Response to the Response to the Response to the Response to the....

Maybe in order to streamline the process a bit, Jonathan was kind enough to divide his post into separate points. Let's go over each one:

Point one: Finnegan says that he does not understand this statement of mine:

"You are misguided on the polygamy vs. gay marriage point. It is a bit like saying 'it is okay to fall in love with many different people, but not more than one at a time."'Well, I do not see the problem with the state condoning polygamy when it does condone people cheating on each other. That is, if I go cheat on my girlfriend, what is the state going to do about that? Nothing. Thus, the discrimination against polygamous people is arbitrarily enforced -- not merely against homosexuals."

Firstly, I am merely attacking [Finnegan's] [Sorry Jonathan, but we have to protect our blogging alias--ed.] argument against the state intruding on privacy, which it does in the case of "polyamory." If the key legal reason why homosexual sex, and thus gay marriage, is legal (see Lawrence v. Texas) has to do with non-state intrusion (a bona fide right to privacy), then why must the state pick and choose which sexual relationships to make legal or illegal. That is merely my point here. The fact that the state is in the marriage business altogether is 'arbitrary' in the sense that it arose out of the Christian canon law.

Of course, this raises a different interesting question: why is the state in the business of marriage altogether anymore? Is it legitimacy of monogamous couples? Tradition? Family? Perhaps that the continuation of the human races largely depends on monogamous heterosexual relationships? Even a proponent of same-sex marriage cannot deny this. If every relationship in the world were of the same-sex, how would humanity live on (minus scientific advancements that could fertilize)?

Jonathan is mixing, matching, and conflating legal arguments pretty much ad hoc. (I'll skip the points about polyamory, because they're addressed later.) The legality of homosexual sex and the validity of gay marriage are entirely separate issues. The striking down of sodomy laws in general is based on the principle that the Constitution creates a fundamental right to privacy---an assumption that has governed American Constitutional law for decades. In Lawrence, the Supreme Court not only struck down the Texas anti-sodomy law on right-to-privacy grounds, but also on equal protection grounds, since the Texas statute only applied to homosexuals. The Lawrence decision, however, only relates to the fight for gay marriage rights in that it put to a permanent end the criminalization of homosexuality and legitimized the principle that sexual orientation is a valid consideration in determining equal protection abuses. It would be stupid to argue, and no one has done so, that the fact that homosexual sex is not criminal automatically means that gays have the right to marry. As to Jonathan's contention that the state has arbitrarily involved itself in marriage, I would assume, to echo the post that he originally responded to, that he does not support the Ralph Nader position that the word "marriage" should have no place in civil law, and that the state should merely regulate civil unions between heterosexual and homosexual couples.

For the sake of gratuity, I think I'll respond to the Christian canon law point. In short, I'm becoming convinced that Jonathan doesn't know what the word "arbitrary" means. If his assertion that civil marriage law arose out of Christian canon law were even correct (it's not), then still, neither civil marriage law, nor the process by which it arose, would have been arbitrary. But of course, civil marriage law does not arise out of any religious doctrine---and civil law in the United States, as Jonathan ought to know, is utterly distinct from religion in terms of its execution if not necessarily all its historical antecedents. While the traditions associated with marriage in the United States (at least until recent years) have been patterned on Christian teaching, the laws regarding civil marriage itself are a reflection of secular Enlightenment values. Civil marriage law in its current iteration depends upon a robust interpretation of invididual rights and of women's rights. Moreover, the inalienable (let's face it) freedom to divorce is a combination of secularism, anti-traditionalism, and Protestant values that all contradict the presumably Catholic and traditionalist canons to which Jonathan makes reference.

Jonathan then lays out yet another iteration of the "civil marriage is connected to procreation" meme, as if saying it some more would make it true. How many times do we have to go over this ground? Whatever the historical relationship between marriage and procreation, the desire and ability to procreate have nothing to do with current civil marriage law. Not only is the state "in the business of marriage" despite the fact that marriage has nothing to do with procreation, but the state goes so far as to guarantee marriage rights to non-procreative couples. Also, is it wrong of me to laugh at the point about humanity going extinct if everybody were in a homosexual relationship? Is Jonathan aware of how silly this is? Nobody is advocating that everyone "become" gay, nor, by the way, is it even possible. Some people are born gay, and some people, who make up the vast majority, are born straight. Humanity soldiers on.

