Tuesday, August 01, 2006

Gay Marriage, or Won't Somebody Think of the Children?

Good op-ed in Sunday's NYT. Excerpt:

Washington’s high court rejected same-sex marriage for much the same reason the New York Court of Appeals did earlier this month...

Basically, both courts found that marriage is like a box of Trix: It’s for kids.

In New York, the court ruled in effect that irresponsible heterosexuals often have children by accident — we gay couples, in contrast, cannot get drunk and adopt in one night — so the state can reserve marriage rights for heterosexuals in order to coerce them into taking care of their offspring. Without the promise of gift registries and rehearsal dinners, it seems, many more newborns in New York would be found in trash cans.

At least the New York court acknowledged that many same-sex couples have children. Washington’s judges went out of their way to make ours disappear, finding that "limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents." Children, the decision continues, "tend to thrive in families consisting of a father, mother and their biological children."

A concurring opinion gave the knife a few leisurely twists: due to the "binary biological nature of marriage," it read, only opposite-sex couples are capable of "responsible child rearing."

These stunning statements fly in the face of the evidence about gay and lesbian parents presented to the court. Similar evidence persuaded the high court in Arkansas to overturn that state’s ban on gay and lesbian foster parents.

What the New York and Washington opinions share — besides a willful disregard for equal protection clauses in both state Constitutions — is a heartless lack of concern for the rights of the hundreds of thousands of children being raised by same-sex couples.

Even if gay couples who adopt are more stable, as New York found, don’t their children need the security and protections that the court believes marriage affords children? And even if heterosexual sex is essential to the survival of the human race (a point I’m willing to concede), it’s hard to see how preventing gay couples from marrying increases heterosexual activity. (“Keep breeding, heterosexuals,” the Washington State Supreme Court in effect shouted, “To bed! To bed! To bed!”) Both courts have found that my son’s parents have no right to marry, but what of my son’s right to have married parents?

A perverse cruelty characterizes both decisions. The courts ruled, essentially, that making my child’s life less secure somehow makes the life of a child with straight parents more secure. Both courts found that making heterosexual couples stable requires keeping homosexual couples vulnerable. And the courts seemed to agree that heterosexuals can hardly be bothered to have children at all -- or once they've had them, can hardly be bothered to care for them -- unless marriage rights are reserved exclusively for heterosexuals. And the religious right accuses gays and lesbians of seeking “special rights.”

Even if you believe that marriage plays a special role in the lives of heterosexuals with children (another point I’m happy to concede), can it not play a similar role in the lives of homosexual couples, whether they’re parents or not? Marriage, after all, is not reserved for couples with children. (Perhaps it will be soon, if courts keep heading in this direction.)

(Via Dispatches from the Culture Wars.)



These arguments against gay marriage are asinine. Even if we grant that heterosexual marriages are better for children -- which the evidence is against -- how does outlawing gay marriage help? Will banning gay marriage increase heterosexual marriage? Will children of gay parents be better off with parents who are forbidden to marry?

I get the impression that those opposed to gay marriage believe that if they just hold out long enough, gay people will simply disappear. I've never seen any gay marriage opponent address the question of kids whose parents are forbidden to marry, even as they use kids as their justification for banning gay marriage.

25 comments:

asher said...

I agree.
Homosexual couples should be the first considered to adopt all unwanted children. Why even consider heterosexual couples who are childess? We should actually argue that homosexuals should should be granted the right marriage BECAUSE they are better parents.

"Hundreds of thousands of children being brought up by homosexual couples"? I'd love to see that number.

I realize my tirade sounds silly; I'm just turning the arguement on it's head.

swurgle said...

Asher, according to the National Adoption Information Clearinghouse there were an estimated 300,000 to 500,000 gay and lesbian biological parents in 1976. In 1990, an estimated 6 to 14 million children had a gay or lesbian parent and between 8 and 10 million children were being raised in a gay and lesbian household. I couldn't find more recent data but, presumably, the numbers today are significantly higher.

Don't these millions of children deserve to have parents who are allowed to marry each other?

skcorefil said...

How would their parent being able to get married change anything?

Or do you not really mean this argument and you're just saying it to contrast the opposition?

Classmate-Wearing-Yarmulka said...

