Strengthening Constitutional Self-Government

No Left Turns


Maine Vote Also Confirms the Argument

. . . that very little has changed about the fundamental opinions of the American electorate in this year of "change."  A ballot measure that was, essentially, a "people's veto" of legislation passed last spring in Maine to permit homosexual marriage passed handily.  The 53 to 47% margin outstrips even California's 52 to 48% on Prop. 8 from last year.  Proponents of homosexual marriage expected and hoped for a different outcome because, unlike similar ballot measures in other states, this one was not in response to any perceived judicial fiat.  It was a response action on the part of that branch of government closest to the people:  the legislature.

This Time article on the vote in Maine is interesting for the way it draws upon and, I'd add, also draws out some of the thinking of leading homosexual marriage activists in the wake of their defeat. For example, Mary Bonauto (the lawyer who successfully argued before the Massachusetts Supreme Court in 2003 that it should strike down state prohibitions on gay marriage) told Time, "Ultimately, this is going to have to have a national resolution . . . It's about aligning promises found in the Constitution with America's laws." 

This is intelligent politics on Ms. Banauto's part.  The argument on behalf of homosexual marriage, if it means to be successful, has to be one suggesting that homosexual marriage is a fulfillment of rather than a turning away from America's promise in its Founding.  Every success of big "L" Liberalism (or Progressivism) in this country (up to and including Barack Obama's) can be traced back to public argument that embraced--or seemed to embrace--America's purpose and foundations.  Progressive have had to argue that there is something essentially American about adopting the course they advocate; that it is in keeping and of a piece with our familiar understanding of the universality of justice and equality.

But always within these attempted unions of an ever expanding "Liberalism" and the legacy of the American Founding is an inherent tension between them that threatens to bust up the match and, in the interim, serves to make Liberals very unhappy in the marriage.  The two things, it turns out, are not at equal purposes and--unless they have a very clever counselor  (perhaps like Obama--though certainly like FDR) it's fairly clear in their rhetoric to the electorate, that the partners would prefer to be divorced.  For advocates of homosexual marriage or--more generally--the broad agenda of "Liberalism," the trouble with our "abstract truth applicable to all men and all times" is that it does not expand any more than it contracts.  It simply is.  As Calvin Coolidge might have said, "it is final."  Universal human equality in our natural rights is a fact--whether it is recognized and put into force or not.  When it is simultaneously publicly pronounced and practically denied, we have the proverbial "House Divided Against Itself."  The denial of human equality in American chattel slavery was at odds with this central and animating principal of our republic in that it denied it by making slaves of men.  The homosexual lobby in America--like Progressivism more broadly considered--denies the principle by seeking to grow it.  But it wants to appear as if it is trying to protect it or live up to it.  It seeks to argue that we have a "House Divided" with respect to equality for homosexuals.  It sees no necessary limit to the good that can come of an expansion of the meaning of equality and it appeals to our generosity of spirit.  But in seeking to expand the meaning of equality, the truth is that we actually deny it.  We cannot make equality, however much we may wish it, to include things not encompassed within the natural meaning of equality.

I have to think that this, at least in part, helps to explain the natural revulsion to the idea of homosexual marriage on the part of black voters--who, of course, were a driving force in the passage of California's Prop. 8 last fall.  Left wing whispering, revealingly, would have you believe that black opposition to homosexual marriage is nothing more than a kind of retrograde or backward prejudice on the part of too many blacks. This is at once patronizing and reflective of some remarkably stupid thinking.  The majority of black voters who oppose homosexual marriage rightly sense--when they don't vividly understand--that the suggestion of a symbiotic relationship between the struggles of blacks and the struggles of the homosexual lobby in this country is an insult to their struggles and our shared American history and accomplishments on behalf of genuine equality.  It is a kind of righteous indignation--obviously felt more keenly by blacks--at the notion that the elimination of slavery and the struggle for equality before the law for black Americans is anything akin to an extension of a right to marry to homosexuals.  That was a struggle to make America live up to its stated principle, not a demand that we expand it.  Slavery was wrong from the start . . . not because we eventually grew into that opinion.  To suggest otherwise is to demean those efforts by implying that it, like this current struggle, was a mere power struggle or numbers game without any transcending universal principle of right.   

