The Procreation Question

When you talk to traditional marriage advocates, there is always the procreation question.  That is, allowing gays or lesbians to get married cannot lead to naturally conceived children.  If the only purpose of marriage in this scenario is to procreate, then under that rhubric, only heterosexual couples who can reproduce should be allowed to marry.  So if a couple can't have kids should be forced to get divorced?

As Ann Althouse pointed out, Justice Breyer went after this concept?

In this view, marriage is about children and not adult desire because it is a device to rein in male desire, to keep men from fathering children they aren't going to raise. It's not that marriage can keep that bad thing from happening. It just makes it less likely, because the marriage norm is fidelity.

Obviously, fornication and adultery go on despite this marriage norm, and it's hard to see why letting gay people marry would mess up the norm. I'm trying to picture this man at the heart of Cooper's vision of society: He's true to his wife, because he's gotten the message that's the norm, but if some gay people can marry, then he's going to start cheating, knocking up some other woman, and it's because of this guy that gay people can be excluded from marriage?

What a nutty set of things we're asked to believe! Who the hell is this stereotypical married man, constrained by what other people are forbidden to do? And why should his ridiculous, tenuous connection to norms carry the day? And how can obsessing over what makes him tick work to keep marriage focused on the raising of children and not on the emotional needs and desires of adults? It seems to be all about the needs and desires of adults — really ridiculous heterosexual male adults.

Who are these people?!

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"America’s problem isn’t gay marriage; it’s marriage."

Roger Simon argues that those among the gay/lesbian community who seek to get married are just as bourgeois as those middle class heterosexuals who want to get married.  These are people who are committed to what Simon rightfully calls a struggle to remain committed.  But when so many heterosexuals are calling it quits on marriage (and there are lots of them), conservatives should embrace those gays who want to keep the institution alive.  After all, with some many problems with the institution of marriage in this country, allowing a minority who WANTS the institution in their lives would seem a much wiser course, after all, allowing two gays/lesbians to get married has not impacted at all the ability of two heterosexuals to get married at all.  As Simon notes:

"And guess what — nothing has happened to the institution of marriage, except, sadly, from those heterosexuals deserting it.  And that is clearly not the homosexuals’ fault.....I would remind them to concentrate on the real problem.  Marriage is in serious jeopardy.  Pay more attention to that, not to a tiny minority who seek what you already have."

Important thoughts.

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"So as we talk about "marriage equality" between gays and straights, give a little thought to the problem of marriage inequality between rich and poor. It matters, too."

So says Glenn Reynolds in USA Today.

It probably matters far more than whether gays can marry or not.  After all, there are also rich gay people and poor gay people.

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On Gay Marriage and Where the Arguments Against It Fail

"Gay marriage threatens our freedom."  "Gay marriage is unnatural and can't produce children."  "Gay  marriage will destroy the foundation of American society."  "Gay marriage will lead to polygamy, incest or worse."  I am not sure how many more dire and vile threats have been uttered about gay marriage in this country.  This particular article, Gay Marriage Threatens Our Freedom, seems to capture a great many of them.

After lambasting advocates for gay marriage, or a redefinition of the term marriage as writer James Miliken, Jr. puts it, Miliken proceeds to make many of the same "parade of horribles" that I mention above.  However, what Miliken has failed to do, which a great many people on both sides of the debate have failed to do, is recognize that marriage is actually has two different meanings, one secular and one parochial.  What gay marriage advocates are starting to do (as with Question 6 in Maryland) is recognize that there is a separation between the secular, legal aspects of marriage and the religious sacrament aspect of marriage.

The religious sacrament of marriage is of course older than this country.  Marriage is, for example, one of the sacred sacraments of Catholicism.  Most western religions acknowledge marriage between a man and a woman as a sacred bond.  However, not all religions hold that idea.  Islam, for example, acknowledges that a man may have more than one wife, but that man must support all of his wives and their offspring.  Marriage as a religious institution predates this country's founding and thus is, as Miliken puts it, a pre-existing institution.

