Beating a Dead Gay Horse

In episode 8 of the Law Talk podcast, Richard Epstein made several statements about gay marriage that were interesting.

First:

If you’re the slightest bit libertarian then the last thing you would want to do on intimate relationships is to simply clamp down on what other people do because it turns out it offends your high level of moral sensibilities.

And then …

  1. Midget Faded Rattlesnake
    Ed Gorz:

    …or polygamous relationships (‘touples’ as coined by Midge)…

    Minor quibble:

    I spelled it “tuples” (as in n-tuple — math/CS geekiness).

    It’s not a perfect fit, because tuples are typically ordered and polygamous/polyamorous clusters are not, so far as I know (and if you’re a traditionalist, they seem especially disordered).

    But anyhow, thanks for letting me coin a phrase :-)

  2. KC Mulville

    No, I feel much the same way. 

    If were were all screaming about the perversion of gays living together, and choosing who to associate with, then we may very well be bigots. But you’ll notice that with few exceptions, no one is seeking to ban gays from living together. 

    What causes the fuss is when gays demand that their relationships be called marriage, and to be given the same privileges as child-bearing families.

    From the time humanity came down from the trees, the responsibility for taking care of children was assigned to the biological parents, and marriage was integral to that responsibility. It wasn’t the only function of marriage, but it was a necessary part. I can’t see how you can have gay marriage without saying that child-rearing is no longer integral to marriage. It’s to change the understanding of marriage as the basis of a family into simply a living arrangement. And if it’s nothing more than a living arrangement, you can already live with whomever you want, so why bother?

  3. The King Prawn

     I think you are right on. The debate is generally never argued over the same key principles from one side to the other. Those who support gay marriage view only the private benefit (equality argument) and never see the public good. Those who support traditional marriage dismiss the equality argument as being insufficient to overcome the public good of society’s survival. Some of the best writing I’ve read on it is from Maggie Gallagher. It can be found at the Institute for Marriage and Public Policy website. At the bottom left click on “Maggie’s archives” and read the scholarly journal articles and her Senate testimony. More recently this article really stirred thing up but makes a solid case for the argument you bring up.

  4. Ed G.
    Midget Faded Rattlesnake

    Ed Gorz:

    …or polygamous relationships (‘touples’ as coined by Midge)…

    Minor quibble:

    I spelled it “tuples” (as in n-tuple — math/CS geekiness).

    It’s not a perfect fit, because tuples are typically ordered and polygamous/polyamorous clusters are not, so far as I know (and if you’re a traditionalist, they seem especially disordered).

    But anyhow, thanks for letting me coin a phrase :-) · Jun 17 at 8:50am

    Quibble duly noted and original post edited.

  5. Ed G.
    KC Mulville: No, I feel much the same way. 

    If were were all screaming about the perversion of gays living together, and choosing who to associate with, then we may very well be bigots. But you’ll notice that with few exceptions, no one is seeking to ban gays from living together. 

    What causes the fuss is when gays demand that their relationships be called marriage, and to be given the same privileges as child-bearing families.

    From the time humanity came down from the trees, the responsibility for taking care of children was assigned to the biological parents, and marriage was integral to that responsibility. It wasn’t the only function of marriage, but it was a necessary part. I can’t see how you can have gay marriage without saying that child-rearing is no longer integral to marriage. It’s to change the understanding of marriage as the basis of a family into simply a living arrangement. And if it’s nothing more than a living arrangement, you can already live with whomever you want, so why bother? · Jun 17 at 8:52am

    It’s nice to know I’m not alone in position or frustration.

  6. Ed G.
    The King Prawn:  I think you are right on. The debate is generally never argued over the same key principles from one side to the other. Those who support gay marriage view only the private benefit (equality argument) and never see the public good. Those who support traditional marriage dismiss the equality argument as being insufficient to overcome the public good of society’s survival.  · Jun 17 at 8:52am

    I don’t think that those of us who support traditional marriage “dismiss the equality argument as being insufficient to overcome the public good of society’s survival.” In my opinion, there’s really no conflict at all – no reason to dismiss anything. The public finding interest in a particular relationship has no impact at all on how other people choose to live with and relate to each other on an individual basis. So the only relevant questions in the debate are: is there a public interest in marriage, and if so, what is that interest?

