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Answering Ross Douthat

by Alan Scott

On November 20th, 1998, John Lawrence and Tyron Garner were found guilty of violating Chapter 21 section 21.06 of the Texas Penal Code, which made homosexual intercourse a class C misdemeanor. They were each fined $100. Their lawyers, from the gay-rights group Lambda Legal, considered this to be unacceptable. And so they asked the court to increase the fine to $125.

Lawrence v. Texas, argued before the supreme court in 2003, invalidated sodomy laws in the United States and was an early step on the path that is likely to end with legal same-sex marriage in all fifty states. But it was a miracle that the case ever got that far. Lawrence and Garner were only arrested because of a melodramatic confrontation spurred by a false police report. They hadn’t actually engaged in illegal sodomy that night, and could easily have proved their innocence in court. And even after they plead “No Contest”, the penalty was so small that they wouldn’t be allowed to appeal (hence request for an increased fine).

So why the fuss? Why did gay rights advocates feel such a driving need to challenge a law that was so rarely enforced and then only for a slap-on-the-wrist punishment?

They did so because the mere existence of such laws continued to do real harm to gay men and women. Because they were, undeniably, criminals. Even though Lawrence and Garner hadn’t broken the law that night, they’d been breaking it regularly for most of their adult lives. The label of criminal put gay people in danger of losing their livelihoods and their families. This ACLU article catalogs the ways in which the lawbreaker status of LGBT individuals was used to attack their right to organize, put their jobs in danger, and remove their children from their custody. The real danger of anti-sodomy laws was that they signaled an official disapproval of LGBT people, and in doing so helped maintain a culture of LGBT discrimination.

Indiana’s recently passed RFRA is similar to the Texas sodomy law, in that it’s greatest danger is the signals it sends about what treatment of LGBT people the state of Indiana finds acceptable. The law was written at the behest of anti-gay lobbyists and sold to supporters on that basis. The furious reaction we’ve seen is likewise a response to the signal the law sends, rather than the specifics of its operation.

Dennis, in his two posts wonders whether that backlash might be going to far. He points out that “Within reason, no one should have to compromise their faith to live in the wider society. We need to honor their consciences even if we think that their beliefs are wrong.” He points at the Utah Compromise as a possible way forward.

Dennis is right. A society that has no place for the religious beliefs that we disapprove of isn’t any better than a society that has no place for gay people. The issue of what sorts of accommodations society should make is not an easy one to puzzle out.

And yet, we have puzzled them out. Within living memory, a significant number of American Churches taught that separation between races was divinely ordained. Religious faith was held up as a shield against the forces of desegregation, and our country was forced to grapple with the conflict between religious pluralism and society’s need to combat prejudice. I see no reason why the same policies can’t be applied in the case of LGBT individuals and same-sex marriages.

This flippant statement, though, is upsetting to Ross Douthat. Douthat writes:

And whether you find this view, this analogy, persuasive or you don’t, it has a lot of possible further implications. Because in the annals of American history, both Jim Crow and the means we used to destroy it are, well, legally and culturally extraordinary. So if our current situation with same-sex marriage and religious conservatives really is analogous, there is no obvious reason why we’ve reached any kind stopping point once the florists and bakers have been appropriately fined or closed down.

Hence the following seven questions about future steps, which I’ll pose specifically to Epps and generally to the Indiana law’s many liberal critics. Some are rooted in real-life examples and possibilities; some are much more (I think) unlikely. But I’m still quite interested in whether people would support them if they were to become plausible options a little ways down the road.

As a gay, liberal critic of the Indiana law, I’ll take a shot at answering his questions. That said, I don’t speak for all liberals, and I certainly don’t speak for all gays. I am not someone who has suffered for his sexual orientation. The worse that’s ever happened to me is that a handful of times, someone’s said something nasty to me and I had a bad day. There are LGBT people in this country that have suffered (and in many cases continue to suffer) ongoing harassment, economic discrimination, and violence because of their sexual orientation or gender identity. While eliminating that suffering is my primary goal in advocating for LGBT rights, my take on the issues cannot substitute for the opinions of those who bear the brunt of anti-gay bigotry.

And so, onto the questions:

1) Should religious colleges whose rules or honor codes or covenants explicitly ask students and/or teachers to refrain from sex outside of heterosexual wedlock eventually lose their accreditation unless they change the policy to accommodate gay relationships? At the very least, should they lose their tax-exempt status, as Bob Jones University did over its ban on interracial dating?

The first question I ask to judge whether a discriminatory practice should be permissible is: how likely is the practice to cause harm to a member of the group it targets?

The question of harm is so tricky because college is a period of change and self discovery. If every student had a complete understanding of their sexuality when they chose which college to attend, an anti-gay honor code would present no problems—gay students would just go somewhere else. But in real life, students may very well discover that their sexual identity (or, for that matter, their religious identity) is at odds with the expectation of the college they attend.

Religious colleges have an educational obligation to their students in this matter (as do all schools. For example, Women’s colleges must deal appropriately with the issue of gender-transitioning students.) That doesn’t mean that a bible college student who comes out two weeks into freshman year should be allowed finish his bachelor’s degree, but it does mean that the college should make a good-faith effort to help the student transition into a more appropriate educational environment without imposing further hardship.

Accreditors have a perfectly legitimate interest in such questions of student treatment. But the Accreditor’s primary purpose is to gauge whether the school is remaining faithful to its educational objectives. And schools with religious objectives are entitled to support those objectives with religious codes of behavior, and to do so without risking their accreditation.

2) What about the status of religious colleges and schools or non-profits that don’t have such official rules about student or teacher conduct, but nonetheless somehow instantiate or at least nod to a traditional view of marriage at some level — in the content of their curricula, the design of their benefit package, the rules for their wedding venues, their denominational affiliation? Should their tax-exempt status be reconsidered? Absent a change in their respective faith’s stance on homosexuality, for instance, should Catholic high schools or Classical Christian academies or Orthodox Jewish schools be eligible for 501(c)3 status at all?

Such practices generally pass the harm test. But there is a second question I ask to judge the permissibility of a discriminatory practice: Does this practice work to support or maintain a culture of discrimination? As in the case of the Texas sodomy law, it’s possible for something that is directly harmless to nevertheless lead to a situation where significant harm is done.

That’s not the case here. Anti-gay schools don’t significantly contribute to a broader environment of anti-gay animus, because their students would likely still hold anti-gay religious beliefs even if they attended public universities or gay-supportive private universities. If anything, the existence of such schools reinforces the belief that anti-gay prejudice has no place in broader secular culture.

All schools, regardless of whether they are secular or religious, and regardless of whether the religious schools are guided by anti-gay theology, should be eligible for 501(c)3 status. That way, the conferral of such status doesn’t in any way represent government support (nor opposition) to the views espoused by the school. I’d be much more wary of a scheme by which the government decreed that some schools were worthy, while others were not. For that reason, I disagree with the supreme court on the matter of Bob Jones University, and certainly wouldn’t approve of any similar effort to strip Universities of tax-exempt status because they maintain anti-gay doctrines.

3) Have the various colleges and universities that have done so been correct to withdraw recognition from religious student groups that require their leaders to be chaste until (heterosexual) marriage? Should all of secular higher education take the same approach to religious conservatives? And then further, irrespective of leadership policies, do religious bodies that publicly endorse a traditional Judeo-Christian-Islamic view of sexual ethics deserve a place on secular campuses at all? Should the Harvard chaplaincy, for instance, admit ministers to its ranks whose churches or faiths do not allow them to perform same-sex marriages? Should the chaplaincy of a public university?

Colleges should be free to dictate viewpoint-neutral rules for student groups, including rules that require groups to be open to all students. Carving out exceptions to these rules, especially when those exceptions are specific to anti-gay practices, sends the message that religiously motivated anti-gay discrimination is more acceptable than other forms, and therefore supports a culture of homophobic discrimination.

As I said, my experience as a gay man has been an overwhelmingly positive one, and that’s in no small part due to the love and support I’ve received from my family. And all of that love and support is rooted in Catholic family values, values more important and more integral to the faith than the church’s official doctrine on homosexuality. The phrase “Traditional Judeo-Christian-Islamic view of sexual ethics” is absolute nonsense, because there’s no one view that’s common to all religions, or to all denominations of a single religion, or even to all members of a single denomination. There is absolutely no reason that a school like Harvard can’t have a chaplaincy that includes Catholic Priests, Orthodox Rabbis, and Evangelical Ministers while still providing affirming religious council to LGBT students of faith.

4.) In the longer term, is there a place for anyone associated with the traditional Judeo-Christian-Islamic view of sexuality in our society’s elite level institutions? Was Mozilla correct in its handling of the Brendan Eich case? Is California correct to forbid its judges from participating in the Boy Scouts? What are the implications for other institutions? To return to the academic example: Should Princeton find a way to strip Robert George of his tenure over his public stances and activities? Would a public university be justified in denying tenure to a Orthodox Jewish religious studies professor who had stated support for Orthodox Judaism’s views on marriage?

Remember how I said my bad experiences were just a handful of bad days? Most of those days happened in 2008. In the worst, a woman accused me of being a pedophile who supported gay marriage because I’d be able to molest young boys. Brendan Eich’s money helped pay for that confrontation. I imagine many of Mozilla’s LGBT employees and volunteers had worse experiences that I because of Proposition 8, and Eich’s refusal to acknowledge the pain he caused absolutely justifies Mozilla’s actions.

I have yet to hear an argument in opposition to same-sex marriage rights that is not, on some level, and insult to gays and lesbians. Every argument paints us as sick or sinful or unnatural or un-whole. That is not a thing you get to say to people without occasionally suffering consequences. When your career success depends on not insulting people, on not making enemies, loud support for same-sex marriage is going to hold you back. There is no great political-correctness brigade that is holding back people like Eich or the hypothetical Orthodox Jewish professor. They’ve been tripped up by universal rules of human interaction.

Professor George has the best of it. Tenure exists, in large part, to relieve academics of the need to be polite and otherwise keep people happy. Stripping a professor of tenure on the basis of unpopular opinions seems to defeat the purpose of the institution.

5) Should the state continue to recognize marriages performed by ministers, priests, rabbis, etc. who do not marry same-sex couples? Or should couples who marry before such a minister also be required to repeat the ceremony in front of a civil official who does not discriminate?

6) Should churches that decline to bless same-sex unions have their tax-exempt status withdrawn? Note that I’m not asking if it would be politically or constitutionally possible: If it were possible, should it be done?

Yes to 5, no to 6. Clerical officials who refuse to participate in same-sex ceremonies do no harm to same-sex couples, because they can always be married by supportive clergy or civil officials. Nor do tax-exempt churches do any harm that tax-paying churches would not.

