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Alas, All Societies Have Closets

My friend Andrew Sullivan is angry over my post the other day about sexuality, nature, and nurture. [1]Excerpts:

 

[My blog post] accuses those of us who have long argued that homosexuality is involuntary or innate of being cynical liars: “The ‘truth’ in this matter [0f the origins of homosexuality] has always been ‘what works to advance the cause.’” He then argues that there is such a thing as “latent homosexuality” that can be “made active” by a more tolerant society. Hence the need to reinstate stigmatization of gay people as human beings who have chosen sin — to keep anyone else from experimenting and thereby becoming gay.

That’s not a fair summation of my point at all, though I did pop off about “what works to advance the cause,” and I can see why that would have offended people like Andrew, whom I don’t believe to be a cynical liar. So I apologize for that.

Once more, hopefully with more clarity this time:

  1. I believe that sexual desire emerges from a confluence of nature and nurture. I believe some people are born with strongly heterosexual desires, and others are born with strongly homosexual desires. I think most people are somewhere along the spectrum — which is where nurture comes in.
  2. It stands to reason that societies that are accepting of homosexuality (and transgenderism, while we’re at it) will see more of it manifest, as those who would have otherwise resisted or repressed those desires give them expression.
  3. It is true also that many gay people will not suffer as much psychologically, emotionally, and otherwise as they would have under a more repressive social regime. I think this is on balance a good thing.
  4. But it is also true that if one believes that sexual activity outside of traditional marriage is sinful — as orthodox Christians do — then acting on those desires is a bad thing, and a society that encourages people to do so is a society that encourages people to do themselves spiritual harm.
    1. This applies to heterosexuals too.
  5. From the point of view of traditional orthodox Christianity, our society has gone off the rails on sexual matters since the Sexual Revolution. Among the negative effects of this disorder is the ongoing dissolution of the family, which is at the core of social order.
  6. Some LGBT activists like Andrew Sullivan, and their allies, have argued that legalizing same-sex marriage would stabilize gay life, and lead it to conform to broader traditional social norms.
  7. Opponents (like me) have argued that normalizing same-sex marriage would erase the philosophical grounding for marriage by seeing it as having no intrinsic meaning connected to our biology.
    1. We have also argued that this is what the Sexual Revolution did long before gays began getting active on behalf of same-sex marriage. Gay marriage in specific, and normalizing homosexuality in general, solidifies trends that have long existed.
    2. We lost this battle both legally and culturally.
  8. Andrew argues that the higher rates of homosexuality and transgenderism today is because people no longer feel the shame they used to about these desires, and feel comfortable expressing them. I think this is obviously true.
  9. I think it is also obviously true that at least some of these people would have married and lived conventional heterosexual lives, and been satisfied in them. Why? Because the same-sex desire within them wasn’t as strong as it was in others, and they could manage it, or grow past it.
  10. On the other hand, the kind of society that gave them the psychological support for embracing exclusively heterosexual expression of their sexuality would also cause more suffering for those whose sexual desire is more strongly same-sex oriented.
  11. Can we have a society in which heterosexuality is considered normative, but homosexuality is tolerated, and gays and lesbians treated with respect, dignity, and love? I think it is possible in theory, but it seems to be utopian.
  12.  In the New Yorker profile of me [2], the writer said:

Like many orthodox Christian intellectuals, Dreher holds labyrinthine views on homosexuality. He is opposed to same-sex marriage but in favor of civil unions. In principle, he is against gay adoption, but in practice, he told me, “there are so many gay couples who are wonderful parents that I find it hard to maintain any ardor for stopping it.” Early in our correspondence, he referred me to an essay called “The Civic Project of American Christianity,” by Michael Hanby, a Catholic philosopher. The essay represents same-sex marriage not as a rights issue but as part of an ongoing, technology-driven revolution in our view of personhood. Hanby argues that, where we used to see human beings as possessing intrinsic properties—masculinity, femininity, the ability to glorify God through procreation—we now take a nominalist view of ourselves, seeing our bodies as subservient to our minds. We use technology, such as the birth-control pill, to subvert the natural way of things. Gay marriage, in this account, is a stepping-stone to a profoundly technologized society in which “the rejection of nature” is complete. Today, it’s sex-reassignment surgery and surrogacy; tomorrow, we’ll be genetically engineering our way into a post-human future.

The point of the essay is that there’s an irreducible conflict between orthodox Christianity and political liberalism. On his blog, Dreher acknowledges that “gays, understandably, find their personal dignity insulted by people who believe that their sexuality is in any way deficient.” He writes that gay couples can “genuinely, deeply, and sacrificially love each other.” Still, he maintains, “our bodies have intrinsic moral meaning. Christian orthodoxy is not nominalist.” He regularly defends religious people who act illiberally “for conscience reasons”—Orthodox Jews, traditionalist Muslims, the florist Baronelle Stutzman, who was sued when she refused to provide flowers for a gay wedding.

More:

Sullivan has a long-standing disagreement with Dreher over same-sex marriage, but he believes that the religiously devout should be permitted their dissent. “There is simply no way for an orthodox Catholic to embrace same-sex marriage,” he said. “The attempt to conflate that with homophobia is a sign of the unthinking nature of some liberal responses to religion. I really don’t think that florists who don’t want to contaminate themselves with a gay wedding should in any way be compelled to do so. I think any gay person that wants them to do that is being an asshole, to be honest—an intolerant asshole. Rod forces you to understand what real pluralism is: actually accepting people with completely different world views than your own.”

14. I would invite Andrew to reflect on his statement that there is no way that an orthodox Catholic (or Orthodox Christian, as I am, or Biblically orthodox Protestants) can accept same-sex marriage. The reason is because as Christians, we cannot accept that homosexual desire is morally neutral. (Nor, I hasten to add, can we accept that heterosexual expression outside of marriage is morally neutral.) How could we possibly be expected to believe that a society that de-stigmatizes same-sex desire in every way is a moral good? It makes no sense. So — and this the unbridgeable gap part — it all comes down to how you answer this question: What is sex for? 

Not, “what is gay sex for?” or “what is straight sex for?” but “what is sex for?” The Bible, and the teaching of the Church, has a clear answer to that. It is not the modern answer.

15. The reason we cannot agree on what sex is for is that we don’t agree on the answer to the question, “What is a human being for?” Meaning, “What is our purpose in life?” Is it to live in harmony with God’s will? Is it to fulfill our desires? Is it something else? Again: traditional Christianity has clear and consistent answers to these questions — and they are not the modern answers.

16. I have said it many times before, and I’ll say it again: I am glad the closet is gone, and would not want to see it return. I would like to live in a society that leaves gay people alone to live as they like. It is fair, though, for people like Andrew to ask how, exactly, I propose to privilege heterosexuality without in some form re-instituting the closet. I don’t have a satisfying answer to that question.

17. But here’s the question I would put to Andrew and his supporters. This week, a jury found Michelle Carter criminally liable [3]in the death of her boyfriend, a suicide whom she had urged via repeated text messages to kill himself. I don’t feel sorry for Carter, who is manifestly a hateful person. But this is a dangerous legal precedent. Will orthodox Christian parents, clergy, counselors, and others who affirm traditional Christian teaching about homosexuality be criminally charged in the future if LGBT people commit suicide and leave a note behind blaming them? How far would gay rights supporters go in tolerating religious believers who express negative views on homosexuality? Is it possible to tolerate the expression of belief and behavior that gays and their allies believe is immoral, and doing damage to others? Or should orthodox Christian (and Jewish, and Muslim) belief regarding homosexuality be stigmatized socially for the sake of increasing social virtue, and bringing about a better society? If so, well, aren’t you saying that Christians (Muslims, Jews) should go into the closet with their beliefs?

LGBTs and their allies may believe that this is something that ought to be done for the greater good of society. But they should also accept that they are doing to us exactly what they accuse Christians like me of trying to do to them.

18. All of which is to arrive at the depressing conclusion that one way or the other, there’s going to be a closet. It’s already there for many orthodox Christians who work in academia and other professional circles, and it will expand. A lot of Christian kids will grow up feeling immense pressure to leave the faith or in some sense to be unfaithful to orthodox Christianity because of all the stigma heaped upon it over sexuality. Many of those who don’t will feel shame over their faith, and keep it to themselves, or within safe enclaves. This will be seen by those driving them into the closet as something that needs to be done for the greater good of society. What you refuse to tolerate, you discourage — and who doesn’t want to discourage bigotry, right?

198 Comments (Open | Close)

198 Comments To "Alas, All Societies Have Closets"

#1 Comment By redfish On June 20, 2017 @ 2:03 pm

So — and this the unbridgeable gap part — it all comes down to how you answer this question: What is sex for?

Not, “what is gay sex for?” or “what is straight sex for?” but “what is sex for?” The Bible, and the teaching of the Church, has a clear answer to that. It is not the modern answer.

