Gay marriage opponents' strategy uncertain in 2015

[Alcon]

For the bolded: Basically, any opposite sex couple, poor or rich, short or tall, is more beneficial to the state interest in procreation than the same sex couple, because the opposite sex couple can typically self-procreate and the same sex couple typically cannot. No one decides to not have a child based on how tall they or their spouse is, and lack of wealth isn't great at stopping people either. This means that all opposite sex couples are roughly equally beneficial to the state interest in procreation, and therefore no reduction of recognition for disadvantaged opposite sex couples can be justified.

I'm arguing #3 from your list.

So you're arguing that the state's only interest in marriage is in incentivizing procreation, and even if marital recognition would be a net-positive for other reasons, that's insufficient to justify granting marital rights to those who can't procreate?  

You're also arguing that the incentive should exist to encourage procreation, even if procreation results in sub-optimal results for the child?  (That is, you want to increase the quantity of procreation, irrespective of the quality?)

Finally, if it were administratively possible, would you support excluding infertile couples, and those who elect to not have children, from marrying?  For instance, if two 70-year-old widowerer grandparents wanted to get married, you'd be against issuing them a license?

[Torie]

Wulfric, the only secular argument argument against SSM that you have that makes much sense, if supported by the data, would be if the data demonstrated that SSM will reduce the percentage of heterosexual couples that get married, because if gays are allowed to get married, heteros will find the marriage currency degraded, and just not go there. Good luck with that, but that is all you have. The idea that this planet needs more people, and thus procreation should be encouraged, is highly problematical, and given that the US is currently at about stasis when it comes to fertility rates (and that assumes no more net immigration, which itself is not data supported), means that even if one just focuses on the US alone, and does not care about the planet, the US is not in danger of going the way of Europe or Japan (too many olds and not enough youngs to make the transfer payments to the non-working olds), unless it pushes the procreation accelerator. Just this one old dissected lawyer's opinion.

All of the above ignores the morality of treating gays as second class citizens, even if there were some modest negative ancillary consequences, but I digress.

[CountryClassSF]

Are polygamists second class citizens? I'd say the best secular argument is "because we can."  If SSM were a guaranteed constitutional right, they'd be being practiced since the constitution was formed

[Maxwell]

Why should polygamy be illegal though?

[CountryClassSF]

Why should polygamy be illegal though?

Your argument is consistent - but if "some" marriages are protected by the constitution and "some" aren't, based on "Feelings" -- that's a problem. And the left cannot answer that question. The courts won't either. They'll create a new law.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

For the bolded: Basically, any opposite sex couple, poor or rich, short or tall, is more beneficial to the state interest in procreation than the same sex couple, because the opposite sex couple can typically self-procreate and the same sex couple typically cannot. No one decides to not have a child based on how tall they or their spouse is, and lack of wealth isn't great at stopping people either. This means that all opposite sex couples are roughly equally beneficial to the state interest in procreation, and therefore no reduction of recognition for disadvantaged opposite sex couples can be justified.

I'm arguing #3 from your list.

So you're arguing that the state's only interest in marriage is in incentivizing procreation, and even if marital recognition would be a net-positive for other reasons, that's insufficient to justify granting marital rights to those who can't procreate?1 

You're also arguing that the incentive should exist to encourage procreation, even if procreation results in sub-optimal results for the child?  (That is, you want to increase the quantity of procreation, irrespective of the quality?)2

Finally, if it were administratively possible, would you support excluding infertile couples, and those who elect to not have children, from marrying?  For instance, if two 70-year-old widowerer grandparents wanted to get married, you'd be against issuing them a license?3

1. Yes

2. Reducing benefits for short couples, poor couples, etc. is not just completely throwing quantity out the door for the purpose of quality, it also ignores the possibility that the child will end up doing well in life despite a disadvantaging environment. Furthermore, this gets into endless, unresolvable debates about "how short is short?", "how poor is poor?". The best and simplest policy here is to respect tradition and not reduce benefits for disadvantaged opposite sex couples.

