The Seventh Annual Ethics Alarms Awards: The Best of Ethics 2015, Part II


The Awards continue (Part I is here)….

Most Important Ethical Act of the Year:

The US Supreme Court’s Decision in  Obergefell v. Hodges in which the Supreme Court considered whether states had to recognize a right to same-sex marriages, and narrowly decided that they must. The prejudice against homosexuality is ancient, deep, and complex, mixed up in confounding ways with morality and religion, and deeply divisive. Nonetheless, I felt that the opinion should have been unanimous; it’s a shame that it was not, but in the end, this will not matter. The result was preordained from the moment gays began coming out of the shadows and asserting their humanity and human rights. Since the Stonewall riot, the nation and the culture has learned a great deal about the number of talented and productive gay men and women in our society and our history, the pain, ostracizing, discrimination and mistreatment they have suffered, and the falseness of the myths and fears that lead to this suffering.  In the end, as Clarence Darrow said about blacks, it is human beings, not law, that will make gays equal. No topic immediately causes such emotional and intense debate, on this blog or in society, as this one, but the Supreme Court’s decision is a major step toward changing the ethical culture, by asserting  that gay men and women have the same rights,  in the eyes of the state, to marry those they love and want to build a life with, and by implication, that the beliefs of any religion regarding them or their marriages cannot eliminate that right.

Outstanding Ethical Leadership

Senator Rand Paul.   I am neither a Rand Paul supporter, nor an admirer, nor a fan.  However, his June filibuster-like Senate speech against National Security Agency counter-terrorism surveillance was a brave, principled,  important act, and a great public service. The point Paul made needs to be made again, and again, and again:  there is no reason to trust the NSA, and no reason to trust the current federal government either. The fact that on security matters we have no real choice is frightening and disheartening, but nevertheless, no American should be comfortable with his or her private communications, activities and other personal matters being tracked by the NSA, which has proven itself incompetent, dishonest, an untrustworthy.


Parent of the Year

Tonya Graham

Toya Graham, the Baltimore mother caught on video as she berated and beat on her son in the street for participating in the Freddie Gray rioting and looting.

Ethical Judge of the Year

U.S. District Judge Rudolph Contreras, who refused to allow the State Department stonewall for Hillary Clinton, and ordered it not only to produce her e-mails for public examination, but also to do so on his timetable. He may yet prove to be the e-mail scandal’s Judge Sirica.

Forgotten Hero,  Presidential History Division

Julia Sand, Chester A. Arthur’s secret conscience

Outstanding Example Of The Naked Teacher Principle

Mindy Jensen

Mindy Jensen, Utah middle school teacher, bikini model and fitness competitor, had her other, less-clothed life discovered on-line by pupils, and refused an ultimatum by her employers to take the photos down, insisting that there was nothing wrong with her avocation, the photos, or her students seeing them. The school backed down instead, using the episode as a springboard for teaching students how to be careful on the web

Rationalization of the Year

19A The Insidious Confession, or “It wasn’t the best choice.”

The Ethics Alarms Rationalizations list got a lot longer in 2015, but my favorite of the additions owes its place to Hillary Clinton, who repeatedly invoked it while not apologizing for using a private server to send and receive sensitive State Department messages:

“No,” says the wielder of 19A, “I made no mistakes. It simply wasn’t the best choice. But isn’t it outrageous that I’m getting all this criticism because I made a perfectly reasonable choice that after the fact we realize could have been better?” is a framing trick, and a slick one. “It wasn’t the best choice” is also insidious, because using the guise of an admission of wrongdoing, it invites acceptance of the false premise that there was nothing wrong done. It slyly removes the possibility of wrongdoing, unlike #22, Comparative Virtue, which accepts it. Framing what was a wrongful act as simply an act that wasn’t a good as it could have been, the wrongdoer poses as imperfect  but virtuous and sincere, doing the best she can.  The misleading framing—not wrong, not bad, just imperfect, also permits the wrongdoer to avoid the indignity of an apology.

In a sentencing hearing, a defendant who describes his crime as “not the best choice” tells the judge that for him, a criminal act is always among the practical options. Since unethical conduct is an option,  if it works, it was the best option. If it doesn’t work, and if the wrongdoer gets caught, well, it seemed like a good choice at the time, but it wasn’t the best thing to do. Ethical people don’t think like that. Trustworthy people don’t think like that…”


Ethics Alarms Comment of the Year

Lots of them. I can’t really make a decision: the Comments of the Day that were re-published, as well as many that were not recognize here that deserved it, were uniformly superb, and are a great source of pride to me and this website. I’m picking six, covering issues in morality, the arts, business, religion, a classic take-down, and gun control …I could easily choose 26, and I may have missed the best one.

Here they are:

PATRICE on the post, Memorial Day Values And Ethics*:

Jack, this is an excellent discussion to be having right now. I am officially “coming out” as truly ambivalent about all of this. Officially a pacifist, I am also a pragmatist about America policing the world. We MUST do it, and we must do it for all of the values you mention and on which the country was founded. I think that we have allowed America’s “interests” to compromise these values as we act on them. If we engage in policing the world, it can’t be for ANYthing other than protecting people and defeating “evil,” however it is manifested. If America directly benefits from our military involvement, fine and dandy, but that can’t be what motivates the original decision to engage, nor later strategy….

RICK JONES on the post, “Now That Was A Rape Culture…”:

I actually saw a production of The Most Happy Fella a couple of weeks ago. It was staged by our School of Music as their annual “opera” performance, and it certainly has a number of roles to challenge even strong voice majors; the title role in the original production was played by Robert Weede, better known for his Rigoletto than for any Broadway work. As a work of theatre, of course, it’s pretty dreadful. As a snapshot of the social values of the era in which it was created, it is illuminating….

