The Law and Economics of Gay Marriage—Posner

The surprising decision of Spain, once the most Catholic country in Europe (except for Ireland), to recognize gay marriage—a decision that comes in the wake of a similar decision by Canada and, of course, by the Supreme Judicial Court of Massachusetts—presents an appropriate occasion on which to consider what light economic analysis might shed on the issue. Economics focuses on the consequences of social action. One clear negative consequence is the outrage felt by opponents of gay marriage and of homosexual rights in general. Philosophers like John Stuart Mill would not consider that such outrage should figure in the social-welfare calculus; Mill famously argued in On Liberty that an individual has no valid interest in the activities of other people that don't affect him except psychologically. (Mill had in mind the indignation felt by English people at Mormon polygamy occurring thousands of miles away in Utah.) But that is not a good economic argument because there is no difference from an economic standpoint between physical and emotional harm; either one lowers the utility of the harmed person. The issue is more complicated to the extent that some of the outrage is based on fear that making homosexual relationships respectable by permitting homosexual marriage will encourage homosexuality. Most people don't want their children to become homosexuals, and this aversion is a factor in the utility calculus. However, they are probably mistaken in thinking that homosexuality is chosen; there is compelling evidence that sexual orientation is an innate (probably genetic) rather than acquired characteristic. It is not clear what weight, if any, society should give to opinions formed on the basis of scientific error. Obviously there are benefits to homosexual couples from marriage—otherwise there would be no pressure to extend marriage rights to them. (Whether, given the alternative of civil unions, there are incremental benefits to marriage is a separate question that I discuss later.) Some of these benefits appear to impose no significant costs on others and thus are clear social gains: an example is that a married person does not have to have a will in order to bequeath his property at death to his spouse. Unless "outrage" costs are high, such benefits would, in an economic analysis, warrant recognizing gay marriage. However, other benefits to married couples impose costs on third parties; an example is social security spousal and survivor benefits, to the extent they are not (and usually they are not) fully financed by the social security taxes paid by the person bestowing or obtaining the benefits. But such redistributive effects are equally imposed by heterosexual marriage, so they don't make a strong argument against homosexual marriage, especially since homosexual marriages are unlikely to be a significant fraction of all marriages. Only 2 to 3 percent of the population is homosexual and, judging from experience thus far, lesbians, who are far outnumbered by male homosexuals, seem much more interested in homosexual marriage than men are. Although I am not able to verify this figure, I believe that about two-thirds of gay marriages are lesbian, even though only about a third of homosexuals are lesbian. If this pattern persists, the total number of gay marriages will probably be very small relative to the number of heterosexual marriages. The more fundamental economic question is why marriage is a legal status. One can imagine an approach whereby marriage would be a purely religious or ceremonial status having no legal consequences at all, so that couples, married or not, who wanted their relationship legally defined would make contracts on whatever terms they preferred. There could be five-year marriages, "open" marriages, marriages that could be dissolved at will (like employment at will), marriages that couldn't be dissolved at all, and so forth, and alimony and property settlement would be freely negotiable as well. The analogy would be to partnership law, which allows the partners to define the terms of their relationship, including the terms of dissolution. As with all contracts, the law would impose limits to protect third-party interests, notably those of children. If outrage costs are set to one side, a purely contractual approach to (or replacement for) marriage makes sense from an economic standpoint because it would permit people to define their legal relationships in accordance with their particular preferences and needs. For those who did not want to bother to negotiate a "marriage" contract, the law could provide a default, one-size-fits-all solution—the conventional marital status embodied in state marriage statutes. That would reduce transaction costs for those people content with the standard "form contract." The law would, however, have to decide what contractual relationships qualified for social security and other public benefits to which spouses are entitled under current law. The contract approach to marriage may seem radical, but that is because of a lack of historical perspective. Marriage has changed enormously over the course of history. In many cultures, it has signified the purchase of a woman by a man's family. In other cultures, instead of brideprice, there is dowry (an approximation to the purchase price for a husband, paid by the wife's family.). Arranged marriages, often of children, have been common. Divorce at will by the man only has been common; likewise, of course, polygamous marriage (including in the Old Testament). Trial marriages, defeasible if the wife fails to become pregnant, were a Scandinavian institution. Shia law recognizes temporary marriages. "Companionate" marriage, in which husband and wife are expected to be best friends, is a modern institution. In short, marriage has changed greatly in history, and it would be foolish to think that the current marriage conventions will remain fixed for all time. With the rise of no-fault divorce, the enforcement of prenuptial agreements, and the decline of alimony, marriage is evolving in the direction of contract. That evolution has contributed to the movement for gay marriage. For, as marriage becomes more like a contract, it becomes harder to see why homosexuals—who as I say are free to form other contracts—should be excluded from its benefits. Under a contractual approach, gay marriage as an issue would disappear, because the state would not be being asked to "recognize" gay marriage and by doing so offend people who are distressed by homosexuality. No one thinks that homosexuals should be forbidden to make contracts, and marriage would be just a contract so far as any legal consequences were concerned. It would be left to individual religious sects to decide whether to permit church marriages of homosexuals. The most remarkable aspect of the current controversy is that it is mainly about a word—"marriage." The reason is that although most Americans still oppose civil unions (among American states, only Vermont and Connecticut authorize civil unions, though New Jersey authorizes a related arrangement called domestic partnership; a number of foreign nations now authorize civil unions, some under the name "registered partnership"), I imagine that if the homosexual-rights lobby dropped marriage from its agenda and put all its effort into lobbying for civil unions, many states would soon recognize them, and eventually the federal government would follow suit and grant parties to such unions the legal status of spouses for purposes of social security and other federal laws; when that happened, there would be no practical difference between civil unions and marriage. Why so much passion is expended over the word "marriage" baffles me. After all, even today, and even more so if civil unions were officially recognized, homosexual couples can call themselves "married" if they want to. And this brings to the fore the disadvantage of treating marriage as a legal status. Were it just a contract, government would have no role in deciding what word the parties could use to describe the relationship created by it. Although personally I would not be upset if Illinois (where I live) or any other state decided to recognize homosexual marriage, I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion; and here it should be noted that although the margin in the polls by which homosexual marriage is opposed is not great, the opponents tend to feel more strongly than the supporters. Most supporters of homosexual marriage, apart from homosexuals themselves (not all of whom favor homosexual marriage, however), and some (not all) of their parents, support it out of a belief in tolerance rather than because of a strong personal stake, whereas many of the opponents are passionately opposed, some because they fear homosexual recruitment, contagion, etc., but more I think because they believe that official recognition of homosexual marriage would disvalue their own, heterosexual marriages. Of course it is often the duty of courts to buck public opinion; many constitutional rights are designed for the protection of minorities. But when, as in this case, there is no strong basis in the text or accepted meaning of the Constitution for the recognition of a new right, and that recognition would cause a powerful public backlash against the courts, the counsel of prudence is to withhold recognition. Doing so would have the additional advantage of allowing a period of social experimentation from which we might learn more about the consequences of homosexual marriage. One state, Massachusetts, already recognizes homosexual marriage, as do a small but growing number of foreign nations (Spain, Canada, Belgium, and the Netherlands). Perhaps without judicial intervention gay marriage will in the relatively near future sweep the world—and if not it may be for reasons that reveal unexpected wisdom in the passionate public opposition to the measure.

