Is there an originalist case for a right to same-sex marriage?

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Orin Kerr:

My friend and co-blogger Ilya Somin has blogged a few times about the originalist case for a right to same-sex marriage. Reviewing the arguments, he recently concluded: “[I]t is no longer possible to claim that there is no serious originalist case for striking down laws banning same-sex marriage.” I disagree. It is possible to claim that, and I’ll even prove it by making the claim right now: As far as I can tell, there is no serious originalist case for a right to same-sex marriage. Or at least that’s what I think so far, based on the arguments that Ilya has provided and linked to in his posts. I’ll explain my current thinking here and invite others to show why I am wrong.

Let’s start by reviewing the originalist arguments that Ilya has mentioned.

The Calabresi argument. In his essay posted on SSRN, Steven Calabresi’s primary originalist case for a right to same-sex marriage runs something like this. In U.S. history, it has been common for major political documents, such as the Declaration of Independence, the Articles of Confederation, and many state constitutions, to say that all men are created free and equal. Concerns with freedom and equality generally undergirded legal reforms in the Reconstruction era, including the Reconstruction era constitutional amendments. Laws forbidding same-sex marriage violate principles of freedom and equality, and therefore they violate the Fourteenth Amendment, which of course was one of the Reconstruction-era constitutional amendments.

The Ramsey argument. Michael Ramsey has blogged a tentative originalist case for a right to same-sex marriage. It runs like this: If we assume that an originalist Equal Protection clause establishes an anti-discrimination or equal treatment rule that applies to choices as to who a person can marry, our modern understanding that laws prohibiting same-sex marriage are based on discrimination and inequality can lead to the result that such laws violate the original understanding of the Equal Protection clause.

The Eskridge argument. As Ilya recently noted, William Eskridge hasbriefly blogged an originalist case, too. According to Eskridge, Justice Kennedy’s 1996 opinion in Romer v. Evans began by recognizing that an original meaning of the Fourteenth Amendment was to bar caste or class legislation. Laws prohibiting same-sex marriage amount to case or class legislation, so they violate the originalist conception of the Fourteenth Amendment.

The Somin argument. Finally, Ilya has blogged that he thinks laws prohibiting same-sex marriage amount to unconstitutional sex discrimination. In his latest post, he describes this as an originalist argument, linking to this 2013 post which in turn relied on this article by Steven Calabresi and Julia Rickert arguing that sex discrimination was included in that original meaning of the Fourteenth Amendment. With the benefit of modern understanding, we can now see that laws prohibiting same-sex marriage involve sex discrimination, so they are unconstitutional. (Calabresi briefly makes a version of this argument at the end of his recent essay, too.)

The structure of these four arguments appears similar. They each work in two basic steps: (A) assert that the Fourteenth Amendment adopts a broad principle, and then (B) argue that same-sex marriage laws violate that principle. The arguments differ slightly in the nature of the broad principle that they assert the Fourth Amendment recognizes. To Calabresi, the principle is freedom and equality; to Ramsey, it’s equal treatment in marriage choices; to Eskridge, it’s rejection of caste legislation; and to Somin, it’s rejection of sex discrimination.

These are important arguments, but here’s where I am stuck: I don’t yet see how these are distinctly originalist arguments. My primary problem is at step (A), the articulation of the broad principle. I am not an originalist theoretician, so maybe I am missing something. But I would think that for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment. From what I can tell, the originalist arguments made so far haven’t really done that. As a result, I’m not sure there is anything distinctly originalist about these claims.

Consider Calabresi’s primary argument about same-sex marriage, which is the most thoroughly developed of the four. Calabresi reasons that important historical political documents talked about freedom and equality, and that these basic concepts were an important influence on the 14th Amendment. So far, that seems hard to dispute. The problem, it seems to me, is that important historical documents talk about a lot of broad principles. And the idea of a general principle having an influence isn’t the same as directly adopting a particular conception of that principle. Given that, it’s not clear which of those broad principles made it into the Constitution. Presumably, not all of them did. To bridge the gap, and to show that the specific principle was adopted at the time, I think we need the originalist step of showing how the specific text was originally publicly understood as recognizing that identified principle.

Without that step, I fear that what are being described as originalist arguments may just be products of the Level of Generality Game with the word “originalist” tacked on. Most students of constitutional law will be familiar with the Level of Generality Game, as it’s a common way to argue for counterintuitive outcomes. The basic idea is that any legal rule can be understood as a specific application of a set of broad principles. If you need to argue that a particular practice is unconstitutional, but the text and/or history are against you, the standard move is to raise the level of generality. You say that the text is really a representation of one of the relevant principles, and you then pick a principle at whatever level of abstraction is needed to encompass the position you are advocating. If the text and/or history are really against you, you might need to raise the level of generality a lot, so that you get a super-vague principle like “don’t be unfair” or “do good things.” But when you play the Level of Generality Game, you can usually get there somehow. If you can raise the level of generality high enough, you can often argue that any text stands for any position you like.

