The Federalist Society


Same Sex Marriage

August 6, 2008


Questions and Answers:

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Marriage is good for married people and good for society. The public-policy argument for same-sex marriage can be put simply: It will benefit gay families, including couples with children, and will do so without much risk of harming others.

There are about nine million gay Americans. As of 2005, there were almost 780,000 same-sex “unmarried partner” households, totaling about 1.5 million adults. Overall, at least one million children in this country are being raised by gay parents. That’s a lot of people with no prospect of marriage in their lives.

Of course, these numbers should be put in context. There are 300 million people and about 55 million married households in the U.S. The vast majority of children are raised by heterosexuals, and heterosexual couples are far more likely to raise children. If denying marriage to gay Americans and their children is somehow really necessary to protect the overwhelming majority, so be it.

But the needs of gay families must be considered in the debate. Any humane and civilized person should be concerned about the welfare of these people and thus should consider how public policy affects their lives.

Gay marriage is new to the law but gay “marriage” is not new to life.

Gay families have been living and functioning as real families for decades now without full marital sanction. Over the past half-century, there has been a significant liberalization in social attitudes and legal policy toward homosexuals. This has occurred incrementally and, while there has been resistance, its vector has been toward the formation, growth, and formal legal recognition of gay families through domestic partnerships, civil unions, and now marriage.

One of the benefits of this development is that the debate over gay marriage is becoming less abstract and more based on actual lived experience. Gay families function much as others do in their needs and capacities for love, support, and sacrifice. They also have the same problems with money, jobs, child-raising, illnesses, and injuries.

Marriage offers them irreplaceable legal, care-giving, and social benefits. The legal advantages are many and well-known. Law confers rights and imposes obligations on married people in ways often designed to sustain them in times of crisis. Children are more secure in households where their parents are united in marriage. In the absence of marriage, the law is twisting itself in knots trying to accommodate the needs of gay families. Gay marriage would alleviate these legal difficulties and thus should help stabilize their lives.

There’s more. Marriage, by custom, social expectation, and to some extent by law, also encourages spouses to commit to each other. Even with no-fault divorce, it makes partners think twice about exit. Custom and social expectation – perhaps less powerfully at first for gay couples -- will give them and their relatives and friends a common language in which to talk about their relationships and a common framework in which to think about their obligations.

It’s implausible to think that gay families will get no benefit from marriage. The interesting question is how great the benefit will be. We probably can’t just extrapolate everything heterosexuals get from it, but some magnitude of the benefit will surely be available to gay families.

On the other side of the ledger, how plausible is any harm? Even proceeding cautiously to minimize the danger of unintended consequences, every change requires some judgment about risk. I don’t see any basis in experience or common sense for thinking that heterosexuals will procreate less responsibly or take their own marriages less seriously, or that the stabilizing conventions of marriage (like the expectation of sexual exclusivity) will be undermined.

If I’m right, gay marriage is not a conflict of goods in which preserving healthy heterosexual families must be sacrificed to some extent to improve the lot of gay families. It’s win-win.



 Bio

Professor Carpenter correctly points out that legal policies towards homosexuals have been liberalized in recent years and that, in fact, gays have been functioning as partners in families for decades now.  This state of affairs is graphically illustrated in the California Supreme Court’s recent decision establishing the right of homosexuals to marry.  The majority opinion noted that the issue in the case was not whether it would violate the state Constitution to “limit marriage only to opposite-sex couples.”  Rather, the issue was whether the state could extend to homosexuals “all of the significant legal rights and obligations traditionally associated…with the institution of marriage” but refer to these homosexual relationships as domestic partnerships rather than as marriages [emphasis added].  The Court determined that withholding the term “marriage” violated a couple’s right “to have their family relationship accorded dignity and respect  equal to that accorded other officially recognized families.”

Even in states that do not have domestic partnership laws, the felt injustice of unequal recognition is one of the driving forces behind the demand for homosexual marriage. Why does unequal recognition, which certainly seems less harmful than, say, criminalizing homosexual conduct, provoke such a severe sense of injustice?

As in so many things, Alexis de Tocqueville is edifying on this question.  He wrote of “a singular principle of relative justice which is very firmly implanted in the human heart.”  This principle, he continued, is that “[m]en are much more forcibly struck by those inequalities which exist within the circle of the same class than with those which may be remarked between different classes.”

If Tocqueville is right, withholding the word “marriage” can seem profoundly wrong precisely because homosexuals have achieved so much acceptance in American society.  Perversely, it seems that the more society progresses, the more there is to be outraged about.  This principle is built into the widespread judicial practice, of which the California decision is only one example, of defining fundamental rights by generalizing or abstracting the rights already traditionally protected by society.  The more a right has been respected by political institutions, the more likely it is that a court will declare it to be morally imperative that the right be extended beyond its existing limits.

Tocqueville’s “singular principle of relative justice,” however, can have special problems when applied by a court.  If publically accountable institutions had extended the rights afforded homosexuals to include the designation “marriage,” the dignity and respect that goes with that term might have been convincingly bestowed.  But dignity and respect are not necessarily bestowed by judicial decree.  Indeed, now that a court has required that homosexual couples be included within the circle of marriage, such couples may feel increased sensitivity to any remaining signs—including signs less overt than the possible passage of a proposed amendment prohibiting gay marriage-- that many Americans do not view homosexual marriages as being worthy of as much respect as traditional marriages.  If so, this remaining hurt will seem even more intolerable than older inequalities.



