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June 15, 2006


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Al Alschuler

Is this entirely fair to the pre-Presidential LBJ, whose first job was as a teacher of Latino kids in Cotulla, Texas; who was one of three Southern senators to vote against the Southern Manifesto after Brown v. Board (together with Estes Kefauver of Kentucky and the original Al Gore of Tennessee); who helped engineer passage of the Civil Rights Acts of 1957 and 1960; and who chaired the Committee on Equal Employment Opportunity in the Kennedy administration? There's no denying the dark moments Geof Stone mentions, & LBJ was a frequent user the N word in private. But the great Presidential politicking that gave us the Civil Rights Act of 1964 did not come out of the blue.


Bush "can restore his personal credibility and create a lasting legacy for himself as a moral leader." Really? Can he do that while he is continuing to torture people, operate secret prisons, and imprison people indefinitely without filing charges against them -- all while lying about these things? Of course he should support federal legislation against discrimination against gays, but it's a little late for him to restore his credibility (as if he ever had any) or to become a moral leader.

Mike Felder

While it is quite nice to conceive of opposition to homosexual relationships as a "get-with-the-times," obvious social welfare initiative, Stone inexplicably collapses homosexual relationships into the same category as homosexuality. As such, he denies that humans have the ability, neigh the duty, to respond to disordered urges as just that--as something upon which homosexuals have the ability to control and that belong in the same category as other urges that society scorns--and to reject them altogether rather than to perceive self-defined urge as a reason that justifies behavior. We are not so self-indulgent yet, are we?
In a post-Fall universe we must confront our failings; be that as it may, we needn't not give in to said failings with the expectation that society will subsequently embrace us for said actions. Instead, we must aim to improve our behavior to correlate with what we are called to do in life.

The Law Fairy

Mike, it must be nice to live in a world where the most pressing issue is who men are having sex with (or are you one of the few consistent Christians who finds lesbianism as distasteful as male homosexuality? Most fundamentalists I know are mostly concerned with penetration, since, you know, no penetration, no sex). I really, really wish that I lived in that world. You know, a world where there was no domestic abuse, no rape that is called "consensual" due to male-dominated views of sexuality, no races who are tossed into prison because it's easier than facing the fact that society owes a debt to its most oppressed members, no Darfur, no Sudan, no Haiti. That would be a nice world.

But here in realityville, we Christians (yes, Mike, I am a Christian -- raised fundamentalist and everything, email me if you want my credentials) are called upon to be concerned about these things. A quick look at the Bible reveals that God is not as obsessed with sex as many of his proclaimed followers are. If he was, how can we explain men like David and Solomon (sex fiends to rival Will Chamberlain) or women like Rahab? There may be ancient Jewish prohibitions and regulations regarding sex, but Jesus was hardly the voyeur modern Christians seem to emulate.


A dis-ordered urge?

Mike, sleeping with a sheep is a dis-ordered urge. Eating a burger when you're 100 pounds overweight is a dis-ordered urge, raping someone is a dis-ordered urge.

Falling love with someone of the same sex and wanting to spend the rest of your life with that person, forming a family, and forming the basis for making a meaningful contribution to society is NOT a dis-ordered urge.

Louis Kessler

"the duty, to respond to disordered urges as just that--as something upon which homosexuals have the ability to control and that belong in the same category as other urges that society scorns--and to reject them altogether rather than to perceive self-defined urge as a reason that justifies behavior. We are not so self-indulgent yet, are we?"


Generally on planet Earth, we humans with functioning brains only label urges "disordered," certainly from a legal perspective in deciding whether discrimination is warranted, when acting on such urges harm others (what U of C dorks call "externalities") or at least when the effects of acting on such urges on a third party is unclear or the third party is unable to decide for themselves (thus the prohibition of sex with sheep and 14 year olds).

When urges involve two consenting adults and involve no externalities, there is no way to justify legal discrimination against acting on a particular urge. You know the whole "freedom" thing? I'm sure you are familiar with this concept.

