Dale Carpenter on Same-Sex Marriage:

I'm delighted to welcome Dale Carpenter, who teaches law at the University of Minnesota, as this week's guest-blogger on same-sex marriage. Dale is a University of Chicago School of Law graduate, and a founder of the law school's conservative debating group, the Edmund Burke Society. He clerked for Judge Edith Jones on the Fifth Circuit, practiced for several years, and in 2000 started at Minnesota, where he teaches and writes on Constitutional Law, the First Amendment, and Sexual Orientation and the Law. He also writes a regular column called OutRight for several gay newspapers around the country; many of these columns can be accessed here.

[Dale Carpenter (guest-blogging), October 31, 2005 at 9:20am] Trackbacks
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 offer only some tentative thoughts on these. There are, in short, both individualistic (private) and communitarian (public, state) interests in recognizing gay families through marriage.

O.K., maybe my project is more ambitious than I thought.

If any significant part of what I described above actually came to pass, it would be a dark day for sexual liberationists, for opponents of marriage, for much of the gay left, and for many others who now say they favor gay marriage; conversely, if any significant part of it came true, it should be cause for rejoicing among conservatives, especially traditionalist conservatives. The key here is the "if."

Subject to change, here's how I plan to proceed. Today and tomorrow I will make the affirmative case for marriage for gay Americans. The affirmative case points to both the individualistic and communitarian benefits. Wednesday and Thursday I will respond to some of the most common arguments against marriage for gays, including the procreation and slippery-slope questions. (Sometimes the pro and con arguments will overlap.) Friday will be clean-up day, including suggestions for how to proceed, with some consideration of the role of legislatures vs. courts and marriage alternatives like civil unions.

I'll try to respond to some reader commentary as we go along, perhaps in a single last post each night. In return, I ask this of commentators. Try to focus narrowly on the discrete point(s) made in the post to which you're responding. There's a tendency in this debate, on both sides, to "kitchen-sink" every argument, that is, to respond to specific points with unrelated points or with global observations about the nature of marriage, the world, the meaning of life, and so on.

Here are some things I will not do this week. First, I won't try to change anyone's religious views about gay marriage or homosexuality. If your religious faith leads you to oppose gay marriage, and if your faith further commands that this tenet be mandated in secular law, not much I say this week will matter to you. However, if this tenet (like others?) need not necessarily be mandated in secular law, come along for the ride. The faith-based traditionalist opposed to homosexuality, like all those generally uncomfortable with homosexuality, might reluctantly reconcile himself to gay marriage as the most realistic public-policy way to make the best of the bad.

A related point: though there's no logically necessary connection, attitudes about gay marriage correlate strongly with a person's underlying views of homosexuality. Is it a harmful or benign variation of human sexuality? Is it chosen or unchosen? The best evidence strongly favors the benign/unchosen answers. I may devote some, but not much, space to these Gay 101 issues if it seems necessary.

Second, I will not make rights-based arguments, e.g., that there is a constitutional right to gay marriage. Lots of people spend lots of time arguing about this; indeed, rights-talk has monopolized the debate. The traditionalist case is consequential and moral, not legal.

Finally, I won't be accusing the opposition of bigotry. Many Americans oppose gay marriage out of a fear of possible unintended and unforeseeable consequences. These opponents of gay marriage are not bigots; they are prudent. Their prudential concerns must be treated seriously, not dismissed as blind prejudice. Such concerns can and should be accommodated in the time-frame and process by which we get to gay marriage.

At the same time, I hope nobody will think I'm intentionally trying to destroy marriage. Put simply, I believe in gay marriage because I believe in marriage.

[Dale Carpenter (guest-blogging), October 31, 2005 at 1:35pm] Trackbacks
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 to marry.

Lots of children are being raised by these gay couples. Of the reported female unmarried partners, more than 1/3 are raising children. Of the male unmarried partners, more than 1/5 are raising children. That's about 162,000 unmarried same-sex households in the U.S. raising children. (This number, too, is almost certainly an undercount, for the reasons given above.) This data is also available at http://www.census.gov/prod/2003pubs/censr-5.pdf.

Once we include single gay people raising children, estimates of the total number of children in the U.S. being raised by gay parents (singles and couples) range from a low of 1 million to a high of 9 million. That's between 1% and 12 % of all the children in the country. These estimates come from Judith Stacey and Timothy Biblarz, "(How) Does the Sexual Orientation of Parents Matter?", 66 Amer. Sociological Rev. 159, 164-65 (2001). I think the estimates on the lower end, somewhere in the 1-2 million range, are more reasonable.

That's a lot of kids whose families by law will never be united in, and protected by, marriage; and who may well grow up thinking marriage is just another option among many.

A striking characteristic of this debate is that few opponents of gay marriage ever acknowledge the existence, extent, or needs of these families. It's as if they are not real, as if their interests don't count in a debate that is at least in part about them. Or, if opponents do recognize these families, they often evince little understanding of the function they serve. These families get lectured, somewhat bizarrely, for pushing 1970s disco-era selfishness, for being adults trying to satisfy personal desires for intimacy, for promoting a political cause at the cost of compromising an important social institution, and for distracting responsible people from cleaning up the mess somebody else has made of marriage.

Yet families headed by gay people are families in important ways relevant to social function and state interests. They are not simply strangers who happen to live under one roof. They are doing the hard and critical work of providing for themselves, caring for their loved ones, and raising the next generation. This is what we expect families to do.

They are not going away. If anything, their numbers are growing. The question then is, what is to be done about them? Advocates of gay marriage have an answer: let them wed. Many, though not all, opponents of gay marriage have had nothing to say up to now. I cannot see how a traditionalist, even if he does not favor gay marriage, can just ignore their fate.

This, then, gives you an idea of the dimensions of the problem and some of the familial interests involved in this debate. I don't ask that gay families' interests be considered to the exclusion of everybody else. I just ask that they be considered. Obviously, gay families are a small portion of all the families in the country and maybe sacrificing gay families' interests and needs to some greater good (like the needs of traditional families), if that's really the trade-off, is worth it. (I'll address the trade-off argument directly later in the week.) But that calculation cannot even be made until we appreciate that, for gay families, the stakes in this debate could not be higher.

Next, I'll identify some individualistic benefits these families might get from marriage; tomorrow, I'll finish up on the individualistic benefits and discuss some of the communitarian ones.

[Dale Carpenter (guest-blogging), October 31, 2005 at 5:38pm] Trackbacks
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 destabilizing effects of these problems should be obvious, and they are visited on all of us eventually. Gay couples trying to stay together and support their families need legal support, and could benefit from it, much as straight couples do. (I realize that these and other legal benefits could be given to gay couples seriatim, but that runs into other difficulties like, which should be granted and which denied, and why? Plus, for reasons I'll discuss Friday, a "menu" approach to marital benefits for non-marital couples raises problems of its own for the traditionalist defender of marriage.)

Second, the caretaking benefits are at least as important. Marriage, by social expectation and custom and in some ways by law, makes one other person responsible for your well being. This provides you with an on-the-scene doctor, police officer, and firefighter. It's better than any government program could be at serving this caretaking function.

Gay families have problems like everyone else. Gay people have just as great a need for love and affection as straight people; gay couples are just as capable of loving one another, of sacrificing for another, of committing to one another, as straight couples. Encouraging the formation of gay-couple households through marriage will make it more likely that another person will be there when trouble comes in life, as it always does.

Third, there are the social benefits. In our culture, marriage is the way couples signal the ultimate commitment to one another; and through marriage they communicate this deep commitment to their families, to their friends and co-workers, and to their communities. That commitment is then reinforced by the web of familial and other relations, created by marriage, that they have around them. This reinforcement helps strengthen their bond, and therefore their family. It helps keep them together, especially in tough times.

Gay couples need this sort of reinforcement and suffer for the lack of it. As of now, no gay relationship can reach the cultural pinnacle signified by the words, "Will you marry me?" Telling your families and friends that you are "partnered" will not, usually, signal the same depth of commitment that marriage would. And if they doubt whether you have invested heavily in your relationship, why should your families, friends, and communities invest heavily in it?

The benefits of each of these categories -- legal, caretaking, and social -- can be obtained to some extent by gay and straight couples outside marriage. An unmarried couple can approximate some of the legal benefits of marriage through wills, trusts, powers of attorney, and so forth. They can, of course, pledge to take care of one another and many do. Their families and friends will often respect and be happy about their relationship. Gay families in particular, given the obstacles they have faced, have done a truly heroic job keeping themselves functioning.

But nothing substitutes completely for marriage on any of the dimensions I've listed; surely no traditionalist advocate of marriage would think they could. For example, obtaining a measure of legal protection through contract is expensive, time-consuming, and incompletely protective. If the legal, caretaking, and especially social benefits of marriage were not significant, many fewer opposite-sex couples would bother to marry. On average, not surprisingly, marriages last longer and are more stable than unmarried cohabitation. This disparity is at least partly due to a symbiosis: what marriage gives to the married couple and what they give to their marriage.

2. Benefits to individuals

So far, every gay person has lived without the prospect of ever marrying the person she loves, to whom she is committed, and with whom she wants to form a family in a commitment that carries the prospect of a life-long bond. The marriage exclusion denies gay Americans the most powerful social and legal institution we have for encouraging the kind of commitment that makes for a better and richer life. Maybe the exclusion can be justified, but we must acknowledge that it is a serious deprivation.

To the extent gay relationships thrive under a regime of marriage, the individuals in them should be better off in several material ways: more healthy, more wealthy, more happy.

But they may be better off morally as well. Traditionalists are not concerned simply with the material well-being of our society, or with the material well-being of the individuals that comprise it. They are concerned with the moral well-being of our society and its individuals. Traditional morality favors monogamy over promiscuity, stable relationships over unstable ones, marriage over non-marriage. Gay marriage offers the sexually active gay person who wants it the chance to live as morally traditional a life as is possible for him. It is not, for traditional morality, an ideal, since it is still homosexual and sexually active. But it is the closest approximation such a person can come to that moral traditionalist ideal.

Some moral traditionalists will object that no sexually active homosexual can lead a moral life, even one committed monogamously in marriage to one other person, because traditional morality also favors heterosexual acts over homosexual acts. (Full disclsoure: I do not myself share the view that homosexual sex is intrinsically immoral.) A moral traditionalist friend of mine once remarked that it would be better, from the perspective of his religious faith, for a gay person to commit 1,000 sexual acts with 1,000 strangers than to commit 1,001 sexual acts with one partner with whom he shared a marital, monogamous, loving, life-long commitment.