You want gay marriage, then convince your fellow Americans. It's becoming pretty clear that the courts aren't going to get involved.

What the New York and Washington opinions share — besides a willful disregard for equal protection clauses in both state Constitutions — is a heartless lack of concern for the rights of the hundreds of thousands of children being raised by same-sex couples.

The equal protection argument is actually the much weaker arguement in favor of SSM. Just wanted to point that out.

Jewish Atheist said...

skcorefil:

How would their parent being able to get married change anything?

Considering that the primary argument against SSM is based on the idea that marriage is good for children, then by their own logic, children should be better off with married gay parents as compared to unmarried gay parents.

In a practical sense, it would make things like custody, medical care, legal guardianship, etc., much more easy and accessible for gay parents. Emotionally, the kids would be able to grow up not feeling like their parents are second-class citizens.

Jewish Atheist said...

CWY:

You want gay marriage, then convince your fellow Americans.

I would like to.

The equal protection argument is actually the much weaker arguement in favor of SSM. Just wanted to point that out.

Maybe, legally speaking. As you know, I'm not a lawyer. However, legalizing SSM would live up to the values idealized in the (federal) Constitution and Bill of Rights, just as the civil rights movement finally lived up to "all Men are created equal."

Classmate-Wearing-Yarmulka said...

I would like to.

Then stop mourning everytime a court refuses to redefine marriage. In the long run, it's better for the SSM marriage lobby if courts stay out of this.

Maybe, legally speaking. As you know, I'm not a lawyer. However, legalizing SSM would live up to the values idealized in the (federal) Constitution and Bill of Rights, just as the civil rights movement finally lived up to "all Men are created equal.

That's all swell, but legally speaking is what matters when an issue is before a court. It's not their role to determine values, especially values that are expounded in a document that has no legal significance.

Jewish Atheist said...

In the long run, it's better for the SSM marriage lobby if courts stay out of this.

You might be right about that. I think that's Andrew Sullivan's position. However, it's worth remembering that the Constitutions and judges exist in large part to prevent the tyranny of the majority. And tyranny of the majority is exactly what's happening here.

That's all swell, but legally speaking is what matters when an issue is before a court. It's not their role to determine values, especially values that are expounded in a document that has no legal significance.

It's not like the pro-SSM side doesn't have a strong legal basis as well. You have your opinions, but it's not like these decisions are unanimous, and it's not like all the state courts are ruling the same way. I may not be qualified to speak specifically to the legal issues, but to my eye, the logic used by the judges opposed to SSM bans makes more sense than the ones for the bans. I get the sense that the ones supporting the bans are casting about for anything to hang their opinions onto -- including the "banning SSM is good for children" nonsense I'm posting about here. I'm sure you feel the same about the other side, though.

Laura said...

Katha Pollit actually wrote an article on this same topic.

In reference to the New York ruling she says "So straights need marriage because they're irresponsible breeders, naturally wild and crazy? And gays can't marry because they think before they procreate? What happened to the old idea that gays shouldn't be allowed to wed because they are promiscuous perverts?"

I love her.

Anyway. I believe that the right to marry the partner of your choice and the right to found a family are rights protected by the Universal Declaration of Human Rights, of which the US is signatory:

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.


Nowhere does it specify heterosexual or otherwise.

Random said...

Laura,

"Nowhere does it specify heterosexual or otherwise."

Actually, it pretty much does. If you read through the whole of the UDHR and not just Clause 16 you will see a curious thing going on with the language there - in every other article the language used is of the form "everyone", no one", "all human beings". The *only* place that uses the "men and women" formulation is Article 16 - why would they do this if the intent was not clearly to state that marriage is between a man and a woman? If they meant "anyone and anyone" instead why would they not have simply used the same language that is used *in every other place* in the declaration? (i.e "Everyone of full age, without any limitation due to race, nationality or religion, has the right to marry and to found a family...")