15. The reason we cannot agree on what sex is for is that we don’t agree on the answer to the question, “What is a human being for?” Meaning, “What is our purpose in life?” Is it to live in harmony with God’s will? Is it to fulfill our desires? Is it something else? Again: traditional Christianity has clear and consistent answers to these questions — and they are not the modern answers.

In any case, I’d point out that there’s a bridge somewhere between these two points of view. Stoics, for instance, would have not used religious arguments, but would have pointed out that people have some measure of control over their own happiness, and the idea that fulfilling your desires is what makes you happy is an illusion. They would have argued that the hedonistic approach to life is foolish, and vicious.

Pierre Gassendi, a philosopher and Catholic priest at one time, in his time tried to revive Epicureanism and reconcile it with Christian thinking. He was also influenced by Stoicism, and his amendment to the Epicurean school was introducing the notion of “General Ideas”, such as Beauty, Truth, Justice, and included God. The argument was that a belief in these [God included] was also a necessary component to human happiness, and that the absense of this understanding from the original Epicurean philosophy is what crippled it.

“What is sex for?” Maybe innately nothing. From a perspective of human happiness, its not necessary to have sex. From a religious perspective, there are ways to be holy and be in harmony with God’s will without it (consecrated celibacy). But there may be ways to practice it in your life that have a good end, and ways that don’t.

This could lead even an atheist, irreligious gay man to decide to be celibate, out of the belief that its the best way to live his life.

Whether our culture should impose that point of view is a different question, and I don’t believe it should. Though one of the troubling aspects of the current debate is that kind of viewpoint is almost a thought crime, because its out of the boundaries of normal debate. Apparently, one has to either be a hedonist or religiously pious.

#2 Comment By Turmarion On June 20, 2017 @ 4:45 pm

Hound of Ulster: Augustine is also the only Church Father (other than Tertullian and Origen, who fell into heresy and never recanted) to have substantial parts of his works condemned by the Eastern Churches.

Actually, Origen was never condemned during his lifetime, so there was no question of recanting. As to the later charges leveled against him, the tendency among modern scholars is to view them as spurious. A good article on the ins and outs of this, by David Bentley Hart, is [4]

Randy McDonald: Note, please, that this document allows for the possibility that even celibate homosexuals following Church doctrine could be subject to discrimination, and does not seem to think that any recourse should be allowed for them.

[5] has happened, unfortunately.

#3 Comment By Loudon is a Fool On June 20, 2017 @ 5:08 pm

@Geoff
A church that condemned conspicuous consumption, mcmansions, and the pursuit of personal wealth at the expense of the community just as strongly as homosexual acts might be easier to understand as coming from a position of Christian orthodoxy, rather than simple prejudice.

That’s probably not an entirely fair comparison. I’ll grant you that if you’re a “Hey, we’re all sinners” type of Christian and contraception, divorce, heterosexual sodomy and the occasional visit to the strip club are all are a-ok, but gheys are icky; there’s a lot of hypocrisy going on. But for other Christians homosexual activity in the context of an orientation (particularly in a culture where sexual self-expression is viewed as an essential human characteristic) is problematic in a way unlike most sins because it’s presented as a sin for which repentance is either impossible or cruel. In this way it’s most similar to the divorced and remarried problem in the Catholic Church. Every sexual act is adultery for the divorced and remarried (assuming there’s no annulment) so it’s not really like just any other sin (because the parties to the union have basically said “Sorry Church, we’re just going to sin; deal”). A super-rich fatty with a Benz might have a glandular problem and be completely detached from his wealth. So even that hypothetical is substantially different from a relationship which of its nature announces publicly to the Church that the parties reject the moral law (or, really, more accurately, the parties are calling on the Church to acknowledge the moral law is different from what the Church says it is).

#4 Comment By Randy McDonald On June 20, 2017 @ 7:18 pm

Martha Dogood says:

“At the same time, this conference of Christian leaders, along with their like minded Jewish and Muslim leaders, could have all agreed to protect the institution, while acknowledging that homosexuals had a right to their own institution of “civil union” and there would be no room for bigotry or any form of discrimination of people in civil unions.”

The problem, alas, is that they wanted to retain the right to be bigoted, and to discriminate against, people who are not heterosexual and who are in same-sex relationships. The Roman Catholic Church, for instance, has specifically said that even non-heterosexuals who are celibate and who behave in conformity with Church doctrine should not be protected against discrimination! Why would these denominations give up the right to do something they think they should be able to.

“I also believe in never persecuting anyone with a psychological disorder”

You do not believe in discriminating against people who are ill. What _do_ you think should be done with them? What do you think that people like me would think of those options?

“Why can’t this same principal apply to the religious beliefs around marriage?”

For starters, marriage is not a religious rite, not in the United States, but is rather a civil rite. Civil marriage, conducted without the involvement of any church, has existed for quite some time. If you insist it must be religious, well, what about all the religions which do include same-sex marriage as a licit act?

Rod, this is exactly the sort of thing that makes people concerned about the civil and human righs of non-heterosexual people see dogwhistles. If heterosexuality is to be privileged, how can it be given this status save through making our lives and our loves and our families that much more difficult?

#5 Comment By OMM 0910 On June 20, 2017 @ 7:43 pm

@LFM

BTW, as I often point out here (getting nothing but crickets in response), there is no reason at suppose that anti-gay-male bigotry is purely or even mostly religious in origin.

[6]
January 12, 2013 / JayMan

[7]. However, even if we find an explanation for homosexuality, there is one other thing we need to explain: homophobia. Homophobia (which is poorly named) – aversion and hatred of gays – is [8] (like [9]) – indeed, significantly so (50%, as with most behavioral traits). Interestingly, and ironically, it appears to be far more heritable than homosexuality itself!

#6 Comment By Siarlys Jenkins On June 20, 2017 @ 8:30 pm

Turmarion’s link is helpful, and the article well written, although the subsequent comments are banal and petty. There is, can be, should be, a distinction between “I feel an urge” and “I act on that urge.” No church can with integrity fire people for boldly saying, this is how I feel, and I can adhere to church teachings and urge others to do so.

Asking what sex if FOR anthropomorphizes a biological process. Sex isn’t FOR anything. It exists because of what sexual dimorphism has done for biological diversity and survival of the species. Then there is, what do we humans, who have been made little less than God, do with what we have to work with.

I have no problem whatsoever “tolerating” your views. Preach on the immorality of homosexuality till you’re blue, I’m a grown man who personally couldn’t care less what you believe, I recognize it is both your right and obligation speak your Truth

If only the generators of LGBTQWERTY political line (as distinct from people who just want to live their life) were so sensible and grown up.

What I absolutely won’t “tolerate” is your ruining the BBQ or the wedding or the trip to the coffee shop because you can’t be basically decent to others…

I’ll buy that too… except don’t shed tears because someone who sincerely believes they can’t cater the wedding honestly tells you so.

#7 Comment By Martha Dogood On June 20, 2017 @ 10:25 pm

Randy McDonald:

I’m afraid you are missing my point. I do think heterosexuals, about 99% of the population, ought to have a right to keep their institution of marriage if they wish through religious churches that recognize this as only between a man and woman.

That does not contradict my belief that all homosexuals ought to absolutely have their right to civil unions. If they wanted they could even come up with a new name for their institution, maybe “gay union” as an example. Any term other than “marriage.” I don’t see why the institution of marriage ought to be hijacked by 1% of the population.

I believe homosexuals should have same rights and protections under the law as any human. I don’t think heterosexuals are better humans than homosexuals, we are all imperfect. I simply believe in the golden rule where all humans must be treated with dignity and respect, no matter sex, race, religion, political opinions, etc.

This view is not inconsistent with my wish to keep the institution of marriage protected by churches as between a man and woman. It’s sad to me that most of the Protestant main line churches did not protect this time honored over human history and sacred institution.

Yet I realize the horse left that barn a while ago. In the meanwhile I have my right to believe in the sanctity of heterosexual marriage.

#8 Comment By Joe Beavers On June 20, 2017 @ 11:33 pm

My Dad taught me that “God does not judge you for what other people do”. Makes all these problems easy to solve.

#9 Comment By Erin M On June 21, 2017 @ 1:56 am

I do think heterosexuals, about 99% of the population, ought to have a right to keep their institution of marriage if they wish through religious churches that recognize this as only between a man and woman.

Each church can and does decide for itself whether it condones and will officiate same-sex marriages. That is as it should be, and just because your church chooses not to, doesn’t mean some other church can’t or won’t.

However, the second marriage became a goverment-sanctioned legal process, it became a whole different ballgame, about which churches have no say. And there just isn’t any legal basis for restricting marriage based on sexual orientation – which is why the legal challenges were so successful. Personally, I think that government should get out of the marriage business. All of the government paperwork stuff should be called civil unions, and the word “marriage” should be left for the religious or social rites. Solves all manner of problems.

