August 26, 2014

"These people and their adopted children are harmed by your law [banning same-sex marriage]. The question is what is the offsetting benefit of your law. Who is being helped?"

Asked Judge Richard Posner, as the 7th Circuit heard argument today in cases challenging Wisconsin and Indiana law.

Based on the linked news report, there was nothing new to be said on the well-worn subject, even with Posner on the panel. But I will listen to the argument, here (Wisconsin) and here (Indiana), and update this post if I hear anything notable.

It seems predictable that the 7th Circuit will reject the ban and that the issue will soon be decided by the Supreme Court. 

ADDED: I've listened to the argument and recommend it. It's lively, and the government lawyers are on the run, but repeatedly cornered by the simple and predictable demand to articulate an interest served by excluding gay people from marriage. All of the judges clearly reject tradition as the interest, and the idea of leaving it to the legislature is repeatedly scoffed at as merely getting us back to the need to at least show some legitimate governmental interest. There is a great deal of attention to the welfare of children, with the government lawyers stressing the capacity of heterosexuals to produce children and the value of channeling this phenomenon into stable relationships for the sake of the children and the judges unable to see the reason to exclude gay people, who may also have children, especially given that the states in these cases both allow gay people to adopt. Why do the states want to hurt those kids? I lost track of the number of times the government lawyers were stymied by that question.

142 comments:

Anonymous said...

It won't be enough until Homosexuality is mandatory.

traditionalguy said...

The clock is ticking until the glory of being a free Gay person is not that big a deal anymore. Tick, tick, tick....

66 said...

I agree it is a well-worn subject, and I do not claim to have anything new to add. I am genuinely surprised at how quickly public opinion seems to have changed on this issue. And I am more than a little nervous about redefining an institution that has served civilization reasonably well for thousands of years. What new insight do we have in 2014 that allows us to say virtually all of recorded civilization up to now has been wrong? Can't we protect the rights of gays and lesbians to love whomever they please without taking such a radical step?

n.n said...

They seem determined to not address the issue on its merits.

Ignorance is Bliss said...

I'm being harmed by the government not printing me a million dollars. Who is being helped?

And don't give me some bullshit answer about how printing money for me would devalue the money other people already have. The amount of dilution from printing that would be too small to even be called a rounding error.

tim in vermont said...

Not only will it be mandatory, but we will be required to call it "Holy Matrimony"... and mean it.

I was just writing up a complicated answer but I see that Ignorance is Bliss nailed it.

Anonymous said...

What a strange standard. We can't have laws based on morality?

We have LOTS of laws based on morality. Why can't I do cocaine? "It's bad for you." Well, so are hamburgers. "It's a bad example for the children." That's your opinion, and it's just as valid to say that homosexuality is bad for the children. And the same sort of people tend to say it.

Now personally, I'd love it if the government didn't have any victimless, morality-based laws on the books, but isn't it absurd to say that they're somehow illegal?

garage mahal said...

Appealing this to the 7th is part of Walker's "evolution" on gay marriage.

jr565 said...

Banning of polygamy hurts polygamists. Who does it help? So therefore, stop banning polygamy.

m stone said...

"We're just asking for them to fulfill their obligations to us, like they would any other first responder," Morrison said as she waited in line to get in the courtroom.

Is she equating gays with first responders? Coming to the aid of society?

That's something "new to be said."

~ Gordon Pasha said...

Fundamentalist LDS members are gleefully rubbing their hands waiting for the same logic to be applied to polygamy.

Heck, maybe the LDS church is going to re-institute polygamy since the Manifesto did nothing more advise Mormons "... to refrain from contracting any marriage forbidden by the law of the land."

SteveR said...

The difference is lawyers know better than us. The fine distinctions, what the meaning of "is" is, who's morality is the right kind, etc.

Lyssa said...

It seems predictable that the 7th Circuit will reject the ban and that the issue will soon be decided by the Supreme Court.

Every circuit so far has rejected the bans, right? Is it possible that this will never make it to SCOTUS just because it never needs to, by virtue of circuit unanimity?

I'm highly skeptical of the concept of rational basis in general (the legal theory on which these decisions rest), but highly supportive of gay marriage (and have been since before Obama even considered "evolving" on the issue). Given that it is virtually inevitable at this point, while I wish that it had come legislatively, I'm somewhat over my academic objection to the means.

hombre said...

Exactly right, Judge. As we all, know, it is the function of the judiciary to eliminate all they perceive to be harmful.

Although here, I have to wonder, what is the harm? Since adoption was permitted, is it that the children are being raised by unmarried parents? How unusual.

Or are they being harmed by other laws that could be stricken or amended to cure the harm without judicial abridgement of the people's right to self- determination on the issue of the traditional institution of marriage using some notion of Equal Protection invented within the last year or two?

hombre said...
This comment has been removed by the author.
David said...

Who says leading from behind does not work? The Supreme Court has let the lesser Federal courts and the state courts chew this one over. Now their ruling will be a confirmation of a substantial trend and not a step ahead of everyone else. (Yes I am assuming they will not rule that gay marriage can be banned.)

Not a bad strategy at all. As an institution the Court did not need another Roe v. Wade, where they were the moving force for a unanticipated decision. The country gets used to the idea more gradually, and perhaps (probably in my good) will will not get the endless poison that Roe v Wade caused.

Of course if you think that the decisions favoring gay marriage are obviously and hopelessly wrong, you are not satisfied. Somebody has to lose. It's how you lose that matters here.

DanTheMan said...

Thank goodness unelected judges are deciding this for us. Imagine how messy it would be if the people were asked to decide such things by voting and changing laws!
That "consent of the governed" nonsense is just so unworkable...

hombre said...

BTW, Judge, we have just hit the fifty-eight million mark of unborn babies slaughtered in accordance with judicial fiat.

We know that the ban helped the unborn. What is the offsetting benefit of Blackmun's Law?

Oh. I remember. Women get to have unprotected sex with men they don't want to father their children.