3. In a fictional world where we could know whether someone is infertile or unwilling to have children through records that the government has prior to one requesting a marriage license, then I would be O.K. with denying them a license. But, that's not the world we live in. Unless they are infertile due to age, it is impossible to tell whether they are infertile or unwilling to have children without forcing them to release those private decisions and medical conditions to state government, which I believe would violate privacy rights if made a requirement for marriage. So, we cannot avoid giving marriage licenses to most infertile opposite sex couples. In the special case of a couple being infertile due to age, it is acceptable to deny them a license. But it's not something I really care about, and I would be fine with either option - allowing or denying marriage licenses to old, infertile couples. It's not unconstitutional to give infertile people licenses but not gay couples, as rational basis review, which is what SSM prohibition should be judged under, allows for an imperfect fit as long as the policy still has a rational reason for existing, which in this case is to promote the government's interest in procreation.

[SteveRogers]

For the bolded: Basically, any opposite sex couple, poor or rich, short or tall, is more beneficial to the state interest in procreation than the same sex couple, because the opposite sex couple can typically self-procreate and the same sex couple typically cannot. No one decides to not have a child based on how tall they or their spouse is, and lack of wealth isn't great at stopping people either. This means that all opposite sex couples are roughly equally beneficial to the state interest in procreation, and therefore no reduction of recognition for disadvantaged opposite sex couples can be justified.

I'm arguing #3 from your list.

So you're arguing that the state's only interest in marriage is in incentivizing procreation, and even if marital recognition would be a net-positive for other reasons, that's insufficient to justify granting marital rights to those who can't procreate?1 

You're also arguing that the incentive should exist to encourage procreation, even if procreation results in sub-optimal results for the child?  (That is, you want to increase the quantity of procreation, irrespective of the quality?)2

Finally, if it were administratively possible, would you support excluding infertile couples, and those who elect to not have children, from marrying?  For instance, if two 70-year-old widowerer grandparents wanted to get married, you'd be against issuing them a license?3

1. Yes

2. Reducing benefits for short couples, poor couples, etc. is not just completely throwing quantity out the door for the purpose of quality, it also ignores the possibility that the child will end up doing well in life despite a disadvantaging environment. Furthermore, this gets into endless, unresolvable debates about "how short is short?", "how poor is poor?". The best and simplest policy here is to respect tradition and not reduce benefits for disadvantaged opposite sex couples.

3. In a fictional world where we could know whether someone is infertile or unwilling to have children through records that the government has prior to one requesting a marriage license, then I would be O.K. with denying them a license. But, that's not the world we live in. Unless they are infertile due to age, it is impossible to tell whether they are infertile or unwilling to have children without forcing them to release those private decisions and medical conditions to state government, which I believe would violate privacy rights if made a requirement for marriage. So, we cannot avoid giving marriage licenses to most infertile opposite sex couples. In the special case of a couple being infertile due to age, it is acceptable to deny them a license. But it's not something I really care about, and I would be fine with either option - allowing or denying marriage licenses to old, infertile couples. It's not unconstitutional to give infertile people licenses but not gay couples, as rational basis review, which is what SSM prohibition should be judged under, allows for an imperfect fit as long as the policy still has a rational reason for existing, which in this case is to promote the government's interest in procreation.

Why should discrimination on the basis of sexual orientation be subject to rational basis review?

[Torie]

Why should polygamy be illegal though?

Your argument is consistent - but if "some" marriages are protected by the constitution and "some" aren't, based on "Feelings" -- that's a problem. And the left cannot answer that question. The courts won't either. They'll create a new law.

More slippery slope BS. I am not going to bother even answering the policy distinctions between polygamy and gay marriages. Let someone else do that. The differences are huge.

[CountryClassSF]

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The only difference is there are more people who choose to enter into a gay relationship than in a polygamist relationship. The problem is, if you're going to declare marriage between two people a right, you're re-writing the constitution. It's either a right or it isn't.