There's nothing, finally, that I can say to that objection if you are really committed to the idea that there is no consideration of degree here, no thought to be given to the context in which otherwise morally objectionable acts are to occur. But I suspect that to very many moral traditionalists, the moral choice involved in the above example is clear and that it favors the marital, monogamous, loving, life-long commitment. The moral preference here is what we might call a form of moral satisficing, whereby we sacrifice the optimal result, which seems likely to be unattainable (heterosexual marriage for the homosexual), in order to achieve a satisfactorily good result. Perhaps not many married gay couples will attain this moral satisficing ideal (many straight couples do not attain it, either), but at least they will have the opportunity to attain it. Until now, they have been denied even this moral possibility in their lives.

In short, we can reasonably say that gay marriage will bring identifiable benefits to hundreds of thousands of identifiable families and millions of individuals in this country. We have reason to wonder just how large these benefits will be. That's a question I'll try to address tomorrow after presenting the communitarian benefits. But I cannot see a reasonable argument under which there would be absolutely no benefits at all.

I certainly don't want to make gay marriage sound like a government benefits program for a downtrodden people, like it was the forgotten element of the New Deal or the Great Society. Gain to gay couples and individuals is a necessary but not sufficient part of the case I'm making. The public interest in gay marriage must also be identified. But to the traditionalist, who cares about the stability of society and families, the presence of any such benefit must at least be counted for something in the scales. What's more, the children being raised by these families should benefit as well. That's for tomorrow.

[Dale Carpenter (guest-blogging), October 31, 2005 at 11:03pm] Trackbacks
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 one benefit to gay marriage that I hadn't thought about directly: when couples get married it improves the lives of the people who love them by reassuring them that their loved one is being cared for, and are less likely to live, as Anna put it, "lonely and depressed" lives.

My mother, who is 61, recently married a man who is 77 and with whom she'd lived for 18 years. Their sex will not make babies, yet everyone in both families was thick with happiness for them. Why did she marry? Did it change anything in a relationship that was already a marriage in just about every way except the name and the license? When I asked her this, she responded, "Now we're more one." I don't fully understand the magic of that moment, but I didn't have to understand it in order to know that I was more at peace about her future.

[Dale Carpenter (guest-blogging), November 1, 2005 at 10:35am] Trackbacks
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 not yet prove that gay couples are just as good as heterosexual couples at raising children (the "optimality argument"), they point strongly to the conclusion that gays are at least fit parents.

William Meezan and Jonathan Rauch, who support same-sex marriage, recently reviewed most of the literature on same-sex parenting, including more than 50 studies, many literature reviews, and dissertations and conference papers dating back to the 1970s. William Meezan and Jonathan Rauch, "Gay Marriage, Same-Sex Parenting, and America's Children," 15 The Future of Children 97, 100 (2005) (available at http://www.futureofchildren.org/information2826/information_show.htm?doc_id=290831). There are methodological problems with many of the gay-parenting studies, as Meezan and Rauch acknowledge. These problems have to do with things like small sample sizes, non-representative samples, and the like. But Meezan and Rauch looked, in particular, at four recent studies with sound methodologies, including large and representative samples, and one which looked at long-term effects. The recent studies reached the same conclusions as the previous studies on the issue.

Three conclusions from their review of the data and studies are most relevant to this debate: (1) lesbian and gay parents are very similar to heterosexual parents; (2) children of gay parents are no more likely to be confused about their gender identity or to be homosexual; and (3) children of gay parents "show no differences in cognitive abilities, behavior, general emotional development, or such specific areas of emotional development as self-esteem, depression, or anxiety." Meezan and Rauch, at 103. In fact, as Meezan and Rauch note, in some ways children raised by gay parents do better than the children raised by heterosexual couples. This is probably partly a consequence of the fact that for many gay couples having and raising children is a careful and deliberate choice for which they have prepared themselves financially and otherwise over a long time period; "oops" babies are not a phenomenon common to gay life.

While more work must be done to shore up these conclusions, a strong provisional judgment can be made that gay people are at least competent -- not unfit -- to raise children.

But don't take my word for it or the word of these researchers: It is the policy judgment of all 50 states that gays are competent to raise children. In no state are gays categorically prohibited from raising kids. In 49 states gays may adopt children. (In only one state, Florida, are gays prohibited by statute from adopting children and even there gays are allowed to serve as long-term foster parents.) In many jurisdictions, the unmarried partner of a child's parent may become the legal "second-parent" of the child. In child-custody disputes between divorcing biological parents, one parent's homosexuality is never a categorical bar to custody and is increasingly not even viewed as relevant per se to the custody decision. Gays may also use reproductive technology to procreate kids and may enter surrogacy arrangements, just as straight couples may.

The national public-policy verdict is in and it is decisively in favor of gay parenting. The argument that gays are not competent to raise children has no factual basis, no support in the research, and no support in public policy anywhere in the country.

Then there's the optimality argument. We don't know how married same-sex couples would compare to married opposite-sex couples in raising children because we haven't had gay marriage anywhere until very recently. Comparisons between straight married couples and unmarried gay couples to prove the optimality argument are off the mark, and premature. Many people have a powerful intuition that, all else being equal, an opposite-sex couple would be better at child-raising than a same-sex couple. It's a reasonable proposition, and it may be correct, but there's no direct evidence for it. The studies on the effects of fatherlessness are not evidence for the optimality argument, since these studies largely compare married couples to single parents and reach the rather obvious conclusion that two married parents do better on average than one single mother. And of course none of this fatherlessness literature compares gay couples to straight couples. Maybe opposite-sex couples are generally better than same-sex couples at raising kids, maybe they aren't. We don't know. But as I will now argue, it doesn't really matter to the debate on gay marriage.

2. Children and the gay-marriage debate

Even if we conceded what most people assume -- that opposite-sex married households are the best environment for raising children, and in particular would be better than married same-sex households — that's no argument against gay marriage. Gay marriage won't take children away from mothers and fathers who want to raise their children together.

No responsible opponent of gay marriage advocates removing all children from the care of gay parents. I suppose that could be proposed and we could debate it, but such an unimaginably cruel and destabilizing policy is not even on the table. So whether or not gay marriage is allowed, children will continue to be raised by gay parents in very large absolute numbers.

The only real question is, will these 1-2 million children be raised in homes that are eligible for the protections and benefits of marriage or will they not be? If it's better for children to be raised by married opposite-sex couples than by unmarried opposite-sex couples (as the evidence shows it is), it would surely be better for children to be raised by married same-sex couples than by unmarried same-sex couples. The marriage of their parents will have some effect and it won't be to make them worse off. For purposes of the gay-marriage debate, that's the relevant comparison, not the comparison between existing married opposite-sex couples and hypothetical married same-sex couples.

I suppose the optimality argument would be relevant if gay marriage would encourage gays to procreate children, through reproductive technologies and surrogacy, that they would not procreate in the absence of marriage. Given the expense and uncertainty involved, the numbers of people who use these methods are so small that any such effect would be trivial. Any disadvantage from the optimality perspective would, in any event, likely be overwhelmed by the advantages given (1) to the much larger number of children already living in gay families and (2) to the children such families will continue to raise in the future through the more common routes I've listed.

Gay marriage might also increase the number of children gay families adopt. But given that there's no shortage of children who need adoptive parents, and given that child-welfare experts agree that adoption is far preferable to foster care, any increase in adoptions should be seen as a benefit -- not a harm -- of gay marriage.

Further, while everyone assumes that gay marriage will mean more gay parenting, the opposite might well occur. Many gay parents are raising children from heterosexual marriages they entered in the hope of escaping their own shame or the consequences of anti-gay stigma. To the extent gay marriage reduces that shame and stigma over time, we should expect to see fewer gays entering such marriages and producing children through them, children that will have to undergo the pain and dislocation of divorce. Stacey and Biblarz, at 165.

Traditionalists are rightly concerned about the stability of home life for children. Gay marriage, in many conceivable ways, should lead to greater stability in hundreds of thousands of homes raising children in this country. The result should be that, to some extent, these children will do better in school, be less likely to commit crime, be less likely to use and abuse drugs, and so on, than they would be if we continue to keep their parents from marrying. If it's really a concern for children that's motivating opponents of gay marriage, they should be pounding the table for gay marriage as a way to protect millions of children.

[Dale Carpenter (guest-blogging), November 1, 2005 at 2:36pm] Trackbacks
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. I will call these the communitarian benefits of gay marriage, and list them in order of their persuasiveness and likelihood.

1. Communitarian benefits flowing from individualistic benefits.

I have already laid out the ways in which uniting gay families in marriage will produce some measure of individualistic benefits to individuals, couples, and children. Individuals in gay marriages should be healthier, wealthier, and happier, on average, than if they were single or simply cohabiting. They may also lead more traditionally moral lives. Their children should do better in school, commit fewer crimes, and be less likely to use and abuse drugs, among many other advantages, than if their gay parents live alone or cohabit.

The whole community benefits to the extent that each of these individualistic benefits obtain. The community is better off when the individuals that comprise it are better off. More couples united in marriage should mean more stability, less promiscuity, more people connected by a web of familial relationships, more parents invested in the health of schools, and so on. More children raised in marriage should mean less crime. Healthier, wealthier, and happier people are better citizens, more involved generally in maintaining the life of the community, less atomistic. Less "bowling alone."

2. Communitarian benefits from limited government.

Since married people are better off than single people or unmarried couples, married people make relatively fewer demands on state welfare services, on emergency services, and on the health-care system. Once they're allowed to marry, gay couples can be expected to make correspondingly fewer demands on the state for all the kinds of support they need when there's no personal caretaker there for them. This serves the goal of limited government, which is something conservatives support.

You could, of course, see marriage in general as involving massive government involvement in citizens' lives. I doubt this is the whole story, since in the absence of marriage I'd predict we'd need a huge government to deal with all the resulting social ills. As long as we're going to have marriage, there's an expected service-reduction effect from the recognition of any particular marriage.

3. Communitarian benefits to the institution of marriage.

Obviously, there are problems with marriage today: an almost 50% divorce rate, 1/3 of children born out-of-wedlock, too many children raised by single parents and unmarried cohabitants, too much domestic abuse, and so on. (Notice that these problems with marriage were not caused by gays.)

There is a movement in the country toward strengthening marriage and there are signs it is having limited success. That is healthy. The question is, will gay marriage have no effect on this movement, a negative effect on this movement, or a positive effect on it? A full answer to this question depends on consideration of the argument that gay marriage might somehow undermine heterosexual marriage, which I'll start addressing tomorrow.

But for now, let me note one way in which gay marriage could slightly strengthen the norm of marriage in our society. (I say "slightly" because any harm or benefit from gay marriage to marriage as an institution would have to come from what will be a small proportion of marriages.)

