Great article and great conclusion.

In Spain we have not observed any mayor negative consecuence after homo marrige being legalized. It was intereseting to realise how fast the fears went away after implementing the gay marriage.

The only negative consecuence was that some countries put barries to Spanish children adoption (Note: Spain is one of the largest countries in terms of international children adoptions) because they did not want a child to be adopted by a gay/lesbian couple.

I am not sure how the Government dealt with that. The government could restrict the adoption to hetero couples, but that would be discriminatory under our own laws. let adoptions to be cut in origin has also negative consecuences because those children are not matched with the adopting families. I guess the best way to solve it is being transparent to those countries and letting them to discriminate against gay couples, until those countries realize there is no problem indeed. It is unfair with the gay couples, but it's better for the children.

"The people who worry about the effect of gay marriage on the institution of marriage are those most committed to the institution, and they are unlikely to desert it."

I don't see how this addresses their concerns that the marriage rate could fall lower. Generally, those who worry about adverse effects of policy on social cohesion are not worried about themselves, but about what influence those policies will have on others.

The easiest answer to the question why gay people want to get married is to ask why heterosexuals want to get married. The main driving force behind getting married is not economic; it lies within those things you brushed aside: Gay children grow up with the expectation and hopes of getting married and having children just like heterosexual children do.

While in the past, gay people accepted the fact that they were pariahs and second-class citizens without rights, today, they are prepared to fight for first-class citizenship.

Arguments such as the right to sponsor a spouse for immigration, estate benefits, etc. are all used for persuasion, but those are all simply discussion points. Gay people simply want to get married and are willing to press for the right to do so.

BenjaminBarrett, Neither Posner nor Becker is brushing aside any important issues because those issues that you have mentioned have been thoroughly discussed and been acknowledged. What Posner was saying is purely from an economic point of view how gay marriage would change the hetereosexual's ideals of what "marriage". And what they are saying is nill, there won't be any significant economic difference. So purely on the point of being treating everyone equal, gay or straight, everyone should have equal rights.

Judge Posner,

I really enjoyed reading this post. However, this is now at least the second time you've stated that sexual preference is genetic. I would love for you to cite any scientific, peer-reviewed article(s) - in a reputable journal like Science or Nature magazine - that supports your claim. There isn't any. It is much more clear that sexual preference is based on cultural or environmenal factors, not genetic or innate ones.

Genetics Has A Role In Determining Sexual Orientation In Men, Further Evidence

ScienceDaily (Nov. 8, 2007) — Is sexual orientation something people are born with - like the colour of their skin and eyes - or a matter of choice?

Canadian scientists have uncovered new evidence which shows genetics has a role to play in determining whether an individual is homosexual or heterosexual.

The research was conducted by Dr. Sandra Witelson, a neuroscientist in the Michael G. DeGroote School of Medicine at McMaster University, and colleagues at Sunnybrook Health Sciences Centre in Toronto who studied the brains of healthy, right-handed, 18- to 35-year-old homosexual and heterosexual men using structural Magnetic Resonance Imaging (MRI).

About 10 years ago, Witelson and Dr. Cheryl McCormick, then a student of Witelson's, demonstrated there is a higher proportion of left-handers in the homosexual population than in the general population -- a result replicated in subsequent studies which is now accepted as fact.

Handedness is a sign of how the brain is organized to represent different aspects of intelligence. Language, for example, is usually on the left - music on the right.

In other research, Witelson and research associate Debra Kigar, had found that left-handers have a larger region of the posterior corpus callosum -- the thick band of nerve fibres connecting the two hemispheres of the brain -- than right handers.

This raised the hypothesis for the current study -- whether the anatomy of the brain of the sub-group of right-handed homosexual men is similar to that of left-handers.

They found that the posterior part of the corpus callosum is larger in homosexual than heterosexual men.

The size of the corpus callosum is largely inherited suggesting a genetic factor in sexual orientation, said Witelson "Our results do not mean that heredity is destiny but they do indicate that environment is not the only player in the field," she said.

While this is not a litmus test for sexual orientation, Witelson said this finding could prove to be one additional valuable piece of information for physicians and individuals who are trying to determine their sexual orientation. "Sometimes people aren't sure of their sexual orientation."

The researchers also undertook a correlational analysis which included size of the corpus callosum, and test scores scores on language, visual spatial and finger dexterity tests. "By using all these variables, we were able to predict sexual orientation in 95 per cent of the cases," she said.

The research was just reported in the on-line edition of the Archives of Sexual Behaviour prior to the release of its printed version.

McMaster University (2007, November 8). Genetics Has A Role In Determining Sexual Orientation In Men, Further Evidence. ScienceDaily. Retrieved August 10, 2008, from http://www.sciencedaily.com­ /releases/2007/11/071107170741.htm

Homosexual Behavior Largely Shaped By Genetics And Random Environmental Factors

ScienceDaily (June 30, 2008) — Homosexual behaviour is largely shaped by genetics and random environmental factors, according to findings from the world's largest study of twins.
See also:
Health & Medicine

* Sexual Health
* Genes
* Erectile Dysfunction

Mind & Brain

* Gender Difference
* Relationships
* Social Psychology

Reference

* Twin
* Heritability
* Multiple birth
* Menopause

Writing in the scientific journal Archives of Sexual Behavior, researchers from Queen Mary's School of Biological and Chemical Sciences, and Karolinska Institutet in Stockholm report that genetics and environmental factors (which are specific to an individual, and may include biological processes such as different hormone exposure in the womb), are important determinants of homosexual behaviour.

Dr Qazi Rahman, study co-author and a leading scientist on human sexual orientation, explains: "This study puts cold water on any concerns that we are looking for a single 'gay gene' or a single environmental variable which could be used to 'select out' homosexuality - the factors which influence sexual orientation are complex. And we are not simply talking about homosexuality here - heterosexual behaviour is also influenced by a mixture of genetic and environmental factors.

The team led by Dr Niklas Långström at Karolinska Institutet conducted the first truly population-based survey of all adult (20-47 years old) twins in Sweden. Studies of identical twins and non-identical, or fraternal, twins are often used to untangle the genetic and environmental factors responsible for a trait. While identical twins share all of their genes and their entire environment, fraternal twins share only half of their genes and their entire environment. Therefore, greater similarity in a trait between identical twins compared to fraternal twins shows that genetic factors are partly responsible for the trait.

This study looked at 3,826 same-gender twin pairs (7,652 individuals), who were asked about the total numbers of opposite sex and same sex partners they had ever had. The findings showed that 35 per cent of the differences between men in same-sex behaviour (that is, that some men have no same sex partners, and some have one or more) is accounted for by genetics.

