Jeffrey Toobin

If you find yourself in bed with him, get out.

And along those lines, I could watch this all day.

So what do I think about all of this same-sex marriage business? Despite the fact that for as long as I’ve given the matter any thought, it has been quite clear to me that homosexuals are born, not made, it’s a bad idea to redefine a multi-millenia-old institution. As Frank J. noted the other day, the problem is that government and marriage need a divorce. Let them have civil unions so they can get the same legal benefits that heterosexual couples have, and leave marriage to the church. If they find a church that will marry them, more power to them.

And please, spare me the idiotic straw-man arguments about how it won’t really cause heterosexual couples to divorce and go find a new squeeze with the same genital configuration as themselves, and the ban on gay marriage was the only thing preventing this. No one believes that, no one argues that. The people who will be affected by this aren’t currently married couples, but confused kids on the fence. If you really do have a choice, at least in this society, choosing het generally makes for a better life, and we shouldn’t be encouraging the opposite. I don’t believe that not allowing same-sex marriages is discrimination against homosexuals. They continue to have the same rights as everyone else — to marry someone of the opposite sex, regardless of how unsatisfactory they might find such a union. It is, however, admittedly, gender discrimination. That is, Sue is allowed to marry Phil, but Bob isn’t. That to me is a much stronger argument. And that is one that can only be resolved by divorcing marriage from government.

On the legal issues, I’ve always thought that DOMA was unconstitutional under the 10th Amendment — I’m no fair-weather federalist. But the full faith and credit problem isn’t going to go away. It may very well be that “married” gay couples won’t be able to move to some states and have their marriage recognized. I’m surprised that it wasn’t more of an issue in argument.

On Prop 8, I think that it stinks that the government of California won’t defend its own duly-passed-by-the-people law before the Supreme Court, leaving the people of the state in dubious standing. Regardless of what one thinks of the issue, this is a terrible precedent, giving the government an effective veto over any law it doesn’t like and disenfranchising the voters. That in itself should be challenged in court, though obviously, even if they were forced to defend it, there would be nothing to prevent them from doing a crummy job of it. That, I think, is actually a bigger issue than whether or not gay marriage should be legal in California.

[Update a while later]

As always, a lot of interesting legal discussion over at Volokh’s place.

[Update late morning]

“My gay-marriage dilemma“:

In actuality, I support neither side in this debate. The radical identitarian Left is all of a sudden pretending to be Constitutionalists, citing the 14th Amendment as if they actually gave a sh*t about equal protection under the law — this canard after decades of shilling for affirmative action, PC campus speech codes, reparations, anti-male divorce courts, the subsidization of contraception by religious objectors, “abortion on demand,” etc. I have no time for this gang of phonies and tyrants; I don’t believe a word they say.

An analogous, if exaggerated, situation would be if I lived under a fascist military junta and were scheduled for execution the following week, the only way to stop this being to support the planned communist coup of the underground demagogue. I would know what was coming: I would trade one set of executioners for another. There’s no room for pure principle in a case like this.

Yes, that’s my problem, too. Many of the proponents of this do not do it in good faith.

[Early afternoon update]

“Same-sex marriage is not the same as opposite-sex marriage.”

[Update a while later]

Thoughts on being dissed by Rush Limbaugh.

[Bumped]

31 thoughts on “Jeffrey Toobin

  1. Robert M Mitchell Jr.

    Alas, divorcing Marriage from the Public square is doomed to fail. A solid argument can be made that the reason we have the State is to deal with the union of men and women. Children, Inheritance, Powers of Attorney, and other issues mean that the State will be involved with Marriage until such time as Mankind stops sinning.

    Then there is the fact that no one pushing for this seems to have thought about the Law. No one has done any thinking about “Common Law” Marriages, for example. Or “Palimony”. There is a huge body of law dealing with Marriage, and if all we do is say that “same sex couples” can get married, then all that case law, alas, applies to roommates. Good luck proving a negative, and given the American propensity to “game” the system, it will come up, and will go to court.