7) In the light of contemporary debates about religious parenting and gay or transgender teenagers, should Wisconsin v. Yoder be revisited? What about Pierce v.Society of the Sisters of the Holy Names of Jesus and Mary?

I don’t know the answer to this question. I don’t even know if there is a good answer to this question. Undoubtedly, there are parents who do their children harm because of homophobic or transphobic beliefs. But just as surely, there would be a great many children harmed if the state chose to insert itself into the family relationship in some ham-handed attempt to protect them. I’ve heard many stories about LGBT children and their parents. Most of them have happy endings, but the beginnings aren’t always so pleasant. Sometimes there is confusion. Sometimes there is pain. But in most of those stories, the confusion and pain give way to love and to understanding. Mandatory secular schooling, doesn’t seem like something that’s going to lead to more happy endings.

The best that can be done is to change the culture. There’s no reason except inertia that most christian schools and yeshivas and madrassas can’t be just as accepting of homosexuality as public schools are. America’s faithful are much less homophobic and transphobic today than they were a few decades ago. I believe that a few decades from now, they will have continued to improve.

Douthat and his ilk see religious discrimination against LGBT people as enduring and integral to the faith. Therefore, burdens against such discrimination are a unique imposition upon religious freedom and rights of conscience. But that’s hogwash. A Christian citing Genesis 9:25 to justify racism or a Christian citing Deuteronomy 28:28 to justify disability bias has the same right to religious freedom as the Christian citing Leviticus 18:22 to justify anti-gay views. And the Atheist who opposes gay marriage is exercising his right to conscience no less than the Christian.

If the law carves out an exception for religious opposition to gay marriage, then it’s treating that view as more valid and more worthy of respect than other discriminatory views. Such a treatment is not only harmful to the LGBT community, but is also harmful to the religious community. Faith need not be linked to bigotry. Religious views about the issues of the day can and do evolve just as much as secular views. To calcify religion at its worst and most bigoted by writing that bigotry into law is to do it a great violence.

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88 thoughts on “Answering Ross Douthat

  1. I can hardly believe that Douthat asked 5 and 6. Seriously, does he think that marriages performed by someone who would refuse to marry a black man to a white woman are invalid, or that a church that preaches racism is declared not a church? I guess the NYT really does pick its conservative columnists to discredit the right as a whole.

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    • Frankly I think Douthat was in a very slight bit of a lather when he wrote this article. Feeling one’s fingers slowly, sllllowly losing their commanding grip on the levers of social power is clearly very disconcerting.

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      • Reminds me of Corey Robin’s view (one which Saul recently referred to so it’s been on my mind again) that conservative politics is primarily concerned with preserving “conservative” privilege.

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      • This would seem to suggest that once Douthat calms down and reflects on what he wrote, he will regret having written it, and perhaps even retract it. Nothing in his body of work that I am aware of would suggest any of this.

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      • People in Douthat’s position avoid retracting anything they write, they water it down gradually and then forget about it at the very best or stick to their guns at the worst.

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    • Among other things, I judge positions based on how bad and dishonest the arguments presented by professional advocates are. (I don’t throw stones at ‘barstool BS’, because I’m guilty, also).

      When a professional raises that argument, despite the First Amendment, and despite considerable precedent that racist churches get to continue their racism, I conclude that they do not have any better arguments.

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    • Not only that, but it seems like he completely avoided the issue with respect to public accommodations. I don’t headhunt conservative columnists as much as I used to (apathy perhaps) but my reaction to those two questions was a big WTF.

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  2. This itself is odious because “separate but equal” is inherently unequal.

    If every student had a complete understanding of their sexuality when they chose which college to attend, an anti-gay honor code would present no problems—gay students would just go somewhere else.

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    • I don’t know if I would call this “odious”.

      “Separate but equal” is inherently unequal. But there are lots of things that are separate and unequal but still not a justice problem.

      Folks over 45 aren’t eligible for the draft. This is because folks over 45 make bad soldiers if they aren’t already career soldiers. People that can’t lift a fire hose and carry it X feet aren’t eligible to be firefighters. This means disabled folks can’t be firefighters.

      Is it fair that the gal in the wheelchair can’t be a firefighter, if that’s all she ever wanted to be? (Maybe she used to be one, and that’s why she’s in the wheelchair, come to think of it). Is that fair?

      No.

      But it’s not a justice problem, because some things can be unfair and still be the way things are.

      That is not to imply that unfair things that are they way things are shouldn’t be examined and peeled apart and changed if they can be changed!

      But that doesn’t make them automatically odious, either.

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      • People that can’t lift a fire hose and carry it X feet aren’t eligible to be firefighters. This means disabled folks can’t be firefighters.

        The physical demands of a job are one thing. Innate characteristics that have nothing to do with the job are something else.

        Just because someone who is disabled and unable to lift and carry a fire hose aren’t eligible to be firefighters, they shouldn’t be disallowed from training to be dispatchers.

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  3. I enjoyed the living daylights out of this article, and Dennis’ two pieces before it, and I think the Utah Compromise is a pretty good idea. So let me push back on something:

    Anti-gay schools don’t significantly contribute to a broader environment of anti-gay animus, because their students would likely still hold anti-gay religious beliefs even if they attended public universities or gay-supportive private universities. If anything, the existence of such schools reinforces the belief that anti-gay prejudice has no place in broader secular culture.

    I don’t think that’s true. The existence of “anti-gay” schools, particularly religiously-aligned universities enjoying a degree of prestige (Georgetown, BYU, TCU, Loyola, many of the Ivies, Pepperdine, Notre Dame, Xavier, etc.) are cultural institutions in their own right. Consequently, they lead rather than follow cultural changes. Tolerating the stasis of being, for lack of a better term here, “anti-gay” will slow rather than catalyze the sort of efflorescence of tolerance that society as a whole (which includes and in most cases embraces religious institutions) is happily experiencing within our lifetimes.

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    • I agree, but, to Douthat’s question, presumably they nevertheless shouldn’t lose tax-exempt status, surely…

      Which points up the problem with ‘tolerance’ as a social aim (or problem). We can approve of things; we can tolerate them; etc. Should we punish anti-gay ideas by denying institutions that advance them certain public privileges? At some level that may be appealing, but it raises the specter of a rigorous political correctness overtaking public support for social goods like education. Does not doing that constitute official tolerance of discrimination, though? It seems to surely, to me, indeed it seems to verge on approval (though not specificly aimed at those ideas).

      So then, are we agreed that the government should tolerate these ideas? Approve of them so far as not refusing to support them with tax breaks constitute approval? Framed that way, it doesn’t sound so great. But then again, as mentioned, the idea of vetting every educational institution receiving public dollars for objectionable ideas sounds deeply illiberal.

      These are not actually such easy questions.

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      • But this gets at the absurdity of the tax-exempt status in the first place. Some educational institutions are not tax-exempt, generally because they are for-profit. So right there there government is privileging non-profits over for-profits. And with many of these “non-profits” sitting on endowments in the billions, it is really hard to see them as such. But because they employ certain business practices, they are looked favorably upon.

        Really, we should do away with the tax-exempt status.

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      • the absurdity of the tax-exempt status in the first place

        “In the first place” begins precisely where in this narrative?

        Are there any countries that have removed tax-exempt status of their churches? What happened in those countries?

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      • I’d eliminate it entirely; not just for churches. Why exempt some groups from paying taxes? Cuz we “like” what they do or how they do it? The tax code is not a social engineering code.

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      • Are there any countries that have removed tax-exempt status of their churches? What happened in those countries?

        They took more in in taxes. Also, they corrected the market distortion that resulted in excess church ownership of real estate. (OK, I made the second one up, but isn’t it the usual thing libertarians say about tax policy?)

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      • Mike,

        A while ago my wife and I owned a small coffee shop type business in a pretty small town here in CO. We were the first in, so we quickly developed a sizeable clientele and were profitable way before expectations.

        Well …. Pretty soon the local church, which owned some property on the ole main drag, decided that it made good business sense to open their own coffee shop-type thing, basically mimicking all the things we’d done. But they didn’t have to pay any taxes. Market distortion?

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      • I’d eliminate it entirely; not just for churches. Why exempt some groups from paying taxes? Cuz we “like” what they do or how they do it? The tax code is not a social engineering code.

        Would you apply that even to organizations designed, as their primary purpose, to serve the public in some obvious way, like a soup kitchen, or a hospital for the poor? I’ll grant that most of the time, the soup kitchen is sponsored by a broader organization that does other things and most hospitals, even if they serve the poor, probably still privileges those who can pay more.

        For the record, I’m very uncomfortable with tax exempt statuses (stati?), especially when/if the granting of such status is not facially neutral. For example, if churches can get tax exempt status but an atheist organization cannot, I think that’s wrong. I’d personally prefer to end all tax exempt statuses from churches if we were starting from a blank slate. But to me, service to the public in the form of charity work has become and has been for a long time enmeshed with religious institutions that I imagine it’s hard to separate one from the other.

        My use of “when/if” and “I imagine” should be a clue that I realize I don’t really know the facts of what I’m talking about. I’m just asking a followup to what you said and offering my own thoughts.

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      • I haven’t thought it through fully either. Tax-exempt status essentially confers public subsidy on the recipient. As a general rule, I’d rather see the government either offer the service itself OR allow the market to handle it. Subsidies are problematic, for many of the reasons you cite.

        I mean, essentially had his tax dollars pay to put him out of business. And while there are probably other instances of that happening (e.g., my school taxes could theoretically cause me to lose my job if the public school is preferred over my independent school (though the latter is tax-exempt, of course)), I think there is a difference between private companies competing with the government and private companies competing with each other where some get government subsidies and some do not.

        So, I’d rather see soup kitchens and the like offered by the government. And if a private group or individual wants to offer their own, they do so assuming all the costs.

        Actually, soup kitchens are a bad example. Because they don’t sell anything. I could actually maybe make an exception for private groups offering pro-bono goods/services. But they’d have to be truly pro-bono and available to all comers without qualifications (inventory willing).

        But health care? I’d rather we handle that with a single payer system that allows for private options that are fully taxed.

        And no frickin’ tax exempt coffee shops. It’s a damn shame what happened to Still and his wife.

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      • When I was asking about removal of tax-exempt status from churches, I was being serious.

        Has any other country done this? If so, what happened?

        I ask because here are my suspicions:

        Little Dinky Churches will be hit harder than Mega-Churches. The churches that close will be disproportionately on that side of the tracks instead of this one. With attendant demographics being hardest hit.