The basic move of raising levels of generality isn’t necessarily improper, to be sure. Some theories of constitutional interpretation expressly endorse it. Some rely on it heavily. But whatever we think about raising levels of generality in a general sense, I would think that originalist theories of interpretation place some important limits on it. I would think that for a claim to be distinctly originalist — that is, for it to be identifiably different from non-originalist claims — the case would need to be made that the principle at the level of generality actually identified and applied was one that the text was fairly understood to contemplate at the time the language was adopted. We don’t need evidence that the particular rule adopted was a specific intended application of the text. But I think we need evidence that the principle was contemplated at the time of adoption at (or at least plausibly near) the level of generality at which it is to now be applied. And I haven’t seen that argument developed, at least yet, in the originalist arguments for a right to same-sex marriage.

That’s my tentative sense, at least. And let me make that sense even more tentative by adding three important caveats:

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Anything that isn’t banned by a law is legal. Is there a law banning gay marriage? I haven’t heard of any, except in religious circles. The Constitution says that the USA can’t establish a religion, meaning that the politicians aren’t supposed to use religious rules to guide their political decisions. They are supposed to follow ONLY what the laws say.

If they are allowed to use the Christian religion to decide laws, then if the muslim religion becomes the dominate religion, does that mean the politicians will HAVE TO USE MUSLIM RULES WHEN WRITING LAWS?

The term “marriage” should ALWAYS mean a marriage between a man and a woman. What the gays need to do is come up with a name for a union between same sex couples. There might already be one somewhere in the world. Gay couples SHOULD NOT have ALL of the same rights as straight couples. For example, they should not be allowed to adopt kids. Kids need a MOM AND A DAD.

:
I tend to agree with what you have said about the wisdom of keeping religion and our secular laws separate. Doing so simplifies the process we use to make laws now, something that would be ridiculously problematic if we were held to concepts that are thousands of years old and prevented from applying more recent enlightenment to the process. It keeps the state from establishing its OWN religion, and it keeps us from fighting civil wars to impose our own various beliefs upon each other.

The simple elegance of this separation also blessed us with the freedom to individually make our own religious choices without government interference. This is a very GOOD thing, and religious freedom is a primary foundation of our republic and one that is extremely difficult to subordinate to other constitutionally guaranteed rights. The difficulty with gay marriage is that its application – which in the present does appear to be headed toward universal acceptance at least at the state level – does intrude at some level into the realm of personal religious choice. There is no easy fix for this unfortunate legal conflict. Our CURRENT judicial understanding of the Constitution (not the “originalist” interpretation that this article actually is attempting to discuss) is agreeing by a very lopsided majority that the Constitution DOES justify gay marriage, rendering moot the argument that “gays need to do is come up with a (different) name for a union between same sex couples.” For decades, gays fought for “civil unions” but were vigorously opposed at every turn by mainstream churches and by Republican politicians. By the time civil unions were finally approved in very Democratic Vermont, gay marriage was already accepted elsewhere. That ship has sailed – there’s no getting that genie back into that bottle, or closet. Had the opposition known what was coming, they likely would have gladly sued for civil unions, and most gays would have quickly accepted the compromise – particularly if the legal protections that mattered most to gays were included in the necessary legislation. But that didn’t happen, and now the moment (for civil unions) has passed. There will be no going back.

Sorry you feel the way you do about adoption. Kids need a LOT that they often don’t get. A Mom and a Dad would be nice, yes, especially if they earn enough to provide a nice, loving home and a good education for their kids, etc. But it isn’t a perfect world, and we don’t have enough perfect families to raise all of the children that are brought into the world. In many cases, gay adoption is the only alternative to leaving children institutionalized until the age of majority. Condemning them to that fate is unnecessarily cruel. Better a less-than-perfect family than none at all and, in case you have missed the court evidence on the subject, gay families do quite well raising adopted children. For that matter, the courts have almost unanimously failed to find any OTHER rights of marriage that gay couples should not have equal access to, which is precisely why gay marriage is at this point legal in 36 states and for over 70% of all Americans. The argument is not now whether gay marriage should be legal, it is whether people who oppose it should be allowed to discriminate against gay people in OTHER areas of American life. THIS is the current issue, not Curt’s posted argument over whether or not there is an originalist argument for gay marriage. There are only a couple of died-in-the-wool constitutional originalists on the SCOTUS, and they DON’T control that court. Originalism doesn’t matter.