Point 2: [Finnegan] dazzles as our resident philogist. Polyamory should be used, not polygamy - since polygamy is ambiguous, he says. Well, I prefer polygyny (but not many people know what that is), so I use polygamy. For argument's sake I think Webster's will vindicate my position that polygamy can refer to a man or woman with multiple wives of the opposite sex: "The having of a plurality of wives or husbands at the same time; usually, the marriage of a man to more than one woman, or the practice of having several wives, at the same time." I do not think it matters whether one has many wives or one has many husbands. Polygamy suffices as a concrete enough term.

The dispute here isn't philological, but pragmatic. What Webster's vindicates is that the term "polygamy" in contemporary discourse always refers to marital arrangements, and it "usually" refers to "the marriage of a man to more than one woman" because using it to refer to one woman with several men is etymologically incorrect (the word for that is polyandry). The reason the distinction between polygamy and polyamory is important is that the latter term can mean any relationship involving sex between multiple partners; polygamy exclusively refers to group-marriages. Polyamorous relationships are perfectly legal, provided no one attempts to enter into a group marriage. Polygamous relationships are not legal. No one's trying to dazzle. Let's just keep our terms straight.

Point 2.5: This point is so 'rife' with hyperbole that it ought to be left for readers to decide its veracity:

Personally, I don't have a huge problem with allowing groups of people to marry each other. The problem is that every historical instantiation of polyamory involving multiple marriage is rife with physical and sexual abuse.

Every instance? Don't set the bar too low for me. But sarcasm aside, even if this is mostly true this does not mean the state should legislate based on what may happen. The possibility for a loving and abuse-free relationship depends largely upon the people involved. Every relationship is a fresh start; each one has the potential to be abusive. Banning a relationship merely because it is likely to be abusive seems a lot like the state banning second marriages to people in which their first marriage was dissolved due to abuse.

Jonathan seems awfully confident of himself, so I'd like to hear him name an historical instance of a culture in which group marriage (i.e. not just polyamorous sex) was prevalent and various forms of abuse were not, including, at the absolute least, women having the status of chattel. Like I said, I have no objection from first principles to group marriages. I just can't envision a set of circumstances in which a group marriage is something other than the sort of thing that goes on under the radar in Utah.

Point 3: I think that using this line of argumentation just helps my case:

What Jonathan is not legally able to do is marry one woman, and then marry another. I'll defend to the death his right to cheat on his girlfriend and take on as many sexual partners, men and women, as he desires...A polyamorous heterosexual person is free to marry any person with whom he falls in love. What he lacks is the freedom to marry multiple people simultaneously.

This helps my case because your restriction of polygamists' liberty depends on current laws, without acknowledging that polygamists want to do is change the positive laws which restrict marriage -- which is the same as same-sex marriage proponents. Homosexuals currently lack the freedom to marry in most states; just as polygamists do. Both want to modify the definition of marriage so as to gain liberty. Thus, the similarity between the cause of polygamists and homosexuals. For a deeper explanation of why this is so, I move on to my next point.

Let's hold off on your next point for a moment. It's nonsense to talk about "changing the definition of marriage." The definition of marriage is constantly in flux, and its current iteration, as enunciated in civil law, looks nothing like the civil marriage of a hundred years ago. If what Jonathan meant, instead, is that both polygamists and homosexuals want to fundamentally change the restrictions on who may enter into a marriage, then he is half-right. Civil marriage in the United States has taken on many forms, but it has always fundamentally been a binary relationship. Polygamists want to change that. From a libertarian standpoint, I don't entirely oppose them. Homosexuals, by contrast, want to remove restrictions on civil marriage that no longer reflect the reality of the institution. Namely, except, as I keep having to say, for the fact that they are not heterosexual, a homosexual couple can fulfill every legal criterion for entering into a civil marriage.

