Northwestern University Law Professor Andrew Koppelman recently posted an excellent article assessing recent arguments against gay marriage put forward by leading anti-gay marriage legal scholars and political philosophers. Here is the abstract:
The case for same-sex marriage has been politically triumphant, and its victory looks inevitable. It nonetheless is curiously incomplete. It has succeeded, not because the most sophisticated opposing arguments have been considered and rejected, but because those arguments have not even been understood. Those arguments rest on complex claims, either about what sustains the stability of heterosexual marriages or about what those marriages essentially are. The most familiar claim, that recognition of same-sex marriage jeopardizes the heterosexual family, demands an account of the transformation of family norms in the past half century. Major social change should not be undertaken without a full awareness of what is at stake.
This essay remedies a major gap in the literature. It critically surveys and evaluates the arguments against same-sex marriage. You may not be persuaded by them. In fact, you shouldn’t be persuaded by them. But you need to know what they are.
Koppelman and I are at odds on a wide range of other political and constitutional issues. But I think he’s mostly on target here. As he explains, arguments against gay marriage that do not reduce to simple anti-gay bigotry can be divided into two categories: Claims that gay marriage (and possibly gay sex) is inherently wrong, and claims that it has negative social consequences, such as undermining heterosexual marriage or harming children. The first category of arguments is largely question-begging and incoherent, for reasons Koppelman outlines well. For example, some advocates claim that marriage (and perhaps sex) are only morally defensible if they take a procreative form, but then somehow try to stretch that concept to include relationships between heterosexuals one or both of whom are known to be infertile.
Consequentualist arguments against gay marriage are potentially more powerful. But, as Koppelman explains, the available evidence doesn’t seem to support them. I would add that many such arguments are implausible because they assume that the marital behavior of a tiny, unrepresentative minority will have a major impact on the rest of society. Gays and lesbians are only about 3-4 percent of the population, according to most surveys, and few heterosexuals look upon them as role models for how to manage their own marriages and sexual relationships. Even if we assume that most gay and lesbian marriages will set a poor example for heterosexuals, by e.g., promoting the idea that promiscuity is unobjectionable, or by being bad parents to their children, there is no reason to believe that heterosexuals will actually follow that example. If we assume, more realistically, that at worst same-sex marriages will be on average moderately worse than the heterosexual ones, but there will be great variation within each group, then the likelihood of a negative influence is even smaller. Even if you believe that raising children is the only good justification for marriage, many gays and lesbians are in fact raising children, and get married in large part for that reason. Most heterosexuals who don’t follow the subject closely probably won’t even know the data on the relative quality of same-sex marriages, much less model their own behavior on it. I don’t mean to suggest that same-sex marriages really are, on average, worse than heterosexual ones. But even if that is in fact the case, it is unlikely that heterosexual marriage will be much affected as a result.
In practice, the existence of gay marriage is likely to have only a very modest effect on the vast majority of heterosexuals. Because it involves such a small group, the introduction of gay marriage is actually a far less consequential social change than the legalization of interfaith marriage and interracial marriage, and the replacement of traditional patriarchal marriage that concentrated legal authority in the hands of the husband with a system where men and women have equal rights. Each of these were much more radical changes that affected large parts of society.
But if we nonetheless believe that the possibility of negative example effects is a good reason to ban same-sex marriage, it’s an even better reason to ban the much larger number of heterosexual marriages that involve people who are statistically likely to set a poor example for others. Such factors as poverty, low intelligence, a history of criminal behavior, and so forth are all highly correlated with social dysfunction within marriage, such as promiscuity and child and spousal abuse. And the number of heterosexuals who fall into these categories is far larger than the number of gays and lesbians. Dysfunctional heterosexual marriages are far more likely to have a negative effect on social mores than dysfunctional same-sex marriages. Yet almost no one claims that we should therefore ban poor people, people with low intelligence, or even criminals from getting married.
An alternative formulation of the argument is that, irrespective of the actual behavior of gays and lesbians, the establishment of gay marriage will change heterosexuals’ perceptions of what marriage is for. For example, it might lead people to believe that marriage is separable from procreation. That horse has already left the barn. Most modern Westerners already believe that marriage serves a variety of functions other than procreation, and that it is morally acceptable for people to marry even if they have no desire to have children and do not consider their marriage to be procreative in any way. They already believe that it is acceptable get married purely in search of love, companionship, and other rationales that apply to same-sex marriage just as much as heterosexual marriage.