Galois

Lessons Learned

I should probably say something with regards to Stanley Kurtz's latest article in the Weekly Standard, Going Dutch?: Lessons from the same-sex marriage debate in the Netherlands.  And I will share a few observations, but many will probably sound familiar. 

The first thing that struck me about the article was the leading graphic showing the rate of out-of-wedlock birth in the Netherlands from 1970 to 2003.  It's a bar graph and the bars are blue until 1997, the year when a registered partnership bill passed, at which point the bars become red.  Before looking at the text, I would have thought the red bars were a projection based on the trend of the blue bars.  I was thus a little suprised that this was supposed to be evidence of an effect of registered partnerships.  It turns out that the red in the graph represents those years in which "the annual increase was two percentage points, double the average annual increase of the previous 15 years."  Based on the graph, which rounds rates to the nearest percent, I was curious as to why 1995 was not shaded red.  I was also curious as to which was the criterion, the annual increase of two percentage points, or an annual increase that was double the average of the previous 15 years.  So I decided to check Kurtz's source, the Dutch Central Bureau for Statistics.  Those are available online for 1970-2002 (given as a rate per 1000 live births and shown here in a bar graph) and for 2003-2004 (you need to do the division yourself).  The first thing I noticed is that the criterion was certainly not an annual increase which was double the average annual increase of the past 15 years.  If it were, all the years 1974 through 1984 inclusive would be red and the years 1998, 2002, and 2003 would be blue.  Nor was the criterion actually an annual increase of two percentage points.  If it were, 1998, 1999, 2002, and 2003 would be blue.  The best I can figure, the criterion used was an annual increase of 1.5 percentage points or greater, that is an increase of two percentage points if we round after taking the difference. 

Now that I understood better what the graph was actually claiming, I could start to consider its significance.  Using the direct CBS numbers I noticed that the illegitimacy rate has risen every year since 1973.  So the claim must be that registered partnerships exacerbated this trend.  We do see from the numbers that while the rate of increase rose drastically during the 70's, the rate of increase stabilized during the 80's before rising drastically again during the 1993-1998 timeframe and  then stabilizing again.  Again let me emphasize I'm talking about the rate of increase.  Throughout this entire period the out-of-wedlock births as a percentage of total births rose.  (I should also point out that in the CBS numbers an out-of-wedlock birth is one where the mother was unmarried 307 days before the birth.)  So what might have been some of the causes of this acceleration during the time frame 1993 to 1998.  I don't know, but it wasn't registered partnerships and it certainly wasn't same-sex marriage.  The former didn't occur until the end of that time frame (it passed in 1997 and became law in 1998) and the latter not until after it.  It seems like Kurtz might realize this because he labels his graph as "Out-of-Wedlock Births and the Campaign for Same-Sex Marriage."  So it seems at times that Kurtz is arguing not that same-sex marriage will lead to an increase of out-of-wedlock birth, but rather the campaign for it will.  I don't know how he proposes to stop people from campaigning for same-sex marriage, but perhaps, as the subtitle of his article indicates, we can learn some lessons from the Netherlands. 

In his article Kurtz refers to the danger of a menu of relationship options.  Sure enough the Dutch do have four types of living/partnership arrangements recognized under family law.  And all four options are open to both same-sex and opposite-sex couples.  It does seem natural to me that now that marriage has to compete with three other arrangements, less people will choose marriage.  So the question then becomes how do we avoid this "menu" of living arrangements.  One solution that seems obvious to me is to adopt same-sex marriage to begin with.  That would weaken the drive for civil unions, registered partnerships, legally recognized cohabitation, etc.  It wouldn't necessarily kill such movements entirely, but it does knock out a large argument for them.   In most cases these programs were designed as a way of helping same-sex couples who had no other means of legal protection for their families.  They were often opened up to opposite-sex couples as well for fear of discriminating against them.  Kurtz seems to think that same-sex marriage is itself offering another menu option.  Well yes, people could choose between opposite-sex marriage and same-sex marriage, but people can already choose from a wide variety of spouses just within an opposite-sex marriage. The choice of spouse is not a threat to marriage.  It's the choice of alternative living arrangements with the same spouse.  Regardless of whom one chooses for a spouse, one should be expected to take on the same obligations.  The problem comes when one loses the incentives for taking on these obligations  by making the same benefits available under a different obligation scheme.