As to Jonathan's claim about the reasons why homosexuals and polygamists want to effect changes in marriage law ("to gain liberty"), let me first correct the record. Gays are excluded from marriage in 49 states, a number that is likely to grow. Polygamists are excluded from marriage in every state, and there is no reason to expect that that will ever change. Next, the "gaining liberty" construction assumes that the liberty of homosexuals and polygamists is infringed upon in parallel ways. This is plainly not the case. A homosexual will only ever love members of the same sex. The prohibition against gay marriage thus means that gay people can never marry any person whom they love. A heterosexual polygamist, however, may marry absolutely anyone at all whom he loves. May I suggest that a polygamist retains a meaningful right to marry, even if it is not a group marriage? While a polygamist might be inclined to say that he loved multiple people at once, or that he prefers to have sex with multiple partners, it's nonsense to say that a man inclined to polygamy is incapable of having a loving relationship with a single woman. Perhaps I might be persuaded to take up the cause of polygamists' rights if there were some evidence that group-relationships were the singular, exclusive, and only mode in which certain people could love. But there is no such evidence and no reason to believe that that is true. Homosexuality, on the other hand, like heterosexuality, is a fundamental component of one's identity. It determines not just the manner in which one falls in love or chooses sexual partners, but the entire subset of the human population with which one is able to fall in love.

The real ground of contention here is the implicit question of just what the status of homosexuality is. Our law and contemporary discourse acknowledge certain groups who are, for lack of a better term, legitimate minorities, and we accept the principle that arbititrary discrimination or forms of legal segregation against these groups constitute violations of their rights. The legitimate minorities that (just about) everyone would agree on are racial and religious minorities. So really, the question is this: is discrimination against homosexuals the same sort of thing as discrimination against blacks or Jews? By contrast, very, very few people would contend that polygamists are a legitimate minority; thus the contrapositive question is: are homosexuals, like polygamists, a group that is clearly distinct from the majority for x, y, and z reasons, but who don't have a legitimate claim to civil rights in these areas? Obviously, my answer to the first question is an emphatic yes, and my answer to the second is an emphatic no. I would guess that Jonathan's answers would be the reverse. I could try to explain why homosexuals are a legitimate minority, but I'd prefer just to stick to the terrain we've already gone over for now.

Point 4: Now my last point that polygamist rights are similar to homosexual rights is anchored in this point: that the traditional definition of marriage ought to be changed. Here is [Finnegan's] position:

Were homosexual marriage to be legalized, homosexuals would have no more freedom to enter into group marriages than anybody else. Nothing about the fundamental structure of marriage as a union between two individuals will have changed. It remains to be shown why homosexuals should be barred from joining such a union.

Now this point appears to be the pivot of his argument. Allow me to outline it as I see it.

The traditional definition of marriage is a contract that requires the consent of the parties involved which requires
a) Two individuals
b) One man and one woman

This definition has been the core civil, common and canon law traditions up until the 21st century. [Finnegan] proposes that marriage is discriminatory since two people who love each other are "barred from joining such a union."

[Finnegan's] argument attempts to modify b) to read "two people." The problem with this is that is messes with Custom. The result of distorting, as opposed to incremental changes to custom and subjecting it to rational review, is that it will eventually disintegrate the whole custom altogether. What [Finnegan] proposes is no different, and here is why.

I can see no reason why if one changes b) they are restricted from changing a). They are both coequal characteristics which are integral in the traditional definition of marriage. You can argue sociologically all you want on why two people are better than three. But legally speaking, if homosexuals argue based on love and discrimination, I see no reason to deny polygamists' claims on the same ground. [The last part of Point 4 really belongs to Point 5, so I've placed them together--ed.]

Jonathan's right that this is one of the crucial areas of the argument. In fact, the whole dispute revolves around this point:

The traditional definition of marriage is a contract that requires the consent of the parties involved which requires
a) Two individuals
b) One man and one woman

This definition has been the core civil, common and canon law traditions up until the 21st century. [Finnegan] proposes that marriage is discriminatory since two people who love each other are "barred from joining such a union."

Where to begin? What does Jonathan mean by "the traditional definition of marriage"? Every culture has its own traditions regarding marriage, and some, including Mormonism, Islam, and perhaps others, explicitly violate provision b) of Jonathan's "traditional definition." He probably means the traditions of mainstream Christianity in the west, but if that's so, then he's already on thin ice because Christian tradition does not view marriage in contractarian terms. Remember Jesus's famous injunction against divorce. Contracts are things that man brings together and puts asunder.