        Additionally, for decades, the whole “YOU CAN’T TALK ABOUT POLITICS FROM THE PULPIT!” argument has relied upon the whole “removal of tax-exempt status” threat. Remove tax-exempt status and, suddenly, the churches will find themselves without their golden handcuffs. I wonder how that will play out… I mean, we all know that pinkos go to the UU church and theocratic conservatives go to the Southern Babtist ones and so the pastors suddenly preaching “VOTE FOR PARTISAN POLITICS!” will not change a whole lot of votes one way or another… but maybe it might. If it does, I wonder how that would shake out.

        I assume that the people who had been threatening to remove tax-exempt status suspect that it’d shake out poorly for their side, else they’d spend more time turning a blind eye than making threats, but that’s just armchair psychoanalysis.

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      • I think the original idea behind tax exempt status was that taxes could be used as a weapon against certain churches as an end run around the establishment clause. That’s probably true of all sorts of things (Want to get rid of an unfavored sect? Just pass an oddly specific building code that makes them have to tear down and rebuild their house of worship!), but I’m guessing the tradition started when people were a lot more afraid of taxes than they were of building codes.

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      • I’m pretty sure that churches predate taxes by millennia if not tens of millennia unless you want to get really crazy and explore the idea that taxes and tithes have a lot in common and, hey, while we’re on that topic, didn’t churches and government have a lot in common in the past? Golly, I’m glad we’re not like *THAT* anymore!

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      • Thanks, , and for whatever reason, I hadn’t read ‘s comment before I made my own, and that really is a shame.

        You’re right about soup kitchens being a poor example. One reason I used it was because I used to know a baptist minister who defended tax exempt status to me on the ground that his church did a lot of social service. Not soup kitchens, but other things for the community, like offering free food vouchers to be redeemed at local grocery stores, and after school programs for young children. But I suspect he wouldn’t accept that a quota of pro-bono service be required for exemption.

        To non-answer ‘s question, I don’t know. I wouldn’t be surprised if France has done it because it’s such a secular country. I also believe disestablishing churches was one feature of the Mexican Revolution, at least in one of its iterations. Not sure how long it lasted (if tax exemptions were ever really or fully disestablished in the first place), or where things stand now there.

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      • I think at some point we need to define our terms. Everyone seems to be assuming that ‘tax exempt’ is just something that can be removed from churches, or that they have some specific thing. They’re not, they’re the same as other charities.

        Corporations that file under the 501(c) part of the tax codes are called non-profits, and they don’t pay corporate tax because they literally have no profits. It is illegal for such corporations to distribute money to owners. Hence, no corporate profits. (And, by ‘owners’, what is usually meant is ‘members’, who each tend to hold one, non-transferable, expiring, slice of ownership called a membership. But ownership can structured other ways.)

        Corporations that file under the specific 501(c)(3) section are called ‘charities’. You can *deduct* donations to them on *your* taxes, which makes them different from other 501(c)s. (Other sections of 501(c)s have things like secret societies/fraternities and unions and cemetery maintenance organizations…yes, really. It’s some strange bedfellows…and oddly political non-profits aren’t there, they’re over in 527.)

        As an aside, a lot of people here seem to be talking about a lot is property taxes, which has, technically, nothing to do with what the Federal government thinks about all this. That’s a *state law* exempting places from state property taxes…which currently, I believe, all states exempt 501(c)(3) organizations (And sometimes other 501(c) orgs?), but they don’t *have to*, the states just use the Fed’s definition out of convenience. Same with sales tax exemption, I believe.

        Anyway, to continue, back to Federal tax code: A very specific rule of 501(c)(3)s is that they cannot exist solely as a club providing member benefits. (That is, again, what other sections of 501(c)s are for) They are supposed to provide *benefit to the public*. These organizations have a *specific requirement* to, in some way, make the world better. They have to exist for the the purpose of ‘charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals.’

        Churches actually exist on the *very fringe* of this rule. They spend a *hell* (ha ha) of a lot of money on stuff that almost entirely benefits the members. They pay staff to stand in front of (almost entire) them and give speeches. They create discussion classes mostly *for themselves*. They have a building *for themselves*.

        Yes, they *nominally* allow the public to visit all this stuff, for free. But it’s *really* for them. (And someone’s about to mention soup kitchens…but, oddly, I actually suspect that most soup kitchens are a separate 501(c)(3) from the church that runs it. Not that any churches run soup kitchens anymore.)

        I help run a non-profit theatre, and I have to mention that if what *we* did was solely to have a meeting once a week that was 90% members, and then break into little groups of, again, 90% members, to talk about theatre-y things, we would not actually be a charity, just a non-profit club. I’m not sure at what point, *legally*, we’d stop being a charity, but we certainly wouldn’t be one in spirit.

        Churches are, in a sense, grandfathered in because we assume that *all* religions somehow provide public benefits. This is…rather dubious, and almost certainly unconstitutional as an assumption.

        It’s probably time to make a different section of 501(c) and put churches under it. Which, I must repeat, would still make them non-profits, and still make them pay no taxes…and I wouldn’t be adverse to donations to them still being tax exemption, also. (Well, I wouldn’t be *too* adverse to it.) But churches basically stopped being charities a long time ago, and in fact I’m not entirely sure they ever were in the US…that’s some sort of weird throwback to when official state churches were actually expected, by the state, to provide various forms of welfare.

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      • Oh, and I failed to mention this, but the reason that Bob Jones lost their 501(c)(3) status (They would still technically be a non-profit, and not owe taxes, AFAIK. It’s just donations to them wouldn’t be tax exempt.) is that discrimination is something that charities generally cannot do, because doing so means they clearly aren’t a charity. Charities must provide services to the *public*.

        Charities probably shouldn’t (in the legal sense) discriminate even if there weren’t anti-discrimination laws. I.e., someone who opens a bakery has the right to refuse service to anyone they want, _unless_ laws prohibit that. But someone who opens a charity has a much higher standard to meet, and really should have some good reason for refusing to provide this ‘charity’ to specific people, because the entire reason they are *allowed to exist* is to provide charity to *the public* in general. That doesn’t really mean ‘everyone in all circumstances’, but it sure as hell doesn’t mean ‘only white people’ or ‘only people in relationships with their own race’.

        Of course, for some reason, we allow *actual churches* to discrimination not only past a level appropriate for charities (Which should be no discrimination at all!), but past the actual level we forbid everyone from discriminating in general (No discrimination based on protected classes.). Which is *another* piece of proof that churches don’t belong under ‘charities’.

        (And knowing how charities are supposed to operate adds yet another level of moral repugnance to those ‘charities’ the government hired to help run adoptions, but discriminate against gays.)

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      • Did a little bit of research and it looks like France allows churches (religions) to… I’ll just cut and paste it.

        http://en.wikipedia.org/wiki/Religion_in_France

        Religious organizations are not required to register, but may if they wish to apply for tax-exempt status or to gain official recognition. The 1901 and 1905 laws define two categories under which religious groups may register: “associations cultuelles” (associations of worship, which are exempt from certain taxes) and “associations culturelles” (cultural associations, which are not exempt from these taxes).

        Associations in these two categories are subject to certain management and financial disclosure requirements. An association of worship may organize only religious activities, loosely defined as liturgical services and practices, but no social or diaconal ones. A cultural association may engage in social as well as in profit-making activity. Although a cultural association is not exempt from taxes, it may receive government subsidies for its cultural and educational operations, such as schools. Religious groups normally register entities under both of these categories; churches run strictly religious activities through associations of worship and operate schools and social activities under cultural associations.

        So it looks like France kinda does have tax exempt status for Churches. (And, for what it’s worth, a minister I know told me about his pay/benefits and he complained about how he had to pay his full Social Security withholding rather than split it 50/50 with his employer.)

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    • Which Ivies do you think are anti-Gay?

      AFAIK, all the Ivies have dropped their religious orientations largely and have open and vocal LGBT communities. I don’t think there is an Ivy League school where being gay can get you kicked out. The Ivy League is Cornell, Brown, Penn, Princeton, Yale, Harvard, Columbia/Barnard, and Dartmouth. That’s it.

      http://www.hsph.harvard.edu/student-handbook/student-life/discrimination-policy-against/

      “In accordance with Harvard University policy, the Harvard School of Public Health does not discriminate against any person on the basis of race, color, sex, sexual orientation, gender identity, religion, age, national or ethnic origin, political beliefs, veteran status, or disability in admission to, access to, treatment in, or employment in its programs and activities.”

      Georgetown University is Jesuit but they also are non-discriminatory on sexual orientation:

      “Georgetown University provides educational opportunities without regard to, and does not discriminate on the basis of, age, color, disability, family responsibilities, familial status, gender identity or expression, genetic information, marital status, national origin, personal appearance, political affiliation, race, religion, sex, sexual orientation, source of income, veteran’s status or any other factor prohibited by law in its educational programs and activities.”

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    • As Saul points out with his examples above, religious universities can be supportive of LGBT rights. This is true even for universities whose affiliate churches have doctrine that opposes homosexuality and transgenderism.

      The overlap between religious universities that refuse to support gay students and religious universities with secular prestige is small, and growing smaller.

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      • This is as it should be and I do not claim any university in particular is “anti-gay.” As notes, many of universities are leaders in the push for acceptance.

        My point, which I see now was clumsily made, is that universities are cultural leaders. Since we are talking about cultural change, we ought to be mindful of this fact. If there is an individual who holds “anti-gay” (again, for want of a better term) views, Douthat asks whether such a person is disqualified from leadership within such an institution. As the university is a cultural leader, the “anti-gay” candidate’s views probably ought to be taken into account.

        As I’ve suggested elsewhere, this need not necessarily be a disqualification, but it may need to be offset by something else.

        My apologies to the extent I was opaque.

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  4. In the longer term, is there a place for anyone associated with the traditional Judeo-Christian-Islamic view of sexuality in our society’s elite level institutions?

    Well their room for people with a variety of racist and sexist and bigoted views at every level of society. They are just limited in some cases by how they can act out those views on others.

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  5. Anti-gay schools don’t significantly contribute to a broader environment of anti-gay animus, because their students would likely still hold anti-gay religious beliefs even if they attended public universities or gay-supportive private universities.

    I’m not sure that one follows the other; for instance, anti-gay families may only offer support to their children to go to anti-gay schools or (in some cases) pressure their gay children to go to anti-gay schools in the same way as gay children were sent to anti-gay camps.

    The problem here is not children who are both straight and who hold their families religious beliefs, but children indoctrinated with anti-gay beliefs who are gay despite their families’ beliefs.

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  6. Douthat wrote, of gay marriage and the civil rights movement:

    “And whether you find this view, this analogy, persuasive or you don’t,…”

    This is the heart of why social conservatives constantly talk past the issue. They believe that when liberals talk of gay marriage in civil rights terms, this is merely an analogy. The sense is that liberals are trying to score a rhetorical point by relating the two, since the civil rights movement is officially a Good Thing. Even the conservatives agree. They have stopped fighting the civil rights movement–at least overtly–and now claim that they were for it all along, and that Martin Luther King, Jr., was a good 21st century Republican.