Kurtz also argues about the risk of separation of marriage and parenthood.  I don't believe there is a problem with claiming parenthood is not an essential component of marriage.  Marriages are recognized even when there is an understanding the couple won't be having children.  Marriages are recognized even when they end before any children are born.   We do not need to equate marriage with parenthood, and there is no harm in pointing out they are obviously not the same thing.  What is a legitimate concern is emphasizing the importance of marriage for raising children.  One does a great disservice by asking people to conflate this issue with its converse because when people see the obvious, that it is not necessary for married couples to raise children, they could end up rejecting out-of-hand valid arguments for how it is important for children to be raised by married couples.  Perhaps this is another lesson from the Netherlands.  Instead of arguing how married couples must have children, try focusing on how marriage helps those couples that do have children.  The answer is not that it gives the child a mother and a father.  A couple can cohabit and do that.  They can even live apart and do that.  What is probably meant instead is that marriage makes it more likely for the mother and father to stay together which is good for the child.  That seems like a natural argument and one can even explain how marriage helps to keep the couple together, and how that is good for the child.  But then one might ask, isn't it better for a child being raised by same-sex parents for those parents to stay together?  And couldn't marriage increase the chances of that couple remaining together?  Likewise there are many other ways in which marriage helps children, and one can explain to people in detail how it does this.  A focus on these arguments in the debate could--and hopefully would--have the effect of convincing people of the importance of getting and remaining married.  I believe such arguments would also lead more people to the conclusion that same-sex couples should be allowed to marry as well.  (This goes even for same-sex couples without children as, upon examination, many of the reasons marriage is good for children are also reasons it is good for the couple and the broader community.)

I am all for learning lessons from other countries with regards to the debate over same-sex marriage.  That we should not be having the debate in the first place, though, is not a very practical lesson.  The debate is here and it is unavoidable.  Instead we should be looking for lessons on how to conduct the debate and consider carefully the alternatives for dealing with the situation.  One lesson I would ask all to consider is that those who value marriage should explain in detail why marriage is so good, even if extolling its virtues might lead some to believe that same-sex couples should not be excluded from such an important institution.

Bulletpoints of a Lost Post

This morning I had written a rather lengthy post concerning the Massachusetts "reverse evasion" law.  But I lost it.  I have neither the time nor patience to recreate the whole thing so here's what I remember saying recreated in quick bulletpoints.  Please forgive the laziness.

• I wrote in some detail about the law a few weeks ago.  Among other things I said out-of-state same-sex couples would generally be better off marrying in Canada, and I suspect the law itself is perfectly constitutional.
  
• From the Boston globe we have a story on Gov. Romney's latest actions to stop out-of-state same-sex marriages.  (This morning that was the latest, now the Globe has AG Reilly agreeing.)  Also a quick article on the role of race in the 1913 law.
  
• I agree with Romeny (for once) on quite a bit.  The law is valid and should be enforced.  I also agree with him when he said couples marrying contrary to said law are not hurting the commonwealth but are hurting themselves and their families by having a marriage of doubtful validity. 
  
• I would add that perjury and subornination of perjury are serious criminal offenses.
  
• I disagree wtih the Romney's characterization of the law as prohibiting marriage of all out-of-state couples.  The law specifically says the marriage may not be contracted if it would be "void" in their home jurisdiction.  Some states, like New York, Connecticut, and Rhode Island, do not say anything about same-sex marriages being void.  The Massachusetts law says nothing about requiring such marriages to be explicitly authorized in their home state.
  