We are in the midst of a project to revive the idea that marriage is the gold standard for relationships and for having and raising children. Consider that it may be somewhat harder to convince people that marriage is the gold standard for relationships, that marriage and raising children really go together, if a subclass of the population is carrying on life entirely without marriage, including procreating and raising millions of children outside marriage, and appearing to be quite successful at it. At the very least, the children of marriage-less gay parents are more likely to see marriage not as some "gold standard" but as one option among many, an equal among equals.

Gay marriage, both by example generally and by instruction to children being raised in gay homes, could help reinforce the idea that marriage is the normative status for people who are willing to make the legal and social commitment it entails. To the extent that heterosexual couples look to homosexual role models at all, which I seriously doubt, allowing their homosexual role models to marry -- rather than simply to cohabit, as they do now because they cannot marry -- might strengthen the norm of marriage. A married homosexual couple is a rebuke to the idea that simply cohabiting is the optimal way to structure a relationship and to raise children. Far from destroying marriage, gay marriage could be a small part of the project of saving it.

So instead of conceiving gay marriage as a threat to marriage we ought to see it as part of this movement to revive, protect, and strengthen marriage. But as I say, this conclusion depends on an argument I'll make soon: that there's no good reason to believe that gay marriage will undermine marriage for heterosexual couples.

4. Communitarian benefits to gay culture, especially gay-male culture.

We have all seen the destructive effects that come when a sub-class of people live without marriage. Traditionalist theory rightly predicts that such a sub-class will experience high levels of single-parent families, children born out-of-wedlock, promiscuity (and all the ills, including STD's, that come with it), high rate of substance abuse, crime, and a host of other social pathologies.

In much gay male culture, as that culture is manifested in bars, publications, and on the Internet, there is much that this conservative social theory would predict about a marriage-less culture: relatively less respect for relationships, monogamy, and long-term commitment, than is given to these values inside marriage-opportunity culture. This is a point Andrew Sullivan made quite persuasively in his pathbreaking book, Virtually Normal: An Argument About Homosexuality. I agree that some, perhaps much, of this is the artifact of male sexuality and not of the denial of marriage itself. But at least some of it is plausibly the product of the fact that our law gives gay men absolutely no incentive to settle down with one other person. Lesbians may not need this incentive nearly as much (though marriage is even more important to them in other ways, since they're more likely to raise children), but gay men surely do.

American law embodies a huge asymmetry. It says to gay people, "You may have as much sex as you like." (And it said this, in practice, long before the Supreme Court struck down the few remaining unenforced sodomy laws in 2003.) In the very same breath, it says to gay people, "There will be nothing available to you to encourage you to channel all this sex into productive and healthy long-term and monogamous relationships." I cannot think of another significant sub-class of the population to whom that asymmetrical message is sent.

While the absence of the proper incentives does not itself make men sexual, it surely doesn't help matters. Marriage should produce more gay couples, more gay couples who will be visibly, and in fact, somewhat more monogamous, and who will be more likely to commit to one another for the long-term. It will generate role models that gay youth, in particular, have simply not had up to now. The effects of this will probably take many years, maybe generations, to be fully felt. But felt they will be.

Perceptive sexual liberationists and some feminists see this clearly and have feared precisely this consequence of gay marriage. Michael Warner argued in his appropriately titled book, The Trouble With Normal, that gay marriage would valorize and privilege some sexual behaviors and relationships (long-term, faithful, two-person) over others (one-night stands, open relationships, and polyamorous ones). This, he suggested, would be another form of discrimination, potentially changing the whole tenor of gay life.

Precisely so. What sexual liberationists fear traditionalists should cheer. To just the extent that gay marriage has this traditionalizing effect on gay culture and the individuals who comprise it, all of us should be better off. Traditionalists, in particular, should welcome any movement in that direction.

I must admit, however, that this fourth communitarian benefit is the most speculative of the group since the factors that go into producing a "culture" are very complex. I expect marriage to help the cause of those in the gay community who want to see the values associated with marriage elevated, but I cannot say how much, or whether marriage can blunt the effect of the forces pulling the other way.

One more post later today dealing with the expected magnitude of the individualistic and communitarian benefits I have outlined. Tomorrow and Thursday, I'll start to respond to the arguments about how gay marriage might produce harms that must also be considered.

[Dale Carpenter (guest-blogging), November 1, 2005 at 7:09pm] Trackbacks
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 expectation of marriage, to orient their lives and relationships toward the possibility of the deeper commitment marriage involves. While the most traditionally minded gay couples will likely be disproportionately represented among the new marriages, even some of these couples will need time to adjust. This will, I think reduce to a small degree some of the caretaking benefits that we could otherwise expect. But I suspect this will be a very small difference, and will quickly fade.

(2) There will initially be some social resistance to the idea that gay marriages are real marriages, so the social reinforcement of them will be on average weaker than it would be for a straight couple. This will reduce to some extent, at least initially, the expected social benefit a straight couple could expect. As time passes and the people around these couples, including their extended families, become accustomed to gay marriage, this social benefit will increase. I also think this will tend to happen rapidly for the immediate family and friends of gay couples, who are unusually likely to be thrilled that their loved one is getting hitched. Resistance to gay marriage will last longest and remain deepest among people who don't know any openly gay people, or who at least don't know any gay people who want to marry. But the resistance of these strangers to gay marriage matters least for the social benefit that couples get from marriage. What matters most is that their close families and friends fully support their marriages.

Both of these limitations on the expected benefits are transitory and small, so lesbian couples at least should get something approaching the full benefit of marriage almost right away. Since they will be half or more of all gay marriages, and since they are more likely to be raising children, the individualistic benefits to their families should be quite large.

Finally, here is third possible limiting factor on the magnitude of the benefit that will apply only to gay-male couples:

(3) There is a traditionalist objection to gay marriage that runs something like this: "Gay men are promiscuous, more than straight men, straight women, or lesbians. That makes them unlikely to benefit much from marriage. It is not marriage that settles men down, giving them the health and other benefits of marriage. It is women who do this. Women will be absent from gay male marriages, and thus much of the benefit of marriage will be absent from their marriages." If this is right, it may seriously limit both the caretaking and social benefits gay male couples get from marriage. Let's call this the promiscuity objection to gay marriage (the promiscuity objection is also offered to show how gay marriage might loosen marital norms of fidelity for everybody, about which I'll say more in the coming days).

Several observations should be made about the promiscuity objection that make it a very weak factor in the magnitude of the benefits to be expected from gay marriage.

First, it does not question the benefits that should be obtained by married lesbian couples, who will probably be among the most monogamous of all married couples on average, and who may well end up being at least half of all gay married couples. So 50% of the magnitude issue is already off the table. It is not really an objection to gay marriage at all; it is an objection only to guy marriage.

Second, even as applied to gay male couples, it goes only to the magnitude of the benefits; it does not negate the possibility of any benefit at all. Thus, even if the promiscuity objection is largely correct in its empirical claims about men, gay male couples should still enjoy the legal, caretaking, and social benefits to some extent.

Third, there is no good evidence for the junk-science idea that gay men are freakishly promiscuous, even in the absence of marriage. They are somewhat more promiscuous, yes, but not hyper-promiscuous. My take on this complex issue, drawing largely on Eugene's analysis two years ago on this blog, can be found here .

Fourth, surely socialization within a gay culture that has never had marriage, combined with the stigma and even criminality long associated with attachments to members of the same sex, has had some effect on rates of promiscuity and overall stability in relationships. The promiscuity objection takes a possible effect of the lack of marriage as a "natural" condition of men or gay men, and then uses that effect as an argument for justifying the very result (no marriage) that helped to produce it. This is circular. Marriage, because of the social and individual expectations that accompany it, should have the effect of somewhat reducing levels of promiscuity among gay male couples, even if it does not eliminate the differences between them and male-female or lesbian couples.

Fifth, the most traditionally minded and monogamously committed gay male couples are the ones most likely to marry. As male sexual liberationists never tire of pointing out, marriage is not for them. Thus, whatever moderate difference in rates of promiscuity there are between gay men and others, these differences are likely to be smaller in the pool of gay-male couples who get married.

Sixth, conservative social theory would predict that marriage itself, and not just the presence of women in the relationship, should have some domestication effect on men. It would predict, I think, that men simply cohabiting with women will have higher rates of promiscuity than men who marry their female partners. This effect is obviously not produced solely by women demanding and policing monogamy, since women are present in both the unmarried opposite-sex cohabitation and the marriage. It must be that marriage itself adds something to the pressure to settle down. The reasons for this are complex, but they surely have to do both with the seriousness with which people take themselves and their relationships when they are married and with the seriousness with which others treat their marital bond.

All of this points toward the conclusion that the promiscuity concern is a lot of sound and fury, signifying something, but very little.

Both gay male and lesbian couples will get the full legal benefits of marriage, and a large and growing portion of the caretaking and social benefits that we expect when people marry. Much of this same analysis will apply to their children, who will get the full legal benefits of marriage and will enjoy a large and growing amount of the benefit that can be expected from the increased stability of their families.

Similarly, bracketing until tomorrow the possibility of some negative effects, gay marriage will have one of three effects on the communities in which these gay families live: the communities will be helped, harmed, or not at all affected. Here any positive effect on the community will likely be very small since there will be so few gay couples. Since, as I'll argue, we should not reasonably expect any harmful effect from gay marriage, that leaves us with some positive effect on the communities in which these gay families will live.

[Dale Carpenter (guest-blogging), November 1, 2005 at 9:44pm] Trackbacks
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 on marriage entirely, for libertarian or practical reasons, and leave the marriage business to churches. I think this would be a bad idea for lots of reasons, but it's beyond the scope of the argument about gay marriage. I am arguing for gay marriage within the existing framework, a framework that is likely not going away.

Fourth, please have patience with me on polygamy and questions like, why experiment now with an institution that's already in trouble? etc. I promise I won't let the week go by without dealing with these very important considerations.

Fifth, in response to "Humble Law Student" and "Law Student Kate": Great ideas. I'd seriously consider reforms to strengthen marriage, like divorce reform, counseling periods, etc. Even civil adultery penalties, enforced at dissolution. Perhaps covenant marriages, for people who really want that old-time commitment. It's not in the interest of gay families to go to all this trouble only to enter a weakened and dying institution. I think these other reform questions can and should be addressed independently of gay marriage because I think gay marriage is a proposal to strengthen marriage, although almost nobody except Jon Rauch has yet thought of it that way. This very debate, through which the traditionalist case for gay marriage is reaffirming what's best and most important about marriage, is in its own way a contribution to revitalizing marriage. Gay marriage is a good idea, but it also matters how and why we get there.