Not that it matters to the argument, but the % of the population that self-identifies as gay in surveys (probably an under-representation of the actual number) is around 4%, not 1%. 1 in 25 is a lot more than 1 in 100. [10]

#10 Comment By Bernie On June 21, 2017 @ 5:35 am

Hound of Ulster and Turmarion,

This brief clip is a fascinating commentary on Origen:

[11]

#11 Comment By Aussie Kiwi On June 21, 2017 @ 6:55 am

“I’ll buy that too… except don’t shed tears because someone who sincerely believes they can’t cater the wedding honestly tells you so.”

Siarlys, I have a few questions for you. Do you think the nature of what is being sold makes a difference? Let me ask you for your thoughts on three scenarios:

1) There is already a baked wedding cake in the shop. A gay couple walks in, sees that wedding cake, and would like to reserve it for their wedding. Does the baker have a right to not sell, or would your answer be that it’s already baked and involves no custom expression?

2) The baker (as most bakers do) have a ready-made catalogue of wedding cakes that have already been pre-designed. The gay couple walks in, looks at the catalogue, and says, “I want Cake Design No. 4”. Can the baker refuse service even if the cake has already been pre-designed, simply because now it will be used at a gay wedding as opposed to a straight wedding?

3) The gay couple walks in and has a dream design for a wedding cake. The baker realizes this is for a gay wedding and says they don’t do custom gay wedding cakes (although they do custom straight wedding cakes), although the gay couple is free to choose a cake that is already made or already available from an existing design.

I’m trying to understand which comes closest to your (or some of the other posters’) position because some of the Christian bakers rejected selling a wedding cake even when it wasn’t custom-made. No wedding cakes, period. Personally, I do not think that courts or the vast majority of Americans will ever accept Scenario (1) or (2). A cake that is already made, already pre-designed doesn’t convey any inherent particularized message like “I support gay weddings”

Cheers.

#12 Comment By BlairBurton On June 21, 2017 @ 7:47 am

I often wonder what those, like Rod at one time at least, who say that they are “for” civil unions for same sex couples, but against marriages for the same, mean. How would such a civil union differ from a marriage? Would those same sex couples united in a civil union lack certain legal rights, like inheritance rights, or health care proxy rights, that those heterosexual couples who are married enjoy? Is it just the word “marriage” that the heterosexual couples could claim and the homosexual couples couldn’t? We already have the 1st amendment that allows religions to make their own marriage rules. Just how would a civil union differ from a civil marriage? Seems to me it’s just possession of a word, or at least that’s how those who support only civil unions for gays would have it.

#13 Comment By Liam On June 21, 2017 @ 1:07 pm

“Not that it matters to the argument, but the % of the population that self-identifies as gay in surveys (probably an under-representation of the actual number) is around 4%, not 1%. 1 in 25 is a lot more than 1 in 100. [10]

I would add a note: focusing on relative numbers without consideration of absolute number can mislead. A small percentage of a very large number can itself be a quite large number. So, for example, 4% of the current estimated population of the USA is just shy of 13 million – which is more than the population of all but the five most populated US states.

#14 Comment By Siarlys Jenkins On June 21, 2017 @ 3:33 pm

Aussie Kiwi, you must be new here. I’ve covered that ground several times. But I don’t mind one more round, if our gracious host doesn’t mind.

If someone walks in off the street and purchases a product off the shelf, then walks out the door with it, it is none of the proprietor’s business what they are doing with it. (There are some statutory exceptions, like selling alcohol to someone who is drunk and has a car parked outside subjecting the bar to criminal or civil action… but that doesn’t apply here.)

The only basis for refusing service is when the very nature of the service itself constitutes compelled speech or expression. When you are being hired to create a message, celebrate a ceremony, favorably record for posterity “the happiest day of our lives,” when words are essentially being put in one’s own mouth, one may refuse.

Even from Australia, you can look up on the internet a U.S. Supreme Court case on this, Hurley v. South Boston Gays and Lesbians. Basically some gay Irish Americans wanted to enter a gay themed float in the St. Patrick’s Day parade. They sued under a Massachusetts public accommodations law. The Supreme Court ruled that a public accommodations law may not be employed to force the organizers of a parade to include a message they don’t want included.

As I almost always say when discussing this, the GLIB should have reorganized as the “Sir Roger Casement Memorial Marching Society” and entered the parade playing “Banna Strand.” Because any reader of Irish history knows that Casement’s prosecution for treason was tainted by insinuations about his homosexuality.

One problem with a “gay-themed” float is that about the only thing that makes gays different is their sexual preferences. So if you want a “gay themed” float it almost has to be sexually explicit. Or its not gay, just a bunch of perfectly normal looking people sitting on a float just like all the rest of us would.

But back to the wedding. If someone running a florist shop is Roman Catholic, or Orthodox, or Southern Baptist, and a man comes in to order 50 standard bunches of flowers for pick-up in three days, he must be served. On the other hand, if he says, I’m Brian, me and Steve are getting married next week. I’d like you to design a set of custom arrangements with inscriptions celebrating our union and use flowers with suggestive phallic symbolism…” the florist may well say, sorry, I’m not going to create that.

The distinction is not all that some “religious traditionalists” would like, and it is more than some LGBTQWERTY whining narcissists want to accept, but it does have the virtue of being a narrow exception based on well-developed jurisprudence, which really allows all of us to live our lives as we choose, and not have to cater to the sincere scruples of our fellow citizens who see things a bit differently.

And it does make a lot of difference whether a cake is ordered with an explicit message frosted on it, or not. But even, Steve and Brad want you to bake a cake for our wedding might cross the line. No, now you are making me a participant in celebrating the event.

And there just isn’t any legal basis for restricting marriage based on sexual orientation – which is why the legal challenges were so successful.

There is, but the legal teams weren’t consulting me. Its not a matter of “restricting marriage based on sexual orientation.” Its a matter of defining what marriage IS before even considering whether anyone has been excluded. In fact, nobody has been excluded. Marriage customs evolved entirely around the objective biological relation of male to female. Some males and some females simply don’t want to be part of it. But there is also no constitutional reason a legislature can’t vote to license, regulate, and tax same-sex couples, or issue them marriage licenses, so going forward the absence of a mandate may be a moot point.

#15 Comment By Ken Zaretzke On June 21, 2017 @ 4:05 pm

JonF [June 19],

When you note that procreation (bearing children often occurs outside marriage, you ignore the fact it’s no less true that children can be successfully raised outside marriage–it’s just that this is less likely than within marriage. So child raising does not specifically define marriage. Marriage and childbearing go together roughly the way family and child raising do. Childbearing (procreation) goes more to the heart of what marriage is, as opposed to child raising, which goes to the heart of what the family is.

I interpret your comment as suggesting that care is the key idea in marriage. On the one hand, you emphasize the importance of child raising as opposed to childbearing; on the other hand, child raising has everything to do with care, and childbearing has little or nothing to do with it. You’re right to assume (as you appear to do) that if care is the criterion of marriage rather than procreation or commitment, then childbearing is something to be ignored or marginalized, and child raising is the whole story.

I think that confuses marriage with family. They are separate concepts. The marriage-is-care people have it all wrong. The most one can say is that marriage *includes* care. Care can’t compete with commitment, much less with procreation, as the main or sole criterion of marriage.

#16 Comment By Ken Zaretzke On June 21, 2017 @ 4:07 pm

… procreation (bearing children) often occurs…

Forgot the closed parenthesis.

#17 Comment By grumpy realist On June 21, 2017 @ 5:33 pm

The reason the government is involved in marriage is because there’s a whole bundle of property rights and privileges tied up with them. (The privilege of privacy of communication between spouses. The privilege of not being forced to testify against one’s spouse.)

Anyone who thinks that marriage can be substituted for by a contract a) doesn’t understand contracts and b) doesn’t understand law, period.

#18 Comment By Tom On June 21, 2017 @ 7:16 pm

“But even, Steve and Brad want you to bake a cake for our wedding might cross the line. No, now you are making me a participant in celebrating the event.”

This has got to be one of the silliest things I’ve ever heard anyone say. Apparently, Siarlys Jenkins thinks that when he buys a birthday cake for his son from the baker, his baker is “participating in” or “celebrating” his son’s birthday too. Take my word for it. No one thinks their bakers are part of any birthday celebrations (oh wait, maybe some Christian bakers do?)

#19 Comment By Giuseppe Scalas On June 21, 2017 @ 7:46 pm

James Rogers

This, one thousand times. The hypocrisy of county clerks, bakers, florists, etc. citing their
“sincerely held religious beliefs” for refusing service to gay couples while gladly participating in second or third or fourth marriage ceremonies is hilarious.

The difference is that divorce is “just” a sin. Gay marriage is both a sin and the totalitarian shoving down people’s throat of something that doesn’t exist (Siarlys would say “a legal fiction”, but this is not how SSM is construed in the current political and legal context)

#20 Comment By Siarlys Jenkins On June 21, 2017 @ 9:53 pm

Anyone who thinks that marriage can be substituted for by a contract a) doesn’t understand contracts and b) doesn’t understand law, period.

