BRAINSTORM: Refute some arguments against marriage equality

[Athelwulf]

Let's have a brainstorm.

I'd like some thoughts on a couple arguments against same-sex marriage that I think are a little tough to refute.

I'll cover the tougher one which I don't have any ideas on first, one I came across a couple times: "Everyone has the right to marry someone of the opposite sex, so legalizing gay marriage would be special treatment towards gay people."

I know this argument is stupid, but I'd like to get to know exactly how it's stupid, so I can take the argument apart the next time I see it. The more ideas you got, the better!

The second argument is one my dad has given me: "It would be too difficult to legalize gay marrage even if we wanted to, because gays are physically unable to consummate a marriage. And to change consummation laws in order to make it easier for gay people would be too much work, and would upset people who would complain that the government is getting into the bedroom where it doesn't belong."

I already have some thoughts on this, but I'd like some help in refining them.

My dad's argument relies on a few premises: that sex is prohibitively hard to define for gay people; that consummation laws must remain, lest people start marrying for tax reasons or for the hell of it; and that people would surely complain that the government is intruding in the bedroom if consummation laws are reformed.

As for the first premise, I don't see how gays are physically unable to consummate a marriage, unless coitus in particular is the only sexual intercourse you can have in order to do so. But even if this is true, there must already be a working definition of sexual intercourse between members of the same sex somewhere in the law. An example I can think of is rape: It's physically possible for a male to rape another male, or a female to rape another female.

The second premise looks like a manifestation of "teh gheis will destroi marriage omg!" except with a twist. It assumes the only options we have are to change consummation laws or to repeal them, and repealing them would demean marriage in such a way that it would be very easy for people to marry, and many more meaningless marriages would take place. Any thoughts here that can explain why this is stupid are appreciated.

The third premise is just absurd. Not very many people are gonna complain about something such as the government "intruding in the bedroom" when same-sex marriage is getting legalized, unless they're going about it the wrong way. Plus, it makes me wonder exactly how this intrudes in people's bedrooms. It's intruding when you legislate what people can and cannot do in their bedrooms, but not when you say what consummation is. Exactly how is it possible to make such a stupid case? Can people help me out here?

Have at it, people. And remember, this is a brainstorm. Any and all ideas are helpful!

[jgraz]

1. How about this: Dad, Shut The Fuck Up

Those are the stupidest arguments I've ever heard. To refute them would be to imply they made sense at all.

[Athelwulf]

3. I'd like to do better than that...

If he doesn't see how they're stupid, then his mind isn't gonna change. It doesn't work to just say "That's stupid, end of discussion."

[jgraz]

5. Sorry, this stuff just drives me up the wall

What all of these arguments boil down to is "Gay people are bad, I hate them." Everything else is window dressing.

If you want to argue though, try substituting "people of the same race" for "people of the opposite sex". See how he feels about that kind of law.

The consummation argument is just too fucked up (no pun intended). Should two elderly people be stopped from marrying if they aren't interested in sex? What about a paraplegic? Should Christopher Reeve's marriage have been annulled after his accident? It's just stupid, stupid, stupid.

[Athelwulf]

8. I totally understand

And yeah, it is all pretty stupid. But I believe that all bad arguments are refutable, and indeed must be refuted.

[Canuckistanian]

2. Okay, as far as "consummation laws" go

Since when has a heterosexual infertile couple ever been punished for being childless? Or denied the title to "husband and wife" just because they didn't "go forth and multply"?

Bullshit argument.

[Athelwulf]

7. He wasn't arguing that a marriage had to produce children

Only that having sex is required to "legitimize" a marriage. And he implied that coitus is the only acceptable sexual intercourse. I know that it's only one step further to say that a marriage must produce children, but strictly speaking, it's not quite the same thing.

[silverojo]

15. Ask Dad this:

Exactly HOW do you prove a married couple has had sex? I know Homeland Security's nosing around, but planting cameras in everyone's bedroom is even beyond THEIR budget. There is NO way to prove two people have had sex, gay or straight.