Comments

[John Kelsey]

How close can a gay couple get to getting the same sort of financial and legal arrangements as an officially married couple? I gather there are some areas (like medical decisionmaking and writing wills) where a gay couple can, by spending a bunch of extra money and time, get the same outcome they'd get by default by being formally married. And that there are other areas (like tax and immigration treatment) where they can't get the same outcome at any price.

It seems like putting some numbers, however imperfect, on these added difficulties would make it easier to get some sense of how much well being in the world is lost by not allowing gay marriage. (I have no idea how to put numbers on supposed social costs of benefits of gay marriage, but that would also obviously be helpful, if anyone could work it out.)

--John

[Wes]

Nobody is talking about "limiting choices" on this thread.I thought that was exactly what was being discussed: should gay people be allowed to choose whether or not to get married or should society limit that choice and not allow them to get married?We are asking the simple question: may the state promote traditional marriage and not gay marriage?Actually, I thought the question was: may the state allow traditional marriage and not gay marriage?My original point was that in a free society "allowing" is not the same as "promoting". Just because a free society allows people to own guns it does not mean that the society is promoting gun ownership or that it wants people to own guns or that it holds the moral belief that gun ownership is good for the owner of the gun.In fact, even if a free society held the moral belief that gun ownership (or gay marriage or whatever) was bad for the person doing it, a free society should still allow it as long as it didn't limit the choices of other people. Private ownership of nuclear weapons could, for example, be outlawed because of the likelihood that it would limit other people's choice to stay alive but not because of the moral belief that it was bad for the owner of the nuclear weapon.

[Palooka]

"I thought that was exactly what was being discussed: should gay people be allowed to choose whether or not to get married or should society limit that choice and not allow them to get married?"