I know something about both, and you overstate your case. It is true that an individual contract between two parties can be subjected to refusals or objections by all kinds of third parties which effectively nullifies it. But it is also true that legislation to, e.g., establish the validity and enforceability of living wills and medical powers of attorney have made those documents almost universally enforceable.

There are many ways to provide that any two or more persons wishing to share property in common, name each other as medical power of attorney, etc. etc. etc. may do so and there will be terrible penalties for ignoring them. Or laws can establish civil unions. It takes some relaxed good will, which is in short supply all around.

One of the most amusing developments in this field was when some cities or states provided for “domestic partnerships.” Some gay couples took advantage of this, but so did a lot of unmarried heterosexual couples. It was kind of “We don’t need no piece of paper from the city hall…” but, we do want to be on each other’s employer-paid health insurance. For God’s sake, marry, or don’t. But don’t dance around saying we don’t want to marry but we want all the benefits of being married, but none of the liabilities.

#21 Comment By DEC01 On June 21, 2017 @ 10:39 pm

Siarlys-

“If only the generators of LGBTQWERTY political line (as distinct from people who just want to live their life) were so sensible and grown up.”

Indeed, and I hope you dont mind if I ask you another question about the legal merits of an argument. I have been seeing on LGBTQWERTY activist blogs the following claims, that all Abrahamic faiths are all the same with respect to homosexuality and all command the murder of LGBTQWERTY people. So, in a nutshell, there is no difference between a devout Southern Baptist and a devout islamic jihadi. They further argue that merely speaking about the immorality/sinfulness of LGBTQWERTY expression already is a criminal act because it directly incites violence. The argument is that saying gay sex is wrong simply references the part in Leviticus that they claim commands people to murder LGBTQWERTY people. So even someone has not literally said “go kill those gay people” the reference to “go kill those gay people” is already there. Hence, incitement to violence, which I understand is already a crime.

I think that general position, that saying gay sex is wrong constitutes criminal incitement to violence is pretty common among those pushing the LGBTQWERTY political line. It may not be mainstream, but it is not extreme in their ranks. Heck, it is not far off from the reasons mainstream media outlets blamed Christians for the Pulse massacre. It also has far more dire implications than most of the concerns brought up here that may befall small-o Christians.

Anyway, I dont think I need to ask why its a bad argument and why it succeeding in court is impossible based on Constitutional jurisprudence. I am not sure any of that really matters. I am curious if you have come across it in some form and how concerned are you by it. I doubt our LGBTQWERTY political activist friends are going to drop it. They really have convinced themselves Christians will murder them all if they ever have the chance.

#22 Comment By JonF On June 22, 2017 @ 6:39 am

grumpy realist,

Usually when people say “get the government out of marriage” what they intend is that the government should recognize only civil unions, which would come with the whole bundle of property rights, privileges etc. that marriage does. Marriage however (as in “holy matrimony”) would be left to churches.

#23 Comment By JonF On June 22, 2017 @ 6:53 am

Re: When you note that procreation (bearing children often occurs outside marriage, you ignore the fact it’s no less true that children can be successfully raised outside marriage

True, and I was raised for four years by just my father after my mother died and before he remarried.
But as a general rule it is easier, indeed vastly easier in most cases, to raise a child when there are two parents involved rather than just one. Nothing of the sort is true about procreation: it is not easier to conceive when one is married than when one is not.
Marriage is not for the creation of children, which takes only a few minutes after all. It is (among several purposes) for the rearing of children, a process that takes years and requires a long term bond.

Re: You’re right to assume (as you appear to do) that if care is the criterion of marriage rather than procreation or commitment, then childbearing is something to be ignored or marginalized, and child raising is the whole story.

Well, I would say rather we should deemphasize concerns about the sex act, about which our culture is altogether too obsessed in multiple ways, and put much more emphasis on children, where we often fall short.

Re: I think that confuses marriage with family. They are separate concepts.

Marriage IS (72 pt red font on that “is”) about family. You cannot alienate them from each other.

Re: Care can’t compete with commitment

??? This is just weird. Commitment in the case of marriage, IS (again, 72 pt red font) a commitment to care! For one’s spouse, for any children that may result, and more distantly for one’s spouse’s kin who become one’s own through marriage. Though I would agree that lacking commitment to such care and kinship a marriage is a sham.
Reducing marriage to some sort of license for the sex act is a huge mistake, stripping it of everything vital and alive. If that is the essence of the SoCon argument then no wonder (and thank God) that it has failed. You cheapen marriage more than Elizabeth Taylor ever did.

#24 Comment By Siarlys Jenkins On June 22, 2017 @ 12:18 pm

Apparently, Siarlys Jenkins thinks that when he buys a birthday cake for his son from the baker, his baker is “participating in” or “celebrating” his son’s birthday too.

Apparently Tom hasn’t read a single thing I’ve written except for one line from which he could generate a giant straw man to vent his fury on, since he can’t refute the substance of my argument. He also clearly hasn’t read any actual jurisprudence, not even the specific cases I refer to here so often Rod is probably getting sick of seeing the case cited so often.

Buying a cake off the shelf is not expression. Decorating a cake with a specific message is. It is a rare custom ordered wedding cake that doesn’t have a message on it. As for birthday cakes, if the baker belongs to a religion that thinks bringing children into the world is per se sinful, and celebrating birthdays aids and abets that sin, maybe we’d have something to talk about. Otherwise, “Happy Birthday 9 year old” is about as generic as it gets.

#25 Comment By Franklin Evans On June 22, 2017 @ 12:23 pm

Jon: Marriage IS (72 pt red font on that “is”) about family. You cannot alienate them from each other.

Behind your emphatic expression is a sincere question of logic: the notion of marriage then family (as I see others proclaiming, not implying that you are doing so as well) seems to falter on the entire concept and application of common-law marriage.

I take that to at least imply that if it walks like a marriage, talks like a marriage and presents itself to the community as a marriage, does calling it a “civil union” have any relevance in this entire debate?

In a chicken-egg debate, I settle firmly on family being first. Marriage happens out of the family structure, not as a prerequisite for it. The religio-moral veneer in my never humble opinion amounts to spitting in the wind.

Just a thought, my friend.

#26 Comment By Martha Dogood On June 22, 2017 @ 12:32 pm

JonF:

Re: Care can’t compete with commitment

??? This is just weird. Commitment in the case of marriage, IS (again, 72 pt red font) a commitment to care! For one’s spouse, for any children that may result, and more distantly for one’s spouse’s kin who become one’s own through marriage. Though I would agree that lacking commitment to such care and kinship a marriage is a sham.

Reducing marriage to some sort of license for the sex act is a huge mistake, stripping it of everything vital and alive. If that is the essence of the SoCon argument then no wonder (and thank God) that it has failed. You cheapen marriage more than Elizabeth Taylor ever did.”

Hear, hear! Someone finally defining some core principals of what marriage is! Well said!

My question still holds, why don’t Christians, both orthodox and main line, consider taking a last stand to reclaim Holy Matrimony and Marriage? I still fail to understand why everyone ran to the hills on this? If we don’t fight to protect our core values and beliefs than what is the point of our lives?

Anyone can become a robot and walk lock step to what the current Government of any nation demands. Yet USA was founded on this very principal of “I have a right to believe what I want to believe, so does the other side.” Our bedrooms and homes are not to be controlled by the State.

As for person who says homosexuals are 4%, I think you can find studies that show anywhere from 1% to 4%, statistics are so dependent on the data pools and the questions.

Bottom line: homosexuals are small percentage of population and taking inordinately too much power and excersising too much persecution of Christians.

It’s time to clarify this for them: please be free to do as you wish in your homes and bedrooms. I doubt any of us want to know anything about our neighbors sex acts, whether homosexual, bisexual, or heterosexual. It’s been that way forever, let’s keep it that way.

The very basis of US Constitutional law can and does support this protection of the home.

As others here have pointed out, you can have government recognize and protect BOTH civil unions and marriages. This was how it was originally thought this problem could be solved. Then the main line Protestants buckled and decided not to fight to protect the institution of marriage, of Holy Matrimony, between man and woman.

I submit it’s not too late to take a stand if enough leaders proposed the right and fair policy. To be clear, I am suggesting government would need to state that there is a recognition that marriage is only those unions between one man and one woman.

I realize that is highly controversial and many would say it’s too late “we already lost.” I never agree to “lose” a fight I believe is still worth fighting for today.

Our government, founded mostly by Christians of multiple diverse denominations, did implement policies and laws with the notion of supporting certain Western and especially Enlightenment philosophies to governance. It’s a slippery slope when we agree to walk away from our original standards for rules of our society.

Why are so many of us deciding to throw in the towel here? Wouldn’t our God, for whatever Christian denomination you belong to, most likely not like to see any of us abandon the fight to preserve and protect our form of government including incentives for wholesome living and support of traditional family structures? Once we fully capitulate, what is next? Any one can marry anything? Anyone, any group, can raise any number of children? Drug addiction is fine, just another way to live your life?

