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May 16, 2008

Comments

i'm going to post on this tomorrow hopefully (so much news today!).

but my point is that this is very different from the typical court decision on gay marriage. frankly, though i strongly support gay marraige, i prefer legislative action for legitimacy/backlash reasons.

but that said, those concerns don't apply here. the legislative process in CA explicitly kicked it to the court to decide. and, b/c sexual orientation is a suspect classification, it's pretty clearly right as a matter of STATE constitutional law.

that won't keep it from being demagogued, but it really shouldn't be.

The Republicans are thrilled, too.

Scott Lemieux argues that the republicans will see minimal if any electoral gains from this decision here. now_what, I'd be interested in seeing any counterarguments you'd like to offer. I know the talking heads on tv like to talk about how obvious it is that whenever a court does its job, the democrats suffer, but the talking heads aren't particularly bright, especially when it comes to justifying their beliefs with evidence.

The Republicans are thrilled, too.

They shouldn't be. This is no longer a winning issue for them, and their attempt to demagogue it is just going to hasten their journey to irrelevance.

Not that there's anything wrong with that.

If you think this won't be a winning issue for the Republicans, I can guess about a dozen or two cities, one of which you live in.

Get a clue.

And these are not my prejudices, I could care less. If men want to marry men, or if pigs want to marry women, or if women want to marry any mammal that is not me, or if sane people want to marry Republicans or...whatever. I could care less. I just do not care.

And I live in one of those dozen or two cities.

If you had to choose between gay marriage being legalized and 1,000,000 iranians being killed for no real reason, what would it be?

That's your choice.

If you think this won't be a winning issue for the Republicans, I can guess about a dozen or two cities, one of which you live in.

I don't get it...what does my current location have to do with...anything at all? I thought statements were either true or false regardless of the location of he who uttered them.

And these are not my prejudices.

now_what, I don't think these are your prejudices...you haven't written anything here that would suggest they are.

So, going back to the issue at hand...do you have any idea as to why we didn't see a big electoral effect during the 2006 elections shortly after the NJ Supreme Court made essentially the same decision? I mean, the NJ court case was a better candidate for GOP political gains than the CA case given that the CA case was explicitly punted by the legislature.

I don't get it...what does my current location have to do with...anything at all?

This is how elections are lost.

So, your theory for how elections are lost involves random guys on the internet who have no power and no connection with the candidates asking questions and...what?

I must admit, this is a theory unlike any I've heard before. I suspect though, that its novelty isn't enough to compensate for its complete and total lack of explanatory power.

Just for the record, let me state categorically: I am NOT Barack Obama.

When you grow tired of explaining how I'm losing elections (behold my awesome powers!11!), I'm still curious how your theory explains NJ and the 2006 election.

You like to talk. I don't.

I think I have made my point.

Long-time reader here...I wouldn't normally throw my two cents in like this, but I couldn't resist this time around.

Agreed- well done for California! Having said that...(deep breath)...

I find myself deeply frustrated with contemporary discourse on marriage in this country. Marriage (of either flavor, heterosexual or same-sex) is an extremely problematic institution, and few seem willing to cast a critical eye on the merits of marriage in the first place.

As Laura Kipnis (if you get a chance, read her polemical "Against Love" and prepare to be floored), Chrys Ingraham, and a number of others have pointed out, the trappings of marriage are troublesome: consider how many women of color you've ever seen in (or on the cover of) a bridal magazine. Probably very few. Ingraham's book "White Weddings" pointed out the incredible lack of diversity in 20th-century bridal imagery, and some researchers at the U of Missouri's Journalism School did a study in '06 that confirmed similar results. The symbolism of the blushing bride wearing the perfect white dress is a Victorian-era construction which has roots in old beliefs about the racial superiority and sexual purity of white women. And as far as the other sacred totems of marriage are concerned, let's not even get into the skeletons in the closet of the diamond industry. Lest anyone believe that these concerns wouldn't apply in the case of same-sex marriages, I have no doubt that retailers would be certain to double their pleasures by selling TWO rings and TWO wedding dresses instead of just one. I find it troubling that issues such as these never find daylight. If you'd like to get married, it's certainly fine with me, but I wish some more people would consider exactly what they're consenting to (and what they're participating in) when they decide to tie the knot.

