Friday, March 17, 2006

Ann Althouse and Gay Marriage

Via Sykes Writes, the fact that Madison Law School blogger Ann Althouse has tried to defend gay marriage, but rejects polygamous marriage.
Charles Krauthammer says legalizing gay marriage paves the way to legalizing polygamy:

In an essay 10 years ago, I pointed out that it is utterly logical for polygamy rights to follow gay rights. After all, if traditional marriage is defined as the union of (1) two people of (2) opposite gender, and if, as gay marriage advocates insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one’s autonomous choices in love, then the first requirement — the number restriction (two and only two) — is a similarly arbitrary, discriminatory and indefensible denial of individual choice...

To simplify the logic, take out the complicating factor of gender mixing. Posit a union of, say, three gay women all deeply devoted to each other. On what grounds would gay activists dismiss their union as mere activity rather than authentic love and self-expression? On what grounds do they insist upon the traditional, arbitrary and exclusionary number of two?

If Krauthammer has been writing about this subject for 10 years, it boggles the mind that the obvious distinction has not yet dawned on him.

Legal marriage isn’t just about love, it’s an economic arrangement. Having the state authorize your union is not the same thing as having your friends and neighbors approve of you and your religious leaders bless you. It affects taxes and employee benefits — huge amounts of money. A gay person with a pension and a health insurance plan is incapable of extending those benefits to his (or her) partner. He (or she) can’t file a joint tax return. That’s not fair. A polygamous marriage, however, puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple. That doesn’t appeal to our sense of fairness.
It doesn’t seem to have occurred to Althouse that giving economic benefits to couples that are likely to produce children is good public policy.

The tax exemption for children (which happens to be available to homosexuals who have custody of children) is just one example.

One might object that we give the benefits of marriage to couples that are not (by choice or inability) going to have children. Yet Althouse inadvertently provides the definitive refutation of that argument:
The law doesn’t assess how much two people love each other. Two persons of opposite sexes can marry for all sorts of reasons. If there were a device that could look into their souls and measure their love, we wouldn’t accept the outrageous invasion of privacy it would take for the government to use it.
Yet it would also be an outrageous invasion of privacy for government to demand of heterosexual couples that, to have the benefits of marriage, they have to prove their ability to procreate, and also swear to their intention to procreate.

Given that fact, simply assuming that heterosexual marriage involves procreation is more than justified.

Althouse thinks it’s unfair for a homosexual to be denied benefits that would be available to a heterosexual spouse, but draws the line at having more than one heterosexual partner get benefits.

But it’s absolutely normal for health insurance to cover however many children one might happen to have. A yuppie couple that doesn’t want children gets no benefit while a devout Catholic couple that has a dozen children gets a very large benefit.

And of course, nothing prevents a man having a wife and also a mistress or two or three. But under the current marital regime none of the extra women have any legally defined protections nor claim to benefits.

How About Incest?

Consider the following, from Jeff Jacoby:

Allen and Pat were lovers, but a Wisconsin statute enacted in 1849 made their sexual relationship a felony. The law was sometimes used to nail predators who had molested children, but using it to prosecute consenting adults — Allen was 45; Pat, 30 — was virtually unheard of. That didn’t deter Milwaukee County Judge David Hansher. Nor did the fact that the couple didn’t understand why their relationship should be a crime. Allen and Pat didn’t “have to be bright,” the judge growled, to know that having sex with each other was wrong.

He threw the book at them: eight years for Allen, five for Pat, served in separate maximum-security prisons, 25 miles apart.

If this had happened to a gay couple, the case would have become a cause celebre. Hard time as punishment for a private, consensual, adult relationship? Activists would have been outraged. Editorial pages would have thundered.

But Allen and Patricia Muth are not gay. They were convicted of incest. Although they didn’t meet until Patricia was 18 — she had been raised from infancy in foster care — they were brother and sister, children of the same biological parents. They were also strongly attracted to each other, emotionally and physically. And so, disregarding the taboo against incest, they became a couple and had four children.

When Wisconsin officials learned of the Muths’ relationship, they moved to strip them of their parental rights. The state’s position, upheld in court, was that their “fundamentally disordered” lifestyle made them unfit for parenthood by definition. Allen and Patricia’s children were taken from them. Then they were prosecuted for incest and sent to prison.

So incest is “fundamentally disordered” but homosexuality isn’t?

By what criteria?

Having a large and vocal lobby on most college campuses isn’t a suitable criterion.

It’s probably true that Nature prefers exogamy, for good genetic reasons.

But then Nature prefers heterosexuality, since Nature wants procreation.

And invoking genetics against incest smacks of eugenics, which after all is defined as “a science that deals with the improvement (as by control of human mating) of hereditary qualities of a race or breed.”

