Non-election posting will resume on Monday.
A couple of great post-election musings by Lynn Gazis-Sax here and here.
In a comment below yesterday’s post, Hector (a pro-life Catholic Obama voter with a strong social conscience) remarked, in regards to the various state results:
It’s truly sad that many social conservatives in America appear to care more about whether something is called ‘civil union’ or ‘civil marriage’ than about the protection of innocent human life.
In the last two or three election cycles, a pattern has developed that was confirmed again on Tuesday. Every single measure designed to limit the rights of gays and lesbians (in Arizona, Arkansas, Florida and California) passed. Every single measure designed to further restrict abortion failed (in California, South Dakota, and Colorado). Outside of California, these votes weren’t particularly close. Certainly in the Golden State, hundreds of thousands of voters chose to “split the ticket” on Propositions 4 and 8 — voting to ban gay marriage while voting to protect the right of teenage girls to seek abortion without parental consent.
To both the true believers on left and right, these are perplexing results. Who are these hundreds of thousands of folks who support abortion rights for minors but oppose gay marriage for consenting adults? The statistics make it clear that a great many people voted “No” on 4 (to require parental notification) and “Yes” on 8 (to eliminate same-sex marriage.) I’m an ENFP; I know a great many people, but all the Californians I know voted one of three ways: “No” on both 4 and 8, “Yes” on both 4 and 8, or “Yes” on 4 and “No” on 8. I haven’t met a single soul who voted “No” on 4 and “Yes” on 8. Clearly, they exist. Clearly, they determined the outcome of the election. Open call, readers: if you know someone who did vote that way, ask them to come and comment here (anonymously, if they prefer.) I’m fascinated to know what the moral calculus was for that particular combination.
In any event, this decade social conservatives are losing on the so-called “life issues” almost every time they hit the ballot. A “death with dignity” proposition passed this year in Washington: several states have passed bills to legalize embryonic stem-cell research, most famously Missouri in 2006. The pro-life movement continues to claim that Americans, particularly young Americans, are re-thinking abortion — but recent election results suggest otherwise. Americans are as willing as they ever have been to protect choice.
But social conservatives are enjoying great success in limiting marriage to a man and a woman. That’s true in “red” states like Arizona, “purple” swing states like Florida, and solidly blue states like my own California. I expected Proposition 4 to fail, but I honestly didn’t foresee Proposition 8 passing by a 500,000 vote margin. I would never have imagined that Los Angeles County would reject gay marriage, and am as bitterly disappointed as a heterosexual cisgendered person could be. The polls show that black and Latino voters, galvanized by Barack Obama, voted heavily against gay marriage. Many cited religious convictions for rejecting same-sex marriage. However, many of those same voters cast ballots to protect abortion rights for minor girls. Does anyone know of a parish in which the pastor preached against gay marriage — and in favor of abortion rights? Me neither.
Most of the social conservatives whom I know and respect are far more concerned about protecting the unborn than they are about banning gay marriage. I know many folks like Hector, and my friend Russell Arben Fox, who combine progressive and tolerant views on homosexuality with a fervent commitment to what is often called the “consistent-life ethic.” Rooted in a belief that real love means protecting all the vulnerable, many consistent-life types stand against war as well as abortion, stand for animal rights as well as the rights of the unborn. They fight against factory farming, the war in Iraq, euthanasia, capital punishment, and abortion. They tend to be agnostic on the issue of homosexuality. They want the state to intervene to protect the innocent in the womb, but are open to gay marriage as a viable social arrangement. I know these consistent-lifers well; I was once one of them. I still feel the moral sway of their arguments.
But alas, the religious right is not in the hands of the consistent-life ethicists. The lesson of the 2006 and 2008 elections is clear: abortion is a losing issue for Republicans, gay marriage a winning one. And that saddens me. Of course, I’m both pro-choice and pro-gay marriage. But I admit that I can see some theological and spiritual legitimacy to the anti-abortion movement; as a vegan with pacifist leanings myself, I’m amenable to the consistent-life argument. But denying the right of two adults to marry seems to me to be far more mean-spirited than the attempt to deny the right of a woman to terminate a pregnancy. The former position seems rooted in bigotry with tradition applied as window-dressing; the latter, however misguided, is at least rooted in deep compassion for the vulnerable. Then again, I’ve been a pro-lifer — but I’ve never for a minute felt even the slightest twinge of discomfort with homosexuality or the prospect of gay marriage.