David said...

garage mahal said...
Appealing this to the 7th is part of Walker's "evolution" on gay marriage.


Appealing the decision to a 7th Circuit that almost certainly will affirm has the advantage of demonstrating to opponents of the result that they are never going to win. It brings the prestige of a higher court to confirm the decision. The appeal is problematic only if you think there is a reasonable chance that the 7th will reverse. The appeal should end all basis for the controversy in Wisconsin.

One would think that would satisfy you Garage, but of course you would not want to miss a chance to bash Walker.

Saint Croix said...

The question is what is the offsetting benefit of your law. Who is being helped?

I would say children are much better off in two parent families, with a biological mom and a biological dad. That is the ideal mechanism for the raising of children. We know this over tens of thousands of years of human evolution. To introduce 3-parent arrangements, with two moms and one dad, or two dads and one mom, is a bad idea. Just like being a single parent is a bad idea. So to answer your question, Judge Posner, our society is helping and looking after our children, and the future of the human race.

rhhardin said...

I never heard a response to its changing the word marriage so that it no longer describes the particular modes and dynamic of male/female relations, both successes and failures.

They become unthinkable, and it becomes civil union with screwing.

The Godfather said...

I support Gay marriage. Here in NC I voted against the Constitutional Amendment to ban it, and even wrote a letter to the editor of our local paper (which published it) in opposition. I have Gay friends whom I love who have married and I celebrate them, and I have Gay friends who haven't been allowed to marry where they live, and so remain unmarried, and I sympathize with them.

I want Gay marriage to be accepted, but I don't want it imposed by the courts. There are two reasons for that. First, the US Constitution says nothing about Gay marriage. The courts that have ruled that the Constitution forbids States from continuing to define marriage as it has been defined for thousands of years, are wrong: It doesn't say that. Second, the position of Gays in our society would be immensely better if Gay marriage were approved by democratic majorities, rather than imposed by federal judges, even if that meant waiting a few more years.

But I think my position is hopeless.

Ann Althouse said...

"I would say children are much better off in two parent families, with a biological mom and a biological dad. That is the ideal mechanism for the raising of children. We know this over tens of thousands of years of human evolution. To introduce 3-parent arrangements, with two moms and one dad, or two dads and one mom, is a bad idea. Just like being a single parent is a bad idea. So to answer your question, Judge Posner, our society is helping and looking after our children, and the future of the human race."

Posner was asking about adopted children of gay couples. Why deprive them? The state allows these adoptions, then consigns these kids to a worse setup. Why?

garage mahal said...

One would think that would satisfy you Garage, but of course you would not want to miss a chance to bash Walker.

But Walker is quick to point out that whatever court agrees with him is the definitive word and end of the story. He won't even acknowledge the existence of 7th Circuit that is going to decide on whether to let John Doe II move forward or not. He said the lower courts have exonerated him.

bgates said...

One offsetting benefit of upholding a law passed by a legislature and not in conflict with the Constitution would be that it would uphold a system of upholding laws passed by legislatures so long as they did not conflict with the Constitution.

If gay marriage is the wildly popular right side of history all the loud voices say it is, why not demonstrate that by getting a Constitutional amendment in place?

Ann Althouse said...

So these are kids with 4 parents, none of whom are married. Why leave them like that? Who is better off, while they are worse off?

The argument the govt lawyers had to make was that biological parents will be less likely to marry if gay people can marry, because marriage will be devalued. Is that credible?

cubanbob said...

"The question is what is the offsetting benefit of your law. Who is being helped?"

This kind of judicial reasoning should be the basis of an automatic impeachment and removal. Its not the courts role to make policy, only to decide if legislation is constitutionally permissive.

Revenant said...

I'm being harmed by the government not printing me a million dollars. Who is being helped?

Everyone else in America. Printing a million dollars devalues all the existing dollars.

Revenant said...

What a strange standard. We can't have laws based on morality?

If we had laws based on morality, it would be illegal to indoctrinate children into a religion before they're old enough to make informed decisions.

... it is possible you meant "laws based on *your* morality", though. :)

66 said...

Isn't fairly obvious that a child in a gay marriage is, all else being equal, always worse off? That child will be denied either a father or a mother. I don't think it is unreasonable for the state to want all children to at least have the potential to be raised by a father and a mother.

mccullough said...

Rev,

Shouldn't it be laws banning indoctrination of children. Why is religion any more harmful than any other ideology. Communism seems to have the caused the most deaths.

Wince said...

Posner is spewing ass-backwards public policy nonsense here, isn't he? He's arguing to change the law of marriage basically to rejigger the tax code.

He noted adopted children would benefit if their parents could claim the tax breaks and other perks of being married.

Really? Isn't there a marriage tax penalty? Can't single parents claim all the same tax credits?

Correspondingly, aren't children harmed by laws that allow divorce?

Should we overturn those laws for parents of minor children?

hombre said...

Revenant wrote: "If we had laws based on morality, it would be illegal to indoctrinate children into a religion before they're old enough to make informed decisions.
... it is possible you meant 'laws based on *your* morality' though."

As we all know, progressive atheists would never consider indoctrinating children, particularly through the public school system. Right?

And, of course laws favored by progressive atheists are all based on something other than morality because progressive atheists are moral relativists.

Let's hear it for "preferences."

mccullough said...

Once the ban is struck down, Wisconsin should pass a law barring single people from adopting in order to promote child rearing.

What is worse for kids, being born to unmarried parents or having parents divorce?

Gahrie said...

Thank goodness unelected judges are deciding this for us. Imagine how messy it would be if the people were asked to decide such things by voting and changing laws!

It's so messy that even when the people do vote, the courts over rule them. The courts over rule them when the people vote to change their Constitution.


Talk about power! Not even Obama has that much power.

trumpintroublenow said...

Lyssa,

Even if all circuits are in agreement SCOTUS will certainly want the last word. See Supreme Court Rule 10(c)

"Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court."

Revenant said...

Isn't fairly obvious that a child in a gay marriage is, all else being equal, always worse off? That child will be denied either a father or a mother.

