HB V: Gay marriage, part two

8/06/2010

Gay marriage, part two

This is a refinement of the previous post. For some time I've been looking for any good legal argument against gay marriage. By "good reason" I mean:

1. Can't be religious. The law does not care.
2. Has to articulate a permissible societal interest.
3. Has to actually have a chance of succeeding in furthering that permissible societal interest.
4. Has to be actually be demonstrably true.

This is my question I keep asking friends and family when the issue comes up, and I have been asking this for at least ten years. I haven't heard one. Anyone? Is there a single argument that isn't based on a religious text or "I think they're icky"? I am 100% honest in asking. Admittedly, I want to know so that I have an retort for it, but that's the problem: I can't debate gay marriage when there isn't a single legally permissible reason to deny it. So please, help me out.

19 Comments:

At 8:08 AM, Stephen Henkel said…

Only just now saw this refinement of your previous posting. Based on everything I've written, on your first Blog post, you can probably anticipate the entirety of my argument, but I'll present it anyway.

For conversational purposes, assume the following State Law:

"All communicant members of Organized Religions shall enjoy the legal and financial benefits of the State Establishment of Religion, EXCEPT PRESBYTERIANS, because Presbyterians are icky and gross."

The Plaintiffs' argument against the Law:

"Religion is a fundamental human right which should be open to all who choose to practice it, and the State should not discriminate against Presbyterians just because other people think that they're icky and gross."

My counter-argument:

1.) Religion is indeed a fundamental human right; but what is at issue here is not the Presbyterians' Right to practice our own religion, but rather our Privilege to enjoy the unnatural and artificial benefits of State-Established Religion.

2.) The State Establishment of Religion is an inherently-immoral institution, which is detrimental to Human Liberty and which confers unequal, unfair, and illegitimate benefits to those who practice Organized Religion at the expense of those who practice alternative religions or who are not religious.

3.) The extension of the unnatural and artificial benefits of the State Establishment of Religion to Presbyterians will create yet more constituents for these unequal, unfair, and illegitimate benefits, FURTHER disadvantaging those who practice alternative religions or who are not religious.

4.) The State has a compelling interest in opposing any legislation which would tend to increase the constituency for institutions which are detrimental to Human Liberty.

5.) Therefore, the State should not be compelled to extend the artificial and unnatural benefits of State-Established Religion to Presbyterians, as such action would indeed tend to increase the constituency for an institution which is inherently unfair, unequal, and detrimental to Human Liberty.

That would be my Argument; and speaking as a Presbyterian myself, that's exactly what I actually WOULD argue! I frankly don't WANT the State's unnatural and artificial "benefits" to be conferred upon my own private Religion, thankyouverymuch.

Okay, now: just replace "Presbyterians" with "Homosexuals"; "alternative religions" with "alternative marital arrangements"; and "non-religious" with "unmarried" -- and I would still make the exact same argument.

However, as you can clearly see: the problem with my argument, as it applies to this case -- is that while I think I can make an argument against the extension of State-Established Marriage benefits to homosexuals on the grounds that "we should not seek to increase the Constituency, for that which is inherently Unfair and Evil" (just as I would make very much the exact same argument against State-Established Religious benefits to Presbyterians), I can only do so in the context of opposing the State Establishment of Marriage in toto.

So, I can certainly argue against Homosexual Civil Marriage on the grounds that "If I don't want Thieves dividing Spoils stolen from others, I certainly don't want even MORE Thieves (in this case, homosexual thieves) dividing even MORE Spoils stolen from others", there's no way that I can possibly frame that argument in terms of supporting Proposition 8. They're totally "okay" with Thieves dividing Spoils; they just want to be able to define just whom they invite to the Party.

You asked for an argument against the extension of Civil Marriage to homosexuals. I have presented how I would argue mine. I wonder -- does it still "count" if there's absolutely no way I could employ it in support of Proposition 8?

Just wondering...
At 8:52 AM, Nathaniel Hobbs said…

The Constitution bars the establishment of religion. I know you didn't mean "establish" as "Establish", but if we're going to talk law let's at least get our terminology straight, right?

I've seen this argument before, and I have big problems with it. You seem to be saying that marriage as it exists has big problems as a state sanctioned event and so we should get rid of it that way so that we can treat it as a private contractual issue, which as I said yesterday is all well and good except for the fact that ignores the status quo problems.