So, once again, if someone who is a strong supporter of abortion rights and a strong opponent of same-sex marriage would like to weigh in (politely), they’d be most welcome. I haven’t met many of that tribe, and would like to know the thinkin’ process that undergirds their decision-making. Because across this country, they are having their way at the ballot box.
My father voted No on 4 and Yes on 8. While I don’t have enough time to type out his reasoning right now- I would be happy to get into it when we meet up next week!
Oh good, I’ll look forward to the explanation, because bear of little brain that I am, I ain’t getting it!
I hope you’ll post the explanation, Hugo. I don’t get it either.
Hugo, thanks for quoting me. Just to clarify, I’m Anglo-Catholic, not Catholic, although I do respect much of what the RCC teaches. I would have voted for Obama had the election been close in Michigan, but isnce he was leading by 13 points I voted for Nader.
Thanks for the kind words, Hugo.
At the risk of opening up an enormous can of worms, I suspect that–as the data on this elections is ground finer and finer–the African-American and Latino votes will be revealed as even more relevant to the answer to your question than one might at first think, or hope. Look at the available information on the sexual activity of teenagers in this country, factored by race. Now consider that many–far too many–minority teenagers are living in environments where the schooling is poor, parental involvement and family intactness is often minimal, and so forth. Concerned ethnic minority voters, including religious ones, are aware that many of their people–their extended families, their own children and/or the children of their friends–are in these environments where choices regarding abortion are frequent and difficult. They don’t want to see those choices made any harder than they already are. Whereas the issue of gay marriage…well, look at how it was advertised and argued about. Very upscale, very suburban, very “mainstream.” To the struggling Baptist matriarch of an African-American clan spread through the neighborhood, with many girls and nieces in various relationships and difficulties, swallowing any reservations she may have about abortion is necessary for the sake of showing solidarity and love to her already often put-upon family. But supporting gay marriage? Man, that’s something only relevant in the suburbs.
I think it’s, in large part, a “personal benefit” decision. Practicing heterosexuals know that they are constantly in danger of an unwanted or un-continuable pregnancy. But since they are not gay, the issue does not hit them in the gut, as it were.
I also wonder if (though I wouldn’t know how to prove) the rhetoric of “protecting marriage” plays a part in this. Opponents of gay marriage speak about {heterosexual} marriage being “under attack”–the implication being that gay marriage threatens straight marriage. I’ve never heard a convincing argument about why this would be so–it’s not as if legalizing gay marriage outlaws straight marriage. I always thought it was rather weird of straight people to oppose gay marriage, as if marriage was a sort of country club, or subdivision that would have a decline in property values once “those people” moved in. But maybe it’s more fear than selfishness.
The crazy thing is that some gay activist groups want to boycott the state of Utah. There have already been protests in front of Mormon churches. Yeah, some campaign money came from Utah, but it was the people of California who voted for this thing and it was minority church-goers who were so heavily in favor of it. The logical thing to do would be to boycott the state of California and protest in front of certain minority churches.
For most people, moral reasoning is emotional reasoning, tied deeply to evolutionary triggers. We use logic to wallpaper over the cracks so the process looks acceptable.
The “yuck factor” and fear caused people to vote for Prop. 8 and, during hard economic times, being able to get rid of resource-sucking members of society is an imperative for survival.
Why do witch hunts happen in bad economic/agricultural times? What’s the number one reason for abortion? Hint: most abortions are in the 20-29 y/o group to mothers with at least one other mouth to feed, and the abortion rate is inversely correlated to the health of the economy.
Had the economy been better, the anti-abortion initiatives would have done better and assisted suicide might have lost in that one state. Had same-sex marriage not been made temporarily legal in California (resulting in all sorts of same-sex wedding kiss pictures in the newspapers), Proposition 8 probably would have lost.
(First, an aside: Amendment 2 in Missouri didn’t only allow embryonic stem-cell research; it also allowed cloning while claiming that it was prohibiting it. Americans are split on ESCR — an amendment to allow the destruction of human embryos in Michigan for ESCR passed by only 52-48 — but most Americans are solidly against cloning embryos, whether it’s to implant them OR to destroy them for medical research.)
I share Hugo’s confusion with voters who vote against protecting the unborn AND vote to ban gay marriage. Pro-lifers can make a case that there is a clear, aggrieved party in an abortion, but I have yet to understand how allowing two lesbians in Northern California to get married will have any sort of adverse effect on my parents’ marriage, or yours.
MsAnon: “I also wonder if (though I wouldn’t know how to prove) the rhetoric of ‘protecting marriage’ plays a part in this. Opponents of gay marriage speak about {heterosexual} marriage being ‘under attack’–the implication being that gay marriage threatens straight marriage. I’ve never heard a convincing argument about why this would be so–it’s not as if legalizing gay marriage outlaws straight marriage.”