Take two families: in one, both parents are Catholics. In the other, the mother is Jewish and the father is Catholic.

Are the children in the first family worse off, all things being equal? They're denied a Jewish parent.

Revenant said...

Shouldn't it be laws banning indoctrination of children. Why is religion any more harmful than any other ideology. Communism seems to have the caused the most deaths.


I was going off what harms the child, not what causes the child to later harm other people... but sure, if you prefer.

Revenant said...

We know that the ban helped the unborn.

How do we know that? Did we conduct a seance?

hombre said...

Althouse wrote: "So these are kids with 4 parents, none of whom are married. Why leave them like that? Who is better off, while they are worse off?"

Is that a reflection of the argument against the ban? So the Court may actually find some variation of "marriage is beneficial to children" is compelling in this context? No doubt the applicability of that premise to homosexual marriage would be based on many years of scientific observation of thousands of homosexual marriages. LOL.

What a load of crap! Manna for a lib like Posner.

Wilbur said...

Hey, lay off Posner.

He's just using the William Brennan method of jurisprudence: I disagree with this public policy, ergo, it's unconstitutional.

See how easy it is!

Bart Hall (Kansas, USA) said...

I am quite libertarian about SSM; in fact, the state should have nothing to do with marriage.

That said, children are better off in a two-parent hetero-sexual family because men and women are -- news flash -- DIFFERENT, and each brings important aspects to the development and emotional health of children.

Single-parent families are not ideal, either, and I believe no child should ever be placed in a single-parent family. Some single parent situations are unintentional -- DEATH -- but most are quite intentional and create the same problems as SSM.

I say this as an adoptive father who earlier in life spent a fair bit of time as a functional single father.

Any contention that kids do "just fine" in less-than-ideal family configurations is mere advocacy.

hombre said...

Garage: "But Walker is quick to point out that whatever court agrees with him is the definitive word and end of the story."

He is certainly unique in that regard, isn't he, garage?

Saint Croix said...

Posner was asking about adopted children of gay couples. Why deprive them?

I haven't read any of the briefs so I'm afraid I'm going to be ignorant of the facts of this particular case.

I don't think gay couples should be treated as identical to married couples when it comes to adopting children. If at all possible I think children should have a mother and a father.

if a state wants to give gay couples the legal right to adopt children, that's fine. To me it's really weird to say that gays can adopt children but they can't marry. But just because something is weird doesn't mean our unelected rulers should "fix" it.

Imagine if a court struck down the rules allowing gays to adopt children! That would make the rules more "rational" in that our adoption rules are aligned with our marriage rules. But it would be a really ugly and dictatorial thing for unelected judges to act that way.

n.n said...

I question the motives and fitness of homosexual guardians; but, I also question the motives and fitness of heterosexuals who are "pro-choice". The homosexual activists and advocates are notorious for usurping "normal" social constructs and institutions in order to facilitate acceptance of their behavior. However, their effort to bypass the process and criterion for normalization, especially through emotional appeals, executive order, and judicial decree is standard fare for their class of activism and advocacy.

That said, in an age with "test tube" babies, and a morally ambiguous "rent-a-womb" market,
there is something welcome about presumptive guardians adopting orphaned children.

Still, I wonder if Posner has considered the consequences of moral hazards created through selective exclusion. How does humanity and society benefit from selectively normalizing homosexual behavior, not merely orientation? This case is not about guardianship, but about overriding the process and criterion of normalization.

Anonymous said...

Judge Posner: Who the fuck cares?

"People are being hurt by a law" is the subject of politicians and voters, NOT judges. You're ONLY remit is "it says right here in the Constitution that you can't do that."

Since the last time a Constitutional Amendment was passed, homosexual activity was criminal in many states, there's not the slightest chance that there's a legitimate argument for saying that SSM is a Constitutional right. So fuck off, shut up, and got to hell.

hombre said...

Revenant wrote: "'We know that the ban helped the unborn.' How do we know that? Did we conduct a seance?"

I don't know, Revenant. If, for example, someone wanted to end your life by, say, dismembering you, would a law prohibiting that action be helpful to you?

jimbino said...

Posner, as much as I like what he writes, is a typical jurist without understanding of economic issues.

People directly harmed by the pro-marriage and pro-natal policies of the USSA include every single and childfree person who pays through the nose to support those 1000+ special benefits accorded the married and the breeders.

The greatest scam is the public-mis-education K-12 that costs taxpayers $12,000+ per kid per 9-mo period.

Jason said...

As long as florists, bakers and wedding photographers are being successfully sued for not wanting to participate in same sex weddings, to hell with this faggotry. Hiding behind the mantle of equality, rights and the civil rights movement is a farce as long as ordinary Americans are having their religious consciences criminalizes by these degenerates.

garage mahal said...

He is certainly unique in that regard, isn't he, garage?

No, but he is very liberal in his use of deceptive statements to deflect criticism away from him. Walker has two pending cases in the 7th District Court and won't acknowledge either of them. Is it irritating because he is so skilled at what he does? Yes I will cop to that.

sinz52 said...

66 asks: " What new insight do we have in 2014 that allows us to say virtually all of recorded civilization up to now has been wrong?"

The insight--which goes back to 1978--is that modern medicine has permanently separated sex and procreation.

The contraceptive Pill (1960) made it possible for a woman to have sex without procreation.

In-vitro fertilization (1978) made it possible for a woman to conceive without sex.

That meant that the traditional view of marriage--it was the institutionalization of procreation--could no longer obtain.

Instead, married couples have sex for pleasure, bonding, to express their love, etc. Only occasionally--if ever--do they try to make a baby.

And if that's the modern function of sex within marriage, then why should gays not have that?

sinz52 said...

DS: "What a strange standard. We can't have laws based on morality?"

Which morality?

The problem is that we have many different religions, many different sects, nonbelievers, etc.

Laws based on morality assume a moral code shared by the overwhelming majority of the citizens.