Rahman explains: "Overall, genetics accounted for around 35 per cent of the differences between men in homosexual behaviour and other individual-specific environmental factors (that is, not societal attitudes, family or parenting which are shared by twins) accounted for around 64 per cent. In other words, men become gay or straight because of different developmental pathways, not just one pathway."

For women, genetics explained roughly 18 per cent of the variation in same-sex behaviour, non-shared environment roughly 64 per cent and shared factors, or the family environment, explained 16 per cent.

The study shows that genetic influences are important but modest, and that non-shared environmental factors, which may include factors operating during foetal development, dominate. Importantly, heredity had roughly the same influence as shared environmental factors in women, whereas the latter had no impact on sexual behaviour in men.

Dr Rahman adds: "The study is not without its limitations - we used a behavioural measure of sexual orientation which might be ok to use for men (men's psychological orientation, sexual behaviour, and sexual responses are highly related) but less so for women (who show a clearer separation between these elements of sexuality). Despite this, our study provides the most unbiased estimates presented so far of genetic and non-genetic contributions to sexual orientation."

Queen Mary, University of London (2008, June 30). Homosexual Behavior Largely Shaped By Genetics And Random Environmental Factors. ScienceDaily. Retrieved August 10, 2008, from http://www.sciencedaily.com­ /releases/2008/06/080628205430.htm

A most interesting post this week, gentlemen. As I always do, I read all the comments after reading Posner's and Becker's posts, and I was most moved by Benjamin Barrett's. I am a married heterosexual male. I have several family members who are homosexual--a brother in law, sister in law, two first cousins, and one second cousin. (Probably more I don't know about.) My wife and her sister and brother were subject to identical environments while being raised by a traditional, middle class heterosexual couple (with a mother who was a homemaker throughout their childhood). They attended the same church, same schools, lived in the same house, and shared similar cultural experiences. Yet two of the three children are homosexual. The same holds true for my cousins. Consequently, I conclude that Posner is correct that homosexuality is the result of genetic, not environmental or cultural, forces--even though he does not support that conclusion by citing to any scientific or medical journals. I therefore respectively take issue with Alvin, who also, of course, provides no scientific citation to support his opposite conclusion. Getting back to Benjamin, his point about homosexual children growing up with the same hopes and dreams of one day being part of a stable, monogamous relationship is very well taken, and that is likely a more significant factor motivating the homosexual men and women who are rallying for the right to marry than are the factors addressed by either Posner or Becker. Be all that as it may, I come away from this discussion with one primary question in mind, which both Posner and Becker pose--why all the opposition from heterosexuals? Some of it is certainly religiously based (although obviously many opponents simply use that as an excuse or justification for their prejudice)and some of it is nothing more than ignorance or misunderstanding about homosexuality. When Woody Allen said in his brilliant film "Manhattan" that "People are meant to mate for life, like Catholics or pigeons," he made no mention of sexual preference. But American society still makes that distinction when debating the nature of the marital union. All of this is changing, albeit slowly, and as our society becomes more evolved and sophisticated the topic of gay marriage will eventually become what it should be--a nonissue.

Is it too late in our history and our jurisprudence to purge the term "marriage" from our civil (and criminal) statutes and to substitute "civil union" or "domestic partnership" for all couples, heterosexual and homosexual? In my view, the role of government is not to confer "married" status on anyone but rather to determine whether to recognize committed relationships, that is to say, whether to assign rights and obligations enforceable in our courts to couples who agree to accept them. The concept of "marriage," of course, would not disappear from our culture or vernacular but would take its place in the private and religious realms. I believe that much of the emotion inhering in the debate over "gay marriage" would dissipate, at least over time, if we settled on a neutral term such as civil union. Those who, for religious reasons, believe that "marriage" is the union of one man and one woman will remain free to adhere to that view, a view that will likely be reinforced by the religious denomination to which they belong. So, for example, a Roman Catholic, Southern Baptist, or Orthodox Jew who today is against "gay marriage" can say, "Well, a same-sex union is not, in my religion, a marriage and our civil laws do not grant that status to a same-sex couple." A same-sex couple who wish to enter into a committed relationship can enter into a "civil union" as would committed heterosexual couples and may choose to subscribe to a religious denomination that recognizes marriage among same-sex couples. If so, the same-sex couple would, of course, be free to undergo a religious ceremony within that denomination and obtain, for religious purposes, the status of "married" couple. One advantage in my approach is that religious denominations, unlike our states, are not subject to the full faith and credit clause of the U.S. Constitution. I recognize that my approach has some practical problems, not the least of which is what is to be done about everyone who today is recognized under our civil laws as "married." Perhaps we simply could grandfather their status and pick a starting date after which every couple, homosexual or heterosexual, wishing to enter into a committed relationship would enter, for civil law purposes, a civil union. A second problem, of course, is that we are dealing with 50 sovereign states and, short of a constitutional amendment, we cannot impose this approach uniformly on the states. But this does not make matters worse: we are faced today with an emerging patchwork quilt of inconsistent treatment by the states. Another issue is whether the states (and the federal government) would accord equal treatment to civil unions of homosexual and heterosexual couples alike. I would let those issues play out in the states and Congress, subject to overriding constitutional protections, notably the equal protection clause.

Personally I consider that marriage is a word for describe only a heterosexual union. Gay unions, might be named civil unions, but ethimologically marriage is a word reserved for the heterosexual unions.

I also wanted to raise a question about an implicit cost of gay marriage. It's obvious that gay couples can't have children, and if there are more and more gay couples our western societies won't grow as much as posible, I know that they are a minority but maybe with the new progay laws, the gay population may increase (in some countries like Spain this is a reality). Related with the children issue, who will pay the future pensions of the increasing gay population?

I get the points stated by judge Posner. However I see the children issue, like an implied cost to the societies, especially for western societies whose have very low birth rates, and I'm afraid that the gay unions issue won't help at all.

Sorry, for my bad english.

The dismal economic health of the U.S. must be the subtext here - a recent post blogged about leaving your estate to your dog, now the focus is on leaving it all to your samesex partner. Not the grist of liquidity and inelasticity that economists mostly like to dissect. But so,...
Even as an opponent of gay marriage, it is somewhat befuddling why "the law" should care whether persons choose to share ownership of property and live in a familial manner with another person, regardless of gender. If two guys co-own a house and its contents, carpool, split the cooking & cleaning, pax taxes, will everything to the other, etc., - then, why should "the law" or anyone really care? The moral objection stands, but legally and economically who should care?

Just a note to the discussion:

George Washington was married without a marriage license.

Historically, all the states in America had laws outlawing the marriage of blacks and whites. In the mid-1800’s, certain states began allowing interracial marriages or miscegenation as long as those marrying received a license from the state. In other words they had to receive permission to do an act which without such permission would have been illegal.

