Fun with amicus briefs (cont.)

03.12.2013, 10:49 AM

Props to Anna Cook for walking us through some of the amicus briefs favoring gay marriage.   Here is an overview of some of the briefs on the other side.


47 Responses to “Fun with amicus briefs (cont.)”

  1. Kevin says:

    The DOMA-and Prop 8-supporting briefs regurgiate descredited assertions. But that doesn’t seem to matter to these people: all they want is to posit at least one “rational “reason” for the courts to support denying marriage rights to gay lesbian people.

    It troubles me that groups who oppose or favor something keep repeating discredited lies or refuted myths, as if repetition will make such lies and myths escape their earth-bound cocoons and take flight as a beautiful butterfly. It makes me wonder about the mental faculties of someone who is capable of saying, “Yes, I know it’s not true that marriage is exclusively about procreation, but I have to keep saying it because it’s a great warm-and-fuzzy reason to exclude gay couples”. It’s one reason public discourse is so cheap in this country.

    Whatever you perceive marriage to be, that reason does not require excluding gay and lesbian couples. This is fact, as proven by states where same-sex marriage is legal. It is this “exclusivity” fact that seems to elude the anti-gays on a consistent basis.

  2. gremlint says:

    Kevin,

    It is the talking points advocating the idea of “homosexual marriage” that actually “regurgitate discredited assertions.”

    For example, there is the discredited assertion that if marriage and procreation were fundamentally linked (which they are), then marriage would necessarily require procreation.  There is the refuted myth that the hidden psychological characteristic of sexual orientation is “just like” the obvious physical characteristic of race with regard to constitutional protection.  There is also the interesting double-standard that asserts the critical importance of “respecting diversity” — except when gender diversity in parenting interferes with a certain political agenda.

    In the small number of states where the idea of “homosexual marriage” has been allowed, the courts had to essentially rip apart the link between marriage and procreation, and force society to accept the myth that gender complementarity suddenly doesn’t matter.

  3. Kevin says:

    Gremlint, you offer some poor examples of what you consider to be discredited reasons for supporting legal same-sex marriage. It most certainly is NOT discredited, the notion that it is false to describe marriage as exclusively defined by procreation. Why? Because no couple is required to procreate, in order to get, or stay, married. It’s like saying a car is defined as having a convertible top, despite the fact that many cars have hardtops. Procreation can’t be a defining characteristic if it is routinely absent from the thing that it supposedly defines. And that’s before explaining how letting same-sex couples marry somehow alters the relationship between procreation and marriage.

    Big fail on the race v. sexual orientation comparison. In fact, the public perception is that race and sexual orientation ARE immutable characteristics but even that is not the basis for the claims of similarity in law. Both blacks and gays are similarly situated for having a history of social and legal mistreatment, for a personal characteristic that is unchanging, OR THAT HAS TO INHERENT NEED TO CHANGE, even if race or sexual orientation could be changed. Many blacks can successfully pass as white, but they certainly aren’t expected to.

    Three isn’t the charm for you. Diversity is a concept that embraces (especially) personal and social differences on a basis that at least tries to avoid a caste system of valuing some characteristics above others, to the detriment of the devalued characteristics. When a blond man marries a blond woman, he isn’t shunning redheads. There is no breech of diversity. Your fake version of “personal diversity” would require that a black catholic woman marry a white protestant man, in order to have “diversity.” Personal preferences need not be diverse; social and legal institutions, however, must be, if we are to realize our very undiverse belief in equal legal and social treatment.

    I have no idea what gender complementarity means. I do understand sexual orientation and romantic attraction, though, and consider different-sex and same-sex couples, for the purposes of law and social institutions, deserving of equal treatment.

  4. Matt N says:

    From the summary: “The European Court of Justice, the European Court of Human Rights, the United Nations Human Rights Committee, the French Constitutional Court, the Italian Constitutional Court, the German Federal Constitutional Court, and the New Zealand Court of Appeal have all rejected the notion that same-sex marriage is a constitutional or human right.

    Wow, I honestly didn’t expect this to be mentioned in light of how:

    1. Sweet list, but it is recognized as a right by the governments of Canada, Argentina, South Africa, Spain, Portugal, Sweden, Norway, Denmark, Iceland, the Netherlands, and local jurisdictions throughout the US, Mexico, and Brazil. What does dropping either of these lists prove?

    2. You forgot a few! Not only are marriage rights but any sort of sexual act between people of the same genders or sexes are punishable by death under the laws of Iran, Saudi Arabia, Yemen, and Mauritania. You can’t fret about an imagined importation of sharia law with one hand and say we should accept foreign rulings on the rights of same-sex/same-gender couples (from other foreign sources) with the other.

    3. Unless it’s not accident that the only foreign rulings and decisions that are being given weight happen in countries with White, Christian majorities that reached the desired conclusion. (Who could have thought! Higher value assigned to and preferential treatment for White and Christian perspectives in the US?!)

    I’m just kind of amazed at how many different counterarguments there are for that argument.

  5. Jason Jackson says:

    Sweet list, but it is recognized as a right by the governments of Canada, Argentina, South Africa, Spain, Portugal, Sweden, Norway, Denmark, Iceland, the Netherlands, and local jurisdictions throughout the US, Mexico, and Brazil. What does dropping either of these lists prove?

    Um, that the brief’s list (if you read the whole brief) has 10 times as many jurisdictions as yours. Plus you are comparing courts with countries. Most countries which have legalized same-sex marriage have done so by the legislature, not the courts.

