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Political accommodation on homosexual "marriage"?

What's Wrong With the World has a warm relationship going back for some years with Professor and blogger Hunter Baker. I always enjoy reading his musings at the back of the journal The City and have no desire to be hard on him.

I was, however, somewhat surprised to read in the most recent issue the following, from Baker's "Thoughts on the Age."

Given the rapid change in culture, Christians will have to sort out where they are on gay marriage....

Option One: Gay marriage is wrong both theologically and politically....Without male-female complementarity, politics would not even exist. No community without that complementarity would even have a future. Male-female marriage and childbearing are at the heart of politics.

Option Two:P Gay marriage is clearly wrong theologically. There is nowhere for the church to go on the issue. However, the aspirations of politics can be different than the aspirations of faith. One possibility would be to say that adults are free persons who have to make their own moral choices and those shouldn't be regulated when they don't directly interfere with the lives of others.

[Option three is that gay "marriage" can also be embraced theologically by Christians.]

[Snip]

I would suggest that faithful Christians can find themselves embracing either option one or option two, but that option three is not available to anyone with any reasonable concern for orthodoxy. pp. 88-89

And later, speaking of an uncomfortable conversation with a pushy Episcopalian minister who was aggressively promoting gay "marriage,"

I could have worked through one of my hobbyhorses, which is that while there is room to talk about gay marriage in the context of politics (a libertarian turn of sorts), there is nowhere to go on the issue theologically. (p. 94)

I want to press the forward position, here--that is, Baker's Option One, and to argue that, if one thinks there is "nowhere to go" theologically in terms of endorsing homosexual "marriage," then one cannot consistently consider endorsing it as a civil and political matter.

Nothing I am going to say here is particularly original. In fact, the very unoriginality of the response to what Baker is mulling is the reason for my surprise that he should even be mulling it. Be that as it may, here goes:

Presumably, if one says that Christians cannot endorse gay "marriage" theologically, this means that one realizes that Christians cannot endorse the rightness and normalcy of homosexual acts or the real, metaphysical equivalence between homosexual relationships and male-female marriage.

Given this point, it follows that one cannot endorse homosexual "marriage" politically either. As I'm sure Baker realizes quite well, the state cannot be neutral on all metaphysical issues. Take personhood, for example. The state's refusal to protect unborn children from abortion is related to the state's refusal to treat unborn children as persons. Conversely, the fact that the state will punish someone who murders me is a reflection of the fact that the state considers me a person and protectable by law. Similarly, if some state were to declare dogs to be persons under the law with the full rights of the 14th amendment, this would make a substantial legal difference; the fact that it does not consider dogs to be persons for the purpose of jurisprudence and law also makes a substantial legal difference. State neutrality on all metaphysical matters is a complete myth.

It is therefore no surprise that the state's recognition of homosexual "marriages" does not amount to a neutral position on a metaphysical issue--namely, whether male-male and female-female sexual relationships are metaphysically and morally equivalent (at least) to male-female marriage. On the contrary, for the state formally to recognize such "marriages" is for the state to take a substantive position on that question--namely, to answer "yes" to that question.

This should make it evident that, if you think it importantly false to say that homosexual relationships are equivalent to marriage and that homosexual acts are, or even can be, morally normal and good, you should oppose the state's endorsement of this importantly false metaphysical position.

This point becomes particularly evident when we consider the implications of policy concerning children and child custody. In the case of a homosexual "marriage" or even a marriage simulacrum called a "civil union," family law judges in the case of a divorce or custody dispute are required to treat the new union as a true marriage. Thus any child born to one of a lesbian couple, for example, during the time of their union is deemed legally to have both women as mothers with custody rights in the event that the union is broken up. This should be no small consideration for anyone who sees the essentially disordered nature of homosexual relationships. Children, given homosexual "marriage," must be kept in contact with, perhaps even given in partial or full custody to, a sexually active homosexual partner who is completely unrelated to the children even if the other partner gets out of the lifestyle and leaves the relationship. All parts of society--the schools, the courts, the social workers, the lawyers, the employers--must treat two men and a baby they brokered from a surrogate mother in Thailand using purchased eggs as a true family and the child as equally the child of both of the "fathers." How can this not be overwhelmingly problematic as policy for anyone who understands that homosexual relationships are wrong and abnormal?

The argument that Baker sketches briefly for an alternative position (his option two) includes several important errors. The brief argument hinges on the puzzling notion that gay "marriage" is a matter of simply allowing "adults" to "make their own moral choices" without regulation. This sounds like a libertarian slogan, but surely it is almost self-evidently false. To begin with, the state's formally recognizing and hence endorsing homosexual relationships as marriages is far more and other than the state's merely leaving homosexuals free to make their own moral choices. That phrase might with more accuracy be used to describe, for example, rescinding state laws against acts of sodomy, but it emphatically does not accurately describe the state's creation of a category of "marriage" that includes homosexual unions. Homosexual "marriage" involves giving the special status--with all that that entails in terms of pensions, tax status, intestacy, child custody, and so on and so forth--that legally accrues to marriage to homosexual unions. This is therefore a positive recognition of those unions, not merely a matter of leaving people "free without regulation" to "make their own moral choices."

Even if we leave out for a moment the issue of public accommodations laws--since some libertarians like to pretend that we can create a world in which we have homosexual "marriage" but no public accommodations laws--we can see this point in other areas. What about the freedom of an employer to insure the spouses of his normally married employees but not of his homosexually "married" employees? Is that not his moral decision, which should be free? But given homosexual "marriage" and the undeniable existing requirement in employment law that all "married" employees be treated alike, he will not be free. What about the freedom of morally traditional teachers in, say, government schools and colleges to refuse to refer to homosexual couples as married?

For that matter, what about the freedom of justices of the peace to refuse to conduct homosexual "marriages"? Oh, yes, I know, I know, the homosexual lobby will immediately begin howling about interracial marriage, discrimination, and all the rest. But my target here is someone who says there is "nowhere to go" theologically on this issue and hence can be taken to reject the analogy to interracial marriage. Given that civil marriage is a form of official endorsement, it follows that people who work as government officials and are forced, on pain of job loss, to enable and engage in such endorsement are being deprived of their right to make their own moral choices as adults. Again, if we say that their refusal to endorse is itself a form of "directly interfering with the lives of others," we have turned libertarianism on its head: You are now "interfering directly" with someone else's life if you refuse to engage in overt acts which positively endorse his lifestyle choices! The fact is that civil marriage is not a matter of private choices only, and cannot be in the nature of the case.

There is therefore no way to have a particular group granted the status of civil marriage without involving some sort of public statement, which is going to have to be made by somebody, if only by the representative of the government who has to sign the paper that enacts that particular civil marriage. And if that is contrary to his conscience, then you have just interfered with his right to make his own adult moral choice. We may decide in various cases, such as interracial marriage, that it is just fine to interfere in this way with the choices of racially prejudiced justices of the peace, because anyone who thinks that way is misguided and wrong, but let's not pretend that this is about the government's getting out of things and just leaving more and more people free to make their own private choices.

Moreover, as any libertarian who has been breathing in and breathing out and reading the news for the last ten years should know now, if he didn't before, the homosexual agenda is the biggest opponent of individual freedom from government interference to come down the pike in decades. The enactment of homosexual "marriages" and even civil unions, or for that matter even homosexual non-discrimination laws as a preface to homosexual "marriage," has resulted in a dramatic crackdown on the freedom of adults to "make their own moral choices free of regulation when they don't directly interfere with the lives of others." That is, unless we take it that bakers who don't want to bake wedding cakes for homosexuals are "directly interfering with the lives of others" and deserve to be forced to undergo reeducation, which hardly sounds like a libertarian position! And the same for photographers, inn owners, and so on and so forth. The idea that homosexual "marriage" is a separate issue from the blatant persecution of moral traditionalists in every avenue of life who refuse to get on the homosexual "marriage" bandwagon is a fantasy, a form of willful ignorance. Of course homosexual "marriage" isn't about freedom, and it never has been. Hence, one finds again and again that the homosexual "marriage" activists tell the rest of us, in essence, "We won. Get with the program."

The libertarian argument for homosexual "marriage" as a matter of individual liberty never had much to commend it. In 2014, as opposed to, say, 2005, it looks more ridiculous than ever. This one should be hung out to dry. Anyone who endorses homosexual "marriage" should just admit outright that this isn't about individual liberty but about radical societal transformation, devil take the hindmost. (I believe we have one commentator who often serves as a good illustration of precisely this point in his gleeful anticipation of the punishments to be meted out to those who refuse to sign on.)

Moreover, if one sees that male-female complementarity is a theological non-negotiable, one has no reason for being taken in for a moment by the silly analogies to racial discrimination or by the pretense that the policy implications of homosexual "marriage" are morally praiseworthy. Male-female complementarity is indeed crucial to politics, but beyond that, government must either accept it or attack it. What government cannot be here is neutral. And homosexual "marriage" requires a stance of outright hostility on the part of the state to the foundational social units of the husband-wife pair and the nuclear family. Witness the government's attack on the notion, expressed by the citizens of California, that children need both a mother and a father!

This is, as I have said again and again, a zero-sum game. There is no comfortable middle ground where one can let the homosexual lobby have what they want politically and hope to be left alone to till one's own garden. This is an issue on which we cannot afford to be unclear. We must be prepared to hold the line, regardless of the political and personal consequences. We must do this, if for no other reason, for the sake of our own mental, moral, and metaphysical clarity.

