— Marriage —

October 21, 2006

Maybe I'm Missing Something...

Posted by Justin Katz

... but could somebody explain what this paragraph — from a letter to the Providence Journal concerning same-sex marriage — is supposed to imply:

The First Amendment protects the bishop's right to express his opinion as it protects the rest of us from his opinions. At least it should.

October 14, 2006

How Sue and Jill's Wedding Affects... the Knights of Columbus?

Posted by Justin Katz

This latest of a string of similar stories from Canada over the past few years ought to be taken into consideration as the individual steps toward Rhode Island's undemocratic importation of same-sex marriage are taken:

In 2003 [the Knights in Port Coquitlam, B.C.] discovered that their hall had been rented by a lesbian couple to celebrate their wedding. But as Catholics the Knights followed Catholic teaching and the Church opposes same-sex marriage. They offered to find another hall for the couple, pay for its rental and also for new invitations to be printed: Sorry for the bother and all that and I'm sure you understand.

Not quite. The couple in question decided to take their oppressors to the provincial Human Rights Commission, who ruled last year that the women should be compensated for "undue hardship." Representatives of the complainants said that the punishment was too mild and that they intended to appeal the ruling.

Which only goes to prove that those silly old Neanderthals who oppose gay marriage are being fanatical when they say that their rights are being questioned. ...

The fact is that no priest, rabbi or imam is going to be forced at bayonet-point to perform a gay wedding. That, however, has never really been the issue. As one of the leaders of the gay community said to me on television, "We'd never demand that someone conduct a ceremony, but if they oppose the law I do think we should question their charitable status."

In response to some comment box sarcasm from Jay, perhaps I should elaborate on what is actually wrong — even insidious — about this sort of "progress."

The extreme idealization of anti-discrimination that has become fashionable, particularly on the Left, undermines what is perhaps the most fundamental principle required to ensure a civil, pluralistic, and free society: that differences can and should be addressed, perhaps resolved, in realms other than government as much as possible. It is a thinly veiled totalitarianism, indeed, that insists that citizens are entirely free, as long as their public behavior accords with the reigning belief system.

Jay's sarcasm is a wonderful example of the sort of non-government pressure that can be brought to bear in the social sphere as an effective means of phrasing an issue so as to encourage social change toward a particular worldview. Of course, Jay's specific commentary is also a wonderful example of the perils of wielding such rhetoric: when it is expressed in terms of social pressure, rather than legal reasoning, one can reasonably wonder whether its proponents actually believe in freedom at all.

September 29, 2006

By the Way (A Political Angle)

Posted by Justin Katz

I had been thinking about a Robert Whitcomb column earlier, and it could not have been more timely. Writes Whitcomb:

The terminology has been successful in cutting taxes for the wealthy and reducing programs that particularly assist the middle and lower classes. More generally, it makes Americans forget that the socio-economic walls are getting higher. Meanwhile, although traditional GOP views have included (to me admirably) balancing the budget, the budget deficits swell and areas of government grow like Topsy (in part, of course, because of 9/11), but the "conservative, small-government" Republicans don't seem particularly self-conscious about that. They can change the subject to, say, gay marriage.

However much the bulk of that paragraph might raise questions worthy of consideration, the closing sentence betrays a bias that undermines all the rest. The Republicans (much less conservatives) are not the ones pushing the subject of same-sex marriage into the light. Moreover, one cannot fault them for seeking to write something explicitly into law when judges seem inclined to leverage the lack of such explicitness in order to codify the opposite policy.

As for whether conservatives are "self-conscious" of the Republicans' abandonment our other priorities, I'd suggest that Mr. Whitcomb keep his eyes open during elections to come.

The Judiciary Continues to Shine Its Murky Light on Marriage

Posted by Justin Katz

Rhode Island's marriage law is astonishingly specific when it comes to which relatives men may not marry:

Men forbidden to marry kindred. – No man shall marry his mother, grandmother, daughter, son's daughter, daughter's daughter, stepmother, grandfather's wife, son's wife, son's son's wife, daughter's son's wife, wife's mother, wife's grandmother, wife's daughter, wife's son's daughter, wife's daughter's daughter, sister, brother's daughter, sister's daughter, father's sister, or mother's sister.

Indeed, the legislature is so specific as to add an entirely separate section to spell out the same for women:

Women forbidden to marry kindred. – No woman shall marry her father, grandfather, son, son's son, daughter's son, stepfather, grandmother's husband, daughter's husband, son's daughter's husband, daughter's daughter's husband, husband's father, husband's grandfather, husband's son, husband's son's son, husband's daughter's son, brother, brother's son, sister's son, father's brother, or mother's brother.

And it added yet another section to affirm the status of marriages if somehow contracted in contravention of the law:

Incestuous marriages void. – If any man or woman intermarries within the degrees stated in § 15-1-1 or § 15-1-2, the marriage shall be null and void.

So why, given all of this specificity, would the Rhode Island legislatures of the past not have specified whether men could marry men and women women? Well, a person not set on bending culture and law to his or her social ideology might reasonably suggest that the legislatures of yore did not deem it necessary to legislate what they thought to be a clear and unambiguous definition.

Unfortunately, the Massachusetts Supreme Judicial Court is not, apparently, populated by reasonable people who are not set on bending culture and law to their social ideology. When determining whether a Massachusetts law that denies the granting of marriages to couples whose home states would forbid them, that court determined (PDF):

... that same-sex marriage is not prohibited in Rhode Island. No evidence was introduced before this Court of a constitutional amendment, statute, or controlling appellate decision from Rhode Island that explicitly deems void or otherwise expressly forbids same-sex marriage; and, after an exhaustive search, this Court has found no such prohibitory positive law.

The problem, it seems to me, is one that is sure to pop up whenever a court declares the English language to be void: we imaginative creatures can concoct all sorts of things that are not explicitly stated in amendment, statute, or appellate decision for the reason that nobody ever believed they had to be. It's possible that some obscure case would prove me wrong, but I don't see how the Massachusetts SJC could conclude otherwise than that Rhode Island does not prohibit men from marrying their fathers, grandfathers, sons, and so on. (Indeed, a very quick look at Massachusetts' laws reveals the same for that state.)