  6. Matt N says:

    Jason – Columbia is actually in the process currently of implementing the legal recognition of same-sex and same-gender marriages as a result of a court decision. It happens more frequently than you might realize. Canada’s a complicated case, but it’s worth noting that the federal legislative work actually followed a series of successful court battles in the majority of provinces. South Africa followed a similar trajectory as the constitutional court required the legislature for change the existing laws. Likewise, Argentina began legally recognizing such marriages through executive order and the Netherlands did by a specially appointed commission. There’s quite a few governments that I listed there that didn’t do so through legislative action.

    But it is true that the majority of states (7 of 12, which is the definition of a squeaker) did it by legislative action. Iceland, Norway, Sweden, Denmark, Belgium (which I forgot! Apologies to any and all Belgians), Spain, and Portugal did indeed all begin legally recognizing same-sex/same-gender marriages through parliamentary action. Yes, all of those examples have something we don’t in the US: parliamentary representation. I’m willing to absolutely agree that the US should have to legally recognize same-sex/same-gender marriages by legislative means as soon as we convert to a parliamentary system.

    But you’ll notice that involves overlooking multiple other examples, which coincidentally includes all of the examples from countries outside of Europe and with predominantly non-White populations. Isn’t that kind of strange how the only perspectives being considered are those? That’s creating an impression that if these marriages are to be recognized the organization of that must be legislative, based on how much more frequently that occurs in Europe compared to the rest of the world.

    If we’re going to go down the path of declaring that international decisions have validity and even centrality in US-based judicial decisions, why would we focus so strongly on only one region of the world?

  7. Diane M says:

    Some of the briefs addressed issues of religion and I wonder if the Supreme Court will end up addressing that question in it decision.

  8. Anna Cook says:

    Thank you for the link, David.

    I never thought I’d find myself agreeing with Concerned Women of America, but I too think that “if marriage policy is to be changed, it ought to be done legislatively.” As many of the anti-DOMA briefs have pointed out, historically changes in marriage policy have come about piecemeal through experimentation at the state level. DOMA was a break with precedent in that it wrested this process away from the states and pre-empted their ability to build marriage and family policy that actually meets the needs of today’s citizens — the approach that has been taken throughout American history.

    I would be content with a ruling that found DOMA unconstitutional and returned the question of marriage law to the states.

  9. zztstenglish says:

    Dr. Paul McHugh is right when he talks about sexual orientation. In other words, the ‘jury is still out’ when it comes to that.

  10. Chris says:

    gremlint:

    For example, there is the discredited assertion that if marriage and procreation were fundamentally linked (which they are), then marriage would necessarily require procreation.

    I’ll give you this one as an example of a myth. Marriage and procreation can be fundamentally linked without marriage necessarily requiring procreation. Since you agree that this is a myth, I would assume you don’t believe that couples who cannot procreate should be prohibited from married.

    But from your other comments, it is clear that you believe only one class of non-procreative people should be barred from marriage. Unsurprisingly, this happens to be a class of people who have been historically persecuted and marginalized in society.

    There is the refuted myth that the hidden psychological characteristic of sexual orientation is “just like” the obvious physical characteristic of race with regard to constitutional protection.

    This is indeed another myth, but I think it’s for different reasons than you are implying. Race is not an “obvious physical characteristic.” Race is a social construct that has shifted greatly over time. There is no scientific basis for dividing human beings into racial categories.

    It is also not clear that sexual orientation is a “psychological characteristic.”

    There is also the interesting double-standard that asserts the critical importance of “respecting diversity” — except when gender diversity in parenting interferes with a certain political agenda.

    This argument makes no sense. Marriage equality advocates haven’t shown any direspect for gender diversity in parenting. I don’t know of any marriage equality advocate who has argued that gender diverse parenting is inferior to same-gender parenting. Gender diverse parenting does not interfere with the political agenda of gay marriage at all, because gay people aren’t trying to stop opposite-sex couples from marrying and raising children, or in any way condemning their ability to do so. It is quite the other way around.

    You are confusing an expansion of diversity with suppression of your own choices. This is very common of certain types of people in a majority group when a minority group gains more rights. Somehow some members of the majority always manage to convince themselves that they are going to lose rights if others gain theirs. Then they adopt the language of tolerance and turn it against the minorities, in order to bizarrely argue that the side fighting for greater rights is actually arguing for persecution of the traditionalists.

    This is not so. You will still be able to marry and parent with someone of the opposite sex when gay marriage is federally recognized. Simply put, gay people have no interest in doing to you what you want done to them.

    In the small number of states where the idea of “homosexual marriage” has been allowed, the courts had to essentially rip apart the link between marriage and procreation, and force society to accept the myth that gender complementarity suddenly doesn’t matter.

    First of all, I find your consistent use of the term “homosexual marriage” to be quite confounding, especially with your use of quotation marks. Who are you quoting when you use this term? It seems quite outdated, and it’s certainly not used by most marriage equality advocates. If it’s your own term, why are you putting it in quotation marks? Do you understand how quotation marks work?

    Second of all, I’d like some evidence that the courts have “ripped apart the link between marriage and procreation” in their decisions on same-sex marriage.

    Lastly, your claim that the courts have “force[d] society to accept the myth that gender complementarity suddenly doesn’t matter” is blatantly false. Most of society rejected gender complementarity long ago. Vestiges still survive, but those who still believe strongly in gender complementarity are free to do so, and free to practice this in their own lives and marriages. See, just because others gain rights does not mean you lose them. That’s the great thing about America.

  11. Mont D. Law says:

    (Dr. Paul McHugh is right when he talks about sexual orientation. In other words, the ‘jury is still out’ when it comes to that.)

    This is true only if your jury consists of Paul McHugh, an 82 year old nonconservative Catholic with zero peer reviewed research on the issue.

