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Tuesday, May 18, 2004

Battle Gay Marriage - Iron Blogger Democrat - First Rebuttal

Well, the Challenger has given me plenty to work with in his Opening Argument and First Rebuttal. And, given that I have brevity issues to begin with, this is quite long (apologies, judges). I know that length does not necessarily equal strength of argument, but I believe that this post will demonstrate, unquestionably, how the Challenger's arguments just don't hold up to scrutiny. I will mix and match between the Challenger's two posts, as I think I've got an order here that makes sense.

First of all, I had no idea how the Challenger would approach the subject when I wrote my Opening Argument; I had to suspect he'd favor either the FMA or civil unions over marriage, or else it would hardly be a debate. But I was not sure what his tactic would be. I have to say I am glad he did not rely on religion to make his Opening Argument. I threw in a pre-emptive paragraph on that in my Opening Argument, mostly because the Chairman's questions to open the Battle suggested it would be an issue. However, the First Rebuttal does take me to task for stating, rightly, that we live in a secular nation. But I will not belabor this issue, as the Challenger's Opening Argument made it clear that religion is tangential to the debate. (The opening paragraph of his First Rebuttal implies that I relied almost exclusively on this argument when, in fact, I barely considered it.)

I was also glad to read this from the Challenger:
I favor a Constitutional Amendment to ban gay marriages. I fully understand that it is a radical step but I see no other alternative. I don't support it out of mindless cruelty or because I want people to feel pain but because allowing it will be emphatically bad for our society.
Throughout his Opening Argument, the Challenger has been thoughtful and refrained from inappropriate rhetoric. The First Rebuttal was not so kind, though. It is possible that the inflammatory nature of that First Rebuttal was prompted by my comparing those who favor the FMA to those who favored segregation; however, I stand by my assertion that the FMA would "enshrine bigotry in the Constitution." I'm not saying the Challenger is bigoted, but the result of such an amendment would be de facto bigotry. He is wrong in asserting that I called him a segregationist; he is merely analogous to one.

Before I come back to that, though, let me and my "scary-talented brain" address the Challenger's other points. He is right to recognize in his Opening Argument that the Defense of Marriage Act (DOMA) will be challenged in the face of the Massachusetts SJC's Goodridge decision, and it will be found wanting. So he is right that the only way to ensure that no gay marriage happens--and if it should, that it never spreads beyond a rogue state or district--is with this amendment.

But it is from here that we disagree, and I feel that the Challenger has not adequately made his case. For example, the Challenger gets even simple facts, like the reasoning behind the Goodridge decision, incorrect. Only Justice Greaney opined that the case could be resolved based on equal protection, as the Challenger claims the court did, in his concurring opinion. The majority of the majority held instead "that the Massachusetts Constitution 'affirms the dignity and equality of all individuals,' and 'forbids the creation of second-class citizens.'" Specifically, the justices felt that prohibiting marriage was a violation of due process, in addition to equal protection, and a violation of the principle that
[t]he Massachusetts Constitution requires, at a minimum, that the exercise of the State's regulatory authority not be "arbitrary or capricious." [. . .] Under both the equality and liberty guarantees, regulatory authority must, at very least, serve "a legitimate purpose in a rational way"; a statute must "bear a reasonable relation to a permissible legislative objective."
The court found no case made by the state to limit marriage to heterosexual couples to be a "permissible legislative objective." (Read the full verdict--warning, very long and legalese-filled link.)

The Challenger (and several commenters) pointed out a part of my Opening Argument that I now wish I had back to rephrase. I'm glad we all accept that the US Constitution is designed to limit the scope and power of the State; what I wish I could rephrase is when I wrote that the Constitution also "grants and extends rights to individuals." Though we can disagree on semantic grounds, it is very clear that the Bill of, um, Rights is designed to explicitly protect the rights of the citizens of this country. Further amendments have done the same--granting (or protecting, or perhaps clarifying) such things as the right of African Americans, women, and 18-20-year-olds the right to vote.

But, again, this is tangential to the debate. When we start talking about rights, the Challenger sums up his argument in a question: "So why does my opponent believe that marriage is a right?" he asks. Then he answers, "I can't begin to say. It's certainly not written, or even implied, in the Constitution." Well, the right to privacy, for example, is not defined in the Constitution, though certainly it exists (and has been made explicit in case law at least as far back as Griswold v. Connecticut). The Bill of Rights mentions that we should all have access to an attorney if we are accused, but it wasn't until recently that we learned that we also had the right to know we had the right to an attorney.