• Thus I believe Stanley Kurtz is wrong when he says NY AG Spitzer's opinion implies the marriages "must be illegal" in Massachusetts.  Spitzer's opinion was that the legislature never authorized anyone to perform same-sex marriages in New York, but same-sex marriage was not on the list of void marriages under NY law.
  
• Likewise RI AG Lynch declared that  the only marriages deemed void under RI law were those that "involve bigamy, incest or mental incompetence, or marriages in which one or both parties never intended to be married."  Thus the Massachusetts law would not seem to apply to RI either.  Lynch  did not say the question of whether same-sex marriages were currently void was an open one.
  
• I agree with Justin Katz that legislators should not shirk thier duties just because a question is a difficult one and it is an election year.  I have been urging my CT legislators, for example, to uphold their oath to guarantee equal protection by passing a law explicitly allowing for same-sex marraige.  (I understand that they have their hand full in Hartford, though, with impeaching our governor.)
  
• It's worth mentioning, though, something Rep. Mike Lawlor (D-East Haven) said at the Quinnipiac Symposium on SSM in March.  He said the CT legislature was divided roughly one third for marriage equality, one third for some type of civil union, and one third for a DOMA.  No group was willing at the present to support  any of the alternatives so there was an understanding that they would  wait and see how things stand next session. 
  

Threre was more, but this is long enough as is.

Scandinavian Scare

Stanley Kurtz has claimed for awhile now to have proof that same-sex marriage will destroy the institution of marriage by looking at what has happened in Scandinavia (where they passed marriage-like registered-partnerships in the late 80's to early 90's).  This brief post of mine works as a nice gateway to some of what has been written by Kurtz, Andrew Sullivan, and myself on this subject.  M.V. Lee Badget has a detailed rebuttal of Kurtz's arguments at Slate and I would encourage anyone with interest in the subject to read it in full.  Her analysis looks more closely at the demographic evidence, which is certainly important, but I think some of her most important points lie elsewhere, towards the end of the article. 

First of all there are some key differences between the United States and Scandinavia.  As she writes:

And all the conservative hand-wringing seems especially unnecessary when you consider the various incentives that encourage American heterosexual couples to marry. By marrying, U.S. couples obtain health-insurance coverage, pensions, and Social Security survivor benefits. Plus, in the United States we are required by law to be financially responsible for our spouses in bad times, since we don't have Scandinavian-style welfare programs to fall back on.

Whereas allowing same-sex couples to marry does not change any of these incentives, not allowing same-sex marriage has been causing a change.  For example, because same-sex couples are excluded from marriage many private employers have started offering health coverage and pension benefits to unmarried partners.  The number of such companies has been rising dramatically every year.  These programs are generally also available to opposite sex couples as well (often because of legal concerns about discriminating against such couples).  Without same-sex marriage these programs will continue to proliferate and the situation will become more like Scandinavia in this regard.

Badgett also responds to Kurtz's claim of mechanism.  He has said that same-sex marriage divides churches, and the more conservative churches that would speak out against SSM and against cohabitaton become less influential.  Now there is much more separation of Church and State in the U.S.  So issues about gays and homosexuality will not just disappear from the churches with an amendment banning same-sex marriage.  As Badgett notes:

In addition, American society already wrestles with the social tensions that Kurtz claims have occurred as a result of gay marriage in Scandinavia: deepening divisions over gay issues in churches, the increasing acceptance of lesbian and gay relationships in the media, and the occasional radical voice arguing for the abolition of marriage. Yet heterosexual couples keep getting married—more than 2 million of them every year.