If homosexual marriage eventually passes into being and becomes an accepted part of American culture and law it will be something entirely new under our side of the sun.  It will not be an extension of America's promise to recognize the equality of all human beings.  It will be a bastardization of that promise and an attempt to undermine the true meaning of it.  To suggest otherwise is, let us be clear, to suggest that our rights are not natural or, even, necessarily permanent.  It is to suggest that they are but an outgrowth of popular sentiment or of an evolution of opinion.  It is logically (though perhaps not fully understood and certainly not clearly articulated by those who advocate on its behalf) to suggest that perhaps there was nothing inherently or fundamentally unjust about slavery.  After all, people probably just hadn't evolved enough back then.  For in a Progressive's world, persuasion is not a real possibility.  Everything is evolution--everything is subject first to hope, then to power, and then to change. 

This is why they think the problem for them today is that people just haven't "evolved" enough to recognize that homosexual marriages should be treated as equal to heterosexual marriages.  They think that if they keep at it long enough, they can "help that evolution along" (in the thuggish way they've helped other parts of "evolution" along) but they have no doubt as to the eventual outcome of their efforts.  Maine is to be commended for its unwillingness, yet, to so "evolve."

UPDATE:  Jennifer Roback Morse of the Ruth Institute adds to what I say here
Categories > Elections

Discussions - 18 Comments

Many good points Julie. Very strong on the black reaction.

For those who haven't read my take on this before, I'm very much against gay marriage, but think it would be fundamentally less harmful if it is adopted by regular ol' VOTES as opposed to judicial decisions, i.e., by a slow process, painful to many gay-marriage advocates, of getting the nationwide public opinion to switch from 52% against to 52% in favor, and then keepeing that opinion heading in the gay marriage direction, despite the inevitable back-and-forths, epseically if this remains a state-by-state issue.

Accepting that pain, on the part of gay-marriage advocates, would be for the sake of preserving sane, explainable to the average American, and basically originalist interpretation of the Constitution. There really is no other coherent or republican way to interpret it, and liberals invite a loss of fundamental constitutional common ground and basic regime legitimacy if they keep forcing things on the electorate via livinging constutionalist interpretations. And such decisions are illimitable with respect to violations of religious freedom, polyamory/polygamy, and heterosexual demands for marriage-lite.

But ultimately, I also think it is smart politics. One can go the way Julie mentioned, and try to reinterpret what the Const. (specifically, what the 14th means by "liberty" and "equal protection") means, and thereby "reconnect" with the founding, a la Justice Kennedy in the Lawrence decision. And one might "win" that way. At what cost to the civil and constitutional fabric of the U.S., no-one knows.

But if the winds of public opinion are ultimately going the gay marraige way, perhaps what is smart politics for the long term for gay rights advocates is simply to be patient, and do this state by state via elections, eventually nationally, and then perhaps even get the right to gay marriage into the Constitution via amendment. You win elections, fair and square, and social cons like myself and our descendants will say, "well, we tried; this pains us, this will harm our society, but we have to obey." You "win" the other sort of way...who can really say what future American social cons would ultimately do.

I of course understand that regardless of whatever the main gay advocacy groups push for, cerrtain individuals with their lawyers will push for judicial alteration of our constitutions anyhow. That will play out as it does. But responsible gay marriage advocates, who care about their fellow citizens, can at least not insist on that route and call for restraint in mass support for it. They can at least have the civic decency to not speak in public as if gays ALREADY HAVE THE RIGHT to marry, and that meany politicians and hate-filled Americans are denying it to them. In terms of our constitutions, gays have the right in a few places, but not in most. Perhaps you do have an argument to say it is a natural right that should be protected by the U.S. Constitution, very well, but then you should be calling for an amendment.