It's unacceptable to argue in favor of a utopian reform in place of a real-world correction to an injustice. Let me propose a deal: I'll sign on to your "re-define marriage across the board as a contract" advocacy if, in the interim, you sign on to not restrict the privileges of this flawed arrangement to certain favored groups.
At 9:15 AM, Stephen Henkel said…

Side Note: incidentally, just for the sake of intellectual diversion, I might refer you to the following article by one of my favorite currently-active political writers, Justin Raimondo (Editor in Chief of Anti-War.Com, perhaps the premier website for committed Pacifists on the World Wide Web):

"Gay Marriage Sucks!
by Justin Raimondo

....The very phrase “gay marriage” is an oxymoron. Homosexuality, after all, is really all about the avoidance of marriage – and the responsibility of raising a family. It is the embrace of sensuality for its own sake, as an instrument of pure pleasure rather than procreation. Do gay guys really want to give up what is most attractive – to males, at any rate – about their recreational activities, the tremendous sense of freedom it implies?"

http://www.takimag.com/site/article/gay_marriage_sucks/

Raimondo is probably the "very most Out-est" homosexual writer I've ever had the pleasure of reading, as he generally refuses to even use the term "gay" -- taking the view that those who must use euphemisms to describe their own sexuality, are secretly ashamed of their sexuality; and he, for one, is not.

"To begin with, it isn’t at all clear if I’m being berated by a fellow homosexual who considers me a 'gay' Benedict Arnold, or a heterosexual conservative who considers me an unrepentant sinner. Secondly, I must reject the 'gay' label as completely inaccurate and even insulting – I insist on the old-fashioned Latin, homosexual, so much more direct and accurate. It isn’t for nothing that kids today use the word 'gay' as a synonym not for homosexuals but for wimps, regardless of their sexuality.
-- Sex, Lies, and the National Review
by Justin Raimondo"

http://original.antiwar.com/justin/2000/05/15/sex-lies-and-the-national-review/

You may or may not agree with anything he has to say, but I've always found him enormously enjoyable to read.

"The whole gay rights debate has, by now, gotten so tiresome that most Americans, even liberals, wish the 'love that dare not speak its name' would just shut up." -- Justin Raimondo, "Civil Rights for Gays?"
At 9:21 AM, Nathaniel Hobbs said…

Yeah, see, the homosexuals that I know, love, am related to, all that, did not choose to be homosexual and aren't "doing" the gay lifestyle as a rejection of a responsible family life. I don't care how many gay people you can cite about on this issue, frankly.

I've enjoyed your diversions to my question, Stephen, but it's pretty clear now that they're just excuses to not confront the actual issue presented (hell, I've asked you a couple of direct questions to get a bead on what you're actually saying), so I'm pretty much done with your tangent. Thanks for playing.
At 9:38 AM, Stephen Henkel said…

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At 9:45 AM, Stephen Henkel said…

"Yeah, see, the homosexuals that I know, love, am related to, all that, did not choose to be homosexual and aren't "doing" the gay lifestyle as a rejection of a responsible family life. I don't care how many gay people you can cite about on this issue, frankly."

I had no intention of offending anyone, Nathan.

To be perfectly honest, I'm not exactly sure what could possibly be "offensive" about reading one homosexual gentleman's rationale for his own opposition to Gay Civil Marriage.

I know why I, as a Presbyterian, might oppose the extension of State-Established Religion benefits to Presbyterians. Do you actually think it's bigoted on my part to simply read and consider one homosexual's opinion as to why he does not wish to see State-Established Civil Marriage extended to his own minority community?

I can't see how that could be.

I thought of it more as reading a variety of viewpoints on the issue, personally.
At 9:51 AM, Nathaniel Hobbs said…

I see your argument as a diversion, a red herring that intentionally sidesteps all efforts to clarify and bring back to the question at hand. If I ask what the basis for finding that women should not get Equal Protection treatment under the 14th amendment, and you respond with a quote from Phyllis Schlafly about how feminism degrades women, it doesn't answer the question.

To the extent you won't answer my direct questions, I'm done with it. I'll gladly argue in good faith on point but I don't see your argument as a good faith response to my question. If you want to pontificate on your tangents, you can do it elsewhere.
At 10:01 AM, Stephen Henkel said…

Well, you might read Raimondo's entire article on the subject, rather than just the part I posted excerpting his own ruminations of the psychosexual freedoms of homosexuality which he personally enjoys. I thought it an interesting perspective, as I also enjoy reading Paglia's ruminations on the psychological and cultural aspects of her own lesbianism; but if you consider it a diversion, then I apologize.

