often exists is anathema to our concept of marriage.

                Ironically, the polygamous, mysoginistic conception of marriage arises from traditional, religious. interpretations of what marriage should be. But now we should be less secular about marriage because somehow being secular will bring us the rotten sort of polygamy that religion pushed us into.

                Pffff…

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                • This is a roundabout response to your paragraph B (wait for it, I do get to a point eventually)

                  Canada recently went through a Supreme Court reference case on one of its polygamy laws. In particular, this wasn’t even about legal recognition of plural marriage, it was about the whether to continue criminalizing (non-legally recognized) plural marriages.

                  The situation, before as after the decision, is that holding a ceremony to formalize any plural relationship is punishable by imprisonment. You can still be in such a relationship, you just can’t ask your community to celebrate it with you (or at least, the closer you get to a marriage-like ceremonly, the more likely not only you but also your guests will be putting yourselves in the way of up to five years in the slammer).

                  The main defence of plural marriage came from a small religious community that practices patriarchal poylygamy (never polyandry), and the decision upholding the criminalization was centered around an (I believe, incorrect and inappropriate) equation of plural marriage with patriarchal, cultish, domineering plural marriage in a context supportive of forced and underage marriage.

                  An additional defence, however, came from the Canadian Polyamory Advocacy Association. One of their arguments, and the one I want to emphasize, was that in Canada egalitarian polyamorists outnumber religious patriarchal polygamists by at least ten, and more likely a hundred to one, and that centering the decision on criminality on the misdeeds (already illegal in their own right) of a tiny minority was inappropriate.

                  The Supreme Court’s decision on that front was mainly to ignore the argument.

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  6. Not following the argument that the “authors spend the clear majority of their essay sounding like supporters of SSM” to scare unsuspecting “audience that does not already oppose SSM”….

    The first line in the article
    “civil rights rhetoric of “marriage equality” masks a profound error about what marriage is.”.. implying the logic used by LGBT civil rights is flawed….

    and goes on to say there is nothing arbitrary about the definition of marriage… “nothing arbitrary about maximizing the chances that children will know the love of their biological parents in a committed and exclusive bond. A strong marriage culture serves children, families and society by encouraging the ideal of giving kids both a mom and a dad.”…. biological parents, family, mom/dad is pretty to easy to interpret as ‘traditional’ marriage..

    and if marriage is t be simply viewed as an ’emotional bond’, how do we define such ’emotional bond’ as to not infringe on civil rights of others ’emotional bond(s)’?

    On the other hand, I also read article today about how divorce makes strong case for marriage, basically how marriage allows for more ‘legal avenues’ upon separation,, I guess so gov can get involved in prioritizing your responsibilities, like property and custody…. I whole other community that misses the intent of the whole purpose of marriage…. its not just fun and games, and living on ’emotion’….

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  7. Most anti-SSM arguments rely on weasely language to imply that there is a causal connection between allowing SSM and lowering chances that children will be born in wedlock or decreasing the frequency at which people enter into heterosexual marriages. Of course, it is laughable that such a causal connection could exist.

    Note how the authors of the quotation above attempt to imply a causal connection in a sly way so thatthey don’t have to argue for the existence of such a causal connection:

    “But equality only forbids arbitrary distinctions. And there is nothing arbitrary about maximizing the chances that children will know the love of their biological parents in a committed and exclusive bond. A strong marriage culture serves children, families and society by encouraging the ideal of giving kids both a mom and a dad.

    How does allowing SSM reduce the chances that children will know the love of a biological parent? (The presence of gay marriages doesn’t increase adoption? And even if gay and lesbian couples conceive via in vitro or a surrogate, one of the parents is biologically connected to the child.) How does allowing SSM weaken a “strong marriage culture.” (Sullivan argues this is very false, which is obvious.) And even if it is ideal that all kids have a mom and a dad, how does allowing SSM decase this likelihood? For one thing, same sex couples can adopt or go in vitro ir through a surrogate regardless of marriage. For another thing, even if SSM pushes more gay couples to adopt or conceive, the alternative world where there is no SSM is one where more kids are orphans or some kids aren’t ever conceived. Not sure how that alternative world is “more ideal.”

