David Frum’s Real-World Conservatism

I was as surprised as anyone by David Frum’s declaration that the facts no longer support the claim that gay marriage will damage straight families. David and I have been friends since college, but our friendship was strained when he asserted in the 1990s that sodomy laws—i.e., menacing people like me with arrest and imprisonment—would be a good way to discourage judges from imposing SSM. When he and his wife offered last year to host a reception in honor of my marriage to Michael, I was deeply touched, but I understood his gesture as one of friendship, not as a recantation.

And, in fact, I think David’s statement on gay marriage is not a change of principle. Just the opposite. It represents  fidelity to a principle—a conservative principle—and therein lies its importance.

David, in the past, has expressed philosophical objections to SSM, having to do with marriage’s being founded on distinctive gender roles and so on. You’ll note that in his article he doesn’t embrace SSM. What he does say is that his consequentialist objections—objections based on real-world consequences—have been disproved.

None of that nuance will matter in conservative-land. Right-wingers will cite this as yet another example of his apostasy. But here’s the irony. They are not the real conservatives. He is.

Specifically, he’s a Burkean conservative, one who begins from a presumption that social change is disruptive, but who is also open to real-world evidence that sometimes change is necessary or beneficial. Burke, remember, supported the American revolution as protective of basic rights, even as he bitterly opposed the French one.

There is nothing conservative about never changing your mind, regardless of the facts. Nor is there much that is truly conservative about the strange coalition of anti-government radicals and social reactionaries that dominates the American right. Nor will that coalition do itself any political favors by excommunicating Burke and his pragmatic descendents. A better approach would be to understand why David Frum, far from betraying conservatism’s greatest tradition, exemplifies it.

43 Comments for “David Frum’s Real-World Conservatism”

  1. posted by Tom on

    I was as surprised as anyone by David Frum’s declaration that the facts no longer support the claim that gay marriage will damage straight families.

    I was glad to see Frum’s change of mind.

    At this point, I think that any intellectually honest person would come to the conclusion Frum has reached: “The short answer is that the case against same-sex marriage has been tested against reality. The case has not passed its test.” The social conservative case against marriage equality has been made in the courts, where it has been found lacking, and tested in the real world, where it has been found to be baseless.

    I note, however, that Frum has not declared himself in favor of marriage equality, or made a case for marriage equality, something that you did, persuasively to my mind, in 2004.

    Your argument for the necessity of marriage as a gold standard was the argument that turned me against civil unions and other supposedly “marriage-equivalent” alternatives. I think that the case you made remains intellectually sound, made more persuasive by the court decisions and reality testing since 2004.

    I hope that Frum will take the next step.

    There is nothing conservative about never changing your mind, regardless of the facts. Nor is there much that is truly conservative about the strange coalition of anti-government radicals and social reactionaries that dominates the American right.

    The “strange coalition of anti-government radicals and social reactionaries that dominates the American right” can no longer be described as “conservative”, if for no other reason than that it is inherently self-contradictory, on the one hand, pushes two three threads of authentic conservatism (small government and cultural preservation) toward extreme positions that are beyond the boundaries of common sense, as you point out, and entirely ignores a third, which is respect for individual liberty.

  2. posted by Houndentenor on

    Let me see if I understand this correctly. You considered David Frum to be your friend in spite of the fact that he advocated for keeping sodomy laws. You must have a lower standard for friendship than I do because while I certainly had acquaintances, colleagues and even relatives who would have agreed with Frum, I certainly wouldn’t have considered any of them a friend.

    I’m glad that Frum has sort-of-kind-of come around on the issue of gay marriage, but it seems to me that it’s more out of pragmatism than any change in philosophy. It sounds like Frum still believes the government needs to police private consensual sex between adults, but has just given up on the no-win situation facing conservatives. He can do so now because the social conservatives all hate him now anyway. I’ll accept his conditional surrender, but it’s hard to imagine him as a true friend to any gay person based on what he has said in public then or now.

