A panel of Idaho Republicans want the state to rewrite its marriage laws to hold that it is "a bond between a 'naturally born' man and woman". (Via). Part of me hopes that this does pass, just because I think that it may actually be more vulnerable to challenge than typical laws "merely" prohibiting gay marriage. Because the law at least potentially prevents transgender individuals from marrying anybody -- man or woman -- it doesn't even have the (facially ridiculous) defense that it doesn't exclude anyone from marriage (just their preferred partner). If that's the case, it is tough to see it standing against constitutional challenge. And that, in turn, would be one hell of a precedent.
Then again, maybe I'm being too indulgent in formalist fantasies. Transgender rights are still pretty controversial, and I suspect a reviewing court, particularly in Idaho, will search long and hard for a "neutral" reason for upholding this law too. Best to not push my luck.
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9 comments:
"Naturally born."
To deny marriage to all but the "naturally born" would be to deny marriage to all people born, for example, as the result of a cesarean section. By contrast, a transgendered person can be either naturally born or unnaturally born - so it appears that the law is not directed at its intended target. Then again, maybe they are as stupid as their proposal.
I'm confused by the language here. I assume that (at least in Idaho) there's no way a transgendered person could do anything to be considered legally of a gender he or she doesn't have the chromosomes for (or, given the jurisdiction, perhaps a birth certificate with a raised seal is always the definitive word on such questions), so a marriage of a transgendered man and a (non-trans) woman would be out of the question. If it were otherwise I assume that we'd be hearing 24/7 about "an end run around traditional marriage" (or somesuch) from the relevant pool of fundamentalists.
If this is meant to keep (for example) a trans man from marrying a cisgendered man because it would result in a marriage that could be considered same-sex, it's pretty clumsy wording. Wouldn't "naturally born" just refer to the Chromosome/birth certificate? And you'd really think so reading such a statute if you employ some textualism; wouldn't the standard social conservative understanding be that you're "naturally born" of a given gender assigned by God (oops, I mean assigned by Nature that is Distinct From Religious Concepts, At Least for First Amendment Purposes) and nothing you do can alter that status?
Then again, I can't think of an eloquent way to codify the social norm of "I just don't like them flaunting it in front of my face all the time."
All that said, I can't imagine how this discrimination fares any worse in court than a standard-issue SSM ban. Rational basis an all that. Boil it down and it's just another imposition of certain gender norms as a prerequisite for recognition of a marriage.
Joe,
I think you are more correct than not.
One would think that society has far more important things to do than worry about the comparatively few adults with atypical cohabitation preferences. Evidently not. In fact, you would think the issue would engender little concern even if we were dealing with a common practice.
Our famously anti-government, conservative friends think government should be the ultimate arbiter of what is a "real" marriage. No doubt - SMILE -, transgendered people have been flocking to Idaho because marriage in potato land is so much more fulfilling than marriage in dull places like Las Vegas.
On the other hand, I disagree with you when you assert:
Then again, I can't think of an eloquent way to codify the social norm of "I just don't like them flaunting it in front of my face all the time."
That goes way too far and shows some degree of contempt for traditional customs and morals - read your Edmund Burke to understand how one might worry about undermining societal underpinnings of morals and customs.
Issues related to marriage are among the most difficult for society. There appears to be no good way thus far to extradite ideas about marriage from religion, from upbringing and, on top of that, from language.
So, while I am with you, I do think that being cavalier about the matter is wrongheaded.
I don't think very many members of the voting public think in terms of "social underpinnings." At least, I've never heard that rationale from the man on the street. But I've heard plenty of expressions of pure disgust for the behavior pf "faggots," "queers," and "fairies." (By contrast, while it's not hard to find people who supported the Iraq war on the uncomplicated grounds of "we need to go over there and kill all them Ay-Rabs," I also at least met real human beings who genuinely thought we needed to save the Iraqis from Saddam or make sure a hostile government didn't get WMDs.)