Contracts and commitments then don’t really matter, more and more breakdown in civility results. Ultimately the US Constitution doesn’t really matter either. That is the logical conclusion when society stops protecting its core values. This could be the ultimate result after decades of capitulation to moral ambiguity.

I think Christians lost ground for three main reasons, yet there is still time to right the ship: 1) we focused too much on abortion and not on the macro issue of tradional family values (which includes pro-life), 2) fragmentation across denominations, not eneough Judeo-Christian cooperation, and inability to define agreed to public government policies on traditional family incentives, 3) gave up way too quickly on the homosexual challenge instead of offering them a clear alternative to be safe, protected and not discriminated against (civil union for them, not marriage, and zero tolerance on discrimination).

There’s still time for a last stand on this. It’s never too late.

#27 Comment By Siarlys Jenkins On June 22, 2017 @ 1:13 pm

DEC01’s question is a tangled mess, like many interesting legal questions.

Many people born since about 1970 or so have a visceral notion that civil rights laws make everything fair and proper, and nothing is exempt. Actually, the civil rights laws regulate certain aspects of civil government and commerce, both well within constitutional jurisdiction, make several common sense exceptions, and do not claim jurisdiction over other areas of life, where the government has no jurisdiction.

It is a goal of many of the louder mouths in the LGBTQWERTY drive to leave no slightest doubt about the propriety of their favorite indulgence standing. There was the man in Massachusetts who said he was going to ask the Baptist church to host his wedding, then sue the pants off them when they refused. He had not read the actual text of the Goodridge decision, which stated several times that the court was talking only about civil marriage. It had, and knew it had, no jurisdiction over matters of religious doctrine.

The fact is, the First Amendment pretty well puts religion outside the scope of government regulation. There have been some interesting court cases where state law required a court, in hearing a church property dispute, to reach a finding of fact about what a given church’s “true doctrine” is, and which party adhered more rigorously to that doctrine. The Supreme Court threw that out, saying government has no jurisdiction to inquire into or rule upon what any denomination’s doctrine is or is not. In church property disputes, a given denomination’s highest judicatory body’s ruling is binding upon the courts, and must be enforced.

It is true that religious doctrine does not exempt anyone from a viewpoint-neutral law of general application. So, if your faith calls for individuals to be stoned to death for some offense, “religious liberty” does not exempt you from prosecution for murder.

I suspect the most intensely narcissistic of the LGBTQWERTY crowd are trying to construe the law in such a manner that ANY religious belief which in any way questions same-sex relations is ipso facto in violation of what might facially be described as a “law of general application.” That’s a stretch, to anyone familiar with existing jurisprudence. But, in any adversarial legal system, a lawyer’s job is to construe any available law in a manner that gets their client the outcome the client desires. It is the job of judges to look at these self-interested briefs with a jaundiced eye and sort out which arguments have actual merit.

Saying that gay sex is morally disordered is not ipso facto incitement to violence, any more than saying that consuming raw oysters or drinking wine or allowing dogs in the house is morally disordered. Reading a book that contains scriptural prescriptions of death for various offenses is not, per se, incitement to violence either. Advocating that someone should ACT on those prescriptions IS incitement to violence.

While I believe that Obergefell will someday be overturned, for the same reason that Bowers v. Hardwick was overturned — both were wrongly decided — I am equally firm that the actual or suspected or purported homosexuality of any person is no excuse to deny them the basic rights of all citizens. They cook, eat, mow the lawn, do their laundry, work at any job for which they are qualified, keep gardens, shop for groceries, just like all the rest of us. Its where they are in fact different that they might be legally treated differently.

The argument that we should treat different things as if they were alike is akin to revisiting the civil rights laws to state ‘Even though Negroes really are cognitively challenged, rude, infantile, lazy, incompetent, still, we will provide by law that we must treat them as if it were not so.’ That of course would have been taken as a gross insult by people of African descent, and rightly so.

The point of civil rights is that each individual be treated as a unique individual, not according to the purported characteristics of some artificial group category.

#28 Comment By Ken Zaretzke On June 22, 2017 @ 4:21 pm

“Re: Care can’t compete with commitment

??? This is just weird. Commitment in the case of marriage, IS (again, 72 pt red font) a commitment to care”

…can’t compete with commitment **as a criterion of marriage**. In the first paragraph of my first comment I said care is part of marriage, as I say commitment is. That’s not the point. The point is, Would care or commitment have been adequate preconditions for marriage to have arisen in the first place? No. People would have just cohabited. What brought about marriage is the general fact of procreation. If humans reproduced asexually, there would be no need for an institution of marriage.

“Marriage IS (72 pt red font on that “is”) about family. You cannot alienate them from each other.”

I wouldn’t think of denying it. But they are obviously separate concepts, which invites us to analyze them independently of each other.

“Reducing marriage to some sort of license for the sex act is a huge mistake, stripping it of everything vital and alive.”

So you’re an anti-amatonormativist like Elizabeth Brake? She defends the marriage-is-care idea in *Minimizing Marriage*. The second half of that book (published by the most prestigious academic press in the world) is very radical. With the idea of care as the intellectual lever, she makes clear how marriage can be expanded to include groups and even people who never intend to have sex with each other.

The proponents of SSM will eventually give up on commitment as the key to the meaning of marriage. Care is the only available thing that can replace commitment. (For liberals, that is. For conservatives, procreation is the true criterion of marriage.)

And now a political prophesy, if I may. When marriage-is-care comes to predominate among liberals, the majority of independents will be peeled off from the Democratic Party for years to come. The Democratic Party will face widespread political defeat because of liberalism’s present inability to refute someone like Elizabeth Brake. The Democratic Party will survive mainly because of the media and the universities, which will culturally preserve it until the time comes when liberal neutralism (including Brake’s beloved “public reason”) is a thing of the past.

#29 Comment By BadReligion On June 22, 2017 @ 11:02 pm

Stephen cooper:

I’m not sure what all of that had to do with anything, but in any case, why do you assume that being born is so great? One hasn’t lost anything by never being born, unlike, say, all the people in Yemen today who were killed with your tax dollars. Those folks lost their hopes and dreams, their desires to go on living, and all the rest. The situation there is absolutely dire, and it’s not very pro-life of our legislators and Executive Branch members to continue to support the Saudi-led onslaught, now is it?
(That’s just one example!)

Also, *in your very own comment*, you characterize the “souls” of the aborted as now being angels in heaven. They thus got there automatically, instantly, guaranteed, with no possibility at all of their salvation being jeopardized. That sounds like a sweet deal to me.

#30 Comment By garymar61 On June 22, 2017 @ 11:53 pm

Jon F: “…creation of children, which takes only a few minutes after all”.

A few minutes? Try telling that to a woman in labor!

And don’t forget the whole 9 months before that as well.

#31 Comment By JonF On June 23, 2017 @ 6:34 am

Re: A few minutes? Try telling that to a woman in labor!

I am talking about conception obviously, since I was replying to someone who was highlighting a connection between sex and marriage. Pregnancy and the rest fall under “Child rearing”.

Re: …can’t compete with commitment **as a criterion of marriage**. In the first paragraph of my first comment I said care is part of marriage, as I say commitment is. That’s not the point.

What you are missing is that “commitment” is not a free floating word: it has an object. When you commit, you commit to something– and in this case it is to the care that I emphasize. I am mystified why this is so objectionable to you.

Re: But they are obviously separate concepts, which invites us to analyze them independently of each other.

The separation you wish to impose is precisely why I see your view as problematic. They should be linked and analyzed together, much as “Childhood” and “Parenting” should be. Why divide things that belong together? IMO, this sort of atomistic thinking is part and parcel of what is wrong with how we approach our lives

Re: When marriage-is-care comes to predominate among liberals, the majority of independents will be peeled off from the Democratic Party for years to come.

Huh? How does a fairly obscure and metaphysical argument about marriage have that sort of effect among people who will never participate in the discussion but who would nonetheless agree with the base and very anodyne statement “Spouses should care for and love one another and parents should care for and love their children”? Where’s the controversy in that? How is it even partisan? Republicans would agree with it too. And no one is going to make it a major policy plank in their campaign precisely because it is so widespread and common sense a notion. Moreover the Democratic party’s problems, whatever the are, are not because it has not embraced some manner of retro SoCon idealism which most of the country has rejected.

#32 Comment By JonF On June 23, 2017 @ 2:00 pm

Re: My question still holds, why don’t Christians, both orthodox and main line, consider taking a last stand to reclaim Holy Matrimony and Marriage?

Marriage is a universal human institution– it no more belongs to Christians specifically than funerals (something else done by every culture over time) do. Christians have no business trying to “reclaim” what was never exclusively theirs. Moroever marriage, unlike, say, healthcare, is not a limited good in short supply requiring any sort of rationing. The fact that non-Christians have marriage does not limit or deprive Christians of marriages.

