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None so blind

By Lorenzo

In the course of exploring the history and dynamics of bigotry, of moral exclusion, and the history of money (particularly the similarities between the goldzone Great Depression and the Eurozone Great Recesssion), it has become clear to me how very poor conservatives tend to be at learning from history. Which is not, of course, how conservatives typically see themselves. On the contrary, they usually regard themselves as respecting the lessons of history.

Alas, this is not often not true. What one sees instead is a repeat of past mistakes.  So, just as during the Great Depression, we now get “hard money” conservatives worrying about the prospect of inflation even as inflation expectations are low and falling. The same people economist R. G. Hawtrey characterised in the 1930s as shouting ”fire!, fire!” in Noah’s flood. They cling to what gives them a sense of order, what dangers resonate for them, rather than seeing clearly what is before them.

Been here, done that
Similarly, the current debates over queer* emancipation are literally a re-run of past debates over Jewish emancipation–right down to exactly the same accusations being made against queers as were previously made against Jews (being an offence against God, being against the Christian basis of Western civilisation, that they corrupt everything they touch, that they prey on children, that they spread disease, etc etc). Ever since the Enlightenment, and particularly the Industrial Revolution, the opponents of equal protection of the law have always, in the end, lost. Yet here conservatives are, mounting the same barricades all over again in a cause it is clear they will and are losing.

Upon examining these recurring patterns, you build up a checklist of the standard evasions. For example, Rafe Champion’s recent comment that:

That is why I have so much contempt for the Same Sex Marriage brigade. Nobody is suffering for want of same sex marriage. Get  your freaking priorities in order and do something to help people in genuine need.

Anyone familiar with the history of unequal legal standing recognises this one: it is the “wait your turn” response. And, strangely, it turns out never to be “your turn”, there are always more urgent matters.  It is, of course, a nonsense view of social action, as if there is a single set of priorities that everyone must follow and things can only be changed or approved in a single sequential order. It is a way of dismissing the group seeking equal treatment as “clearly” morally deficient because they do not have “proper” moral priorities.

It also shows a deep failure to engage in that act of moral imagination that Adam Smith called sympathy and put at the heart of his moral analysis in The Theory of the Moral Sentiments. Of being apparently unable to project from the importance marriage has in one’s own life, and the life of those around one, to others.

SF writer John Scalzi has expressed how unequal standing in society works quite nicely with his recent post on different levels of social difficulty. (With follow-up posts here and here while fantasy author Jim Hines has one here.)

The lack of any sense of history among conservative-minded folk can be striking. Consider the efforts of CIS sociologist Peter Saunders, who has been getting some mileage in conservative and libertarian circles with this spectacularly stupid effort:

Two thoughts strike me about all this.

One is Friedrich Hayek’s warning about the vanity of the intellectuals. Intellectuals are affronted by social institutions (such as free markets and monogamous marriage) that have evolved over hundreds or thousands of years without people like them ever having consciously invented or designed them. They think evolved institutions are not ‘rational,’ and they believe they can do better. The only argument for leaving marriage unreformed is that it has been this way for a very long time, but that is never going to win the day with ‘modernisers,’ in whose ranks we have to include Prime Minister ‘Dave’ Cameron.

The second thought is that gay marriage will not bring the bourgeois social order crashing down, but it is one more step in Antonio Gramsci’s call in the 1930s for a revolutionary ‘march through the institutions.’ Gramsci, an Italian Marxist, realised that Western capitalism would not be destroyed by economic class struggle, for it is good at meeting people’s material needs. What was needed, therefore, was a long-term campaign against the core institutions through which bourgeois culture is transmitted to each generation. Break the hold of the churches, take over the media, subvert the schools and universities, and chip away at the heart of the citadel, the bourgeois family, and eventually, the whole system will fall.

To see how empty this is, ask yourself this question, which of the following would the above not be an argument against?

(1) Equal rights for Jews.

(2) Equal rights for Catholics (in Protestant countries).

(3) Equal rights for Protestants (in Catholic countries).

(4) Equal rights for women.

(5) Abolishing slavery.

(6) Giving workers the vote.

(7) Abolishing racial segregation.

(8) All of the above.

(9) None of the above.

If you answered (8) all of the above, yes precisely.  If a civil rights struggle is safely in the past, then it becomes sanctified and “of course” conservatives do not want to go back and revisit it. But, the current civil rights struggle; that is a threat to the social order, just as all previous civil rights struggles were threats to the social order. Including, in yet another repeated trope from Jew-hatred, giving a small minority amazing corrupting power to bring down, or at least seriously threaten, the entire social order.

Civil unioned couple subverting the bourgeois order

Part of being conservative is having a sense of the fragility of social order. Likely too strong a sense; as Adam Smith famously observed, there is a great deal of ruin in a nation.

But that sense of the fragility of social order seems to often come with a notion that, unless the current limits are adhered to, there are no limits. Hence, for example, assuming that unless heterosexuality as a compulsory norm is accepted, somehow one ends up with bestiality. Hence also the notion of the enormous corrupting power of small groups. They are outside the set limit, so acceptance of their legitimacy destroys all limits.

Yet, one of the striking things about the various emancipation struggles is how society ended up working better, not worse, from their success.

There is no great mystery as to why. Not only are the talents of the group made much more accessible to the wider society, social resources are also no longer wasted repressing them. Moreover, the group in question then becomes invested in the existing social order, rather than alienated from it. The problem is not having a sense of the fragility of social order, the problem is thinking that social order requires people be confined in very unequal social cages. Again and again, this has proved to be flatly not true. The society conservatives were “defending” proved to be much more resilient, with far greater capacities for renewal, than they were willing to admit.

Contagious exclusion
But it is worse than that. Not only does the false belief in the “necessity” of unequal social cages cause a great deal of utterly unnecessary human misery, it also creates real dangers through the exclusion contagion effect; if you habituate people to the notion that there should be unequal social cages–that unilaterally morally and legally excluding people by category is fine–then there is no reason that you and yours will not end up on the losing side of that idea.  We can see that playing out in front of us as conservative Christians have begun to receive milder versions of the social (the moral and legal) exclusions that they have so long advocated and practised for queers. Conservatives who complain about the constraints on political correctness on them, but then insist on much more vicious constraints being imposed according to their sexual correctness, illustrate the point nicely.

But it has a much longer history than that. Jews wanting to oppress queers and pagans because they were against the message of God found themselves being repressed by Christians who–entirely agreeing with the Jews about the queers and pagans–then added the Jews into those to be repressed for being against God’s message made flesh in Christ. Then along came the conquering Muslims who–entirely agreeing with the Christians about the queers, the pagans and the Jews–then added the Christians into those to be repressed for being against the Messenger of God, Muhammad. A sense of history and its lessons should provide a sense of the dangers of unequal moral cages, of putting people into categories of moral exclusion.

So entitled
Which is precisely the sense of history that is lacking in so much conservative commentary. The same lack of a sense of history which talks of “the definition” of marriage as being between a man and a woman, completely failing to notice Biblical polygyny–but then, “the definition” of marriage as between a man and one or more women does not have quite the same ring to it. Add in Himalayan polyandry, and “the definition” of marriage as being one or more men and one or more women starts to really get out of hand. Add in the same-sex marriages and unions which were recognised by lots of cultures (including Amerindian cultures and Roman law) and one can see that the much touted “by definition” notion of marriage is simply the legacy of past imposed exclusions enforced through brutality. What has been going on in the drive for queer emancipation is not modern “decadence” but the withdrawal of the necessary enforcing brutality. Consequently, natural human diversity is openly re-asserting itself; particularly as lower transport and communication costs are making it so much easier for dispersed minorities to organise.

The notion that the social order requires unequal social cages entails a commitment to treat people badly and then sneer at them for attempting to change things so they are no longer treated in such a way. This can extend to sneering at them for voting for or supporting people who promise not to treat them like crap–such as sneering at gays for voting Green when that is the only significant political Party that stands forthrightly for equal protection of the law.

But, as the excluded have no legitimate perspective, they not thought of in these terms. Blaming them for seeking change is inherent in the way moral exclusion operates to relegate the excluded to being a separate moral species.

Underlying notions of moral exclusion is a massive sense of entitlement–particularly when in deciding who is, and who is not, a “proper” form of the human. After all, who do you think is entitled to declare you not a “proper” form of the human? If the answer is “no one”, then what gives you the monstrous sense of entitlement to do so to others?

Speaking from personal experience, you can tie yourself into knots trying to “prove” that you are a “proper” form of the human until you realise how monstrously improper the entire question is. Not only is it is based on the aforementioned massive sense of entitlement, but it is a question which is posed for no other reason than to oppress, repress and exclude.

Significance error
But part of what is going on is a deeply flawed vision of the past. The problem is not believing that the past can teach us; that is true. Given that there is no information from the future, we only have past and present experience to guide us. The problem is in failing to fully interrogate that past. The problem is not giving the past credence, doing so is simply sensible; it is giving the past (or at least the legacy handed down to us) a presumption of positive moral significance.

Ironically, constrained vision conservatives tend to make the mirror image mistake that unconstrained vision progressives do. Where the former tend to give the legacy of the past positive moral significance, the latter tend to give that legacy negative moral significance. But in loading that legacy with moral presumption, both outlooks block the learning that comes from intelligently interrogating the past; from giving it credence but not presumptive moral weighting.

St Dominic presiding over an auto-da-fe (or medieval commissar presiding over show trial).

