Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

 
THE GREAT GAY MARRIAGE DEBATE

An interesting debate on the "gay marriage" issue developed on a message board I frequent (www.ldstalk.com). I found myself writing some fairly long essays in the thread, and got some essay-length responses. It was a fascinating debate, and I think it's worth preserving. Warning -- this is VERY long. But worth it.

It started out with my response to the original post:

Posted by TheProudDuck: Feb 25 2004, 12:24 PM
I may be responding to someone who's already gone, not to mention engaging in a battle of wits with an unarmed man, but here goes:

QUOTE
1. Homosexuality is not natural, much like eyeglasses, polyester, and birth control. (You just imagined the penguins. Anyway, penguins are unnatural: they're birds, they fly underwater. Nuff said.)


Not a serious argument. I agree. If men acted according to their unrestrained natures, human life would be solitary, poor, nasty, brutish, and short.

QUOTE
2. Heterosexual marriages are valid becasue they produce children. Infertile couples and old people can't legally get married because the world needs more children.


One of the main reasons the institution of marriage exists is because of society's interest in providing a stable environment for the raising of children. Since it is reasonable to expect that a man and a woman sleeping together regularly may produce children in the ordinary course of things, whether they intend to or not, it is appropriate for a society to set up in advance the legal framework that will apply to the union, so as to regulate that environment.

The fact that some marriages do not produce children doesn't change the rationale for recognizing marriage as a legal institution, any more than the fact that some people will never pay capital-gains tax means that those tax laws shouldn't exist. The framework is there for when it's needed, and often it can't be known in advance whether marriage's child-sheltering institutions will be needed. Couples who don't intend to have children may change their minds. Couples who thought themselves infertile, by reason of age or otherwise, may not be.

The (relatively minor) exceptional category of elderly couples who are pretty much definitively infertile, to whom the primary rationale of marriage of providing a stable environment for childraising almost certainly doesn't apply, affirm the institution of marriage by their participation in it.

You would have us say that because exceptions exist -- i.e. some people to whom the chief rationale for marriage doesn't apply -- therefore the rule shouldn't exist, either. That reminds me of a very liberal lawyer I once worked with, whose favorite tactic in arguments against a particular rule was to think of some outlandish exception wherein a person might be hurt by it. Obviously, not every exception can be anticipated. Set up the rule, and if there are significant exceptional cases, make rules to accommodate the exceptions.

QUOTE
10. Children can never suceed without a male and a female role model at home. That's why single parents are forbidden to raise children.


See the above about exceptions to the general rule. Reasonable people may conclude that, in the aggregate, there are significant differences between men and women, and children are enriched by an environment where they experience a mother and a father who each provide their unique attributes. Occasionally, because of divorce or death or other circumstances, the ideal may not be possible. I do think that adoption law, as a general rule, should favor married two-parent couples over singles.

QUOTE
3. Obviously, gay parents will raise gay children, since straight parents only raise straight children.


QUOTE
8. Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make you tall.


Unless you accept the argument that ALL homosexuality is genetically determined (which is a stretch), then it's possible that environmental influences may affect people's developing sexuality. One of the environmental factors that could reasonably be expected to have an effect is the acceptance of something by society. If something is viewed by society as acceptable, society will get more of that thing. Look at the use of racial slurs. It's (generally) not illegal to use them, but you're much less likely to hear them than you would have been fifty years ago. Because society doesn't accept their use.

QUOTE
4. Straight marriage will be less meaningful if Gay marriage is allowed, since Britney Spears' 55-hour just-for-fun marriage was meaningful.


Ah, the bootstrapping argument: "We liberals have so diminished the meaningfulness of marriage already that you might as well let us tear it the rest of the way down." I guarantee you it wasn't social conservatives who enacted Nevada's marriage laws, or instituted no-fault divorce, or created the social atmosphere where marriage is taken lightly.

QUOTE
5. Heterosexual marriage has been around a long time and hasn't changed at all; women are property, blacks can't marry whites, and divorce is illegal.


A perfect example of the tendency of the living to think themselves superior to the dead: Every traditional arrangement must be inferior to the contemporary wisdom. "Divorce is illegal"? When was that? Certainly, divorce used to be a lot harder to obtain, but it's been legal in some form or another for pretty much all of recorded history. And it's far from clear that the present state of divorce law is the ideal, given the pain it tends to cause. For every divorce that benefits both parties, there's at least another that does more harm than good. "Women are property" -- OK, the Romans got that one wrong. That hasn't been true for a long time, although women's rights did take a long time to develop to their proper place. "Blacks can't marry whites" -- Anti-miscegenation laws are a relatively recent invention (most didn't exist until the 19th century) that ran their course over the span of a few generations.

How about "The punishment should fit the crime"? Or "no punishment may be inflicted unless a law has been broken"? How about the canons of statutory interpretation? The common law? The Golden Rule? All of these things are at least centuries old. Sometimes, the fact that an institution has stood the test of time suggests that it may be a good idea, having been "naturally selected" from among other institutions that were found wanting and discarded.

QUOTE
6. Gay marriage should be decided by people, not the courts, because the majority-elected legislatures, not courts, have historically protected the rights of the minorities.