  3. posted by Jorge on

    Not being familiar with anything about him but his name, I find his column disappointing. These slow as mollasess conservatives are boring.

    You considered David Frum to be your friend in spite of the fact that he advocated for keeping sodomy laws.

    He already said the friendship became strained. That could mean a whole lot of things, and Mr. Rauch could have any of a number of different personalities and breaking points. If you are friends with someone, you can survive an estrangement, a war, or several types of betrayals. Anything less than friendship doesn’t survive.

    • posted by BobN on

      I true friend brings care packages to the friend he helped put in jail…

  4. posted by Lori Heine on

    “I note, however, that Frum has not declared himself in favor of marriage equality, or made a case for marriage equality…”

    Neither has Barack Obama. But since he’s a Democrat, and (slobber, grovel) a Democrat President, of course he gets yet another free pass.

    How come the bar is so high for conservatives alone? When it comes to “progressives,” it’s so low a snake could slither under it.

    • posted by Wilberforce on

      Obama’s position is a political one. He’s a governing official who takes positions based on the next election. Most adults understand that.
      Frum is a mouthpiece for various commercial interests and is given face time according to how well he represents them. Educated people understand that.
      Comparing them, as if we expect either to be Honest Abe in a Pollyanna wig, is hopelessly ignorant.
      Even so, Obama has done what he could for us according to political opportunities. Meanwhile, Frum has been too busy trying to put a decent face on the conservative movement to bother with us.
      The vast majority of gay people understand all of this very well.

      • posted by Jorge on

        Oh, please, I don’t believe that for a second. Every sign I’ve seen points to Barak Obama being against gay marriage because it’s agianst his religion and being soft on his opposition to gay marriage because it’s politically expedient. That includes his apparent support for gay marriage during his Illonis Senate career.

        • posted by Wilberforce on

          I think you’re hopelessly naive. Politicians dodge and weave. It’s the nature of the beast. If you insist on thinking their words and actions are anything but political expediency, there’s no more to be said.
          But I notice you don’t list the ‘signs’ that show you Obama is acting from his religious beliefs. Thinking that any politician acts from religious beliefs is fanatsy land.

          • posted by Jorge on

            You mean cynical, don’t you?

            Thinking that any politician acts from religious beliefs is fanatsy land.

            One Democratic politician’s religious beliefs drove him to lead a major grass roots campaign against this very bill two years ago, a campaign that was successful. He remained the only Democrat to vote against the bill this year, and was the only state Senator who spoke against it both years.

            Your implicit idea that the differences between Democrats and Republicans do not include disagreement on the role religion and faith have to play in government and policy is astoundingly tone-deaf.

            But I notice you don’t list the ‘signs’ that show you Obama is acting from his religious beliefs.

            That’s because I was bluffing. I listed one. I’ll give you two more.

            I’ve noticed that Obama tends to state in plain English that his objection to gay marriage is based on his religion’s upbringing and his belief that marriage is between a man and a woman.

            Much can be learned from Hillary Clinton, who speaks very approvingly of gay rights yet has defended DOMA. This dissonance simply does not exist without a strong base behind it.

            The signs that Obama is soft on gay marriage because it is politically expedient? This “evolving” language he plagiarized from Clinton.

    • posted by Tom on

      “I note, however, that Frum has not declared himself in favor of marriage equality, or made a case for marriage equality…”

      But since he’s a Democrat, and (slobber, grovel) a Democrat President, of course he gets yet another free pass.

      No free pass from me. I think that it is time for President Obama to come out in favor of marriage equality.

      As another poster pointed out, support/opposition with respect to marriage equality in the states is, assuming that marriage is a state issue (as I believe it should be under our Constitution) a “bully pulpit” issue rather than a substantive federal issue.

      What counts on the federal level, in the current political environment, is whether or not a president supports/opposes DOMA, supports/opposes the FMA, supports/opposes DADT and other similar issues of federal import.

