Author Archive | Dale Carpenter

The Traditionalist Case – The Procreation Argument (Gallagher Version):

Maggie said a lot two weeks ago and I will not begin to respond to it all here. A big problem I have with her argument is that she never gets around to acknowledging how gay marriage might help gay families. I don’t think she hates gay families, I just don’t think she’s thought about them much. I’d be very curious to see what she has to say about my Monday and Tuesday postings. For her, gay marriage is, on one side of the ledger, all potential cost (to marriage, to society, to traditional families) and, on the other side of the ledger . . . nothing.

Another big problem I have with her argument is that she conceives gay marriage as simply an effort to satisfy adult needs, or as just another trophy gays want to carry around in the culture wars to show how inclusive and tolerant we’ve all become. I can understand why she has that impression; many gay-marriage advocates have talked about gay marriage in these rather loose and abstract terms. But I don’t think these views even begin to explain the deep yearning of gay families to be united in marriage. Their struggles are not abstract.

Maggie’s argument against gay marriage comes down to her answers to two important questions: What is marriage for? How will gay marriage undermine it?

1. What is marriage for?

Maggie’s answer to this question, as I understand it from her posts here two weeks ago, comes in this key quote (obviously her argument is much longer than this), followed by my response:

“Procreation . . . is the reason for marriage’s existence as a public (and yes legal) institution.”

I can imagine three different possible views of the role of procreation as the public purpose of marriage: (1) Procreation, […]

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The Traditionalist Case – The Procreation Argument (Standard Version):

The most common argument of all against gay marriage is the procreation argument. It can be stated this way: “Procreation is indispensable to human survival. Marriage is for procreation, and procreation should occur within marriage. Procreation is the one important attribute of marriage that supplies the male-female definition. Gay couples can’t procreate as a couple, so gay couples shouldn’t be allowed to marry.”

The argument over procreation has generated a back-and-forth between advocates and opponents of gay marriage that follows a familiar and somewhat tedious pattern. It goes something like this:

Thrust (by gay-marriage opponents): Marriage is for procreation. Gay couples can’t procreate. So gay couples should not be allowed to marry.

Parry (by gay-marriage advocates): But procreation has never been required for marriage, so the premise that “Marriage is for procreation” is wrong, or at least incomplete. Sterile couples, old couples, and couples who simply don’t want to procreate are all allowed to marry. Nobody objects to their marriages, so nobody should on this ground object to same-sex marriages.

The parry by gay-marriage advocates is sometimes called the “sterility objection.” Let’s take the argument beyond this standard thrust-and-parry.

1. The sterility objection to the procreation argument: two responses and counter-responses.

The procreationists have a couple of fairly standard responses to the sterility objection.

First, they say that laws are made for the general rule, not the exceptions. Most opposite-sex couples can reproduce, but no gay couple can. Second, they argue that the failure to require married couples to procreate is only a concession to the impracticality and intrusiveness of imposing an actual procreation requirement. It is not an abandonment of the procreation principle itself. We need no intrusive test to know same-sex couples can’t reproduce (as a couple), the procreationists observe.

The first response to the […]

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Response to commentators — Day 3:

I think I’ve written more than enough today for everybody. Again, readers are responding to each other quite a bit, relieving me of that duty. Just three quick replies to some commentary.

First, I want to highlight what one commentator said today that I think sums up what I’ve called the malign neglect of many conservatives toward gay families. The commentator basically said, I’m seriously paraphrasing here, that it doesn’t matter whether marriage would be any good for gay families because there are so few gay families. They’re trivial. They don’t matter. This is what they have been told by our society almost since they were born and that is what they are being told now through the denial of marriage. I spent two days on this blog pointing to the real ways in which millions of adults and children living in the U.S. will have their families made stronger. Those things may not matter to the tens of millions of people in this land who can get married, divorce, get married again, and divorce again, at will. But it matters a great deal to gay families. And to their children. And to their families and friends. And to anyone who thinks these are human beings whose needs really do count for something in the world.

I’m all in favor of giving careful consideration to the claimed harm to opposite-sex marriages that might come from uniting these gay families in marriage. We must do that. But really, to consider only these claimed problems, without even pausing for a moment to reflect on the good that might come of marriage for gay families, is a form of single-entry book-keeping. And it is a cruel form of single-entry book-keeping at that. I think Americans are better than that.