Of course, what I've found in discussions on this topic before is that those who disagree with me on principle, having leveraged the absence of specific language to get their way, will fall back on the vagaries of "understanding" in order to reapply historical standards and intentions to the newly created "marriages." In other words, once a court has asserted that the government has previously acted through inaction in such a way as to leave same-sex marriages possible, it then will turn around and interpret the statutes' failure to ban same-sex incestuous marriages as clearly an oversight that needn't be perpetuated in the law.

Why such a lackadaisical legislature would feel it necessary to write and enact equivalent statutes for each gender is a question beyond my ability to answer. Sadly, I fear that the Rhode Island judiciary, which will soon be poring over newly minted Massachusetts marriage licenses, will offer their rubber stamp without even asking the question.

June 03, 2006

In the Land of the Short-Sighted, the Long-Sighted Man Is...

Posted by Justin Katz

The Providence Journal (which, to build an incidental point on Andrew's previous post, Matt Jerzyk believes to be too conservative) continues its support for same-sex marriage:

Time, however, may be on his side. Despite various state drives to ban same-sex marriage during the 2004 elections, it appears that the idea of such unions is gaining acceptance. Society is better off when any two adults can make a commitment to care for each other. And more and more Americans believe that sexual orientation should not bar anyone from enjoying the rights accorded by marriage.

In that spirit, we extend best wishes to Attleboro's most prominent newlyweds -- and to all who may be exchanging vows in a new bridal season, regardless of sex.

Those who've followed this debate for awhile will spot the (probably unintential) revealing of the chute down the slippery slope: If society "is better off when any two adults can make a commitment to care for each other" — the Projo's gender-free paraphrase for marriage's purpose — why can't those two adults be related? Why, for that matter, must it only consist of two adults?

One final question: can the thinking behind an editorial position be both short-sighted and blind?

May 02, 2006

The Marriage Debate Comes to Tiverton

Posted by Justin Katz

Via the pastor, the same-sex marriage debate has made its way into my Roman Catholic church in Tiverton. How can a socially conservative parishioner do otherwise than respond?

March 30, 2006

Mass. Supreme Court Obeys the Law

Posted by Marc Comtois

Lookee here, the Massachusett's Supreme Court has decided that--yes indeed--the State can't legally marry couples if that marriage would be illegal in the state in which the couple permanently resides:

In an eagerly awaited landmark decision, the state's highest court ruled today that Governor Mitt Romney and Attorney General Thomas F. Reilly had the authority to invoke a 1913 state law that Massachusetts used to block out-of-state gay couples from marrying here when same-sex marriage became legal in 2004.

The Supreme Judicial Court upheld the 1913 law when it was used to block same sex-couples from Connecticut, Maine, New Hampshire, and Vermont, because gay marriage is prohibited in those states.

The court, however, did not rule on the claims of the couples from New York and Rhode Island because state laws there are unclear about whether same-sex marriage is barred. The court sent the case back to Superior Court Judge Carol Ball, who upheld the 1913 law that was appealed, to determine on an "expedited basis" when same-sex marriage is legal in those two states.

The Supreme Judicial Court said the state did not overstep its bounds, though a lawyer for eight lesbian and gay couples from outside Massachusetts had argued in October that the officials had dusted off a 48-word law that had "sat on the shelf unused for decades" in a blatantly discriminatory and unconstitutional ploy.

The law, whose constitutionality was defended before the court by Reilly's attorneys, says Massachusetts cannot marry an out-of-state couple if their marriage would be void in their home state. Romney had said he did not want Massachusetts to become the "Las Vegas of same-sex marriage."

Of course, it's not so clear about Rhode Island because Rhode Island apparently has no clear-cut law banning gay marriage. What that means is that when the law was written all those years ago, the authors didn't think they had to define that marriage was between a man and a women. They kind of took it for granted. The sums it up like this:
Rhode Island Marriage/Relationship Recognition Law
* Licenses marriages for same-sex couples? No explicit prohibition.
* Honors marriages of same-sex couples from other jurisdictions? No explicit prohibition. The state attorney general issued a statement in May 2004 that stated “the office [of the attorney general]’s review of Rhode Island law suggests that Rhode Island would recognize any marriage validly performed in another state unless doing so would run contrary to the strong public policy of this state. Public policy can be determined by statute, legal precedent, and common law.” This is not a binding opinion and the attorney general noted that this question will most likely be answered by the courts.
* Any form of statewide relationship recognition for same-sex couples? No.
Thus, there is a legal avenue open to "define" marriage, much like Massachusetts. (I would note that the official "Marriage Requirements in the State of Rhode Island" (
PDF) mentions "Bride" and "Groom" not generic "spouse 1" or "spouse 2".) I just hope that Rhode Island voters are the one's who decide, not the courts.

June 23, 2005

Turning Discord into Harmony

Posted by Justin Katz

My latest column, "Juggling Spheres in the Marriage Debate," begins with activists' invasion of Notre Dame Cathedral and makes its way to suggestions for resolving the current impasse in the same-sex marriage battle.

April 14, 2005

Jennifer Roback Morse: Marriage and the Limits of Contract

Posted by

Years ago, I attended a Liberty Fund seminar in which Jennifer Roback Morse was one of the faculty. The latest edition of Policy Review magazine contains an article by her. Here are some excerpts:

Marriage is a naturally occurring, pre-political institution that emerges spontaneously from society. Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable. The organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state. The drive toward a legalistic view of marriage is part of the relentless march toward politicizing every aspect of society…

My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage.


Libertarians have every reason to respect marriage as a social institution. Marriage is an organic institution that emerges spontaneously from society. People of the opposite sex are naturally attracted to one another, couple with each other, co-create children, and raise those children. The little society of the family replenishes and sustains itself. Humanity’s natural sociability expresses itself most vibrantly within the family. A minimum-government libertarian can view this self-sustaining system with unadulterated awe.