This should not be imposed on America in this fashion.

[Torie]

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The only difference is there are more people who choose to enter into a gay relationship than in a polygamist relationship. The problem is, if you're going to declare marriage between two people a right, you're re-writing the constitution. It's either a right or it isn't.

This should not be imposed on America in this fashion.

Wrong. Not even close as to the poly versus homo distinction. You do have a legitimate argument about judicial fiat versus ballot box reform to treat gays like human beings, rather than to be shunned and degraded, but at this point it's close to moot. Gay rights will be secured either way. Deal with it.

[SteveRogers]

The only difference is there are more people who choose to enter into a gay relationship than in a polygamist relationship.

There are several differences, but for starters, no one is biologically predisposed towards a polygamous relationship while you yourself admit that being gay isn't a choice. You're supposed to be gay, remember?

[CountryClassSF]

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I'm all for us being treated like human beings. I'm not for a gestapo to try to force an agenda onto the country and redefine a historic institution because of people's "Feelings."

Not being able to marry someone of the same-sex is equal to being non-human? Seriously?

[Alcon]

1. Yes

You're admitting that you're willing to forgo other positive outcomes, simply because you've arbitrarily chosen one sort of outcome (reproduction quantity) to focus on.  Why?  It's not even like gay marriage would harm that outcome.  If anything, it would help it, since some gay parents choose to have children by surrogates.

You're arbitrarily choosing one positive outcome to incentivize, and then arbitrarily choosing a threshold at which to incentivize it.  (1) Why the hell is procreation quantity the only outcome you care about in recognizing marriages?  (2) And, since apparently a net increase of procreation (which surely happens with gay marriages) isn't sufficient, how do you know the threshold that is sufficient to justify the incentive?

2. Reducing benefits for short couples, poor couples, etc. is not just completely throwing quantity out the door for the purpose of quality, it also ignores the possibility that the child will end up doing well in life despite a disadvantaging environment. Furthermore, this gets into endless, unresolvable debates about "how short is short?", "how poor is poor?". The best and simplest policy here is to respect tradition and not reduce benefits for disadvantaged opposite sex couples.

That wasn't the point of the question.  Let me explain:

As I demonstrated above, you do not think that a net-benefit is sufficient to incentivize something.  Your argument is hazy about what is sufficient to incentivize something.  Earlier, you kind of implied that gay marriage shouldn't be incentivized even if it increases procreation, because gay unions have an "inferior" outcome (less procreation).  I took that to mean you opposed gay marriage because of this "inferior" outcome.

At the time, I didn't realize that procreation was the only outcome you cared about.  That's why I applied your argument to an outcome I assumed you cared about -- the child's well-being -- to demonstrate why it's ridiculous to only incentivize something if the expected outcome is maximally "superior."  Understand what I mean?  If you did care about the child's well-being, and only support marital recognition when the child's well-being outcome was maximal, you'd be forced to oppose marital recognition in situations where the child's expected well-being isn't maximal.  That would include situations where the child's parents were short or non-white or poor.

But, since I now know that procreation quantity is the only outcome you're considering, that analogy isn't on-point anymore.  I could construct a similar analogy that involved maximal reproduction (no marriage licenses for non-Catholics? ), but before I do that, I think you should answer question #2 above.  It will clear up whether your standard is "maximal reproduction" or some lower threshold.

3. In a fictional world where we could know whether someone is infertile or unwilling to have children through records that the government has prior to one requesting a marriage license, then I would be O.K. with denying them a license. But, that's not the world we live in. Unless they are infertile due to age, it is impossible to tell whether they are infertile or unwilling to have children without forcing them to release those private decisions and medical conditions to state government, which I believe would violate privacy rights if made a requirement for marriage. So, we cannot avoid giving marriage licenses to most infertile opposite sex couples.

This isn't correct, considering that blood tests are still a requirement for marriage in several states.  Also, this is a thought exercise.  I'm not asking if you think it's Constitutional; I'm asking if you think it would be reasonable.