      Borrowing the NRA scorecard, President Obama gets a “B” or “B+” on those issues; all of the potential Republican nominees, with the exception of Huntsman, are “D” or “F” on those issues.

    • posted by BobN on

      I don’t bloody care if Barack Obama favors fully equal, federally and internationally recognized civil unions over marriage. HE’S NOT RUNNING FOR GOVERNOR OF MY STATE.

      He is pushing for fully equal treatment of BOTH same-sex marriage and CUs.

      Ask Frum about his position on that.

  5. posted by Mary on

    As I posted here last night, I am a big fan of Jon Rauch, despite the fact that we’re on different sides of the SSM issue. His essays were so impresssive that they caused me to do more reading of gay websites and enabled me to become more sympathetic to the situation (if not the political demands) of the gay community. Although despondent over last friday’s vote, I was looking forward to his commentary on it.

    I’d expected some gloating and some advice to the homophobes to “go back to your caves” and other such remarks, but I never though I’d see him try to hijack the conservative movement for the gay marriage cause just becausse David Frum finally revealed what most of us have known for ages (i.e. that he’s really a social liberal.) On what basis does Mr. Rauch presume to define both liberalism AND conservativism? Isn’t be being a sore winner here?

    And claiming today’s advocates of gay marriage as the descendents of Edmund Burke is mind-boggling. At this point I would’nt be suprirsed to hear him claim that Maggie Gallagher is a lesbian and will convert from NOM to NOW.

    I have felt for sometime that gay marriage is probably inevitable, for a variety of reasons. I’m trying to accept this. I was sure that Mr. Rauch would advise the gay community that it’s victory last week enables it to approach opponents in a gentler,less radical-sounding way – and how they might go about doing that.

    I’m really disappointed.

    • posted by JohnAGJ on

      What I never understood was why the right didn’t champion civil unions or domestic partnerships instead. They could have maintained their arguments about being a heterosexual institution for mostly procreative reasons, while not alienating so many and sparking a huge fight with their take-no-prisoners attitude. I for one would have been mostly satisfied with civil unions or DPs and to have let this evolve whichever way it went. Yet when the religious right decided on a blatantly dishonest and hostile course that made gays their political boogieman, my views on the matter rapidly changed. I saw them outright lie and engage in the most disgusting tactics to achieve their goals. Now of course you’ll find examples of this from the pro-SSM crowd, NDT I’m sure will be more than happy to provide links to several, but I expected better from folks whom I personally have more in common with politically and whom also claim to speak for God. It was this last part that I found the most disturbing: an attempt to foist a blatantly religious view onto the general populace. Oppose SSM because you believe it is something special for heterosexuals as shown in history. Oppose SSM because you think it’s best for children. Etc. Yet I really couldn’t give a damn whether you believe this is about “Adam & Eve, not Adam & Steve”, whatever else you think the Bible may say about this, or what message you think God has given you to tell the world on the subject. Try and legislate that and I’ll oppose you every single time no matter what the topic.

  6. posted by Lori Heine on

    “He’s a governing official who takes positions based on the next election. Most adults understand that.”

    Gooood little toady. Good little suck-up. If you’re going to be a neutered, housebroken little pet of the “progressive” establishment, then of course that’s exactly what you should say.

    I hope you get a nice cookie.

    • posted by Tom on

      Lorrie, do you have any thoughts about what Republican gays and lesbians will do if nominee supports DOMA, has pledged to move the FMA forward and supports reinstating DADT? Nothing is certain but death and taxes, but that seems to be a likely scenario.

    • posted by Wook on

      Sounds good. I like cookies.
      Take yer hate somewhere else. It’s boring. So is living in the past.

    • posted by Houndentenor on

      No, we are not happy that Obama isn’t supporting same sex marriage. But he’s good on other gay issues. Would McCain have signed the repeal of DADT? Bush actually fought to keep Sodomy laws in place. Sorry but Obama is way ahead any GOP contender on gay issues. Marriage isn’t the only issue, as you probably know but want to conveniently ignore.