    And I haven’t even mentioned how the same argument given about children would be a much better argument for not allowing infertile, older, and sick couples to get married. And it would be a fantastic argument for making divorce illegal, too.

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    • Playing devil’s advocate here, I don’t think that it’s completely crazy to say that making marriage more about the couple’s love for one another has made it less about providing a stable environment for children conceived of that couple’s union. I’m not blaming that on same-sex marriage. I think that this shift in perceptions regarding the purpose of marriage preceded, and paved the way for, the acceptance of same-sex marriage. But at the same time, maybe it undermined the real purpose of marriage.

      Love is a fine thing, but it’s not really what marriage has historically been about. And really, I don’t see that it really requires or justifies marriage. People can love each other, and live together, without being married. Marriage is for children. And with artificial insemination and adoption, same-sex marriage makes sense even on those grounds. But it seems to me that all this talk of people loving each other kind of misses, and maybe even distracts from, the point.

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      • “…but it’s not really what marriage has historically been about.”

        Doesn’t this assume that there has been a consistent purpose for marriage, not only across vast periods of times but also amongst diverse and sometimes culturally distinct peoples?

        I mean… as I understand, but Islam and Mormonism allow (or allowed) for polygamy, which tells me that for those people viewed marriage as something other that, or at least not wholly predicated on, creating stable homes for children. And while it might be argued that we are not basing our marriage value system on those faiths but instead on some other tradition (which inevitably is a religious one), it seems you both cede the historical high ground AND tread dangerously close to the 1st Amendment.

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      • Loving marriages ate the ones that are good for kids.

        Loveless ones… not so much.

        Though all of this depends on what we mean by “love” which is about as hard to define as it gets. And it’s not clear that “love” names one thing or a family of very different things,

        I submit that any two people who live together and raise children do “love” each other in some sense, even if they don’t get along. Other couples may love each other in another more romantic sense, in addition to having familial love. So marriages will always be about two people who love each other.

        I’d also submit that anyone who is actually married knows that feelings of romantic love are neither necessary nor sufficient for marriage. Marriage is a commitment to another person that is lifelong, but can fail. That hasn’t changed in the modern, secular sense. What has changed is that we put less pressure on people to keep that commitment, legally and culturally.

        But you are absolutely right that this has nothing to do with SSM.

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    • The argument that SSM would not prevent kids from knowing biological parents or ‘loving culure’ is somewhat valid, however, to me anyway, family (mom and dad) implies mom and dad are married and all live in the same house as a family…

      I think much of this debate stems from the misunderstanding, or interpretation, of the definition of marriage…

      First, lets look at the history of marriage from nice article about Privatized Marriage, private contract between individuals, and Marriage Act of 1754…
      http://igfculturewatch.com/1998/04/24/privatize-marriage-a-simple-solution-to-the-gay-marriage-debate/

      Marriage is not about kids, love, emotions or socially acceptable cohabitation, its about personal commitment to one another that does not (should not) require a government license or church ceremony… its true personal commitment from the heart, not just some emotional and civil hoorah, only to jump ship when something doesn’t pan out as you hoped.

      As for ‘traditional’ marriage, and the current legal view of marriage in most states, remembering this country was founded during Protestant Reformation from those trying to escape religious tyranny which is why freedom of religion is in 1st amendment, although most of our constitution, laws, traditions and holidays are founded on religious/virtuous principles, marriage was/has been defined as man and women, which is described religious/biblical teachings for all the reasons described above (family, husband/wife, mom/dad, commitment)….