  12. Manny says:

    Chris: “I’ll give you this one as an example of a myth. Marriage and procreation can be fundamentally linked without marriage necessarily requiring procreation.”

    That’s good. Hopefully this myth will stop being used, it’s very frustrating to have to keep responding to it over and over.

    “Since you agree that this is a myth, I would assume you don’t believe that couples who cannot procreate should be prohibited from married.”

    Correct, no one should be prohibited from marrying, but certain relations are off limits, and people have to choose someone who is eligible for them to marry.

    “But from your other comments, it is clear that you believe only one class of non-procreative people should be barred from marriage. Unsurprisingly, this happens to be a class of people who have been historically persecuted and marginalized in society.”

    I’m sure he believes siblings should also be barred, and father-daughter couples, and mother-son couples, and people still married to someone else. And I am sure he believes that everyone, even gay people, should be allowed to marry someone of the other sex, and should not be marginalized by society into a gay subculture or told they do not have a right to be straight. If anyone is persecuting people and bullying people, it is those who insist that certain people do not have a right to be straight.

  13. Manny says:

    Chris:

    Manny,

    Does it matter at all to you that you appear to be the only person in the world who believes this [that marriage is the right to create children]?

    Wow you are totally wrong. Every person in the world believes that marriage is the right to procreate, except a few radical eugenicists who want to sterilize unfit people. Every marriage in history has had the full right to have sex and create children, (as pointed out in the excellent and compelling Westboro brief: “Marriage is honourable in all, and the bed undefiled: but whoremongers and adulterers God will judge,” Hebrews 13:4,Holy Bible. “Whoso findeth a wife findeth a good thing, and obtaineth favour of the LORD,” Proverbs 18:22, Holy Bible.) And every couple in history that did not have the right to create children has always been barred to marry. There has never been a marriage that was barred from sex or procreating when they are able to be together (including first cousin marriages and prisoner marriages). Unmarried sex has been one of the gravest crimes in almost every society since pre-history, but (and this is the point:) married sex has NEVER been a crime in any society, because marriage is always the right to have sex and create children and it had better remain so. The idea that marriage does not approve of sex and creating children is abhorrent and offensive and dangerously totalitarian.

    If you are objecting that unmarried couples have a right to procreate too, that is irrelevant to the rights of married couples, and even if it were true, it is only true if they have a right to marry each other. If they are barred from marriage, they do not have a right to have sex or procreate. And I find it offensive when people say that getting married did not change a couple’s right to have sex and procreate, it went from being a grave sin, wrongly tolerated by society, to being holy and unobjectionable. Don’t deny that feeling of approval to couples when they get married.

  14. Kevin says:

    “If they are barred from marriage, they do not have a right to have sex or procreate.”

    Already married persons have the right to have sex with someone they aren’t married to, so long as that other person isn’t too young or too related.

    I’m not sure at what point the moderators start deleting inane comments but marriage does not confer the right to have sex with someone. No matter how many times you repeat such an absurd assertion. Fornication and adultery are not crimes in America, and it is hard to imagine in this day and age that laws criminalizing either would withstand constitutional scrutiny.

  15. Manny says:

    Kevin, there is lots of space between marriage being a right to have sex and procreate and laws against adultery and fornication. In other words, we can get rid of those laws without denigrating the right of marriage to procreate. You have already said you believe that a married couple has the same right to have sex and procreate that a brother and sister have, or that an adulterous couple have, or an unmarried couple have, and that is super offensive to married couples and extremely sick and twisted and inane. You need to accept that a married couple has a right to have sex and procreate. It is unbelievably wrong and dangerous to deny that married couples have a right to procreate.

    And sorry, it isn’t equal to the right to use donor gametes or have a one night stand or adopt or anything that a same-sex couple would do. Same-sex couples do NOT have a right to create children and should be prosecuted for attempting to. But even if we don’t prosecute them, and even if a court says we cannot prosecute adultery or ban 3PR, we should still not affirmatively approve of it by declaring it equal to a married man and woman’s right to conceive.

  16. zztstenglish says:

    @Mont – So, do you have any conclusive proof?

  17. Chris says:

    Manny:

    Correct, no one should be prohibited from marrying, but certain relations are off limits, and people have to choose someone who is eligible for them to marry.

    Homosexual relations are not “off limits” in our society, and barring some sort of dystopic future, never will be again. “Eligible to marry” in a growing number of states and nations means that a couple is not closely related, both partners are consenting adults, and neither is already married. Gender discrimination is forbidden in this country unless there is a very compelling interest. Your explanations are not compelling. They strike most commenters here as bizarre and unfounded.

    I’m sure he believes siblings should also be barred, and father-daughter couples, and mother-son couples, and people still married to someone else.

    There are ethical and practical reasons not to allow such marriages. Those do not apply to same-sex marriage.

    If anyone is persecuting people and bullying people, it is those who insist that certain people do not have a right to be straight.

    Except that such people do not exist. No one is telling anyone they don’t have a right to be straight.

    Wow you are totally wrong. Every person in the world believes that marriage is the right to procreate, except a few radical eugenicists who want to sterilize unfit people

    That accusation is not only absurdly false, it is also uncivil. You know that many commenters here, including Kevin above and myself, do not agree with you that marriage is the right to procreate. You just called all of us “radical eugenecists who want to sterilize unfit people.” You have no basis for this charge.

    Please retract this false accusation now.

    Every marriage in history has had the full right to have sex and create children…And every couple in history that did not have the right to create children has always been barred to marry.

    That’s not true. The Supreme Court has ruled that prisoners on death row, who cannot receive visitors, still have the right to marry. Since they are not allowed visitation with their spouse, they do not have the right to have sex or procreate.

