In his latest column at NRO Kurtz replies to two of the key criticisms of his recent Weekly Stanard article on the effect of gay marriage in Scandinavian countries. The first criticism was that he used Scandinavian "registered partnerships" to make the case against same-sex marriage. This was especially disturbing in that he claims his article destroyed the case for SSM as put forth independently by Andrew Sullivan and William Eskridge, Jr. Those two, though, have argued that "marriage-lite" arrangements could have a harmful influence on marriage and that traditionalists should actually favor "marriage" over other imitations. I noted that this was especially true in the case of Eskridge who explicitly compared Vermont civil unions to Scandinavian registered partnerships and said such laws would do more harm than SSM. The second criticism was that Kurtz failed to establish causation. I will deal with that issue in the subsequent post. For now let us consider how Kurtz responded RP vs. SSM issue.
In his response Kurtz focuses on entirely on Sullivan. This is natural, since Sullivan publicly criticized Kurtz's original article, and as far as I know, Eskridge did not. Kurtz's response was that Sullivan himself referred to Danish RP's as "defacto gay marriage" and used a study by Darren Spedale of marriage in Denmark to make the case that SSM had a net benefit to marriage there. If Sullivan can use results based on RP's to support SSM, it seems only fair to Kurtz that he should be able to use results based on RP's to discredit SSM. It's a fair point and Sullivan responded to it claiming that the main point of his article was not the effect of SSM on the institution as a whole, but it's effect on same-sex couples. If RP's helped such couples, it seems likely to him that SSM would only help those couples even more.
I was more interested in how Kurtz might respond to the claim that his article actually supports Eskridge's case. I can only guess that Kurtz might use the fact that Eskridge also referred once to Spedale's study. Kurtz states in the Weekly Standarda artcile, "Writing in the McGeorge Law Review, Eskridge claimed that Spedale's study had exposed the `hysteria and irresponsibility' of those who predicted gay marriage would undermine marriage." I managed to find Eskridge's note from that legal journal. The relevant quote is in volume 31, pages 660-661:
Second, the legal recognition of same-sex unions that is best supported by principles of justice and equality can, and perhaps usually does, have benign or good consequences. Denmark, Sweden, and the Netherlands have given almost complete recognition to same-sex unions, without malign consequences: there are no reports, even from traditionalists in those countries, that different-sex families have been weakened or that unhealthy promiscuity or sexually transmitted diseases have become a problem. Indeed, the scanty evidence supports the opposite hypotheses thus far. Not only have same-sex couples been able to solidify their conception of family through registering as partners, but new family-forming opportunities have been offered for different-sex couples. [n48] The pro-family and anti-discrimination policies of these countries have contributed modestly to campaigns to prevent the spread of sexually transmitted diseases, most prominently AIDS. [n49]
Moreover, there is no evidence that legal recognition of same-sex unions has contributed to a decline in the institution of marriage. Reports from Denmark suggest that the opposite may be the case; in the ten years since same-sex couples have been able to register, the marriage rate for different-sex couples has been stable, and their divorce rate has declined. [n50] I am dubious that there is a causal link, for the same reasons I question opponents' confidence that same-sex marriage will ruin the institution, but the correlation between the opening up of marriage to same-sex couples and a (perhaps temporary) halt in the institution's erosion for different-sex couples ought to expose the element of hysteria and irresponsibility in opponents' predictions.
[n48] By the end of 1998, for example, 2,372 couples had registered under the Danish law and 5,217 under the Dutch law; 1,870 of the Dutch couples were different-sex.
[n49] See Benny Henriksson & Hasse Ytterberg, Sweden: The Power of the Moral(istic) Left, in AIDS in the Industrialized Democracies: Passions, Politics, and Policies 317, 321-22 (David L. Kirp & Ronald Bayer eds., 1992).
[n50] See Darren Spedale, Nordic Bliss: The Danish Experience with "Gay Marriage" (1999) (unpublished manuscript, copy on file with author).
[boldfaced added, italics in original]
That's right. Eskridge specifically doubts a causal link. He was not claiming that RP's would save the institution of marriage. Nor did he claim that RP's were the equivalent of marriage. He was only noting that it didn't make much sense to argue that legal recognition of same-sex couples would have a detrimental effect on marriage as a whole given the existing evidence. It seems he even suspected that the halt to the erosion of marriage may be temporary.
Can one use evidence from Vermont's civil unions, Scandinavian registered partnerships, or even Canadian marriage to argue about the effect of same-sex marriage? Sure. One needs to be explain, though, why such results would likely carry over or why they likely wouldn't. In order for someone to evaluate such a claim, they need to understand what the causal mechanism is. The argument will only be persuasive if one agrees on how the effect was caused, and if one believes that the same mechanism would work in the alternate setting. So now let us consider how Kurtz believes RP's caused the demise of marriage and we can then examine what effect the difference between RP's and SSM would have on that mechanism. Those differences include adoption rights (which have only recently been chaning in Scandinavia) and of course the name.