      Anything else is just a legal contract, a union, a ‘privitized marriage’ for the gov to recognize. for all the other reasons (benefits) people get married, and ‘legal avenues’.

      http://news.yahoo.com/divorce-makes-strong-case-marriage-092000750.html
      and Messy Breakups in Marriage-less World

      “Just because you can, or its legal, doesn’t mean you should”

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    • I guess you could almost, maybe, marginally make the weaker argument:
      – the reason we have marriage at all is because OSM has certain properties SSM lacks
      – the absence of those properties in SSM means there is no _absolute obligation_ to extend marriage rights to SS couples.

      Of course, this isn’t an argument against SSM, just an argument in favour of SSM being something it’s valid to argue about (because it’s not a foregone conclusion on the basis of constitutionality).

      To allow this very feeble argument (which I don’t), is only to allow that legalizing SSM, while still the right thing to do, is not absolutely constitutionally required – so we are able to continue the evil practice of disallowing it, as long as we are alright with doing evil.

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      • I should rephrase the second point:

        – the absence of those properties in SSM means there is no _absolute LEGAL obligation_ to extend marriage rights to SS couples.

        There is of course still a moral obligation to do so.

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  8. Well, it’s been hours since someone here has opened up a can of worms, so…

    Why is it exactly that polygamy should be verboten?

    I mean, I see it from a historical argument (subjugation of women and so forth). But I remember reading recently that two lesbian women and the biological father of their son wished to get married, and I’m struggling to find either the social, the logistical or the moral argument for why it must never, ever be allowed.

    I’m not staking a claim here, but I am putting the question out there. The reason that we should never allow the example above is… why?

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    • Polygamy would dilute the rights and privileges of twosome marriages. The immigration benefits, tax benefits, and legal benefits would have to be considerably more scrutinized. Further, as things stand, any particular marriage is a guaranteed commitment between two people and there will be – absent a divorce – no issues to confront about someone wanting to bring in a third. Polygamy would throw a lot of that into the air.

      You can address these through legal mechanisms, but unlike SSM it does require a real reassessment of what marriage *is*.

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      • Agreed Will.

        But we could allow some benefits for people who wanted to enter into polygamous marriages, if we wanted to be fair, even if we weren’t extending marriage as a legal institution to cover polygamous marriages (which would be very confusing).

        More generally, we could just offer tax and legal benefits to people who sign a contract pledging to take care of each other. Suppose Bob loves (not romantically) an older woman who was a good friend of his mother who helped take care of him when he was young, whom he is not biologically related to, and is now taking care of her. And Joe moves in with them because he islong-time friends with both, and Joe is older and unmarried, and nobody is having sex (or maybe they do, who cares) and there is no romantic love, but they feel like a family. There should be some forms they should be able to fill out to get some tax benefits, maybe even some rights parrallel to the righsts spouses have in power of attorney, DNR disputes, etc. Perhaps the forms would require them to take on certain commitments too, e.g debt obligations (as in marriage), shared credit ratings, financial obligations in the event of a “breakup” of the family, etc. that had to be specified in the forms that they all signed. You could extend this sort of benefit to larger families, too, which would give polygamous groups or “throuples” (Worst. Word. Ever.) too.

        Such a benefit for non-traditional families is by no means necessary in society, but it might make the world a little fairer for people who aren’t in traditional marriages in that they’d get some rewards for taking care of each other and forming legal and social commitments to others that would make the world a better place.

        But there is do analogy between denying SSM and being against such benefits. There are no reasons to be against SSM, and there could be practical reasons to be against a non-traditional family benefit/contract.

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    • Here’s the other argument. This one almost makes sense to me.

      When we think of polygamy, we think of stuff like our (insert big-city here) friends who were totally polyamorous WITH DRAMA!!!! in the 90’s, somehow figured out how to be polyamorous in the oughts without a whole lot of drama, and now have figured out a stable quadrangle of people who have said “you know what? We should marry.”

      And, you know what? They probably could without it changing much of anything. Bless them.

      However, they aren’t representative of polygamy as it has tended to exist. In practice, we’d be talking about weird of-course-they’re-not-Mormon cults in the backwaters of Utah, weird Muslim offshoots in some of the weirder parts of Dearborn, and otherwise really creepy setups that are not indicative of forward-minded equality between a group of people but are instead indicative of power imbalances and women being prizes.