    • posted by Rustywheeler on

      Seriously, Lori. Crikey.

    • posted by Wilberforce on

      Nice name calling.
      You argue on behalf of republicans, and I’m the toady? Please.
      You might want to compare the Repubs’ record on gay rights with the Dems’ record. But I don’t think you’re interested in serious policy. Seems you just want to attack progressives, regardless of their record.
      And it says a lot about this site that people are letting you get away with such nonsense.

      • posted by Wilberforce on

        I take back that last line. Folk here did argue back at you. I apologize, people.
        It’s just upsetting that extremists seem comfortable spewing their venom on this site.

  7. posted by Rauch: Why Frum is a Real Conservative | FrumForum on

    [...] Rauch writes: I was as surprised as anyone by David Frum’s declaration that the facts no longer support the [...]

  8. posted by Randy on

    Mary: “I was sure that Mr. Rauch would advise the gay community that it’s victory last week enables it to approach opponents in a gentler, less radical-sounding way – and how they might go about doing that.”

    Perhaps you have some suggestions? The only approach that our opponents have approved is complete abandonment of the pursuit of marriage equality. When we ask for marriage equality in the court, in the legislature or at the ballot, our opponents portray us, as NOM and the Catholic Church does, as trying to destroy marriage and the whole basis of our civilization. When we ask for civil unions, we get the same pushback.

    So go ahead Mary — tell me what approach you would approve of that would treat gays and lesbians with dignity, allow us to have our relationships recognized by government equal to yours, without “being radical.”

    Considering the fact that many countries and several states have had marriage equality, some for up to eight years, and there is no evidence of the collapse of civilization, I’d say the burden is upon you to demonstrate the need to accommodate the views of people who just don’t like us getting married.

  9. posted by Jeffry House on

    David Frum’s view that pragmatic considerations now weigh in favor of gay marriage is welcome. Though he doesn’t mention it in the article, his hometown, Toronto Canada has had gay marriage for a decade now, with no ill effect whatsoever. Conservatives here don’t bother to campaign against it; no one cares about other people’s marriages!

    • posted by Houndentenor on

      I’m tired of listening to politicians talk about “defending marriage” and having to try to figure out which of his 2-3 marriages he’s hoping to defend. People should take their own marriages more seriously and stop trying to deny rights to people who are a little different than they are. Do they think we are blind to their hypocrisy? Or are they too busy calling hookers from the Senate floor to think about that?

  10. posted by Bur - Big Tent Revue on

    [...] Jonathan Rauch notes that David Frum’s change on same sex marriage reflects “real-world conservatism:” I think David’s statement on gay marriage is not a change of principle. Just the opposite. It represents  fidelity to a principle—a conservative principle—and therein lies its importance. [...]

  11. posted by BobN on

    far from betraying conservatism’s greatest tradition, exemplifies it

    Oh, puhleaze. He exemplifies something, all right, but it ain’t conservatism’s greatest tradition, it’s the new tactics of the GOP. Frum’s politics of moderate Republicanism have been thoroughly scrubbed from the core of the party, but they appreciate him tagging along as long as his primary function is to gather new members to the GOP, to make the party look more accepting and more tolerant. If nothing else, this attracts gay $$$$.

    His suggestion that “most conservatives” greeted the NY vote with “calm — if not outright approval ” is ludicrous. I almost bust a gut laughing at that bit of (self?) delusion.

  12. posted by Lori Heine on

    Well, the junior high pile-on was indeed about all I expected. The flying monkeys are always outraged that anyone does not fly with their little troop.

    And their little toady minds assume that everybody must be somebody’s toady. If I DARE to criticize The One, then I must have voted for Bush. The fact that I voted for Obama (and before him, Gore and Kerry) must be — as one little tool put it “inconvenient.”

    The Dems have tipped their hand. They had an historic opportunity to walk their talk to us, and they showed that they will not follow through. The excuse, of course — as always — is those dastardly Republicans. It is becoming increasingly obvious that (A) they don’t want to really represent us anyway, so therefore (B) the Repubs are only an excuse.