Certainly, Althouse’s argument that one should be allowed benefits for one partner and no more has no force against the Muth’s claim.


Ann Althouse is far from being your standard leftie academic yahoo, but on this issue she seems to be engaged in the politically correct project of legitimating deviant sexual patterns that happen to be politically correct, while failing to apply her logic in a consistent way.


Blogger Morg GB said...

An argument against gay marriage can come from another two sources,

The first is the libertarian argument, why should singles pay more or less than married couples, why should married couples have any privileges at all beyond a few rights and responsibilities?

If we take away the spousal refusal at court privilege, tax, social security,pension, and health insurance privileges, as well as immigration, the fight for marriage will not be as grassroots.

In addition many children these days are born to unmarried couples, who historically have had discrimination not only against them but their children.

Would recently wedded gays support the criminalization of premartial sex, since gays can legally marry? Probably not but its an argument against it.

Marriage of course is not about procreation. Marriage historically was not a government affair, it was a church affair.

The other argument comes against gay marriage comes to defining marriage itself, one does not have to be morally against giving gays and lesbians the same equal protection and rights to be protected against discrimination in employment,housing,etc to not support it.

For those who support the tradition marriage related to procreation, they could try another argument that isn't a moral one, the original purpose and history of marriage was to define the laws and responsibilities in a "sex-specific matter", thus women's property rights, maintenance for the spouse, was gender specific in a historical sense. In fact men had no rights to their wives social security benefits until a few decades ago!

Take social security benefits, it was expected that wives would not work much outside the home, and have fewer earnings, to compensate for this wives would have social security benefits, to add to this protection, if the wife was married to the spouse for at-least 10 years and divorced she would still get benefits.

Of course marriage has become not only less gender specific in terms of rights and responsibilities but less of the "only way forward" as many folks have children out of legal marriage, in fact almost half of children are born in such conditions.

Take for instance custody, given then historical gender specific roles in legal marriage as above,who gets custody, the birth mother, surrogate, or non-birth or surrogate mother (assuming the birth or surrogate is not seriously unable to take care of such child due to drug or alcoholic abuse), should the standard procedure apply?

Let's use another standard, if you are for gay and for marriage, you can be against per-martial sex, making it a crime, after all its perfectly okay to discriminate against unmarried couples right? You could even say that having children out of wedlock should be penalized whether criminal or loss of tax breaks,etc (ie, no head of household status). Since gays can legally marry, there would be no qualms about this, except for one thing, children, since gays and lesbians can't have children of their own, they need to adopt or have a third party via natural or artificial means,

1:56 AM  
Blogger Morg GB said...

So thereby we can establish that you cannot make gay marriage and non-gay marriage equal with marriage laws in the historical sense. If gay marriage was legalized in the 1940,50s, and 60s the problem would still apply because laws against sex outside wedlock were common.

We've already established that marriage per say is not about procreation since folks marry in their old age, but could gays support a ban on pre-martial sex and sex outside marriage, if so they could not have children without sex before marriage atleast not until a few decades ago and if you can afford in vitro fertilization.

Of course marriage historically was not so much about love, and the only way to legally even cohabitation or have sex was to legally get married.

So we've established that, now should a third party have custody rights to a child, two gays or lesbians plus the surrogate mother or father or natural father or mother outside the "legal marriage", it wouldn't be fair right, because outside of adoption their would be no other way to have children.

Thus by supporting gay marriage, many grassroots organizations could seem hypocritical, not because the cause for equal rights it not justified, but for the special treatment of marriage, and the slippery slope of it. In other words "a gay Tony perkins" could speak out against pre-martial sex,sex outside wedlock, and cohabitation, since gays can be legally married there would be no reason to engage in that right?

Take Lawrence v. Texas, it was hailed as a victory for gay rights, but if gay marriage were legal, we could have gays support their prosecution because "morally its pre-martial sex".

You could negate some of this by drawing up your own contracts with partners but things such as spousal refusal to testify against your spouse, and certain pension,tax,ss, and other benefits are not given as well as immigration.

You also go back to the historical gender specific of marriage, saying that marriage to more than one person would convey more benefits, again true but not everybody could marry more than one person, and unlike decades ago, many women are now breadwinners as well as their spouse (social security has not adjusted their policy only the gender specific law that only awarded wives their deceased husband's benefits")

I don't expect marriage privileges to decline overnight, but fairness and the fact that most children are going to be born outside of marriage, demand it. In addition the phrase "discrimination by martial status" would be giving a new life.
No need to fight for gay marriage if discrimination against martial status need not apply.
Marriage should be just limited to few privileges and rights, and provide an easy way to get a simple contract between another person, of course should advanced contracts just be limited to those who can afford attorneys? That's another question.

2:00 AM  

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