Blacks Law Dictionary points to this historical fact when it defines "marriage license" as, "A license or permission granted by public authority to persons who intend to intermarry." "Intermarry" is defined in Black’s Law Dictionary as, "Miscegenation; mixed or interracial marriages."

Give the State an inch and they will take a 100 miles. Not long after these licenses were issued, some states began requiring all people who marry to obtain a marriage license. In 1923, the Federal Government established the Uniform Marriage and Marriage License Act (they later established the Uniform Marriage and Divorce Act). By 1929, every state in the Union had adopted marriage license laws.

To same sex couples I would say be careful what you wish for. It all seems to me to be tortuous arguments about a non issue save for governments trying to regulate every aspect of human existence.

A couple of comments:



First, while it's true that few same-sex couples have been married in Massachusetts, this is only a statement about in-state same-sex couples, since Massachusetts has disallowed out-of-state same-sex couples from marrying there based on an old anti-mixed-race-marriage law. I think California has seen a bigger jump in marriage license issuances than Massachusetts did (although I don't have the figures handy right now), probably in part because it's a bigger state and in part because of out-of-state couples marrying there. The out-of-state phenomenon is interesting since most out-of-state couples marrying there will receive absolutely no economic benefit right away (and possibly some legal hassles). As for Massachusetts residents, they may not bother to get married simply because as long as DOMA remains, the benefits are small, as you point out.



Second, I didn't see it mentioned anywhere so I thought I'd bring it up: Seems to me that extending marriage provides at least one benefit to the state, namely that it encourages interdependence between/among private individuals and lessens dependence on the government. If I die before my partner does, he (whose income is lower than mine) will be much better situated to take care of himself financially if he can inherit my estate, and would therefore be unlikely to need any sort of government assistance in his old age. In addition, we help out both our families financially in various ways (e.g. college funds for our nieces/nephews), many of which would be easier and more effective if we were treated as a married couple for federal purposes. Allowing us to do such things more easily enables us to "take care of our own" much better--which is better for us AND better for the government.



Certainly, given a small percentage of the population this latter benefit may be negligible, and I haven't given much thought to how to calculate the value of this benefit.



Anyway, thanks for a very interesting post!

The religion issue is the reason for opposition to Gay Marriage.

Gay marriage combined with anti-discrimination laws create a very effective hammer to deploy against religions that oppose gay sex as sin. Religious organizations that won't employ married gays are discriminating. Religious organizations that won't allow gay married couples to adopt children won't be permitted to facilitate adoptions. The goal is to marginalize churches who teach that gay unions are sinful to the same extent that churches that encourage discrimination based on race are marginalized.

Treating the whole question as a religious freedom issue would clarify it much more than treating it as a discrimination issue. Some churches believe gay unions and behavior are a gift from God just as straight unions are; some churches believe gay unions are sinful. How does the state take a neutral stance without "establishing" one view over the other?

planetralph, I agree that religious beliefs are the basis for lots of people's objections. But I don't see how establishing same-sex marriage as legal prevents anyone from holding any particular belief. Even today many churches and religious organizations maintain prohibitions today on interracial, inter-religious, and inter-ethnic marriages, without any legal action or meaningful threat thereof. Of course, many churches have also removed similar prohibitions, but not because of any legal action. Why would legal same-sex marriage be any different?

The adoption example is a little different, imho, because it involves the state giving the church money to provide a service, so I think it's reasonable for the state to dictate some terms as to how the service is provided. (And I'll admit the religious objection to adoption has always seemed a little disingenuous to me: shouldn't the group oppose placing children with couples of other religions too? Shouldn't it matter more to them which god(s) the parents-to-be teach the child to believe in, rather than what their anatomy or bedroom behavior is? But I guess that's just me...)

Judge Posner cites the Defense of Marriage Act, and the relatively low number of same-sex couples who have wed in Massachusetts (I haven't seen data on that; I'll take his word for it), as limiting the impact of same-sex marriage on society.

I am confident that the Defense of Marriage Act, and other laws limiting LGBT rights regarding marriage and other aspects of life, will eventually be repealed. Polls consistently show that opposition to LGBT rights is stronger among the older age groups. The process of generation should take care of that situation.

I say "eventually" repealed; of course, I can't put a number of "eventually".

If the percentage of same-sex couple taking advantage of newly-won marriage rights is small, perhaps it will take time for the notion of being eligible for marriage to sink in, for some of us.

I'm a rather mature gay man, and I did not grow up thinking I could marry Mr. Right some day. If future generations grow up with that expectation, perhaps they will marry at rates at least as high as those of the heterosexual population.

John,

Thanks for responding to my comment. The courts mandating that same sex marriage must be allowed because denying it violates a "right" to gay marriage is what puts churches in an awkward position. If a legislature just implemented gay marriage without creating a protected class of individuals it wouldn't be a problem. Even if a court ruled that the state had no rational reason to prohibit gay marriage other than a religious reason which violates the establishment clause, it would be fine.

Churches can be marginalized by a right to gay behavior (or a protected class of gay individuals) because a lot of things within the traditional mission of a church like providing adoption services "are a little different" because the state is heavily involved. For example organizations sponsoring universities, hospitals, and housing for the poor need government cooperation and funding to operate on an equal footing with competitors.

I think most of the religious opponents of Gay Marriage want the state on their side in religiously motivated opposition. In the future, they might wish the state was strictly neutral on the religious question, which would mean allowing gay marriage.

All this reminds me of something I heard in movie back when: "Do you like oysters or do you like snails? How about both or perhaps neither? You see, it's really all a matter of taste." Unfortunately, discussions about what people do or don't do with their genitals If find quite tasteless, not too mention sophmoric.

With that said and done, let's move on to union's and marriage. Perhaps, it might be easier to draw the distinction by developing two bodies of Law; Civil and Canon. As for Union's these fall under the Civil category and are regulated by the State. For Marriage this falls under the Canon category and is regulated by the various Churches. Currently the State requires a liscense (it's authority under Civil Law) the Church requires a union before God and assembled (it's authority under Canon Law). Living in Nation with a fundamental separation of Church and State, the Courts have little say in the Church's use and application in Canon Law. Just as the Church has little say in the State's use and application.

So where is the problem?

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Jacques you might have to this the following through a bit more:

"I also wanted to raise a question about an implicit cost of gay marriage. It's obvious that gay couples can't have children, and if there are more and more gay couples our western societies won't grow as much as posible, I know that they are a minority but maybe with the new progay laws, the gay population may increase (in some countries like Spain this is a reality). Related with the children issue, who will pay the future pensions of the increasing gay population?"

.......... First, gays are born to hetro couples, so the relaxation of societal prejudices against them is not likely to create more gays, though there may be a few more who will be liberated from the closet or a life of pretense.

.......Marriage doesn't create more either but probably allows more to give up a single life that is more dangerous and costly to society.

