Thursday, October 14, 2004

It rained in New Jersey today

Boy, blogging is hard work! I thought it was all about first impressions and knee jerk reactions (things I am very good at). everytime I look on line, I'm either being called an ass or the voice of history (is that good?). So, as the title of my latest and perhaps last attempt at blogging suggests, I will stick to facts that I know for certain to be true. Ok... a few more things that I am slightly less certain on and then I promise to be done.

Regarding welfare: There is an excellent book by Steve Teles on welfare and I defer to the expert. I did take a quick look online and found plenty of studies that said the current welfare reform was going badly (from places like the urban institute, brookings, etc) but all the studies I saw said 'further research is necessary.' I was going to read them, but Klinkner cut my pay after the success of my last blog so I need to go back to my other job.

I dont back down from what I said about gay marriage. I dont think its a policy question--I believe in certain inherent human rights (which I'm happy to discuss if our blog wants to go there--like, what rights are 'human rights' etc... count me as one who at least likes the idea and is stupid enough to think we could come up with a working and relatively fair list). I think not discriminating against people on the basis of their sexuality is one of these rights. So let me ask in the honest spirit of learning, the following questions--is Loving v. Virginia a good decision? If so, why are gays and lesbians different? Would it be ok to allow Alabama to stop interractial marriage (in the moral sense which makes blogging about it worthwhile?) Would a state law that denies Muslims the right to marry Christians be different? (Again, I'm talking moral here, not strictly what the law says b/c I am familiar with it--or so I thought--I await comments that correct me...). My friend, Phil's friend, Steve's friend-- John Skrentny-- wrote an excellent book called the Minority Rights Revolution that deserves a wide readership. He raised exactly this question--is race different than sexuality and why? America and policy makers clearly saw it as different in the time period Skrentny studies. But I ask here, should it be? Would it still be different if it wasnt a 'lifestyle choice' and actually an inherent trait? Obviously, I think they aren't different which is why I link the current policy discussion of gay marriage and the support of state autonomy to that of the civil rights arguments in the 50s and 60s that promoted state and local responses. Its also why I outrageously claimed that we would in 50 years view gay rights as we do race, now 40 years after the civil rights act. If in 50 years when none of us have teeth, I see that we are still debating basic questions of whether gays and lesbians can have the same rights as other people, well... I'll be sad. But I really dont think that's going to happen--we as humans do progress over time, and if we don't get nuked, I really think that discrimination against gays and lesbians is a new American dilemma that doesnt fit our liberal ideals and will at least legally and in the mainstream morals be a settled issue in 2054.

But, I will conclude by sticking to the facts... it stopped raining. Wait, I see a raindrop. Actually, I'm not sure if its raining b/c my window is foggy. Until I have the facts, I'll stick with 'no comment.'

24 comments:

Anonymous said...

I agree with you that gay marriage is a moral issue, and that within the next fifty years homophobes will be seen as being as irrational as racists. Don't stop blogging, this blog is much to calculating and cynical as it is.

Anonymous said...

Just as we boomers looked at our parents and grandparents in disbelief over Jim Crow laws- "how did you let that happen?", the children of the boomers (millenials? genYs?) consider gay marriage a non-issue. Another twenty years or so, and it will truly be a non-issue. And then some of us will need to find another group to marginalize and stigmatize and plain old hate.

Palooka said...

I don't think gay marriage is a notoriously bad idea. In fact, it good very well be a real positive for both the gay community and society broadly. But acknowledging this possibility does not mean there are not many valid concerns about the issue, as well as many relevant points in opposition. I've stated some of these reasons on this blog, and they have pretty much gone unanswered.

But let's get to the heart of the matter. Loving vs. Virginia was different in several critical respects. It dealt with the criminalization of inter-marriage. It did not alter the fundamental definition of marriage. And it dealt with race, which is what the Fourteenth Amendment was actually intended to address--the uneven application of the law with respect to race.

Goodridge was not a close analogue to Loving, however much you wish it were. Goodridge fundamentally altered the definition of marriage. Thus, Goodridge was about marriage on your own terms, not within its implicit parameters, as was Loving. Now, if one has a right to insist society sanction their idea of a marital union, then why are polygamist and polyamorists left out of this?

