Posner shows how attitudes toward homosexuals have changed dramatically during the past half century. This change did not take place in a vacuum because most sexual and family attitudes underwent revolutionary changes during the same time period. Divorced women were outcasts at that earlier time, whereas now divorced women as well as men are considered part of the normal marital landscape. To be an unmarried mother was then considered shameful, whereas although unmarried motherhood is not yet accepted as normal, unmarried mothers are not ostracized. The pill and other improved contraceptives ushered in a sexual revolution that enormously increased sexual activities of unmarried teenagers and adults.
In today’s sexual environment, homosexuality no longer seems exotic or radically unnatural. For this reason, while American anti-discrimination law protects homosexuals from discrimination, acceptance of homosexuals in the workplace and elsewhere would have greatly increased even without legal protection against discrimination. I am not familiar with any studies that assess the causes of the decline in discrimination against homosexuals, but they would show, I believe, that changes in attitudes were more important than legislation.
I am not suggesting that discrimination against homosexuals is gone. The recent resignation of an important member of Governor Romney’s staff was apparently forced by the public disclosure that he was a homosexual. Still, such discrimination has greatly declined, and in an increasing number of activities homosexuals no longer have to hide their sexual orientation, and often openly bring their sexual partners to different public events.
In more and more states, although still a minority of states, homosexuals can now form civil unions that give them most of the rights possessed by heterosexual marriages. Moreover, a growing number of companies give surviving members of homosexual unions the same benefits as they give survivors of heterosexual unions. One natural and desirable change would be to give homosexual civil unions the full set of rights that married couples have. Indeed, one may want to go as far as several Scandinavian countries, and give the same rights that married couples have to couples who have lived together for a number of years, even if they never codified their relationships into marriages or civil unions.
Gay couples would of course welcome such changes, but many of them would object that these changes would not go far enough because they want to call their unions “marriages”. As Posner indicates, many religious Christians, Jews. and Moslems, and some other heterosexuals as well, strongly object to calling homosexual unions “marriages”, although many of these objectors would be willing to give homosexual civil unions most of the rights that married couples have. Yet it is strange that homosexuals can more readily adopt children, or provide the sperm for children that they raise, than they can call themselves “married”.
I have argued several times previously that all “marriages” should be basically contractual arrangements between couples, whether heterosexual or homosexual. These couple-specific contracts would specify the duties of each member, including the conditions needed to terminate their arrangement, so that couples rather than laws and judges would determine the conditions under which they stay together or breakup. These contracts would be tailored to the special needs of each couple, and could even be made compulsory in order to take away any information revealed when a person asks his or her mate for a contract (see my discussion of gay marriage on 8/10/2008).
If such contracted civil unions became the norm, homosexual unions would not be any different than heterosexual unions. If civil unions obtained all the rights of marriage unions, then the issue of gay “marriage” would turn only on language, although it is emotionally charged language on both sides of the debate.
As part of my classical liberal views I believe that gays who form unions and want to call these unions “marriages” should clearly have the right to do so, even though many others object to that description of their unions. However, since law is settling the gay marriage issue, the next best solution is to have these laws determined at the state rather than federal level. When laws are at the state level, homosexuals who want to call their unions marriages can move to states that allow that designation, or they should be able to gain residency in states that allow that description, and afterwards return to their states of more permanent residency.
But as Posner reminded me, this type of temporary move to another state runs into the 1996 Defense of Marriage Act, which says that no state is required to recognize a marriage made in another state if it is not between a man and a woman. The Obama administration indicates that it will not enforce the Act, but it is not clear how they can force states to recognize marriages between gays if they do not want to.
Even if homosexual marriages arranged in other states had to be recognized by all states, this kind of evasion of state laws that do not allow homosexual marriages is not ideal. It is similar to the way couples could divorce prior to the 1970s when they lived in states where divorces were banned or difficult to acquire. Many individuals wanting a divorce went for several weeks to gain residency in states like Nevada that allowed divorce. After gaining their divorces, they then returned home as divorced persons.
To repeat, the ideal solution would make all “marriages” contractual civil unions that would specify the rights of both parties. Every couple, including gay couples, would then be allowed to call their arrangement a marriage if they so desired. Unfortunately, such a radical change in the approach to “marriage” is unlikely to occur in the foreseeable future.