@George Wells: #2
Let’s keep in mind that anything is legal unless it is banned. Until a law was written making gay marriage illegal, gays could have “married”, but they couldn’t have the wedding in a church, since most religious organizations say being gay is a sin.

Our CURRENT judicial understanding of the Constitution (not the “originalist” interpretation that this article actually is attempting to discuss) is agreeing by a very lopsided majority that the Constitution DOES justify gay marriage, rendering moot the argument that “gays need to do is come up with a (different) name for a union between same sex couples.”

My suggestion for a separate name was meant only to know the difference between a gay couple and a straight couple to avoid any problems or embarrassments when the therm “marriage” is used, and someone expects to see a man and woman couple and they see a gay couple.

When I lived in Massachusetts, it was said that the state allowed gay marriage. A radio talk show host explained that there was no mention of “marriage” in the state’s constitution, so gay marriage was legal, in the sense that it wasn’t illegal.

Sorry you feel the way you do about adoption. Kids need a LOT that they often don’t get. A Mom and a Dad would be nice, yes, especially if they earn enough to provide a nice, loving home and a good education for their kids, etc.

My suggestion for gays is to FIRST fight for the right to get “married”, then fight for other things. If that would have been the ONLY thing they fought for at the beginning, I’m guessing that they would have gotten it long ago, then they could have fought for other things.

I could go along with gays adopting kids if the research says it works out OK, but the couple should be researched extensively first, and that extensive research should extend to ALL couples wanting to adopt, straight and gay. I have heard too many horror stories of couples getting kids when they never should have been allowed to.

The argument is not now whether gay marriage should be legal, it is whether people who oppose it should be allowed to discriminate against gay people in OTHER areas of American life.

I agree. This is one reason I don’t belong to any religion. Almost all of them condemn gays. Just like other people have done, I think the ones who created the religions knew they had to have one group of people for their followers to hate. This step has ALWAYS BEEN USED when a country was taken over peacefully.

But it isn’t a perfect world….

You reminded me of a man who said he will never belong to the perfect church, because the instant they accept him as a member, that church will no longer be perfect.”

For those who say being gay is a choice, again I ask them, “What age were you when you CHOSE to be straight?” I have not had one straight person tell me when they “chose” to be straight.

@ Smorgasbord:
“but (gays) couldn’t have the wedding in a church, since most religious organizations say being gay is a sin.”
False statement, since some churches DO marry gays, and have been willing to do so for some time now. Some churches say being gay is NOT a sin, as you hint, and gays CAN have a church wedding, just not in those churches that don’t yet officially allow them.

” A radio talk show host explained that there was no mention of “marriage” in the state’s constitution, so gay marriage was legal, in the sense that it wasn’t illegal.”
This was not an expert opinion on the matter. Gay marriage in Massachusetts was illegal UNTIL the state’s Supreme Court instructed the legislature to make provisions to allow it as an equal right, which they then did.

“My suggestion for gays is to FIRST fight for the right to get “married”, then fight for other things. If that would have been the ONLY thing they fought for at the beginning, I’m guessing that they would have gotten it long ago, then they could have fought for other things.”
Gays first had to fight for the right to have gay sex – in private – without being thrown in jail. They had to fight for the right to have and to visit gay bars without being thrown in jail. These “rights” were gained only recently. They still haven’t gained most protections from discrimination – a fight made quite difficult by the religious objection to homosexual behavior (which SOME religions consider a sin) and the Constitutions protection of religious freedom. Civil marriage was a fairly low-hanging fruit, as it doesn’t require religious acceptance, so it has been reasonably easy to justify it on constitutional grounds of equal protection. But remember that back way before gay marriage, religions and Republicans were fighting against gay civil unions. The same people who objected to civil unions also objected to the decriminalization of gay behavior. Gay adoption wasn’t part of the argument.

I agree with the rest of your comments. Your perspective, while not perfect, is at least rational beyond the standards I frequently see here, and I thank you for that.

@ Smorgasbord:

Here’s one other point that I think demonstrates the degree of animus that some on the “Christian Right” hold for gays. These “righteous” soldiers of God have been fighting tirelessly (at least until recently, when it finally dawned on MOST of them that they were in fact wasting their time) to prevent LAW-ABIDING gay citizens from marrying the persons they love… AT THE SAME TIME NOT raising a peep of objection to the fact that their states allow CONVICTED MURDERERS to marry. Gay people on one side of the equation – breaking no laws – and on the other side of the equation the most vile sociopaths imaginable. Do rational people really think that a law-abiding gay person is LESS deserving of a happy marriage than someone on “death row” awaiting execution? I suggest that these people are NOT rational, that they are bigots so blinded by their hatred that they cannot see the fundamental absurdity of their position on marriage equality. A rational person possesses the capacity to weigh such issues fairly and to contribute meaningfully to the betterment of all mankind, and is not distracted by fear of the unfamiliar.