    Unmarried sex has been one of the gravest crimes in almost every society since pre-history,

    Wrong. Unmarried sex has been a crime in many societies, but hardly “the gravest,” and this depended a lot on what gender you happened to be born as. Women’s sexual crimes were usually punished much harsher than men’s.

    And it is a fact that in most Western societies today, unmarried sex is not in any way a crime. Nor should it be. That would make most living people criminals. Your idea that unmarried sex should be a crime is extremely uncivil. As is your proposal in another thread that the government should kidnap the children of unwed mothers and give the child up for adoption simply because the child’s parents are not married.

    but (and this is the point:) married sex has NEVER been a crime in any society, because marriage is always the right to have sex and create children and it had better remain so. The idea that marriage does not approve of sex and creating children is abhorrent and offensive and dangerously totalitarian.

    You’ve made this point before, but it still makes absolutely no sense. Recognizing the right of unmarried people to have sex and have babies does not, in any way, jeopardize the right of married couples to have sex and have babies. It just doesn’t, and there’s no logical way to claim that it does.

    And I find it offensive when people say that getting married did not change a couple’s right to have sex and procreate, it went from being a grave sin, wrongly tolerated by society, to being holy and unobjectionable. Don’t deny that feeling of approval to couples when they get married.

    If a couple is getting married to feel like they can now have sex without being judged, they are marrying for the wrong reasons, and likely will not have a long or healthy marriage.

    You need to accept that a married couple has a right to have sex and procreate. It is unbelievably wrong and dangerous to deny that married couples have a right to procreate.

    You are making a strawman argument. No one is denying that married couples have a right to procreate. What we are trying to explain to you, as patiently and civilly as possible given your unwillingness to admit that yours is a minority view, is that marriage does not have a special right to procreate. Every consenting adult couple has the right to do this.

    Now, that does not mean they have the right to do this by any means necessary. If 3PR is banned some day, it should be banned for everyone, married or unmarried, gay or straight. 3PR is a totally seperate issue from marriage rights.

    Same-sex couples do NOT have a right to create children and should be prosecuted for attempting to.

    I can’t remember, do you believe opposite sex couples should be prosecuted for using the same means to create children?

  18. Chris says:

    Ugh…and I’ve also heard gender is a social construct as well. (eyes rolled)

    zztstenglish, if you are going to respond to me you need to offer something of substance. “Ugh” tells me nothing, and also violates the civility policy. If you have a substantive rebuttal to the scientific consensus that race is a social construct, not a biological reality, please offer it.

  19. Hector_St_Clare says:

    Re: If you have a substantive rebuttal to the scientific consensus that race is a social construct, not a biological reality, please offer it.

    I didn’t really want to respond here, because race isn’t the topic of this blog, but my understanding (I’m a biologist, though I study plants, not people) is that ZZ St. English is mostly right. Race appears to be largely a biological reality, though there is some social construction aspect to how it gets defined.

    If you run PCA plots on people’s genomes they cluster out pretty clearly. Dravidians cluster together, Jews and Middle Easterners cluster together, east Asians cluster together and so forth.

  20. Hector_St_Clare says:

    I’m not clear what ‘race is a social construct’ would even really mean. Clearly, as a South Indian I’m going to have more in common genetically with other people of South Indian descent (and with related stocks like the Andamanese) than I am with an Englishman or a Tibetan.

  21. Chris says:

    I’m not clear what ‘race is a social construct’ would even really mean. Clearly, as a South Indian I’m going to have more in common genetically with other people of South Indian descent (and with related stocks like the Andamanese) than I am with an Englishman or a Tibetan.

    Sure, but the differences between groups are not large enough to justify dividing humans into different “races.” The lines are too blurry.

  22. Hector_St_Clare says:

    Re: Sure, but the differences between groups are not large enough to justify dividing humans into different “races.”

    Again, I’m not sure what that means. You can draw a boundary as big or as small as you want to define a race, depending on whether it’s useful for that particular purpose.

    For medical purposes, for example, drawing distinctions between racial groups is extremely important. My racial group has higher risk factors associated with diseases like diabetes than Europeans do.

    Razib Khan at “Gene Expression” is generally a good source for learning about race and what it means (this is not my field, I’m a layman here as much as you, but I’d recommend him for more details).

  23. Anna Cook says:

    I’m not clear what ‘race is a social construct’ would even really mean.

    Generally, what people mean when they talk about gender or race as “constructed,” what they (we) mean is that human beings make meaning of the experience of bodies in different ways over time and across cultures.

    In my work as a special collections librarian, for example, I interact with a lot of scholars who look at race in U.S. history. We recently had a research fellow at my institution who was looking at the way “black” and “white” was defined in the Reconstruction era, when “slave” and “free” were no longer practical categories by which to divide people. We assume skin color was the “obvious” organizational tool, but the historical record shows that skin color and its relation to racial designation was much more complicated and confusing to people than you might assume. And if skin color was not a reliable indicator, what was … parentage? geographical location? social status? behavior?

    We also see how “race” (something seen as biologically fixed) changes over time with social identity categories. People from Ireland, for example, used to be “constructed” as non-white by the English and WASPy Americans. They were believed to be a separate, and inferior, race. Then, when the Irish became integrated into American political and social culture, they were re-constructed as “white.”

    Geographical isolation, heritable traits, etc., will definitely shape individual people’s bodily experience. But that is different from saying someone’s “race” has implications for their health. Race is a (socially elaborated) stand-in for other factors.

