Homosexual marriages and adoptions
In a paper posted online I explore the constitutionality of laws banning homosexual adoptions (pdf). Ed Brayton has posted his reaction and additional thoughts here.
The constitutional discussion touches on many issues addressed in a recent decision by the New York Court of Appeals (NY’s highest court), which denied a state constitutional right to same sex marriage. Jason Kuznicki responds to the decision by taking issue with the court’s portrayal of the right test by stating:
“the New York Court of Appeals seems to have misconstrued the rational basis test by declaring that government goals must be ‘rational’ rather than ‘legitimate.’”
I believe Jason’s understanding of the rational basis test is a bit off. The rational basis review does not provide courts a license to judge “the wisdom, fairness, or logic of legislative choices.” (Federal Commun. Comm’n v. Beach Commun.) Under this test the legislature is given the benefit of the doubt and a strong presumption of validity so long as there is a “reasonably conceivable” situation that would constitute a rational basis for a statute. The issue then isn’t whether a law is “legitimate”; rather, the issue is whether the law was rational in the minds of legislators.
To illustrate, in the infamous case of Lawrence v. Texas, the Court took pains to rest its holding on due process grounds because the law would have held up under an Equal Protection rational basis test (Justice O’Connor’s concurrence notably took a different view). Homosexual marriage bans have a rational basis in minds of some legislators, and courts must defer to the legislature and give it the benefit of the doubt. That is why the New York decided (correctly, in my opinion) that it is up to the legislature and political process to enable such marriages.
“Immorality, indeed.”
Maybe I misunderstood - I assumed by your comments that you were pursuing adoption as a gay individual or part of a couple, and the immorality comment had to do with that, rather than any other aspect of your comments. If I misunderstood that, I apologize.
I am indeed pursuing adoption as part of a same-sex couple.
I find it immoral that you characterize my position as “you want what you want, and hang everyone else.” I clearly explained the limits placed on would-be adoptive parents, and, to make me look bad, you brushed right past them. That is dishonest. And it is immoral.
“…and, to make me look bad, you brushed right past them.”
First, I don’t try to make people look bad. If they do, they do so on their own. It works quite well for me and I am no more talented than anyone else.
Second, as far as dishonesty goes, it is dishonest to ignore legitimate morality and push your own version of it onto society and others by brushing past legitimate objections and decrying studies of documented problems a homosexual lifestyle creates for children - sacrificing children’s best interests to serve one’s own needs is selfish.
Third, the issues you raised were addressed earlier in the discussion. I assumed you were attempting to rebut those earlier points and I thought the earlier points spoke quite well for themselves without the need for further rebuttal directed at someone who is clearly not interested in the underlying merits of a discussion but is more focused on “scoring” imaginary points.
I KNEW I was giving this more attention than it deserved, but as my grandmother used to say, “too soon old, too late smart.”
That is all.
it is dishonest to ignore legitimate morality and push your own version of it onto society
This is playground-level argument. I have not been dishonest about my belief that homosexuality is of no serious moral importance. I have openly avowed that the quality, sincerity, and enduring nature of a human love is what matters — rather than the genitalia of the participants. I’ve not lied to anyone about my beliefs.
You, on the other hand, have consistently mischaracterized what I believe. “Hang everyone else,” you write, as though I did not care whether the state acted in the children’s best interest. This is dishonesty of the highest order.
I fail to see how I have brushed past any relevant or legitimate studies regarding gay parenting. I have disagreed with you about the validity of some, and about the relevance of others, but I did not ignore or misrepresent what you wrote.
I have nothing to add here, except to marvel that anyone could carry on about “the best interests of children” and then mention George Rekers in practically the same breath.
Also, I believe there is a sub-clause of Godwin’s Law which states that, in discussions of same-sex marriage, the first person who mentions Paul Cameron loses.
However, I’m more concerned with the proposition that “the state should (not) be declaring that, because they are sub-optimal, certain families should never be recognized or protected.” If you have the chance to prevent damage and harm to a number of children, wouldn’t you take it? And wouldn’t you expect to be called to account if you failed to take such protective measures before the harm was effected?