Setting aside the economic and cultural hairballs that characterize the contemporary wedding-industrial complex, my objections against marriage (again, marriage of all sorts) run deeper. My main complaint is that our government confers legal rights on married couples in the first place. If our government sees fit to reward married couples with major financial benefits and other perks, why not keep going and create more benefits for married couples, such as preferential parking spaces or good seats at the movies? Why not make marriage - the clear sign of a mature, grounded individual, after all - a prerequisite for voting rights?

My point is that with the recent developments in same-sex marriages across the country, it might be time for us to reconsider the yoking together of marital status and the rights that people receive when they get married.

In the end, I think the myths surrounding marriage in contemporary America - of lifelong, monogamous couples who live in harmony forever and ever - do far more damage than good. I believe it would be much more useful to detach legal rights from marriage altogether, and to stop giving privilege to such a problematic (and powerful) institution.

I also realize that I am SERIOUSLY in the minority on this issue. There's no way my views on marriage could stand a chance in the political or social arena. So, given the current state of marital discourse, I will join with great enthusiasm in the celebration of the recent California development. Another step in the right direction toward beating back people like James Dobson and the rest of the marriage wingnuts!

I'll now step back meekly in the hope that I don't get shelled too badly...

Whoever said that about ELIZA and Racter was so right...

I view this decision as more Republicans getting off their knees and finding happily wedded bliss.

Not that I care one way or the other.

It's all fine with me.

"The idea that our governments decide to prevent people from having them -- that there are couples out there who love each other and want to get married and can't, not for comprehensible reasons like a ban on incest, but just because of flat-out bigotry, or because of the imaginary threat that same-sex marriages pose to heterosexual marriages -- is just plain wrong."

Why would a ban on incestual marriages be comprehensible? After this decision, why would it be such a leap for a brother and sister to marry. Wasn't the main thrust of this case that people should be able to marry who they want? If my sister is sterile, why shouldn't I be able to marry her? There is no chance she could have children, so why not? You might brush it off as a side issue, never to happen, but just a few years ago, two men getting married would've received the same brush off.

Maybe your sister has other ideas.

MOM! Billy's hitting on me!

"I find it troubling that issues such as these never find daylight."

So how did you find out about them?

"If my sister is sterile, why shouldn't I be able to marry her? "

I can think of some arguments, but why do you think?

Personally, I'm fine with that being legal, since you ask. Why is it my business who you marry?

Second that celebration. Absolutely.

Further, I think that there should be very few legal restrictions on whom one can marry. I tend to agree with 1-- I don't see why the state should restrict marriage between relative. Note that I think this is going to hardly ever, ever happen except possibly for financial/benefit reasons. I also think that polygamous and polyandrous relationships should be allowed. Fundamentally, I strongly believe in the rights of individuals to form the family units they wish.

And incidentally, 1, "sterile" doesn't mean what it used to, what with modern reproductive technologies, so I think it's not useful to consider the ability to have children without medical assistance as a factor in permitting marriage. I'm not entirely sure how it's relevant either.

Fundamentally, I strongly believe in the rights of individuals to form the family units they wish.

Even if those family units are harmful to other interested parties, e.g. children, or society at large? The state does have some rationale for restricting individual choice in this realm. There's no credible evidence that being reared by two same sex parents is harmful to the well-being of children, but that is demonstrably not the case with every form of union.

That said, that's nitpicking. I'm very happy about the California decision, and very happy that the cat is out of the bag at this point on gay marriage, despite whatever reversals the homophobes may try to enact. It wouldn't surprise me if it's legal in all 50 states in 30 years. We've got an America where racial discrimination is now politically untenable; I can't wait for an America in which discrimination based on sexual orientation becomes likewise.

"Fundamentally, I strongly believe in the rights of individuals to form the family units they wish."

As do I. And I was just telling my sweetie last night how important and wonderful I think this decision is, and why, but I'm afraid that leaves me no time to write about it here beyond this. But I do think it's that wonderful and important, and it makes me extremely happy. Happier yet if it's not overturned by a referendum constitutional amendment.