Secondly, for most of the history of Traditional Christian Marriage (let's call it "TCM"), "consent" of the marrying parties had none of the connotations of free choice of one's spouse that modern marriage (MM) guarantees. In some cases, spouses-to-be were able to exercise a certain sort of veto power over the person to whom they were to be married, and in some cases not. Women in particular not only had virtually no power in selecting their mates, but became, in effect, the property of their husbands. But men, too, could be forced to marry women they didn't love or even like. While male adultery under TCM was frowned upon, it was difficult to prove and enjoyed a kind of semi-toleration. Whereas female adultery, especially if it resulted in pregnancy, was subject to capital punishment.

One could go on at length about the vast structural differences between TCM and MM, and to reduce marriage to Jonathan's provisions a) and b) is to simplify marriage beyond comprehensibility. (I'm well aware of the fact that advocates of TCM have a surplus of arguments on its behalf, but they don't figure into this discussion.) The point is that the battle between TCM and MM has already been decided; if the laws governing marriage still honored TCM, then I would agree that homosexual marriage would be ruled out by the conditions of the prevailing culture. But civil marriage is governed by the principles of MM, and as such, has to make room for homosexuals. Number and gender of partners in a marriage are but two of a wide range of variables that have changed precipitously as society itself has evolved.

Thirdly, Jonathan repeats his error in missing the distinctions between various forms of marriage through its historical progression, by making reference to "the core civil, common and canon law traditions up until the 21st century." Not only are secular and religious traditions distinct from one another, but they are wholly incommensurate, the latter excluded by the 1st Amendment to the Constitution from having any legislative authority in the United States.

So the reality is that no one "is messing with Custom" but, in fact, giving deference to the fact that culture is subject to constant flux. The rise of the gay-rights movement is necessarily tied to the rise in gay social visibility and acceptance. Do you think Queer Eye For the Straight Guy could have aired thirty years ago? Just as it took many years for African-Americans to achieve the equality in civil law to which they were always entitled, it has taken many years for gay people to have their existence even acknowledged as something other than mental illness, and it will take more time still for gay people to be fully integrated as citizens. No single step could be more integrative than marriage; civil marriage for homosexuals will allow them to be recognized in law as part of a family, and it is indeed the family, as many of the opponents of gay civil rights argue, that forms the basic unit of society.

Jonathan's point 5, and the paragraph immediately preceding it, concern sham marriages, a term he prefers not to use, but should:

As a Canadian court in Layland vs. Toronto put it:

"The law does not prohibit marriage by homosexuals provided it takes place between persons of the opposite sex. Some homosexuals do marry. The fact that many homosexuals do not choose to marry, because they do not want unions with persons of the opposite sex, is the result of their own preferences, not a requirement of the law."

Thus, the law is not required to cater to all sexual preferences. By the nature of their respective relationships, homosexual and heterosexual relationships are different. With respect to many laws, the law does discriminate between relationships. It discriminates based on personal and business relationships (with respect to things taxable or not); and between father and son (with respect with authority and obedience).

Point 5: [Finnegan] says:

In the United States in 2004, any two heterosexuals of sufficient age and not blood-related within prohibited degrees have the right to marry one another. They need not want to have children, need not have the ability to have children, and need not love or even like each other. Heterosexuals are free to marry for financial reasons, in order to facilitate an immigration, because they're in love, or for any other reason that they could come up with. The only restriction is that no one can be forced to marry. These are criteria that any two homosexuals can easily meet, and to deny them the right to marry is arbitrary discrimination.

Well you are right and wrong. Marriage laws do not distinguish between heterosexuals and homosexuals. Thus, it is wrong to say that homosexuals are denied to marry. You are right in saying that homosexuals easily meet the criteria for marriage based on the above restrictions. A male homosexual may marry a female homosexual: thus homosexuals can marry each other. Homosexuals are not denied the right to marry. They can marry anyone they want, provided it be a member of the opposite sex. Thus, there is no arbitrary discrimination there. Homosexuals and heterosexuals can marry. If there is arbitrary discrimination, it is in the definition of marriage, which was discussed in the point above.