    What they have trouble with is that to liberals, gay marriage isn’t a cause that happens to bear some resemblance to the civil rights movement, with the discussion that follows being whether this resemblance is greater or lesser. Gay marriage, and gay rights in general, is a *continuation* of the civil rights movement. The civil rights movement was incomplete. This is not only in the obvious sense that cops today shoot black men and walk away from it. It is also in the sense that blacks were and are not the only group facing discrimination for who they are. The point about “who they are” is key. Even social conservatives deep down understand this. This is why it is so important for them to claim that being gay is a choice, or something that can be cured. Once they admit that straight or gay or something in between is simply what a person is–part of the human condition–then the jig is up.

    This is also why the question that Douthat follows with are so clearly disingenuous. A religious institution has broad authority to do whatever it wants internally in its religious observance, but not in how it offers goods and services to the public, and it can’t expect government funding.

    And really, Ross, you are heading down the “they’re going to make priests perform gay weddings” road? Really? This is the best you can come up with? A Catholic especially should understand that churches are not required to perform or recognize all marriages. Yet here is he with the scare tactics usually reserved for use with the completely uninformed: a proud moment for the New York Times!

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  7. “I have yet to hear an argument in opposition to same-sex marriage rights that is not, on some level, an insult to gays and lesbians.”

    For adherents of the alternative, so-called “traditional” view, the primary argument is a “for,” not an “against” – specifically for a sacralization of procreative unions (“the marriage sacrament”), to be acknowledged by any acceptable civil society, without direct reference to other types of unions or relationships. I know that arguments independent of any characterizations of gays and lesbians or any judgments of typical or supposedly typical lifestyles, but against what Mr. Scott means by “same-sex marriage rights” – an absolute moral necessity of access by same sex couples to existing institutions of marriage – have in fact been presented to him, since I was the one presenting some to him almost exactly 1 year ago (see comments especially).

    Though the author has somewhat softened his rhetoric since then, he is still basing his position in favor of marriage equality on a reaction to unreasoning hostility that implicitly gives license to reciprocating unreason and hostility – as frequently evident on discussion threads at OT, among many other places. Even those of us who do not see marriage equality as in itself a significant threat to the traditional institution may still be repelled by a public discussion and an associated political-legal-social process that take that form. Some observers may be further disturbed by the state and civil society combining in different ways to suppress dissent and refuse any non-prejudicial consideration of its bases – again, without reference at all, much less “insult,” to gays and lesbians.

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    • If a religion wished to sacralize only certain sorts of union, it is entirely free to do so. But the state doe not sacralize anything, nor is it associated with any particular religion, and if it determines to allow other sorts of unions, on legitimate principles like majority vote or constitutional law, religions have no veto power over that, nor should they. Even expressing the desire to have one is unseemly, like shouting down a member of some other religion who’s been invited to officiate at a state occasion.

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      • I tried to choose my words carefully. Attempting to describe the outlook of a certain type of opponent of SSM, I wrote, emphasis added, ” a sacralization of procreative unions… to be acknowledged by any acceptable civil society.” The state is implicated via administrative law affecting civil society when it recognizes a rite held by the people who make up society to be sacred. In this instance the state itself does not act to sacralize, or it at most validates or extends the sacrament, because required to do so. In other respects, whether or not the secular state uses explicitly religious terminology, it will and must treat, and validate, its significant acts as articulations of or in relation to the sacred, not least because the vast majority of the human beings whom it is meant to serve treat their own lives (and deaths, and families) that way. (Whether “separation and church and state” is complete, and whether complete separation is possible or, if possible, desirable, is questionable, whatever we prefer to believe or say.)

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      • it will and must treat, and validate, its significant acts as articulations of or in relation to the sacred,

        Which leaves open the question: using whose definition of the sacred? Clearly, until quite recently not that of the Episcopal Church, as Tod points out in his related post. Is it really wise for the state to be choosing among different religions? (As a member of one which is a tiny minority and has a long history of suffering when the state does so, you know my answer.)

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      • In fact, Douthat’s use of the idiotically spurious term “tradtitional Judeo-Christian-Islamic” is a transparent attempt to privilege his views over everyone else’s,and answer the question “My definition, of course. It’s the real one.” Fish him.

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      • The American state creates and invokes its own definitions of the sacred, or rather the People do – among other things, though of very high importance to them or us, in order to call for and receive “sacrifice” up to and including “supreme sacrifice” from believer-citizens.

        I am personally of the opinion that “separation of church and state” amounts to subordination of all other religions to what theorists and political philosophers have called a “civic religion.” That civic religion happens to conform to or be operable within the broad parameters of an abstraction Protestantism (what you might call a lowest common denomination) that is idealized enough to be inclusive of that certain minority religion, which happens to be its theological and moral-legal fore-parent. It’s also pretty good at absorbing more resistant religions and quasi-religious outlooks, including atheistic ones. You can think of the civic-religious state as being like the Borg, just more comfortable with letting the civilizations it assimilates keep their preferred costumes and customs, up to a point. If you don’t like it, you’ll have to take it up with the People.

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      • Douthat’s a pundit and partisan – though a rather mild one – not a theologian or historian of religions or political philosopher. For some punditistical reason, he decided not to use the common term “Abrahamic” to refer to the three related monotheistic religions. (For all I know, some very correct scholar somewhere protested the usage, and I never got the memo that Douthat did.) Otherwise, I don’t know how it’s possible to have a view without in some way privileging it over everyone else’s. That’s kind of the point of having a view, or what it means to have a view – it’s the thing you think that you think is right or closer to right as far as you can tell. You’re allowed to keep it. Says so right in the Bill of Rights.

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    • Of course you’re allowed to keep it. But complaining that it’s not the one most people use these days isn’t principle, it’s just whining. Really no different from me throwing a tantrum that I can’t use Wodehouse in my puzzles anymore because none of you unprincipled bastards read him.

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      • I think the real reason you can’t use Wodehouse in your puzzles is his works aren’t very distinguishable from each other. I love me some Jeeves & Wooster, but I’ve got no idea which bit’s in what book–and that’s tricky for trivia.

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      • Fair enough. I certainly wouldn’t have got that one regardless as my experiences reading Wodehouse have been exclusively limited to the young Mr. Wooster and his valet. But the various adventures of that pair are much less distinguishable by title than, for example, the adventures of Mr. Holmes and Dr. Watson.

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    • Your argument, as presented, is simply a statement that gay people don’t count. That families like Dennis’s or Russell’s or my cousins or the one that I hope to have one day are just inherently less worthy of respect by virtue of the genders of those involved.

      Of course this is insulting to gay people. I realize that you don’t intend it to be insulting, and that these beliefs aren’t meant to indicate a dislike of gay people, but that doesn’t matter. Whenever we have this conversation, you keep emphasizing the purity of your motives–here, you contrast them with “unreasoning hostility”.

      But I don’t give a flying fuck about your motives! I am under no obligation to stand around and have a lofty philosophical debate about something that actually affects my life and the lives of other people like me. Your argument that gay relationships are fundamentally less sacred than straight relationships doesn’t magically become more acceptable to me because it doesn’t stem from animus.

      When I said that every argument against gay marriage was an argument that gay people were evil or insane, that wasn’t an invitation to come up with better arguments. It was a plea that you stop trying. Because I don’t care about how sound your arguments are, and I don’t care about how well-intentioned your arguments are. Every argument sounds the same to me, because they are arguments against me. They will never convince me, and I will never look kindly upon you for offering them.

      There is a difference between politeness and friendship. There is a difference between toleration and respect. A person who argues against rights for LGBT people is someone I can be polite to, and someone I can tolerate. But they are unlikely to be my friend, and unlikely to earn my respect.

      When someone argues vocally or contributes money in opposition to my very identity, they don’t get invited to my birthday party. I won’t go to watch their band play at the club. If they’re running for office, they don’t get my vote. If they become CEO of my company, I might start looking for a different job.

      There’s a reason I raise this point when talking about whether Brendan Eich was a good fit for Mozilla CEO and not when talking about BYU’s honor code and how that should affect its tax exempt status. I don’t in any way mean to suggest that private individuals or religious institutions don’t have the right to oppose gay marriage, or that such opposition should result in any sort of official sanction.

      But freedom of speech isn’t the freedom to have others agree with you, nor even the freedom to have others take you seriously. If you say controversial things, it’s on you to deal with the consequences of that controversy.

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      • Let’s distinguish between “my argument” and “the arguments.” My argument is a response to your claim that “the arguments” always rely on an “insult” to gays and lesbians. My own view on “the arguments” as such is that, properly understood, they do not or should not lead either to the current conservative or so-called conservative position on marriage equality or to the so-called liberal one, and that they have nothing intrinsically or necessarily to say about “status.”

        First, the way in which – as you put it – “gay people don’t count” isn’t about “gay people,” but about sexual reproduction. The social construct and institution of gender complementarist marriage extends from the “facts of life,” prior to values and to society itself. Not “gay people,” but rather “homosexuality” as a biological not a social construct “doesn’t count” – or has no positive role to play – when it comes to sperm and ovum.

        Calling this observation an insult is like suggesting that it’s an insult to mammals to note that they cannot directly exploit photosynthesis. Degree of involvement in the biological matter does not dictate social status. That would be, among other things, a version of the fact-value fallacy, in a peculiar modern reversal, going against much of human history: It’s a reversal because, as a matter of plain, glaring, and often deeply troubling social and historical fact, the people engaged directly in the labor most fundamental to our biological survival are frequently those of the very lowest status. Sexual reproduction is like another form of menial labor in that sense, just as women in many societies had the status of slaves and other “domestics.” This pattern also goes, for example, for agricultural labor as well as child-rearing. From a social historical point of view, the notion that responsibility for the latter automatically confers high status on the “rearer” is laughable.

        Whether we choose to pay “respect” to people engaged in this labor, or what form that “respect” takes, will have nothing to do with whether performing the service to the biological perpetuation of the species is an intrinsically “respectable” thing to do. The “respect” we offer to marriages – signified by ceremony, celebration, and privileges in the law – has complex origins and multiple facets that I’ll mostly set aside for now. I’ll simply observe that, if I see two dogs copulating, I sometimes think of an old incorrect joke, but it doesn’t make me respect them. However, if I have a particular interest in a new litter of puppies, then I might be rather more pleased than not that the coupling took place. Human beings being somewhat more complex than dogs, and their welfare of greater interest in general to human beings as human beings, we have developed a much more complex set of expectations around human couplings. Especially problematically, human beings seem, if not quite universally then still in an exceedingly broad selection of cases, to care very much and in very peculiar ways not just about human offspring in general, but specifically about their own identified genetic offspring, just as those offspring seem to care very much and in very peculiar ways about their genetic forebears: It may not be too much to say that human society hitherto has consisted in large part of nothing more or less than the administration of relations between genetically defined families (this statement is somewhat redundant: the “genos” of “genetic” is a reference to the “family”).