Your comments regarding the absurdity of people “choosing” their sexual orientation is another example of the same blindness to the obvious. The Christian Right adheres doggedly to the notion that sexual orientation is a “choice” not because there is legitimate evidence that it is but because if it is not, then all of their righteous indignation is misdirected toward innocent individuals. If God did indeed MAKE homosexuals (in His image?) then who are these “Christians” to question His motives?
“Judge not least ye be judged.”

@George Wells: #5

“Judge not least ye be judged.”

I had forgotten about that biblical quote.

Hating a gay because they are gay is like the Palestinians hating the Israeli people because they were born Israeli. Neither one CHOSE it.

I don’t have a problem with gay GUYS. The more of them there are, the better chance I have of finding a woman to spend the rest of my life with.

@Smorgasbord:

For those who say being gay is a choice, again I ask them, “What age were you when you CHOSE to be straight?” I have not had one straight person tell me when they “chose” to be straight.

Smorg, I agree with most of what you said but, not all. I think some gays are by choice, probably most are gay due to birth defects, ie., brain hardwired wrong.

I don’t agree that asking when someone made the choice to be straight is the same as your question. If a person is not born with the birth defect that ‘makes’ them gay, then they are straight. That being the case, then any choice made would be to ‘not be straight’ or ‘to be gay’ , not the other way around. I will concede that there are some that are ‘born gay’ that do choose to be straight. (I know one).
As far as the ‘originalist’ argument, I don’t think that matters. Airplanes were not around when the constitution was written, but we still have airplanes and rules that apply and have to be obeyed. A ‘marriage’ is one man and one woman. Any other combination is a union or partnership. If there ‘can not’ be any laws regulating who can get married, then fathers can marry their 10 years old daughters or 10 year old sons OR mothers can do the same. Civil society needs rules and controlling ‘who’ can marry ‘who’ has always been part of those rules.

@George Wells:

If God did indeed MAKE homosexuals (in His image?) then who are these “Christians” to question His motives?

George, I can’t put all persons born with birth defects in the (in His image) category. For example, some are born blind, some deaf, some with one leg, some conjoined, some gay. I don’t think many or everyone are ‘born in his image’.
I do, very much agree with you that convicted Murderers should not be allowed to marry or adopt children. Society has to be civilized and have rules to govern.

#8:
You seem to invest a great amount of importance in the idea that gay people are “defective,” as if people who are NOT gay are somehow importantly less defective, less imperfect than gay people are. No one is perfect. We ALL have defects. In our mutual agreement to form a civilized society (as opposed to killing each other off at whim) we grant to each other EQUAL rights even though we are clearly not all the same.

We are NOT all created equal. Some are tall, some short, some black, some white, some gay, some straight. Our ranks are swollen with irregularities, abnormalities and down right freaks of nature. But we, at least in principle, grant each and every oddity among us with the same “equal” rights. No, not perfectly. There is still plenty of vicious racial discrimination, in spite of our Constitution’s guarantees of equal treatment, and in spite of the many laws that have been enacted to counter our baser impulses to tyrannize those among us who are different. We try.

We are currently witnessing a re-evaluation of the legitimate role of homosexuals in our society. Thirty years ago, homosexual behavior was considered criminal, and the nation’s laws reflected this view. Today, human sexuality is understood differently from how it was perceived thirty years ago, and homosexuality has been decriminalized in our laws. Once it WAS decriminalized, as Chief Justice Scalia predicted, there remained no legitimate excuse for withholding equal rights from gays. No, they don’t entirely have equal rights yet, but they are gaining them rather quickly. So-called “Marriage Equality,” that allows gay people to marry each other, is indeed sweeping the nation and much of the civilized world, regardless of what “definition” of “marriage” you prefer to insist upon. (Fortunately for the rest of us, YOUR peculiar “definition” of marriage doesn’t matter. It is the Law that counts, not Redteam’s Imagination.)

The problem you are stuck with isn’t that gay people are more or less imperfect than their straight counterparts, it is that you believe that the differences between gays and straights warrant persecution of the gay minority condition – the deviation from the norm. Civilized man has had to overcome this impulse in order to establish peaceful societies. Laws are enacted to deliver the promises of equality that constitutions guarantee. That is what you are fighting. You are denying the legitimacy of the guarantees of equal protection granted by our Constitution.

@Redteam: #7

I think some gays are by choice, probably most are gay due to birth defects, ie., brain hardwired wrong.