      And for every big-city poly quadrangle we can think of, there are more than a dozen retrograde pentagrams.

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      • From a practical standpoint, I think this is why polygamy will not be a salient political issue for some time to come. Too many people who want to practice it are unsympathetic to the cultural powers that be. Whether this *should* be a factor or not is an open question, but it definitely is a factor.

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      • Much like marriage itself once was (and continues to be, to some extent), polygamy has tended to be rife with misogyny. I imagine that, much like marriage, polygamy’s misogynistic bits will slowly fall away and crumble if/as it becomes more mainstream, and society’s gradual trend away from misogyny influences its practice.

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      • This, I think, is the biggest problem. My girlfriend did a major project on this recently that involved a good amount of research into the history and workings of polygamy, and one part of her findings was that polygamy, in basically every society where it’s ever been practiced, has been tremendously exploitative of women. So if you have any interest in preventing that sort of thing, you either need the state to make determinations of who’s really “in love,” or you need to head the whole thing off at the pass.

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      • It won’t HAPPEN, but I think legalizing those pentagrams would actually do a lot to make them less retrograde. Bring those relationships out into the open and normalize ’em, and women suddenly have much broader and more culturally varied support networks… which makes those in abusive situations more able to seek divorce, etc.

        There’s nothing like ongoing illegal activity to make ALL the people in a household paranoid and secretive about their lives, and when the pure fact of who lives in the household is illegal… well.

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      • “And for every big-city poly quadrangle we can think of, there are more than a dozen retrograde pentagrams.”

        [citation needed]

        I’m not suggesting you’re wrong, or that there’s some solid data you should have quoted to back that up – I’m suggesting no one has done any really solid sociological research on this, so the whole discussion is based on conjecture and prejudice, because that’s all we have to go on.

        See also my post a little way up-thread – the Canadian Polyamory Advocacy Association (some clear hints there as to direction of likely bias) came to the exact opposite of your conclusion, on the basis of an admittedly hasty and flawed research process, but at least it they collected some actual data. (they were racing to have some kind of concrete data by the deadline of a Supreme Court case, not trying for the most accurate study they could)

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  9. As a person who is single and has taken care of one of my parents for 18 years and helped raise one of my siblings I am of the position that nobody should get special tax benefits just for being married. Maybe this can be considered F You I Don’t Got Mine So Why Should You Get Yours. Why do us singles get the shaft? Just because I chose not to procreate or get hitched to another. I made a commitment to my parent just as strong as any commitment two people who wish to be married do. I could argue I have made a stronger commitment, one that was entered into with the understanding that my life was going to be amazingly difficult for the foreseeable future. I understand that SSM will afford couples to have access to each others insurance. SSM couples have some of the same wishes I do too. Dang, sure wish I could have put my parent on my insurance all these years. Many times I have wondered why do we even have this thing called marriage. I understand the “before God, I pledge myself to you” (insert whatever you want in the God spot). I don’t understand why we have any government involvement in marriage though. I’m not being contrary, but I really don’t understand why governments are involved in whether two people chose to spend their lives or some portion of their lives together. If we want to be responsible for each others debts and be able to make medical decisions for the one we love why can’t we enter contracts making it so? Why do we enter the contract of marriage? Maybe I’m just being silly, I will stop now before this becomes a really long post. Do what you want to do with the one you love and be happy and may you be able to fulfill your dreams. If that dream is a marriage then Good Luck and I hope you can marry the one you Love.

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    • FWIW, during the two tax years I’ve been married, we’ve had more tax savings filing separately than jointly. My tax guy has indicated this isn’t always the case but is for folks like us where our salaries are roughly equivalent.