Government does not create marriage any more than government creates jobs. Just as people have a natural “propensity to truck, barter and exchange one thing for another,” in Adam Smith’s famous words from the second chapter of The Wealth of Nations, we likewise have a natural propensity to couple, procreate, and rear children. People instinctively create marriage, both as couples and as a culture, without any support from the government whatsoever…

In every known society, communities around the couple develop customs and norms that define the parameters of socially acceptable sexual, spousal and parental behavior. This culture around marriage may have some governmental elements. But that cultural machinery is more informal than legal by far and is based more on kinship than on law. We do things this way because our parents did things this way. Our friends and neighbors look at us funny if we go too far outside the norm.

The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement. Parents can’t raise their eyebrows and expect children to conform to the socially accepted norms of behavior, because there are no socially accepted norms of behavior. Raised eyebrows and dirty looks no longer operate as sanctions on behavior slightly or even grossly outside the norm. The modern culture of sexual and parental tolerance ruthlessly enforces a code of silence, banishing anything remotely critical of personal choice. A parent, or even a peer, who tries to tell a young person that he or she is about to do something incredibly stupid runs into the brick wall of the non-judgmental social norm.


The spontaneous emergence of marriage does not imply that any laws the state happens to pass will work out just fine. And it certainly does not follow that any cultural institutions surrounding sexual behavior, permanence of relationships, and the rearing of children will work out just fine. The state may still need to protect, encourage or support permanence in procreational couplings just as the state may need to protect the sanctity of contracts...

No libertarian would claim that the presumption of economic laissez-faire means that the government can ignore people who violate the norms of property rights, contracts, and fair exchange...all libertarians agree that enforcing these rules is one of the most basic functions of government... Likewise, formal and informal standards and sanctions create the context in which couples can create marriage with minimal assistance from the state.

Nor would a libertarian claim that people should be indifferent about whether they are living in a centrally planned economy or a market-ordered economy...It does not follow that impartiality requires the economy to reflect socialism and capitalism equally. It simply can’t be done...The debate between socialism and capitalism is not a debate over how to accommodate different opinions, but over how the economy actually works...Somebody in this debate is correct, and somebody is mistaken. We can figure out which view is more nearly correct by comparing the prosperity of societies that have implemented capitalist principles with the prosperity of those that have implemented socialist principles.

There are analogous truths about human sexuality. I claim the sexual urge is a natural engine of sociability, which solidifies the relationship between spouses and brings children into being. Others claim that human sexuality is a private recreational good, with neither moral nor social significance. I claim that the hormone oxytocin floods a woman’s body during sex and tends to attach her to her sex partner, quite apart from her wishes or our cultural norms. Others claim that women and men alike can engage in uncommitted sex with no ill effects. I claim that children have the best life chances when they are raised by married, biological parents. Others believe children are so adaptable that having unmarried parents presents no significant problems. Some libertarians seem to believe that marriage is a special case of free association of individuals. I say the details of this particular form of free association are so distinctive as to make marriage a unique social institution that deserves to be defended on its own terms and not as a special case of something else.

One side in this dispute is mistaken. There is enormous room for debate, but there ultimately is no room for compromise. The legal institutions, social expectations and cultural norms will all reflect some view or other about the meaning of human sexuality. We will be happier if we try to discover the truth and accommodate ourselves to it, rather than try to recreate the world according to our wishes.


...When Adam Smith’s modern follower Friedrich Hayek championed the concept of spontaneous order, he helped people see that explicitly planned orders do not exhaust the types of social orders that emerge from purposeful human behavior. The opposite of a centrally planned economy is not completely unplanned chaos, but rather a spontaneous order that emerges from thousands of private plans interacting with each according to a set of reasonably transparent legal rules and social norms.

Likewise, the opposite of government controlling every detail of every single family’s life is not a world in which everyone acts according to emotional impulses. The opposite is an order made up of thousands of people controlling themselves for the greater good of the little society of their family and the wider society at large...


The demand that the government be neutral among family forms is unreasonable. The reality is that married-couple families and childless people are providing subsidies to those parents who dissolve their marriages or who never form marriages. Libertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts. Similarly, a free society needs a culture that supports and sustains marriage as the normative institution for the begetting, bearing, and rearing of children. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows. Likewise, a society full of people who treat sex as a purely recreational activity, a child as a consumer good and marriage as a glorified roommate relationship will not be able to resist the pressures for a vast social assistance state. The state will irresistibly be drawn into parental quarrels and into providing a variety of services for the well-being of the children...


The alternative to my view that marriage is a naturally occurring pre-political institution is that marriage is strictly a creation of the state. The Supreme Court of Massachusetts notoriously asserted this position. If this is true, then the state can recreate marriage in any form it chooses. Implicit in this view is the decidedly non-libertarian view that the state is the ultimate source of social order…

This statement brings the statist worldview front and center. Under this vision, the most basic relationships are not between husband and wife, parent and child, but between citizens and state. The family is not the natural unit of society. The most basic unit of society is not even the libertarian individual, embedded within a complex web of family, business and social relationships.

Rather, the natural unit of society is the naked individual, the isolated individual, standing alone before the state, beholden to the state, dependent upon the state…

The libertarian preference for nongovernmental provision of care for dependents is based upon the realization that people take better care of those they know and love than of complete strangers. It is no secret that people take better care of their own stuff than of other people’s. Economists conclude that private property will produce better results than collectivization schemes. But a libertarian preference for stable married-couple families is built upon more than a simple analogy with private property. The ordinary rhythm of the family creates a cycle of dependence and independence that any sensible social order ought to harness rather than resist…

But for this minimal government approach to work, there has to be a family in the first place. The family must sustain itself over the course of the life cycle of its members. If too many members spin off into complete isolation, if too many members are unwilling to cooperate with others, the family will not be able to support itself. A woman trying to raise children without their father is unlikely to contribute much to the care of her parents. In fact, unmarried parents are more likely to need help from their parents than to provide it.