I challenge ANYONE to find ONE person who says they are gay by CHOICE. I have always heard the opposite: They didn’t CHOOSE it. If being gay is a “birth defect”, shouldn’t it be treated like ALL OTHER birth defects, and accept the individual the way they are. We don’t try to turn an autistic child into a “normal” child. We love them the way they are.

A ‘marriage’ is one man and one woman. Any other combination is a union or partnership. If there ‘can not’ be any laws regulating who can get married, then fathers can marry their 10 years old daughters or 10 year old sons OR mothers can do the same. Civil society needs rules and controlling ‘who’ can marry ‘who’ has always been part of those rules.

As I mentioned earlier, I believe the term “marriage” should mean a union between a man and a woman, and that the gays should come up with a name for their unions.

I agree that generally speaking there needs to be laws regulating who can united in a union. It’s like I tell people who complain about some rules some companies have. The rule probably came about when someone did something stupid, management had to make a rule against it so that others wouldn’t do it. For every “stupid” rule, there was probably a stupid person that made the rule necessary.

The basic thing I am trying to say is that we should just accept the fact that not all people are born the same, and we should accept EVERYBODY the way they were born.

@Smo4rgasbord #10:
“I believe the term “marriage” should mean a union between a man and a woman, and that the gays should come up with a name for their unions.”

If you think that “marriage” applies ONLY to male-female bonds, you are mistaken.

The term “marriage” was never the exclusive “one-man-one-woman” construct that you and Redteam think it is. The term has always meant the bringing together of two – or more – things that weren’t previously joined. When a teapot that long ago lost its lid is found another suitable lid, the addition of the new lid is termed a “marriage.” Poetry and painting are sometimes said to be “married.” If you refer to a dictionary, yes, several of the listed definitions of “marriage” do pertain to civil and/or holy “wedlock,” but you will also discover one or more meanings of the word “marriage” to which a male-female bonding does not apply. Nobody has ever argued that these other uses of the term “marriage” in any way devalue or threaten their own heterosexual marriages, and neither should they object when the term is applied to the union of gays in either civil or holy matrimony.

If you argue that gays should use a DIFFERENT term to describe their unions, I would ask why, and ask how you expect a “separate-but-equal” status to work in this case when it has failed so consistently in our legal experience of the past. Every single law that conveys one of the thousand-plus benefits of marriage would have to be amended to make provisions for the inclusion of whatever this “other” gay arrangement would be called, and every single one of those legal changes would be vigorously fought against by the same factions that have fought so hard against gay marriage. The gays would legitimately fight against the inequality of it, as such arrangements violate the equal protection guarantees found in the Constitution. If ever enacted, such a construct would not survive judicial scrutiny. But most everyone already knows that, which is why you are not hearing even the most stridently conservative politicians asking for such nonsense. THEY know better.

@George Wells:

against gay marriage.

If it is the same, why do you refer to it as ‘gay marriage’. Should straights refer to their marriage as ‘straight marriage’?

@Smorgasbord:

If being gay is a “birth defect”, shouldn’t it be treated like ALL OTHER birth defects, and accept the individual the way they are.

I basically agree with that. It just depends on the extent of the defect. Pedophilia is also a birth defect, along with autism, and others, so it just depends on where the line on ‘normal’ is drawn. As George said, you wouldn’t want convicted murderers to be considered ‘normal’ as far as allowing marriages, etc.

#12:
“If it is the same, why do you refer to it as ‘gay marriage’. Should straights refer to their marriage as ‘straight marriage’?”

I’m SO happy that you finally asked that question.
It has been the position of gay people all along that there really should be NO DIFFERENCE whether you marry a person of your own gender or a person of the opposite gender. The Law should be blind to gender exactly as it should be blind to race. But the state laws and the state constitutional amendments that have forbidden gay people from marrying each other made a mountain out of the this mole-hill. Those prohibitions treated homosexuals differently from heterosexuals, and to prevent the unnecessary encumbrance of having to explain the entire ridiculous distinction being made by these unfair laws every time the subject is addressed, the short-hand term “gay marriage” was invented. For a rather similar reason the term “marriage equality” was also coined. In a perfect world, in which all people had the same rights, neither of these terms would be necessary, or indeed, both would be oxymoronic.

Some day, when society has evolved to the state in which married homosexuals are no longer an issue, the term “gay marriage” will fall from common usage. As a nod to political correctness, the term might even become taboo in polite circles, as it implies some legitimate need to differentiate between same-sex marriages and opposite-sex marriages. Because a huge majority of all marriages will always be heterosexual, there will likely never be a need to distinguish them from “gay marriages,” as it will always be REASONABLE to assume that almost all marriages will be heterosexual. This, however, argues for the retention of some convenient nomenclature or other socially acceptable convention with which polite people can avoid committing unnecessarily awkward social faux pas. Obviously, in many cases a simple statement like “Ken and Steve are married” will suffice. But there will always be some circumstances where the gender of the two married individuals will need to be acknowledged. One hopes that whatever means is settled upon won’t be too offensive to any of the parties involved, but I suspect there will always be some people who will seek to hurt the feelings of others, and they won’t always fail.