So why not have the gov’t evaluate all couples and weed out the heterosexual ones that would be bad? Why not prevent single people from becoming parents? We have the chance to prevent damage and harm to a number of children; shouldn’t we take it? Should you be called to account if you don’t?
“I have not been dishonest about my belief that homosexuality is of no serious moral importance.”
The only problem is that your belief is not based on fact. Historically, societal acceptance of homosexuality leads (inevitably) to the destruction of said society. You can on a plane that is headed for Los Angeles and believe in all sincerity that you’re going to New York - what you may believe is irrelevant.
While the old saying that you don’t want to have a battle of wits with an unarmed person doesn’t apply to you, Jason, your positions show that while you are, in fact, armed, you insist on destroying the ground underfoot, to the end that if you win the battle, you ultimately lose what you are fighting for. If that’s your goal, good luck with that.
“”Hang everyone else,” you write, as though I did not care whether the state acted in the children’s best interest. This is dishonesty of the highest order.”
It is no more dishonest than your failure to recognize the ultimate end to your stated goal, which is that regardless of the good character of your relationship, the relationships of others are not.
Further, verbal bullying about the conclusions of researchers whose premises you dispute is no more honest than failing to disclose your own personal bias - it goes to credibility of the witness, and it is a factor in evaluating the strength of the person’s representations.
“So why not have the gov’t evaluate all couples and weed out the heterosexual ones that would be bad? Why not prevent single people from becoming parents? We have the chance to prevent damage and harm to a number of children; shouldn’t we take it? Should you be called to account if you don’t?”
That’s part of the point of David’s comments on community - the government’s job is not to flyspeck each and every couple about their parenting. If individuals who are close to them notice something that poses a danger to children, they need to intervene - and there is a process that should be gone through on how to do that.
As far as single people becoming parents, I’ve already said I think it’s a bad idea. I wouldn’t choose that for any child myself, and it bothers me that some single people (men and women) are so focused on their own lives that they fail to take into account what being a single parent requires to properly care for a child.
One thing at a time, though, for one thing, and for another, just because there are identifiable bad situations that are going on, doesn’t mean it’s a smart, right or appropriate thing to do to exacerbate the problem.
That was my comment above (in case you didn’t figure it out). For some reason, my “remember me” stuff didn’t get saved.
Your claim that Dr. Cochran’s work “argues against (me) –to wit, that gay people aren’t inherently or biologically inclined toward mental disorders, but are so because of social stigmas and discrimination” goes to the conclusion drawn from the data accumulated - not to the validity of the data itself.
The data shows what it shows. Her conclusion is a failed attempt to mitigate the problems with her data, but that’s it. “It’s not that they’re bad people - society made them that way” is a whiner’s conclusion.
“”The problem with that is that legalization of homosexual marriage/ union/whatever you want to call it is bad for society as a whole - just like heterosexual marriage is better for society as a whole.”
You’ve said next to nothing to support this statement.”
Harvard sociologist Pitirim Sorokin found no culture surviving once it ceased to support marriage and monogamy. J.D. Unwin, author of “Sex and Culture” (London: Humphrey Milford: Oxford University Press, 1934), documented the results of his extensive evaluation of every known culture and found that where cultures placed restrictions on sexual activity, they thrived. Once a culture abandoned monogamy in favor of unrestricted sexual behavior, it was doomed.
Unwin’s conclusion: “Any human society is free either to display great energy, or to enjoy sexual freedom; the evidence is that they cannot do both for more than one generation.” See also, J.D. Unwin, Sexual Regulations and Human Behavior (London: Williams & Norgate, 1933).
Backing up to something Jason said, the argument in favor of same-sex marriage because a good same-sex couple would be better than a bad heterosexual couple only compares the worst of one situation (abusive heterosexual parenting) with the best of another (loving same-sex parenting). If we’re going to argue apples and oranges, let’s do that, but let’s be honest about it in the process.
“Historically, societal acceptance of homosexuality leads (inevitably) to the destruction of said society.”
What nonsense. The Greeks practiced and extolled the virtues of pederasty and male beauty throughout their most glorious periods. The same is true of the Roman Empire. Greece and Rome did not fall because of homosexuality. Please retire your 19th century history books to the back shelf and do some real reading on the subject.