Some of Rush Limbaugh's former wives have said he never had sex with them...does that mean, by Dad's definition, that he was never married to them? That's certainly news to the divorce lawyers involved....

If his definition of sex is so narrow, ask him this: Since Bill Clinton didn't stick his REAL "cigar" into her "humidor", that means Clinton was telling the truth when he said he didn't have sex with her! You'll have him there--it was "only" oral sex, not the type of sex Dad's saying is necessary to consummate a marriage.

If Dad's head doesn't explode at this point, add to his misery further: Either other forms of sex ARE sex, or else there's only one "real" method of sex, which Bill and Monica DIDN'T have. Can't have it both ways, Pop!

[Athelwulf]

16. Yes! :D

Good thinking.

[Warren Stupidity]

10. Very few states have a consummation requirement.

And last time I looked, gay people are real good at having sexual relations so what's the problem?

[Athelwulf]

13. Where might I look for legal info on consummation? NT.

[Hosnon]

17. Here's a checklist from WestLaw.

Although it may vary, this should be pretty standard state to state:

§ 13. Checklist--Elements establishing valid ceremonial marriage

The following facts and circumstances, among others, tend to establish the existence of a valid ceremonial marriage:

Parties' capacity to marry--

A. Age at time of marriage

B. Parties' general mental capacity

C. Parties' understanding of nature of marital relationship

D. Parties' mental condition at time of marriage ceremony

Parties' consent to marriage--

A. Parties' participation in marriage ceremony

B. Parties' cohabitation as husband and wife

Compliance with statutory requirements as to marriage ceremony--

A. Date and location of ceremony

B. Judicial notice or proof of applicable statutory requirements at time and place of ceremony

C. Nature of ceremony

D. Identification of parties as participants in ceremony

E. Authority of person who performed ceremony

F. Issuance of marriage license

G. Completion and filing of marriage certificate or other public record of marriage

H. Authentication of public record of marriage

-- Record obtained from proper public office

-- Office was authorized by law to keep record

-- Certification that copy of record is correct

-- Person who made record was authorized by law to do so

-- Record was made at or near time of marriage ceremony

I. Authentication of church record of marriage

-- Record kept in regular course of church's affairs

-- Identity of person who made record

-- Authority of person who made record

-- Circumstances of making record

-- Custody of record

J. Authentication of family record of marriage

-- Nature of family record

-- Custody of family record

-- Routine practice of making family record

-- Identity of person who made record

-- Unavailability of maker of record

-- Time record was made

-- Family members' knowledge and use of record

K. Circumstantial evidence that there was a ceremonial marriage

-- Parties' cohabitation as husband and wife

-- Statements by family members about marriage

-- Family reputation as to marriage

-- Statements by parties to marriage

I couldn't find anything that dealt with sexual intercourse.

[Athelwulf]

18. I just looked at Wikipedia...

http://en.wikipedia.org/wiki/Consummation

It says that in the US, court cases have ruled that a marriage can be annulled if it hadn't been consummated. It does have a tag asking for citation, but perhaps this is what is being argued: A same-sex marriage can be annulled at any time since consummation isn't physically possible, and thus they are not, and can never be, "proper" marriages.

Of course, this all rests on the assumption that coitus is the only acceptable way of consummating a marriage.

[Hosnon]

19. I think that means that it can be annulled for that reason, not that it is annulled for

that reason (automatically). That is, if my wife refuses to have sex with me (and we never have sex), that is a legally valid reason to be granted a divorce.

[Athelwulf]

24. I know that. Isn't that what I said? NT.

[Hosnon]

22. It appears the answer rests upon the distinction between common law and ceremonial marriages:

Cohabitation of two persons who are generally reputed to be husband and wife or holding out as husband and wife does not in itself constitute a marriage. While the necessity of consummation has been recognized, it has been held or recognized that cohabitation or coition is not an essential element of a marriage which has duly been solemnized.