By the way, Rauch's book, "Gay Marriage: Why It is Good for Gays, Good for Straights, and Good for America," is the best single book making the case for gay marriage.

Finally, I want to thank the commentator who noted that, in linking two otherwise distinct families, marriage also provides spouses with a network of supporters (or caregivers) who now take a special interest in their in-law that they tend not take before the marriage. And, of course, the children in the marriage get two sets of families to care about their future. Double the birthday presents!

[Dale Carpenter (guest-blogging), November 2, 2005 at 7:56am] Trackbacks
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, 83 (2004). You can just as easily substitute young adults seeking retirement benefits from Social Security, or renters seeking a home-buyer's mortgage-interest deduction from their taxes, or what have you. The variations are as numerous as the government-benefits programs that inspire them. This variation of the definitional argument, too, is another way of arguing that marriage is definitionally male-female. It is saying, without further argument, that same-sex couples simply cannot qualify for marriage just as non-veterans cannot qualify for veterans' benefits.

There are other variations on this same definitional point (e.g., there's one that objects to gay marriage on the grounds that two people of the same sex cannot "consummate" their relationship in the way that two people of the opposite sex can), but I hope this is enough to set the table for a response.

What's distinctive about the definitional argument is that it makes no attempt to defend the male-female definition of marriage as a normative matter. The definition itself is asserted unadorned as an argument against gay marriage. As soon as a normative defense of the male-female definition is attached to the argument (for example, "the male-female definition of marriage is right because children need mothers and fathers"), the argument is no longer the pure definitional argument as I use that term here.

The obvious problem with the definitional argument is that it suffers a very serious logical flaw. It is circular and conclusory. In the gay-marriage debate, it's the definition of marriage that's being challenged. Gay-marriage advocates are saying, in effect, "The definition of marriage as the union of one man and one woman is an unjustifiable limitation. The definition of marriage should be expanded to include couples of the same sex. And we have good reasons for this expansion of the definition of marriage. Let's talk about them."

Given this challenge to the definition of marriage, the definition alone cannot be offered in its own defense. It must be accompanied by reasons that show why the male-female definition is the right or best one. Unless the definition is defended with reasons that go beyond simply asserting the definition itself, the defense suffers a fatal circularity. It asserts the conclusion (the proper definition of marriage) as the argument. It's the equivalent of saying, "I'm right because I say so." That may work in the parent-child relationship, but it cannot suffice in public-policy debate.

Let's apply this lesson to the species-confusion analogies so popular among gay-marriage opponents. Consider the dog-cat analogy introduced above. Gay-marriage opponents argue that gay marriage is like calling a "cat" a "dog," and that simply can't be, no matter how hard we try.

But this misses the point of the case for gay marriage, which is to argue that gay couples (for multiple reasons) sufficiently meet the purposes of marriage (properly understood) such that they should be permitted to marry. To use the analogy, gay-marriage advocates argue that gay marriage is indeed a dog that we have unfairly been calling a "cat," refusing to recognize it as a species of dog. On this view, gay-marriage advocates are not trying to get the world to accept cats as dogs, but to accept dogs as dogs. It's those who refuse to call this dog a dog who are in error.

A similar response applies to the various government-benefits analogies offered against gay marriage. Consider the analogy to veterans benefits, where gay-marriage opponents claim that gay couples are like non-veterans trying to get veterans benefits. Gay-marriage advocates are arguing that (for multiple reasons) gay couples are "veterans," and that denying them veterans benefits is therefore wrong.

Maybe gay-marriage advocates are wrong on the substance: perhaps gay couples can't meet the purposes of marriage (properly understood). But that conclusion has to be debated, with reasons offered for why gay couples can or can't meet the properly understood purposes for marriage. The conclusion cannot simply be asserted once the existing definition is challenged.

In debates, one often hears the complaint from gay-marriage opponents that gays are "trying to change the definition of marriage." Exactly so, but this is hardly a decisive objection, just as it would not be a decisive objection to any proposed change in existing practices or laws.

None of this is to argue that there should be no definition of marriage. There should be a definition of marriage. But given the powerful affirmative case for gay marriage, it must be debated. Perhaps the man-woman definition is the best one, but to reach that conclusion we need substantive arguments supporting the definition, not simply the definition itself.

Given how logically weak the bare definitional argument is, why does it persist?

The answer, I think, is that behind it is a powerful, unstated intuition that important social institutions ought to have stable attributes (meanings) over time. This is a deeply conservative instinct and I share it to a very large degree. I will address this Burkean argument, which I ultimately think is the best argument against gay marriage, later in the week.

[Dale Carpenter (guest-blogging), November 2, 2005 at 4:43pm] Trackbacks
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, and even the half that's correct is often wildly exaggerated. They're only half correct because they leave out married lesbian couples, who will probably be half of all gay marriages and may be even more monogamous than married straight couples. If it's fair to use the presumed non-monogamy of gay men in the argument as if it's some kind of contagion, it should also be fair to use the super-monogamy of lesbians as an inoculation against this presumed contagion. If gay men will set a bad example, lesbians will set a good example. Why are lesbians almost never discussed by opponents of gay marriage? Why do they not count?

Even as just a claim about gay men, Premises 1 and 2 are usually overstated. I have already argued, in my post on the magnitude of the benefit last night, that claims about hyper-promiscuity among gay men are empirically unsupported. They are based on untutored prejudgments about gay men, anecdotes, and junk science. There are differences but they are not large.

Further, as I also noted in last night's post, even to the extent that there are differences, those differences can be attributed somewhat to the fact gay men have been denied the social encouragement of monogamy through marriage. Marriage itself should help reduce any moderate differences that already exist, even in gay-male marriages where there is no woman to encourage it, weakening Premise 2. Also weakening Premise 2 is the fact that traditionally minded and monogamously committed gay male couples will be the ones most likely to marry, reducing the moderate differences between gay men and others at the outset.

2. Problems with Premise 3

We come to Premise 3 (gay male marriages will loosen the ethic of monogamy in heterosexual marriages), then, with an already weak set of predicates. For Premise 3 to be correct, straight married couples will have to overlook the example set by super-monogamous married lesbian couples in order to follow the moderately more -- and declining -- non-monogamous example of a few married gay male couples who might be openly non-monogamous. By itself, this makes Premise 3 very dubious.

But there are yet three more reasons to doubt Premise 3.

First, there is no reason to believe that heterosexuals look to homosexuals as role models for their own sexual behavior. Indeed, many heterosexuals seem to define their lives almost in opposition to what they see as the gay "lifestyle."

Second, women will always be present in straight marriages and women will for the most part continue to demand fidelity. Jill is not going to agree to let Jack live it up because she heard somewhere that Adam and Steve down the block are swinging from the chandeliers.

Third, as some commentators on this blog have repeatedly noted, we are talking about a very small group of people. (Gay marriage is very important to gay couples, but not terribly important to most others.) If married gay male couples were going to be, say, 50% of all marriages, we might expect their behavior to have some effect on the way the rest of married couples view the importance of monogamy in marriage. But that will certainly not be the case. It's not reasonable to think they will loosen the ethic of monogamy for everybody else, even assuming they are uncontrollably and openly promiscuous and that access to marriage will not change that.

To see why the truly troublesome gay male marriages will be such a small number, let's do some math.

As I noted on Monday, homosexuals are probably no more than 3% of the population. (Many conservative critics of gay equality argue that the number is even lower than that, perhaps 1%.) Gay couples will likely get married at a lower rate than the general population, at least at first, so gay married couples will likely represent less than 3% of all marriages. Male married couples will be even rarer at first. The experience of Vermont civil unions shows that twice as many lesbian couples as gay male couples get hitched. Half of gay marriages would be lesbian -- and they will be super-monogamous.

The potentially problematic gay couples -- the gay men -- will therefore represent perhaps 1.5% of all marriages (using assumptions most generous to the contagious-promiscuity argument). Some of them will manage to be faithful all or most of the time, so the truly troublesome unfaithful gay male couples will probably represent less than 1% of all marriages. Of these non-monogamous gay-male marriages, some portion of them will be very discreet about it, not wishing to incur the disapproval of their families and friends. Thus, the notoriously, openly, innoculation-resistant gay male couples setting a bad example for everybody else will likely represent somewhere around one-half of 1% of all marriages in the country. That's 0.5%. And I think that's probably high.

These paltry numbers will undermine the institution of marriage? Undermine it more than the large percentage of married people who already acknowledge in surveys that they have been unfaithful? Undermine it more than married straight couples who go to swingers' conventions and troll websites devoted to non-monogamous sexual liaisons among married people? Undermine it more than the super-monogamous married lesbians will help it?

Which is more likely: That the 0.5% of openly non-monogamous married gay male couples will exert an irresistible gravitational pull on the morals of the 99.5% of all the other married couples? Or that the 99.5% will exert tremendous social pressure on the recalcitrant 0.5% to change their ways?

I'll get to some better arguments against gay marriage soon. Next up, the polygamy slippery slope argument.

[Dale Carpenter (guest-blogging), November 2, 2005 at 7:53pm] Trackbacks
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 a few leftish supporters of polyamorous marriages, especially among academics. But academics have many esoteric causes.

If neither the right nor the left will line up behind you, your prospects of success are very dim. So no matter what we do about gay marriage, polygamy will not arrive, especially in the West, where liberal individualism, sex equality, and the loss of polygamy's own religious adherents, all combine to make it a very rare and dying practice.

2. The logical slide to polygamy.

That leaves the supposed logical slide to polygamy, which is almost always the slide envisioned by gay-marriage opponents.

What is the necessary logic behind gay marriage that will leave us no principled choice but to accept polygamy? To be sure, one could make (and some have made) arguments for gay marriage that seem very open-ended.

One possible principle uniting gay marriage and polygamous marriage is that gay marriage, like polygamous marriage, extends marriage beyond partners who may procreate as partners. If there is no necessary link between marriage and procreation then maybe we will have to recognize all arrangements, like polygamous marriages, which cannot form a child from all of the partners.

The notion that gay marriage fundamentally severs the link between procreation and marriage, and thus leads to polygamy, founders on the same logical and experiential shoals as does the procreation argument (which I'll discuss tomorrow). Briefly, procreation is already not a requirement of marriage. Sterile opposite-sex couples have already taken that step down the slope for us, yet we are no closer to polygamy.

A second possible uniting principle is that gay marriage necessarily makes marriage a private affair, catering to the wants and needs of private adult citizens, not an institution with a profound public purpose, like ensuring the raising of the next generation. If marriage is a private matter, the argument goes, then the state has no business regulating entry to it, so polygamous groups cannot be denied marriage.