  24. Hector_St_Clare says:

    Anna Cook,

    Oh, OK. Just to clarify, I wasn’t being sarcastic, and your clarification helps. I think when I hear ‘race is a social construct’ I tend to think people mean something like ‘ethnic heritage isn’t particularly important in determining our physical, behavioural, physiological and psychological traits’, which I would disagree with. I think the points you make are good ones, and I wouldn’t really disagree with them.

    I tend to think about race as a continuum, rather than a binary thing, and when I talk to people about this sort of thing we would generally refer to people or groups in terms of their percentage of African admixture, Dravidian admixture, Askenazic Jewish admixture, etc.. In that sense, race is clearly a biological reality, and an important one. I’d agree that a lot of the way we *talk* about race is complicated by spurious cultural categories, etc.. I’d also add that I think our genetic and ethnic heritage shapes more than our ‘bodily experience’, but shapes our behaviour, psychological traits, etc. as well.

    There’s some good discussion/criticism of the ‘social construct’ theory here:

    http://www.nytimes.com/2005/03/14/opinion/14leroi.html?pagewanted=print&position=&gwh=26A56B9BF7D19AF28D5A072FAABE0A1F&_r=0

  25. zztstenglish says:

    @Anna – And how does that apply to gender as well since you said “what people mean when they talk about gender or race as ‘constructed’..”

    I’m not challenging you because I don’t want to get into an argument about this. I’m just asking a question. In other words, is gender a ‘social construct’ too?

  26. Anna Cook says:

    You’re welcome, Hector; I’m glad we can have a thoughtful, respectful exchange on this topic. Perhaps you could find examples of people within the “social constructionist” camp (if there is such a thing!) who would deny that aspects of identity such as race, gender, etc., influence who we are in the world. I hold a much more … discursive? view, in that I believe we are born with certain aspects of identity which we then interpret according to the (socially constructed) narratives available to us that help us organize those innate selves.

    For example, I identify as “queer” — but what I mean when I say “queer” is not what someone in 1920 or 1870 would have meant when they used the same language. Sexuality, in that way, is “socially constructed”: same-sex desires and activities have, most people agree, always existed. But “homosexuality” and “heterosexuality” are a product of modern sexological and psychological theories and categories of analysis.

    Which, I suppose, leads me to respond to zztstenglish’s question about gender as socially constructed: Yes, like race and sexuality, I believe gender is highly socially constructed. Most people will tell you that they have a sense of themselves as gendered beings somewhat independent of social assumptions about what “male” and “female” mean … but how we “perform gender” (as the sociologists would say) depends a lot on what cultural narratives of gender we have available to us in a particular time and place. Those narratives are naturalized, becoming “common sense,” and often work in near-invisible ways. We imagine they are simply what people of a certain gender do … when, in fact, historical evidence will point toward a high degree of variety in what those supposedly “natural” tendencies of “men” and “women” as groups toward certain types of behavior.

  27. zztstenglish says:

    @Chris – “prisoners on death row, who cannot receive visitors, still have the right to marry”

    You should research that more carefully. The Supreme Court decision about that was written in Turner v Safley where prisoners were permitted to marry as long as it does not compromise security.

    http://www3.law.columbia.edu/hrlr/JLM/Edition_7/JLM_v7_ch41.pdf

    See footnote 11 “Turner [v Safley] implied the prohibitions against life term prisoners getting married were constitutional”

    On page 590, you’ll see the state of NY does ban prisoners with life sentences from marrying. On the other hand, on page 598, California extends that right to prisoners with life sentences. In other words, it’s left up to the states to decide. You also ignore the fact that some prisoners can procreate BEFORE conviction and may wish to marry to re-unite with their partner and kids.

  28. zztstenglish says:

    @Anna – Ok, here’s another question. How many genders are there in the context of the United States?

  29. Kevin says:

    “The U.S. Supreme Court has held that prisoners have a constitutional right to marry; however, this right may be regulated, and in some cases even denied. Prison administrators have the discretion to control how and when you marry. Nevertheless, prison administrators may not abuse this discretion.”

    It appears the burden is on the prison to explain why it is curtailing a prisoner’s right to marry, even if it is permissible to do so. Just as speech, gun possession and abortion are constitutional rights, that doesn’t mean they are unregulated. No constitutional right is absolute.

    Therefore, prisoners on death row do have the constitutional right to marry. Like other constitutional rights, it is regulated.

  30. Anna Cook says:

    zztstenglish,

    While I appreciate your interest in clarifying the matter, I’m not sure I can offer a straightforward answer, or even a single personal opinion, in response to your question. Instead, I’m going to offer some factors which I think come into play when any person attempts to reach an answer to your question.

    First, I wonder what time period we’re talking about. As historians will tell you, understandings of gender, the bounds of acceptable gender expression, and the deviations there from, shift over time.

    I also wonder what community of people we’re talking about. While it is true that many cultures have two main or dominant gender identities (“male” and “female”), many also have other more indeterminate or unstable gender identities … people who experience and construct their gender in more complex ways. Anthropologist, for example, point toward Native American peoples who made formal room in their society for other-gendered people identified in various ways.

    There are many people who identify as part of the trans* community who use very specific gender designations across and outside of the familiar male-female spectrum. A recent book, The Lives of Transgender People by Beemyn and Rankin (Columbia U.P., 2011) surveyed over three thousand people who identified as trans*. The authors discovered that many of these people refused to identity as male or female and used a wide variety of gender designations to describe how they situated themselves in the world — how they made sense of their gender. So any understanding of genders in the United States would need to take these voices into account.

    We might also, rather than thinking of “gender” as a category into which you put a person (i.e. “what is your gender?”), choose to think about gender as the collection of activities we engage in to communicate our own unique gender (i.e. “how do you do gender?”). Under this schema, we might think about how as a society we organize, or code, human activities and self-presentations, as either “masculine” or “feminine.” Then we might observe how men, women, and trans* individuals compose their genders through use of these masculine and feminine options. This understanding of gender is more fluid, as it imagines that peoples genders might shift over time, in response to both internal growth and external environment.