  7. Rosie

    What I found interesting is Prof. Epstein’s unwillingness to discuss the fact the militant gay lobby does not have a great reputation for accepting the rights of religious authorities or other secular views who dissagree with their lifestyle.  Prof. Epstein speaks about the ideal situation where both parties will only address the private aspect of the arrangements.  How do the same-sex marriage propronents defend the gay lobby’s use of the governmental apparatus to ensure that schools must teach positively about same-sex unions, silence any dissenters either rhetorically or via physical intimidation (see CA Prop 8 incidents) and in situations like that of Sweden where a Christian pastor was prosecuted for affirming the biblical belief that dissaproves the homosexual lifestyle?  We are not Sweden but the militant gay lobby in conjunction with the left is fervently working on it being so.

  8. Yeah...ok.

    The individual citizen is of public interest. The building and maintenance of citizens is vital to the public interest. Since there are different arguments about when an organism becomes a citizen, society decided to define at what point a citizen comes to life. Acknowledging other perspectives, we nevertheless thought it prudent to define when life begins. We try to avoid the census that counts the pregnant woman as 1 and 3/5 persons.

    Marriage is a significant source for the production of citizens.Therefore it is prudent to define marriage. Perhaps similar to defining when a citizen becomes an adult or what level of alcohol define intoxication. Sure, one can say it is arbitrary but the benefits of a common convention outweigh potential harm.

  9. Ed G.
    Yeah…ok.: The individual citizen is of public interest. The building and maintenance of citizens is vital to the public interest. Since there are different arguments about when an organism becomes a citizen, society decided to define at what point a citizen comes to life. Acknowledging other perspectives, we nevertheless thought it prudent to define when life begins. We try to avoid the census that counts the pregnant woman as 1 and 3/5 persons.

    Marriage is a significant source for the production of citizens.Therefore it is prudent to define marriage. Perhaps similar to defining when a citizen becomes an adult or what level of alcohol define intoxication. Sure, one can say it is arbitrary but the benefits of a common convention outweigh potential harm. · Jun 17 at 11:38am

    Aside from the production of citizens, the public could be severely impacted by the breakup of a procreative relationship in such a way not present in other relationships.

  10. David Knights

     I believe that this post outlines the principaled opposition to “gay marriage”.  The current arrangement has been the cornerstone of civilization for a thousand years and we shouldn’t lightly change it.

  11. Mark Wilson
    Casey Taylor

    Mark Wilson

    Kenneth, it sounds like you want the government to make no marriage distinctions at all.  Whatever your relationship preference, as a matter of civil rights the government must sanction it.

    Is that a fair statement?  Or is there a line to be drawn somewhere?

    Well.. yeah. Government shouldn’t make marriage distinctions.  I pledged myself to my wife in front of God and family; that’s what makes us married, not the contract we signed with the State prior to our wedding day.  Why do you think the government has sanction my marriage as a matter of civil rights, or give my wife and I a bunch of tax breaks that non-married couples don’t get?  I don’t understand your argument.

    You kind of picked up the middle of a long exchange I had with Kenneth.  I got the impression, after he said he didn’t care about polygamy, that he thought the government ought to recognize any kind of marriage whatsoever, lest it discriminate.  He later said that’s not what he meant.

    To your question, the government sanctions your traditional marriage mainly because of its procreative potential.  That is distinct from SSM.

  12. Midget Faded Rattlesnake
    Rosie: How do the same-sex marriage propronents defend the gay lobby’s use of the governmental apparatus to ensure that schools must teach positively about same-sex unions, silence any dissenters either rhetorically or via physical intimidation (see CA Prop 8 incidents) and in situations like that of Sweden where a Christian pastor was prosecuted for affirming the biblical belief that dissaproves the homosexual lifestyle? 

    Fortunately, Epstein defends none of these things, as can be seen in his article here at Defining Ideas.

    Epstein does not want public moneys used to force minority opinions onto the population or to silence dissent.

    Epstein also explicitly advocates that any legal recognition of same-sex marriage/unions come with a strong guarantee that religious bodies’ freedom of association and expression not be infringed — so the state cannot force churches to perform gay ceremonies or shut up about their beliefs.

    Epstein is an idealist about these things: it may not be politically possible anymore to expect freedom of association and expression to be respected — though if so, we are no longer truly America.

    (FWIW: Epstein may also favor dissolution of public schools as an institution. School choice, at the very least.)

  13. EllieP

    Ed,

    How do you see property rights, answer the notion of gay adoption and protect other “civil” rights such as hospital visitation, etc., for gay partners? Is your position that these rights should only accrue to one-man, one-woman?

  14. Robert Lux
    Casey Taylor

    No, I’m saying that marriage is a sacred union and the State shouldn’t enter into it.

