Rights and their limits

If you believe both should be granted, where do you draw the line -- and why?

I draw the line at individuals or creatures that do not have the capacity to enter into a contract - minors, animals, potted plants, etc.

I draw the line at individuals or creatures that do not have the capacity to enter into a contract - minors, animals, potted plants, etc.

True, and I should have made that clear.

I can just see trying to marry one's pet rock, and getting it to sign a form.

Also, most states have strong laws to protect minors from exploitation in this regard.

"The "one to a customer rule" is not affected by a "genders are equal" rule."

True. But the issue of polygamy is less clear that that. Polygamy was not sanctioned in the Bible. Saul, David and Solomon all had multiple wives. In the case of David he had multiple wives prior to becoming king. We also see mention of polygamy in the NT, in letters where Paul instructs Timothy and Titus regarding who should be leaders in the church.

Polygamy is less about a moral demarcation and more about a societal convention. If, for example, some great war caused the loss of over 75% of our male population, I suspect you would see society turn a blind eye to one of the remaining men taking 2, 3 or perhaps 5 wives and fathering children by them, just to repopulate the nation.

Societal values (mores) change over time. At one time in our culture we saw interracial marriage as a moral issue. It was believed that when God separated the races at Babel, it was meant that they remain separate. Intermixing races was viewed as being counter to God's order for society. In time this changed (a change that was formalized not by public ballot, but by court decree) and we now accept interracial marriages as normal in our society, for the most part.

Where do we draw the line? This is indeed an excellent question, for the line has moved numerous times in the 200+ years of our nation's history. And it will move again in the future, and continue to move as we address new issues down the road.

"What dangers does a regime face when its people believe that those who demand things are the best judges of whether or not they ought to have them?"

Let's take this question back to other moments in our history where society made significant change. For example, were women the best judges of when they should have been given the right to vote? Were blacks the best judges of when they should have been granted basic civil rights? Were the farm workers in California the best judges of when they should have been granted the right to unionize?

Rod, you seem to favor the position that the minority should wait until the majority is willing to grant their request rather than petitioning for redress from the judiciary. I've asked this before and will ask it again: were the Lovings wrong to have sought relief in a Virginia court in the 1950s when the state said they could not live there as an interracial married couple? Should they have waited, putting their marriage on hold, until the majority in that state decided to vote to grant them the right to marry?

"What dangers does a regime face when its people believe that those who demand things are the best judges of whether or not they ought to have them?"

What kind of question is THAT? It's like the "from each according to his ability, to each according to his need." Who determines ability and who determines need?

I don't want anybody deciding whether or not I'm the best judge of what I should have; but if my prerogative is taken away, so is my responsibility.

Number is, as you say, a far more basic category than gender, absolutely, but not for the purposes of joining people together to provide the core of a basic unit of society. You would have a hard time coming up with different criteria for putting people together than that these two (one man and one woman) have different kinds of intelligences and emotional reactions that complement each other quite well; they are of themselves biologically complete and fit for reproduction and the building up of society; they are attracted to one another, etc, etc, etc. I'm sure someone who's done more research and knows marriage from the inside (I'm single) would be able to provide a much better account.

There's absolutely no problem with making households/communities out of three, four, five, six, or whatever numbers of people. But you're not going to find societies continuing to drift back to households of three adults, with three choosing to buy condos and three going to the theater and three having dinner together, and three discussing what to name their kids.

Accommodating legal rights of same-sex couples requires only minimual changes in the legal regime. Accommodating legal rights for polygamous marriages would require an entire rewriting of family law, property law, estate rights, most federal benefits, etc. etc. etc.

So what--if it's a question of justice, laws should be rewritten.

"The state simply has no business telling people how to co-habit."
"I can just see trying to marry one's pet rock, and getting it to sign a form.
Also, most states have strong laws to protect minors from exploitation in this regard."

celticdragon you contradict yourself. if the first statement is true how then can you say the following ones.

either there are rules or we have anarchy

moral relativism doesn't work

How is SSM different...in a legal sense...without going into religious justification?