CHARLES GREEN on the post, “The VW Scandal: Huge Consequences, Simple Ethics Lessons, Ominous Implications”

A similar point was made about the evident contradictions in ENRON’s mission statements. Just as this is an ethics issue, so is it a trust issue, and one I’ve been writing about as well. The only thing I’d add is to caution against the simplification that these are conscious evil-doers. The truth is always messier….

RICH IN CT on the post, The Pope’s Smoking Gun:

The Vatican claims ignorance, and throws the ambassador under the bus. There are so many layers to this mess. Let us try to unsort them. Davis, who is not Catholic, probably should not have even gone. On the other hand, she was invited by some of the most powerful leaders in the world, so it was an unethical invitation that she could not reasonably refuse.

JB213 on the post, Mediaite’s Tommie Christopher Locks Up The Dishonest Spin Of The Year Award In Defense of Calling Ben Carson A “Coon”:

I am going believe that everything Tommie Christopher wrote in his Mediaite column was tongue-in-cheek. I simply refuse to believe that someone can be that obtuse, that devoid of critical thought, and that blinded by self-delusion. Maybe it was a slow column day and he figured he would write something so far off the mark just to see how many people would . . . Oh, forget it. I can’t do it! I lost my roll of duct tape. I fear I will lose my security deposit when my landlord sees all of that cranial debris all over the walls and ceiling.

EXTRADIMENSIONAL CEPHALOPOD on the post “Who Are You Calling A Nut?” And Other Ethics Issues In The Community College Shooting Aftermath (Continued)”:

[ Washington Post editor Fred ] Hyatt’s forthrightness [ in his op-ed here] and his dedication to societal change that he acknowledges is difficult is definitely refreshing. I would object to the comparison to Australia mostly based on the fact that Australia also has a rather extreme (for the Western world) institution of censorship. I am curious as to what people do if they need to shoot a wild animal, as I understand there are many dangerous animals in Australia…

 Ethics Alarms Commenter of the Year

Humble Talent;   Runner up: Extradimensional Cephalopod 

The commenters make Ethics Alarms what it is, and more than two hundred  dropped by with varying frequency. Humble and EC are worthy representatives of what is an outstanding throng. (I arbitrarily decided to make texagg ineligible because he’s won this honor the last two years, I just criticized the Emmys for repeat winners, and he nominated Humble Talent anyway.)

Thank you,everybody.

And goodnight, tgt, where ever you are!)

My Favorite Ethics Alarms Post of the Year

My favorite posts are almost never the ones that gain the most attention or traffic. This one is an easy call, for many reasons.

Brian Childers

This isn’t a Christmas tale exactly, but it is a deeply personal one that will always make a big difference in how I make decisions in my life. It is episode that taught me, once and for all, that when you do the right thing, the amount of good that can come from it is unpredictable and sometimes unimaginable.

Maybe it will inspire you too.

In 2001, my friend Bob McElwaine handed me a script and a CD of a musical he had been working on about his long-time friends and clients, entertainer Danny Kaye and his wife, song writer Sylvia Fine. Bob was in his 70s, retired, a former Hollywood publicist and later an association executive who had taken up writing musicals with his childhood buddy, legendary movie score bassist Bob Bain (that’s Bain you hear playing the famous bass instrumental on the “Bonanza” theme…

…and the melody line in “The Munsters” intro too.)

McElwaine knew I was a long-time Danny Kaye admirer. He had been a wealth of information for me about Kaye when I was directing “Lady in the Dark,” the Broadway show that had made Danny a star in 1941, for the American Century Theater years before. One day, Bob asked me, as a favor, if I would agree to workshop the new piece, direct it, and see how it turned out in front of an audience.

I was not enthusiastic about the project, not at all. I had my ethics business as well as the theater to oversee; I had just finished directing a show, requiring me to be out of the house every weekday night and all day Saturday, and I thought the piece itself was too old-fashioned and formulaic to work. Mostly, however, I didn’t see how anyone could be a credible Danny Kaye, since Kaye was a unique performer—he wasn’t exactly a comedian, or a singer, or a dancer, yet  all of these and more—that has never had a close equivalent since. I was trying to find a way to turn Bob down nicely when I watched a performance of the show I had just gotten up and running. A young man named Brian Childers who was only in his second professional role played the romantic lead, and that night, for some reason, he handled a scene differently than I had ever seen him do it before—and for maybe three seconds, probably because Bob had just put the late performer’s image in my short term memory, reminded me of Danny Kaye.

After the performance I asked Brian if he would be interested in playing Kaye in this new musical, and he enthusiastically agreed, saying he was a huge Danny Kaye fan. (Later I learned that he barely knew who he was).

All right: with a credible Kaye, though I knew my inexperienced Danny would require a lot of work to handle  the role, I was convinced for the first time that the project wasn’t impossible, just absurdly risky. I would do this show as a favor to Bob, and as I knew how much it meant to him, I wanted to. I refused to take a fee, for this was a kindness, I felt, for someone who had been so kind to me. Bob paid the production costs, and after some lobbying by me, the theater agreed to sponsor it as a no-cost way to get some publicity and exposure outside of Northern Virginia. Bob had arranged to do the show for a week’s run in Bethesda, using the small theater of a writers organization where he chaired the board. We would do five performances, and that, I was pretty sure, would be that. Bob would be happy; the theater wouldn’t lose anything, and Brian would have another profession credit and a (small) check.