Yet marriage in a legal sense exists outside of the religious foundations.  One need not get married in a church or by any member of the clergy (however loosely you choose to define clergy).  The legal institution of marriage may be conferred by a Justice of the Peace or a Judge or in some places, the Clerk of the Court at a county courthouse. These are not so-called civil unions either, they are legal and state sanctioned marriages just like those performed in a church.  Yet, those couples married by a civil (read secular) officer of the law receive the same legal benefits, i.e. rights of survivorship, contractual benefits, tax benefits, etc. of a couple married by a church (again loosely defined).  Let's not even discuss the legal effects of common law marriage that still exist in many states, where a ceremony need not happen at all. What most opponents of gay marriage cite as the moral foundation of traditional marriage is actually a religious foundation and does not apply to a significant percentage of marriages that legally exist in this country.

The biggest mistake this country ever made with regard to the institution of marriage is by allowing members to the clergy to bestow upon a couple the legal, secular rights of marriage at the same time as performing a religious rite.  In no other aspect of civil, secular society do we allow a religious rite to confer legal rights upon people.  For example, simply having a bar or bat mitzvah does not entitle the young man or woman with the legal, secular rights of adulthood such as voting or contract rights, even though a young teenage boy or girl may be thought of as adults within the Jewish community.  Marriage, alone among all the religious rites, has been able to cross that divide between religious rite and legal concepts.

Having said that, let's start with the fundamental basis of Miliken's argument:

The redefinition of marriage by the state would not only mean a violation of the freedom of those who disagree: it would be a giant step closer to a government that is genuinely totalitarian. Now, I know some of you are thinking that "totalitarian" in an overblown, sensationalistic term, but consider the following: laws concerning marriage have always been descriptive, describing and recognizing a pre-existent reality.  Even laws regulating certain aspects of marriage (the ban on polygamy, for instance, or laws against incest) have served to protect marriage from those who would warp its traditional contours. A law that redefines marriage to mean something completely different, something it has never been, is a prescriptive law, one that prescribes or creates a new reality. This is a power that few governments, and certainly not our constitutional republic, have ever claimed in regard to marriage. It is to treat something that the state has always recognized as pre-existent, above and beyond itself, as if it were a creation of the state, to be manipulated, redefined, and at some point (why not, after all?) even abolished at the whim of the ruling power. This is why the protester's question "When did I get to vote on your marriage?" is so off-base. Marriage has never been subject to any vote; it was here before this or any other government, and is the creation of no human government.

But parsing Mr. Miliken's statement we find not only a parade of horribles but a fundamental lack of understanding of the legal underpinnings behind the civil, secular recognition of marriages. Mr. Miliken, by calling it a redefinition of marriage, argues that the state has no business re-defining marriage as he or perhaps even a majority of Americans define it.  But marriage has to have a legal definition and we have laws in this country that protect against the disparate treatment of individuals.  But because people, including me, believe that the law, it.e the secular basis of our society, should not deny people the equal protection of their life choices,  does not make me or the government totalitarian.  Indeed, denying legal secular rights to someone simply because the love of their life has the same biological plumbing is totalitarian.    

If Mr. Miliken's logic is premised upon the notion that because marriage pre-existed the country then it is somehow above the oversight of us mere mortals that comprise the electorate or the approval and oversight of the legislature.  If Mr. Miliken is right, then what we have really is a historical accident or oversight.  However, in fact, the "marriage laws" in this country have been subject to a vote of sorts.  The laws that recognize the religious and secular institution of marriage have been subject to votes of some sort of legislative body, if not in terms of active vote, at least in terms of a vote not to abolish or amend the regulations that allow for the variety of legal rights attendant to marriage.  Certainly the provision of services to provide civil marriages ceremonies is something that has been subject to the power of the legislature to review.

