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Friday, May 21, 2004

Battle Gay Marriage - Iron Blogger Democrat - Second Rebuttal

Bravo to the Challenger! His taking the full 48 hours to respond gave him plenty of time to Google me and what I have said on this subject before. And it has given him time to actually quote the relevant portions of his links this time! Plus, he added a clever rhetorical flourish at the end of his Second Rebuttal that, I must admit, is a very nice touch.

However, the Challenger has failed, utterly, to prove his case.

For starters, his Second Rebuttal spends far too much time aggrieving perceived insults. For example, the Challenger very clearly wrote in his Opening Argument: "On the specious grounds of 'equal protection,' the Goodrich [sic] decision in Massachusetts has forced the issue as have decisions in Hawaii and Vermont." I rightly pointed out (and he agreed later!) that "equal protection" was not the sole, or even primary, reasoning behind the decision. He claims not to have written what he did, and is now upset that I called him on it. If you don't believe me, this is from his Second Rebuttal, word for word:
1) He falsely represents my "equal protection" argument regarding Brown.

Here is a quote: "For example, the Challenger gets even simple facts, like the reasoning behind the Goodridge decision, incorrect."
Notice he thinks I'm talking about Brown; I'm obviously talking about Goodridge and what he said about it.

And, if it please the court, I would like to point out the irony of 1) the Challenger's offense at these perceived slights when he keeps talking about "My First Pop-Up Book of . . ." and 2) his repeated failure to get the name of Goodridge v. Dept. of Public Health correct and then sticking me with the [sic] tag.

Another example: Apparently, when I read this
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. (from the Challenger's Opening Argument)
I was supposed to read this
During the ratification process there must be debates about the subject in every single state leading up to several votes on the issue. If the amendment is passed, it is subject to recall by the same process of debate and vote by the people of this country as it took to pass it in the first place. (his rephrasing from the Second Rebuttal)
Now, I'm no English major--no, wait, I am an English major!--but these two paragraphs sound nothing alike. The first is clearly about an amendment that has passed; the second about an amendment being considered. Again, as with the whole of his point number 1, the Challenger does not see in his own writing what the rest of us do. I'm debating what the Challenger wrote; he claims I don't understand the democratic process. Who, exactly, "has crafted a lengthy list of falsehoods, misstatements about what I've written, and personal attacks disguised as reasonable debate"?

Again, the Challenger has failed, utterly, to prove his case.

Beyond that, the Challenger does not bother to refute any of my case law arguments except to rehash his weary "equal protection" argument. He writes, again, "The law is pretty clear: you can't marry someone of the same sex. There is no separation here. Everyone is prohibited equally; no one is given preference." He ignores what I wrote. In case he's forgotten, I replied,
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's response? Nothing.

That's right: the Challenger has failed, utterly, to prove his case.

Besides, by dragging in the case law to begin with, on top of starting an argument he could not (and did not) win, the Challenger only distracted himself. The Challenger and I both agree on a core principle: The only way to stop gay marriage is through a constitutional amendment. The Challenger thinks such an amendment is a good and necessary thing; I disagree.

It's been interesting to watch the "burden of proof" argument develop in the comments: Conservatives claim that since I want to "change the definition of marriage from what it has always been"--and don't get me started on that!--the burden of proof rests with me. In other words, I should be extolling the virtues of gay marriage.

But I don't think it's that simple. For one, as implied just above, I don't believe that marriage as it exists now (everywhere outside of Massachusetts) is "as it always has been." For another, I submit that the burden of proof must fall to the Challenger in this case. After all, if the State is going to curtail my (or anyone else's) rights, they'd better have a compelling case for doing so. Remember, one of the other things that the Challenger and I agree on is that there are strong constitutional restrictions on the scope and reach of the State.

I refer you back to my First Rebuttal; the case law I cited then--from Loving to Romer and Lawrence--showed unquestionably that preventing gay marriage is a curtailing of rights. Marriage is, according to Loving, "one of the basic civil rights of man." The Challenger never, er, challenged that. The pro-amendment side must bear the burden of proof on this.

The Challenger again relies on the same studies and same sources that I challenged in my First Rebuttal. I don't dispute the Heritage Foundation's statistics (though I wonder what studies and statistics they opted not to make charts for), nor, in fact, the obvious conclusion that "a child in a traditional family is likely to be better off than one who is not." But I said it then and I'll say it now: The Heritage Foundation's clever little charts demonstrate correlation, not causation.

(The Challenger seems offended that I said the Heritage work was not "original research." I only said so to rebut his Opening Argument assertion that "The Heritage Foundation produced a series of studies showing the effects the slow dissolution of marriage on children and parents." Again, he misreads my debating his actual words as personal attacks.)

And Stanley Kurtz--don't get me started! His "study" of Scandinavian marriage was published in The Weekly Standard, not a peer-reviewed journal. He held anti-gay prejudices, based not in "science" but his own standards of morality (really, read some of his earlier writings), before he started. And there is no easy way to map the Scandinavian results onto this country, as the study shows that the easy availability of hetero- and homosexual civil unions undercut marriage; we do not have a history here of civil unions!

Let me try it another way:
Scandinavia (according to Kurtz):
civil unions ⇒ gay marriage ⇒ fewer marriages in general ⇒ more single or cohabiting parents
The United States (projected by the Challenger):
                       gay marriage ⇒ fewer marriages in general ⇒ more single or chabiting parents
Do you see what's missing? We have not spent that last two decades, as have some Scandinavian countries, eroding the need for marriage with civil unions.