My wife was not happy: we had a five-year-old, and directing shows meant my substantial absence in the evenings and my preoccupation with production issues during the day.  I also recruited two good friends and long time theatrical collaborators to help me try to make less of a bomb out of Bob and Bob’s creation. Tom Fuller agreed to do the musical direction and conducting; Loren Platzman agreed to work on the arrangements. Jacqueline Manger, who later took over (and nailed ) the role of Sylvia, handled the choreography and collaborated on the staging.

Brian was terrified before we began rehearsals, . When I played him recordings of Danny Kaye’s various novelty songs, including Kaye’s trademark scat-singing and patter numbers, and after he watched Kaye’s unique physical clowning on videos, Brian blanched and told me that he didn’t think he could do the role.

“I can’t do that!” he protested. “Nobody can do that!”

“You’re right,” I said. “But Danny Kaye is gone and almost forgotten, and if you can do 75% of what he could do the way he did it, that will be impressive enough.”

One reason I had allowed myself to be talked into this project was that Danny Kaye had already played a significant role in my life.  My father had seen him in several concert performances and was a great fan. The first non-child’s recording I owned was “Pure Delight,” an LP containing Kaye’s most famous ballads and patter songs. My father gave it to me as a Christmas gift was I was about 10, and I wore it out. Kaye’s lightning fast comedy numbers, all but a couple written by Sylvia, got me interested in Gilbert and Sullivan, which in turn got me interested in musical theater, which dominated my high school and college years. My strange law school career as the proprietor/director/founder of a law student musical theater organization was directly responsible for my first job (the Dean wanted to keep me around so the shows could continue, and created a job for me), and that job was where I met the remarkable woman who would become my wife, best friend and business partner. And it was a fellow grad’s memories of my directing that led him to engage me, 20 years later,  as a speaking coach for his new venture as a legal ethics trainer. His company, through many twists and turns, became mine.

Danny Kaye, in short, had been the butterfly whose flapping wings had helped determine the path of the storm of my strange existence. As it turned out, there was another flap or two left.

I worked hard to make Bob’s flawed show bearable in ways large and small. I cut, I re-wrote lines, devised wordless comic bits, even rewrote a song. I browbeat Bob into letting me added two more Kaye standards to the original score, which originally only had one, the Ira Gershwin list of Russian composers that Danny had spit out, clear as a Russian bell, as the showstopper in “Lady in the Dark,” making him a Broadway star in 1941.

Meanwhile, Brian was demonstrating taht I had made an incredibly lucky choice. He was an unusually dedicated and determined professional, and had talents I never imagined. He read books about Danny, watched all of his movies and TV shows, rehearsed his unique postures, movements, hand gestures and facial expressions for hours on his own after our rehearsals. Finally, just two days after the Twin Towers fell, “Danny and Sylvia” opened before a surprisingly large audience (with the wonderful Janine Gulisano as Sylvia). It was going to be reviewed, and I dreaded what I was certain was going to be a flop. With all of Brian’s work, and all of the massaging Tom, Loren and I had done to the material, I still didn’t like the show. Brian had made astounding progress at channeling Danny: he was getting very close to that 75% we had been aiming for, but many of the songs still seemed generic and derivative, and the dialogue and plot, despite all our repairs, were still tepid.

The audience, however, went bananas. They loved everything, and especially Brian. The mostly older audience, who obviously were Kaye aficionados, responded to him as if he was Danny Kaye. When he ended the show, as the real Danny ended all of his, with Kaye’s audience-response version of “Minnie the Moocher,”—one of my best additions to the script, if I do say so myself—the audience cheered and rose to a standing ovation immediately.

I was shocked, and remained shocked, if pleasantly shocked, as the show sold out the brief run. All the reviews were flat-out raves, and the audience response kept getting even more uproarious as Brian gained confidence and nuance with the material. Bob, of course, was floating on a cloud.

The American Century Theater decided to begin its next season with the production, and the reaction was the same in Northern Virginia as in Maryland: raves, cheers, sold out audiences and standing ovations. Audiences couldn’t get enough of it. There were three more productions, all with Brian but several Sylvias, in the D.C. metropolitan area, New York, New Jersey, and eventually London, though the latter had a different (and lesser) Danny. After the dust cleared, the American Century Theater had made nearly $40,000 in profits on the show, making it, by far, the most successful in the company’s 20 year history. That $40,000 also made its last 14 years possible.

Brian, meanwhile, won the prestigious D.C. Helen Hayes Award for the outstanding performance by an actor in a musical, the only major award our company ever recieved.  He moved to New York to seek stardom and fame, telling me that he was so grateful for everything the show had done for his career, but that he had to move on. He had played Danny Kaye for the last time, he said.

Wrong. Neither Bob nor I knew it, but there was a cabaret Danny Kaye circuit, and Brian’s reviews and reputation had moved him to the top of it by reputation. He played Danny in a different musical in Florida, then was hired to do a Kaye set about the Brooklyn Dodgers at an all-star 100th anniversary of the Dodgers at the Hollywood bowl. Then came another New York production off-Broadway that ran for more than a year.

Brian is a lot more than Danny Kaye today: he’s a successful working actor in New York, and sufficiently respected and recognized by the Broadway community to be invited to be part of all-star events like this one, just last week:

Jews on Broadway

Last year, as a favor to me, Brian brought Danny Kaye back to the American Century Theater in a one-man show he  developed for us, recreating the experience the of Kaye concert performances for which he was famous: it was one of these which hooked my father.

Brian was and is astounding: he has left 75% in the dust. Skeptical Danny Kaye lovers who had seen the genuine article returned to watch Brian again and again, and every performance ended with cheers, a standing ovation, and, of course, “Minnie the Moocher.” I must have watched the show 15 times. I have not been as happy since.

Now that show is being handled by a national booking agent: if it comes to your community, see it.