Couldn't agree more. On the legislative side, we have the abolition of slavery, the 13th through the 15th Amendments, the 1964 Civil Rights Act and the 1965 Voting Rights Act -- the basic framework of civil rights in this country. On the judicial side, we have Brown v. Board of Education -- which itself built on a trend, pushed along by representative institutions, of greater civil rights (like President Truman's integration of the military). On the other hand, the judicial side also has to answer for the Dred Scott Case, the Slaughterhouse Cases, Plessy v. Ferguson, and the Lochner decision.

I happen to think that democratic government, expressed through republican institutions, works pretty well. As a default rule, I tend to favor the means of government that maximizes the degree to which decisions are taken by the consent of the governed. That inclines me to prefer the decision of a popular majority to the decision of a judicial elite except in exceptional cases.

QUOTE
7. Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the entire counrty. That's why we have only one religion in America.


The values of pretty much every major religion, actually. The laws of a country ought to reflect its general moral sense. We have laws forbidding cruelty to animals because a majority of the people feel that it is wrong. The sense that a marriage between a man and a woman is the most moral sexual arrangement doesn't have to arise from any particularized religious tradition any more than animal-cruelty laws do.

QUOTE
9. Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage contract.


Interesting choice of deviant sexual behavior there. If I made that argument, you'd jump on me for "comparing gay sex to bestiality," or something equally juvenile. I do notice that people on your side are desperate to avoid the slippery-slope argument -- that's why whenever someone points out that a sexual ethic based on consent could lead to acceptance of [insert bizarre sexual practice here], he's instantly accused of "comparing" gays to people who indulge in that practice -- a colossal logical fallacy engaged in with enthusiasm by people who take pride in calling themselves "critical thinkers."

The main argument for acceptance of homosexual sex is that it's a consensual sexual practice, and that gay "marriage" is also a matter of consent. But if you make that argument, you are making the same argument for every other consensual sexual practice, or consent to a formalized sexual arrangement. You make it very hard to argue against marriages between multiple parties (hello, Tom Green!) or close relatives (provided, say, they are tested for possible genetic defects that might be expressed in their children).

QUOTE
11. Gay marriage will change the foundation of society. Heterosexual marriage has been around for a long time, and we could never adapt to new social norms because we haven't adapted to things like cars or longer lifespans.


Well, let's see: If you listen to environmentalists, we haven't adapted to longer lifespans; the population of the earth is said to be outstripping its "carrying capacity," and we'll all be starved or globally warmed to death. And frankly, I don't think we're adapting all that well to the changes we've made in society's view of marriage already. Childbearing without marriage, which has become much more acceptable in the past half century, is probably the greatest single cause of poverty in this country. So yes, I do think that maybe we ought to give a little more thought to altering such a fundamental societal institution. A little more thought, that is, than is required to post twelve smart-arse straw-man characterizations of the argument against such a change.

The idea of the "precautionary principle" is generally espoused by the political Left. It's the idea that new technology or practice shouldn't be adopted unless its proponents can offer conclusive proof that it won't cause any harm. Of course, it's virtually impossible to prove a negative, and the idea is counterproductive, but it's interesting that the same people who demand absolute proof that, say, genetic engineering won't cause any harm, are willing blithely to accept an unproven modification of an ancient social institution.

QUOTE
12. Civil unions, providing most of the same benefits as marriage with a different name are better, because a "seperate but equal" institution is always constitutional. Seperate schools for African-Americans worked just as well as seperate marriages for gays and lesbians will.


Constitutional law does recognize that different treatment for men and women is sometimes justified by differences between men and women. Laws making distinctions between men and women (i.e., Selective Service) are evaluated under an "intermediate scrutiny" standard, as opposed to the "strict scrutiny" standard applied for racial distinctions. That's because the distinctions between men and women -- and between marriages between men and women and same-sex couples -- are real, while the distinctions between races are insignificant.

Posted by curvette: Feb 25 2004, 01:09 PM
I would think most people who care about family values would prefer to see homosexuals in monogomous, long term relationships than the promiscuous lifestyles that they are notorious for.

Posted by TheProudDuck: Feb 25 2004, 08:49 PM
I would think so, too. But that still leaves us with the following questions:

1. Will "gay marriage" serve to channel gays towards "monogomous, long term relationships" and away from the "promiscuous lifestyles that they are notorious for"? From my observations, it seems that those gays who want committed, long-term relationships (mostly women) already have them.

2. Even if there were some such channeling, would any gains be outweighed by the potential downside of further acceptance of alternative sex practices?

Let's say that the current number of gay people who live monogomous lifestyles is 10% (a wild-donkey guess). If "gay marriage" succeeds in channeling 10% of gays away from promiscuous lifestyles, but, by increasing social acceptance of homosexuality, leads to an equivalent 10% increase in the number of people who act on same-sex attractions (i.e. an increase from 5% of the population to 5.5%; I'm using compromise estimates here), what you've done is that for every one gay person you channel away from promiscuity, you've encouraged ten more people to act on gay attractions -- eight of whom will be promiscuous, if the percentages stay the same. So your net gain is -7 people steered away from promiscuity. It's like when Homer Simpson tried to get rich as a sugar magnate.

Of course, my numbers are pretty much pulled out of the air (except for the estimates of the percentage of the population which is actively gay and the percentage of gays who are more or less monogamous). But given the great difference in size between the gay population and the general population, a small percentage change applied to the general population will have a larger absolute effect than a large percentage change applied to the gay population. The numbers would have to be something like a 10% increase in gay monogamy and only a 2% increase in general gay activity for you to see a net decrease in the number of promiscuous gay people. I think that's unlikely.