Some doubtless think solely in terms of religious edicts, but I believe when it comes to gender and sexuality (as with race in the context of Jim Crow) the 800 pound gorilla is animus. The "social underpinning" stuff isn't a genuine belief outside of a few cloistered think tanks, and even then it's mostly designed as a pretext for conservative elites (who have no real problem including in their number men who, say, cruise public bathrooms or who initiate cybersex with their own Congressional pages -- as long as these activities are discrete), allowing them to hold their heads up high among educated society while winking at the prejudiced mobs.
Joe,
Where I disagree with you is not on the animus of many average people - about which you may likely be correct in many instances - but on making light of the potential impact of altering tradition and customs and on painting your opinions "bigots" and "racists" for having the gall to disagree with you.
Burke, for your information, did not oppose the liberalization and rationalization of society. His concern was that customs and traditions had reason - whether or not good reason - and that willy-nilly tampering with custom and tradition could result in unforeseen consequences. Hence, he proposed acting with deliberation - which is not to say avoid acting but, instead, not to rush at any and all seemingly rational change. That is advice that, just perhaps, the Bolsheviks might have followed and have avoided the unforeseen - at least by them - horror they worked on average people, stuck in their passe customs and traditions.
Marriage, you may recall, has a very long history. It had a meaning well established in custom, in law, in religion and in society. It, notwithstanding both of our preferences that it refer to a loving arrangement intended by the couple involved to be permanent (or, at least, reasonably permanent), was and, for most people, remains a sacred institution of society, backed by religion, custom and tradition that refers only to a very specific arrangement - not to any and all loving arrangements. To interfere with that as if it were simply a form of racism only occurs to an ideologue.
Again, I favor loving people, without regard to their sexual orientation or anything else, marrying or not marrying at their pleasure. I do not oppose the court decision in Massachusetts. But, I do so recognizing that this is not merely about correcting a form of bigotry - not for most people, in any event, who disagree with my view.
It is worth considering - since this is something you do consistently - that it is not appropriate to label your opponents as "bigots" and "racist." Rather, it is appropriate to take other people seriously and to assume that, for the most part, people hold different opinions. Many people who disagree with you may be bigots and racists. Many, no doubt, are not.
In my last post, my words that read "... and on painting your opinions ..." should reading "and on painting your opponents ..."
There's a bit to unpack here, N., so I'll do the old quote-response...
Where I disagree with you is not on the animus of many average people - about which you may likely be correct in many instances - but on making light of the potential impact of altering tradition and customs and on painting your opponents "bigots" and "racists" for having the gall to disagree with you.
Well, "bigot" and "racist" are terms you're bringing in here. I've contented myself with "animus" for the sake of cooler discussion. In the present instance, you've just agreed that animus is a big motivator, so it's safe to say there's more going on than me trying to grab rhetorical high ground.
Burke, for your information, did not oppose the liberalization and rationalization of society. His concern was that customs and traditions had reason - whether or not good reason - and that willy-nilly tampering with custom and tradition could result in unforeseen consequences. Hence, he proposed acting with deliberation - which is not to say avoid acting but, instead, not to rush at any and all seemingly rational change. That is advice that, just perhaps, the Bolsheviks might have followed and have avoided the unforeseen - at least by them - horror they worked on average people, stuck in their passe customs and traditions.
So as a gradualist, Burke would avoid absolutist statements like "segregation now, segregation tomorrow, segregation forever!" And that particular sentiment has a major parallel in the attitude of social conservatives today. They line they're toeing isn't "let's slow down and think about this same sex marriage stuff, fellas, just to make sure we don't do any foundational damage to society." (About the only place we see them take such a stance is on DADT, and that's primarily a rearguard rope-a-dope strategy in the face of overwhelming public support for allowing gays to serve openly.)