Comments (54)

Lydia, thank you for the friendly engagement. My option two hinges on a particular view of things. We have long had a cultural consensus on marriage (and a variety of other matters). That consensus appears to be evaporating with speed. Without that consensus, we enter into a MacIntyrean situation in which we reason from different starting points and thus talk past each other. That is clearly what is happening with marriage. Someone like Ryan Anderson says that gay marriage is impossible. I think he is right. But the other side just looks at him and says, "Huh?"

My option two is almost certainly weak philosophically. I wouldn't be surprised if you can tear it apart. It is more of a compromise. Basically, you put your weight on the freedom side of the scale and hope that you can move the culture to a respect for freedom if they can't have respect for marriage. And then you hope to preserve the church's liberty (and the liberty of Christians) to speak prophetically. Maybe it is Augustinian in nature. Teach the city of man to love liberty if they can't do as the city of God does and love God.

I think there is definitely something in the point you make about what the state affirms. My question is whether the state can permit something without affirming it. And would it have been possible to achieve a permissiveness toward gay marriage by the state, without the state embracing it. In this connection, I think of Aquinas and his remark about permitting lesser evils rather than allow greater ones to break out.

You realize that I am not against you in this thing at all. I'm strategically oriented and am trying to figure out how to navigate this new playing field.

Lydia,

You say,

"This point becomes particularly evident when we consider the implications of policy concerning children and child custody. In the case of a homosexual "marriage" or even a marriage simulacrum called a "civil union," family law judges in the case of a divorce or custody dispute are required to treat the new union as a true marriage. Thus any child born to one of a lesbian couple, for example, during the time of their union is deemed legally to have both women as mothers with custody rights in the event that the union is broken up."

Quite right -- and as if on cue this week Public Discourse featured this heart-breaking essay from a mother who has to deal with her husband who suddenly decided he is gay:

http://www.thepublicdiscourse.com/2014/09/13692/

Hunter, let me address your points one at a time. You ask:

My question is whether the state can permit something without affirming it. And would it have been possible to achieve a permissiveness toward gay marriage by the state, without the state embracing it.

The first sentence here states a general question while the second sentence applies the question to marriage, specifically. As to the general question:

To some extent, the state partially affirms anything that it permits, because of the state's monopoly on the use of force. For example, consider the fact that you can put your dog on a leash and walk down the street without being assaulted with impunity by a wild-eyed member of PETA who wants to liberate your dog. Because there is not a grey area where other people can forcibly stop you from doing something even though the state permits it, the state will _protect_ your legal right to do anything you are legally permitted to do. Just to this extent, there is not a hard and fast distinction between the state's permitting something and endorsing something. The fact that it is permitted means that you must be allowed to do that thing and that nobody is allowed to stop you. (This point is particularly relevant to the issue of suicide.)

However, that is a somewhat weak and indirect form of affirmation by the state which becomes pressing only when the thing permitted, such as suicide or abortion, seems like the kind of thing that _someone_ should be allowed to stop. In general, it would be rather strained to say that the state affirms my eating broccoli on Tuesdays simply because it does not forbid my eating broccoli on Tuesdays.

In the case of civil marriage, things are different. Civil marriage is by its very nature a form of state recognition and hence endorsement of the union. You will notice that the law provides no such recognition for, say, friendship alone. Marriage is a special legal category, created by the state, for applying a large set of legal categories designed to streamline and specially recognize the connection between these two people. The relationship is thus treated as _special_ in the eyes of the state. There is therefore no possible way for homosexual marriage merely to be "allowed." Note that nobody is proposing that the police arrest two homosexual men who go into a church, with the permission of the clergyman, and stand before that clergyman and utter vows while their friends look on. This is not about _stopping_ people from doing something. This is rather about applying the special state category of _recognition_ which we call "civil marriage" to homosexual unions. Therefore, in the case of marriage it is emphatically and in every sense impossible for the state to permit homosexual "marriage" without "embracing"--i.e., endorsing and affirming--homosexual "marriage." That is because civil marriage is by definition a form of state endorsement of the union in question, not merely a permission by the state to engage in some action unmolested and unstopped.

In this connection, I think of Aquinas and his remark about permitting lesser evils rather than allow greater ones to break out.

Having in place the fact that this is not merely a matter of "permitting" something I will further say: It is extremely difficult, I would say impossible, to think of some greater evil that is being prevented by the creation of homosexual civil "marriage" as a category, much less by Christians' endorsing it. This legal event is a bad thing through and through, and we should have nothing to do with affirming it as okay or not so bad or something we can cooperate with.

It is more of a compromise. Basically, you put your weight on the freedom side of the scale and hope that you can move the culture to a respect for freedom if they can't have respect for marriage.

As I argued in the main post, putting your weight on the side of civil homosexual "marriage" is emphatically not putting your weight on the freedom side of the scale. It is somewhat astonishing to me that you would think differently or would use such phrases as "the freedom side of the scale" and the like to describe the pro-homosexual "marriage" position. On the contrary: Homosexual "marriage" is an attack on the freedoms of moral traditionalists, and we see this more with every day that passes. Putting your weight on the freedom side of the scale would be opposing this radical societal transformation, a transformation which will impinge upon the freedom of ordinary Americans in place after place.

There is even more that I could say in this regard than I said in the main post. (Though I must say that the case after case after case of totalitarian behavior by the left in this regard should simply speak for itself and lay to rest once and for all the question of whether this is an expansion of freedom.) But more: The recognition of the nuclear biological family constitutes a form of humility by the state. Married biological parents have a natural right to custody of their family, and the state isn't supposed to get involved pro-actively unless something goes wrong--credible allegations of child abuse, divorce requiring custody decisions, and so forth. That default position is the position of freedom. To the extent that we make legal-fiction families more and more the norm and equivalent to natural families, we undermine that default position. We can see the totalitarian side of this in Scotland right now, where a social worker has been assigned to every child from birth to age 18! We can see it in calls to "license" all parents. We see it in strange events that occur at hospitals where parents are unsure whether they will be allowed to take their baby home after birth because they initially attempted home birth or because they put up the slightest resistance to one particular vaccination out of many. Basically, the adoptive, surrogate, and foster care model is coming to dominate the child custody professions in such a way that the trend is towards fewer rights for a husband and wife who have a child and take that child home with them. It is undeniable that the gay "marriage" and gay "family" movements have contributed to this trend, because they are supposed to be _families just like the rest of us_, but their "families" are always created in part by the courts, social workers, contracts for surrogacy arrangements, and so forth. The more this concept and model spreads, the more freedom, via the humility of the government in recognizing de facto natural, nuclear families, is undermined. I believe Jennifer Roback Morse has written on this very topic.

On this:

Maybe it is Augustinian in nature. Teach the city of man to love liberty if they can't do as the city of God does and love God.

Note that seeking religious exemptions from bad laws is never the same thing as endorsing those bad laws. So, suppose that a given state recognizes homosexual "marriage." If churches press for religious exemptions from allowing such "marriages" to be performed in their buildings, this is not the same thing as endorsing the existence of homosexual "marriage." A church member or pastor who lobbies for a religious exemption need _not_ be saying, "Homosexual 'marriage' is just fine, but please just let us get out of being involved in it." He can be completely and adamantly and unequivocally opposed to the existence of such a category and for that very reason trying to get his church out of being involved in it.

So nothing I am saying here is telling Christians or churches that they shouldn't attempt to get religious exemptions from bad laws concerning the homosexual agenda or homosexual "marriage." Indeed, the more widely we can get such exemptions in place, the fewer people will be forced to say "shibboleth." In truth, I have little hope that we will get many such exemptions, and there will always be individuals and businesses that are run and owned by Christians but are not sufficiently "intrinsically" religious for such exemptions to be applied to them, but of course we should try. In no way, however, does this mean that being _for_ homosexual "marriage" is "teaching the city of man to love liberty." Very much to the contrary: Homosexual "marriage" is totalitarian in impulse and effect, and any attempt to squirrel out of _some_ of those effects in the name of religious liberty is merely a _response_ to the prima facie unfree nature of the agenda.

Lydia, what do you make of Michael Sandel's argument that the state should simply avoid putting its imprimatur on any type of marriage? In other words, would that constitute something like an acceptable neutrality which recognizes the lack of consensus and avoids coercing anyone's conscience?

That is because civil marriage is by definition a form of state endorsement of the union in question, not merely a permission by the state to engage in some action unmolested and unstopped.

I might even word it more strongly - not only state endorsement, it is state enforcement of the recognition by all.

Hunter, that idea of literally abolishing civil marriage has of course been brought up (as, dare I say it, another libertarian fantasy) but is in itself quite literally impossible. We have addressed this before here at W4 and I will see if I can scrounge up the links. Our contributor Tony has had quite a bit to say about it in comments threads and I have as well.

If civil marriage did not exist, it would have to be invented. There is one simple reason for this, if no other: Children.

