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Demographic Destiny

In a rare accomplishment, the US Senate managed to avoid embarrassing itself over the issue of marriage discrimination.

Of course, the 49 Senators who voted to support a Constitutional ban on equal marriage have their fingers in a crumbling dike. Future generations will look at their bigotry in much the same way we look at pre-Loving v. Virginia America. If their children aren’t already ashamed, their grandkids will be.

The haters are losing a battle against demographic destiny. Every poll shows that opposition to marriage equality correlates strongly with age. The future is clear, and nobody rationally doubts that America will eventually have marriage equality. The question is can we get there now or do we have to wait a couple decades for the bigots to die of old age. I’m guessing the latter, but as the slim majority becomes an overwhelming minority in state after state after state, momentum on this issue is going to shift pretty fast.

I wonder how those 49 Senators feel about being on the wrong side of history.

58 Responses to “Demographic Destiny”

  1. Brutal Hugger Says:

    Xlrq, the boogeyman argument will get you nowhere. You still have not identified how ending marriage discrimination will harm marriage as an institution or even any one particular instance of marriage. You have not you shown how letting men marry men and women marry women is going to prevent any hetero couple from getting hitched.

    Moreover, you haven’t even begun to explain how such putative harm (especially such harm discounted by the odds of it coming to pass) is so great that it justifies the discriminatory treatment of an abused class of society.

    Your insistence that marriage-discriminaton is justified by something more than anti-gay animus is belied by your complete refusal to attempt that justification.

    As an aside, I thought you had libertarian leanings. I find your paternalistic objection to no-fault divorce a little surprising. In NY, we lack no-fault divorce. Instead we have couples who conspire to lie to get their divorce and courts that are complicit in these most obvious lies. I suspect that a nationwide reversal of no-fault divorce law would be subverted by the everyday judges who are everywhere sympathetic to couples who want to go their separate ways.

  2. Xrlq Says:

    TGirsch:

    And this is where we differ. Excluding an entire class from an institution for no compelling reason (and to me, compelling evidence = solid evidence that tangible harm would result) strikes me as the reckless thing to do. When we’re talking about extending rights and privileges, I think the burden of proof lies squarely on the side of those who want to withhold the right.

    In that case, you might as well concede the slippery slope argument against gay marriage, which I have not advanced myself but others have. If the burden is on those who wish to exclude any class, why is it better to discriminate against people who want more than one spouse, or against people who’d like to marry their cousin (or even brother or sister, if they are willing to be sterilized)? Taken to its logical conclusion, your argument would require every state either to abolish marriage outright, or to extend it to every group of two or more (or one?!) consenting adults who seek it.

    To my mind, the question of whether men and women are so interchangeable as to make a homosexual relationship enough like a straight relationship to warrant a legal marriage or marriage-like status is an empirical question. Whether the two are so similar that both institutions should be governed by identical rules is a separate, far more ambitious issue. As long as either question remains open, experimentation is fine, but there’s no reason to drag the other 98% of us into that experiment.

    That’s my point. I admittedly fail to grasp the difference between discrimination by race and discrimination by gender.

    1. I doubt that. Do you really find separate men’s vs. women’s bathrooms offensive, on a par with the black vs. white bathrooms that were prevalent in the Jim Crow era?

    2. That’s not the issue here, anyway. To argue that distinguishing traditional marriage from gay marriage is a male vs. female discrimination is to exalt form over substance. The question is not whether men should have more or less rights than women (as would be the case if, say, men were allowed to unilaterally divorce their wives but their wives had no reciprocal rights to do the same), but whether or not gay unions are different enough from straight unions to warrant the state treating them differently. You are free to argue that they are not, but it’s hardly the open-and-shut case you make it out to be.

  3. tgirsch Says:

    X:

    Actually, there’s a pretty good empirical case to be made for not prohibiting cousins from marrying, even though I personally find the practice distasteful. Siblings are admittedly a tougher nut, but I think the possibility of reproduction and the known genetic risks of such incestuous breeding (never a worry in same-sex marriages) presents the very sort of potential tangible harm that BH and I have been requesting. Beyond that, if both partners were willing to demonstrate that they’d been sterilized, what the hell, why not?