This supposed uniting principle misconceives the argument for gay marriage, which, as I have outlined it, is not necessarily based solely on augmenting the private happiness of two adults. Further, using marriage to recognize adult love is a step down the slope already taken by straight couples. Like it or not, many people in the West already understand marriage as companionate; they don't need gay marriage to reach that conclusion. So even if gay marriage were justified solely by the love same-sex partners have for one another, recognizing such relationships would be more analogous to taking a step to one side on a slope already partially descended, not an additional step down the slope.

I think this should be enough to reject the idea of a logical slide. There's just no good reason to think that recognizing a new form of monogamous marriage logically entails recognizing polygamous marriage.

But for those still uncertain, let me take the argument one step further. Gay marriage and polygamy are not only not united by any single common principle necessary to the argument for gay marriage, but for the traditionalist, the affirmative arguments for them are quite distinct.

Here's why. Any proposal for the expansion of marriage must be good for both individualistic reasons and communitarian reasons. Gay marriage meets both criteria, as I have shown. While I don't want to offer any definitive conclusions about polygamy here, I think the case for polygamous marriage is distinguishable (and weaker) on both counts, especially the second.

On the first issue - - the individualistic benefits - - there are good reasons to doubt whether polygamous marriage would produce the same degree of caretaking and social benefits gay marriage would produce.

While multi-partner marriages might benefit the partners involved, the much greater potential for jealousy and rivalry among the partners make for a potentially more volatile arrangement than a two-person marriage, reducing the expected caretaking benefits to its participants. In a multi-partner marriage, it may also be unclear who has primary caretaking responsibility if a partner becomes sick or injured; there is no such uncertainty in a two-person marriage. While we have good evidence that children do well when raised by two parents, including same-sex couples, we have no evidence they do well when raised in communal living arrangements.

The expected social benefit from polygamy (e.g., the reinforcement of the marriage by others) should also be smaller if, as I argued above, public resistance to polygamy will be large and unyielding.

On the second issue — the communitarian benefits — the differences between gay marriage and polygamous marriage are potentially more pronounced. There are communitarian benefits to gay marriage; there may well be serious communitarian harms to polygamy.

Since multi-partner marriages have almost always taken the form of one man having many wives, recognizing them presents special risks of exploitation and subordination of women, which is inconsistent with our society's commitment to sex equality. There is no comparable concern raised by gay marriage.

In human history, polygamy has correlated strongly with societies that were illiberal and undemocratic. Gay marriage is arising in the most liberal societies, characterized by representative democracy, widespread franchise, and universal education.

Is this correlation relevant? Why does it exist? Several explanations are possible, but two are most important here. First, modern liberal societies have emphasized values like individualism and sex equality that seem inconsistent with polygamy as it has been practiced. Gay marriage, by contrast, is fully consistent with these values.

Second, polygamy takes many more women than men out of the marriage pool. This leaves heterosexual men with fewer marriage opportunities. Unattached men with poor marital prospects destabilize societies, and large numbers of such men in a society require strong mechanisms of state control to rein them in. Gay marriage helps ensure marriageable partners for everyone; polygamy does the opposite, with potentially anti-liberal, undemocratic, and socially destabilizing consequences. (The communitarian harm from polygamy might be small because few people will be polygamous, but a small harm is still a harm.)

Whatever the strength of a Burkean case against gay marriage (and I'll get to that Friday), the Burkean case against polygamy is much stronger. Polygamy, unlike gay marriage, has been tried and rejected. Many human societies have practiced it at one time or another and almost all have abandoned it; gay marriage, by contrast, has never been tried and rejected.

Perhaps none of these considerations is decisive against the recognition of polygamous marriages, nor do they need to be in order to make the point. This discussion shows that gay marriage and polygamous marriage present very different issues of history, data, logic, and experience. And nothing in this complex discussion of history, data, logic, or experience turns on whether gay marriages have previously been recognized. Gay marriage and polygamous marriage should each be evaluated on its own merits, not treated as if one is a necessary extension of the other.

Finally, it should be said that slippery-slope arguments about marriage have a certain Chicken Little quality about them. The ominous slide to polygamy has been a favorite trope. For example, the same polygamy red flags were raised about interracial marriage. In the Nineteenth Century, the Tennessee Supreme Court warned that the recognition of such marriages would lead to "the father living with his daughter . . . in wedlock" and "the Turk . . . establish[ing] his harem at the doors of the capitol." State v. Bell, 66 Tenn. 9 (Tenn. 1872).

This is not to say that warnings about slippery slopes, even about slippery slopes in marriage reform, have never proven true. But it is to say that nothing in the traditionalist case for gay marriage brings us any closer to the harem than we were when the Tennessee Supreme Court warned us about it more than a century ago. And if gay marriage is ever accepted in America, I believe it will be on the basis of something like the traditionalist grounds I have offered. That is, it will be accepted when Americans have become convinced that gay marriage is a good idea for traditionalizing individualistic and communitarian reasons.

Tomorrow, I'll deal with the procreation argument in two parts: one post on the standard version and one post on Maggie's more subtle version.

[Dale Carpenter (guest-blogging), November 2, 2005 at 10:39pm] Trackbacks
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 emphasize again that I am not making a case against polygamy. I could be wrong about all, some, or none of the claims I made about polygamous marriage. It doesn't much matter. My only real point is to note that the questions raised by polygamy are distinct from the questions raised by gay marriage. They are independent issues. Gay marriage will not take us any further down the slope toward polygamy. And no argument I've yet heard tells me clearly why it would.

Third, some commentators have suggested that I've been attacking "strawman" arguments (definitions, contagious promiscuity, slippery slopes). Others believe these arguments are devastating against gay marriage, central to the matter. All I can say is that if these are strawman arguments, they are cluttering up just about every field. They are ubiquitous in the arguments against gay marriage.

Why do these posts always end up being longer than I plan them to be?

[Dale Carpenter (guest-blogging), November 3, 2005 at 8:13am] Trackbacks
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 sterility objection -- that laws are made for the general rule — is an evasion. Laws do often state general rules, and they are often over- or under-inclusive in some way. But laws also provide exceptions where appropriate and just, where some policy purpose is served by the exception. Gay marriage, like non-procreative straight marriage, might be a good policy exception to the procreationists' rule that marriage exists for procreation. Whether gay marriage is a good exception to the asserted general rule that marriage is about procreation depends upon arguments extrinsic to the procreation argument, e.g., whether encouraging stable gay coupling through marriage would benefit gay families and society. (Remember, I'm not making a constitutional argument about whether the government should, as a constitutional matter, be able to make marriage laws that are not narrowly tailored to the state's claimed interests.)

The second response to the sterility objection -- that a procreation requirement would be unduly intrusive -- is equally unavailing. If we were serious about the procreationist project -- that is, if we were serious that procreation is the only public interest in marriage -- we could require prospective married couples to sign an affidavit stating that they are able to procreate and intend to procreate. (We could entirely bar from marriage elderly couples beyond a certain age.) If, say, in ten years they had not procreated we could presume they are either unable or unwilling to do so and could dissolve their union as incapable of satisfying the only public purpose of marriage. That system would not require invasive fertility examinations.

Yet we would never require opposite-sex couples to fill out such a fertility form. I think most people would scoff at the idea, and rightly so. They would even think it's cruel, especially perhaps to elderly couples. But why? They would scoff at the idea because marriage today is not understood to be essentially about procreation, although procreation-within-marriage is important. Marriage is understood today to have other important public functions and purposes -- including providing the individualistic and communitarian benefits I have outlined.

Here the procreation argument suffers an experiential flaw; it is like an argument from another world, not the world we inhabit. In the world we inhabit, procreation is an important but not essential attribute of the public institution of marriage.

This may also expose a potential political flaw in the procreation argument: by repeatedly emphasizing that the only public purpose of marriage is procreation, opponents of gay marriage run the risk of demeaning the many married couples for whom children are either unwanted or impossible. Yet their marriages are celebrated, not simply tolerated and certainly not disdained.

Further, this second response to the sterility objection suggests that the general rule of procreation must bend (1) to the overriding needs and interests of society to help individuals settle down and (2) to the interests of the couples unable or unwilling to live by the procreation purpose. If that exception exists for non-procreative straight couples, why not for non-procreative gay couples? If it would be cruel or pointless to deny them marriage, why not gay couples? If there is an answer to this question, it cannot be found in the procreation argument.

2. Practical consequences to procreation of admitting gay couples to marriage.

Even if the procreation argument seems logically weak, are there practical consequences to human procreation of admitting gay couples to marriage? I can think of two possible fears. One fear is that procreation itself would slow down, perhaps below the "replacement rate," the level at which humans must reproduce in order to stay ahead of deaths. This slowdown would eventually imperil the species. The other fear is that, as the connection between marriage and procreation is loosened, procreation may increasingly occur outside of marriage. Both could happen at once, and both would be bad.

But neither of these consequences is very plausible. Start with the fear of a population implosion. How would allowing gay couples to wed cause a decline in reproduction rates? It's not clear why straight couples would stop procreating, or even procreate less, if gay couples could marry. The factors driving people to reproduce — the needs for love and to love another, the instinct to propagate one's genes, religious obligations — would all still exist if Adam and Steve could marry. If Western civilization is truly facing a population implosion, as some suggest, that is attributable to many complex factors that are already in play (like great wealth and better health in old age), long before gay marriage was even a twinkle in Andrew Sullivan's eye.

Here's one possible mechanism arising from gay marriage that might lead to population decline. Professor Douglas Kmiec, quoting Robert Bork, has argued that gay marriage "'will lead to an increase in the number of homosexuals.'" Kmiec, The Procreative Argument, 32 Hastings L. Q. 653, 661. Perhaps, the procreationist might conjecture, there are some "waverers" -- people who stand somewhere between homosexuality and heterosexuality -- who will be brought toward more homosexual behavior by the stigma-easing effect of permitting gay marriage. More homosexuals means less procreation, the theory goes.

There's been a lot of research on sexual orientation in the past few decades, and I've never seen good evidence for the waverers theory. Sexual orientation, whatever its causes, appears for the vast majority of people to be unchosen and at least strongly resistant to change based on incentives in public policy. The idea that the incidence of homosexuality in a society varies with the degree of legal repression or acceptance shown toward homosexuality has no empirical support. Richard Posner, Sex and Reason, at 163, 296-97. Homosexual preference appears to be no more common in tolerant societies than in repressive societies. Id. at 296.

But even assuming there are waverers, the idea that they would contribute meaningfully to a population implosion is not plausible. Remember, for this theory to be correct, there need not only to be waverers but enough of them brought into homosexuality by the gay marriage to make any real difference in rates of reproduction. There is no evidence to support the idea that they exist in such substantial numbers.