        Whether you like it or not, your future family and Russell’s family and many other families – not just gay-parented families, but all so-called “broken” families and “single parent” families and, some day perhaps legally again, “multiple parent” or polygamous families – will have a different character, but need not, except as a matter of prejudice, have a higher or lower statusthan families constituted in direct and simple correspondence to the basic “blood tie”-based institution of institutions, the one that is not only the basis of civilization as we have inherited it, but, if improperly dealt with, also among the greatest threats to civilizations, especially to recognizably liberal and democratic civilization.

        In a sense, your marriage proposal is for genos apart from genetics. It is easy for me to see this genetically neutral or neo-genetic family as possibly a higher or more ideal form of family than the brute “breeder”-generated one, for some of the reasons I indicated when we discussed or began to discuss this question almost exactly a year ago. I differ from SSM opponents first in that I don’t see SSM as the main problem for the traditional institution, and I’m not convinced that the issue can be settled in a single “generation” anyway. I differ from both of you on the various status-implication questions (where you and your opponents partly agree). Where you and I mainly differ is in our estimation of how well-considered your marriage proposal is, and of justifications for wariness on the part of conservatives, but I don’t expect you young things in love to listen to a grouchy old man predicting setbacks, disappointments, unintended consequences, and all the rest. You’ll do as you please, and we’ll have to see how things work out.

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      • Also:

        “Your argument that gay relationships are fundamentally less sacred than straight relationships doesn’t magically become more acceptable to me because it doesn’t stem from animus.”

        Never my argument. Not something I said or would say. That you think I said it or mean it reflects your prejudices and your confessed inability to discuss these matters dispassionately. You’re right, you’re not under an obligation to engage in a “lofty philosophical debate.” Since you prefer to speak as an emotionally involved partisan, immune to argument and more concerned about your personal feelings toward others, you relieve them of the obligation to take what you have to say seriously as argument, lofty or otherwise.

        None of us is in the position to declare any particular type of relationship “fundamentally less sacred” (or fundamentally more sacred) than any other type of relationship. I’m not sure that “more sacred” and “less sacred” are even sensible constructs.

        The love between two individuals may be sacred or be treated that way. The marriage of a man and a woman may be sacred or be treated that way. The observable fact is that the latter has been treated as a “sacrament” for a very long time.

        We can explain this fact anthropologically or historically, or we can find more profound reasons for it. Whatever explanations we prefer, it is probably self-destructive in multiple ways, possibly the best way to reverse the progress proponents of same sex marriage have made, to attack or to be seen to attack the sacred character of procreative marriage – as if matters of the sacred are matters of a zero sum game in which to approve of or “solemnize” one type of relationship or act or institution must be to be disapprove of or discount others. That’s precisely the type of thinking that SSM proponents regularly ridicule when traditionalists seem to embrace it.

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      • It is very difficult for me to see your argument as anything other than very elaborate versions of the naturalistic and appeal to nature fallacies.

        Show me the church that withholds the sacrament of marriage from infertile or post-menopausal women or men with low sperm counts or just opposite-sex couples who have no interest in children.

        People who don’t want to recognize the lives and choices of gay people are bigots; that’s it, there is no other word. The religious excuses are a form of backward rationalization. Personally, I have no strong desire to go door-to-door rooting out people’s bigoted ideas, but I also don’t have to accept the excuses either.

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      • Calling this observation an insult is like suggesting that it’s an insult to mammals to note that they cannot directly exploit photosynthesis.

        You’re right about that. Of course, that’s not what gay people or people who support SSM find insulting. In fact, my guess (just a hunch!) is that gay people are already aware of the basic biological facts of life (something to do with bees and a stork…) as they pertain to sperms and eggs the various organs by which the one comes into contact with the other.

        No, the insult comes later. Pretty clearly, actually. Personally, I see no way for a purely positive account for the legitimacy of marriage between men and women which excludes marriage* between SS partners to be anything other than an insult. Prioritizing procreation as a decisive material condition implies that procreation holds decisive normative content. How’s that argument supposed to go?

        *Where the word “marriage” is not used ambiguously.

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      • Have to get on with my day, so will respond collectively and no doubt inadequately to a set of comments, and re-visit later if there’s an opportunity:

        Playing the “bigot” card is claiming, in the manner of a bigot, that your own argument is self-evidently sound, which has become, overall, the OT pattern on this question. I understand that everyone is obligated to re-state at every opportunity that he or she is on the right side with all right thinking people, but it’s still a waste of space and non-conducive to open-minded discussion.

        1) Like Mr. Scott, you are also attributing to me a position whose salience I have noted simply because I have noted it. As a a matter of fact, I do think there are aspects of the fact-value/natural law worthy of closer consideration or re-consideration, but I do not think they lead necessarily to the conclusions that contemporary self-styled natural law proponents claim they lead to.

        2) You write:

        Show me the church that withholds the sacrament of marriage from infertile or post-menopausal women or men with low sperm counts or just opposite-sex couples who have no interest in children.

        This familiar argument depends on the assumption that affirming the marriage sacrament in relation to gender-complementarist marriage must take one form and one form only. In my own view, there is no inherent reason why SSM could not be integrated within the existing institution in somewhat the same way that marriages between certainly or likely non-procreative couples are, without altering the inherited character of and justification for the institution, which has never required that we as human beings either refuse to acknowledge differences or, alternatively (and impolitely), insist on emphasizing them.

        The simple human fact is that the nuptials of two older people well past their childbearing years will generally be treated differently than the marriage of a young couple. That’s not an “insult” to older people, though it is a recognition in part about “naturally” (very) different hopes and expectations. For many – especially the parents of the betrothed – among the most important differences will often be the prospect for younger couples, though never the certainty, of their extending or further extending the (genetic) family line, but those won’t be the only expectations, and the existence of the general case doesn’t mean that some “elder marriages” won’t produce a greater perceived cause for celebration than some marriages between young people heading into their fertile years.

        For more see below.

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        : “Personally, I see no way for a purely positive account for the legitimacy of marriage between men and women which excludes marriage* between SS partners to be anything other than an insult. Prioritizing procreation as a decisive material condition implies that procreation holds decisive normative content. How’s that argument supposed to go?”

        Not sure which argument you mean in the question, and how exactly you mean the word “exclude.”

        Apparently, in your eyes and in the eyes of Mr. Scott, observing that procreation is “special” – or can be treated as possessing or potentially possessing “decisive normative content” – is automatically an “insult.”

        Any recognition of the biological facts as potentially significant or other than irrelevant happenstance begins to treat them as somehow “special.” If the SSM movement is going to require that human beings from now on treat themselves and each other as though “born of an idea,” or treat the particular circumstances of their own and everyone else’s birth as irrelevant, or shameful to acknowledge, or unseemly and insulting to celebrate or take seriously, then that’s a really big project, akin to the complete unraveling of society and human nature as we have known them.

        I wouldn’t bet on its prospects. If it is the necessary endpoint of the SSM project, and the only thing that in the end would make Alan Scott feel accepted, on Alan Scott’s never-to-be-critically-examined terms, and such acceptance is now to be an exclusive priority, then the conclusion reinforces the much-misunderstood argument being made by the much-abused Rod Dreher. If, on the other hand, there is something “special” of potential “decisive normative content” about procreation that can still be acknowledged in polite company for purposes other than ridicule, and that still provides independent and unique justification for supporting OSM or some “marriage-like practice” for opposite-sex couples, then SSM proponents have their own circles to square and squares to circle, and calling the idea an insult associates them with a refusal to understand and cope with the historical bases and purposes of the institution that they are joining.

        ***

        Not sure why I need to have a pivot point or a single argument. The jumping off point or point of departure was the post author’s assertion having to do with “insult,” which is an insult to everyone who disagrees with him, which fails to acknowledge our prior discussion on precisely this claim of his, and which turns implicitly on the presumption of no possibility of acceptable disagreement. To disagree with him at all in any respect, as he has made clear, is something he will take as a personal insult or assault (on his “identity”), including the question of whether disagreeing with him at all ought to be taken as a personal insult or assault.

        In my general approach to the underlying questions as I understand them, “law, culture, society” inform each other interdependently.

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      • There is an irony in your comment. You are doing the exact thing that you are pointing out in others. I said that the failure to treat same-sex romantic relationships with the same respect that one treats heterosexual romantic relationships is a form of bigotry. You cannot just dismiss this claim because you find that the word bigotry has a negative taint.

        There may be all sorts of reasons quasi religious and quasi naturalistic why people do this, but those reasons do not change the fact. These beliefs, these actions are bigoted, by definition.

        If ones religious beliefs compel one to believe and behave in a bigoted manner, fine. It’s not my duty to go throughout the world enforcing my beliefs on other people. I am not, however, obligated to simply accept someone’s beliefs as legitimate simply because they invoke religion.

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      • CK
        The problem is that they don’t inform. If your point was disagreement between one individual and another on equitable ground, fine. If though you support a faction of civic-religious state, and its invoking written law against a lesser populated LGBT faction, you are requesting something other than insult.

        If your broader point is to say society is society. I am likely to look at Alan and ask where do we need to start tugging to unravel this damned thing.

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      • Apparently, in your eyes and in the eyes of Mr. Scott, observing that procreation is “special” – or can be treated as possessing or potentially possessing “decisive normative content” – is automatically an “insult.”

        Yeah, it is, since the argument you allude to has to actually be made, not merely pointed at. And any argument which takes you from that premise to the conclusion that only heteros can marry is, by my lights, implies that the relationships gays engage in is morally lesser (or worse, immoral!).

        I mean, go ahead and make the argument if you think you can thread that needle. You wouldn’t be the first to try to do it, of course, but maybe you have a unique insight to round over all those square edges.

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      • I’m not sure I agree with J R that the argument for a particular view of marriage, namely that marriage is by its design an institution for heterosexual relationships, from the fact that this promotes procreation, is an appeal to nature. That is, such arguments generally invoke reasons independent of the mere facts of the matter, namely that the reproductive parts of men and women are necessary, absent technological advances, to reproduce. They also invoke the importance of procreation, importance for the continuation of a culture, a nation, or even the species as a whole. The inclusion of such reasons lift the argument above fallacious naturalism.