    The standard keeps sliding. Before, if we elected them, they’d represent us. Then, if we gave them a majority, they would. Now, evidently, every last Republican on the face of the earth must magically evaporate into the ozone — or the excuse will remain.

    “Seriously, Lori. Crikey.”

    Exactly. If I don’t conform to the right expectations, I’ll never be able to sit at the right table of twelve-year-olds in the cafeteria. Seriously!

    • posted by Patrick on

      up next from lourie “I’m rubber your glue”

      • posted by Tom on

        The Dems have tipped their hand. They had an historic opportunity to walk their talk to us, and they showed that they will not follow through.

        My view is that it is time for the President of the United States to say, in clear and certain terms, that “equal means equal” by endorsing marriage equality, as Lyndon Johnson said, in clear and uncertain terms in 1965, “We shall overcome”, endorsing the full citizenship of African-Americans.

        I think that President Obama is missing an historic opportunity, and I will think the same if and when a Republican sits in the White House, if that President of the United States does not say, in clear and certain terms, that “equal means equal” by endorsing marriage equality.

        President Obama argues, in turn, that he endorses marriage-equivalent civil unions, and that marriage-equivalent civil unions are equal, as a legal matter. I do not agree with that analysis. I find it almost impossible to believe that anyone versed in constitutional law can believe that …

        But for whatever reason — political calculation, personal religious belief (and the usual muddle-headed confusion between civil and religious marriage), who knows — he has been consistent in his statements, and it doesn’t look like he is going to make the leap any time soon.

        Despite my differences — and sharp disappointment — with President Obama on on this issue, I acknowledge that he has kept all but one of his 2008 commitments to gays and lesbians [see Advocate interview, April 2008].

        He committed to repeal DADT during his first term in office, and he did.

        He committed to pass a hate crimes bill, and he did.

        He told the Advocate that he was opposed to DOMA, didn’t know if he could obtain repeal, but wanted the federal government to “lead on this issue”. He directed the DOJ to end federal defense of DOMA earlier this year, which will speed its inevitable end. I think that he has done what he can do on that issue.

        He told us that he would look at federal regulations and work to end discrimination in those regulations. He ended the HIV travel ban, and ordered hospitals and other health care providers who accept Medicare or Medicaid to treat same-sex partners on the same basis as married couples, among other things.

        The major commitment not kept is ENDA.

        So, whatever I think about his position on marriage equality, I look objectively at his record and think he deserves a “B” or a “B+” on the scorecard of promises kept.

        The excuse, of course — as always — is those dastardly Republicans. It is becoming increasingly obvious that (A) they don’t want to really represent us anyway, so therefore (B) the Repubs are only an excuse.

        Huh?

        I will grant you — as I’ve said over and over again — that the Democrats lead from behind, supporting pro-gay legislation only after gays and lesbians have won the battle on our own, building a consensus among the American people. That’s a fact of politics.

        But to suggest that massive resistance from the Republican Party is an illusion rather than a fact is to ignore reality.

        Until the New York marriage vote, no significant pro-gay legislation has made it through a state-level legislative body with a Republican majority. In situations (e.g. California, Hawaii, and so on) where the Democrats have held a legislative majority in both houses and passed pro-gay legislation, and a Republican governor was in power, the legislation has been vetoed. Until the New York marriage vote all significant state-level pro-gay legislation has been enacted into law in this county, the legislation was enacted only when Democrats controlled both houses of the state legislature and a Democrat was in the governor’s mansion. Until the New York marriage vote, the axiom that “whenever a Republican is in a position to block pro-gay legislation in a state, the legislation will be blocked” has been true.

        I hope that New York will not be the exception that proves the rule, that, instead, it is the first crack in the wall of massive resistance and the dawning of a better day, but I’m not holding my breath just yet.

