Daily Links - October 9, 2011

This is very well-argued.

Walt and Mearsheimer will love this book.

What do smart people do with 1.4 million dollars?

Bye, bye.

While on the subject of David Frum, I can definitely relate to this.

Not everyone is so fond of the famous Steve Jobs commencement speech.

Is OccupyWallStreet the US' J-14 Protests?

Daily Links - September 27, 2011

Aaron David Miller on why Obama would be foolish to try to broker the conflict. Miller clearly respects Abbas more than Bibi.

Nice to see some tolerance out of some Egyptian clerics.

Hussein Ibish on the speech Arafat should have given.

This study doesn't seem so surprising.

Neither does this.

Daily Links - September 26, 2011

Mearsheimer responds to charges that he favorably reviewed the book of an Anti-Semite. He didn't do much research apparently. That didn't stop Brian Leiter from supporting him.

How important is the fight over the Obamacare mandate to constitutional law? Not very.

Krugman was way off with Ireland.

A poignant and timely call for teams to recognize the psychological needs of players.

I'm going to try to get through this book over Rosh Hashana. Pray for me.

Daily Links - September 25, 2011

Saudi women are now equal to men -- equally powerless.

An excellent description of where the I/P conflict is right now. Very few are as good as Mead in explaining this stuff.

The Arab Spring is not all peachy, at least for the non-Arabs.

Not exactly a Keynesian view.

An interesting analysis about how Blacks, Jews, Gays, etc. ended up part of the moral community. It's not often the choices are Marxian, evolutionary, or Nietzschen.

Daily Links - September 24, 2011

But the PA supports terror. Does this make the US a state-sponsoring terrorism?

Some good, some bad, but probably more accurate than Abbas' speech.

A lot of this article could have been written by Elder of Ziyon or Jameel at the Muqata.

What does Walt have to say about his co-author's open support for antisemitism?

Phew, relativity is safe.

Given the existence of a liquidity trap, is inflation the way to go?

Daily Links - September 22, 2011

There's the final nail in the coffin of the myth that Abbas rejected Olmert's deal. Of course, we already knew that.

Politics is why Palestine will not be able to prosecute Israelis in the International Criminal Court.

Glenn Greenwald chastises Chief Judge Dennis Jacobs for issuing an intemperate, childish opinion -- in an intemperate, childish post.

Cluelessness on the UWS.

His inability to throw the ball to first really was inexplicable.

Daily Links - September 21, 2011

According to a recent poll a substantial majority of Palestinians support Abbas' gambit at the UN. He may have overstayed his term, but he is doing the will of his people.

More examples of Obama's hatred towards Israel.

Modern science is not a friend of free will.

Yay.

Law as a system of planning.

How the health care mandate does not mean unlimited power for Congress.

Daily Links - September 20, 2011

Would Milton Friedman have supported more quantitative easing?

Greg Mankiw claims the rich pay more than double of their income in federal taxes. Krugman doesn't think that matters.

The brain is amazing, but it has some amazing flaws.

Even by traditional stats, Rivera is light-years ahead of every other reliever ever.


Why are Jews so clueless when it comes to Obama?

Should Israel challenge China's misconception? (Page 156, at the bottom or search for "protocols").

Daily Links - September 19, 2011

Hussein Ibish channels Khaled Elgindy in Foreign Affairs and essentially claims that Palestinian statehood bid is designed to further the peace process by breaking the parties out of the rut they are in. Rashid Khalidi disagrees.

Accordingly to a poll taken by the BBC, majority of the world and even majority of Americans support Abbas' gambit at the UN. The US will veto anyway.

Even smart and relatively open-minded people have obvious blind spots.

An excellent post on how Rawls and Hayek/Nozick do not disagree as much as people might think. Should be required reading for the GOP leadership, assuming, of course, they could understand it.

Is philosophical naturalism sustainable? 

More data on what is being referred to more and more as the "law school scam."