        However, the arguments ignore the history of marriage, within which it has been used for many purposes other than mere procreation. Perhaps procreation was the reason the institution was created at some point lost to history, but for the whole of its documented existence it has been used for other purposes as well. Procreation is important, and if marriage in general promotes it, so much the better for marriage, but one has to adopt a limited, ahistorical conception of marriage to argue that this is all it does, or should do, and the fact that the argument is made now, in this context, does look like it is a convenient excuse to exclude a particular group of people from the institution.

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      • My argument is not that the male-female view of traditional marriage is an example of the appeal to nature fallacy. My argument is that the failure to make concessions for same-sex marriage in the same way that people make concessions for non-fertile, opposite sex marriages is based on a fallacy.

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      • The simple human fact is that the nuptials of two older people well past their childbearing years will generally be treated differently than the marriage of a young couple.

        No, they *aren’t*. There’s not a single point of the law *or* religion that differ in how they treat those. (_Second_ marriages might be treated differently, but that’s not the same thing as ‘older marriages’.)

        Additionally, you’re attempting to confuse the point by making it about the nuptials. We are talking about marriage here, not about the wedding itself. So I’m really glad you brought up older people, because in marriage, you are expected to, in fact, you are ‘supposed to’, grow old together. This means infertility is not some rare problem that can be ignored in general, it is literally the expected outcome of *every single marriage*.

        But if you’d think if fertility was such an important part of marriage, *someone*, at some point in the *entire history of marriage*, would have made marriages change in some manner when fertility was no longer possible. (And before trying to say ‘No one knows when that is’, it’s actually pretty easy to notice when it happens for women. Easier than any sort of ‘virginity’ rule, at least.)

        But marriage never changes then, or if it does it’s so rare I’ve never heard of it. And that’s partially because your anthropological deductions are wrong and dumb. The purpose of marriage has never been, at any point in the entire history of mankind, to produce children. This is because people can, rather easily, produce children without marriage. People do not need any help in that.

        Marriage, if it exists to do anything about children at all, exists to *raise* children, not *produce* them. Those are not the same thing.

        Throughout history, marriages have often changed, legally, when the children are gone. In fact, there are, and have been, cultures that create a ‘marriage’ *after* children are conceived by a couple, and dissolve it when the children are grown. This is literally the opposite of people getting married to produce children.

        I’m *not* saying that that is what marriage is in this culture. I don’t think it is, or should be. That isn’t what marriage is for anymore.

        But even in ‘traditional definitions’, ‘marriage is for people to produce children’ is literally wrong in every historical sense, also. Throughout history, literally the only intersection between ‘children’ and ‘reasons for marriage’ has been *raising children*, not producing them.

        And, speaking of insults…we’re getting *really close* to the point where adopted children and adoptive parents feeling getting offended, along with step-parents and step-children.

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      • In fact, here is a fun fact for people who want to make deductions about the origins of human institutions but aren’t anthropologists: People have sex without any societal encouragement at all. Thus we generally need no societal rules to encourage us to have sex, so they are unlikely to exist except in very very specific circumstances. So said rules are very unlikely to exist in pretty much every human culture, like some form of marriage does.

        The idea that marriage, which *reduces* the amount of sex (By limiting it to specified partners), somehow has as a purpose ‘procreation’, is so dumbass an idea I’m unsure how to actually take it seriously. It’s like asserting that laws against murder were created to help reduce the population.

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  8. , ,

    Chris opens the door on a “special” status for procreation in a way that I hope will be illuminating.

    My point, shared implicitly but not always consciously by marriage traditionalists, is not that gender-complementarist marriage or the inherited institution of marriage was designed to, as Chris phrases it, “promote” procreation, but rather that it developed in order to organize everything associated with procreation – which is, not too put too fine a point on it, everything. Procreative marriage isn’t a product of history: History is a product of procreative marriage (as society is a product of families, and not just a product of families, but an accumulation and mode of organization of families, by families, for families). The particular contingent forms that marriage institutions take therefore reflect and, in more ways than one, re-produce societies as they are organized and “conceived.”

    I am not sure what “other purposes” Chris had in mind for the institution, and I would be interested to know what specifically he had in mind. I expect that every single one of them can eventually be tied to the organization of relations among and between bio-genetically defined families, which come into being by “procreation” and by no other means. What often appears to be an immediate exception or counterexample will turn out to reinforce the initial premise: Adoption, for example, is adoption into the system of bio-genetic families. Elder marriage operates as another form of “adoption” into the system.

    As I’ve stated, SSM could also be seen as an “adoption” in this sense. The argument from Alan Scott and on behalf of SSM families and their children is very similar to the statement from a parent to an adopted child: “I love you just the same as I love Junior over there.” It will be taken as unkind to point out that the utterance usually contradicts itself, since it is typically made under the presumption that it does not have to be made to Junior. It is by no means an impossibility that the adoptive parent will end up feeling an even greater passion or affinity for the adoptive child than for the “natural” child, but, even then, the passion or affinity, or the relationship, will not be identical (another word with special resonances here), and, in the broad sweep of history and common practice, the fact remains that a new mother and father will prefer the child they made, not just on any child randomly selected from the maternity ward; that the grown adoptive child will often want to know his or her natural parents – not to love them more or better, but for reasons that are still profound reasons; that for the vast majority of people actually existing the coincidence of the two bonds, natural and emotional, will be a preferred state; and that in key instances in law, history, custom, imagination, and general practice the existence of the natural or bio-genetic bond will be privileged, and tend to take primacy.

    Stil:

    any argument which takes you from that premise to the conclusion that only heteros can marry is, by my lights, implies that the relationships gays engage in is morally lesser (or worse, immoral!).

    The question is what we mean by “marry.” The political choice is simplified as the possible existence of one and only one uniform institution of “marriage.” Faced with that choice, the marriage traditionalists insist on gender-complementarist marriage defined in relation to procreation. The marriage equalitarians insist on pure transactionalist marriage defined strictly in relation to personal choice. In a late-capitalist liberal-democratic universalist order, the m.e.’s turned out to have the advantage, since the m.t.’s have been unable to produce and articulate a decisive utilitarian argument against transactionalism or contractarianism, which, all things being equal, is the unique ethos of that universalist order, much to the chagrin of Messrs Douthat and Dreher (and much to the chagrin of many of their adversaries when the topic happens to be the environment or income inequality or labor rights).

    The m.t.’s are left to await the utilitarian argument on their side – sometimes called God’s wrath – for instance in the form of the destruction of social order as a by-product of the destruction of procreation-centric marriage as civil institution. The m.e.’s laugh at the prospect – and, as on OT threads, continually discount the mere procreative remainder, as though already made obsolete by test tube processes and cloning. If these matters are truly profound, then it is always too early to pronounce them settled or to know who has gotten the last laugh. A third possibility would be social evolution toward an arrangement that re-establishes or re-conceives the traditional institution as inclusive of SSM, but as still procreation-centric. That, however, would entail what, at this conjuncture, Mr. Scott and many others, consider an acceptance of “bigotry.”

    I said that the failure to treat same-sex romantic relationships with the same respect that one treats heterosexual romantic relationships is a form of bigotry. You cannot just dismiss this claim because you find that the word bigotry has a negative taint.

    There may be all sorts of reasons quasi religious and quasi naturalistic why people do this, but those reasons do not change the fact. These beliefs, these actions are bigoted, by definition.

    “Romantic relationships” are not what this discussion is about, or to claim that it is about “romantic relationships” is already to pre-empt actual discussion. “Respect” is too vague a term (I respect the Congressional Medal of Honor, I respect the work it took to win your 10th Grade touch-typing certificate, I respect your privacy). “Same respect” seems to imply equivalence, which may be what this discussion is about, properly understood: In that sense, to insist on “same respect” would be to pre-empt discussion, which is the action of a bigot.

    For the marriage traditionalists, the claim that a union of two men or two women is or must be considered absolutely the same as the marriage of a man and a woman is absurd. To say that this discussion is only about “romantic relationships” is, see extensively above (in this comment and prior comments), to remove the “natural” issue that for the traditionalists is (not always consciously, but no less powerfully) the core issue, because essential to the core purpose of the marriage institution within society: the organization and management of “blood ties” (genetic relationships) produced by procreative sexual intercourse. “Romance,” you may be dismayed to hear, may have nothing to do with it.

    I don’t know what the word “bigotry” means to you. To me bigotry is an unreasoning attitude or practice of peremptory rejection or aggression merely on the basis of who or what one’s opponents are or are or taken to be. The word is believed to originate in statements of enmity that began “By God…,” with “by God” being used as a substitute for any explanation or justification: I hate you because I believe God tells me to hate people like you, not because you have done anything warranting my hatred or opposition, and I recognize no responsibility to explain or justify myself or my actions, nor any action by you that could relieve you of my enmity.

    The bigot is therefore the person who refuses to provide “reasons,” and who by his or her own preference and conduct has no role to play in a liberal-democratic society committed to public reason. Bigotry is in this sense the ultimate sin against the civic religion of public reason that we share. To call someone a bigot is to call for his or her exclusion, or “ex-communication” from liberal-democratic society, which is a discursive society or precisely a society of “communication.”

    If someone opposes same sex marriage out of a belief that gays and lesbians must be opposed (or worse) simply for being gays and lesbians, and is unwilling or unable to produce any other justification than that’s what he or she feels called to do, then that person can justly be accused of bigotry, with the effect of excluding him or her from public discussion by his or her own wish. Some segments of the anti-SSM movement have reduced themselves to that level, and, as I was saying elsewhere, it’s unfortunate that many in the so-called conservative movement have resorted to “By God”-ry when there is a more useful or to me at least more interesting, and non “By-God”-ed conservative contribution to the discussion that could have been made – though this observation is not meant to diminish all reasons that we call “religious” or that are in some way connected, historically or in anyone’s imagination or mode of expression, to belief in God. However, to deploy the accusation against someone fully willing to produce and to account for “reasons” for opposing a particular proposal, including “reasons quasi religious and quasi naturalistic,” among other reasons, and to call for that exclusion strictly on the basis of who they are or merely because they offer an opposing view for consideration, in other words to paint all opponents of particular SSM proposals or actions or statements by allies of the SSM movement with the same brush, to offer them all the same disrespect, is itself the same sin against public reason, or bigotry “by definition,” and that is the “irony” here.

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    • I am not sure what “other purposes” Chris had in mind for the institution, and I would be interested to know what specifically he had in mind. I expect that every single one of them can eventually be tied to the organization of relations among and between bio-genetically defined families, which come into being by “procreation” and by no other means.

      I tried to cover this by pointing out that marriage itself, at some time prior to recorded history, began this way, and therefore all forms of marriage are in a sense parasitic on this original form. However, marriage has served as a means of diplomacy (we were just talking of the Habsburgs ’round here), of economic stability, of improving one’s fortunes economically and socially, help in the family business, and more (including just having a place to put women other than the convent, for much of its history), up to the last century when “love” and companionship became major reasons for marrying.

