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Gay marriage in Europe, again:

One of the footnotes in the debate over gay marriage has been the discussion between Stanley Kurtz (on one side) and just about everyone else (on the other side) over what effects, if any, gay marriage has had on the European societies where it has recently been recognized. Over at Marriagedebate.com, Maggie Gallagher has posted a response by William Eskridge and Darren Spedale to Kurtz's latest attempt to show that gay marriage is harming marriage in Europe, specifically the Netherlands.

Kurtz has done so much switching back and forth between European countries, and between time frames that he says show some causal relationship, and has done so much to confuse causation and correlation, that I confess I don't follow his work that closely anymore. (Maggie, to her credit, has never relied on Kurtz's claims about Europe and has even seemed to distance herself from them. Also to Maggie's credit, she has repeatedly sought out and posted at Marriagedebate.com the serious work of authors who disagree with her, like Eskridge, Spedale, and Jon Rauch.)

Eskridge and Spedale have actually been patient enough to refute Kurtz, however, including in their new book on the effects gay marriage where it's been tried. An excerpt from the latest post over at Marriagedebate:

For several years, Kurtz argued that same-sex marriage (in the form of registered partnerships) in Denmark and other Nordic nations had meant the "end of marriage" in Scandinavia. This was an overstated claim, at the least. As we document in our new book, the marriage rate actually increased and the divorce rate declined after Denmark adopted its same-sex registered partnership law in 1989.

This 'end of marriage' argument was accompanied by a similar argument, that same-sex partnership legislation has inspired straight couples to bear and raise their children outside of marriage. This, too, is not factually correct. . . .

Finally, as we document in our book, the long history in Scandinavia with registered partnerships has seen some benefits accrue to the institution. Not only have long-standing trends in lower marriage rates / greater divorce rates / greater numbers of out-of wedlock births reversed themselves or stabilized, but same-sex unions have also proven themselves to keep relationships stronger, strengthen families, protect children, promote tolerance, and possibly lead to benefits on a national scale such as lower national rates of STD and HIV infections.

Sensing that he is losing the case with those countries with these longer-lived partnership laws, Kurtz has substantially shifted to the Netherlands, as illustrated by his recent article "The Smoking Gun" (National Review On-Line, posted June 2, 2006). . . .

Kurtz argues that he finally has data that support his claim that same-sex marriage 'causes' high rates of children born outside of marriage. For several reasons, this data reveal no causal link.

First, the Netherlands' institution of same-sex marriage is too recent to draw any conclusions at this point. Kurtz responds that the Netherlands recognized registered partnerships in 1997 (they became available in 1998). Unlike the Scandinavian laws, however, the Dutch partnership law was, and remains, available to different-sex as well as same-sex couples. In fact, more heterosexuals take advantage of registered partnerships in the Netherlands than same-sex couples. Hence, the symbolic message it was sending was different: not just recognition of lesbian and gay unions, but also providing straight couples an alternative to marriage. Providing them another option might be expected to draw straight couples away from marriage.

Kurtz also claims that the 'campaign' for same-sex marriage began in a big way much earlier, perhaps 1989-90. The mere possibility of same-sex marriage, he seems to be saying, 'causes' straight couples to abandon the institution and have children outside marriage. This is a lavish understanding of social causation. . . .

Second, an event does not 'cause' a trend if the trend pre-existed the event. . . . The nonmarital birth rate in the Netherlands has been increasing exponentially since the 1970s. It galloped up in the 1980s, and continued that gallop in the 1990s and the new millennium. The rate doubled between 1982 and 1988, doubled again between 1988 and 1997, and is on the way to another doubling. These are significant increases, but registered partnerships, not to mention same-sex marriage, came right in the middle of this demographic trend. . . .

Third, and perhaps most important, Kurtz makes the mistake David Hume calls the 'post hoc proper hoc' (after that, therefore because of that) fallacy. (1) The U.S. Supreme Court struck down all state laws barring different-race marriage in 1967, and (2) American divorce and cohabitation rates went up dramatically after that. This sequence does not mean, however, that (3) the first event caused the second trend.

To figure out why Dutch nonmarital childbirth rates have gone up so dramatically in the last generation, we need to look at other variables -- including changing attitudes about women working outside the home, the trends in neighboring countries as Europe became more integrated, and evolving social mores. To "blame" this trend on same-sex marriage, which came at its tail end, is like blaming the last batter in a 10-0 baseball game for 'causing' the home team to lose. . . .

It seems fairly clear that gay marriage did not cause the bad marital trends in Europe Kurtz points to. At least, it's clear there's no good evidence yet to support that claim. I'd like to believe that gay marriage/partnership has had some of the positive effects in Scandinavia that Eskridge and Spedale suggest, but I'm not quite there yet either. I still need to read their book, which may convince me. In the meantime, I'm skeptical of all claims that the addition of about 1-2% more couples to marriage has had or will have any effect on marriage, good or bad. Marriage is important for gay families who want and need it, but probably not earth shattering for anyone else, despite all the excitement the issue generates.

Public_Defender (mail):
Kurtz's Netherlands example shows why we need same-sex marriage. As long as gays cannot marry, they will do their best to set up marriage-like structures. Since it's very hard to limit those marriage-like structures to gays only, some heterosexuals will take advantage of the structures instead of getting married.

Given the reality that gay people exist and are raising children as couples, letting gay people (and their children) into the stability of marriage is the most conservative position on the issue. Fighting gay marriage just guarantees that more heterosexual couples will end up choosing the marriage-like structures that gay people create to try to approximate legal marriage.

On a related note, can any anti-gay-marriage people point to any scientific (i.e., peer reviewed) study that backs Kurtz's hypothesis? Or is Kurtz the "best" evidence y'all got?
6.5.2006 9:34am
The Anti-Medis (mail):
Kurtz responds to Eskridge here: Link.

He also has another column today about SSM, where he provides links to his replies to Eskridge. Link.