Nobody is saying gays can't get "married," they are saying that they are not married under the law. That is, with the official sanction and support of the state. Gays are free to couple and get "married," and even have and raise children. Does the state have to recognize that "marriage" as the equivalent of traditional marriage? No.

All the state currently does is provide official recognition and support (along with enforcing certain responsibilities) to traditional marriage. That does not prevent someone from coupling with someone of the same sex and raising a family. The state's policy in regards to marriage robs no one of a choice. If the state provides tax subsidies to hybrid engines, does that amount to a denial of "choice" for those who wish to purchase traditional combustion engines? No, the subsidy or incentive seeks to promote one behavior and not the other, but the choices nevertheless remain. The question is: Is there a rational reason for this distinction? The answer, of course, is yes.

[Palooka]

Milk For Free raises the bigot card in his first post on this thread. But is quick to dismiss the polygamy and polyamory argument, because of their "complicating" factors. It's curious to see "tolerance" only extends so far. If it's complicated, then tolerance goes out the window.

All the passion wrapped up in the rhetoric of fundamental rights and irratioanal discrimination falls kind of flat when polygamy is brought up and the retreat begins. Moral disapprobation is irrelevant, right? Yada, yada, yada. Then the issue of polygamy is raised, and because polygamy would introduce "complicating" factors polygamists are not entitled to their equality or their civil rights. That's a powerful argument. Good to see how genuine your commitment to equality is.

If heterosexuality cannot be preferred to homosexuality, then I fail to see why monogamy can be preferred to polygamy. In fact, if one buys into the argument that denying gay marriage equality is an unconstitutional "establishment of religion" (Corey introduced this delightful trope earlier) then I do not see the monopoly monogamous marriage now enjoys would be constitutional (a Judeo-Christian heritage if there ever was one). Disregarding moral sentiments as a basis of law is a slippery slope, and it's good to know even the most ardent defenders of radical equality shudder to think where the logic leads--madness.

I did not mean to equate pedophilia and homosexuality, and I understand many try to do so. I was merely undermining the commonly held belief that if a trait is genetically determined that it should be viewed with some sympathy. It is possible, even likely, that any number of very reprehensible traits are in part influenced by genetic factors. So that is not an adequate explanation to why homosexuality deserves treatment similar to race--which as I have stated, I am sympathetic to, as I believe much discrimination against homosexuals is irrational. But it isn't quite the same as race. It's more similar to gender, and as such discrimination in some circumstances is permissable.

[TRC]

Palooka:

First, a hat tip to you; you always have sensible comments on this blog.

In a very odd sense, gay marriage is already permissible: A gay man and a lesbian can marry in any of the 50 states. (I know, I know: This seems odd and improbable - but read on.)

My chief concern about gay marriage is not GAY marriage per se; my chief concern is SAME SEX marriage. Gay marriage will never be legalized, because, as practical matter, the cost of verifying that two adults are gay is extremely high. Compared to gay marriage, same-sex marriage has been legalized - and could be legalized in other states - in part because there is no verification cost. (Obviously, if opposite-sex heterosexual marriage and same-sex heterosexual marriage are permissible, the only cost is verifying that the two individuals are consenting adults.)

In this context, my chief concern - and one that I believe has not been expressed in this blog (there are close to 60 entries on the subject!) - is that if same-sex marriage were legalized, over time SAME-SEX HETEROSEXUAL couples who were primarily interested in securing the benefits of marriage, would begin to avail themselves of those benefits by marrying. As a practical matter, it would be impossible for the law to discriminate between same-sex heterosexual couples and same-sex gay couples. Consequently, the definition of marriage would be expanded to include not only gay adult couples but also same-sex heterosexual couples.

Pragmatists might say, ?So what if this happened?? Or, ?This might even good thing.? I wonder, however, whether broadening the definition of marriage would increase marriage rates or decrease marriage rates. (Marriage may attain some of its status because of its exclusiveness; some people don?t want to join a club that everyone can belong to.) Furthermore, if broadening the definition of marriage rates decreased marriage rates, this could have adverse effects on children, who, if the experiment in Scandinavia is any indication, would probably not benefit from such an expansion. See, e.g., Kurtz?s article in the Weekly Standard:

http://www.weeklystandard.com/Content/Public/Articles/000/000/003/660zypwj.asp

Keep on blogging (I read you and the others - even Corey. I just can?t post too often - my job and wife don?t permit it.)