      While it is almost certainly true that marriage will, for the entire extent of its existence in our culture, have a procreative function, the fact is that as a cultural institution it is, like all other such institutions, capable of serving many independent purposes, and of being co-opted for them without regard to its original purpose. That procreation is one of its primary purposes is not therefore a valid reason for excluding other purposes without some additional argumentation. One would, at the very least, have to show that a.) reproduction is its most important purpose, and b.) its use for non-reproductive purposes somehow harms its reproductive one. We all remember that (b) was a common reason given in early SSM debates, yet it is an empirical claim, and one for which those who invoke it have yet to present any empirical evidence. Without such evidence, or even a clear argument that such evidence should be expected (some sort of abduction), the procreation argument remains unsound, if not invalid.

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      • The anti-SSM arguments, in my recollection, start with “the sanctity of union between a man and a woman”, and from there, in response to various challenges, move on to procreation, child rearing, sustaining our population levels(!!), and finally threats of Total Social Collapse. (If gays are allowed to marry….)

        THe procreative argument strikes me as problematic for philosophical reasons (more than empirical ones): Can a sterile Christian Marry; a post menopausal woman; a man who’s had a vasectomy; two people who make a choice to not have kids!!!, and so on. I suppose there is a consistent position to be teased outa all this, namely, that anyone who either cannot or chooses to not have children ought to be excluded from partaking in the institution of marriage. (If a man gets his balls busted at work and becomes infertile, is his marriage annulled????)

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      • THe procreative argument strikes me as problematic for philosophical reasons (more than empirical ones): Can a sterile Christian Marry; a post menopausal woman; a man who’s had a vasectomy; two people who make a choice to not have kids!!!, and so on.

        I agree with this, but I don’t think we need to get to the point where the actual behavior of those who make the argument contradicts their argument. We can simply point out that the argument itself rests on false premises or a lack of necessary premises. That is, marriage has, for the whole of its recorded history, been used for many purposes, as most cultural institutions are, and those purposes don’t harm its reproductive purposes (note that it has to be procreation, not child-rearing, because same sex couples are just as capable of rearing a child).

        So before we ever get to, “Yes, you make that argument, but you don’t act in accordance with its conclusions,” we have already done away with the argument as either unsound or invalid (depending on whether the harm premise is included).

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      • Chris, the reason I emphasized the philosophical aspects of that argument is because I think it challenges the primary argument rather than the behavior which would be consistently entailed by it. The suggestion I’m responding to is that the procreative function is (somehow) a necessary condition which any couple must meet for a fully sanctioned marriage. But there are all sorts of very interesting counterexamples to that view. So the argument is actually challenging the coherence of the condition rather than the behavior of its advocates.

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    • The bigot is therefore the person who refuses to provide “reasons,” and who by his or her own preference and conduct has no role to play in a liberal-democratic society committed to public reason.

      I disagree. Bigots almost never admit to being bigots. Bigots always have reasons why their bigotry is either justified or why it is not really bigotry.

      Go read defenses of slavery. Almost none of them say that slavery is a raw exercise in power that allows me to dominate my fellow human being for my betterment and to his detriment. Rather, defenses of slavery tended to portray slave holding as a sort of holy burden to care for those who would otherwise be unrepentant heathens and layabouts.

      To call someone a bigot is to call for his or her exclusion, or “ex-communication” from liberal-democratic society, which is a discursive society or precisely a society of “communication.”

      No. I’ve said repeatedly that I have no desire to persecute bigots or even pressure them to give up their bigoted ideas, but I’m not going to pretend that it is something other than bigotry.

      You are reasoning in reverse.

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      • Last comment for the day (at least):

        ,

        …and anyone else capable of handing this conversation like a grown-up: If you do not read carefully, then this discussion becomes impossibly tiresome (not to mention un-civil). The topic of “non-procreative” couplings and their integration within the institution developed in relation to procreation broadly understood (i.e., in relation to its effects, its central role in the organization and constitution of society as such, not just in the biological “manufacture” of its members or the satisfaction of instinctual urges) has already been addressed directly and repeatedly.

        Unfortunately, it makes some people uncomfortable to consider relevant implications and embedded presumptions on this matter, precisely because it is a profound matter, a matter of the formation of identities, literally, so very emotionally involving. However, the effective confession of an inability to address those discomfiting implications and presumptions tends to reinforce the conservative argument against opening the Pandora’s Box in the first place. The way that members “check out” of discussion and move to special pleading, complaints, personal attacks, foul language, and so on, may offer a very small-scale, not yet fully informative preview of just how unsettled and unsettling this issue may turn out to be after all. That is the warning that authentic conservatives, without mention of religious principles or dogmas and without reference to gays, lesbians, or any other group however identified, have felt compelled to make.

        Moving forward with the alteration of an institution touching on the most profound questions of human life, while refusing to consider the effects and instead seeking aggressively to shut down discussion, could be considered the very peak of hubris, while doing so in the name of opening people’s minds and creating a more inclusive social order could be considered the height of hypocrisy.

        I’m going to keep this as brief as I can:

        Your explanation of what you mean by “bigotry,” lacks intelligibility and specificity (or uniqueness), so does not qualify as a definition, and, in my view, contributes to a general dilution of the term or its force. It reflects a perhaps common, but confused usage, or a counterproductive attempt to associate one species of prohibited thought with another – in this instance, to associate the prohibition against racism with the prohibition against bigotry.

        When you proceed to say that you “have no desire to persecute bigots or even pressure them to give up their bigoted ideas,” you give an example of a different endpoint where the term or use of it has gone beyond mere dilution to absurdity. If calling someone a bigot does not produce or contribute to some “pressure,” for instance by social pressure, to give up their bigoted ideas or give up spreading them, then it is a pointless act. You may be skeptical about the success or the amount of your contribution to the cause of anti-bigotry, but either you mean to produce some “pressure” or impact or effect, or your statement is meaningless.

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      • Your explanation of what you mean by “bigotry,” lacks intelligibility and specificity (or uniqueness), so does not qualify as a definition…

        My explanation of bigotry is the definition:
        Bigotry is a state of mind where a person obstinately, irrationally, unfairly or intolerantly dislikes other people, ideas, etc.[1][2] Some examples include personal beliefs, race, religion, national origin, gender, disability, sexual orientation, socioeconomic status, or other group characteristics.

        What you are trying to tell me is that it’s not bigotry if the person has a good reason. And I don’t buy that. In this case, the reason is a rationalization.

        And the only thing that I mean to do is to be faithful to the definition of words

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      • I came to this conversation late. Could you point me to where you’ve provided arguments that answers the points I’ve made about non-procreative uses of marriage? I do not see such answers in any of the comments that me, specifically, or the ones to which I was directly responding when I joined the conversation.

        I assume that those reasons go well beyond merely demonstrating that the procreative function is foundational, because I’ve stipulated that, but argued that by itself that’s not a sufficient reason to exclude any sort of non-procreative marriage, including same-sex marriage.

        Unfortunately, it makes some people uncomfortable to consider relevant implications and embedded presumptions on this matter, precisely because it is a profound matter, a matter of the formation of identities, literally, so very emotionally involving

        If we’re going to be grownups, we’d do well not to act like children, though. If this game is “psychoanalyze the opposition to score rhetorical points,” which is what this clearly is, then I have no interest in playing, and I’ll back out of the conversation right here.

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      • And to go back to j r’s point about the naturalistic fallacy (which I’ve been harping on as well), could you explain how to square the circle of how why a naturalistic account of procreation entailing the normative exclusion of gay marriage is not insulting to gays?

        I mean, I agree with j r. This all type of justification for the otherwise obviously unjustifiable sounds very familiar.

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      • On the subject of marriages without “issue” into the procreative concept, I’ll direct you first to this earlier comment of mine:

        http://ordinary-gentlemen.com/blog/2015/04/03/answering-ross-douthat#comment-1011719

        More generally, in comments addressed to you, I have extensively addressed procreation in relation to social concept or procreation “concretely” – which sounds dirty, but I mean in all aspects of its elaboration (i.e., our lives) via genetic ties. Procreation concretely or foundationally, or the procreative social concept, also an ethical concept, needs to be distinguished from the reductive view put forward crudely by DavidTC. This distinction bears on your Hapsburgs too, as on the very concept of “economy,” as on central subjects of law – natural, religious, and secular. Specifically on “political marriages,” they are not an “alternative” use of marriage, but a prime realization of the procreative concept, the presumption of the force and indelibility of bio-genetic recognition binding families and with them states, ending or preventing wars, producing or legitimating inheritance of whole populated regions of the world, re-producing, extending, and expanding the lives of entire nations (the very word “nation” also being a reference to “natality”). Supporting the foundational quality of the procreative concept in a different way, and contrary to assertions made elsewhere on this thread, the inability to produce offspring was for a long time in marriage law considered a just grounds for divorce or annulment when few others were considered acceptable.

        asks, referencing : “[C]ould you explain how to square the circle of how why a naturalistic account of procreation entailing the normative exclusion of gay marriage is not insulting to gays?”

        The question again misconstrues my argument as I have repeatedly stated and explained it. The notion that a normative content for the procreative concept must produce a general “exclusion” is Stillwater’s logic, not mine, rendering what he seems to take to be the sole alternative to the same sex marriage proposal. It seems to be based on the presumption that “gay marriage” is possible only under the eradication or effective suppression of the procreative concept and its replacement by a pure and comprehensive contractarian or transactionalist concept.

        That view might express the fear of marriage conservatives like Rod Dreher. What lends Dreher credence is the reaction to the enunciation of his position by marriage equalitarians, including, in this instance, Stillwater – who I think is mistaken, but who has at least put the matter more clearly than most will or can.

        Again, the problem that I have put before you all – the mere enunciation of which Alan Scott finds too painful to contemplate and that he and others insist equates with bigotry – is not for you to justify to me inclusion of SSM in the existing institution. I’ve already said, as linked above and repeatedly, that I do not see a fundamental impediment preventing proponents of the traditional institution from “adopting” SSM in the same way that the institution adopts elder marriages, presumed infertile marriages, or, for that matter, marriages sustained past the childbearing years. (Under the procreative social concept, everyone at all stages of life and proximity to the biological processes may have a role to play.)

        Such adoption is not, however, what Alan Scott and others demand. They demand something more radical.