First of all, if by "legal sense" you mean "a sense that makes no appeal to morality", there is none. Law is a judgment of what is moral or immoral to do in this particular situation, period.

Virginians (to use your example) make certain claims of responsibility upon the rest of American society, and as such it makes sense that their practices regarding interracial marriage, etc, basically conform to those practices of the rest of the nation. If a marriage contracted in most of the rest of the United States in full conformity with that cultural tradition is not valid in Virginia, then that means Virginia does not recognize a basic building block of society from the rest of the nation. Given that, Virginia either needs to secede and form her own country (already tried that) or get on board.

Given the facts that Virginia had already accepted (however begrudgingly): that African-Americans were full citizens deserving of full rights, etc., they had no good reason based upon the nature of marriage itself for forbidding interracial marriage, and it was partly the nation's responsibility to ensure the recognition of all of her marriages.

Now, if marriage were nothing more than, as I have said before, "two people who loooove each other", there would be no argument: SSM should be just as valid as traditional marriage. But if there is an argument to be made within the society that marriage is intrinsically something more, then there are good reasons to fight an attempt to redefine it.

The problem, as most of the social conservatives acknowledge, is that they allowed Ronald Reagan, et al, in the 60's to damage our understanding of marriage with no-fault divorce laws, etc., and that, combined with our romanticization of the relationship, has led to such a widespread cultural misunderstanding of marriage that it is no longer as obvious why SSM would be any different. But that just means that marriage is itself in trouble in our country. True. But we won't be helping anything by continuing to misdefine and misunderstand the relationship and institution.

"Virginians (to use your example) make certain claims of responsibility upon the rest of American society, and as such it makes sense that their practices regarding interracial marriage, etc, basically conform to those practices of the rest of the nation. If a marriage contracted in most of the rest of the United States in full conformity with that cultural tradition is not valid in Virginia, then that means Virginia does not recognize a basic building block of society from the rest of the nation. Given that, Virginia either needs to secede and form her own country (already tried that) or get on board."

The "full faith and credit" clause of the US Constitution certainly does have relevance to the argument regarding interracial marriage. Now that we have two states which grant same-sex marriage, should other states recognize legal marriages from those states as Virginia should have?

"If benefits and inheritance can be shared between two partners, adding a third or fourth really shouldn't be that big of a deal."

A marriage partnership is different from a business partnership. It's not just about dividing things three ways. Just the entire idea of inheritance should someone die with a will is mindboggingly complex the moment you add another person, that person's kids who aren't related to the deceased, the families of all three parties, the property of the parties' families, . . .

Jon W: Law is a judgment [sic] of what is moral or immoral to do in this particular situation, period.

I disagree. Law is a judgement of what is legal or illegal to do. It is not necessarily based upon morality. Laws against theft may have originally have something to do with moral prescriptions, but they don't have to. Those laws can be justified with an eye to the common good. Same with laws that have to do with spitting on the sidewalk or littering.

Jon W: But if there is an argument to be made within the society that marriage is intrinsically something more, then there are good reasons to fight an attempt to redefine it.

What more is there to marriage between a heterosexual couple that does not apply to SSM? Love? Respect? Raising a family? Sharing a life? And, even if there were, how does SSM hurt DSM? How does denying gays the ability to marry hurt heterosexual marriages? Have divorce rates gone up where SSM is legal? Do you have men and women who were going to marry suddenly saying, "OMG I want to marry someone of my own sex instead? Why didn't I think of that before?" Do they say, "OMG, I don't want to get married because gays can?" When one says, "You can't do this," there has to be a better reason than "we just don't do that."

Now that we have two states which grant same-sex marriage, should other states recognize legal marriages from those states as Virginia should have?

That depends on whether those two states ought to have recognized SSM. Notice the difference between interracial marriage - in which a state was forbidden to make race a disqualification in the country's marriages, since race was determined by the wider culture (as ultimately witnessed-to by her common law, her founding documents, a war, a Civil Rights movement and the subsequent legislation) as having no intrinsic bearing on the nature of marriage per se - and SSM, in which two states are requesting that the rest of the society overturn millenia of near universal human tradition in order to comply with a recent localized ideology based on an impoverished understanding of the nature of the marriage relationship.