In other words, a right's absence from the Constitution does not mean the right does not exist, and, in a few more words, the Supreme Court, as arbiters of all things constitutional, can make clear when the unstated (and, one might say, inalienable) rights are being violated. Such is the case with marriage. 1967's Loving v. Virginia, while striking down anti-miscegenation laws, found that
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. [. . .] To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
I quoted this whole section to show that I do, in fact recognize, that the decision is explicitly about race and not about sexual orientation. But the Challenger here cannot ignore that first sentence: Marriage is, in fact, a right.

The Challenger also invokes the Fourteenth Amendment and equal protection/ equal application. The Challenger's argument of equal application sounds eerily familiar; this is from the Loving decision, emphasis mine:
Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.
Now, you can argue that, as the Fourteenth Amendment is explicitly about race, this line of reasoning, found wanting by the court in Loving, is acceptable here. But what if we turn the Challenger's question around? Instead of asking "Can Iron Blogger Democrat marry another man?" (answer, no) and "Can IB Dem's friend Michael marry another man?" (also, no), we should ask "Can Iron Blogger Democrat marry the person he loves?" (answer, yes--and I did!) and "Can IB Dem's friend Michael marry the person he loves?" (the answer, still, is no). How is that equal?

The Challenger cites Eugene Volokh, no doubt more of an authority on the law that I am. Two things, however. One, the Volokh opinion here on Loving considers that case in the light of "[l]ater Supreme Court cases [that] held that sex classifications are similar to race classifications." Rightly, he concludes that there is very little evidence to suggest that sex and race, while similar, are equal. Volokh even goes so far as to set up a chart to demonstrate that separate men's and women's restrooms are a very different animal from "whites only" restrooms. The problem is, when it comes to gay marriage, Loving should be considered not in light of cases regarding sex but in light of cases regarding sexual orientation, the most obvious of which would be last year's Lawrence v. Texas.

Two, while Eugene Volokh is an authority, I will go the Challenger one better: Antonin Scalia. In Lawrence, Scalia writes (emphasis mine):
Justice O'Connor [in her concurring opinion] simply decrees application of "a more searching form of rational basis review" to the Texas statute. [. . .] Nor does Justice O'Connor explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting "�'a ... desire to harm a politically unpopular group,'�" are invalid even though there may be a conceivable rational basis to support them.

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples.
Scalia was furious after the Lawrence decision because O'Connor's concurring opinion left the door wide open for an argument against banning same-sex marriage (and other items in the "homosexual agenda"). O'Connor's opinion was built not only on Loving but on other cases, including Romer v. Evans, the 1996 case, decided with the same margin and same three dissenters as the later Lawrence, which found that the State could not single out a class of citizens, in this case gays and lesbians, to deny their rights. From the Romer opinion (again, my emphasis):
Amendment 2 [the law overturned here] confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive [. . .].

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. [. . .] Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
The Boston Globe ran an excellent piece on this idea last Sunday.

The Challenger does not argue for civil unions as an alternative to gay marriage, nor do I think they are a good compromise. The individual, disaggregated benefits associated with marriage (and there are more than 1000 of them) can all be conferred without marriage, but as long as there is a two-tiered system, there will never be true equality. I imagine that the water from the "Colored Only" drinking fountain probably tasted the same (literally, if not poetically) as the water from the "Whites Only" drinking fountain. Social equality and social acceptance will never come as long as there are two classes.