Same-sex marriage did not cause these social tensions and banning it will not remove them.  Of course legalizing same-sex marriage will also not remove them.  Either way churches will have to deal with difficult issues like what is expected of its gay congregants?  Lifelong celibacy?  Closeted affairs?  Private commitment ceremonies? Commitment ceremonies with religious blessing?  Same-sex religious marriage even without the civil sanction?  Marriage to someone of the opposite sex?   In the political arena not allowing same-sex marriage  must lead to a second debate over what should be done to protect same-sex couples and their children.  If we are not going to have SSM, then what are we going to do?  Domestic partnerships?  If so, what should they look like?  How should they be treated in another state?  What should guide the courts in dealing with them?  Should they be open to opposite-sex couples?  I don't believe that a Constitutional Amendment is going to put gays back in the closet.  One way or another this issue must be faced.   

UPDATE (5/25):  Kurtz has a response to Badgett.  He writes:

Badgett's case is built on statistical sleight of hand. And his [sic] claim that "heterosexual marriage looks pretty healthy in Scandinavia" flies in the face of a broad scholarly consensus.

Kurtz makes some good points, but he still doesn't explain how requiring homosexuals to cohabit instead of marry will reinforce the benefits of marriage and the harms of cohabitation.  I just wrote more on the Dutch example here.  Oh and he seems to be wrong about  Badgett's gender. She is indeed  a woman.

Emotional Blackmail

At a policy forum at CATO on Monday, Genevieve Wood of the Family Research Council referred to those making arguments about the welfare of children of same-sex couples as engaging in "emotional blackmail".  It's a curious choice of words.  Blackmail would seem to imply that SSM proponents know some dark secret about someone (SSM opponents? The FRC?  Ms. Wood?) and are threating to inform somebody else about it unless their demands are met.  I don't know if it is the secret that is emotional or the demands.   I can't imagine what that secret is or to whom they are threating to release the information, so for now I'm just going to put aside the choice of words as nonsensical rhetoric and deal with the underlying concern.  Is it somehow inappropriate to plead for these children's welfare in the debate over same-sex marriage?

My first reaction is of course not.  Opponents of same-sex marriage, including Ms. Wood, have said we need to prohibit same-sex marriage in order to protect children.  It has even been argued in court that the exclusion of same-sex couples from marriage somehow furthers the State's interest in improving the welfare of children.   It seems only natural then to consider how allowing same-sex marriage might affect the children which would be most directly impacted by the marriage, namely the children of the couples themselves.  If opponents of same-sex marriage think that the marriage of a child's parents will hurt the child, or it will be of little help to the child, they are free to explain what leads them to believe so.  I will continue to explain why marriage is an enormous protection to these children.  That is an area of disagreement, but it is a legitimate debate.

I'm also not saying that we should not consider the impact of same-sex marriage on other children even if those effects aren't direct.  For example, some have argued that same-sex marriage will cause other children to be born out-of-wedlock.  I think such claims are fairly unsubstantiated and that same-sex marriage is being used as a scapegoat for the irresponsibility of others, but again that is merely a disagreement about the effects and their cause.  I do not think that is somehow inappropriate to raise the concern.  On the contrary, I think indirect effects, especially on children, should definitely be considered.  Jonathan Rauch raises some good points in referring to how same-sex marriage would not only help current same-sex couples and thier families, but also give hope to gay youth in the future who would be able to grow up with marriage as a goal.

Wood's concern seems to be that the same-sex couples decided to have the children in the first place, and so they should not complain about the lack of protection their children face because of that decision.  I wonder if she has a problem with people pressing for government subsidized health care for children.  After all, the parents of those children decided to have them in the first place, so they should not be complaining.  The argument is problematic on a number of levels.  Even if one believed that the parents' decision deprived them of all moral authority to argue for the welfare of their children, certainly somebody should be arguing on their behalf.  No matter what you think about the parents' decision to have the child, the child certainly had nothing to do with it.  But the argument is troublesome on an even more fundamental level.  We expect parents to try to provide and protect their children to the best of their ability.  Here we have parents doing just that.  They shouldn't be chastized for standing up for thier children, they should be commended.  Marriage means voluntarily taking on many new obligations. Here we have couples not just willing to do that for the sake of their families, but striving to do it.  They should be applauded.  Wood repeatedly told the audience that family structure matters.   And I agree.  But here we have families seeking that optimal structure, marriage, and being told they should content themselves with cohabitation.  What message does that send about family structure? 