In contrast to the libertarian approach, “progressives” view government provision of social services as the first resort, not the last. Describing marriage as a “privatization scheme” implies that the most desirable way to care for the dependent is for the state to provide care. An appreciation of voluntary cooperation between men and women, young and old, weak and strong, so natural to libertarians and economists, is completely absent from this statist worldview.

This is why it is no accident that the advocates of sexual laissez-faire are the most vociferous opponents of economic laissez-faire. Advocates of gay marriage are fond of pointing out that civil marriage confers more than 1,049 automatic federal and additional state protections, benefits and responsibilities, according to the federal government’s General Accounting Office. If these governmentally bestowed benefits and responsibilities are indeed the core of marriage, then this package should be equally available to all citizens. It follows that these benefits of marriage should be available to any grouping of individuals, of any size or combination of genders, of any degree of permanence.

But why should libertarians, of all people, accept the opening premise at face value? Marriage is the socially preferred institution for sexual activity and childrearing in every known human society. The modern claim that there need not be and should not be any social or legal preference among sexual or childrearing contexts is, by definition, the abolition of marriage as an institution. This will be a disaster for the cause of limited government. Disputes that could be settled by custom will have to be settled in court. Support that could be provided by a stable family must be provided by taxpayers. Standards of good conduct that could be enforced informally must be enforced by law.

Libertarians do not believe that what the government chooses to bestow or withhold is the essence of any social institution. When we hear students from Third World countries naively ask, “If the government doesn’t create jobs, how we will ever have any jobs?” we know how to respond. Just because the government employs people and gives away tax money does not mean it “created” those jobs. Likewise, the fact that the government gives away bundles of goodies to married couples does not prove that the government created marriage.


The advocates of the deconstruction of marriage into a series of temporary couplings with unspecified numbers and genders of people have used the language of choice and individual rights to advance their cause. This rhetoric has a powerful hold over the American mind. It is doubtful that the deconstruction of the family could have proceeded as far as it has without the use of this language of personal freedom.

But this rhetoric is deceptive. It is simply not possible to have a minimum government in a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. But destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms.

It is high time libertarians object when their rhetoric is hijacked by the advocates of big government. Fairness and freedom do not demand sexual and parental license. Minimum-government libertarianism needs a robust set of social institutions. If marriage isn’t a necessary social institution, then nothing is. And if there are no necessary social institutions, then the individual truly will be left to face the state alone. A free society needs marriage.


Paul Musgrave, of In the Agora blogsite, writes a critical review of this article, including these words:

…The article, though, is less a profound challenge to conventional thinking about morality, sexuality, and marriage than a smug reassertion of traditional beliefs dressed up in libertarian clothes…

What is most puzzling about Morse's libertarian argument is its traditionalist turn…

Such concerns, and others which will suggest themselves to the reader, demonstrate why Morse's article is, in addition to being theoretically and empirically unsound, a poor guide to the formulation of policy.

Read the entire posting to get the full extent of his argument.

Roback Morse responds . Since it can be difficult to access her April 12 posting, here it is:

I tried to make a libertarian case for social conservative positions on marriage, but some libertarians aren't having any part of it. First, here are the parts of my argument. Marriage is a natural, pre-political institution that has arisen spontaneously in every known society. I define marriage as society's normative context for having sex and for rearing children. The modern position is that society does not need ANY normative institution for either sex or child-rearing. Anything people happen to come up with is just fine: no particular sexual or family relationships should be privileged by the state, or by the wider culture.

Observing that marriage has taken different forms in different times and places does not in any way diminish the importance of this point. No society has ever claimed that sexual activity is a morally neutral activity. No society has ever been indifferent to the context in which children are raised. Until now.

This modern position is not sustainable, and it certainly can not be the foundation of a minimal government. Some forms of family are demonstrably better than others at raising mature adults who have the self-command necessary to keep a free society going. I would not have thought that this was a controversial point at this late date. The collapse of the family unit calls forth an increased demand for government services to support the family, both the dependent children, and the dependent elderly. This is no longer a theoretical possibility: it is an established fact, well-known to everyone who works in the area of marriage and family.

Paul Musgrave's listings of different forms of marriage does not answer the basic points: 1. Something like marriage, sustained by both legal and social institutions, has occurred in every known society, and 2. some work better than others. To claim that we are morally required to strike a posture of neutrality among forms of marriage, and child-rearing arrangements is to say that we are morally required to suspend judgments about which arrangements work well, and about what our goals are as individuals and as a society. This, I take it, is one of the points of the gay marriage debate. But if the argument is that justice requires us to be neutral, then there is really nothing left to debate.

I have argued many times for instance, that cohabitation is an extremely bad idea, even if it is perfectly legal. Saying that a choice is legally available does not help much in deciding whether it is in fact a good choice.

By the way, Judge Posner's economic analysis doesn't really do the job either. He offers an account of why socially acceptable standards of sexual conduct have evolved over time. Much of what he says is perfectly correct. However, his claim that modern sexual behavior is morally neutral is incomplete in an important way:

To the extent that as a result of economic and technological change, sex ceases to be considered either dangerous or important, we can expect it to become a morally indifferent activity, as eating has mainly become (though not for orthodox Jews and Muslims). At this writing, that seems to be the trend in many societies, including our own. This is not historically unprecedented; many cultures have been far more casual about sex than our own—ancient Greece, for example.

He underestimates the psychological costs of casual sex. And, he doesn't seem to realize that the sexual revolution has a moral code of its own. The sexual revolution itself tells us what we ought to consider a cost, and what we ought to consider a benefit. This is a well-known problem of utilitarianism as a moral theory. There are many situations in which costs and benefits are ambiguous in some way. In those cases, the "cost-benefit" calculus does not offer a complete answer, and has to supplemented by some other theory telling us what to consider a cost worth avoiding, and what to consider a pleasure worth pursuing.

For instance, women are supposed to discount any longing they might feel for permanence in a relationship. Men are supposed to suppress any feelings of jealousy that might indicate possessiveness. And any woman who has second thoughts about her abortion, well, she is supposed to keep those feelings to herself. Those feelings are costs people are required to bear as a badge of loyalty to the sexual revolution.