Holy matrimony is another matter altogether. As used her I am assuming it is reference to the rite or sacrament of marriage– and that is a specifically Christian thing (notwithstanding that other religions may well have some rite of marriage too)– though to be sure Christian churches are not in full agreement as to exactly what holy matrimony is– some think it a sacrament bestowing grace, others a mere symbolic blessing. Holy matrimony is not something that is in need of reclamation though: churches still practice it according to their own canons and theology. Conceivable external groups could seek to change that, but I cannot see how, in the US, they could get around the First Amendment, which so imposing a barrier it makes the old Berlin Wall look like a line in sand. I think more serious work on the Christian side should address the misunderstandings about holy matrimony among their own people, who often confuse it with mere marriage when it is something more than that.

Re: Behind your emphatic expression is a sincere question of logic: the notion of marriage then family (as I see others proclaiming, not implying that you are doing so as well) seems to falter on the entire concept and application of common-law marriage.

Franklin,
Common law marriage evolved out of the fact that the older church canons (going way back in the Middle Ages) defined any couple who could legitimately marry as married in truth if they “plighted their troth” and consumated their relationship. All the rights and duties of marriages inhered to such relationships, and when the state began codifying marriage laws they continued the practice of recognizing non-church blessed unions (there being no civil marriages yet) as valid.

#33 Comment By Ken Zaretzke On June 23, 2017 @ 5:58 pm

Re: Pregnancy and the rest fall under “Child rearing”.

Child rearing is ambiguous as between child-bearing and child raising. Only the former pertains to procreation, including pregnancy.

Re: “commitment” is not a free floating word: it has an object. When you commit, you commit to something– and in this case it is to the care that I emphasize.

I don’t disagree with that, in one sense. But you’re treating care and commitment as intentions in marriage–e.g., my intention to commit myself to you as a spouse, and to care for you in the pertinent way, including sexually. Whereas I’m treating commitment and care as criteria of marriage. The nature of marriage is not found by examining the intentions of the partners.

I also think it should maybe worry you that care is compatible with lesser commitments, or even no commitment. According to Jeffrey Blustein, “Though there cannot be commitment without care, there can be care without commitment. I might care about a person, for example, and not be committed to him or her, or about the condition of the environment and not be committed to doing something about it.”

Re: IMO, this sort of atomistic thinking is part and parcel of what is wrong with how we approach our lives.

Marriage is to family what mathematics is to physics. VERY closely linked but SEPARATE concepts. Separate concepts can be discussed as to what they have in common as well as to what they don’t have in common. “Atomism” has nothing to do with it.

Re: Huh? How does a fairly obscure and metaphysical argument about marriage have that sort of effect…

Americans hate left-wing cultural radicalism, and making care the criterion of marriage–turning it into the key thing marriage is about–will lead to far-out radicalism. Read Elizabeth Brake’s book on marriage and you will see why that’s so.

Re: someone who was highlighting a connection between sex and marriage.

As one should in fact do in order to understand marriage. If humans reproduced asexually (1) Children would be raised by the village; the family would BE the village. (2) Dyadic couples would not be privileged over triadic couples, etc. (3) If there were sexual stimulation even in asexual reproduction, there would be romantic partners but they would have far less attachment than what is typical for us. (4) There would be no marriage, but there would be families–just not *nuclear* families.

#34 Comment By LFM On June 24, 2017 @ 9:41 am

@bt
‘the business with The Gays is going to work out exactly the same way’
No, it won’t. You missed the point of that part of my comment, which was that the change was only effected by two major, catastrophic wars that destroyed much of the western world’s confidence in the moral precepts of Christianity. The acceptance of same-sex marriage is one of the fruits of that loss of confidence, just as, earlier, the acceptance first of divorce, then of remarriage, then contraception (only in 1930 did protestants finally give in to this), then abortion, and then, worst of all by far, the acceptance of out-of-wedlock parenthood and, finally, the creation of children using the eggs of one woman and the womb of another.

The next step is not a warm and fuzzy acceptance of the Gays by Christians. The next step is the Fall of Rome, i.e. the USA. It will take a while, perhaps 200 to 300 years: there’s a good deal of collapse in an Empire. But it is certainly happening already.

p.s. Nobody proposed stoning adulterers in the divorce debate and nobody wants to stone gays now – perhaps a handful of lunatics, but certainly not the average conservative Christian. Where do you people (progressives, I mean) get these ideas?

#35 Comment By LFM On June 24, 2017 @ 10:39 am

@Blair Burton: ‘Seems to me it’s just possession of a word, or at least that’s how those who support only civil unions for gays would have it.’

That’s it, exactly: it’s about possession of a word. However, please do not try to tell me that possession of that particular word means nothing. If it’s so insignificant, why did same-sex marriage supporters fight so bitterly for it?

#36 Comment By DRK On June 26, 2017 @ 10:48 am

” ‘@Blair Burton: ‘Seems to me it’s just possession of a word, or at least that’s how those who support only civil unions for gays would have it.’

That’s it, exactly: it’s about possession of a word. However, please do not try to tell me that possession of that particular word means nothing. If it’s so insignificant, why did same-sex marriage supporters fight so bitterly for it?”

Because separate but equal is not equal. Just ask Terri-Ann Simonelli, who was not allowed to be with her partner as she miscarried, in spite of the fact that they were in a domestic partnership in Nevada that was supposed to give them the same rights as a married couple. Ask Janice Langbehn, barred from her partner’s deathbed in Florida although she held a medical power of attorney for her.

In 2008, New Jersey appointed a commission to study civil unions, which had been enacted two years before in that state. The commission concluded civil unions did not work. They conferred second class status on same-sex partners because, among other reasons, the general public were confused about what civil unions were, which meant that people in them were still having to fight with their employers to get their partners on their health insurance, fight with the tax department to get exemptions routinely granted to married couples, and fight with healthcare providers to be able to visit their hospitalized partners. The commission heard testimony from a legal expert from Vermont, who stated that, seven years after the enactment of Vermont’s own civil union law, her office continued to be flooded with clients who were struggling for their civil unions to be treated the same as marriage for the purposes of taxes and health insurance. Even the routine filling out of forms was a problem, since usually only “single” , “divorced”, “widowed” and “married” were listed as options. In contrast, the state of Massachusetts, which had legalized same-sex marriage in 2004, reported no such confusion for its same-sex couples. Civil unions were just simply not equivalent to marriage.

[12]

In any case, people making a case now for civil unions instead of marriage for same-sex partners are being disingenuous, to put it mildly. Eighteen states still have not only anti same-sex marriage, but anti-civil union laws written into their constitutions, even now. Civil unions instead of marriage was not a bargain that was offered by magnanimous straight people and then rejected by unreasonable LBGT people. Rather, the only door opened to gay people in those states was the closet. And that’s no way to live.

#37 Comment By Siarlys Jenkins On June 26, 2017 @ 12:38 pm

Because separate but equal is not equal.

Unfortunately for the facile repetition of this maxim, gays are not seeking that like things be treated alike, they are seeking that different things be treated as like. There is a difference.

Racial segregation was based on the theory that “black people are different.” Undoing racial segregation was based on recognition that actually, they aren’t really different from any other homo sapiens, although there are of course fifty-eleven different kinds of black folks, just like there are fifty-eleven different kinds of any folks.

Gays be the very nature of their condition and claim made the opposite case, “We’re different, and you should treat us the same in the name of equality.” That’s fundamentally unsound assertion.

Now, it remains true that contracts and unions and whatever else is provided for by law should be enforced and enforceable. New measures almost always cause some confusion. Forms need to be changed. Resistance needs to be challenged.

A plausible case could be made against gay couples being on each other’s health benefits. The idea of families being on health benefits is based on the notion that one spouse is likely somewhat dependent on the other, and is doing work that may be unpaid but is absolutely essential. I was also skeptical of heterosexual couples who did NOT want to marry signing up for “domestic partnerships” because they wanted to be on each other’s health benefits. Every choice in life has consequences. You want this, you don’t get that with it.

A medical power of attorney is what it is, with or without a marriage. The fact that a patient’s family doesn’t want to acknowledge their daughter is gay, and that a hospital feels more bullied by dad than by partner, is a weakness in ANY medical power of attorney. The remedy is to sue the hospital for millions of dollars, and they’ll learn to respect the law.

All that said, there is NO reason a state CANNOT legislate to tax, license and regulate a same-sex couple, or issue them a marriage license, and its purely a civil license, not a sacrament. I’m not inclined to lift a finger to stop it or sustain it, but its likely the way things are going to be.

#38 Comment By John On June 26, 2017 @ 1:04 pm

Well said DRK, and it should be noted that it was only fourteen years ago today when the Supreme Court overturned the so-called sodomy laws.

No. The conservatives weren’t even willing to let that one go, set aside employment nondiscrimination laws or civil unions. They were perfectly willing to have society treat us as presumed criminals.

#39 Comment By JonF On June 26, 2017 @ 1:27 pm

Re: Child rearing is ambiguous as between child-bearing and child raising. Only the former pertains to procreation, including pregnancy.