Second, let me […]

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The Traditionalist Case – The Polygamy Slippery-Slope Argument:

A somewhat better argument than the first two I’ve addressed today (the definitional argument and the contagious-promiscuity argument) is the polygamy slippery-slope argument.

Slippery-slope arguments offer a parade of horribles that might be brought about by gay marriage, but they always have this form: “If we allow gay marriage, we’ll end up with [policy X], and that would unquestionably be bad.” The usual bad destination claimed to await us after gay marriage is polygamy. But one occasionally hears that gay marriage will also bring incestuous marriages, bestial marriages, etc. Here I will consider only the polygamy variant of the slippery-slope argument because it’s by far the most common, but much of what I have to say would apply to other slippery slopes.

Theoretically, slippery slopes can be initiated in one of two ways: (1) the logic of the proposed step (gay marriage) entails a slide down the slope; or (2) the politics of the proposed step, e.g., in terms of the way in which it might liberalize public attitudes about further reform, risks a slide down the slope. In reality, however, if there is no political momentum for a reform, logic alone will not likely produce a slide.

If gay marriage led to polygamy that might please some people, but it would not be welcome news to the traditionalist.

1. The political slide to polygamy.

The political slide that might be initiated by gay marriage has been addressed in some detail by Eugene in Same-Sex Marriage and Slippery Slopes, 34 Hofstra L. Rev. ___ (forthcoming 2006), available at http://www.hofstra.edu/PDF/law_lawrev_volokh_vol33no4.pdf. He concludes that the political prospects for polygamy, after gay marriage is adopted, will be “lousy.” The political right will not support it. And the political left will likely not be supportive, either, for several reasons he lists. You can find […]

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The Traditionalist Case – The Contagious-Promiscuity Argument:

An oft-heard argument against gay marriage is that it will hurt traditional marriages by loosening the ethic of monogamy among married heterosexual couples. The reasoning goes this way:

Premise (1): gay men are more promiscuous than either straight men, straight women, or lesbians;

Premise (2): married gay male couples will therefore be more promiscuous than straight couples or lesbian couples;

Premise (3): the non-monogamous behavior of gay male couples will, by their notorious example, weaken the monogamous commitment of married straight couples;

Conclusion (4): which will hurt and destabilize traditional marriages, with all manner of harmful consequences for children and for marriage as an institution.

Promiscuity and non-monogamy will have spread from married gay couples to married straight couples (and even married lesbian couples?) like a deadly, transmissible avian flu decimating whole families and moral codes that come into contact with it. (I’m only slightly exaggerating this argument for effect.) Let’s call this the contagious-promiscuity argument.

Is there any reason to think it’s plausible? Certainly if Premises 1-3 are correct, then Conclusion 4 is right. And if the conclusion is correct, gay marriage would indeed cause some harm. We should be very concerned if heterosexual marriages become more non-monogamous than they already are. It might cause so much harm, in fact, that it would more than offset the large individualistic and modest communitarian benefits that I argued for on Monday and Tuesday. If that’s true, gay marriage should be rejected no matter how important it is to gay families. It would certainly not be a cause that any traditionalist should embrace.

But it’s not plausible to believe that married gay male couples will spread non-monogamy to marriages between men and women. Here’s why:

1. Problems with Premises 1 and 2

Premises 1 and 2 are at most half correct, […]

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The Traditionalist Case — The Definitional Argument Against Gay Marriage:

Having made the affirmative traditionalist case the past two days, today and tomorrow I’ll respond to some of the most common arguments against gay marriage.

One of the most common arguments against gay marriage is definitional. This definitional argument against gay marriage generally takes the following form: “Marriage just is the union of one man and one woman. What same-sex couples are asking for is not marriage. So same-sex couples cannot be married.” It offers no normative defense of the definition; it stops there.

A variation of the definitional argument involves some analogy to species-confusion. For example, this is a common variation: “Gay marriage is like trying to call a cat a dog. A cat will never be a dog no matter how much you try to call it a dog or treat it like a dog or pretend it’s a dog.” You can substitute an infinite variety of species combinations for “cat” and “dog” here and you have the same variation of the definitional argument. The species-confusion variation of the definitional argument is another way of saying that marriage is definitionally male-female. It is saying, without further argument, that same-sex couples cannot be married just as dogs cannot be cats.