FDR, what he did is take the vague-oh route. He said that the American people have "so to speak" adopted a second bill of economic rights, and in the same landmark speech he called, NOT for judicial reinterpretation, NOT even for amendments, but for laws that would strive to achieve the ends of those rights. The case is obviously a bit different, but my point is he did not have the full chutzpah to say the rights he wanted were always there, or to say that we need to big-time change the Constitution. Smart. But everything he was counting on would be acted upon as regular ol' LEGISLATION, passed by regular ol' VOTING. Yeah, yeah, conservatives like me have a lot of beefs with what he did(esp. in terms of empowering bureacracy), but I'm trying to meet the progressive side half-way here, and say, yeah, do the very smart and very American politics that Julie's FDR example really implies. If time and public opinion is on your side, you can afford to be patient, to accept that some of yours will suffer some more, for a better day is coming without judge-rulers to force it upon unwilling Americans. Right? Or do the unwashed masses need to be ruled?

My one quibble with Julie is that she says gay marriage adopted by America would "not be an extension of America's promise to recognize the equality of all human beings" but "a bastardization of that promise and an attempt to undermine the true meaning of it. To suggest otherwise is, let us be clear, to suggest that our rights are not natural or, even, necessarily permanent." No, this is not the case IF it is adopted by plain old votes and laws, and eventually amendments. None of those things would demand that anyone impluasibly argue that the Founders' notion of liberty and rights 'really" demands gay marriage, or ditto with the framers of the 14th, but the framers/founders just didn't realize it. Rather, when the progressive victory you assume is inevitable is won, one can just say, "here's the evolution of what we thought ought to be guaranteed by law vis-a-vis marriage. That evolution happened in front of everyone's eyes in all these votes, even though, yes, there were some impatient judges and lawyers who tried to force the evolution along in anti-democratic, and anti-constitutional, ways. But their lack of faith in democracy proved to be wrong. We didn't need their rulings. We now know Americans by and large accept gays, because they voted, repeatedly, to let us marry. The Americans of 1776 or 1868 would not have done so, nor understood NATURAL rights in the way we think they should be. Thus they voted the ways they did. Thus, we had to change our law codes and constitutions and the CONSTITUTIONAL rights in them with new votes." Wouldn't that better? If progressives have the Faith in Democracy and Progress they so often avow, wouldn't this way be not simply smarter and more civil, but far truer to themselves?

Some other time for why I'd vote against gay marriage every time, and recommend even gays do the same. Much harder arguments there.

And, a good deal less at stake there.

P.S. I repeat myself on this topic so often because it is so important.

Good post, Julie. It is probably important to highlight this vote, along with that of California. Together they suggest, as if those who actually read the polls didn't know, that there is no new consensus on the issue. That being the case, Courts ought not to change long established precedents.

Carl Scott . . . perhaps I was unclear. Your quibble may not be one after all. My point was in response to Ms. Banauto's assertion that the fight should be taken to a national level and that the argument has to be about the Constitution itself. In other words, she wants to find a right in the federal Constitution for homosexual marriage; to make an actionable argument that it is an extension of America's promise. Perhaps, as you say, Americans could, at some future date, amend the Constitution to include a provision that required states to recognize homosexual marriage (though, again, as you say there are strong reasons for fighting that as well--some of which have a great deal to do with the meaning of equality and the purposes of the regime). But this really would be something else, wouldn't it? Equating this issue with the 13th and 14th amendments?

I do suspect, however, that we may have more than just a "quibble" about what is at stake in that scenario . . . though I appreciate your attempt to encourage progressives to comport themselves more like democrats.

Julie, I pretty much think (and have a certain Platonic and Madisonian and Solzhenitsynian and Mansfieldian political science of polarization patterns in republics to back it up) that the reasonable position I try to sketch above for gay marriage advocates cannot become a mass position. There is no logical reason it cannot, only certain lamentably predictable patterns of democratic instinct that prevent this. A major stumbling block for reasonable (i.e., Constitution-repsecting) gay marriage advocates obtaining popularity for this position would be the continual activity of individuals with their court cases. So even if the main gay advocacy groups were to adopt the reasonable position (a la Jonathan Rauch), these groups could not shut down the judicial push for reading a right to gay marriage in the Constitution. More importantly, we have no reason to think most of those folks would want to or even could resist the gay grass-roots rooting for that judicial strategy. In the heat of typical resentment-filled democratic politics, which I sense is even more resentment-filled than usual when it comes to gay activitsts, there is no way we can expect the distinction I'm pushing for here, between an argument that gay marriage is a natural right (or otherwise a moral imperative), and an argument that it is (already) a Constitutional right, to be firmly articulated and popularized by gay marriage advocates.