"Talk about setting the bar high—Eskridge and Spedale say that the only acceptable proof of gay partnerships' negative effect on Scandinavian marriage would be a 100 percent out-of-wedlock birthrate! That is an unserious claim, which merely shows that Eskridge and Spedale are ignoring key parts of my argument. I've said from the beginning that the ongoing deterioration of Scandinavian marriage has been partially offset and disguised (especially in Denmark) by "catching up" (delayed childbirth by older working women), and by remarriage among the large pool of divorced."
6.5.2006 9:46am
The Anti-Medis (mail):
For the record, I am not anti-gay marriage. A legislature could easily pass gay marriage legislation. Great. I just don't think traditional marriage legislation must be motivated by animus and cannot conceivably have any rational-basis.

I also think Kurtz's claims should be considered fairly and fully, without casting asperions on him or those who refer to his work, whether he is ultimately correct or not.

As an anecdtoal aside you can feel free to disregard, I would also note that I went to Federalist Society event to see a debate between William Eskridge and Hadley Arkes on the constitutionality of DOMA thinking that Eskridge would tear Arkes a new one, but I walked away believing that Arkes' arguments, at least as presented at that forum (and when he refrained from quoting the Bible!), had more substance than Eskridge's and that Eskridge was being a bit disingenuous; literally, at one point Arkes said, "Eskridge will say in reply XYZ, because he cannot answer this question." In reply, I kid you not, Eskridge said, "That is not true, what I would say is XYZ!" I literally did a double-take.
6.5.2006 9:56am
The Anti-Medis (mail):
Obviously, the "literally" part does not apply to XYZ.
6.5.2006 9:58am
Ken Arromdee (mail):
From this article:

In fact, more heterosexuals take advantage of registered partnerships in the Netherlands than same-sex couples. Hence, the symbolic message it was sending was different: not just recognition of lesbian and gay unions, but also providing straight couples an alternative to marriage. Providing them another option might be expected to draw straight couples away from marriage.

From the National Review article:

Eskridge and Spedale further suggest that the spike in out-of-wedlock birthrates may be explained by the fact that Dutch registered partnerships are accessible to heterosexual as well as homosexual couples. Yet in "No Explanation," I show that this is not the case. The number of registered heterosexual partnerships is too small to explain the huge surge in the Dutch out-of-wedlock birthrate.

Hmm, contradiction. Anyone have the actual figures here?
6.5.2006 10:29am
SP:
The problem with citing Scandinavian countries is they really don't care much about heterosexual marriage at this point, so showing any causation with regards to gay marriage is simply impossible.
6.5.2006 10:33am
jimbino (mail):
What I really want to know is: why do two people, gay or straight, bother with either marriage or civil union in the notably non-religious Holland or the Skandinavian countries? It must be because the government still punishes singles in matters of taxation, inheritance, hospital visitation, adoption and the like. Is that true?

Furthermore, how are the Dutch or Danes in a civil union treated in the other EU countries, especially the SSMs?
6.5.2006 10:56am
Randy R. (mail):
Andrew Sullivan pretty much evicerated Kurtz in previous columns. Kurtz is the worst type of researcher -- he has a conclusion and he sets out to find the evidence to support it. True researchers start with a hypothesis, and then do research. then they modify or change the hypothesis based on the evidence.

Marriage trends have been traced to the 1920s, when divorce became much more common. To even consider anything that happened within the last few years is riduculous.
6.5.2006 11:01am
Harbey headbanger (mail):
How can either side truly correlate the Dutch / Scandinavian trends to what will or will not happen in the US? Those nations are (at least traditionally) culturally, racially, and economically (relatively speaking) homogenous in comparison with the United States. Holland, in particular, has a solid recent history of "bucking" what we would consider cultural norms in this country (i.e. acceptance of socialist policies, legalization of drugs, gay marriage itself, etc...).

I have some basic skepticism about either side's use of these nations demographic data to describe how a policy will impact the US culture.
6.5.2006 11:04am
Medis:
Pretty much anyone who has been following this debate over time knows that Kurtz is basically now in the position of arguing that people can't prove that gay marriage did not cause declining marital rates and nonmarital-birth rates. Just on its face, this is obviously an improper attempt to shift the burden of proof.

But it turns out that it is pretty easy to show that gay marriage did not cause these trends, as the trends in question began long before any changes to the actual legal structure of marriage. So, Kurtz is left arguing that just the campaigns in favor of gay marriage managed to drive these trends--which, incidentally, ignores the fact that the trends really began even before the campaigns. And that basically leaves Kurtz without even a post hoc ergo propter hoc argument (which is a terrible argument anyway), because the trends aren't even post hoc.

So, I think Kurtz is being quite silly to insist on his thesis at this point. But interestingly, if you accept his latest thesis (that merely campaigning for gay marriage causes these trends), then we can actually ask if that is happening in the United States, since there have been organized national campaigns for gay marriage since at least the late 1980s (eg, I believe the ACLU took up this cause in 1987).

And how are things going? Well, on the subject of nonmarital birth rates, here is what the NCHS had to say in a 2000 report:

"After rising dramatically during the half century from 1940 to 1990, out-of-wedlock childbearing leveled off, or slowed its rate of increase, during the 1990's. Since 1994, the percent of births to unmarried women has remained stable at about 33 percent. The birth rate for unmarried women increased from 43.8 per 1,000 unmarried women aged 15-44 years to 46.9 between 1990 and 1994 and then declined by 1999."

"The number of births to unmarried women reached an annual total of 1.3 million in 1999, increasing by a little over 1 percent annually during the 1990's as compared with an average annual increase of about 6 percent during the 1980's."

And so on.

Oops. So it looks like an ongoing trend in nonmarital birth rates actually reversed itself FOR THE BETTER following the beginning of organized national campaigns for gay marriage in the United States. So much for Kurtz's theory as applied to the United States.