@George Wells:

“Ken and Steve are married” will suffice.

wouldn’t Steve and Ken be more appropriate? How do you tell people which is the wife? I was reading about a procedure for creating children in vitro and was surprised to read that it takes cells from One Man and One Woman. Seems as if cells from only a man won’t do it. I’m sure that comes as a surprise to you also.

#15:
“How do you tell people which is the wife?”

What ever makes you think that one or the other has to be a “wife”?
I’m not sure that the term “husband” would be entirely correct, either, since the term “husband” does imply the existence of a “wife” in the conventional sense. The term “spouse” is gender-neutral, and is more technically correct. Both “Ken” and “Steve” are “spouses.” When two same-sex individuals get married, the officiate usually proclaims “I now pronounce you married.” Any declaration of which is “husband” and which is “wife” would clearly be absurd. Of course, “absurd” is what you are driving at. I get that. But most rational people don’t approach this subject as if they are insane, asking nonsensical questions like “How do you tell which is the wife?”

“I was reading about a procedure for creating children in vitro and was surprised to read that it takes cells from One Man and One Woman. Seems as if cells from only a man won’t do it.”

AS is so often the case, you are once AGAIN mistaken. For a person who CLAIMS to be a man of science, you seem oblivious to the obvious and repeatedly misconstrue the purpose of articles you comment upon.

A new individual can be created entirely with cells from ONE parent of EITHER sex. Such a new individual is called a CLONE. Surely you must have heard of clones, right? For certain legal, ethical and moralistic reasons, clones of humans are not presently being created – not because of any scientific limitations to the process of creating them, but because there are political objections which have not yet been resolved.

Such political objections do not seem to exist when some genetic material from ONE male and other genetic material from TWO females are combined to create a new individual that is not identical to any of the “parents.” I expect that THIS is what your present article is discussing, since TODAY A law was passed in one of the British houses to allow exactly THIS combination of genetic material. NOT one man and one woman… TWO women. This process that you (and the article) are discussing is describing something of a hybrid between the simple process of in-vitro fertilization (something that does NOT encounter significant objection from self-righteous social conservatives) and cloning (which DOES face angry Republican opposition. The benefit of this newer genetic recombination process is that the prospective parents can (or soon will be able to) selectively pick and choose which traits they want their child to have, particularly to the exclusion of disadvantageous genetic fragments from either parent that can be selectively eliminated from the newly created individual. As we move in this direction, we get progressively more deeply mired in ethical dilemmas, as we are clearly treading into the mine-field of genetic engineering. Like it or not, we are now capable of this minor miracle of genetic engineering, and it is this scientific development which is currently in the news. It is not, however, the only combination of genetic material that is possible. It is simply the combination that is being debated in Parliament RIGHT NOW.

The other shoe to drop in this direction is the one in which a new individual CAN be created from the combined genetic material of two (or more) males or two (or more) females. PLEASE remember that a new individual can be made from no more than the genetic material of ONE individual of either sex. Once science advanced into the realm in which specific genetic fragments from multiple donors (“parents”) could be combined successfully to create a new individual that WASN’T genetically identical to a SINGLE parent, it really didn’t matter whether all of the genetic material came from one parent, from several parents of different sexes, or from MANY parents all of the same sex. It’s all doable. The article you read simply restricted itself to the fraction of such cases in which research is not entirely, currently prohibited.

You seem to be completely ignorant of this branch of genetic research. Perhaps you could avoid embarrassing yourself by first figuring out exactly what the articles you read are really limiting themselves to, and then restricting your comments to those particular subjects.

@George Wells: #11
I am only stating my opinion, and understand that everybody has a right to their own 0pinion. My opinion is subject to being wrong, but seldom is. LOL

@Redteam: #13

Pedophilia is also a birth defect….

In the sense that pedophiles don’t CHOOSE to be pedophiles, I agree with you. Using that reasoning, can’t it be claimed that anybody NOT born straight has a birth defect?

As I have mentioned before, I think anyone who rapes adults or children should have there equipment removed AFTER THE FIRST OFFENSE, just like guns are taken away from crooks.

#17:

I assume by your failure to offer any legitimate rebuttal to my #11 that you are either too busy with other matters to bother continuing this discussion, or you recognize that your original position is untenable but you lack the courage to admit it. Either way, you are capable of better engagement, and I look forward to your effective return.

#18:
“can’t it be claimed that anybody NOT born straight has a birth defect?”