Color me equally befuddled, MsAnon. Just as liberals ludicrously smear opponents of ESCR as “anti-cure,” conservatives label supporters of gay marriage as “anti-marriage.” I still don’t get from what or from whom they’re “protecting” marriage. We need to protect marriage from people who get drunk in Vegas, have a one-night-stand, get married on a whim, sober up the next day, have a “WTF” moment and then get divorced two days later. Someone who does that cheapens marriage a lot more than do monogamous gays.
My guess is that it’s often easier for people to accept ‘freedom from’ arguments as opposed to ‘freedom to’ arguments. Abortion is a (mostly) accepted part of our current society - keeping it in its current state means keeping people ‘free from’ government changes. However, many people don’t see gay marriage as a right, so making sure people have that right is seen as giving people ‘freedom to’ marry, which is more unsettling.
This is one of the reasons I’m happy about delays like MA and CT have when it comes to gay marriage. The more time passes, the more normal gay marriage becomes. When it’s seen as ‘hey - we’re going to be taking away these marriages from so many people’, I think that there’s more opposition both because it’s less scary as well as the freedom to/ freedom from thing.
Bmmg,
I was just discussing this over lunch today with a (celibate) gay evangelical friend of mine.
I think that it would be fair to say that allowing gays to get married _in church_ would fundamentally change the Christian understanding of marriage as a ‘mysterion’. I don’t personally, think that would be a good thing, which is why within my Anglican communion I side with the theological conservatives in this matter. I believe that childbearing is an essential good of Christian marriage, that men and women are essentially different and this essential difference mirrors the fundamental duality of nature, and that extending _Christian_ marriages to gay couples would damage that understanding. However, I can also recognize that _civil_ marriage is a very different thing than Christian marriage, and that the same rules should not apply, at least in a secular state.
As for why African Americans tend to oppose gay marriage, I would suspect it has something to do with this. Poor and oppressed people often have little that they can be proud of- not money, not education, not power. One of the few things in which they can take pride is moral purity. Moral virtue is literally something that no one can take away from you, and so it becomes increasingly important to people who have little else. Nancy Scheper-Hughes account of shantytown mothers in Brazil shows this nicely, I think, as she describes how these destitute women took pride in the fact that unlike the bourgeoisie, they liked to share with each other.
Many people oppose gay marriage because the next step will be legal polygamy, plural and group marriage — including all the rights to adoption, legalizing imported spouses, and welfare. etc. For example, my ex would be then marry his 5 or 6 illegal alien girlfriends.
rainbow, even you don’t believe that BS.
bmmg, I suspect it’s because people are much happier to agree to restrictions that will never apply to them. They can, perhaps, see themselves as making a stupid decision about marriage (although of course their choices are understandable and do not ‘cheapen’ it), but they can’t see themselves as marrying someone of the same sex. If I’m not mistaken, Maggie Gallagher, who gave $1 million to push Proposition 8, has herself been divorced in the past.
Mythago,
I don’t think that one’s past mistakes necessarily prevent one from providing moral guidance in the present. By that logic, Senator Robert Byrd’s youthful experience as a Klansman should mean that he can’t preach racial equality today.
Rainbow,
For the present there is no movement in the U.S. to legalize polygamy and incest, and hopefully there never will be. also, no one is a born polygamist or incestuary the same way that some are born with same sex attraction.
Hector, I’m a Republican, so I’m afraid I don’t cower in fear at the mention of Senator Byrd.
That said, past choices do affect the present. Atoning for one’s own bad behavior by attacking others is reprehensible.
I’m certain it’s a combination of factors, some already mentioned here. Abortion has been on the table a lot longer as an issue than gay marriage. Some voters tend to focus on certain issues and pay attention to those issues that interest them or have some significance and meaning in their lives.
Maggie gave $1 million? I knew she was that gung ho about it, but I didn’t realize she was quite that rich.
I think it isn’t that she was once divorced, but that she had a child out of wedlock (and later married someone other than the father of that child).
I guess I’m confusing her with Kathleen Parker. I, too, was surprised she had that much money to spare.
Hector and Mythago
You obviously do not follow the poly community websites. They are actively watching the gay marriage movement and waiting their turn.
I do know people who think the same way as Rainbow mentions. They feel it will open the door to more special interest demands for rights.
And it looks like some people need to be given a quick primer in why the “slippery slope” argument is a fallacy.