 Bio

Here are a number of concerns with legalizing same sex marriage.

 

First, whether we like it or not, a big part of the gay agenda for decades has been to repudiate what are regarded as overly restrictive expectations of monogamy and sexual fidelity.  There still is considerable ambivalence on this point.  Unfortunately, and despite wishful thinking, deviation from the strong norm of sexual exclusivity is very destabilizing of heterosexual relationships.  Even more unfortunately, what has been happening in inner city and low income communities illustrates this all too starkly:   the rise of multi-partner relationships as a way of life has been a major force in the decline of marriage.  So we should be wary of extending marriage to a community with influential people who believe that sexual monogamy isn't that important, that sexually unfaithful partnerships are not such a big deal.

 

Second, there is a stark biological fact to contend with:  in homosexual families, by definition, only one parent, at most, will be biologically related to the child.  In effect, gay families are either adoptive families or blended families.  Adoptive families at least solve a major social problem:  parentless children.  But blended families bring children into the world who are destined to live without two biologically related parents.  What will be the overall effect of that?

 

A social science literature is now emerging that reveals the relative weakness and instability of heterosexual blended and step-parent families, compared to married couple families with shared biological children.  The children in mixed families do no better than those in single parent families!  Will homosexual blended families be equally unstable?  Living with a biological father seems especially important, and children living with unrelated males do especially badly.  Will that pattern extend to gay families?  We don't know.  It's a big social experiment.

 

Finally (and this is in some ways the most important concern for me, as a parent), legalizing homosexual marriage will of course create pressure to "normalize" those relationships in all contexts.  This will extend to teaching in public schools (and private schools for that matter).

 

The absolute equivalence of hetero and homosexual relationships will become public orthodoxy.  The result will be that parents will be effectively disabled from expressing any preference whatsoever for heterosexuality, heterosexual families, or traditional heterosexual marriage, and any disapproval or lesser preference for homosexuality, even for their own children.  The parity of homosexual and heterosexual relationships and life styles will be aggressively pursued, and anyone who dares to question this will be defined as a bigot.   Do I look forward to this breathtaking expansion of the empire of political correctness?  Certainly not!  The implications of such a state of affairs for religious practice and expression are staggering -- this is a whole different subject unto itself.

 



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Professor Wax’s first concern is that gay couples resist sexual monogamy and that allowing them to marry might entice heterosexuals to follow their libertine ways. The force of this concern is blunted at the outset by the fact that two-thirds of legally recognized same-sex couples are lesbians, who are famously monogamous. The contagious-promiscuity argument is really about *guy* marriage, not gay marriage.

Marriage is not a reward for good behavior, but an inducement to it.

What inducement does American law offer homosexuals? It tells them they have a constitutional right to sex, but denies them the most powerful social institution for channeling all that sex into stable family life.

It’s true that many of the early (male) pioneers of gay rights emphasized sexual liberation. But these same grizzled veterans are now terrified that marriage will make gay culture more like straight culture.

More importantly, there’s no reason to believe that heterosexual couples model their sexual lives on gay men. Against this, Professor Wax suggests that gays have some unusually large influence. For historical reasons alone, we should be wary and skeptical of claims that a small minority wields inordinate and insidious power.

Consider the numerical obstacle to such influence. Male couples will be about 1% of all marriages. Some will commit to monogamy; others will be discreet about their non-monogamy. So we’re really talking about much less than 1% of marriages. That paltry number will undermine heterosexual morals? Undermine them more than our super-monogamous lesbian role models will reinforce them? Which is more likely: that the 0.5% of openly non-monogamous male couples will exert an irresistible gravitational pull on the morals of the 99.5%? Or that the 99.5% will put tremendous social pressure on the recalcitrant 0.5%?

The second concern is about blended families. If they’re a problem, however, the answer is not to ban gay marriage. Perhaps one answer is to prohibit or limit assisted reproduction, which is a “big social experiment” conducted overwhelmingly by heterosexuals. Banning gay marriage will not stop this practice, but it will deprive any resulting children of married parents.

The third concern is about marginalizing those who believe homosexuality is immoral. One problem for this argument is that the train of gay equality has already largely left the station. Though marriage will speed it up, it isn’t coming back. Another problem for the argument is that conflicts between gay equality and religion arise almost entirely from antidiscrimination laws that predate gay marriage. It’s worth having a discussion about religious exemptions, but very little of that discussion will depend on whether gays can marry.

Schools are a perennial center of controversies over moral teaching.

Parents who object to homosexuality, like parents who object to divorce or remarriage or contraceptives, can continue to teach this in their homes, churches, and private associations. But they shouldn’t demand that the law conform to their religious views so they’ll feel comfortable. It’s circular to say that gay marriage must be opposed so that opponents won’t have to explain why they opposed it. And it’s asking a lot of gay families to forgo legal protection so that public schools can pretend they don’t exist.

No change comes without some risk, however small and unlikely. We must think hard about risks. But many gay marriage opponents never even consider the possible benefits. That’s single-entry bookkeeping, and it’s equally malpractice in accounting and in social policy. It’s as if the needs of millions of our fellow citizens just don’t matter.



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The debate over same-sex marriage is really two different debates that are happening at the same time.  The first is a normative debate about what relationships to value or even to sanctify.  The second is a debate about administration – about which relationships ought to have legal consequences.

