Legal fictions and redefining terms

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Joe at Evangelical Outpost looks as if he's finally come around to what I and others have been arguing.

I doubt that gays and lesbians could do as much damage to the institution as we heterosexuals have done by allowing "no-fault" divorce.

He thinks a change on this issue will create a legal fiction (though I think it already is that legal fiction, and the legal fiction that it already is basically shouldn't give much reason to oppose at least civil unions). I may not even agree with half of what he's said on this issue, but I think this post raises some issues worth thinking about.

Meanwhile, Geoff Pullum at Language Log points out a fact about language usage that pretty much demonstrates that one way of framing this debate is linguistically naive. You can't just redefine a term with a law or an amendment. A law can't resist a change in language that dictionaries have already documented. Language doesn't work that way, and the French are in the process of learning that doing such things basically ensures that your language will die out. People who think they're debating over what the term 'marriage' in fact means should realize that it does in fact have multiple usages, as any good dictionary will reveal. You can talk about a marriage of minds, which is an extended definition originating as a metaphor. There's the legal usage, which includes whatever civil marriage allows, which varies from location to location. There's the traditional sense of the term, which doesn't allow same-sex marriage, but my use of the term in this very sentence shows that it also has a meaning that extends to same-sex unions as much as for heterosexual unions.

So Christians who want to oppose this can't see it as that. The issue is not over what the term in fact means. It's over whether the civil use of the term in legal documents should reflect the traditional concept of marriage or the more general concept that appears most frequently nowadays.

Now Pullum goes a little further with this than I would. He makes it entirely a civil rights issue, but whether it counts as that assumes one way of describing it, and what seems to me to be an equally good way of describing it allows no such classification. Here's how Pullum describes it:

It's about a denial of rights. The idea is that if you fall in love with a lesbian and want to marry her and live with her forever and share your life and property with her and be with her until you sit by her side at the hospital when she dies, that's O.K., but your rights will be subject to a limitation: you will be permitted all this under the sanction of the institution of marriage if you are male, but denied such permission if you are female. To add an insistence on that point in the constitution would be an act of discrimination, not of definition, so let's call things the way they are.

Here's the alternate way to describe it. The right everyone has in common is to marry someone of the opposite sex. I have that right. A gay man has that right. A lesbian has that right. A heterosexual woman has that right. Now not everyone will succeed at doing this, and not everyone will want to do this. That doesn't mean that people who want to do something other than that should have such a right. (This same issue came up for the gay sodomy case in Texas. See my response to that for more detailed reasoning paralleling this.)

Why should I prefer one to the other? More conservative people on this issue prefer the second way of describing it, and more liberal people prefer the first. According to the first description, preventing someone from marrying whoever they want is discrimination if there are others who aren't prevented from marrying whoever they want, regardless of any difference between the two cases. According to the second description, the difference between the cases is important enough that it doesn't count as discrimination. On any similar case, everyone has the same rights. I'm prevented from marrying a man, just as gay men are. Is that discrimination against me? Of course not, and it's not because I'm not gay and therefore don't want to do it. It's not discrimination against me simply because all relevant people have the same right -- the right to marry someone of the opposite sex -- and lack the same right -- the right to marry someone of the same sex.

Consider the following analogy. I have the right to take money from my bank account. I don't have the right to take money from anyone else's bank account. Now Hubert has the right to take money from his bank account but not from mine. What if Hubert belongs to a group, roughly 10% of the population, that wants to take money only from other people's bank accounts but not their own? We wouldn't allow it. Simply having the desire to do something is not enough reason to think there's a right to do that action. Both actions are taking money from a bank account, but there's an important difference.

Conservatives on this issue are saying that there is such a difference between same-sex marriage and opposite-sex marriage. It's not that one involves something directed at someone else who doesn't want it to happen, as with the bank account case. It does involve something they believe is wrong, and they do think it involves harm, though I would say that it's not a kind of harm that's as easily demonstrable on secular premises. The question that then gets raised is whether one group, with primarily religious motives, can determine that in a government that isn't allowed to set up a state religion. If it's a majority, why not? Determining the moral principles that will guide our country by having religious motives is exactly what the founders did. They believed stealing is wrong for religious reasons. They were in fact legislating morality based on religion. There's no constitutional or moral reason to disallow that. It's less appropriate in a pluralistic context where people will strongly disagree on values, but in a system that's largely democratic that won't happen as easily. That doesn't mean that it's in principle wrong.