If you can tell me why this so-called civil right of marriage on your own terms does not apply to polygamy, yet does apply to gay marriage, then I will truly be impressed.

If you can't, then you must with equal passion support polygamous marriage equality or quit boring me with your pious platitudes about imagined civil rights.

Palooka said...

Also, I find it disingenous to argue that because homosexuality may be genetically determined, you find that enough to justify your position. This leads one to the erroneously conclusion that, if being gay were proven to be environmental and not genetic, you would not support gay marriage. Is that really true?

I know of one study which suggests a strong genetic correlation. This was done by comparing the sexual preferences of identical twins that were reared separately. Though it did suggest a strong correlation, it was also not definitive. 88% of the twins had the same sexual preference. Now, to further your skewer your bogus analogy. Let's say there are two kinds of gays. The genetic gays and the environmental gays. Would you only support gay marriage for those gays who were genetically gay? Of course not. Therefore, your so-called analogy to race is exposed as the fradulent argument that it is.

Moreover, similar studies done for Lesbians showed no genetic correlation. Following that evidence, do you suggest we only offer gay males, with the gay gene, their marriage equality?

Now, these are not arguments against gay marriage. These observations are just to point out how totally disingenous and flawed your comparison to race is.

MWS said...

"Don't stop blogging, this blog is much to calculating and cynical as it is."

Why is this blog too calculating and cynical? Because people don't agree with you? I can't understand people that presumably want to engage in an exchange of ideas and then, when they find that people have ideas they don't like, they disparage the whole enterprise. I support gay marriage, but I have never read anyone on this blog opposed to gay marriage that disparages gay people or advocates criminalizing (or re-criminalizing) homosexual sex. They are simply raising factual, legal and constitutional issues that, in their opinion, supports treating gay marriage differently. I don't see why that's cynical or calculating.

Devo said...

Why am I fully behind gay marriage, yet opposed to polygamy?

Well, first, let me say that I'm only marginally opposed to polygamy, I really don't care all that much.

The main difference, however, as I see it, is one that I think Palooka will appreciate. It's about protecting the sanctity of marriage.

Marriage is about two people who love one another deeply committing to "love and to hold, for better or for worse, through sickness and through health, until death do them part." Implicit in that commitment is that it applies to the spouse and no other.

While many clearly believe that this commitment being between a man and a woman is also implied, there is a sharp distinction. John and Jeff getting married has no impact whatsoever on the blissful union of the Palookas. Ms. Palooka is not going to decide that she wants to leave Palooka and get hitched as a lesbian, since the law now allows it. Many men .... and some women .... would, however take such sanction of polygamy as excuse to venture beyond the one to one commitment implied in marriage and would directly harm the institution of marriage for everyone.

Palooka said...

I agree that monogamy is a virtue, but what you fail to realize is that, under the criteria of many here, you would qualify as a bigot for denying others their rights based on your subjective moral judgments.

Saying that traditional marriage is virtuous, and is the best environment to raise children is a subjective, moral judgment. It may or may not be correct, but people should be able to hold that view without being accused of bigotry or intolerance.

Your position that monogamy justifies discrimination is not different in spririt than what opponents of gay marriage believe--that traditional marriage is a virtuous and positive thing.

Why is it OK to discriminate because you think monogamy is great, but not OK for others to hold the same position, but for a different reason?

Devo said...

Like I said, I am not firmly against polygamy. I agree that discriminating against anyone for their preferences is wrong.

That being said, there is a clear difference between allowing homosexual marriage and allowing polygomous marriage. Allowing polygamy changes the meaning of marriage for everyone. It fundamentally changes the explicit and implicit commitment involved.

Every marriage would then become a potential polygomous marraige. If gay marriage were legalized, Ms. Palooka would never have any reasonable chance of becoming a man (I know, there are surgeries for that sort of thing ... but I think we can safely call that the exception).

Sure, it is arbitrary, but when defining things, lines have to be drawn, otherwise words have no meaning. There are certainly reasons (their merrit can certainly be debated) for drawing the line at polygamy. There are no reasons for drawing the line at homosexuality. The burden must always be on the government in any attempt to deny any individual of their rights.

One such right is, unquestionably, to be treated fairly and equitably by the government, regardless of any individual traits.

Palooka said...