It is my observation that there are many "walking wounded" out there, people who have been harmed in various ways by the claim that sex is just for fun, and that no harm can come of it, as long as it is voluntary and properly contracepted.

April 12, 2005

Testimony in Opposition to H5660, Concerning Same-Sex Marriage

Posted by Justin Katz

Although it has apparently been stricken from the itinerary within the past couple of days, today's RI House Committee on Judiciary hearing was supposed to include testimony concerning a bill (PDF) that would delete gender from Rhode Island's definition of marriage. Being unable to make it to Providence, this afternoon, I submitted written testimony, which I've pasted below. Please consider contacting your state representatives and, if you'd like to make a more prominent statement, the Committee on Judiciary as well.

When I began considering testimony in opposition to bill H5660, concerning same-sex marriage, my first thought was of the people who would be making statements for the other side, whether verbally, in writing, or through participation in the corresponding rally. Their motivation is easy to understand; at issue are the terms by which they live and love.

In contrast, I was drawn to the topic during the summer of 2001 as an intellectual matter. More or less ambivalent about the issue, I merely thought some of the arguments put forward by same-sex marriage proponents were incorrect in interesting ways. As I've researched, thought, and written about the topic, however, it has become increasingly apparent to me that at issue are the terms by which we all live and love. Unfortunately, the experiences that would count as personal testimony of this are so pervasive that we take them for granted, and the people who would be most harmed by such a profound social change are not available for comment.

Before the representatives of the people Rhode Island is a bill that would make some editorial changes to statutory language. On the surface, it doesn't seem like much — a simple matter of erasing gender. Man and woman, husband and wife, simply becomes "any person who otherwise meets the eligibility requirements" and "any other eligible person regardless of gender." A tweak, really, to answer the emotionally compelling pleas of a minority for whom the historical model of marriage does not fit their relationships.

But passage of this bill would not represent a minor change. For some perspective, consider that, until extremely recently, every reference to marriage in law, sociology, psychology, history, literature, lexicology, and, yes, theology has been understood — by definition — to suggest a man and a woman. More: in the interwoven network of culture, every law on the books, every idea by which our society has defined itself, was formed in a world that took the meaning of marriage for granted.

No doubt, it would be compassionate, and conducive to social health, to extend certain benefits to homosexuals for their roles as parents and as mutual caregivers. If they face inordinate difficulties ordering their affairs, then their fellow citizens should consider means of addressing undue hardships. We should do these things, however, without tampering with the meaning of marriage.

Marriage is not solely, or even primarily, a civil contract. It is not a system for awarding benefits. It is not a statutory definition to be rewritten. It is a matter of fundamental construction, linking families across generations, tying a man and a woman to the children whom only a father and a mother can create. The phrase "regardless of gender" recklessly disregards the unique nature of relationships that join the genders. This is not a disparagement of those who are not drawn to such relationships; it is a statement of reality.

Homosexuals who would like the legal ability to marry each other ask whom it would hurt. The answer is not emotionally satisfying, but it is no less important for being so. Marriage is effective because of its shared principles and the way in which it counterpoises benefits and requirements, law and romance, responsibility and emotion. And this balance of factors is most important for those least able to articulate them.

There are two distinct reasons that such people aren't stepping forward to testify about the importance of marriage's preservation. The first covers people who do not realize how important the social and moral standard of marriage is to them, because they are not among those who consciously uphold the standard, but rather are those whose lives the standard is meant to shape. The second reason covers people who have not yet been born and have not yet been subjected to a society in which marriage is not about ensuring stability in the circumstances of their birth. We can glean a sense of the effects that marriage's redefinition would have on these groups by observing the effects of previous changes to the institution; look particularly to the inner city.

No, the question that you face as representatives of the people of Rhode Island is not an insignificant one. Please do not use the law of this state to dictate a change with consequences that we cannot possibly comprehend as we stand, now, in the midst of turmoil and controversy. Please do not ignore the countless faces that we cannot see out of compassion for a few that we can.

February 12, 2005

The Providence Journal Sets Precedent

Posted by Justin Katz

As I've suggested before, this case may not have been a big deal if decided in court, and it will probably be even less so since the judiciary didn't get involved at all:

The [Tiverton] School Committee still has to work out some legal details, but it decided to extend the health-care benefits of retired teacher Cheryl McCullough to her spouse, Joyce Boivin. The couple, who live in Swansea, were married last June in Massachusetts.

There may be future cases that attempt to push this sort of decision further and further, but if McCullough's contract extends the benefit to a spouse recognized in her state of residence, then the legal implications of extending the benefit to a spouse recognized in her state of residence are very limited. Things would be different if Rhode Island law explicitly forbid recognition of same-sex marriages in any form, but it does not.

Of course, as I've previously said, it increasingly seems that judges can find precedent anywhere and anyhow they wish, so even there, a school board's decisions either way are of little consequence. What's interesting, though, is the Providence Journal news department's analysis. (Perhaps "speculation" would be a better word, because staff writer Michael McKinney offers no substantiation. Indeed, his independent quotations minimize the significance of the case.) Here's the headline and first paragraph of the piece:

Towns providing benefits to married same-sex couples

A decision by the Tiverton School Committee this week may signal that Rhode Island is beginning to recognize the legitimacy of same-sex marriages among Massachusetts couples by affording them the same benefits as heterosexual couples.

There are two ways to interpret the spin: either the Projo is merely attempting to exaggerate controversy to sell newspapers, or it is attempting to frame the public's understanding of the issue and the precedent with an eye toward future same-sex marriage cases. Neither option instills much confidence in the objectivity of its reportage on this matter.

January 27, 2005

Thwarting Ideological Compromise in Connecticut

Posted by Justin Katz

The Family Institute of Connecticut notes an interesting development on the same-sex marriage front in that state:

Even Rep. Staples and the Courant are beginning to realize that Love Makes a Family is an extremist organization. But they should not be surprised by LMF's position. It follows naturally from the group's misreading of Connecticut public opinion on same-sex "marriage." Pro same-sex "marriage" legislators and the Courant are aghast at LMF's "all or nothing" push for same-sex "marriage" because they are slightly more tethered to reality. LMF, on the other hand, may really believe its own spin about the fictional "Planet Connecticut," a land where an "enlightened" majority favors same-sex "marriage."