So I'm still not saying this should be done. It certainly shouldn't be done as an attempt to say something about the language. If it's done it should be to retain a traditional concept of marriage as the primary one we use for legal purposes. I haven't thought Christians have any strong reason to pursue this over any other issues, but I do think there's nothing in principle wrong with the idea. (I certainly think mayors who forge state documents should be brought up on charges and pursued to the hilt, but that's no reason to think the people on the other side are any better in their hostility to allowing gay people to have legal benefits like providing health insurance to partners who are as committed as husbands and wives are and have children to support.) Whatever you think of what should be done, I think it's going to be very hard to show that the laws as they have been are discriminatory unless your description of the act presupposes something that the other side isn't willing to grant, and it's not something I'd even be willing to grant.

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Jeremy Pierce argues that gay marriage is indeed a cause of the decline and failure of marriage as we now know it. Citing the kind of bastardy stats usually hurled at our own Negro population attacks Andrew Sullivan's dismissal of... Read More


"They were in fact legislating morality based on religion. There's no constitutional or moral reason to disallow that."

True, but there are very pragmatic reasons to disallow this--namely this commonly results in poorly made laws.

In a country where there is a purported separation of church and state, for the sake of consistency laws should be based not on religion or morality, but on the values of safety, liberty and stability of the society. Thus laws that prohibit stealing or murder are passed for the sake of a civil society, not for reasons of morality.

Furthermore, legislating morality based on religion runs into terrible inconsistency right from the get-go. Worshipping Other Gods has a solid claim to the Most Immoral Action. A good candidate for the next Most Immoral Action is the failure to care for the helpless in society (c.f. Ez 16 and the Sin of Sodom). Yet neither is prohibited by law and in fact the first is explicitly allowed by the Bill of Rights.

Sure homosexual marriage is wrong (or even Immoral with a capital "I"), but is it any more wrong (Immoral!) than worshipping false Gods? If not, then why should there be legislation against the former and not the latter (more serious offence)?

I think this is a good reason not to do it. That doesn't mean it's a good reason to make it illegal to do it, which is what some of the separation of church and state people want to do. For that reason I'm not about to do it, and I'm not encouraging the people who get all bent out of shape because a secular government is being secular. I think it's equally bad to prevent someone from getting in front of Congress and saying that abortion is wrong on religious grounds and urging Congress to ban it. That's allowed by the first amendment, and those representatives and senators who choose to vote on it according to those reasons should be welcome to do so. You've given a good reason for them not to do it, but it's not a reason to disallow their doing it.

Also, the inconsistency you point out isn't an inconsistency on its own. It's an inconsistency with the purpose of the founders to have a government that doesn't set up its own religion (which makes eminent sense given that Christianity explicitly separates itself from any political alliance, making strange any attempt to unite Christianity with a legal authority as the Roman Catholic Empire did for many years and as the Pilgrims and Puritans tried to do in Massachusetts). In a theocracy like ancient Israel, however, one tracing itself out to divine authority (as the Roman Catholic Empire and the Pilgrims/Puritans couldn't do) legislating against either thing would have been fine.

I think there's a lot more room for discussion on a Christian position on the consequences of gay marriage.

1) Divorce exists because God ordained it. (Mat 19:3-9)

"Why then," they asked, "did Moses command that a man give his wife a certificate of divorce and send her away?" Jesus replied, "Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning. (Matthew 19:7-8)

2) To argue that the presence of divorce in heterosexual marriage is a justification for the presence of gay marriage is a logical fallacy of mind-numbing proportions. Here is some empirical evidence on the effects of gay marriage. Also, see:

February 02, 2004, 9:17 a.m.
Slipping Toward Scandinavia
Contra Andrew Sullivan.