That is an extremely weak argument. Polygamists make up an extremely small group of people, much smaller than the gay population. I find it difficult to believe polygamy would spread much further, but your argument is still IDNENTICAL to those so-called bigots.

But your argument presupposes, again, the wrongness of polygamy. How is that any different than arguing against the fundamental wrongness of homosexuality (something I do not do). How is that legally separable?

Your explanation falls flat on its face. You rely on morality (polygamy is bad), but you chastize others for relying on morality (gay marriage is bad). What's the difference?

Paul Frymer said...

there is a difference between the state supporting some kinds of activities (for example, legally sanctioning the idea that any 2 people can marry and benefit from the tax, estate, and other forms) and not supporting others (polygamy) and discriminating against specific individuals who want to participate in the government sponsored activity. But again, by associating being gay with being interested in polygamy, you are implying by association that being gay is somehow outside the mainstream, smutty, and immoral. Really, why does it bother you so much that people of the same sex want to marry?

Devo said...

I'm not arguing in favor of banning polygamy. Never have. You asked why many of us can be in favor of gay marriage and not also be actively fighting for polygamist rights. I answered.

Banning polygamist marriage and gay marriage are fundamentally different because gay marriage has no effect on the rest of the population and polygamist marriage does. I am not saying that effect is sufficient to warrent banning. I'm just saying that it exists and, thus, it is an inherently seperate debate.

The government must taken on the full burden of proving why any rights should be denied to any individual or group of individuals. Has the government upheld the burden with regards to polygamy? I don't know and I don't plan to push the case for either side. Has the government made the case for homosexuality? Absolutely not.

Palooka said...

"there is a difference between the state supporting some kinds of activities (for example, legally sanctioning the idea that any 2 people can marry and benefit from the tax, estate, and other forms) and not supporting others (polygamy) and discriminating against specific individuals who want to participate in the government sponsored activity. But again, by associating being gay with being interested in polygamy, you are implying by association that being gay is somehow outside the mainstream, smutty, and immoral. Really, why does it bother you so much that people of the same sex want to marry?"

This is the most non-responsive, evasive answer I have ever received in response to this specfic point. You have just stated the polygamy is smutty and immoral? And yet you would accuse someone who opposes court-mandated gay marriage of bigotry?

What moral compass to you use to determine "smutty and immoral" from totally mainstream sexual practice? I'd really like this to know where you get this fabulous gift. Klinkner proffered earlier in this blog that the criteria of "discrete and insular" is the correct criteria for determining which minorities receive "strict scrutiny" review under the Constitution. Again, you have demonstrated my point quite clearly. If we are supposed to protect the minorities more prone to irrational discrimination, and which are more isloated, then polygamy deserves much more protection than homosexuality, which is largely celebrated in pop culture today.

I principally object to courts making these judgments for society, just as I would object if they said polygamist marriage equality was a constitutional right. Maybe gay marriage is a great idea, maybe it isn't. But I at least acknowledge there is legitimate debate on that question, a debate which is best resolved through the democratic process.

Two gay individuals can "marry" and live together, even raise or adopt children, and they have my support. The question is, do they have a constitutional right to demand equal protection, support, and encouragement? That answer is clearly no. Just as polygamists do not have a right to equal protection, support, and encouragement from the government.

Why is NOT OK to draw the line at one man and one woman, but totally OK to draw the line at no more than two people? They are both lines, they are both subjective moral judgments. Why is one legitimate and not the other? There is no essential difference between those judgments. I may personally feel differently about each, but those are my personal subjective, moral judgments.

Palooka said...

"Banning polygamist marriage and gay marriage are fundamentally different because gay marriage has no effect on the rest of the population and polygamist marriage does."

FALSE. The entire population is not effected, only those who view or could potentially view polygamy as a viable option. Many do not or would not. But your answer here implies there is osmething inherently wrong with polygamy. If someone said the same of homosexuality, you'd be up in arms, right?

It's not so effective when you drop the civil right rhetoric, is it? To argue technicalities and small differences justify the denial of a "civil right." Well, on the subject of marriage as a civil right, you have to explain in compelling terms why some marriages are not eligible. And you haven't done that.