.........As for "as much growth as possible" I don't think many assume that is the ideal today.

........ We all might want to consider who pays for pensions. ARE we counting on a pyramid scheme forever? And IS surplus wealth to care for retirees more likely to come from an ever increasing population or from a smaller and perhaps wealthier population?

Keep in mind that childless gays often have more time to devote to career, pay more taxes (no deductions for children) and by not putting two kids in the school system save their fellow taxpayers some $200,000 (the approx cost of K-12 education for two. It's interesting to consider that were the $200,000, typically invested in the education of the next generation, invested during those same years for retirement would make a very fine retirement fund.)

Would a lower population growth nation be wealthier per capita than a high population growth nation? Not sure, and it would seem a good topic for this board sometime. But I would think the slow growth would be wealthier as the costs for the small, existing population, to keep expanding infrastructure and building schools, homes, buildings for new arrivals is difficult in a growing population. What makes fast growth seem "wealthier" is all the jobs but a real per capita wealth increase is probably not taking place.

Thanks a lot very good

Religious objections to same sex relations in the West were(are) based on the moral foundations of natural law as espoused by Thomas aquinas in the 13th century and to a lesser extent, Thomas More in the 16th century. basically those teachings state that the essential nature of things dictates their moral function. Genitalia are therefore in the first case designed for procreation and a man and a woman form the basic unit for promulgation of the race. Christian societies have adopted that approach because of the close ties between the church and governments. Formerly "religious states are becoming more secular and therefore this discussion. The Greeks and the Romans were tolerant of same sex and bisexual relationships even within the context of marriage. If modern states wish to license "unions" of whatever stripe, so be it. That simply encourages one "view" of society. I am not at all sure that licensing or not makes any economic difference at all. Without it, divorce would be simpler and less expensive and may be less contentious. Children might be better off as well if there weren't the threat of taking half of someone's assets in a divorce.

If the economists want a model to study the economic effects of one state or another, they have a perfect model in some middle eastern countries in which same sex relationships are cause for death by stoning.

Why is the government interested in endorsing a symbol of love at all? They don't ask if people love each other before they get a marriage license. Do they? Shouldn't it be that the only reason the government endorses marriage is because the marriage institution is the best situation to bring future citizens into existence while providing the two different equally important nurturing styles of a mother and a father.

And it can't be that the main reason for homosexuals' support of gay marriage is simply their desire to be treated equally with heterosexuals.

In regards to marriage, Homosexuals and Heterosexuals are treated exactly the same. As a Heterosexual I cannot enter a government endorsed same-sex marriage either. I see no reason for the government to endorse an institution that doesn't have the potential to give us many new citizens.

Oh, and of course, in my comment above, the example of a man discovering his homosexuality after marrying a woman happens the other way as well (woman discovering her homosexuality while married to a man), with the same awful results. I didn't mean to imply that only one of these occurs and not the other. (One might be more common than the other; I have no data on the subject.)

Not mentioned here is the way the "right to marry" has come about in California- the state Supreme Court's discovering a right that in somewhat different form was vetoed by the popularly elected governer several years before. There are no barriers to co-habitation, inheritance, etc, and many private employers already offer benefits to domestic partners, regardless of whether the state recognizes the partnership officially. When my fellow citizens and/or our elected representatives pass legislation conferring gov't-provided benefits on same-sex partners, and our state executives sign those into law, I'll be all for it. Until then, I will oppose forms of marriage sanctioned only by the judicial branch.

http://calmarriagedefense.blogspot.com/

Cal. Law wonderful! What a blueprint and precedent for the Nation and World. And how many "Prop's" have blown up in their faces to date? It ain't called the "land of fruits and nuts" for nothing.

Jack:

First of all thanks for your reply, it's a good and reasoned one.

"Keep in mind that childless gays often have more time to devote to career, pay more taxes (no deductions for children) and by not putting two kids in the school system save their fellow taxpayers some $200,000 (the approx cost of K-12 education for two. It's interesting to consider that were the $200,000, typically invested in the education of the next generation, invested during those same years for retirement would make a very fine retirement fund.)"

This is not completely true. Let me explain. In some countries like Spain, gay couples can adopt children, then we don't save any money in taxes or education, and what is worse, spanish citizens (as me) might have to pay more taxes for expensive public courses for integrate the adopted children from other cultures.

I know that right now we are paying those kind of courses for heterosexual couples adopted child and inmigrant children, although it seems obvious that the unique posibility to a gay couple to have children is adopt them, and therefore this will increase for sure adoptions and its costs to society.

In the end I consider that the social costs of gay unions (if they have the right to adopt) will be higher than social benefits.

Would a lower population growth nation be wealthier per capita than a high population growth nation? Not sure, and it would seem a good topic for this board sometime. But I would think the slow growth would be wealthier as the costs for the small, existing population, to keep expanding infrastructure and building schools, homes, buildings for new arrivals is difficult in a growing population. What makes fast growth seem "wealthier" is all the jobs but a real per capita wealth increase is probably not taking place.

Moving to the second point, I must admit that if gay population can adopt children population will growth. However we should realize that children raised by homosexual couples have more probabilites to be homosexual than children of heterosexual couples, and I don't dare to guess what will be the result of this, but all seems to end in a population reduction in the end.

Your last question is very interesting. As far as I'm able to judge, the key is not a slow or fast population growth, the key is an equilibrated population growth, where people from all ages (young and old) are equilibrated. Besides right now we are seeing that old western societies are unsustainable in economic terms, on the other hand the young booming poor societies of the third world countries are completely failed. But sincerely I don't think that gay unions will contribute to equilibrate the population growth, even if they can adopt children.

Sorry for my english.

The economics of gay marriage are probably similar to the economics of straight marriage: which is to say, a dubious blessing for those who legally enter into it.

The main people who profit from government recognition of marriage are not married people --who could live together (with or without a private contractual arrangement) without being formally married anyway -- but divorce lawyers.

Divorce law acts as an impediment to small-business creation, as I explain below.

Matrimonial law often encourages divorce and rewards the spouse who initiated the divorce, who often has immense tactical advantages by virtue of filing first for divorce. (Most divorces are no-fault divorces sought by one spouse over the other's objections).

Ironically, the states with the weirdest, most lawyer-intensive divorce laws are New York, New Jersey, and Massachusetts — states with lawyer-heavy legislatures. (Given the ideology of my classmates at Harvard Law School, this doesn’t surprise me).

The New Jersey courts recently ordered a man to pay alimony to an ex-wife who killed his child, despite public outcry, in Calbi v. Calbi. Its lawyer-dominated legislature won’t do anything about this, although it regularly rewrites the state’s divorce laws to enrich divorce lawyers and harm husbands and fathers.