I think this illustrates what your father is thinking about. There are two types of marriage: common law and ceremonial. It seems that for a marriage to be valid, it must consummated. If the marriage is common law, consummation means "cohabitation or coition". But if the marriage is ceremonial, consummation means "duly ... solemnized".

Marriage must be consummated, but the definition of consummation is different depending upon the type of marriage. Perhaps your father has transposed the definition of consummation for common law marriage to ceremonial marraige.

[Warren Stupidity]

26. You are now conflating two types of marriage: civil and religious.

So there are three separate cases here: common law marriage, civil marriage, and religious marriage. Various religions may in fact require intercourse. Some (few as it turns out) states may have a consummation requirement (in the sense that the marriage can be annulled for lack of same.)

Common law marriage is only accepted in some states:

"Common-law marriage can still be contracted in the following jurisdictions: Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, New Hampshire (posthumously), Oklahoma, Rhode Island, South Carolina, Texas, and Utah. Note there is no such thing as "common-law divorce" — that is, you can't get out of a common-law marriage as easily as you can get into one. Only the contract of the marriage is irregular; everything else about the marriage is perfectly regular. People who marry per the old common law tradition must petition the appropriate court in their state for a dissolution of marriage."
http://en.wikipedia.org/wiki/Common-law_marriage

However on reading up a bit on the history of common law marriage, this might be a good way for the whole same sex marriage issue to do an end run around the bigots by re-establishing the rights people have had since ancient times to declare themselves contractually married without the intervention of church or state.

[Warren Stupidity]

25. Here is what I found

"Consummation of the marriage by the act of sexual relations (only a few states require this).
Consumate: What is completed. A right is said to be initiate when it is not complete; when it is perfected, it is consummated.


Consummation: The completion of a thing; such as the consummation of marriage, the consummation of a contract, and the like.


Most states consider a couple to be married when the ceremony ends. Lack of subsequent sexual relations does not automatically affect the validity of the marriage, although in some states non-consummation could be a basis for having the marriage annulled."

http://usmarriagelaws.com /

As for annulment, lack of sexual intercourse is not a condition, inability to have sexual intercourse at the time of the marriage is.
"Either spouse was physically incapable to be married (typically, inability to have sexual intercourse which persists) at the time of the marriage; "
http://en.wikipedia.org/wiki/Annulment

How same sex sexual intercourse is not sexual intercourse is a problem for bigots to rationalize.

But the original argument here is silly. See above, few states have consummation requirements. The argument that marriage requires consummation is obviously false as most states have no such requirement.

[sui generis]

28. oh lowerd! no citation because there is no citation

it's a dud entry, report it. Probably created by anti-equal marriage people for exactly this reason.

There probably is some archaic can't-fuck-yer-horse-on-tuesday rule about consummation, but you don't really "need" any reason at all to get divorced; it implies that the state has the ability to prevent you from getting divorced if you don't give them a good enough reason.

If it was truly about consummation, then the state would only let fertile couples wed and would split up couples that didn't produce enough children. If it was about consummation, they would raise us in barns and stud us out.

[kiahzero]

20. How'd you look?

If you go to the Family Law section in a Key Search, there's a whole section dedicated to it.

Also, here's the relevant passage from Black's: consummation of marriage. Family law. The first postmarital act of sexual intercourse between a husband and wife. • Under canon law, a refusal to consummate the marriage may be grounds for an annulment or for divorce. But this is not so at common law or under modern state law.

[Hosnon]

23. I did a 50 State Survey search and found a Proof of Facts. nt.

[Singular73]

4. Marriage is a religious ceremony.

The laws convering the contractual basis of marriage was an afterthought.

I believe in Civil Unions, but not Gay Marriage.

Marriage is by definition, a religious ceremony.