I was unaware that Jonathan was a partisan of the "gays can marry anyone they want of the opposite sex" camp. Let's get real. There was a time when gay people were forced into sham marriages, and the result was broken families and psychological devastation. And it's not just gay people who are hurt by these fraudulent arrangements. Their spouses, their children, and their broader families suffer too. There's a kind of sadism underlying the argument that gay people should enter into heterosexual marriages, and clearly, some religious conservatives would do anything to force gay people back into the shadows they inhabited in earlier decades, no matter what pain such a policy would inflict. Let's at least give up on the myth that this faction is pro-family: its avowed position is that gay people should live a lie, should continually lie to the people close to them, and should be lied to in return.

Also, just imagine a law that says that all citizens are free to marry anyone, provided that they do not love the person they marry. Not only would such a law not grant citizens a right to marry, but it would effectively deny them the right to marry. The suggestion that "[t]he law does not prohibit marriage by homosexuals provided it takes place between persons of the opposite sex" is a cyncical mockery of marriage rights and of civil equality. Heterosexuals are free to marry for reasons that have nothing at all to do with love; and it wouldn't be too hard to argue that their free exercise of that right often damages the institution ("Who Wants to Marry A Millionaire?", etc.). Homosexuals are asking for the right to marry the individual that they really do love, and I'd suggest that that is a true family value.

Jonathan's Point 6, which I'm not going to reprint, essentially makes the same case for incestuous marriage that he earlier made for polygamous marriage. We've already danced in circles with these analogies. I will only point out that a sexual relationship between a parent and child is without exception a horrific form of child abuse, and I would sincerely hope that Jonathan doesn't think such a coupling is morally equivalent to a homosexual relationship.

Next, we return to the argument over constitutional law:

Point 7: [Finnegan] says:

I want to be as objective as possible, but it's difficult when confronting so many horrific misinterpretations of American Constitutional law. In the Brown decision of 1954, the US Supreme Court ruled 9-0 that arbitrary forms of discrimination violated the equal protection clause of the 14th Amendment. [Do I overuse the word "horrific"?--ed.]

The issue in Brown was simply unjust and arbitrary. What is forgotten is that racial segregation is not rooted in the common law. That is, segragation is not explicitly protected, whereas marriage is.

In response to [Finnegan's] comparison from Brown to same sex marriage, I point out that Supreme Court jurisprudence holds that the Fourteenth Amendment

denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Meyer v. Nebraska, 262 U. S. 390, 399 (1923) -- (Look up the case here for more supportive legal cases for the reasoning behind this statement).

Since it is safe to say that the marriage is a privilege "long recognized at common law" I do not see that same-sex proponents have anything to gain under the Fourteenth Amendment.

It looks like Jonathan is moving away from a position of defending arbitrary discrimination as such, to taking shelter in the traditions of something he calls "the common law." I have no idea what he's referring to. Anglo-Saxon common law? American custom? Of course racial segregation was rooted in law; it was the direct creation of Southern legislators. The Constitution adopted in 1789 explicitly authorized the continuance of slavery, a policy that was only amended nearly a century later. The Brown decision overturned a centuries-old racial hierarchy that had been enshrined in Southern law, and overturned centuries of custom as well.

I'm similarly unsure what Jonathan's citation from Meyer is supposed to prove. It certainly doesn't weaken the equal protection argument in the slightest. For one thing, Brown renders any contradictory pre-Brown interpretation of the 14th Amendment void. For another, the citation actually says explicitly that the 14th Amendment guarantees a right to marry. Jonathan, I assume, thinks that the reference to common law somehow means that the 14th Amendment can't be construed to grant rights that haven't already been established by long precedent. But this is preposterous. The purpose of the 14th Amendment was to enforce equality under law, and to abolish the notion that some rights apply to one group but not to others. The history of 14th Amendment jurisprudence is the history of judicial recognition of civil rights that had previously been denied on racial grounds or other arbitrary criteria. The reasoning of the Meyer decision that Jonathan cites actually synthesizes the equal protection argument for gay marriage with the argument that the right to marry is a fundamental civil right.