        The response of conservative gays and lesbians to this state of affairs (if the issues agenda of GOProud is taken as the response, at any rate) has been to define away the problem — labeling the fight for marriage equality, an end to employment discrimination, hate crimes legislation and all the rest of the things that gays and lesbians have fought hard for over the years within the Democratic Party, as part of the problem, rather than part of the solution. And, even worse, conservative gays and lesbians complain, at the same time, that Democrats are not doing enough for them. It is a schizophrenic crock, Lori.

        Neither pattern is going to change. I’ll bet dimes to donuts that it won’t be long before the conservative gays and lesbians on IGF begin to tell the rest of us that we should be voting for Michele Bachman because her “homosexual agenda” — defend DOMA, push the FMA into our Constitution, and reinstate DADT — is the path to equality under the law.

        You go even further than most conservative gays and lesbians.

        You label those of us who have labored over the last thirty to forty years to push the Democratic Party into support, however reluctant and imperfect, as “toadies” — sycophants, ass-kissers, grovelers, boot-lickers — because you assume, falsely, that we share your political views, and are selling out to the Democrats.

        That speaks for itself, loud and clear. But it says nothing about us.

        I have news for you. There are a lot of progressive gays and lesbians in this country, and there are many more gays and lesbians in this county, more moderate than progressive, who think that the “strange coalition of anti-government radicals and social reactionaries that dominates the American right” currently in control of the Republican Party, is running the Republican Party , and threaten to run the country, over the cliff.

        Most gays and lesbians do not — emphatically do not — share your extreme political views.

  13. posted by Lori Heine on

    “Lorrie [sic], do you have any thoughts about what Republican gays and lesbians will do if nominee supports DOMA, has pledged to move the FMA forward and supports reinstating DADT?”

    Gee, I don’t know, Tom. As I have decided I will probably not be voting Republican next time either, I don’t know that I care.

    Again with the mindless assumption that if I’m not one side’s good little toady, I must certainly be that of the other. I guess it takes one to think like one.

  14. posted by Lymis on

    While I agree that marriage equality can very definitely be seen in a conservative light (the “marriage” part) as well as a liberal light (the “equality” part, I have to comment on a part of your underlying premise – that there was something acceptable and principled about his previous stance.

    I will certainly grant, for sake of argument, that it is a valid philosophical stance to be skeptical of a change based on concerns for what the consequences might be. And I have no problem loosely characterizing that as “conservative.”

    But for it to be even remotely valid in a specific case, there needs to be an actual foreseeable consequence that might be negative, never mind the idea that small negatives might be outweighed by big positives.

    I’ve never heard an opponent of marriage equality propose a single negative consequence of same-sex marriage that isn’t either transparently absurd, or already far more than adequately in play because of similarly situated straight couples (or existing non-discrimination laws that apply whether gay people marry or not). Seriously. Not one.

    Not the supposed lawsuits that will force clergy to perform marriages against their religious tenets, when nobody can currently sue a priest for not marrying two Jewish people, and so on.

    Not the supposed death of the entire human race when the 2-5% of the population who wouldn’t be making babies anyway get some legal benefits. (And infertile straight people who marry don’t cause this.)

    Not the “fundamental breakdown of the basic building block of society,” or any other claim that is based on the idea that gay people marrying will cause straight people to stop.

    And so on.

    It may be a conservative value to say to someone “I am not willing to let you into the party, because you are carrying a can of gasoline and we have lit candles inside, and it could start a fire.”

    It is NOT a conservative value to say to someone “I am not willing to let you into the party because unicorns could fly out of your butt and trample everyone to death.”

    There has to be some basis, however tenuous, besides pure bias and intolerance, to the “possible negative consequences” that someone foresees.

    It’s all well and good for Frum to say that time has proven his fears to be groundless in practice. But basic logic at the time could have proven his fears to be groundless even in theory.

    However he came to this realization, good for him. But let’s not pretend that it comes from an unbroken commitment to principle.