Thus, in terms of what is actually likely to happen, I endorse your fears that the gay marriage understanding of rights deals the very logic of the American body politic a severe blow. Judge-rulers will rule us, with the hearty approval of almost all gay marriage advocates. I just want to spell out the fact that it doesn't need to be so. With genuine moderate leadership in the ranks of gay marriage advocates and especially in the broader progressive/Democrat ranks, it is conceivable that America could adopt gay marriage without a further "constituionalization" of the culture wars. With such leadership, it is conceivable that moderate progressives and social conservatives could share the non-Rawlsian "overlapping consensus' that our fathers did: the Constitution. We could remain unified in our dedication to it, despite the other divisions pulling us apart. You and I could continue to say "vote against gay marriage because it will be one more weakening of already beleagured traditional marriage," and most gays could continue to say, "vote for gay marriage because full justice demands it," and both sides could probably learn to live with the outcomes of the various votes. "At least," either defeated side could say, "the Constitution remains intact, and future votes might be won."

When we social conservatives present the case that gay marriage will be the catastrophe we think it will be, the logical possibility of the (in truth highly unlikely) moderate and constitution-respecting way of pushing for it must be highlighted. Otherwise, our slippery-slope and death-of-America-as-we-know-it arguments begin to seem crazy. Our argument cannot be that gay marriage in and of itself is catastropic, but that our politics makes it almost impossible for us to ever get gay marriage in of itself (which we do think would be a very bad and irresponsbile experiment with our social fabric, esp. long-term). Our politics at present makes it so we cannot get gay marriage witthout the Constitution becoming an innocent bystander mortally wounded in the fight for it. That is, to make our point all the more powerfully about why the "debate about gay marriage" is practically inseperable from the question about the Constitution, so that the debate should really be characterized as "the debate about sacrificing a coherent Constitution for the sake of getting gay marriage," we must acknowledge that these debates are THEORETICALLY seperable, that moderate progressives could THEORETICALLY insist upon that public recognition of the separation.

That is all very interesting. But it is complicated, don't you think? Isn't it easier to explain to a person that you have no political objection to two guys living together and (for me, given certain concessions to the fact that a mom and dad are to be preferred to two dads whenever possible) no objection to them adopting or having children and living together as a family--and no objection to them calling it a family. I have no problem with having them for friends or even, really, with my kids playing with their kids. (Though I want the freedom to be able to teach my kids that this is not the preferred route.) My problem is with calling what they're doing a marriage. It isn't. It can never be one no matter what they want to call it. It isn't a joining together of equal but opposite partners. They are really good friends who happen, REALLY, to enjoy each other's company. And whatever good they do for each other and their immediate circle of friends, they still don't offer society that same civilizing influence stemming from the building of one entity out of disparate and opposite parts like man and woman. The dichotomy this presents to the mind and the understanding of truth that is born out of it from the mere operation of day to day life is felt on so many levels that it is impossible to articulate.

I find that when people understand that THIS is the thing that motivates your desire to demand that the difference be recognized, there is very little logical opposition to it. I also find that it tones down the emotional rhetoric. It is hard to blame people for getting defensive if they suspect that you hate them. When they understand that you don't, conversation becomes possible. As for benefits and other legal matters, I'm perfectly happy to concede to their side most, if not all, of what they want. Just don't call it marriage. That is the lie we must fight.


So you will grant to me and my same-sex partner all of the federal rights and responsibilities accorded to heterosexual couples who file a marriage license with the courts? In exchange for all of those thousands of legal rights and protections, I am more than happy to call it anything you'd like. If you're not willing to afford me all of those thousands of rights, then which ones do you I should be denied?