The Massachusetts courts typically set child support levels for middle-class families at 25 percent of a father’s gross income (that is, more than a third of his net income) for just one child, even though that vastly exceeds the actual cost of raising a child. Mothers commonly assign a portion of those child support payments to their lawyer in exchange for squeezing the money out of the father, which takes a lot of court motions filed by the mother’s lawyer, since the father often has difficulty paying such a huge amount out of his own pocket, and the threat of being held in contempt of court (and imprisoned) is thus necessary to make him borrow the necessary money from his parents or second wife (note that most divorces are no-fault divorces sought by the wife, not the husband).

The New York courts treat your potential lifelong professional income as “property” that can be awarded immediately on divorce to your ex-spouse, under the theory that the income couldn’t have occurred if you hadn’t acquired a professional license or credential during the marriage, like a law degree, or even a routine real estate or securities license. As New York Court of Appeals Judge Robert S. Smith noted in a recent dissent in Holterman v. Holterman (2004), no other state follows New York’s bizarre rule that income potentially earned from a professional license is marital property even if no business has yet been created as a result of the license.

The law in my home state of Virginia is not as bad as New York, New Jersey, or Massachusetts, but it does have the weirdest case law on alimony in the entire southern United States. In Bristow v. Bristow (1980), the Virginia Supreme Court overturned a lower court’s refusal to award lifetime alimony to a wife who sought a no-fault divorce after just weeks of marriage, ruling that the trial judge could not deny alimony without making extensive findings, even after such a brief marriage, even though state law explicitly lists the duration of a marriage as a factor in whether to award alimony.

The Virginia Supreme Court’s “generosity” with other people’s money was selective and discriminatory. That same year, in Counts v. Counts (1980), the state supreme court barred a man from suing his ex-wife for deliberately maiming him, applying the now-defunct doctrine of “interspousal tort immunity,” even though Virginia circuit judges previously allowed ex-wives to sue their husbands for any domestic violence under an “intentional tort” exception to that immunity. The state supreme court barred the ex-husband’s suit even though it had earlier (rightly) allowed an ex-wife’s estate to sue the ex-husband who murdered her in Korman v. Carpenter (1975). (In response to public outcry, the legislature eventually abolished marital tort immunity).

Why does divorce law matter economically? Because divorce cases outnumber any other category of civil case in state courts (nearly half of the docket of the Virginia Court of Appeals is made up of family-law cases), and redistribute far more money from any other category of case — and because decisions by divorce courts on how to set alimony and child support payments can be potent disincentives to setting up a small business, as I explain below. (By the way, since I’m sure you’re wondering, I am happily married, never-divorced, and have no kids with anyone but my wife).

Divorce courts often do things that are economically inefficient and unfair, like allowing awards of permanent alimony even after very short marriages (Bristow v. Bristow, 1980), then constantly allowing the alimony levels to be reset based on upward changes on the paying spouse’s income (Conway v. Conway, 1990), but not downward changes (Antonelli v. Antonelli, 1991), and allowing child and spousal support levels to be set based not on what the paying spouse actually makes (which would be an easy mechanical calculation that would not require any lawyer time or attorneys’ fees to compute), but rather based on higher, hypothetical (and sometimes arbitrary) estimates of what the paying spouse could make (”imputed income”), as in the cases of Cochran v. Cochran (1992), Antonelli v. Antonelli (1991), and Auman v. Auman (1995).

Setting support levels based on hypothetical rather than actual income results in lots of argument between opposing lawyers about what the hypothetical income should be, generating work for lawyers at the expense of the paying spouse. Similarly, allowing permanent alimony based on very short marriages results in lots of demands for such alimony by wives, and lots of arguments by their lawyers, even though such demands are often rejected anyway by the courts, based on statutory factors other than the length of the marriage.

Virginia’s divorce laws are an impediment to small business creation by divorced people, who comprise more than a million Virginia residents. (Virginia gets a high rating from the Institute for Legal Reform for how fairly it treats businesses, but in reality, it’s really Virginia’s fair-minded juries — not state judges — who make Virginia a fair forum for many business disputes).

As prominent divorce lawyer Richard Crouch once noted, Virginia courts employ a “heads-I-win, tails-you-lose” approach to people who try to start small businesses.

If you leave a steady salaried job in order to try to set up a small business, and it succeeds, increasing your income, you will have your alimony and child support payments increased over their prior levels. (Conway v. Conway, 1990).

But if the business fails (as most small businesses do), resulting in your income falling below its prior levels, the courts will force you to pay alimony and child support as if you were still making the higher income you made at your prior job, rather than at the income you currently make (Antonelli v. Antonelli, 1991).

I have often used gender-specific words such as “father” and “husband” to describe those who pay alimony and child support in my above discussion, even though state laws do not prevent judges from giving a father custody of the children or awarding support to the father. I do that because, in practice, it is usually the husband and father who pays them, and the law is not applied in a gender-neutral fashion, as Virginia attorney Richard Crouch observed in a 1992 article in Family Law News. (For example, the Virginia Court of Appeals denied alimony to a father even though his ex-wife made five times what he did, and he was the caregiver for the couple’s children, and instead ordered him to pay his ex-wife 40 percent of his meager disability pension, in Asgari v. Asgari [2000]. It is hard to imagine a similarly-situated ex-wife not receiving alimony for at least a few years).

Two empirical papers on the economics of sexual preference by Andrew Francis (Emory University, Dept. of Economics)
-------------------------------------------------------------------------------------------

"The Economics of Sexuality: The Effect of HIV/AIDS on Homosexual Behavior in the United States," Journal of Health Economics, 27(3): 675-689

Abstract:I test a simple microeconomic theory of sexuality. I apply the theory to make
predictions about the effect of AIDS on sexuality, since AIDS dramatically altered the cost of
sexual activities. Using a nationally representative dataset on sexuality in the United States, I
estimate the effect of AIDS on male and female homosexual behavior. To do so, I postulate that
people who have a relative with AIDS, on average, have more knowledge, awareness, and fear of
AIDS. Empirically, this variable is uncorrelated with a number of individual background
characteristics. I present evidence that AIDS causes some men to shift from homosexual to
heterosexual behavior, whereas AIDS causes some women to shift from heterosexual to
homosexual behavior. Thus, sexual behavior may respond to incentives. I consider alternative
hypotheses, including biological theories of sexual orientation and stigma-related survey bias,
and argue that they are unlikely to explain the results.