Ah, but perhaps the person chose the wrong spouse to begin with.  For certainly the individuals in the family matter even more than the structure.  Of course I would also say that the individual matters more than the gender.  In any case, I would rather have the individual make that choice.  And even if we believed that a person could have chosen a better spouse, I would still believe it was better for them, their family, and society if they were to marry instead of cohabit.

No-Fault Divorce

One of the things Genevieve Wood brought up at the forum was the analogy of the movement for same-sex marriage to the movement for no-fault divorce.  (Her comments on this matter occur at 31:30 in the recording)   While the movement to eliminate prohibitions on interracial marriage is the favorite parallel of many advocates for same-sex marriage, the no-fault divorce parallel seems to be a favorite among many of those opposed.  In both cases the parallel is generally brought up as a response to particular claims.  In this case it was brought up by Wood as a response to the common claim of "How does same-sex marriage affect opposite-sex marriages?"  She says that the same question was asked about no-fault divorce, namely "How does the no-fault divorce of an unhappy couple affect the marriage of somebody else?"  And yet no-fault divorce has had a great impact on other marriages with divorce and cohabitation rising.  She says marriage is a public institution, and that's why there can and will be a broader effect.  I certainly agree that marriage is a public institution, but that doesn't really answer either question as to specifically how the other marriages are affected.  So let us look at the comparison a little more closely to see how each change in marriage might have some broader effect.

The first difference I see is at the more direct level.  Many of the harms from no-fault divorce come immediately from the divorce itself.  That is the children of the marriage, in some if not many instances, would be better off if the couple remains married instead of the parents getting a divorce.  I have yet to see anyone argue that the children of same-sex couples would be better off if the couple remains cohabiting instead of getting married.  (Wood refers to arguments over the welfare of these children "emotional blackmail", but that's an issue for another post).   So we see that already on the immediate level there is a big difference, and we will see how this difference can play out in the broader impact.

Part of how no-fault divorce impacted other marriages was through an imitation effect.  As divorce became more common, people went into marriages without as much certainty that the marriage would last.  This could become a self-fulfilling prophecy in at least two ways.  One, people might be more reluctant to make personal sacrifices for the sake of the marriage with the knowledge that the marriage could end and they would have to be prepared to fend for themselves.  Secondly, when times got rough, divorce was seen as a more realistic alternative.  And then you have those that became reluctant to marry in the first place because of the rising divorce rate.  Why marry just to divorce later?  Especially vulnerable to this imitation effect are children of divorce themselves.  If same-sex marriage has an imitation effect it would mean more people deciding to marry instead of cohabit.  The demand for marriage is certainly a testament to its worth.  Again this imitation effect is especially true for children of same-sex couples who could now grow up with marriage as a model instead of cohabitation.  Furthermore, withholding same-sex marriage would continue to lead to a proliferation of marriage alternatives like domestic partnership plans that are open to oppposite-sex couples as well.  Just as divorce became a more realistic alternative to remaining married, these programs as well provide opposite-sex couples many realistic alternatives to marriage in the first place.

This leads us back to another direct effect of no-fault divorce.  No-fault divorce changed the rules of every marriage.  Even for a couple that did not divorce there was always a chance of it occurring.  Every marriage has at least a chance of going through some rough times.  No-fault divorce made it at least a little more difficult to remain married through those times.  With same-sex marriage, though, the same rules still apply to opposite-sex marriages.  They just apply to other couples as well. 

Later in the forum (1:11:20) Wood was asked whether she would support an amendment for a uniform national policy on divorce.  She said no, because divorce did not alter the definition of marriage.  I disagree.   Whether marriage is a lifetime commitment, or just a temporary arrangement seems to me to be a much bigger difference in the definition of marriage than viewing one's spouse as a human being without reference to gender. 