If so, Connecticut's pro same-sex "marriage" media establishment bears some of the blame. Today's Courant piece, for instance, uncritically touts a UConn poll purporting to show that a majority of state residents favor civil unions and a plurality favors same-sex "marriage."

LMF's ardent persistence continues the lesson that the various rebel civil servants around the country imparted when they shrugged at the law and began handing out marriage licenses: the prudent and practical among same-sex marriage's supporters aren't really spokesmen for their cause. This applies to their ability to fairly negotiate (for lack of a more appropriate term) at each stage of the society-wide debate, and it applies to the amount that the other side ought to take them as representative.

January 19, 2005

Memo to the President

Posted by Justin Katz

"Lukewarm" support for the FMA is just fine, Mr. President. See my piece today on NRO for details.

January 15, 2005

Finding the Same-Sex Marriage Story

Posted by Justin Katz

This story appeared almost two weeks ago, but I wanted to do a little research and give the matter some thought:

The School Committee requested clarification from the courts after Cheryl McCullough, who worked as a health teacher and guidance counselor at Tiverton High School for 27 years, applied for health insurance for Joyce Boivin, whom she married in their home state of Massachusetts nearly seven months ago.

Gay Rhode Island blogger Woneffe thinks that, if "the judge determines that the Tiverton School Committee should recognize this couple as married, it could work as an end-run around Massachusetts Gov. Mitt Romney's insistence that no out-of-state same-sex couples can wed in Massachusetts." Of course, in this era, any judicial precedent seems an open invitation to end-runs around any law, but I don't see how Woneffe's suggestion applies — specifically, from Massachusetts' perspective.

Regarding the law to which he refers, all sides of the debate essentially agree that it only restricts couples whose marriages won't be recognized in the state in which they live. In the case at hand, McCullough and Boivin aren't residents of Rhode Island, but of Massachusetts, which obviously recognizes its own same-sex marriages.

Unfortunately, the length of time that I currently have to dig for laws and union agreements is insufficient to clarify a lawyerly ambiguity (which I've emphasized in the following), but UCLA attorney Lynette Labinger points to the pivotal point both in the judgment and the precedent that it would set:

"Nobody is disputing the validity of the marriage," she said. "The only issue as far as we're concerned is the agreement between the School Department and the union, which recognizes a marriage as long as it's valid in the state it's entered in."

As I suggested, I wasn't able to find the contract or the union's specific language dealing with marriage. It may be that Labinger is laying the groundwork to expand a relatively benign clause in future cases. If the union's agreement with the school department is that marital validity is determined according to state of residence, then a ruling in favor of this couple might not be a big deal. Discussion could and should be had over whether Rhode Islanders should extend benefits to out-of-state commuters that aren't available to our fellow citizens, and it would surely be a concern that the allowance would, without a doubt, be cited as unfair and requiring the courts to change Rhode Island marriage law for its own citizens. Nonetheless, state of residence provides a fairly stark line.

More concerning is the possibility that Labinger did not misspeak — that "entered in" is the actual language of the contract. In that case, a ruling in favor of the couple could mean that teachers' union negotiations essentially dictated Rhode Island law. A judge could easily find that — under the terms of the contract — school departments must recognize the same-sex marriages at least of couples who moved to Rhode Island from Massachusetts, and perhaps those who merely managed to procure a license somehow. Once that's accomplished, it's hard to believe that this state of affairs could long apply solely to teachers.

Of course, it may be a cynical route toward optimism to recall that a number of things apply only to teachers, in this state. For one thing, readers might find it more scandalous that the sixty-year-old McCullough retired in 1996, barely into her fifties!

November 22, 2004

Facing the Judges

Posted by Justin Katz

A word on where Andrew and I differ most significantly on the Taricani matter: Andrew believes that one problem that conservatives face when attempting to trim the powers of the judiciary is that they "pick a hot-button issue -- gay marriage, flag burning, 'under god' in the pledge of allegiance -- to advance the cause of placing limits on the power of the judiciary." In the course of the public debate, the judicial aspect gets lost in the heat of the social issue.

Of course, as one who has written often about the issue of same-sex marriage, I'm predisposed not to want other issues to detract from the fuel that helps the traditional marriage side keep its case moving. Even accounting for that bias, however, I still think social/cultural issues are the ones on which to stand against the judiciary. The central reason, putting aside the difficulty of motivating the public to become concerned at all, is that endemic judicial activism has been most egregious in its imposition of judges' cultural values. That is where they seem most motivated to cross lines, so that is where the lines must be bolded.

The case of Jim Taricani involves what might be characterized as government theory. Strategically, that means the principles behind the struggle will have to be explained to the public (and the media) in order to give the movement any momentum, and such explanations tend to tip the scales back toward apathy. Furthermore, while hot-button issue may overshadow judicial considerations, more targeted volleys will highlight the specific questions involved, allowing the larger picture to slip away.

In the Taricani/Torres case, those specific questions will be the use of protective orders and, especially, of court-appointed special prosecutors. These are certainly issues worth addressing, but I don't know that they're worth expending a great deal of the President's political capital. More importantly, given my priorities, I'd fear that success would give social activists a rhetorical pin with which to deflate the judicial activism side of the other battles.

November 20, 2004

Stone's Alexander May Teach A Lesson...

Posted by Marc Comtois
...though it may be one different than intended. When I first heard about Alexander I was naturally interested as it was an historical epic and history is, after all, one of my main interests. (Granted, I know how Oliver Stone tends to treat historical fact, but I'm still interested in the film.) Now, the current "controversy" around the film seems to be centered around the very-much historically accurate fact that Alexander the Great had a male lover. However, the controversy may be a smokescreen. It seems as if the writing may not be so good, and that the movie may be so bad that some are trying to use the "controversy" over the homosexual content as an excuse for a potential box-office flop. So why did I bother to bring all of this up? Well, the whole discussion over the homosexuality of Alexander got me thinking about the history of homosexuality.