    The case against polygamy is actually quite easy to make, just from the sheer complication of it. In the event that one spouse becomes incapacitated, who gets power of attorney, the ability to make medical decisions, etc.? In a two-person union, this is clear, but in a three-or-more person union, there’s all sorts of room for messy multi-party conflict that the state is best served avoiding. Similar issues come with things like divorce, death and inheritance, etc. And a one-person union is simply nonsensical from a legal perspective.

    Do you really find separate men’s vs. women’s bathrooms offensive, on a par with the black vs. white bathrooms that were prevalent in the Jim Crow era?

    Excellent point. Score one for the X-man.

    The question is … whether or not gay unions are different enough from straight unions to warrant the state treating them differently.

    Well, sort of. The question isn’t just that, but on which side we should err. In other words, should the burden of proof be on those who wish to engage in gay union to show that they aren’t different enough, or on those who wish to prohibit this to demonstrate that they are? You seem to favor the former, whereas I favor the latter.

    In all of this, I should note that I don’t think there’s any constitutional requirement to recognize same-sex marriage (or, indeed, to recognize marriage at all), at least not at the federal level (maybe in some state constitutions, there are provisions that can be construed that way — I don’t know). I simply think that recognizing same-sex marriage is the right thing to do, given the absence of any compelling evidence of harm.

    Of course, as mentioned way, way up there, this is all much ado about nothing, since the whole anti-gay-marriage hubbub is little more than election year grandstanding.

    Finally, most of this thread can be taken as evidence that name-calling is generally not a good idea, at least not if you want people who disagree with you to take you seriously. If your goal is to preach to the choir, then by all means fire away with the name-calling. If it’s to convince people and bring them around to your point of view, then it’s generally counterproductive (which isn’t to say that there aren’t cases where it’s warranted).

  4. Xrlq Says:

    The case against polygamy is actually quite easy to make, just from the sheer complication of it. In the event that one spouse becomes incapacitated, who gets power of attorney, the ability to make medical decisions, etc.? In a two-person union, this is clear, but in a three-or-more person union, there’s all sorts of room for messy multi-party conflict that the state is best served avoiding.

    The law could provide for that in any number of ways. It could say that in the event of a conflict, the older marriage prevails over the newer one – or maybe the other way around. Pick one, make that the law, problem solved. We have to make arbitrary decisions for corporations, limited partnerships and LLCs, why not do the same for three-way marriages (or overlapping ones, if you take the position that each member of the harem has her own separate marriage with … uh …. me?!)

    Similar issues come with things like divorce, death and inheritance, etc.

    Divorce could be tricky for three-way marriages, where A and C want a divorce from each other but neither wants a divorce from C. It would work, though, with two-way marriages uninhibited by laws against polygamy, where each legal link between any two persons is considered a separate “marriage” in its own right, and can therefore be severed without disturbing the others. As to inheritance, I see no reason why it’s any harder to leave property to my three wives, share and share alike, than it would be to leave the same property to my two sons, share and share alike, if something happened to both me and my one wife.

    And a one-person union is simply nonsensical from a legal perspective.

    True, but no more so than a one-man LLC, which some states allow, or a one-man corporation, which all states do. If the goal is to have the state act as though all lifestyles are equally wonderful, and all equally deserving of state recognition, when who is the state to leave anybody out?

    The question is … whether or not gay unions are different enough from straight unions to warrant the state treating them differently.

    Well, sort of. The question isn’t just that, but on which side we should err. In other words, should the burden of proof be on those who wish to engage in gay union to show that they aren’t different enough, or on those who wish to prohibit this to demonstrate that they are? You seem to favor the former, whereas I favor the latter.

    That’s basically right, but with two caveat. First and foremost, I think a distinction needs to be drawn between quasi-prohibitions like today’s ban on gay marriage (do what you want, and the state will leave you alone but not recognize your marriage) and genuine prohibitions on private, voluntary conduct (do what you want, and you’ll end up fined or imprisoned). Where true prohibitions are at issue, as with the criminal penalties for polygamy and the criminal penalties faced by the Lovings in Loving v. Virginia, I agree that the burden of proof should be on the one seeking to prohibit the conduct rather than on those seeking to engage in it. But where the only issue is whether or not the state should give its seal of approval, that’s a different matter entirely.