While I think lessons can and should be learned from the no-fault divorce debate, for example changes can have unintended consequences, I do not think the mechanism fits the same-sex marriage scenario very well.  Nor do I think that such lessons forestall any change.  We should take any claims about potential harms quite seriously, but we also need to carefully examine how such harms may come to pass.

UPDATE: Eve Tushnet responds with an additional difference and a dispute.  Her difference is that divorce is not viewed as an ideal, whereas same-sex marriage is.  I agree with this difference, but I see SSM as upholding marriage itself as an ideal.  For it is allowing marriage over the alternative of cohabitation.  I don't see it changing whom the ideal spouse is.  For most Jewish mothers the ideal will still be a doctor. 

She disputes the claim that divorce is a bigger change in definition, since many societies have had rules for divorce whereas viewing one's spouse without regards to gender is a late twentieth century innovation.  I agree that the latter is more novel, but marriage has been progressing in that direction since the early nineteenth century.  Which is a bigger change in definition depends on what specific change we are referring to.  In general I'd say the exit requirements of marriage are more fundamental to its definition than the entrance requirements.  As for the specifics I do see certain changes in divorce laws as greater alterations than the change from egalitarian marriage to allowing same-sex marriage.  In regards to Jewish divorce, I would note that even that was rather a novel concept from my understanding.  I don't believe other cultures at that time allowed a woman to remarry after divorce.  (A man could of course remarry, but then a man could remarry even without a divorce).    But much of this dispute I think comes down to what changes are "definitional" and what is a variation within that definition, a topic about which I hope to write soon.

 

CATO Forum

CATO has audio (with or without video) from a policy forum they hosted yesterday on same-sex marriage.  I was going to try to provide an outline of each speaker's arguments, but I would rather have people if they are interested just watch/listen to the forum directly.  I will only give a very brief introduction to the speakers here.  I also plan on commenting seperately, as I find the time, on a few particular issues that were raised at the forum.

The first speaker was Jonathan Rauch, author of Gay Marriage : Why It Is Good for Gays, Good for Straights, and Good for America.  I've mentioned that book and Rauch's arguments a number of times on these pages, most notably here.  His position is gay marriage would help gay couples, their children, the rest of society, and restore the institution of marriage itself.

Michael Greve is the director of the American Enterprise Institute's Federalism Project.    He explains is position well in this paper published last March.  His main concern is that the courts will strike down DOMA, or at least a state's mini-DOMA.  Thus he is pushing for a federal amendment that would (1) establish that there is no federal right to same-sex marriage, and (2) leave it to each state to decide issues pertaining to same-sex marriage. 

Genevieve Wood is the chief spokesperson for the Family Research Council.   She supports the Musgrave Amendment that would ban same-sex marriage throughout the United States.  The FRC has also said that an amendment also needs to ban the recognition of civil unions at any governmental level.  I'm gathering that they believe, as I do, that the Musgrave Amendment would indeed accomplish that. 

As noted, I will try to comment on a few particulars over the coming days. I did want to provide one quote from Rauch now, though, because it relates to something I wrote on Sunday.  During the Q&A portion of the forum Rauch noted that he had gotten that morning an e-mail from somebody saying that gay marriage was a part of the "me generation", that it was selfishly putting the needs of two people before the needs of society.  Rauch responded that anyone making such a contention should read the marriage vows.  He said:

[It] is the most noble and the least selfish promise two people can possibly make.  Gay marriage is the end of the gay liberation agenda.  It is the start--and really the culmination--of the gay responsibility agenda.

Marriage Day

The day has arrived.  I wish those couples getting married a lifetime of happiness, but more importantly a lifetime together through all kinds of weather.  For more check out the Boston Globe.

UPDATE (7:45am):  Marc Rios at Granola Snorting Nixon has pictures from Cambridge.