[MikeTheBear]

Marriage came about largely for economic reasons, not moral ones. In the Europe of the Middle Ages, when land was a precious resource, passing down rights to property was a big deal. Marriage was based less on love than it was on marrying the right person. Ever hear of arranged marriages? The idea was to marry the ìrightî person and have heirs who would then inherit title to land so that property could be kept in the family. Thatís why the concept of legitimate and illegitimate children became important. Illegitimate children had no inheritance rights. That was because the landed gentry didnít want a bunch of illegitimate kids getting rights to their land, which was reserved to the proper children of a ìproperî marriage. (Today, the distinction between legitimate and illegitimate children is no longer relevant, at least not in Colorado.) Religions became involved in marriage mainly because of enforcement. Itís much easier to keep someone in an arranged marriage where there is probably little affection between the spouses by telling them that they will be punished for eternity if they divorce or cheat on their spouse. From this we have our notions of traditional marriage as being a loving bond between two persons of the opposite sex.

When people say they favor civil unions over marriage for gay couples, my question, from a purely legal perspective, is ìWhatís the difference?î There is really very little that the law can beyond enforcing the economic purposes of marriage. For instance, the law canít force someone to love and honor their spouse. The law provides rights in property on divorce and on the death of one spouse. Thatís really about it. Marriage, from a legal standpoint, is really nothing more than a ìcivil unionî for mutual economic benefit. Now, before anyone says I donít value my own marriage, thatís far from the truth. I value my marriage much more than a mere economic benefit. However, this is my own definition of marriage; what the law says about my or anyone elseís marriage is irrelevant to how I perceive my relationship with my wife.

[Milk for Free]

"All the passion wrapped up in the rhetoric of fundamental rights and irratioanal discrimination falls kind of flat when polygamy is brought up and the retreat begins."

Marriage is a partnership, not a corporation. As you may have noticed if you read Becker's post, I am not satisfied with being able to finangle a nubuck marriage (in addition to the inadequacy of these arrangements with regard to tax laws, spousal privilege, etc). My point about polygamy is that it shouldn't factor into the discussion because polygamy complicates exactly those matters marriage is supposed to make simple. What happens to a hospitalized man with two wives, whose wives disagree on treatment? One could designate a wife for making important decisions, but that would destroy the equality marriage is supposed to be based upon. Preferring gay marriage to gay contractual entanglements, however, is a matter of preferring being able to gain admission to a hospital room by saying "I'm his husband," instead of trying to find legal papers in a safe-deposit box.

Perhaps some discrimination on gender is permissible. But it can't defensibly be arbitrary, and if you concede that childrearing isn't really an issue (as I assume you have, as you haven't mentioned it in your reply), I see no other reason to oppose gay marriage. Most people, of course, cite religion, and that's what it boils down to, in the end. I can only say that it never ceases to amaze me that people who won't trust a two-day old newspaper defend arbitrary beliefs citing a book that hasn't been updated in 2,000 years.

[Wes]

Nobody is saying gays can't get "married," they are saying that they are not married under the law. That is, with the official sanction and support of the state. Gays are free to couple and get "married," and even have and raise children. Does the state have to recognize that "marriage" as the equivalent of traditional marriage? No.OK. So how about...Nobody is saying gays can't "live in Utah," they are saying that they are not living in Utah under the law. That is, with the official sanction and support of the state. Gays are free to move to Utah and "live in Utah," and even buy houses. Does the state have to recognize that "living in Utah" as the equivalent of traditional living in Utah? No.If the state provides tax subsidies to hybrid engines, does that amount to a denial of "choice" for those who wish to purchase traditional combustion engines?If the state refused to acknowledge hybrids and would not provide license plates and registration for them then that would very much be a denial of choice.What I am trying to get at is that a free society does not try to influence a person's choice on the basis of moral beliefs about whether the choice is good for that person. A free society would not provide incentives for hybrid ownership solely on the basis of a moral belief that hybrid owners were more likely to get into heaven.A free society is, however, certainly free to influence a person's choice on the basis of providing other people with more of what they want (taking a least cost avoider analysis into account, of course). It is entirely valid to say "I oppose legalizing gay marriage because that would be bad for me." but it is definitely not valid to say "I oppose legalizing gay marriage because that would create an opportunities for people to choose things that would be bad for them."

[JohnFreeburne]

"equality and gay-marriage are not logically related"

They can be logically related in any number of ways including the one that your statement itself suggests, namely "equality is not identical to gay-marriage." Non-identity is a logical relation. I know it's a silly point, but so was that particular appeal to logic.

"They can" is not THEY MUST. Perhaps, since you purport to be a logician you should learn to read carefully and quote honestly. What I actually wrote is: "Equality simply doesn't mandate that "gay marriage" must exist. The two aren't even logically related."