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      • See I just find that crazy. I think that is one of the reasons I believe in a flat tax, though I have heard some really strong arguments against it. I don’t get why you as a couple should pay more in taxes because you are married. Or why I should pay more in taxes because I am single. It just seems to me that marriage is about commitment to another. It is how we are accustomed to shouting to the world that I love this person and we have become one unit made up of two entities. But I am curious in how marriage became intertwined with government. Why does the government regulate marriage? Is marriage a contract between two people and a government? Or is it considered a contract between two parties that is just registered with the government? Marriage laws and their creation has always been something that made me go hmmmmm.

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        • I disagree with the flat tax on many levels. But that is secondary to the issue here. As I understand it, the tax code is really, really complex. TOO complex. Personally, I’d favor making the only legitimate deductions dependents. This would create neither a marriage benefit nor a penalty.

          My accountant explained that there are actually people who benefit by not being married, people who benefit by being married but filing separately (not to be confused with filing as two single people… there is actually a “Married filing separately” option which functions differently), and people who benefit by being married. For people who are or would be married but otherwise file separate returns one way or the other, are they end up doing is doubling the amount of paperwork the IRS has to deal with. A total bust.

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      • I think if marriage is a contract instead of a government sanctioned marriage that we could address many of the questions about the slippery slope concerns. If we say legal marriage is a contract then it can follow the rules of contract. By that I mean there would be age limits as to when someone can enter marriage. Thereby preventing one of the SSM slippery slope arguments I have heard. “Well what is gonna stop someone from marrying a child if we allow same sex people to marry?” If they are not of their states legal consent age to enter into a contract they can not get married. Another slippery slope argument: “Well what is to stop someone from marrying their goat if SSM couples marry?” I don’t believe animals are allowed to enter into contracts. Polygamy as some above are talking about. Multiple people are allowed to enter into contracts together, where each of their responsibilities and roles are defined and where there is a formal spelling out of what happens if the contract is dissolved. So then I guess polygamy would be fine. The only concern I can see would be what then happens to social security or any other benefits that the government currently decides on based on the current marriage laws. To me now would be a great time to make the transition from our current form of marriage and our current form of figuring social security and taxes. Maybe that is what we need, a total reform of marriage, SS, taxes and any other government considerations that are based upon our current form of marriage.

        This is all supposition and wandering mind thoughts. That is how my brain works. I read or hear one thing, that leads me to hmmmm what about this, and then down the road I go. Hopefully it all ends up coming back to my original wondering, but not always.

        I don’t want to take away from the topic of same sex marriage and peoples equality to marry those they choose. Or to somehow make it seem like SSM is so horrible the only way to keep the sanctity of “traditional” marriage is to change the whole system. I’d like a better understanding of why the current marriage laws are what they are.

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  10. There is an argument that states “A portion of your wealth, property, and even personal sovereignty belong to the community, simply by virtue of your living in the community.

    Let’s say that this argument is sound. If the community decrees that their portion includes you only marrying someone of the opposite sex… then what?

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    • The community would need a powerful reason for making that demand, one that would not be viewed as being arbitrary or burdensome. Judging by the failure of the reproduction argument against SSM, it seems this would cross the line.

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        • I don’t think there’s an easy answer here. It seems safe to say that it would vary from community to community and among cultures. Any answer I give is going to be heavily influenced by American attitudes toward autonomy, but some cultures put a higher emphasis on community harmony and are more willing to accommodate what I’d consider too burdensome.

          The tolerance for these kinds of demands goes down as society starts to view individual freedom and choice as fundamental rights. The proportion of people necessary to reject it also seems to go down as more kinds of lifestyles become publicly acceptable.

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    • No, let’s not say this argument is sound. Because it isn’t. Your wealth, property, and personal sovereignty are yours and not the community’s.

      That doesn’t mean you aren’t subject to taxes when those taxes are enacted through the valid and legitimate political process. A requirement that one pay $100 in taxes, however, is not the same thing as the $100 never having belonged to you in the first place.

      That doesn’t mean you aren’t subject to reasonable, substantively-permissible, and validly-enacted laws regulating your conduct. Your “personal sovereignty” is not the same thing as your requirement to obey laws of general application.