Are you trying to tell me that if a bunch of polys believe X to be true, X must be true? I mean, really? Polyfolk are just as capable of non-polyfolk of being bone-headed ignoramuses about the law, and seem just as prone to “I haven’t read that court decision but I’m going to pretend I know EXACTLY what’s in it.”
What does the law have to do with it, Mythago? Was there some big textual revision to the Constitution that suddenly created the right to gay marriage where no jurist had found it before? No. What changed was the cultural norm, and the feeling that it wasn’t fair for one group to be excluded from a social institution. No legal expertise required, other than in deciding which language to use to dress up the personal/social preference being written into the law. The poly people are quite right; it’s their turn next. There may be legal arguments about why poly isn’t the same as gay, but who cares? When enough jurists feel that poly people deserve the right, the right will be discovered.
And it looks like some people need to be given a quick primer in why the “slippery slope” argument is a fallacy.
That would be great, especially given that wrt homosexuality it has been repeatedly demonstrated to be true over the past 30 years.
Sometimes slopes are slippery, and sometimes they aren’t; for a slope to be slippery, it’s not enough for there to be a continuum from A to B - there also has to be a mechanism that would cause you to slide from A to B. Eugene Volokh has a nice piece on this (http://www.law.ucla.edu/volokh/slippery.htm).
The problem with a slippery slope argument is that it generally consists simply in asserting the continuity between A and B, without providing any explanation to convince people who accept A but not B (who are generally numerous, or the invocation of the slippery slope to B wouldn’t be rhetorically useful) that A will inherently lead to B, or that the line can’t be drawn exactly where plenty of people want it.
That would be great, especially given that wrt homosexuality it has been repeatedly demonstrated to be true over the past 30 years.
Yes and no. There have been some slopes that have slid, in my lifetime, when it comes to sexual mores, some that haven’t, and some that have slid in the opposite way from the way a generalized slippery slope to sexual depravity argument would have them slide. People have gotten more and more willing to approve of less and less committed sex, since the ancient times when I was a child - there’s one slope that’s slid pretty sharply. People have gone from smaller degrees of tolerance of homosexuality to larger ones - another slope that’s slid. At the same time, child molesting (never approved, obviously) gets more severe reactions than it used to several decades ago - a slope that’s sliding the other way. And people stay as generally disgusted with sex with animals as always.
The more egregious slippery slope arguments about same-sex marriage posit that we can’t possibly approve of same-sex marriage without, say, also dropping our taboos on incest, pedophilia, and bestiality - an outcome that seems unlikely, to say the least.
Polygamy’s a bit different because one can imagine a larger set of people who’d want it - from immigrants from polygamous countries, to polyamorous folks, to the FLDS. So that part of the mechanism - a set of people who might be motivated to try to make a case that they should get the same recognition as same-sex couples, and large enough to form a PAC - is there. But it’s not obvious that our culture’s become more poly friendly over the same period that it’s become more gay friendly, and there are major legal reasons why the courts, in particular, would be less friendly to legalizing polygamy. Which brings me to …
Judges who’d have to adjudicate the messy effects on custody law, inheritance law, property settlements in divorce, immigration, etc., of legalizing polygamy by judicial fiat in a country where existing marriage law is built around an assumption that only two people are involved will certainly care. Not going to happen. The only practical way for polygamy to be legalized is for there to be sufficient public support for it that some legislature is willing to do the considerable work to adjust the law such that people can legally form polygamous marriages without breaking the rules for everyone’s existing monogamous marriages. You can’t just copy the laws from countries that have polygamy, because most of them have marriage rules that most people in this country wouldn’t want (e.g. your spouse can take new spouses without your consent, or men and women have drastically different legal roles in marriage, etc.).
rainbow’s husband’s 5 or 6 illegal girl friends are a case in point. The fact that legalizing polygamy would burden the INS in ways that legalizing same-sex marriage wouldn’t (adding much greater potential for bogus “green card” marriage) in itself is an adequate legal argument for states to make a distinction and permit monogamous marriages but not polygamous ones - it provides a clear rational basis for such a distinction (and there are others that can be given, not even getting into whether you find polygamy immoral in itself).
Lynn Gazis-Sax,
I’m not sure that we are less tolerant of child molestation these days. I don’t think that pedophilia was ever tolerated in our society. Personally I think that there is probably more child molestation in modern America than in previous generations or in more ‘traditional’ societies, and that pedophiles probably invoke the language of sexual liberation to justify their crimes (to themselves, if not to other people). But of course I have no proof of that, it’s just a suspicion.