And that assumes that an increase in gay promiscuity is the only potential downside for "gay marriage." I think a general reinforcement of the ethic that consent is the only basis for evaluating the morality of a sexual practice is a bad thing for society, and I think "gay marriage" would have that effect.

So Curvette, in answer to you, I believe that "gay marriage" is unlikely to be a cost-effective means of delivering the social good you mentioned.

On top of all that, I can't shake the impression that for a large number of "gay marriage" advocates, the movement to impose such an institution on the country (and since a majority of the people will almost certainly continue to oppose it, it will have to be imposed by activist courts in opposition to public sentiment -- a major difference between this issue and desegregation, which a national majority supported), while it may contain many people of good will who are motivated by the concerns you cite, it contains as many or more people who simply want to see the moral consensus in favor of marriage as the sexual ideal further diminished. In short, I think a good number of the "gay marriage" advocates are not acting in good faith, and would not themselves be likely to enter into such "marriages" even if they were recognized.

Posted by TheProudDuck: Feb 26 2004, 01:38 PM
QUOTE (sgallan @ Feb 25 2004, 10:05 PM)
**** If something is viewed by society as acceptable, society will get more of that thing. ****

One: Well okay..... if so, I have no real problem that. Once it societally acceptable few will.

Two: Could you become Gay? I couldn't. But from the movie Stripes, "I am willing to learn. Is there a school they send you too?" LOL.... still wouldn't work though. Sadly, I am a flaming heterosexual.

The rest of your argumentation, while good, is Lawyerly rationalization to win a point, or debate. High level spin if you will. I can rationalize anything myself. But I am nonetheless not compelled. Instead I see a person held hostage to a political party, and it's agenda, combined with an in-bred religious paradigm, with the additional factor of being raised in a conservative family in what was once the bastion of California conservatism.... Orange county.

This is all cool. It's part of what makes politics so interesting......
--------------------
"I contend that we are both atheists. I just believe in one fewer god than you do. When you understand why you dismiss all the other possible gods, you will understand why I dismiss yours."
Stephen Roberts

Arguments first, analysis of my subconscious "hostage" status second.

QUOTE
Two: Could you become Gay? I couldn't. But from the movie Stripes, "I am willing to learn. Is there a school they send you too?" LOL.... still wouldn't work though. Sadly, I am a flaming heterosexual.


As I am now, I don't think I could, either. If my early sexual development had taken a different course, who knows. Any further detail would probably provide WAY too much information to be posted on a message board.

But isn't it reasonable to conclude that some people who identify themselves as gay could be physically attracted to members of the opposite sex? Look at the co-founder of Word Perfect, who decided he liked men after fathering a family. Clearly at least some, er, parts of some gay men are capable of arousal by women.

Likewise, doesn't the existence of bisexuality support the idea that some people are attracted to either sex? Or, to put it more crudely, that plenty of men would screw a snake if someone held it straight for them?

Isn't it possible that some people, who felt somewhat physically attracted to both men and women, might choose to pursue one attraction over the other as a result of social conditioning or moral conviction?

In other words, I think it's likely that while there probably is a small core of effeminate men who are so hard-wired that way that they would never be attracted to a woman (I think my old singles ward had a couple of these guys), there's a larger group who's capable of going either way, under particular circumstances. (And some of them do!) As I said, I think society's outlook is a significant factor for this fence-sitting group.

As for characterizing my arguments as "high level spin," I guess I'm flattered; the partner I work for spends most of every other day telling me how low level my spin is. I'm a little surprised you'd consider me held "hostage" to caricatured Orange County conservativism, having been around so long. (Is there anyone on these boards who's been around as long as we have?) Most people at BYU and my extended family considered me fairly liberal with respect to religion. Some people on these boards would probably agree. I think for myself, not some "agenda" (it's curious that one's own ideas are "principles" and the other side's are its "agenda!").

Part of the disadvantage my side has in this debate is that we've only recently had to articulate the practical grounds for positions that, only a decade or so, pretty much everyone took for granted. Where was the press for gay marriage in the liberal decade of the 1970s? The idea was a non-starter, because the worth of marriage as currently constituted was considered so long proven that long, thoughtful defenses weren't necessary.

But now, here comes the other side, simply slapping a "civil rights" sticker on their position and expecting the rest of the country to roll over and accept, or be branded bigots and have our arguments dismissed as mere rationalizations. Marriage, I think, is one of those things like courage or patriotism that is strongest when least analyzed: it's a good thing, period. But make us defend it, and argue against what we consider to be ill-advised proposed changes to it, and our arguments must necessarily be long and involved, because so many practical arguments over the years have gone into making marriage as unquestionably good an institution as it was once considered. We have to unpack those centuries of experience, and restate the arguments. That's a lot harder to do, and harder to keep an audience interested in, than simple slogans about "civil rights" and "people who love each other."

(Much debate back and forth while I attended to actual work, then:)

Postedby TheProudDuck: Mar 1 2004, 07:50 PM
Dang -- I spend a day or so doing some actual work, and six pages' worth of thread goes by.

In case anyone's still interested in anything said several pages back, Cal wrote:

QUOTE
PD-I don't have time right now to respond to everything you have said but:

1) What exactly do you think gay marriage imposes on the rest of us?
IMHO opinion gays just want to be left to enjoy the same right to cohabitaion and protections under the law as the rest of us. How does that impose on YOU?