Not only that, these waverers would have to more than offset the gains in reproduction from allowing gay marriage. After gay marriage is allowed, closeted homosexuals will be less likely to enter unhappy and unstable marriages with partners of the opposite sex. This will free up their heterosexual spouses to seek marriageable partners with whom they can procreate and form more lasting relationships. The resulting reduction in the number of such unstable marriages should be good for procreation rates and good for marriage as a whole, not bad. But this, too, will not be a large enough number to affect reproduction rates.

It's also not clear why gay marriage would drive more straight couples to reproduce outside of marriage. The legal and social-reinforcement benefits of marital procreation would still be available to them, after all. The problems of non-marital procreation would still be there to discourage it. (Maggie has a theory about this, which I'll address in the next post.)

But fortunately we do not have to guess at the probability of these cataclysmic consequences. We already have much experience with a world in which there is no requirement to procreate within marriage. No couple has ever been required to procreate in order to marry. No couple has ever even been required to be able to procreate in order to marry. Sterile couples and old couples can marry. Couples physically able to procreate but who do not want to procreate can get married.

These non-procreative categories of childless married couples are already a larger segment of the married population than the small number of gay married couples would be. Everybody knows married couples who can't or won't have children. Yet despite their inherent or explicit rejection of the putative marital duty to procreate, and despite the fact that we nevertheless let these non-procreative straight couples wed with abandon, humans continue to procreate and marriage continues to be the normative situs for procreation.

Nobody blames non-procreative married straight couples for the alleged population implosion; and nobody blames them for illegitimacy rates. Why should non-procreative gay couples, once allowed to wed, get the blame for these phenomena?

So here's where we are: millions of existing married opposite-sex couples are just as non-procreative as any married gay couple would ever be, yet gay couples are to be denied marriage because they are non-procreative.

Does Maggie have an answer for why this different treatment might be justified? I'll address Maggie's argument against gay marriage in the next post later today.

[Dale Carpenter (guest-blogging), November 3, 2005 at 6:47pm] Trackbacks
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, and procreation alone, explains why we have marriage (Maggie's view); (2) Procreation is an important reason why we have marriage, but not the only one (my view); and (3) Procreation is not a reason why we have marriage.

I can't see how the third view could be correct. As Maggie says, sex makes babies, society needs babies, and when those babies are born out of marriage the children themselves and society suffer in all kinds of ways. Marriage, through many of its legal features and the social expectations that attach to it, is the institution that encourages people to have children and to have children within marriage.

But I also can't see how Maggie is correct that procreation-within-marriage is the only public purpose of marriage.

Legally, procreation has never been a requirement of marriage, as Maggie well knows. (Legal consummation requirements are not the same thing.) Two states, Wisconsin and Arizona, even require that first-cousins not be able to procreate before they can marry.

Maggie could respond, I suppose, that the one man-one woman legal definition is in fact the procreative purpose written implicitly into law. But that is a rather indirect way of getting at what is supposedly an exclusively procreative purpose since many one man-one woman couples neither have nor want children. If, legally, procreation were the only purpose of marriage, the requirement could be made explicit. Yet the law allows and supports childless marriages.

Culturally, Maggie's procreation-only view of marriage is even more questionable. Even couples who have children do not view their marriage as being only or even primarily about procreation. Their marriages are about children, yes, but also love, religious faith, commitment, and caretaking. For those couples who can't or won't have children, their marriages are obviously also not justified by procreation.

When confronted with this powerful cultural and familial reality that so sharply contests her vision of marriage, Maggie responds that people "don't view these marriages as mere instruments for making babies. Nor do I." Here Maggie recognizes, as she must, that marriage functions culturally and socially in ways that contrast sharply with her view of its sole public purpose. It's worth asking why we should adopt a view of marriage that reduces its public essence to one single purpose if neither the legal nor the cultural/social understanding of marriage supports the view that it's only about that one purpose.

That leaves my view, and I think the law's and our culture's, that procreation is an important public reason for marriage but not the only reason. We know that it's an important purpose because, legally, many attributes of marriage relate directly to the rights and responsibilities of married couples who have children. Culturally and socially, the expectation of having children is a common reason we celebrate a new marriage. The new couple is going to raise a family, and in that fact they are happy and we are happy.

But both legally and culturally/socially we have public interests in marriage besides procreation. Notice that the legal rights and responsibilities associated with children apply to all legal parents of children, no matter whether they got those children through procreation, adoption, surrogacy, or reproductive technology. These distinctive child-raising-related legal features of marriage can apply, and do apply, even to parents who can't or won't procreate. And they apply with a force that's just as great no matter the provenance of the children.

(So yes, as one commentator notes, child-rearing explains many of the distinctive features of marriage law. But as I have pointed out, many gay couples are raising children, so they will be able to make use of these features. The rest, who are not raising children, will make use of the many other distinctive features of marriage, just as childless straight couples do.)

The law imposes some duties of care and mutual responsibility on spouses, apart from any children they're raising. Culturally, the expectations that spouses will love one another, care for another, be committed to each other, live together, are even greater.

There is a public interest in recognizing marriages that can be expected to produce, on balance, both individualistic and communitarian benefits. Procreation is an important individualistic and communitarian purpose of marriage — but it is not, and need not be, the only purpose.

2. How will gay marriage undermine marriage?

Maggie's answer to this question is a bit harder to pin down. But I think it comes down to these two quotes, each followed by my responses:

"[S]omething big has changed when marriage becomes a union of any two persons. Procreation and family structure are out."

For purposes of procreation, marriage already is the union of any two persons. Non-procreative straight couples already marry. Non-procreative gay couples, in this sense, change nothing in the existing practice of marriage: most married couples can procreate, but a few can't. That practice will remain the same.

Why does gay marriage mean procreation and family structure are out? It would seem to mean the opposite, at least with respect to family structure. Maggie's answer comes in the next quote.

"If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad."

I take this to be a kind of social-meaning argument. Gay marriage, on this view, would change the meaning of marriage for everybody by sending a message that procreation is dispensable and that mom-and-dad-raising-kids is not the best environment for children.

Social meaning arguments of this sort are very hard to dispute, no matter what the issue is. You can just make a frightening assertion about some future instability brought about by mysterious forces and, really, what can anybody say in response? We don't believe you? I have frankly struggled with her point, not because I think it's true but because I'm at once horrified by the result she foresees and very unclear how gay marriage would get us there.

Here's one way to get at the problem with her prediction. Suppose I said this: "If a sterile couple can get married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad."

We'd know I was wrong about this social-meaning prediction because we already live in this world and we can see that it has not come true. So if these existing marriages don't send the harmful message why would gay marriages?

Maggie comes closest to answering this question when she says: "[B]oth older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn't signal anything in particular at all."

What does she mean that sterile straight couples are part of "the natural life-cycle of marriage" but sterile gay couples are not? I don't know for sure, but I can guess. She might be drawing on modern natural-law theorists who argue that sterile straight couples can engage in sexual "acts of a reproductive-kind," while gay couples cannot. Which comes down to saying, gay couples can't have straight sex. In other words, gay couples -- alone among all sterile couples -- must be denied marriage because they are not straight couples. That's a conclusion, not an argument.

Moreover, given how abstract this idea of "the natural life cycle of marriage" seems it's hard to see how anybody would take any particular message away from it. Millions of childless married couples are already part of our lives. The presence of gay couples in the mix, to use Maggie's formulation, "doesn't signal anything in particular at all."

One commentator has suggested that perhaps Maggie means that gay marriage would have a "norm-related magnification" effect, adding to an already potent set of harmful cultural signals against procreation and mom-dad-raising-child. But for gay marriage to have a magnification effect we must know what it is magnifying and how. If it sends no signal that the rest of the 97% of marriages will notice, it has no magnification effect. If it sends a positive signal about marriage, it has a (small) subtraction effect from the existing harmful messages.

Similarly, another thoughtful commentator suggests that maybe gays, who he hypothesizes have an unusually large cultural voice, will send signals disproportionate to their small numbers. I doubt gays' alleged cultural power is really that strong, but even if it were we'd have to ask this question: is it better to have these powerful cultural and intellectual speakers outside the marriage tent throwing rocks at it or simply ignoring it? Or is it better to have them inside the tent absorbing its values?

Let me suggest an alternative message gay marriage might send to the culture: "Marriage is good for you. You should get married. If you're raising kids, you better get married. Family structure matters."

Let me suggest a message that's being sent through the denial of gay marriage: "Marriage is just one alternative among many. Look at us, we're happy. You don't need it. You can raise kids successfully without it. Marriage is invidious discrimination."

Don't get me wrong, I think gay marriage will send almost no message that heterosexuals will pay much attention to, after the initial furor subsides. They will be 3% of marriages so the numbers will just be too small for people to much notice in their daily lives. The people who don't like it will dismiss gay marriages with scare quotes, the way they do now: gay "marriages." They will see these gay "marriages" as counterfeits, their own marriages as the real thing, and go on about their lives.

Others will rejoice that we've finally let in a group of people who believe in marriage so much, who need it in their lives so much, whose children will benefit from it so much, that they fought for it as if fighting for their lives.

Tomorrow: Burke, process, and last thoughts.

[Dale Carpenter (guest-blogging), November 4, 2005 at 8:30am] Trackbacks
The Traditionalist Case -- What Would Burke Do?:

For many liberals, gay marriage is nowadays an easy case. It eliminates discrimination against a class of people. It signals tolerance for diverse families. It eliminates an archaic distinction. If the benefits seem to outweigh the harms, as they do, let's go for it. And the sooner the better.

For a principled conservative, embracing gay marriage is not nearly so easy. A venerable principle of conservatism, rooted in the work of Edmund Burke, is that we should respect tradition and history. This strain of conservatism prefers stability to change, continuity to experiment, and the tried to the untried. Burke was the father of modern traditionalist conservatism. Others were more analytically rigorous (Hayek and Oakeshott) or more directly influential on American political conservatism (Kirk and Buckley). But Burke was the first among the modern writers to lay out the basic principles and to do so in an almost poetic way.

Understanding Burke's philosophy is key to understanding a traditionalist conservative's take on gay marriage. Two aspects of Burke's thought -- his faith in the possibility of slow progress and his willingness to depart from an original design, even one based on ancient values -- are especially relevant.

1. Traditionalist conservatism and reform

Burke has often been identified as a defender of existing practices and traditions against innovation. There is much in Burke's writings and speeches to support this view. He wrote in Reflections on the Revolution in France:

[I]nstead of casting away all our old prejudices, we cherish them to a very considerable degree, and, to take more shame to ourselves, we cherish them because they are prejudices; and the longer they have lasted and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages.