    Last, anyone talking about this issue will find out quickly that what is driving this issue (Hospital visits and inheritance being dealt with easily, Power of Attorney and Wills dealing with both issues) is “Benefits”, and once again, given the American propensity to “game” the system (Heck, how many movies have they made on this issue already?), the simplest solution for cash strapped companies will be to stop offering “Benefits” to family members. The backlash of that will be enormous, and, unfair as it is, will most likely hit the “Homosexual” community. Quite unfair, for they really haven’t been the people pushing this issue. The virtue junkies (Rich white liberals as a rule) have been the one’s demanding this (I guess so they can actually have a “Civil Rights” victory for once, as opposed to their normal tactic of stealing the credit after the Republicans have done the heavy lifting…….). Going to be a mess, and I think a lot of people are going to get hurt.

    1. Al

      The simplest route is through effectively abolishing common law marriages. Or, at the very least, requiring witnesses for some sort of actual vows.

      Then -> No written contract means only the lawyers can win. As usual.

      1. Robert M Mitchell Jr.

        Good luck with that. In the real world, sigh, we have gone the other way, which is why we have the term “Palimony”……
        As to vows, do you mean actual legally binding vows, or empty wedding vows? One of the reasons our host’s solution is doomed to fail. It was not the Religious side that made a mockery of the vows in question……

  2. ErisGuy

    Asserting people are “born that way” confuses three things (1) is the desire innate; (2) is the behavior associated with the desire innate; (3) is the morality of the desire and behavior innate (that is: if it is innate, it is good).

    I often hear (and read): “that because I am born with the desire to _______, I must fulfill my desire for _____, and I must approve of _____.”

    Assertion one can be disputed for all desire, though I think that all desire is innate. (Note this assertion is heard most often about addiction.) Assertion two is an inhuman assertion: “because I have the desire, I must act on it” Assertion three, likewise: the existence of of innate desires and innate behaviors does not require approval, affirmation, or acceptance.

    1. Rand Simberg Post author

      I don’t think that the behavior is immoral, though I do think it’s disgusting (at least when it comes to men). I’m not going to argue with people who do.

      I think that the desire is innate, and I don’t think that one should be condemned to a life of either celibacy or having to have consensual sexual relations with someone for whom they feel no physical attraction, when there is a universe of people for whom they do.

          1. Martijn Meijering (@mmeijeri)

            I thought so, but wanted to check if you maybe meant that it’s wrong for them to do it, but also wrong for us to force them not to do it.

  3. Leland

    I find it humorous when gay proponents point to the animal kingdom, such as the gay penguins. We are told, “see, animals don’t have the same human environmental signals, and they can be come homosexual. It’s natural.” Ok, I get the argument. But here is something, do those penguins require sanctioning from a church or a state in order for their relationship to be moral in their minds?

    1. PeterH

      One thing I have to wonder, how much “homosexual” animal behavior is really sex, vs. someone’s perception.

    2. Alan K. Henderson

      This is one of those things that leads people to suspect that maybe homosexuality isn’t as normal as heterosexuality. What kind of crackpot believes that sapient behavior can be compared to out-of-pure-instinct behavior? And why are there so few gays who challenge this notion???

  4. Fletcher Christian

    It’s also worth mentioning, perhaps, that in some animals the sexes look (and presumably sound and smell) sufficiently alike that they can’t tell the sex of another individual. I seem to remember reading that the courtship ritual for one particular species of penguin involves offering a rock or some such as nest-building material; the male does this. Very nearly half the time, he ends up being attacked by the object of his desire because it’s another male.

    Fortunately (vive la difference!) the two sexes of humans are (usually) rather more dissimilar than that. Although it isn’t completely infallible, especially if deliberate deception is involved; I remember once being about a couple of seconds away from severe embarrassment, when a friend of mine at university entered a drag queen contest and I came within a hairsbreadth of trying to hit on him. :-)

  5. Andrew W

    If they find a church that will marry them, more power to them.