I really cannot think of any "right" that you don't have. If you can irrefutably prove that there is one, I would not oppose efforts to include you, Earnshaw. I would, however, stipulate (as I did above) that it is perfectly acceptable for adoption agencies first to seek out married heterosexual couples when seeking to place children and allow homosexual couples, unmarried couples, and single people to adopt only when there is no better alternative. I also would not approve of laws that demand private insurers cover "domestic partners"--though certainly some insurers (at least in a competitive market) will. I think it should be clear, from the point of view of law, that there is a real and important difference between the activity of a marriage and the activity of close friends. But I think it is unreasonable and cruel, for example, if the partners in a homosexual relationship are denied visitation rights in a hospital, etc. There is probably room to streamline some of these laws to make things less complicated and confusing (and, therefore, more compassionate) for homosexual couples. As long as there is no way to construe a law as a government sanctioning of homosexual unions (i.e., if the same laws might apply to two sisters living together, for example) then I probably would have no problem with it.

I am not protected from testifying against my partner in court (not that we anticipate needing this right). The right to social security inheritance, joint insurance policies, the filing a joint IRS return and attending deductions, credits, etc (although we do many auditors could the IRS really have to investigate this little fraud), the right to sponsor my spouse for immigration purposes (again, not really an issue for us, but it is for some), shared property rights, custodial rights to children, domestic violence protection orders, right to inheritance of property, etc. Granted, some of this can be taken care of through partnership agreements, but the very fact that we have to have all of this additional paperwork in order to get the benefits that are conferred upon you as soon as the court processes that pesky little marriage license strikes me as patently absurd. If you really look at the list of 1000+ rights, you'll see that this is a legal contract focusing on property rights, and not some treatise about the philosophical union of two separate souls.

I am impressed with your reasoning. Homosexual marriage is not in the same category as slavery. When the constitution was developed slavery was a hot issue. Even though it wasn't legally resolved until the Civil War and still lacks greatly as far as equal rights are concerned, it was considered to be a point of controversy. The people who created the constitution would be absolutely amazed if they could see today how we are trying to manipulate what they wrote concerning this issue. I can't believe that homosexuality has ever gotten as far as it has in societal consideration, and I was born in 1956.

I hope that the future doesn't bring what I think it will within the boundaries of our country. I fear greatly for my posterity!

The History Man

I agree with you, Earnshaw, that there ought to be some concession within (state) laws to make partnership agreements more general and less complicated. I would not agree with you, however, in all that you seem to demand.

For example, the bit about testifying against a partner (not spouse) in court. Because here, again, you tend toward equating your friendship with a marriage. It isn't. If you think about it, you will understand that the reason for laws protecting spouses (and, let's be clear . . . this is mostly wives and meant, mostly, for wives) from testifying against their spouses in court has to do with respecting a certain amount of inequality between man and wife that no laws or romantic papering over can hide. Wouldn't there be a certain amount of obvious cruelty in forcing a woman whose husband is a criminal to testify against him openly in court? What would this likely mean for her in private, later--either as regards to life and limb or property? And, even if he (apart from his criminality) is a generally decent man, for a wife, testifying against a husband is rather like testifying against herself because of the subtle and conjoined interests that she has with him (in some cases, even, flesh and blood). You may dread testifying against a friend . . . and sometimes the pain may be equally horrible (I won't discount that--especially if there are children involved) but it is not obviously or even, often, the same. The presumption in favor of protecting the innocent cannot be extended in these cases in quite the same way. There are similar problems with some of your other objections. You don't quite want to recognize that there is a difference between what you are doing and marriage.

Right now, in most states, I suppose (and you acknowledge) that most homosexual couples can enjoy the majority of the so-called "rights" you delineate above if they lawyer up and are smart about how they go about setting up their households. But, in general, they face most of the same problems that heterosexual couples face in shacking up. Should we extend these benefits to them too? If you want to argue that there should be an easier way for homosexuals to set up a household, I'd agree that it is fair--and probably time--for us to discuss what would be the best way to go about doing that. But it is unfair and rash to demand that we call homosexual unions "marriage" when, clearly, they are not. Marriage ought, still, to hold a privileged and special position in society because of the good it does--ironically, you might say--in teaching the civilizing virtue of toleration.

Fantastic job, Julie. All the way around, especially your initial discussion on African Americans and this particular question.