It is a well-accepted fact to say that Alexander was bisexual and had male lovers throughout his life (as did many Greeks). Homosexuality was considered normal in the Greek culture (as well as many others). That leads to a question: did these male lovers ever marry? Some have sought to find examples of gay marriage as far back as antiquity, though what they have really done, for the most part, is to find something they define as being akin to marriage, which they classify as same-sex union. However, others have claimed to have found examples of the Catholic or Orthodox Church condoning marriage between same-sex couples. These assertions have been criticized as examples of "false history" and an attempt to justify aspects of modern culture by reading their antecedents into the past. Additionally, it is also a fact that many of these particular types of homosexual relationships were examples of pederasty, or a homosexual relationship between a young boy and an older man.

Homosexual relationships also existed in Japan, China, Korea and many Islamic cultures, as well as the Sambia of Papau New Guinea. Not only did such relationships fulfill the desires of the two participants, they seem to have been considered a step on the way to manhood, at which time a man took a wife and had a family. This itself implies that the expected role for a mature male was that of a father and husband married to a woman. (With this in mind, there has been scholarly argument over the "social construction of homosexuality" and whether pederasty and homosexuality are necessarily the same thing).

Homosexuals have been fighting for widespread social acceptance throughout history. By the 1970's, they were redefining their goal from that of mere social acceptance of their own self to social acceptance of their "lifestyle" choice. (From "love the sinner, hate the sin" to "love the sinner, accept the sin," if you will). With these arguments now essentially won (for the most part) homosexuals are now devoting their energy to social acceptance of their relationships. However, they don't seek just legal acceptance, rather, they seek to redefine an institution. (Note: Justin has written extensively on the gay marriage debate).

In all of the historical examples of homosexuality and gay marriage (or its approximation) cited by proponents, a careful reading reveals one component missing: there is never a mention made of children. It is widely accepted, though largely understated, that children need parents of both sexes to provide a basic solid social groundwork. To some of us, this seems like common sense. Yes, there is divorce, loveless marriages, single mothers, successful gay or lesbian parents, etc., but a family with a father and a mother has been shown throughout history to be the best and most basic social construct for proper child development. Marriage is more than a bond between two indivuals, it is also society's way of providing the best environment for child-rearing. Just because some do not aspire to the ideal does not render the ideal obsolete. I hope that we don't let the exceptions make the rules.

ADDENDUM: There are other arguments to be made against gay marriage. (For example, I attempted, somewhat poorly, to provide a "rational" argument for the alternative of civil unions, here. Much of what I said then I still believe, but I think the more convincing argument centers around the raising of children, as mentioned above.)

November 19, 2004

Meeting the Emotional Needs of the Elite

Posted by Justin Katz

Brown professor Anne Fausto-Sterling, recent Massachusetts-made spouse of Brown professor Paula Vogel, skirts the heart of the same-sex marriage debate (coming to a small coastal state near you) in a Providence Journal column today. Interspersed with a description of exactly the sort of ceremony that one would expect from New England radicals, Fausto-Sterling offers points of rhetoric that adeptly slip right past any arguable point so as to return to emotionalist tugs that are ultimately irrelevant:

Many argue that marriage is about family, parents, children, and generational continuity. I agree. And here, too, I cannot fathom how hetero- and homosexual unions differ.

It might be enough for many (maybe most) of those with a conservative bent that Fausto-Sterling "cannot fathom how hetero- and homosexual unions differ." But simply shrugging such statements off without rebuttal allows the mantra to do its work among citizens who, especially in this region, want to be tolerant, but who wish this uncomfortable issue would just go away. The biology and gender studies professor goes on:

Not all marriages of either sort have children -- sometimes by choice, sometimes because the bodies are unwilling.

I cannot fathom how a highly educated woman so casually equates "marriages of either sort" under such an inapt euphemism as "unwilling bodies." On one side of the orientational divide are couples biologically constructed so as to have children, often without even trying, with the vast majority of the married among them procreating at some point in their lives. On the other side are couples biologically incapable of doing the same and aware of that inability from the moment their eyes first meet.

Moving on from that dubious elision, Fausto-Sterling opens her rhetorical umbrella so wide as to argue for same-sex marriage on the basis of benefits that marriage of any sort is not needed to provide:

But married couples, with or without children of their own, serve important roles for children -- as aunts and uncles, as godparents, as teachers and confidants.

As should be immediately obvious even to those outside the ivied walls, couples can serve such roles with or without being married — with or without being couples! Indeed, when Fausto-Sterling poses her closing rhetorical questions, readers might wonder why it is she believes we need institutional recognition of marriage at all:

How could it be that these ceremonies that stabilize us, that strengthen communities, that support children, that offer social and economic supports, especially in old age and in times of illness, benefit couple and society when two-sex couples engage in them, but not when same-sex couples do?

It isn't the ceremony that makes the marriage; marriages can be had with a minimum of frills, after all. Furthermore, nobody, to my knowledge, is arguing that ceremonies of any sort oughtn't be allowed. The question that Fausto-Sterling is apparently ideologically disinclined to address beyond a dismissive "no" is whether the nature of same-sex couples calls for differences in the way in which our public institutions handle them. Perhaps it would be beneficial for our society to find some way to encourage commitment and stability among homosexuals, but that does not mean that it can or should be the same as our encouragement of men and women to marry each other.

How can the good things that marriage brings to same-sex couples subtract from the worth of marriage between couples of different sexes?

By allocating benefits and extending definitions meant to create a social expectation to a relationship that is fundamentally a matter of choice (because it cannot create vulnerable dependents), and by blurring a necessarily simple and concrete social construct, both inherently and through the threat of further change.

I ask those opposed to marriage for lesbians and gay men: Which of the pledges we made during our marriage harm you?

To this final question I give the implied answer, but without the implied conclusion: Absolutely none, and that is why such pledges oughtn't be stripped of whatever meaning their takers invest in them. Fausto-Sterling's view of society, however — in which direct harm to another is the only barrier to defining culture for one's self — is antithetical to the purpose of marriage.