Not coincidentally, both groups are attracted to notions of social purity and harmony, which are both ideals of conformity–and thus exclusion–where difference is profoundly stigmatised. In the extreme versions of these ideals, society is purified, and harmony achieved, by simply killing the disharmonous and impure. C20th manifestations of this–in the name of racial purity by the Nazis and class harmony by Leninists–have been characterised by conservative intellectuals as a sign of the “death of God” in Western culture. This is nonsense on stilts, because the notion that society is purified, and harmony with the purposes of God achieved, by killing a vulnerable minority is straight out of the natural law theology of Genesis 19 as developed by Philo of Alexandria and adopted so enthusiastically by Church fathers such as St John Chrysostom, patron saint of preachers via St Paul’s use of natural law terminology in epistles such as Romans. (That St John was such an enthusiastic preacher of Jew-hatred just illustrates the power of the contagion effect.) Purifying killing of members of vulnerable minorities is one of the founding ideas of clerical Christianity.

Natural law theory–with its notion that the form in the world and the form in the mind are the same and its use of the “no true Scotsman” fallacy where the conclusion gets to determine the ambit of its premises–provides both the “authority” to define the human and to exclude contradictory evidence, including contradictory experience, as illegitimate and perversion. Which is the authority to exclude from the “properly” human. (Hence the Vatican treating homosexuals as “objectively disordered“.)

That the greatest exponent of Christian natural law theory, St Thomas Aquinas, was a member of the same order that dominated the medieval Inquisition is not some weird coincidence. That error has no rights was the fundamental principle of both.

In order to see this contagion effect, however, one must not see the morally excluded as some sort of separate moral species the treatment of whom has no implications for “real” people. But the whole point of moral exclusion is to create such separate moral species, thereby blinding oneself to the implications of what one does.

(Still, equal protection of the law; how is this hard? How is it subversive?)

Either way, it is a matter of taking human experience seriously. Moral exclusion is based on massively discounting human experience. But so is failing intelligently to interrogate the past. That is why they march together so well.

 

*Note on terminology: By queer I mean anyone who is homosexual, bisexual, transsexualtransgender or intersex. That is, anyone who does not fit into the straight category of conventionally male or female and heterosexual. According to CDC data (pdf), queers so defined make up about 10% of the population. In a planet with over 7 billion people, that’s a lot of people. Even in the Anglosphere of the US, Canada, UK, Ireland, Australia and New Zealand, that is over 40 million people. Since these conditions are either congenital, or so near to such as to make little difference, it is impossible to have a queerfrei society as queers will just continue to be born. If you are so inclined, you will always have the queers to kick around.

97 Comments

  1. Nanuestalker
    Posted August 7, 2012 at 11:01 am | Permalink

    Marraige is not a civil rights issue. Legal acceptance of how one conducts oneself in the bedroom is not a civil rights issue. Quite simply, government shouldn’t be involved in the regulation of either.

  2. Posted August 7, 2012 at 11:04 am | Permalink

    Intellectuals are affronted by social institutions (such as free markets and monogamous marriage) that have evolved over hundreds or thousands of years without people like them ever having consciously invented or designed them.

    How can one make a ‘these things are good because they evolved’ argument and yet still be so stubbornly against further evolution?

  3. JC
    Posted August 7, 2012 at 11:53 am | Permalink

    How can one make a ‘these things are good because they evolved’ argument and yet still be so stubbornly against further evolution?

    Because of the argumenst Raimondo makes.

    Of course, we already have gay marriages. Just as heterosexual marriage, as an institution, preceded the invention of the state, so the homosexual version existed long before anyone thought to give it legal sanction. Extending the authority of the state into territory previously untouched by its tender ministrations, legalizing relationships that had developed and been found rewarding entirely without this imprimatur, would wreak havoc where harmony once prevailed. Imagine a relationship of some duration in which one partner, the breadwinner, had supported his or her partner without much thought about the economics of the matter: one had stayed home and tended the house, while the other had been in the workforce, bringing home the bacon. This division of labor had prevailed for many years, not requiring any written contract or threat of legal action to enforce its provisions.

    Then, suddenly, they are legally married—or, in certain states, considered married under the common law. This changes the relationship, and not for the better. For now the property of the breadwinner is not his or her own: half of it belongs to the stay-at-home. Before when they argued, money was never an issue: now, when the going gets rough, the threat of divorce—and the specter of alimony—hangs over the relationship, and the mere possibility casts its dark shadow over what had once been a sunlit field.

    If and when gay marriage comes to pass, its advocates will have a much harder time convincing their fellow homosexuals to exercise their “right” than they did in persuading the rest of the country to grant it. That’s because they have never explained—and never could explain—why it would make sense for gays to entangle themselves in a regulatory web and risk getting into legal disputes over divorce, alimony, and the division of property.

    Marriage evolved because of the existence of children: without them, the institution loses its biological, economic, and historical basis, its very reason for being. This is not to say childless couples—including gay couples—are any less worthy (or less married) than others. It means only that they are not bound by necessity to a mutual commitment involving the ongoing investment of considerable resources.

    From two sets of given circumstances, two parallel traditions have evolved: one, centered around the rearing of children, is heterosexual marriage, the habits and rules of which have been recognized and formalized by the state. The reason for this recognition is simple: the welfare of the children, who must be protected from neglect and abuse.

    The various childless unions and alternative relationships that are an increasing factor in modern society have evolved informally, with minimal state intervention. Rather than anchored by necessity, they are governed by the centrality of freedom.

    and it’s a pretty decent one.

    Your comment about further evolution in my mind is incorrect. Evolution doesn’t require an act of parliament to proceed.

    And by the way I really don’t give a toss about gay marriage one way or another for a host of reasons.

  4. JC
    Posted August 7, 2012 at 11:54 am | Permalink

    comment caught by spam

  5. TerjeP
    Posted August 7, 2012 at 1:33 pm | Permalink

    Not sure how the gold standard got dragged into this. I don’t see much correlation at all between gold standard advocates and same sex marriage opponents. I’m somewhat the former but definitely not the latter. Leave that distraction out and it’s a good article.

  6. Anna Winter
    Posted August 7, 2012 at 1:33 pm | Permalink

    This is a great post.

    I just got married a couple of weeks ago, and it has changed my view on marriage equality quite a lot.

    I’ve always been in favour of it, on the grounds that it doesn’t hurt anyone, there’s no good grounds for preventing it etc.

    But having just experienced a wedding, I am so much more passionate about the issue. Because no matter how much we wish it were otherwise, weddings are still a huge social event. It’s not a “private matter”.

    The opponents are right, marriage is a cultural institution. We had friends who traveled across the country for an overnight trip just to watch us exchange rings and dance to cheesy pop songs (plus cake!). There is almost no other event that so many people place that level of importance on.

    I wish we could do a better job of not making people feel like failures if they never marry. I wish we could allow people to make different choices without being considered less than, legally and socially. But that’s not the case yet, so how dare we exclude people from something that society treats with such importance?

    Sorry, end ramble.

  7. JB Goode
    Posted August 7, 2012 at 1:38 pm | Permalink

    I think your’e missing the point.By bestiality they are referring to children being denied a mother and a father.

  8. Moz
    Posted August 7, 2012 at 2:32 pm | Permalink

    John Scalzi, not Joe.

    [LORENZO: Fixed, an embarrassing error, I have own and have read several of his books.]

    Other than that, an edifying post.

    JC, many queers want to get married for exactly those reasons. My sister, for example, was legally just some random off the street as far as her children were concerned until the law was changed to recognise that (OMG!) lesbians might also have children, and a spouse, and like heterosexuals, might not necessarily be blood relatives of those children (I believe there’s been quite the revolution in how that happenstance is treated as well). The legal stupidity involved in saying to a child “don’t call her ‘mum’, she’s nothing to do with you, now let us throw you in an orphanage, you’ll be much better off there” is considerable. And it’s what those kids had to look forward to if her wife died. Because “the children!”, obviously.

  9. kvd
    Posted August 7, 2012 at 2:49 pm | Permalink

    JC@3 links to “The Libertarian Case Against Gay Marriage” which basically seems to say:

    a) don’t get married, because divorce is costly
    b) so we won’t let you get married, to protect you from this

    Hilarious. So I guess the libertarian case against going into business is that bankruptcy is a bitch?

  10. Posted August 7, 2012 at 2:57 pm | Permalink

    JC, a decent argument from a ‘libertarian basis’, really?

    If and when gay marriage comes to pass, its advocates will have a much harder time convincing their fellow homosexuals to exercise their “right” than they did in persuading the rest of the country to grant it. That’s because they have never explained—and never could explain—why it would make sense for gays to entangle themselves in a regulatory web and risk getting into legal disputes over divorce, alimony, and the division of property.

    Let’s ignore people’s stated choices and their reveled choices (when you look at jurisdictions that have legalised gay marriage) and let’s tell them they don’t really want what they think they want, they want what we think they should want. What an amazing libertarian argument.

    Also, the conceptualisation of marriage as a nuclear family with a sole breadwinner is rather dated for someone arguing about ‘evolving’ social institutions.

    Marriage evolved because of the existence of children: without them, the institution loses its biological, economic, and historical basis, its very reason for being.

    That sounds an awful lot like someone trying to ‘design’ marriage rather than letting it evolve along its own path. And that’s not to mention that the “argument” essentially has all the flaw Lorenzo’s post is pointing out.

    Evolution doesn’t require an act of parliament to proceed.

    Yet, as libertarians are always quick to point out, an act of parliament can prevent evolution (positive change/innovation/etc) from occurring. This is particularly so in cases where much has changed since the act was originally drafted.