      It does mean, however, that before the government (not “the community”) imposes regulations and taxes, it needs to articulate a good reason for so doing, observe the appropriate formal procedures for so doing, and remain subject to the electorate’s votes and preferences as expressed through the democratic process to determine when it has taken too much tax, when it has regulated behavior too much.

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      • remain subject to the electorate’s votes and preferences as expressed through the democratic process to determine when … it has regulated behavior too much.

        And if the electorate of 30ish states communicate that they don’t think that banning SSM is regulating behavior too much?

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        • Then sooner or later, you’re in front of SCOTUS testing to see if the electorate of 30ish states can be reconciled with the highest law of the land.

          If it can be, then it’s the will of the majority and the results of democracy prevail. If it can’t be, then those 30ish states wish to perpetrate a lawless act, which the court lawfully corrects. It’s happened before (easy case: criminalization of flag burning — very popular, and very contrary to the Constitution).

          If SCOTUS blows the call, then the backstop has failed.

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          • If SCOTUS blows the call, then the backstop has failed.

            Yes. To move things to a bit higher level of abstraction, a critique of government which fundamentally rejects the utility, necessity, functionality, etc of formal mechanisms ensuring consistency of the law with basic rights and principles amounts to a rejection of the political system we live in. Skepticism of those institutional structures – legislatures, executives and in particular the courts – is part-and-parcel of culture and politics, to be sure, and may be warranted. But wholesale rejection of them is not. Unless the critic is advocating for a different type of government than we currently have.

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          • “If SCOTUS blows the call…”

            What if five of nine people agree that the Constitution doesn’t give the Federal Government the power to regulate marriage or marriage-like arrangements between citizens, and that the Tenth Amendment means what it says?

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            • What if five of nine people agree that the Constitution doesn’t give the Federal Government the power to regulate marriage or marriage-like arrangements between citizens, and that the Tenth Amendment means what it says?

              Then we go to the question to whether or not excluding same sex couples falls within the proper role of the state police power, as we will in the Prop 8 case. At least, that’s how I see it.

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  11. What’s striking about it to me, however, is just how much the hypotheticals they lay out reflect the mainstream view of marriage.

    A common refrain from social conservatives is that gay marriage would redefine marriage, but I think the reality is that gay marriage is just a logical result of the way marriage has already been redefined.

    Originally, the primary purpose of marriage was to define the legitimacy of children – this is of great social importance in a society based on primogeniture. A man wanted to know his son would inherit, not one hi wife had while cheating on him, so bastards were prevented from inheriting and that meant you needed to be able to tell a bastard from a legitimate heir. Thus – marriage.

    Meanwhile marriage had become something else for the lower-downs – a form of economic division of labour where the wife produced domestic services (including sex-on-demand since we’re talking about barbaric times) for financial support from the husband. So couples were treated as a single legal person (and since we’re talking about patriarchy here, it was the man who was in charge).

    But over time, with the Industrial Revolution and the Enlightenment things started to change. Men and women no longer had strictly defined social roles, making the old husband-wife dichotomy obsolete. Instead of a political or economic necessity, marriage turned into a consumption good. This led to innovations like no-fault divorce and not specific roles for husband and wife.

    With marriage the way it is now, why not lest gay people marry? But if marriage worked like it did in 1500, the question “which one is the husband, and which the wife?” would be a legitimate issue for gay marriage.

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    • If marriage suddenly started working like it did in 1500, the question “which one is the husband, and which the wife?” would apply to most modern marriages equally well, regardless of the gender of the partners … which is probably your point?

      I am grateful on a regular basis that marriage doesn’t work the way it did 500 years ago. The misogyny and violence and likelihood of death for married women in monogamous societies 500 years ago doesn’t seem appreciably better to me than that of women in the polygamous societies criticized elsewhere. At BEST, depending on whose version of history you find most plausible, monogamy shifted things from “very horrifying levels of risk of being treated like chattel” to “quite horrifying levels of risk of being treated like chattel”.