Of course, I don't actually believe campaigning for gay marriage caused that positive change in the trends with respect to nonmarital birth rates during the 1990s. I agree with Dale--the idea that gay marriage is driving these trends is not just the tail wagging the dog, but the tip of the tail wagging the tail wagging the dog. But hopefully people opposed to gay marriage can see that just as it is ridiculous to credit campaigns for gay marriage for the positive developments that occurred with respect to things like nonmarital birth rates in the United States during the 1990s, it is equally ridiculous to blame campaigns for gay marriage for the negative developments that occurred with respect to the same things in the Netherlands during the 1990s.
6.5.2006 11:13am
Houston Lawyer:
I believe it would be very difficult to prove any correlations in the time periods involved. It has taken about two generations for people to understand the downside of no-fault divorce. I don't know how we could make any empirical observations about SSM in a shorter time period.
6.5.2006 11:20am
Cornellian (mail):
Third, and perhaps most important, Kurtz makes the mistake David Hume calls the 'post hoc proper hoc' (after that, therefore because of that) fallacy.

Actually the phrase is "post hoc, ergo prompter hoc."
6.5.2006 11:20am
Cornellian (mail):
Two conservative arguments for same-sex marriage:

1) Gay people will be supported in their declining years by their spouses, rather than by the state

2) Protecting straight women from deceptive, Brokeback Mountain style marriages to gay men, which harm everyone involved.
6.5.2006 11:22am
Marcus1 (mail) (www):
SP,

>The problem with citing Scandinavian countries is they really don't care much about heterosexual marriage at this point,<

Don't care much? I guess if you come from the Bible Belt, and you have a very religious conception of the institution of marriage, you might feel like Scandinavians focus less on the sanctity of the institution as such. Saying they don't care about marriage, though, strikes me as pretty culturally myopic. They're liberal, and they don't have the problems with cohabitation that some Americans have, but they definitely care about marriage. The differences in how groups view marriage in the U.S. are easily as great as the difference between the U.S. and Scandinavia.
6.5.2006 11:32am
Michelle Dulak Thomson (mail):
Cornellian,

Actually the phrase is "post hoc, ergo prompter hoc."

Well, actually actually, I think it's "post hoc, ergo propter hoc," without the "m."
6.5.2006 11:37am
The Anti-Medis (mail):
I do not see why it is improper for Kurtz to "shift the burden of proof"; his conclusion that gay marriage will undermine marriage seems to be derived, independently of his research, from the works of liberal European sociologists (with much better reputations), in which they say that is what its likely effect will be, and good thing. Either he is quoting them accurately or he is not. No?
6.5.2006 11:39am
Dave Ruddell (mail):

Actually the phrase is "post hoc, ergo prompter hoc."


Actually, it's "post hoc, ergo propter hoc." (thank you West Wing titles)
6.5.2006 11:39am
Medis:
The Anti-Medis,

As I understand it, your argument is that Kurtz can start with the assumption that these "liberal European sociologists" are correct, and require others to prove them wrong. Personally, though, I wouldn't put that much confidence in the speculation of "liberal European sociologists" in the absence of supporting data.

In general, while it may be true that some people HOPE that gay marriage will help undermine the institution of marriage, and some people may FEAR the same effect, the fact is that both of these groups can be wrong with respect to the underlying factual predicate.
6.5.2006 12:57pm
Nathan Hall (mail):
A small nit to pick.

Same sex unions have also proven themselves to...promote tolerance...
I wonder what this means. Is it just a throwaway PC phrase? A tautology (based on the common but lamentable notion that tolerance = normalization)? An actual claim that violence against gays is reduced by gay marriage? If the last, I suspect Eskridge and Spedale have themselves fallen victim to "post hoc, ergo propter hoc."
6.5.2006 12:57pm
Ken Arromdee:
But interestingly, if you accept his latest thesis (that merely campaigning for gay marriage causes these trends), then we can actually ask if that is happening in the United States, since there have been organized national campaigns for gay marriage since at least the late 1980s (eg, I believe the ACLU took up this cause in 1987).

I think what he means is that a campaign that succeeds in changing the public's views (as evidenced by its success) may be assumed to have effects before the law has passed, not that all campaigns, including failures that do not result in the passing of any law, do.
6.5.2006 1:19pm
Medis:
Houston Lawyer,

Incidentally, I believe divorce rates in the US have also fallen since the early 1990s, which was after the national campaigns for gay marriage began--although as previously noted, I doubt there is any causal relation to speak of.

And if I recall correctly, this was somewhat surprising, since besides no-fault divorce, I think the other factor previously shown to have caused increases in the divorce rate (after controlling for other factors) is increases in median family income. Yet in the 1990s, median family income increased while the divorce rate decreased. As I recall, one possible explanation was that people were waiting longer to get married, and there is apparently an inverse correlation between age at time of marriage and the divorce rate.
6.5.2006 1:20pm
Medis:
Houston Lawyer,

Incidentally, I believe divorce rates in the US have also fallen since the early 1990s, which was after the national campaigns for gay marriage began--although as previously noted, I doubt there is any causal relation to speak of.

And if I recall correctly, this was somewhat surprising, since besides no-fault divorce, I think the other factor previously shown to have caused increases in the divorce rate (after controlling for other factors) is increases in median family income. Yet in the 1990s, median family income increased while the divorce rate decreased. As I recall, one possible explanation was that people were waiting longer to get married, and there is apparently an inverse correlation between age at time of marriage and the divorce rate.
6.5.2006 1:20pm
Medis:
To everyone, sorry for the double post above.

Ken,

Even by that definition, I think the US experience fits. As I recall, according to polls, opposition to gay marriage decreased, and support for gay marriage increased, during the 1990s.

But maybe your point is that as yet, no gay marriage law has been passed and not vetoed. Even assuming that is indicative of a current lack of majority support for gay marriage, I don't see why there would be no effect at all to a gay marriage campaign unless that campaign eventually created majority support. That seems implausible and arbitrary. Instead, shouldn't we be seeing a change as long as norms are changing, even if they stop changing at less than the magical 50% number?

Of course, we are trying to make sense of an essentially nonsensical and ad hoc theory, so obviously it is a little difficult to determine how Kurtz's theory should reliably be applied. But again, my point is really just that as people opposing gay marriage come up with explanations for why many trends in the 1990s were positive despite the growing acceptance of gay marriage, they are basically coming up with reasons to think this entire line of argument is highly suspect.
6.5.2006 1:37pm
Medis:
As an addendum to my reply to Ken:

I checked, and it turns out that Kurtz himself relies on public opinion polls to show that the campaign in the Netherlands had an effect on social norms before the legal changes. From one of his NRO pieces:

"As the Dutch gay community's own history emphasizes, public opinion polls throughout the early 1990s show that the campaign worked. Ever-larger percentages of the Dutch public came to favor same-sex marriage: it was at 73 percent by 1995."