In "The End of Marriage in Scandinavia," I show that gay marriage has helped hasten the decline of marriage. Andrew Sullivan dismisses my argument, claiming I fail to show causality, and draw impermissible inferences about gay marriage from Scandinavian registered partnerships. Trouble is, when Sullivan thought he could prove that marriage is not undermined by registered partnerships, he was happy to argue causality, and eager to equate registered partnerships with gay marriage. Now that we see that Scandinavian marriage is in a state of collapse, Sullivan pretends that Scandinavia has no relevance to the gay-marriage debate. In the meantime, Sullivan ignores one of the key points of my piece — that Scandinavian gays themselves have rejected the "conservative case" for gay marriage. To see why Sullivan is wrong, let's take a look at marriage in Norway.

Consider "Church flies gay flag," a story from the English-language edition of Aftenposten, Norway's premiere newspaper. Two parish councils in northern Norway recently voted to fly rainbow flags on their churches. The flags signal that no one in these churches — priests included — may speak or preach against homosexual behavior. The flags also welcome gay clergy, including those who live in "registered partnerships" (i.e. de facto gay marriage).
Obviously, in the county of Nordland, where these two parishes are located, gay marriage has achieved a high degree of acceptance. After all, the Lutheran church has long led the opposition to gay marriage in Norway. One of the few things distinguishing same-sex registered partnerships from marriage is that they cannot be celebrated in the Norwegian state church. And the ordination of clergy in registered gay partnerships is the most divisive question in the church. So when two parishes in the same county fly the rainbow flag to welcome partnered gay clergy, gay marriage has obviously achieved an extraordinary degree of popular acceptance.
That acceptance isn't total. Many are unhappy with the flags — and the silencing of conservative congregants and priests that the flags symbolize. And as the original news accounts make clear, these parish councils are acting in defiance of their bishop. Clearly, though, Nordland is a socially liberal county in which gay marriage has achieved a high degree of acceptance. So what's the state of marriage in Nordland?

Marriage in Nordland is in severe decline. In 2002, an extraordinary 82.27 percent of first-born children in Nordland were born out-of-wedlock. A "mere" 67.29 percent of all children born in Nordland in 2002 were born out-of-wedlock. As I explained in "The End of Marriage in Scandinavia," many of these births are to unmarried, but cohabiting, couples. Yet cohabiting couples in Scandinavia break up at two to three times the rate of married couples. Since the Norwegian tendency to marry after the second child is gradually giving way, it is likely that the 67-percent figure for all out-of-wedlock births will someday catch up to the 82-percent figure for first-born out-of-wedlock births. At that point, marriage in Nordland will be effectively dead.
Now consider the county of Nord-Troendelag, which is bordered by NTNU (Norwegian University of Science and Technology). NTNU is where Kari Moxnes and Kari Melby teach — two radical pro-gay marriage social scientists. Nord-Troendelag is like Massachusetts — a socially liberal state influenced by left-leaning institutions of higher learning. In Nord-Troendelag in 2002, the out-of-wedlock birthrate for first-born children was 83.27 percent. The out-of-wedlock birthrate for all children was 66.85 percent. These rates are far higher than the rates for Norway as a whole.

When we look at Nordland and Nord-Troendelag — the Vermont and Massachusetts of Norway — we are peering as far as we can into the future of marriage in a world where gay marriage is almost totally accepted. What we see is a place where marriage itself has almost totally disappeared.

The story of the rainbow flag in Nordland embodies one of the causal mechanisms I outlined in "The End of Marriage in Scandinavia." There I showed that gay marriage had split the Norwegian church and weakened the position of those clergy most likely to speak out against the trend toward unmarried parenthood among heterosexuals. In Norway, the clergy most accepting of gay marriage are the clergy least likely to criticize unmarried parenthood. With priests who see homosexuality as sinful effectively banned from churches, their criticisms of out-of-wedlock parenthood will be lost as well. Since traditional religion is one of the strongest barriers to out-of-wedlock births (conservative religious districts in Norway have by far the lowest rates), it's obvious that the flag movement will help remove a key counterforce to the decline of marriage. And it is very unlikely that conservative priests would have been so thoroughly and effectively banned if the issue were only unmarried heterosexual parenthood. It took the question of homosexuality to produce what amounts to a near total purge of conservative clergy from Nordland's churches.

