I understand you to be pointing to a possible argument that is rational to show such a thing exists. You have stipulated you do not think it is a compelling argument, there are much stronger arguments on the other side that far outweigh it and that you personally support SSM as an idea (with some debate on the means it could/should come to be). You are pointing this out as an exercise and not defending a personal position.
I think that is about right.
I personally do not agree with your position that the procreation issue is a rational one as a debating point.
I have never, ever seen the government of the United States, in any of its laws, express any interest in procreation connected to marriage. As such I remain puzzled that someone could say a rational opposition to SSM is procreation. The government does not care, the law does not care. Never has on this point. Further, there is no basis to assert that SSM undermines procreation in any way. None. In short it is not rational because there is no rationale here.
As such I really am missing how this can possibly be a rational argument, even if not a terribly compelling one, against SSM. Not trying to be a pain (seriously) but I am missing how it can be as you describe.
Allow me to say this: as firm a supporter of SSM as I am, if I were a lower court judge hearing a case seeking the overturning of a law preventing SSM, and all other things being equal, I would be convinced by Bricker’s amicus curiae brief that precedent ties marriage to procreation – even though as a thinking individual I realize that this is by no means necessarily true. At a court level where precedent is not binding, I might be much more skeptical of such precedent and its validity.
Personally, I think that the point to be drawn from Romer v Evans is that discrimination against homosexual persons merely on the grounds that they are homosexual is insufficient grounds, and that a law permitting opposite-sex marriages and banning same-sex ones must show a rational basis in a legitimate government activity to stand.
In other words, I am by no means convinced by Bricker’s arguments, he has a valid point as regards judicial overturning of SSM bans. As a part of a childless but legally valid marriage, I find the judges’ holdings to be obnoxious and ridiculous. But there is a point to a society under settled law – and he has in fact explicated a rational ground for finding against SSM cliams under a very restricted set of circumstances.
Other than protecting some members of society from the violent or unscrupulous, the only real government interest in regulating marriage that I can see is the interest that society has in ensuring that children are, to the extent possible, brought up by couples who will love and provide for them, as opposed to them (and perhaps their single parents) becoming dependent, to some degree, on the public. To me, that warrants support/U] of SSM and of adoptions by gay couples.
I understand the precedent-driven nature of common law, but it also occurs to me that a “real” government interest should probably be written down somewhere.
Perhaps my view is skewed by having grown up in a civil-law jurisdiction.
I think you’re trying to defend your claim that there are rational, reasonable, non-homophobic reasons to oppose SSM. I think you are bothering to do this because you once seriously accepted and defended some of these arguments, and “I was an irrational homophobe yesterday, but I got better” is not a statement that sits well in the mouth.
Malthus raises a good point - a person can oppose change out of sheer “social conservatism”, without being homophobic. But, what is social conservatism? It’s opposing change by default, and/or opposing change on principle, based on the value of non-change itself.
Opposing change by default: Is this irrational? No. It may be the case that a person has found that thoughtless change is a bad thing - that things should be considered before they are acted upon. So, to any proposed change, it’s entirely reasonable to say “No”, until they give you a decent reason to do it that stands up well to the reasons not to do it.
Opposing change on principle, based on the value of non-change itself. Is this irrational? Unfortunately, yes, the instant that it begins to override the effects of rational discussion. “Because change is bad” is not a reason not to change things; only if change has actual bad side effects is change bad. Maintaining a hardline conservative position in the face of otherwise compelling argument is, therefore, irrational.
So - could dumbass arguments like “the government suddenly cares about whether a married couple can have kids” have been developed purely as irrational smokescreens to throw up to protect an irrationally conservative-for-the-sake-of-conservative position? I’ll shock you: YES, they COULD have been.
But I don’t think they were.
Homophobes are not uncommon; I’m one (to a mild degree; certainly not enough to want to encode the sentiment into law. I’m just squicked out by the sexual and gender unknown. Don’t shoot me!), and of course lots of people are due to their local or religious culture and upbringings. And homophobes have double reason to make arguments against SSM, and ample reason not to really care how dumb the arguments would appear to an unbiased argument. And lots of these arguments are really, really dumb. So I seriously believe that the less-than-picky homophobic crowd were the progenitors of all of them.
