Ross Douthat To the Rescue
by Beverly Mann
cross posted with The Annarborist
If you can’t base a gay-marriage ban in tradition or in a religious objection—because laws have to have a secular purpose—and you also can’t ground it in the claim that children raised by same-sex couples are worse off, because the research shows just the opposite, than what rational-basis argument can you make? The Proposition 8 proponents are taking heat for their crappy trial record. But what evidence could they have put on instead?
I was as dumbstruck by conservative New York Times columnist Ross Douthat’s piece in yesterdays’ Times as law professor and author Linda Hirshman makes clear in a Slate piece today that she is. But not only because Douthat uses pseudo anthropology to conclude that it is in society’s interest to promote heterosexual marriage. Or even Douthat’s concession that heterosexuals now have the culturally accepted options of serial monogamy and procreation outside of marriage.
Instead, what really knocked me over was his conclusion that precisely because heterosexuals in such large numbers now choose these options, and therefore threaten to vanquish—his word—the older marital ideal, and because the older marital ideal is still worth striving to preserve because it is the most likely to be a foundation for happiness, the government must preserve it as the ideal to strive for by denying the option of marriage to one, but only one, category of couples who cannot attain it: homosexuals.
The claim is a bald non sequitur. The ideal is still worth honoring, and still worth striving to preserve, he says. Therefore, preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit, he says. As if the latter concept logically follows the former. No need even to explain this. His next sentence: “But based on Judge Walker’s logic — which suggests that any such distinction is bigoted and un-American — I don’t think a society that declares gay marriage to be a fundamental right will be capable of even entertaining this idea.”
In other words, we should continue to deny homosexuals the right to marry because we want the government to encourage straights to strive for the ideal of a single decades-long marriage in which husband and wife remain faithful throughout, because this is the most likely to bring them and their children happiness.
All the evidence that is necessary for the higher federal courts to reverse Judge Vauhan Walker’s already-iconic opinion, which held that California’s Proposition 8 prohibition of gay marriage violates the Fourteenth Amendment’s due process and equal protection clauses precisely, is that heterosexuals are en masse undermining the older ideal of marriage.
No evidence upon which to overturn Walker’s opinion? Of course there is! And Ross Douthat provides it.
Makes sense if you’re Ross Douthat, I guess. But not if you’re not.
Douthat = Asshat
Hi Bev:
Just add it to Slauterhouse and cruikshank the list of people or circumstance the 14th amendment does not apply to. We are selective to whom we grant protection or liberty too.
In the twenty years or more since in my own mind I labeled the American cultural norm of the late twentyth century (pig era) serial monogamy, that’s the first time I’ve ever seen it in print.
We need to realize that Douthat is his generation’s George Will. That is to say, a Scholastic. His job is to torture logic in order to serve the Church. The Church in question now is conservative political norms, rather than the Church of Rome, but the technique is the same. Fact and logic are not honored, because truth is not the goal. Semblance of fact and logic are handy tools to foster conservative political norms.
The real logic here appears to be emotional logic. If those other kids want what we have, then what we have must be pretty good. Douthat is arguing that by keeping marriage away from those gay kids, we can make it seem more valuable to the straight kids.
TB,
“Serial monogamy” is the standard term. It has been around at least since the late 1970s.
By the way, the value of guys like Will and Douthat and the late Bill Buckley to the right is that some voters (and donors) with sympathy for rightwing ideas are not comfortable with the emotional blather that comes from Father Coughlin clones. That audience is flattered by an apparent appeal to its intellect. There is irony on a grand scale in that, but such irony is lost on its victims. Douthat’s inclusion in the NYT is exactly because his audience wants to be flattered from the pages of publications like the NYT. And the NYT has ad revenue that wants them flattered, too.
I’m going to jump in here just for the fun of it. We had this discussion in detail a year or so ago (two maybe?) on Homosexual Marraige and I’m pretty sure the issue hasn’t changed much.
First, I actually have no problems with homosexuals being allowed to marry. Don’t really care for that matter, but would vote in favor of it if it was on the ballot.