Marriage is meant to unite couples even when they aren't inclined to make pledges. It is meant to define a culture in which two people who have the ability to be responsible for the creation of new life will handle that new life responsibly, binding themselves to each other on that basis, even if not entirely for that reason.

In other words, appeals to the emotions and tolerance of good-hearted people aside, marriage isn't about the pledges and ceremonies of autumn-aged elite white women after fifteen years as a couple.

November 16, 2004

The Racket Next Door

Posted by Justin Katz

Especially without being in that state, it'd be difficult to guess the political dynamics of a probable proposal in the Connecticut legislature:

On Election Day, voters in 11 states approved constitutional bans on gay marriage. But when the Connecticut legislature meets in January, the state may buck the national trend.

Democrats hold strong majorities in both houses of the legislature. The party's leaders favor some sort of civil unions which would grant same-sex couples many of the same rights as married heterosexual couples.

Rep. Robert Godfrey, D-Danbury, and other lawmakers say it is almost inevitable that a gay union measure will become law in the 2005 session of General Assembly. ...

... The judicial branch is not forcing the hand of Connecticut's legislature.

At least not yet.

However, earlier this year, seven same-sex couples filed suit to force Connecticut to legalize gay marriage. Some preliminary hearings have been held on the case, which is pending in New Haven Superior Court. The case is expected to take at least two years to decide; most observers expect it to end up before the state Supreme Court.

From now until one side or the other wins at the national level (or both sides admit stalemate, which isn't likely), every governing body in the country is going to face a variety of concerns: the separate powers of the branches, events in other states, struggles at the federal level, and (oh yeah) constituents' wishes. Gay rights activists are going to continue with their through-the-courtroom strategy. The mainstream media everywhere, but particularly in the Northeast, is going to accelerate its advocacy. Supporters of traditional marriage will continue to argue that the issue is going to change the Constitution one way or another.

Various states will respond to the forces in different ways, and the federal debate will be shaped accordingly. We can only wait and see what happens, but I'd guess we'll be seeing it happen in Rhode Island relatively soon.

Radical Change by Definition

Posted by Justin Katz

Since this is my first post on same-sex marriage on this blog, it is probably relevant to note that I've already written extensively on the topic.

Barbara Gordon of Pawtucket is "distressed" at various efforts to write into the law explicitly what, until recently, everybody thought to be there by definition:

I believe it is immoral to discriminate against any minority group solely because they differ from the norm and make some of us uncomfortable. I believe it is un-American to deny civil rights to certain citizens not because of any crime, but just because of who they are and whom they love. I cherish the U.S. Constitution and am concerned when those who would have their religious beliefs dictate the laws that affect us all seek to undermine the constitutional separation of church and state. ...

Whom another person wishes to love, comfort, and honor threatens none of us; codifying discrimination in anti-gay marriage laws or amendments harms us all.

If the law — as it already exists — is clarified, you see, then those who wish to change it will find it more difficult to convince a judge to declare that marriage is something other than what the language means it is. I've come to think that this is less a conscious stratagem than a flaw in reasoning.

Mrs. Gordon might be edified to learn that I agree that civil rights oughtn't be denied "just because" of whom somebody loves, and that I'm also wary of people who rely entirely on irrational beliefs to dictate laws. I suspect she'll be a bit less enthusiastic about my suggestion that her irrational beliefs are a case in point.

I've given Rhode Island's marriage laws a pretty thorough look, and I see not a word about "love." In fact, the words that Gordon uses to describe marriage are conspicuously religious-sounding, and while civil officiants may use them as boilerplate, they aren't required to do so by law. This isn't just a cute debater's point, because it underlies the two critical concepts in her argument: "civil rights" and "discrimination."

At Gordon's urging, I found and read Charles Bakst's November 11 column on the topic. Therein, Providence Mayor David Cicilline takes the same approach as Mrs. Gordon (and most other supporters of same-sex marriage). Petitio principii, he embeds his conclusions in his assumptions:

You cannot on the one hand say 'I respect people' and 'I agree with tolerance' and at the same time argue for discriminating against the same group of people. And, frankly, gays and lesbians aren't asking to be 'tolerated.' We're asking to be valued and we're asking for the same rights and responsibilities that everyone else has. You 'tolerate' an annoying noise in a car.

But is the equivalence of same-sex marriage and opposite-sex marriage a civil right? Is refusing to recognize same-sex marriages invidious discrimination? It is only so if, as the innovation's proponents contend, society's interest in recognizing marriages in the first place has nothing to do with the spouses' being of opposite sex. For "discrimination" to deserve the revulsion that the word too often sparks even in its most neutral sense, two groups must be similarly situated. It is not invidious discrimination, for example, for a carpenter to be denied a tax break intended for teaching supplies. That unjust discrimination is so often assumed in the opening salvos of the same-sex marriage discussion ought to be cause for concern.

To declare so haughtily that traditional marriage laws violate the rights of homosexuals, one must believe that there are no differences between men and women that are relevant to marriage. If marriage is not centrally about gender, then it is not centrally about the most obvious thing that men and women can only do together: create children. And if marriage is not about procreation, then there's no reason it has to be about sex. And if it isn't about sex, then intimate love — as opposed to other forms of mutual interest or affection — needn't be definitive. Marriage, in other words, becomes a partnership in the most bland, contractual sense of that word.

That outcome has proven all but inconceivable to many who support same-sex marriage (at least those whom we trust about their intentions). They take for granted that the emotional culture of marriage is written in firm ground that they imagine at the core of our social being. As they, themselves, prove that ground is not as firm as it might seem. Even if it were, however, we would still have to keep in mind that the law does not require married couples to act married, or even to proclaim that they are. Any stigma associated with same-sex marriages of convenience would have no readily visible identification on which to accrue and would therefore quickly slip away.

I can only muse that those who are most willing to force radical changes on our culture are also the most naive about the ways in which the culture can change. And I can only be distressed that too many seem to believe that same-sex marriage would represent no change at all.