Kosher lights on Shabbos? Sounds cool, let's leave it at that. Kosher computers/Ipads/Iphones would be the end of the Shabbos.

Is inflation always evil? Not according to Krugman.

Daily Links - September 18, 2011

Commentary believes that Obama is to blame for the upcoming Palestinian statehood initiative at the UN. Others agree, but for reasons that don't involve assuming the absurd idea that Obama is engaged in a war on Israel.

In anticipation of the Palestinian statehood vote this week, the JCPA put out an E-book that contains some good articles, but also a lot of propaganda.  (Hat Tip: EOZ).

Juan Cole is clueless about the Israeli Supreme Court's many orders (I, II) against Israeli land expropriation in the territories. 

I assume this post by Elder of Ziyon is supposed to be ironic or he is simply blind to the fact that Zionism creates the exact same problems.



It amazes me that anyone would take Turkey serious on the Gaza issue. Their misdeeds in Cyprus read exactly like what Israel is accused of doing. 

Supporters of the "whole Constitution" are no better than Grover Norquist.

Noam Chomsky on apparently why intellectuals should live their lives on the fringes of society.

I have not read this article, but this whole enterprise -- analyzing how Halacha is actually decided -- is long overdue.


Republicans have found one tax cut they don't like -- payroll taxes for poor and middle class people.

The new Steven Pinker book seems to be a tad too long at 832 pages. But if it's anything like his previous books, it will be well-written, meticulously documented, and overly controversial.

I'm Back

It's been a VERY long time since I last blogged here, but I figure that rather than spamming other people's Facebook feeds, I might as well put my energy here. So I intend to post links to various articles, blogs, etc. a few times a week or even every day, time permitting. From there, who knows? I might start blogging again. For those of you who last read this blog because of the Rafi updates, you should know that Rafi is doing great. He has many surgeries in his future, but he's doing quite well all things considered and even started school this week! He's also excited about his new brother Gavi, who's almost three months old.

Rafi 16 Month Update

A lot has happened since Rafi's 12 month birthday, especially in his eating development. As mentioned, Rafi no longer relies on a feeding tube for nourishment, but we still had to spoonfeed all his meals until just a couple of months ago. I'm proud to say that Rafi only now needs the occasional spoonfeeding and has since learned to eat food off his booster tray!

In terms of upcoming jaw surgeries, much has been postponed. As we found out at our last NYU conference that when Rafi was born, the surgeons believed that he would need to start those surgeries as early as possible (in Rafi's case when he would be 2 or 2 1/2 years old) due to his health conditions. However, since he is thankfully doing so well, the surgeons would much prefer to wait. The new surgery date is unknown, but will probably not be set until Rafi is about 4 or 5 years old. I had been hoping to get some of his surgeries over with next year, but it seems that it would be best to wait, and so that is what we'll do.

When Rafi is about 5 years old or so he will have additional surgeries concerning his hearing. He currently wears a BAHA hearing aid on a headband, and when he is older, the BAHA will be implanted in place. Also, any ear canal damage or underdevelopment will be resolved in multiple surgeries as well. Eventually he will have a new outer right ear and the ability to hear from it!

In other news, Rafi is doing very well developmentally. He is a healthy, active little boy who loves his toys, books, and whatever outdoor time we can get, weather permitting. Thankfully we have a great playroom in our apartment complex so Rafi can run around indoors (and now he's really running!) in the winter months. Rafi has yet to say any words, but his speech therapists are working on that. They have successfully taught Rafi a few signs, such as "bye-bye," "more," and "give me," which help Rafi communicate his needs.

We are so grateful for Rafi's progress and continue to be so proud of him!

Rafi: 12 month update

Rafi celebrated his 1st birthday with family and friends this past month, and the event was truly special. After everything our little family has been through this year, the birthday was especially meaningful. It gave us the oppurtunity to thank many of those who helped us and continue to help us deal with our situation with Rafi, whether it be physical or emotional support. Additionally, the birthday gave us the impetus to reflect on this past year and how far developmentally Rafi has grown.