My argument is with this simple statement made by Beverly:
“…we should continue to deny homosexuals the right to marry…”
Homosexuals do not have a ‘right’ to marraige. Neither does anyone else. Currently the US Gov provides benefits to couples who meet certain criteria and lumps these benefits in what is called marraige. Among these criteria: The couples must be of opposite sex, they must both be able to provide consent, they must both be above a certain age (which varies by state), they cannot be too closely related (brother/sister marraiges are banned etc), they must not already be married to a third party, and there are others. Bottom line is that the government determines the criteria needed to get benefits attached to the status of being ‘married’.
The government can change thse criteria at a whim, heck it could end all benefits if it wished. It could also add a $1000 cash rebate to all people who are blonde, blue-eyed, and female who get married to a male that is 10 years older than her. Perfectly legal. The government hands out benefits for arbritrary reasons all the time.
Its a priviledge, not a right, to be married.
Since Lawrence no one is denying anyones ability to live with anyone you want, raising kids with them, etc. If 6 guys want to buy a house and have homosexual orgies every night – no one can stop them as long as they don’t get too loud. Polygymists in Oregon are not prosecuted for living with multiple women and one man. they are prosecuted for welfare fraud, child rape and children neglect etc. There is no law in the land that will stop 3 women and two men shacking up together in Tribecca and having 10 kids.
Thus if homosexual groups want to get the benefits of ‘marraige’ they need to get government to change the criteria defining a ‘marraige.’ Its that simple. They lost the vote in California to get the criteria changed. The solution is simple. Bring it back up on the ballot and win. Convince the voters that they should change the criteria for marraige to include same-sex couples so they can get the benefits.
My simpathey with Homosexual rights groups went out the second they started looking for goodies from the government. The law before Lawrence was a travesty, but I’m not infringing on anyones rights to not provide the benefits of ‘marraige’ to people who don’t meet the criteria.
Basically you do not have any rights that require someone else to provide you with a benefit. You have rights not to be negatively impacted, you have no rights to a positive impact. (Thus there is no ‘right’ to medical care – that would enslave doctors).
rdan – any chance you can find that really old thread and link to it?
Islam will change
While I generally agree with the point of view that Buffy has expressed, it is a step too far to insist that debate take place based on one’s own definitions. “Rights” are not what Buffy insists they are. Johnson once decided what rights are, but nowadays, its Webster, American Heritage and Wikipedia. Rights are:
“Rights are legal, social, or ethical principles of freedom or entitlement — i.e. rights are normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory.”
Freedom or entitlement. Allowed or owed. As defined legally, socially or ethically. Either marriage or medical care could be a “right”. As things now stand, neither is, at least not in a universal sense. We could debate whether universality (within a culture) is necessary to distinguish between rights and priviledges, but no one of us gets to simply impose an answer.
While I generally agree with the point of view that Buffy has expressed, it is a step too far to insist that debate take place based on one’s own definitions. “Rights” are not what Buffy insists they are. Johnson once decided what rights are, but nowadays, its Webster, American Heritage and Wikipedia. Rights are:
“Rights are legal, social, or ethical principles of freedom or entitlement — i.e. rights are normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory.”
Freedom or entitlement. Allowed or owed. As defined legally, socially or ethically. Either marriage or medical care could be a “right”. As things now stand, neither is, at least not in a universal sense. We could debate whether universality (within a culture) is necessary to distinguish between rights and priviledges, but no one of us gets to simply impose an answer.
While I generally agree with the point of view that Buffy has expressed, it is a step too far to insist that debate take place based on one’s own definitions. “Rights” are not what Buffy insists they are. Johnson once decided what rights are, but nowadays, its Webster, American Heritage and Wikipedia. Rights are:
“Rights are legal, social, or ethical principles of freedom or entitlement — i.e. rights are normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory.”
Freedom or entitlement. Allowed or owed. As defined legally, socially or ethically. Either marriage or medical care could be a “right”. As things now stand, neither is, at least not in a universal sense. We could debate whether universality (within a culture) is necessary to distinguish between rights and priviledges, but no one of us gets to simply impose an definition.
buffpilot: “Homosexuals do not have a ‘right’ to marraige.”