Fine by me if you go and get a "Civil union" at a courthouse, M&F, M&M, F&F, thats fine.

[Athelwulf]

11. And some churches are willing to marry gays

Marriage's "definition" of one man and one woman is the sort of bullshit that conservatives peddle. It's based on their personal religious beliefs and their idea of what marriage is. Not all religions, indeed even not all Christian sects, share the same ideas about same-sex marriage.

I wonder what you mean by "I don't believe in gay marriage." Is same-sex marriage a myth, like the tooth fairy?

An interesting point that you remind me of concerning civil unions, one that I've seen around on this board, is that marriage should be made a purely religious ceremony with no legal significance and should be replaced by "civil unions" in common law. This way, each church has the freedom to decide what sort of marriage they will conduct, and it would not affect civil law in any way. Neither Church nor State will have influence over the other this way.

[kiahzero]

21. And?

No one's saying that bigoted churches can't continue to be bigoted. However, the government is expressly forbidden from discriminating on the basis of sex. Barring marriage equality would be doing so.

Marriage is not, by definition, a religious ceremony. It's also a civil commitment.

[Maven]

29. There are plenty of churches that would preside over same-sex weddings

So I suppose you do support "gay marriages."

I'm not even going to explain why your thinking is actually wrong. At this point, I've had it with this line of BS. Look it up.

[TechBear_Seattle]

30. Bullshit

Why do people keep spreading this lie?

In the United States, legal marriage is and always has been a CIVIL INSTITUTION. No legal marriage exists unless the couple files CIVIL documents with the proper CIVIL authorities, regardless of what invocations, incantations or animal sacrifices are offered. No religious ritual is required, nor can any religious ritual be required as that would be a direct violation of the First Amendment separation of church and state. In every state and US jurisdiction, judges and other civil figures have the authority to officiate at a marriage; in Florida, Maine, South Carolina and parts of Louisiana, marriage is a simple jurat which can be administered by any notary public. At best, clergy have a very limited power as de facto civil agents of the state, a power which can be stripped by statute (and, in my opinion, should be stripped to end the kind of ignorance you expressed.)

Let me repeat this using small words and simple syntax:

ALL LEGAL MARRIAGES ARE CIVIL UNIONS.
LEGAL MARRIAGE DOES NOT REQUIRE A RELIGIOUS CEREMONY.

If you still have trouble grasping the concept, let me know and I try to lower myself to your level of comprehension.

[William769]

6. I'm just a dumb country hick from appalachia

So of course I will keep it simple.

Why do you think you are better than me? Thats what it boils down to.

ON EDIT: If you want something with more substance check out this site.
http://www.soyouwanna.com/site/pros_cons/gaymarriage/ga...

[everythingsxen]

9. Ok well here are a few points:

• The rape example, while not a particularly pleasant one, does show that under the law two men or two women can legally "do it".
  
  
• People do not have the right to marry a member of the opposite sex. People have a right to marry the person they love. People have a right to happiness. Happiness is guaranteed: Right to Life, Liberty and the Pursuit of Happiness. (Ok I suppose it isn't guaranteed, just that you can try to have it.)
  
  
• Marriage is, for all practical purposes, a business arrangement. Citizen A is an independent being. If Citizen A marries Citizen B they legally become a "corporation" sharing in each others assets and liabilities. To say that gay people do not have the same right is utterly silly.
  
  
• For tax arguments, point to Canada and say "They have legal gay marriage AND socialized medicine, yet their economy is doing just fine"
  
  
• Marriage has already been devalued. They made game-shows out of it. That pretty much defeats any "sanctity of marriage" argument.
  
  
• Unless you are dealing with a total fundie, ask them if they have ever gotten a blow-job. Bill Clinton had one and he was the leader of the free world. In certain places, it is still considered sodomy and is a crime. Isn't that the government the bedroom? Isn't that dictating what goes on?
  