There is a breed of secularist who breaks out in hives every time a high school choir sings a Christmas carol -- because he interprets a government-affiliated expression of religious sentiment as a government endorsement of a religious principle he doesn't hold, and is offended.

Although I think society bends over too far to avoid giving such an offense, a sound principle is involved: People should generally not be compelled to affirm a belief they do not hold. In a democratic society, it's at least partially true that the official position of the government is effectively the official position of the collective society.

The special status afforded to marriage is at least partially a declaration by society that a monogamous union of a man and a woman is a morally admirable thing. A majority of the people in this country do not believe that a same-sex coupling is as morally admirable as a marriage between a man and a woman. To mandate same-sex "marriage" would be to force a majority of the country to declare, at least by democratic proxy, a moral belief that they do not hold. The fact that gay "marriage" is in the process of being imposed by one state's supreme judicial court and another state's lawless officials makes it even worse.

So if a secularist has a right to be offended by the public suggestion that there is a God, with which he profoundly disagrees, shouldn't he expect that someone else might be offended by a public stance on a profound issue which that person disagrees with? Leave the First Amendment and its implications out of this for a moment, and focus on the underlying harm that the modern interpretations of the First Amendment are meant to address. I submit that the same principle is implicated here.

Scott -- "I contend that we are both sexual prudes. I just believe in one fewer moral sexual practices than you do. When you understand why you dismiss all the other possible couplings, you will understand why I dismiss yours."

(Apologies to Stephen Roberts)


Posted by TheProudDuck: Mar 2 2004, 11:58 AM
QUOTE
When you understand why you dismiss all the other possible couplings, you will understand why I dismiss yours." ****

Actually, I cannot think of any couplings I dismiss between consenting adults. Not a one. Live-ins. Polygamy. Man on man. Women on women. Swingers. As long as all parties are okay with it, and nobody gets killed or mutilated I am okay with it as well.


All right, then; you recognize one fewer criterion for disapproving of sexual conduct than I do. You draw the line based on two criteria: consent and "nobody gets hurt."

As to consent, I believe that there are occasions where society is justified in disregarding two parties' consent. For example, in law, a person can't consent to a contract in which he waives the right to sue his doctor or lawyer for malpractice. The transaction between the professional and his client involves more than merely the two people involved; it also implicates society's interest in policing professional practice.

I think that given how powerful sexuality can be in overpowering people's ability to think rationally (similar to drugs), society has a legitimate interest in trying to keep the sexual atmosphere from getting completely out of hand. While a society may pass laws against indisputably destructive sexual practices like child molestation, laws can never be enforced perfectly. When a society, on the one hand, sends a general message that people should gratify whatever sexual desires they may have, and sends a more specific message that certain behaviors are still unacceptable, people whose chemistry or environment has formed their sexuality so they fall on the wrong side of the line receive a very mixed message. Human nature being what it is, they have every reason to rationalize that what they want to do really isn't so bad -- the inability of minors to consent, after all, is only a legal fiction, which gets more and more tenuous the further into adolescence a person gets ...

So when society simultaneously says "Do what you will" and "Don't do X, Y, and Z," society must expect that some people will conform their behavior to the first, and more general, of these contradictory commands.

As for "nobody gets hurt," your second criterion -- Isn't this just as arbitrary as my criteria? Couldn't a person reasonably take the position that consent, alone, is sufficient? A person's body is his or her own, isn't it? There are plenty of people (also invariably left of center) who believe in the "right to die" -- to commit suicide. If a person has a right to end his life, or consent that it be done, why can't he consent to end his life as a filet mignon d'homme on the plate of some German cannibal? Of course I'm not making this scenario up.

Bottom line is, we both draw lines. You draw the line at consent-plus-no-injury; I draw the line at consent-plus-no-injury -- plus a sense, part rational and partially derived from the religious tradition I have chosen as my general moral framework, that marriage is the most proper form of sexual expression.

A question occurs to me, Scott: Are there any forms of sexual activity that you consider less morally admirable than others, but that you would nevertheless not want criminalized?

QUOTE
Following your train of thought..... why don't we (again) outlaw mixed race marraiges. And of course we need to bring the sodomy laws back on the books. Oral sex too. Of course nowadays these concepts are no longer considered valid. Give it 10-20 years and the same things will be thought about Gay marraiges.


Why would my train of thought lead to outlawing mixed-race marriages, or sodomy laws, or restrictions on oral sex? No significant part of the public would want these things. My train of thought is simply that if it is offensive to a secularist to have his government seem to endorse a religion with which he disagrees, it is also offensive that the general public have their government endorse a moral proposition with which it disagrees. The whole concept relates back to the general idea of government by consent that is the foundation of the whole Anglo-American tradition of ordered liberty. Governments, as the expression of the public will, should try, to the greatest extent possible, to avoid contradicting their constituents on matters of the deepest conviction.

In any case, it strikes me that there are three ways a legal regime can address a particular practice: It can (1) forbid it; (2) tolerate it (society may or may not have moral objections to the practice, but does not either prohibit it or encourage it), or (3) give it special recognition and status. In 10-20 years, will there be a special institution giving society's approval to oral sex -- call it "orriage"? "Sodomage"? By your logic, the iron laws of history must not only strike down barriers to sexual practices, but lead to their special recognition by society.