But gay marriage is not actually infringing on any one's rights.  So far, not one opponent of gay marriage has been able to describe how exactly their freedom, or their marriage, or their freedom to marry will be impacted at all, positively or negatively, by allowing two gay people to marry.  Let's assume for a moment that Mr. Miliken is right, that the government recognizes that marriage "is an essential prerequisite for stable, healthy families," what about that recognition is limited to heterosexual marriage?  Fundamentally, does the government truly have a legitimate interest in promoting "stable, healthy families?"  If so, how should the government go about promoting that interest?  Should the government require everyone to get married by age 30?  How does that further the interests of the Framers of "Life, Liberty and the Pursuit of Happiness?"  If men (and women) are endowed by their Creator with these rights--these natural rights--then by those very words, government has no right to take those rights away without due process of the law.  What is the due process that was followed to deny homosexuals the right to marry?  Is it not their natural life, liberty and pursuit of happiness they are attempting to follow?  And assuming a vote took place to deny them their right (which has not happened everywhere), do they not have the right to attempt to change the minds of the voting electorate?

Mr. Miliken cites what is the favorite line among religious conservatives:  "The real question is whether then union of a man and women is different from that of two men or two women (hint: the answer has something to do with babies)."  Pray tell, Mr. Miliken, what is the government's interest in procreation? We have procreation all the time outside the "union" of a man and woman (which I am neither condoning or condeming, merely stating a "pre-existing reality.")  By this logic any man or woman who, whether by biology or accident or choice, are unable to have children should not be permitted to marry.  Widows and widowers would not be allowed to remarry if the woman has passed menopause.  I that what Mr. Miliken is really advocating?  

But returning to the legal and "moral" foundation of Mr. Miliken's argument, the government, which derives its just powers from the consent of the governed, has a duty to provide equal protection of the laws, particularly when it comes to the freedom of expression (i.e. speech, association, etc.).  We may not like all the forms of the consequences of that legal protection.  For example, I am not a big fan of people who burn flags, but as a veteran I defended and will continue to defend their right to burn the flag.  That is freedom of expression.  But what opponents of gay marriage are saying is that the expression of love, through the legal institution of marriage, by two men or two women is not an expression that should be permitted.  Where is the moral foundation for that prohibition?  The mere reason that marriage existed before the United States does not lend it any more protection under the laws.

I close with a admonition from Phi Sigma Pi, my fraternity, "Merely because a practice is prevalent may be the poorest reason for continuing it."

Products are King

I ran across this story when cruising through my RSS feed:  Chik-Fil-A Thrives Despite Gay Rights Issue and I thought is pretty good piece.

Here is a key passage in  the story:

Many gay rights groups called for boycotts, and company executives seemed to be put on the defensive. At the same time, supporters of the Atlanta-based chicken chain held rallies outside stores. The national media couldn't get enough of it. 

So much for "bad" PR. Consumer use of the chain was up 2.2% in the third quarter compared with the same period in 2011, says the Sandelman survey of more than 30,000 fast-food consumers conducted in markets where Chick-fil-A is located. Market share was up 0.6%, and total ad awareness was up a hefty 6.5%. 

In a social-media-crazed world, any PR can be good PR — particularly if it has strong appeal to a group of ardent supporters. Witness the recent jump in contributions to LiveStrong Foundation at a time Lance Armstrong, the organization's founder, was forced to step down in disgrace. 

Chick-fil-A, too, seems unstoppable. "There was a lot of talk that this would hurt Chick-fil-A, but it actually helped the brand," says Jeff Davis, president of Sandelman. During the third quarter, Chick-fil-A broadened its regular customer base in 28 of 35 media markets, he says.

Like the Livestrong Foundation (which I know has no "product" but a very solid message independent of Lance Armstrong's cycling achievements or not), Chik-Fil-A has a product that appeals to people.  People like it and people buy it.  I have no doubt that the gay rights protests and the counter-protests of massive invasions of customers this summer exposed people to the franchises and their product, maybe for the first time.  Which helps, of course with Chik-Fil-A's goal--to sell chicken.


When all the hubbub of Dan Cathay's remarks hit the social media circles, lots of my liberal friends started calling for boycotts.  That of course is their right, just as it is my right to ignore their entreaties and do what I want.  My family frequents Chik-Fil-A (maybe a little too much sometimes) and I for one will be voting to permit gay marriage in my home state of Maryland.