IANAL, but the judge says different about there being a right to marry. The 9th amendment to the U. S. Constitution states:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Rights do not have to be enumerated to exist. They certainly do not have to be granted by the gov’t. Nor does gov’t limitation of those rights eliminate them or turn them into privileges. Taxation does not eliminate the right to own property. The existence of rights that are not granted by the gov’t is at the base of the American ethos.
Kharris,
I understand your point. I just don’t know how to differentiate between a right and a priviledge any other way. I agree the language has become confused. By the definition above almost anything could be called a ‘right’, but in reality the definition above just blurs the distiction between words ‘a right’ and ‘a priviledge’. As used in the context of homosexual marraige though, ‘a right’, is being used more in my way of defining the word vs. the one you posed (YMMV). The pro-homosexual marraige groups are trying to make it equivelent to the Civil Rights era, which its not.
Islam will change
Subsidizing behavior that is personally destructive, and has no positive effect on the advancement or strength of the civilization……What could possibly go wrong?
buff,
Sorry, I cannot take Douthat seriously.
Bit, I agree homosexual men and women should get married, to whomever they want. Why should they be happy?
ilsm will not change
happiness for whom? I believe I’ve seen numerous studies that show that marriage does indeed increase the happiness quotient (however that’s measured) for men; at the same it decreases it for women: the happiest women are in fact single women.
Asshats can decry the failure of marriages and the need to restore them all they want: what they’re really calling for is for June Cleaver to get back into the house and start vacuuming again. That marriage started to change when 51% of the population decided they too were entitled to happiness completely eludes Asshats because for Asshats 51% of the population are invisible.
Doofy,
I am truly fearless.
I was married to same woman for years, I survived and I agree why should any crazy, misguided behavior, like my first and only ever marriage, that had no positive effect other than to drive me bonkers be subsidized.
I cannot take Douthat seriously. Glad to see you agree.
IANAL, the voters changed the California constitution. The next judge can overturn the last judge.
And you completely missed my point.
Anyone can call themsleves married. Two homosexuals can do so today. I had a HS classmate who introduced his spouse that way and noted they were celebrating there 8 year anniversary. Whoopee! (BTW, that was in 1990)
What the argument here is if you plan to change the criteria for getting benefits from the Government. You, hetero-homo or anything do not have a ‘right’ to a benefit. You can get the privilegde to whatever those benefits are, but you have no right to them. And those criteria and the benefits can be changed at a whim of the government.
Think of it this way. You have a privilidge to drive on the US roads. You must meet certain requirements to do so and the Government can remove that benefit from your for a variety of reasons or just arbritrarily. (like going like Germany and making the driver’s license age 18). Same with getting the benefits of being married. (Plus $400 bucks and an hour with a lawyer will get you the same place).
Islam will change
Doofy,
The reason Marriage was subsidized in the beginning was to encourage human reproduction and encourage the proper human development of those childern by giving incentive for man and woman to stay together.
Are you saying that gay marriage should not be subsidized, or are you saying that gay marriage should be banned regardless?
Actually, The CBO did a study which showed Gay Marriage is good for the economy. Although they made two major assumptions to get to that conclusion.
1.) They assumed gay marriage was legal in all Fifty States
2.) The revenues generated from property outwieghed outlays from marriage incentives.
We will have to see how it all plays out, but Canada and Britian might be a place to look to see when our immediate future lays.
Jimi,
If gays don’t have their own children then they can’t pass on any genetic sexual tendencies. So even if they adopt evolution tells us they can’t pass on their genes. Thus, any predispostion for people to be gay according to Darwin’s theory of evolution will lead to this tendency disappearing in the culture. There are plenty horror stories with foster care and adoption. I doubt having gay parents on balance will make these institutions any worse.
If gays don’t have their own children then they can’t pass on any genetic sexual tendencies. So even if they adopt evolution tells us they can’t pass on their genes. Thus, any predispostion for people to be gay according to Darwin’s theory of evolution will lead to this tendency disappearing in the culture. There are plenty horror stories with foster care and adoption. I doubt having gay parents on balance will make these institutions any worse. It seems most children of gay parents will end up being straight.
Harry Chapin
And as I hung up the phone it occurred to me
He’d grown up just like me
My boy was just like me
Well, not exactly just like you.