I ask you Mike, can you ground your argument that law should distinguish between same sex and opposite sex monogamous coupleswithout resorting to some kind of argument grounded in the irrational authoirty of religion? Can you make the ethical case based on empiricism and positive claims only?

If not, if you have to resort to your religious beliefs to inform your legal ones, I'll point you to the constitution and suggest you give it another good read.

I'd also suggest you come to terms with your latent "urges." Nothing to be ashamed of buddy, but that is an issue for you and your self-alienation.

Grant Evans

While I think that a legal prohibitions against discrimination are admirable and important, I worry about the evidentiary problems that would arise under prohibitions suggested by Professor Stone - i.e., prohibiting discrimination based on sexual orientation.

Proving membership in certain "classes", for purposes of showing discrimination, is relatively easy and cheap, with a minimal invasion of privacy and no real threat to decorum (sex, race, age, disability). Of course, one could conceive of situations when evidentiary problems in proving membership in such classes could arise, but not to the degree that they would arise if discrimination based on sexual orientation were prohibited.

Proving ones sexual orientation, and proving another's knowledge or awareness of that orientation, would be a difficult thing. I wonder about those problems and whether we would not be opening a Pandora's Box by making the admirable steps suggested by Professor Stone.

The Law Fairy

Grant, I think a huge part of the evidentiary problem stems from the very fact that the discrimination is there and nothing protects gay people against it. Just as a light-skinned black person in the 1950s would not want to draw attention to her race, a gay person may not be as willing to disclose her orientation. The interesting thing would be, I think, whether non-gays could claim to have been discriminated against on the assumption that they were gay (for instance, men who wear pink or women with short hair). That would be, however, a policy issue, and not an evidentiary one.

Frederick Hamilton

I and I believe most Americans would have no objection to a federal law that proscribes discrimination based on sexual orientation as long as the legislation went on to explicitly state that it in no way is legislation meant to include the legal status of marriage as to approve of same sex marriage. Tolerance of religion, race, gender, sexual orientation is one thing. Using such a law as a back door to approving homosexual marriage is what will probably keep such a federal law from being enacted. Unless as I say, the legislation was very specific in stating that it is not meant to force the approval of homosexual marriage.

The other problem with "sexual orientation" is that the term does not soley mean homosexual behavior. I may be sexually oriented to have three wives. I have a true love for three different women. They all love me. We four all want to be in a legally approved relationship. In fact we four want to be married. Any problem with that? Is that not simply sexual orientation?

70% of Americans disapprove of homosexual marriage. I suspect a higher percentage disapprove of bigamy and polygamy. When do the wishes of the people get to be heard?

Professor Stone, would not your law by inference give a certain legal standing to homosexual marriage. To bigamy or polygamy? I think it would. After all, if what goes on in the bedroom is nobody's business and certainly not the governments business, then there is no basis for not allowing homosexual marriage. Multiple partner marriages, et al.

And please, don't start calling me names. I am not a bigot. I don't have a lick of animus toward homosexuals (male or female). I do respect the traditions and mores of the country and I do believe that we the people should decide what kind of laws we wish to have as it relates to the "legal" insitution of marriage. Civil unions are a different matter. I think it would be fine for any state or the federal government to recognize civil unions as a matter of contractual law.

To reiterate, I think the law as proposed by Professor Stone would just be a stepping stone to legitimizing all sorts of "marriages".

Louis Kessler

Frederick writes:
"The other problem with "sexual orientation" is that the term does not soley mean homosexual behavior. I may be sexually oriented to have three wives. I have a true love for three different women. They all love me. We four all want to be in a legally approved relationship. In fact we four want to be married. Any problem with that? Is that not simply sexual orientation?"

Yes that is, without evidence of coercion. I have no problems with polygamy, nor should our laws. The only problems with Polygamy are that the ones who practice it force women into these arrangements at very young ages in these creepy religious patriarchal sects. I've never known a self-aware, educated, fully autonomous human who is willing to share their erotic-loved one with someone else. But I'm not saying it isn't possible or shouldn't be legal so long as all parties are free from coercion.