Looking back to 2000, when all this started, I still find the progression of events difficult to believe. One small favor, done for a friend as a kindness, exploded into so many good things. Bob McElwaine had a show business success that gave him so much enjoyment, pride and satisfaction in his last years, and also, as he told me, allowed him to give a final salute to  two friends and colleagues who were at the center of his career. Brian Childers got that fortunate break that allowed him to demonstrate his talents and to begin what is certain to be a long and storied career in one of the most competitive fields there is. The American Century Theater was strengthened and enriched, allowing it to complete its 20 year run. The company ended in the black, and four other deserving theater companies are receiving the funds to advance their impressive work. Without “Danny and Sylvia,” there would have been no money to give.

And thousands and thousands of people have laughed and applauded as they experienced the magic of Danny Kaye through Brian’s brilliance and artistry. That pays back some of my debt to Danny, too. So many audience members, after performances, talked to Brian Childers and were shocked to hear him say that nobody, not even he, could equal the original. “He was better than you?” they said, amazed. “How is that possible? I better check him out; he must be incredible.” They do, too. Danny Kaye was a tortured, miserable, insecure, bitter man who could only be loving, warm, giving and happy when he was performing. Thanks to Brian, that Danny lives. The good one. A greater gift to Danny Kaye, I cannot conceive of.

And me? I never made a cent off of any of this, nor did the show I directed for Bob open doors to theatrical fame and opportunity. My rewards were  greater and more durable than money or fame. Wisdom, for one thing.  I know that I set in motion a series of events that resulted in many wonderful things for  many people, just by saying “Yes” to a request from a friend for a favor, just by being kind without expecting anything in return.  I learned that I have the power to do it again. So do you.

Just look what happened!


You see, miracles still happen, if you give them a chance.

Here’s Danny.


Most Encouraging Ethical Trend of the Year

Millennials, who were not alive during Monica Madness and thus were not corrupted en masse when the progressive establishment decided to ignore Presient Clinton’s obviously unethical and illegal conduct and overwhelm reason with rationalizations, are coming to the episode fresh and in the midst of renewed societal attention to the problem of sexual assault sexual harassment, and rape. Both Clintons are suddenly being exposed as the hypocritical feminist advocates they were and are.


Well, those are the ethics highlights in a very unethical year. Be prepared for The Worst of Ethics in 2015.

It’s on the way.

51 thoughts on “The Seventh Annual Ethics Alarms Awards: The Best of Ethics 2015, Part II

  1. I feel most strongly about your award to Toya Graham who richly deserved it. Having worked in a local black community, I was witnessed too many occasions when black kids were playground bullies or wildly misbehaving and their parents would come to school insisting their kids were being singled out or the playground supervisors were lying about the incidents. Hurrah for Toya!!

      • It’s pretty poignant in the movie; I’ve used it in WWII reviews. It was Bob’s best non-comic movie role—like most great comedians, he could act. After hearing his hired hacks squeeze endless combinations into the tune, I was shocked when I found the source….a song about a once-loving couple wistfully looking back…

        • I think he was comedy personified when I was growing up, in a class all by himself. He just seemed like the ultimate adult. One of his best lines (now that I’ve been an adult for many years): “I go to Washington D.C. once a year. To visit my money.” Must have had great writers but he could certainly deliver the goods they gave him.

          • But seriously, thanks Jack. This your posts and the discussions are more fun than a barrel of monkeys. As much fun as I’ve had since being in college in a well led discussion section. And there’s no tuition and no exams. What a deal.

            • I agree. I’m just really glad there are no grades given. Although, I’ve upped my commenting game considerably I still come in at the bottom of the curve here.

  2. “I made the wrong choice honey” by the wandering husband wouldn’t be the best thing to say to the spouse when caught with your pants down. Even Bill Clinton probably wouldn’t try that ‘apology’.


    For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.

    Murphy v. Ramsey, 114 U.S. 15, 45 (1885)

    Please explain how this ruling is unethical.

  4. My only quibble would be with Obergfell, which seems to me to be a poorly argued opinion with a laudable result. I’m still baffled that they didn’t use equal protection (IIRC), although beyond that I’d have to go read it again to provide any significant detailed complaints.

    • I agree about the opinion. Kennedy really is a weird Justice; it’s troubling that someone like him is a swing vote, since he sees the world through Odd-colored glasses. The slam-dunk argument for same -sex marriage is Equal Protection. It’s there whether SCOTUS makes it or not.

      • There is no evidence that around the time of the 14th Amendment, that it was meant to hold sex discrimination to a higher level of scrutiny than rational basis. In fact, the results of Minor v. Happersett, 88 U.S. 162 (1875), and Bradwell v. State, 83 U.S. 130 (1873), prove that sex discrimination was not intended by the authors of the 14th to be held to any level of scrutiny greater than rational basis.

        This is, of course, not to say that it would be wise or fair to prohibit women from voting or practicing law, merely because they are women. But states still reserve the power to prohibit people from practicing law on the basis of sex. Because Bradwell was decided by justices who were alive when the 14th was ratified, we must agree that their conclusion about the 14th in this context was correct. If a state (however unwisely or unethically) chooses to prohibit people from practicing law on the basis of sex, there can be no 14th Amendment remedy under Bradwell.

        If a sex discrimination claim under the 14th Amendment is necessary to resolve an appeal before the Supreme Court, the Supreme Court should overrule all its past decisions on sex discrimination inconsistent with Minor and Bradwell.

        • “Because Bradwell was decided by justices who were alive when the 14th was ratified, we must agree that their conclusion about the 14th in this context was correct.”