So how can I vote for gay marriage and still frequent Chik-Fil-A?  Mostly because I don't associate politics with my product choices.  I believe that lost of people support Livestrong Foundation's anti-cancer mission and probably don't give a toss about whether Armstrong was doping or not (if he was, it is not like he was the only one doing it--not that it is such an excuse).  I think Livestrong will, well, live strongly despite the tarnish on Lance Armstrong.

I like Chik-Fil-A's product and I really like their customer service at my local franchise.  Even when they are monster busy, they make sure every guest gets their full attention.  I have never met Dan Cathay, but I will say this--he speaks his mind and what he believes.  Even if I don't agree with what he believes, I have to respect and admire a man who is unafraid of doing that--even if it might have cost him his business.

Turns out though, speaking your mind without fear and equivocation might actually earn respect and customers.  Who would have thought.

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Red Maryland: Thoughts on Prop 8

Proposition 8 in California and other similar measures in other states, have garnered a fair amount of attention to the issue of same sex marriage. Whilst the debate continues over the rights of gays in the context of marriage various efforts to demonstrate the role gays play in our society are taking place today. I can't say that I have any objection to these protests and really, I don't think anyone in America is doubting the fact that gays make a significant contribution to our society and the "calling in gay" protest is fair, if likely to be ineffectual. But other reactions to the victory of Prop 8 supporters has been, well interesting. It is that reaction, with ludicrous videos, threats of not paying state taxes and other dumb reactions that goes to highlight a group that is more wont to throw a temper tantrum rather than knuckling down and trying to overcome the loss by educating people as to their viewpoint.

But that is not to say that the Prop 8 supporters were right. I have been spending a fair amount thinking about this issue. In a conversation with my father, a very smart and thoughtful man, he stated that gay marriage is contrary to natural law. He rightfully noted that if you put 100 gay men on an island and come back in 100 years, they would all be dead. Ditto for 100 lesbians. I don't know about natural law, but I will readily admit that gay men in particular are incapable of procreating the species. Gay women can procreate, but not with other gay women, they need the intervention of a man to provide the second half of genetic material for a child. So in terms of the natural procreation of the species, yes, gay marriage would counteract natural law.

But let's think about the implications of that a little further. Is marriage a natural law, a supernatural (i.e. God driven law) or simply a man-made law? Marriage has traditionally been viewed as a religious ceremony, with the union blessed and santified by God through a minister of some church or another. There is little doubt that marriage has traditionally had a very faith based foundation. However, is that still the case, particularly in America? Do we as a nation still view marriage as a matter of faith before a matter of civil law?

I am not sure that a very large segment of American society (even outside the gay community) still view marriage as anything more than a civil contract, to be cast aside when it is not convenient to one or more of the parties. There is sufficient evidence for this notion, if viewed through the viewpoint of the ease of no-fault divorce, even in those marriages that are performed by a church. There is also the growing prevelance of single parenthood, i.e. women having children without being married--by choice. Additionally, there is a decline in the "religiousosity" of America as evidence by the constant crusade to rid our public sphere of anything with the taint of religious faith. Finally, there is the question of the role of churches in America shifting, losing influence, which, according to one writer, is the reason why there is such a church based opposition to gay marriage. I don't mean to say that each of this issues is, in and of itself, a necessarily negative thing to be condemned outright. Nor are any of these factors to be considered the sole cause of the decline of marriage as a religious institution. Rather they simply highlight that in America, I think we have come to see marriage not necessarily as a religious institution of an enduring nature, but a civil contract that can be easily dispensed with upon a whim.

But if we as a society no longer consider marriage as a religious rite and view it simply as a civil contract with allows for a certain amount of legal, societal and ownership "shortcuts" then it seems to me that not allow gay "marriage" is somewhat hypocritical. After all, gay marriage opponents routinely cite that gay couples can achieve through contract what heterosexual couples achieve through marriage. But if society looks at marriage as a civil contract only, then why disallow a segment of the population the ability to enter into that civil contract that serves as a shortcut for so many other "marital" related rights.