We as a country were convinced of the truth that blacks were full citizens - living, working, paying taxes, and petitioning the government for redress of wrongs just like the whites - and therefore the only factors intrinsic to their marriages was whether one of 'em was a man and the other a woman. Race made no intrinsic difference to that. If Virginia wanted to make an argument against interracial marriage, she would have to make it not on grounds of human nature, but on grounds of culture. But her culture was necessarily and essentially the same as the culture of the rest of the US which was recognizing her marriages and demanding her recognition of theirs, so that wouldn't fly.

If those two states want to get the rest of the USA to acknowledge their SSMs, they need to make an argument that sex is not intrinsic to the marriage relationship, that based on our best understandings of what marriage really is by those who live it and observe it well, it makes no difference to society whether they're composed of a man and a woman, two men, or two women.

rr at 11:12 is exactly right. The law does not only presume two people, it also presumes that the vast majority of these people by the very nature of the relationship into which they are entering are going to be overwhelmingly likely to become parents whose biological interest in the offspring is equal; that a small fraction do not or can not does not in any way affect the law's presumption in this regard. But you can't create a new, parallel kind of marriage where the biological parenthood of the couple *as* a couple is completely impossible and then leave in place all the laws that assume biological parenthood of the couple is the norm, and is intimately connected with the nature of the relationship in the first place.

And changing this to accommodate same-gender marriages is not a small thing. As I quoted in a thread earlier in the week, here is a Canadian school document's take on eliminating heterosexism:

"Heterosexism is the assumption that everyone is heterosexual and the belief in the inherent normality and superiority of heterosexuality. Heterosexist assumptions are made and reinforced in all areas of society. Some examples that occur in schools are: assuming that a family has one male and one female as parenting partners, having a prom king and queen."

Again, I refer to the phrase "assuming that a family has one male and one female as parenting partners..."

In a post SSM world every single law which assumes that biological parenthood has anything whatsoever to do with marriage will have to be rewritten; to refuse to do this is to reinforce the "heterosexist" notion that parents come in sets of two, one male, one female, and that there is anything desirable about this.

What does that mean? Well, for starters I could easily see a push to force fathers in heterosexual families to legally adopt their own children, because giving them automatic rights in regard to their children simply because of their biological fatherhood would be seen as inherently unequal and unfair in comparison to same-sex families where at least one, if not both, parents have an adoptive relationship to their children; only heterosexism could possibly privilege the family made up of a mother and a father in this way. In same-sex relationships there is no special privilege attached to the one biological parent (where that exists, that is); the biological father of a child in a gay relationship can just as easily lose custody to the non-biological father, or the biological mother to the non-biological mother.

Essentially the very words "mother" and "father" are meaningless in this context. All you have is "parenting partner A" and "parenting partner B" because the old words can never be scrubbed free from their taint of heterosexism and the heteronormative world view. And changing every single law which impacts this concept is not a small matter at all.

"Accommodating legal rights of same-sex couples requires only minimual changes in the legal regime. Accommodating legal rights for polygamous marriages would require an entire rewriting of family law, property law, estate rights, most federal benefits, etc. etc. etc."

So you want to deny people their civil rights because it would be inconvenient to you?

"But you can't create a new, parallel kind of marriage where the biological parenthood of the couple *as* a couple is completely impossible and then leave in place all the laws that assume biological parenthood of the couple is the norm, and is intimately connected with the nature of the relationship in the first place."

Why not? Do we not already have laws on the books with regards to surrogate parenting, in vitro fertilization, and the use of sperm donors? Do we not already make such accomodations for the infertile husband who goes with his wife to a sperm bank so she can be inseminated by an anonymous donor? Is the child from that procedure left in legal limbo?

With all due respect, Erin, you are sounding somewhat like Chicken Little with your worries.

As to the absurd statement about forcing fathers in heterosexual families to adopt their own children, I would point out that in gay marriages where one of the father's donates sperm to produce the child, that father does not have to adopt the child under current law. His partner, however, would have to adopt the child since it is not his biologically, just as a woman would need to adopt her husband's child from his prior marriage in order to have any parental rights before the law.