The normative debate concerns what relationships are intrinsically valuable.  It is taking place within most religious denominations within the United States, creating divisions that sometimes approach schism.  The key question is one about objective moral reality:  are same-sex relationships as such morally equal to heterosexual relationships, or do heterosexual relationships partake of a good that homosexual relationships cannot possibly share?  The conservatives have some powerful resources:  authoritative texts, longstanding traditions, the considered views of clergy, a primitive revulsion that many feel toward homosexual sex.  On the other hand, there is a fundamental difficulty in the claim that there is too much love in the world, and that we therefore must weed out love of the wrong kind.

The most powerful argument on the other side notices the strong resemblance between the most successful heterosexual couples and their gay counterparts, in terms of both care for spouses and the creation of a family environment in which children can thrive.  Like things should be treated alike.  Unless there is some salient moral difference between the two kinds of couple, they should be treated the same.  This argument has been powerful enough that the burden has been shifting to the opponents of same-sex marriage to explain just what the moral difference is.

The administrative debate concerns what relationships between persons ought to be given legal recognition.  Here the issue is nothing as exalted as intrinsic value.  It is the more mundane question of how resources should be allocated and unfair disruption of people’s lives prevented.  Like it or not, households, of whatever kind, and relationships of dependency exist.  From those relationships, one can reasonably infer what the members of those households would want and need if some unprovided-for contingency arises, such as the illness or death of one of them.  From this perspective, law ought to maximize welfare by reflecting people’s preferences and providing the default options that they would probably have chosen had they been able to think about it.

Robert Nagel is primarily interested in the normative debate.  The issue that interests him is claims to dignity and respect, and he correctly points out that “dignity and respect are not necessarily bestowed by judicial decree.”  But notice that he’s said nothing about, indeed very nearly concedes, the administrative question of whether same-sex relationships should be legally recognized.  Judicial decrees are not irrelevant to matters of dignity:  interracial couples were powerfully vindicated by the Supreme Court’s invalidation of miscegenation laws in 1967.  If you don’t think judicial decrees have an impact on people’s sense of respect, talk to any right to lifer about Roe v. Wade.

Amy Wax’s concerns are administrative.  (As are Dale Carpenter’s.)  She is in the welfare maximization business, and her claim is that welfare may well be diminished by recognizing same-sex marriage.  I find her arguments puzzling for the reasons already laid out by Prof. Carpenter.  I know a number of gay couples who are raising children, some of whom are friends of my own children.  Refusal to recognize their relationships doesn’t prevent the “big social experiment” that worries Prof. Wax.  It just pushes it to the margins of the law.  As for monogamy, I don’t know the sexual norms even of most of the heterosexual couples I know, and I don’t know how I would find out.  It is, as it happens, none of my business.  The idea that some tolerated philandering on their part is going to have any impact at all on my behavior is mysterious.

I have to say that so far I’m disappointed in this debate.  Can opponents of same-sex marriage do no better than this?

       

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"The idea that some tolerated philandering on their part is going to have any impact at all on my behavior is mysterious."  But whether people philander does in fact have a big effect on the rest of us.  To put it bluntly:  if some "tolerate" philandering, and that makes philandering more prevalent and more acceptable (which it does) and that leads to more philandering, and that puts stress on relationships or creates more instability in relationships, we have a problem.  If philandering breaks up families and produces extra-marital children that the rest of us end up helping support, that is what I call an impact.  Indeed, the havoc that lack of sexual restraint wreaks is VERY MUCH something that affects all of us every single day.   That's why we have sexual morality.  That's why every society known to man, since time out of mind, has had sexual morality, with  rules about families and sexual conduct that lead to clear lines of responsibility and authority.

But, beyond that, the whole idea behind norms, customs, and social rules is that what people do and tolerate DOES influence what others find acceptable and how they behave.  To find that notion "mysterious" is completely to misunderstand fundamentals of moral life and the role that customary rules and expectations play in society.  What is truly weird indeed is this idea that each person acts as his own moral originator, making it up as he goes along, doing what he thinks is "right" -- and that's just no one's business.  So each person's choice is a matter of whim, preference, what feels good for him at the time, completely uninformed by the wider (and often difficult to anticipate) consequences of a moment’s indulgence for others.  Here's the problem:   If each of us is our own moral arbiter, we are very likely to choose self-serving options.  And we are not likely to anticipate, let along give due consideration, to the harms our preferences inflict on other people.  Moral norms are there to RESTRAIN us -- to keep us from doing what we would otherwise like to do, whether or not it's a good idea.  Whether we adhere to these norms DOES affect others.

What's the bottom line here:  if lots of homosexuals decide that monogamy is really not that important -- not an essential part of marriage, which is really just about "rights" and getting "equal recognition" -- that is not just "their business."  Sorry, it just isn't. 



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I’m sorry if I didn’t make my point clear to Prof. Wax.  As it happens, I agree with her that a culture of open philandering can be destructive to families.  But that wasn’t what I was talking about.  My claim was that most of us have no idea whether our neighbors have “open marriages,” and so the existence of such marriages, tolerated by their members, has no impact on the rest of us.  The point is not that the rest of us are tolerating our neighbors’ bad behavior.  It is rather that we don’t know about the behavior, and so can’t be influenced by it.

I’m afraid I’ve lost the thread of what all this has to do with the same-sex marriage question.  It’s true that some gay rights proponents are advocates of polymorphous perversity, strongly opposed to all sexual restraints.  However, none of them are advocates of same-sex marriage, and some are quite strongly against it, for the logical reason that they are against marriage in general.  Gay rights advocates are a heterogeneous bunch; there is no unified entity called “the gay agenda.”

