A secular case against SSM

[_wenglund]

I don't think I quite follow your question, Wade. The government's responsibility is to govern. Cost is sort of beside the point, isn't it? It's is extremely costly to put prisoners into prison... So why not just execute all of them? Or, consider this: the appeals process, and prisons, and trials, and all of that are all very time-consuming and expensive... So what is the rationale for keeping things this way?

If costs are not a factor of consideration, then why not build individual palacial estates for each of the prisoners, and pay them millions of dollars not to leave the estates?

The answer is obvious. Cost are an important factor of consideration. While the governments responsibility is to govern, democracies like ours are designed to help assure that the governments govern responsibly and rationally--which includes making sure the benefits of the laws they legislate exceed the costs (make sure that the laws meet a rational governmental interest).

Thanks, -Wade Englund-

[_EAllusion]

I am affraid this betrays a fundamental misunderstanding as to why laws in general exist, and why marriage laws in particular have been legislated. When I am in a hurry, I may want the privilege to not have to stop at any red lights or stop signs. Is my wanting to drive this way reason alone for the governemnt to make laws permitting me to do so?

Contractual mediation is one of the, if not thee most, fundamental functions of state. It's hard to maintain a true anarchic state for very long because governments with courts and lawproviders organically develop among people to deal disputes between people over what they agreed upon what they want to do.

People already have the right to marry in the sense that people have the right to get together and form contractual agreements about their relationships with one another. The natural state of affairs - that is the morally proper state of affairs - is people having this right. The government only can take it away provided it has a just reason to do so. It isn't the governments to hand out. The government has an interest in legal recognition of these private relationships in order to mediate the agreements people make.

What the government does in case of civil marriage is provide an arbitrating body for people to form agreements with one another and resolve them should there be a dispute over living up to them. The government takes on this costly responsibly for the same reasons it takes on other forms of contractual mediation. It provides an apparatus to enforce agreements and provide a peaceful resolution of conflicts to best provide for the welfare of the people.

[_JohnStuartMill]

I don't think I quite follow your question, Wade. The government's responsibility is to govern. Cost is sort of beside the point, isn't it? It's is extremely costly to put prisoners into prison... So why not just execute all of them? Or, consider this: the appeals process, and prisons, and trials, and all of that are all very time-consuming and expensive... So what is the rationale for keeping things this way?

If costs are not a factor of consideration, then why not build individual palacial estates for each of the prisoners, and pay them millions of dollars not to leave the estates?

The answer is obvious. Cost are an important factor of consideration. While the governments responsibility is to govern, democracies like ours are designed to help assure that the governments govern responsibly and rationally--which includes making sure the benefits of the laws they legislate exceed the costs (make sure that the laws meet a rational governmental interest).

Thanks, -Wade Englund-

Hey Wade: hypothetically speaking, if I could find a study saying that legalizing gay marriage would increase state revenues, would you be in favor of it? If not, then your argument here is insincere.

[_EAllusion]

Hey Wade: hypothetically speaking, if I could find a study saying that legalizing gay marriage would increase state revenues, would you be in favor of it? If not, then your argument here is insincere.

That's not quite where he's going with this. He's implying that the reason Gad gave isn't good enough to justify the cost for civil marriages in general. So there must be some other reason that justifies this tremendous, burdensome cost of having divorce courts. What's that other reason? Wade isn't saying. He's the Plato of gay, apparently. Which is odd, since I thought Plato was the Plato of gay.

[_Gadianton]

Given the sizable cost of formalizing marriage and adjudicating contractual disputes, what rationale did the governments have for taking on that cost?

The same rationale as for other contracts such as in land ownership and business deals -- enforcing the contract. And the government at various levels involves itself in the same way for gay couples that live together already. The money is already being spent.

[_wenglund]

The most popular secular anti-gay marriage argument you see right now among the anti-gay leaders is to argue that marriage as an institution is and ought to be state sanctioned to provide for procreation and what they argue is an ideal environment for child-rearing, as it provides the best case they got running in the courts where they need to provide some rational basis for discrimination.

Here is how Judge Taylor of the Federal District Court of California summarized the argument:

"...the DOMA has a rational basis and serves a justifiable purpose by encouraging marriage and procreation. 'Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest,'...'By excluding same-sex couples from the federal rights and responsibilities of marriage, and by providing those rights and responsibilities only to people in opposite-sex marriages, the government is communicating to citizens that opposite-sex relationships have special significance' ... 'Encouraging the optimal union for rearing children by both biological parents is also a legitimate purpose of government. The argument is not legally helpful that children raised by same-sex couples may also enjoy benefits, possibly different, but equal to those experienced by children raised by opposite-sex couples. It is for Congress, not the Court, to weigh the evidence.'” (see: HERE).

The reason this argument is so popular and has substantial sway in the courts, is because it correctly understands the fundimental purpose for why laws (marital and family laws in particular) are enacted within democracies. This argument actually gets the notions of legislative and judicial review and that reasonable basis and state interest ought to guide each.

Does anyone here have a rational counter to this reasoned argument.

Thanks, -Wade Englund-.

[Guest]

Hey Wade: hypothetically speaking, if I could find a study saying that legalizing gay marriage would increase state revenues, would you be in favor of it? If not, then your argument here is insincere.

That's not quite where he's going with this. He's implying that the reason Gad gave isn't good enough to justify the cost for civil marriages in general. So there must be some other reason that justifies this tremendous, burdensome cost of having divorce courts.