There was a time when everybody in America went along with Christian moral views. Communities had strict Blue Laws. Homosexual sex itself was a felony in many parts of the nation. Etc.

But we got called out on it. Activists started demanding that America be as pluralistic as she claimed to be.

Most of the Blue Laws went away.

sinz52 said...

" To introduce 3-parent arrangements, with two moms and one dad, or two dads and one mom, is a bad idea."

But that's a separate issue.

Because whether you like it or not, by the late 1990s, gay couples were *already* adopting children even before the same-sex marriage crusade took off.

So given that gays are going to continue to adopt children, and lesbians are going to continue to give birth by in-vitro fertilization, it's better for the children if the parents are married than if they're unmarried.

What YOU seem to want is not just to ban same-sex marriage, but to ban gays and lesbians from raising children, regardless of whether it's within wedlock.

And that you can't have. The courts have ruled already that gay couples can't be banned from adopting children.

Saint Croix said...

"You allow all these sterile couples to get married," he said. "Why are you doing that if you're so interested in procreation?"

Does he doubt that our society has an interest in procreation?

Kohath said...

"Harm" happens whenever someone doesn't get what they want. I hope this reasoning wins the day. It will make it almost impossible to sustain any legal ban on (or legal preference for) anything.

Goodbye driver's licenses, for example. You are harming unlicensed drivers. But there are lots of bad drivers who have licenses. So you can't prove you're really helping anyone by excluding the unlicensed from driving. And even if you are helping in cases of license revocation, there's no evidence a person who has never had a driver's license is a bad driver. Therefore, driver's licenses are unconstitutional because there's no rational basis for requiring them.

Revenant said...

I don't know, Revenant. If, for example, someone wanted to end your life by, say, dismembering you, would a law prohibiting that action be helpful to you?

The answer to that question isn't useful to the discussion, since I am not a fetus.

Ignorance is Bliss said...
This comment has been removed by the author.
Revenant said...

What new insight do we have in 2014 that allows us to say virtually all of recorded civilization up to now has been wrong?

The laws of probability? :)

Moose said...

Holding children hostage to force a change in the law is *not* my idea of enlightened.

Birches said...

The argument the govt lawyers had to make was that biological parents will be less likely to marry if gay people can marry, because marriage will be devalued. Is that credible?

I used to think it was not credible. This line of thought (the devaluing of marriage) has been brought up since the days of fighting for no-fault divorce. And it's only become apparent to me since the SSM fight that all the things that shouldn't affect "your marriage" have harmed marriage in the aggregate, especially in the lower classes. So yes, it's a credible argument, but no one will make that argument, because no one will admit that "marriage" has been fighting a losing battle since 1965.

I'm actually turning more and more to believe that the Catholics have been right about a great many things when it comes to marriage and family.

Saint Croix said...

The insight--which goes back to 1978--is that modern medicine has permanently separated sex and procreation.

In the USA we have an unplanned pregnancy every 10 seconds. While reading that sentence, we made another baby. Oops.

The contraceptive Pill (1960) made it possible for a woman to have sex without procreation.

56 million abortions suggest that your "possibility" is not an actuality. In fact this idiotic notion that we have permanently separated sex and procreation., has caused millions of people to act carelessly and callously, not to mention irresponsibly.

And another baby. Congrats, Dad!

Ignorance is Bliss said...
This comment has been removed by the author.
Ignorance is Bliss said...

Ann Althouse said...

The argument the govt lawyers had to make was that biological parents will be less likely to marry if gay people can marry, because marriage will be devalued. Is that credible?

If by credible you mean gobsmackingly obvious then yes, yes it is.

hombre said...

Revenant wrote: "The answer to that question isn't useful to the discussion, since I am not a fetus."

Your comments are particularly illogical today. Or perhaps I just haven't been paying attention before.

Is it really your position that only fetuses can suffer death by dismemberment? The question is rhetorical. I'm not really interested in your answer.

hombre said...

sinz52 wrote: "... it's better for the children if the parents are married than if they're unmarried."

Funny how that was not the conventional wisdom among lefties until they started pimping for gay marriage. I guess we will now see progressives holding forth that parents who are merely living together are doing a disservice to their children.

As long as we are making these kinds of judgments: is it better for the children if parents are hetero than if they are homo?

Moral relativity abides, Dude.

Anonymous said...

"Posner was asking about adopted children of gay couples. Why deprive them? The state allows these adoptions, then consigns these kids to a worse setup. Why?"

The State shouldn't allow children to be adopted by homosexuals, period.

Every child deserves a Mother and a Father.

Why would you want a State to deprive, by force of law, a child from having a father or a mother?

Anonymous said...

Ignorance as Bliss wrote:

"The argument the govt lawyers had to make was that biological parents will be less likely to marry if gay people can marry, because marriage will be devalued. Is that credible?

If by credible you mean gobsmackingly obvious then yes, yes it is."

Why marry if marriage doesn't mean anything?

These people, with their hearts worn on their sleeves, want the very best, and don't even realize the tyranny they impose through their good intentions.

Lyssa said...

Steve Urh, I'm not convinced that SCOTUS would want the final word. Those hat are enthusiastic supporters may, but those that are more hesitant, either because of disagreement with the concept of SSM, or for the legalistic reasons I described in my earlier comment, may prefer to avoid it. I know I wouldn't want to get anywhere near it, if I were a justice.

CWJ said...

I've glanced through the majority of the comments including Althouse. I admit to not reading them in detail simply because the subject is quite distressing to me.

I have several conventional couple friends who have adopted from Russia and/or China. This is because the conventional adoption of an American child is so freaking hard and fraught with the chance of "give back."

So knowing the roadblocks and fears that a conventional couple faces, why the Fred are we trying to grease the skids for others to adopt? As a practical matter, this seems a case of massaging our emotional need to be on the "right" side of history ( barf!) than to actually help those who ought to be at the front of the line.

Just my opinion.

Lyssa said...