          I’ve never seen anyone but you express this particular opinion about the law. Can you cite any legal experts who say that Supreme Court justices who lived through the passage of an amendment have final say over the interpretation of that amendment?

  5. I’m surprised by your feelings on Obergefell. I thought it should have been decided unanimously the other way. (Albeit, I also strongly thought that if Americans could be trusted to decency everyone would agree gay marriage should be allowed and it would never have been a case in the first place.) I also strongly disagree that equal protection is a “slam dunk” argument vis-a-vis that case. It seems to me that those who think so have conflated equal protection under the law to equal meaning under the law. In short, I thought the majority was in error, but I recognize that it’s probably a happy error.

    • I don’t see how refusing to grant gay Americans the same rights under the law as heterosexual Americans can be anything but an Equal Protection breach. All the other State decisions, some of which were superb, held so.There was never any compelling reason to teat gays differently…all the arguments were specious.You’ll have to explain what you mean by single meaning. But Kennedy apparently agrees with you, and I’ll yield to his scholarship.

      The law and Constitutional interpretation is versatile enough to allow the Justices to find legitimate legal reasoning to advance the founding document when it risks being ethically outdated. The culture viewed homosexuality as a sin and a perversion with dire effects when the Constitution was written; now that bias has no valid basis. One way or another, this was another “separate but equal” situation that created actual stigma.The humanism underlying the Constitution provided enough to do the right thing.

      • The problem, to me, is that you aren’t really treating gays differently at all. Every man had the equal ability to marry a woman. Every woman had the equal ability to marry a man. The law worked the same vis-a-vis everyone, it just had significantly less meaning to those who were homosexual. Now, the law has the same meaning between gays and non-gays, but it has less meaning for individuals who feel like they’re sexual identities cannot be fulfilled by just one individual. This is not a problem for me, so long as the law operates even-handedly, it doesn’t have to have the same meaning to everyone, or even any meaning at all for some. Marriage, of course, has historically been subject to strict scrutiny analysis, but that doesn’t really help us either because the question of whether people are discriminated against vis-a-vis marriage quite clearly cannot be answered before we define marriage.

        Of course, I could be wrong, but those who say I am usually have no answer to the problem of persons who feel they need to be able to marry more than one person for marriage to have a meaningful effect on their humanity and dignity. Society is just making judgment calls regarding what constitutes marriage. What makes some judgment calls okay, and others not? Further, why in the world should we believe that nine justices are more able to make those judgment calls than the political process? Sure, this seems to be a time where you and I believe they got it right. But what’s to keep them from getting it wrong? And when they do get it wrong, how do we fix it? If the political process gets it wrong, politicians can be replaced or convinced to change their minds. That doesn’t seem to work via the Supreme Court.

        While the equal protection argument is obviously the best argument, I personally just didn’t feel it quite got you there in this controversy. At some level, there’s no escaping that someone has to define the word “marriage”, and as I’ve said, I don’t see why nine justices are in a better place to make that definitional decision than the political process. Finally, there are plenty of rational reasons for a government to discriminate between homosexual and heterosexual couples. For instance, homosexual couples cannot have children of their own. In this world, in which far too many children don’t have a mother or a father, there are zero compelling reasons to disallow gay marriage. (At least I can’t think of one). However, a lack of a compelling reason to do something affects how one should vote, in my opinion, on a subject. It should not be enough for the judicial branch to overrule the political process.

        I’m very glad that gay individuals can get married. I think that’s the only ethical thing that we as society could do. However, I worry about judicial power in cases like these.

        • That’s a specious argument, an intellectually dishonest argument, and a rightly mocked argument. Under the law, the gender distinction is now gone. Any distinction in genders rights is per se unconstitutional—this is unisex. People can marry any people they choose, absent compelling state interest. There is none. Marriage is a legal relationship that confers social and legal benefits. The gender aspect of marriage is extraneous, based on a mistaken belief that it is necessary. It isn’t: it’s now recognized as arbitrary and unjust. Saying marriage is between a man and a woman is no more rational now than saying a property purchase is between two men…and is a violation of Equal Protection for the same reason.

          I honestly thought the “all men have the same right to marry women” argument was a joke the first time I heard it. I think it’s cynical and intellectually dishonest—you are the first defender of gay marriage whom I’ve heard take it seriously.

          • I agree with Valentine in several respects, though we come down on different sides concerning gay marriage itself.

            Marriage arose to regulate human reproduction by encouraging lifelong coupling between men and women, binding them to each other and to any shared offspring which might naturally result from their union, thus providing for the care and rearing of each successive generation. Of course, in different times and in different places, other concerns have also been involved, but the male-female union has always been the foundation of marriage in our society as well as in every society which heretofore has recognized the institution. The “gender aspect” of marriage is not, therefore, extraneous, but is in fact the very reason marriage was instituted in human society in the first place, because of the procreative potential inherent to male-female sexual relationships in general.

            Moreover, the conferral of the right to marry a person of the opposite sex is independent of sex or sexual orientation: it is conferred on all whether a person is male or female, heterosexual or homosexual (or bisexual or asexual). I don’t understand how that is specious, cynical, or intellectually dishonest. Homosexuals as a class weren’t denied the equal right to marry; a marriage simply doesn’t exist between two men or two women, any more than it exists with a single person, not because these people don’t have a right to marry, but because a marriage is specifically the union of a man and a woman. Unless biological sex itself is an arbitrary and irrational distinction, there is no violation of equal protection or due process here. The Supreme Court’s majority decision in Obergefell went far beyond its judicial authority, radically stretching the Constitution’s meaning and application, as well as overturning the settled judgment of US law and human society more broadly. It was fundamentally unethical.