  11. TerjeP
    Posted August 7, 2012 at 3:11 pm | Permalink

    Trust the lawyers to view marriage primarily as a contract. I don’t much want the government or the courts involved. For me marriage is a public ritual like swearing on the Bible. Like most rituals it’s purpose is to create a sense of meaning and occasion. If I merely wanted a joint property contract a trust would do.

  12. JC
    Posted August 7, 2012 at 3:21 pm | Permalink

    JC, a decent argument from a ‘libertarian basis’, really?

    Yep. The real struggle for liberty was preventing the cops and others thinking it’s perfectly okay to beat people up minding their own business and having laws preventing free association. That struggle was the Stonewall bar in NYC. Raimondo is right. In fact it’s a fanastic example of a libertarian uprising in similar form to the Boston Tea Party. It changed the world.. at least the West.

    What an amazing libertarian argument.

    That’s incorrect. At least I don’t see you’re points as having any relationship to those that Raimondo makes.

    That sounds an awful lot like someone trying to ‘design’ marriage rather than letting it evolve along its own path. And that’s not to mention that the “argument” essentially has all the flaw Lorenzo’s post is pointing out.

    Huh! Marriage always was organic evolution. It never required the state to interfere and that’s exactly the point the writer is making. Marriage, before the state decided to intrude was religiously based. That’s more accurate than you suggesting an act of parliament somehow lends gay marriage an evolutionary direction. That holds no mustard.

    The only libertarian position on hetro or gay marriage is for the state to remove itself from the business of recognizing relationships altogether. Anything else is just pandering.

  13. Posted August 7, 2012 at 3:27 pm | Permalink

    The Raimondo article is littered with basic factual errors. Marriage was controlled by the evolved law of contract in the two ‘feeder civilisations’ to Western Europe (Rome and Judaea). Placing it first in the hands of the Church and then the State was an explicitly Christian development that took in deliberately ignoring the wishes of those who formed the contracts in question (mainly women, but also queers). This phenomenon is an important part of Medieval history involving innumerable Church Councils and the worst sort of creeping statism.

    You will find (and LE will no doubt confirm the details) that Jewish marital contract law protected the ‘stay at home’ in Raimondo’s 1950s-style scenario from the 1st century BC. You will also find that Roman law provided for marriage by default after a year of cohabitation unless the parties otherwise provided from the 4th century BC.

    None of this information is particularly difficult to find. Read an introductory Roman law textbook. Ask a friendly local Rabbi (I did both!). I am getting heartily sick of people who want their own facts on this issue, because the errors are so embarrassing. There are many reasons to argue against state-defined marriage (like LE, I’m a fan of the law of contract), but here, Raimondo hasn’t made any of those arguments, mainly because he is utterly ignorant of the facts.

  14. Anna Winter
    Posted August 7, 2012 at 3:43 pm | Permalink

    The only libertarian position on hetro or gay marriage is for the state to remove itself from the business of recognizing relationships altogether. Anything else is just pandering.

    Pandering to whom? Even if that is your position, there’s no chance of the government removing itself from marriage in the near future, so refusing to expand current legal rights in the hope of a libertarian paradise some time in the imaginary future is a totally ridiculous cop-out.

  15. JC
    Posted August 7, 2012 at 3:55 pm | Permalink

    SL

    I believe ya. I believe ya.
    (I’m never going to read a Roman law text book. I can promise you that) :-)

    I think though, his point was that it was a formalization of what occurring organically in human culture of which the prime purpose was to raise kids. That’s about right.

    I think the strongest point he makes however is none of this. It’s the point to do with obligation.

    People supporting gay marriage are for the most part supporting it from a minority rights perspective. Fair enough. That’s an opinion and a pretty decent one too I might add. However if we’re going to start talking about minorities why stop there though. What about those gays who don’t want the obligations family law immediately brings and this is where he has a pretty decent argument. How about this and the fact to some people its not seen as a right but a sudden push to create fairly stringent obligations on a whole bunch of people that never wanted them in the first place. What their out

    Having said that I can’t see how anyone could really suggest gay marriage is anything close to resembling say Civil Rights in the US as there really wasn’t any formal legal obligations being placed on African Americans. They were already there. Civil Rights 100% freedoms based. So I can’t see any connection.

    If I knew what I know now about the legal obligations of marriage I would never have got married as the risk reward of basically losing up to 80% my property and a never ending stream of income would be a killer in my mind. The odds of failure are 50% and the pay out ratio is hugely negative for a man. Thank God I/we happily married and divorce hasn’t been an issue although threats of such occur at least twice a week since the day after we were married. :-)

    If I were gay I wouldn’t see gay marriage as rights being bestowed on me at all. if I were in a relationship I’d see it as a set of obligations on either myself or the partner depending who brought more resources to the relationship. In the event of an exit one of us would be skinned alive in the same way men generally are in a hetro marriage.

  16. JC
    Posted August 7, 2012 at 3:58 pm | Permalink

    Anna

    I don’t expect a libertarian paradise on earth. That’s just for the afterlife. I never suggested I expect it to happen either. I think you misread what i was saying.

  17. Anna Winter
    Posted August 7, 2012 at 4:03 pm | Permalink

    You’re saying we shouldn’t grant marriage rights to gays who want to marry, because the state should stay out of marriage completely?

    Which makes no sense. Why shouldn’t gay people who want to get married get married, as a compromise until we abolish marriage completely?

  18. JC
    Posted August 7, 2012 at 4:07 pm | Permalink

    JC, you haven’t answered my point that in order for contract marriage to work there has to be state interaction at one point: that is when it comes time for one party to the contract to enforce it (usually upon breakdown).

    LE

    I looked, where was your question directed to me?

    In the past we have basically case law dealing with divorce and very little statute. You could argue that even the exit was organically based as case law is a building process. Now it’s basically statute influenced by a bunch of people who I have little time for. Family law is the biggest anti male and commie redistribution racket ever inflicted on the West.

    I pity well to do gays gaining these wonderful set of new obligations that comes with the brand new marriage certificate.

  19. Posted August 7, 2012 at 4:10 pm | Permalink

    I find “the state should just get out of it” argument poorly thought through. One of the reasons the Latin Church got involved in marriage in the first place was so there was a single set of rules about which marriages counted and which offspring could inherit. In other words, to reduce transaction costs.

    There are also all sorts of legal standing issues–parenting, hospital access, property use, inheritance, super, pensions … Access to legal recognition is enormously simplifying and protective.

    As for “marriage is for offspring” it is, in fact, the other way around. A committed relationship is a sensible basis for parenting. Marriage does not get its nature from children, the parenting advantage of marriage comes from its nature as a declared mutual commitment. This is why marriage vows do not mention children and possible fertility is not a test for marriage.

  20. JC
    Posted August 7, 2012 at 4:11 pm | Permalink

    Anna.

    You’re saying we shouldn’t grant marriage rights to gays who want to marry, because the state should stay out of marriage completely?

    No. I said the libertarian position is the state removing itself from the marriage business.

    The issue to rights would then be redundant.

    You don’t need the state for a marriage contract. If it removed itself from the relationship business altogether there would standardized private contract that would spring up in 24 hours. Bells and whistles would obviously cost extra.

  21. Posted August 7, 2012 at 4:15 pm | Permalink

    JC@22 I believe you are missing the subversive possibilities for the pc brigade in dealing with family law issues where it’s two blokes or two sheilas :)

  22. Posted August 7, 2012 at 4:16 pm | Permalink

    JBG@7

    By bestiality they are referring to children being denied a mother and a father.

    Where is your evidence for that remarkable assertion?

  23. Anna Winter
    Posted August 7, 2012 at 4:23 pm | Permalink

    No. I said the libertarian position is the state removing itself from the marriage business.

    I understand that. But it doesn’t explain why libertarians would oppose the “compromise” of allowing anyone who wants access to the current set up to be allowed to.

  24. JC
    Posted August 7, 2012 at 4:30 pm | Permalink

    One of the reasons the Latin Church got involved in marriage in the first place was so there was a single set of rules about which marriages counted and which offspring could inherit. In other words, to reduce transaction costs.

    Yea perhaps because it was a cheap way to arrange a standardized contract in those days.

    There are also all sorts of legal standing issues–parenting, hospital access, property use, inheritance, super, pensions … Access to legal recognition is enormously simplifying and protective.

    You don’t think a standardized private treaty could cater for that?

    I actually find the idea that marriage is considered a right as both laughable and sad. Why the hell do we require the state to recognize who we’re associating with? We’re all just prostrating ourselves for recognition?

    As for access to those legal services, Lorenzo.. we have mortgage, lease, loan, property agreements that are fairly well standardized even away from the clutches of the state. I wouldn’t be too concerned with those things you mentioned being so too.

  25. JC
    Posted August 7, 2012 at 4:31 pm | Permalink

    But it doesn’t explain why libertarians would oppose the “compromise” of allowing anyone who wants access to the current set up to be allowed to.

    Some do , some don’t Most support it I think.

  26. TerjeP
    Posted August 7, 2012 at 4:34 pm | Permalink

    I think JC is right to point out the problems with marriage being foisted on those that don’t want it. I drew attention to this issue also when I wrote my same sex marriage article (some years ago) for the ABC.

    http://www.abc.net.au/news/2007-10-16/limited-govt-equals-freedom-for-same-sex-couples/700036

    Marriage is an ancient institution that transcends cultures, religions and nations. However with the rise of the welfare state over the last century governments have increasingly used marriage as an instrument of social engineering.