Meaning there is no necessary connection. "They can" does not assert a necessary connection. Modality is not necessity. (Even worse, necessity need not be identity -- I never suggested that it must.) Furthermore, your sloppy misquote of the relevant sentences is taken out of the larger context of the parapgraphs in which I intentionally placed them: talking about politics. Neutral rules in politics have do not mandate the passage of gay marriage law. Your interpretation of what I meant is not nitpicky at all; it is just wrong. It's a bad interpretation. Period. That you didn't even quote me accurately reflects the weakness of your argument and the dishonesty of its maker.

"I'm not sure why a belief in equality necessarily leads to any political outcome or political regime."

Imagine that 97% of Americans posess the legal right to play basketball. 3% of Americans do not posess this right because of a status (being gay) that does not correlate to "ability to play basketball." An egalitarian worldview would call this unfair, and would ask the regime to justify the discriminatory restriction."

Again, here is the same inability to read on display. I clearly wrote "necessarily". Equality does not necessarily mandate gay marriage legislation. One CAN ask for it, a legislature COULD pass it, but there is no reason that it MUST. Egalitarianism per se is not even a reason, because one could presume that all human beings have equal capacity to achieve political outcomes, which is an egalitarian view that leads to the conclusion that the status quo is just fine. Even egalitarianism does not necessarily lead to gay marriage.

Which, again, is not to say I am against the passage of such laws. But equality or egalitarianism do not necessarily get you there; Corey and his ilk make appeals to fairness and equality knowing full well those catch-phrases are a cover for what they want. They want gay marriage regardless of whether it is justified by appeals to fairness or equality. That is a purely contingent (modal) political stance totally unfettered from any larger objective truth.

It's about as justifiable as misquoting someone and then attacking the straw-man you made out of the misquote: and it's about as logical as a fallacy.

[Corey]

Hey, people here on this blog are the ones that took to calling me a "radical egalitarian". (Also a communist, and lots of other contradictory things.) Its good that I have a strong self-image.

"one could presume that all human beings have equal capacity to achieve political outcomes, which is an egalitarian view that leads to the conclusion that the status quo is just fine."

Yeah, and if one also assumed that people are incapable of communicating with each other and forming coalitions to oppress minority views, then one would have a typical broke-down socio-political model to write a neo-liberal thesis on. Papers that justify the status quo are very popular with the rich, you might even get a fellowship.

[Briant]

"A free society is, however, certainly free to influence a person's choice on the basis of providing other people with more of what they want. It is entirely valid to say 'I oppose legalizing gay marriage because that would be bad for me.' but it is definitely not valid to say 'I oppose legalizing gay marriage because that would create an opportunities for people to choose things that would be bad for them.'"

Our society is not ìfree.î The Constitution was not free. Freedom is not free. We are not free to do whatever we want. There are limits. On a daily basis government prevents people from choosing. True, we have protections and freedoms given to us from the Constitution, but we also have laws that are based on morals.

Arguments that suggest that most objections to SSM are based on religious standards fail to see that these standards are also moral, not just religious. If ìreligiousî laws were deemed unconstitutional because of the ìseparation of church and stateî argument, then a terrorist could claim that the dominant Judeo-Christian dogma is oppressive, unfair, and unconstitutional (ìThou shalt not kill comes from the Bible, but my religion says I must fight a Holy War.î). If the terrorist example is too extreme, then you can insert drug dealer, thief, polygamist, take your pick.

My point here is that if citizens choose (as evidenced through various referenda last year) that their country should not recognize SSM, then that is the law, and we all have to keep it barring any unconstitutionality determined by the courts. Therefore, in order for SSM to be ìlegal,î there 1) must be a constitutional argument (which there may be) or 2) legislation/judicial precedence that would make SSM recognized by law.

[N.E.Hatfield]

Briant, I have a tendency to agree with you. All this talk of "rights" and "freedoms" as if they were unfettered and unrestrained absolutes. When the reality is more in the realm of privleges and liberties. It's all in the words and their power to cloud people's minds.

I think what's needed is some good Analytical philosophers to get it all straightened out.

[sam]

Apropos the implications of sexuality being the product of genetic predisposition: to explain is not to justify.

If the genetically determined constitiution of a person's amygdala predisposes that person to violent tendencies, I would NEVER say that that person's violent actions were justified on the basis of his biological predisposition. (That logic would be catastrophic for our society, as it is composed of homo sapiens sapiens, a species pre-programmed with all sorts of reprehensible urges, desires, etc.)

However, the fact that homosexuality is NOT a choice can and should be brought to bear on this discussion precisely because so many people say that they object to same sex marriage because it "encourages" people to become homosexuals. If that claim is baseless (and I believe it is), then that argument seems to be no good.