"70% of Americans disapprove of homosexual marriage. I suspect a higher percentage disapprove of bigamy and polygamy. When do the wishes of the people get to be heard?"

Er, I believe the majority of Americans believe in creationism too and that Iraq was involved in 9/11. The idiocy and ignorance of hoi polloi aside, let's remember what the Constitution is for - to protect the rights of minority interests in the face of domination by majority interests. So I'm not so sure your 70% argument has much weight in this discussion. Well more than 70% of our country thought black people were inferior to whites and supported legalized discrimination at times too. Does that make it ok from a constituional or moral perspective? Didn't think so.

Frederick, I won't call you names, but I think you are full of sh*t when you say you don't have animus toward gays. Perhaps it is preconscious animus. I'm curious what it is you are trying to protect if you are willing to grant same sex couples he status of civil union.

But lets parse this out. What do you mean from a contractual standpoint? Do you mean that you are for same sex couples having all the rights and privileges and presumptions regarding children and death and divorce and taxes that married people enjoy should the register as a civil union? Or do you simply mean a state should not interfere if a same sex couple should sign contracts related to children and death/sucession and divorce?

Would you require same sex couples to explicitly contract for all the rights and privileges and presumptions that married couples have as a matter of law after they are married? Or do you support the idea of "civil unions" that are of the exact same significance as marriage in the eyes of the law?

If it is the latter, I question what motiates you to make a distinction in name only? You may say it isn't animus.

If it is the former, you have solved nothing, as contracts for power of attorney, of prenuptual arrangements, adoption and the like are already enforceable. It is when ther isn't a contract in place that matters.

Would you have a partner in a same sex couple that has been together for 40 years not have presumptive power of attorney over their loved one should that loved one fall ill and out of capacity (without a contract)?

If so, I question your status as a good U of C law student/ graduate concerned for minimizing transaction costs and externalities. It seems you'd prefer extended court battles and government meddling and tax penalties for raising kids rather that embrace the efficiencies that come from the automatic rights and privileges that married couples enjoy.

I pose this question to you:
Can you justify your position without resorting to religion? Do you have a legitimate, non-religious basis for your view?

Let's remeber that the Court in Bowers v. Hardwick based its holding on the fact that consentual homosexual sex was not "deeply rooted in this Nation's history and tradition."

That decision has been overturned by Lawrence v. Texas, and is one of the more shameful decisions in the last 50 years.

To quote a great man: "is that the kind of lawyer you want to be?"

Kimball COrson

With a lesbian daughter whom I do believe he dearly loves, why hasn't Papa Cheney taken Baby Bush out to the woodshed on this one? Cheney has no further political ambitions, but perhaps this is too big a betrayal of their political base on too touchy a subject for Cheney or Bush to do what is suggested.

Kimball Corson

With all of the real problems in this world, why should we presume to mind the business and judge those of different sexual orientation or get in the way of their efforts to fulfill their own lives. What real skin is it off our noses? Why must we mind their business and tell them what their sexual behavior, if not orientation, should be? There are too few good answers to these questions to justify the public hoopla attending these issues. Sexual orientation should be a non-issue. The bottom line is we just want "them" to be like "us" and that is quite feeble. From living outside of the country, I am beginning to realize how much this bottom line sentiment is ingrained in behavior of too many Americans.


Hi Kimball,

Hey, I think you have it backwards. It is not heterosexuals that care about homosexuality. It is homosexuals that demand that we recognized and accept their way of living. They have their marches and their demonstrations, they promote themselves at Disneyworld and in corporations, etc., and at the same time preach political correctness, acceptance of all values, etc. Today, if you speak out against gays, you are branded a homophobe or a bigot. It's rediculous. What is this, 1984? I could care less what they do. I am also tired of having it served to me every day in the press. It's boring.