    They vary benefits based on marriage status. They scrutinise the tax affairs of individuals based on marriage status. And in recent years with the advent of “defacto marriage” the Government has taken to imposing the status of marriage on couples that have made no such commitment for themselves.

    So not only does the Government obstruct those that want to be recognised as married but it recognises people as married who don’t want to be.

  27. Hugh
    Posted August 7, 2012 at 4:40 pm | Permalink

    With respect, I’m not seeing how the Natural Law argument against same-sex marriage smuggles in the “No True Scotsman” fallacy.

    The Natural Law position, when it comes down to tin tacks, is this: the only morally acceptable completed sexual act is natural intercourse between husband and wife. Or to put it another way: the only completed sexual act which is a constituent element of human flourishing is natural sexual intercourse between husband and wife.

    When I say “constituent”, I mean: it’s necessary, but not sufficient. Natural sexual intercourse accompanied simply by, say, oral contraception (The ‘Pill’) will not suffice for human flourishing, not because it’s not an act of authentic intercourse, which it is (deposition of semen by the male directly into the vagina), but because, external to that act of authentic intercourse, there has been a rigging of the system with the intention of preventing the natural procreative consequences of that specific act from eventuating. (Condomistic intercourse, and further departures from natural intercourse, do not even get to base one.)

    Now, the natural law position does not gainsay that there might be all manner of sexual desires and pleasures which do not involve this act. It does not rule out that many “true humans” have all sorts of sexual desires. It’s not saying that if you have these desires, you’re not a true human – let alone a Scotsman. It’s saying, rather, that if you are to flourish as a human being, only this completed sexual act, out of all possible completed sexual acts, can contribute to that flourishing. Any other completed sexual act will be inimical to that flourishing.

    Obviously, this is a point of contention! But if natural law theory fails here, it is not because of a smuggled in “No True Scotsman” fallacy. It will fail because traditional law theory has incorrectly held that non-natural intercourse is inimical to human flourishing. That the “No True Scotsman” argument is fallacious, is tied up with the fact that there is no definition of a “Scotsman” that has been a priori and successfully proffered by the protagonist to be an essential definition. The “meta-fallacy”, if you will, of predicating the “No True Scotsman” argument of Natural Law theory in the debate about same sex marriage, is to take it that there is in fact no essential definition of humanity, and what constitutes human flourishing. I think there is. I accept that others don’t. And that’s where the point of debate needs to begin, not in a misty glen.

  28. Posted August 7, 2012 at 4:55 pm | Permalink

    Pandering to whom? Even if that is your position, there’s no chance of the government removing itself from marriage in the near future, so refusing to expand current legal rights in the hope of a libertarian paradise some time in the imaginary future is a totally ridiculous cop-out.

    This is Steve Horwitz’s position; Steve Horwitz is a distinguished Austrian school economist and economics writer for this journal:

    http://www.thefreemanonline.org/

    That’s about as libertarian as it gets. Another thing: I’m getting really, really sick of conservatives pretending to be classical liberals, and – as a corollary – of libertarians willing to put up with conservative shit. It’s like a bloody abusive relationship.

    Now, this:

    I think though, his point was that it was a formalization of what occurring organically in human culture of which the prime purpose was to raise kids. That’s about right.

    Actually, it isn’t. The sentimental ‘think about the children!’ we associate with modern family law is very… modern. The idea that children are worth more than the mother is very… Christian (with a bit of Judaism thrown in, but the evidence from that civilisation is all over the place, so I don’t wish to speculate too much).

    We associate bad treatment of children with the stereotypical images of kids down mines or up chimneys from the Industrial Revolution, but this was actually a vast improvement on what went before. In earlier times, rich people might want children (but not too many, they were still expensive, and they could kill the mother; that’s why so many early legal systems simply allowed the parents to kill unwanted children; the Romans were unusually humane in preferring abortion over infanticide, compared to other civilisations around them).

    Of course, the only reason for poor people to want children was as economic contributors to the family unit; the ‘care for me when I’m old’ trope only arises in filial piety cultures (Rome, Japan) with good adult life expectancy. If the adult life expectancy were poor, or the society were not particularly filial (much of Europe during the medieval period; Christianity broke the pagan Roman filial piety culture), then ‘care for me when I’m old’ went as well. It is only as economic contributor that children mattered.

    That’s why lots of societies forbade funeral rights for children under two (well, if a third of them die before the age of five, we should be careful about loving them too much). That’s why supposedly Christian medieval Europe had the myth of the Changeling (‘we killed it, but we’ll say the trolls took it’; or ‘it eats but doesn’t grow, so it must be a troll-child, so we’ll kill it anyway’). That’s also why there were riots in the wake of Factory Acts that forced children to stay at school (there was also a spike in infanticide during the same period, coupled with an almost universal failure to convict on the part of juries on said charges of infanticide). The Factory Acts dicked with what most adults considered children’s primary purpose.

    And I think you’ll find the ‘economic skinning’ that so many men complain about these days is a reflection of the historical reality. Having children often killed or beggared women; Christian-influenced marriage law made it easier for a man to walk away from his responsibilities with no financial comeback. You’ll find Jewish law and Roman law (that law of contract again) ‘skinned’ men just as hard as modern marriage law. Where it was better than much modern law was in its certainty: everything was front-loaded into the contract, and the marriage arose naturally from the contract (as opposed to a pre-nup, which is a contractual contingency plan: ‘only if the marriage fails, then x’). I suspect that the complaints of many men over this aspect of family law could be remedied if they only knew where they stood in advance.

    The effect of the two different traditions is illustrated in this case, which involves a Scots lawyer poking fun at the common law’s ridiculous uncertainty when it comes to family law. Scots law goes for Roman certainty over common law discretion:

    http://www.bbc.co.uk/news/uk-15651540

    The ‘claim’ that the Scots lawyer is talking about is, of course, brought in unjustified enrichment (the condictio causa data causa non secuta) – observation added for LE’s benefit.

  29. JC
    Posted August 7, 2012 at 5:02 pm | Permalink

    And I think you’ll find the ‘economic skinning’ that so many men complain about these days is a reflection of the historical reality. Having children often killed or beggared women; Christian-influenced marriage law made it easier for a man to walk away from his responsibilities with no financial comeback

    I’m not sure that’s how men thought about kids then and how they do in the present, SL.

    I tend to think that it’s a myth created that men somehow love their kids less and need the hammer of the law to made to look after them.

    I’m sure there are men like that as I think there are women like that too. But on the whole men want to look after their kids and love them.

  30. Posted August 7, 2012 at 5:08 pm | Permalink

    It will fail because traditional law theory has incorrectly held that non-natural intercourse is inimical to human flourishing.

    The similarity to the No True Scotsman fallacy is in the natural law attempt to define what is ‘natural sexual intercourse’ and the ‘human flourishing’ that flows from that.

    ‘But that’s not natural sex!’; ‘but that’s not human flourishing!’.

    I don’t think the two positions are identical, but both involve some very slippery reasoning at the outset, as with any system that has particular conclusions and then attempts to develop premises tailored to those conclusions.

  31. JC
    Posted August 7, 2012 at 5:11 pm | Permalink

    This is Steve Horwitz’s position; Steve Horwitz is a distinguished Austrian school economist and economics writer for this journal:

    http://www.thefreemanonline.org/

    Any chance of a direct link to the relevant stuff if you recall it. Thanks.

  32. Mel
    Posted August 7, 2012 at 5:14 pm | Permalink

    Right-Libertarianism is in my view pretty much the “me, now!” branch of conservatism. Other than right-libertarians who happen to be gay or female (and only then because of a self-interested alliance angle), the gay marriage issue hasn’t gained traction in libertarian circles for this very reason. Of course there are some commendable exceptions, such as SL.

    Raimondo, who is gay, has an awful lot of “complicated luggage”. He has, for example, supported and aided a veritable conga line of gay hating GOP figures, for example Pat Buchanan. Remember Pat? He’s the guy who kept complaining about the homosexualist agenda of the evil Bill Clinton.

    The Muslim Brotherhood in Egypt has a female spokesperson who has complained about women organising demonstrations in support of action against the military members who raped women during the Egyptian uprising. Apparently good Muslim women do not demonstrate, not even against rape. Characters like this female Muslim Brotherhood spokesperson and Raimondo, a willing mouthpiece for the Christian Taliban (Republican Party) are, IMO, acting in the same way and probably for the same reasons, that is, internalised self-loathing and something that resembles Stockholm Syndrome. False consciousness is probably another reasonable description.

    Raimondo needs therapy. I hope he gets it.

  33. Posted August 7, 2012 at 5:15 pm | Permalink

    But on the whole men want to look after their kids and love them.

    I think that this is true of both sexes now, too.

    I’m not sure that it was true of both sexes historically, however. Maybe more for women, but only up to a point. The shift in the status of children is one of the great changes of modernity.

  34. Posted August 7, 2012 at 5:18 pm | Permalink

    JC: Steve is speaking on the issue here (I’m going along, so will report back).

    http://www.iea.org.uk/events/an-occasional-lecture-capitalism-and-the-family

    And a more specific piece on the point Anna raises:

    http://www.thefreemanonline.org/headline/the-other-principle-of-classical-liberalism/

    On the other side are those like me who — while agreeing that the long-term goal is separation of marriage and State — argue that, given the slim chance of separation happening any time soon, classical-liberal principles require the State to treat all citizens as equal before the law. [...] We cannot avoid making judgments about how governments should act. Our own tradition as libertarians points to how to do this: Government must treat all its citizens equally, and nothing paid for with tax dollars may involve invidious discrimination. It would be wrong on classical-liberal grounds for a government to refuse to pay Social Security to nonwhites even though we think Social Security is an illegitimate use of government power.