  
• Just let people who love each other get married and leave the rest of it behind closed bedroom doors.
  

[Hosnon]

12. The first one I get but the second is a bit odd.

As to the second: Do all/most/some/any states require some form of consummation? To my knowledge, the most any state requires after the ceremony is a "celebration". I've never heard of consummation being required for a marriage to be legitimate.

However, assuming they do exist...amend or repeal them. They imply that sexual intercourse is required for marriage - which is not true.

As to the first: Constitutionally, I believe the question turns on how specific the generalization is. Laws are not valid if they mask specificity in generality. Example: Why not pass a law that says that no one can marry anyone of a different race. That is equal treatment, right? No white man has any more or any less rights than a black man. On whatever basis the Supreme Court deemed such a law unconstitutional, the same should be used for the gay issue.

Hope that helps.

[Athelwulf]

14. Very good point

I forgot to think about how interracial marriage compares to same-sex marriage. Thank you.

[sui generis]

27. point by point

Everyone has the right to marry someone of the opposite sex, so legalizing gay marriage would be special treatment towards gay people.

1. Legalizing same gender marriage means that anyone can get married to anyone else. "Gay" is not a legally accepted term.
2. The state does not get to force a "gay" woman to love a "straight" man any more than it is acceptable for the state to force a "straight" person to marry a "gay" person.
3. If the only way gays can get married is to marry someone of the opposite sex, then isn't that really unfair to the straight person to have to marry a vile evil gay who's just using them to get married?


It would be too difficult to legalize gay marrage even if we wanted to, because gays are physically unable to consummate a marriage. And to change consummation laws in order to make it easier for gay people would be too much work, and would upset people who would complain that the government is getting into the bedroom where it doesn't belong

1. there is no such thing as a consummation law - education IS fundamental to keep you from looking stoepud
2. "gays" most certainly can consummate. In fact gay men have higher sperm counts and gay women are generally more fertile. We can even choose the sexual orientation of our future babies by using either a straight turkey baster or a gay turkey baster.

[TechBear_Seattle]

31. Here is what a long-time equal marriage advocate says

(That would be me )

"Everyone has the right to marry someone of the opposite sex, so legalizing gay marriage would be special treatment towards gay people."

The Commonwealth of Virginia used this exact same argument in Loving v. Virginia, the Supreme Court ruling given in 1967 which declared antimiscegenation laws to be unconstitutional. Virginia argued that since whites can get married (but not to blacks) and blacks can get married (but not to whites), both groups had equal rights with regards to marriage. The Court very firmly regected that argument. The thrust of their reasoning is that if you removed bigotry from the equation, there is absolutely no reason to legally prohibit interracial marriage. Applied to the matter of equal marriage, it has been contended that if you remove bigotry from the equation, there is absolutely no reason to legally prohibit same-sex marriage.


"It would be too difficult to legalize gay marrage even if we wanted to, because gays are physically unable to consummate a marriage. And to change consummation laws in order to make it easier for gay people would be too much work, and would upset people who would complain that the government is getting into the bedroom where it doesn't belong."

"Consummation of a marriage" has no legal meaning in any state or jurisdiction of the United States. A legal marriage is a legal marriage once the proper civil documents are filed with the appropriate civil authority; there is no need to "consumate" a marriage for it to be legally valid. At best, failure to consumate can, in some states, be grounds for a divorce in those very few states that still do not have no-fault divorces (are there any left?) But it can not be used to dissolve a legal marriage where both partners are satisfied with their lack of mutual relations.


A common third argument is, Marriage exists for the purpose of having and raising children. Since gay people can not have children together, they have no right to get married. Under this logic, couples that can not (vastectomy, hysterectomy, tubal ligation, medications that make pregnancy impossible or unwise, etc.) or will not have children should be prohibited from getting married. In response to that argument, used by the Washington State Supreme Court in upholding our "Defense" of Marriage law, I will be running an initiative: http://www.wa-doma.org.