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 this:
by prohibiting intimate relationships on the one hand, or by forcing them on the other hand, that's the road to social perdition.
Finally this:
When you really start to live your life being offended about how other people live their lives simply because you don't like what they're doing, they're not forcing you into these services, at that particular point you ought to essentially go back to the fundamental libertarian proposition that offense that you take against other individuals is never a ground, standing alone, for prohibition on what it is that they do with their own lives.
Now, I've heard these arguments before, and I agree with them. These are great arguments to be made against bigots, haters, or moralizers. There are big problems, though.
- These arguments don't address those of us who think that marriage serves a valid public purpose, and that not not all relationships have anything to do with this purpose (indeed that there is only one relationship that does have an impact on the public purpose). We don't have any political interest in how people live their lives; we don't want to make laws prohibiting love, sex, cohabitation, pooling of interests or whatever combination that individuals can dream up.
- Banning gay marriage (such an inaccurate term; preserving marriage is so much better, imho) is not the same thing as "clamping down on what other people do" or "prohibiting intimate relationships" or "prohibition on what other people do with their lives". Gay couples or polygamous relationships ('tuples' as coined by Midge) are free to live as they choose - no one is stopping them. They can do this whether or not they are allowed to marry, even whether or not any formal marriage institution exists at all.
Now here's the troubling and frustrating part. Richard Epstein is a learned and intelligent man.Is he really unable to see the distinction between the public interest in "official" marriage on the one hand and the disinterest in how people live their lives on the other? Has no one ever made the case to him that marriage in the public sense isn't about how people live their lives, rather it is about an interest that the public has in a particular relationship?
So, is it that my argument just hasn't gained traction yet, or is it that it's so utterly defeatable that it's not even worth considering anymore? I'm not above admitting error - even colossal error - so if I'm utterly wrong then it would be nice to hear the argument so that I can adjust my opinion and move on. But when I make the argument I never get engagement on it; I either get yet another restatement of my fellow conversant's view or I get a repeat of the charge that this is bigotry on the order of opposition to mixed race marriage (obviously I have a deep antagonism to the concept of equality under the law and the gay lifestyle - there's no other possible reason for me to oppose gay marriage, apparently). Won't anyone set me straight?
- Comment (201)
- · Quote
- · UnfollowFollow (10)
Comments:
Aug '10
Re: Beating a Dead Gay Horse
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 :-)
Jan '11
Re: Beating a Dead Gay Horse
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?
Dec '10
Re: Beating a Dead Gay Horse
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.
Edited on June 17, 2011 at 6:00pmFeb '11
Re: Beating a Dead Gay Horse
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.
Feb '11
Re: Beating a Dead Gay Horse
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.
Feb '11
Re: Beating a Dead Gay Horse
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?
Feb '11
Re: Beating a Dead Gay Horse
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.
Jan '11
Re: Beating a Dead Gay Horse
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.
Feb '11
Re: Beating a Dead Gay Horse
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.
May '11
Re: Beating a Dead Gay Horse
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.
Aug '10
Re: Beating a Dead Gay Horse
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.)
Edited on June 17, 2011 at 10:18pmDec '10
Re: Beating a Dead Gay Horse
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?
Feb '11
Re: Beating a Dead Gay Horse
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?
Mar '11
Re: Beating a Dead Gay Horse
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.
Re: Beating a Dead Gay Horse
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?
Edited on June 18, 2011 at 12:28amMar '11
Re: Beating a Dead Gay Horse
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.
Jun '10
Re: Beating a Dead Gay Horse
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
Can someone explain the hospital visitation issue to me?
Do you really need to be married to someone to visit them in the hospital? If a straight couple has been dating for years, but isn't married, and she gets hurt, he can't visit her? Her best friend can't visit either?
Which hospitals enforce this policy, and why?
Jan '11
Re: Beating a Dead Gay Horse
No Ed you are not alone. My single biggest frustration in this entire debate is the unwillingness of those on the pro-same sex marriage side to even acknowledge that civil marriage exists to serve a societal purpose.
Mar '11
Re: Beating a Dead Gay Horse
Joseph Stanko
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
Can someone explain the hospital visitation issue to me?
Do you really need to be married to someone to visit them in the hospital? If a straight couple has been dating for years, but isn't married, and she gets hurt, he can't visit her? Her best friend can't visit either?
Which hospitals enforce this policy, and why? · Jun 17 at 3:56pm
The hospital visitation issue is what's know as a red herring.
May '10
Re: Beating a Dead Gay Horse
But the test of good faith in the argument *is* Prop 8. If it is upheld, homosexual unions are recognised embodying essentially every component of marriage *except* the name. What Prop 8 does is to prevent individuals and groups like churches being compelled to recognise such unions as being marriages in all respects - employers and public institutions are so compelled *even* if Prop 8 is upheld.