However, the common reading of Burke as simply a defender of tradition often misses the richness and subtlety of his philosophy. He did not oppose all evolution of a society's practices, traditions, and values. Rather, he counseled deliberation and patience in reform.

For Burke, the operation of change should be "slow and in some cases almost imperceptible." He urged forbearance and consensus-building. He defined a statesman as having "a disposition to preserve and an ability to improve." He believed deeply in the possibility of "a slow but well-sustained progress." In other words, Burke supported incremental change rather than the convulsive social upheavals he saw in events like the French Revolution.

Burke's leading modern American disciple, Russell Kirk, took a similar approach to social change. "Society must alter," Kirk wrote in The Conservative Mind, "for slow change is the means of its preservation, like the human body's perpetual renewal." In his analysis of Burke, Kirk noted:

Does the observance of prejudice and prescription, then, condemn mankind to a perpetual treading in the footsteps of their ancestors? Burke has no expectation that men can be kept from social change, or that a rigid formalism is desirable . . . . Even ancient prejudices and prescriptions must sometimes shrink before the advance of positive knowledge . . . .

Kirk added: "Conservatism never is more admirable than when it accepts change that it disapproves, with good grace, for the sake of a general conciliation."

Burke also saw that the original design of an institution would inevitably undergo change: "[N]othing in progression can rest on its original plan," he wrote. "We may as well think of rocking a grown man in the cradle of an infant." Edmund Burke, "Letter to the Sheriffs of the City of Bristol on the Affairs of America (1777)," in Edmund Burke: Selected Writings and Speeches 245-46 (Peter J. Stanlis, ed., 1963). From Britain's mistreatment of the colonies, Burke drew a valuable lesson about the fallibility of human reliance on supposed venerable beliefs and the need to re-examine those beliefs in the light of experience. On March 22, 1775, he articulated this lesson in a famous speech to Parliament:

Our late experience has taught us that many of those fundamental principles formerly believed infallible are either not of the importance we imagined them to be, or that we have not at all adverted to some other far more important and far more powerful principles which entirely overrule those we had considered omnipotent.

Edmund Burke, "Speech on Moving Resolutions for Conciliation with the Colonies, March 22, 1775," Selected Writings, at 196.

This passage reveals two important components of Burke's traditionalist conservatism. First, what we presently regard as "fundamental principles" are not immune to critique and revision based on the lessons derived from experience. Second, experience may reveal that our operating principles are subordinate to even more fundamental principles that should overrule them. This is hardly a static philosophy of governance. It is one that does not shy from drawing lessons from experience that cause us to revise even our deepest notions of right and wrong.

Thus, the popular image of the conservative as the person who stands "athwart history yelling 'Stop!'" needs to be amended. Rather, the dominant strain of principled conservatism has stood athwart history yelling, "Slow down!"

2. Traditionalist conservatism and gay marriage

For a traditionalist, the direction of a reform certainly matters. On Monday and Tuesday, I tried to show how a traditionalist might view gay marriage as a good direction for reform. It will likely stabilize and traditionalize gay couples and their families, with positive effects not only for individuals and their children but also for their communities, for the cause of limited government, for marriage, and for traditionalist values even in gay culture. It will also make available the most traditionally moral life possible for the gay person. On Wednesday and Thursday, I responded to traditionalist concerns about the definition of marriage, the dangers of loosening the ethic of monogamy within marriage, polygamy, and procreation.

But all that is still not enough. A traditionalist case for gay marriage must also grapple with four strong aspects of Burkean conservatism: (1) a preference for stability over change; (2) a sense that existing practices embody a wisdom of the ages that a reformer's "private stock of reason" may not fully appreciate; (3) when reform is needed, a loathing for basing it on abstract ideas divorced from actual lived experience; and (4) a preference for incremental and small reform over dramatic and radical reform.

It is easy to construct from this a powerful Burkean case against gay marriage. (1) Gay marriage is of course a change, so we should be suspicious and resistant on that account alone. (2) Marriage is a long-standing, cherished, and important institution that has never before included the union of a man and a man or a woman and a woman; its historic practice of uniting men and women, and not same-sex partners, may have a reason that our logic cannot fully perceive. (3) Gay marriage is being brought to us in the service of non-marital and abstract causes, like "equality" and "inclusion" and "tolerance." (4) And worse yet, it is a radical change being thrust upon us suddenly by impatient activists and courts.

All of this has great force, and it may be decisive for a Burkean conservative. It is in my view the best argument against gay marriage.

Let me suggest, very tentatively here, that gay marriage, approached as a reform of marriage in the right way, might be consistent with Burke's approach. It is certainly not commanded by traditionalist conservatism, but is perhaps consistent with it. Let's consider each of the Burkean concerns.

First, it's obvious that all change should not be implacably resisted. Change is a means of society's preservation. The fact that gay marriage is a change is not enough by itself to overcome any argument in favor of it. Burkean conservatism, applied to this controversy, puts the onus on the reformers. That's why gay-marriage advocates have the burden of proof. But it is not an impossible burden.

Second, it's also true that the man-woman definition may embody a logic of its own that we cannot fully appreciate. This urges special caution, since the man-woman feature of marriage has lasted long and prevailed generally. But this, too, cannot be a complete barrier to changing marriage, just as it could not have been a barrier to past dramatic reforms of human practices, values, and institutions. When the first reformers proposed that women should be given the right to vote, for example, it would have been easy to say in response that men-only voting embodied a wisdom we could not fully appreciate, even though we could not come up with very good reasons for women's disfranchisement. Burke's insight here about the fallibility of reason is not a justification for stopping all change, even to cherished institutions; it is a warning to base change on actual lived experience and not simply reason.

Third, gay families are a part of our lived experience as a nation; they are not abstractions. There are 250,000 children being raised by 600,000 gay couples, at a minimum. There are 1-2 million children overall being raised among the estimated 9 million gay Americans. Gay families, including those raising children, have grown from the bottom-up, not from the top-down. They have sprung up organically from the experience of millions of people who have the same yearnings for connection, for love, for fidelity, for security, for family, and even for faith, that straight Americans have. Our positive knowledge about gay individuals and families has advanced tremendously over the past few decades, from a time when they seemed nothing more than a diaspora of perverted criminals, to today, when Americans increasingly recognize them as our perfectly responsible and normal friends, co-workers, brothers, sisters, mothers, and fathers. They have shown themselves capable of the kind of commitment associated with marriage.

In the face of the advance of this positive knowledge, it is possible that, from a Burkean perspective, it is some of the opponents of gay marriage who operate on abstract theories that have little to do with real human lives. Some, but not all, opponents of gay marriage appear to cling to an anachronistic view of gay people that is increasingly divorced from all learning, law, life, and experience.

Up to now, gay marriage has indeed been pitched mostly by ambitious reformers with no reverence for traditional institutions, and even with a deep hostility to those institutions, operating on abstract political theories. But as I have tried to show this week it is possible, just possible, to see gay marriage as a reaffirmation of our best traditions of marital commitment, devotion to others for whom one is responsible, and even as accepting the communal obligation to help raise the next generation. Or instead of a simple reaffirmation of long-standing values, gay marriage might be a translation of them into modern times and experience. Radical reformers advocating gay marriage are likely to be bitterly disappointed by what their reform produces.

Fourth, is gay marriage really a radical change, as many opponents (and commentators this week) have insisted? Is it especially unwise in this time of 50% divorce rates and 33% illegitimacy rates to experiment with marriage?

Throughout the extensive history of fundamental changes in the institution of marriage cries of radicalism have greeted every proposed reform. In 1911, the Supreme Court rejected the right of women to sue their husbands for abuse, calling such an idea "revolutionary, radical and far-reaching." Thompson v. Thompson, 218 U.S. 611, 31 S. Ct. 111, 112 (1912).

The type of reform matters for whether we should consider it radical and destabilizing, and therefore un-Burkean. No-fault divorce led to unexpected and unintended consequences that have weakened marriage in some respects; the divorce rate skyrocketed. But that was a change in an exit rule for marriage, allowing people to get out easily. And it potentially directly affected every single marriage in America, since everyone was eligible to exit.

Gay marriage is a proposal to change an entrance rule, to let more people in. There have been many changes in marriage entrance rules over our history: interracial marriage, age requirements, consanguinity requirements, to name a few. I am not aware of any evidence that a change in marriage entrance rules has ever harmed marriage as an institution. And gay marriage does not directly affect every marriage, since every other marriage remains heterosexual. To believe gay marriage affects every marriage is to rest on very abstract theorizing about present "social meaning" or wild speculation about distant future social meanings. A traditionalist conservative should distrust such reasoning.

Some will object, as Maggie has, that gay marriage is not merely a change in an "entrance rule" of marriage, but in the "substantive conception" of marriage. If that's so, it's also not unprecedented.

There has been no more profound change in the history of marriage than the evolution of women from being the property of their husbands to being the equals of them. Women's equality in marriage was a fundamental change in the "substantive conception" of marriage that directly affected every marriage in the land. It was fiercely resisted as a harbinger of the end of marriage and the end of civilization. There were costs associated with that change and it certainly altered the social meaning of marriage. But it was worth it, on balance. Next to that, allowing a 3% increase in the number of people who can get married, which will at least not directly affect the 97% of marriages that are heterosexual, is not radical at all.

There remains a final serious issue for the Burkean conservative: the pace and process of reform. More on that in the next post.

[Dale Carpenter (guest-blogging), November 4, 2005 at 5:48pm] Trackbacks
The Traditionalist Case -- Getting From Here to There:

The traditionalist reformer must not simply be satisfied that the reform is headed in the right direction, but must also be satisfied with the pace of that reform and with how the reform is brought about. The process considerations demand that any reform be based not simply on reasoned judgment, but on reasoned judgment informed by actual lived experience. Moreover, the reform must proceed slowly and incrementally to allow a consensus to develop in favor of the reform and to gauge what effects the effort is actually having.

This Burkean process of "a slow but well-sustained progress" is already very much in motion toward the ultimate destination of gay marriage.

1. The incremental path to gay marriage: the steps taken

Over the past 50 years or so a remarkable development has occurred in America: the increasing normalization and acceptance of gay life. This process has advanced incrementally and its vector has been toward the formation and growth of gay families. It is what makes gay marriage for the first time thinkable.