And frankly the equal protection clause argument is nonsense too. To put it bluntly, homosexuals are not discriminated against because they have exactly the same marriage rights as heterosexuals do - a gay man has just as much freedom to marry a woman as a straight one does, and no more right to marry a man than a straight man does (reverse the genders for lesbians). The fact that he doesn't want to do the first and the straight bloke doesn't want to do the second is legally irrelevant - the law guarantees the right to be treated equally, nowhere does it give you a right to marry the person you love regardless of other factors. In fact I will go out on a limb here (I haven't read every relevant piece of documentation - my life simply isn't that long) and say that nowhere, whether in the Federal Constitution, State Constitutions, or any legislation covering marriage does the word "love" even appear. Legally, the concept is irrelevant to the State's understanding of marriage.

If you want to argue in favour of same sex marriage you really should do so on other grounds, rather than trying to claim that the likes of Jefferson, Franklin, et. al. intended to permit it and wrote the Constitution that way and this was somehow overlooked in the intervening 200+ years.

Laura said...
This comment has been removed by a blog administrator.
Laura said...

Random said: "a gay man has just as much freedom to marry a woman as a straight one does, and no more right to marry a man than a straight man does ... The fact that he doesn't want to do the first and the straight bloke doesn't want to do the second is legally irrelevant...

Actually that is precisely what is relevant - the fact that people, such as yourself, still obviously see homosexuality as a choice. Do you actually know any gay people? - I don't mean acquaintences or someone you work with - I mean actually know a good, close friend of family member who is gay. I know at least a dozen, and all have them have said that they have always just known they were different, and that they are not making some conscious choice to deny being "normal". The only choice that is being made here is to either choose to embrace or repress who you are.

By saying that gay men have the freedom to marry women, but don't want to is confirming this ignorant attitude that if gays would just choose to be straight then they would have freedom.

And, just an FYI, when the original UDHR was being drafted and ratified, that article was not originally men and women, the language was the same as the rest. The United States played a large role in changing the language, as we did in excluding and changing other protections that didn't fit our liking.

Random said...

Laura,

You are wilfully misunderstanding what I am saying. I am frankly baffled to understand how you get from my saying that everybody has the same legal rights (whilst pointing out that they fit better with some people's orientation than with others) to deducing that I believe that orientation is purely a matter of choice (something not supported by anything I've ever said, or for that matter, actually believe).

To repeat - I was explaining the legal situation, and specifically demonstrating why I believe that the courts who have ruled that same sex marriage is not constitutionally guaranteed have ruled correctly. The fact that this isn't the way things should be in an ideal world (and do I really have to remind you that I've supported gay civil marriage here in the past?) doesn't change the fact that this is the way things actually are. If the law isn't satisfactory, there is a perfectly democratic way of changing it. And frankly it's a far superior way of making law than finding a sympathetic judge and getting him to "interpret" existing law in the way you prefer.

"Do you actually know any gay people? - I don't mean acquaintences or someone you work with - I mean actually know a good, close friend of family member who is gay."

Not that it's any of your business, but is a first cousin and a niece close enough for you?

"And, just an FYI, when the original UDHR was being drafted and ratified, that article was not originally men and women, the language was the same as the rest. The United States played a large role in changing the language, as we did in excluding and changing other protections that didn't fit our liking."

Which if anything strengthens my point and undermines yours. The issue was apparently anticipated and the language changed to head it off. And it is of course the ratified text not any preliminary drafts that is authoritative.

Jewish Atheist said...

Random:

To put it bluntly, homosexuals are not discriminated against because they have exactly the same marriage rights as heterosexuals do - a gay man has just as much freedom to marry a woman as a straight one does, and no more right to marry a man than a straight man does (reverse the genders for lesbians).

Silly language games. A woman has the right to marry a man, and a man doesn't. In other words, gay men are lacking a right which straight women have, and gay women are lacking a right which straight men have. That a gay man has the same rights as one other class -- straight men -- does not mitigate the fact that he does NOT have the same rights as a different class -- women.

Laura said...

Actually Random, I was focusing on your statement that a gay man "doesn't want to " marry a woman. What that means to me, is that if he DID want to marry a woman (i.e. choose not to be gay) only then would he be deserving of the right to marriage. Therefore gays can have the right to marriage if they deny who they are and choose to be straight. Which means that they ARE discriminated against based upon who they are.

Laura said...

Oh, and as a side note, the Covenant on Economic, Social, and Cultural Rights does not carry gender specific languages pertaing to marriage.

Of course, that document is a threat to unbridled capitalism, so many Western countries refused to sign (because it guarantees things like medical care, employment, and a living wage).