------------------------------------------------------------------------------------------

"Family and Sexual Orientation: The Family-Demographic Correlates of Homosexuality in Men and Women," forthcoming, Journal of Sex Research

Abstract: Using a nationally representative sample of young adults, I identify the family-demographic
correlates of sexual orientation in men and women. Hence, I test the maternal immune
hypothesis, which posits that the only biodemographic correlate of male homosexuality is the
number of older brothers, and there are no biodemographic correlates of female homosexuality.
For men, I find that having one older brother does not raise the likelihood of homosexuality.
Although having multiple older brothers has a positive coefficient, it is not significant. Moreover,
having any older sisters lowers the likelihood of homosexual or bisexual identity. For women, I
find that having an older brother or having any sisters decreases the likelihood of homosexuality.
Family structure, ethnicity, and education are also significantly correlated with male and female
sexual orientation. Therefore, the maternal immune hypothesis cannot explain the entire pattern
of family-demographic correlates. The findings are consistent with either biological or social
theories of sexual orientation.

Readers should check out William Eskridge's very perceptive take on some of Posner's other views on gay issues:
Eskridge, The Economics Epidemic in and AIDS Perspective, in The University of Chicago Law Review, Vol. 61, No. 2 (Spring, 1994), pp. 733-774.

I am totally against same sex marriage and think the economy will be stronger with a marriage between and a man and a woman.

thanks

jay
http://www.storesopenonchristmasday.com

All of this high-minded talk about the sanctity of marriage desperately needs a Marxist perspective. (I mean Groucho, of course.):

"I was married by a judge. I should have asked for a jury."

"Marriage is a noble institution [bursts out laughing]."

"Politics doesn't make strange bedfellows, marriage does."

All of this high-minded talk about the sanctity of marriage desperately needs a Marxist perspective. (I mean Groucho, of course.):

"I was married by a judge. I should have asked for a jury."

"Marriage is a noble institution [bursts out laughing]."

"Politics doesn't make strange bedfellows, marriage does."

Jacques your English is fine and LOTS better than my Espanol!

Jack:

First of all thanks for your reply, it's a good and reasoned one.

"Keep in mind that childless gays often have more time to devote to career, pay more taxes (no deductions for children) and by not putting two kids in the school system save their fellow taxpayers some $200,000 (the approx cost of K-12 education for two. It's interesting to consider that were the $200,000, typically invested in the education of the next generation, invested during those same years for retirement would make a very fine retirement fund.)"

This is not completely true. Let me explain. In some countries like Spain, gay couples can adopt children, then we don't save any money in taxes or education, and what is worse, spanish citizens (as me) might have to pay more taxes for expensive public courses for integrate the adopted children from other cultures.

JJJJJJJJJ I guess every social discussion must have a base line, so my comments would be to compare the age of openness and gay marriage to that of the 50's or so and living "in the closet". So, sure raising kids is raising kids and I can see it may be more of a problem for a gay couple.

But, (to some of the comments of others here) in terms of societal costs and adoption wouldn't our baseline have to be how those kids would have been raised had they not been raised in the gay household? ie......... that one would NOT use a "normal" hetro household for a comparison but perhaps a group home or series of foster homes?

I know that right now we are paying those kind of courses for heterosexual couples adopted child and inmigrant children, although it seems obvious that the unique posibility to a gay couple to have children is adopt them, and therefore this will increase for sure adoptions and its costs to society.

In the end I consider that the social costs of gay unions (if they have the right to adopt) will be higher than social benefits.

jjjjjjjjjj Ha! perhaps you are listening to too many who oppose gay marriage, as we could segment out all deviations from "the norm". Say those of poor education? Those of addictive tendencies? Those ill-suited to earn their own living? (In the US, Ha! while not necessarily their fault a fairly high fraction of households are subsidized in one form or another.)

Would a lower population growth nation be wealthier per capita than a high population growth nation? Not sure, and it would seem a good topic for this board sometime. But I would think the slow growth would be wealthier as the costs for the small, existing population, to keep expanding infrastructure and building schools, homes, buildings for new arrivals is difficult in a growing population. What makes fast growth seem "wealthier" is all the jobs but a real per capita wealth increase is probably not taking place.

Moving to the second point, I must admit that if gay population can adopt children population will growth.

jjjjjjjjjjjj Well the "fertility rate" would be the number born. Are gays in any significant number having women bear extra children for them to adopt? Or adopting from kids who already are born?

However we should realize that children raised by homosexual couples have more probabilites to be homosexual than children of heterosexual couples, and I don't dare to guess what will be the result of this, but all seems to end in a population reduction in the end.

jjjjjjjjj I've seen studies showing that "maleness" or "femaleness" is not a binary situation but something of a gradation. So I suspect that where society is quite accepting of gay behavior that there will be those who had once suppressed their desires coming "out" in some aspect or another. In other words I'd not assume the 50's 60's to be the norm for sexual behavior.

Your last question is very interesting. As far as I'm able to judge, the key is not a slow or fast population growth, the key is an equilibrated population growth, where people from all ages (young and old) are equilibrated.

jjjjjjjj Some of this is how society is set up. Consider: Here in the US Detroit, one the lucrative automotive capital is a disaster; you can buy a home there for a dollar or $100 plus taxes. As robots took over the building of cars those thrown out of of work did not participate in the productivity increases enjoyed by the corporations. So....... you'd see a population in decline and increasing poverty.

JJJJJJJJJ but let's take two islands where everything is cooperatively owned. The one having a lot of growth would have to build a lot of homes, schools, roads and experience greater pressure on their natural resources. The isle that is stable or declining would only have to rebuild their aging structures and spend more time at the beach or playing music.

Besides right now we are seeing that old western societies are unsustainable in economic terms,

jjjjjjjjjjjj Indeed. And IS that because they ARE built on a Ponzi scheme of ever increasing "growth" as we perhaps reach certain natural limits? In the past surely outgrowing one's grazing areas led to war or starvation, so at 6 billion it certainly valid to question how much population growth is advisable. Sans birth control could increasing homosexuality be a part of the reaction to overcrowding? Were gays particularly despised when the Ceasars of the world were trying to build the biggest armies?

on the other hand the young booming poor societies of the third world countries are completely failed.

jjjjjjjjjjjj and ......... hmmmmm, tremendous population growth amidst scarce resources, with too little capital, and could one make a case for corruption being a by-product of a hopelessly impoverished society?

But sincerely I don't think that gay unions will contribute to equilibrate the population growth, even if they can adopt children.

JJJJ I don't know if you mean "maximise" BUT!! maxxing population is not anyone's task these days. If it were we could easily create incentives for a higher fertility rate just as the Chinese have done the reverse. No...... one's gift to the next generation has got to be quality instead of quantity and raising 2.2 well educated kids is a fair task for most these days! Jack

Sorry for my english.

I want to contest the view that homosexuality is not chosen but is an innate characteristic for those who are homosexual as well as open homosexuality not being a threat to (heterosexual) marriage.