I agree that there are good legal reasons why polygamy may not be legalized in this country. I can’t feel totally satisfied with them. Given that I think that polygamy is a gross moral evil, to argue that it should be illegal because of green card considerations seems to do an injustice to how evil it really is.
I don’t think pedophilia was ever tolerated, but I think in the past it was sometimes more likely to be swept under the rug. I think that the relaxing of some sorts of sexual mores a) brings certain stuff more into the open that was hidden, and b) leads to a more active enforcement of abuse of authority type offenses, that people may have previously assumed would be covered by respect for protection of virginity. (Examples of where I see increased cracking down on pedophilia - exposure of Catholic Church scandals, on the one hand, and, on the other, NAMBLA getting pushed out of venues where it once could show up and promote itself. I also think in general there’s been an increased effort to prosecute cases of pedophilia, since, say, a couple of decades ago.)
I understand; stuff like that just seems to me like the strongest legal reason to expect that polygamy’s not going to suddenly get legalized in some state. Moral reasons get trickier to argue, because then you have to predict future mores over the course of a decades in fifty different states - easy to predict as unlikely to change for something like incest or pedophilia, less certain for polygamy. So all I can say in that regard is, if such mores did change in the future, they’d have to change enough for a legislature to do a lot of work to change the law - it’s not something that a few judges with skewed views would legalize over the wishes of most of the population.
Now, there are plenty of other arguments you can make as to why polygamy should stay illegal, and they may be stronger morally, just not stronger as “this particular slippery slope won’t happen” arguments. After all, I can just about guarantee that some changes will come in my lifetime of which I’ll morally disapprove (and you can probably guarantee the same for yourself).
Judges who’d have to adjudicate the messy effects on custody law, inheritance law, property settlements in divorce, immigration, etc., of legalizing polygamy by judicial fiat in a country where existing marriage law is built around an assumption that only two people are involved will certainly care.
Those are substantial, but not compelling, reasons for the state to not want polygamy laws. Rights cannot be barred because it would be inconvenient for the apparatus of the state to do additional work. It was a pain for county voter registrars to have to suddenly register a bunch of black people after the Voting Rights Act. Too bad.
Conveniently, it fits rather nicely into a worldview that condemns “sexual liberation”. I doubt pedophilia was so much tolerated as better hidden in past times. When children are taught never to contradict or disobey adults, when sex is not to be discussed and when sex outside of marriage is seen as “ruination”, it creates a very safe world for pedophiles.
Oh, look, somebody else who hasn’t read In Re Marriage Cases, but is absolutely positive those freaky liberal California judges just made shit up because we don’t like the result.
Small comment on Lynn’s post -
Except that US law doesn’t permit polygyny, which is really what these folks what - not polygamy. They don’t want women to be legally able to have many husbands.
Good point, mythago. Not too plausible that same-sex marriage would do away with laws against discriminating by sex - if anything, same-sex marriage is more likely to get legally approved as courts get less willing to allow distinctions to be made by sex.
A) While the Voting Rights Act is a very good thing, it’s an odd example to use to demonstrate that courts must rule anything, since it was actually legislation passed by Congress. Sometimes abuses of rights do actually get corrected by legislatures rather than courts.
B) Courts enforcing the Voting Rights Act use an “undue burden” standard. Courts ruling on marriage restrictions generally use the much weaker “rational basis” standard, unless the marriage restriction falls afoul of some category that could be argued to be constitutionally protected (which race is, and number of spouses really isn’t).
C) Similarly, those parts of Jim Crow that got struck down by the Supreme Court got struck down because the 14th Amendment provided the Supreme Court with a basis for doing so (and that amendment really can’t reasonably be interpreted to authorize polygamy).
If you have some actual court rulings that indicate that I’m wrong, or if you can show where the actual Massachusetts, California, and Connecticut court rulings authorizing same-sex marriage use rationales that could provide a reasonable legal basis for making a similar claim for polygamy, I’m all ears. After all, I’m not a lawyer (though mythago is), and I could be off on one or another of my points. But I’d like an argument that doesn’t assume that courts pull rights out of their asses whenever they please, with no regard for precedent or the constitutions they’re supposed to be enforcing.
As for how one might make an argument for same-sex marriage actually being more desirable than polygamy (as opposed to the one I’ve been making that’s narrowed to legal reasons why the one may be ruled in by courts but the other won’t), I’d suggest Googling Jonathan Rauch; he’s written several times making just that argument.
The legal arguments are irrelevant. I don’t need to read In Re Marriage (although I have) because it doesn’t matter what the law says - it only matters what a judge feels. The judges will impose what they want; the legal arguments are window dressing. Mythago resists this because as a trained legal professional, she resents being made into a window decorator; I can understand why she would feel that way, but I’m not the one running the courts.