Rafi has now surpassed his need for a feeding tube, his last session with one being in mid-August (and will hopefully never need one again) and he can now stand and walk with great improvement. His babbling shows promise of his first words, hopefully to come soon (can't wait!). Additionally, he shows understanding of simple requests, ("Come to Ima!" or "Give that to me.") by actually following through! Rafi has also stopped receiving feeding therapy, and is now engaged in speech therapy alone, which he enjoys.

A lot has been going on with Rafi's medical situation as well. Just recently, Rafi underwent minor surgery to remove his feeding tube stomach button, which was successful (except that now he's being treated for an infection from the surgery--he should be totally fine within the next couple of weeks). He has also been seeing an audiologist at New York Eye and Ear who fit him for a Baha hearing aid (which is worn on a headband; no surgery required). It's tough to keep the Baha on his head, though, but with time Rafi should get used to wearing it.

Since the weather has been so nice, Rafi's been spending a lot of time pushing his car-walker around various neighborhood playgrounds, especially those with bonus sprinklers. It always surprises me when he suddenly walks away from his little car and ambles off on his own, but I guess I've got to used to seeing that.

All in all Rafi's come a long way and we continue to be so proud of him!

Rafi: 10 Month Update

At 10 1/2 months, Rafi has made a lot of headway since the 8-month mark. His crawling has advanced to warp speed and he cruises furniture with ease. Rafi's latest feat is standing in place for about 20 seconds--maybe he'll even try walking soon! Some of his other "tricks" include waving bye-bye, clapping, and tossing his toys out of the tub while bathing.

Rafi has continued to grow so well physically that he was actually discharged from physical therapy, making his day-to-day schedule a lot easier to manage. He still receives feeding therapy, and his therapist will also soon incorporate speech therapy, but Rafi is making a lot of progress in his eating as well. Using a hand-held mesh "easy feeder," Rafi enjoys eating soft fruits on his own, and gets a lot of chewing practice. When I blend food for him, I can now make it a lot more textured than in previous months, and Rafi can handle it with marked improvement. He still receives his formula via feeding tube, but he's also getting better at drinking from a sippy cup, so hopefully we won't have to continue with the tube much past his first birthday. We also have an appointment with an audiologist at the New York Eye and Ear later in July, who will be fitting Rafi for a hearing aid in his right ear.

In terms of doctors' appointments, Rafi's schedule has become considerably lighter. After our "make-up" sleep study, which thankfully concluded that Rafi does not need any kind of ENT surgery at the moment, his appointments are at an all-time low. We did have a scare at the end of last month when his feeding button (port on his stomach) fell out (we were warned that could happen) and we had to take a late-night trip to the ER to get it replaced. After it fell out again the next afternoon, the doctor concluded that it was simply too small and placed a larger-sized one instead. Since then, we thankfully haven't had any trouble with it.

Since we're not spending too much quality time at doctors, Rafi has really expanded his recreational side. We've been to the weekly storytime sessions with other infants at our local library and also frequent the playgrounds. Rafi loves the swings, slides, crawling around and picking up foreign objects, and watching the older kids. Our building complex thankfully has a great playroom for rainy days and now that Rafi is a little older, he can appreciate many more toys. We also recently went to the Central Park Zoo and Rafi fearlessly pet the sheep and goats.

All in all, things are really improving for Rafi. He is just a regular baby, soon to be toddler, very inquisitive and curious, and getting his hands into anything they can reach. We are so grateful and fortunate for his progress and hope he will continue to grow and develop as well as he is now.

Rafi: 8-Month Update

Rafi is now about 8 and a half months old and continues to be one resourceful little boy. After a long while of experimenting with variations, Rafi has finally learned how to crawl! He's also pulling up on furniture, cruising a little, and can now lower himself back to the ground a lot more gracefully than when he first started. Babyproofing has turned out to be a work-in-progress since it's sometimes tough to figure out what he can and cannot get himself into, but we adjust his space accordingly.