You can see this phenomenon in numerous legal and social changes. First, laws criminalizing gay sex were gradually either legislatively or judicially wiped away in almost every state until the Supreme Court invalidated the few remaining such laws in Lawrence v. Texas. At the same time gay communities were forming in neighborhoods in the large cities with a burgeoning culture of bars, organizations, and newspapers. Professional organizations like the APA removed homosexuality from the list of mental disorders and declared that efforts to "cure" or convert gays were unethical. Homosexuals began emerging from the closet in large numbers, helping to dispel myths about gays, moving out of urban centers and into the suburbs. And they began looking for more in life than fleeting and furtive sexual encounters. This was all a predicate for the flourishing of gay families.

Gay families, first just couples, began to spring up in the new climate. Adoption was available to gays in 49 states, foster parenting in all 50. Advances in reproductive science made it possible for gays to procreate their own biological children (outside of prior heterosexual marriages). So gays began raising children in increasing numbers, fueling what is today sometimes called a "gayby boom." A quasi-marriage culture was sprouting.

It was inevitable that law would take notice of these changes, and of new learning about sexual orientation, and adjust to accommodate the realities of family life. Changes in family law allowed gays to obtain custody of their children after divorce without having their sexual orientation considered an automatic disqualification. Many jurisdictions began recognizing second-parent adoptions that provided some measure of legal protection to the parents and children in gay families.

All of this bottom-up momentum toward the formation of families led to some recognition of the relationships of gay couples. It started primarily in the private sector, where companies began offering health and other benefits to the same-sex "domestic partners" of their employees. This practice spread until today most major companies in the country offer these benefits.

Then cities and counties began recognizing the domestic partnerships of their employees. Then states began to recognize gay relationships, first domestic partnerships offering only some benefits to certain gay couples. Now states are beginning to recognize civil unions, which give gay families all of the benefits of marriage yet save the word "marriage" for opposite-sex couples. The big barrier was broken in 2004, when one state began recognizing full-fledged gay marriages. Some of these state-level changes have been pushed judicially (civil unions in Vermont and gay marriages in Massachusetts). But, much more remarkable, they are now happening legislatively (civil unions in Connecticut and very broad domestic partnerships in California).

Abroad, the move to gay marriage in countries with legal and political heritages similar to our own has been dramatic. There's full gay marriage now in Belgium, the Netherlands, Spain, and most importantly for our purposes, in Canada. Within ten years, I am confident that all or nearly all of the European Union will recognize gay marriages. The dissonance will be increasingly difficult to maintain.

There has been a counter-trend, of course, represented by the recent passage of state constitutional amendments banning the recognition of gay marriages (and often much else). But these have passed mostly in states (like Mississippi) that were not headed toward recognition anyway. There is nothing inevitable about gay marriage. But the overall trend toward the formation of gay families and toward some recognition and protection of those families has been unmistakable.

Moreover the trend has been largely a Burkean one: incremental and based on real-world experience with gay people and families. This incrementalist experimentation has allowed us to begin to judge whether any of the harmful effects predicted by opponents of these reforms have materialized.

Consider, for example, the comments of Massachusetts state senator Brian P. Lees, a Republican who is the state senate minority leader and was a co-sponsor of a state constitutional amendment that would have banned gay marriage. After more than a year of gay marriage in his state he changed his mind and opposed the amendment he had previously sponsored. "Gay marriage has begun and life has not changed for the citizens of the commonwealth," he said, "with the exception of those who can now marry who could not before." "Massachusetts Rejects Bill to Eliminate Gay Marriage," New York Times A12 (Sept. 15, 2005). It's too early to draw any definitive conclusions about the Massachusetts example, but the preliminary returns are in and they offer no support to doomsday scenarios about gay marriage.

2. The incremental path to gay marriage: the steps ahead

Where do we go from here? I think a Burkean approach dictates two things. First, there should not be an immediate, nation-wide resolution of this issue either in favor of gay marriage or against it. That counsels strongly against either a decision from the Supreme Court forcing gay marriage on the country or the passage of a federal constitutional amendment banning gay marriage throughout the country. Either resolution of the issue would be profoundly un-Burkean because either, at this point, would necessarily be based on a priori reasoning rather than practical knowledge and experience. Fortunately, neither of these national, top-down resolutions of the issue seems likely to occur. Federalism, the historic design of American government, will be allowed to work its magic on this issue.

Second, the reform toward gay marriage should continue incrementally and with a strong preference that it move legislatively. That is, state legislatures should generally begin by taking moderate steps toward recognition that fall short of marriage. This could mean setting up a same-sex domestic partnership registry, and extending to registered partners some of the rights and obligations typical of marriage. Things like the right to visit a sick or dying partner in the hospital and the right to make important decisions for an incapacitated partner come immediately to mind. Perhaps allowing partners to transfer property to one another free of gift taxation. Second-parent adoptions, which even Maggie said she might support, should be allowed for registered partners. If things go well, the state could over time attach new rights and responsibilities to domestic partners.

It may be that in a few states, citizens who already have much experience with gay families can move more quickly. They could grant gay families all (or nearly all) of the rights and responsibilities of marriage and call the relationships "civil unions" or something else, but not marriage. Connecticut is an example of this. California is pretty close. New York and a few other states seem ripe to be next. I see no reason why such states could not move with dispatch toward full gay marriage, especially as the evidence from Massachusetts becomes clearer. There is already a consensus, a "general conciliation," in these states pretty close to gay marriage.

Once more evidence of the effects of protecting gay families is in, states can of course draw on the lessons learned in other states and move more confidently and quickly.

3. The incremental path to gay marriage: disadvantages

There are two disadvantages to this generally go-slow, state-by-state approach. One is that incrementalism necessarily means that states will be creating relationship statuses apart from marriage. Jon Rauch, who supports gay marriage, has argued forcefully that creating a menu of statuses may have the effect of knocking marriage off its perch as the "gold standard" for relationships. It's a real concern, but I think its force can be blunted. In creating alternative statuses states should be careful to limit participation to same-sex couples. Domestic partnerships and civil unions should not be available to opposite-sex couples, who already have marriage available to them. This can be done constitutionally and, I think, it's politically viable. Connecticut is a good example. That state legislatively created civil unions for gay couples but not for straight couples. California has (with a limited exception for elderly couples who lose certain important legal benefits if they marry) also limited its domestic partnerships to same-sex couples.

Also, once a state moves to full gay marriage, it should say good-bye to any alternative status it created for gay couples. Once marriage is allowed, gay couples should not retain an option unavailable to straight couples. I think this, too, may be politically viable since there's some evidence that private employers in Massachusetts have begun to eliminate their domestic partnership benefits. If the pre-marriage alternative status has been limited to gay couples, as I suggested above could be done, there's not going to be any politically sustainable argument why the alternative status should be available to them (and only to them) once they're eligible for marriage.

The second disadvantage of incrementalism is that, while we are waiting around, a lot of states will be cementing anti-gay-marriage policy into their state constitutions. Eighteen states have already done so and my home state of Texas is about to become the next (an especially pointless action, since there's no chance that Texas's extremely conservative and elected judiciary will force gay marriage on the state). It will be very hard to dislodge these amendments once they're in place. Long after the evidence is in that recognizing gay families is a good thing for the families and for their communities, these places will be stuck with the frightened prejudgments of an earlier generation that did not have the knowledge or experience the later generation will by then have. That will be terrible for gay families in those states, who will suffer needlessly for decades. I don't know what to say except that if the alternative to state-by-state incrementalism is a Supreme Court decision mandating gay marriage anytime in the near future, the price of that would be even higher. It would be a constitutional amendment banning gay marriage throughout the nation for the rest of our lives.

Finally, while I believe civil unions are a huge and often necessary step toward gay marriage, they should not be confused with the ultimate destination, which is marriage itself. I have asked many married couples I know whether they would, if given the option, trade in their marriages for a civil union. Every one of them said no, even though civil union would make no difference in their legal rights and relations — assuming federal recognition. (I am sure there are some couples who would have said yes, but I suspect they're a small minority of married folks.) That's because marriage is much more than the sum of its legal attributes. It has a cultural, social, and historical significance no other status can touch. Whatever it is that caused my married friends to say no, that's exactly the thing that gay families with civil unions will be lacking.

Let me be clear: I favor full-fledged gay marriage. In a few states, very soon, it may be possible to recognize gay families in marriage. The traditionalist in me sees the strong arguments for it as the end result, and I have made those arguments this week. But the Burkean in me wants us to get there the right way, and that means doing it in many places slowly and by degree.

Next: last thoughts.

[Dale Carpenter (guest-blogging), November 4, 2005 at 10:24pm] Trackbacks
The Traditionalist Case -- Last Thoughts:

Thanks again to Eugene for letting me in the forum this week.

In the end it comes down to this: Given that gay families exist, and are not going to be eliminated or converted by any means acceptable to the American people, what is to be done with them? Is it better for society that they be shunted aside, marginalized, ostracized, made to feel alien to traditional values and institutions? Or is it better that they be included in the fabric of American life, including the most important social institution we have for encouraging, recognizing, and reinforcing loving families? I can see why a sexual liberationist, or a radical of any stripe, might say, "Keep them out." I have never been able to understand how a conservative could say that.

In the end I doubt this issue will be decided on the basis of debaterish points and arguments. It will be decided on the basis of the lessons we tend to draw from the real-world experiences we have and the people we know. What I have tried to do is outline a different way of thinking about gay marriage that might allow the thoughtful traditionalist conservative to reconcile his innate and healthy suspicion of change with his insight that marriage really is good for people and their families.

Analogies can obfuscate, but in their own way they can distill a matter to its essence. In her last post two weeks ago, Maggie described the issue of gay marriage by use of a vivid analogy that I will never get out of my mind:

Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened-- stumbling, loaded down, tired; enfeebled-- the conditions of the modern life are clearly not favorable to it. But still it's your only hope, because to get across that desert you need a camel.

Now, chop off its legs and order it to carry you to safety.

That's what SSM looks like, to me.

That's one way to see it. Here's another:

Imagine you stand with your loved one and child in the middle of a vast, hostile desert. You are burdened -- stumbling, loaded down, tired. These are the conditions of modern life for you and they are not favorable, but you've been trying to make it. To get across that desert you need a camel.

Along comes a caravan with a hundred camels, three of them with no riders, more than enough for you and your family. You plead to use them, agreeing to pay your way and live by their rules for the journey.

But they say, "No, you might disturb the camels we're riding on."

That's what the denial of marriage to gay families looks like, to me.

In a world where gay families had nothing to do with the problems marriage now faces, it's pretty odd to "defend" marriage by keeping them out. With these wholly unrelated challenges to marriage out there, William Eskridge recently said that defending marriage by opposing gay marriage is like building a Maginot Line. You get all excited about your fine fortress, you preen and prance around about your impending victory, you pop open some champagne, and then . . . the enemy sneaks through the Ardennes and overruns you.