Saturday, November 08, 2008

Why I Do Not Oppose Gay Marriage

OK before I get into this post, a few caveats:

1) Insofar as the Federal Constitution is involved, I still believe that the Constitution cannot legitimately be interpreted either descriptively (based on precedent) or normatively (according to the most proper method of interpretation) to require states to allow same-sex marriage (SSM). I've blogged about this in the past (see here), and stand by much of what I've written.

2) This post is titled "Why I Do Not Oppose Gay Marriage" not "Why Everyone Should Not Oppose Gay Marriage." There are legitimate religious and moral arguments against SSM, which while they do not appeal to me, are perfectly acceptable means of legislating in the United States. I am no Rawlsian and do not limit political deliberation to public reasons. Moral and religious constructs are perfectly legitimate bases for laws in most cases, and I've seen no argument to exclude them in this case.

3) I am not making a case in favor of civil unions or domestic partnerships. There are literally hundreds of undisputed, tangible benefits that accrue to married couples that are denied to same-sex couples when they cannot enter civil unions or domestic partnerships. Frankly, given all these benefits, it's hard to really come up with an argument against civil unions, and I am starting with the baseline that civil unions should be allowed.

Onto the subject at hand. For much of my blogging career I have been opposed to gay marriage. Although I haven't written much about it (here being an exception), I've defended the anti-SSM position on blogs such as Dovbear. But after a number of years of thinking about it, I've come to the realization that there simply isn't any reason for me to oppose it.

What changed my mind? I'm not totally sure, but I believe it was a combination between gaining a greater understanding of the benefits of SSM and no longer placing as much weight on the costs (costs which are mostly illusory).

Let's look at the the arguments pro and con.

Arguments For SSM

The arguments in support of SSM are of two types, deontological and utilitarian. First the deontological:

1) SSM should be permitted a matter of equality. In the past I've opposed this argument since I believed that same-sex couples and opposite sex couples were not similarly situated. As a matter of constitutional law, I continue to believe I am correct. But as a matter of political morality, the essential definition of marriage is constantly evolving and the almost universal opposition to banning gay sodomy coupled with the growing support for civil unions and domestic partnerships leads me to believe that the concept of marriage is currently in flux. As a result, this argument appeals to me more than in the past.

The utilitarian argument is as such:

1) Marriage is clearly a benefit to the individuals involved. As stated above, I am not discussing tangible benefits such as visitation rights and marital property, which are undisputed benefits. I am talking more about the psychological benefits of having one's relationships accepted by society at large, which surely is important. If anyone doubts that society's willingness to stamp a relationship with a measure of approval is a benefit to a couple, imagine tomorrow that New York decided to outlaw Jewish marriages or interracial marriages, and only afford those unions the status of civil unions. Would Jewish or Black civil rights groups stand idly in the background because those couples in a civil union have the exact same rights as married couples? Would anyone reading this post not feel a degree of horror at New York's open and notorious act of discrimination?

Now, the analogy isn't perfect and as a matter of constitutional law there is a huge difference between same-sex couples and interracial or Jewish couples. But this isn't a question of law, but rather political morality, and the essential aspects of the analogy basically hold.

Arguments Against SSM

So now that I've laid out the arguments in support, have opponents of SSM mustered any strong arguments in opposition? I do not believe so and will explain why below. At the end of the day, the benefits of SSM far outweigh the costs. Let's look at these arguments:

1) Marriage has always been between men and women. There are two version of his argument, the Strong version and the Weak version. While I am sympathetic to the Weak argument and will return to it below, the Strong argument is fatally flawed.

The Strong version claims that marriage has always been between people of the opposite gender and therefore SSM is not marriage. As structured this arguments obviously falls prey to the Humean is/ought fallacy. The fact that marriage has always been one way does not entail that it shoul always be that way. Civil marriage is the US is currently in flux, and the aspect of marriage limiting the institution to opposite-sex couples is no longer as clear as in the past. Marriage is shifting and we should not deny the label "marriage" to same-sex couples merely because we have done so in the past.