In the special case of a couple being infertile due to age, it is acceptable to deny them a license. But it's not something I really care about, and I would be fine with either option - allowing or denying marriage licenses to old, infertile couples. It's not unconstitutional to give infertile people licenses but not gay couples, as rational basis review, which is what SSM prohibition should be judged under, allows for an imperfect fit as long as the policy still has a rational reason for existing, which in this case is to promote the government's interest in procreation.

Again, this is not a Constitutional question; this is an ethical question.  There are plenty of things that have been ruled Constitutional that are bad, stupid policies.  The question is why you think this "imperfect fit" is acceptable, but including same-sex couples is not.  If it boils down to "I support excluding infertile couples, but I wouldn't bother advocating for it," well, OK, that's consistent.  

However, consistency doesn't matter much when your fundamental premise doesn't make sense -- which, again, brings us back to questions 1 & 2 above.

[True Federalist (진정한 연방 주의자)]

Why should polygamy be illegal though?

As practiced, polygamy is patriarchal polygyny in which the females are deprived of basic human rights.  Granted, traditional marriage was once the same, but it was the change in civil marriage to being a marriage of two equals that led to the eventual recognition of SSM by the state. Conceivably, I could see non-traditional polygamy in which all involved are equal someday receiving state recognition, but there's no demand for that.

[CountryClassSF]

I am not sure why many supporters of SSM can't support SSM, or legalize SSM, without having it be declared a constitutionally guaranteed right. 

[7,052,770]

Why should polygamy be illegal though?

As long as all members are consenting (and actually consenting, not forced to by some borderline cult), it shouldn't be.

In fact, it really does need to be legal, because there have been cases in Utah where the husband was only legally married to wife #1, and the husband dies, and then, contrary to the husband's wishes, takes everything and leaves the other wives homeless on the streets because she's the only one with the legal rights. If plural marriages were recognized by the government, this wouldn't be possible.

You could still keep marriages at 2 people, just let people have multiple legal marriages at once, with a mandatory disclosure of any other marriages. That would actually better differentiate Mormon-style plural marriage where the husband is married to all of the wives, but the wives aren't married to each other, from polyamorous marriages where all of the partners in a relationship with each other.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

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1. Look, at the end of the day, the state doesn't have any control over how much people actually love their spouses or how well they raise their children. Yes, the latter may be somewhat determined by environmental factors, but there's also tons of personal choice on the part of the parent as well. At the end of the day, the only thing the state can really do is incentivize people to enter into the unity of marriage. And again, the clear dominating benefit to the state - and the one that it is most likely to get - is procreation. Gay marriage shouldn't be fully incentivized even if it increases procreation, because gay unions have an inferior outcome (less procreation than an opposite sex couple essentially all of the time).

2. I'm not applying a threshold here. I'm simply advocating for what governments often do - give (full) support what most advances its interest, and not give (full) support to what doesn't advance its interest anywhere near as much.  And opposite sex couples are obviously far more beneficial to the government's interest in procreation than same sex couples are.
 

[Alcon]

At the end of the day, the only thing the state can really do is incentivize people to enter into the unity of marriage. And again, the clear dominating benefit to the state - and the one that it is most likely to get - is procreation. Gay marriage shouldn't be fully incentivized even if it increases procreation, because gay unions have an inferior outcome (less procreation than an opposite sex couple essentially all of the time).

OK, cool, this is getting us a lot closer.

Your argument is that the "clear dominating benefit to the state" is procreation.  Maybe this is so (although why is the state's interest in procreation so "dominant"?) but you seem to be forgoing any other possible benefits simply to focus on the "dominating" benefit.  Why?  Isn't it a question of net-benefits, not maximal benefits?  In other words, why is it insufficient to provide benefits greater than the cost of the incentive -- why does it have to be the maximal benefit?

If you're going to argue that incentives should only apply to situations that maximize the "dominant" benefit, and no others, no matter how large the net-benefit of the incentive, you should be aware that your own premise is going to lead you to some incredibly ridiculous places.  Do I misunderstand your argument?

