When I have discussed gay marriage with some conservatives, they strongly opposed using the word marriage for gays. Yet many of them accepted that gay partners should have the right to sign contracts that determine the inheritance of their property, provide various stipulations about living arrangement, the disposition of assets in case they breakup, and many other conditions. Most of these persons might accept, I believe, that a gay partner can qualify for the social security benefits that spouses get, can be covered under employment medical plans of their partner, and so forth.
But to call these contracts "marriage" makes them see red. It is not that they believe (and I agree with them) that allowing the word marriage will significantly increase the extent of homosexuality. Whether homosexuality is due to genes or environment, allowing the term gay marriage to be used is likely to be a very small factor in determining the number of men and women who become gay.
The objections to gay marriage seem even stranger when one recognizes that gay couples have been allowed for a while to engage in much more significant behavior that has been associated throughout history with heterosexual couples. I am referring to the rights that gay couples already possess to adopt children, or to have one lesbian partner use sperm from a male to become pregnant, bring a fetus to term, and have a baby that the lesbian partners raise together, or the right of one gay male partner to impregnate a woman who bears a child that is raised by the two gay partners.
No one knows yet what is the effect on children of being raised by a gay couple. Yet it is a far more important departure from how children have been raised throughout history, with potentially much greater consequences, than using the word marriage to describe a gay union. I believe, although there is little evidence yet, that the effects on children raised by gay couples will usually be quite negative, in part because fathers and mothers have distinct but important roles, in part because their family structures will differ so greatly from that of their classmates and other peers. Another reason is that gay couples tend to have much less stable relations than heterosexual couples, although the data that demonstrate this is mainly from gay couples without children. To the extent the greater turnover extends to gay couples with children, which I believe it will, then greater turnover adds a further complication and difficulty for the children raised by gay couples.
So given this radical change when children are conceived and raised by gay couples, I find the furor stemming from the desire to use the term "marriage" to describe a union between two gays to be quaint and incomprehensible. But as Posner says there is commotion and anger about gay marriage, both pro and con. and whether justified or not. Given the strength of these convictions, it is better to have the issue of gay marriage resolved by the legislative process of different states rather than by largely arbitrary judicial decisions that may support or oppose the use of the word marriage to describe unions of homosexuals.
Whatever the outcome of such legislation, gay couples should have the right to contracts that specify their desired asset allocation, conditions, if any, under which they can break-up, visitation rights if they have children and break-up, and any other aspects of their relation that they consider relevant. With the enforcement of these contracts, they would have practically all the rights that married heterosexual couples have, even when they cannot call their relation marriage.
Indeed, I have long argued (see, for example, my 1985 Business Week column reprinted in G. S. Becker and G. N. Becker, The Economics of Life) that heterosexual unions should be based on contract rather than judicial decisions or legislative actions. Contracts are more flexible instruments than laws since they allow the terms of a marriage to fit the special needs of particular couples. The courts would become involved only in seeing that the contract is being enforced when one party believes it is not, and in insuring that adequate provision is made for any children if a marriage dissolves.
If married heterosexual couples also had to base their relations mainly on contract, as I continue to advocate, gay couples may not feel strongly that they suffer from discrimination if they cannot be considered legally "married". I agree with Posner that the contractual approach is not likely to be adopted in the foreseeable future. However, it does suggest that gay couples might actually be in a better position than heterosexual couples if gay couples could use contracts to define their rights and obligations, while heterosexual couples were mainly subject to less flexible judicial and legislative law. In fact, courts frequently override the provisions of marital contracts among heterosexuals, which they may be less likely to do when dealing with contracts between gays.