UPDATE(11:45am): More photos courtesy of the Boston Globe.

Revolutionary Ideas

As promised earlier, I wanted to explore the following eye-catching paragraph from Maggie Gallagher's latest op-ed, "Traditional Marriage Will Always Prevail".  She writes:

Advocates of same-sex marriage try to make it sound as bourgeois as possible, but gay marriage is really the triumph of the most radical ideas of the sexual revolution: that gender doesn't matter, children are secondary, expressing your authentic sexual self is more important than, well, practically anything else.

I want to examine the specific charges one by one, but first I want to note how surprised I was that somebody would consider gay marriage a triumph of the sexual revolution.  When I think sexual revolution I think sex outside of marriage, casual sex with multiple partners, in short sex without responsibility.  Gay marriage seems to me to be the opposite of that.  It is about getting married, being monogamous, and putting sex within a larger framework of obligations and responsibility.  I'm amazed that someone would call people seeking to marry sexual revolutionaries.  I know Gallagher has written that married people have more frequent and more satisfying sex than unmarried people, but I don't believe that is why these couples are seeking marriage.   I think it's more about protecting their families and signalling their commitment to one another and the public, than it is about sexual liberation. 

Those, however, are just my views when I hear the words "sexual revolution".  Gallagher does give us the specific ideas she had in mind.  Ideas which she associates with the sexual revolution.  Let us examine them one by one. 

Gender doesn't matter.  I never thought to associate this idea with the sexual revolution.  Be that as it may, let us ask if gay marriage does represent a triumph of this idea.  If gender didn't matter, there wouldn't really be such a thing as "gay".  People would think nothing of saying gays should just marry people of the opposite sex.  What difference does it make, if gender doesn't matter?  On the contrary I would say that to most gays and lesbians, gender matters a great deal.  But gay marriage does champion the idea that the individual is more important than the gender.  Those seeking marriage licenses are not looking to marry some guy or some girl.  They want to marry the particular individual with whom they fell in love and with whom they want to live their lives.  Gender is part of who that loved one is, but that person is more than just his or her gender.  Relatedly, the idea of gay marriage is not that gender doesn't matter, but rather that the goverment should not base one's rights on one's gender.  I would be appalled at a law which forbade interfaith marriages.  That does not mean I don't think faith matters.  I think it matters a great deal, especially in marriage.  I just think it should be up to the individual, and not the government, to make that decision.

Children are secondary.  This is an issue I've discussed quite frequently on these pages so I will be brief here.  Denying same-sex couples and their families from marriage hurts children.  Regardless of how one feels about same-sex parenting, withholding marriage from a child's parents is not going to change who the parents are.  It only denies the child the protections that marriage could offer his or her family. 

Expressing your authentic sexual self is more important than, well, practically anything else.  I think Gallagher is referring here to coming out.  I have gotten the impression that Gallagher believes the proper course for gays and lesbians is to remain closeted and to marry someone of the opposite sex.  I do not believe this course is good for the health of the closeted individual or his or her spouse.  We happen to disagree on this subject.  But it is important to note that it is not a matter of considering "coming out" more important than everything else, it is seeing coming out as not conflicting with other values and on the contrary furthering some other values.   It is simply a matter of disagreement about the effects of "coming out", not its worth.  And legalizing gay marriage doesn't even take sides on that issue as much it is says it is for the individual to make that decision.  Nobody is forced to come out by gay marriage, but nobody is forced to be closeted either. 

So I do not see gay marriage as a triumph for the ideas of the sexual revolution, or even for the ideas Gallagher associates with the sexual revolution.  Rather I see it as a triumph for the ideas of the American Revolution: that all men are created equal, and that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

 

Population Explosion

I'm off to a rally in Hartford in support of marriage equality, so I won't be blogging until later this evening.  In the meantime check out Positive Liberty for a thoughtful response to  Maggie Gallagher's latest.  I am hoping to respond to her op-ed soon myself, but from a different perspective.  I've been thinking is she correct that,

..gay marriage is really the triumph of the most radical ideas of the sexual revolution: that gender doesn't matter, children are secondary, expressing your authentic sexual self is more important than, well, practically anything else.