I think it's particularly important because the decision was put squarely on the precedent of Perez v. Sharp.

(I wish I had had time to write the long post I wanted to about the death of Mildred Loving last week.)

"Even if those family units are harmful to other interested parties, e.g. children, or society at large?"

I think the question of when society should make use of government to step in to protect children, and when it should not, and the details thereof, is an entirely separate question from who should be allowed to write a contract with who as regards their own affairs.

And I was just telling my sweetie

Is she a reporter?

In the end, I think the myths surrounding marriage in contemporary America - of lifelong, monogamous couples who live in harmony forever and ever - do far more damage than good. I believe it would be much more useful to detach legal rights from marriage altogether, and to stop giving privilege to such a problematic (and powerful) institution.

Nick, I believe this sort of radical social experimentation has been tried repeatedly, at least since the Enlightenment, in various communes and utopian communities.. and has never worked. Long-term, monogamous (if imperfectly so) male-female pairing is the default pattern in pretty much every human culture, and still defines the family, which is the basic building block of society, in the vast majority of cases. There's really no way to avoid privileging marriage in the legal realm, since the relationship between spouses is both so important and so different from the relationship between any other set of non-related adults. That is, unless you want to create a bunch of other statues that give people the legal rights to share property, file joint taxes, rear children together, make medical and legal decisions on each others' behalf, and all the other things that married couples do currently. The problem is, bundle these rights together and what you've got is pretty close to the definition of civil marriage. You could, I suppose, remove the rather culturally loaded word "marriage" from the equation and define everything as a civil union, but I don't think the institution itself can be deconstructed as you propose without causing a lot of problems.

That said, I'm with you 100% on the wedding-industrial complex. When I get married myself, it's going to be to a girl who's happy with a modest, low-key ceremony done on our own terms.

I think the question of when society should make use of government to step in to protect children, and when it should not, and the details thereof, is an entirely separate question from who should be allowed to write a contract with who as regards their own affairs.

Not identical? Absolutely. Entirely separate? Uh, no. If Warren Jeffs wants to "write a contract" with a hundred women to be his wives, who he'll systematically brainwash and abuse, and browbeat into raising their children with the idea that they exist to marry men like him as teenagers and serve as slave-brides, I think the two questions have pretty clearly intersected.

Why would a ban on incestual marriages be comprehensible? After this decision, why would it be such a leap for a brother and sister to marry. Wasn't the main thrust of this case that people should be able to marry who they want?

Sort of.

The main thrust of the decision is the conjunction of the principle that there is an individually protected right to marry who you want and that a law cannot discriminate between straight people and gay people unless it is narrowly tailored to meet a compelling state interest.

The law preventing gay people from marrying discriminates on the basis of sexual orientation (by denying gay people access to an individually protected right) without being narrowly tailored to meet a compelling state interest.

Other marriage regulations would need to be considered to see if they meet the same standard. But the hurdle is going to be demonstrating that the discrimination in question uses a classification which requires that the rule be narrowly tailored to meet a compelling state interest.

I don't see that rules against incest are based on such discrimination.

Johnny Pez @ 1:56/1:58 -- Brilliant. That is all.

First, in defense of the wedding / industrial complex let me say... My wife and I will celebrate our 36th wedding anniversary later this year and I strongly recommend a happy marriage to everyone. Of course, If I could explain to others how to achieve that blissful state I would now be much too rich to engage in discourse with the riff-raff that frequents this blog.
Second, I think the incest ban is a discrimnitory relic of the days before a real understanding of genetics. I do believe there is a good argument to be made that there is a compelling state interest in preventing, were possible, the birth of children with inhereted disorders. If that is the case, a ban on incestuous marriages is not the way to acheive it given our current state of knowledge. A good place to start would be to require all couples applying for a marriage license to have genetic testing and counseling about the results, so they could make an informed decision about whether they, as a couple, would wish to have children together. No discrimination, and if a brother and sister wish to marry, and there are no genetic issues, no problem.

We've got an America where overt racial discrimination is now politically untenable...