        The problem that I actually have put before you all, as opposed to the one that you continually assume or insist I must be putting before you, is that if you admit or come to understand that procreation is “foundational,” and that matters directly related to or defined by procreation are central and ubiquitous in human social life – by necessity, as I have outlined – then requiring people to ignore that fact or to proceed without recognition of it (institutional, legal, social, political, informal), as Alan Scott and others seem to require for the sake of removing a perceived “insult,” would have to go far beyond the simple “adoption” of SSM into a broadened OSM legal framework, for all of the same reasons. Such a requirement must continually produce either new “insults” and new recognitions that cause the Alan Scotts and DavidTCs of the world to fume and cast aspersions, or endless causes for revisions of the sort that inflame, and actually begin to justify, conservative paranoia.

        The problem isn’t whether an originarily procreative marriage concept has room for SSM, but whether SSM proponents have room for an originarily procreative marriage concept. Shorter: The problem isn’t whether marriage is ready for same sex parents, but whether same sex parents are ready for marriage. What do you expect people to do with the procreative concept, or why do you believe that an all-encompassing foundation can and should be treated (for more than a moment) as an unmentionable, negligible remainder?

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      • It is probably true that in most cases, political marriages are in fact possible because of procreative marriage, and are intended to be procreative. I’m not sure that, or anything in that comment (or your previous ones) speaks to my point, which acknowledges the foundational role that procreation plays in marriage (I will extend that acknowledgement to society and culture in general, not merely marriage). If it is possible for the institution of marriage to serve other purposes, even within the structure built by and for its procreative purpose, without harming that purpose, then marriage is a.) no different from any other cultural institution in that regard, and b.) its initial, foundational purpose provides no reason for proscribing other uses.

        Cultures change because they take existing cultural artifacts and extend them into new uses. Marriage has never been different in this regard, and there is no reason to try to prevent it from being so now.

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      • I don’t think you’re grasping what your own words affirm or partly affirm. A “foundational” concept is more than just any concept, and much more than and different from a mere “artifact.” Particular contingent civil or legal forms of recognition of the foundational concept would be artifacts in that sense.

        It is not always clear whether we are discussing the concept or the artifacts, and it is easy when speaking and reading superficially, or comparing fragments of our reductive political conversation, to drift from one to the other.

        Whether you’re endangering the whole garment by pulling up a thread or instead tying up a loose end and protecting the whole garment will depend on how you go about it. People who like the garment and are hoping it will protect them when the weather turns bad will not like someone who despises or is simply unaware of the garment and its larger purposes mishandling the pieces of it they do happen to find attractive.

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      • I grasp what I’m saying. I’m using foundational in an historical sense. Put differently, the procreative purpose is responsible for the existence and much (but not the entirety) of its structure as a cultural institution. It is also what makes possible many, though not all, of its other uses (e.g., its political uses). However, not all uses of marriage need to rely on its procreative purpose (rather than the structure that its procreative purpose has built), and again, unless non-procreative purposes that don’t require the procreative component actively harm the procreative uses, then the foundational nature of the procreative use is not sufficient to proscribe those uses.

        The moment marriage came into being it was a cultural artifact. It is an artifact that, in many, perhaps the vast majority of cases still serves something of its original purpose (or some other purpose that requires that purpose), but as a cultural artifact it can be co-opted for purposes unrelated to the one responsible for its creation, and it can do so without harming its initial purpose.

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      • but as a cultural artifact it can be co-opted for purposes unrelated to the one responsible for its creation, and it can do so without harming its initial purpose.

        (Which is pretty much why I continue to be skeptical of many claims of harm from “cultural appropriation” in the arts. ;-) )

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      • Those statements consist of prima facie reasonable suppositions, but it may be that in relation to a truly foundational concept they are misleading and inadequate. Take your third sentence: “Put differently, the procreative purpose is responsible for the existence and much (but not the entirety) of its structure as a cultural institution.” Viewed as foundational concept, in other words as prior to other concepts, by biology prior to “biology,” rather than as particular “artifact,” historical or other, “the procreative purpose,” as the perpetuation of life itself, is all-inclusive, responsible not for “much” of any particular social or legal structure, but for all of its structure and all of its content and for all of the people who interact with its content and structure – for everything or very much “the entirety.”

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      • CK, certainly it is true, as I said in the previous comment, that procreation is foundational for culture at large, and remains so. This is irrelevant to the present discussion unless it can be shown that non-procreative uses of culture generally are harmful to the procreative uses. In which case, we’re all screwed (to be a bit on the nose).

        Glyph,

        (Which is pretty much why I continue to be skeptical of many claims of harm from “cultural appropriation” in the arts. ;-) )

        I agree in theory, and I too frequently see “cultural appropriation” used, by itself, as criticism of some artist or even whole genres. The original purpose of bringing up cultural appropriation was not to say, “cultural appropriation is wrong,” but “cultural appropriation that perpetuates a cultural environment in which the originators (usually black artists) are marginalized, artistically and economically.” Elvis doesn’t get flack because he sang like a black singer; Elvis gets flack because he sang like a black singer when black singers couldn’t get the radio plan and financial deals that Elvis got in lieu of them. (How complicit Elvis was in this, if at all, is another discussion.)

        Contrast Elvis with Eminem, who is clearly a cultural appropriator as much as Elvis was, perhaps even moreso, but who rarely gets much flack for it (he does, occasionally, but I think it’s largely if not entirely misplaced). Eminem appropriated a musical form that was already producing incredibly successful, both in terms of fame and money, black artists, and which has continued to do so through Eminem’s career. His appropriation was genuinely harmless to the artists and the art (and it gave us “Forgot About Dre,” so…).

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      • Supporting the foundational quality of the procreative concept in a different way, and contrary to assertions made elsewhere on this thread, the inability to produce offspring was for a long time in marriage law considered a just grounds for divorce or annulment when few others were considered acceptable.

        Wrongo, McWrongson.

        Firstly, stop pretending there is such thing as ‘marriage law’. Pretending there is some sort of over-arching ‘law’ that all societies in general followed is complete bullshit.

        Second, let’s look at, for an example of where our modern concept of weddings came from, and where, indeed, a divorce was hard to get: England. Specifically, between 1500 and 1858, the church would only grant a divorce based for impotence, frigidity or lunacy, and a few other things…but not a single word about infertility in there. (After 1858, it became a civil matter…and infertility *still* was not grounds.)

        But let’s go farther back than that, and locate when a man could divorce his wife for infertility…ancient Rome. Oops, wait, that’s a common lie. In actuality, Rome basically had no-fault divorces for men, and, later, women. Infertility was a commonly stated reason, but it wasn’t any sort of specific listed reason.

        Further back? Well, Jewish law actually did allow divorce for infertility, which is something Christians removed by order of Jesus, so, interesting there. This is, of course, because Jewish law…historically required children. (It even had, for a bit, that that weird thing where Onan had to produce a children for his brother.)

        Infertility as grounds for divorce *only* shows up in the specific instances of society *requiring* offspring, which it often did when it had hardcoded inheritance laws. As soon as those changed, poof, instant disappearance of this ‘foundational’ concept.

        tl;dr – When circumstances require children be produced, marriage laws were set up so that if marriages did not produce children, other arrangements could be made. When circumstances did *not* require children be produced, like, oh, the western world for the *past few thousand years*, marriage laws didn’t give a damn.

        Specifically on “political marriages,” they are not an “alternative” use of marriage, but a prime realization of the procreative concept, the presumption of the force and indelibility of bio-genetic recognition binding families and with them states, ending or preventing wars, producing or legitimating inheritance of whole populated regions of the world, re-producing, extending, and expanding the lives of entire nations (the very word “nation” also being a reference to “natality”).

        …he said, wandering off into nonsense about *children* instead of *marriage*.

        The argument is that the purpose of marriage has nothing to with producing children, not how important children are in general. No one is arguing that children are not important to society. Please try to stay on topic.

        Incidentally, ‘bio-genetic recognition’ is a pure nonsense phrase. Firstly, ‘biogenetic’ does not actually mean anything in general…*all* genetics are biological. The word itself, oddly, is only associated with two rather dubious theories, biogenetic law and biogenetic structuralism, neither of which is considered very correct or useful. But congratulations on inventing the phrase ‘biogenetic recognition’, a phrase that literally has two hits on Google if you spell it correctly, neither of which is relevant. (And no hits if you spell it ‘bio-genetic recognition’.)

        ‘prime realization of the procreative concept’ is also some pretty impressive dumbassary.

        The notion that a normative content for the procreative concept must produce a general “exclusion” is Stillwater’s logic, not mine, rendering what he seems to take to be the sole alternative to the same sex marriage proposal. It seems to be based on the presumption that “gay marriage” is possible only under the eradication or effective suppression of the procreative concept and its replacement by a pure and comprehensive contractarian or transactionalist concept.

        That cannot possibly be Stillwater’s logic, because no one here would say a word salad like ‘a normative content for the procreative concept must produce a general “exclusion”‘ except you.

        More to the point, you are begging the question. The point that others are making is *not* that gay marriage must eradication or effective suppression anything, it’s that *marriage literally does not mean that*. It does not mean that. It has never meant there. That is what everyone is arguing. (Well, except Chris, who has fallen for your bullshit. Don’t fall for it, Chris.)

        If you wish to prove that, you must, in some manner, produce documention of that instead of just *asserting* it. Saying ‘procreative concept’ over and over *does not make it true*.

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    • It is by no means an impossibility that the adoptive parent will end up feeling an even greater passion or affinity for the adoptive child than for the “natural” child, but, even then, the passion or affinity, or the relationship, will not be identical (another word with special resonances here), and, in the broad sweep of history and common practice, the fact remains that a new mother and father will prefer the child they made, not just on any child randomly selected from the maternity ward; that the grown adoptive child will often want to know his or her natural parents – not to love them more or better, but for reasons that are still profound reasons; that for the vast majority of people actually existing the coincidence of the two bonds, natural and emotional, will be a preferred state; and that in key instances in law, history, custom, imagination, and general practice the existence of the natural or bio-genetic bond will be privileged, and tend to take primacy.

      Me, above: And, speaking of insults…we’re getting *really close* to the point where adopted children and adoptive parents feeling getting offended, along with step-parents and step-children.

      Well, I should have read farther, because looks like he already decided to cross *that* particular Rubicon, and I have only this in reply:

      Fuck. You.

      Everyone else: Stop falling for his idiotic procreation framing. Marriage does not exist to produce children. No one would ever make a cultural institution designed to encourage something that is a hormonal-programmed *biological imperative*.

      Humanity is *perfectly good* at producing children without marriage. No one’s ever needed encouragement for that. Marriage actually *reduces* the amount of children, by making rules about sex.

      Marriage exists (Or, at least, has as one of the reasons for it) to *raise* children, which has nothing at all to do with *producing* them.

      It’s like arguing that mealtimes were invented so we don’t starve to death. That is not how that works.

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