Someone has to decide who has custody of children and what contracts in this regard to enforce. The idea of just making everything a matter of contract and enforcing all contracts is itself impossible. Even as it is, the state decides to enforce certain contracts and not others, for various reasons. For example, I'm quite sure that if a woman agreed by contract to be dragged off and physically forced to have an abortion in the event that she became pregnant, no court would enforce this contract and decree that she must indeed be so coerced if she became pregnant. Similarly, suppose that a group of fifty people all signed a contract stating that they were all "joint parents" of any children born to any of the women in the group and that they must all be allowed to spend equal amounts of time with any such children, should they choose. (Those are going to be busy children.) The court would have to decide whether to enforce that contract, and in all probability would not do so. We can make up still more bizarre scenarios. But the fact remains that contracts must be recognized or not recognized and enforced or not enforced, and in so doing the state endorses that contract as enforceable. We see this now with surrogacy. If the laws of a state don't address surrogacy and a surrogate mother doesn't want to give up the child she has borne "for" a homosexual male couple, the courts have to decide who gets custody. In other words, they have to make it up as they go along. This involves endorsing certain arrangements and rejecting others. If, for example, male-female couples are recognized as having custody of the children they have borne, this is reinventing male-female marriage, at least in one of its most important aspects. If two lesbians are recognized as having prima facie custody over a child born to one of them--when? while they are living together? after they have lived together for six months?--this involves defining a form of de facto marriage for lesbian couples.

Notice too how this involves less freedom for the vast majority of couples, as their custody of their own children--a powerful state weapon--is made shaky and uncertain by the abolition of civil marriage and what *must* then follow, the institution of a make-it-up-as-you-go set of court-recognized custody arrangements.

Children are not the only reason that the state has to decide whether or not to recognize some relationships over others. Many other issues arise, such as intestacy, inheritance of pensions, tax status, guardianship in the event of incapacity, and on and on and on. Some bonds will be preferentially treated in these decisions, because it is literally impossible to treat my friendly relationship with the guy at the gas pump equally to all the other relationships in my life in the event that I die, am incapacitated, etc. But the minute the state starts saying, "Hmmm, you lived with this person for x number of years, you had property in common, you built a life together, therefore we are going to give him the right to make your healthcare decisions now that you are paralyzed" (or give him your property after your death, or whatever), the state is in essence reinventing marriage.

The abolition of civil marriage is not possible. Talking about such an impossibility only darkens counsel.

Lydia and Hunter,

Here is one older classic post on the subject of 'ending marriage' (apparently the subject used to come up in the context of the Ron Paul for President campaigns):

http://www.whatswrongwiththeworld.net/2012/01/why_the_government_should_be_i.html

Hope this helps.

I often find it sadly interesting that some of a libertarian persuasion apparently think their freedom is going to be better guarded by the case-by-case diktats of a powerful family law judge trying to decide how and whether to honor made-up child custody contracts among unmarried people than by the institution of civil marriage. But in all honesty, I'm afraid that those who propose this really haven't thought through the implications or the extreme power that family law judges already have and how little they should want to be involved with them.

As to whether the abolition of civil marriage (and presumably also of civil unions) would avoid coercing conscience: Since decisions (thousands of them, in fact) would have to be made in individual cases by family courts and contract courts and would be enforced, these decisions could very easily end up coercing conscience. For example, if a family law court decides that a former lesbian who has left the lifestyle has to send her biological daughter to spend weekends alone with her former sexual partner, the conscience of that woman is going to be coerced to cooperate in the custody agreement and relinquish the child to the former lesbian lover. In fact, the court might even rule _full_ custody to the lesbian lover from the biological mother. This example, by the way, is a real case arising from a civil union in Vermont. The woman and her child ran away to Nicaragua. But if civil marriage were abolished, it could just as easily arise from a make-it-up-as-you-go-along family law judge when confronted with a challenge alleging custody rights on the part of the former lesbian partner. Or it could arise from a contract where the former lesbian previously signed something agreeing to joint custody and later wanted to get out of it because she changed her mind about the nature of homosexuality.

So there will _always_ be the very real possibility of coercing conscience in these areas, because government literally cannot get out of this business as long as we live in something other than a state of anarchy in which you just get out guns and fight it out for the kids.

Of course, some who talk about the government's recognizing no marriages actually mean that government _should_ have a category of civil unions instead. I have never understood for a moment why anyone thinks that this is a position of government neutrality or "getting out of the marriage business," since it obviously doesn't involve government neutrality on which relationships should be given special recognition and endorsement.

Lydia, does your argument hinge on the existence of public accommodations laws? In other words, if there were no such thing as public accommodations laws, where would this dispute stand?

Hunter, I am not as familiar with public accommodation laws as I would like. Do those laws very from state to state? Do they somehow integrate very closely with family law and all the other ways we formulate social structures dependent on marital status?

From where I sit, Lydia has hit the nail on the head. It is impossible to NOT have laws about the ways we form various unions in society. The marital union is one of those, but there are others, such as partnerships, etc. Without a set of (implicit or derivative) social structures that rule what we do and don't expect for married couples, we would simply have to invent and create explicit and

direct rules that cover the same territory, on either a law-by-law basis or on a case-by-case basis in courts. We already have laws that forbid contracts to sell a person into slavery - do you want to FORCE a situation where the state needs to pass a NEW law saying that you cannot be born into de-facto slavery through surrogacy? That's just around the corner if you abolish marital laws about custody. Do you want to force a new set of laws that re-define the sets of rights and obligations granted to spouses (joint liability, etc) under financial contracts when the law no longer recognizes the term "spouse"? That's what we will have to do. And all those individual acts of re-designing social norms for X, Y, and Z cases that take note of "when person A and person B have a long-standing live-in arrangement" will, de-facto, constitute a new set of marital rules anyway. You cannot actually get society to stop making rules for when people are married, so it is ridiculous to hypothesize the pretense of society getting out of the marriage business.

I don't see what the above discussion has to do with public accommodations.

Hunter, no, my most recent arguments concerning the impossibility of abolishing marriage do not hinge on the existence of public accommodations laws. I think that's pretty clear from those recent comments. I have _other_ arguments concerning public accommodations laws, and quite frankly, I think it's completely silly to discuss the existence of a world in which we don't have such laws and don't have any employment laws but do have something else (like homosexual "marriage"), since the inclusion of homosexuals as a protected class under non-discrimination laws was *explicitly* and *clearly* a legal _prelude_ to homosexual "marriage" and is not therefore something that is _ever_ going to be backed out on or separated from it.

However, as for my most recent comments about the literal impossibility of the state's "getting out of the marriage business" by literally abolishing civil marriage, in response to your suggestion to that effect, no, those arguments do not hinge on the existence of any such laws.

By the way, there's another whole angle to this: The existence of the common law. As far as I know, civil marriage existed in common law before it existed in statutory law. Common law is based on precedents going back in the Anglo-American tradition for hundreds of years. It is quite unclear what it could even mean to abolish marriage as a category in common law. Would judges be told that they _must_ come to different conclusions from the common law regarding what constitutes a marriage? That would certainly not be neutrality! Would family, probate, etc., law judges be told that they could not rely on _precedents_ concerning marriage from the common law? How would that work? Could they use the same _arguments_ as were used in those precedents and just state them in their own voice? Or what? (And believe me, English common law did not recognize homosexual "marriage.") I really have to think that there is just not much clarity concerning what the very meaning would be of abolishing marriage or getting the government out of the business of marriage.

By the way, I haven't even brought up housing discrimination laws heretofore. That's another whole coercive ball of wax connected to the same agenda. And no, again, lest there be confusion: My arguments regarding the literal impossibility of the government's getting out of the marriage business stand on their own even if there are no housing non-discrimination laws, employment non-discrimination laws, or public accommodations non-discrimination laws. But I do have to wonder if anyone who wants to discuss these issues (and the alleged "freedom" of homosexual "marriage") without taking those laws into account wants to discuss anything remotely like the real world, in which homosexual "marriage" is and always has been intended to be set down _amongst_ such laws which acted as a prelude to it and a context for it, or some possible world that is totally removed from reality. We need to come out of the cave here if we want to discuss policy, and _especially_ if we're trying to be strategic!

Also, my arguments that homosexual "marriage" is state endorsement of such relationships and coerces the consciences of any dissenters forced to enact that endorsement (e.g., those in relevant government positions) does not depend upon the separate existence of non-discrimination laws.

Lydia, it seemed to me that much of your argument does hinge on the existence of public accommodations laws and a particular view of how they must be applied. If my argument leans toward the more libertarian view, the impact of it would be to push toward the government being consistent and not coercing conscience/violating religious liberty. Aren't you saying that there's not point in making that argument because of public accommodations laws?

Hunter, I'm making *more than one argument*. I'm saying *more than one thing*. There are *so many* arguments against endorsing homosexual "marriage" or the abolition of civil marriage, and I have made a *bunch* of them. Surely this should not be hard to sort out. For example, my argument that homosexual "marriage" is state endorsement of the relationships and hence will coerce justices of the peace and other necessarily involved public officials depends on *no* non-discrimination laws. My argument that the government *must*make decisions about child custody, intestacy, guardianship and medical decision-making in the case of incapacity, pension inheritance, and other things in family and probate law and hence that it is *impossible* for the government to "get out of the marriage business" does not depend on the existence of non-discrimination laws of any kind. My argument that such governmental decisions *do* result in coercion of conscience when adults are ordered to turn over children to those they regard as unfit for moral reasons does not depend on non-discrimination laws. Surely it ought to be possible simply to read the arguments and sort this out.

Furthermore, some (other) arguments depend on one type of non-discrimination laws rather than another type. For example, my argument that an employer will be forced to insure the "partners" of all of his employees equally and that calling the homosexual partner a "spouse" will coerce the morally traditional employer depends on the existence of the employment non-discrimination portion of non-discrimination law but not the public accommodation portion. However, I should add that I do not know of the existence of _any_ non-discrimination law at the local, state, or federal level that does not have both clauses. I bet you don't either, though they are conceptually distinguishable.