I think the good outcome I alluded to (increased state revenues) is broad enough to appeal to someone who took Wade's position sincerely. But we both know that Wade doesn't actually give a flying “F” about good government concerns here, and is merely latching onto whatever secular argument could conceivably justify his anti-gay pet issue. I'm trying to get him to admit that.

What's that other reason? Wade isn't saying. He's the Plato of gay, apparently. Which is odd, since I thought Plato was the Plato of gay.

[_JohnStuartMill]

The most popular secular anti-gay marriage argument you see right now among the anti-gay leaders is to argue that marriage as an institution is and ought to be state sanctioned to provide for procreation and what they argue is an ideal environment for child-rearing, as it provides the best case they got running in the courts where they need to provide some rational basis for discrimination.

Here is how Judge Taylor of the Federal District Court of California summarized the argument:

"...the DOMA has a rational basis and serves a justifiable purpose by encouraging marriage

This is simply a rank tautology.

and procreation. 'Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest,'...' By excluding same-sex couples from the federal rights and responsibilities of marriage, and by providing those rights and responsibilities only to people in opposite-sex marriages, the government is communicating to citizens that opposite-sex relationships have special significance' ... 'Encouraging the optimal union for rearing children by both biological parents is also a legitimate purpose of government. The argument is not legally helpful that children raised by same-sex couples may also enjoy benefits, possibly different, but equal to those experienced by children raised by opposite-sex couples. It is for Congress, not the Court, to weigh the evidence.'” (see: HERE).

The problems with this are manifold. 1) "Procreation" is obviously not what the government is actually supporting. Any 15-year-old kid can bonk another and make a baby, but this is not something the government should subsidize. 2) There is insufficient evidence to say that heterosexual unions actually are the "optimal union for procreation", and significant evidence that other kinds of unions are just as good. 3) Even heterosexual couples that are obviously infertile are eligible for marriage, while lesbians (who give birth in larger proportions than you may realize) are not. This implies that there is actually some other reason that marriage laws are the way they are. Given the long, sordid history of discrimination against homosexuals, the likelihood that this reason is "discrimination" is far too high to justify differential treatment for this group in this circumstance.

[_EAllusion]

JSM -

"Rational basis" is a type of constitutional test that means something different than what it would mean in other contexts. To paraphrase a favorite legal blogger, it need not be rational nor a basis. Generally, it just means that the government has to have some reason for doing what its doing that isn't off the wall incoherent and is related to a legitimate purpose of the government. More importantly for purposes of this conversation, it doesn't need to be the most morally justifiable or rational stance for the government to take. It's not saying that. In the context of the above quote, it's not a tautology. It's the initial finding on a constitutional test followed by the reasoning for it. When stricter constitutional standards have been used more akin to what you think of when you hear the words "rational basis" is when you see it being shot down by the courts.

Later, perhaps, I'll link my response to this argument that I've already gone over with Wade. My personal favorite conversation on it was with a poster known on MAD as Confidential Informant. That was embarrassing for him and he is one of the more respected posters there on the topic, which tells you something about the place. If I can figure out a way to search ZLMB, I'll post that too.

[_wenglund]

Contractual mediation is one of the, if not thee most, fundamental functions of state. It's hard to maintain a true anarchic state for very long because governments with courts and lawproviders organically develop among people to deal disputes between people over what they agreed upon what they want to do.

That is the long and subtle way of describing state interest--i.e. the benefits of an anarchic state outweigh the cost of legislating and adjudicating familial disputes.

People already have the right to marry in the sense that people have the right to get together and form contractual agreements about their relationships with one another. The natural state of affairs - that is the morally proper state of affairs - is people having this right. The government only can take it away provided it has a just reason to do so. It isn't the governments to hand out.

While the right to enter into contractual agreements (like marriage) isn't the government's to hand out, the right to have the state sanction a particular contract is. Why? Because state sanctions makes the state a party to the marital contract or at least a party to a social contract (via the marriage license), and each party to whatever contract have the right to decide who to contract with. I may have the right contract with my nextdoor neighbor to refer to me as the President of the United States, in return for me calling him Mr. Vice President. The government didn't hand out that right to me, however it is the government's right to decided whether to sanction that contract or not.

The same is true with any governmental licensure (medical, dental, securities, auto and driver, business, marriage, etc.). With certain constitutional limitations, the government gets to decide who will have contractual rights to its licenses, and the terms under which it will grant those licenses--all, of course, according to government interest.

The government has an interest in legal recognition of these private relationships in order to mediate the agreements people make.

It depends. It isn't in the governments interest to legally recognized or santion delitarious relationships (incest for example) or disbeneficial contractual agreements (contracts between bankrobbers).

What the government does in case of civil marriage is provide an arbitrating body for people to form agreements with one another and resolve them should there be a dispute over living up to them. The government takes on this costly responsibly for the same reasons it takes on other forms of contractual mediation. It provides an apparatus to enforce agreements and provide a peaceful resolution of conflicts to best provide for the welfare of the people.

Again, it depends. The government will do so as long as it makes sense and is in the government's interest to do so. This is all the more true when the government is being asked to go beyond simply providing the legal apparatus for governing contracts to also being asked to be a party to a contract in the form of sanctions. If the state contractually obligates itself to encure costs that exceed providing an apparatus for contract law, to also providing incentives/benefits for licenses (like marriage), it stands to reason that they consider whether the benefits derived from such contracts are off-set by the benefits to the government derived from doing so. This is rational and responsible governance.

Thanks, -Wade Englund-