However, you also deleted my comment regarding the State Establishments of Religion in Connecticut and Massachusetts which long post-dated the adoption of the Federal Constitution.... and I'm not exactly sure why.

I don't know what was "offensive" about that post, either.

So, I'll reiterate:

Assuming a State Establishment of Religion which favored Anglicans and Congregationalists, and did not extend equal benefits to Presbyterians -- I, as a Presbyterian, would nonetheless oppose the extension of State-Established Religion benefits to Presbyterians; because while I might sentimentally appreciate the goodwill of those who advocate "equal benefits for Presbyterians", under no circumstances would I wish to increase the Constituency for such an inherently-flawed institution as the State Establishment of Religion.

Yes, even if the extension of such State benefits would be to the equal profit of my own minority religious group.
At 10:40 AM, Stephen Henkel said…

"Let me propose a deal: I'll sign on to your "re-define marriage across the board as a contract" advocacy if, in the interim, you sign on to not restrict the privileges of this flawed arrangement to certain favored groups."

Tell you what: I think that's a perfectly fair deal, provided that you can explain to me why I should favor the extension of the privileges of such a flawed arrangement to dis-favored groups.

It's Connecticut. It's 1817.

Congregationalism is the Official, Established Church of the State of Connecticut. (Remember, this Establishment of Religion was not terminated until 1818. In Massachusetts, the State Establishment of Religion actually lasted until 1833).

To be a member of the favored, majority Congregational Church entitles a citizen to a variety of State legal and financial benefits. Members of a dis-favored minority faith, the Presbyterians, do not receive these State legal and financial benefits.

A proposal is put forward to extend the benefits of the State Establishment of Religion to Presbyterians also.

If I genuinely believe that the State should not maintain any Establishment of Religion whatsoever, or confer any especial State Benefits to the practitioners of any State-Established Organized Religion at all (as opposed to those who practice alternative Religions of their own private arrangements, or are non-religious): then as a convinced Classical Liberal on the subject of Religious Freedom, why should I support this proposal -- even on Equal Protection grounds?

If I think that the State Establishment of Religion itself is inherently wrong, then I'm really not going to be interested in the equal extension of those State-Established Religious benefits to both Congregationalists AND Presbyterians. Granted, it would be nice to think that there's folks out there like yourself who are dismayed at the injustice being done to myself and my fellow Presbyterians by this discriminatory Establishment of Religion, but I really don't want "equal benefits". I want these inappropriate State Establishment benefits to be eliminated entirely -- not extended further, for the sake of "equality".

So, per your request, that's my Devil's Advocacy for you. Convince me I'm wrong, and I'll gladly take your deal.
At 11:04 AM, Nathaniel Hobbs said…

You've written a lot without actually approaching what I've asked. Let me alter your hypothetical to make it a fair comparison, and then maybe, however many posts in, you will finally answer my query.

First, let me stipulate that there are some advantages to being a member of the established religion. I don't know that is true, but it at least makes the situations parallel.

Second, let me alter your hypothetical to say NOT that there is a "proposal" to extend establishment to Presbyterians, but rather a Federal COURT CASE that would require the state government to allow all of those benefits to any citizen, not just members of the established church.

Third, let me alter your hypothetical to occur after 1865, which is when the 14th amendment is passed, because prior to that, Barron v. Baltimore meant that the state government did not constitutionally have to abide by due process and honor equal protection; indeed it was not bound by any of the Bill of Rights guarantees (the 14th amendment incorporated the guarantees of the Bill of Rights, albeit incrementally, in the years after that). This alteration makes your whole hypothetical moot, by the way, because establishment itself would be held unconstitutional, and nothing else in it would matter, but no, let me get to the final point....

Fourth, assume that a court case has come out finding that Presbyterians are entitled to these same stipulated benefits (see One). Are you against this court case? Do you argue that the court case was wrongly decided, and you'll take the discrimination while you're waiting to overturn Congregationalism establishment?