2) Marriage is harmed by SSM. This argument is notoriously slippery. In what way is my marriage harmed if two gay guys down the block want to get married? Rarely is this argument explicated in way that would actually explain the harm.

The most explicable version of this argument was proferred by Amy Wax in a Federalist Society debate over SSM. In a nutshell, Wax argued that marriage is a bundle of criteria that taken together define the institution. One criterion is that marriage must be monogamous (obviously this hasn't always been true, but it is the accepted definition in the Western World today). Since, as Wax goes on to say, gay men tend to be more promiscuous than straight men and have more partners, if we permit SSM, we'll be allowing people who do not believe that marriage must be monogamous to negate the monogamy criterion. How does that work? Since marriage is defined in part by how people act, and 2% of men in this country are gay (and generally do not believe in monogamy), we'll be adding a large number of marriages between participants who do not support monogamy as a rule to the overall number of marriages. Those 2% will obviate the monogamy criterion because they will dilute the total number of monogamous marriages. But since they oppose monogamy as a rule, they will also be openly nonmonogamous openly and others may follow their lead and enter into marriages, which will not be monogamous. The more people who marry with the express intent to not be monogamous, the further the definition of marriage will be away from monogamy. The monogamy criterion will no longer be part of the definition of marriage, and that will lead others to forgo monogamy as well. Hence the change in marriage as we know it.

This argument fails on a number of grounds (I am basically restating Dale Carpenter and Andrew Koppelman's responses). First, most SSMs are between lesbians who are famously monogamous. If anything, they should outweigh the gay men who openly and notoriously enter into nonmonogamous marriages. Secondly, SSM will make up a very small percentage of marriages. It's hard to imagine those marriage will have a substantial effect on the rest of society. Definitional changes cannot be effected by such a tiny minority of marriages. As long as the overwhelming majority of marriages have a monogamy criterion, marriage will still be defined partly as a monogamous institution. Finally, even if a small percentage of marriage could have a real effect on the institution of marriage, there is a serious weakness in Wax's argument. How do we get from "gay men will marry without the intention of staying monogamous" to "others will follow their lead?" How will others know the rules of those gay men's marriages? I have no idea what type of marriage my neighbors practice, even though I realize that odds are some of their marriages are not entirely monogamous. Why would straight couples suddenly decide to have open marriages just because some gay men decided to do so? The logic just doesn't follow.

3) Permitting SSM in other countries has weakened marriage in those countries. This is an essentially empirical argument, most prominently offered by Stanley Kurtz. But Kurtz's statistics say nothing about whether the correlation between the negative effects of marriage and permitting SSM is actually causation. Essentially someone must make an argument to link the two. At the end of the day, this argument is parasitic on Wax's argument, because Wax provides a framework for understanding the data Kurtz and others provide. And Wax's arguments are clearly insufficient to justify not allowing SSM.

The above arguments are the most commonly offered intellectual justifications for not permitting SSM. But they fail to describe any costs to our society if we allowed SSM. And they surely do not provide a basis for denying same-sex couples the benefits of SSM. So I do not see any reason to oppose SSM anymore.

Given the above, why did I title my post "Why I Do Not Oppose Gay Marriage" rather than "Why I Support Gay Marriage?" Well, I'm still a conservative. While the criterion of marriage that only includes opposite-sex couples is in a state of flux right now, there has not been enough of a change on the ground for me to support SSM across the board. Not a single state has voluntarily decided to extend marriage to same-sex couples. 30 states right now have a constitutional ban against SSM. We are still ways away from SSM becoming part of our social traditions. Essentially I accept the weak version of the "marriage has always been this way" argument because I will afford our current practices a presumption of correctness (unless they are scathingly unjust) until the practices are modified organically.

But I would be completely open to NY, which is now completely under Democratic control, voting in SSM. I concur with Justice Brandies, who famously argued that the states should be laboratories of democracy. Let's let some states accept SSM, with DOMA ensuring that other states do not need to do so, and we can see whether SSM is capable of fitting within the norms of our society. We have little to lose and everything to gain. And if it happens in New York, you won't see me picketing outside of City Hall.

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