The deeper point is that, contrary to the "conservative case," those who favor gay marriage tend to favor or condone unmarried parenthood. The connection between gay marriage and unmarried parenthood extends to all sectors of Scandinavian society — religious or not. So when professors from NTNU use the example of gay marriage to argue that marriage is unnecessary for parenthood — they have just as much effect on their secular "congregations" as Lutheran clergy have on theirs.

Although Andrew Sullivan has challenged my causal analysis, the causal mechanisms I've described here are of the same type social scientists use to explain trends in marriage. Scholars agree that, when it comes to the out-of-wedlock birthrate, ideas and values are key variables. They establish causal links by noting broad correlations (like the low rate of out-of-wedlock births in religiously conservative districts of Norway), and then connecting those correlations to a cultural analysis. If religious districts have low out-of-wedlock birthrates, and if clergy preach against unmarried parenthood, it's reasonable to conclude that religion contributes to low out-of-wedlock birthrates.

The causal mechanisms I've outlined are of just this sort. One district bans clergy who oppose gay marriage (and these same clergy are the ones who criticize unmarried parenthood). Another district lionizes leftist professors who cite gay unions to prove that marriage has no intrinsic connection to parenthood. If both districts have high out-of-wedlock birthrates, it's reasonable to conclude that gay marriage contributes to those rates. Andrew Sullivan can reject that sort of analysis if he likes, but why does he accept the idea that secularism has an influence on marriage? The causal mechanism in the case of secularism is no different in kind than the mechanism I use in my own analysis. The truth is, Sullivan doesn't object to the causal analysis. He objects to what I've found.

Sullivan says there are too many independent variables to separate out gay marriage as a cause of marital decline. I've just explained how gay marriage can be separated out as a cause. But think about what Sullivan is saying. Sullivan is really saying he'll never accept any claim that gay marriage harms marriage. If the mere existence of prior causes of marital decline makes it impossible to isolate new factors, then the offer of state-by-state "experiments" in gay marriage is bogus. No matter how bad things get — and no matter how clearly we show a cultural connection between attitudes toward gay marriage and marital decline — Sullivan will deny that gay marriage makes any contribution to the problem.

Of course, when Sullivan thought he had statistical proof that heterosexual marriage was doing well in post-gay marriage Scandinavia, he was eager to play social scientist. Take a look at "Unveiled," the piece where Sullivan relies on an unpublished study by a kid barely out of college to prove his "conservative case" for gay marriage. When Sullivan thought he had proof that heterosexual marriage was not undermined by gay marriage, he was more than happy to tout the Scandinavian example. If it's really impossible to disentangle the gay-marriage variable, why did Sullivan introduce data in the first place?

But now, after I've exploded his use of the Spedale study, Sullivan claims that Scandinavian registered partnerships "have no relevance" to the gay marriage debate. Sullivan sure thought registered partnerships had relevance to gay marriage in 2001. But after having seen the collapse of marriage in Scandinavia, Sullivan says registered partnerships "have no relevance" to marriage.

As for Sullivan's complaint about my use of the terms "de facto gay marriage" or "gay marriage" for Scandinavian registered partnerships, I've simply adopted Sullivan's own language. In "Unveiled," Sullivan himself calls registered partnerships "de facto gay marriage" and "gay marriage." And by the way, in "Unveiled," Sullivan used data on Vermont's civil unions to draw conclusions about "gay marriage." Yet now Sullivan is attacking me for doing exactly what he did three years ago.

Sullivan is wrong to say that Scandinavian registered partnerships are open to heterosexuals. They're not. Sullivan wants to claim that registered partnerships are a "marriage lite" that attracts large numbers of heterosexuals and thus weaken conventional marriage. This is how Sullivan wants to explain the decline of Scandinavian marriage. But Scandinavian heterosexuals do not enter into registered partnerships, so Sullivan's way of explaining the decline of marriage in Scandinavia is wrong. (I see Sullivan has now corrected his error. But he's avoided acknowledging that his mistake sinks his explanation for the link between gay marriage and the decline of marriage in Scandinavia.)