            Finally, the notion that marriage, now devoid of any essential connection to human reproduction, should be limited only to romantic couples is completely arbitrary. Is the dignity of a committed and loving relationship the exclusive possession of romantic couples? On the logic of the Obergefell majority, how it is just to exclude non-romantic couples, or polyamorous relationships, from marriage?

            • I’m not going to entertain re-litigating of this, but please don’t haul out all the thoroughly rebutted arguments.
              1) Modern marriage serves state and society purposes by forming stable family units, and is encouraged, rightly, by government as a result.

              2) Having children has never been a requirement of marriage, or wanting to have them, or being able to have them, or being fit to have them. NOW, when nearly 50% of babies are born without a marriage, the argument is more ludicrous and archaic than ever.

              3) I’m sorry, but the “there’s no discrimination: you can marry any person of the opposite sex you want!”, like the awful argument above, was devised in a room of lawyers and antigay activists who were desperately looking for some legalistic argument to justify faith based anti-gay bias, and if you don’t know that, you should. Modern marriage is about two people who love each other and want to be a family. In the absence of any valid reason, the withholding of this benefit to gays is arbitrary and cruel. What does the opposite sex have to do with it, absent the non-existent breeding requirement? The Loving v. Virginia rebuttal is solid: saying marriage must be between a man and a woman today is exasctly as discriminatory against gays as saying marriage must between two adults of the same race. It withholds the right of state recognized marriage from a class of people for no reason other than bias against a minority group.

              4. Religions can define marriage any way they want. What they can’t do is ostracize and harm those who don’t meet their moral requirements, if they otherwise meet the society’s legal standards. Both arguments 1 and 2 above are transparent attempts to apply faith-based moral standards on the criteria for state benefits.

              • 3) you give them too much credit. They didn’t devise it, they cribbed it straight from the losing argument in Loving

                Justice Stewart: That is—that was the very purpose of the Equal Protection Clause, coming as it did after the—in the wake of the Civil War.

                Mr. McIlwaine: That is correct, but it is clear that the Framers understood that in their intention, a law which equally forbade the members of one race to marry members of another race with same penal sanction on both did treat the individuals of both race equally.


              • 1) Of course I agree with this, so far as it goes. I’m not arguing that government should “get out of the marriage business,” with all due respect to that common libertarian tack.

                2) I haven’t claimed that children are or ever were a prerequisite to contracting a valid marriage; that is your straw-man. Marriage is intended to bind potential biological parents in a legal relationship before children enter the picture, particularly to prevent a cut-and-run situation; desires can and do change, besides the reality that couples can and do have children unintentionally and in spite of desires to the contrary; determining infertility before a couple has been married and tried to have children is in most cases difficult and extremely invasive, and so poses an extraordinary burden; and the parental fitness of married biological parents is legally presumed until there is proof to the contrary. In short, none of these circumstances is a reasonable or substantial objection to the previously prevailing legal, social, and historical definitions of marriage as an exclusively male-female union. The only fundamental prerequisite for marriage was a male-female couple, not because every instance of marriage must include children, but because opposite-sex sexual relationships are the only kind which ordinarily and naturally tend to produce offspring. That 50% of births are now out-of-wedlock is all the more reason for marriage between men and women to be encouraged and strengthened in our society. Lower total fertility rates and higher out-of-wedlock birthrates aren’t reasons to incorporate necessarily infertile same-sex arrangements in the institution.

                3) Contrary to your theory, I devised the argument years ago of my own initiative. Of course, I am far from the only person to have done so, because it is a fairly common-sense rebuttal of the equal protection argument. It is defeated only if distinguishing biological sex in marriage is itself an arbitrary and invidious form of discrimination. Since no same-sex couple can become the natural parents of a child as opposite-sex couples can, it’s hardly arbitrary to make the distinction in law, and questions of adoption and inheritance rights for same-sex couples could well have been addressed without touching marriage. Romantic love, whatever its merits, wasn’t and still isn’t a legal requirement for contracting a valid marriage, either. Regarding interracial marriage, there are several reasons it is disanalogous:

                a) It was never a universal requirement that the parties to a marriage be of the same race; this requirement was limited to particular times and jurisdictions, and unevenly applied (the Virginia statutes challenged in Loving, for example, didn’t forbid interracial marriage between two non-white parties of different race). It was, until recently, a universal requirement that the parties be of opposite sex. Thus biological sex has been central to marriage in a way race never was.
                b) Under no circumstance does the racial composition of a couple have any bearing on reproductive capacity. Every race can interbreed with every other race. Race, therefore, is an arbitrary distinction with respect to the ends of marriage. By contrast, each sex can only interbreed with the opposite sex.
                c) Anti-miscegenation laws were expressly predicated on racial distinctions as part of a larger effort to uphold racial segregation and white supremacy. Marriage laws have never been expressly predicated on distinctions of sexual orientation, and no larger movement to segregate and disenfranchise gay people motivated lawmakers, or the electorate, to retain the historical male-female definition of marriage.
                d) Anti-miscegenation laws didn’t simply fail to afford recognition to interracial marriages, but actively prosecuted them under criminal statutes. No criminal or civil penalties attached to the petitioners’ same-sex relationships in Obergefell. The lack of recognition for same-sex relationships neither encouraged nor discouraged such relationships in any way appreciably different from any other non-marital relationship between consenting adults.