“Harvard sociologist Pitirim Sorokin found no culture surviving once it ceased to support marriage and monogamy.”
That was his theory, yes. Unwin makes the same point. Do you see anyone here arguing against marriage and monogamy?
The fact remains that during their most robust periods, both the Greeks and the Romans tolerated pederasty and homosexual behavior, while simultaneously maintaining a firm grip on marriage, heterosexual morality and gender roles.
You’ve cited two sources out of literally thousands of historians who offer numerous theories on the decline of ancient Greece and Rome. Like so many Christian apologists, you’re trying to equate tolerance for homosexuality with collapse of morality and family life.
That fact is, lawyerchik, the ancient Greeks and Romans would probably not approve of gay marriage. Masculinity was an important and highly codified concept. What to their minds constituted a weakening of the state was any sort of feminization of the male parent and warrior.
It’s useless to look to ancient models for the current debate. Would you, for instance, advocate a return to customs which forbade women to work or leave their homes unaccompanied? If you are a single woman above the age of 20, you would be in a vary bad way according to “traditional” values going back “millenia.” What, may I ask, was the role of women in the societies Unwin studied? Assuming from your handle that you are a in fact a lawyer or attorney, yours is an exceptionally privileged position compared to even American culture a scant hundred years ago. So while you benefit from the social advances and liberalized attitudes of the past 30 years, you would deny those benefits to anyone else.
The concept of legal, same-sex marriage is largely unprecedented in human history. Like so many things in America since its inception, it’s a social experiment. We really don’t know what the effects will be, despite attempts to draw parallels with some European countries using disputable methodologies.
Interesting that you should mention Unwin. I did quite a bit of searching and found that this citation and “summary” of his thesis is parroted on dozens of Christian and anti-gay websites. A bit more research reveals some intersting facts. His “notable” book is so rare that the single copy available at Alibris lists for $824.32. Therefore we can assume, as this writer logically does,
http://www.ilv.org.nz/index.php?action=view_journal&journal_id=224
that few people who cite him have actually read him. A search of Amazon.com reveals only two or three references to Unwin, including a book by Pat Buchanan. This article:
http://www.nzarh.org.nz/journal/2004v77n1aut.pdf
goes into more detail about Unwin’s strange and unwarranted authority amongst the anti-gay-marriage crowd.
Here’s a synopisis of the work from a paper about, of all things, Chinese foot binding:
“Argument: Unwin
Ah! Now I must correct myself. The work Lawyerchik cites is actually a 1935 (?) address to the British Psychological Society in which he announced that he was forced to reverse his thesis from his earlier book, “Sex and Culture.”
“The evidence was such as to demand a complete revision of my personal philosophy; for the relationship between the factors seemed to be so close, that, if we know what sexual regulations a society has adopted, we can prophesy accurately the pattern of its cultural behavior…
“Now it is an extraordinary fact that in the past sexual opportunity has only been reduced to a minimum by the fortuitous adoption of an institution I call absolute monogamy. This type of marriage has been adopted by different societies, in different places, and at different times. Thousands of years and thousands of miles separate the events; and there is no apparent connection between them. In human records, there is no case of an absolutely monogamous society failing to display great [cultural] energy. I do not know of a case on which great energy has been displayed by a society that has not been absolutely monogamous…
“If, during or just after a period of [cultural] expansion, a society modifies its sexual regulations, and a new generation is born into a less rigorous [monogamous] tradition, its energy decreases… If it comes into contact with a more vigorous society, it is deprived of its sovereignty, and possibly conquered in its turn.
“It seems to follow that we can make a society behave in any manner we like if we are permitted to give it such sexual regulations as will produce the behavior we desire. The results should begin to emerge in the third generation.”