It is also true that monogamy is less statistically frequent among gay populations, and that fewer gays think that monogamy is important in a relationship.  But it’s not clear what follows from that.  Suppose that there were some ethnic subculture within the U.S. – call them the Wallonians – and that good anthropological data showed that “open marriages” were much more frequent among the Wallonians than among the rest of the population.  (More frequent, but not universal:  some Wallonian couples are monogamous.)  Let’s even suppose that this frequency of nonmonogamy is generally known.  And now suppose that a proposal is made to deny Wallonians the right to marry – all of them, the monogamous ones as well as the nonmonogamous ones.  The basis of the proposal is the undeniable fact that if Wallonians are not allowed to marry, then the frequency of nonmonogamy within marriage will be lowered.  Constitutional objections aside, does Prof. Wax think that this would be an attractive policy proposal?  Is there any other context in which we examine the statistical frequency of behavior within a population before extending equal legal rights to that population?

Prof. Wax should really be allied with gay conservatives like Jonathan Rauch, who want same-sex marriage and also want gay people to adopt more monogamous norms.  That position makes more sense than demanding that gays conform to traditional norms while resisting their efforts to do so.



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If the Wallonians, in practice, flout a basic understanding of marriage, and it is generally known, than I think there would be a basis for not EXTENDING the right to marry to them, if they had not previously had it.  In effect, they are saying "we want marriage, but want to demote this key element" which is equivalent to saying "we want to [subtly or openly] redefine marriage."  They have the right to try, but others have the right to resist them.

 

I'm all for discretion -- a great believer -- but the problem with discreet open marriage is that very often it doesn't stay that way.  It comes out because it produces tension, conflict.  Open marriage isn't stable -- at least not for heterosexuals.  Or it's less likely to be stable.  Given human nature, sexual jealousy -- at least between men and women -- etc., it's not a very viable way of life, at least not for the great mass of humanity.  Individuals may make a success of it, but it's not likely to have legs for most.  To be sure, monogamy is a norm that is sometimes violated -- but that doesn't make it any less of a norm.  Occasional lapses are radically different from repudiation or denigration.

What this has to do with gay marriage is that traditionalist heterosexuals do fear that gays are trying to redefine the basics of marriage, or alter the norm.  No one is denying that heteros commit adultery.  But that doesn't change the norm that they embrace and strive for.  That norm is fragile.  Many men and some women would love to see it change!  We all want to have out cake and eat it too, and who can blame us.  Yet the norm sticks, for now.

Also, no one has addressed the "blended families" problem -- what is essentially a compensatory and derivative family form (essentially a response to a failure of the heterosexual ideal of the co-biological family) will now become the norm for gay families.  That is a significant shift.   And traditionalists recognize that.




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Maybe this is the crux of our disagreement.  Prof. Wax imagines a coherent decisionmaking body called “the Wallonians,” whose real-world analogue is “the gay agenda” referred to in her first post.  I think that both of these are fictions, and that the second is as malign and dangerous as the idea of an International Jewish Conspiracy.  It isn’t the case that a Parliament of Gay People meets together to form a position on monogamy, mixed families, and adoption, producing a Party Line that the entire group then stridently advertises.  Rather, there is a large collection of individuals with enormously varying world views, about monogamy and nearly everything else.  Since homosexual desire is evidently distributed randomly across the population, gay people are as diverse as the rest of us.  Their behavior is less monogamous than that of heterosexual couples.  But the vast majority of these nonmonogamous people are not aggressive crusaders for the transformation of sexual mores.  They’re not aggressive crusaders for anything.  Aggressive crusaders are always a tiny minority.  Most people want to indulge their sexual desires in privacy, and have no interest in telling others what they do.

I agree with Prof. Wax that most gay male couples are nonmonogamous.  But what concerns her is not nonmonogamy, but open and notorious nonmonogamy.  The same Laumann studies that are the best evidence of gay nonmonogamy also tell us that 1 out of 5 married men and 1 out of 10 married women have been nonmonogamous.  It’s statistically certain that you and I both know people who are nonmonogamous.  But I don’t know who they are, and you don’t either.  Why would you expect that to be different with married same-sex couples?

The causal chain that Prof. Wax is alleging seems to work as follows.  If same-sex marriage is legalized, then there will be a higher incidence of nonmonogamous couples (mostly male, as Prof. Carpenter has pointed out).  This group, which will be a miniscule fraction of married couples, will be known to everyone else to be nonmonogamous.  Heterosexual men will take the existence of those married couples to authorize their own nonmonogamous behavior.  That in turn will make marriages less stable, to the detriment of children.

There are a number of peculiar causal leaps here.  The biggest of them is the idea that gay couples – who already exist and are known to exist, who have the right to marry in two states and the right to form marriage-like partnerships in five others (all together comprising more than 20% of the nation’s population), and whose statistical tendencies are also well known – will have a massive impact on the behavior of heterosexuals if and only if they are allowed to marry in still more states.  Here I confess that I can’t even understand the scenario.  How, exactly, is that supposed to happen?  I’m reminded of Daryl Cagle’s cartoon a few years ago, which shows a man saying to a woman, “Of course I want to marry you, Charlene.  Really.  But you know I can’t because the moral foundation of marriage has crumbled with gay marriages in Massachusetts.”