Regretfully fixed.

We've got an America where overt racial discrimination is now politically untenable...

Regretfully fixed.

That's how sorry I am, folks.

that won't keep it from being demagogued, but it really shouldn't be.

I look forward to your post, publius. My rule of thumb is that if it takes the majority over say, 20 pages or so, to prove its point its probably wrong. Here, it took 121.

Legally, I am troubled by the court's bootstrapping of civil unions into a constitutional right to marry. My brief read finds the dissent has it right and the ruling violates separation of powers. To wit: the legislature couldn't overturn the "marriage definition" law, but the court uses the legislature coming "close" to find a constitutional right to marry and thereby do exactly what the legislature could not have done? I guess that's why it took 121 pages. I don't know if that is legal jujitsu as Justice Baxter says, but it's not very good legal reasoning. I'm going back to read it more closely.

Kickback will be huge. Had this gone through the legislature (eventually) it would have been much different. I'm curious what November will bring. IMO, it will only increase the turnout in November.

Whether this is a winning issue or not in the GE, Democrats must stand up for what they believe.

Take the Republicans head-on.

P.S. Gary, thanks for the Mildred Loving link.

bc,

Regarding the question as to what extent the decision will translate to GOP electoral gains, would you mind explaining your position more fully? As I pointed out here, there are real live actual political scientists who have looked at this question (and even published papers!) and have concluded that there is little evidence to support the notion that these court decisions alter electoral outcomes.

As I asked with now_what, I'll ask you: why didn't we see an electoral benefit in the 2006 elections following the NJ court ruling?

turbulence: as to what extent the decision will translate to GOP electoral gains, would you mind explaining your position more fully?

I wasn't referring to electoral benefits. Over 60% of Californians voted to define marriage as between a man and a woman in 2000. Now a constitutional marriage amendment is on the ballot for November. That is what I was referring to. This may ultimately prove to be a step backward for gay marriage from a practical standpoint. If the court had ruled differently, the impetus to vote for those in favor of the constitutional amendment would have been lessened. Now, the turnout will be huge. And if the amendment passes, it will prove far more difficult to overturn than if gay marriage had been allowed to develop through democratic means.

But my comment was simply that we'll have huge turnout in November.

But since you are asking, the court decision coupled with the constitutional amendment may very well result in a different outcome than NJ because the voters will already be there (but I don't know about NJ-was there an initiative on the ballot?).

The two poles here tend to get defined as Marriage Must Be Between a Man and Woman and Marriage Is a Purely Private Arrangement. Both sides agree that the arguments for/against the gay marriage ban are identical to arguments for/against bans on incest, polygamy, etc.

I think this is a mistake. It's looking at the issue too formalistically.

Marriage clearly isn't just personal. It's one of the basic organizing principles of our society, with implications for child raising (most critically) and also for employment, housing, employment, responsibility for the elderly/disabled, etc. Which isn't to say that marriage-as-we-know-it is good or eternal, but that getting rid of it or changing it fundamentally would require enormous changes in all kinds of other institutions that would necessarily be a matter of public debate and legislation.

But! Decisions like this aren't about getting rid of marriage or even really changing it. This is not a conclusion that follows logically from an abstract definition of marriage. It's because there actually exists a large population of gay men and lesbians whose relationships are fundamentally similar to those of heterosexual couples. If there weren't, gay marraige wouldn't even be on the horizon.

So conservatives are wrong to think that legal incestous or polygamous marriages are next, because there aren't substantial communities whose practices such laws would ratify. (FLDS, I know, I know .. but there are literally thousands of times more gays and lesbians in the US than Mormon ploygamists.) But I think Gary Farber -- who probably speaks for most liberals on this -- is also missing the point a bit when he frames the issue as just a private matter between consenting adults. Because whether we like it or not, marriage is a lot more than that.

You like to talk. I don't.

Would that you would exercise your preferences more diligently.

I think I have made my point.

Since few of us seem to get what point you were trying to make in the first place, you may want to rethink that.

If your point was that this is an electoral winner for Republicans and anyone who thinks otherwise must be a San Francisco liberal, you would probably benefit from realizing that argument by assertion does not constitute "making a point".