In terms of speech, Rafi's recently added "ma-ma" to his vocabulary of random yells and croaking sounds. He'll undoubtedly need speech therapy because of his irregular jaw, but it's good to know that he's motivated to try new sounds.

Feeding Rafi has always been an issue, and the feeding tube will remain his main source of nutrition until he's about a year old. It's sometimes tough to feed an energetic baby who technically doesn't have to sit still to eat (although it would certainly make the process easier for me!), but thank goodness for distracting PBS shows. On Shabbos and Yomtov, reading to him while he's eating is generally enough of a distraction. Rafi loves to hear his books while eating solid foods, which he eats pretty well, although we're still in the stage 1, super-pureed foods, and have to hold off on finger foods. He can drink pretty well from a regular cup, (if I hold it while he's drinking), which is also promising for eventually dropping the feeding tube. Just a short while ago, Rafi actually held and drank from a cup of water all by himself (except that he was in the bathtub at the time, ewww!).

I still take Rafi to lots of doctors' appointments and other tests, and we recently saw his dentist, cardiologist, pediatrician, one of his surgeons, and ENT. Everyone was pleased with Rafi's tests, besides for the ENT. He did not like the results of the last sleep study (some numbers had improved, while others had not) and asked us to retake the test. We'll be going to the site of our first sleep study (definitely not Cornell) this Sunday night, and hopefully the poor results were just the result of a poorly done test. If the results are the same however, then the ENT said that the NYU team would have to discuss surgery options. This is, of course, disappointing, when everything else seems to be ok, but we'll have to wait a bit and see what happens.

Otherwise, Rafi is doing so, so well. His Early Intervention therapists are happy with his progress, and so are we.

Rafi Update -- 6 Months Old

Thank G-d, Rafi is doing very well right now, and we couldn't be happier with his remarkable progress. He's meeting a lot of major developmental six-month milestones: eating solid foods (so far, pears are his favorite), outgrowing his baby bathtub, getting up on his hands and knees and creeping a little, grabbing and mouthing anything he can get his hands on, babbling, growing his first tooth and in general being alert and interested in everything going on around him. Rafi's personality is really starting to show, and he seems to be a happy, generally cheerful baby.
He still receives the majority of his food through a feeding tube, but if he continues to grow stronger in his oral eating habits, hopefully by the time he's a year old we can get rid of the tube and have him eating exclusively by mouth, which would be truly great. Rafi recently received a new feeding tube set, which makes the feedings a little easier to manage.
Rafi's still being closely followed by one of his surgeons, Dr. Warren, at NYU Plastic Surgery and Reconstruction, and we consult with him about once a month about his upcoming jaw surgery. Dr. Warren sends us on tests to keep up with the situation, and our most recent one was an overnight sleep study this past Saturday night to monitor Rafi's sleep apnea. All I can say is that if you ever have to do a sleep study, don't do it Cornell Hospital (with or without a baby). That had to be one of the worst nights of my entire life. They were entirely unprepared for the baby, although I had clearly made the appointment for him, and did not even provide us with a crib. Suffice it to say that Rafi and I (and Nephtuli, who had to pick us up fairly early in the morning from the hospital) went back to sleep the minute we got back to the apartment Sunday morning. For our next study, we'll return to the sleep facility where we went the first time, and had a much better experience. We'll have the results next week, and we're hopeful that his apnea has improved since he's been a couple of months old.
Rafi also receives help, four times a week, from a couple of Early Intervention therapists for feeding and physical therapy. Both therapists come to the house (Thank G-d) and are great to work with. They're confident that Rafi will continue to meet his milestones and are pleased with his success. He still has some progress to make, and they're working hard to help him meet more goals.
We're also monitoring Rafi's (repaired) heart condition at Columbia, (where he had his heart surgery), and thankfully, his heart looks good and strong. There were some side effects from the surgery, but nothing that is too difficult to manage at this point. The blood clot that was seen initially turned out to be benign, so that was good news.
We also had good news from his audiologist--underneath it all, his closed-off right ear is completely functional. So, once his surgeons give him a new ear, he'll have two, fully-working ears. In the meantime, he can barely hear out of his right ear, but since his left ear is fine, he should be able to learn language as well as anyone else. Starting at about a year old, until his ear surgery, (about 6-7 years old), he'll have a hearing aid to help him localize sounds.
His upcoming jaw surgery is a little complicated: he would have already had it, since it causes lots of problems, such as sleep apnea, smaller airway, feeding tube, but Rafi is missing a key jaw bone needed to complete the surgery. Therefore, Dr. Warren is waiting until Rafi is a little older so that his baby bones will continue to harden and become available for a bone graft procedure. This will require at least two surgeries (one for the graft and jaw surgery) and we still don't know exactly when the surgeries will get started. If his condition c"v deteriorates, then Dr. Warren will be forced to do something extreme (a tracheotomy) which we, of course, do not want to happen, but thankfully, it does not seem that we will have to resort to such drastic measures at the moment.
At home, Rafi enjoys his playmat, toys and Exersaucer and is a bundle of energy. Thank goodness he still takes regular naps and sleeps pretty late in the morning (averaging about 9:15 AM) so I have some time to recharge and get things done around the house. We adore our little boy and continue to be thankful to so many people who have helped, and continue to help us along the way.