    The same is true of same-sex marriage. If government grants certain privileges to those who are married, it must grant them equally to all its citizens who wish to marry. In the same way that prohibitions on interracial marriage were wrong on libertarian grounds, so are the prohibitions on same-sex marriage. There is no credible evidence that legalizing it would harm innocent third parties, and there is no relevant functional difference between same-sex marriages and many of the marriages the State now licenses for heterosexuals. For example, many individuals who simply love each other and wish to make a life-long commitment but who do not wish or are unable to have children are issued marriage licenses.

    Finally, it would also be wrong for governments to compel private religious organizations to perform same-sex marriages or to dictate whom private business must serve. The State must not discriminate, but individuals and private organizations should retain their rights of association.

    In the case of same-sex marriage, letting the perfect be the enemy of the better would require that we tolerate true injustice. Libertarians should proudly support what the New York State Assembly has done. It is true to the oldest of our principles.

  35. JC
    Posted August 7, 2012 at 5:28 pm | Permalink

    He has, for example, supported and aided a veritable conga line of gay hating GOP figures, for example Pat Buchanan. Remember Pat? He’s the guy who kept complaining about the homosexualist agenda of the evil Bill Clinton.

    He’s also supported Ralph Nader for the presidency over Al Gore which was a commendable decision on Raimondo’s part and in fact I was also intrigued a little by Nader to actually listen to him in the 2000 election as he had quite a few sensible policies. The American Green Party in the 90′s was about 23.7% half way sensible.

    Raimondo was a follower of Murray Rothbard, which means it puts him on the outer edge of sanity.

    But so what? The kid’s been around the paddock a lot.

    Your ad homs don’t deter if he’s making a good or bad argument here.

    Remember Pat? He’s the guy who kept complaining about the homosexualist agenda of the evil Bill Clinton.

    Link please.

  36. JC
    Posted August 7, 2012 at 5:32 pm | Permalink

    Thanks SL

    That’s a pretty eloquent argument he’s putting up and pretty persuasive in lots of ways.

    He also misses the obligations angle raised earlier which I do think is important and why it can’t be compared to other historical minority rights campaigns.

  37. JC
    Posted August 7, 2012 at 5:38 pm | Permalink

    JC@22 I believe you are missing the subversive possibilities for the pc brigade in dealing with family law issues where it’s two blokes or two sheilas :)

    lol

  38. Hugh
    Posted August 7, 2012 at 5:56 pm | Permalink

    SL, thanks, but I disagree. The natural law argument – at least in the Catholic tradition – has been pretty consistent as to what constitutes natural sex – ie, penetration and deposition of semen ‘intra vas’.

    Thus, condoms have been around for a long time. Aquinas seems to have been aware of them if you read him closely, and condemns them. There are some contemporary ‘orthodox’ Catholic theologians who dispute the classification of condomistic sex as unnatural intercourse – foremost Fr Martin Rhonheimer, (Opus Dei) – but I think his arguments, insofar as they are coherent, are bogus and will be happy to dispatch them if invited.

    And the argument as to genuine human flourishing? Well, we may disagree about specifics, but can we agree that it’s never been about pleasure, sexual or otherwise? Socrates/Plato and Aristotle were adamant about that.

    P.S. This is a great blog. I’m a very Traditional Catholic, but despite our important disagreements on specific issues, it’s well and truly in my prayers.

  39. Posted August 7, 2012 at 6:09 pm | Permalink

    And the argument as to genuine human flourishing? Well, we may disagree about specifics, but can we agree that it’s never been about pleasure, sexual or otherwise? Socrates/Plato and Aristotle were adamant about that.

    Be careful of falling into getting into ‘ship of state’ territory or defining what is good or pleasurable to the exclusion of other things that are good or pleasurable. People are capable of walking and chewing gum at the same time, or at different points in life. I have been pretty hedonistic at various times of my life (and modern science and contraception has indeed facilitated that). At other times I’ve been pretty hot on the pursuit of knowledge, or work, and self-discipline (I’ve played a lot of sport, some to a pretty high level).

    I actually think Finnis is a better guide on this point than either Plato or Aristotle, and while Finnis would disagree with me on the same-sex marriage issue, he was very careful to point out that his 7/8 basic goods will be ranked differently by different people, that people will have different priorities, and that life is too short to engage in all equally, etc.

    Also, consistent maintenance of a position over time doesn’t make it right, while a great deal of early natural law claims have been disproved (‘no homosexuality in nature’ being a biggie). To my mind, you actually have to prove your case if you are going to make positive claims for what is natural and then seek to legislate accordingly. If you can’t, then your case has an extremely awkward first premise problem.

  40. Mel
    Posted August 7, 2012 at 6:19 pm | Permalink

    Hugh @42:

    “I’m a very Traditional Catholic … ”

    What amuses me is that what constitutes a “very traditional Catholic” changes with each and every generation. I presume you baulk at the very traditional four just titles of slavery, for instance.

  41. kvd
    Posted August 7, 2012 at 6:22 pm | Permalink

    It’s saying, rather, that if you are to flourish as a human being, only this completed sexual act, out of all possible completed sexual acts, can contribute to that flourishing. Any other completed sexual act will be inimical to that flourishing.

    The first sentence seeks to define “human flourishing” as procreating. I don’t accept that. The second (i.e. last) sentence in using the word “inimical” a) does not logically follow, and b) is simply insulting.

  42. Posted August 7, 2012 at 6:24 pm | Permalink

    JC,

    It’s the point to do with obligation… Civil Rights 100% freedoms based.

    The freedom to voluntarily to enter into an agreement with someone else and have that agreement create legal obligations is a pretty fundamental freedom. Unless you have a problem with the law of contract…

    The only libertarian position on hetro or gay marriage is for the state to remove itself from the business of recognizing relationships altogether

    I’m pretty open to the idea of deconstructing the state formulation of marriage and base it in contract. However I do think there needs to be some form of legislative framework to ensure the common cultural norms of marriage for the two individuals involved are appropriately incorporated as implied terms. I’m not sure attempting to have every couple incorporate every detail of every possible outcome of the relationship into a contract is a particularly feasible option, or even to assume they’ve be consciously considered (as opposed to subconsciously assumed) as part of the marriage process.

    Although maybe it’d do something for the divorce rate if people were forced to negotiate these terms with their partners beforehand…

  43. Hugh
    Posted August 7, 2012 at 6:34 pm | Permalink

    SL, thanks again.

    I’m very partial to John Finnis. In fact, I worked for him for a couple of years (in the sense that he was on the board of the organisation I worked for, and have had several conversations with him over the years) and he has my utmost respect as a human being and a thinker. But I think you’ll find his contretemps with Martha Nussbaum definitive of what his stance is in this area.

    I totally agree that consistency over time re. a position doesn’t make it right. But attending to consistency over time will expose a “True Scot” fallacy, since that argument does import some sort of inconsistency over time. Or at least, manufactured consistency, no?

  44. Posted August 7, 2012 at 6:40 pm | Permalink

    TerejP,

    I think JC is right to point out the problems with marriage being foisted on those that don’t want it.

    Did I miss something? When did this issue become about forcing homosexual people to get married?

  45. Posted August 7, 2012 at 6:43 pm | Permalink

    Although maybe it’d do something for the divorce rate if people were forced to negotiate these terms with their partners beforehand…

    This was the view of the Roman jurists, although there were quite a few defaults that came as standard in a Roman marriage contract. Some of these could be contracted around (the requirement for female monogamy, for example, was often contracted around, for religious reasons), but some couldn’t (a woman always kept her dowry, and in a liquidation/bankruptcy, dowry moneys took priority, even over secured creditors).

  46. Posted August 7, 2012 at 6:50 pm | Permalink

    desipis, I think Terje’s talking about the tendency to treat the arrangements made by cohabitants as marriages, when – at least some of the time – the couple in question have very deliberately chosen not to marry. Scots and Roman law get/got around this problem by having contracts of cohabitation, but both the Romans historically (and Scotland until very recently) imposed marriage on cohabitants who hadn’t married (and hadn’t contracted otherwise) if they satisfied certain time and publicity requirements. It was called ‘marriage by habit and repute’.

  47. Posted August 7, 2012 at 6:56 pm | Permalink

    And I think you’ll find the ‘economic skinning’ that so many men complain about these days is a reflection of the historical reality.

    We’ve just been covering the difference between contracts and torts when it comes to damages in my contract class. Having not yet done any family law, it does make me curious about the theoretical basis used for alimony and divorce settlements.

  48. Posted August 7, 2012 at 7:15 pm | Permalink

    SL@50,

    Yes, but as I understand it same sex couples are already covered by legislation that imposes obligations on de facto relationship. I don’t see how opening formal marriage to same sex couples would affect these imposed obligations. I can certainly understand the libertarian objection to imposing significant obligations on de facto relationships, but to me they seem like separate (although related) issues.

  49. Posted August 7, 2012 at 7:28 pm | Permalink

    Also (back to Lorenzo’s original article, which got rather forgotten in the ensuing discussion):

    1. Thanks for an excellent piece; as always, wonderfully thought-provoking.

    2. I’m afraid I part company with ‘privilege’ arguments, and even though I like Scalzi’s piece, I think invocations of privilege are intellectually sloppy unless overlaid with a lot of Rawls. Whether Scalzi realises it or not, he is actually making a Rawlsian ‘veil of ignorance’ argument: what sort of society would you make if you didn’t know anything about the position you would have in that society – your sex, race, class, attributes, etc?