    Second, portraying this as prohibition vs. allowance obscures the fact that it’s not an either-or choice between gay marriage and no legal recognition of gay couples. Civil unions are another option, which can work just as well for gays while leaving the age-old institution of traditional marriage undisturbed. Given the choice between two versions of the same goal, one of which will have unpredictable results on traditional marriage, and the other of which will not affect traditional marriage at all, shouldn’t this one be a no-brainer?

  5. tgirsch Says:

    X:

    In what way would civil unions differ from “marriages,” other than in name? Is this really, at the end of the day, simply a battle over semantics? If a civil union was identical in every way to marriage, except that same-sex couples are permitted, and that you don’t get to call it “marriage,” that’s a compromise I’d be more than willing to accept in the short-term.

    If, on the other hand, a civil union is some form of “marriage lite,” where some benefits and legal institutions associated with marriage are still withheld, then I’d have to object to that.

    Re: Polygamy, a lot of what you say is much easier said than done, and that’s only the tip of the iceberg concerning the complications that are introduced with the third party. Suppose man A marries woman B, and then decides he wants to also marry woman C. Does woman B have any say in any of this? If so, what are her legal options?

    The bottom line, is polygamy is far, far messier than two-party marriages (much moreso than same-sex marriages could ever dream of being), and that in and of itself is a good practical case against state-recognized polygamy.

    Re: One-man LLCs and One-man corporations versus one-person marriages, the example still doesn’t wash. These business entities exist to enable a distinction between personal assets/liabilities and business assets/liabilities. They’re often abused, no doubt, but I’m not willing to say that it’s a nonsensical idea. Whereas in the case of one-person marriage, what is hypothetically split from what else? The benefits and institutions associated with marriage are useless and nonsensical in the context of a single party, and that’s simply not true of one-person corporations or LLCs. Especially since, in the latter two cases, additional parties can be added after-the-fact, in many cases without substantial effort. Sell stock in your one-person corporation to Person B and Presto!, you’re a two-person corporation.

  6. tgirsch Says:

    Also, I take exception to your characterization of the only thing being at issue is the state simply “giving its seal of approval.” It goes well beyond that, in that marriage confers various legal and economic benefits not available to the unmarried. If marriage were simply a meaningless title handed out by the state, I’d be inclined to agree with you, but it’s a lot more than just a “seal of approval.”

  7. Xrlq Says:

    In what way would civil unions differ from “marriages,” other than in name?

    None necessarily, all potentially. Basically, rather than straight out copy marriage as an institution, I’d poll gays as to what aspects of marriage it is that they want. Specific legal incidents they can use, such as hospital visitation, inheritance rights, etc., would be included, but parity for parity’s sake would not be an objection. And when deciding on what the rules for divorce should be, it would be up to the gay community to decide what’s best for them, without regard to whether that same system happens to be the best for us over on the marriage side. I would not be at all surprised, for example, if the gays decide that no-fault EZ-divorce is the way to go, while straights decide differently. Hell, I don’t even rule out the possibility that lesbians might want one set of rules for themselves, distinct from the rules that apply to civil unions of gay men. All this is, for the most part, uncharted territory.

    After both (or all three) institutions have existed side-by-side for at least a generation, if they’ve all evolved in the same direction, and there’s no reason to think they’ll diverge later, then the institutions could be merged then. Legal and judicial economy, not “marriage equality” as an end in itself, should be the principal driving forces.

    Also, I take exception to your characterization of the only thing being at issue is the state simply “giving its seal of approval.” It goes well beyond that, in that marriage confers various legal and economic benefits not available to the unmarried.

    So do “seals of approval” of other varieties, as well. But an alternative institution could confer some of those benefits, all of them, or possibly some other benefits not included in marriage. In any event, the absence of legal benefits deriving from such a seal of approval is hardly the same as a prohibition. To argue otherwise is to dilute the meaning of “prohibit” to the point where current law not only “prohibits” gays from getting married; it also “prohibits” straights from remaining single.

  8. SayUncle » Vote No on 1 Says:

    […] As co-blogger Brutal Hugger said here: Every poll shows that opposition to marriage equality correlates strongly with age. The future is clear, and nobody rationally doubts that America will eventually have marriage equality. The question is can we get there now or do we have to wait a couple decades for the bigots to die of old age. I’m guessing the latter, but as the slim majority becomes an overwhelming minority in state after state after state, momentum on this issue is going to shift pretty fast. […]

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