Of course, once these arguments were out there in the wild, with large groups of (homophobic) people latching onto them and giving them the credibility of numbers, an ordinary, non-homophobic conservative might decide that the arguments might be pretty good (presumably without examining them too closely). And they serve the conservative’s goal of maintaining the status quo. So, the non-homophobic conservative puts forth the (homophobia-based) anti-SSM argument. And then is shocked when they are accused of behing a homophobe pushing retarded arguments, and feel compelled to fight back in defense, arguing for the arguments regardless of their merit…
(Speaking of which, I’d like to see his reply to my last post.)
Most of your post, I can only respond to by repeating things I’ve already said, so I’m just going to skip to this part.
I do value the traditions of marriage, and I want access to those traditions. But the key there is “traditions.” There are a lot of traditions around marriage that I find valuable. Restricting it to opposite sex couples is not one of them. I just don’t want to throw the baby out with the bathwater. And setting up a situation where a marriage is equally valid if it’s performed by the Pope in Rome, or the greeter at Wal-Mart, is as utter a devaluation of the concept of marriage as I can imagine.
I’m 99.999% certain that someone must have seen fit to mention this, but every time you vote for a proposition or candidate, you’re voting someone else’s rights away.
Well, it’s not like appeals to reason or your own dignity have worked.
I don’t think that qualifies as homophobia. Everyone has tastes, and homosexuality just not being to your taste isn’t homophobia. It’s only when you start insisting that your own personal taste is some sort of objective standard that it crosses the line into homophobia.
I would disagree with your thought that debating the issue is disrespectful–it is one of many ways of building consensus, of making progress towards making those real lives better. The purpose of debate isn’t just deciding what to do–but in many cases is persuasion and education–something that is desperately needed.
That being said, I think debating the issue disingenuously is disrespectful–for the very reason that you point out–that this is an issue that seriously affects lives.
It is just plain wrong to try to influence society in a way that hurts other people based on deception. (I, of course, do not in any way suggest you do so–I understand you’re not arguing the merit of any such position, but merely the reasonableness of holding such a position).
While we are debating whether all opposition to SSM is unreasonable–not the merit of such arguments, (and I have made no general conclusion on that point–If someone offers a reasonable reason to oppose SSM, I am open to it), I think it would be hard for anyone not to accept that at least some is driven by bigotry, and some of that is clothed in sham arguments to give it the aura of respectability.
That, to my mind, is why it is important to look to the consistency of any such argument.
And that presumption, and the hypotheticals it creates that are the bane of 1L, are famous specifically because they do not comport with how the world works. Because the law makes a presumption that would be unreasonable for any rational person to make.
Further,the point that it’s easier to have fewer rules doesn’t help opponents–if that was the goal, then the best marriage law would be one with no restriction on gender. It’s also beside the point.
The argument that must be dealt with is not whether any one such test for fertility must be used, or whether any specific way to tailor marriage is better than any other–but that the absence of either any test for or any meaningful tailoring of the right to marriage based on fertility, (especially given that there are ways to do so easily), can do nothing but rebut or weaken the contention that the definition, or purpose of marriage turns on fertility–on natural procreative capacity–which is key to the reasonableness of the argument now on the table.
There is, in truth, little or no evidence to support such a contention in marriage as it exists today. And I hope you would agree that, since this is an issue that affects rights, any reasonable person would only base an argument to deny a substantial proportion of the population such a right on some kind of evidence–something beyond true rational basis review–a set of facts that is not inconsistent with the proposed argument.
I am trying, I think successfully, not to confuse this and overmatching by other reasons–by focusing solely on the reason to oppose same-sex marriage.
A rational reason is has to have some objective validity–it cannot just be a honest reason, which seems to be the argument you’re making here. An argument is not rational simply because it is internally consistent, or that it states a legitimate policy goal–those are preconditions. It must also have some basis in fact.