Like I said earlier, it's homosexuals that want acceptance by everybody else and in their quest to demand this acceptance; they have created a backlash, I think, due to people jsut being fed up with listening to their whining all the time.



You said, "sleeping with a sheep is a dis-ordered urge. Eating a burger when you're 100 pounds overweight is a dis-ordered urge, raping someone is a dis-ordered urge."

You imply that inserting your penis into an oriface meant for defecating isn't a dis-ordered urge? I guess as a dis-ordered urge gets more publicity, it becomes a normal urge?

You crack me up.

Kimball Corson


I have to admit that your comments to me and to Drew here are pretty well taken. Indeed, I almost made the same comment to Drew, but got distracted. I suppose it is that when homosexuals push their orificial confusion on the rest of us, we revolt, but then too they want some normalcy to their lives, given that they cannot avoid that confusion. (Telling or lecturing them does not unwind the urge.) The former offends. The latter is a “why not” given or, as you say, a yawner. I suspect the confusion is genetically programmed anyway (probably an adaptive reaction to excessive population densities or presssures), but, hey, it works as a means of birth control and this poor planet needs every respite it can get. The Green movement should embrace and promote homosexuality.


Well Bob, if you want to be so cavalier about it sure...

If all you wanted was a simple explanation of what I meant, you could have said that as well.

A grossly overweight person eating a burger is a dis-ordered urge because it undoubtedly brings serious harm to that person. Furthermore, they know better. They know not only that they shouldn't be doing but that their very actions will impact them in a negative way physically. In short, it affects the ordinary function of the body in a way that is both negative and entirely avoidable.

A man sticking his penis in another man's anus, when consensual, is an urge sure (just like anything else), but disordered? I don't think so. It neither necessarily brings harm to that person receiving, nor harms the person giving necessarily. Of course you could argue that the risk of contracting a sexually transmitted disease is increased, and I'll happilly concede that point.

In additon to that, when that sort of sexual activity is nothing more than the extension of a loving relationship between two people, I can't imagine what you would see wrong with it... but then I'm not you.

It brings neither harm nor any more danger than any other type of sexual intercourse (when done carefully and with consent of course). It doesn't disturb any natural function of the body, mind or any other part of 'us'.

Hopefully that helps highlight the difference.

The Law Fairy


Since when does homosexuality have to do with a penis?? Are you denying that homosexual women exist, or are you making the far too common sexist oversight of women?

Also, as to people shoving it in your face -- um, most straight people do way more shoving than gay people. How else do you explain wedding and engagement rings, maiden names and married names, family photos sitting prominently on an office desk, and, hell, pregnancy? If homosexuality was ONLY about sex preference, then it would be irrelevant and you might have a point. But sexual orientation is about more than sex -- it's about basic human rights. If two women or two men love each other and want to have the same BASIC rights to jointly own property, live together, adopt and share custody of children, and not be treated like scum for having family photos that look a little different from everyone else's, they're not the ones throwing their orientation in people's faces. Rather, it is the government that denies them the same basic rights it gives straight people.

In the alternative, you could remain consistent by arguing that marriage should confer no benefits and no conveniences, and that we ought to eliminate the prevalent social bias in favor of coupledom (that last one, actually, I agree with -- but that's neither here nor there).

So which is it, Bob? Are you consistent?


Frederick, thank you for your thought-provoking post. I have some comments and questions in response:

- You suggest that most Americans disapprove of same-sex marriage and that "we the people" should decide marriage's definition. Since marriage is traditionally a matter of state law, shouldn't it be "we the people" of a particular state that defines our particular marriage laws? Consider New York. Recent opinion polls suggest that either a majority or a near-majority of New Yorkers SUPPORT same-sex marriage. (See the 2004 Times Union poll covering the Albany region: 47 percent support same-sex marriage; 2005 Quinnipiac University poll covering New York City: 51 percent support same-sex marriage; 2006 Global Strategy Group statewide poll: 53 percent support same-sex marriage.) Do you aggree then that New York should legalize same-sex marriage?