2. I'm not applying a threshold here. I'm simply advocating for what governments often do - give (full) support what most advances its interest, and not give (full) support to what doesn't advance its interest anywhere near as much.

And opposite sex couples are obviously far more beneficial to the government's interest in procreation than same sex couples are.

I was counting "most" as a threshold, even if it's a relative one.  

So, I gather that you're arguing that, in cases where there is a net-benefit, but it's not a maximal benefit, you should automatically give some lesser incentive, correct?  If so...why?  I see no logical argument for that.

I'm really not trying to beat up on you, but are you sure this isn't an argument you decided sounded reasonable enough, and then never intensely scrutinized?

[SteveRogers]

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1. Look, at the end of the day, the state doesn't have any control over how much people actually love their spouses or how well they raise their children. Yes, the latter may be somewhat determined by environmental factors, but there's also tons of personal choice on the part of the parent as well. At the end of the day, the only thing the state can really do is incentivize people to enter into the unity of marriage. And again, the clear dominating benefit to the state - and the one that it is most likely to get - is procreation. Gay marriage shouldn't be fully incentivized even if it increases procreation, because gay unions have an inferior outcome (less procreation than an opposite sex couple essentially all of the time).

2. I'm not applying a threshold here. I'm simply advocating for what governments often do - give (full) support what most advances its interest, and not give (full) support to what doesn't advance its interest anywhere near as much.  And opposite sex couples are obviously far more beneficial to the government's interest in procreation than same sex couples are.
 

But wait. I'll grant you that gay couples procreate less than straight couples. But they can procreate and will likely procreate more if incentivized to enter marriages, and so if procreation is the only state interest at play, then granting marriage benefits to gay couples doesn't harm the state interest (and at least marginally furthers that interest). But gay couples are harmed by the stigma of discrimination when marriage benefits are withheld. So if extending marriage benefits to gay couples isn't detrimental to the state's interest in procreation, then why shouldn't the state have to provide marriage benefits in a non-discriminatory manner? The state gets what it wants, increased procreation, without the societal detriment of a subset of the population being marked as inferior.

You will of course answer that rational basis review doesn't require the state to undertake the type of analysis I just did, but that brings me to the real point of my question, which you didn't answer last time I asked it: why do you believe rational basis review is the appropriate level of scrutiny for discrimination on the basis of sexual orientation?

[Alcon]

But wait. I'll grant you that gay couples procreate less than straight couples. But they can procreate and will likely procreate more if incentivized to enter marriages, and so if procreation is the only state interest at play, then granting marriage benefits to gay couples doesn't harm the state interest (and at least marginally furthers that interest). But gay couples are harmed by the stigma of discrimination when marriage benefits are withheld. So if extending marriage benefits to gay couples isn't detrimental to the state's interest in procreation, then why shouldn't the state have to provide marriage benefits in a non-discriminatory manner? The state gets what it wants, increased procreation, without the societal detriment of a subset of the population being marked as inferior.

You will of course answer that rational basis review doesn't require the state to undertake the type of analysis I just did, but that brings me to the real point of my question, which you didn't answer last time I asked it: why do you believe rational basis review is the appropriate level of scrutiny for discrimination on the basis of sexual orientation?

^^

Wulfric, this is basically where my questions are leading.  Except never mind court review standards...you personally oppose same-sex marriage, too, and that's why the issues with this argument are probably fatal to your position.

I'm going slowly here because I'm trying not to be presumptive.  So far, though, you haven't given me anything that's even an arguably good defense against the issues in your argument.  As presented, your argument would require you to reach conclusions I think you'd agree are obviously absurd.

That's why I'm sincerely asking you to spend 15 minutes thinking hard about this, because either I'm missing something, or you're smarter than this untenable argument.

