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?
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Comments:
May '11
Re: Beating a Dead Gay Horse
Basil Fawlty: Not being an attorney or legal scholar. (I do have a soul ha ha ha) I was under the impression that gay couples were not given the right to death bed hospital visitation or power of attorney. If I'm wrong I do apologize. One of the arguments gay marriage proponents make is that their are many rights gay couples are denied that hetrosexual couples have. From my limited legal point of view, Wouldn't civil unions be a reasonable way to give gay couples many of the same rights straight couples have without putting their relationships on equal footing of straight married couples? Please feel free to educate me on this issue.
Apr '11
Re: Beating a Dead Gay Horse
I would be happy were my state to issue "Certificates of Gay Marriage":
"Be it known by these presents that N and N have declared themselves in an appropriate forum to be joined in Gay Marriage and thereby entitled to all the privileges thereof."
But Gay Marriage isn't really what is being sought.
Mendel:
...Marriage in the US, as an institution, seems about as hollow as possible already to me.
...Why should the government create institutions to foster strong fatherhood and motherhood? Isn't that the job of our non-governmental institutions, like churches, clubs, or Ricochet discussions?
The state is an instrument of society. It is not the state but as you say, society that promotes procreation. It is the most important job in society, and it is commensurately tough. Hence, society requires people to undertake commitments. The state is involved only because the job is so tough those commitments sometimes have to be enforced by force.
Marriage is hollow among those advocating ex aequo same-sex marriage. Elsewhere we are working at making it fulfilling day by day. One of the saddest pathologies of our young adults is their despair of ever making a good marriage.
Edited on June 18, 2011 at 3:29amMay '10
Re: Beating a Dead Gay Horse
Kenneth
Mark Wilson
Here you bring up rights again. Any man, straight or gay, can marry (almost) any woman. No man, gay or straight, can marry another man. Where is the unequal treatment? · Jun 17 at 5:13pm
Oh, my, that old chestnut? I suppose you're still arguing for miscegenation laws, too? · Jun 17 at 5:28pm
So sex is as incidental and inconsequential as race?
Jul '10
Re: Beating a Dead Gay Horse
Mark Wilson
Kenneth
Mark Wilson
Here you bring up rights again. Any man, straight or gay, can marry (almost) any woman. No man, gay or straight, can marry another man. Where is the unequal treatment? · Jun 17 at 5:13pm
Oh, my, that old chestnut? I suppose you're still arguing for miscegenation laws, too? · Jun 17 at 5:28pm
So sex is as incidental and inconsequential as race? · Jun 17 at 6:08pm
Gee, black people didn't find prejudice to be inconsequential back in the days when they couldn't send their kids to the same schools, drink from the same water fountains and eat at the same lunch counters as white bigots.
Edited on June 18, 2011 at 3:13amMar '11
Re: Beating a Dead Gay Horse
I, too, have a soul. Deathbed visitation and power of attorney choices are easily solved through contracts. That being said, I have no problem with civil unions, provided that they do not include a marital subsidy that should be reserved for those who intend to provide for my retirement through the instrument of offspring.
Dec '10
Re: Beating a Dead Gay Horse
Lemme see if I can handle these in bullet form (remember I’m not a proponent of gay marriage):
“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.” - Paul A. Rahe
I agree with you, but playing the devil’s advocate here: can you prove it? Can you point objective data where gays and lesbians were allowed to mainstream and parent?
Edited on June 18, 2011 at 3:31amDec '10
Re: Beating a Dead Gay Horse
Each of these has been objected to as unequal protection. I believe each of these problems could be addressed by universal civil unions without redefining marriage.
Edited on June 18, 2011 at 3:29amProblem is, all our laws are written using the term, “marriage”. Under my scenario, which I believe is an imperfect yet workable moral compromise, the costs to convert would be astronomical. That is one reason so many are pushing for ‘gay marriage.’ That and the obvious social legitimization/recognition they are seeking.