QUOTE
Though the events in San Francisco and other places may be ahead of the societal curve a bit, I think the idea is to bring the issue to the forefront so people can be educated a little.


And I think the "idea" is absolutely lethal to consensual government. Public servants are responsible to the law. Gavin Newsom is every bit as out of line as that judge in Alabama with his Ten Commandments monument. While I doubt we're going to go the way of Haiti anytime soon, when public servants elevate their personal beliefs over the law -- making their jurisdiction into a government of men, not laws -- that's completely inconsistent with republican government. Those officials need to be impeached every bit as quickly as the Alabama judge was removed.


Posted by Sgallan: Mar 2 2004, 12:57 PM
***** A question occurs to me, Scott: Are there any forms of sexual activity that you consider less morally admirable than others, but that you would nevertheless not want criminalized? ****

Between consenting adults I do not put my values on others. So morality has nothing to do with it. As far as the rest of your essay; it's a pretty good defense of the various Islamic laws regarding the same issue. Why not just stone them to death? Or entrap and torture them like is going on in Egypt. Same with adulters, and any other sexual activity you may not like?

*** Why would my train of thought lead to outlawing mixed-race marriages, or sodomy laws, or restrictions on oral sex? No significant part of the public would want these things.*****

They used too. They do in many parts of the world. It's where the line is drawn.

*** My train of thought is simply that if it is offensive to a secularist to have his government seem to endorse a religion with which he disagrees, it is also offensive that the general public have their government endorse a moral proposition with which it disagrees. The whole concept relates back to the general idea of government by consent that is the foundation of the whole Anglo-American tradition of ordered liberty.*****

Yeah, but there is also the issue of the majority subjucating the minority. It is why we are a Democratic Republic and not a pure Democracy. Heck, if we were a pure Democracy both you as LDS, and me as the skeptic, would be outlawed.

**** In any case, it strikes me that there are three ways a legal regime can address a particular practice: It can (1) forbid it; (2) tolerate it (society may or may not have moral objections to the practice, but does not either prohibit it or encourage it), or (3) give it special recognition and status. In 10-20 years, will there be a special institution giving society's approval to oral sex -- call it "orriage"? "Sodomage"? By your logic, the iron laws of history must not only strike down barriers to sexual practices, but lead to their special recognition by society. ****

Yep. And throughout history laws and practices have indeed recieved special recognitiion by society. From racial issues, to womens rights issues, to even childrens rights issues. Just takes awhile.

*** And I think the "idea" is absolutely lethal to consensual government. ***

It's worked in the past. And our Government didn't implode. Though it did come close during the Civil War. But heck, if our country is so polarized that an issue such as this can tear it apart.... then it's time I guess. But I somehow doubt it.

***** Public servants are responsible to the law. Gavin Newsom is every bit as out of line as that judge in Alabama with his Ten Commandments monument. While I doubt we're going to go the way of Haiti anytime soon, when public servants elevate their personal beliefs over the law -- making their jurisdiction into a government of men, not laws -- that's completely inconsistent with republican government. Those officials need to be impeached every bit as quickly as the Alabama judge was removed. *****

And perhaps he will. But like the Ten Commandments thing it has brought an issue to the forefront. In this case the issue deals with civil rights. Many do not think homosexuals should have them. I happen to think they do. Slowly but surely it seems as though society is coming around though it will take longer to be sure.

Posted by TheProudDuck: Mar 2 2004, 02:47 PM
QUOTE
***** A question occurs to me, Scott: Are there any forms of sexual activity that you consider less morally admirable than others, but that you would nevertheless not want criminalized? ****

Between consenting adults I do not put my values on others. So morality has nothing to do with it. As far as the rest of your essay; it's a pretty good defense of the various Islamic laws regarding the same issue. Why not just stone them to death? Or entrap and torture them like is going on in Egypt. Same with adulters, and any other sexual activity you may not like?


I think you're missing my point, which is that I am capable of taking the position that something is immoral, but should not be illegal, while as I understand it, you draw the line between sexual behavior you have no moral problem with, and behavior that you think should be criminalized (rape, abuse, etc.) Your position, incidentally, is essentially J.S. Mill's, namely that society is not justified in restraining, either by law or moral disapproval, of any conduct that does not directly harm other people. I think Mill was wrong (in particular with respect to the "directly" part), but that's a debate for another day.

As for your comparing my essay to the Sharia laws about stoning and torturing sexual deviants, how is that any more fair than the (often criticized) tactic of comparing gays to pedophiles?

What you're asking is why, if I'm not willing to grant same-sex coupling the recognition of marriage, I don't go "all the way" and decree that gays be crushed under walls, Taliban style. The answer is simple: because that would be grossly disproportionate to the social good I hope to gain. So, in my opinion, would be criminal laws against gay sex. The remedy to what I still believe to be a real problem (the encouragement of sexual libertinism) can't be so destructive of liberty, or so disproportionate, that it causes more harm than it prevents. We shouldn't criminalize less-than-ideal sexual expression for the same reason we don't impose the death penalty for running red lights.

QUOTE
*** Why would my train of thought lead to outlawing mixed-race marriages, or sodomy laws, or restrictions on oral sex? No significant part of the public would want these things.*****

They used too. They do in many parts of the world. It's where the line is drawn.