Julie, you seem to think that all we are is "friends, with benefits." While I've never been in love with someone of the opposite sex, if it's anything near what I feel for my partner then it's obviously significantly more substantial than friendship, with or without the benefits. Part of why I want the rights and responsibilities of marriage is because I don't, fundamentally, believe in "shacking up."

Women have always been treated as property in the world of marriage. I would hope that we have moved past that view of the dynamics in relationships. Additionally, as we in gay relationships continue to have children and raise families I would think that you would want society to protect those innocents. Wouldn't they benefit from the protections that parental marriage would provide them? I agree that society has a role in promoting stable relationships, and that while standing in front of a minister and reciting vows is one form of commitment, the state has a few strings that when attached, make it much harder to leave a relationship. These strings benefit the children.

Make it harder to get married; make it harder to dissolve that marriage; but allow all who want to make that commitment to another to have access to the rights and responsibilities that word embodies.

Earnshaw . . . I have no doubt that for you and for your friend your relationship is very meaningful. The question I pose to you is how meaningful do you think it is or ought to be to the rest of us? Subtracting the question of children (because that is a separate issue altogether) what does your relationship do for society? What, in itself, does a homosexual union do to encourage civilization? However wonderful and productive the two parties involved may be, their coming together (and I don't mean this in merely a sexual sense, as you imply) is a private affair. That is to say, it is only tangentially of any use to the rest of us--as it is when two friends get together to pick up litter or work a food bank. There is no inherent benefit to society in your coupling. In marriage there is a benefit to society that comes from the very fact of it. Let me explain, if I may . . .

When you really think about it, the coming together of two opposites like man and woman--though, in a sense, more natural or more according to biological design--is also something more to be wondered at--especially in human beings. Most of us--once we are beyond infancy and toddlerdom--don't immediately prefer the intimate acquaintance of the opposite sex. Boys play with boys, and girls play with girls. It is easier to find peace and familiarity with your same sex peers. And in a large variety of animals the male and female live almost entirely apart--but for copulation--and then, sometimes, the females are "kept" or herded by dominant males. But they don't often live together in equality and harmony.

But here we humans are, put on this earth as two similar but amazingly different types of the same kind of being, just like the animals in that sense, and yet we have managed, through biological impulse and reason, to figure a different way--and one that makes both of us, well . . . better. How easy it would have been for one sex to oppress the other--and, in fact (as you note) how often that is actually the case in (what we used to call, quite rightly) less civilized cultures.

The logical problem that homosexual couples who demand that their relationships be regarded on an equal footing with marriage is that it is not in fact or in theory on an equal footing. Because of the civilization that we have--thanks, in large part, to marriage--we can observe that toleration for homosexuals is a just and a humane thing. We can afford, right now, to tolerate even fairly open homosexuality partly because our civilization is so strong and because people are inclined (again, thanks in part to marriage) to be generous in spirit to those who are born with (and, yes, I do think that in most cases people are born with these tendencies) what they might consider a problem or a deficiency that cannot be helped. That homosexuals now want openly to embrace their difference as a positive good is a different issue--but I hope you will recognize that my pity for it is not of the patronizing variety. You cannot blame me for being happy that I don't have to walk in your shoes. And I cannot blame you for trying to make the best of the hand you were dealt. But I think it fair to insist that we not ignore the truth about nature as we discuss it.

Up until now, homosexuals and homosexuality itself have not presented a real threat to civilization except in the "minds" of the occasional brutish sort of small-minded Cretan or zealot. (Why people make the things that these sort of people do the focus of any public discussion is always beyond me . . . they're not going to go away no matter how the laws change. They can only be reigned in . . . and the best way to do that generally isn't by threatening them. They do not represent anything like the mainstream . . . and it's usually best to ignore them. But I suppose there are political reasons for one side to paint them as being more powerful and important than they actually are--but the practical truth is that the more this is done, the larger their numbers grow as people unable to articulate their revulsion to the change are drawn to them in desperation. Recognizing them is counterproductive nonsense if you really are in favor of a civilized approach to the debate . . . but it is easier to argue with them, I guess, than it is to argue with rational people.)