    If marriage were strictly an institution of the church I could see how it would be reasonable to restrict it only to a man/woman union as churches might demand, but as it’s no longer a religious institution, I don’t see the church as having the right to define marriage in only its terms.

  6. George Turner

    I was recently arguing with proponents of using the Equal Protection Clause to overturn current marriage laws. The problem with that approach is that the current laws treat gays and straights absolutely equally, as if differences in gender preference didn’t even exist. It’s like pushing for affirmative action in a legal framework that is already truly colorblind, which you can do, but not under the banner of Equal Protection.

    The problem they face is that the law doesn’t make enough discriminations, not that it makes too many, unless they want to completely remove gender differences from the law, which would set precedents striking down all the special protections women enjoy in child custody and other matters.

  7. BradnSA

    If homosexuals are born, I wonder how long it will take for them to become anti abortion once there’s a prenatal test for the gay gene.

    1. jabrwok

      I don’t think there’s a gay *gene* myself. From what I’ve read, the evidence to date indicates that the brain wires itself for sexual orientation and identity in the sixth month of gestation (long after the actual sex has been determined) and that wiring can be influenced by the sex hormones in the womb. Lots of estrogen says “you’re attracted to males”, lots of testosterone says “you’re attracted to females”.

      1. Rand Simberg Post author

        I don’t think there’s a gay *gene* myself.

        Neither do I. That would be very unlikely, evolutionarily.

        One can be born gay without a “gay gene.” It can be a combination of genes which are individually useful without causing gayness, or it could be intrauterine environment, or both.

    2. jabrwok

      Thus homosexuality would be a teratogenic birth defect (yes, the word “defect” is Not Nice, but given what homosexuality does to likely reproductive success, I don’t see how it could honestly be characterized otherwise).

      On an unrelated note, why do my comments always get marked as spam? Is there a character limit?

      1. Thomas Matula

        jabrwok,

        “teratogenic birth defect”

        Which means its only a matter of time before both tests and a therapy will be developed to “address” it. Which will raise a whole new set of questions, debates arguments…

      2. Karl Hallowell

        but given what homosexuality does to likely reproductive success

        It may not be detrimental at all in the current and past social environments. For example, if you’re hiding a homosexual inclination, then producing a few kids is a great way to deter suspicion and simultaneously propagate any genes that may be responsible as well.

    3. Al

      Some of the animal studies seemed to indicate that it was ‘triggered’ somewhat like parthogenesis in some species by the local conditions. Extreme crowding -> increased homosexual traits. Both “reduced fighting over females” and “next generation numerically smaller and thus better sized to available resources” were proposed.

  8. MikeD

    Who is the SSM acceptance going affect most, divorce lawyers! All the low hanging fruit of long-term SS relationships seeking SSM benefits are already here. Once SSM gets in gear the historic lack of longevity in homosexual relationships (even less than hetero-marriage) will be a new found bonanza for said lawyers.
    Upside could be a lessening of PoS class(less)-action lawyers advertising on cable TV.

  9. jabrwok

    I often wonder how the people claiming that they want government out of marriage would react if the Feds actually took them up on it and repealed all laws relating specifically to marriage, and removed the words “marriage” and “spouse” from all other laws. ‘Twould be amusing I think:-)

    1. Thomas Matula

      But appropriate since marriage is really part of an individual’s religious belief, so one may argue that government defining it is in itself a clear violation of the First Amendment separation of Church and State.

  10. Alan K. Henderson

    Is the “marriage is inherently religious” notion a myth? Marriage started as soon as societies started to grow in size. Tribes needed a formal system for members to clearly and officially stake out claims to mates, to compel society to refrain from jumping those claims (no pun intended), and to compel couples to stick together for the sake of socializing the next generation, which could not be efficiently socialized without the institution. Marriage was insurance against forces that wrecked social stability – chronic unresolved mate-hunting, claim jumping, children not properly prepared for adulthood. It also provided the best environment for mates to grow in any true measure of intimacy.