But by all means, ignore the lessons of demographics and the results of gay-mongering in 2006 and the recent special elections.

bc, thanks for clarifying!

I wasn't referring to electoral benefits. Over 60% of Californians voted to define marriage as between a man and a woman in 2000. Now a constitutional marriage amendment is on the ballot for November. That is what I was referring to. This may ultimately prove to be a step backward for gay marriage from a practical standpoint.

Maybe. It seems however that whenever a court advances civil rights, I hear these cries of concern over how the courts' actions were counterproductive. And yet I rarely hear such concerns when courts make controversial decisions in other areas. For example, I don't recall anyone saying that the USSC's decision in Kelo would ultimately prove a step backward for crooked municipalities trying to abuse eminent domain.

If the court had ruled differently, the impetus to vote for those in favor of the constitutional amendment would have been lessened. Now, the turnout will be huge. And if the amendment passes, it will prove far more difficult to overturn than if gay marriage had been allowed to develop through democratic means.

Surely this cuts both ways though? If the court had ruled differently, mobilizing pro-gay marriage voters would have been difficult: after all, killing the amendment would not change the fact that gay marriage was illegal. Now such voters have something very tangible at stake. I believe there's some behavioral economics research that suggests that human beings value losses much higher than equivalent gains.

But my comment was simply that we'll have huge turnout in November.

Ah. But let's say the ruling had been decided differently, wouldn't we still be expecting huge turnout in November? Based on the extremely high turnout for the Dem primaries and the general dissatisfaction with recent economic performance, it seems like Nov 08 is going to be a high turnout year no matter what the court decided.

But since you are asking, the court decision coupled with the constitutional amendment may very well result in a different outcome than NJ because the voters will already be there (but I don't know about NJ-was there an initiative on the ballot?).

Possibly. On the other hand, if a number of same sex couples get married now, the fact of their marriages could change how the vote in November goes. It seems that many people are more comfortable with banning a practice they don't like than forcibly destroying existing marriages. I've heard from at least one Canadian that this dynamic played an important role in the recent Canadian case.

I don't believe there was any initiative on the ballot in NJ (ballot initiatives are much less frequent in NJ than CA).

I haven't read the decision, so I don't know if the court really confronted what IMHO is the central issue with same-sex marriage.

The real issue, I think, is "are women equal to men?" If women and men are truly, legally equal, then a contract between two people (XX/XX) should be the same as a contract between two people (XX/XY). Things that are equal to the same thing are equal to each other.

Traditional marriage involves one dominant person with full legal rights and a submissive person with lesser rights. Same-sex marriage is clearly between two people with the *same* legal rights, and there is no cue to say which partner is dominant or submissive. Same-sex marriage is *equal* marriage, and thus really does threaten traditional unequal marriage by being a counter-example.

The emotional issue, IMHO, is that a same-sex marriage is one without "natural authority" (that is, there are an even number of penises, so how do you know who's the boss?). Just having such marriages around and visible truly does threaten marriages organized around the natural authority of the penis.

The latest Gallup Poll, btw, shows that while the California ruling "Bucks Majority View" *nationwide*, it does not do so in California -- or NJ. In NJ it's quite possible that we'll get it through the actual legislature in the next few years.

Traditional marriage involves one dominant person with full legal rights and a submissive person with lesser rights.

It does? I'm sure that was true in the past, but are there specific laws that you're thinking of that apply now?

Doctor Science: The real issue, I think, is "are women equal to men?" If women and men are truly, legally equal...

Your reasoning being that the failure to get the Equal Rights Amendment ratified means there's some question about this?

I did not know that.

And I was just telling my sweetie

Is she a reporter?

No, an accountant.

"Long-term, monogamous (if imperfectly so) male-female pairing is the default pattern in pretty much every human culture"

Yeah, not so much. Cite? Look into Plaçage, concubinage, polygamy, pilegesh, polyamory, and some anthropology and history, and you'll find out your assertion turns out to be a big pile of untruth. Endless numbers of cultures have practiced in a widespread, if not dominant, way, plenty of alternatives to monogamy. Ask the ancient Greeks, Romans, Indians, Chinese, lots of Africans, the Mormons, and on and on and on. Facts are useful to look into before making these sort of unsupported assertions.