Mar '11
Re: Beating a Dead Gay Horse
Kenneth
Mark Wilson
Kenneth
Mark Wilson
Here you bring up rights again. Any man, straight or gay, can marry (almost) any woman. No man, gay or straight, can marry another man. Where is the unequal treatment? · Jun 17 at 5:13pm
Oh, my, that old chestnut? I suppose you're still arguing for miscegenation laws, too? · Jun 17 at 5:28pm
So sex is as incidental and inconsequential as race? · Jun 17 at 6:08pm
Gee, black people didn't find prejudice to be inconsequential back in the days when they couldn't send their kids to the same schools, drink from the same water fountains and eat at the same lunch counters as white bigots. · Jun 17 at 6:12pm
Edited on Jun 17 at 06:13 pm
How sad that the Code of Conduct doesn't prohibit the repeated use of tired, silly analogy in lieu of actual discussion. I find such use unpersuasive.
May '10
Re: Beating a Dead Gay Horse
Kenneth
Mark Wilson
So sex is as incidental and inconsequential as race? · Jun 17 at 6:08pm
Gee, black people didn't find prejudice to be inconsequential back in the days when they couldn't send their kids to the same schools, drink from the same water fountains and eat at the same lunch counters as white bigots.
Care to address my question? Is the sex of each partner as inconsequential and incidental to human sexual relationships as their races?
Jul '10
Re: Beating a Dead Gay Horse
Basil Fawlty
Kenneth
Mark Wilson
Kenneth
Mark Wilson
Here you bring up rights again. Any man, straight or gay, can marry (almost) any woman. No man, gay or straight, can marry another man. Where is the unequal treatment? · Jun 17 at 5:13pm
Oh, my, that old chestnut? I suppose you're still arguing for miscegenation laws, too? · Jun 17 at 5:28pm
So sex is as incidental and inconsequential as race? · Jun 17 at 6:08pm
Gee, black people didn't find prejudice to be inconsequential back in the days when they couldn't send their kids to the same schools, drink from the same water fountains and eat at the same lunch counters as white bigots. · Jun 17 at 6:12pm
Edited on Jun 17 at 06:13 pm
How sad that the Code of Conduct doesn't prohibit the repeated use of tired, silly analogy in lieu of actual discussion. I find such use unpersuasive. · Jun 17 at 6:29pm
Yeah, along with tired memes like "If gay people can marry, then we're opening the gate to incest and bigamy."
Jul '10
Re: Beating a Dead Gay Horse
Mark Wilson
Kenneth
Mark Wilson
So sex is as incidental and inconsequential as race? · Jun 17 at 6:08pm
Gee, black people didn't find prejudice to be inconsequential back in the days when they couldn't send their kids to the same schools, drink from the same water fountains and eat at the same lunch counters as white bigots.
Care to address my question? Is the sex of each partner as inconsequential and incidental to human sexual relationships as their races? · Jun 17 at 6:34pm
What do you care? No one is forcing you into homosexual acts.
May '10
Re: Beating a Dead Gay Horse
Kenneth
Mark Wilson
Kenneth
Mark Wilson
So sex is as incidental and inconsequential as race? · Jun 17 at 6:08pm
Gee, black people didn't find prejudice to be inconsequential back in the days when they couldn't send their kids to the same schools, drink from the same water fountains and eat at the same lunch counters as white bigots.
Care to address my question? Is the sex of each partner as inconsequential and incidental to human sexual relationships as their races? · Jun 17 at 6:34pm
What do you care? No one is forcing you into homosexual acts. · Jun 17 at 6:38pm
This is a thread about the public purpose of marriage, i.e. what kinds of relationships the government should endorse, what kinds it should not, and why. This obviously depends on the nature of the relationships and the people involved.
Edited on June 18, 2011 at 3:45amJul '10
Re: Beating a Dead Gay Horse
Richard Epstein is making a classic error.
Perhaps the learned professor would do well to re-read and understand (crucial point, that) his beloved Hayek. Turns out that Frederick had a lot to say about how liberty produced competing social traditions. And those social traditions that survived like genetic traits (see: evolution)are those that fit best within society.
In other words, a great mind like Mr. Epstein may not be able to comprehend the thousands, if not millions, of interactions that led us to the point that marriage has been traditionally defined in Western Society as a union between a man and a woman for procreation and the stability of that society. But his specific lack of comprehension (hard to believe since he's so smart! - see Lenin, Vladimir Ilyich) does not belie a universal truth that has been discovered by the benighted many.