Of course they are at some level distinguishable. I am asking you to explain why one is a CIVIL RIGHT and the other is not. Can you do that? My point is that these topics, while certainly distinguishable, they are only distinguishable on a subjective, moral plane. And when it comes to things like that, democracy is the best solution when the Constitution is silent.

Would you oppose a court granting polygamists marriage equality in contravention to the overwhelming majority opinion?

If you would, then on what grounds would you do so? On moral grounds? On grounds that polygamy is unhealthy for society?

Well, those sound like familiar arguments, don't they?

Devo said...

I like that Palooga, that's clever, you accused me of saying something I never said, then, later in your post, you quoted what you wrote, implying you were quoting me. That's cool.

Needless to say, I never said that polygamy was "smutty and immoral." I wouldn't dream of calling it smutty, and while I do find it somewhat morally suspect, I do not find fit to condemn it.

That being said, and I feel that I have been very clear on this point, yet you have left it wholly unanswered, the clear difference is that polygamy potentially changes the concept of marriage for society as a whole, while same sex marriage does not.

As far as the constitutional question, can you please show me where in the 14th Amendment it states or implies that it is intended to apply only to race? I'm very curious to know, because I cannot find it. Absent that, it would be an activist reading of the 14th to find that it was meant to only apply to matters of race and not sexuality.

It would be debatable whether a "separate but equal" arrangement would satisfy the 14th ... except that Brown v Board already decided that question.

Devo said...

Wow. I am truly impressed. Somehow you managed to reply before my post even appeared. That's quite remarkable.

Do you deny that it is implied in the marriage vows taken in America that 'we are having and holding, in sickness and in health, for better or for worse, until death does us part' only the one specific person standing across the alter from us as we receite these vows?

That is implied, correct?

Then by recognizing polygamy, the government would be changing this implication that is essential to the fabric of marriage as we conceive it.

That being said, we'd get over it, it wouldn't make a huge difference, and I wouldn't find it particularly offensive if a court decided that any number of humans, of any gender could marry. I draw the line at humans, though, lets not go there.

I see a difference, though, and I feel that I have spelled it out very clearly, in a way that I don't believe too many polygamists would find offensive. That is why I can be passionately in favor of same sex marriage and find it an important civil rights issue, while being dispassionately neutral to polygamy.

If you choose to take up the banner of polygamy and argue it as a civil rights issue, I can assure you, I won't be on the front lines fighting you. No one can fight every battle and that is not one I choose to undertake.

Palooka said...

I was replying to Paul's comment, Devin. HE said it was smutty and immoral. Don't have time to comment on your recents meanderings ;) But I hope I can get it to it later.

Anonymous said...

What exactly is the "traditional definition" of marriage? Whose tradition? and why is it so important to preserve that traditional definition (if it actually exists) rather than replace it with a contemporary one that's more suited to modern times?

Palooka said...

What exactly is the "traditional definition" of marriage? Whose tradition? and why is it so important to preserve that traditional definition (if it actually exists) rather than replace it with a contemporary one that's more suited to modern times?

=====

Marriage has existed from the dawn of mankind as a male-female bond. There may be good reason for that. To throw it out on a whim or hunch on what may or may not be most "suited to modern times" seems to me a great folly, especially when that decision is made by four judges in Massachusetts. Should it be changed? Perhaps. It's certainly true that the history and longevity of the institution of marriage doesn't entitle it to immunity from change. But I do believe its importance and historical constancy requires a good deal of reason and reflection to fundamentally alter it.

It's clear that even the most ardent supporters of court-mandated gay marriage feel free to denigrate polygamy and polygamists. So, all I ask is, why, if gay marriage is a civil right, is polygamy and polyamory not a civil right? The answer seems to be--because we don't like polygamy or polygamists. That rhetoric should sound familiar.

What we really are talking about here is not gay marriage, but state-sanctioned gay marriage. Certainly gays are free to marry and live the lifestyle they want. The question is: Does the state have to provide equal support, sanction, encouragement, and benefits to every so-called "marriage?" I think that answer is a clear and resounding no. Both as matter of practical policy and constitutional law. If gay marriage is a constitutional right, then there is no logical legal barrier to polygamy or polyamory--none whatsoever. Proponents of Goodridge need to address that decisively, but they usually run for the door.

Anonymous said...