"But I think Gary Farber -- who probably speaks for most liberals on this -- is also missing the point a bit when he frames the issue as just a private matter between consenting adults."

Perhaps you missed my 9:51 a.m. comment. Similarly, I agree that other legal and other issues arise with regard to various forms of marriage, but I don't agree that that compels society to require everyone sleep in the same Procrustean bed of relationships.

Traditional marriage involves one dominant person with full legal rights and a submissive person with lesser rights.

It does? I'm sure that was true in the past, but are there specific laws that you're thinking of that apply now?

Setting aside that Dr. Science specified "traditional," without limiting that to "contemporary," she also did not, so far as I observe, specify she was talking only of the United States. Neither do I see that she specified that her only concerns were the legal aspects.

Please, as usual, liberate my captive comment. Thanks.

Setting aside that Dr. Science specified "traditional," without limiting that to "contemporary,"

Given that Dr. Science wrote that "Same-sex marriage is *equal* marriage, and thus really does threaten traditional unequal marriage by being a counter-example", I read her earlier use of "traditional marriage" as referring to contemporary marriage. If I was mistaken, I don't see how this sentence makes sense: same-sex marriage cannot threaten notions of marriage in the distant past.

she also did not, so far as I observe, specify she was talking only of the United States.

Nothing in my comment requires that her statements be limited to the US. I do however assume that her statements include the US. Given that she references a Gallup poll conducted in the US and a court decision in CA, I think I'm on firm ground in believing that her comments were applicable to, at the very least, the US.

Neither do I see that she specified that her only concerns were the legal aspects.

Given that the sentence I quoted specifically addressed "full legal rights", I'm not sure I see your point. No doubt her concerns extend beyond mere de jure rights, but her comment did focus on legal rights.

Turbulence:

are there specific laws that you're thinking of that apply now?

Not at all. By "traditional" marriage I meant marriage in "the Good Old Days", however defined -- these days people usually mean some time before 1965, but could go all the way back to the time of the Jewish Bible.

Nell:
Your reasoning being that the failure to get the Equal Rights Amendment ratified means there's some question about this?

No, I mean that full equality for women is not something everyone endorses emotionally.

The logic of the law, under which men and women are equal (even without the ERA), has I think pointed toward same-sex marriage for some time -- arguably, since women got the right to vote and hold political office. It's just taken decades for a significant part of the population to catch up to that logic emotionally. And people who are *not* emotionally on board with equality for women will rightly object to same-sex marriage, because it exposes the fact that not all marriage is authoritarian.

Thanks, Doctor S.; now I see your point.

Similar thinking may have been behind one of the most memorable responses I encountered while canvassing on behalf of the ERA: a man who said, "But.. but.. that would lead to rampant lesbianity!"

Look into Plaçage, concubinage, polygamy, pilegesh, polyamory, and some anthropology and history, and you'll find out your assertion turns out to be a big pile of untruth.

And if you did your research, you'd discover that even in societies where these alternatives are/were practiced, the vast majority of people (>90%) are still in monogamous marriages, as was the case with your latter examples (Greece, Rome, etc.). What I said was "long-term, monogamous (if imperfectly so) male-female pairing is the default pattern in pretty much every human culture". That is true. While some cultures have practiced alternatives (polygamy/concubinage/etc.), they have generally been restricted to royalty/nobility/the super rich. The pattern that most people follow (i.e., the default pattern) is limited monogamy (which includes screwing around on the side with pageboys, mistresses, and others who weren't part of the family unit), with the family-as-social unit still built around the pairing of husband and wife. Technically, this is true even of many "polygamists" such as the Chinese emperors who, while they often had hundreds or thousands of concubines, only had one wife (the children of which were considered the legitimate heirs to the throne).

Facts are useful to look into before making these sort of unsupported assertions.

How true. Perhaps you should take your own advice. I'd add that carefully reading what someone says to make sure you've got their argument right before going off half-cocked in response is also advisable (and yes, I'll admit to having failed to do so from time to time myself).