And it's up to us to use good judgment in drawing that line. Like it or not, both you and I draw lines as to what sexual conduct is acceptable.

QUOTE
*** My train of thought is simply that if it is offensive to a secularist to have his government seem to endorse a religion with which he disagrees, it is also offensive that the general public have their government endorse a moral proposition with which it disagrees. The whole concept relates back to the general idea of government by consent that is the foundation of the whole Anglo-American tradition of ordered liberty.*****

Yeah, but there is also the issue of the majority subjucating the minority. It is why we are a Democratic Republic and not a pure Democracy. Heck, if we were a pure Democracy both you as LDS, and me as the skeptic, would be outlawed.


I doubt that last bit, especially in California. There's simply no popular sentiment for criminalizing skepticism or Mormonism. You might want to give people a little more credit. After all, Britain has no First Amendment, and yet minority religions aren't criminalized. (Although I think that Britain, like most of Europe, "walk[s] to the uplands of tolerance by the easy paths of indifference.")

Just as a majority, in a consensual system of government, should not be allowed to impose on a minority things the minority could never be reasonably expected to consent to, the reverse is also true: the minority should not be able to impose its values on the minority. The trick is to balance these two things, not to empower the minority with an absolute veto. (That was what did in the Polish republic of the 18th century.)

QUOTE
**** In any case, it strikes me that there are three ways a legal regime can address a particular practice: It can (1) forbid it; (2) tolerate it (society may or may not have moral objections to the practice, but does not either prohibit it or encourage it), or (3) give it special recognition and status. In 10-20 years, will there be a special institution giving society's approval to oral sex -- call it "orriage"? "Sodomage"? By your logic, the iron laws of history must not only strike down barriers to sexual practices, but lead to their special recognition by society. ****

Yep. And throughout history laws and practices have indeed recieved special recognitiion by society. From racial issues, to womens rights issues, to even childrens rights issues. Just takes awhile.


So, to follow up -- do you seriously think there will eventually be a special official institution centered around oral sex? Maybe "Monicage" would be a better name ...

*** And I think the "idea" is absolutely lethal to consensual government. ***

It's worked in the past. And our Government didn't implode. Though it did come close during the Civil War. But heck, if our country is so polarized that an issue such as this can tear it apart.... then it's time I guess. But I somehow doubt it

QUOTE
***** Public servants are responsible to the law. Gavin Newsom is every bit as out of line as that judge in Alabama with his Ten Commandments monument. While I doubt we're going to go the way of Haiti anytime soon, when public servants elevate their personal beliefs over the law -- making their jurisdiction into a government of men, not laws -- that's completely inconsistent with republican government. Those officials need to be impeached every bit as quickly as the Alabama judge was removed. *****

And perhaps he will. But like the Ten Commandments thing it has brought an issue to the forefront. In this case the issue deals with civil rights. Many do not think homosexuals should have them. I happen to think they do. Slowly but surely it seems as though society is coming around though it will take longer to be sure.


Again, it seems to me that it's too easy to appropriate the name "civil rights" and force the other side on the defensive. I think gays DO have civil rights. Forcing me to accept an institution called "gay marriage" is a civil wrong.

Posted by sgallan: Mar 2 2004, 03:03 P
The answer is simple: because that would be grossly disproportionate to the social good I hope to gain.****

And to me your "social good" in this instance is bad and hurtful to many kind people I know. But as is often the case with conservative positions; actual people seem to count less than paradigms. It is why I could never become a conservative. Your policies are mean. Almost purposefully so. The other sides are often no less detrimental, but at least theirs is usually because of stupidity.

*** And it's up to us to use good judgment in drawing that line. Like it or not, both you and I draw lines as to what sexual conduct is acceptable. *****

Which is why we are having this conversation. But as usual the conservative positions are behind the curve, and the liberal positions (like what is going in in SF) are ahead of the curve. I am curious to see how it washes out. Constitutional Amendments however are only rhetoric. It's a hard document to change and cooler heads from both parties tend to understand the implications of such Ammendments. Thank goodness.

*** I doubt that last bit, especially in California. There's simply no popular sentiment for criminalizing skepticism or Mormonism. ****

Now you missied my point.

*** Just as a majority, in a consensual system of government, should not be allowed to impose on a minority things the minority could never be reasonably expected to consent to, the reverse is also true: the minority should not be able to impose its values on the minority. The trick is to balance these two things, not to empower the minority with an absolute veto. (That was what did in the Polish republic of the 18th century.) *****

Except perhaps when it is a case of human rights. But, because you think of the homosexual as deviant because of their sexual activities you also somehow think they are devoid of the rights of the rest of us.

*** So, to follow up -- do you seriously think there will eventually be a special official institution centered around oral sex? Maybe "Monicage" would be a better name ... ****

Sure, why not (I can do cynicism too).

*** Again, it seems to me that it's too easy to appropriate the name "civil rights" and force the other side on the defensive. I think gays DO have civil rights. Forcing me to accept an institution called "gay marriage" is a civil wrong. ****

I don't believe that you do. By not allowing Gays to marry you put them in an almost impossible position to do something you and I take for granted..... make a legal Union as a couple. Oh, you may suggest non-marraige Unions. But the legalities, and contract involved, in making those Unions as marraiges are today, would be a thick document requiring a lot of money to make...... and it would STILL have loopholes. Even if you could somehow make an airtight document you are STILL societly ostracizing them. And why do you do this? Because of the sex? Because of an ancient tradition? Well slavery and the subjucation of women were pretty ancient traditions. The latter is still a way of life in many countries. But in this one it has gone by the wayside. As should this one.