So this is all pretty easy to sort out. I don't think what I'm writing is unclear.

I also do not understand how you can consistently say that you are trying to navigate the "new situation" and "be strategic" while insisting on talking about an entirely non-real situation in which (apparently) civil marriage is abolished and all non-discrimination law is also abolished. Or are you meaning to talk about a different unreal situation in which you endorse homosexual "marriage" while abolishing all non-discrimination laws? In both cases, see the arguments I have made relevant to coercion for that scenario. But aside from those arguments, why are we talking about homosexual "marriage" or the abolition of marriage in an entirely unreal and unachievable political context? *Nobody* is going to agree to abolishing all non-discrimination law (housing, accommodations, and employment). So that is hardly an achievable goal. For that matter, racist employers' consciences are coerced when they are forced to hire minorities, and good luck convincing the public in general, or Christians, that we should advocate _that_ sort of change in law (allowing racial discrimination) for reasons of greater freedom. It ain't gonna happen. Certainly we moral traditionalists _should_ advocate removing "sexual orientation" from such laws, and I do in fact advocate that. But remember that even in the unlikely event that such a rollback were achieved, if homosexuals are deemed "married" in law, other aspects of non-discrimination law--such as the very general idea of insuring all "married" employees and their families "fairly" and treating legally like employees in a like fashion--would probably kick in anyway! It is quite plausible that a homosexual "married" employee would be deemed to have a cause of action if his employer refused to insure his "spouse" under a spousal insurance clause, unless the employer were deemed a religious organization and had a special exemption from non-discrimination law generally in employment.

Please understand that this last paragraph is _separate_ from the earlier paragraphs and is meant as a more general address to your desire to "be strategic" while, for some reason, wanting to talk about an entirely unrealistic situation in which non-discrimination laws do not exist.

Even if we are contemplating the long-range horizon of "strategy", there is good reason to consider keeping to a full-fledged opposition to gay "marriage" even granting that it looks like such an effort will lose. The social upheavals that must of necessity come with the destruction of the family, coming on the heels of financial upheavals that stem from the usury crisis and other deformities of the market (and made worse by destruction of the family), together with political difficulties due to the splintering of the nation into sub-groups who can no longer see themselves working with their political opposition for any common notion of "the good", are all likely to lead to rather drastic changes in the social fabric. Whatever comes OUT of that period of unrest will naturally be a function at least partly of the factors at play DURING that period. As Christians, we need to be strong witnesses to the truth of the metaphysical reality of the marital and familial relationships so that these truths help shape society during such formative times. As happened, to an extent, during the lapse of the Roman order. Giving up on making the case that society should reflect the Christian understanding of marriage (which is also the natural law understanding of marriage, with an added layer thereon), is not good strategy for the long haul. Sure, we will lose battles along the way, but Christians are OK with that too. We won't lose the war as long as we put on the armor of God.

Giving up on making the case that society should reflect the Christian understanding of marriage (which is also the natural law understanding of marriage, with an added layer thereon), is not good strategy for the long haul.

Extremely well-put, Tony. I have always been baffled by any implication that it is poor strategy to go on telling the truth simply because the world believes a lie and the lie is winning. Apply this to, say, Nazism: "We're just negotiating the terms of our surrender, so let's stop opposing absolutely the incarcerating of Jews in concentrating camps. Let's stop saying that Jews are human beings just as much as the rest of us. Let's concentrate instead simply on making the camps somewhat more humane." On abortion, pro-lifers have kept the issue alive by _not_ acquiescing in the claim that the unborn should _not_ be protected. We have kept the issue alive by arguing that the unborn _should_ be protected in law and that they are full persons with a right to life.

If society believes that two men are "married," how does it help *anything* for Christians and other moral traditionalists to agree that they can be married, even if only for "political" purposes? How is that strategic? It makes no sense to me at all.

I see no reason whatsoever to endorse a "strategy" whose premises can only hold in a society that we do not live in, i.e., one without public accommodation laws, the Civil Right Act, affirmative action, or whatever. Libertarian-leaning types constantly ask us to endorse or to tolerate things that would be just peachy if a thousand other conditions that the libertarians don't like were somehow done away with. For example, mass immigration is supposed to be fine, and we're all supposed to accept it as perfectly sane, on the hopes that we can win total victory over multiculturalism, the welfare state, etc. It's just nuts.

Please, don't talk to me about what a great idea it would be to acquiesce to "homosexual marriages" if we could, while we're at it, undo the entire political landscape that has made it a live and pressing issue to begin with.

Hear, hear.

And to make it worse, in this case, neither the attempted-but-impossible abolition of marriage nor the instatement of homosexual "marriage" would be a good thing or a neutral and non-coercive thing even in that imaginary and unreal legal landscape. So it's a lose-lose proposition from every possible angle.

We're already facing a very ugly libertarian future when the ipad kids get into office- why play along?

I'm staying where I've always been.

This language about "telling the truth" misunderstands the point of option two. It is nearly the entire point of option two to create the space in which the church can continue to tell the truth in an unvarnished way. Neither the church nor individual believers should take option two to suggest that they should cease saying "gay marriage is wrong" FULL STOP.

It simply seems to me that if you get into the situation I have described in which the relevant populace can't even communicate on certain points any more, then you have some options. One option is that you are content to just have it settled by political power and whoever wins gets to define the good society and bring everyone to heel. That's where we are going right now. And I don't want to be brought to heel. Another option is that you try to reduce the authority/scope of the government and allow better or worse ways of life to prevail in a more voluntary way. I think it might be worthwhile to explore that option. That's all I'm saying. Please DO NOT put me in the "giving up" or "compromising on truth" categories. I'm not there.

But your option two _does not_ involve saying "gay marriage is wrong, full stop." Not at all. As you have explained it, your option two involves saying that gay "marriage" is a matter of lessening government power and letting people make their own moral choices free of coercion. Also, your option two apparently changes the "aspirations" of politics to something different from the aspirations of faith, which I do not know how to interpret except by saying that Christians would not _aspire_ politically to have marriage only between one man and one woman.What else could it mean?

Any Christian who _says_ what you are saying concerning moral choices and freedom is tacitly endorsing _something_ about gay "marriage,"--namely, that it is an expansion of freedom, and that if they have more freedom, maybe we can have more freedom, too, and that having homosexual "marriage" is reducing the scope of government control.

Now, this is misguided, as I have argued at length.

Remember too my comment at 11:05 a.m. on September 24:

http://whatswrongwiththeworld.net/2014/09/political_accommodation_on_gay.html#comment-295344

We can do _everything_ possible to try to "create the space in which the church can continue to tell the truth in an unvarnished way" under Option one. Why not? Why would it be otherwise? How is trying to create that space in any way incompatible with option one? Of course we are going to seek as much space for truth-telling as possible under whatever regime is foisted upon us. Whether it will work or not remains to be seen, and I am not sanguine, because quite frankly, our opponents don't give a damn what we think. They're going to do whatever they can by political power, and our "exploring options" is entirely unimportant and irrelevant to them. But of course we can and should try to make our freedom and liberty arguments for our freedom to tell the truth in whatever situation eventually arises.

If we are trying to help young people, though, we do them no favors by pitting liberty against natural marriage in their minds. We only encourage their confusions. And that is what it seems to me option 2 does.

I think it is incorrect to say that merely because I would tolerate reducing the sphere of government authority then I am not still saying something is wrong. Here is an example: I think it is unquestionably wrong to tell lies to people without some really compelling justification. However, it is not illegal in the vast majority of cases not to lie. Does this mean that in failing to conduct a campaign for making all lying illegal, I am therefore not maintaining my strong stance against lying?

Hunter,

Your last comment is true as a general principle.

Now let's see how it holds up in the specific case of marriage:

Government endorsement of the pre-existing reality of marriage = government tries to outlaw lying.

Any similarities?

Hunter, here's the thing: I've argued again and again in this post and thread that neither the instatement of homosexual "marriage" nor the abolition of civil marriage is in fact reducing the scope of government authority. I have argued that point from multiple different perspectives, addressing carefully both homosexual "marriage" while leaving civil marriage in place and abolishing the statutory category of civil marriage. You have not refuted those arguments. For the most part, you have not addressed them.

You say that you "would tolerate reducing the sphere of government authority." Let us try to be precise as to what that means. First of all, nobody is proposing armed revolution. Certainly not I. To that extent we have, perforce, to "tolerate" whatever happens, and that is consonant with your option one. What else could this mean? Does it mean, as worded in your original option two, some sort of proposed qualified accommodation with homosexual "marriage" in the political realm? That is not a reduction in the scope of government authority, for reasons I have given at length. Does it mean proposing that the institution of civil marriage be abolished in statutory law? There, too, I have argued that the sphere of government authority is not thereby reduced.

Your original statement of option 2 implied that homosexual "marriage" itself involves merely letting people go their own way and do their own thing. I rebutted that. You first replied by asking if it's possible for the state to allow something without endorsing it. I replied carefully and at length to show how this attempted distinction does not apply to marriage. You then shifted to proposing and asking about the abolition of civil marriage altogether. I have also replied to that at length.