My question, AGAIN, is this: are there any good faith arguments against Perry, given the four caveats in my original post? You've not given me any, and I just pretty exhaustively explained why I think your arguments are evasive and irrelevant.
At 11:19 AM, SH said…

Great response; appreciate your consideration of the "State Establishment of Religion vs. State Esteblishment of Marriage" analogy. Of course you're exactly right that I selected pre-1865 examples for the State Establishment of Religion; I had to do so, as post-14th Am., we (correctly, I think) no longer permit even State-Level Establishment of Religion. But of course, I don't think that we should have State Establishment of Marriage, either -- hence my employment of the historical analogy to illustrate my point. So, give me a few moments to reply. Thanks again!
At 12:24 PM, Stephen Henkel said…

***First, let me stipulate that there are some advantages to being a member of the established religion. I don't know that is true, but it at least makes the situations parallel.***

Right. It's just a stipulation for the sake of examining a comparable (or is it? That's the question, I guess) analogy.

***Second, let me alter your hypothetical to say NOT that there is a "proposal" to extend establishment to Presbyterians, but rather a Federal COURT CASE that would require the state government to allow all of those benefits to any citizen, not just members of the established church.***

Mmm. Well, yes and no. I think it would be more accurate to say that we're examining a Federal Court Case to "allow all of those benefits to any citizen" WHO MEETS A STATE DEFINITION OF THE INSTITUTION IN QUESTION -- i.e., you either have to be a Member of the Established Church to receive the Religious benefits in question (in States with Established Religions, pre-1865), or you have to have obtained a State Marriage License to receive the Marital benefits in question. The non-religious or the non-married, or practitioners of privately-constructed religious arrangements or privately-constructed marital arrangements, aren't entitled to these State-Defined Benefits because they haven't obtained the State Establishments or Licensures in question. And I think that there's some fundamental injustice there, having to do with the State presuming to define such historically-Private arrangements at all; but we've already been over that.

***Third, let me alter your hypothetical to occur after 1865...
This alteration makes your whole hypothetical moot, by the way, because establishment itself would be held unconstitutional***

Right. I specifically selected examples from when the State Establishment of Religion was still viewed as a Constitutional arrangement, at the State Level -- just as the State Establishment of Marriage is defined and licensed at the State level today. That historical analogy being offered (allowing for the Constitutional anachronism thereof), I turn to your Fourth and Final Point:

Continuing...
At 12:24 PM, SH said…

***Fourth, assume that a court case has come out finding that Presbyterians are entitled to these same stipulated benefits (see One). Are you against this court case?***

Yes. To the extent that one must still be a Member of a State-Established Religion in order to receive the State Benefits -- those who form their own Private religious arrangements or who are non-religious need not apply -- I'm against the court case.

I may not think that it's going to cause the end of the Republic or the Institution of Religion, and I may appreciate the goodwill of those Congregationalists who advocate "equal benefits for Presbyterians" (our analogous proxies for heterosexuals and homosexuals, respectively) -- but to the extent that I'm opposed to the existence of a State Establishment of Religion at all, I don't really regard the equalization of those benefits between State-Established Churches as much of a step forward.

***Do you argue that the court case was wrongly decided, and you'll take the discrimination while you're waiting to overturn Congregationalism establishment?***

Well, yes, exactly right. Like I said -- I favor the Elimination of what I regard as fundamentally-illegitimate benefits, not their Equalization. That's just not an argument I can use with Proposition 8, because they aren't proposing to eliminate the Illegitimate State Benefits, but rather to permanently enshrine in law the Inequality of dispensation. It would be as if my only two options were "State Benefits for both Congregationalists and Presbyterians", or "State Benefits only for Congregationalists, forever". If I don't think that there should be any State Benefits to membership in a State-Established Religion at all (because I don't think that there should be any State-Established Religions), then I can't see the good in either of those two options.

I really wouldn't want the Court to decide in favor of the Plaintiff or the Defendant, in such a Case. "Utopian" though it might seem to some at the time, my own perspective might be "I think that neither one is a valid Remedy. The Court ought to strike down the State Establishment of Religion entirely. It may sound crazy, but I actually think that's the real source of all the problems in question."

Continuing....
At 12:26 PM, SH said…

***My question, AGAIN, is this: are there any good faith arguments against Perry, given the four caveats in my original post? You've not given me any, and I just pretty exhaustively explained why I think your arguments are evasive and irrelevant.***

I think that this Court, the Findings therein, and the Ruling thereof, has applied entirely the wrong Remedy.

The First Amendment (as incorporated under the 14th): "Congress (or the States) shall make no law respecting an establishment of religion, etc."

Proposition 8: "Only marriage between a man and a woman is valid or recognized in California."

If Marriage is in any way a religious institution (and certainly for many couples, it is), then I'd like to see the Courts find that the States cannot define and license what constitutes a "valid or recognized" Marriage, any more than they can define and license what constitutes a "valid or recognized" Religion.