  15. posted by Lori Heine on

    “However he came to this realization, good for him. But let’s not pretend that it comes from an unbroken commitment to principle.”

    Agreed. Anyone who could ever have supported sodomy laws is probably a creep. And a creep doesn’t stop being a creep overnight.

    But we are supposed to confine ourselves to only two choices. In this we are only slightly less confined than if we only had one. Like monkeys in a lab, we can choose the peanut M&M’s or the electric shock. If we are Right-Wing monkeys, we choose between a different pair of levers than we do if we are monkeys on the Left. But one still delivers peanut M&M’s, and the other a jolt of electric current.

    Whenever someone posts a comment expressing distaste for such a narrow range of choices, and insisting that there are more, that’s no reason for the monkeys to start swinging from their bars, flinging shit and shrieking. Some of us aren’t willing to settle for either an electric shock or peanut M&M’s.

    Both Bush and Obama are cold, callous, calculating political operators. They’re sociopaths, interested in nothing but power and their own glorious little careers. It hardly makes me a devotee of one because I reject the other.

  16. posted by Lori Heine on

    And I have tried to be fair to Bush. Apart from his lust for power (a family trait), I don’t think he’s probably a bad guy. No human being is all evil — even a sociopath. But in his willingness to throw gays to the wolves for the sake of those who would give him power, he showed he was willing to sell his soul.

    Had I thought he was capable of doing something other than that, I might have voted for him instead of Gore or Kerry. Neither of whom was any prize, either.

  17. posted by Jorge on

    …But for it to be even remotely valid in a specific case, there needs to be an actual foreseeable consequence that might be negative, never mind the idea that small negatives might be outweighed by big positives.

    I’ve never heard an opponent of marriage equality propose a single negative consequence of same-sex marriage that isn’t either transparently absurd, or already far more than adequately in play because of similarly situated straight couples (or existing non-discrimination laws that apply whether gay people marry or not). Seriously. Not one…

    I’ve read a couple that fall into the “small negatives [that] might be outweighted by big positives” category. I think we have had bases that are tenuous and no better. Tenuous enough for NY’s appeals court to say gay marriage is not a constitutional right.

    Let the standard be harsh instead of lenient.

    • posted by Tom on

      Jorge, the heart of the court’s ruling was the “feckless breeder” argument:

      [t]he Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.

      The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

      The “feckless breeder” argument was also at the heart of the two other state-level rulings (Indiana, Washington) that held marriage discrimination constitutional. The three cases are virtually carbon copies of each other. To my knowledge, in every other case (Alaska, California, Connecticut, Hawaii, Iowa, Vermont) in which a state supreme court has ruled on marriage equality, the court has held that marriage equality or marriage-equivalency is constitutionally mandated.

      While the “feckless breeder” argument has a basis in fact (straights are having a high number of their children outside of marriage, and the divorce rate is out of sight, both of which offer a rational basis for the state to bribe straight couples to behave more responsibly by offering marriage incentives), and while it is heartening to know that a rational basis for marriage discrimination can be found only if a legislature concludes, however backhandedly, that gays and lesbians are more responsible when it comes to the decision to have children than straights, it is a real stretch to conclude that it provides sufficient rational basis to deny the protections of marriage to the children of same-sex couples.

      In light of the growing body of evidence suggesting that the children of same-sex couples are harmed by marriage discrimination, I do not think that we’ll many more cases decided on the basis of “feckless breeder”. The rational has become almost absurd on its face.

      • posted by Jorge on

        …it is a real stretch to conclude that it provides sufficient rational basis to deny the protections of marriage to the children of same-sex couples.

        No it’s not.

        It means that marriage exists for offering a specific benefit to society, not for the sake of the individuals within the marriage. That marriage is not about protection but incentives. So that throws out every single argument in favor of gay marriage. The civil rights argument is out. The arguement that gay marriage benefits society is out, because it’s reasonable to conclude that marriage law did not originally tackle any problem that gay marriage would help solve.