    Rawls’s argument keeps everything on the individual level: some people have it easier than other people some of the time. Sometimes this is because of their race or sex or another attribute. Sometimes it isn’t. The point is that the law should not make it easier or harder for people to participate in that society based on a characteristic over which they have no control. Sex and race and sexuality are obvious ‘characteristics over which one has no control’, at least in the US, but in Britain – the most socially immobile of all developed countries – wealth and class (particularly the latter) are more important than race or sex.

    A black female Oxbridge graduate wins over a white male of any sort – even another Oxbridge graduate – thanks to a combination of class, education, and scarcity. If she were to invoke a ‘check your privilege’ argument (as I see routinely on feminist blogs) when debating a man, then she would be engaging in a monstrous evasion. I am a white female Oxbridge graduate. The advantage is conferred by Oxbridge, and not undermined by my sex. Now, maybe this is different in the US (and I admit that most of the silliest privilege arguments I see are on US sites). Maybe Harvard or Yale is not as big a deal as being black or female. It may be one of those things where the US and Britain are just different. But the basic problem remains: if you are a woman, or gay, or black, and arguing with a man and then tell him to ‘check his privilege’ without knowing a great deal about him – especially in Britain – you are engaging in a perverted sort of groupthink where all people who share a particular characteristic (in this case, male genitalia) have identical advantages over you. This is patently bollocks.

    Scalzi’s piece avoids this by taking individuals into account, which is why I like it. But that does not avoid the intellectual sloppiness behind privilege arguments (which is perhaps why, sensibly, Scalzi chose not to use the word).

  50. Posted August 7, 2012 at 8:14 pm | Permalink

    H@31

    the only completed sexual act which is a constituent element of human flourishing is natural sexual intercourse between husband and wife.

    What makes it ‘natural’? Clearly, it is not defined by what occurs in nature. So, pointing to oral and anal sex in nature, gets the “but that is not natural sex” response. Looks awful like the “No true Scotsman”.

    According to “the nature” of the thing perhaps? But how do we tell its nature? Again, not by looking at how sex is used in nature. Again, looks awful like the “No true Scotsman”.

    Claiming that the purpose of sex is reproduction? But how do we tell that? By ignoring any uses in nature other than reproduction.

    Why is the term natural used at all? For that nature is not defined by looking at the phenomenon of sex, but by excluding any aspect of the phenomenon of sex that does not accord with reproduction. Still looks like “No true Scotsman”.

    How about “human flourishing?” How is it possibly “human flourishing” to tell quite large numbers of people they cannot have a sexual relationship no matter how much they love and desire each other? By ignoring all the misery caused by such a narrow view of human flourishing. Why does not that misery count? Again, looks like “No true Scotsman”.

    Again and again, the conclusion gets to determine the ambit of its premises.

    As for:

    It’s not saying that if you have these desires, you’re not a true human

    I am sorry, that is precisely what is being claimed. First, your aspirations, wishes, etc do not count. Such exclusion from “proper” humanity is profound.

    Second, when the Vatican declares that:

    Although the particular inclination of the homosexual person is not a sin, it is a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination itself must be seen as an objective disorder.

    there is a real sense in which you are classed as not a “proper” human, for proper humans are not “objectively disordered”.

  51. Posted August 7, 2012 at 8:18 pm | Permalink

    H@31 The easiest way to tell what rot the claim about “human flourishing” is, is how much happier people are when they accept their non-heterosexuality. But, of course, that repeated experience of becoming much happier, settled, etc does not count. It is not “true human flourishing”.

  52. Posted August 7, 2012 at 8:26 pm | Permalink

    SL@53 Thanks. The difference between advantage:

    Any condition, circumstance, opportunity or means, particularly favorable to success, or to any desired end. …
    Superiority of state, or that which gives it; benefit; gain; profit; as, the advantage of a good constitution.

    and privilege:

    A peculiar benefit, advantage, or favor; a right or immunity not enjoyed by others or by all; special enjoyment of a good, or exemption from an evil or burden; a prerogative; advantage; franchise; preferential treatment.  
    The status or existence of such benefit or advantage.

    is certainly one to keep in mind.

  53. Mel
    Posted August 7, 2012 at 8:31 pm | Permalink

    Anna Winter @6:

    Congrats on the marriage. I hope all your dreams come true and you live happily ever after. I also hope you’re putting that very sharp mind of yours to good use ;)

  54. Pusio Ladd
    Posted August 7, 2012 at 8:37 pm | Permalink

    I wonder how many of these self-styled ‘libertarians’, using the anti-statist shtick to oppose gay marriage, are themselves married in accordance with state requirements? Until they start restricting their own marriage activities to a church blessing only, and not then running off to the state for its blessing, I think we can dismiss any libertarian anti gay marriage arguments.

    And then, there are these Darwinian augurists nattering on about “the purpose”, “design”, and allegedly uncomplicated and uninterrupted history of marriage. Even if that nostalgia has some truth, the fact is the conditions surrounding “necessity’, “purpose”, “reason”, and “custom” started dying not long after Darwin got back from the Galagapos Islands, and is now forever passe. Now with polymerase chain reaction technology, the coffin closes on the ‘always has, always will be’ crowd.

    We are equally beyond pining of those gender glory days of sine manu marriage, ancient Roman style. The gulf between 2012 and 12AD makes any comparison not very helpful. With per capita GDP over $60,000; a culture where just about everybody who wants to work at well-paying jobs, can, and does; women can control their fertility cheaply, and buy a car without having to rely for hubbie’s housekeeping money, while she waits for her paterfamilias to pop off; our wealth is so extraordianry that the umemployed, ill, disabled, and old do not have to wait for the alms of the emperor – grain to be shipped from Egypt – before they can eat. The ‘dole’ is transmitted straight to their bank accounts.

    In fact, when you think about it, the very weakest arguments supporting male-female only marriage are those arguments from ‘purpose’/'history’/'necessity’ and so on. In 2012, those conditions are long gone.

  55. JC
    Posted August 7, 2012 at 9:58 pm | Permalink

    The freedom to voluntarily to enter into an agreement with someone else and have that agreement create legal obligations is a pretty fundamental freedom. Unless you have a problem with the law of contract…

    You’re missing the point. In relation to Raimondo’s argument the issue of obligation carries weight because as far as I can tell the US hasn’t legislated defacto laws applying to same sex couples, The Family Law industry imposed defacto laws on SSC here about a year ago. Great work.

    The issue of contract law and obligation is pretty much redundant here now anyway. However it isn’t in the US.

  56. Hugh
    Posted August 7, 2012 at 10:18 pm | Permalink

    Lorenzo,

    A clarification: when I used the term “natural” I wasn’t investing it with any moral sense. I was merely intending it to refer to sexual intercourse in the straightforward case of a man and woman doing the act that is done to unite themselves and, hopefully, conceive children thereby. I wasn’t trying to invoke “nature” as a moral paradigm, being aware that “some spiders eat their mates after sexual congress, so that’s natural and OK, too etc –” I’m sure you’ve seen the arguments down that track.

    So this attempt to liken the natural law/Catholic position to the “No True Scotsman” argument fails. But come up with a magisterial “True Scotsman” – like shifting of the goalposts in the last 2000 years of Catholic moral theology (and Jewish moral theology before that) for completed sexual acts other than natural intercourse as I’ve specified above, and I’ll be very surprised … but I’ll concede the argument.

    “I am sorry, that is precisely what is being claimed. First, your aspirations, wishes, etc do not count. Such exclusion from “proper” humanity is profound. “

    The Christian account is otherwise. Since the Fall, all humans, except Jesus and Mary, are intrinsically beset with faults and temptations from conception. (Jesus and Mary were afflicted with external temptations, but not internally, as original sin and its effects did not touch them, for differing reasons.) As Prof. Janet Smith puts it, we are all of us sexually disordered and it’s just a question of in what way and to what degree that happens. (Of course, we are disordered in a myriad other ways as well.) All of our aspirations and wishes “count”, but some of them are not appropriately followed through. A very commonplace example: a married man might fall hopelessly in love with a woman at work. Do those feelings count? Of course they do. But his appropriate response is to accept that they’re real – not deny them – to transcend them, and honour the promise of lifelong fidelity he made to his wife. In some cases, that will be an heroic enterprise, but all married men in his situation are called to do likewise, and thus flourish as human beings.

    Less commonplace but nevertheless all too frequent examples: alcoholism, kleptomania, or paedophilia. Genuine human beings experience these objective disorders. The Church has never alleged that the victims of such are less human on this account. In fact an alcoholic, Matt Talbot, was canonised a saint a few decades ago. And I have no doubt that quite a lot of saints had sexual disorders which were acknowledged by the Church even as She raised them to the altar; St Margaret Cortona, for example.

    All of us are afflicted human beings – we all have tendencies to serious moral faults of one kind or another, even as we are naturally endowed with virtues. Those with inclinations to same-sex genital relations are no less human than those with temptations to adultery or fornication, or solitary sex. We’re all in this together and can help each other with prayer and genuine companionship. That’s what the Church and natural law contend. I know I need it desperately to stay on the right path.

    I appreciate your manifest integrity.