So, in a nutshell, how could Kurtz explain that during the 1990s, public opinion polls showed that "[e]ver-larger percentages of the [American] public came to favor same-sex marriage", and yet, at the same time, non-marital birth rates took a dramatic turn for the better in America?
6.5.2006 1:51pm
Freder Frederson (mail):
Well, even if the Scandanavian countries were to abolish the institution of marriage completely and 100% of births, were out of wedlock, what would this prove? Kurtz takes a statistic, the number of out-of-wedlock births, and ties it to a social policy, gay marriage, but then doesn't bother to say what this means. He just assumes that because there is a high number of out-of-wedlock births, all the negative outcomes and social stigma we (or at least religious conservatives) associate with such births are true in Europe. Are children born in Scandanavia born to unmarried women more likely to be born into poverty, get inadequate prenatal care, healthcare, housing, education, childcare, become criminals, or even grow up in a unstable single parent household? I doubt any of those things are true, especially those things associated with health and childcare. And since marriage in most of Europe just doesn't carry the financial and legal benefits that it does in this country, many people just don't bother to get married.
6.5.2006 1:59pm
Ken Arromdee:
So, in a nutshell, how could Kurtz explain that during the 1990s, public opinion polls showed that "[e]ver-larger percentages of the [American] public came to favor same-sex marriage", and yet, at the same time, non-marital birth rates took a dramatic turn for the better in America?

I'd imagine he wouldn't bother responding to that unless you got more specific than "ever-larger percentages", considering it probably wasn't 73% and considering that "larger" can actually mean that the base amount is large but the change is small.
6.5.2006 2:17pm
Cornellian (mail):
I wonder if Massachusetts still has the lowest divorce rate in the nation. Given that it's the only state where same sex marriage is legally recognized, I find it amusing that it has a lower divorce rate than all those deep red, supposedly "family values" states like Alabama and Mississippi.
6.5.2006 2:23pm
Medis:
Ken,

First, to get the facts out--as I recall, in the polls I have seen, as of the early-mid 90s, there was something like 27% support for gay marriage and 68% opposed in national polls. By the early 00s, that had shifted to something like 34% for gay marriage and 61% opposed. Of course, this is just my rough recollection of overall averages, but I think that is pretty close.

Now, my argument is that if Kurtz's theory is correct, this trend should have had at least a marginal negative effect on nonmarital-birth rates during the same period. Of course, it may not be as dramatic as the effect he claims occurred in the Netherlands--although interestingly, I don't think he gives us the same basis for comparing polls in his NRO piece as you have him requiring me to give. In other words, he says support for gay marriage was 73% by 1995 in the Netherlands, but he doesn't say what it was before the gay marriage campaigns supposedly took effect.

Anyway, regardless of magnitude, we know which direction the trend should be: increasing support for gay marriage should correlate with a upturn in the nonmarital-birth rate trend. And yet, we see the exact opposite correlation in the United States. So, this seems to be a real problem for Kurtz.

Or to put the same point another way: consider Opposite World Kurtz (OWK). OWK claims that gay marriage will have positive effects on nonmarital-birth rates. As his "smoking gun", OWK observes that national campaigns for gay marriage began in the United States during the late 80s, and support for gay marriage did in fact increase during the 1990s. And during the same time, OWK notes, nonmarital-birth rate trends took a turn for the better in the United States. So, OWK concludes, the campaigns for gay marriage caused this positive effect.

Of course, I anticipate that those opposed to gay marriage will come up with all sorts of arguments to explain why OWK's conclusion is not necessarily correct. Indeed, they will probably attribute these positive developments in the United States during the 1990s to something besides the concurrent rising approval for gay marriage.

Again, my point is quite simple--those people should realize that Kurtz's conclusion about what is driving nonmarital-birth trends in the Netherlands really isn't any better founded than OWK's conclusions about the opposite trends in the United States. And I think it should be an equally easy point to understand from either direction.
6.5.2006 2:41pm
A. Zarkov (mail):
Do the proposals for same-sex marriage exclude couples with a high degree of consanguinity? Do the European countries that recognize gay marriages do so? If so, why? For example why shouldn't two brothers be allowed to form a gay union? Obviously they can't mutually procreate, so there is no question of passing on genetic defects. If two people got married without knowing they were brothers and found out by accident ten years later, would that marriage be voided under the current proposals for gay marriage?

The recognition of US domestic partnerships, and granting benefits to them generally does exclude members of the immediate family. The University of California does this. They define a domestic partnership as two people having a "committed relationship" Why can't two sisters or two brothers have a committed relationship? I think the answer is most people find sex between two close relative "icky" is some sense. Even if that sex is unconventional and technically sterile. But the University doesn't require the members of what they consider valid domestic partnerships to engage in any kind of sex. Nevertheless it would seem that the granting of material benefits is a reward for engaging in acts like sodomy.
6.5.2006 3:08pm
Medis:
A. Zarkov,

I think the most common sort of argument for prohibiting even nonprocreative sexual relationships between adult siblings (and other close relations) is that doing so is necessary to combat the widespread problem of nonconsensual sexual abuse of children by family members. There are actually several different versions of this argument, ranging from anti-incest norm-reinforcement, to removing an incentive for abusers of children (the possibility of a future, legal, relationship), to the possibility that adult victims of child abuse are incapable of forming proper consent to have a sexual relationship their former abuser or even other family members, and so on.