If you really think that I’m wrong, I’ll be glad to make a bet with you - at least one state will judicially implement marriages of more than 2 people within the next ten years. To keep it legal, let’s each name a charity or advocacy group that gets the loser’s money; I pick the Federalist Society. You pick the amount, and I’ll post the bet on my blog so that there’s (another) public record.
I can ignore the legal arguments because the judges just do whatever they want to do, and you can trust me on this because I said so. If you disagree it’s because you have deep personal problems that prevent you from admitting I’m right.
Did I miss anything there, Robert?
As for bets, you know, xrlq and I made a $100 bet on the outcome of In Re Marriage Cases a while ago, and he hasn’t shown his face since losing it. So I’m a little leery of waiving money at you conservatives - particularly since you seem to have a propensity to decide that there’s no such thing as Right, only Robert.
Not wanting your honorable profession to be made a mockery of by judges is hardly a deep personal problem, Mythago - seems pretty reasonable to me. I’d feel the same way if I was a lawyer.
My bet offer was actually extended to Lynn, but if you want in on it I’ll be glad to double down. I don’t know who xlrq is so his/her dishonor isn’t my problem.
Re: If you really think that I’m wrong, I’ll be glad to make a bet with you - at least one state will judicially implement marriages of more than 2 people within the next ten years.
The day that that happens, I’m emigrating to South America, for good.
I don’t particularly think it will happen, though.
Well, normally I don’t bet (and there’s kind of a Quaker testimony discouraging it). But, if it helps to establish how convinced I am of this, OK, sure. I’ll bet $100 that, as of 11/11/2018, not one of the 50 state supreme courts will have made a ruling comparable to Goodrich or In Re Marriage Cases, but applying to polygamous marriages - that is, one that obliges a state to open up the definition of marriage to include polygamous marriages. (During that time, one or more states may well make shifts, in one direction or another, in the level of criminal enforcement that is applied to people in polygamous households, but none of those shifts will involve a state supreme court requiring the state to recognize such marriages as legally valid.) And my choice for group to get the loser’s money is Amnesty International.
A very strong barrier exists that logically makes it very difficult for marriage to “slide” from same-sex marriage to polygamy (or polygny, or polyandry, or group marriage). A marriage between two people can unite equals, who make decisions on behalf of one another. A multiple marriage, on the other hand, must contemplate a hierarchy. If I need medical attention and lack the ability to understand or consent, I have a spouse who can consent for me. But if I had more than one spouse, and they disagreed, one, either chosen by me in advance or chosen by the doctors, would have to have the deciding vote. That fact alone vitiates many of the legal features of (western) marriage. A judge faced with an equity argument for polygamous marriage of any description would not only have to affirm a change in marriage, but to reinvent the institution.
I’m sure that nonfalsifiable arguments seem quite reasonable to you, for the very reason they’re not falsifiable. It’s a bit like if I were arguing that the real reason you have an issue with same-sex marriage is your own repressed homosexual longing - how can you prove it wrong? And if you claim that I either don’t know what I’m talking about or pulled that out of my ass, why, it’s simply more evidence that you’re in denial. Certainly, I’d feel the same way in your position.
I’m frankly disappointed, Robert. You’re usually much more clever about constructing a fallacious argument, at least when you can keep your temper.
I’m dying to know what “judicially implemented” means; sounds like the new “judicial activism”. That aside, I’d sign on to Lynn’s bet - there is no state, not even Utah, that has laws and policies supporting multiple marriages in the same way that California has had laws and policies supporting same-sex couples, therefore there’s not a lot of basis to rule against two-person marriage.
FWIW, the California domestic partnership registry was enacted in 1999, got modestly expanded in 2001, and got much more broadly expanded in 2003 (all of this by legislative, not court, action, and with broad support in this state). Several laws have been enacted since, clarifying how certain spousal provisions should be applied to domestic partnerships.
After 2003, the author of Proposition 22 (the proposition that barred same-sex marriage here 8 years ago) tried to get a measure on the ballot here to revoke the expansion of domestic partnership rights, but failed. There was also an effort to get the courts to invalidate the legislation, which failed, and an effort to recall the judge involved in that case, which also failed.
Here in conservative Orange County, I never noticed my neighbors up in arms about the civil union like domestic partnership law. I did, however, see plenty of Yes on 8 signs and small demonstrations this election; a majority of voters in my county favored Proposition 8.