Like Cutting One's Fingernails

One of more maligned films in the Jewish world in recent memory was Munich. Munich told the story of the aftermath of the massacre at the Munich Olympics. As everyone is well aware, Israel recruited a team of assassins to kill the members of the Black September who plotted the massacre. The movie takes a number of liberties with the facts and is designed to get across the moral difficulties inherent in such forms of retaliation.

At the end of the movie the protagonist Avner, no longer the cockeyed idealist at the start of the movie, poignantly asks his handler what was gained from killing these men; after all they were quickly replaced. To which his handler responds "why cut my fingernails? They'll only grow back."

That's what Israel is essentially doing in this war. Israel cannot wipe out Hamas. Right now there is no other group that is capable of controlling Gaza and Israel has no interest in returning to Gaza. But Hamas was getting too powerful and was shooting too many rockets into Israel. So Israel decided to weaken Hamas so it would have a short respite until the next round comes in a few years. These are the realities of the Middle East where conflicts do not lend themselves to easy solutions.

That said, I don't understand what Israel intends to gain by launching this ground incursion. The loss of life and suffering on both sides (but especially in Gaza) that resulted from the ground operation cannot be justified if the sole gain is to weaken Hamas. Hamas was already greatly weakened by Israel's aerial campaign, and it seems to me that the utility of the ground campaign is outweighed by the substantial human cost. But I guess other people could have a different calculus.

Proportionality Revisited I

Just like during during the Second Lebanon War, much of the debate about Israel's conduct in this war revolves around whether Israel's strikes against Hamas are proportional. Generally left unexplained is: proportional to what? Additionally, the very idea of proportionality is difficult to understand. Why should a country respond in a manner that is proportional?

After my last post, in which I challenged opponents of Israel's decision to target Hamas to provide some realistic option, I've decided to lay out Israel's obligations in this war. In doing so, one must explicate the meaning of proportionality, which can only be done once the status of Palestinian civilians is clarified. I'll begin with the latter issue and show how proportionality is directly related to whether one believes Palestinian civilians are free targets:

Is There a Distinction Between Civilians and Combatants?

The civilian/combatant distinction has a long and venerable history. It goes back at least to the days of Hague Convention of 1907 and, at least in theory, has guided how Western countries have fought wars (of course theory is not reality). But what is the basis of the distinction?