However, if marriage is supposed to mean something more, that it is supposed to retain its religious foundation, then we must look at the opposite side of the issue and wonder what has happened to the religious foundation. This may be a situation where we have to ask about the impact of easy, no fault divorces, the declining stigma associated with single-parenthood and bastardy, and the fight to rid our public square of any hint of religion. Have we become so intolerant of the highs and lows of a marriage, the work and sacrifice that a marrige requires that many people simply lack the fortitude to stick it out? I am not suggesting that every marriage consecrated in a church should not be dissolved upon good reason, but I think their needs to be a reason, not simply a matter of convenience. For many couples, when it becomes "too hard" there is simply a desire to give up rather than fight for the marriage. But a large part of the opposition to gay marriage is being made by churches and religious groups, in part because they believe that gay marriage will desecrate the institution of marriage, thus eroding the fabric of civilized society.

Which leads us back to the gay marriage advocates. Are they being treated a second class citizens? They certainly have a strong case when it comes to the issue of marriage. But are they really looking to upset the foundation of civilized society? Given that heterosexual America has been doing a pretty fine job of undermining marriage, I think it unfair in the extreme to blame gay America for such a notion. But does the idea of gay marriage itself constitute an attack on civilized society. On one hand gays looking to get marries are looking to redefine the traditional definition of marriage, which has been between a man and a woman (but not always a one to one relationship). On the other hand, gays are looking to participate in a foundational institution of society. It begs the question, if they are looking to participate, aren't they further contributing to the foundation of a civilized society?

If one considers the multitude of ways in which people of marriage age live, you would be hard pressed to say that a gay marriage undermines civilized society. If you leave aside extended families and college dormitory living, there are multiple living arrangements that undermine the notion of marriage as a foundation for American society.

Both sides of this debate are guilty of not managing their position in a logical fashion. The hyperventilating by gays looking to marry and being denied the right through the Democratic process end up looking like whiners when some of the community react as we have seen, with bigoted attacks, silly and pointless protestations about taxes (why not simply move, Melissa Etheridge certainly has the means to) or musicals designed to inflame passions on the opposing side, rather sitting down and trying to explain their case in a civilized manner. On the gay marriage opponents side, claiming that marriage is a sacred rite and gay marriage is an abomination before God is both undermined by the facts of a crumbling belief in marriage in America and by silly notion that a gay person (who by your own definition is created by God) is somehow an abomination before that God. Like many debates involving values, there will have to be an evolution, but that evolution is not without possibility and both sides need to take a breather and examine their actions and cases.

Democracy Might be Hijacked

The California Supreme Court has agreed to hear three lawsuits challenging Proposition 8--you know that gay marriage ban that was passed with 52% of the vote.

I am pretty sure I have said this in the past, but despite my rather conservative nature on most things, on this matter I am really of a libertarian mind on this matter. I have to admit that my position on this score has changed in recent years/months. I may have been opposed at one time in the past.

The ban on gay marriage is premised upon the historical and religious notion the main purpose of marriage is the furtherance of teh species, i.e. to have kids. However in modern civil society, we generally have acknowledged that medical science can help traditional man/woman couples have children. In previous times, these families would have to adopt or simply accept their fate that they won't have kids. We as a society have also accepted the notion of gay couples adopting children (most conservatives don't like it and some religious institutions such as Catholic Charities refueses to place children in gay homes), but it is a part of our society now.

I can appreciate the religious and moral objections that many conservatives may have on this issue. However, there is no civil reason why gay couples can't get married. In civil society, marriage is simply a short cut for certain legal protections, most of which can be accomplished in other legal methods.

So that is my position on gay marriage. But having said that, I have a real problem with taking the matter to court. This was a proposition that was properly put on the ballot in California. It was voted on in the most direct manner possible, by the voters of the state. They have decided that it shall be the law that marriage is defined as a union between one man and one woman. That is democracy at work. Now we have gay activists who are upset that they lost the fight at this point and want to hijack the democractic process that is the law of the land in California.

Therein lies the problem. Instead of trying to convince the electorate, gay activists are targeting a very small, unrepresentative sample of California--the Supreme Court--rather than attempting to convince the entire electorate. In doing so I will tell you what will happen the next time this issue comes up on the ballot--gay marriage will be defeated--resoundingly because voters will want to make a statement that they are the final arbiters of the issue--not the court.