For example, if I honestly believe that “we should protect traditional marriage because it is important to protect farms and domestic agriculture,” I do not have a rational reason–because, while the policy goal I state is valid, it is simply not related to the institution of marriage. There is no factual basis for my premise, that marriage has a purpose of protecting farms and domestic agriculture.
Hence, I hope you will agree that the viewpoint you put forward is valid if and only if marriage has a purpose of encouraging natural procreation. That is a premise of the argument used–and the argument is only reasonable if the premise is correct.
I would go further, and argue that any argument to prohibit others from entering into same-sex marriages requires not only that the premise be correct, but that it be (at least) held by some substantial share of the population. The advocate must not just define the purpose of marriage as you propose–but must believe that that is how the purpose of marriage is defined more generally in society. I would contend that it is unreasonable to try to impose a policy on others based on a premise that is known not to be commonly accepted as true.
Let me be clear–I am not quibbling with the procreation part–that is, at the very weakest, debatable. However, as we’ve already shown, in order to support a reasonable argument against same-sex marriage, the premise must be that the purpose of marriage is to encourage natural procreation, defined in a way that excludes both procreation with the aid of modern medicine and adoption.
I argue it is not reasonable to hold such a belief because there is no evidence in the institution of marriage that suggests it was designed to support a definition of procreation or childrearing distinct from its commonsense definition, and that today, the commonsense definition of procreation, of having children, includes both those created with medical assistance and those who join a family through adoption. It is unreasonable specifically because it seeks to defend an institution that just doesn’t look like marriage.
Further, holding the view that marriage is about natural procreation requires genuinely holding the belief that there is something different about unaided, entirely natural sexual procreation that is different from (1) medically-assisted procreation, and (2) adoption of children. That is, after all, the very distinction that is being given weight in the proposed purpose of marriage.
If that is not what the opponent honestly believes, it looks as if he is cherrypicking a definition of “natural” procreation not because it has a relation to how he defines procreation or childbearing–but because it serves to set apart same-sex and opposite sex couples.
I would contend that (1) the necessary implications of the belief that marriage has a purpose of promoting natural procreation are so far out of the mainstream as to make it irrational to honestly believe that they form a part of the current definition of marriage in modern society, and (2) that I, at least, have never seen any reason to believe that they are the honest belief of the same-sex marriage opponent. (and why do I think evidence is necessary? Because such a belief is so out of keeping with how procreation is understood today, and so conveniently well fitted to support an argument to prohibit same-sex marriage).
Let me be clear–I am not arguing that this is, a priori, an irrational argument. I am, however, pointing out that it is irrational unless its promoter accepts its premises and, I would argue, believes that those premises are generally accepted. And I think I have shown that there are very good reasons to question whether anyone in fact believes such a premise.
But that is exactly the question–whether such reasons are rooted in animus or not turns on whether they are honestly believed, or are being asserted as a sham. The reason this cannot be left entirely in the realm of logic is because of that, and because, as I’ve pointed out earlier, because any logically valid argument only reaches a correct conclusion to the extent its premises are true.
Hence, one cannot evaluate the reasonableness of such an argument without evaluating whether its premises have a basis in reality, and whether there is any reason to doubt it is honestly believed. This is why I think your (well-argued) attempt to demonstrate such a point solely through reasoning does not lead to the conclusion you posit.
I might also argue that if such an argument fails “even the most off-hand scrutiny when weighed against other concerns,” whether it is reasonable to use it to support a general rule. I would argue that rationality would require, at the very least, a perfunctory review of whether one’s argument stands up against other concerns. But that is not the argument I make here.
No-one would disagree that it would be wrong to deny a conclusion that the dictates of strict logic must inevitably award to another. Of course, such an argument applies to both sides.
This much I do know: I suspect he’s gotten himself between the devil and the deep blue sea. I mean, he’s pro-SSM ferpete’s sake!