Alright: one short trip into Robert-George-land and then we're through:

Last point: [Finnegan]:

What unique principle that has not already been removed from civil marriage law can a heterosexual couple achieve that a homosexual couple cannot? Fertility, as I've already discussed at more than sufficient length, is not a legal criterion for the issuance of a valid marriage license.

I say that marriage is based on a biological reality based on the concept of consummation. For any marriage to be valid, it must be consummated. This "coming together" is abiological. What differs this coming together from any homosexual relationship is that there is no biological united involved in their type of sexual relations. In heterosexual relations, real unity is achieved by the sperm and egg uniting to create a unique biological principle. With regards to the question of fertility, Finnis has this response, which I think is apt:

In this reductivist, word-legislating mood, one might declare that sperm and egg unite only physically and only their prouclei are biologically united. But it would be more realistic to acknowledge that the whole process of copulation, involving as it does the brains of the man and woman, their nerves, blood, viginal, and other secretions, and coordinated activity is biological through and through. The organic... unity of the persons is the intentional, consensual act of seminal emission/reception in the woman's reproductive tract.

Further, as Robert George points out,

the plain fact is that the genitals of men and women are reproductive organs all of the time -- even during periods of sterility. And acts that fulfill the behavioral conditions of reproduction are acts of the reproductive type even where the nonbehavioural conditions of the reproduction do not happen to obtain (conception).

Matrimonial law has traditionally understood marriage as consummated only by reproductive acts of spouses. And finally, the sterility of spouses has never been an impediment to consummation.

Not only has Jonathan not answered my question, but he has neatly reduced everything we've said previously to the arithmetic of penis + vagina = marriage. It's not even about men and women any more, but about their genitals. Some of the opponents of gay marriage, like the good Professor George, are so obsessed with sex that they have forgotten entirely about love. Never mind all the claptrap about "The Family" and "The Children"; the sine qua non of marriage, it turns out, is vaginal sex. [Would it be impertinent to ask if non-missionary style sex qualifies as "consummation"?--ed.]

In point of fact, Jonathan's contention, on which his argument ultimately rests, that "[f]or any marriage to be valid, it must be consummated," is simply false. A heterosexual man and woman that get married are under no obligation to have sex. Ever. If, for whatever reason, they don't have sex [maybe the guy's into pegging--ed.], their marriage license is not revoked. I kept harping on fertility because that's the criterion that most opponents of gay marriage argue for. But consummation, which apparently only means heterosexual vaginal sex, does not improve the case against gay marriage rights. No matter how "matrimonial law" has been "traditionally understood," civil marriage law, right now, in this country, has absolutely nothing to say about consummation. A heterosexual man and woman can get married and never have sex. Or they could only have oral sex. Or only anal. It doesn't matter; they're still legally married.

Just consider for a moment, how far this reductionism has gone. For Jonathan's case to hold up, we have to accept that consent, love, family, fertility, and even the most boring and Republican forms of sex are not sufficient conditions for validating a marriage. Instead, there is only one condition, which is both necessary and sufficient, namely, the mere ability of a couple to have heterosexual sex in a way that could lead to procreation if both partners were fertile and not using birth control. If that's what Jonathan thinks marriage can be boiled down to, he's entitled to his opinion, but I will continue to argue that its simplest expression is a legal union between two people in love.

Last word: I want to say something about Herrprofessordoktor George, because, true to form, he provides an illustration of what can go wrong when speculative metaphysics becomes entirely detached from any grounding in either empirical science or even consistent semantics. One might just wind up saying things like "acts that fulfill the behavioral conditions of reproduction are acts of the reproductive type even where the nonbehavioural conditions of the reproduction do not happen to obtain." Excuse me, but what the fuck is an "act of the reproductive type"? It's definitely not what occurs when a man and woman take specific precautions to ensure that they won't conceive a child. Nothing sounds too ridiculous to somebody who thinks that there are teloi floating around in the air, but that's no reason to take such a person seriously.

[Have you noticed how absolutely filthy any conversation about sex with a religious conservative is? It's always so disgustingly clinical that you temporarily forget why people even want to have sex in the first place. Maybe that's the idea.--ed.]