Regardless of what you feel about the merits of those various arguments (in theory, for example, sterile siblings who had been separated from birth, and who did not know that they were siblings, might legitimately fall in love upon meeting as adults without triggering any of these concerns about their relationship per se; although codifying such an exception might nonetheless weaken the necessary anti-incest norm), I think it is clear that the issues are sufficiently distinct that one cannot assume the exact same analysis would apply.
6.5.2006 3:23pm
A. Zarkov (mail):
Medis:

Do we prohibit non-procreative sex between adult siblings? Wouldn't such laws violate their privacy rights under Lawrence? I apologize for not having done a little research, but I'm off to an appointment. I would appreciate if you could point me to the pertinent statutes. If what you say is the case, then that does present an argument.
6.5.2006 3:43pm
Medis:
A. Zarkov,

If you google something like "state criminal incest statutes", you should get a link to state-by-state information on the subject. In a nutshell, states tend to have a criminal prohibition on sexual intercourse in cases where the couple could not get married under the state's incest laws, with no exception for nonfertile couples.

I'm not sure if these laws have been tested yet under Lawrence, but for the reasons I suggested, I don't think Lawrence is controlling. Briefly, that would be because in addition to the genetic health issues, combatting the sexual abuse of children, rather than expressing moral disapproval of gay people, would probably still count as a legitimate state interest. There would also be a remaining question of whether there was a sufficient rational relation between anti-incest laws and that legitimate state interest, but they never evn got that far in Lawrence.

One final note: I recall reading about an interesting Connecticut case somewhat on this subject. As I recall, the case involved a 1980 statute which barred sexual relations between stepparents and stepchildren. As an aside, note that this is an obvious case where the genetic health of potential offspring could not be the primary concern.

Anyway, as I recall, the Connecticut intermediate appeals court held that the law was unconstitutional because it only prohibited opposite sex (stepfather and stepdaughter or stepmother and stepson) relationships. Accordingly, the court reasoned that the law violated Lawrence by discriminating against STRAIGHT (opposite-sex rather than same-sex) sexual relations, and with no rational basis for this unequal treatment. As part of this argument, the court noted that insofar as the statute was designed to prevent abuses of parental authority, that rationale applied equally well to straight or gay cases.

I bring this case up for a couple reasons (and hopefully I have described it correctly). First, it tangentially illustrates the idea that incest is indeed about more than genetic health. Second, it shows that according to one court, at least, Lawrence should cut both ways, and that insofar as incest is indeed about more than genetic health, the state should apply its incest reasoning to gay couples as well as straight couples.
6.5.2006 4:24pm
Archon (mail):
Here is a question for same sex marriage advocates. What would you consider legitimate criteria for determining who can access the marriage contract? Can you Mormon marry many people? Can first cousins marry? Can infertile brother and sister marry?

I am not trying to bring about a slippery slope argument, I am only truely interested in where you would draw the line.
6.5.2006 5:05pm
Medis:
Archon,

As an aside, I'd be in favor of getting the state out of recognizing marriages entirely, although I might be willing to substitute one or more special legal relationships that aren't called marriages. But I assume you are taking that sweeping option off the table and asking me what I would do in a world with state-recognized straight marriages.

I wouldn't extend special state recognition to group marriages but I might enforce at least some private contracts to that effect (it depends on the terms and exit-options).

I wouldn't exclude first cousin marriages. But I might support mandatory genetic testing for all couples, as long as it was merely informative and strictly confidential. I'm not sure about even that, however, because the temptation for abuse may be too high.

I'd probably exclude sibling marriages, although I am willing to think about infertile siblings who were not raised together and who didn't know that they were siblings when they married. But I don't know if such a exception should be codified in light of the undoubtedly tiny number of possible cases.
6.5.2006 5:25pm
Ken Arromdee (mail):
Indeed, they will probably attribute these positive developments in the United States during the 1990s to something besides the concurrent rising approval for gay marriage.

They would probably point out that it is much easier for a small effect to be overwhelmed than a large effect, and that the effect in the US is a smaller one than in the Netherlands. (Of course, neither of us actually knows how big the change in public perception in the Netherlands was.)
6.5.2006 6:03pm
Medis:
Ken,

But as soon as they admit that there are ANY other factors out there that may "overwhelm" the effects of changing attitudes about gay marriage, then they should see the problem with Kurtz's argument as well as the problem with OWK's argument. And that is because the observed effects in the Netherlands could potentially be attributed to those other factors as well, and they could potentially be "overwhelming" the effects of changing attitudes about gay marriage regardless of the magnitude of those changes.

So, the relative magnitude of the changes in attitude towards gay marriage in the US and the Netherlands respectively doesn't tell us what we need to know--rather, it is the relative magnitude of the effects of attitudes toward gay marriage versus the effects of these other factors that matters the most in evaluating both Kurtz's and OWK's arguments. In short, we cannot tell what, if any, effect attitudes about gay marriage have on these trends--we cannot even tell which way the correlation goes--unless we first control for these other factors.
6.5.2006 6:18pm
Boonton (mail) (www):

Do we prohibit non-procreative sex between adult siblings? Wouldn't such laws violate their privacy rights under Lawrence? I apologize for not having done a little research, but I'm off to an appointment. I would appreciate if you could point me to the pertinent statutes. If what you say is the case, then that does present an argument.



First, as we know, laws are presumed Constitutional until challenged. Laws against adult incest, even if Lawrence would outlaw them stand until someone actually goes to the trouble of arguing the case to the courts. I suspect such laws could probably be defended on the grounds that the state has a legit. interest in protecting children. If adults knew that they incest was permissible when their kids became adults then that could alter how they raise their kids today.

Second, one should ask how often is anyone convicted of violating laws against adult incest? Pretty rarely it seems. Perhaps this is because it is considered a victimless crime, fodder for Jerry Springer but not law enforcement. But then smoking pot is also considered by many to be a minor, victimless crime yet plenty of people get into legal trouble for it. The reason is that people just don't do it in real life...with some exceptions.

Laws against adult incest simply codify the status quo of human nature. Business law, as a similar example, codifies that people seek to make profits. This, however, is just human nature. You are free to not life your life for money. You are free to set up a communist commune (provided you don't force anyone to go along). Yet people mostly don't do these things not because the law forbids it but because it simply does not fit with human nature.