Way to go freedom!

Random said...

"Silly language games. A woman has the right to marry a man, and a man doesn't. In other words, gay men are lacking a right which straight women have, and gay women are lacking a right which straight men have. That a gay man has the same rights as one other class -- straight men -- does not mitigate the fact that he does NOT have the same rights as a different class -- women."

Actually, it's perfectly serious. In any case, your counter argument is flawed in a couple of ways. Firstly, let's rephrase the issue in gender neutral language (which seems only fair, as that appears to be what you are aiming at) - anybody has a right to marry somebody of the opposite sex, nobody has a right to marry somebody of the same sex. See how the discrimination disappears and everybody is back on an equal footing?

Secondly, it's flawed because courts and legislatures have never recognised that equal protection requires unrestricted freedom. To take an example which I hope is uncontroversial - let us assume that you have a sister and I'm single. In those circumstances I have a legal right to marry your sister (assuming she's willing) and you do not (no matter how willing she is). Is this an unconstitutional restriction on your rights under the equal protection clause because I have the legal right to do something (marry your sister) which is denied to you, or is it constitutional because I have no right to marry my sister whereas you do if she's willing, thereby restoring equality to the equation? (And to anticipate the inevitable attack - no, I am not equating homosexuality with incest. I am saying however that the legal issues here are essentially similar, which is why a court is not the place to resolve this sort of debate and instead a democratic forum is).

Oh and Laura - getting married does not make you straight, it only makes you married. A great many gay people have got married throughout history (granted often, but not always, as protective camouflage), some even fairly happily. Did that magically make them all straight?

But to get back to my original point - if you want to win the argument on it's merits, you need to come up with arguments (such as essential fairness, and the right to have the person you love acknowledged as your next of kin) that stand a chance of persuading the sceptical and the hostile but not hopelessly bigoted. What is wrong and will not work is to scream and shout "There is no argument! I am right and always have been!" and keep repeating it until you find a judge who's prepared to humour you (okay, it may work in the narrow sense, but it will still be wrong and will cause a massive backlash if it succeeds).

If you engage with the democratic process instead of trying to circumvent it then yes, it will probably take longer. But the victory if and when it comes will be much more secure and much less controversial and will not provoke a backlash. Heck, you might even get to a place Britain has already reached (and sooner than you think if you do it right), where somebody can point out that the highest profile celebrity wedding of the year (2005 to be precise) was between two men (Elton John and his partner) *and nobody noticed anything unusual*...

Jewish Atheist said...

Firstly, let's rephrase the issue in gender neutral language (which seems only fair, as that appears to be what you are aiming at) - anybody has a right to marry somebody of the opposite sex, nobody has a right to marry somebody of the same sex.

Slick misdirection. Why include "opposite" sex other than to support your point? You're defining a right narrowly for the sole purpose of discriminating against a certain group of people. Would you argue that a law that forbade intermarriage between religions would be okay, since everybody would be free to marry those of the same religion as they?

In those circumstances I have a legal right to marry your sister (assuming she's willing) and you do not (no matter how willing she is).

It's not that I don't have a right to marry my sister -- it's that the general right of marriage is limited against incest for practical reasons. You can't compare being forbidden several otherwise marriageable women to being forbidden 50% of the marriageable adults.

If you engage with the democratic process instead of trying to circumvent it then yes, it will probably take longer.

That's a stretch of the word "circumvent." By that logic, the whole Constitution is an attempt to "circumvent" the democratic process.

skcorefil said...

Would straight women be able to marry other straight women? I've always felt bad for old maids. They shouldn't base the ability to marry on sexuality if they have same sex marriage. That wouldn't be fair or make sense at all.

Random said...

"Slick misdirection. Why include "opposite" sex other than to support your point? "

Erm, because that's the way the law, backed by centuries if not millenia of precedent, operates at the moment? Is that really so difficult to understand? And do you understand why, in the light of that simple fact, a lot of people find an argument that essentially boils down to "the law has said something completely different all along, but until we came along with our unique wisdom nobody ever noticed this" to be somewhat less than compelling?

"Would you argue that a law that forbade intermarriage between religions would be okay, since everybody would be free to marry those of the same religion as they?"