    Sociologists have posited that some people are more gender-flexible than others, just like some people are more fluid in their sexual orientation than others. Preliminary evidence suggests that some folks might be born with a very firm core sense of their gender identity, sexual orientation, and sex; others might have a very strong sense of one or two but not the other — still others may experience radical shifts in one or more of those categories over time.

    So the question “how many genders in the context of the United States?” has, in my opinion, the highly (frustrating or envigorating, depending on your point of view) answer “it depends.”

  31. zztstenglish says:

    @Anna – Ok, fair enough.

    1. Time period = today.

    2. For the sake of argument, let’s generalize among all American citizens. If that doesn’t suffice, then just take the largest group.

    So, how many genders are there?

  32. JHW says:

    For what it’s worth, if you want a clear counterexample to Manny’s bold general statements, two states (Wisconsin and Indiana) permit marriage between first cousins only when they are not able to procreate. Here’s the Wisconsin provision:

    No marriage shall be contracted while either of the parties has a husband or wife living, nor between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.

    I still submit that’s it’s pretty obvious from a fair reading of Turner v. Safley that the constitutional right to marry, at its core, protects interests of the couple (not, incidentally, of society or the state) that have little or nothing to do with procreation. (See page 96, by the numbers on the left margin of the webpage.) But it’s less directly on point, with respect to Manny’s claim, than the simple fact that there are marriages contracted in this country on the precondition that the couple cannot procreate.

  33. Anna Cook says:

    zztstenglish,

    My answer is still going to be “it depends.”

    Perhaps I might turn the question back in your direction and ask how YOU would answer it? And to what end? It seems like you’re driving at something here, but I’m not sure what it is. Is the question of “how many genders?” related to the question of legal recognition of same-sex marriage in your mind — and if so, how?

  34. zztstenglish says:

    @Anna – All I wanted to know is how many genders are there and should the state (in your opinion) recognize these other genders outside of Male and Female.

    That’s it.

  35. Chris says:

    Anna, thank you for articulating the idea of the social construction of race better than I could. My main point was that gremlint was wrong to describe race as an “obvious physical characteristic.” There are usually physical markers, but they are not always obvious.

    zztstenglish, I think Anna gave a very thoughtful, nuanced reply to your question. I don’t think repeating the question serves much purpose. You’re not going to get an exact number. The issue is more complex than you seem to want it to be.

  36. Hector_St_Clare says:

    Re: My main point was that gremlint was wrong to describe race as an “obvious physical characteristic.”

    Yeah, race (in the sense which I’m using it, shared genetic descent) isn’t a particularly obvious physical characteristic, at all.

    The Andamanese Islanders (who share a common racial stock with South Indians like me), Papuans, and West Africans might all have a few superficial characters in common (‘black’ skin, similar hair texture, etc.) but they’re all very, very, very different racial groups that have nothing in common with each other. The way to group people by common descent is to look at their genomes, not to look at their physical features.

  37. Hector_St_Clare says:

    Re: Preliminary evidence suggests that some folks might be born with a very firm core sense of their gender identity, sexual orientation, and sex; others might have a very strong sense of one or two but not the other — still others may experience radical shifts in one or more of those categories over time.

    Fair enough, and I’d also add that some people don’t ‘instinctively’ feel strongly male or female (in terms of fitting into traditional, complementary gender roles), but are strongly committed to accept a particular gender role for reasons of religion or ideology. I have a lot of stereotypically ‘feminine’ traits (high index/ring finger ratio, I love children, prone to anxiety, low tendencies towards social dominance), but I believe strongly in gender identity at the ideological level (i.e. I feel drawn to the traditional male role as protector/provider). Likewise a friend of mine (law student) was just telling me last weekend how at the personal level, if it was up to her, she would prefer an egalitarian relationship, but as it happens she wants to be in a complementarian relationship, where her husband is head of the household, because she believes that’s what God is calling her to do. Sometimes we make choices against our instinctive inclinations, because of what we believe ideologically.

  38. annajcook says:

    Anna would not give me a straight answer, but all I REALLY wanted to know from her is should the state (in her opinion) recognize these other genders outside of male and female.

    zztstenglish, it’s not that I am unwilling to “give [you] a straight answer,” it’s that I think the question is a complex one to which there is no clear answer … or at least, the answer one gives depends on a great number of variables that are often moving targets.

    In answer to the question you have subsequently asked, which is whether government should recognize gender variation beyond the binary categories of “male” and “female,” my answer is absolutely yes.

    I’d also add that some people don’t ‘instinctively’ feel strongly male or female (in terms of fitting into traditional, complementary gender roles), but are strongly committed to accept a particular gender role for reasons of religion or ideology.

    You have a good point, Hector. I would also add that the reverse is often also true: individual people may have a very strong male or female identity for themselves yet be strongly committed to the concept of gender variation for the population at large.

    I myself, for example, have always felt very comfortable identifying as a woman, and comfortable acting within the (these days fairly broad) realm of “feminine” presentation and behavior. I feel gender concordance: my body, my interior sense of my self, my outward self-presentation, all of these fit pretty seamlessly together so as to make my sex and gender “invisible” as multiple aspects of being. I never struggled with the gender assignment of girl/female and I don’t now struggle with moving through the world as a woman.