It should be obvious by now; the Challenger has failed, utterly, to prove his case.

I will salute the Challenger, though, for finding some additional research on his point. He doesn't make it clear that the new quotes from Kurtz come from the "study" that was published in the Weekly Standard that I dug out in my First Rebuttal. To be fair, the Challenger does link to a copy of it that appeared at the Catholic Educator's Resource Center. Either way, this "study" has not been peer-reviewed or vetted by other sociologists.

Should we talk about Sweden, Challenger? Okay, let's. I'll even let Kurtz do the talking for me. This is from the Weekly Standard article linked above, emphasis mine:
Scholars take the Swedish experience as a prototype for family developments that will, or could, spread throughout the world. [. . .] The Swedes have simply drawn the final conclusion: If we've come so far without marriage, why marry at all? Our love is what matters, not a piece of paper. Why should children change that?

Two things prompted the Swedes to take this extra step--the welfare state and cultural attitudes. No Western economy has a higher percentage of public employees, public expenditures--or higher tax rates--than Sweden. The massive Swedish welfare state has largely displaced the family as provider. By guaranteeing jobs and income to every citizen (even children), the welfare state renders each individual independent. It's easier to divorce your spouse when the state will support you instead. [. . .]

There are also cultural-ideological causes of Swedish family decline. [. . .] Sweden is probably the most secular country in the world. Secular social scientists (most of them quite radical) have largely replaced clerics as arbiters of public morality. Swedes themselves link the decline of marriage to secularism. And many studies confirm that, throughout the West, religiosity is associated with institutionally strong marriage, while heightened secularism is correlated with a weakening of marriage.
Kurtz almost makes it too easy: He himself identifies the ways in which his own analysis is inapplicable to the United States! Just to be clear, the U.S. does not have an overwhelming welfare state (despite some conservatives' alarmist rhetoric); we are not so overtaxed (again, despite some claims to the contrary); and this country is one of the least secular in the world: "About 46 percent of American adults attend church at least once a week, not counting weddings, funerals and christenings, compared with 14 percent of adults in Great Britain, 8 percent in France, 7 percent in Sweden and 4 percent in Japan."

It's also worth noting that Kurtz, too, forgets the rule about correlation not implying causation. He suggests that "gay marriage is both an effect and a cause of the increasing separation between marriage and parenthood" (emphasis mine). Having read his "study," I might almost buy that same-sex marriage may be more likely in countries with high out-of-wedlock births, but he does not conclusively prove that it is a cause, merely that, in some countries very different from our own the two have occurred around the same time.

By the way, I loved this bit from the Challenger's Second Rebuttal:
Now, I'm no lawyer and I had a real tough time with Google today, so I couldn't find the term for the fallacy I wanted. I call it "Don't hate the player; hate the game."
Yes, that's from the same Challenger who wrote first about my sources, "The APA, no friend to maintaining traditional marriage [. . .]" I don't know the Latin for that fallacy, either, but I can think of some Greek: hypocrisy.

You see where I'm going here? The Challenger has failed, utterly, to prove his case.

I've already gone longer than I'd hoped, but let me address the "slippery slope" again. One bigamist in Utah (surprise!) does not a slope make. And where, exactly, in these Scandinavian countries that have gone to hell in a handbasket since gay marriage, are the incestuous relationships, bigamists, pedophiles, man-on-doggers? There are none!

Dahlia Lithwick, who must be an Iron Blog reader and knew this would come up, said it well in Slate this week:
Just because advocates of polygamy have tried to leverage the Lawrence decision to support their cause doesn't mean there are no differences between the two marginalized groups. And it's just not an argument against gay marriage to say, "I told you those bigamists would use this in court!" It would be stupid for the bigamists not to try.

One of the most persistent complaints of conservative commentators is that liberal activist judges refuse to decide the case before them and instead use the law to reshape the entire legal landscape for years to come. The Massachusetts Supreme Court, in finding that the ban on gay marriage violated the state constitution, did exactly what good judges ought to do: It confined its reasoning to the case before it, rather than addressing the myriad hypothetical future cases that may be affected by the decision. Opponents of gay marriage should consider doing the same.
So, in sum, the Challenger has presented no compelling evidence that gay marriage will harm American society and therefore the right to marry must be infringed upon. He has not met his burden of proof. The Challenger has failed, utterly, to prove his case.

What are we left with, then? The Challenger's Second Rebuttal sought to impugn my biases, but where he sees slights and insults, I see direct responses to his own assertions and actual statements. The Challenger is the one coming back at me with ad hominem. The Second Rebuttal also continued the Challenger's attempts to assert a causal relationship between gay marriage and family decline, yet even if it can be proved to have happened elsewhere (a big if), the very author he cites for that proof makes it clear that the United States is not like those other countries. Finally, the Second Rebuttal does nothing to challenge my assertion that marriage is a fundamental right, and does not even come close to presenting a convincing case for abridging it.

In short, the only impressive thing about the Challenger's Second Rebuttal is that clever rhetorical flourish. Unfortunately for him, that's not enough to carry the day.

Respectfully submitted,
Jay Bullock, Iron Blogger Democrat
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