  57. Pusio Ladd
    Posted August 7, 2012 at 10:27 pm | Permalink

    I think JC’s push-back arguments here are valuable. If I read him correctly, he is saying ‘gays, be careful what you wish for…’. I personally agree with this view. But I arrange my private affairs accordingly. That is a completely different attitude than simply denying support to those who do want what we might think they should avoid.

  58. Hugh
    Posted August 7, 2012 at 10:39 pm | Permalink

    [email protected]:

    As far as I can see, you’re wrong on both counts, but I could be wrong so feel free to point this out.

    As to the first sentence, I go out of my way to carefully say that, supposing you are to engage in sexual acts, then the marital act (natural sexual intercourse between husband and wife) is the only completed sexual act which contributes to human flourishing. I’m not saying that the only way to flourish humanly is to engage in procreative sex, or sex of any kind, for that matter.

    The second sentence thus logically follows from the first properly interpreted, and, if the thesis is true (which I didn’t purport to prove by mere assertion), is, far from “insulting”, liberating.

  59. Mel
    Posted August 7, 2012 at 10:47 pm | Permalink

    Hugh,

    It would help if you defined “human flourishing”.

  60. Hugh
    Posted August 7, 2012 at 10:53 pm | Permalink

    Mel @ 44: thanks. As a very traditional Catholic, I’m aware of the “notes” attached to Catholic teaching, and that slavery, in the sense that it’s commonly understood today, has never been solemnly taught as acceptable by the Magisterium. This is an old – not entirely unreasonable – argument, but one that has been answered, as research via the internet will reveal.

  61. Mel
    Posted August 7, 2012 at 11:01 pm | Permalink

    Hugh @64: how does “solemnly taught” differ from “taught”? I am unable to follow what you mean if you adopt eccentric prose.

  62. Posted August 8, 2012 at 12:11 am | Permalink

    Just a note: Pusio Ladd is Greenfly, unwelcome on this blog.

    On other matters: unless people are willing to substantiate their claims, I’ll just invoke Hume and send you all home. Hugh may need the Church ‘desperately’ for guidance, but I don’t. Nor, so far as I’m aware, do Lorenzo and LE. Be very careful of substituting what you need for what you think others need. That process doesn’t tend to end well, for anyone.

  63. Movius
    Posted August 8, 2012 at 2:12 am | Permalink

    Anyone familiar with the history of unequal legal standing recognises this one: it is the “wait your turn” response. And, strangely, it turns out never to be “your turn”, there are always more urgent matters. It is, of course, a nonsense view of social action, as if there is a single set of priorities that everyone must follow and things can only be changed or approved in a single sequential order. It is a way of dismissing the group seeking equal treatment as “clearly” morally deficient because they do not have “proper” moral priorities.

    Hear! So much time is wasted waiting for the “least worst options” of the world to do something useful.

    Personally I would prefer private marriage that is seperate from the state other than legal enforcement of the contract, as this completely sidesteps the need to argue over what is and isn’t a marriage. I think the notion of assigning special rights and magical powers to those who are married is an antiquated notion of the past.

    BUT, I haven’t seen any serious negatives with the proposed ‘marriage equality’ changes, when compared to the current system, and anyone actively opposing or inhibiting (like saying you support said change without actually doing any supporting,) should be ashamed of themselves.

  64. Posted August 8, 2012 at 4:11 am | Permalink

    H@61

    when I used the term “natural” I wasn’t investing it with any moral sense. I was merely intending it to refer to sexual intercourse in the straightforward case of a man and woman doing the act that is done to unite themselves and, hopefully, conceive children thereby.

    Then why call it ‘natural’? Presumably because it instantiates the nature of sex–but that just moves it back to what makes it the “nature” of sex?

    we are all of us sexually disordered

    Yes, I am aware of this ludicrous and offensive evasion. It justifies treating people in profoundly unlike ways by claiming a common flawed nature.

    Of course morality binds us all, that is not at issue. It is to define ‘morality’ in a way which makes the mechanics of sex ludicrously important. In a way which means lumping what is clearly natural human diversity together as pathological; so that alcoholism, adultery and paedophilia all get analogised to homosexuality. Which is either insulting, condescending or both.

    And read the Vatican statement again; homosexuals are clearly being picked out in a way which profoundly differentiates their nature from other humans.

  65. kvd
    Posted August 8, 2012 at 4:49 am | Permalink

    Hugh@63 thanks for a response. Perhaps if you addressed Mel@64 that might clear up some confusion?

    Your comment@31 was your attempt to state what the ‘Natural Law’ position is. I do not accept the qualifiers imposed within those statements. If this sets me at odds with your interpretation, then I can live with that. You then went on to state that any other sexual act is ‘inimical’ to human flourishing. You are most welcome to hold this view, but again I differ.

    And finally, lack of reason or logic, however couched in polite terms, is just that.

  66. su
    Posted August 8, 2012 at 10:13 am | Permalink

    I think that one reason that the state will always want to have a stake in marriage is that it has a fairly powerful association with decreased antisocial and criminal activity amongst men and the effect seems to be at least partly causative.

    I saw a comment by Francis Maude to the effect that acknowledging gay relationships and encouraging gay marriage is actually a profoundly conservative idea, in the sense that it promotes social stability, which is also, I think, why there are a subsection of people from the left end of the spectrum who oppose gay marriage. So that stuff about this being symptomatic of a Gramscian march through the institutions does seem to have it almost completely backwards, except that I suspect that both things can be true; society will indeed be profoundly changed (for the better obvs), but not in a chaotic, destructive way as marriage exerts its quietening effect and enhances social cohesion.

  67. Posted August 9, 2012 at 5:14 am | Permalink

    JC@28

    You don’t think a standardized private treaty could cater for that?

    Not where recognition by others is required.

  68. JC
    Posted August 9, 2012 at 10:24 am | Permalink

    Not where recognition by others is required.

    Why?

    I’m no a lawyer and can’t recall the certificate of marriage I signed. I presume it either makes a reference to the marriage act or has an identification referring to back to the marriage act.

    If there is no act then I don’t require it to be recognized by the general community as long as it’s recognized as a legal agreement and would stand up in court.

    Incidentally, I do take your point either on this thread or elsewhere that adopting gay marriage could correct the terrible interference that’s been visited on marriage by the state over the years to the point where men should run a mile from even thinking about marriage.

  69. Posted August 9, 2012 at 3:00 pm | Permalink

    JC@73 But you need acknowledgement of visiting rights, parenting rights, etc. Two people can make any contract they like (within the normal limits), but that binds only them. There is a whole lot of interactions with outsiders that also matter.

  70. Moz
    Posted August 9, 2012 at 7:43 pm | Permalink

    JC, Lorenzo: and there are a whole lot of presumptions that are very hard or even impossible to override. Some legal, some social. Try getting the birth family out of an organ donation decision, for instance. Your only chance is a legally married spouse with very strong opinions who is in the hospital very quickly. Medical decisions are the obvious time when marriage counts – another example is the numerous queers have been summarily booted from the deathbed by phobic birth families. But it’s also the ridiculously mundane stuff as well. Who signs the consent slip for your kid to go on an excursion? Who pays for the name change? Who gets to be a bride?

    I went to some lengths when I was younger to try to work around my mother’s desire to see me tortured for as long as (in)humanly possible if I were injured. If I could have got married that would have solved 90% of the problem very cheaply. Instead I spent more money on lawyers that I couldn’t really afford before effectively giving up (enduring power of attorney, but they have been successfully challenged before). Why couldn’t I get married? Partner had the wrong genitalia.

  71. JC
    Posted August 9, 2012 at 9:20 pm | Permalink

    Lorenzo

    I hear you. But here’s the problem in my mind. 40% or 50% of marriages end in divorce. In every single case possibly without exception the male is fleeced to the point where there’s an 80% asset confiscation and alimony will mean an effective tax rate of 75% to 80%. In lots of cases the man is requested to leave the home he has a mortgage for and the ex is able to legally cohabitate with a live in lover. Keep in mind the husband is paying the mortgage.

    Everything you say is true. However it’s a balancing act.

    Since heavy duty involvement of the state, marriage has been turned into an anti male thing and like 90% of what government touches it’s turned it to crap. Midas in reverse.

    On a cost benefit basis and even if measured on a social satisfaction index marriage disestablishment would tend to create many more happier people. Those issues you raise could be solved and still get the government out of the relationship business.

    Read some of this, it really well worth it.

  72. Movius
    Posted August 9, 2012 at 11:05 pm | Permalink

    L@74 Why do those things need to be associated with marriage? for example: Why not a generic government form for declaring visitation rights in case of injury to yourself?

  73. Posted August 10, 2012 at 7:09 am | Permalink

    M@78 Because, particularly in emergency situations, identified generic status makes life a lot easier. It’s that lower transaction costs thing.

  74. Jonathan Ray
    Posted August 10, 2012 at 10:10 am | Permalink

    Part of being conservative is having a sense of the fragility of social order. Likely too strong a sense; as Adam Smith famously observed, there is a great deal of ruin in a nation.

    But that sense of the fragility of social order seems to often come with a notion that, unless the current limits are adhered to, there are no limits.

    So, essentially, conservatism is a slippery slope to making slippery slope arguments. We must go deeper.

  75. Posted August 10, 2012 at 11:53 am | Permalink

    JR@80 Don’t think conservatism has to be such, merely that there is sometimes a tendency to be such.