We can conceptualize the distinction as follows: as a general rule people have the right to live. They should not killed arbitrary or indiscriminately; they only lose their right to live in certain circumstances. War is one of those circumstances. War is a suspension of the regular rules of daily life. War is a state of affairs when each party decides that trying to kill the other is preferable to the status quo.

While war has also been part of human nature for as long as human walked the Earth and outlawing war is essentially a fool's errand, we can make rules that limit the carnage. One such rule is to distinguish between people who are actively engaged in the fighting and those who remain on the sidelines. Those who engage in fighting (combatants) have chosen to forgo (for the most part) their right to life, while those who have chosen not to fight retain that right.

This distinction makes sense. It follows that someone who is actively trying to kill his neighbor bears the risk of his actions and give up his rights. By threatening his neighbor's life, he forfeits his usual protections. But someone who merely happens to live in the same country as those doing the fighting has not threatened his neighbor and accordingly preserves his rights.

How is this dichotomy relevant to Israel's war against Hamas? Essentially, unlike a normal country, Hamas does not have an army, and only has a military wing. Consequently, any member of its military wing, which includes its so-called police force, must be deemed a combatant and is fair game. Also important is that its military wing is inseparably fused to its political wing. As such, many, if not all, of its political members are combatants as well.

But Palestinians who are not members of Hamas are civilians (or combatants as members of other milatant groups such as Islamic Jihad). Those includepeople who support Hamas publicly or those who voted for Hamas. Given the very high exit costs in Gaza, civilians were faced with an election in 2005 between a corrupt Fatah and a belligerent Hamas, and the fact that most chose Hamas does not make them anymore combatants than the fact that a majority of Americans voted for Bush in 2004 makes them fair game because of the war in Iraq. While there is a fair degree of grey area here, support for combatants does not make one a combatant.

To keep this post short, I will deal with the proportionality issue in the next post.

The Residents of Bizzaro World Strike Again

My Israel activism days are long over, but every once in a while a situation arises that gets my blood boiling. When I first heard about Israel's retaliatory strikes on Hamas, I was ambivalent. Frankly, nothing permanent is going to come out of this, Hamas will still be around when the dust settles, and Israel will hopefully have earned itself some peace and quiet (which is an important virtue I admit). But any victory is likely to be pyrrhic, and anyone who thinks this "war" is going to fundamentally change the situation is dreaming.

Yet despite literally 12,000 rockets being shot into Israel over the last few years, we have self-professed experts pontificate that Israel's reaction is disproportionate, her strikes are a massacre, and that is Israel's ambitions are genocidal. Every time I read such nonsense I feel like grabbing the author and shaking him until he can explain what exactly is permitted to do under these circumstances. Hamas is the democratically elected government of the Palestinians in Gaza. It is also a terrorist organization according to the US, EU, and Israel. It has made no peaceful overtures. It not only officially states that its goal is to destroy Israel, but its leaders make such comments on a daily basis. There are no moderate members of Hamas (at least publicly). Hamas has unequivocally made it clear that its raison detre is to destroy Israel..

So what is Israel allowed to do when they are attacked by this entity? If Israel can't strike at Hamas policemen, if Israel cannot target Hamas leaders (even political leaders), and if Israel cannot target civilians, how can Israel defend itself? Unlike the IDF, Hamas "soldiers" wear no uniform or insignia designating them as combatants. They intentionally blend in with civilians. If Israel cannot attack its openly identified members (policemen and leaders), who can they attack? The terrorists aren't exactly wearing a placard stating their intent to carry out the next suicide bombing or launch the next quassam. WHO CAN ISRAEL ATTACK?

I'd like the next critic of Israel's policy to describe in detail what moves are permissible under international law, morality, or whatever. Enough with the meaningless criticism, let's hear some particulars.

Why I Do Not Oppose Gay Marriage

OK before I get into this post, a few caveats:

1) Insofar as the Federal Constitution is involved, I still believe that the Constitution cannot legitimately be interpreted either descriptively (based on precedent) or normatively (according to the most proper method of interpretation) to require states to allow same-sex marriage (SSM). I've blogged about this in the past (see here), and stand by much of what I've written.

