Tuesday, March 24, 2009

A Civil Debate

One of the disturbing things about debating same sex marriage is the tone. Defenders of conjugal marriage are automatically presumed to be acting in bad faith. Same sex marriage is a civil rights issue and nothing else. If you bring up any counter-vailing considerations, any concern about negative consequences, any reason to believe the legitimate objectives of same sex couples can be met in some other way, these considerations are not worth taking seriously. We think the issue is about marriage: what marriage is and ought to be, what society needs marriage to be. The other side thinks it is always and everywhere, only about civil rights. I don't think it is a good and civil way to conduct a debate to assume ill-will or bad intent on the part of your opponent.
Tonight for instance: my opponent at Seton Hall did exactly that. But I don't think it helped his cause. The students could see for themselves that I am not "cruel, or insensitive." Nor was I visibly frightened of anyone, contrary to his explicit accusation of "homophobia." Nor was I "prudish." All these words were used against generic opponents of same sex marriage. At no time did he even attempt to respond to my arguments: that same sex marriage will change the definition of marriage for everyone, not just for a few people, therefore it will affect everyone. Same sex marriage will undermine the principle that children deserve a relationship with both parents. It undercuts the biological principle for determining parentage, as well as the principle that the state records parentage, but does not determine parentage.
All of this will harm children and empower the state, not individuals.
But he did not even attempt to respond to these arguments.
Not a good way to debate.


Victor said...

The title of your debate in the email to the student body was termed "Same-sex marriage: Equal rights or special rights?" Professor Denbeaux did not respond to your arguments, because you did not offer any arguments on the proclaimed topic. You didn't even assert that these were "special rights", but instead started on no-fault divorce, then veered off onto the topic of children's rights to parents of opposite sex, ... So, you shouldn't be surprised that he went off topic as well.

Then you surprised the whole student body in that room by denying the current state of the law in a number of states. Somehow you were making the mandatory connection between "marriage" and "child custody" and "child rearing," when - among others - New Jersey does not recognize marriage as a pre-requisite to proper adoption or parenting...

So, the law students (and I talked to a number of my school mates afterward) were not only disappointed that you did not present anything on the topic that was proclaimed in the title, but you also refused to recognize the legal reality that exists in many states (including NJ) which is in direct conflict with your ideas.

So, to be quite honest, you have no one but yourself to blame. I could understand your accusations if the debate was entitled "Alternative considerations/arguments against SSM" or something like that, but not where the title was "Equal rights or special rights?"

Fitz said...

Victor - reading your entry at your own Blog and your comments here... I had these initial insights.

“Of course, she knew she had a priori lost debate on whether LGBs are owed the rights of and to marriage, at least within a law school (well, at least within this law school)”

Perhaps this is why she diverged off topic. I cannot attest to her motives, but a hostile or skeptical audience might be reason to at least lay some cultural groundwork.

As far as her talking about no-fault divorce - the topic is immediately germane. It is used to illustrate how law can affect culture in ways not readily predicted by the advocates for change.

Indeed…One common argument pre no fault divorce was “What do two people getting divorced have to do with YOUR marriage”

You also state this…
“There was a disconnect between her position and the students' knowledge: she was unsuccessfully trying to create a coherent position on how marriage and procreation should be tied, while the students were trying to understand how exactly her position is realistic or related to the reality of the current state of American jurisprudence in the field of family law, where that tie is marginal at best.”

The point of child custody and adoption and presumption of paternity alone don’t make the procreation/marriage connection “realistic or related to the reality of the current state of American jurisprudence in the field of family law, where that tie is marginal at best”

Procreation is the Razon Detra for marriage law in the first place. I’m sure many deny this obvious fact, especially in an academic environment.

However, dismissing this well justified connection as “marginal at best” ignores (among other things) All existing SCOTUS precedent on the subject of marriage.

As the New York Court points out in its recent decision. Discussing the Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)

Judge Graffeo noted….

“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”1

1 - Andersen v. King County (J. Graffeo concurring)

If you read these cases (Half of which directly deal with procreation) you will discover that, indeed procreation is that “the very roots that caused the… Court to recognize marriage as a fundamental right in the first place”

Clearly we are on different sides of this issue. I am a lawyer myself and you seem to be a law student. I blog with a group of others on this exact topic. (you can get to my blog through the link)

I know through my law school days that most law schools are (sadly) an inhospitable environment for the kinds of arguments Dr. J and marriage defenders typically use. You’re welcome on our Blog. We have a resource page that you may find very useful in expanding your knowledge of the kinds of arguments, legal and cultural – that marriage defenders employ.

I am going to try and answer your questions if I can find the time.

Fitz said...

Victor (wrote)

"The "esteemed" doctor hung out a post about the uncivil debate, about how after she spoke she was accused of homophobia. Apparently, she's not homophobic at all. Yeah, right, and the sky is pink!"

I hold her in esteem - so she is indeed esteemed (many others do as well)

I was in the process of answering your questions below when I noticed this remark.

You have no reason to think the Dr. is "homophobic" - that she hates or fears gay people. Not any reason except that she opposes same-sex "marriage". As a matter of fact her and many like her (including myself) have been working for years on the problems of family fragmentation, divorce, illegitimacy, teen pregnancy, venereal disease and the like. Indeed the good Dr. and many, many others have been confronting the fallout from the sexual revolution since its inception.

It’s simply unfair to have same-sex “marriage” thrust on us by the judiciary – and then claim the opposition has ulterior motives. Marriage exists at the core of our culture and indeed has always been regarded as “foundational” in nature. Most scholars and activists have had little or nothing to say specifically about the controversies surrounding homosexuality and the gay community.

Regardless of your imputing of motives, multiple scholars and academics take a broader view of marriage than simply the latest conquest of gay “civil rights” or social evolution.
Indeed such imputations are often more a tactic than an honest assessment. They are part of a carefully cultivated political movement that is attempting to force a social change against the better judgment of the majority of Americans & the considered weight of evidence. I would suggest that you try to understand this position better. As a law student you are in a unique position to weigh the veracity of multiple claims. My law schools family law department was made up of three lesbian, feminist, polyamorists. They published exclusively within this vain of thought. No other contrary voices were present.

If things are largely the same at your law school, you should ask yourself why. You may ask yourself, what am I being denied and what perspectives best represent the most ethical, reasonable & fair approach to an issue of this magnitude.

Multiple resources exist. A wider philosophical & historical approach may help you escape current university dogmas and better understand the nature of what is occurring.

Jennifer Roback Morse said...

Hi fellas, May I chime in? there is a bit of a "back story" to the debate at Seton Hall. I was invited at the beginning of February to come and debate the subject of same sex marriage. It is my understanding that the American Constitutiion Society president specifically wanted this topic. The President of the Federalist Society, therefore, found me to represent the opposition to same sex marraige.
It is my understanding that the person the ACS originally engaged to debate me, backed out. I do not know why. They had difficulty getting another opponent for me. I do not know why.
I was not told that the topic was subtitled "equal rights or special rights?" I was just told to debate same sex marriage, which I did. Prof Denbeaux did not respond to any arguments. No questions were directed toward him.
As for the issue Victor raises in his original post, that would have been a question worth exploring. The trend in law is indeed toward de-linking marriage from procreation and parentage, as even the default position. The difference between your side and ours is that your side seems to see this as a form of liberation for someone, while our side views it as an unmitigated disaster.
That is why I talk about no-fault divorce: I believe it is germane on a number of levels, not the least of which is that it began the process of de-coupling lifelong marriage from being the socially accepted norm for the rearing of children.