- I think your fear of an overly broad definition of "sexual orientation" is unwarranted. A statute can clearly adopt a dictionary definition of sexual orientation. Webster's defines it as "inclination of an individual with respect to heterosexual, homosexual, or bisexual behavior." The American Heritage Dictionary defines it as "the direction of one's sexual interests towards members of the same, opposite, or both sexes." Note that neither definition extends to numerosity.

- I think there are many ways to distinguish between same-sex couples and plural relationships. To me, the latter are troubling while the former are not; this is because, as it is most often practiced, polygamous relationships exploit women. At a functional level, it is unclear what legalizing polygamy would even mean. Consider the fact that, under marriage laws, one partner is the other person's default decisionmaker in, for example, medical emergencies. It is unclear to me what would happen to all of marriage law's default rules if we tried to legalize polygamy. Thus, I think there's a functional reason for distinguishing between same-sex coupling and plural relationships. (For more on this functional argument, see Prof. Mary Anne Case's recent article in the Minnesota Law Review.)

To add to the discussion on what is "disordered"...

- I agree that we have to look beyond religion to decide what is "disordered." Our Constitution protects religious freedom. In that spirit, I don't think others should impose their religious viewpoints on me and vice versa.

- I think it's worth noting that mainstream social and medical scientists agree that homosexuality is not a disorder. You can take a look at the social and medical scientists' amicus brief in Lawrence v. Texas for a good summary of the position of the national professional associations for psychologists, psychiatrists, social workers, etc. Moreover, social science research overwhelming shows that, not only is homosexuality not a disorder, same-sex couples form healthy families and raise healthy children. For a good summary of the literature on gay parenting, see Judith Stacey's literature review in her 2001 article in the American Sociological Review.


Amen, Bobby. Furthermore, mouths are meant for eating. I urge all of you to join my campaign against open mouth kissing which is a perverse and disordered urge. Blowjobs are out as well, natch.

Kimball Corson

I am not sure that mouths are not also for open mouth kissing between intimates as a sort of bacterial and viral equalization and equilibrating mechanism for those who live closely together and share food and sometimes utensils. Too, blowjobs and cunnilingus can be a functional ways of aiding erections and providing sexual pleasure, both legitimate sexual goals and not at all perverse. Lesbianism parallels male homosexuality, both with respect to its non-procreative green aspects, but also, the need of those so oriented to have otherwise normal lives and the rights and privileges that attend them. Why we feel the need to mind the business of and “straighten out” those of different sexual orientation than we are is totally beyond me. If a relationship is consensual and there are no noteworthy negative externalities (but some green positive ones), why should we work ourselves into a lather? Why cannot we just accept people as they are and help them lead the lives they want and give them the rights and privileges they need and should have? This seems so obvious to be as to be a no brainer. Religious predisposition accounts for a lot of anti-homosexualism, but certainly not all of it. Denying homosexuals civil and other rights is nothing more than our efforts to sexually mind their business and express our disapproval of their sexual orientation. It is also mean spirited. Also, this business of whether we can call homosexual unions marriages is semantical nonsense inasmuch as the real concern is the rights and privileges legally bestowed. Saying that marriage should only be between a man and a woman is just another way of expressing disapproval of homosexual relationships; nothing of substance is involved beyond that. Again, why must we decide how others are to live? What business is it of ours? Life is short and if a person can find love and a caring relationship in one that is homosexual, more power to them. We should help and aid them and not play the roles of mini-Gods and judge them. Doing so exaggerates our own importance and minimizes theirs.


I thought I was laying the sarcasm on pretty thick. I'll try harder next time.

Kimball Corson

I understood, but used your comment as a launch pad anyway.

Louis Kessler

We are not talking about anal sex here, we are talking about love, monogamy and marriage. This isn't about the propriety of sex acts - that issue has already been decided as a constitutional matter- it is about whether two people of the same sex who as a matter of law can love each other and can live together and even functionally (and I believe legally in some states) raise children together will enjoy the same rights, privileges and presumptions with repect to each other that hetero married couples enjoy.