2) This post is titled "Why I Do Not Oppose Gay Marriage" not "Why Everyone Should Not Oppose Gay Marriage." There are legitimate religious and moral arguments against SSM, which while they do not appeal to me, are perfectly acceptable means of legislating in the United States. I am no Rawlsian and do not limit political deliberation to public reasons. Moral and religious constructs are perfectly legitimate bases for laws in most cases, and I've seen no argument to exclude them in this case.

3) I am not making a case in favor of civil unions or domestic partnerships. There are literally hundreds of undisputed, tangible benefits that accrue to married couples that are denied to same-sex couples when they cannot enter civil unions or domestic partnerships. Frankly, given all these benefits, it's hard to really come up with an argument against civil unions, and I am starting with the baseline that civil unions should be allowed.

Onto the subject at hand. For much of my blogging career I have been opposed to gay marriage. Although I haven't written much about it (here being an exception), I've defended the anti-SSM position on blogs such as Dovbear. But after a number of years of thinking about it, I've come to the realization that there simply isn't any reason for me to oppose it.

What changed my mind? I'm not totally sure, but I believe it was a combination between gaining a greater understanding of the benefits of SSM and no longer placing as much weight on the costs (costs which are mostly illusory).

Let's look at the the arguments pro and con.

Arguments For SSM

The arguments in support of SSM are of two types, deontological and utilitarian. First the deontological:

1) SSM should be permitted a matter of equality. In the past I've opposed this argument since I believed that same-sex couples and opposite sex couples were not similarly situated. As a matter of constitutional law, I continue to believe I am correct. But as a matter of political morality, the essential definition of marriage is constantly evolving and the almost universal opposition to banning gay sodomy coupled with the growing support for civil unions and domestic partnerships leads me to believe that the concept of marriage is currently in flux. As a result, this argument appeals to me more than in the past.

The utilitarian argument is as such:

1) Marriage is clearly a benefit to the individuals involved. As stated above, I am not discussing tangible benefits such as visitation rights and marital property, which are undisputed benefits. I am talking more about the psychological benefits of having one's relationships accepted by society at large, which surely is important. If anyone doubts that society's willingness to stamp a relationship with a measure of approval is a benefit to a couple, imagine tomorrow that New York decided to outlaw Jewish marriages or interracial marriages, and only afford those unions the status of civil unions. Would Jewish or Black civil rights groups stand idly in the background because those couples in a civil union have the exact same rights as married couples? Would anyone reading this post not feel a degree of horror at New York's open and notorious act of discrimination?

Now, the analogy isn't perfect and as a matter of constitutional law there is a huge difference between same-sex couples and interracial or Jewish couples. But this isn't a question of law, but rather political morality, and the essential aspects of the analogy basically hold.

Arguments Against SSM

So now that I've laid out the arguments in support, have opponents of SSM mustered any strong arguments in opposition? I do not believe so and will explain why below. At the end of the day, the benefits of SSM far outweigh the costs. Let's look at these arguments:

1) Marriage has always been between men and women. There are two version of his argument, the Strong version and the Weak version. While I am sympathetic to the Weak argument and will return to it below, the Strong argument is fatally flawed.

The Strong version claims that marriage has always been between people of the opposite gender and therefore SSM is not marriage. As structured this arguments obviously falls prey to the Humean is/ought fallacy. The fact that marriage has always been one way does not entail that it shoul always be that way. Civil marriage is the US is currently in flux, and the aspect of marriage limiting the institution to opposite-sex couples is no longer as clear as in the past. Marriage is shifting and we should not deny the label "marriage" to same-sex couples merely because we have done so in the past.

2) Marriage is harmed by SSM. This argument is notoriously slippery. In what way is my marriage harmed if two gay guys down the block want to get married? Rarely is this argument explicated in way that would actually explain the harm.