Yet here, you once again imply, without rebutting the arguments I have made, that for the state to recognize only male-female marriage is, somehow, _more_ government coercion than for the state to do something different. In fact, you seem to analogize the state's recognition only of male-female marriage to the state's attempt to outlaw lying. This once again falls back on the libertarian trope, which I have refuted at some length, that the recognition of male-female marriage is _coercive_ and that getting rid of this recognition or giving it to homosexual couples as well is _uncoercive_ or a net _reduction_ in government power. This is, whether you realize it or not, some sort of attempted libertarian argument against heterosexual-only civil marriage. What else can it be understood as? And that is badly confused.

Okay, I will list the arguments in the original post as I see them and go through one by one. Understand that all of this is in the effort to defend a castle about which I am not very certain, which is the now infamous option two.

1. If you cannot endorse gay marriage theologically, then you cannot endorse it politically.

First, I would say that I do not even wave in the direction of endorsing gay marriage politically. I am arguing that perhaps one could be faithful as a Christian and still take the libertarian route with regard to gay marriage. If government did not bless unions, but merely recognized their existence in a pragmatic way, that would not constitute endorsement.

2. The example of personhood shows that you cannot be neutral.

I agree that we cannot be neutral about the matter of personhood. The reason we cannot be neutral on that point is that the stakes are incredibly high. You can't say live and let live if that means someone else will die. The stakes are not that high (life and death) in the matter of gay marriage. (At least I don't think so.) While there is life, there is hope. And the church will continue to preach a full gospel to all.

3. If you think gay marriage is importantly false, then you cannot be legally indifferent.

The legal indifference would be a result of putting a higher premium on limiting the government's sphere of authority. You might call it a tribute (in the sense of paying a tax or penalty) in support of freedom. In other words, a person might say, "I will not press for the government to regulate the definition of marriage because I do not want it to have such power in other areas." I don't like this argument, but I understand it and can see some value in it.

4. What about children and child custody?

In the case of children and child custody, you are correct that there will be non-biological mothers or fathers in the custody mix because they were part of the family (as defined by the participants) at the time of its formation or somewhere along the way. If those people obtain some rights in legal processes, I am not sure that would be an unjust result as it was likely the will of the people involved. Isn't this somewhat like the question of whether a gay partner can be at the bedside of a dying companion or whether they might inherit from their companion? While I disagree with the life decision, I'm not sure it is right to block some of those outcomes that arise from arrangements they chose.

5. There is no "allowing." There is only "formally recognizing" or giving a "special status."

I absolutely agree that marriage has had a special status and that it has been good for that to be the case. I don't know that the formal recognition of other forms has to equal some kind of approval. For example, does the state approve of common law marriages by recognizing them? No. It does so as a type of convenience for the legal system. I admit that there is a minefield here.

6. What about public accommodations laws?

The 1964 Civil Rights Act was basically chemotherapy to counteract a cancer. It used law to force owners of private businesses to provide equal service to all comers based on race. Generally, we would think that the owner of a business could choose his/her customers, but the evil of segregation was so pervasive the remedy was justified. I would suggest that remedy is not called for with regard to sexual orientation.

7. Can justices of the peace be forced to perform gay marriages?

Not if we got the government out of the business of performing/legitimizing marriages, which would be part of a more libertarian approach.

8. The gay movement is an enemy of freedom.

I don't disagree here. When I was lobbying for religious freedom nearly 20 years ago, the Human Rights Campaign opposed us. Part of a libertarian turn would involve trying to make the case for religious freedom and other freedoms of conscience to be protected despite that opposition.

9. Gay marriage requires hostility to the nuclear family.

I don't think that is a necessary conclusion. I actually believe that gay marriage will fizzle out shortly after the political victory is won. In my mind, the movement is about proving a point and efforts to duplicate the nuclear family with a gay alternative en masse will not occur in the kinds of numbers many currently expect.

According to St. Thomas, considered under one aspect the goal of law is virtuous citizens (for the common good is found in a state where all the citizens are virtuous). However, law should not forbid under pain of legal penalty ALL acts of the vices, because law should be limited to those things that all men can do. Not all men can avoid all acts of concupiscence, for example. Hence it would be bad for law to forbid every act of lust, including interior disordered acts of desire. The state may tolerate those (morally) disordered acts whose suppression would end up causing greater evils for the state to actively proscribe.

Not quite the same but something related, natural civil "rights" are areas for personal discernment of action in which the person himself ought to govern his own actions by his own prudential judgment, and not be constrained by the legal authority of someone else in charge of the common good. I have the *right* to find myself a spouse and should not be told by law to marry X person. While I would be abusing that civil right to choose someone whom I am personally convinced will be bad for me to marry (because they will harm my spiritual growth), and who I am personally convinced God doesn't want me to marry (there is no MORAL right to do something I know is wrong), that wrongness is my own and it should not be proscribed by law. Law extends to matters of the COMMON good, not to all good, so law ought to proscribe evils of one sort and leave evils of another sort alone.

But it would be bad as a principle of social order to mistake the second, the proper sphere of individual autonomy as a natural right with regard to civil law, for the notion that there should be no laws proscribing certain kinds of acts of marrying. For there is a vast difference between the state telling me positively "you shall marry X" and the state saying "marriage in this state consists only of Z sorts of unions". While it is true that not all will successfully refrain from acts of lust, every person can refrain from disordered acts of getting married. That's not the sort of disordered behavior that the state needs to tolerate. Nobody can say "I couldn't help myself, I just HAD to marry Sam". There is no argument for tolerating THAT kind of behavior merely because some people are weak and/or given to vice. Gays for thousands of years managed to avoid getting married to someone of the same sex, they cannot suggest that their desires are of a different class than those of gays in prior generations.

Just as the state can and should deny civil recognition of acts of a guy forcing a girl to marry him (although that was pretty common 4000 years ago) as "not being marriage", and acts of 3 or 4 or 20 people getting married as "not being marriage" so also the state should deny civil recognition of acts of male marrying male as "not being marriage" without this in the least TOUCHING on matters of natural rights as regards civil law.

For by civil law the state can choose to tolerate (not interfere with) individuals' actions that are morally disordered (when doing so causes less evil in the body politic than prohibiting them. And by civil law the state can choose to NOT ENACT all the good that it might have the authority to enact. But by no means can the state by positive law enact evils that it might have not enacted. The toleration of evil acts of OTHER parties cannot extend to matters of its own agency: a person does not "tolerate" his own evil acts. The state, for example, might tolerate (by not enacting any law against or punishment of) 2 gays getting a church wedding, because those acts are not the state's own acts. The state cannot call it "toleration" if the state then calls that act "marriage" and grants to the 2 people the privileges the state has established for married people. And again, the state could theoretically tolerate without interference a married couple splitting up and deciding on their own to split custody between them, A getting 2 kids, and B getting the other 3 kids. But the state cannot call it toleration to officially take one of the kids and officially put that kid instead with a 3rd party and call it "parenthood for state purposes" as adoption. The state's OWN acts of recognition and granting privileges are never merely those of tolerating someone else's evil acts.

Nor can one claim that it is a matter of "personal freedom" when the freedom at issue is that of getting the state to grant privileges. That's not freedom from state interference in your own sphere of personal autonomy. The state's interference in matters that are your own choice to make well or ill are matters that come to fruition (or not) because you decide to act (or not). But whether the state grants you certain privileges is, by definition, not something under your own sphere of autonomy. It is a category mistake to assert that you have a civil right to be granted certain privileges from the state.

Marriage is at one and the same time an extra-legal reality (it can be real even when there is no state to approve it) and also a legal reality. That is, the state must of necessity learn to recognize and accredit certain kinds of real associative acts, everything from partnerships to corporations to churches to private clubs...to marriages. A state that pretended that the only thing under its sights consisted of individuals and property of individuals would be a gravely disordered state, for the communities that construct the whole that is the state and that need ordering are all the sub-entities - from families to national organizations - that make up man acting toward his good. The state MUST recognize associative acts, but nothing requires that the state give special recognition to every specific form of association men can creatively draw up. The state can recognize some as distinct kinds of entities without recognizing all: some states have "limited liability partnerships", other states do not. It is impossible for the state to have separate categories for ALL POSSIBLE forms of associative entities, they are infinite. So when the state by positive law provides for certain sorts of unions to be granted X, Y, or Z status, this is not by itself destructive of the individuals' rights to form other kinds of associations, it just means that these other kinds are not accorded special status under state law.

When the state recognizes ANY of these things as things that shall be accorded noted existence with certain features, attributes, and characteristics under the law, the state must perforce at least implicitly have a way of distinguishing them: corporations from non-corporations, clubs from non-clubs, and marriages from non-marriages. Even if the state chooses to leave the criteria up to some other party, such as "we recognize as marriage anything the Church says is a marriage". The state's doing this does not create the reality we call marriage, nor does the state's choosing a certain definition of "marriage" mean that the state is taking away from people their theoretically pre-existing rights to do OTHER things. Just as people could choose to form a group that has only a few of the features considered (n their state) necessary for the status "corporation", and the fact that the state doesn't call what they have a corporation doesn't deprive them of the right to form that group - they just can't treat it as if it were legally accorded the status of corporation.

As a legally accredited group, a couple have to comply with the things the state sets forth as required to satisfy its rules for "marriage" or they don't get to legally call whatever they have "mnarriage" for statutory purposes. They can still call it marriage if they want for non-legal purposes, or they can call it a corporation, or a partnership, or a space-ship. Nobody can have a CIVIL right to be accredited with a state-defined category of union who choose not to comply with the state-determined criteria. And nobody can claim that the under the natural law the state MUST recognize every form of union that people want to execute qualifies as a marriage. For people sometimes want certain unions precisely because they are not marriage. It would be silly to claim that desiring to have sex with someone meant one wanted to be married to them, if the couple explicitly wants to be be NOT married because they don't want all the concomitant features credited to marriage by the state.