[afleitch]

But wait. I'll grant you that gay couples procreate less than straight couples. But they can procreate and will likely procreate more if incentivized to enter marriages, and so if procreation is the only state interest at play, then granting marriage benefits to gay couples doesn't harm the state interest (and at least marginally furthers that interest). But gay couples are harmed by the stigma of discrimination when marriage benefits are withheld. So if extending marriage benefits to gay couples isn't detrimental to the state's interest in procreation, then why shouldn't the state have to provide marriage benefits in a non-discriminatory manner? The state gets what it wants, increased procreation, without the societal detriment of a subset of the population being marked as inferior.

You will of course answer that rational basis review doesn't require the state to undertake the type of analysis I just did, but that brings me to the real point of my question, which you didn't answer last time I asked it: why do you believe rational basis review is the appropriate level of scrutiny for discrimination on the basis of sexual orientation?

^^

Wulfric, this is basically where my questions are leading.  Except never mind court review standards...you personally oppose same-sex marriage, too, and that's why the issues with this argument are probably fatal to your position.

I'm going slowly here because I'm trying not to be presumptive.  So far, though, you haven't given me anything that's even an arguably good defense against the issues in your argument.  As presented, your argument would require you to reach conclusions I think you'd agree are obviously absurd.

That's why I'm sincerely asking you to spend 15 minutes thinking hard about this, because either I'm missing something, or you're smarter than this untenable argument.

And in practice, the state doesn't incentivise procreation through recognising marriage. Because if it did, then the 41% of children born outside of wedlock wouldn't be provided, or more accurately, their parents wouldn't be provided with any or like-for-like financial and other assistance/support in helping them to raise their children. The state clearly provides for children and the parents of children regardless of whether or not they are married.

[Slander and/or Libel]

Yes yes yes. Giving preferential tax treatment to married couples subsidizes being married. Giving preferential tax treatment to families with kids subsidizes procreation.

[Brittain33]

Guys, I'm confident that if we ever reach a situation where millions of Americans are living in polygamous relationships and raising children outside the protection of the law—and not just in a few insular compounds in remote parts of the country—the courts will have to consider if marriage laws need to adapt.

The fact is, we don't have that. While it may not seem this way to people who have limited exposure to gays and gay families, the Supreme Court does not expand marriage laws "on spec" in the absence of a cultural shift and a large number of people affected just because people perceive a slippery slope. Same-sex marriage has been ratcheted forward by a few court cases, but gays won those court cases because we had been living openly and proudly and raising children for many years outside the protection of the law, even well before 2003.

This argument is similar to saying that if the government can raise the minimum wage to $9/hour, it can raise it to $1,000/hour, and of course that would break our economy, so it shouldn't be able to raise it to $9/hour. That argument has serious problems.

[Torie]

Guys, I'm confident that if we ever reach a situation where millions of Americans are living in polygamous relationships and raising children outside the protection of the law—and not just in a few insular compounds in remote parts of the country—the courts will have to consider if marriage laws need to adapt.

The fact is, we don't have that. While it may not seem this way to people who have limited exposure to gays and gay families, the Supreme Court does not expand marriage laws "on spec" in the absence of a cultural shift and a large number of people affected just because people perceive a slippery slope. Same-sex marriage has been ratcheted forward by a few court cases, but gays won those court cases because we had been living openly and proudly and raising children for many years outside the protection of the law, even well before 2003.

This argument is similar to saying that if the government can raise the minimum wage to $9/hour, it can raise it to $1,000/hour, and of course that would break our economy, so it shouldn't be able to raise it to $9/hour. That argument has serious problems.

Yes, the slippery slope argument is ludicrous. The law is perfectly capable of making intelligent distinctions, and does it all the time. It's how lawyers make their living helping the courts to do just that.

[YaBoyNY]

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I'm all for us being treated like human beings. I'm not for a gestapo to try to force an agenda onto the country and redefine a historic institution because of people's "Feelings."

Not being able to marry someone of the same-sex is equal to being non-human? Seriously?

Did you know? Institutions change. Life and society marches on. We don't live in 1800, do we?