It’s worth noting again that not a single reference to the work of this “notable anthropologist” turns up anywhere else that I can find, save the parrotted references on Christian web sites. I wonder who troubled to dig up this obscure fellow’s pronouncement. I wonder what the story his behind his abrupt “revision.” And I wonder what Unwin thought of the great polyandrous Islamic empires who rescued Aristotle from oblivion and gave us so many advances in science and philosophy…
Sorry to go on, but it’s kind of interesting. Unwin’s address apprently was dug up and privately reprinted by one Frank M. Darrow, in 1969. This republication is cited in books by James Dobson and Timothy Dailey. Darrow apparently wrote a series of self-published pamphlets on various social issues, including “Sex Ethics and Survival.” I cannot find any other reference to him or his work. Why Unwin is such an “authority” is beyond me.
…and now I see that Lawyerchik cites *both* of Unwin’s works, the earlier and the later, so she’ll have to reconcile that for us. That’s all, I’ll stop now.
Am I the only one who finds the whole thing about “societies that tolerate homosexuals will tend to suffer” reminiscent of antisemitism? And what, may I ask, are you going to do with us? It’s not like we’re going to disappear.
Now, as to your latest assertions about monogamy and homosexuality, nt only is Grover correct about ancient Greece and Rome, but Islamic civilization flourished while allowing polygamy, so it’s kind of ridiculous to say that only monogamous societies succeed. (Even given that, I’m all in favor of monogamy, and I think society would be better off if it were more monogamous. Just if you’re going to settle down with one person, it should really be someone you can sincerely love, whatever gender they may end up being.)
As to the research you have mentioned, I can’t say I’ve read it. But that Grover and I could think of a couple of very serious counterexamples right off the top of our heads suggests that it wouldn’t be worth my time.
Doing a little more searching, I found that Philip Yancy called attention to Unwin’s “Sex and Culture” in a 1994 article in Christianity Today called “The Lost Sex Study.” It’s now a bit clearer to me that Unwin’s speech referred to his interest in Freud’s theories about sexual freedom and society, which prompted his study and the resulting book, which in turn caused him to revise his thinking about the issue.
At any rate, I find nothing extraordinary about Sorokin’s and Unwin’s theories about monogamy and the regulation of sexual behavior outside of marriage. Having read Will Durant, I’m very familiar with this theme. What puzzles me is how this gets twisted into a condemnation of gay marriage and homosexuality in general. It is unclear to me whether Sorokin ever wrote specifically about homosexuality. The work most widely referred to was written in the mid-1950’s. But here’s a typical statement from an article quoting Sorokin:
“The words homosexual and marriage are inherently contradictory. The very fact that these terms are in public conflict demonstrates the radical character of the social revolutionaries that now demand the legalization of homosexual marriage.”
I do not understand how this can be so. Do homosexuals break up marriages? Are straight men and women lured away from marriage by the irresistible charms of “the gay life”? By condoning homosexual behavior are we going to create *more* homosexuals? (I assume that’s the real fear.) No, it seems clear that, somehow, it just *is*. Again, I look in vain for some kind of rational or statistical proof to the effect that homosexual behavior interferes with heterosexual marriage–beyond the vague “feeling” that recognizing gay couples leads to a “destruction” of public morality.
Are straight men and women lured away from marriage by the irresistible charms of “the gay life”?
Paul Cameron said as much at one time. He likened gay sex to heroin, saying that it was just intrinsically more arousing than straight sex.
Which caused a lot of snickering over on my side of the fence.
What’s interesting to me is that institutional pederasty, as practiced in ancient Greece and older Islamic cultures, is associated with highly-regulated relations between the sexes, such as the delaying of marriage for men of certain classes and the seclusion of women in these same classes. Since marriage is, in fact, nowhere near as highly regulated as it was in older cultures, and women in the West are no longer isolated and hidden away, there is no longer a need for such “outlets.” There’s really no comparison between the gay marriage issue and the promotion and institutionalization of pederasty. Such equivalencies don’t really help us understand the issues involved. And America has *never* regulated marriage to the extent dictated by older cultures.
Who’s to say Freud wasn’t right after all, in arguing that sexual liberation is the key to success? It wouldn’t surprise me if, as I have seen suggested, Unwin’s research was colored by the prejudices of his day. The fact is, at present, anyway, that America has come out on top in the superpower wars, and we are still the dominant military and economic force in the world. If we lose our influence and power, I strongly doubt it will be due to our views on marriage. But I could be wrong.