What is ironic about supporters of the FMA is that on one hand they will argue that hetrosexual marriage is an unalterable aspect of human nature. Then, on the other hand, they behave as if human nature was infinitately mallable and the slightest change in law will cause everyone's nature to change. The last major philosophical movement that argued that human nature was very mallable was Marxism and it has ended up on the deep, deep discount rack of philosophy's equilivant of Wal-Mart.
6.5.2006 6:23pm
Boonton (mail) (www):
I think the problem with Kurtz's argument is that the case he has made actually says nothing about gay marriage. Basically he has shown if the state introduces various types of 'Marriage-Lite' (civil unions, domestic partnerships etc. that both gays or straights can use) then some people will opt for that rather than traditional marriage and rates of traditional marriage will fall.

As Medis points out, correctly, if there is no way to control for the impact of marriage-alternatives on hetrosexuals then how are you going to measure the influence of just the availability of gay marriage will have on the non-gay population?

Another problem is a lack of a serious transmission mechanism. WHY should the legal options available to gay couples impact hetrosexual behavior? Why does the ability of Bob and Bill to legally marry make Joe and Sue more likely to either not marry or divorce if they are so?
6.5.2006 6:33pm
Elais:
I wonder if there have been any studies on how big of an effect being single has on traditional marriages?
6.5.2006 6:47pm
BobN (mail):
A. Zarkov


The recognition of US domestic partnerships, and granting benefits to them generally does exclude members of the immediate family. The University of California does this. They define a domestic partnership as two people having a "committed relationship" Why can't two sisters or two brothers have a committed relationship? I think the answer is most people find sex between two close relative "icky" is some sense. Even if that sex is unconventional and technically sterile. But the University doesn't require the members of what they consider valid domestic partnerships to engage in any kind of sex. Nevertheless it would seem that the granting of material benefits is a reward for engaging in acts like sodomy.


Responsibility for the muddying of relationships brought about by some domestic partnership laws and programs should be laid at the feet of oponents to same-sex marriage. In order to water-down any attempts to recognize same-sex couples, they included all sorts of mushy language to cover all sorts of interpersonal relationships that involve some level of dependence.

Mind you, I don't think it's a bad idea for there to be some sort of familial or household protections beyond those that already exist for kinship and economic dependence, but they should not replicate marriage and shouldn't be confused with marriage.
6.5.2006 6:52pm
Chris Bell (mail):
I'd like to see a response to Cornellian's two good posts:

Quote 1:

Two conservative arguments for same-sex marriage:

1) Gay people will be supported in their declining years by their spouses, rather than by the state

2) Protecting straight women from deceptive, Brokeback Mountain style marriages to gay men, which harm everyone involved.


Quote 2:

I wonder if Massachusetts still has the lowest divorce rate in the nation. Given that it's the only state where same sex marriage is legally recognized, I find it amusing that it has a lower divorce rate than all those deep red, supposedly "family values" states like Alabama and Mississippi.


In answer to your last question, yes, Massachusetts is very low on the divorce scale. See the last page here
6.5.2006 7:32pm
Chris Bell (mail):
here meaning here
6.5.2006 7:33pm
wooga:
I think Cornellian's 2 conservative points are valid points on the pro-SSM side of the scale. Plus, there are many other conservative points in favor of SSM. However, Kurtz argues that the bad points outweigh these few good ones. I say why bother with balancing.

The state has always imposed the majority's morality on the minority, rendering illegal (as recently as 1983 in Bowers) all sorts of things which I nevertheless think are good on the whole...

(yes, that's intentional)
6.5.2006 10:52pm
Bob Van Burkleo (mail):
Since it's very hard to limit those marriage-like structures to gays only, some heterosexuals will take advantage of the structures instead of getting married.

True. Seattle got domestic partnership registration for city employees but now almost 80% of the registered domestic partners are opposite gender couples.

Here is a question for same sex marriage advocates. What would you consider legitimate criteria for determining who can access the marriage contract? Can you Mormon marry many people? Can first cousins marry? Can infertile brother and sister marry?

You've framed the question so it will get you a wrong answer. This isn't a 'same sex marriage' issue, it is an equal access issue. There exists a civil contract that is designed for 2 mutually exclusive cosignees. All citizens should have reasonable access to it, i.e. they should be able to license it with someone they would want to 'build a life with'. No one is asking for a new kind of contract, they are asking for access to the existing contract.

That knocks polygamy right out 1) the existing contract won't support polygamy (more than 2 people in one or one person with multiple contracts. 2) polygamists already have access to the contract, they can license the existing contract with someone who they would want to build a life with.

Actually first cousins can marry in many states, and in some like utah they can if they prove they are infertile/beyond childbearing age and the like. (which works against the 'marriage is for procreation' argument)

Incest is a social problem, not a genetic one. We let people at far greater risk of life-threatening genetic disease marry and the actual risk of an occasional close breeding is actually quite low.

It is a sociological problem - allowing close relatives to marry would mean that members would start 'grooming' potential mates from early on. It would limit their socialization, remove their ability to choose without bias, and be 'mentally' incestuous.

Britain realizes this and has restrictions on all immediate family members raised together regardless of their genetic history, but allows step siblings to marry IF they were raised separately i.e. no genetic linkage, not raised together, siblings by legal means only.

Incest is a social problem far more than it is a genetic one.

All but one of the restrictions ore licensing the marriage contracts are regulation not proscription.

Age - they can wait until they are older but they will have qualify eventually. regulation.

Relatives - excluded for the reasons above, and the restriction excludes a handful of potential partners out of a pool of millions. regulation.

Polygamy - they already have license to the contract which cannot support more than 2 in an exclusive contract and a compelling argument can be made that allowing polygyny of the bibilical/middle eastern/mormon kind institutionalizes unequal rights for the men and women in the relationship (as well as it being a contractual nightmare - the women are all mared to the man but have no legal connection with each other). regulation.

Gender - straight citizens have a pool of virtually half the world, gay citzens have no pool at all. effective proscription for gay citizens.

Its an equal access issue.
6.5.2006 11:24pm
Waldo:
I agree that Kurtz hasn't proven causality.