This leads, interestingly enough, into the research cited by the Challenger from Stanley Kurtz. (I won't play "My Source is Better than Your Source," but I will ask you to consider that the two sources he cites--the Heritage Foundation and Kurtz--are among the leaders in the social conservative movement in this country. They have an agenda that they do not even attempt to mask. But I will address the substance of their arguments.) Kurtz cites his study of gay unions in Scandinavia. The Challenger does not directly quote, but summarizes:
His contention, summarized, is that the inclusion of gay marriage has further deteriorated the institution so that heterosexual couples are now less likely to marry than before. The notion that has taken hold there is that if anyone can marry, then how important can the institution be? In Scandinavia, it's become not important at all. Well over 50 percent of all children there now are born out of wedlock. The trend toward parental cohabitation, Kurtz found, has moved into historically "conservative" neighborhoods since the adoption of gay marriage.
Having read Kurtz's testimony, and other Kurtz writings the Challenger links to, I have a hard time taking the study seriously, as Kurtz was espousing the very same conclusions long before he finished his study. The Scandinavian study was published in the The Weekly Standard just two months before his testimony to Congress, but years after he had been penning such gems as
Marriage is one of those institutions we take for granted. The rationale for marriage isn't so much written down somewhere as buried in the thing itself. That's why [. . .] no other right-thinking liberals can see the connection between the rise of the movement for gay marriage and the decline of heterosexual courtship and marriage. But the link is there.
Even if we give him the benefit of the doubt that he'd been working on his Scandinavia study for three years and already had evidence to make that assertion in 2001, we still must be skeptical; in the same opinion piece just cited, he writes that "people who imbibe the ethos of courtship can't help but feel that there's something not quite right about the idea of a homosexual marriage." Whether or not there is real harm to the "institution" of marriage, Kurtz will argue against gay marriage because there's "something not quite right" about it!

But I segued into Kurtz from civil unions, and I should actually make my point before I move on: The Scandinavian countries Kurtz cites in his studies all implemented civil unions, for hetero- and homosexual couples, before moving to full gay marriage. That established a sense of equality regarding CUs--both gay and straight couples had access to this option. The only state in this country with a CU law is Vermont, and it has denied potential CU status to heterosexual couples. In other words, only gays have CUs, and only straights have marriages. If CUs were not necessary--i.e., gay marriage becomes a reality--then there is no concern, first of all, about second-class citizenship (I refer you back to my drinking-fountain analogy), but, more importantly, no impetus for heterosexual couples to opt for anything other than marriage--indeed, no choice at all in the matter. Comparing this situation, where different-sex couples have never had the option of a CU, to the situations Kurtz studies is really an apples to oranges thing.

The Challenger combines this research (which I again aver is suspect based on Kurtz's politics and likely not applicable to this country) with some more research to make his assertion that gay marriage will weaken marriage in general and, thereby, society as a whole.
The Heritage Foundation produced a series of studies showing the effects the slow dissolution of marriage on children and parents. They found, among other things, that children in non-married households are more likely to be poor, to suffer serious physical abuse, to be expelled from school, to use marijuana and cocaine, to carry weapons, and to end up in prison as adults. There is no dispute that children are better off growing up in two-parent, married households than they are in any other sort of living arrangement. That marriage has a definable advantage to society makes it worthy of governmental support and encouragement.
First of all, what the Heritage folks did was not original research, but cherry-picking statistics from government and independent studies to make charts to illustrate the findings. While I agree that two-parent homes are far better for children that single-parent homes (remember that; it will be important later), it is also important to note that old statistical saw: Correlation does not imply causation. Children with problems or in poverty appear in two-parent homes as well, and many, many single mothers (or fathers) do a fine job of raising children who are happy and well adjusted. I work with children every day, many from "non-traditional" (though seldom gay) households, and there is as much variation in these children as you would expect in any population, whatever their parentage.

Anecdotal evidence aside, though, you have to wonder what other factors may be at work in these situations cited by the Heritage Foundation: If working-poor mothers had better access to quality child care and public schools, would it be true that "Development Problems Are Less Common in Two-Parent Families" or "Children in Intact Married Families Are Less Likely to Repeat a Grade"? If working-poor mothers had better access to quality health care, would it be true that "Non-Married Women Account for 80% of All Abortions," or "Adolescents Are Less Healthy in Broken Families"? And here's one chart that just gets a big "duh," though a solution is not so easy as tuning up our health-care and child-care systems: "Married Families Have Higher Incomes." Perhaps income is the better correlation than family status, then. Need I remind anyone of the glass ceiling? Finally, absolutely none of the Heritage Foundation's work here directly relates to gay marriage.

Taken in conjunction with unlikelihood that Kurtz's assertions would even hold true, what can this mean for the U.S. if we allow gay marriage? Well, worst case, we could end up like the Netherlands, and, let's face it, the Dutch seem to be doing pretty well. Head to head against where we are now in child mortality, infant mortality, teen pregnancy, adolescent drug abuse, (also here), child abuse--you name it, the Netherlands ranks better than the U.S. If anything, these data show that with a greater acceptance of gay marriages and partnerships, we might be better!