So, plenty of laws and policies supporting same-sex couples, which the California population generally accepts, alongside ongoing opposition to same-sex marriage. The final result of the Prop 8 vote, though less favorable to same-sex marriage than the marginal loss that pre-election polling anticipated, is still about where polling has showed public attitudes in California to be for the past several years - a narrow majority disapproving of same-sex marriage, but many of those happy with civil unions (which is about what our current domestic partnerships amount to).
In other states, anti-same-sex marriage propositions have sometimes included language that could be used to invalidate domestic partnerships; I think that wasn’t included in Prop 8 because a proposition with such language wouldn’t have passed here, and they really wanted to undo the legalization of same-sex marriage before it became entrenched.
Lynn, my understanding is that there was some disagreement in the Prop 8 faction, because some of the coalition wanted to roll back domestic partnership; the more practical heads, realizing that would have doomed the measure, prevailed. “But they HAVE rights, so you’re not hurting anybody, really” is a much more popular sentiment in California than “Send the queers back to the pits of hell from whence they came”.
Lynn-
The idea of poly marriage seems to really stress you out. I always hear the old argument that “it would be too complicated.” That argument seems silly to me and I think it’s put forward by people who don’t want to admit that they’re not really very open-minded after all. Folks, if the courts can handle VERY complex business partnerships, they can certainly handle poly marriage. At any rate, the number of such marriages would be small. To make things easier the state might require a prenup.
Mythago-
After I took two courses on constitutional law in college I came to the conclusion that a good deal of decisions are determined first and and reasoned later. Perhaps that explains why there are so few unanimous decisions. BTW . . . “judicially implemented” is a pretty common phrase in the constitutional law / public policy fields.
The idea of poly marriage as mandatory slippery slope “stresses me out,” as you put it. The idea of poly marriage does not “stress me out” in the sense that I’m freaked out by the fact that it exists anywhere in the world.
When it comes to the possibility of having the law governing my marriage altered in a way that makes my marriage less egalitarian, no, of course I’m not open-minded. And that’s what the scary slippery slope hypothetical of “same-sex marriage is going to lead to a court ruling that you have to recognize polygamous marriage” is about; it’s about pointing to distinctly non-egalitarian polygynous households as the place that marriage has to slide, if same-sex marriage is allowed. It’s about people who are scared of same-sex marriage because it undercuts distinct gender roles looking for something that they can try to argue as being on the same slope that undercuts egalitarian gender roles. (Polyamory shows up as the way to make this remotely plausible, since people who approve of consensual same-sex relationships also often approve of consensual polyamorous ones. But it’s the traditional hierarchical polygynous households that are the issue here, in “slippery slope” argument terms - they’re what provides the fear factor.)
And, of course, court-ordered recognition of FLDS polygynous marriages, in the same institution as regular old monogamous ones, would threaten to make marriage less egalitarian - they want different rules for their marriages, and if you tried to make marriage have rules more friendly to their households, it would be less friendly to mine. But, for that very reason (among others), court-ordered recognition of FLDS marriage rules isn’t going to happen.
If legal recognition of polygamy ever comes in my lifetime, it will be brought in legislatively, it will be brought in with equal rules for both sexes, and it will be brought in with consideration for doing it in a way that doesn’t suddenly give monogamous couples different property or decision making rules from what they previously had. (And, incidentally, though I think legal recognition of polygamy any time in the near future is extremely unlikely, I don’t rule out the possibility that any sort of legal recognition of polygamy could happen in my lifetime; what I rule out is a) the possibility that such recognition will be brought in by a state supreme court decision similar to Goodrich or In Re Marriage Cases, and b) the possibility that it could happen without a strong shift in public opinion to support it. There is no way this is going to come by a judge pulling a new right out of his ass.)
Business partnerships are one offs, each designed with its own lengthy set of rules. Marriage is not; it’s a default contract provided by the state, with a standard set of rights, benefits, and obligations, and limits to what you’re allowed to alter in a prenup. And the current set of rules assumes two people and in some cases has defaults that would be unfriendly to multi-person households (even egalitarian polyamorous ones). It is, of course, possible to change those rules to allow polygamous households with more customized contracts - but that would be an enterprise complex enough to require legislative, not court, action (besides the fact that, though such a thing can be accomplished by legislation, a court would have no grounds to require it as a matter of constitutional right).