Insofar as 2 people have a pre-civil right to unite without the state telling them yea or nay, the couple cannot have a NATURAL RIGHT to have the state accredit this union as "marriage" under civil law. To the extent that the state decides to categorize certain sorts of unions as "marriage" and distinguish those unions from other unions for civil law purposes, nobody could have a civil right to require that the state cease to distinguish marital unions from certain other unions.

Gays want us to grant that the state MUST of necessity accredit a special category for "marriage" because marriage is special even before the state names its criteria for it, but then for us to turn around and pretend that the state is free to designate ANY criteria it wants for that status because as under state law the category is a "creature of the state". Well, that makes no sense. Either marriage is special and the state must of necessity recognize it and accord it certain attributes, and those attributes flow from the reality that exists that is pre-legal and not subject to the state's discretion, or the status is wholly a creature of the state and then nobody has any natural rights AT ALL about the matter it is strictly subject to whatever the state decides accrues the most good for society, including carving out that it is restricted to opposite-sex couples, or that only people who have o-type blood can do it, or that only people born on Tuesdays, or whatever.

Hunter,

Okay, let me reply.

First of all, you seem in your replies to be going back and forth between homosexual "marriage" and the abolition of civil marriage altogether. These are not the same proposal, so this makes it difficult to address your position, because it makes it difficult to know what your position is. Your original statement was about homosexual "marriage," but you seem to have shifted to a different proposal while still sometimes using the _term_ "marriage."

"I will not press for the government to regulate the definition of marriage because I do not want it to have such power in other areas."

Having civil marriage at all is not having more government power or regulation than not having civil marriage at all. (Since here you seem to be advocating the abolition of civil marriage.) I've argued that above.

For example, does the state approve of common law marriages by recognizing them? No. It does so as a type of convenience for the legal system. I admit that there is a minefield here.
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If a court decision comes up in which some benefit is conferred--say, inheritance, for example--because of the recognition of common law marriage, then you are simply incorrect. That is a form of endorsement of _that_ relationship as more important than some _other_ relationship in the life of the deceased. That is not neutrality.

Part of a libertarian turn would involve trying to make the case for religious freedom and other freedoms of conscience to be protected despite that opposition.

I am _guessing_, but correct me if I am wrong, that this case would concern explicitly religious institutions rather than individuals. One of the reasons I am guessing this is because of your reply concerning child custody, which I will address shortly. For example: Suppose that the owner of a small business, rather than a Christian college, did not want to insure the homosexual "spouses" (say, declared "spouses" by contract) of his employees but did want to insure the heterosexual husbands or wives. What sort of freedom would be given to him?

Or how about this: Suppose that you are a teacher in a public school. Because it is a _public_ school and because homosexual unions or what-not are being created by publically enforced contracts, you are told that you must teach approvingly about homosexual "families" on pain of being fired and that you must, on pain of being fired, refer to "two daddies" in various applicable cases or refer to this or that person as the other person's "husband" or "wife" in homosexual unions. Is that not coercing conscience? How would it be possible to _avoid_ that coercion in the situation you envisage?

In the case of children and child custody, you are correct that there will be non-biological mothers or fathers in the custody mix because they were part of the family (as defined by the participants) at the time of its formation or somewhere along the way. If those people obtain some rights in legal processes, I am not sure that would be an unjust result as it was likely the will of the people involved. Isn't this somewhat like the question of whether a gay partner can be at the bedside of a dying companion or whether they might inherit from their companion? While I disagree with the life decision, I'm not sure it is right to block some of those outcomes that arise from arrangements they chose.

I strongly disagree with you that the outcome is not unjust, but there's another point, which is that your reply is not directed to the question at issue. This is all supposed to be about a state of affairs compatible with a strong form of religious liberty, reduced government power, or even government neutrality.

Whatever one thinks about the goodness or badness of the outcome in a case where a person leaves the homosexual lifestyle and then is forced to send their child for weekends with a former homosexual sex partner, one cannot say that no coercion of conscience is taking place, that the government is neutral as regards whether the original union was real, binding, and worthy of recognition, or that the now-Christian (or Jewish, or Muslim) parent is being afforded a strong form of religious liberty.

Remember, being forced to send your little girl away to spend weekends alone with your former lesbian lover isn't just an "outcome." It is an on-going matter of the child's upbringing. This is extremely serious stuff and can hardly be called trivial or irrelevant to issues like freedom, government neutrality, or coercion. Moreover, please note that the recognition of homosexual unions is what _introduces_ this situation. It is therefore an _expansion_ upon the government's power to coerce the biological mother to send the child to live with another person, rather than a _reduction_ of government power.

To your #9, I think that you are misinformed.

The absolute numbers do not matter. Because of the agenda, these things are being normalized in, say, the educational system out of all proportion to their numbers. Homosexual "marriage" is undeniably about hostility to the nuclear family, and I supported that in the main post with reference to the Obama administration's argument in the California case that children do not need a father and a mother and that it is irrational to think so. How much clearer an instance of hostility to the nuclear family is needed?

Another point to your #4: I already gave an example--the fifty "parents" example--above as a reductio of the idea that all contracts can even possibly be recognized and enforced by the state. Therefore the state will have to choose which ones to enforce. Even just the highest number of "parents" to recognize.

How is this a matter of state neutrality?

It isn't.

I think I'm willing to stand on my case at this point. The bottom line for me is that this thing will either be settled on grounds of liberty or equality. It will be far worse for the church and for Christians, generally, if it is settled on equality grounds. I have ventured out a bit toward finding a way to settle it on the basis of liberty. You find that case highly flawed. Maybe it is. I think I see a little daylight there amid otherwise thoroughly bleak prospects.

Maybe one more thing. You give the example of the woman who leaves her lesbian lover (to whom she was legally married) and then has to share custody. The same situation applies (and I have seen it) when a woman with a husband (who leaves her for his gay lover) has to share custody with him. How would we prevent this situation? The court would have to rule him an unfit parent who is unworthy of any custody of his children because he is gay. That's a pretty tough place to land. I don't approve of that guy, but I'm not sure I would say he can't have any custody of his kids.

The same situation applies (and I have seen it) a woman with a husband (who leaves her for his gay lover) has to share custody with him. How would we prevent this situation? The court would have to rule him an unfit parent who is unworthy of any custody of his children because he is gay.

The courts used to rule quite readily that he was unfit for custody because (a) her husband left her, and (b) because his living situation was abnormal, and (c) (for any little girls) because it is truly outrageous to have a girl spending time not only with Dad but an unrelated male adult with no female adult restraint in the picture. To say it's "because he is gay" is to gloss over the facts of his behaving certain ways and living in a certain environment dangerous to the welfare of the kids. I have no trouble with the state saying that a drug-dealing father cannot have custody, that a drug-ADDICT father cannot have custody, a father living in a drug-dealing den cannot have custody, and that a father living a gay life-style with a boyfriend cannot have custody because all of these are disordered places to have a child.

We are certainly going to see Anthony Kennedy decide whether gay 'marriage' is a civil right, that states must perforce accept and allow and credit. Until we have lost that decision, we should hope and push for the RIGHT decision, that states have the authority to not credit gay 'marriage'. There is nothing that requires that he decide the wrong way, even given all the other stuff he has done. If he decides the wrong way, we will have a different picture to work with, one which may or may not allow any of the alternatives Hunter suggests.

You find that case highly flawed.

Well, Hunter, one problem I have is that it's unclear to me exactly what you are making a case for. As witness the fact that in this most recent comment you use the term "legally married," apparently in reference to a possible situation I raised under your proposed scenario (and a real one that has arisen in Vermont), yet elsewhere in the thread you have agreed that legal marriage is state endorsement of the union and have apparently shifted to proposing the abolition of legal marriage instead and the substitution of, I'm guessing, some sort of un-specified contracts.

This makes it difficult for me to know precisely which points to press as far as what you envisage and are proposing when you say it will provide "a little daylight" if "this thing is settled on the grounds of liberty."

I notice, too, that several of my questions remain unanswered concerning, e.g., the school teacher and the small businessman. These appear to be--again, depending on what precisely you are proposing--counterexamples to any claim that this is "settled on the basis of liberty" or indeed that, as you have repeatedly implied, what you are proposing would involve a _reduction_ in state power as compared to traditional marriage.

You give the example of the woman who leaves her lesbian lover (to whom she was legally married) and then has to share custody. The same situation applies (and I have seen it) when a woman with a husband (who leaves her for his gay lover) has to share custody with him. How would we prevent this situation? The court would have to rule him an unfit parent who is unworthy of any custody of his children because he is gay. That's a pretty tough place to land. I don't approve of that guy, but I'm not sure I would say he can't have any custody of his kids.

Several points. First of all, you seem not to understand or not to address my point about neutrality. What you are saying simply supports my claim that state neutrality is impossible. Whatever you may think about what is analogous to what, the point is that these child custody situations mean that the state cannot be neutral (for example, as to what does and doesn't make someone the best parent for a child) and moreover that the state may very well and probably often does coerce conscience in the course of not being neutral.