The most explicable version of this argument was proferred by Amy Wax in a Federalist Society debate over SSM. In a nutshell, Wax argued that marriage is a bundle of criteria that taken together define the institution. One criterion is that marriage must be monogamous (obviously this hasn't always been true, but it is the accepted definition in the Western World today). Since, as Wax goes on to say, gay men tend to be more promiscuous than straight men and have more partners, if we permit SSM, we'll be allowing people who do not believe that marriage must be monogamous to negate the monogamy criterion. How does that work? Since marriage is defined in part by how people act, and 2% of men in this country are gay (and generally do not believe in monogamy), we'll be adding a large number of marriages between participants who do not support monogamy as a rule to the overall number of marriages. Those 2% will obviate the monogamy criterion because they will dilute the total number of monogamous marriages. But since they oppose monogamy as a rule, they will also be openly nonmonogamous openly and others may follow their lead and enter into marriages, which will not be monogamous. The more people who marry with the express intent to not be monogamous, the further the definition of marriage will be away from monogamy. The monogamy criterion will no longer be part of the definition of marriage, and that will lead others to forgo monogamy as well. Hence the change in marriage as we know it.

This argument fails on a number of grounds (I am basically restating Dale Carpenter and Andrew Koppelman's responses). First, most SSMs are between lesbians who are famously monogamous. If anything, they should outweigh the gay men who openly and notoriously enter into nonmonogamous marriages. Secondly, SSM will make up a very small percentage of marriages. It's hard to imagine those marriage will have a substantial effect on the rest of society. Definitional changes cannot be effected by such a tiny minority of marriages. As long as the overwhelming majority of marriages have a monogamy criterion, marriage will still be defined partly as a monogamous institution. Finally, even if a small percentage of marriage could have a real effect on the institution of marriage, there is a serious weakness in Wax's argument. How do we get from "gay men will marry without the intention of staying monogamous" to "others will follow their lead?" How will others know the rules of those gay men's marriages? I have no idea what type of marriage my neighbors practice, even though I realize that odds are some of their marriages are not entirely monogamous. Why would straight couples suddenly decide to have open marriages just because some gay men decided to do so? The logic just doesn't follow.


3) Permitting SSM in other countries has weakened marriage in those countries. This is an essentially empirical argument, most prominently offered by Stanley Kurtz. But Kurtz's statistics say nothing about whether the correlation between the negative effects of marriage and permitting SSM is actually causation. Essentially someone must make an argument to link the two. At the end of the day, this argument is parasitic on Wax's argument, because Wax provides a framework for understanding the data Kurtz and others provide. And Wax's arguments are clearly insufficient to justify not allowing SSM.

The above arguments are the most commonly offered intellectual justifications for not permitting SSM. But they fail to describe any costs to our society if we allowed SSM. And they surely do not provide a basis for denying same-sex couples the benefits of SSM. So I do not see any reason to oppose SSM anymore.

Given the above, why did I title my post "Why I Do Not Oppose Gay Marriage" rather than "Why I Support Gay Marriage?" Well, I'm still a conservative. While the criterion of marriage that only includes opposite-sex couples is in a state of flux right now, there has not been enough of a change on the ground for me to support SSM across the board. Not a single state has voluntarily decided to extend marriage to same-sex couples. 30 states right now have a constitutional ban against SSM. We are still ways away from SSM becoming part of our social traditions. Essentially I accept the weak version of the "marriage has always been this way" argument because I will afford our current practices a presumption of correctness (unless they are scathingly unjust) until the practices are modified organically.

But I would be completely open to NY, which is now completely under Democratic control, voting in SSM. I concur with Justice Brandies, who famously argued that the states should be laboratories of democracy. Let's let some states accept SSM, with DOMA ensuring that other states do not need to do so, and we can see whether SSM is capable of fitting within the norms of our society. We have little to lose and everything to gain. And if it happens in New York, you won't see me picketing outside of City Hall.