The problem with "libertarians" is that they take the omniscient view that leftists embrace so readily, yet the former are without the conscience to understand their stance. Epstein has no quarrel with denouncing those who disagree in the same fashion as the leftists do because both know what is best for society...
Mar '11
Re: Beating a Dead Gay Horse
Paul A. Rahe
In the absence of public sanction fathers will be even more apt than they are today to sire children and abandon their mothers and the children, too. ·
Prof. Rahe,
I agree that outside pressure is often necessary to keep men from straying from their responsibilities. However, in a democracy where we can change the rules more or less at will, the public sanction against infidelity has to come first from society before it can be codified. My question is: if societal condemnation of divorce or infidelity is a prerequisite for change, why do we need to codify it at all? Why can't judgment in the eyes of our peers suffice as punishment?
Jul '10
Re: Beating a Dead Gay Horse
However, society on it's own has figured out what is best for society despite the wishes and dreams of those on the left and those who deem themselves "libertarian." There is a reason why we codify the marriage "agreement" into Law. To disregard the sanctity of marriage in society is to disregard the centuries of tradition "The Democracy of the Dead' of millions of human interaction that have brought us to this place where the enlightened few (of course in the Law Faculties of Higher Institutions - the lowest risk employment situation besides being employed by government) are to denigrate the benighted many because these philosopher kings have deemed our millions of interactions stupid by their decree.
This is another form of despotism in the oligarchy of the chosen who decide. From Obamacare to government bailouts to social customs of marriage and immigration, we should bow to those who have the intelligence and skill to be ensconced in their positions to deem how I should live in my society. Society has already decided.
The famous story by Chesterton applies here.
Jun '10
Re: Beating a Dead Gay Horse
Kenneth
Yeah, along with tired memes like "If gay people can marry, then we're opening the gate to incest and bigamy." · Jun 17 at 6:37pm
Actually on the podcast Mr. Epstein said the law should allow polygamy as well. It also follows from what was quoted above:
"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."
Do polygamous relationships offend your moral sensibilities?
Jul '10
Re: Beating a Dead Gay Horse
There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."
Tell us why marriage exists as an institution and then you can think about why you might remove it.
Re: Beating a Dead Gay Horse
EllieP: Lemme see if I can handle these in bullet form (remember I’m not a proponent of gay marriage):
“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.” - Paul A. Rahe
I agree with you, but playing the devil’s advocate here: can you prove it? Can you point objective data where gays and lesbians were allowed to mainstream and parent? · Jun 17 at 6:25pm
Edited on Jun 17 at 06:31 pm
My wife tells me that there is quite a bit of data showing that the sexual abuse of children is much more common when one or more of those involved in parenting are not the biological parents.
Re: Beating a Dead Gay Horse
Mendel
Paul A. Rahe
In the absence of public sanction fathers will be even more apt than they are today to sire children and abandon their mothers and the children, too. ·
Prof. Rahe,
I agree that outside pressure is often necessary to keep men from straying from their responsibilities. However, in a democracy where we can change the rules more or less at will, the public sanction against infidelity has to come first from society before it can be codified. My question is: if societal condemnation of divorce or infidelity is a prerequisite for change, why do we need to codify it at all? Why can't judgment in the eyes of our peers suffice as punishment? · Jun 17 at 6:47pm
An excellent question. And my answer is that the law has authority (teaching authority, let me add). Moreover, it can compel. And where moral persuasion fails, compulsion is often necessary.
Jun '10
Re: Beating a Dead Gay Horse
In fact I'd say the case for plural marriage is stronger than the case for SSM. Plural marriage is sactioned by Islam and fundamentalist Mormom sects, and a 1st Amendment "free exercise" challege seems stronger to me than the "equal protection" claim for SSM.
Marriages involving one man and multiple women are at least as old and traditional as monogamy. Both are oriented towards procreation and children.
This isn't just an abstract slippery slope argument, there are real affected families in Utah and elsewhere. Muslims are already claiming welfare benefits for multiple wives in the U.K. If husband and wife #1 are in a coma after a car wreck, shouldn't wife #2 have visitation rights and power of attorney? If they die, shouldn't she inherit their property and custody of their children?
Finally, if opposition to SSM is "irrational" and thus reflects only bigotry and homophobia, then opposition to plural marriage must stem from anti-Mormon bigotry and Islamophobia.