Perhaps you might want to ask “Who among us is born perfect?”
Are we not ALL born with defects?
(Hint: The answer to the last question is “YES.”)

Then ask yourself “What gives you – or anyone else – the right to judge which imperfections are “acceptable” and which warrant persecution.
(Hint: Laws that prohibit behaviors that harm others generally survive constitutional scrutiny. Laws that punish people for being born black, Jewish or gay do not.)

Finally, tell me what difference it makes that some of us are harmlessly red-haired and some of us are harmlessly homosexual.
I can make a particularly good argument that homosexuality is beneficial to the human population which, at over 7 billion and growing, is certainly not in need of gay people’s contributions to the gene pool.
At what point does a genetic flaw become an advantage to an over-populating specie?
And at that point is it really a “flaw” or is it an adaptation for survival?

@George Wells: #19
I have said different times that if a discussion I am having with someone seems to be the same thing over and over, I would rather not carry on the conversation any further. It can lead to arguing, and I don’t like to argue.

I try to look at all situations from ALL angles, not just mine. MANY TIMES I have changed my mind on a subject after hearing other views. Gay marriage is one of them. I used to be against it, but now am OK with it.

The term “marriage” should mean a union between a man and a woman. Let’s assume that you get your wish, and the term “marriage” means a union between two people. Imagine a child growing up, and their parents take them to a house where a married couple lives, and the child sees a man and a woman. Another time, the kid is taken to a different house that has a married couple, and the kid sees two men. Another time, the kid is taken to another house that has a married couple, and the kid sees two women.

It would be very confusing for the kid, even if the parents take great care to explain the three different kinds of marriage. This makes me think that there should be THREE DIFFERENT terms for marriage so we know what kind of a union the couple is. I would think that if I were married to the same sex person, I would want people to know so there wouldn’t be any confusion.

I hope I am wrong, but you seem to be one who has to win a debate. I have mentioned my mom different times who I saw many times ARGUE over very minor things that the average person would say that they disagree, but let’s change the subject and stay friends. My mom wouldn’t just have to win the argument, she wanted EVERYBODY to know she was right, and the other person was wrong.

I’m not referring to you when I say this, but she is the main reason I don’t argue. She drove a lot of possible new friends away from her when they said something she disagreed with.

@George Wells: #20

Perhaps you might want to ask “Who among us is born perfect?”
Are we not ALL born with defects?
(Hint: The answer to the last question is “YES.”)
Then ask yourself “What gives you – or anyone else – the right to judge which imperfections are “acceptable” and which warrant persecution.

I was referring to anyone who says being born anything other than straight is a birth defect. Is it possible that being born human is a birth defect?

Finally, tell me what difference it makes that some of us are harmlessly red-haired and some of us are harmlessly homosexual.

You’re forgetting that I am on your side. I even said that the more gay guys there are, the better chance I have of finding a woman to spend the rest of my life with. The more gay guys there are, the better for me. I only wish there weren’t as many gay women for the same reason.

I guess I can paraphrase an answer I came up with concerning racism: It’s not my fault I was born the wrong color. I wasn’t given a choice. I can change that to: It’s not my fault I was born the wrong sex. I wasn’t given a choice.

#21:

First, let me point out that I have acknowledged your agreement with – and/or your clear understanding of – such gay-rights-related concepts as the immutable nature of sexual orientation i.e., nobody CHOOSES to be gay or straight. It isn’t difficult to notice that you are not of the same stripe as those here that would argue the point if I commented that the sun rises in the East and sets in the West. I will thank you AGAIN for your obviously thoughtful consideration of the issues we discuss.

And you knew that a “however” was coming, and here it is:
I believe that everyone – including myself – possesses room to improve – has opportunities to learn – and that such enlightenment can come from practically any quarter. I perhaps wrongly believe that my particular perspective as a gay man gives me a point of view that most straight people cannot directly access, and so I ATTEMPT to inform them. I ATTEMPT to illuminate, to teach, to clarify some of the misconceptions that a surprisingly large number of straights have about human sexuality, reproductive/genetic science, the Law with regard to social deviance, etc. I recognize that at times I am argumentative and sometimes intentionally insulting. These tactics are employed with specific goals in mind – usually to encourage a more challenging response from someone who is failing to keep up his or her side of the discussion. (I enjoy the exchange.) After your brief #17 “LOL,” in my opinion, you needed some scolding. Sorry if I hit too deep a nerve…

Your paragraph #3 monologue on the need for different terms for the kid’s sake I need to rebut. It isn’t kids that are having difficulty with this, it is older adults who are set in their preconceptions. Kids adapt almost instantaneously to this sort of thing, precisely because they haven’t been around long enough to have developed preconceptions. In the households where parents are NOT opposite-sex, the arrangement seems perfectly normal to the kids, as does the fact that not all households have the same arrangement. If you study the contents of a dictionary for only a few minutes, you will find MANY words for which there are multiple meanings – far more than words that have only one meaning. Are you racked with confusion every time you hear one of those words used in a sentence? Of course not. You differentiate the context of the word’s usage and conclude the correct meaning, much in the same manner as kids divine the correct aspect of married couples they encounter. It is only for old dudes like Redteam whose preconceptions conflict with the changing meaning of “marriage” that confusion occurs, and such people generally can’t admit that their confusion is a result of their having lost the capacity to learn new tricks like the proverbial old dog.