                4) Marriage is rooted in human society’s recognition that the reproduction of our species proceeds from uniting the two sexes. Nothing about that is predicated on “faith-based moral standards,” even if religious people agree with it. Not until the 21st century has any society, of any religious and even anti-religious persuasion, granted marital status to same-sex relationships, because such relationships are without exception incapable of producing children. The moral status of homosexuality has no relevance. Indeed, the argument most resembling a “faith-based moral standard” is that legal marital status ought to be granted on the esoteric ground of a committed and loving relationship between two unrelated persons. This is a completely arbitrary and incoherent standard for distributing legal benefits: committed and loving relationships need not be romantic, need not occur only between unrelated persons, and need not be limited to two persons only. By contrast, limiting marriage to male-female couples for the reasons I’ve expressed is non-arbitrary and coherent.

                • You do realize that this is entirely self-contradictory and makes no sense at all, right? Marriage is to protect children, but it applies to couples who can’t or won’t have children anyway, except for same sex couples, who meet every other requirement for a stable, loving family unit.

                  I don’t care who thought up this justification for separate but unequal. I know about 20 stable, loving, law-abiding tax-paying same-sex couples of long-standing, some of whom have children, some of whom want to adopt, and you have articulated not one, single, rational, practical, just reason or compelling state interest in 2016 to withhold from them the same status, respect, benefits and security of calling their relationship a marriage.

                  Try again.

                  And your silly last paragraph doesn’t count. It is easy to articulate very good and compelling reasons not to permit family members to marry, who are subject to duress, and in bother sister unions, are genetically risky as well, and three person marriages, which are inherently unstable. But I salute you for not raising the beastiality straw man. No, the restriction to opposite sex couples isn’t arbitrary, it was based on an old, once logical, bias: if men married men, the species wouldn’t continue. That is no longer a realistic risk—we have too many children, not too few. NOW the prohibition is not just arbitrary, but cruel and unjust to 2-5% of the population. Please enlighten me about how many yearning 3-party unions there are out there. “i’ve never met one. Have you?

                  Desperate and lame.

                  • Opposite-sex couples who, for whatever reason, remain childless are not equivalent to same-sex couples. For the former, infertility is an accident of particular circumstances quite unrelated to the male-female structure of their relationship, while for the latter, infertility is an inherent and unavoidable result of the same-sex structure of their relationship. The former reinforce the social structure encouraged by marriage – lifelong male-female coupling – which helps to ensure that children are raised by both of their biological parents. The latter do not and cannot.

                    Nothing so far in 2016 has fundamentally changed how reproduction works. Since same-sex couples can never unintentionally have children, it is not a compelling state interest to expand the definition of marriage to include same-sex relationships. At best, where children are already involved, it may be fair to extend some of the joint adoption and inheritance rights usually bundled with marriage.

                    You have not articulated any good and compelling reason why family members, as consenting adults, should not be allowed to marry under the new regime. If there are concerns about duress, they can be required to undergo a psychological evaluation beforehand. If there are concerns about the genetic affects of incest, they can be required to have genetic counseling (as required of first cousins in some states), or they can be voluntarily sterilized. You’ve given no explanation why three-person relationships are “inherently unstable,” never mind relationships between larger numbers, and why this should prevent them from being allowed to marry. Indeed, the security afforded by access to marriage is one of the reasons you give why same-sex couples should be able to marry. (And there are indeed people in polyamorous relationships who desire to have those relationships recognized by law: And why, in general, shouldn’t people be able to marry platonic friends, or even family members, to gain access to better health insurance plans or to save money on taxes? What makes only romantic love worthy of such government support?

                    It is not a “bias,” but a reality, that the continued survival of the species, in the long run, depends on reproduction. Whether at present we are in great need of more children is beside the point (in any case, the current situation is hardly guaranteed to last), but so far as that goes, there are some places, as in Japan and some countries in Europe, where the population is declining because of low fertility. Regardless, not extending marriage to same-sex couples remains non-arbitrary (nor do I think it is cruel or unjust, though I am a member of that 2-5% of the population). Reproduction still happens and then only with both a man and a woman involved. If it didn’t, we wouldn’t need marriage at all.

                    • Opposite-sex couples who, for whatever reason, remain childless are not equivalent to same-sex couples. For the former, infertility is an accident of particular circumstances quite unrelated to the male-female structure of their relationship, while for the latter, infertility is an inherent and unavoidable result of the same-sex structure of their relationship. The former reinforce the social structure encouraged by marriage – lifelong male-female coupling – which helps to ensure that children are raised by both of their biological parents. The latter do not and cannot.

                      So-what? So what? Who cares why a couple can’t have children? As everyone who has looked at the question objectively has concluded, that is no justification to block legal marriages for loving gay couples. I have an adopted child, which I could only get because I am married. Enabling more loving couples to adopt is a far more reasonable justification to allow gays to marry than encouraging natural child bearing is a justification for forbidding it.

                      Your argument is untenable. When you have to default to the ancient fear of men sleeping with men and the species vanishing…a realistic and reasonable taboo in small isolated tribal groups but absurd today, you have signaled that you have nothing. Why you cling to this bias is a mystery, and I think you should explore it.

                    • If there were no justifications for refusing to recognize same-sex relationships as marriages, then why has no one during the Protestant Reformation, the Enlightenment, the American Revolution, or even the American Civil War ever agreed with that? Was it just pure dumb luck that marriage happened to be defined between man and woman.

                    • @Michael Ejercito Was it pure dumb luck that women weren’t allowed to vote? In some places still aren’t?

                      Cultural bias runs deep and argumentum ad antiquitatem is a fallacy.

  6. The concern at this juncture isn’t the promotion of reproduction per se (a straw-man), nor the survival of the species (something you brought up to dismiss as unrealistic, where I merely rebutted you – it was not my “default” argument and is not a “bias” to which I irrationally “cling”). The concern is regulating reproduction to encourage biological parents to raise their children together in order to promote the best outcomes and secure social order and harmony in succeeding generations. That’s what marriage is for. The logic that marriage is, instead, most fundamentally an expression of mutual romantic love between consenting adults — which has been incipient in our culture for some time — cannot sustain the institution, and that will result in proportionally fewer children being raised by their biological parents, as it already did even before gay people got into the party.