So how did we reach the point that gay adoptions were ok, with so little fanfare? Why weren't you paying attention then? If this is the issue, fight that battle. Even if SSM went away completely, that wouldn't change a thing about the parenting. Why let yourself be so easily distracted from that issue?

Saint Croix said...

The argument the govt lawyers had to make was that biological parents will be less likely to marry if gay people can marry, because marriage will be devalued.

There are lots of arguments you could make. For instance, gay marriage is an attempt to normalize homosexuality. Then, as a part of sex education, you teach young children that homosexuality is normal.

I believe this is what the Supreme Court tried to do with Brown, actually. The idea was to focus on children, take them from their parents and indoctrinate them that racism was bad.

And I believe it was this aspect--the focus on children--that created far more hostility than anything else. All the hostility over busing, for instance, was because the Supreme Court decided to fight the war with children.

Consider all the anger over Brown and Roe. I think this anger is so fierce because people get worked up about children.

I don't think anybody is angry about gay marriage now. But as we normalize homosexuality, there will be issues over sex education, and the teaching of young children. I think people are highly sensitive on the issue of their children being coerced or indoctrinated by the state.

Revenant said...

If by credible you mean gobsmackingly obvious then yes, yes it is.

This is the kind of thing that seems "obvious" to people who view homosexuals with revulsion. "Of *course* people will stay away once homosexuals are doing it", they think to themselves. "Who wants to be around homosexuals".

Of course, to the growing majority of Americans who aren't revolted by homosexuals, that attitude makes the exact opposite of sense. Letting gay people marry doesn't make marriage less appealing; barring them from marriage does. It reduces marriage to nothing but another obsolete social institution, dedicated solely to pumping out babies and of no interest to people who marry for love.

Revenant said...

Is it really your position that only fetuses can suffer death by dismemberment?

Oh, is that what makes it wrong to dismember people? That we suffer?

Who knew that the difference between right and wrong was whether the guy with the scalpel used anesthesia. :)

CWJ said...

Shorter me.

When I hear about a surplus of American babies for conventional male/female intact couples to adopt, I'll begin caring about same sex adoption issues.

And spare me any comment about Afro-American babies as long as there as those who oppose "white" couples adopting them.

hombre said...

Revenant wrote: "This is the kind of thing that seems 'obvious' to people who view homosexuals with revulsion."

So you claim that opposition to gay marriage and the feeling that traditional marriage is devalued by gay marriage is a product of "viewing homosexuals with revulsion?"

I revise my earlier comment. You are not merely illogical. You are ignorant, blindingly, stultifyingly ignorant.

Ignorance is Bliss said...

Revenant said...

This is the kind of thing that seems "obvious" to people who view homosexuals with revulsion.

I wouldn't know what is obvious to such people, as I don't, to my knowledge, associate with anyone who feels that way about homosexuals.

"Of *course* people will stay away once homosexuals are doing it", they think to themselves. "Who wants to be around homosexuals".

Did you consult a psychic to learn what those people are thinking?

Of course, to the growing majority of Americans who aren't revolted by homosexuals, that attitude makes the exact opposite of sense. Letting gay people marry doesn't make marriage less appealing; barring them from marriage does.

So keeping it the same is what changes the appeal? Interesting theory.

It reduces marriage to nothing but another obsolete social institution, dedicated solely to pumping out babies and of no interest to people who marry for love.

You are one sad, sick little man.

Steve said...

What's wrong with requiring diversity in marriage? Is that violating equal protection? So, since only a marriage with different sexes is diverse, the laws requiring marriage have divergent sexes must be ok.

Kalli Davis said...

Just a usage comment regarding the phrase: "Gay Marriage Ban". There is no law in the US that explicitly bans homosexual marriage. Saying so falsely supports the legal theory that homosexuals are illegally targeted. There is no such targeting other than in news stories like this one.

If you absolutely insist on using the term "Ban" then be precise and inclusive; Defining Marriage between a adult man and woman bans: Polygamous marriage, child marriage, incestuous marriage, human–animal marriage, human-object marriage and homosexual marriages

Revenant said...

So you claim that opposition to gay marriage and the feeling that traditional marriage is devalued by gay marriage is a product of "viewing homosexuals with revulsion?"

Congrats, you've passed your reading comprehension test.

Revenant said...

"Of *course* people will stay away once homosexuals are doing it", they think to themselves. "Who wants to be around homosexuals".

Did you consult a psychic to learn what those people are thinking?

One of the positive side effects of you lot boring us all to death with your diatribes against gay marriage is that we don't actually have to use our psychic powers to figure out what your attitudes are.

Revenant said...

When I hear about a surplus of American babies for conventional male/female intact couples to adopt, I'll begin caring about same sex adoption issues.

Similarly, when I hear that social conservatives are helping gay couples adopt unwanted children, I'll believe they are really concerned about abortion.

Static Ping said...

It reduces marriage to nothing but another obsolete social institution, dedicated solely to pumping out babies and of no interest to people who marry for love.

Uh, why do we need a government institution for people who love each other? Seems kinda creepy actually. If there was no pre-existing institution who in their right mind would want the government to give official approval of love? I mean besides totalitarian dictators and people who like to put town council proclamations in their honor on the wall of their den? Who would give a crap that people who only married for love would not get married? Wedding planners? Party crashers who like hitting on drunk bride's maids? People who don't want to buy wedding gifts?

If that is your definition of marriage, then the institution is already dead. Stop caring.

dcm said...

The question asked was, how are you old ass white men harmed by this? Answer the fucking question. You allegedly slightly libertarian asses.

CWJ said...

Revenant,

Your comment is similar in form but that is all. I used to think that you were a thinking commenter. But now I believe you are no more than a contrarian like "Alex."

Revenant said...

Uh, why do we need a government institution for people who love each other?

We don't need a government institution for marriage in any form. But since we have one, and it is absolutely not restricted to marriages that serve some sort of societal benefit, we have to ask what rational reason there is for excluding people from it.


dcm said...

Guess that you have no answer to that question.

Static Ping said...