None of this prevents a legislature from drafting laws that would allow polygamous marriages (which would need to be done in ways that wouldn’t alter the defaults about custody, property settlements, medical decisionmaking, inheritance, etc. in monogamous marriages, and also - this is the easy part - not suddenly permit formerly monogamous spouses to marry again while ignoring the wishes of their existing spouse). Nor does it prevent individualized contracts between polygamous households that don’t
Oops, that last half sentence was supposed to be deleted. But what the complete sentence would have said is that there wouldn’t be any great legal complexity in giving polygamous households the half loaf of not prosecuting them (if all were consenting adults) and of recognizing any private, roll-your-own contracts that they might want to write for themselves. But that’s a very different (and less useful) thing from marriage.
Incidentally, if your argument that court-ordered polygamy in the near future is likely doesn’t reside in anything about the actual legal reasoning behind the In Re Marriage Cases ruling - if, instead, it relies on the assumption that the legal reasoning doesn’t matter, because judges will pull whatever rights they want out of their asses regardless - then In Re Marriage Cases is irrelevant to the supposedly inevitable slippery slide to court-ordered recognition of polygamous marriages. If judges needn’t care about having any sort of plausible legal or constitutional case, then they don’t need same-sex marriage to approve polygamy; all they need is to want to approve polygamy. For In Re Marriage Cases to be part of this supposedly slippery slope, there has to be something in its reasoning that can be reused as an argument for state recognition of polygamous marriages to be a constitutional right.
I am an attorney too, and I can certainly imagine a judge who can find a privacy or association right somewhere in California, Vermont, New York, or Massachusetts state constitution to justify the right to form a polygamous marriage whether it is 1 woman and 2 men or 2 men and 5 women. What if the polygamy is 1 heterosexual marriage and 1 homosexual marriage. Is bigamy unconstitutional? It won’t be through the legislature; most legislators actually listen to their constituents and there will never be agreement on this issue between the secular and the religious. Eventual the secular liberals will brainwash all the school children to believe there is no such thing as sexual morality and all sexual options will be legal except bestiality and pedophilia. The only reason bestially and pedophilia will be illegal is lack of consent. Then, the interesting issue will be can dogs consent?
Probably not, but since my entire lifetime could involve another half a century, I’m not going to absolutely rule out some radical change in public opinion, for one reason or another.
The judges like to have the cover of something vaguely plausible. Nobody wants to just hang their bare ass out there; they want some language to use. Window-dressing, like I said.
davev - some decisions are made first and reasoned later. That’s not what Robert is arguing; he’s not even arguing that we can point to certain things in In Re Marriage Cases that show the majority opinion was based on feelings, not law. “Non-falsifiable hypothesis” means an argument constructed in such a way that it can’t be disproven. A simple example is that people with emotional illness are in denial about it; therefore, if you tell me that you are not emotionally ill, I can say you really ARE emotionally ill because, of course, such people deny their illness.
That’s just what Robert is doing by insisting that whatever a case says, the real reason for the ruling is the judge did whatever they wanted. It saves him having to read the case and possibly being wrong, and since he’s clearly in a pissy mood, he threw in a personal swipe or two.
Then you have surely mastered the art of actually reading a case, rather than relying on the West keynotes or on media reports of what the case said? In Re Marriage Cases wasn’t “oh look, a right for same-sex couples to marry!” In large part it turned on the fact that California law gives so many rights to same-sex couples that there’s no way to make the argument about Upholding Traditional Relationships with a straight face. (Har.)
Rainbow,
Look, as a matter of personal morality I agree with you. I think homosexual acts are wrong, and polygamy is wrong also. I approve of civil unions as a matter of law and government policy, but that’s different from my personal moral beliefs.
That said, I do think that polygamy is a more direct and obvious attack on the Western ideal of marriage than homosexuality. We actually sent the army into Utah, in large part to wipe out polygamy; it’s hard to imagine us literally going to war against gay marriage. The ideal of marriage in the West, at least since the Middle Ages, is bound up with the ideas of romantic love, partnership, and seeing the image of the divine in the beloved. It’s certainly true that romantic love and self-giving characterize many homosexual relationships, even if you believe that love is misplaced or incomplete. On the other hand, polygamous marriages have historically been about many things- sex, efficient division of labor, property, procreation, the union of bloodlines- but the one thing they _haven’t_ typically been about is romantic love. The very idea is somewhat contradictory. A polygamous man might love his senior wife in some sense, but he surely can’t love each one of his wives “as Christ loved the church.” For that and other reasons, I think that polygamy is a greater danger to healthy marriages than gay marriage, and I have faith that the courts- as corrupt, prideful, and at times plain stupid as they are- will see that as well.
Oh, and Rainbow? I have “school children”. I’m really fucking sick of bigots like you using them as the moral equivalent of human shields.