Do you not see the relevance of that to the issue here? You are arguing that a proposal to either endorse homosexual "marriage" or to abolish civil marriage (I cannot tell which) will mean the state's backing off, giving more freedom, being neutral as amongst lifestyles, and the rest.

I am saying that these child custody decisions mean that that is literally not possible. It literally does not matter to this point at issue what you think about what is fair or just or right. The point is that some decision has to be made about what is fair, just, or in the best interests of the child, which is not neutral.

Does this not simply make my point for me here about the impossibility of neutrality?

Second and third (but secondary to the point at issue): No, it isn't just like a husband, because the husband really was married to the woman and was the biological father of the children, and that is different from an unrelated lesbian lover as far as his prima facie rights. (And until very recently, and still in some states, is different in law as well.) And also, Tony is right about behavior being potentially disqualifying.

And by the way, the courts have to make decisions like that all the time. For example, the courts may well decide that if one spouse has ever so much as pushed the other spouse, even once, that is disqualifying for custody. But no doubt a court would agree with you that a man's living with his homosexual sex partner is not disqualifying. Family courts have _huge_ power and _constantly_ decide these kinds of questions. When there is a breakup, they have to.

Value judgements? All the time. You bet. Necessarily so. Mine are probably different from yours but, see above--that just proves that state neutrality on very important value judgements is literally impossible in family law and hence that the court's "getting out of the marriage business" is literally impossible even if marriage licenses are abolished.

I'm like a glutton for punishment and keep coming back. I'm terribly worried about the state's involvement in domestic matters and still more worried about the comprehensiveness of that power. I want it limited. I want it as limited as I can get it. I don't want some court ruling that my kids can't grow up in my house because of my anti-homosexual views or what ever else violates the new orthodoxy. I don't accept the same degree of inevitability that I think you see with regard to the necessity for extensive government involvement. If I accept that logic too easily, I fear I will have them trying to control their upbringing, their schooling, and any number of details of domestic life.

I don't accept the same degree of inevitability that I think you see with regard to the necessity for extensive government involvement.

I discussed this above. When traditional marriage is in place, you have presumptive control of those things and so does your wife, until and unless there is a breakup of the marriage.

The more creative and expansive our ideas are about what constitutes a family, the more situations there are where the state has to get involved. Homosexual "families" are always creations of the state, one way or another. All the more so for polyamorous or polygamous or group "families."

That's why you shouldn't want to abolish civil marriage. (Jeff linked to one of my posts above about that.) For example, if they abolish civil marriage and your now-wife (then-legally-live-in-girlfriend) has a baby and dies in childbirth, and the baby lives, do you have custody of that baby or not? You are the biological father, but once marriage is abolished, why should that matter? Your own presumptive paternity is called into question by the abolition of civil marriage, which means less freedom, not more freedom.

If all child custody and all familial creation is by contract, then every family is a creature of the state. That makes for _more_ presumptive state involvement.

What you should want instead is for the state to recognize, preferentially, the heterosexual, natural family. That is, as I said above, a form of state humility.

If you replace that with ad hoc contracts, you presumptively involve the state _more_ rather than _less_. For example, you'd have to find out ahead of time if the ad hoc contract you proposed to write (instead of getting married) would even be regarded as valid in your state.

Now, the state's recognition of the normal, traditional family is not neutrality. I don't claim that it is. I'm claiming that neutrality is impossible. But that recognition does mean that the state has less to make up on the fly, by way of its own values, concerning preferred familial structure and child upbringing. If marriage is abolished and replaced by do-it-yourself contracts, that does not make for less state involvement.

Let's note here, too, that increasingly in the western world grandparents and other relatives are trying to interfere in families. So even if you and your wife are never going to fight and get a divorce, you should want a very strong presumption by the state that _you_ constitute the family and that everybody else has to butt out. Otherwise your weird brother Vinny gets to make trouble for you and demand time to hang out with the kids.

If marriage is replaced by contracts, then this is much more shaky, because everybody knows that a contract may be stupid or unenforceable or crazy, and maybe the parties to the contract _shouldn't_ have been the only people involved in the children's lives and Uncle Vinny has a better case. A state-created contract family is much more challengeable than a natural family bolstered by centuries of common law and statutory law.

Once you abolish marriage, you loosen all of those presumptive bonds. My argument is that this is not the road to freedom, and it _certainly_ isn't the road to neutrality.

The thing is, once we realize that "just make up contracts and have the state enforce them" is not a matter of the state's being neutral, then we can go back to talking about what _will_ result in less state involvement in the upbringing of children and what sorts of structures _are_ the best "default settings" for giving adults a lot of presumptive authority, with the state taking a hands-off attitude, towards raising the kids. Because we all know that some structures _shouldn't_ be treated like that. If a nudist colony has one hundred members, and they all sign a contract that says that all children will be raised without ever being allowed to wear clothes, and that any mother who runs away with her child and puts clothes on him must have her child taken away forcibly and brought back, that is _not_ a contract we should want enforced. It is _not_ a situation we should want presumptively treated as a family into which the state doesn't interfere.

But you and your wife and your kids _are_ the sort of structure that we should want the state to leave alone and to which we want the state to give a lot of deference and space in the specifics of raising your kids.

You see? Neutrality is not possible but state deference is. So we have to commit ourselves to being willing to argue at that level that _this_ is a real family and _that_ isn't, and that real families are worthy of preference and state deference.

And that means not supporting the abolition of marriage and its replacement by made-up contracts.

Remember that I said above:

I often find it sadly interesting that some of a libertarian persuasion apparently think their freedom is going to be better guarded by the case-by-case diktats of a powerful family law judge trying to decide how and whether to honor made-up child custody contracts among unmarried people than by the institution of civil marriage. But in all honesty, I'm afraid that those who propose this really haven't thought through the implications or the extreme power that family law judges already have and how little they should want to be involved with them.

In other words, my entire point here is to endorse a default setting--the default setting that actually _creates_ the real family, namely, the married heterosexual couple and their biological children--in which the state recognizes a presumptive family so that family law judges, social workers, etc. are involved as little as possible! Ditching marriage for contracts is a _terrible_ road to that end. Completely and utterly counterproductive to that end.

I just saw a homosexual man endorsing homosexual "marriage" by griping on Facebook that contracts that he could "pay some lawyer to draw up" would create at most a "rebuttable presumption" on various points. Interesting, no? And probably true. And relevant to what I have just been saying. In other words, contracts are not as strong as marriage at securing the rights in question. And they never will be and probably shouldn't be. Which is a very interesting point concerning any "abolish marriage and substitute with contracts" proposal.

He also brought up a new one. I'm borrowing this forthwith: Nonincrimination at trial. That's a lovely doozy. He probably meant that one to be in the category of things that can't be created by contract at all (he said there was such a category). So, let's think of the abolition-with-contract scenario. Can your "contract partner" be required to testify against you at a trial? As opposed to your wife, that is. Because at that point nobody is anybody's wife, there are just contract partners. No? Then if I make a contract in which I include a hundred people, can we all get immunity from testifying against one another at trial? That makes little public policy sense. To put it mildly. Or should it be yes, your former-wife-now-contract-partner _can_ be forced to testify against you in a trial? Golly, what a great increase of freedom and reduction of government power that achieves!

It's really, really important to think about details.

To me these libertarian solutions, far from advancing a sound strategy, or even evidencing a grasp of what constitutes sound strategic political thought, rather exemplify the old phrase too clever by half. To evade a system of persecution, one which the modern liberal legal structure is clearly preparing us, the libertarians would enervate and imperil the foundation of institutions whose defense is provoking the persecution. They think they are carving out a wider sphere for political action for themselves and their allies, but all they are really doing is undertaking the work of the enemy's sappers for him.

Truly strategic political thought, it appears to me, would take the form of examining how previous generations of Christians anticipated, prepared for, and resisted, persecution by sanctimonious despots. How did Irish Catholics preserve the integrity of their faith and culture, under the severe constraints of Penal Laws? In our own country a ghastly experiment was undertaken, as the part of a cruel and vicious perfection of tyranny, by which the family integrity of blacks was degraded to nothing and children torn from mothers and fathers at the whim of commercial nonchalance; and yet even now, after all the inflicted insult and torment, through slavery and Jim Crow, and now modern degeneracy, huge majorities of blacks still strongly desire to marry and raise children in the normal way of Christian people.

Young people need to know that faithful Christianty is and will be hated by the world; and this particular point family of relations, or what George Gilder called the sexual constitution, to all appearances will comprise the affront to the world that inspires great hatred.

All that said, there is nothing more contrary to strategic political thought that turning on one's own allies. It is vital to show that libertarian arguments misconstrue the nature of man as a sexual being, and the nature of the state as it acknowledges human families, and adjudicates their disputes. But it is also may be more vital to preserve the alliance between conservatives and libertarians that fought so valiantly against the machinations of the Left this past century. We're required to operate in the political circumstances we confront; and those circumstances today include the clear absence, out there in the Republic, of a serviceable governing majority of conservatives. We must have allies. We cannot do without them.

In that light I have sympathy for Hunter's conjectures concerning how to cobble together a "liberty coalition" against this rainbow despotism. I just don't think his Option Two is feasible.