(Of course, what these people might mean is that same sex marriage would encourage homosexual behavior -- which it probably would, at least in a more public way -- and here the dynamic gets trickier, because in most places homosexual behavior is NOT illegal. But it seems to me that behavior is easier to legislate upon than the sexuality of individuals.)

Also, if homosexuality is a choice, then is there any distinction between a heterosexual and a homosexual? Only on the basis of behavior. That is not how I think of the terms. I think someone can be homosexual or heterosexual without having sex with anyone or anything. It's the person't orientation, i.e., desire, that matters. Maybe I am all wrong here, but I think these terms are used and understood differently and ambiguously all the time.

[MikeTheBear]

Here is my ìfree marketî approach to fostering good marriages. Hold on to your seats, because my argument will lead to the seemingly contrary conclusion that allowing gay marriage will actually strengthen heterosexual marriages. Here goes. The justification for banning gay marriage is to enforce societyís values that homosexuality is wrong. This societal pressure will discourage the homosexual lifestyle and, presumably, cause homosexuals to ìswitch sidesî and adopt a heterosexual lifestyle. Obviously, this wonít work in all cases, but letís assume it will work in some. Is this necessarily a good idea? Suppose an individual who, because of this societal pressure, decided not to pursue a homosexual lifestyle and instead entered into a heterosexual marriage. Will this person be happy with his or her choice? And if not, will this person be a good spouse and parent? Depressed individuals tend to negatively affect those around them. My guess is that such individuals will not make good spouses and parents and such marriages will more than likely end in divorce ñ exactly the opposite of societyís goal of fostering good marriages. To put this in less politically correct terms, if a person is unsure of whether they are gay or straight, let that person be gay if he or she so chooses because it is not necessarily in societyís best interest to ìforceî them to become straight.

I can hear the responses now ñ if thatís the case, then why donít we allow pedophiles to prey on children? This comes down to consent. Children cannot, nor should they be allowed to, consent to a sexual relationship with adults. Pedophilia poses a direct harm to children. Homosexuals, on the other hand, are adults capable of consenting. The only harm that homosexuals cause to society, as Judge Posner mentioned, is ìoutrage.î The question comes down to what is the cost of this outrage.

[michael persoon]

You ranted,

"They can" is not THEY MUST. Perhaps, since you purport to be a logician you should learn to read carefully and quote honestly. What I actually wrote is: "Equality simply doesn't mandate that "gay marriage" must exist. The two aren't even logically related."

...Furthermore, your sloppy misquote of the relevant sentences is taken out of the larger context of the parapgraphs in which I intentionally placed them: talking about politics.... Your interpretation of what I meant is not nitpicky at all; it is just wrong. It's a bad interpretation. Period. That you didn't even quote me accurately reflects the weakness of your argument and the dishonesty of its maker.

End Rant

Wow...I have never been so attacked for what was primarily a joke of a post pointing out the ineffectiveness of an appeal to pure logic in a substantive debate. But since I was attacked, I really should respond.

There is a necessary logical relation between the terms. "The two aren't even logically related." Assuming "the two" refers "gay marriage" and "equality," then your statement is premised on the existence of both things (if it is to have any truth value). If they are not logically related, then they are not identical since identity is a logical relation. Therefore "gay marriage" [is not identical to] "equality". This is not just possible, but a "necessary" relation if your statement is true. There are other ways to go about this, none of which gives anything more than purely "logical" answers that have no relevance to the real world. That was the point--logic itself shows nothing except relations between defined terms. Where reality checks in is in how persons agree to the defined terms. Obviously your conception of what "equality" is differs from other posters. THAT is where the disagreement is. NOT in whether or not it is "logically" related to gay marriage.

There was no intentional misquote or hidden agenda to set up a "straw man" argument. I like to think that I am honest and am sorry if you felt I misrepresented or harmed you through my "sloppy misquote."

PS--I never claimed ot be nor represented myself as a logician, a person who should have a doctoral and ahve defended a thesis whose subject matter was in the field of logic.