Posted by TheProudDuck: Mar 2 2004, 04:18 PM
QUOTE
And to me your "social good" in this instance is bad and hurtful to many kind people I know. But as is often the case with conservative positions; actual people seem to count less than paradigms. It is why I could never become a conservative. Your policies are mean. Almost purposefully so. The other sides are often no less detrimental, but at least theirs is usually because of stupidity.


I think you give the other side too much credit. The Democratic rank and file may elevate "paradigms over people" without understanding either the paradigm or the harm, but I think the leadership knows exactly what it's doing, and counts cynically on its constituents' stupidity.

Take the school-choice issue. The public education unions want the public education monopoly to stay seamless, so the party they own opposes virtually any efforts to introduce meaningful choice into the mix -- and condemns children who care about school to be dragged down by their peers in failing schools who don't. Real people, sacrificed to a "paradigm."

Or take the issue, currently pending before Congress, of whether a murderer of a pregnant woman may be charged under federal law with a double homicide (as is the case in California). The abortion-rights activists don't want a single crack in the idea that a fetus, up to birth, is nothing more than body tissue, so they fight that; the families of murder victims be damned.

Sometimes, though, people get hurt in the name of the larger good. The Endangered Species Act has destroyed the livelihoods of whole communities in logging country -- real misery, but perhaps worth it. Our legal and tax systems routinely ruin people's finances. Sometimes that's necessary in order to finance the whole society; if we tried to arrange too many compassionate exceptions, we could swallow the whole system.

I don't think the sexual culture of this country is healthy. (I don't necessarily think the sexual culture of the 1950s was perfect, either.) I think that diluting the unique status of marriage any further will do more harm than good, which is why I have reluctantly to take the position I do knowing that decent people may be hurt.

QUOTE
Except perhaps when it is a case of human rights. But, because you think of the homosexual as deviant because of their sexual activities you also somehow think they are devoid of the rights of the rest of us.


What rights are homosexuals "devoid of" that the rest of us have? Only one "right," as you define it -- the right to compel people to deem a union of two people of the same sex a "marriage," just as morally admirable as a real marriage. Right now, I don't have that right, either.

QUOTE
But as usual the conservative positions are behind the curve, and the liberal positions (like what is going in in SF) are ahead of the curve.


Uh huh. Like those liberal positions on Keynesian economics, unconditional welfare, and accommodation with the Soviet Union were so far ahead of the curve.

QUOTE
It's a hard document to change and cooler heads from both parties tend to understand the implications of such Ammendments. Thank goodness.


Much easier to get a "legal realist" judge to change it for you without changing it -- and so we get to the realm of penumbras and emanations, and different meanings of "is", etc.

QUOTE
But the legalities, and contract involved, in making those Unions as marraiges are today, would be a thick document requiring a lot of money to make...... and it would STILL have loopholes.


With no more than a couple of legislative tweaks, I could arrange to cut and paste the relevant language from the California family code into a form contract which would be available for ten bucks.

QUOTE
Well slavery and the subjucation of women were pretty ancient traditions. The latter is still a way of life in many countries. But in this one it has gone by the wayside. As should this one.


For every tradition that has been branded a relic of barbarism and discarded, there are a dozen others that continue to stand the test of time. It's the exception rather than the rule for a truly bad idea to last long. If they aren't discovered for their flaws and rejected by the society in which they arise, they destroy the society and themselves along with it. I don't think society's view of same-sex couplings as less morally preferable to marriage is the equivalent of slavery, and I imagine you'd find quite a few descendants of slaves who'd think so even more vehemently.

Posted by sgallan: Mar 2 2004, 07:53 PM
PD -

Part of the problem with these kinds of discussions is you (the collective version) are always right, and all good, while the other side is always wrong, and all bad. And vice-versa. And you wonder why people like me stay in the middle (save on freedom and rights type issues for me). Well to me both of your poop stinks. Badly. I have been following the process for far too long to buy into such a polarized position as you are selling. I mean no wonder society as a whole is so polarized. It is agenda thing personfied by the "all good all bad" stuff. At least in the past people could posture on the outside and deal on the inside. No more. The sides actually seem to dislike each other. And neither has any problem with spreading that "they suck we don't" paradigm. Your personnal attitude is typical and is why I am - like many people - disgusted with politics and politicians. I mean I can hear your spin on FOX, over and over and over, every single day. And I can hear theirs on a combination of MSNBC and CNN. As far as your positions as to sexual things..... reminds me of the old saw.... "Democrats want in your wallets and Republicans want in your bedrooms". Neither of you are conservative however; you both want control. LOTS of control. The emphasis is different. So on this battle, because it is personnal, I will continue to battle on the side I am on, with the understanding - considering the changes in the past 25 years - things are coming around. That conservatives are against this sort of this isn't suprising. One, they have always had issues with things sexual. Two, it is a way of exerting control they rather enjoy.... much of it religious based. And third, because they really don't mind being mean. And don't mind hurting people who do not fit in their box. I really believe this. I have been around enough, and close enough a follower of politics, to have had it validated again and again.