My whole point there, though you are strangely obtuse to it, is that marriage serves for child-rearing. We do not need long-term pair bonds in order to produce the event of conception. Why do you keep insisting this is not so? Human children however spend many years in a state of juvenile incapacity, only gradually becoming able to care for themselves. (Compare the brief childhoods of most of other creatures). Hence the need for long-term commitment to them, and by their father to their mother since she is hobbled by pregnancy, and weighted down by the needs to child-care. a mother cat can let herself go hungry in the two or three weeks she needs before she can safely leave her kittens long enough to search for food (and later she takes them to hunt) A human mother would starve to death if she tried to wait the equivalent length of time for her baby before resuming the normal routines of her life. This is probably the single most important reason the institution of marriage evolved among our kind as it has. You are hardly doing your cause any good by trying to hide from this staringly obvious reality.

Re: But you’re treating care and commitment as intentions in marriage–e.g., my intention to commit myself to you as a spouse, and to care for you in the pertinent way, including sexually. Whereas I’m treating commitment and care as criteria of marriage.

Because marriage, from the oldest eras of which we still possess written record, has served other purposes too– useful even vital purposes. why is this such a scandal to you? There is no law of reality that everything in this universe can serve but one and only one purpose and it is somehow perverse and immoral if someone is using X to do Y instead of Z. By that logic since our trachea and its features evolved to allow for respiration and our mouths for the ingestion of food and drink we are all warped sinners when we use these features of our bodies for speech.

Re: I also think it should maybe worry you that care is compatible with lesser commitments, or even no commitment.

First off if by care we are talking about something more than the idiomatic “care about” then, I disagree with your statement. Yes, it is possible to care about this or that (including abstract things) but lack any commitment. And in some cases one may even care passionately about someone or something but lack the means to do anything. Rod certainly cared about his sister, but he had no power to heal her from her cancer– this is just life and the limits of the possible and we have to deal with it. Your Jeffrey Blustein is a canting fool if he cannot grasp this.

Re: Marriage is to family what mathematics is to physics. VERY closely linked but SEPARATE concepts.

Terrible analogy. Mathematics is wholly abstract. Physics is about the real world. Both families and marriage are also real world matters, not abstractions. Trying to turn marriage into nothing but a bloodless abstraction removed from real lives and the people who live them is a massive category error.

Re: Americans hate left-wing cultural radicalism,

Maybe, but “radicalism” tends to be redefined continually. Once upon a time the notion of women voting was radical and would get a proponent of it exiled from polite society. Ditto with religious freedom, republicanism, the abolition of slavery, divorce, interracial marriage, birth control, etc etc. As Rod has noted many times SSM, like it or not, is becoming socially accepted by great masses of people. There are REPUBLICAN officeholders who affirm it these days, notably the current occupant of the White House. It has ceased to be defined as “radical” by a great swath of America. You are living in an alternate reality far, far away if you think that support for SSM is the electoral kiss of death.

Overall what I see from you and from other nay-sayers on your side is this: In your fervor to oppose SSM you have cooked up some fever-dream ideas about marriage, mostly because you know you cannot simply say “The Bible tells me so” (I would have more respect for you if that were your argument– though it would of necessity be a personal argument only, like refusing alcohol or pork). None of these ideas you (plural) hawk in the marketplace of ideas is at all traditional and former ages would scratch their heads over them and think you were high on something. Your “traditional marriage” is a warping of tradition and it very dangerously drains marriage of life and spirit, leaving it an airy-fairy abstraction never to be touched by rude flesh or hot passion. If given total control of things you would damage marriage and family life far more severely than any gays could: you would suck the life and vitality out of it like Gnostic vampires, horrified by the rude requirements of the flesh and the cacophonies of physical life.
Let it thus be anathema.

#40 Comment By Ken Zaretzke On June 26, 2017 @ 4:48 pm

“My whole point there, though you are strangely obtuse to it, is that marriage serves for child-rearing.”

Cohabitation also serves for child-raising (I avoid the ambiguous term “child-bearing”). So why is marriage valued above cohabitation? The latter offers the advantage of flexibility in the couple’s relationship. Why does the trade-off between the stability of marriage, and the flexibility of cohabitation, have to work in favor of marriage? I can answer that, via the role of procreation in marriage, and it’s justifying of maximum commitment in all marriages but only some cohabitation partnerships. Your answer would presumably be something about caring and commitment as showing why marriage is better than cohabitation. That won’t tell us why marriage compares favorably with cohabitation in terms of human flourishing. The general fact of procreation, which includes child raising, explains why the institution of marriage has evolved the way it has. My example of humans reproducing by asexual reproduction was meant to bring that out.

“Because marriage, from the oldest eras of which we still possess written record, has served other purposes too”

Your approach makes intentions the big thing in the marriage debate. Your understanding of care and commitment derives from those intentions. I say the intentions of couples have nothing to do with the institution of marriage, or with marriage in itself. Intentions are totally irrelevant to the debate about what marriage is. So your approach is the wrong approach.

The fact that the criteria of marriage writ large–caring, commitment, and procreation–double as intentions in marriage writ small is not important for the marriage debate.

“Your Jeffrey Blustein is a canting fool if he cannot grasp this.”

Well, Oxford University Press published his book on the subject of care and commitment.

“Terrible analogy. Mathematics is wholly abstract. Physics is about the real world. Both families and marriage are also real world matters, not abstractions.”

Not a terrible analogy but a limited analogy–like all analogies. Mathematics is the basis of physics–no mathematics, no physics–just as marriage is the basis of family. With this difference, that whereas physics cannot exist without mathematics, families can exist without marriage–in cohabitation, and also as shown by my asexual-reproduction hypo.

“You are living in an alternate reality far, far away if you think that support for SSM is the electoral kiss of death.”

Wrong. Take un-elected and unaccountable judges out of the equation, and SSM *is* an electoral kiss of death. “The law is a great teacher.” From that favorite maxim of law professors I infer, in the SSM context, that far too many people have been overly impressed and/or intellectually cowed by imperious judges. There’s no reason why it has to stay that way.

“If given total control of things you would damage marriage and family life far more severely than any gays could: you would suck the life and vitality out of it like Gnostic vampires, horrified by the rude requirements of the flesh and the cacophonies of physical life.”

All this, for trying to defend marriage in a way Hume would have understood (he regarded natural law as cant, and I, of course, steer clear of it, though not because I myself regard it as cant). Hume was the greatest philosophical defender of tradition, and I believe he would have liked my defense of traditional marriage.

#41 Comment By Ken Zaretzke On June 26, 2017 @ 4:53 pm

I incorrectly said “I avoid the ambiguous term “child-bearing.” I meant to say “child-rearing.” Your term *child rearing* is ambiguous as between child-bearing (i.e., procreation) and child-raising, and it lets you get away with highway robbery.

#42 Comment By Siarlys Jenkins On June 27, 2017 @ 9:57 am

The conservatives weren’t even willing to let that one go, set aside employment nondiscrimination laws or civil unions. They were perfectly willing to have society treat us as presumed criminals.

I am not “the conservatives,” nor am I particularly supportive of LGBTQWERTY, but, I was skeptical of Bowers v. Hardwick and applauded Lawrence v. Texas. Its not because one decision was “anti-gay” and the other “pro-gay.” Rather, my education as a citizen from about 4th grade on had developed considerable appreciation for the constitutional right to be left alone, and it seems to me that what you do in the privacy of your own home with a consenting adult is not a matter for the police powers of the state. I might despise homosexuality, appreciate it, be indifferent to it, but its not the business of the police or the district attorney.

Similarly, although this is NOT the law of the land today, I favor employment law which rules out all secondary biases, prejudices, or preferences NOT related to ability to do the job one is hired for. Sexual preference would certainly not be a relevant criterion, unless one is applying for a job at a legal brothel in Nevada. I think the concept of “protected classes,” which is largely a judge-made term as the courts grappled with practical implementation of broadly written civil rights laws, have run us into a blind alley.

My quibble with a constitutional mandate that states offer marriage licenses to same sex couples is that it twists all equal protection jurisprudence out of shape. Homosexual liaisons, however casual or sanctified, are not similarly situated to heterosexual liaisons. There is no integrity to the argument that the law “discriminates against” gays and lesbians. The law had not even contemplated gays and lesbians when it was written.

That said, there is nothing wrong with the New York legislature voting to license, regulate and tax same-sex couples, or issue them marriage licenses. Everything you passionately want or feel to be morally imperative does not ipso facto become a constitutional issue. But the legislature does have a great deal of discretion.

I voted against my state’s DOMA, partly because there wasn’t a snowball’s chance in hell that our state supreme court would find an “equal protection” right to SSM in the state constitution, and partly because I saw no reason to tie the hands of the legislature, should a majority of voters be OK with issuing civil marriage licenses to same sex couples.

I would have voted for Proposition 8 if I had lived in California at the time. I would have had to hold my nose at the company I was keeping — much as I had to hold my nose to vote for Hillary Clinton, and many of my fellow citizens chose to hold their nose and vote for Donald Trump. But the California supreme court made a very bad decision, and there is only one way to overturn a state supreme court ruling expounding a clause of its own state constitution: by constitutional amendment. Such cases are not within the jurisdiction of the federal courts.