[Wes]

...we also have laws that are based on morals. ... Thou shalt not kill comes from the Bible...Murder is illegal because people dislike being killed. It would be illegal regardless of whether the bible was in favor of it or against it (unless the bible somehow made everyone want to be killed)....but my religion says I must fight a Holy War.It's totally fine if someone decides to fight a holy war as long as it doesn't affect other people. Once it starts affecting other people then it is a case of forcing moral beliefs on other people which is in conflict with separation of church and state.My point here is that if citizens choose (as evidenced through various referenda last year) that their country should not recognize SSM, then that is the law...Even though modern politicians use "freedom" and "democracy" interchangeably as meaningless feel-good words, they are actually two very different things (not opposites - just orthogonal). Democracy is relevant when people have to make a single decision (everyone has to have the same president, for example). Freedom is relevant when each person can make their own decision (not everyone has to eat the same breakfast cereal, for example).The idea underlying separation of church and state is that moral beliefs are like breakfast cereal: it is not necessary or desirable to (democratically) make a single decision that applies to everyone.That is not to say that someone should not be required to accommodate other people's preferences even when those preferences are based primarily on moral beliefs (being required to wear clothes in public, for example) but with respect to the current topic it should be noted that naked people are (in many contexts - eg. the subway but not the beach) harder to ignore than gay marriage.

[CTW]

I second TRC's economic perspective on SSM, at least to the extent that it addresses the broad issue of the economic benefits attendant to marriage.

at first, I was opposed to SSM because of concerns about extension of economic benefits that are attendant to marriage but (IMO) of questionable equity to a wider class of recipients. my naive hope was that a rational debate on SSM would include these economic issues. unfortunately, it became clear immediately that the dominant basis of objection to SSM was merely disdain for gays and that no rational discussion of any aspect of it was going to occur, at least not in the public arena.

in any case, the contract approach to "marriage" seems potentially to address not only "legitimate" benefits like property rights and presumably visitation rights but also "questionable" benefits such as employer-subsidized family medical plans and dependent tax deductions that perhaps should be - and at least in theory, would be - eliminated rather than propagated if the state's involvement in marriage were terminated. so, I'd love to see public discussion of it but am not holding my breath.

[RWS]

There has been a lot of discussion above, including replies to my post. I just want to reiterate my belief that there is definitely a difference between moral condemnation and considering something unhealthy or unwise. Hurting another person, in my view, is morally wrong. Eating fast food all the time, or getting a big tattoo, or sleeping in late is not morally blameworthy, to me, but rather more along the lines of unhealthy or something that is preferably avoided. Homosexuality, given all the evidence I have seen from scientific articles to history (see Greeks and Romans) to observation, is that homosexuality has at least a strong, if not quite dominant, environmental and choice-driven causal factor, so I would tend to put it in the latter category but not view it with total indifference.

Also, I want to reiterate the point that those that use Biblical references generally have very practical and experience-based approaches to the subject, but they use the Bible as the justification for their view for complicated intellectual reasons. It would be a mistake, however, to view them as generally intellectually simplistic or not cognizant of the real-world debate in the question.

[TRC]

CTW:

Thanks for the kind words, and I agree with your sentiment. RWS has an excellent economic analysis of the issue on Becker's blog at the link below:

http://www.becker-posner-blog.com/archives/2005/07/on_gay_marriage.html#c062182

In response to RWS's analysis, I expand on and clarify my position at the link below:

http://www.becker-posner-blog.com/archives/2005/07/on_gay_marriage.html#c062148

Best,
TRC

[TRC]

CTW:

I elaborate on my position at the following link (not at the one reported immediately above):

http://www.becker-posner-blog.com/archives/2005/07/on_gay_marriage.html#c062194

Mea cupla

[Palooka]

"However, the fact that homosexuality is NOT a choice can and should be brought to bear on this discussion precisely because so many people say that they object to same sex marriage because it "encourages" people to become homosexuals. If that claim is baseless (and I believe it is), then that argument seems to be no good."

The reason I oppose gay marriage (though I only really strongly oppose judicially mandated gay marriage), at this time, is that I do not think it's a particularly good fit for the institution as it exists today. The primary reason for this is I believe the state's principal reason for involvement, regulation, and support of marriage is its role in child rearing. The fact that the state does not require children to award marriage status means little when heterosexual marriage usually and naturally produces children. Homosexual marriage, in these crucial respects, both in its tendency to have and raise children (low), and in its efficacy as a rearing structure, is quite different than traditional marriage.

Even if one assumes, like you do, that there will be no effect either on the number of homosexual or the amount of homosexuality activity, one is still left with the result of encouraging homosexual households to have and raise children. Whether that is a beneficial to society is now an open question.

Further, though the assumption you attack is not a basis for any of my beliefs, I believe you are mistaken.

First, you tellingly neglect any mention of bisexuals. Bisexuals are the perfect margin case. It's not inconveivable that legalizing gay marriage would channel some bisexuals into same-sex marriage. That's probably pretty certain. Whether that number would be significant, I don't know.