But then again, you'll disagree. Because your wing of the part is all good.... of course.

Posted by TheProudDuck: Mar 2 2004, 09:32 PM
I tend not to think much of the conceit that one is "in the middle." It's too easy to say "a pox on both your houses" and think yourself above it all. While a thinking person will rarely if ever agree exactly with every official plank of a party platform, the two-party system in this country has traditionally (as in, since the Federalists squared off against the Democratic-Republicans) served to group generally like-minded people together in broad coalitions -- kind of like European parliamentary systems do in practice, with their dozens of parties, except without those systems' risk of giving kingmaker status to extremist parties and thereby increasing their power. I think it would be a rare person who, after giving careful consideration to the ideas generally associated with each side, would find his own ideas equally distributed on both sides. One will always be slightly more one way than the other.

Having determined that my own thinking tends to fall on the Republican side, it is true that I tend to criticize Democratic positions more. I figure that the other side is best situated to criticize Republicans, and don't need my help. (Although there is a certain red, puffy-faced anti-intellectual numbskullery about a certain flavor of Orange County Republican that does try my patience.)

And given what you said -- "But as usual the conservative positions are behind the curve, and the liberal positions (like what is going in in SF) are ahead of the curve" -- I'm not sure I'm convinced that you're as much in the middle as you said. Although you did clarify that you leave the "middle" on "freedom and rights type issues." Your leanings strike me as generally libertarian.

There's a strong libertarian tradition in my extended family, to the extent that several members are planning to perform the singularly useless exercise of voting for the actual Libertarian Party. My own thinking is that social libertarianism, taken to extremes, makes economic libertarian untenable. Societies are kept together and functioning, and restrained in their self-destructive tendencies, both by law and by culture. Where constructive social restraints are relaxed (as has been the case with inner-city family life), families and the larger society literally fall apart. Poverty spreads along with illegitimacy; the rising generation isn't socialized properly, and governments, in turn, feel irresistible pressure to intervene to solve the resulting problems. So bureaucratic control increases (and since it's inegalitarian to focus that control only in problem communities, the control is imposed over everyone). Taxes have to be raised to pay for program after ineffective program. As government's involvement increases, so do opportunities for lawyers to skim their share.

In short, there's an inverse proportion between the effectiveness of society's "little platoons" of private virtue, as Edmund Burke called them, and government control.

Tell me -- do you really believe that mainstream conservatives are as anxious to regulate "bedroom" conduct as "the other side" is anxious to regulate economic matters? Name one conservative figure who, in the past decade, has advocated criminalizing private, consensual sexual conduct. (Criticism of courts for inventing a right to such conduct, when it clearly doesn't appear in the Constitution, isn't the same thing.) There's the abortion issue -- but since when do abortions take place in the bedroom? That's hardly just a "sex" issue; what draws such passion to the debate is that it potentially involves questions of life and death. Frankly, given the Bush administration's essential abandonment of restraint in domestic spending, it seems to me that both parties are a lot more interested in wallets than bedrooms.

"Old saws" often contain more pith than truth.

QUOTE
I mean no wonder society as a whole is so polarized. It is agenda thing personfied by the "all good all bad" stuff. At least in the past people could posture on the outside and deal on the inside. No more. The sides actually seem to dislike each other. And neither has any problem with spreading that "they suck we don't" paradigm.


I don't particularly like this polarization, either. Part of it, I think, has to do with the fact that as demographic mapping techniques have improved, the parties have gotten really good at redistricting their officeholders into safe seats, where they can just appeal to their bases and don't have to worry about building coalitions. Part of the problem, too, is that our governmental system has been so effective at making compromises, that all the easy compromises have been made -- and the only issues left are the ones where compromise is virtually impossible. On cultural issues, the polarization may largely be a function of "your side's" very success -- it's taken so much of the ground, with the assistance of a like-minded judiciary, that the other side may reasonably suspect that the give-and-take is all give for them.

Posted by sgallan: Mar 2 2004, 10:03 PM
**** Frankly, given the Bush administration's essential abandonment of restraint in domestic spending, it seems to me that both parties are a lot more interested in wallets than bedrooms. ****

This point I'll conceed as a practical matter. Though bedrooms seem to be more of interest in an election year. Must cover ones political base.

I'll admit to being a social libertarian to a point. My values and mores are not yours. And I can provide ample anecdotal information (my family) where your mores, and control preogatives - which assume the doom of society, if such mores are relaxed -, do not work for our situation. I can even extend such information to my peer group as well. I am old enough to be able to look back now. And we could trade statistics, and their interpetations, to each prove our point, to the point a debate could go into the thousands of posts. I could also google up plenty of quotes to show various politicians saying things to prove my point. But do you really want to go there? That kind of stuff is so cheap and out of context as to be useless.

Basically you seem to suggest that homosexual marraige is a doom and gloom senario for society as we know it. I see it as society growing up..... as it has done the past as well. I think your views are partially upbringing based, religion based, and of course political party based. All of which suspect any who do not practice a morality you proscribe too. A conservative morality. Change scares the conservatives. This is probably a good thing as the other side can also get a bit carried away. One slows or balances the other. Otherwise, I see the one side purposefully hurting an entire group of people. And I simetimes wish a homosexual child on those people. I think it may be the only way they could truly gain any perspective.
posted by Thomas at 1:43 PM