Basically, I don't want to see Proposition 8 overturned on Equal Protection grounds, and the States required to license both homosexual and heterosexual marriages as "valid and recognized". I think that's the wrong basis in Law, the wrong Remedy.

Rather -- "Utopian" as it may sound -- I'd like to see Proposition 8 overturned on First Amendment grounds: that when the State presumes to define what constitutes a "valid or recognized Marriage" AT ALL, it is in essence passing "a law respecting an establishment of Religion" -- and that should be a No-No.

It's sorta like the Pro-Abortion author I read (forget her name) who said that she opposed Roe v. Wade -- not because she opposed the sentiments therein, but because she thought that the Decision should have been rendered on 14th Amendment Liberty grounds rather than 4th Amendment Privacy grounds. I'm still an Anti-Abortion guy myself (at the State Level, anyway), but I understood her reasoning: Sometimes, one might agree with some of the Court's findings, but still think that it's the wrong Remedy, promulgated on the wrong grounds.

That's the most honest answer I can give you, Nathan.
At 12:46 PM, Stephen Henkel said…

ADDENDUM:

And yes, of course I did read the section of the decision in which Walker observes from testimony that "civil law, as opposed to religious custom, has always been supreme in regulating and
defining marriage in the United States" -- and I think he's simply wrong. Certainly, civil Marriage Licensing in particular has NOT always been a part of American Law. (You did say it was okay for your argumentative opponents to say "I think the Judge employs faulty reasoning, and here's why"). And I think that his reasoning would have been wrong ever since George Washington and Martha privately established their own Marriage simply by signing it in front of witnesses, on a Family Bible.

If that's not religious custom, I don't know what it is -- and the State should make no law, respecting an establishment of Religion.
At 1:38 PM, SH said…

Incidentally, now I feel kinda guilty if I have perhaps wasted entirely too much of your time arguing something which I DON'T think is going to cause the Downfall of the Republic, and DON'T think will cause the Breakdown of the Institution of Marriage, and really DON'T think is amongst "The Top Five Problems facing America today" or anything like that.

But, you asked to hear if there were any arguments against the extension of Civil Marriage to homosexuals in general, and whether or not there might be any reservations to Walker's findings in particular. Well, like I have said: I can see there being some such arguments, on the grounds that equalizing an inherently-flawed and unnecessary institution isn't really a "step forward" (an argument to which I might be sympathetic even if I were a member of a dis-favored minority group myself, as in the case of my historical Religious analogy), and so I have tried to present them for your rebuttal -- just so long as you don't ask me to endorse the particular wording and legal effect of Proposition 8 in particular:

"Only marriage between a man and a woman is valid or recognized in California."

Because, No -- given the permanent enshrinement of heterosexual-only State-Established Marriage as a part of the California Constitution itself advanced by Proposition 8, I can't support Proposition 8, either. To do so would be antithetical to the entirety of my "Ain't nobody's business if you do" central argument.
At 5:11 PM, Nathaniel Hobbs said…

Well at least you got to the point! Man alive.

I do see that you've identified a political argument against marriage equality-- that the state should get out of the marriage business. That still doesn't get to the heart of the matter, which is to identify a legally cognizable reason to be in favor of prop 8. But thanks for the effort, anyway. I think.
At 7:50 PM, The Theonomic Libertarian said…

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At 8:09 PM, SH said…

***I do see that you've identified a political argument against marriage equality-- that the state should get out of the marriage business.***

Well, yes -- by setting the particulars of the case aside and just addressing the matter in terms of "A State Establishment consisting of BOTH inherent injustices and especial privileges", I attempted as well as I could to play Devil's Advocate against the extension of such an Institution (as requested, sorta). I tried, anyway.

***That still doesn't get to the heart of the matter, which is to identify a legally cognizable reason to be in favor of prop 8.***

Nathan, for all my exhaustive verbiage on the matter, I do not at this time personally know or advocate -- and actually, am presently unable to formulate, even "for the sake of discussion" -- any legally cognizable reason to be in favor of Proposition 8, as written. Not in its wording, and not in its legal effect (which is, to perpetuate an Unequal State Establishment of Marriage. You're against the Inequality. I'm against the perpetuation of the Establishment itself). Truthfully, the best I could do was argue the matter in terms of general principles, or in the abstract.

All the best, Henkel

7:50 PM
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