    The ability to license implies the ability to prohibit, and the State shouldn’t be in that business.  Civil marriage, as defined by every State in the Union, is a contract between two people and the State itself; there are three parties, not two . . . the State’s involvement cheapens the whole thing and intrudes too deeply into the conduct and disposition of personal affairs. · 

    I know that’s what you’re saying. You’re repeating what I said before. You’re saying in effect marriage ought to be a contract between between two individuals consummating their personal “love” for each other. Again, there’s nothing to your definition.  

    “there are three parties, not two.”  

    Yes, that’s right — for precisely the moral and political reasons I already laid out.

    How does it cheapen it? What’s the intrusion?

  15. Ed G.
    EllieP: Ed,

    How do you see property rights, answer the notion of gay adoption and protect other “civil” rights such as hospital visitation, etc., for gay partners? Is your position that these rights should only accrue to one-man, one-woman? · Jun 17 at 2:44pm

    No, that’s not my notion. It is my notion that these things (not sure I’d refer to them as “rights”) are only tangentially related to marriage. The public purpose of marriage is not to dispense rights to the participants but rather to protect the interests of society in replenishing itself and the interests in replenishment in a stable and productive way. Doesn’t society have an actionable interest in that?

  16. Basil Fawlty

    Ed, I had a kind of cringe reflex while listening to Professor Epstein as he went tripping down the garden path.  He wants me to subsidize an institution (gay marriage) that provides benefits solely to the individuals involved, and none to the society asked to provide the subsidy.  Thanks for expressing my own views on marriage and its public purpose with a clarity that oft escapes me.

  17. Paul A. Rahe
    C

    It may be the case — I am not yet sure — that radical libertarians cannot speak intelligently about marriage. What I have in mind is the fact that radical libertarianism seems to presuppose that all obligations are a function of rights — which is to say that we are radically individualistic and that all of our relationships and all of our obligations arise from consent. This leaves no room for the family, no space for the obligations that bind us to kin whether we consent or not. The proper word for marriage is matrimony — which is derived from a Latin word meaning “condition of motherhood.” Civil society may not have much to say about other species of friendship. But it cannot survive if it does not nurture matrimony and the obligations attendant on it. Marriage is far less about the husband and the wife than about the father and the mother. If civil society interests itself in husband and wife, it is because they are likely to become father and mother. Unless I am mistaken, to defend “gay marriage,” one must forget fatherhood and motherhood. Does Richard do that?

  18. Robert Lux
    Kenneth  

    how is it that we currently deny people the right to marry based upon their choices?  Hey, I’ve got an idea: let’s deny people who smoke the right to marry.  Let’s deny people who drink the right to marry.

    Heck, let’s deny people who watch The Kardashians the right to marry.

    As for your argument re miscegenation laws…mere sophistry. · Jun 17 at 9:25pm

    We don’t currently deny people marriage based on their choices — we have a public interest in marriage because most people are oriented toward same-sex attraction.

    Most libertarians (and liberals) do not understand or accept that there are both collective and individual dimensions to happiness. If we look to nature, we see that collectively, though perhaps not individually, we are happier with laws and norms that mitigate against homosexuality. Why collectively and not individually? Because the teaching regarding the norms for most people must conform to what is possible for most people, i.e., that their nature is oriented toward heterosexuality and their choices must be shaped to it.

    Individually, however, the naturally homosexual person will be distressed by this same teaching. Leftists– and people with strictly  

    [cont'd]

  19. Robert Lux

    libertarian notions of human freedom – want to say that we can tailor the collective teaching or norm to the natures of discrete individuals, which is to say that there is no collective teaching.

    But the relations between between collective and individual are very nuanced. The principal reason to proscribe homosexual activity is not that homosexuality will spread if we don’t, but because the public teaching that conforms to nature, which when inculcated generally leads to greater happiness, requires different roles for men and women. The choice consistent with nature is one that teaches men to be good husbands and fathers and women to be good wives and mothers. The roles of men and women are interrelated, particularly the dominance and submission inherent in them, both sexually and otherwise. In other words, our duties are not natural, but our choices become duties when rendered into collective norms for the whole. Liberals and most libertarians do not adequately take account of the problem of nature and choice in the relationship between the collective and the individual.

  20. Mendel

    I will restate what I wrote in this thread (is there any way to combine the two?):

    How does legal marriage, in its current form, promote the purposes of procreation, child rearing, etc?  Marriage in the US, as an institution, seems about as hollow as possible already to me. 

    But my bigger question is: why should the state be in the business of promoting these ideals at all?  Why should the government create institutions to foster strong fatherhood and motherhood (which I wholeheartedly support)?  Isn’t that the job of our non-governmental institutions, like churches, clubs, or Ricochet discussions?

    I want the government deciding what makes me a good father as little as I want it deciding what foods to put in my body.

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