No, they say we need to draw a hard, fast, and strong line. They say we need a constitutional amendment to protect "traditional marriage." (BTW, the fact that this fell off Bush's agenda once the '04 election was over is very telling of the true feelings of conservative elites -- that is, not giving a fig for red meat social issues when the cameras are off.) They don't say we need a commission to study the issue more -- in fact they condemn and belittle every study that "traditional marriage" suffers no discernable effect, or that having two mommies may even be a leg up -- they say "ban it now!"
And let's focus on that-- ban, a verb. Take the example David links to. They seek to proactively change the laws. Who's activist now?
Finally, take note that the march to marriage equality is really just the latest in a long line of steps our society has taken in deconstructing the strictest of gender norms. It's miles and miles away from the sea change that plural marriage or "man-on-dog" marriage would be.
Now, the fact that relatively few people put little-to-no focus on rolling back women's suffrage, Title IX, or rally around the idea that we need a constitutional amendment to block, for example, equal pay legislation? That's telling. And, to play an old liberal saw, the fact that we don't see a lot of activism around reining in the freedom of people to get a no-fault divorce or to enter a second, third, or fourth marriage? That's telling, too. What it tells me, is that these controversies have relatively little to do with the general ideas of gender equality or "traditional marriage," and they have a lot to do with how our society views GLBT people.
I'll bring in "bigot" and "racist" if Joe won't. Because yes, opposing equal rights does make you a bigot.
Joe,
You make some very good points.
Animus is not the same as racism or bigotry although, clearly, there are among that group many who are racists and bigots, as Rebecca correctly states. That would be the case for many among the group which is pushing to create amendments to change or, more accurately, put a hard brake on the movement of the law towards to Massachusetts position.
That people have animus tells us about the level of their concern - not whether their concern is justified. And, that animus can derive from a lot of things - fear, real experience, etc. In this case, real experience seems a pretty unlikely explanation. Fear of the unknown is a real thing. Fear of change is a real thing. Fear that the traditions and customs of society are coming apart is also a real thing and, likely, the moving force involved.
Your view is that we should ignore entirely such concerns. Why? Well, you would say that there is a civil right here. One can ask, however, whether there is a way to address the civil right without panicking large swaths of the population who, quite likely, see their traditions and customs being trampled over and their rights to live according to their traditions and customs under attack. I am not sure there is but, frankly, I think it is worth considering.
Some states have gone for civil unions along side of marriages. That, to me, creates a second class of citizens, which is wrong. Maybe, the better thing - which perhaps deals with people the way they really are - is for the government to get out of the marriage business entirely and, instead, into the civil union business, leaving it to Churches and Synagogues to conduct all marriages based on whatever customs and traditions they believe. That, at least, is a compromise and one that fully addresses the rights of all involved.
I do not know how Burke would view dealing with the segregationist movement. He lived in a different age. He was an abolitionist and for granting full political rights to Catholics (in Great Britain, where, to say the least, there was animus against Catholics). Moving people's ideas out of their own age and assumptions is, of course, guess work at best. However, consistent with the noted positions would be opposition to Jim Crow. How Burke would go about such a thing is a different issue, about which I have no guess.
I also do not know whether I would call Burke as always being a gradualist. I would call him cautious and a believer that customs and traditions have their own reason that needs to be considered and respected. He opposed the French revolution as being a dreadful thing that fully ignored the societal customs and traditions and, hence, amounted to barbarism.
The ban word, of course, is an effort to prevent the spread of the Massachusetts view of marriage. So, I take that as an extravagant word for a defensive position.
You write: "Finally, take note that the march to marriage equality is really just the latest in a long line of steps our society has taken in deconstructing the strictest of gender norms. ..."
That is too simple and does not fully capture what is involved here. What we have, instead, is the ongoing effort by people like you and me to remove the sacred from the public square. I consider it a good thing. I merely note that those who stand up to defend tradition and custom are not evil people. Some are. Most are not. Failing to hear what most of these people say is wrong headed. It is, I think, a form of bigotry.
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