Another variant of the definitional argument involves some analogy to a government-benefits program. For example: “Allowing gay marriage is like allowing non-veterans to get veterans benefits; non-veterans are not part of the veterans program, just like gay couples are not part of marriage. The marriage program is not for gay couples, just like the veterans program is not for non-veterans.” Or, as one commentator put it: “Two people of the same-sex cannot ‘marry’ any more than a man can claim a right to ‘maternity’ leave.” Stephen C. Whiting, “Gay Marriage” Is an Oxymoron, 19 Me. B. J. 79, […]

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Response to commentators – Day 2:

Some brief responses to some very good and provocative comments today:

First, one commentator asks for “evidence” that gay marriage will produce the individualistic and communitarian benefits I predict. Asking for evidence of results is perfectly appropriate once a proposition has been tested somewhere. But of course there were no gay marriages anywhere until the day before yesterday, so there’s no direct evidence about the effects yet. It’s coming, now that we’ve got gay marriage in one state and several countries. I expect it will favor the argument for gay marriage, though even then we’ll be having lots of debates about what the evidence means. This subject is full employment for family policy wonks for many years to come.

In the meantime, the lack of direct evidence is hardly decisive against any proposed reform. The best we can do when any reform – like giving women the right to vote – is proposed is to reason from our common experience, our values, and whatever evidence we have that seems relevant to the question. I’ve tried to do that.

Second, one commentator notes a potential contradiction in my claim that gay marriage will give state-provided benefits to gay families and at the same time reduce services those families demand from the state. It’s not a contradiction, but perhaps a paradox, that’s true of all marriages. Most of the legal marriage “benefits” that cost the government resources come at the end of the relationship or at selected points of weakness during the relationship. The relative service reduction, on the other hand, is an ongoing product of the fact that people with caretakers already have a triage expert on hand to deal with health and other problems that arise.

Third, some commentators have suggested that the best thing would be to give up […]

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The Traditionalist Case – The Magnitude of the Benefits:

Marriage will have one of three consequences for gay families united in marriage: they will be better off, worse off, or it will have no effect on them. It’s hard to imagine how marriage would have no effect on their lives, and even harder to imagine how they would be made worse off than they are now. So married gay couples should be better off than unmarried gay couples in terms of the durability, happiness, and stability of their relationships. Similarly, their children should be better off in many ways.

The only question, then, is what the magnitude of these benefits will be. Here we run into some thorny issues.

One possibility is that we could simply extrapolate the benefits from marriage that opposite-sex couples enjoy over unmarried people. If these benefits can simply be extrapolated, the benefits to gay families united in marriage would then be huge as compared to unmarried people.

Another possibility is that gay families united in marriage will capture some, but not all, of the magnitude of the benefits that straight families derive from it. Why not expect that they will get the full benefit from marriage? There are, I think two reasons for this that apply to both gay male and lesbian couples, and one additional reason that applies only to gay male couples. If my analysis is right, lesbian couples will probably capture somewhat more of the benefits of marriage than will gay men. But we must be careful not to exaggerate these possible limitations on how much of the benefit of marriage gay families will get.

Here are two limiting factors on the magnitude of the marriage benefit to lesbian and gay male couples:

(1) It will take time for some gay people, generations of whom have led their lives with no […]

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The Traditionalist Case – Communitarian Benefits:

Marriage has many possible private and public purposes. The private purposes can include expressing love and commitment to another, fulfilling a religious obligation, and acquiring the benefits associated with the legal status. These private purposes are what actually motivate many people to marry. But it is the public purposes of marriage that justify its existence and support in civil law.

Marriage does not have to have one single public purpose. One obvious public purpose of marriage is that it encourages procreation and child-rearing within the marital bond. Sex often makes babies, society needs babies, and all of us benefit when those babies are raised within marriage. Let’s call this the “procreative purpose.” Gay couples cannot procreate as a couple and so might be thought incapable of fulfilling this basic public purpose. The story is more complicated than that, but that’s a subject for tomorrow, when I begin to address the arguments against gay marriage.

If gays can’t procreate as a couple, is there any public purpose in recognizing their unions in marriage? Many people seem to think that the only interest in recognizing gay marriages would be the purely private one of helping satisfy their needs for adult intimacy or the non-marital one of advancing the cause of gay rights as a general matter. There is little public purpose in using marriage to achieve these ends.