However, I'd like to propose this alternative hypothesis. Over the last several decades the social context of marriage has changed from one of establishing extended family relationships to one of recognizing a relationship between two people. This change is the cause that has both made gay marriage plausible as well as increased the rate of unwed births.
6.5.2006 11:36pm
Bob Van Burkleo (mail):
However, I'd like to propose this alternative hypothesis. Over the last several decades the social context of marriage has changed from one of establishing extended family relationships to one of recognizing a relationship between two people.

According the the Urban Institute's meta-census studies, 20% of gay households are raising minor children, 30% of lesbian households. Same gender households establish extended family relationships too.

My hypothesis is that in socialized nations the benefits from licensing the marriage contract have become minimal to nonexistent and married couples just don't bother getting a civil union until they have to, like post having a child. The idea of everyone having to register their marriage with a central authority started about the 15th century - before that if you had no assets common law was the norm.
6.5.2006 11:47pm
Medis:
As I recall, most of the rise in nonmarital-birth rates in the United States can be attributed to the fall of "shotgun wedding" rates (weddings following an accidental pregnancy), particularly among younger, poorer, and less-educated women. Apparently this trend can be traced back to at least the 1940s.

I don't think there is a consensus about why that has occurred. But it seems worth noting that the gap between the economic opportunities available to men and women has been falling during this time, and that is particularly true among poorer and less-educated women and men. Also, as noted above, during the 1990s the nonmarital-birth rate stopped increasing dramatically, and perhaps not coincidentally, the gap between male and female wages was also closing far less rapidly during that time than it had in the previous decades.

So, the most major factor explaining the rise in nonmarital birth-rates may simply be that marrying an accidental baby's father has become less and less economically advantageous for certain mothers (namely younger, poorer, and less-educated mothers whose fathers are similarly situated) as the economic gender gap has decreased.
6.6.2006 12:39am
Ken Arromdee:
What is ironic about supporters of the FMA is that on one hand they will argue that hetrosexual marriage is an unalterable aspect of human nature. Then, on the other hand, they behave as if human nature was infinitately mallable and the slightest change in law will cause everyone's nature to change.

I think this is comparing apples and oranges. The argument would be that heterosexual marriage is unalterable in the sense that the human race's *suitability* for it is unalterable, while heterosexual marriage is malleable in the sense that humans' *desire* for it can be changed. These are different senses of "unalterable", so no contradiction and no irony.
6.6.2006 1:30am
Medis:
Oh, and I believe that there are some studies suggesting that the general trend of people waiting longer to get married can be explained in part by the growing income disparity between men, which gives women an economic incentive to engage in a longer search. If true, that might help explain why younger and poorer women are increasingly less inclined to go ahead and marry the father of their accidental child (ie, they may be hoping to marry a more economically advantageous man down the road).
6.6.2006 2:05am
Roel:
Third, and perhaps most important, Kurtz makes the mistake David Hume calls the 'post hoc proper hoc' (after that, therefore because of that) fallacy.

Actually the phrase is "post hoc, ergo prompter hoc."

Well actually it's neither: it's "post hoc, ergo propter hoc". See http://en.wikipedia.org/wiki/Post_hoc_ergo_propter_hoc.

Furthermore, the best illustration of this fallacy is in this chart: http://en.wikipedia.org/wiki/Image:Pirateschart.jpg. (see venganza.org).
6.6.2006 6:25am
Chairm (mail):
>> Bob Van Burkleo said: "According the the Urban Institute's meta-census studies, 20% of gay households are raising minor children, 30% of lesbian households."

http://volokh.com/posts/1149509839.shtml#101120

That refers to HRC's analysis of the Census count of same-sex households.

About 11% of the adult homosexual population resides in such households; almost 90% do not. (A smaller proportion have bothered to avail themselves of any form of registered status -- domestic partnership, civil union, SSM.) Less than 97% of the adult homosexual population resides in such households WITH children. The vast majority of that child population migrated from the previously procreative both-sexed relationships of their parents. These children are typically the children of mothers AND fathers who split-up. Perhaps 5% of children in same-sex households were obtained via adoption or with the assistance of ARTs/IVF.

The low participation rates in all forms of the one-sex-short arrangement, whether it is registered or not, indicates there is low-demand for the radical changes being advocated.

The primary purpose of the SSM project is to change -- through coercion if necessary -- public attitudes toward same-sex attraction.

The goal is to replace State reconigtion of the social institution of marriage with State recognition of something else. In terms of this discussion, that means destroying the *unique* status of the social institution that integrates the sexes and combines that integration with responsible parenthood.

That would mean deconstruction of the preferential treatment of marital status. The SSM project would appropriate the social esteem for marriage and relabel nonmarital alternatives as "marriage". This is not a liberty question: in our society individuals exercise the liberty to choose to form nonmarital alternative arrangements. The SSM project sets out to push to the sidelines the central purposes of societal acknowledgement and support for marital status: sex integration and responsible parenthood.

Reciprocal Beneficiaries is the correct response to the nonmarital alternatives.
6.6.2006 11:03am
Medis:
Chairm,

I'm interested in your phrase "integrate the sexes." What exactly does that mean, and what is society's interest in doing that?
6.6.2006 11:25am
Marty McK (mail):
Cornelian:
I wonder if Massachusetts still has the lowest divorce rate in the nation. Given that it's the only state where same sex marriage is legally recognized, I find it amusing that it has a lower divorce rate than all those deep red, supposedly "family values" states like Alabama and Mississippi.


Of course a state with a low marriage rate like Mass will also have a correspondingly low divorce rate. Likewise high marriage rates in Miss and Ala result in higher divorce rates.

If anything, your argument merely proves that Mass takes the institution less seriously than either Miss or Ala, not more.
6.6.2006 12:52pm
Boonton (mail) (www):
However, I'd like to propose this alternative hypothesis. Over the last several decades the social context of marriage has changed from one of establishing extended family relationships to one of recognizing a relationship between two people. This change is the cause that has both made gay marriage plausible as well as increased the rate of unwed births.


1. I'm not sure how this supposed change has made gay marriage plausible. There's no reason that gay marriage could not be used to establish extended families as well as straight.