Similarly, when I hear that social conservatives are helping gay couples adopt unwanted children, I'll believe they are really concerned about abortion.

That's a... very weird argument. Please reconsider.

Also consider that at the moment there is not a surplus of easily adoptable children. Pretty much any young child that can be adopted and does not have serious medical/behavioral issues gets snapped up quickly. (There's a reason why prospective adopters pay through the nose for the opportunity.) For more information, see Megan McArdle's analysis here:

http://www.thedailybeast.com/articles/2013/03/29/can-gay-marriage-solve-our-adoption-problem.html

MaxedOutMama said...

Certain, not probable.

Revenant said...

"Similarly, when I hear that social conservatives are helping gay couples adopt unwanted children, I'll believe they are really concerned about abortion."

That's a... very weird argument. Please reconsider.

I was just poking fun at the mentality that we should only help people to do the right thing when there is an unmet need for people doing the right thing.

Saint Croix said...

how are you old ass white men harmed by this?

geez, racist and sexist and ageist!

You know Richard Posner is an old ass white man, right?

And Roe v. Wade was written by nine old ass white men?

And Karl Marx was an old ass white man?

Are you sure that if we limited the vote on this issue to black women under 30, that gay marriage would win?

And what about African women under 30? They have the moral authority to guide us, right?

Or do you feel superior to them? Speak up! And be sure to answer in racial terms, because that's so helpful.

Anonymous said...

Belligerent Drunk Stand-up Comic says:

So, I was reading an article about gay marriage; oh I know, I know, you're expecting me to make a gay joke, aren't you? You pretend you don't want to hear it, no, no, you are above that -- you are Civilized -- but the problem is: now you REALLY want to hear the joke...

(sips drink)

Sure, you won't SAY that you want it, but I can tell: you want a joke, and not just a two-hot-lesbians-and-a-banana joke, you want a big sticky GAY gay joke, you want something that has man-on-man anal sex and cock-sucking and quart jars of semen, you want THAT joke. Stop groaning: you're not fooling anyone...
.
(sips drink)

Here's the thing: I'm not going to tell you that joke. Nope: not doing it.

(sips drink)

Ahhhhh. And now you're irritated at me. Mean, mean me, I won't give you the joke, I won't give you man-on-man anal sex and cock-sucking and quart jars of semen and you're MAD at me, you have your arms crossed and you're mad, you're sulking: you WANT that joke, you paid to get in here, you paid for a drink, you DESERVE to hear that joke. (sips drink) You're hooked, friend: even a joke involving a man having sex with a three-legged horse -- a three-legged horse with a big hard horse-cock, mind you -- well, even that won't do now, right...?

(sips drink)

Now, the problem is that no matter what I say you won't even hear it: you're oblivious: you're going over and over it in your head, what could the joke be? Could it REALLY be that bad? Really? Quart jars? C'mon, just sayyyyy itttttt...

(sips drink)

And why do you want to hear the gay joke when you outspokenly despise gay jokes? (sips drink) Because you want to be the first to tell it to all of your FRIENDS...

(sips drink)

You can tell all your friends the joke the next day -- hush hush -- and then you can laugh, safe in knowing that there is a mutual understanding that you all are not LAUGHING-laughing: No, you are in full agreement that the joke is evil, disgusting, you all are laughing at the idea that someone could even laugh at that joke, the redneck morons. I know; I get it...

(sips drink)

So, again: I'm not going to tell you that joke. I've got some rape jokes, some pedophilia jokes, some stripper pedophilia jokes, we'll do just fine tonight. (sips drink) But I'm not telling that joke. Trust me: you won't actually thank me in the morning... but you should...

Thank you, you've been a peach...

Static Ping said...

We don't need a government institution for marriage in any form. But since we have one, and it is absolutely not restricted to marriages that serve some sort of societal benefit, we have to ask what rational reason there is for excluding people from it.

So we have an obsolete institution that it is vital to admit more people to?

CWJ said...

Revenant@9:25,

Yeah, sure you were.

Static Ping said...

betamax3000: I suspect the build up to the joke you did not tell was even better than the joke. We are not worthy.

Paul said...

A child develops best with two parents.

Specifically a FATHER and a Mother.

Not two mothers, not two fathers, but a father and a mother. That balances out the two psychological makeups (yes men and women do have different psychological makeups.)

All a homosexual set of parents do is confuse the kid.

And if anyone thinks homosexuality is genetic then keep in mind by definition homosexuals tend to breed themselves out of existence by not breeding.

And this judge is doing is Politically Correct work.

Revenant said...

So we have an obsolete institution that it is vital to admit more people to?

I give that one a C- for effort.

Revenant said...

A child develops best with two parents. Specifically a FATHER and a Mother.

Children develop better when raised by atheists instead of Christians. Should we amend the laws accordingly?

rhhardin said...

The rational basis idea lets a judge do anything he wants.

rhhardin said...

Quart jars is an elephant joke.

n.n said...

Interesting. The argument by advocates and judges is that selective exclusion is justified by the mere fact that interested parties have not raised the question of equal protection.

The normalization of homosexual behavior is a society-wide experiment. However, it cannot produce a worse outcome than the social and biological experiments played with men and women over the last half century. Still, I question the motives to obscure their selective efforts. Surely they know that they are creating moral hazards. I guess pro-choice permanently altered their perception.

traditionalguy said...

So years of approval of Gay adoptions is a fait accomplis.

Those unaborted children in need of loving parents were the sine qua non to gay acceptance and cultural victory.

Sounds good to me. I like it whenever newborn children are not viewed as pollutant discards...same for the elder folks.

Lewis Wetzel said...

What state interest is served by banning incestuous marriages?

Lewis Wetzel said...

"Children develop better when raised by atheists instead of Christians."

Not true. You are as bad at sociology as you are at every other task that requires critical thinking, Revenant.

Revenant said...

Not true. You are as bad at sociology as you are at [blah bliddy blah]

No, it is entirely true. Christian children are more likely to go to prison, to develop substance abuse problems, and to drop out of school.

mtrobertsattorney said...