If gays don’t have their own children then they can’t pass on any genetic sexual tendencies. So even if they adopt evolution tells us they can’t pass on their genes. Thus, any predispostion for people to be gay according to Darwin’s theory of evolution will lead to this tendency disappearing in the culture. There are plenty horror stories with foster care and adoption. I doubt having gay parents on balance will make these institutions any worse. It seems most children of gay parents will end up being straight.
Harry Chapin
And as I hung up the phone it occurred to me
He’d grown up just like me
My boy was just like me
Well, not exactly just like you.
buffpilot: “What the argument here is if you plan to change the criteria for getting benefits from the Government. You, hetero-homo or anything do not have a ‘right’ to a benefit.”
“Benefit” is a broad term, but in general we are in agreement. It seems to me that single people might have a case against the preferential treatment of married people. Maybe somebody brought such a suit, I don’t know.
However, I think that the question of marriage for homosexuals is rather more than that. I think that they want to be treated like everybody else.
http://www.angrybearblog.com/2006/05/mary-cheney-v-john-kerry.html
Mostly on disctimination and women elsewhere…a real search requires going through post titles in batches of 300 in some time frame..
Templeton,
The arguement isn’t whether people learn or are born homosexual.
The arguement is:
1.) Whether the purpose of subsidizing gay marriage has value or purpose
2.) Whether or not the creation of a culture negatively effects the strength of the existing culture.
If we follow Douthat’s logic then second marriages, divorce, adultery, and sex outside of wedlock should also be illegal. Why does he suggest we enshrine marriage as an ideal in only one dimension? Because if we treated his argument logically we’d end up looking like a medieval theocracy.
We subsidize marriage between a man and a woman, their home, and sending their kids to school. It seems natural that a gay couple would get the same benefits. My point above is that gayness even with the increased tolerance among young people has no future as a growing cultural movement. It will always be a small fringe element. Something that fits neatly in both left and right leaning society.
However, I would not call it marriage.
Thanks rdan, Your the man!
BTW, Its 12 August isn’t Presimetrics available???
“any predispostion for people to be gay according to Darwin’s theory of evolution will lead to this tendency disappearing in the culture.”
Uh, no. The vast majority of gays and lesbians are the products of straight parents. There is no “gene” for homosexuality. Darwin’s “theory” of evolution is silent on the inheritance of homosexuality.
“It seems most children of gay parents will end up being straight.”
Indeed. Just as most children of straight parents will end up being straight. There is no evidence that the frequency of homosexuality among the children of homosexuals will be any different from the frequency of homosexuality among the children of heterosexuals.
Templeton,
“We subsidize marriage between a man and a woman, their home, and sending their kids to school. It seems natural that a gay couple would get the same benefits.”
Why does it seem natural? Explain it me!
Ross avers that homosexual marriage is somehow DIFFERENT. For years I was of the opinion on an intuitive basis. Now I think insofar as there is a difference, it is entirely the result of social attitudes. It’s analologous to the limp wristed pansy phenomenon. We once assumed that the pansy was some kind of norm of homosexuals, only to discover the the pansy was only an aritfact created by a hostile society. I think the same is true of any ‘differences’ now prevailing between homosexual and heterosexual marriages.
Arion,
Yep…Homesexual Marriage is not different, because two men can have sex with each other and birth a human, and that human will develop and learn from both attributes offered from a man and a woman.
You got it all figured out….good job!
“two men can have sex with each other and birth a human”
Ah, little Jimi,
No, two men can’t have sex with each other and birth a human. Just like my mom and dad, in their 80s can’t birth a human after having sex with each other. Indeed, many heterosexual couples who can’t birth humans regularly have sex with each other.
There is no requirement that married people birth humans.
Now run along, Jimi. This place is for grown-ups.
Joel,
“There is no requirement that married people birth humans.”
It is the reason why marriage is subsidized…Genius! If marriage was not subsidized, homosexuals would not be protesting to be married. If Homosexuals can not reproduce, what is the point of subsidizing them?
But the test for who has rights under the Fourteenth Amendment is pretty simple: If the underlying substantive right you’re claiming jibes with Republican dogma—voila!—the right exists. Otherwise it doesn’t.