And I would ask you this with regards to your quote on heterosexism: we went through a similar transition regarding racism, that is we challenged the idea that being white was superior to being black, brown, red, yellow, or mixed race. We challenged the idea that being white entitled you to special treatment before the law. This was done over several generations, and we are now to the point that the idea of a white person being superior to a black person is viewed as absurd.

Is our country broken because of it? No, certainly not. And neither will our country be broken because we recognize the validity of same sex marriages and the equality of straight, gay, lesbian, bisexual, transgendered, intergendered and queer individuals.

Rod and Erin...is there ANYTHING at all that could change your mind on the issue of same sex marriage?

"But you can't create a new, parallel kind of marriage where the biological parenthood of the couple *as* a couple is completely impossible and then leave in place all the laws that assume biological parenthood of the couple is the norm, and is intimately connected with the nature of the relationship in the first place."

Sure you can. A same-sex marriage is no different from the marriages where an adoption takes place by one or both parents. There are millions of those marriages, and they haven't derailed the legal regime. A same-sex marriage is no different from those marriages, using the same legal constructs.

Your obsession with eliminating heterosexism as a transformative goal of marriage is a social bias that's unrelated to the legal reality. IOW, you are creating a problem that doesn't exist.

Observations on two comments above:

"If someone is stupid enough to marry in a way that society simply will not countenance, then he/she/whatever deserve all the shunning they get."

The problem is that shunning is now punishable by law. See the cases in Maryland and New Mexico, in which religious people were successfully sued for what essentially amounts to shunning.

"Look at the situation with the number of ministers (not just Catholics, but Protestant as well) who on one hand preach against varieties of sexual immorality while, in their private lives, participating in the very kind of sins they condemn from the pulpit. This kind of moral relativism has been an accepted part of far too many churches for generations..."

That's not moral relativism. It's hypocrisy. Hypocrisy is better than moral relativism because it presumes that there is a standard of proper behavior, even if the hypocrite doesn't care to follow it. Hypocrisy is an important social glue because it re-affirms community standards.

Moral relativism, on the other hand, is just silly. Carried to its logical extreme, nobody really believes it.

"Who are we to judge Hitler?" -- actual students in actual college ethics classes, who are perfectly happy to judge the professor for giving students the grades they earn

"Despite what I've said above, the argument from the Lovings is not strong. Prohibition of interracial marriage was, to my knowledge, only enforced in the US South, South Africa and Nazi Germany."

Is the standard for civil rights in our country now to be tradition? Whatever happened to the inalienable rights described in the Declaration of Independence? What is our standard to be: human tradition and practice or the ideals set by our founders?

"OK...shall we consider Godwin's Law as having been realized?"

Not at all. I didn't say anything about comparisons to Hitler. I said that silly statements such as "Who are we to judge Hitler?" are the logical consequence of moral relativism.

We all judge others. The questions is always where we draw the line beyond which we leave the judging to God.

Erin: The law does not only presume two people, it also presumes that the vast majority of these people by the very nature of the relationship into which they are entering are going to be overwhelmingly likely to become parents whose biological interest in the offspring is equal; that a small fraction do not or can not does not in any way affect the law's presumption in this regard.

Then what is the problem?
It's not as if the percentage of same sex couples with children is likely to skyrocket if SSM goes national. It hasn't in Massachusetts. There will always be far more heterosexual adoptive and post-divorce, "mixed" families than same sex families.

I've brought up this issue before. All the justifications for gay marriage could be applied to plural marriage, incestuous marriage, NAMBLA you name it....

Either they are all equally acceptable and the law must give the "right" to everyone

OR

Marriage is an institution and if you don't meet the criteria for membership, you don't qualify. Period.

I've brought up this issue before. All the justifications for gay marriage could be applied to plural marriage, incestuous marriage, NAMBLA you name it....

Either they are all equally acceptable and the law must give the "right" to everyone

OR

Marriage is an institution and if you don't meet the criteria for membership, you don't qualify. Period.

*******************************

I'm coming back to this rather late...