    Homos3xuality was never granted such treatment. It was viewed as a deviancy by some societies and acceptable diversion by others. The latter never saw fit to regulate homos3xual activity as it regulated heteros3xual mating. Why? Maybe because homos3xual activity was totally irrelevant to the concerns of the state. The gay mating wars were a drop in the bucket compared to the hetero mating wars and thus not a state concern. Homos3xual activity doesn’t produce children, a HUGE concern of the state.

    In short, marriage exists to protect society from heteros3xuals.

    Motives for marriage vary between cultures. Many cultures engage in arranged marriage. In modern free countries the romantic initiatives of the couple are the most common motive.

    The redefinition of marriage began with the early s3xual Revolution. The modern Left presented it as some private, romantic, optional thing that people so, rather than public contract, romantic in some cultures and utilitarian in other, necessary for the couple, children, and society at large for social stability.

    The Left told us, and still tells us, that s3x could be just as rewarding with or without marriage. A few dismissed marriage itself as “just a piece of paper,” many others maintained an infatuation with the shallow delusion of marriage as nothing more than some private sentimental thing that people “in love” do. The Left has followed the logical conclusion that the same thing should be available to homos3xual couples.

    And more importantly, the Left has followed the logical conclusion of its utopianism. You can’t have a perfect society without perfect accord; since perfect accord does not occur naturally, it must be coerced. The Left took control of the language and redefined marriage as a private diversion rather than a public responsibility – and same-s3x “marriage” puts the icing on the cake.

  11. Arizona CJ

    Wouldn’t it be better for everyone if we just got the government the heck out of marriage?

    The anti-gay-marriage side says that marriage is between a man and a woman. Seems to me that the current situation, where it’s between a man, a woman, AND the government, would be objectionable to them?

    The pro-gay-marriage side says they want “a right to marry” but it seems to me what they are asking for is “a right to ask the government for permission to marry”.

    Is there any good reason why the government should be involved in marriage at all? At the moment, NOBODY has a right to marry. You may think you do, but you don’t – because if it’s a right, why do you need a government license to do it?

    My take; make it what it really is; a contract between consenting adults, with no government involvement. And like any contract, you need to be 18 or older to enter into it.

    As for religious services, I vehemently oppose the idea of forcing a religious institution to perform any marriage it opposes; gay, interracial, racial minority, whatever. I’d personally find it reprehensible if a church refused to perform, say, an interracial marriage, but I don’t think they should be forced to do so.

    I’ve always found government involvement in far too many aspects of life disgusting, and marriage is one of many where getting the government out of the picture is IMHO better for everyone.

    1. jabrwok

      There’s a lot of sloppy terminology being thrown around in the current…I hesitate to call it a “discussion” or “debate” simply because it seems more like a lot of screaming and insults. Anyway, a lot of sloppy terminology.

      That said, the state, or society at large, does have a vested interest in marriage because traditional, male/female monogamous marriage has proven the best mechanism for perpetuating said society. Married couples produce and socialize (that latter part is important) new generations more effectively than any other arrangement ever tried. If you accept that society at large has a vested interest in its own survival then you must tacitly accept that it has a vested interest in promoting traditional marriage. Failure to do the latter endangers the former. The essay that Rand linked to about how SSM is not the same as heterosexual marriage goes into this.

    2. Peterh

      Two areas where getting government completely out of marriage could be a problem:

      – Marriage to persons with whom sex is otherwise prohibited. In some places in the US the legal age of consent for sex is 18, but marriage with the customary privileges is legal with parental consent at 14.

      Related, consider the outrage when a homosexual marriage is made with an underage participant.

      – Benefits granted specifically to spouses. These include employer medical plans and survivors benefits. In many such cases we may want to reconsider how these are structured anyway.

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