As for the “blended families” problem, it seems to me that Prof. Carpenter did address it, by pointing out that it has very little to do with same-sex marriage.  Such families are being formed, in states with and states without same-sex marriage, and mostly by heterosexuals.  All that denying same-sex marriage does is prevent some (not all, or even most) children begotten by assisted reproduction from having married parents.  Again, Prof. Wax appears to have some causal scenario in mind about how denying same-sex marriage will make this situation better.  But since I can’t tell what that scenario is, I can’t respond to it.
            
 



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I think that Andrew is eliding two very distinct -- importantly distinct -- concepts.  There is a difference between the incidence of a behavior and the endorsement of a behavior as the normative ideal.  The norm of sexual monogamy is universally accepted as absolutely central to conventional marriage --, except perhaps by an avant guarde elite. (Or by  French elites and aristocracy, or whatever).  But for ordinary everyday humble you and me, who do not make it onto the style pages of the NYTimes or Vanity Fair, this is rock solid and unquestioned.  So people go into marriage saying "This is what I accept; this is what I embrace.  THIS IS WHAT I AM PLEDGING TO BY GETTING MARRIED".  Even if they subsequently honor that norm in the breach, they know they have fallen short.  Ordinarily, they will do their very best to resist such a lapse, they will feel compelled to keep it secret, and they can't be surprised by adverse consequences if found out.  They don't get out there and say "you know sexual fidelity in marriage is just not for me; I don't really believe in it; it isn't workable.  I reserve the right to do marriage MY way."  (Can we imagine Spitzer or Edwards saying that?  And it's not just because they want to be elected -- Spitzer is never going to be elected to anything).  That people don't say this is the hallmark of a strong & honored norm.  But not only do gay men not practice the norm as often as heteros, a significant number DON'T ENDORSE THE NORM, EVEN AS PART OF MARRIAGE.  THEY REPUDIATE IT.  This is significant -- and regarded as threatening to the integrity of marriage.  Rightly so.  Definitely, this has influenced people to vote against the legalization of same-sex marriage.

Now if the great majority of married straight people in fact were unfaithful on a fairly routine basis, we would have to doubt that the norm really was something they endorsed, or believed in.  The norm would certainly be under great strain, and difficult to maintain. I think it would actually change.  Yet -- and this is key -- a society can maintain an ideal, quite firmly, even if many people fall short of it.  I get the sense, however, that the gay community is far from 100% behind the ideal of sexual monogamy/exclusivity as an incident of most relationships, or even as a fundamental element of marriage.  Indeed, Andrew pretty much concedes this point.  This really is a redefinition of the meaning that marriage has had throughout the history of much of western civilization.

 



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The debate over gay marriage is about many things. It’s about the continuing evolution of a social institution rich in tradition, history, and cultural meaning; it’s about how tradition itself is a living thing that develops in response to changes in how we actually live and what we learn; it’s about the conflict of religious doctrine and civil law; it’s about anxiety that many people feel over instability in shared meanings; it’s about nine million people in this country shut out of the incentives and protections given freely to the other 290 million; it’s about gay families doing everything they can to stay together and protect their loved ones; and it’s about the security of more than one million children being raised by gay and lesbian parents.

 

But if you knew nothing about the gay-marriage debate except what you read in this exchange, you’d get the impression it’s all about gay male sex. This is odd but, alas, not uncommon in discussions about including homosexuals in the laws and institutions of this country. Forget lesbians, forget children, forget committed and tradition-minded gay-male couples who are the most likely even to want to marry – all that matters is that a small number of married gay male couples may have too much sex with too many people.

 

We already have far more heterosexuals departing from traditional marriage norms, whether it’s “swingers” trolling for sex on the Internet or networking at conventions or the breakdown of marriage culture among inner-city and poor people. None of these people are required to show certificates of good behavior (or good intentions) before we allow them to marry. That’s because, as I noted earlier, marriage isn’t a reward we give for good behavior; it’s an inducement to it. We give no such inducement to gay men and then we complain about the consequences.

 

Professor Koppelman and I have already responded in some detail to Professor Wax's concern that uniting gay families in marriage will suck heterosexual married couples into an irresistible sexual vortex of gay men. She has the tail wagging the dog. Grant the observation that philandering or open marriages are bad for most families. Until we have a plausible account for why it is that heterosexual men, and especially heterosexual women, will model their sex lives on 0.5% of married couples, I don’t think there’s anything more useful to say about this extremely narrow slice of a much larger debate.

 

Meanwhile, what is the traditionalist response to the decades-long growth of gay families, including families with children? So far, it’s been malign neglect. I really suspect that many traditionalists do not give much thought at all to the needs of gay families. If they think about these things at all, they wish it would simply go away. But it is not going away.

 

The alternative to gay marriage is not standing still. And it is not returning to some imaginary past where closeted gays kept to themselves and produced great art and show tunes for heterosexuals’ amusement. The alternative is millions of Americans living in real, functioning relationships, many of them parents, struggling to make the law responsive to their needs. And the law will respond, often in ways that potentially challenge the primacy of marriage itself: marriage-lite statuses made available to both heterosexual and homosexual couples, second-parent adoptions, de facto parent doctrines, and so on. To ignore gay families is not to preserve healthy family norms, it is potentially to undermine them.

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I concur with Prof. Carpenter that a pretty small tail is wagging a pretty big dog in this conversation.  I’ve just been trying to answer the case against same-sex marriage that’s being made here.  For the reasons he gives, even if Prof. Wax’s concerns were valid ones, they would be outweighed by the needs of gay families.  But they’re not valid ones.