As I understand the dilemma he’s in, he’s not arguing for anti-SSM (a position he doesn’t hold) from a ‘devil’s advocate’ POV but rather he waded in to establish that there may be non-homophobic reasons for being anti-SSM. “Victory” for him, in this context, can only be establishing that at least some anti-SSM people aren’t driven by hate and fear.
It’s a no win proposition in a group that it is as unreasoned and uninformed as this one. I think he will figure out that in every movement there are unreasoned radicals----- SNCC, Al Queda etc----- and in this group it isn’t simply enough to support SSM, you have to demonize your opponents.
ETA: In this context----and the torch he’s chosen to pick up----- his argument only needs to be good enough to establish there may be non-homophobic reasons for being anti-SSM. He is not arguing that anti-SSM is compelling enough to be supported—in fact he’s stated it’s not compelling enough for him to support. Rather, he’s simply arguing that a reasonable person who is not motivated by fear or hate of homosexuals may come to a reasoned position of anti-SSM.
It’s worth repeating: he’s pro-SSM! and…he’s being attacked not because he’s advocating for anti-SSM, but because he’s not willing to demonize those who do.
The irony doesn’t escape me that is rank bigotry, prejudice and the lowest form of ignorance.
If Bricker’s argument turned on marriage having a purpose of procreation, I would agree that its premises are reasonable. It is entirely reasonable to posit, and I would be the first to accept that marriage is tied to procreation–it has a purpose of encouraging couples to have, and to raise children in a married relationship.
The only problem is then the argument is unreasonable as a justification to prohibit same-sex marriages–because same-sex couples today absolutely can, and in fact do quite frequently, have and raise children through means we treat as exactly equivalent to natural, sex-made babies. They can procreate as it is now understood (including medically assisted fertilization, surrogacy, donor sperm and eggs, and adoption). To bar same-sex marriage to further that goal fails even the weakest scrutiny–because the proposed rule works against the policy it is allegedly justified by.
Where his argument falls apart is that it must tie marriage to a very narrow definition of procreation that excludes anything other than genuine, home-made babies, so that it does not fail for the abovementioned reason. And, as I have already suggested, it is at least, hard to imagine someone holding a honest belief that natural, at home procreation is somehow different, more legitimate than the other means—it is completely at odds with how procreation is understood today. For that very reason, I would contend that one must ignore reality to contend that such a narrow definition of procreation is generally accepted as the purpose of marriage.
You’re wrong. He’s being “attacked” because we believe he is incorrect in the factual statements he has made about the provenance and/or reasonability of certain anti-SSM arguments. You see, around here we care about facts. And when a person asserts an extremely improbable and easily proven factual statement dozens of times and then coyly refuses to make the trivial step of backing it up or backing down, we tend to react poorly. (Not that Bricker has done this…)
This isn’t the same thing as demonizing people who avocate for SSM - though there is a high correlation between arguments against SSM and abuses of the facts and truth.
Say wha? It’s all well and good that you don’t feel compelled to picket my house or burn me at the stake over it, but how is an irrational fear or aversion to homosexuals not homophobia? Which part isn’t it? The homo, or the phobia?
Heck, I’ve no desire to engage in homosexual acts, and would decline them if offered (albeit while feeling flattered), but if that rates as homophobia then the term “phobia” is being weakened into uselessness.
“I’m just squicked out by the sexual and gender unknown” isn’t too clear.
And at any rate; if it’s irrational, you acknowledge that it’s irrational, and you refuse to let that irrational distaste push you into acting against them I wouldn’t call it homophobia. It’s the distinction between finding the idea of people eating snails yucky, and between thinking that people who eat snails should be punished or have their rights restricted.
Yes. He is also a lawyer and legal scholar with a deep regard for precedent.
“Mississippi does not recognize same-sex marriages” is factual, whether said by Miller or Magellan. In the same way, I’m saying that Bricker’s masterly summary earlier in this thread of what court precedent regarding the right to marry and its ties to procreation would militate against a court decision on SSM depending on precedent.
And this has nothing to do with what his personal views, or yours or minem may be; it’s what the law has had to say, to date, that is relevant.