Moreover, any increase in tolerance, as gay marriage definitely embodies, would seem to increase the amount of homosexual sex (though this is different than increasing the number of homosexuals). As societal acceptance increases, gays can look for sex in places they formerly were reluctant to (in the work place, for example). There may be an offsetting effect, however. May be gay promiscuity would drop in the presence of greater tolerance because it would be easier and less costly to maintain long-term relationships (especially true for those homosexuals who now wish to keep their sexuality hidden from their employer and even their family). It is difficult to tell which effect would dominate, but I can see it going either way.

You also seem to be caught up into the idea of pretending there are discrete categories of sexuality--homosexual and heterosexual--and you completely avoid the category of bisexual. I think this is probably mistaken. Most here are probably familiar with the Kinsey scale, which rates sexuality along a continuum.

All one has to do to realize the effect of society on sexuality is look at the Greek and Roman examples, where homosexual acts were common even among what today would be regarded as strong heterosexuals. It's not a far out scenario, either, to believe increased tolerance or permissiveness in general would lead to some moderate and strong heterosexuals "experimenting" with homosexuality. The best case of this today exist in prisons, where self-described heterosexuals nevertheless engage in homosexual sex as a substitute.

In short, gay marriage (and increased permissiveness in general) could likely increase the number of homosexuals and the amount of homosexual sex.

[Palooka]

TRC's suggestion that heterosexuals and homosexuals will use SSM as a vehicle to the benefits of marriage is something I have thought about. Tax breaks, where they exist, is one such scenario but I think the greatest driver if this sort of behavior would be gaining access to a friend's health insurance. Though it is undeniably understandable, it is definitely the sort of "diluting" effect Kurtz and others discuss.

[sam]

Palooka -

First, I am not advocating that anyone, no matter their orientation, have sex at work, esp. not at my workplace.

Second, What exactly is your problem with increased homosexual behavior?

Third, I am familiar with the Kinsey Scale only from the movie. I do not know if it is still considered scientifically accurate.

Fourth, You are correct, I have not discussed the position of bisexuals.

To me, two adults ought to be able to get married -- it is an equal rights issue. If some bisexuals choose to go the same sex marriage route, then so be it. I don't see any problem with this. There is still no net gain or loss to any "group," i.e., don't worry, no one has changed sides, no heterosexual switches to homosexual.

Lastly, I don't think you read all of my last post. For me, there is a difference between sexuality and sexual behavior.

[Anti-Theocrat]

The fundamental issue here is laid out well by Judge Posner:

"The issue is more complicated to the extent that some of the outrage is based on fear that making homosexual relationships respectable by permitting homosexual marriage will encourage homosexuality. ... It is not clear what weight, if any, society should give to opinions formed on the basis of scientific error."

Those who most fervently oppose gay marriage oppose civil unions. They have attempted to amend the Constitution to exclude any gay rights or legal recognition in all 50 states. This position stems from a personal religious belief, namely that homosexual behavior is a sin, it is chosen behavior, and no one is homosexual.

This is why when one reads Scalia's opinion in Lawrence he refers only to homosexual behavior - he just can't accept that someone might be born gay and that is an integral and inseparable part of their humanity.

This is not to say that a ban on gay marriage might not make sense from some other perspective. Becker's point on child rearing is correct - it is unclear what negative effects are suffered when children don't have a traditional family. The problem with this line of analysis is it just doesn't match reality. No one needs a license to be a parent, the government only intervenes in the grossest cases of poor parenting, and there is no prohibition against being a single parent. If the government really tried to regulate child bearing and rearing, a totalitarian state would be inevitable.

In the Lawrence case Texas tried to make public health arguments to ban gay sodomy (really the same arguments can be made about gay adoption, marriage, etc.) but these arguments simply don't meet rational basis scrutiny. Just as in the Loving v. Virginia case, all kinds of arguments are made about a deeply held moral belief that just don't stand up against reality.

I would amend Posner's paragraph to say no weight should be given to irrational outrage. The best solution is as described; get government out of marriage regulation altogether.

[Jeff]

Many here have commented that we should change the wording of marriage to civil union, or that govt should get out of the marriage business altogether. I disagree with gay marriage, and disagree that the government should get out of the marriage business. Governments are organized to benefit society as a whole, not individual segments of that society. Individual rights are certainly important. Freedom of expression is certainly important. However, society has a duty to impose a compass on its members. Gays should not be persecuted, but they are a small minority in our society. The state has a right to protect its people from deviant practices that could cause future harm. Gays marrying and raising children in our society will do more future harm than any future benefits that may be derived from it. Just because we feel emotionally good that gays love each other and are willing to make a public committment to that love doesn't mean society should sanction it as a construct of that society.