The argument that the question of same sex marriage should turn on whether a child adopted by a same sex couple is hurt if the couple cannot marry opens up a question liberals may not want opened.

In the long run, is a child adopted by married male and female better off than a child adopted by two married males or two married females? Unbiased, longitudinal studies are necessary to answer this question.

In the mean time, should adoption laws be changed to give a preference to an opposite sex couple?

Bob Ellison said...

Was Posner just being a lawprof poser?

Jim S. said...

If we had laws based on morality, it would be illegal to indoctrinate children into a religion before they're old enough to make informed decisions.

... it is possible you meant "laws based on *your* morality", though. :)

8/26/14, 4:59 PM


My morality also claims that I should not gratuitously harm others. The law is enshrined to enforce that moral law. If you say that I don't have the right to gratuitously harm others, I would agree: that is what my morality says. If you say the law is not about enforcing moral claims but civil claims, I would say that you can only have civil claims once it is granted that all people are created equal and so have the right to not suffer gratuitous harm, and the obligation to refrain from imposing gratuitous harm on others. And these are moral claims. Otherwise the only motive for the state to protect its denizens (who don't ex hypothesi have rights and obligations) would be to ensure the survival of the state -- and once that's the standard, you're already in hell.

You can't avoid morality by calling it someone else's morality and saying you don't share it. Even the claim that the morality of others shouldn't be imposed on you is a moral claim.

(Incidentally, I received these moral claims via indoctrination before I was old enough to make informed decisions.)

mtrobertsattorney said...

Rev may be right about Christian children and prison. But he omitted one category--serial killers. Studies have shown that the overwhelming majority of serial killers come from a non-religious or atheistic background.

Michael K said...

Once we get gay marriage firmly established in the culture what could be the next step for civilization ?

Kalli Davis said...

"Why do the states want to hurt those kids?”
The answer is a simple rejection of the premise. These children are not harmed any more than children of parents who choose to not claim a state tax credit becayse they did not buy energy efficient air conditioners.
These children are are no more harmed by incentivizing hetero sexual marriages than the children of single mothers, children of common law marriages or children whose parents choose not to wed are harmed.
If the state chooses to incentivize a behavior with tax credits, discounts or deductions, one cannot claim harm if they choose not to behave the way the state is suggesting.

hombre said...

"Children develop better when raised by atheists instead of Christians. Should we amend the laws accordingly?"

Like I said, blindingly, stultifyingly ignorant - and illogical.

Kalli Davis said...

The question "Why do the states want to hurt those kids?” id demagoguery becasue the kids do not have standing. Only the parents are claiming harm. Sheesh.

Paul said...

Revenant,

Where do you get the idea atheists have less alcohol abuse, less likely to go to prison, drop out of school, etc....

I think you are talking through your hat (and other less quaint idioms) about what paragons atheist are.

Darleen said...

This is the kind of thing that seems "obvious" to people who view homosexuals with revulsion

Oh yes, golly gee, the only reason people oppose the radical redefinition of marriage is because of the "ick" factor.

My, what a big bowl of straw you're chewing on.

The sexes are different and that difference stands in the way of a Left ideology based people having their most trusted relationship be with The State (eg life of Julia). It's hard to break heterosexuals of creating families that practically breed independence and self-responsibility, but pathologizing heterosexuality, masculinity & femininity and demanding acceptance of the biological fantasy that the sexes are fungible is as good a strategy as the Left's march through academia and rewriting history to wipe out the concept of America as 'exceptional'.

Darleen said...

children are are no more harmed by incentivizing hetero sexual marriages than the children of single mothers

someone hasn't checked out the demographic of the prison population

hint: the vast majority were not raised in functional, intact families with mom & dad.

James Pawlak said...

Consider the progress of the Asian, Jewish & other peoples who maintain "traditional" families to the USA's Black families with the usual one parent avoidance of that civilization maintaining structure.

Has public view changed OR is this a "Dewey Beats Truman" polling error?

Kalli Davis said...
This comment has been removed by the author.
Kalli Davis said...
This comment has been removed by the author.
Kalli Davis said...

Darleen - I think you missed my point. I am referring to the Judges comment. They inferred the state is harming the children of homosexuals simply becasue the state defines marriage as between a man and a woman.

n.n said...

Paul:

Revenant is parodying the assertions made by some people, specifically claims to fitness of couples as parents or guardians to provide an optimal environment for raising children. He may be right about the fitness of an unspecified subset of couples, but that observation does not translate to conclude the fitness of other arrangements, including couplets.

He has claimed as evidence the psychological pathology sponsored by progressive morality (i.e. "secular" religion); the unequal "equalization" of women, especially the pro-choice doctrine; devaluation of capital and labor; the "civil rights" special interests; replacement and displacement by illegal aliens; cultural corruption; etc. Well, at least the symptoms, which serves to obfuscate the causes.

The secular cult (i.e. faith-based materialism) has sabotaged human development. Unfortunately, religion (i.e. moral philosophy) has only managed to moderate progressive corruption. Too many people are compromised by hopes and dreams of instant gratification. Too many people are willing to "go along to get along" in order to reap the benefits of democratic leverage. People revel in dissociation of risk. Their "benefactors" have exploited this "opiate" to great effect.

Anonymous said...

"Blogger hombre said...
Revenant wrote: "The answer to that question isn't useful to the discussion, since I am not a fetus."

Your comments are particularly illogical today. Or perhaps I just haven't been paying attention before"


I would say Revenant is "Crack"-ing.

Lewis Wetzel said...

"Christian children are more likely to go to prison, to develop substance abuse problems, and to drop out of school."
*sigh* there's that lack of critical thought again.
You need to explain what you mean you mean by "raised by Christians" and "raised by atheists" as well as "better". You also need to account for all the variables, like marital status of the parents, household income, etc.
Otherwise you'll find yourself agreeing to things like "black kids are better off being raised by whites", or "atheists do not understand the process of critical thinking".