But there are identifiable public interests, public purposes, in uniting gay families in marriage. With one exception (the last one I list below), these public purposes parallel exactly the kinds of public purposes that justify the recognition of sterile opposite-sex unions through marriage. Neither sterile gay marriages nor sterile opposite-sex marriages can fulfill the procreative public purpose in marriage, but they can satisfy many others, and so we have a public interest in them. […]

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The Traditionalist Case — Individualistic Benefits to Children:

Children raised by married couples do better in school, are less apt to commit crime, less likely to use and abuse drugs, and so on, than children raised by single people or by unmarried couples. Right now children being raised by gay parents have no access to these advantages. Part of the case for gay marriage rests on protecting these children’s families in marriage, thereby benefitting the children themselves.

1. Gay parenting: data and existing policy

As I have noted, there are probably between 1 and 2 million kids being raised in households headed by a gay person, single or coupled. Of these 1-2 million, the Census tells us that children are being raised in at least 162,000 households headed by same-sex unmarried partners. If we assume, conservatively, that these households average 1.5 children each, that’s about 250,000 kids being raised by unmarried gay partners. As I’ve said, even this is almost certainly an undercount of the children being raised by gay couples in the U.S.

Most often gay parents are raising their own biological children produced during a prior failed heterosexual marriage. Judith Stacey and Timothy Biblarz, “(How) Does the Sexual Orientation of Parents Matter?”, 66 Amer. Sociological Rev. 159, 165 (2001). Other gay parents get kids through adoption, the process by which gay parents rescue children from the public child welfare system after heterosexual sex has produced children that their biological parents can’t, won’t, or shouldn’t raise. More rarely still, gay parents get these kids through the use of reproductive technologies or surrogacy.

How are these kids doing, even without marriage protecting their families? The available studies on the effects of gay parenting, while not methodologically ideal, seriously undermine any argument that gays are not at least competent to raise children (the “competence argument”). While the studies may […]

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Response to Commentators — Day 1:

Today’s posts have obviously spawned a lot of commentary, though I think Maggie wins in sheer volume. Many of the commentators are responding effectively to each other, and some of the questions raised (especially related to various slippery slopes, and possible harms to marriage) will be addressed in coming days, so I won’t add much now.

First, as one commentator reminded me, and as I wrote in an essay on National Review Online last week (available at http://www.nationalreview.com/comment/carpenter200510250830.asp), I think gay-marriage advocates have the burden of proof in this debate. But I think the burden can be met.

Second, I have been struck by how quickly the debate among commentators has centered on gay male promiscuity. I’ll address the promiscuity question tomorrow, as I think it goes mostly to the magnitude of the benefits I’m outlining, and again when I get to the prominent arguments against gay marriage. But for now, I’ll just note that it shows the debate about gay marriage is often conducted as if it’s only really a debate about guy marriage.

Third, one commentator asked why anything at all must be done about gay families. Why not just do nothing? That has been the default position of most traditionalist conservatives for some time now, while familial tectonic plates are shifting under their feet. It’s what I’d call malign neglect. If there’s one thing the past 40 years or so should have shown us, it’s that we ignore the health of families and family structure at our peril. I hope I’ve shown so far that doing nothing, pretending that the welfare of millions of people in gay families is of no concern to public policy, is not an attractive option for a traditionalist who cares about families and marriage.

Finally, I want to thank Anna for noting […]

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The Traditionalist Case — Individualistic Benefits to Gay Couples and Individuals:

When marriage is strong our society is strong: married people are on average healthier, wealthier, and happier than unmarried people. Marriage materially helps families in at least three different ways: there are legal benefits, caretaking benefits, and social benefits. It obviously also benefits the individuals in these families in ways material and, importantly for the traditionalist, moral.

1. Benefits to gay couples

First, the legal benefits are numerous and important, and they come from all levels of government and even from private sources like employers. Most of them help couples during the hard times, as when a spouse is sick, injured, or dead: the right to inherit from one another without estate taxation (even without a will), orderly division of property upon dissolution, rights to child custody and support payments, state and federal tax advantages, the right to visit a sick or dying spouse in the hospital, the right to make medical decisions for a spouse in the event of incapacity, the right to bring a wrongful death action, benefits to a surviving spouse and children through Social Security, testimonial privileges, and immigration rights, to name a few. Public and private employers link marriage to all manner of benefits, from family medical leave policies to care for a sick spouse to health insurance for marital families.