Prof. Wax’s argument is built on two accurate bits of data:  (1) some gay rights advocates have attacked all sexual norms, and (2) social science data has shown that gay men are less interested in monogamous relationships than heterosexuals.  These two data, however, are not equivalent to the following dubious propositions:

(3)    All gay people oppose monogamy.
(4)    Gay people who advocate same-sex marriage (all of them? Most of them?  A critical mass of them?) oppose monogamy.
(5)    Gay men who get married (all, or some, or whatever) will advertise their lack of interest in monogamy.
(6)    Gay men who get married (all, or some, or whatever) will advertise their nonmonogamy.

There is no reason to believe that (3) through (6), or any of them, are true.  (Even if they were, it would not follow that these behaviors would have any influence at all on the behavior of married heterosexuals.)  Prof. Wax’s first post seemed to place a lot of weight on the slippage from (1) to (3) and (4), but in her last couple of statements, the more important slippage is that from (2) to (5) and (6).  This second inference is exceedingly dubious. The things that I’m willing to tell social science researchers in a confidential interview are not the same thing that I’m willing to announce to my neighbors.  If they were, then the researchers wouldn’t need to work so hard to guarantee confidentiality.

If these slippages are avoided, then what is left of Prof. Wax’s argument?
 



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Too logical for me!  I guess I just don't agree that gay men will keep their non-monogamy to themselves.  If at least some gay marrieds see monogamy as optional -- that is, don't accept the norm -- why should they keep it to themselves?  Once again, there's a big difference between a lapse and a tenet.  So even if a minority of gay men repudiate monogamy as a central incident of marriage, it will become known.



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"What is the traditionalist response to the decades-long growth of gay families, including families with children?"  I think it has to be the kind of response that would be made to other developments.  Consider muliple partner fertility (MPF -- a euphemism) in the inner city;  or polygamy among certain religious groups.  These trends have grown, there are now families or combinatorial ways of life that are more common.  And these people have "needs."  It's going to happen, so we have to accommodate these developments by extending marriage -- or marital types privileges -- to these families.  We need some kind of protection, for example, for women who have children by 3 different men.  If only needs counted, we would declare their relationships marriage, and leave it at that.  That's the form of the argument.



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But we *do* have a response to the kinds of people Professor Wax describes. That response can be summed up in two words. Get married.

Consider the mother of three children by three different men. We would not say to her, “You’ve behaved badly, rejecting the social conventions and norms of parenting and marriage, and for this you and your children must pay the price and never marry. Besides, your marriage might set a bad example for others.” No, we’d tell her that for her own good and the sake of her children she should find someone to settle down with.

Even if we thought this particular woman was unsuited for marriage because she could not commit to monogamy or whatever, we would surely never say that because some portion of women who have three children by three different men are not cut out for marriage *all* of them must be denied marriage.

To the polygamist we would say, “Pick a partner and get married. It’s better for you, your kids, and the rest of us if you do.” We wouldn’t say, “Your multiple-partner past disqualifies you from marriage.” After that, if the polygamist insisted, “But I want to marry several women,” we’d respond that he will have to make the case for why polygamy is good for his wives, his children, and society, just as gay-marriage advocates have. Given our experience with polygamy in the West, that will be a hard case to make. It might be an interesting discussion, but none of it will turn on whether we’ve previously recognized gay marriages. And even if we ultimately deny his request for many women, he will at least have *one* to marry.

Yet when gay couples come to us -- some not quite up to snuff in the conventional ways of marriage, others more than ready after decades together -- we say to them all, “There’s nothing for you. Not multiple partners. Not even one partner. You and your kids don’t have needs, you have ‘needs.’” Professor Wax believes gay adoptive parenting is a response to a real social problem. I agree. Yet it’s only half a response if she tells those adopted kids they must grow up in a home alien to marriage.

Many traditionalists see gay marriage as part of a miasma of destabilizing and harmful trends in American families – lots of divorce, lots of out-of-wedlock births, multiple-partner relationships, single parents by choice, assisted reproduction, and so on. On this view, gay marriage is one more thing on that list of the markers of cultural decline. That’s unfortunate and myopic, because gay marriage is one small way we can tell people living permanently outside marriage culture (gay or straight) that we believe marriage is good for them, for their dependents, and for the rest of us.

 

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I meant (and was not specific enough) to give examples of the demand to recognize novel forms of marriage -- say a marriage-like status with all the fathers of the various children, or polygamy.

I know advocates dismiss polygamy, but I see arguments for it as very similar to those for same sex marriage -- the highly formal idea of equal time for different forms, growing out of a "need" from the practices that people decide to engage in, and are engaging in.  The institution must accommodate the reality -- that's basically the idea.  Certainly all forms lay claim to recognition in the absence of firm proof of harms.  And the "harms" from polygamy are, when you come right down to it, unclear.  It's basically "we don't like it."  They are, at most, speculative.  Same for polyamory, and variations on a theme.  It's the "valuing all families" approach that looks at what people want to do and then says "we need to support what they want to do because if we don't everyone -- esp children -- will be worse off.  Because people are going to do what they're going to do, and it's a free country!" If we refuse to recognize that some forms of family are better -- more stable, more functional, more vital to society's continuation and well-being -- then all bets are off.  It's a "doctrine of equivalence" to use a phrase I just coined!