No, I would not argue that it would be "okay". It might however be constitutional (assuming you can get past the first amendment issues) on these grounds. This sort of thing is why, to repeat an earlier point, courts are such a poor place to decide what is fair as distinct from what is legal.

"It's not that I don't have a right to marry my sister -- it's that the general right of marriage is limited against incest for practical reasons. You can't compare being forbidden several otherwise marriageable women to being forbidden 50% of the marriageable adults."

But JA, in your comment timestamped 11:48AM you say "However, it's worth remembering that the Constitutions and judges exist in large part to prevent the tyranny of the majority"! So what is it, is the number of people who are affected by/benefit from an issue irrelevant to how the issue is decided or not? Or are you only opposed to the "tyranny of the majority" when you disagree with them?

"That's a stretch of the word "circumvent.""

Actually, it's a perfectly legitimate use of it. What word would you use to describe the tactics of someone who feels unable to win a debate on the merits of their case and instead seeks a judge who is prepared to summarily declare that the debate is over and they have won?

"By that logic, the whole Constitution is an attempt to "circumvent" the democratic process. "

Yes, it is up to a point (the point being that the constitution does include within itself a basically democratic method for amending it). But then, I was always told that the United States is supposed to be a republic, not a democracy. And that that was certainly the intention of the founders.

Skcorefil,

That's how it works in the UK. Sex doesn't come into at all - the civil partnership register is open to all who are unable to marry in the traditional sense and who do not fall into the same categories (chiefly consanguinity) that would prevent an opposite sex couple from marrying.

skcorefil said...

How do they justify preventing relatives from entering civil unions in the UK?

Jewish Atheist said...

And do you understand why, in the light of that simple fact, a lot of people find an argument that essentially boils down to "the law has said something completely different all along, but until we came along with our unique wisdom nobody ever noticed this" to be somewhat less than compelling?

In the case of expanding rights, I see it more as finally living up to the ideals which existed in the laws all along. But I do take your point -- I never meant to argue that the framers would have intended the equal protection clause to apply to same-sex marriage. I'm sure they wouldn't.

No, I would not argue that it would be "okay". It might however be constitutional (assuming you can get past the first amendment issues) on these grounds.

Interesting.

So what is it, is the number of people who are affected by/benefit from an issue irrelevant to how the issue is decided or not? Or are you only opposed to the "tyranny of the majority" when you disagree with them?

Forbidding brother-sister incest is not tyranny because of the *rational* reasons against it. Maybe it is, though, if they're sterile or something.

What word would you use to describe the tactics of someone who feels unable to win a debate on the merits of their case and instead seeks a judge who is prepared to summarily declare that the debate is over and they have won?

Bush 2000? ;-)

But then, I was always told that the United States is supposed to be a republic, not a democracy. And that that was certainly the intention of the founders.

No argument here.

Half Sigma said...

Marriage (defined as a man and a woman) is good for society (for reasons too complicated to explain right now). But its power primarily resides in the fact that society holds marriage in a state or mystic reverence.

Gay "marriage" weakens the mystic reverence of marriage, which has already been substantially weakened.

Laura said...

Go away for a weekend and look what you miss!

Random - no getting married does not magically make a gay person straight. That's not what I meant, and I think you know that.

Of course the best course of action is to try and pursuade people that gays are deserving of equal rights on the merits of their being human beings. But there's still far too many people who think that being gay is merely some hedonistic, perverse, sex-driven, lifestyle choice as opposed to an integral part of who a person is. I didn't choose to be straight any more than my friend SecretRudy chose to be gay. We are who we are. But until we get past that argument, that being gay is some sort of choice, and get past all the religious mumbo jumbo and "mystic reverence" for marriage (I like that by the way) I don't see that happening. Is it fair then, to allow an entire group of people to continue to have decreased civil rights just because the public can't be convinced that they're deserving of it? Why don't we just overturn Brown vs. the Board of Education while we're arguing that the courts shouldn't be used to enforce such things.

Half Sigma said...

It sucks to be born fat.

It sucks to be born ugly.

It doens't suck as much to be born gay, at least the gay-born are getting lots of sex if they want to. Many hetero-men are unable to exercise their right to marry because no woman wants to marry them.