  76. Mel
    Posted August 10, 2012 at 12:11 pm | Permalink

    I also think there is a useful distinction to be made between conservative and right wing populist. Many folk who call themselves conservative tend more towards the latter. IMO, someone like Harry Clark is the former while Andrew Bolt is the latter. As an example, I don’t see how bizarre conspiracy theories about Gentle Machia could ever be considered conservative.

  77. Posted August 10, 2012 at 5:08 pm | Permalink

    As an example, I don’t see how bizarre conspiracy theories about Gentle Machia could ever be considered conservative.

    Boom.

    That’s why the Saunders piece, in some respects, struck me as a libertarian aping what he considered conservative attitudes, and missing the mark. I say this because (and this is a very widespread problem at the moment), libertarians – who as a group used to be noted for their skepticism and rationalism, hence people like Penn & Teller or Michael Shermer – have suffered quite the invasion of the tinfoils of late.

    I am a member of quite a few libertarian discussion groups, and those of us in the Penn & Teller/Shermer/Goldwater/Rand/Sowell tradition have had to spend an enormous amount of time fighting off the most ridiculous conspiracy theories. Chemtrails. Flouride. Staged shootings (including the most appalling stories about Aurora), Birthers (including a truly disgusting piece from Wayne Allyn Root, a former Libertarian presidential candidate educated at Columbia, no less). This piece from Reason catches the extent of the problem:

    http://reason.com/blog/2012/08/06/wayne-allyn-root-is-why-the-libertarian

    Because so few people in the US are clear on the distinction between a libertarian and a conservative, this nuttiness has colonised the Tea Party movement and the GOP, making both a laughing stock not only to outsiders but also to many people in their own movements/traditions. Conservative values like prudence, courtesy, and caution have been excised in their entirety, and the whole business has turned into an undignified scrap for the levers of power – on all sides.

  78. JC
    Posted August 10, 2012 at 5:45 pm | Permalink

    SL

    When they aren’t throwing a hissy fit because they weren’t recognized for their brilliance in the GOP primaries like Gary Johnson (who is now running as the Libertarian Prez candidate to spoil Romney’s chances in the election), libertarians have a natural home in the GOP. I wouldn’t say for a minute they are the biggest faction, but a strong and influential faction they are.

    To take issue with some libertarians, I part ways for instance with Ron Paul for a couple of reasons. I can’t accept the really terrible stuff that was written under his name and his fixation with the gold standard which if implemented would make the Great Depression look like a boom. Unfortunately there are quite a few libertarians that peddle the Gold Standard which is why I am a little hostile to that wing.

    As for nutcases colonizing the tea party movement… well it’s a grass roots movement and you can’t pick and choose your membership if they happen to agree with you that the level of government debt is toxic.

    But why focus on the right’s loons? Have you seen Madam Botox’s recent comment? She’s now talking to the dead. Seriously. All the right dead people too, it seems. Reagan hasn’t snuck up behind her yet.

    Romster isn’t my ideal candidate, but he’s heaps better than the rest. For once the Left can’t accuse the GOP candidate of being a dumb arse because with a Stanford undergrad and double degs from Harvard that accusation is hardly going to end up anywhere. So he must be greedy and evil I guess.

  79. Posted August 10, 2012 at 6:40 pm | Permalink

    But why focus on the right’s loons? Have you seen Madam Botox’s recent comment? She’s now talking to the dead. Seriously. All the right dead people too, it seems. Reagan hasn’t snuck up behind her yet.

    If that’s the point you take away from that video then it’s pretty clear to me that you’re part of the problem. There’s plenty of things worth critiquing in that video but the metaphorical illustration of the significance of a female majority leader isn’t one of them.

  80. Posted August 10, 2012 at 8:13 pm | Permalink

    Because so few people in the US are clear on the distinction between a libertarian and a conservative

    Good stuff SL. I have tried to convey the idea the libertarians have become far too closely aligned with conservatives and hence have sacrificed their identity as an independent political philosophy. I regard this as a real shame.

    The other day I read an interesting piece about young GOP members. They have very little interest in “social issues”(gay marriage, abortion) and in general in the USA the under 30′s are leaving churches in droves. The GOP needs to get back to the main game, to recognise that is they continue courting these more extreme elements and trying to accommodate them they will also end up alienating increasing numbers of younger voters.

    BTW, the flouride issue is a vexed one for me. It is well known that fluoride is highly neurotoxic and while drinking water levels are well within safe limits, there are other sources of fluoride that may push concentrations beyond acceptable levels(eg. tea). So that recent Harvard study I previously mentioned, and it is not the first to raise such concerns, should be given due consideration.

  81. Mel
    Posted August 10, 2012 at 8:35 pm | Permalink

    Absolutely agreed, SL. I think conservatism at its best is a disposition as well as a cautious and modest political philosophy.

  82. JC
    Posted August 10, 2012 at 8:35 pm | Permalink

    You’re right Desi. Of course she’d see and hear a bunch of suffragettes squeezed into a chair talking to her.

    You don’t find that really creepy weird?

  83. Mel
    Posted August 10, 2012 at 9:16 pm | Permalink

    Creepy and weird is the Christian Taliban‘s (Republican Party) increasingly oppressive and insane laws in relation to abortion. No wonder America is in decline.

    I must admit I much prefer to see Republicans control the levers of power in the US because of the schadenfreude potential.

    Please, oh beloved Gaia, let Romney beat Obama ;)

  84. Mel
    Posted August 10, 2012 at 9:46 pm | Permalink

    LOL. I see why some are a little sensitive about the college records nonsense. Club Pineapple has been all over it, like 200 times!

  85. Posted August 10, 2012 at 9:52 pm | Permalink

    JC, I do find it a little weird. But given most politicians are religious or spiritual in one way or another (which I would find weird) I’m not sure I find it significant.

  86. JC
    Posted August 10, 2012 at 10:54 pm | Permalink

    Fair enough Desi. I actually listened to her a second time when you suggested and it did appear she was talking symbolically… I think. I generally don’t offer her much leeway as I find her objectionable in most ways.

    To focus just on the loons on the right though is to ignore an entire kaleidoscope of lunacy on the left. Just today Romney has been linked to Salvadorian death squads. No seriously.

  87. Candide III
    Posted August 11, 2012 at 8:14 pm | Permalink

    (8) All of the above.
    Saunders’ argument is a reactionary argument and therefore applies well against all progressive causes. You will notice it does not work as an argument for (1)-(7). As for conservatives not wanting to go back to lost battles, they do that partly because conservatives is what progressives become as they get older, and partly to retain at least a shred of ‘impact’ in an overwhelmingly progressive environment — and that’s the amount of impact they get, a shred. Standing athwart history shitting their pants crying stop.

    John Scalzi might be well-intentioned, but what his post is (or is perceived as, it doesn’t matter) trying to do is to use guilt as a lever to manipulate stronger people into being generous (in the broad sense of the word). It doesn’t work. When people used to believe in a Sovereign Creator God who wasn’t a wishy-washy progressive, other arguments for generosity were admissible and there was no need for such manipulation.

  88. Hugh
    Posted August 20, 2012 at 4:10 pm | Permalink

    L@August8,4.11 am;

    Thanks … apologies for the long break. Secular concerns intervened.

    Why call it “natural” sex? Because if you used the term with a person in the street, I think he or she would understand it way I do. I may be wrong, but test it yourself. And, heck, if I am wrong, I don’t mind adding descriptors. It’s not the point.

    Obviously, I have a view that natural sex as I understand it is the only morally acceptable sex. We can disagree about this. But the point I’m making here is that, whatever our disagreement on that point, the “No True Scotsman” argument does not apply to the Catholic/Natural Law account of sexual morality.

    “In a way which means lumping what is clearly natural human diversity together as pathological;”

    There you go: now you are predicating certain inclinations/acts as “NATURAL human diversity”, without further argument, when you upbraided me on deploying likewise the same term!

    You’re right to say morality binds us all. Your claim that focusing on various sexual acts gives them a “ludicrous” importance simply begs the question. I admit I haven’t laid out my case here in my few brief entries. But neither have you. My case is based on Aristotelian/Thomistic ethics. Ed Feser’s book “The Last Superstition” pp 132 – 153 has a pithy summation of the position, which concludes that natural sex (my definition) is the only acceptable completed sexual act. If you read it and have a critique, I’m very happy to continue the dialogue.

    Cheers

  89. Posted August 20, 2012 at 7:03 pm | Permalink

    H@94 I am not sure that the person in the street would understand natural sex in that way. But, even so, it begs lots of questions itself.

    I mean ‘natural’ in the sense ‘of that is how humans are’; no further argument is necessary. You mean ‘natural’ in the sense of excluding all sorts of extant-in-nature sex as ‘unnatural’. That is a very different usage and has to be argued for.

    As for ‘ludicrous importance’; the consequences in human misery from giving them such importance speaks for itself. It places the mechanics of sex way over some very basic moral constraints.

    Yes, I have read Feser’s book. That natural law reasoning allows the conclusion to set the ambit of its premises was very clear. No evidence in nature is allowed to count against the claim that the encompassing end of sex is reproduction. Just as no evidence in anthropology is permitted to count against whatever conception of marriage is being supported.

  90. Mel
    Posted August 20, 2012 at 8:59 pm | Permalink

    I wonder if Finnis and Feser take issue with choking the bishop …

  91. Posted August 21, 2012 at 5:28 am | Permalink

    H@94 On the usage of ‘natural sex’, since the terminology in question was established by centuries of censorship and brutality, to claim the usage but rule that said censorship and brutality does not otherwise count is part of what is problematic by citing said ordinary usage.

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