Carl said...

What is the legitimate government interest in forbidding me to marry two women, or forty, or a plastic love doll?

Renee said...

The anaolgy shouldn't be adoption, it should be sperm/egg donation. Goodridge in Massachusetts was based on sperm donor. Husbands get the benefit of the assumption of paternity, despite all parties (except) the child knows he isn't the father. How is that in the child's best interest.

Adoption always has a feel good vibe to the public, honestly it's a form of human trafficking. If children can not be raised by mom or dad, then they should raised by family. I do see gay parenting, but they are already an aunt or uncle, they may be gay but marital status is irrelevant. An gay uncle (single) is more invested in the well being of a child, then two heterosexual strangers.

Renee said...

Sorry to sound harsh,. There are children who have no kinship resources, but the family should fit the child's needs and not the other way around.

I just get so creeped out about how we toss birth mothers (and fathers) aside. It becomes about WANTING a baby, and doing anything to convince a young parent that their child will be better off. Shivers...

Renee said...

If atheists are better at raising children, then why on average they don't have as !many. Many of my atheists I know are childless (by choice) even if they are married or in long term relationships permanently cohabiting.

Renee said...

5.4 million children are being raised by 2.7 million grandparents in our country.


http://www.census.gov/newsroom/releases/archives/facts_for_features_special_editions/cb12-ff17.html


Why can't a grandparent and an aunt adopt their own grandchild/nephew as a 'couple', why does the family court only allow one to be the legal parent?

gerry said...

One may want to ask "Who is being harmed?"

gerry said...

From the study in my 7:10 AM post:

"But the NFSS also clearly reveals that children appear most apt to succeed well as adults—on multiple counts and
across a variety of domains—when they spend their entire childhood with their married mother and father, and especially
when the parents remain married to the present day. Insofar as the share of intact, biological mother/father families continues
to shrink in the United States, as it has, this portends growing challenges within families, but also heightened dependence
on public health organizations, federal and state public assistance, psychotherapeutic resources, substance use
programs, and the criminal justice system."

Yup. Destruction of the nuclear family is right on schedule.

sinz52 said...

"Uh, why do we need a government institution for people who love each other?"

We didn't used to.

The government marriage certificate is a relatively modern invention.

Back in the Middle Ages in Europe,prior to the 16th century, marriage was what we today would call "common-law marriage." There was no state approval and often not even any religious solemnization.

A typical couple would invite their families and friends to witness the wedding, they would say their vows to each other in front of their friends and families, and that was it.

In fact, even if there wasn't anybody to witness their wedding, the community and even the church usually took their word for it.

The Roman Empire treated marriage similarly. There were legal requirements on who could get married, but I don't believe there was government solemnization.

Back then, marriage wasn't the cosmic earth-shaking big deal we've made it into during the last few centuries.

Lyssa said...

Renee said: If children can not be raised by mom or dad, then they should raised by family

I know that you believe that strongly, but my experiences, having had the misfortune of some contacts with the juvenile court system (as an attorney), I do not think that that is true at all. Realistically, some people have problems. Some of them have problems such that they are completely unable to be parents; some have problems such that they are merely poorly suited, but, for a multitude of reasons, those people tend to be in families together. The parents that can't raise children are more likely than not to have siblings/parents/aunts/uncles/etcwho are almost as poorly suited, due to having been part of the same family (same genetics, same poverty, same upbringing, same substances abuses, same mental illnesses, etc.). It's sad, and it *shouldn't* be that way, but it is.

People who adopt children are invested in them. Often more so than biological parents, as they worked so hard to get them. They are very often more suited to raise children than blood relations that have serious problems.

Andy Krause said...

I'm fine with people marrying whoever and how many other people they want. I hold the line at marrying oneself. I would like a separate word for "traditional" or old school marriages. I do believe that traditional marriages are a cornerstone of an enduring society. The future belongs to those that show up. This is more than a legal
"interest" it is part of the survival manual given to us by past generations.

Unknown said...

Problem, pointing out the harm to individuals and society is somehow "mean."

Anonymous said...

Is it time to change our national motto away from "In God we trust?"

Maybe it should be "Trust us and no one will get hurt."

Lucien said...

If only judges would ask the same question in every case involving drug use or sales.

Also: when it comes to legislating morality, is the contention that marriage is immoral when the participants are of the same gender, or that homosexual love is immoral?

Paul said...

Thanks n.n,

I guess Revenant is the atheist version of crack here.

CStanley said...

Why do the states want to hurt those kids? I lost track of the number of times the government lawyers were stymied by that question.

It's almost like the government lawyers can't even say when exactly they stopped beating their spouses!

chillblaine said...

"Who is better off, while they are worse off?"

The stigma of being an offspring of homosexual arrangements can only be reduced by de-legitimizing the traditional arrangement.

Who's my daddy? Doesn't matter! Don't need one!

Renee said...

@ Lyssa

Of course every family member should be checked out, but a family find must be done before opening up to non-family for adoption.

Seriously, I'm embarrassed as a Catholic how 'brainwashed' children of private adoption are. Poverty is not a reason to adopt. Its like throw in away the mom. The 'baby scoop' was shameful, and teen pregnancy is shamed more then ever.

Lewis Wetzel said...

Sinz52 wrote
"We didn't used to."
I don't think that is quite right, Sinz52. Civil marriage is a fairly recent development. In the Olden Days marriage was solemnized by the parish of the man and woman, as were most other life events (birth, christening, confirmation, marriage, child bearing, death). The Medieval Church kept a close account of all the people in the parish, and what stage of life they were in.
I think the idea of state-sanctioned marriage (as apposed to church sanctioned marriage) began with Napolean, but I am not certain of this.

Lee Katt said...

The harm is in finishing up the destruction of the logic of marriage.

Your grand-daughters will be property. And they will spit at your memory.

n.n said...

Paul:

Not exactly, but he does have a clear bias against other faiths, bordering on prejudice, and there is that pro-choice thing, which doesn't seem to appeal to Crack.