“I would think that if I were married to the same sex person, I would want people to know so there wouldn’t be any confusion.”

I think that you are needlessly preoccupied with this question of a rather small amount of confusion. (In the vast number of encounters, either the situation would be obvious, or else there would be insufficient evidence for the question to even arise.) Confusion is something that exists throughout our lives. We rarely encounter situations where we are entirely in possession of ALL of the pertinent facts. Life doesn’t spoon-feed us supporting details like we are often given in movies, so that we can always arrive at the same conclusion that the director wanted us to reach precisely as the movie draws to an end. We can’t read each other’s minds, and yet we survive. Do you always know if the person you are talking to is really being honest with you? No. But that doesn’t stop most of us from talking, now does it? And so I keep talking, too, for the reasons given above. Hope you find it both informative and entertaining. 🙂

@George Wells: #23

I recognize that at times I am argumentative and sometimes intentionally insulting. These tactics are employed with specific goals in mind – usually to encourage a more challenging response from someone who is failing to keep up his or her side of the discussion.

What you are indirectly saying is that even if a person doesn’t want to continue talking on a subject that you want to, you will try to keep it going as long as you can if the person doesn’t agree 100% with you. I’m mostly on your side, but that doesn’t seem to be enough for you, and I am not going to change my mind on the things we disagree with.

After your brief #17 “LOL,” in my opinion, you needed some scolding. Sorry if I hit too deep a nerve…

I was only trying to add a little humor to the conversation. It’s like the guy who said he had made only one mistake in his life, but he later found out that was a mistake.

It is only for old dudes like Redteam whose preconceptions conflict with the changing meaning of “marriage” that confusion occurs, and such people generally can’t admit that their confusion is a result of their having lost the capacity to learn new tricks like the proverbial old dog.

I suggest that you be careful of the terms you use in reference to people. I’m probably one of the oldest dudes posting here, but I am still capable of having my mind changed, and I still am learning a few new tricks.

We rarely encounter situations where we are entirely in possession of ALL of the pertinent facts.

This is why it has taken me many years to decide certain things. For example, the issue of whether obama is a legal citizen came up while he was running for his party’s nomination to run for president. Even hillary clinton brought up the subject while she was running. I was neutral on the issue, until obama released his document that anybody who looks at it, and has an open mind, can see it is fake.

We can’t read each other’s minds, and yet we survive. Do you always know if the person you are talking to is really being honest with you? No. But that doesn’t stop most of us from talking, now does it? And so I keep talking, too, for the reasons given above. Hope you find it both informative and entertaining.

What if the other person doesn’t want to talk about it any more?

#24:
“What if the other person doesn’t want to talk about it any more?”

I’ll take a wild stab in the dark and offer that such a person would simply stop responding.

My #23 answered many of the questions YOU posed in your #21, and you ignored those answers, choosing instead to pick at my reference to Redteam’s ossified brain. Yes, I DID notice that you stopped responding to my good-faith answers to your questions, but it wasn’t clear that you were simply tired of the discussion as opposed to being out of ideas to contribute or convinced that further discussion was pointless.

As for my age-related comments, I’m a senior citizen too, and as such I claim the right to comment on characteristics common to my class when I am in sufficient possession of my faculties to recognize them in others. If the shoe fits, wear it.

By the way, beating a dead horse is a good indication that something is amiss upstairs. Obama’s birth certificate is a dead horse. Surely you have something better to talk about.

I’ll tell you what I’m sad about. I’m sad that here in 2015, a hundred and fifty years AFTER the Civil War, we are still fighting over race. Fifty years AFTER the Civil Rights Act of 1964, Blacks and Whites are STILL at each others’ throats. Our baser instincts are so much stronger than any lofty principles of equality guaranteed in our precious Constitution. With this truth fresh in my mind, I sadly contemplate the fact that the struggle over gay rights will be no different. Marriage equality will become the “Law of the land,” but it won’t end the hate, the fear, the disgust. We are ALL guilty of having squandered OUR only opportunity to make this World a much better place for ALL of Gods children, and I have little faith that the next generation will fare any better.