I agree that other legal and other issues arise with regard to various forms of marriage, but I don't agree that that compels society to require everyone sleep in the same Procrustean bed of relationships.

Well, those issues do sort of require everyone to sleep in the same bed, or at least strongly encourage it.

Example: another legal change that (rightly) got a lot of applause in these quarters was New Jersey's passage of a paid family leave benefit. But the design of such a benefit -- not just the legal terms of it, but the question of how much time is reasonable, how much pay is enough, which employers should be covered, etc. -- really do depend on some assumptions about family arrangements. And these assumptions aren't just descriptive, they are sometimes normative -- as with some countries which specifically reserve some leave time for the *father*, to encourage the burden of childcare to be spread more fairly.

Same goes for a hole host of other public -- and private! -- arrangements. We do have to make some kinds of collective choice about the kinds of family arrangements we expect/encourage -- i.e. what kinds of bed we will sleep in.

But is that bed Procrustean? Well, that depends if you are too short or too tall. if the bed is flexible and most people are the right height, it may turn out to be perfectly comfortable.

In other words, the great thing about this decision isn't that it ratified an abstract right founded in logic, but that it recognized the real, important relationships that millions of Americans already have.

What I said was "long-term, monogamous (if imperfectly so) male-female pairing is the default pattern in pretty much every human culture".

It is certainly the most common pattern in the largest, most historically important cultures.

But the point I'm making is that the other thing these cultures have in common is a subordinate status for women. *That* is the crux IMHO of these traditional marriage patterns.

Once women are truly, legally equal to men, we are no longer conforming to historical marriage patterns. We have a new pattern: where marriages are between two people, *both* of whom are full human beings.

Simone de Beauvoir said that Man is defined as a human being and a woman as a female -- and IMHO this is what the emphasis on "marriage is defined as between a man and a woman" means. Traditional marriage is between a human being and a female. Once you start thinking of woman as human beings, marriages are intrinsically between *two people*. And human beings who are equal to the same thing are equal to each other.

Marriage rights for same-sex couples are really about rights for women. Homophobia is a stalking horse for misogyny. It's a measure of how far we've come as a society that misogyny even *needs* a stalking horse, but that's IMHO no excuse.

DS - I have been seriously puzzled for a long time about how same sex marriage could be seen as "threatening traditional marriage". Your take on it starts to make sense of that for me.

One thing that worries me is that the subordinate status of women is rooted in biology. A lot of people feel very uncomfortable talking about this, but I don't think we'll be able to get over the hump of equality without addressing it in some way. Or at least not soon.

On the incest rules, what's also at stake is the clear potential for coerced/abusive marriages. When someone says they want to marry their mother, brother, uncle, etc, are they doing so because they want to, or because they're being pressured into this by someone in the family? The probability of this happening is unusually high (and it's a very difficult thing to be *sure* there is no coercion in such cases), so it seems better to deny a few people the chance of a valid marriage. The UK laws have already moved away from a purely biological view of this, with limitations on step-parent marriage depending partly on whether they have ever been in a position of authority over the other partner.

This doesn't answer the question of why brother-sister marriages shouldn't be allowed if the pair have been raised separately (the case I think people are most sympathetic to). The problem is that the genetic issues are serious: cousin marriage, which is allowed in the UK, can have some fairly harmful genetic effects. And you can't effectively legislate on the basis of 'you can marry but only if there are no genetic problems'. This is firstly, because who is to decide what is sufficently significant, especially in a fast moving world? And secondly, how can you prevent the same demands then being made on the marriage of anybody who carries a recessive gene for a serious disease? So again, injustice to a small group of people has to be balanced against a considerable potential for harm to others.

That said, I'm with you 100% on the wedding-industrial complex. When I get married myself, it's going to be to a girl who's happy with a modest, low-key ceremony done on our own terms.

xeynon - when/if you get married it will be to a woman who will have her own ideas about weddings, with whom you will need to negotiate respectfully on the matter. The key thing to remember is that the wedding lasts one day, while the marriage (hopefully) is far longer, so agreement on behaviour once married is far more important than agreement about one atypical event.