First, let's consider the issue of homosexuality being purely determined. According to the research cited by James and saxdrop in their posts above, it is doubtful that homosexuality is a product of genetics or conditions in the womb, although these factors might play a role in the formation of a person's sexuality. Certainly, identical twin studies such as those discussed by James as well as a study by J.M. Bailey and R.C. Pillard show that homosexuality has its roots spread more broadly than simply genetics. Bailey and Pillard in their study, “A genetic study of male sexual orientation,” Archives of General Psychiatry, vol. 48:1089-1096, December 1991 show that only 52% of identical twins are both homosexual. If genetic structure determined sexuality then the percentage of identical twins both being homosexual would have to be 100%. So, other factors must be at work.

Second, there are cases of people deliberately experimenting with homosexuality as well as other deviant sexual practices. Some young women deliberately choose to pursue lesbian relationships while in college and then move to heterosexual relationships later in life in order to avoid pregnancy and other complications while in college. Even when free choice is not so explicit, one can choose to open oneself to certain practices and cultivate a taste for them even if one is not inclined in that direction. Consider Tom Wolfe's analysis of sexuality in *I am Charlotte Simmons* where constant exposure to promiscuous sex opens the title character to sexual behavior she had never engaged in nor would have considered engaging in previously.

Finally, Judge Posner makes a strange distinction between being a homosexual and engaging in homosexual behavior. Would he use the same analysis in discussing adultery? Most every man is potentially an adulterer, but he is not one until he actually commits the sin.

The key issues is this debate are: (1) Do such moves as recognizing homosexual "marriage" that acts to legitimize homosexuality reduce the cost of engaging in deviant forms of sexuality thereby increasing their frequency? (2) Does providing less costly, competing outlets for sex and emotional attachment make the costly and demanding institution of marriage less attractive for people to invest in?

I suspect that the answer to both questions is "Yes."

Round about 60 years ago, I realised that a few of the people I knew were in relationships that were homosexual as well as being stable and happy. Not many years later, I had concluded that a few people might or might not form homosexual relationships. They could and probably would be influenced by social and economic incentives. Whether they chose homosexual or heterosexual relations had and has no effect on the rest of us; there was therefore no ground for social intervention in those choices.

What did affect the rest of us was the stability of the relationship formed; the more stable the better for us all. Since those days we have accepted the social costs of increased divorce incidence, in the name of the gains to individual freedom and self determination.

What worries me about opposition to homosexual marriage and "civil partnership" is that it seems to seek to reduce both the social benefits of greater stability offered by allowing a normal legal recognition of a partnership intended to be permanent, and to deminish the scope for individual self-determination. (e.g. the Defece of Marriage Act is aimed at discouraging social recognition of freely chosen stable partnership.)

I can see that in the days (before my time) when society perceived benefits from a rising population, discouraging non-reproductive behaviour made a sort of sense. However, since sometime in the 1950s, we have realised that the principal problem of population is that we risk too many of us making claims on our planet that it cannot meet. One of the current divisions between the religious establishments and their lay followers is that the lay people have largely taken aboard that fact. Only in those religions where there is close emotional identification between the preacher and the preached to do we find substantial surviving lay support for the traditional teaching. On procreation as the sole aim of married sex, that teaching is largely honoured in the breach. On homosexuality, the change has gone less far.

By your logic, Judge Posner, why not allow polygamous couples to marry? Whenever, I mention this to homosexual couples they are offended. But why? Pologamy was in the bible and many societies have allowed it in the past and some still do. If we no longer wish to define marriage as a union between one man and one woman then why not open it up to multiple groups? I think the reason that gay couples mind this is they discriminate against polygamous couples, while believing there is no difference between a gay and straight union. Untrue. Both gay and polygamous lifestyles are minority lifestyles.

If economic benefits were the primary reason, gay rights advocates wanted marriage for gays then there would be a compromise, i.e., civil unions. Gay friends, I speak to though, find the concept of civil unions to be offensive and even the term gay marriage offensive (they prefer "marriage equality"). In essence the push to marriage is less about economic benefits and more about equality. Unfortunately, biology dictates that natural procreation only happens when there is sex between a man and a woman not between two members of the same sex. Obviously, gay relations are an abnormality. That doesn't mean that those who are born gay should be treated badly or badmouthed as some do but it also doesn't mean that their lifestyle should be considered the same as a heterosexual lifestyle. And unfortunately that and not economic benefits (which could be had tomorrow in most states) is what they want.

Chris; A few of your conclusions do not seem valid:

“A genetic study of male sexual orientation,” Archives of General Psychiatry, vol. 48:1089-1096, December 1991 show that only 52% of identical twins are both homosexual. If genetic structure determined sexuality then the percentage of identical twins both being homosexual would have to be 100%. So, other factors must be at work.

jjjjjjjj No. A 52% correlation is enormous by comparison to a 5% rate in the population as a whole. 1 in 2 compared to 1 in 20??? And, of course other factors are at work; human beings and their relationships are complex and diverse.

"Second, there are cases of people deliberately experimenting with homosexuality as well as other deviant sexual practices. Some young women deliberately choose to pursue lesbian relationships while in college and then move to heterosexual relationships later in life in order to avoid pregnancy and other complications while in college. Even when free choice is not so explicit, one can choose to open oneself to certain practices and cultivate a taste for them even if one is not inclined in that direction. Consider Tom Wolfe's analysis of sexuality in *I am Charlotte Simmons* where constant exposure to promiscuous sex opens the title character to sexual behavior she had never engaged in nor would have considered engaging in previously."

jjjjjjjjjj Tom Wolfe is a story teller and neither he nor I know how prevalent female "gay til grad" behavior is.......... nor whether and how often it continues post graduation. It's "interesting" that college women who are but 25% of the population seem most mentioned in this ............ mythology?

"(1) Do such moves as recognizing homosexual "marriage" that acts to legitimize homosexuality reduce the cost of engaging in deviant forms of sexuality thereby increasing their frequency?

jjjjjjjjjj Who knows? But surely marriage and perhaps the task of child rearing lessens the frequency of sex with different partners.

"(2) Does providing less costly, competing outlets for sex and emotional attachment make the costly and demanding institution of marriage less attractive for people to invest in?"

jjjjjjjjjjj Like what prostitution? I guess it IS true that some very poor societies engage in the sharing of a "wife" when no one man can afford to do so, but I don't think we've become that poor so far.

"Finally, Judge Posner makes a strange distinction between being a homosexual and engaging in homosexual behavior. Would he use the same analysis in discussing adultery? Most every man is potentially an adulterer, but he is not one until he actually commits the sin."

jjjjjjjjjjjjj Surely such a "strange distinction" is the position of many a church and I suppose for the most part we'd like to assume that the celibates of some religions are hetro but who don't practice. BTW when does the "adulterer commit the sin?" Pres Carter "lusting in his heart?" Flirtation and engaging in 'hot chat' at work, party or on the net? The technically "non-sex" of Bill and Monica? Other?