        • posted by Tom on

          The “feckless breeder” argument is an interesting twist on the “marriage is for procreation” line of thought, I’ll say that for it. But it suffers from the same flaws as the “marriage is for procreation” argument, which is not fairing well under scrutiny. Like the “marriage is for procreation” argument, the “feckless breeder” argument is both too broad and too narrow to withstand logical scrutiny.

          The essential questions are this:

          (1) What benefit does society gain from having irresponsible straights breed within marriage that is not gained by having irresponsible straights breed outside marriage?

          (2) Why doesn’t the rationale for excluding gay and lesbian parents (gay and lesbian parents are responsible about becoming parents and therefore don’t need marriage as an incentive to become responsible about parenthood) extend to straight parents who are responsible about becoming parents as well, excluding them from marriage because they don’t need it either?

          We’ve been around this track before, Jorge, and I don’t suppose we’ll ever see eye to eye on it. I think that the “feckless breeder” argument deserves a decent burial, which I think it will get as cases around the country move forward over the next decade.

        • posted by Lymis on

          Sorry, doesn’t work. Because if it did, then the same logic would apply to straight couples who adopt or choose not to have children at all.

          If the sole purpose of marriage is to support two people who have biological children with each other, then that needs to be the way it is treated across the board.

          Making up a definition like that for the sole purpose of applying it to gay couples doesn’t work.

          The civil rights argument hinges not so much on the fact that every individual has the right to marriage (though the US Supreme Court has declared we do), but rather on the fact that if marriage is going to be allowed and to have governmental benefits and incentives associated with it, those benefits and incentives have to apply to all citizens.

          Otherwise, you’re left with something like “black people are more naturally likely to be involved in their communities, and white people are less likely to, so we need to encourage white people to be involved by allowing them to vote and limiting the vote to them.” Even if you buy the premise, the conclusion looks nothing like civil equality.

        • posted by BobN on

          It’s ridiculous to say that opposite-sex couples benefit society and same-sex couples do not. The only difference between them is natural procreation. And, spouseless pope notwithstanding, there’s more to marriage than a successful hetero boink.

          Now, separately, reproduction benefits society and that’s why we have child tax credits, etc. Of course, they support adopted kids, too, so it’s again not just the breeding that’s important.

        • posted by Jorge on

          The essential questions are this…

          I agree with you on 1. I don’t agree with you that 2 is relevant.

          Sorry, doesn’t work. Because if it did, then the same logic would apply to straight couples who adopt or choose not to have children at all.

          Not really. The argument needs to be “rationally tailored” to “a compelling state interest”, not a perfect pit like a glove.

          The civil rights argument hinges not so much on the fact that every individual has the right to marriage (though the US Supreme Court has declared we do), but rather on the fact that if marriage is going to be allowed and to have governmental benefits and incentives associated with it, those benefits and incentives have to apply to all citizens.

          I don’t like that. It gives me the impression you can’t do anybody good for anybody because then everyone else starts sticking their hands out asking for a handout.

          It’s ridiculous to say that opposite-sex couples benefit society and same-sex couples do not.

          That’s not the point. The point is that opposite-sex couples benefit society in a way that same-sex couples do not, and that specific benefit is something we want. We don’t have to want the other benefits.

          • posted by Lymis on

            And the compelling state interest in giving benefits to straight couples without children while disadvantaging gay couples who have children is what precisely?

            For that matter, the compelling interest in treating mutually infertile straight couples in any significantly different way than a similar same-sex couple is what?

          • posted by BobN on

            Will you articulate HOW straight couples benefit society in a way NO GAY COUPLE does?

            A surrogacy-produced child raised by a man and a woman is indistinguishable from a surrogacy-produced child raised by a woman and a woman or a man and a man.

            And, as I already pointed out, the societal benefit of reproduction is ALREADY rewarded regardless of marital status.

  18. posted by h8str8s on

    The author is friends with a Troglodyte like Mr. Frum? Mr. Rauch is a self-lothing traitor to the gay community.

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