Magistra puts the finger on the crux of the matter. Inbreeding is a real genetic problem and legal measures to reduce it have a certain appeal. But where to put the border fence? In the past it has been used as a pretense for rigid and often inhuman control. At some times the Roman Catholic Church banned marriages between relatives up to the tenth degree. This often turned into a pure money-making process because fees could be charged for dispensation, couples could be blackmailed with claims that there was some kind of relationship (blood was not the only way to get related, godparents were treated as 1st degree relatives and their families accordingly). The "benefit" was that it could be used for divorce purposes also (because a marriage could be annulled, if relationship was "detected"). One of the points where the RCC was in total agreement with Hitler was the idea of making a "genetic health certificate" mandatory before a marriage was allowed, and at least in Germany the church kept that position long after the war (still occasionally cases make the papers that a priest refused to marry a couple for these reasons).
I fear there is no Salomonic* way to legislate this problem.

*no allusions to his extended family intended here ;-)

The problem is that the genetic issues are serious: cousin marriage, which is allowed in the UK, can have some fairly harmful genetic effects. And you can't effectively legislate on the basis of 'you can marry but only if there are no genetic problems'. This is firstly, because who is to decide what is sufficently significant, especially in a fast moving world?
Why does there need to be some special new law here? Endless numbers of genetic problems can arise with countless numbers of specific pairs of individuals.

Either we can indeed make a law requiring genetic testing of some sort before allowing a marriage contract to be written -- and that seems like crazy overkill to me, since rather than preventing a marriage, if preventing producing a genetically problematic child is the goal, that could be dealt with by either a) simple genetic engineering to correct the problem; or b) not allowing them to have non-genetically corrected kids, rather than saying they can't live together and love each other and be partners -- or we can just not have laws with such requirements for the unbelievably small number of siblings who would actually want to get legally married, and not worry about it, just like we don't worry about having laws to prevent genetically problematic children for anyone else today.

Where's the problem?

"And you can't effectively legislate on the basis of 'you can marry but only if there are no genetic problems'."

Sure, we could, if we wanted to. But why would their be so many siblings getting married, but refusing genetic testing, that would produce a noticeable social problem? Do we have laws requiring gene testing before allowing people to get married now, no matter that we know that would prevent or at least warn of many problems? No? So why would we need to make an entire law to deal with such a tiny number of cases?

Classic story.

Nobody is worried about frelking, and I ask why not?

Anyone have any idea why ObWi is now crashing the Mac version of Firefox half the times I click on a name link in "Recent Comments," or try to post to ObWi? It crashes the entire browser uncontrollably (locks it up), and all SessionSaver will do is reproduce the crash. Kinda annoying, and this has never happened to me with the Windows version, either back with 98, or in 5 years of XP use.

Nor has this happened yet with any other website than ObWi.

david kilmer:

One thing that worries me is that the subordinate status of women is rooted in biology. A lot of people feel very uncomfortable talking about this, but I don't think we'll be able to get over the hump of equality without addressing it in some way.

um -- wha? Women tend to defer to men because we are taught to, because we are smaller, and because we are afraid.

If you mean "we won't get over the hump of equality until women don't have to be constantly afraid of male violence," you're probably right. But how does that make our "subordinate status" "rooted in biology"?

It is not biologically necessary for might to make right -- it's just convenient.

It is not biologically necessary for might to make right -- it's just convenient.

Even if there were some biological asymmetry, the inability to overcome that dictates that 50% of the population is not utilized to the full extent of their abilities. The advantage of the human animal is, I believe, to overcome aspects of their biological programming by various means. Throwing up one's hands and claiming that the difference between men and women in various activities is insurmountable and this dictates the way we treat women is basically a cop out.

"Throwing up one's hands and claiming that the difference between men and women in various activities is insurmountable and this dictates the way we treat women is basically a cop out."

I can only guess at what "rooted in" was intended to mean in this context, but it's unclear to me that it was necessarily anything like the above, and I think it's unnecessary to assume it was. For one thing, "rooted in" clearly indicates the past, and you're writing in present tense.

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