  7. Kyjo:

    “Opposite-sex couples who, for whatever reason, remain childless are not equivalent to same-sex couples. For the former, infertility is an accident of particular circumstances quite unrelated to the male-female structure of their relationship, while for the latter, infertility is an inherent and unavoidable result of the same-sex structure of their relationship.”

    Like most people who use this argument, you are using a misleading definition of “inherent” that seems to rely on some kind of magical or spiritual basis, such as “Natural Law.” There are of course men and women who are *born* without the ability to procreate, and who will never procreate; there are women who have hysterectomies; women over 90, as a class, cannot have children, period. And yet you would argue that no couple with one or more individuals like this is “inherently” unable to procreate–as long as they are opposite-sex.

    That’s ridiculous, and is entirely based on circular logic: 1) Only men and women can marry, because 2) Only men and women can have children, but 3) Men and women who cannot have children can still get married, because 4) They are still men and women, and are “inherently” able to have kids even if they have no actual, real-world ability to do so.

    I’ve seen a lot of attempts to pretend that this is not circular logic, but none of them are successful. Yours is no exception.

    “The former reinforce the social structure encouraged by marriage – lifelong male-female coupling – which helps to ensure that children are raised by both of their biological parents. The latter do not and cannot.”

    So now you’re basically just admitting that it doesn’t even matter if a couple can have children, as long as they *look* like they can have children. That’s absurd–you’re arguing that we should base public policy on deceptive rather than anything real.

    • Kudos. I’m so heartily sick of these fantastic excuses for discriminating against gay couples that purport to be dispassionate, objective, rational justifications that I lack the patience to go into this kind of detail.

      And this commenter claims to be gay. If so, somebody with a collar or a glass cathedral did a real job on him, I fear.

    • My argument is concerned with the type of relationship structure which is the basis of reproduction. We’re looking at two relationship structures: opposite-sex and same-sex. The former is capable of reproduction; the latter is incapable of reproduction. A particular instantiation of the former may not produce offspring for reasons unrelated to its basic makeup, but no instantiation of the latter will produce offspring precisely because of its basic makeup. If you think the distinction between type and particular instantiation is invalid, you’ll need to present an argument why, rather than a pronouncement that the reasoning is circular.

      • “A particular instantiation of the former may not produce offspring for reasons unrelated to its basic makeup, but no instantiation of the latter will produce offspring precisely because of its basic makeup.”

        Again, you are defining terms in ways that are convenient to you. Why is someone’s biologically determined infertility any less a part of their “basic makeup” than their biologically determined gender? And why should we care about either when regulating marriage, when so many married couples will never have biological children anyway?

  8. “That’s what marriage is for.”

    Stop. Think for a second. There are very few things in this world that have only one legitimate purpose. And you’re going to insist that marriage–one of the most complex, dynamic, and evolving institutions in human society–is one of them?

    Why do so many opponents of marriage equality insist upon such a ridiculous thing?

    Off the top of my head, I can think of many, many other purposes of marriage aside from responsible procreation:

    –Married people are less likely to be imprisoned.
    –Married people give more to charity and are more productive workers.
    –Married people live longer while at the same time proving less of a drain on society’s resources, because
    –Married people are less likely to need welfare and other forms of public assistance, and
    –Married people get sick less often and are less likely to be unemployed.

    All of this is generally true for married couples even when they have no children.

    Pair-bonding is good for the individual, but it’s also clearly good for society.

    Why should we ignore every other societal benefit of marriage in order to discriminate against a group just because they cannot fulfill one single purpose of marriage? Why make procreative potential the be-all-end-all of marriage requirements, even though we clearly do not and never have applied that standard consistently?

    • They say it, Chris, because they have nothing else. The legal arguments are disingenuous and no longer fly. The culture has turned around. Now all that’s left is “it is what it is”—“government has no business defining marriage.” If marriage is going to the basis for benefits, tax deductions and social and public policy, it MUST define it, and do so fairly and without stigma. Religions can do what they want.

    • I never said the first thing about marriage serving only one legitimate purpose; that’s a straw-man. I’ve been speaking of its defining purpose, the reason it was instituted in human society to begin with. Of course there are ancillary benefits. But when you remove the purpose of regulating reproduction from the definition of marriage, when you treat biological sex as an arbitrary distinction, there’s simply no compelling reason for marriage to be reserved to romantically-involved relationships between two-and-only-two unrelated persons.

      • Kyjo: “I never said the first thing about marriage serving only one legitimate purpose; that’s a straw-man.”

        You said “That’s what marriage is for,” which implies only one legitimate purpose.

        “I’ve been speaking of its defining purpose,”

        You’ve been speaking of *your* defining purpose. Many people would define marriage differently. Go up to ten random strangers and ask them the definition of marriage and you will get ten different definitions. Most of them, I’d wager, won’t even include a mention of children. Most wedding vows don’t. Just because you think responsible reproduction is the defining purpose of marriage, doesn’t mean the rest of the nation needs to follow your beliefs.

        “the reason it was instituted in human society to begin with.”

        The reason the Internet was instituted in human society was to spy on Communists. Since I assume you’re not fulfilling that purpose, I’d kindly thank you to stop corrupting this institution.

        “when you treat biological sex as an arbitrary distinction, there’s simply no compelling reason for marriage to be reserved to romantically-involved relationships between two-and-only-two unrelated persons.”

        Sure there is: that’s what our society sees marriage as.

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