I don't really believe we'll automatically get better, but I think the argument that gay marriage is the first step down that slippery slope to chaos is tenuous at best, and untenable, at worst.

Speaking of slippery slopes, the Challenger, somehow, got into my "scary-talented brain" to accuse me of things. He writes,
In fact, I doubt seriously that his principles would extend as far as to allow these same "rights" to any other group of people who wants to marry two or three other people at the same time, or their brothers or sisters, or even juveniles. He is willing to draw that line but not this one. But I wonder, since he belives that marriage is a right, on what grounds he would deny that to others.
This is the classic unwarranted extrapolation fallacy, with an interesting twist: The Challenger puts all of these things into my voice. More commonly, opponents of same-sex marriage run this list off themselves as what is sure to follow once we open these floodgates. Well, the Challenger is right that I would be willing to deny marriage rights in the cases he lists above--and many more Rick Santorum could think of (point of personal privilege: the Challenger slammed David Crosby and Melissa Ethridge in his Opening Argument; this just seems fair payback to me)--for the same reasons that these unions have been prohibited previously: inherently unequal partnerships, lack of consent, and others. But let's look around the world to those countries that do have same sex unions--the dopey Dutch, the staid Canadians, the, er, Belgians. Where is the NAMBLA crowd beating down the doors? Where are the polyamorists? They just aren't there, and this slippery slope argument is distracting from the real issue.

The real issue is that gay marriage should not be prohibited, certainly not by amending the Constitution. Current legal precedents indicate that other attempts to ban gay marriage by DOMA-type laws or other proscriptions will be found wanting. Evidence that gay marriage is damaging to society or the "institution" is remarkably suspect. And allowing gays and lesbians to marry has stirring economic benefits (a 10% increase in spending on weddings wouldn't hurt, eh?) plus the positive effect of strengthening bonds between partners in a family and encouraging stable homes for the children of these relationships. Perhaps it can even lessen the unfair stereotype of gays and lesbians as forming few lasting relationships and instead engaging on promiscuous behavior. And, as I pointed out earlier, it would make those more than 1000 rights and privileges available to those loving partners who deserve them.

I've saved the Challenger's penultimate paragraph from his opening argument for last, because I think it represents the overall flaw in his argument:
So we come to why amending the Constitution is necessary. Once marriage is defined as it as always been in the Constitution it will be beyond the reach of any capricious court decision. People will have a chance to discuss and debate the issue much as we are right here. That's healthy and necessary. It's what a democracy ought to be doing with important issues. That can't happen once a court has put the issue beyond the democratic process. That's the fate that has befallen abortion issue. Because the people are at a loss to change the decision, there is no productive reason to have a real debate. Sure, there can be yelling and name-calling and that's just what we see now but there won't be a real debate. Democracies do not rely on untouchable individuals to decide their important issues; dictatorships do.
My mind is still trying to wrap itself around how, exactly, amending the Constitution to ban gay marriage would not leave "people [. . .] at a loss to change the decision, [leaving] no productive reason to have a real debate." A court decision, whether by the Massachusetts SJC (in Goodridge) or the US Supreme Court (in Roe and others on abortion) is always subject to change. In fact, the Supreme Court reconsiders its positions all the time--the historic Brown v. Board of Education decision we're celebrating this week is just one of dozens of examples I can cite, and I'm neither or a lawyer nor a constitutional scholar. Exactly once--once--has a constitutional amendment been repealed.

The Challenger would have us believe that once we pass an amendment to preserve the status quo, we can talk and talk all we want. How convenient for those who wish to keep the status quo; how awful for those who find the status quo unbearable.

There are no "untouchable individuals" in this democracy. Every justice on the Massachusetts SJC is appointed by an official directly elected by the people of that state. Six of the seven--and three of the four in the majority on the Goodridge decision--were appointed by Republicans. And this is not a phenomenon exclusive to Massachusetts; in the three other states where state high courts ruled on gay marriage--Vermont, Hawaii, and that liberal bastion Alaska--the courts found that excluding gays and lesbians violated state constitutions.

At the top, I made it clear that I thought the Challenger was not a segregationist, merely analogous to one (I can understand if perhaps you've forgotten by now). I urge you to read again the thought exercise I posted in my Opening Argument, and compare the language of the hypothetical segregationists with what my Challenger has said. He simply wants to shut down real debate and preclude any chance of change.

Respectfully submitted,
Jay Bullock, Iron Blogger Democrat
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