Plural marriage:

None of my business. None of yours, either. An awful lot of laws would have to be re-written to account for division of property and so forth, but I feel that the state has no business interfering in private religious beliefs of that nature.

Incestuous marriage:

This gets trickier, since there is considerably more social taboo and a significant risk of genetic problems for any potential children. I am against state intrusion on individual autonomy, but the genetic problems I mentioned have been successfully cited as a legitimate intrusion of state power into a private affair, and I see no social push to reverse that. It's a red herring.

Nambla:

Oh, brother. Comparing SSM to the pedophiles. Here we go again. Last I checked, children can't enter into legal contracts, and the States have generally enacted strong laws to keep children from exploited this way. This is another red herring, because you can't in any way compare what legal, consenting adults do to criminal exploitation of children. The fact that you bring this up tells me you are not arguing in good faith, and would rather smear.

"
Marriage is an institution and if you don't meet the criteria for membership, you don't qualify. Period."

If you want marriage to be a religious institution, than tell the government to get out of the business of regulating it. Also, do you support discrimination against other churches or religions that have different standards of marriage?

Are atheists married? How about Buddhists? They are not married under any concept of God that you or I recognize. Why should Unitarians not be able to marry couples as they see fit? Are you a religious intolerant?

To the "too complicated" argument, from a personal perspective...

The Employee Retirement Income Security Act of 1974 was to that point the largest and most complex piece of tax legislation ever passed. It took a very simple arrangement between employers and the federal govt and turned into a complex arrangement that created a new industry (pension administration). My first full-time job was in that industry. I was in it for 14 years.

ERISA was motivated by decades of government sanctioned theft by managers and owners, who had the power to arbitrarily change the provisions of their company plans to benefit themselves at the expense of their employees, who in many cases were "participants" on paper only.

There's your precedent. Ways are found. ;-)

quote: "It is not a marriage of equals, it is not a diad, it is not a relationship protecting the children of a parenting pair, in most cases it isn't even consensual, it would wreak havoc on the legal construct."

We just aren't going to agree about whether or not polygamous marriages are too complicated or would require a dismantling of current legal system. I maintain, as Franklin Evans says, "ways are found." But I won't argue the point any further.

I suspected, however, that the above reason was really behind your opposition to polygamous marriages. As long as a polygamous marriage is indeed a consenting one between adults (and these clearly do exist in many cases), then whether or not it is a "marriage of equals" is entirely irrelevant. If you believe that marriage relationships should be egalitarian, then bully for you. But not all people in this country share this idea, and you shouldn't be allowed to force your values about marriage on them.

If you want to argue that marriage is about "rights" than polygamous and incestuous marriages should be allowed. Otherwise, you have to argue that marriage is about values and morality. If that is the case, then those of us conservatives who are suspicious of SSM are correct all along. SSM is less about "rights" than it is about securing state and societal approval of homosexuality. And this may well come at a cost to first amendment rights. So which is it for SSM? Is it really about a "right" to marriage for all consenting adults? Or is it about approval of homosexuality? Opposition to polygamy leads me to think it is the later.

rr

"If you want to argue that marriage is about "rights" than polygamous and incestuous marriages should be allowed."

No. Marriage is about legal rights and, throughout U.S. history, our definition of what those legal rights are and who can access them has changed. At this point in time, we are discussing whether same-sex couples should get access to those rights. At another time, we may be discussing non-consensual relationships like polygamy or incest. But just because we granted marriage rights to mixed-race couples didn't mean, at that moment, we needed to grant rights to polygamists. When we added rights for prisoners, the mentally ill, etc., that didn't necessarily mean that we needed to grant rights to incestuous relationships.

The legal recognition of marriage does carry with it a question of morality and values, as well as state and societal acceptance. It was so when mixed-race couples were invited into the fold, it was so when marriage rights were affirmed for the imprisoned and the mentally disabled. And it is so now, when we are talking about SSM. No one is questioning that.

That morality and values, however, does not mean that they will mimic orthodox religious values or that those are even a requirement in the mix. Orthodox religious believers have opposed every civil rights movement in U.S. history, but that didn't mean there wasn't a moral or values rationale for granting the civil rights; they just weren't the values and morality of the believers who stood in the way of every other civil rights gain.

quote: "At another time, we may be discussing non-consensual relationships like polygamy or incest."

