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 Tuesday, October 25, 2005
Response to Cathy/Maggie Gallagher
Cathy, I found your comments insightful and debate-sharpening, thanks. As a libertarian, you picked up on several key points, including that the rule in our tradition is that adults are competent to handle their own intimate relations without any supervision by (or benefits from) the state. Why is marriage the exception? You acknowledge that, without a tie to procreation or children, the reason the law separates out certain kinds of unions--sexual, twosomes, male and female, unrelated by blood--becomes well, kind of hard to see or justify. This is one reason I think marriage will eventually lose its legal status after SSM: incoherence. The second reason, which I did not blog on Volokh about, is that after SSM, the antimarriage left and the libertarian right, will gain a powerful new ally on the separation of marriage and state: a large bloc of Christian conservatives, who would prefer no marriage to SSM, and who also have legitimate fears about what state-sanctioned SSM is going to mean for their faith communities that do not and cannot recognize gay marriages. You respond in two ways: first you say the benefits will remain, because people don't like benefits removed. (I don't think the benefits of marriage are very significant to most people for most of their life so I suspect this will not be much of a barrier--the big benefit of marriage is the public change in social status it makes visible to the partners and to the rest of society.) Secondly you bring up what you (and many others) see as a fatal flaw: infertile and older couples are currently allowed to marry. If that hasn't changed the nature of marriage, why will allowing a small number of SSM couples? On Volokh.com, in those 10,000 words I said two things: 1. Older and infertile couples are not an identifiable class. They send no social signal because they are part of the natural life cycle of marriage and have been from the beginning of our history. You got that part. But I also said 2. Every man and woman who stays faithfully married serves marriage's procreative purposes because these are twofold: first, to encourage men and women to have and raise children together and second, to discourage men and women from having children apart and raising them seperately (unwed childbearing). Marriage's unique status in law and society regulates even people who are not married. But there is a third reason as well: 3. Nobody put childless couples, or older couples into the marriage mix in order to express an ideological commitment to the proposition that there is no difference between these two types of couples and that anyone who says otherwise is an evil bigot, opposed to equality, or maybe just motivated by animus (Who says this? the Goodridge court, zillions of Zolokh bloggers.) Ideas have consequences. What amazes me is that SSM advocates both promote the idea that SSM is a right, because no reasonable and well-meaning person could see any relevant difference between same-sex and opposite-sex couples that justifies marriage's definition-- but then refuse to acknowledge what making this kind of discrimination argument means in America today. I too share your hope that we can have SSM and simultaneously figure out how to increase the likelihood that children in this country are born to and raised by their own married mom and dad. What I don't see is why you are so hopeful. 
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"I too share your hope that we can have SSM and simultaneously figure out how to increase the likelihood that children in this country are born to and raised by their own married mom and dad." Maggie Galagher
What? My first reading of Maggie Galagher was that she was left of center on the SS"m" issue. Other readings that she referred me to left me the impression that she was closer to the center than I thought. The above statement indicates that my first impression was more accurate though she appears to be still further to the left than I had thought.
So, if you can increase the likelihood of children being raised by their own mom and dad SS"m" is Ok?
SS"m" will always be a small number of the married population. For the most part they will have no kids, and so will not significantly impact the number of children raised by their own mothers and fathers. You can therefore work on increasing the number of kids raised by their mothers and fathers without SS"m" significantly factoring in.
Does her position on SS"m" ultimately rest on such an insignificant factor? SS"m" advocates should be thanking her profusely. Has she forgotten or never known the truly compelling reasons for rejecting SS"m"?
Please tell me Maggie that I've missed something in your position.
Why the heck aren't you even considering new procreation technologies? Do you think they aren't real? Do you think they can't happen? Can't be stopped from happening?
Older and infertile marriages have the goddamn right to have children together. Same-sex couples shouldn't have that right, but they aren't prohibited from it right now. Are you for this or against it?
This has nothing to do with how annoying I am, or how humiliating it would be to admit that it comes down to, of all things, procreation rights being related to marriage. This is something important and crucial to consider, and you keep ignoring it as if, well, you were determined to ignore it. Please don't, please consider how you could change the whole debate and change the course of our future by simply asking if same-sex couples should have the same procreation rights that both-sex couples have.
Gallagher: "This is one reason I think marriage will eventually lose its legal status after SSM: incoherence. The second reason, which I did not blog on Volokh about, is that after SSM, the antimarriage left and the libertarian right, will gain a powerful new ally on the separation of marriage and state: a large bloc of Christian conservatives, who would prefer no marriage to SSM"
Since you make the first point briefly, I'll make the counterpoint brief: What is incoherent about including gay people in marriage? Any two people, regardless of sex, who want to make a lifelong commitment to one another may do so. I don't think that's any more incoherent than the current definition of marriage is.
And on your second point: Where are the Christians in Massachusetts calling for abolishing marriage? I have not heard ONE person mention this as an option. This point strikes me as completely off base.
The majority of Christians who oppose SSM are, like Gallagher, traditionalists. The entire point of keeping gays out of marriage is its sanctity. So it's such a sacred institution that we should now dismantle it because a new group of people have access to it?
That makes no sense whatsoever. Even the crackpots like Falwell, Dobson and Phelps haven't made that point, and mainstream Christains wouldn't go anywhere near this one. No one of any importance has brought this up as an option during the years-long SSM debate this country has been having. There is no reason to think it would happen if SSM went nationwide.
Only someone who doesn't have to spend thousands of dollars at an attorney's office would believe the legal benefits of marriage aren't significant.
The instant the marriage certificate is signed, over a thousand benefits are instantly obtained from avoiding tax consequences to inheritance to pensions. Yes, some don't affect people until the end of their lives, but that doesn't make them any less significant.
Maybe for people like means, these benefits seem insignificant. For everyone else, the benefits are significant.
Reciprocal Beneficiares make a lot of incidents available through a simple, and inexpensive, affidavit and application for the status.
Marriage is a recognized social status. It is supposed to be set apart. Making it less so only makes it less special.
Well, not really. You also need financial powers of attorney, wills, trusts, medical directives, custody agreements. And that still won't allow you to transfer property on death, obtain tax benefits, obtain government benefits.
That's a lot of legal work to pay for if you are middle class.
RB is supposed to be explicitly different from marital status. If you want marriage, get married (not SSM'd), and don't ask society to twist marriage to fit a shopping list.
What's with this?
I too share your hope that we can have SSM and simultaneously figure out how to increase the likelihood that children in this country are born to and raised by their own married mom and dad.
So, it seems like she's for SSM if we can get same-sex procreation technology to make it so that kids were realted to both of their parents, and there was no third party confusingly shut out of the picture.
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