 



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Same-sex marriage is a rejection of the idea that all family forms are equal and that family structure doesn’t matter. It is a reaffirmation of the norm that if you want to have a really serious, committed, long-term relationship with another person you should get married. You should especially do so if you intend to raise children, who should have *married* parents wherever possible. It says that gay families are not exempt from the rules and expectations governing the rest of us. These messages disturb sexual liberationists and others on the gay left who worry that gay marriage is a further consolidation of the principle that some relationships – the married ones – are better than others.

Gay families have made a case based on decades of experience and incremental recognition that they are stable, functional, and contribute to a society’s well-being. Let advocates of other reforms make their own case. I’m not here to write a brief against polygamy, for example, but it would have a steep climb against the ideals, customs, and laws of liberal democratic societies committed to sex equality. Gay marriage, by contrast, arises out of these very ideals, customs, and laws. Polygamy would also require a comprehensive rewriting of marriage laws structuring a dyadic institution; gay marriage fits the dyadic model.

It’s a mistake to think that expanding the empire of marriage means it will no longer have borders, just as it would have been a mistake to think that expanding the franchise to women meant no more limits on voting.

The bottom line is that many opponents of gay marriage still have nothing at all to offer gay families. That indifference could have been excused in a day when we knew nothing about such families – who they are, where they are, how many there are, how they function. But that day has passed. Indifference won’t work anymore as politics or morality. Its cruelty has become manifest and eloquent.

When we look back on this debate, I expect we’ll find that despite all the foreboding very little was at stake for a lot of people and a lot was at stake for a few people. Marriage will withstand the onslaught of happy homosexuals. It is a triumph for marriage that they have come to believe in it. With their lives and the lives of their children they are saying “yes” to marriage. My hope is that one day we will take “yes” for an answer.



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"It’s a mistake to think that expanding the empire of marriage means it will no longer have borders, just as it would have been a mistake to think that expanding the franchise to women meant no more limits on voting."

I do think that an expansion of the "empire of marriage" does indeed put pressure on all the conventional limits -- just as there is pressure on the limits for voting.  Who is to decide what the limits should be, and whether there should be any at all?  As for voting -- I think the analogy is far from perfect, but consider now the movement to abolish felony disqualification.  Formal equality is so fetishized that no "discriminations" or distinctions whatsoever -- even those that appeal to common sense and common decency -- can stand.  I happen to think that felony disqualification is perfectly defensible and indeed salutary -- but felons are people, too, and they want and deserve to vote, so who are we to stop them?  As for marriage -- who decided it was "dyadic?" Is that "definitional?"  If so, why is the male-female element not definitional?  Breezy assurances just won't do in answering these hard questions.   One also has to ask -- why is same-sex marriage so unpopular with voters?  I think they see that once we start redefining, all bets are off.  And I actually think that all bets ARE off.  In the end, marriage is arbitrary, a construct, and a restrictive one.   So why have it at all?    Why not "value all families" as Nancy Polikoff would put it?  If all differences in outcomes are really just a product of how we treat relationships, then we should widen the range of the ones we recognize.

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Professors Carpenter and Koppelman have made many forceful arguments.  But something about this rush of words seems profoundly inadequate to me.  Maybe my malaise began when, early on, Professor Koppelman asked whether the opponents of gay marriage didn't have any better arguments than this. (Things got more interesting later, I gather.) This issue, needless to say, is not a game or a competition.  To put our smart arguments above the brute fact that for centuries in virtually all cultures marriage has been a heterosexual institution seems, to put it mildly, a bit arrogant.  I think people should pay more attention to that history.  I notice that California now will list the parties to a marriage as (I think this is right) "partner one" and "partner two."  To me this captures the dismal potential for stripping the richness of a deep institution that is inherent in the gay marriage movement.

I know we have to think, as best we can, about changes in even deep traditions.  But I would hope we would do so with a sense of how limited we are.

I remain convinced that recognition is the main goal of the homosexual marriage movement and that there is a strong possibility that institutionalizing gay marriage will not provide the desired reassurance.  Then all the behaviors and words and traditions that honor traditional heterosexual marriage will have to be suppressed or at least delegitimized.  Partner one, partner two. 



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Below is what I expect will be my last contribution to the debate, barring some new or especially provocative argument. I want to thank all of you for what has turned out to be a respectful, lively, and stimulating discussion.

My point about marriage as a dyadic legal form was descriptive, not an endorsement of some unchangeable definition. Plural marriage would require an extensive revision of marriage law (inheritance, custody, property, divorce, etc.). In this, as in many other respects, very different issues are presented by gay marriage.

I share Professor Nagel’s Burkean caution. The longer a tradition has lasted and the more generally it has prevailed, the more careful we should be. Traditions aren’t immune from critique and revision, as Professor Nagel acknowledges. As Russell Kirk noted, Edmund Burke believed that “even ancient prejudices and prescriptions must sometimes shrink before the advance of positive knowledge.”

These considerations place the burden of persuasion on the innovator; counsel incrementalism and patience in reform; and demand, to the extent possible, that change be based on experience rather than on abstract rationalism. Michael Oakeshott, for example, thought the most cogent reason to enfranchise women was not their “abstract natural right” to vote but that “in all or most other important respects they had already been enfranchised.” Technical enfranchisement (as he called it) was, at that point, a comparatively small step to correct a lingering incoherence in the treatment of women.