Who said anything about non-consensual relationships? Polygamous and incestuous relationships can be between adults and are not inherently non-consensual as you seem to imply. You seem to think they are always non-consensual, which is plainly not the case. As I've already mentioned, there are documented cases of consensual polygamous marriages with families in the West.

quote: "The legal recognition of marriage does carry with it a question of morality and values, as well as state and societal acceptance."

"That morality and values, however, does not mean that they will mimic orthodox religious values or that those are even a requirement in the mix."

I don't agree with your blanket characterization of Orthodox religious believers opposing every civil rights movement in this country. But these comments above entirely confirm my suspicions about SSM. As our discussion on polygamy has shown, SSM isn't really about "rights." If that is the main issue, then I'm sympathetic. I have no qualms with homosexuals or anyone else for that matter doing whatever they see fit with hospital visitation, insurance, property, inheritance, and the like. The Libertarian case of marriage for all consenting adults is at least a consistent one that allows everyone to live as they see fit and keeps the state out of things as much as possible.

But as you basically have admitted, SSM is about forcing society to accept homosexual behavior as moral. It's ironic that the left frequently complains about "theocrats" on the right who they allege want to force their religion and values on them. That is precisely what the left is attempting to do with SSM, and professing support for SSM while opposition to polygamy makes this only clearer.

I don't know that I will have any more time to continue this discussion this afternoon. But you have confirmed two things that I have long suspected on this matter 1) that SSM is about forcing society to accept homosexual behavior as normal and moral 2) that this will most likely result a curtailment of the first amendment rights of religious conservatives such as myself.

rr

"But you have confirmed two things that I have long suspected on this matter 1) that SSM is about forcing society to accept homosexual behavior as normal and moral 2) that this will most likely result a curtailment of the first amendment rights of religious conservatives such as myself."

Since I've confirmed neither, you are merely holding onto your original assumptions.

There's no problem in a State granting all kinds of people rights, as long as they do not subsume the right of the State (or other political entity) to exist. In a functioning system, rights are coupled with an equal measure of responsibility. That's what we've lost sight of. Everyone wants rights, no one wants responsibility. Other than paying taxes, there are few expectations for most of our citizens. You can father children without raising them, you can a buy a house without paying for it, you can a credit card for nothing. You owe nothing to you parents, they can just go to nursing homes. You owe nothing to your neighbors, and very little to society at large. Maybe that right there is why some people feel worthless and unrooted today? Life means more when you are needed, when people are relying on you, and when, when push comes to shove, you know you can rely on other people.

RE: "granting rights whenever a group of people asks for them"

The Government DOES NOT grant rights. The People grant government limited power to regulate specific rights, and the People retain the right to remove those powers it granted to the government.

PROOF:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." -- Declaration of Indepedence

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -- IX Amendment

"This term (Property) in its particular application means 'that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.' In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man's land, or merchandize, or money is called his property. In the latter sense, a man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights."

-- James Madison, "Property", March, 29, 1792

Your Name at November 21, 2008 4:19 PM:

That some Mormon women are happy in their polygamous families is not proof that the practice is generally a good one. It is simply evidence that some Mormon women find it fulfilling.

The emergent term for the societal phenomenon of plural relationships is polyamory. It is more inclusive than the commonly understood usage of "polygamy", and is not specific to a belief system. It also does not focus on gender mix. It ranges from triads of two men and one woman or one man and two women up through various combinations of larger numbers.

Polygamy, red herring that it is, is simply a separate argument. Let the polygamists make their arguments before legislatures and courts.

Besides, America hasn't got a problem with polygamy per se. Witness the generous welcome into the Rose Garden at the White House that W. gave to the then Saudi Prince (now King) - a known, admitted polygamist. Not a whiff of protest.

A question: if someone from another country is legally married, polygamously, and wants to emigrate to America, what is the legal status of his 5/6/7/8 wives? It's a legal marriage where he comes from, remember.