No, marriage is not just a bundle of goodies, like Santa Claus arriving after the ceremony. But the legal rights and obligations attached to marriage come into play when you need them most. Try keeping your house when the tax bill comes after your “unmarried partner” dies and kindly transfers her interest to you. Who gets the child you’ve been raising, the child who’s only ever known you and your unmarried partner as parents, when only she was the child’s legal parent? The […]

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The Traditionalist Case — The Numbers:

Raising a family and keeping it together is important and hard work, work the state should assist. Marriage benefits both individuals and their families (individualistic benefits) and the societies in which they live (communitarian benefits).

Very few people doubt these claims; certainly the conservative opponents of gay marriage do not doubt them. I will contend that uniting gay families in marriage will produce, at least in some degree, the same kinds of individualistic and communitarian benefits that traditional marriages produce.

But first, let’s look at some relevant numbers that often seem to get overlooked in this debate:

There are a lot of gay people in the United States. Of the roughly 300 million people living in this country, most surveys put the number of homosexuals in the 3-4% range (that’s based on self-reporting, so it’s probably an undercount). Taking the most conservative end of the range, that’s about 9 million homosexuals.

That’s a lot of people to leave with no reasonable prospect of ever marrying.

There are also a lot of gay families in the U.S. According to the 2000 Census, there are about 594,000 same-sex “unmarried partner” households, almost evenly split between gay male and lesbian couples. (Adults living with others were asked by the Census to classify their relationship to the others as, among other things, “husband/wife,” “housemate/roommate,” “roomer/boarder,” and “unmarried partner”). The Census data on unmarried partners can be found at http://www.census.gov/prod/2003pubs/censr-5.pdf. The Census figure of 594,000 is a good low-ball estimate of the number of gay-couple households in the country, though it’s almost certainly an undercount since many gay couples probably reported their status as “boarders” or “roommates” rather than as “unmarried partners.”

At a minimum, this means there are 1.2 million Americans already sharing a home and a life together who will never be able […]

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The Traditionalist Case for Gay Marriage — The Week Ahead:

First, thanks to the Conspiracy for giving me this opportunity. Also, thanks to Maggie Gallagher for her contributions on marriage two weeks ago. Her writing is powerful. It constantly challenges and enlightens me. My hope is that one day the vast majority who share her views can be persuaded that gay families, united in marriage, are no threat to marriage and are even a small part of its revival.

But that day is many years, probably decades, away. My aim here is much more modest. It is to frame the debate in a way that’s quite distinct from the end-of-civilization vs. civil-rights-for-all rhetoric that has come to dominate it.

This week I will sketch the traditionalist case for gay marriage, by which I mean briefly this: (1) Marriage will help support and stabilize gay families, including the many such families raising children; (2) it will help channel these families into traditional patterns of living, providing them and their communities some measure of the private and public goods we expect from marriage; (3) it will, over time, tend to traditionalize gay individuals by elevating respect within gay culture for values like commitment to others and monogamy at the expense of hedonism and promiscuity; (4) it will make available the most moral life (in a traditionalist sense) possible for a sexually active homosexual; (5) and it will do all of this without hurting traditional families or marriage, (6) perhaps even helping to a limited extent with the revival of marriage. Of these, I regard points 1, 2, and 5 as the most important and most likely results. I’ll focus most of my attention on these. Points 3, 4, and 6 are possible, and would be good from a traditionalist perspective if they happen, but are more tenuous or are less likely. I’ll […]

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Reboot:

My father, who has worked with computers his whole life, called to wish me a happy birthday. I had just turned 36, and 36 is how old my father was when my parents, Sasha, and I emigrated from Russia to America. You’re turning 36 the way people are supposed to, he told me: You’re settled, established in your profession, everything’s on track.

     When he was 36, he said, he was rebooting: He had to throw away everything he’d built up in Russia, and started from scratch in America. And true enough, he was as well set in Russia as most people could be; when we came here, he had to start again at minimum wage as a computer operator, taking two buses to get to work, and having to work two jobs for a while. He said this without rancor — he’s done very well for himself and his family (he and I are partners in the small software business we cofounded), and his decision to reboot has been proven sound many times over. But it was an interesting reflection on the difference between his life and mine. If only lives were as easy to reboot as computers. […]

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