The conventional traditionalist narrative is that gay marriage is the top-down vision of radical reformers acting on abstract ideas. That view has some merit if we focus only on academia and courts, but it misses the deeper human story propelling the movement.

Consider just some of the incremental steps to gay marriage over the past half century. Sodomy laws were eradicated; homosexuality was removed from the list of “mental disorders”; gay newspapers, communities, and organizations flourished; civil-rights laws were enacted; and openly gay politicians were elected. Positive knowledge advanced through the systematic study of homosexuality and through daily experience with actual gay people, dispelling many widely accepted, long-standing, and hysterical myths about homosexuals. Study and experience discredited hoary fears that homosexuals ruin everything they touch, that any effort to lift stigma and legal repression would practically end civilization.

This was all necessary for the emergence of gay families, which began to spring up. Gay couples lived together openly. Adoption was available to gays in 49 states. Homosexuality ceased to be an automatic disqualification for custody. Second-parent adoptions provided some legal protection to gay families. Gays began raising children in increasing numbers (now more than a million) and no state was stopping them. A quasi-marriage culture sprouted.

This bottom-up momentum led to formal recognition. It started primarily in the private sector, where companies began offering benefits to “domestic partners.” Then cities and counties followed. Then states recognized gay relationships, at first tentatively, offering only some benefits. Now states are approving civil unions, granting all the benefits of marriage. Two populous states have actual gay marriage. Abroad, the move to gay marriage in countries with legal and political heritages similar to our own has been more dramatic.

Some of this recognition has been pushed judicially, but it is increasingly a legislative phenomenon. There’s been a counter-movement, but almost one-fourth of Americans now live in a state that legally recognizes gay couples.

Are we at the point where gay marriage is in most functional respects already here, so that sanctioning “technical” gay marriage is the next obvious incremental step to correct the lingering incoherence in our treatment of gay families? Given the numerous and enabling shifts we’ve already seen, I think so. There’s room for disagreement, but we’re surely getting closer.

Oakeshott observed that every change involves some cost in exchange for possible gain. I have argued in this exchange that the hypothesized costs of gay marriage are so unlikely they should not be credited. I have also argued that the benefits are both likely and large for millions of Americans. Seeing “partner one, partner two” on a marriage application is startling, one more charmless consequence of bureaucracy. Is it emblematic of a larger loss ahead? I see little reason to think so, but you can never be certain. If I'm right, the coming years should allay any remaining fear that marriage loses some of its richness when gay families share in it.

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And the following is likely my last post.  I'd also like to thank everyone for an exchange that has been very enjoyable.  I should also say to the Federalist Society that you picked interlocutors on all sides whom I have admired for a long time, and that I've been very pleased to spend a bit of time in their company.  One of the best things about being an academic is the occasional opportunity to fence with really smart people with whom one disagrees.

Prof. Carpenter has already done a good job of addressing Prof. Nagel's Burkean concerns, but perhaps I can add a bit more.  The movement for same-sex marriage is profoundly Burkean.  It isn't about tearing down marriage, or even reconstructing it on the basis of first principles.  It's about modifying the institution just enough to let in a large group of people who have in the past been excluded.

It's true that civil marriage is lacking in a certain richness that's present in more particularistic rituals.  I've been present at the registration of a marriage at a town hall, and I've also been present at religious weddings whose sacred character was pervasive in the rituals that celebrated it.  There is a richness in the latter that is absent from the former.  The decision to disestablish religion is not costless.  On the other hand, as Prof. Carpenter has already pointed out, religious beliefs and practices do manage to persist and flourish even without state sponsorship.

Of course Prof. Nagel is right that recognition is what the same-sex marriage movement is largely about (though, given the United States's weird system of health insurance, where its availability is often contingent on whom you're married to, administrative concerns also loom large).  The issue, then, is whether this demand for recognition is justified.  In the controversy over interracial marriage, it would not have been acceptable for the Southern states to create domestic partnerships for interracial couples. Recognition is not a trivial concern; it drives much of modern politics.  As I said at the beginning, there are really two concerns here, administrative and normative. Both offer powerful reasons to recognize same-sex marriage.

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I think there is a powerful case (and Dale makes it well) that things have shifted significantly in the social position of homosexuals, paving the way for same-sex marriage.  I actually think that it will come within a generation.  I just hope that it does not accelerate an even broader trend:  the decline in marriage and in a clear-minded understanding of marriage as the central socializing institution in our society.  Certainly -- and interestingly -- the public is not there yet on same sex marriage.  But, then, the public is today utterly confused on all things sexual, because all the old verities have fallen away.  So the future is up for grabs!



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I also would like to thank all participants, especially Amy Wax who ably did all the heavy lifting on our side of the debate.

I do want to make sure that I made myself clear earlier.  It is not my view that recognition is unimportant.  What I have tried to say is that equal recognition will be very difficult to obtain even if gays get the legal right to marry.  Certainly domestic partnership will not (has not, apparently) resulted in a sense of equal respect and dignity.  Indeed, with equality mostly obtained as a substantive matter, any remaining signs that homosexual marriages are not equally honored and respected might seem even more intolerable.  Most of these signs will be in the culture that has long exalted heterosexual love.  Hence, I fear that the drive for gay marriage will end in frustration and in a sustained effort to obliterate from our schools and libraries and conversations and songs the rich heritage associated with traditional marriage.  The problem that I am concerned about is not aesthetic but cultural, since marriage as a crucial social institution rests as much on that heritage as on law.



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