    But I have listened to my friends and acquaintances, scholars and activists, who articulate a much different and more conflicted relationship with a framework that allows for only two legitimate genders (male and female), and that has encouraged me to become more aware of the social privilege of being comfortable in one or the other of those two gender identities. Further, it has encouraged me to think about how we might grow as a society to be more inclusive of ALL peoples’ gender identities and understandings.

    So that is where I am coming from on this question of gender: I begin with the lived experience of people and think about how we might build a society that enhances their well-being as fellow citizens.

  39. gremlint says:

    Chris wrote:

    Marriage equality advocates haven’t shown any direspect [sic] for gender diversity in parenting.

    On the contrary, you certainly have shown disrespect.  Advocates do so by continually dismissing the importance of gender diversity in parenting.  When you try to redefine marriage as between any two adults, regardless of gender, you are declaring that gender diversity in parenting is no longer important enough for society to place it on a pedestal called “marriage” that confers special benefits and recognition.  Instead, you want to include a class of couples on that pedestal that cannot raise children with gender complementarity and cannot even naturally procreate at all.

    Meanwhile, I find your use of “marriage equality” to be subtly insulting — because the phrase presupposes that your redefinition of marriage is morally superior to the longstanding definition as the union between one man and one women.  The phrase implies that anyone who opposes this radical political campaign is necessarily unethical — similar to the presupposition that those who oppose the idea of “homosexual marriage” are necessarily hateful.  This kind of language distortion is unfortunately “very common among certain types of people” (to borrow your pejorative phrase) who cloak their disrespect with Orwellian phrases.

    Race is not an “obvious physical characteristic.”  Race is a social construct …

    No, that is simply false.  I’ll let the Stanford Encyclopedia of Philosophy refute your statement:

    Races reflect some type of biological foundation….  This inherited racial biological foundation manifests itself primarily in physical phenotypes, such as skin color, eye shape, hair texture, and bone structure….

    I categorically reject your assertion about “social constructs” because I reject postmodernism — which replaces objective truth with social constructionism.  Postmodernism claims that there is no objective truth — because all apparent realities are only “social constructs” that are always subject to change.  In other words, reality has no limits — which is certainly convenient when waging a culture war.

    I encourage you to reconsider your apparent embrace of postmodernism, because it generally defies logical reasoning.  In its extreme manifestations, postmodernism is a rabbit hole of utter nonsense.  Unfortunately, this kind of thinking has captivated much of the American Left with a bandwagon that harnesses both the vulnerability of young people to peer pressure and their undeveloped logical reasoning skills.

    I’ll let Professor Richard D. Mohr explain the rest.  He did a fine job of exposing the absurdity of postmodernism for the Harvard Gay & Lesbian Review in 1995.

    For postmoderns, the distinction between fiction and fact, myth and reality, collapses.  Language and ideas are never essentially descriptive.  They are always means of persuasion, never tools for independent critical inquiry and assessment.  The postmodern lesbian philosopher Cheshire Calhoun puts it bluntly:  “The point of telling gay and lesbian history.  It is a political one.”  Rhetoric is all, reason nothing.

    In the postmodern view, politics permeates all our ideas, and the values that inform that politics are always, like everything else, culturally determined.  Since the meaning of a thing is derived from its social context, there can be no values lying outside of a society on the basis of which one could evaluate or criticize the society itself.  And so, postmodernism is deeply committed to moral relativism between societies.

  40. gremlint says:

    Anna wrote:

    I think the question is a complex one to which there is no clear answer … or at least, the answer one gives depends on a great number of variables that are often moving targets.

    If advocates of “multiple genders” cannot even clearly define their radical idea, then the state certainly has no obligation to recognize this perception of humanity.  A just and stable society cannot be built upon the perpetually shifting sands of postmodernism.  Reality has limits.

  41. Manny says:

    Chris requested a response:

    You know that many commenters here, including Kevin above and myself, do not agree with you that marriage is the right to procreate. You just called all of us “radical eugenecists who want to sterilize unfit people.” You have no basis for this charge.

    Please retract this false accusation now.

    Ok, the fact that marriage is the right to procreate is apparently denied not only by radical eugenicsts who want to sterilize unfit people, it is also denied by mainstream eugenicsts who just want to pressure perfectly fit people by saying their marriage doesn’t have a right to procreate, but they do have the same right as same-sex couples to use screened donor sperm, and I suppose it is also denied by people who haven’t really thought about it much. That better?

  42. Chris says:

    gremlint:

    On the contrary, you certainly have shown disrespect. Advocates do so by continually dismissing the importance of gender diversity in parenting.

    I see. So you believe that marriage equality advocates are showing “disrespect” to gender diversity in parenting…simply because they do not believe that gender diversity in parenting is superior to same-gender parenting.

    I am sure many whites in the 1960s believed their same-race marriages were also being shown “disrespect” when the Supreme Court ruled that states could not ban interracial marriages. After all, they grew up believing that same-race parenting was superior to mixed-race parenting. To imply that the two were equal, according to them, was disrespectful.

    But you’re not asking for respect. You are asking to hold on to your privilege. (You actually use the word “pedastal!”) That you have trouble distingushing between the two is an indicator that you have never stopped to examine your privilege.

    When you try to redefine marriage as between any two adults, regardless of gender, you are declaring that gender diversity in parenting is no longer important enough for society to place it on a pedestal called “marriage” that confers special benefits and recognition.

    That’s not even true. A marriage license declares absolutely nothing about a couple’s parenting ability. We let all kinds of people marry who do not make ideal parents. There are a lot of factors that influence parenting ability other than “gender diversity.” Opponents of same-sex marriage act as if a) marriage is entirely about children, and b) the most important aspect of parenting is gender diversity. I don’t think most opponents of same-sex marriage actually believe either of these points, but their arguments only make logical sense if you start with those two premises.