Again, I am willing to discuss and, possibly, to make concessions in matters of child custody if it is on behalf of the children who are parented by homosexual couples. I do not think homosexuals are necessarily bad parents to children, that they are more likely to molest them, nor do I think that they will necessarily be inclined or able to "convert" them . . . It is just that I generally think it is better for a kid to have the opportunity to have both a mother and a father. I understand that that is not always possible, and God bless those homosexual couples (and single people) who are willing and able to take in children who do not have that better alternative. But can't we admit that (all other things being equal, e.g., no abuse etc.) married heterosexual parents are better? And can't we admit (though I probably would not make it a matter of law) that it is morally wrong for people knowingly and purposefully (oopsies are a different matter) to bring a child into the world if there will not be a mother and a father for that child? That ought to be the standard. Everything else is what we do to compensate in a pinch.

But in those homosexual unions where there are children involved, and custody becomes an issue, I would say that the interests of the particular children would have to come first. But in that recognition, there could also be no general concession that equates the homosexual union with a marriage. Still, if a child recognizes two (or however many) people, whoever they are, as their parents then courts should do what they can to respect that. But it is important for people who are involved in non-traditional unions--or serial unions--where there are kids involved to take responsibility for that too. We should do what we can on behalf of children. But we should not, as a society, have to clean up all the mess that people are making of their lives through irresponsibility. We cannot make law to fit every possible permutation of what we want to do with respect to family. We can be tolerant, but we don't have to be stupid. (And this is true of heterosexuals who shack up, have kids out of wedlock and all the rest of it.) There may be room to streamline some of these procedures and regulations and make custody questions easier. I am no expert in that. But the burden really should come down on those who seek to be parents outside of marriage. Lawyer up. Be responsible. Do your job and protect the interests of your children. And because it is much more complicated for homosexuals to have children in the first place (we don't need a discussion of why that is, do we?) shouldn't it be obvious to them that the legal protections and ramifications of custody disputes are going to be all that much more complicated. I really don't see why it is too much to ask that people accept the limitations and obligations imposed on them by the choices they make. If they don't choose their homosexuality, homosexuals (much more, in fact, than most heterosexuals) certainly do choose it when they become parents. But in the end, all I really ask in all custody disputes, is that the interests of the children are paramount. I am sure we can agree about that.

Thank you for a good and a civilized conversation about these matters, Earnshaw.

Julie, I sense that you've become weary of this debate, but one last thing...if we remove children from the equation for both gay and straight couples, how does heterosexual marriage "encourage civilization?" You don't explain how, again, removing the children from the argument, how a heterosexual coupling is so integral for civilization. Is it that women "tame" men or that men "tame" women? For gay couples does one not "tame" the other? Does one not take responsibility for the other just a husband and wife do? Your only argument against this seems to be that marriage is a uniting of opposites. I'll grant you that on the physical level this is, indeed, the case. But I still don't see how you leap from that to the civilizing effect. Clearly, I don't read nearly enough Jane Austen. It has been fun

Austen, yes . . . or Aristotle, maybe. But why complicate things when we can think it through on our own?

You ask, "Is it that women "tame" men or that men "tame" women? I answer that it is both. Men make women behave less like women are inclined to do when left to themselves. And women make men act less like men are inclined to do when left to themselves. We are, neither of us (male or female), complete beings. We need each other to be our best and to make our civilization as good as it can be. An entirely male world or an entirely female world would be a desperate and a nasty place.

You will object that some gay men can have a similar civilizing effect upon one another. Perhaps, in individual cases, there may be some shred of truth to this. Ideally, we all should be made better by our friends. But you forget that you have the benefit of living in an already strong civilization--made strong, of course, by the presence of strong families composed by equal but different parts. It is considered uncivilized to oppress the weak, in large part, because we learn that truth within the structure of a traditional family by watching fathers restrain themselves with mothers and watching mothers lovingly recognize the not-so-obvious weaknesses of those fathers. You do not need to point out that this ideal is not always the case. There are bad marriages, just as obviously as there are bad people. But this is also true in homosexual unions.

You grant that on the physical level marriage is a union of opposites. But in order to deny that it is something beyond that, you have to deny that physical reality does not transcend into anything beyond that on an intellectual, spiritual, and existential level. You have to suggest that apart from physical differences, man and woman are exactly the same. Do you really want to make that argument? Are we interchangeable parts? There is nothing uniquely feminine and nothing uniquely masculine? That defies reason. Does any serious person even make that argument anymore?