2. While extended families might have had more influence decades ago in people's marriage decisions the bulk of marriages have been about recognizing a relationship between two people. Even going back a few hundred years one should recognize the delicately arranged marriages between royals and other members of powerful families were not typical of the common man and woman.

Chairm
The low participation rates in all forms of the one-sex-short arrangement, whether it is registered or not, indicates there is low-demand for the radical changes being advocated.

I'm not sure what the relevance of this is. First how do we know that SSM will not itself cause a behavioral change among gays? Second various forms of domestic partnerships are still relatively new and there will likely be reluctance to use them until they have been around for a while. No one wants to be a test subject. Finally some probably view them as something of an insult (like the 'colored' water fountains of the Jim Crow era).

The primary purpose of the SSM project is to change -- through coercion if necessary -- public attitudes toward same-sex attraction.

No doubt SSM advocates do feel gay relationships should be viewed no more negatively than a hetrosexual relationship. However it seems if one holds that view then equal access to marriage follows logically rather than as only a strategy in convincing people. As for coercion, no one is forced to accept another's marriage as legitimate. I return to the example of the Catholic Church which does not recognize divorce. The Catholic Church is not coerced to accept the remarried divorced as legitimately married.

I'm interested in your phrase "integrate the sexes." What exactly does that mean, and what is society's interest in doing that?

Indeed, how did the sexes manage to integrate themselves (integrate means to mix together) without state sanctioned marriage? In fact, 'integrating' seems to be something males and females do on their own. The civil marriage seems to be more of a matter of simply making life easier for them by giving them a default contract for the most common form of 'integration'...the long term two person relationship.

Chairm's concerns make presumptions about the state's power that are unwarranted. The state does not have the power to grant 'esteem' to anyone's relationship. Esteem means valued highly by others. Since people are fundamentally free to value things as they see them the state does not have the power to grant esteem to anything or anyone. Just because the mayor honors some local hero with a medal you are free to consider him a coward.
6.6.2006 12:58pm
Boonton (mail) (www):
Of course a state with a low marriage rate like Mass will also have a correspondingly low divorce rate. Likewise high marriage rates in Miss and Ala result in higher divorce rates.


It depends on how you calculate the rate. If it is something like the number of divorces per 100 people then yes a low marriage rate will probably mean a low divorce rate. If it means the number of divorces per 100 marriages (say after 5 years) then a low marriage rate will have nothing to do with the divorce rate.

If anything, your argument merely proves that Mass takes the institution less seriously than either Miss or Ala, not more.


On the contrary, it could mean that Mass takes marriage more heavily than Ala or Miss leading people in Mass to not enter marriage unless they are really confident about it. To use another example, very few people will change careers late in life. Does this mean people don't take changing careers very seriously?


for the record, according to http://www.cdc.gov/nchs/data/nvss/mar%26div.pdf

Ala rate per 1000 people
Marriage (1990) 10.6 Divorce (1990) 6.1
Marriage (2002) 9.8 Divorce (2002) 5.4

Miss
Marriage (1990) 9.4 Divorce (1990) 5.5
Marriage (2002) 6.4 Divorce (2002) 4.9

Mass
Marriage (1990) 7.9 Divorce (1990) 2.8
Marriage (2002) 5.9 Divorce (2002) 2.5

So just about everyone saw a decrease in marriage rates and divorce rates in the 12 years covered. This leads me to suspect all these states are seeing an aging population (since marriages that end in one person becoming widowed do not count as a divorce) combined with younger people holding off on marriage.

Mass., though, seems pretty competitive in the protecting marriage department. For every 5.9 people married there were 2.5 divorced people (42%). Miss, in contrast, has 4.9 divorces for every 6.4 marriages (71.8%)

Ala saw its marriage rate drop by 7.5%. Miss saw its rate drop 31.9% and Mass saw its rate drop by 25%. Remember, even though this data is from 2002 one of Kurtz's arguments is that even people anticipating a change causes an impact....so if people suspect gay marriage will be legal in 5 years, according to Kurtz, they'll start treating hetrosexual marriage less seriously today. Yet in 2002 who would you have placed your money on adopting gay marriage or domestic partnerships in 5 years? Miss or Mass?
6.6.2006 1:22pm
Medis:
Marty McK,

You say: "Of course a state with a low marriage rate like Mass will also have a correspondingly low divorce rate. Likewise high marriage rates in Miss and Ala result in higher divorce rates."

I agree it makes sense to compare marital rates and divorce rates. Accordingly to the link above, here are some of the numbers for 2001.

In the U.S. overall, there were 8.4 marriages per 1000 people, and 4.0 divorces per 1000 people. That is a 2.1:1 marriage:divorce ratio.

In Massachusetts, it was 6.4 marriages and 2.4 divorces. That is almost a 2.7:1 marriage:divorce ratio--significantly better than the overall US ratio. In other words, it is true fewer people got married in Massachusetts in 2001 than the US average, but even fewer still got divorced. By the way, as an aside, eventually a lower divorce rate is likely to lead to a lower marriage rate per 1000 people, since I believe the marital rate includes remarriages as well.

Anyway, in Alabama, it was 9.6 marriages and 5.3 divorces. That is a 1.8:1 ratio--worse than the overall US ratio, and much worse than Massachusetts' ratio. In other words, it is true that Alabama had more marriages than the US average, but Alabama had disproportionately more divorces. And again as an aside, obviously a higher divorce rate is likely to lead over time to a higher marriage rate.

Finally, in Mississippi, it was 6.7 marriages and 5.4 divorces. That is a 1.2:1 ratio--worse than Alabama, much worse than the US, and much, much worse than Massachusetts.

Incidentally, if my math is right, it looks like Mississippi holds the dubious honor of having the lowest ratio of marriages to divorces. The highest ratios are in Nevada (about 11:1) and Hawaii (about 5.4:1), but I wonder if those results are skewed by large numbers of people going to those states specifically to get married. After that, I think the next highest ratio is in DC (almost 3.0:1).
6.6.2006 1:44pm
Medis:
By the way, I see Boonton made a similar point with slightly more recent statistics (2002).
6.6.2006 1:48pm