--The question is: Does the state have to provide equal support, sanction, encouragement, and benefits to every so-called "marriage?" I think that answer is a clear and resounding no.--

Palooka, using your logic, the government would not be required to provide equal support, sanction, encouragement, to any marriage, even if it were the most traditional interpretation of "marriage", simply because it was an interpretation of "marriage." Is that what you are arguing as well? Probably not. You need to rethink your arguement.

Anonymous said...

"Marriage has existed from the dawn of mankind as a male-female bond."

That's a bit simplistic. The polygamy taboo, for example, is a fairly recent innovation - if you go back to "the dawn of mankind," multiple wives seems to have been standard. Some societies have provided for male-male marriage arrangements as well.

Palooka said...

"Palooka, using your logic, the government would not be required to provide equal support, sanction, encouragement, to any marriage, even if it were the most traditional interpretation of "marriage", simply because it was an interpretation of "marriage." Is that what you are arguing as well? Probably not. You need to rethink your arguement."

Traditional marriage has deep cultural and legal foundations in American society, and can therefore be rightly considered a "fundamental right" in accordance with established fundamental rights jurisprudence. Not like that is an issue, though. We are not talking about "interpretations." It is clear that marriage, in this country, is defined as a one man, one woman bond. Massachusetts is now the only state in the union which has defined marriage any other way, and it only did so because of the a poorly-articulated majority decision of the Massachusetts Supreme Court. Nice try, "anonymous."

Palooka said...

"That's a bit simplistic. The polygamy taboo, for example, is a fairly recent innovation - if you go back to "the dawn of mankind," multiple wives seems to have been standard. Some societies have provided for male-male marriage arrangements as well"

I never said polygamy didn't exist. I said marriage has always existed as a man-woman bond. That's unequivocably true. Even in ancient Rome and Greece, where pedarasty and homosexuality were common place and accepted, there was a notable absence of homosexual "marriage." That is not to say it cannot or should not be done, but it does suggest there may be reasons for the relative constancy of the institution.

Paul Frymer said...

Palooka, I really should just let your words speak for themselves. But...

1. I dont know any polygamists and really dont have much of an opinion on them. I accused you of making the comparison between gays and lesbians and polygamists as a rhetorical effort on your part to equate homosexuality with something that most Americans see as perverse. What underlies such rhetoric is a belief that gays and lesbian equality should not be accepted and is not 'right'. Since you are a big fan of tradition, go back to the 1950s and see who blacks were being compared to as a group.

2. If you want to go the tradition route, you face a world of white men in America dominating. Who could vote in America at first? Who could go to Yale at first? Who could play Major League Baseball, at first? Who could be president at first. (oh, yes... and still...) Where do you want to go with this? Should we keep our society back in 1800?

3. Scalia made the same comment you did about gays and lesbians being powerful (see his dissent in Roemer v. Evans). If gays and lesbians are so powerful, why is marriage illegal? And have you ever looked at the data on hate crimes? Compare crimes against gays and lesbians versus those against polygamists. You are right that Corporate 500 elites are not popular in mass pop culture--does that mean they are not powerful?

4. John Ely's Democracy and Distrust provides a good summation, I think, of what strict scrutiny is to be used for. Its a complicated standard of which there has never been much consistency. But, among the key issues are--has the group been discriminated against, legally, by the US government and in society? Is the group discrete and insular, meaning can any person find themselves as a member of the group at some point in time against their own choosing? (this is why the elderly are arguably not such a group, as are children--we all (hopefully) will be one and have been another.) Third, as individuals, do we have choice being categorized as a member of a group? Race is a suspect category in part because we accept (I include you Palooka in the we, more on hope than knowledge) that race is an artificial category that should not be allowed by people to make meaningful judgements about others based solely on that category. Until science ever shows otherwise (reputable science, Palooka), sexuality is a similarly artificial construct and governments should not be allowed to make irrational decisions based on grounds that are completely artificial.

Palooka said...

You actually raised a point or two which is legitimate. I will get to that (and your continued ad hominem and logical fallacies) later today....

But you STILL HAVE NOT ANSWERED THE QUESTION. It's a simple question. Are polygamists entitled to their "marriage equality?" If so, I am assuming for more or less the same reasons as gays. If they are not, then why?