Gay marriage is a free rider (as are childless hetersexual marriages). Our society has granted couples certain privileges because the family is the cradle of our civilization, literally and figuratively. On the other hand, simple conjugal coupling (whether hetero or homo) do not produce the next generation of soldiers, citizens, and taxpayers, and thus should be according no special privileges. Adults pursuing simple emotion, sexual, and financial gratification should not be elevated to the same level as those of us who actually make sacrifices to bear and raise children.

I don't think that Redwald is correct about childless marriages. The coming together of man and woman in marriage is, in itself, a good thing for society. It IS better when there are children, yes. But this is not always a possibility. The perfect should not be the enemy of the good.

It seems to me that the arguments against the good of same-sex marriage rest on outdated gender stereotypes. Being bisexual, I have had long-term intimate relationships with both a man and a woman (not at the same time!). This idealized notion of the "coupling of opposites" assumes a quintessential "male" and a quintessential "female," neither of which exist in nature except in our own fantasies about male-female relationships.

Humans are humans, with an endless combination of both "masculine" and "feminine" qualities found at the individual level. Surely we all know feminine men and masculine women? In my heterosexual relationship, my male partner was much more traditionally feminine than I was (have been or ever will be), although still very masculine. In my same-sex relationship, my female partner appears more masculine in dress and physical characteristics, but is more traditionally feminine in thoughts and behavior. I am much more masculine in my thinking and behavior, yet I look like a traditional heterosexual woman.

Absent a penis-vagina sexual relationship, my current partner and I are also a coupling of opposites. We complement one another based on our gender (as opposed to sex) differences and parent our children accordingly. It seems to me that the idea that only the male-female relationship can truly fit this "complementarity" ideal is a limiting and ultimately false understanding of human diversity and of the difference between biological sex and psychological gender.

A comparison of solely heterosexual couples would provide this basic truth. Some men are the sensitive and nurturing type who find themselves drawn to women who are powerful and assertive. Some men are the strong and domineering type who find themselves drawn to women who are more traditionally and stereotypically feminine. The point is that there is no such thing as a universal male or a universal female, and thus there is no such thing as a universal heterosexuality from which the ideal of sexual complementarity can be extrapolated. You are relying on outdated and stale ideas about what it means to be a man and what it means to be a woman, and then using that to deny equal protection of the laws to same-sex couples who may be even more complementary to one another in terms of gender identity than many couples in heterosexual relationships. We ALL perform our gender differently.

If marriage is a fundamental right, and the U.S. Supreme Court says that it is, then there is no satisfactory explanation for the denial of that right to one class of persons solely because those individuals seek loving and long-term relationships with members of the same sex. Under the equal protection clause, if two classes are similarly situated to one another, the government may not treat one class differently with respect to a fundamental right without a compelling state interest. I submit that no such interest exists, as children are being raised by straight and gay couples alike, although the children of the latter are also being denied the equal protection of the laws because they cannot benefit from the protections of marriage that benefit the children of heterosexual couples.

The comparison to the civil rights struggles of African-Americans are indeed analogous--there is no need to match injury to injury for the analogy to apply. The analogy is fairly simple and straightforward: African-Americans were denied the equal protection of the laws because of the color of their skin, an arbitrary characteristic. Today, GLBT persons are denied the equal protection of the laws because of sexual orientation and/or gender identity, an equally arbitrary characteristic.

Again, having been in both long-term heterosexual and same-sex relationships, I can tell you that there is no difference in the level of feeling between the persons involved or in the benefit to the community and to society. Communities and societies benefit when couples involved in sexual relationships (especially with children involved) commit to the long-term care and nurturing of one another. It increases stability, individual psychological and economic well-being and sends the message that monogamy matters.

Two final points: (1) In response to the idea that we GLBT folks should wait for our civil rights to be recognized--I believe that a certain famous civil rights leader once stated that "justice delayed is justice denied;" and (2) I have never made mad passionate love to a "friend," but I have done so with my same-sex partner, soulmate and spiritual (if not yet legal) wife.

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