    Meanwhile, I find your use of “marriage equality” to be subtly insulting — because the phrase presupposes that your redefinition of marriage is morally superior to the longstanding definition as the union between one man and one women.

    Obviously, I believe my argument is morally superior to your argument, otherwise I wouldn’t be making it. Note that you haven’t actually made an argument for why the phrase “marriage equality” is innaccurate. At most, your argument is that it’s not politically correct.

    But marriage equality is an accurate term: recognizing same-sex marriage would make America more equal, as David Blankenhorn acknowledged back when he was an opponent of marriage equality.

    I take issue with some of the terms you use in the above sentence, not because they are insensitive or imply things I don’t like, but because I don’t think they are accurate.

    For instance, “redefinition” and “longstanding definition” are faulty terms. Marriage has never had one definition. It certainly hasn’t always been defined as one man and one woman, as any reader of the Bible knows. One could argue that it has been redefined many times just in the last century. A traditional definition of marriage might include polygamy, legal ownership of wives, marital rape, child marriage, and all sorts of factors that I don’t think you want brought back into U.S. marriage law. The definition of marriage we practice currently in the U.S., wherein both partners are legal equals, is fairly new, not at all “longstanding,” and is a big reason why we can even contemplate the idea of same-sex marriage today in the first place.

    The phrase implies that anyone who opposes this radical political campaign is necessarily unethical — similar to the presupposition that those who oppose the idea of “homosexual marriage” are necessarily hateful.

    No, it implies that they hold an unethical position. That doesn’t necessarily make them unethical people.

    Also, your use of the word “radical” is also inaccurate, since the majority of Americans support marriage equality. It is now the moderate position. A radical position would be eliminating opposite-gender marriage and only allowing same-sex marriage. Now that would be disrespect along the lines of the disrespect you have shown your gay neighbors.

    Your points about race were well covered in the discussion between Hector, Anna and I, and I don’t think you’re bringing anything to that conversation. Nor will I engage your points about “post-modernism,” since I think you are making a lot of unwarranted assumptions about my viewpoints.

  43. Chris says:

    Manny:

    Ok, the fact that marriage is the right to procreate is apparently denied not only by radical eugenicsts who want to sterilize unfit people, it is also denied by mainstream eugenicsts who just want to pressure perfectly fit people by saying their marriage doesn’t have a right to procreate, but they do have the same right as same-sex couples to use screened donor sperm, and I suppose it is also denied by people who haven’t really thought about it much. That better?

    No, that’s not better. I don’t think that every other person on earth except for you falls into one of those categories, and that you are the only person on earth who knows the truth. Family Scholars is filled with commenters who have thought a lot about what marriage is. None of them are eugenicists, either radical or “mainstream” (what is a mainstream eugenecist anyway?).

    And none of them have expressed agreement with your viewpoint that marriage is equivalent to the right to procreate. Not. One.

    Doesn’t that tell you something about your position?

  44. THX-1138 says:

    I’ve read some of the amicus briefs on both sides. I wish people would stop blurring nonsense into this debate.

    1. Anti-gay marriage side: Westboro Baptist submitted a brief that mentions religion whilst forgetting / ignoring there’s something called Separation of Church & State.

    2. Pro-gay marriage side: One brief mentions “limits the public’s liability to care for the vulnerable; facilitates the accumulation, management, and transmission of property; and enables individuals to increase productivity through the division of household and other labor.”

    All of which can be achieved without state recognition through a private contract / insurance. Nor did the government take an interest in marriage for those reasons.

  45. THX-1138 says:

    Anna: If other genders cannot be clearly defined, then I agree with Gremlint. The state is under no obligation to recognize these ambiguous definitions. Not to mention it *only* takes two genders to procreate…

  46. Anna Cook says:

    THX,

    My response to you would be to ask why it is important for the nation-state to define gender(s) in the first place. From where I stand, the best thing a government could choose to do would be to recognize the gender definitions of its people no matter what those gender definitions are. Because gender identities will shift over time, but all citizens deserve equal treatment.

    This is an extension of my belief that the most productive thing we can do in inter-personal exchange is to recognize and honor the self-identities of the people whom we interact with, because THEY are in the best position to determine what their Self is composed of.

    Gender policing doesn’t seem to be a productive endeavor to me.

    You conclude:

    Not to mention it *only* takes two genders to procreate…

    I’m not sure how the question of procreation has bearing on the question of gender recognition; the two are separate issues. Gender and procreative potential, while often overlapping, are not synonymous.

  47. Kevin says:

    “One brief mentions “limits the public’s liability to care for the vulnerable; facilitates the accumulation, management, and transmission of property; and enables individuals to increase productivity through the division of household and other labor.”

    All of which can be achieved without state recognition through a private contract / insurance. Nor did the government take an interest in marriage for those reasons.”

    Then ALL reasons for state interest are irrelevant. If the standard is what is possible ONLY through marriage, then there is no reason the state needs to be involved. But marriage, more specifically access to it, does what the above quote claims: facilitate property transfer (just ask Edith Windsor about that one), marriage DOES limit the public’s liability to have to care for a troubled person (because the spouse does, so far as possible), and a division of labor and pooling of resources is facilitated, because marriage creates not just a legal obligation but also a level of trust between the spouses.

    When you look at what the state actually regulates (minimum age, relatedness, not already married) you see that the state doesn’t really have much expectation of marriage. You can get married for any reason, with nearly whomever you want to, whether you want or can have children or not, for as long or as little as you want. It’s mostly comical that people have these strong objections to whom may marry whom, since the state doesn’t much care. Compared to concerns over gender, minimum age, relatedness and “not already married” actually make sense as restrictions!