Not surprisingly, I don't think she is, but more on that hopefully tonight. 

Policy and Law

On Wednesday I noted that the questions raised by David Frum concerning interstate recognition of Massachusetts marriages also apply in one form or another to the matter of recognition of Canadian marriages.  Some have commented that the Canadian situation is irrelevant because the concern is the Full Faith and Credit Clause of the US Constitution (Art IV, Sec 1).  While the question of whether FF&C would require interstate recognition of marriages is an interesting one--and I hope to explain soon why legal experts do not think it does--that was not my concern in that post nor do I believe it was Frum's in raising the question to begin with.  Frum did not mention FF&C at all.  Rather he said he raised his questions to "drive home" the following point:

Americans may live in states, but they conduct their financial and legal lives in a united country bound by interstate institutions.

Eugene Volokh had already noted that laws already vary across all 50 states and that there are methods in place for dealing with these conflicts of laws.  My point in that post was that we conduct our financial and legal lives across international borders as well as state borders.  And thus these same policy concerns will occur even with a national policy against same-sex marriage.  If Frum was concerned that nonrecognition of sister state marriages led to too many problematic situations, why wouldn't nonrecognition of marriages from our friendly neighbor to the North lead to the same situations?  I don't believe Frum was saying the problem was the Massachusetts marriages must be recognized and the Candadian marriages don't.  Rather I believe his point was that it is too difficult to not recognize the Massachusetts marriages in every situation.  There are at least some situations where people would insist the marriage be recognized.  I felt even stronger that this was Frum's point when he wrote in a follow up on Friday:

I’ve argued in this space that marriage long ago ceased to be a local institution – that the modern American economy and modern American government cannot cope with the possibility that two people can be married on one stretch of I-95 and unmarried an hour down the road.

With the modern international economy and NAFTA, though, why is it possible nevertheless to cope with the possibility of two people being married in Windsor, Ontario, but not across the bridge in Detroit, MI?  I'm not saying that, if necessary, we couldn't cope with not recognizing fully Canadian marriages, or Massachusetts marriages for that matter.  I think it would be much easier, and beneficial from a policy perspective, though, to recognize both.  And that brings me to a final point that Frum seems to have been making.  Frum claims he is also testing the good faith of certain SSM supporters.  He writes:

And we’re going to test something else too: the good faith of the proponents of same-sex marriage in a single state....My own prediction is that the forces pressing for same-sex marriage in Massachusetts will not long remain content with Volokh’s answers, theoretically credible though they might be. So long as the battle over the Federal Marriage Amendment rages, they’ll swear devotion to the doctrines of local self-determination. But those vows will quickly become inoperative.

I'm not sure if I'm one of these SSM proponents to which Frum refers, but I do want to be clear on my view.  I believe sister states should recognize Massachusetts (and Canadian) same-sex marriages as a matter of policy.  Of course I think they should also allow SSM in their own laws as a a matter of policy.  I do not think FF&C requires that these marriages be recognized under current law.  I believe not recognizing the marriages raises some due process and equal protection concerns, but again not marrying couples in the first place raises the same concerns.  I believe I have and will continue to act in good faith.  I'm curious, though, as a matter of policy what Frum thinks the answers to his questions should be.  I'm not asking what he thinks the law requires, but just as a matter of policy what he would like to see happen.  Who does he think should inherit the Florida condo?  Should the woman be able to marry someone else in Texas without first obtaining a divorce?  Should the man on vacation be told of what is happening with his spouse who had a stroke?  These questions will not go away just by adopting a national policy against SSM in the United States.  Canadians vacation in the US, own property in the US, and some will even move to the US to start a new life.