      On average, being a chick really sucked for large swathes of history.

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      • If marriage suddenly started working like it did in 1500, the question “which one is the husband, and which the wife?” would apply to most modern marriages equally well, regardless of the gender of the partners … which is probably your point?

        Yes.

        I am grateful on a regular basis that marriage doesn’t work the way it did 500 years ago. The misogyny and violence and likelihood of death for married women in monogamous societies 500 years ago doesn’t seem appreciably better to me than that of women in the polygamous societies criticized elsewhere. At BEST, depending on whose version of history you find most plausible, monogamy shifted things from “very horrifying levels of risk of being treated like chattel” to “quite horrifying levels of risk of being treated like chattel”.

        On average, being a chick really sucked for large swathes of history.

        Again, yes.

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    • Primogeniture ensured that the children LEAST likely to be raised by their natural father would inherit.

      … This was one of its strengths.

      Marriage was about sealing families together, a purely business arrangement.

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  12. And there is nothing arbitrary about maximizing the chances that children will know the love of their biological parents in a committed and exclusive bond.

    And banning gay marriage does this how, exactly? (As opposed to, for example, banning divorce?)

    I’m really tired of people just _asserting_ this. There is not any logical way ‘No gay marriage’ leads to ‘children staying with their biological parents’.(1)

    There are three possible ways that children can end up being the child of someone in a gay marriage: 1) they are adopted, 2) they are the biological child of the parents created while that parent is in the homosexual relation, using a sperm or egg donor, 3) they are the biological child of one of the parents from a previous heterosexual relationship,

    #1 obviously has nothing to do with anything. Children who are adopted at _already_ missing ‘the love of their biological parents in a committed and exclusive bond’. Gay people do not run around magically adopting children out from under the arms of their existing family. So this is not what they’re actually talking about.

    #2 is so obviously stupid it’s hard to explain. Is the argument honestly that children are better off _not existing_ than not having ‘the love of their biological parents in a committed and exclusive bond’? This leads to some rather…interesting conclusions, and I doubt it is that the discussion that the people who are _also_ running around banning contraceptives and abortion really want to have. (‘Sure, you should have to bear your rapist’s baby, how dare you think otherwise! And how dare _you_ two lesbians decide to bring someone into this world into a gay family, he’d be better off not existing! And no adopting the rape victim’s baby either!’) So this is not what they’re actually talking about either.

    #3 is, of course, what they’re actually talking about. They want gay people to _stay in straight relationships_. They see children as a reward for _pretending to be straight_. (Which historically has been completely true for gay people.)

    But maybe I’m wrong. Perhaps someone can correct me. Seriously, those are the _three_ situations where children can be raised by gay people. #1 _already_ have had their biological family ‘fail’ them and #2 literally do not exist without the gay relationship existing, so cannot possibly be ‘worse off’ with the relationship existing.

    It _must_ be #3 they’re talking about, and for those children to have ‘their biological parents in a committed and exclusive bond’ must mean they think _gay people should remain married to a straight partner_. Which they then describe as ‘committed and exclusive’ relationship…but you will note they don’t use the word ‘loving’ or ‘honest’.

    That is the _only_ possibly way for their premise to make sense.

    1) And there’s an addition side issue that just _assumes_ that ‘biological mom and biological dad’ are the best people to raise a child, and moreover must be in a relationship with each other, which also has very little evidence. Actual evidence is that children do best when their family makes enough to support them and yet has enough family members left over to interact with them, and that the makeup of this family change as little as possible while they are children. It has nothing to do with the gender, biological relationship, or even familial relationship of the members, as plenty of children raised by elder siblings or aunts and uncles can attest to. Gay parents where one works and the other does not is produces _vastly_ better outcomes than straight parents where both work. (Which is why, currently, gay couples are better parents…not because they are better, but because they very rarely have children without being able to support them.) But for the purpose of this post, let’s just accept the premise that ‘biological mom and dad’ are best, because the idea that banning gay marriage somehow _leads_ to that is stupid enough,

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