So lets stop bemoaning what “the conservatives” do or don’t do, and talk about what would be good public policy.

#43 Comment By John On June 29, 2017 @ 5:29 pm

Siarlys Jenkins,

I have no quarrel with you. I have been reading this blog for awhile so I am familiar with those who comment on this blog. I value your opinions even when I disagree with them. My comment was directed at the conservative community in general. If I recall off hand, you identify as a socialist and you have consistently defended privacy rights.

BTW, I think the late (?) Justice Stevens had voiced some skepticism with the “protected classes” and the standards of scrutiny as well, probably because everyone forgot why they applied in the first place while using them to uphold any and every discriminatory provision that did not implicate race, gender, or ethnicity. Applying the standards became a rite exercise depending upon what group was “protected” and what group was not.

I would refer anyone who has any questions about discrimination claims and how they should be evaluated to Justice Kennedy’s oral argument questions in Romer v Evans.

#44 Comment By Franklin Evans On June 30, 2017 @ 1:21 pm

The idea of families being on health benefits is based on the notion that one spouse is likely somewhat dependent on the other, and is doing work that may be unpaid but is absolutely essential.

Siarlys, that’s a misconception. That was how it was marketed, having the advantage of being accurate, but it was first and foremost a business decision out of this logic chain: non-wage benefits provide incentive for employee longevity, and covering the employee and not covering his wife and children was a disincentive. The social context has changed dramatically, and that logic is at most trivially valid in modern times.

There’s much detail behind that logic, which I’ve covered somewhat in previous posts about insurance. There is, in the contemporary context, circumstantial parity between a heterosexual couple and a same-sex couple, socially and economically. One person’s employer may not offer health insurance, so the other person becomes the primary insured. The sole difference is the gender of the dependent.

#45 Comment By Siarlys Jenkins On June 30, 2017 @ 1:38 pm

Hi John. I have also had the experience of telling someone “I have no quarrel with you,” so I take your response seriously. And yes, I think we’ve agreed on what the right balance for all this is, pragmatically, in a diverse, pluralistic society, that extends deeply rooted constitutional protection to the free exercise of religion. I hadn’t actually paid attention to who was making the comment I responded to.

I think my quarrel is with the notion of “the conservative community in general.” Like all the other “communities” we’ve been discussing here from time to time, its a pretty diverse continuum. The kind of balance we’ve been working toward will require at least the begrudging acquiesence of a significant fraction of those who style themselves “conservatives.” As in, ‘OK, its not what I would really respect as virtuous, but, it protects the options that are most important to me, and it will keep most of this stuff out of my face.’

True, there have been loud and raucous voices demanding that all the gays be killed, imprisoned, excluded wholesale from various jobs, denied any legal protection whatsoever, even ones all the rest of us have. But the idea, I think, is to isolate those voices, not to unite all “conservatives” by casting them into outer darkness with the same.

Its sort of like, I don’t want the world’s one billion Muslims to identify with Daesh, which would happen if all others in the world reflexively treat Muslims AS probable Daesh sympathizers. Although, I’m in favor of shooting active armed Daesh soldiers on sight.

Its been a while since I read Romer v. Evans. I must see if I can look up a transcript of Kennedy’s oral argument questions. I was somewhat sympathetic to the argument voiced on the street, “you don’t get special rights because of the way you have sex.” But, I don’t favor special disabilities on that basis either. Romer was a close call, but I think the court got it right, that when the legislature singles out a described class of people for nonprotection, it has indulged in invidious discrimination.

Still, it would be better if we dropped the approach of “protected classes” entirely. Otherwise, we ALL want to be a protected class, right?

#46 Comment By Siarlys Jenkins On June 30, 2017 @ 2:01 pm

The social context has changed dramatically, and that logic is at most trivially valid in modern times.

Indeed it has, Franklin. I actually first started musing about this when I observed that unmarried heterosexual couples, both employed, were seeking a “domestic partnership” registry so that they could get on each other’s health insurance. This raised many amusing points, including, why do you not need a piece of paper from the city hall but you want a piece of paper from the city hall? Also, why do two people who are both employed full time need to be on one person’s health insurance? This would seem to also be true of most gay couples.

Now it is true that many “good jobs” have no health insurance, and that some people with “good jobs” have a partner who is working part time while building up an art portfolio or writing a novel or something. But the calculus of why the other spouse should get health insurance on the other spouse’s employer’s dime is rather different, even though it is awfully convenient.

There are of course, different, or more traditional, questions about children. Many low income single mothers are uninsured, but their children have some form of Medicaid, which is much better than not having it. The only employer where I ever got health insurance (union contract, of course) was fine for the individual employee, but, e.g., the single dispatcher with four children would have had to pay the full premium for her children to be covered — which is as good as having no coverage.

I think most of us who are not ready to consign the working class to outer darkness agree that some form of non-profit single payer is the best solution, and then all of this will be moot. But the changing context has created some illogicalities and absurdities that are primarily answered by “But I want it, and I can’t get it any other way.” Which does often wring the heartstrings, because it is something everyone should have. Now, how to pay for it…

#47 Comment By John On June 30, 2017 @ 2:34 pm

Siarlys,

Pragmatically I am in agreement with you. We all have to move on and try to isolate those who have taken extremist positions.

More often than not I am in agreement with you on the need to balance the rights of one group with the rights of the other.

I try to remind my liberal colleagues that “the heart of liberty” passage which conservatives tend to reject was designed to protect everybody, conservatives included, and I do believe that religious exemptions to nondiscrimination laws should broadly include most religiously-affiliated institutions (the hospital being the exception where a careful balancing act is required).

I would like to see both sides come up with a compromise solution like the one made in Utah. I would like to see the anti-gay conservatives acknowledge that there really are matters where no discrimination is warranted because all people, including those who engage in practices they disagree with, are similarly situated (most employment situations, grocery shopping, room and board, public facilities, etc). The Fourteenth Amendment covers everyone.

And I would like those on my side to acknowledge that some very small businesses that are closely tied to a single individual or family (not HobbyLobby which is just too big) discrimination should be permitted because the First Amendment covers everyone.

Still, i won’t forget what was excused, and Texas’ sodomy law, which only covered homosexual sodomy (and not also heterosexual sodomy) was constitutionally and legally defended by way too many conservatives. I do take that personally, because that was a statement made about us and who we are, and not about a behavior of general applicability.

#48 Comment By Siarlys Jenkins On July 1, 2017 @ 12:42 pm

Hospitals are more in the nature of a public utility than a religious mission, at least these days. If a hospital were staffed entirely by members of a religious order, who did everything from supervising capital maintenance to emptying bed pans, and also sent a requisite number of its acolytes to medical school and nursing school, I would be prepared to grant them considerable latitude based on religious scruples. But no “religious” hospital runs on that basis today, nor is any funded primarily by tithes, offerings, religious endowments, or gifts to the church. Mostly they are funded by commercial private insurance, Medicare, Medicaid, and presently by private insurance funded via the Affordable Care Act — which incidentally has sharply reduced the amount of unpaid care hospitals, religious or secular, provide each year.

I also remember that the city where I grew up used to have only one hospital, run by an order of nuns, and a number of citizens subscribed to build a second, secular, hospital precisely so that there would be more choice in the market. If we are going to talk about free exercise, and no establishment, that is important, although the nuns huffed and puffed that a second hospital was not really necessary. One issue then was definitely therapeutic abortion, although there were others. Dispassionately giving appropriate service to gay patients and honoring medical powers of attorney and visiting privileges would certainly be relevant as well.

Texas sodomy law… was certainly more sinister than the “uncommonly silly” contraception laws addressed in Griswold. As I’ve said many times, I fully supported Lawrence v. Texas as a sound application of constitutional jurisprudence. And, as I’ve argued in teeth of some of our gracious host’s most sincerely and passionately held positions, I don’t believe it in any way laid foundations for Obergefell or even Goodridge. IF Lawrence had rested on “equal protection of the laws” then it would have paved the way for same sex marriage rulings, but only Sandra Day O’Connor advocated for that. The majority decided based on right to privacy, which I think was the correct decision.

A constitutional ruling is not the same as a ruling on sound public policy. I’m not utterly unswayed by Justice Scalia’s arguments that the people of Texas have discretion to make a distinction between heteronormative sex and homosexual relations. They’re not similarly situated, although there are some similarities, and they are variations on the same hormonal influences. The one area where homosexuals ARE in fact DIFFERENT from heterosexuals is in sexual practices. But, its not the business of the police powers of the state to regulate private conduct between consenting adults, and, in most areas of life, “no discrimination is warranted because all people, including those who engage in practices they disagree with, are similarly situated (most employment situations, grocery shopping, room and board, public facilities, etc.”

The fact that you take something personally does not mean what you want is always sound public policy, or constitutionally mandated, although it may be, and certainly, it will motivate your advocacy in the public arena.