This isn't about gay people throwing their "lifestyle" in your face and stirring the pot, as much as the civil rights movement wasn't just about blacks throwing their discrimination in the white man's face, it is about *equal protection of the law,* it is about being able to file taxes together, it is about custody of children raised together, it is about intestate succession, it is about community proprty, it is about and most of all it is about common decency, respect for indiviual choices, respect for LOVE, progress and weeding out institutionalized bigotry in our legal system. Gay people live together and raise children together and have families together already, and our laws do not recognize that. They are behind the times.

This is about dignty and respect and basic legal recognition of private individual choices.


Wanting to breathe underwater is a disordered urge. Wanting to fly through the air at great speed is a disordered urge. Wanting to walk on the moon is a disordered urge. Wanting to breathe in smoke is a disordered urge. Cutting someone open to save their life is a disordered urge. Wanting a Louis Vuitton bag because every other bourgeois woman has one as a symbol of her wealth and status, that is a disordered urge. Ordered urges it seems, as informed only by biological function, wouldn't leave much room for human flourishing (or bizzare consumption) now, would it?

I'd hate to live in your world Bob with your poory thought out notion of "order." As a physicist, Bob, I can reassure you that there is plenty of order and elegance in the Universe, but as an enlightened philosopher I regret to inform you that your sense of order is misinformed, small minded, and reeks of fearful submisson to the irational authority of overly-popular 2000-6000 year old religous cults.

And Bob, should you ever get the courage to loosen your clenctched grasp on your notion of "ordered" behavior, I do recommend trying to scuba dive one day; it is a profound and beautiful experience. Also Bob, while those who live in fear tend to have problems with love, should you ever get a girlfriend or wife, I also highly recommend anal sex. It can be great fun and most pleasurable for both you and her, disordered orafice and phallus alignement stipulated.

Man oh man, does the admissions department at my law school need to be fired. Whether because of Ashcroft or the staggering number of other fearful bigots I encountered there, it is hard sometimes to feel proud that I graduated from the U of C Law School.

Kimball Corson

Now calm down, Louis. Like many institutions which teach what amounts to positive behavioral conventions, albeit creatively and in context with a normative twist at times, the Univ. of Chicago Law School does not admit the bizarre, quixotic or oblique as students because they may not serve in the profession, which is largely as square as straight arrows can get, at least at its core -- and I don't mean sexually.

Bob is actually very thoughtful and interesting in many quarters and generally reflects well on the Law School, even if one does not agree with him. Too, with other available orifices, we all need not become enamored, as you and others seem to be, with each other's anuses, but that is certainly not an option I would deny anyone. Further, you make Bob's point in large measure by urging him to engage in anal intercourse. Being told what to do or not do sexually is what offends Bob and a key point of his post.

Urges largely become "disordered" when pursued by some and disapproved of by others. Naturally, urges are ordered by function. It is a disordered urge to seek procreation by anal intercourse, but not if the function is the pursuit of pleasure, (but even that will not work for some). The pursuit of pleasure aspect may be a part of the problem, for there is a growing segment among some fundamentalist Christians that all intercourse should be limited solely to procreative efforts, . . . unfortunately. Needless to say, they do not approve of homosexuality or the screwing of sheep or ducks, and it has nothing to do with whether it is hard on those creatures.


I'm in economics (& apologize now for the probably obvious answer), but I don't know contract law...can an individual have the same exact contract with 2 people? I'm not sure that what constitutes a union of marriage can exist between more than 2 people. The government's involvement should be none other than to backup a particular set of rules in a contract between two people. This contract can be formed between 2 men, 2 women, or a man & woman...a contract cannot be formed between a duck & a man, 3 women & a man, 3 men, an underage boy & a woman, etc.
There is virtually no sexual act performed by homosexuals that heterosexuals (unmarried) haven't tried, so the idea that the government must preserve morality through heterosexual marriage on the basis that sex acts of homosexuals are perverse, well it's a hard sell.

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