While we're at it, where is Sullivan's causal warrant for the "conservative case" for gay marriage? How can Sullivan proclaim with such confidence that gay marriage will strengthen marriage when (according to his new position, anyway) formal gay marriage has existed only for a couple of years in the Netherlands, and no other evidence has any bearing on the question? If Sullivan is such an empiricist, why doesn't he express more uncertainty about the effects of gay marriage? Given the fact that marriage is fast disappearing in the very places most hospitable to gay marriage, you'd think Sullivan might at least consider the possibility that his totally ungrounded predictions about the future are wrong.

And note that "The End of Marriage in Scandinavia" refutes the "conservative case" for gay marriage on several matters that have nothing to do with the causal question. Scandinavian gays have not taken to monogamous marriage, and they openly reject the "conservative case" for gay marriage. Sullivan says nothing in response to these points.

The mechanism by which gay marriage undermines marriage is easy to grasp. We see it at work in Sullivan's own writings — including his reply to me. Sullivan claims that "coupling — not procreation — is what civil marriage now is." That is false. Just because we can find cases in which infertile couples marry, Sullivan thinks he's proven that marriage has nothing to do with parenthood. But marriage and parenthood are still deeply linked. That is why Scandinavia's practice of unmarried parenthood shocks us.

Scholars treat the connection between marriage and parenthood as something that erodes gradually. That is why Sullivan is mistaken to say that American marriage is about coupling, not procreation. The connection between American marriage and parenting may have diminished, but it is far from gone — as is quickly revealed by the European comparison.

But every time Andrew Sullivan claims that marriage is about coupling, not procreation, he helps weaken the connection between marriage and parenting in America. The gay-marriage debate is eroding the cultural connection between marriage and parenthood. Despite all the changes in marriage since the Sixties, Americans have a long way to go before marriage and parenthood are decoupled to the degree that they are now in Nordland and Nord-Troendelag. There is more than enough scope for a new factor to intervene and heighten that separation. This is exactly what gay marriage has done in Scandinavia — and is doing right now in America, especially through the work of Andrew Sullivan.

I don't mean to deny Sullivan the right to advocate for gay marriage. He has every right. But the fact is, Andrew Sullivan himself is the causal mechanism by which gay marriage undermines marriage. His persistent belittling of the connection between marriage and parenthood and his attempts to elevate infertile exceptions into the rule for a transformed understanding of marriage are laying the cultural groundwork for a Scandinavian-style disappearance of marriage in the United States.

I end with three questions for Andrew Sullivan. 1) Is it mere coincidence that in districts of Norway where de facto gay marriage (your phrase) is most accepted, marriage itself is virtually dead? 2) If this is not pure coincidence, how would you explain the connection? (Remember, your marriage-lite theory doesn't work.) 3) Would it be possible for gay marriage to be an effect of the decline of marriage, without also becoming a contributing cause?

1. I'm not sure why Jesus' saying that God permitted divorce as a concession means that God ordained it.

2. To argue that the presence of divorce in heterosexual marriage is a justification for the presence of gay marriage is a logical fallacy of mind-numbing proportions.

I agree. Can you give me an example of someone who has committed this particular fallacy? The only argument I've seen in this ballpark is a criticism of Christians who are willing to focus on one sin that they and those close to them aren't even tempted to commit while ignoring a sin that they or those close to them are much more prone to commit. That doesn't constitute an argument for gay marriage, and I've never seen anyone present it as one.

Most of what you posted has to do with the arguments of someone else who isn't in the discussion at hand, addressing particular comments by someone else that no one here has endorsed.

Still, I'll address the bulk of your comments briefly. I think your general point isn't established. You're saying that drastic consequences will result from same-sex marriage that wouldn't otherwise result at all, when it seems likely that most of the things you're talking about would be a result of general liberal attitudes toward sex, which are already the dominant view in the United States.

I think it's quite obvious that marriage's downfall is the precursor and in fact the cause of the openness toward same-sex marriage and not the reverse, in both Norway and the United States. It makes sense that people will be more open to gay marriage in a place where they're less concerned about traditional marriage anyway. As for the loss of conservative priests in liberal churches, I'm not sure how that's going to be avoided one way or the other. There's a whole slide into a direction going on here, and resisting at one small point by encoding it into law until someone gets around to removing it sooner or later is a mere road bump in the process. All these things you're listing as effects of gay marriage are really just more of that same slide in the same direction.

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