I have always thought that Jennifer Roback Morse's approach, which to some degree I am using in this thread, was a sound way to try to _convince_ libertarians to defend marriage and the family (by which, of course,I mean real marriage and real families) and hence cobble a coalition. I've always been very libertarian-sympathetic, as readers of W4 know. What libertarians need to realize is that the _best_ road to liberty is the preservation and government recognition of the family and of marriage. It is marital stability. Thus we attempt to cobble a coalition by trying to induce libertarians to embrace social conservatism on this issue as a way of advancing their own overall cause of limiting the scope of government power--that is, by the government's continuing to grant special deference to the foundational unit of human interactive society.

If marriage were abolished, the amount of government control over, say, parenting would become a much more open question than it is now. Obviously two adults' (or five adults') making a contract amongst themselves doesn't in and of itself create either children or the custody of children. It seems entirely plausible to me that a modern country that abolished marriage would, as a concomitant legal move, introduce "parent licensing" to decide which contract groups and which contracted adults "count" as custodial parents. That's just one possible scenario, but my point is just that the abolition of marriage is by no means a prima facie move toward greater freedom than the recognition of the traditional family. It just is an unknown quantity with even more potential for government control.

These last parts bring me back to some of the original intent between options one and two. I have been pushed into inhabiting option two, which is not really where I live. But the original question I addressed was whether a person could be a Christian and embrace option two. Lydia and others have spilled a lot of ink on why they oppose a person embracing option two. So, let's open a little bit different inquiry. Are you saying that option two is not available to an orthodox Christian whether or not you think it is a good idea. That may be another way of asking whether you think there can be any such thing as a Christian libertarian.

Hunter, as far as I can see, no Christian can approvingly choose a society that either (a) does not recognize in marriage any special sort of associative act so that the society has no implicit denigration of deformed 'marital' acts; or (b) a society that explicitly and positively recognizes as marriage something that nature abhors as an outrage. A Christian can tolerate living in such a society when he cannot change this feature, but he cannot claim that this feature is an acceptable sort of society for Christians.

There is a similar question for abortion: can a Christian vote for a law that permits abortion? The Catholic answer, which I think is sound, is that a Catholic lawmaker can vote for a law that permits abortions if by doing so he is CHANGING from a more permissive law that permits many more abortions to a new law that permits fewer. Or he can add an amendment that limits the otherwise scope of permission that looks certain to pass, and then vote for the law as amended. By no means can he vote for a law to permit abortions that otherwise, without this law, would not be permissible. Nor can he ever vote to have the state be the AGENT of new abortions that the state otherwise would not be party to. The sense of "can" here is "can and still be an orthodox Christian" in practice. (Of course fallen men who are Christians do grave moral evils out of weakness all the time, and must repent and return to the practice of their faith - they don't cease to be Christians, but their acts are not acts of a practicing Christian, just as the Christians in Roman times who bowed down to idols out of fear were not doing acts of practicing Christians).

In like manner, I think, a Christian lawmaker can vote for a marriage law that fails to restrain disordered, unnatural 'marriages', if by doing so he is voting for a law that restrains some of them that otherwise would not be restrained. But by no means should he vote for a law that permits abhorrent 'marriages' that otherwise, without this law, would not be allowed. Nor should he vote to make the state a party to abhorrent marital contracts that the state otherwise would not be a party to.

Remember, I think a libertarian should embrace option one precisely because he is a libertarian. So I definitely wouldn't want to characterize my pressing for option one (and against the abolition of marriage, which I'm now _gathering_ Hunter is implying is the libertarian option rather than homosexual "marriage," though I'm still unclear on that) as saying that "there cannot be a Christian libertarian." Libertarianism, of course, comes in many varieties. I think a libertarian both can and should be on the side of male-female marriage.

More later on.

Okay, so let's first ask whether "option two" now stands for some sort of acceptance or political accommodation of homosexual "marriage" in the civil realm or whether it now stands for the abolition of civil marriage altogether.

In my opinion, a Christian cannot consistently, and with an understanding of the moral law, advocate either of these.

As to the first, as already argued, marriage is a preferential treatment given by the state. To give that status to homosexual relationships is for the state to endorse them as equivalent to marriage, which is a highly important falsehood. One who understands the true metaphysical state of affairs--whether through Christianity or otherwise--cannot consistently endorse the state's making this importantly false "lifting up" of homosexual unions to the preferential status of marriage.

As to the second, the answer is also no, for the second also makes marriage and homosexual unions equivalent by dragging down real marriage to "just another contract" on a par with homosexual unions and whatever other unions are recognized by the state via made-up contracts--polyamorous threesomes, large group sexual associations, communes, friendship, or whatever. By making marriage, real marriage, equivalent to a variety of other arrangements to which it is non-equivalent, and by enforcing custody relationships, references by state employees, and whatever else is required (treatment in employment law, for example, even if "only" by individual employers), the state would endorse seriously important falsehoods about the nature of reality. Such an option also, as I have argued, weakens the real married couple's status and standing and hence would almost certainly result in less freedom from the state and deference by the state for real marriages and real families. Anyone who is a Christian or understands the true nature of marriage and family by the natural light cannot endorse this once he realizes what it amounts to. To pick just one of these situations, no Christian should endorse a situation in which a public school teacher is fired for refusing to teach affirmatively about homosexual unions and "families" or for refusing to say that Heather really does have two mommies in the form of a lesbian couple. That sort of coercion by the government entity (the employer) to utter important falsehoods should be seen by anyone who understands these matters aright as seriously bad. Hence, such a person cannot consistently endorse a policy that would give rise to it.

Does this mean that a muddle-headed Christian on these issues is going to hell? No, not in and of itself. Christians get muddle-headed about a lot of things, even important things, and don't therefore necessarily go to hell. But if we're talking about what a Christian, or for that matter a clear-headed natural law, understanding of reality actually entails, then my answer is as given.

Hunter, in my view a Christian libertarian who favors, succors, votes, or otherwise endorses an abolition of civil marriage, whatever his stated purpose in doing so, has to that extent ceased to be either a Christian or a libertarian. He has falsified the nature of marriage, a Christian sacrament, which is prior to the state and therefore incapable, sub specie aeternitatis, of abolition; and he is enlarged the capricious authority of the state over the lives of men, thereby curtailing their private liberty.

I'm even inclined to say that a calculated silence, what Burke called an "economy of truth," on the subject of gay marriage, is a less bad option than flirting with abolition of civil marriage. When libertarians make that common incantation, "get the state out of the marriage business," they only demonstrate their ignorance of (a) what marriage is and (b) what liberty is.

Let me meet Lydia's request for a clarification on option two. Option two would mean that state merely enforces contracts that adults make for themselves unless they are clearly unacceptable (such as contracting for a cannibal to eat oneself). Marriage contracts would just be another kind of contract in that scenario. The church, of course, would be free to set conditions for members and their marriages.

Thanks for the clarification. In the name of future clarity, I would just suggest that you never word that as having to do with homosexual "marriage," as it will be misunderstood. What you appear to be suggesting here is what I have been calling in this thread the abolition of marriage. See, therefore, my extensive comments above on this. By the way, notice that "clearly unacceptable" already takes us into the realm where the government is deciding amongst contracts. For example, I would say that a contract to pay a woman money to bear a child and turn that child over to some other person at birth is clearly unacceptable, is indeed a form of buying and selling human beings, but some states recognize them. (Others don't.) There are always value judgements to be made in the world of contracts.

I would love it if the state were to return to "enforcing" contracts of marriage - i.e. to repudiate the notion of "no-fault divorce" which constitutes a way of saying that when one party doesn't like the contract they can annul it at will, which is of course a defeat of contract. And to insist that when a couple said "until death" those words meant something. And to insist that "for better and for worse" means something. And basically to resurrect the category of "separated but NOT ELIGIBLE to re-marry" as a major category for solving the damage one party to a marriage is doing to spouse and children without giving him a disolution of his financial - and other - obligations thereto. Even so, the state would have to decide whether to grant or not grant the status "marriage" to such things as contracts for an explicit term period (1 year, 5 years) or to say "nope, those agreements aren't sufficient for what we mean by "marriage". Same with marriages in which the couple explicitly agree not to engender children. So the mere fact of the state revising its role as "we just enforce the contracts, folks" doesn't get us out of what categories of contracts the state accepts as marriage - as Lydia indicates.

If, at the same time, the state were to recognize marriage contracts between gays, or between 3 or 4 or 10 people, then I would love it if at the same time the state would also undertake to re-examine ALL of the statutory privileges of marriage and decide whether to assign or not assign them to "marriage" or whether to assign them ONLY to a subset thereof, such as to "covenantal marriage". There would be, for example, plenty of reason to get rid of the estate tax marital tax deduction for "marriage" considered as a whole, but retain it for marriages in which one party works and the other stays at home for their married lifetimes, a subset of marriages. And deny it to marriages between multiple "spouses". Same with nearly all of the other distinctive treatments of marriage in law. Treating all "marriages" equally would be irrational under such a wide definition of marriage, and so we would simply acknowledge explicitly what is so far implicit: existing social marriage rules make sense under certain notions of what constitutes marriage, and not others, and if you change the latter you need to change the former.

There would have to be, flowing with such detailed re-considerations, (and I would say made part of the constitution) the presumption that both parties of a married heterosexual couple have automatic custody of any child born or conceived naturally during the marriage, and that no such presumption applies to the father of a child conceived otherwise. (And in the latter case the presumptive rights of the child to be raised by a heterosexual married couple exceed the biological father's rights over the child. We could have the state declare any new IVF children to be orphans and wards of the state, and turned over to adoptive (heterosexual) married couples, and probably the same with children born of surrogate pregnancies.)

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