"I want to contest the view that homosexuality is not chosen but is an innate characteristic for those who are homosexual as well as open homosexuality not being a threat to (heterosexual) marriage."

jjjjjjjjjj And, how does any of this "threaten" hetero marriage?

Ian asks:

By your logic, Judge Posner, why not allow polygamous couples to marry?

JJJJJJJ Our society takes almost no position in dating multiple partners, having extra-marital affairs or even mate swapping.

So what is it with all these rules about "marriage?" As we see in the current debate over "gay marriage", marriage is something of a social contract, the essence of which is NON-polygamy, as no one is stopping anyone from having a house or several houses full of roommates, friends or lovers.

Since there are a number of societal benefits to marriage, gays have a solid argument that they are being denied those rights.

On the other hand a society would seem to be on firm ground to decide what sort of arrangements qualify as being approved as marriage. So, perhaps in another age, in which war or pestilence had decimated the male population perhaps that society would be inclined to give their blessings to the multiple partner relationships what would be likely. Or? that prostitution would become legal and accepted? "Polygamy" can take many forms!

Ian:

"Unfortunately, biology dictates that natural procreation only happens when there is sex between a man and a woman not between two members of the same sex. Obviously, gay relations are an abnormality. That doesn't mean that those who are born gay should be treated badly or badmouthed as some do but it also doesn't mean that their lifestyle should be considered the same as a heterosexual lifestyle."

jjjjjjjj Is procreation THE reason for marriage? I'd agree that the institution seems heavily weighted towards providing a nest within which children can grow and have some protection, but would anyone question the right of those with no intent, or perhaps ability, to have children to marry?

Would it help to think of gay marriage in the light of childless marriage or marriages between older divorcees or those remarrying after the death of a spouse?

Jack, I don't claim that procreation is the reason for marriage. I do claim that it is abnormal for gay sex as if everyone was gay there would be no way to procreate naturally.

What Judge Posner gets wrong in my opinion is that gay marriage is not primarily about economics but about equality. If gay marriage was about economic benefits, gay rights organizations would have no problem with civil unions. Instead, gay rights organizations find the idea of civil unions to be offensive. I, on the other hand, will not say that there is no difference between heterosexual and homosexual relationship. Economic benefits as a compromise, yes but recognizing the equality betweeen the two, no.

I believe Judge Posner underestimates other problems caused by gay marriage such as adoption. Gay marriage, in its limited form, mainly affects two consenting adults. Adoption, affects another person. Since the vast majority of people (even those who favor gay marriage) do not consider gay marriage equal to heterosexuals ones and do harbor prejudice against gays (term gay is always used as a put down as others), there becomes a problem when a gay couple as equal rights to adopt with a heterosexual couple as the child who is adopted is going to be made fun of. Unlike Florida, I believe gays should have a right to adopt in limited circumstances but I strongly prefer (all other things being equal) for a heterosexual couple to be given a preference.

BTW, I concede that I just misread Judge Posner's post and he acknowledges that gay marriage is primarily about equality.

Ian.... not to take you to task too often, but.............

Jack, I don't claim that procreation is the reason for marriage. I do claim that it is abnormal for gay sex as if everyone was gay there would be no way to procreate naturally.

JJJJJJJ It's accurate to say gay relationships are "abnormal" as they are not close to being the norm. Having agreed that it is an "abnormal" minority one need not worry about "everyone" being gay. Indeed with ALL gays have been born to hetro couples at an incidence of about 5% one really not worry at all about gays affecting the fertility rate. Since "marriage" is a social construct and only enables a more rational approach to the gays who've always been with us, I see no measurable effect on procreation. However if it did have some slight downward effect, wouldn't that be a good thing?

What Judge Posner gets wrong in my opinion is that gay marriage is not primarily about economics but about equality.

JJJJJJJJJ Well, he opted to look into the economic aspects, but yes I'd agree that being treated equally UNDER THE LAW is what it's about.

If gay marriage was about economic benefits, gay rights organizations would have no problem with civil unions.

JJJJJJ Basically true if the union conveyed all of the rights.

Instead, gay rights organizations find the idea of civil unions to be offensive. I, on the other hand, will not say that there is no difference between heterosexual and homosexual relationship.

JJJJJJJJ Our right to free speech and practice of religion ensures your right and I can't say as I see no difference either. On the other hand I see a LOT of diversity in the world such as marriages between celibates, those of borderline IQ's for living independently, buxom young women and old men with large bank accounts and funny comb overs, and can't help thinking that government would be wise not to look to closely.

Economic benefits as a compromise, yes but recognizing the equality betweeen the two, no.

JJJJ Hmmmm, as the momentum has built to critical speed and there is no turning back, how do you intend to express your position?

"By your logic, Judge Posner, why not allow polygamous couples to marry?"

Two reasons: we're in a primarily Christian nation, and because of basic evolutionary psychology.

The effect of the Christian heritage of the West obviously has a lot to do with how we perceive marriage and relationships in general. The "one man, one woman" rule has been around for a while and we're taught that's the norm, so we reflexively dislike the idea. I imagine at different times in a different society, we'd be okay with it.

Second, and probably more importantly, our basic evolutionary psychology goes into a lot of it. The "one man, one woman" rule is essentially a compromise solution that works rather well in modern society. Evolutionarily, there is no reason why several women shouldn't want to be with one man, as long as he has sufficient resources to take care of them all [and their children, the proximate evolutionary motivator]. But that's pretty dangerous for the men who could actually accomplish this: it would lead to a shortage of women, and the men who end up without them could free up a lot by taking out the men with multiple wives [it happens to alpha male hippos a lot]. "Rationing" partners essentially ensures some level of stability, giving everyone at least a chance at a partner. [Better men still get a shot at better women though.] For the women, marriage to one man is similarly beneficial, as marriage is a credible commitment device by the man to the woman and her children.
[You can flip genders in the above paragraph if you'd like.]

I'd also add that we don't combat polygamy very well. Divorce & remarriage, adultery, dating multiple people, etc, are all ways that people circumvent the rationing of partners. But I'd still say that limiting the legal recognition of marriage to two people is probably a low cost solution to potentially destabilizing problems of legally recognized polygamy.

Becker and Posner addressed this in a post within the last couple of years, if I remember correctly.

PS: Jack, quality posts on this topic.

Since this discussion seems to be revolving about the stasis theme of "rights & equality", does this not also apply to those who prefer BDSM and other "unnatural" forms of sexual expression? The real question that needs to be answered is, "Where does one draw the "line in the sand""?

neilehat

Aren't all forms of sexual expression legal, as long as all participants are there voluntarily?

Thanks for my best chuckle of the afternoon "people marrying their dogs or cars" ... still LOL. Great post. Come on, we cannot prove any of this ... no one can prove whether same sex sexual preference is biological or environmental and really why care? We can care about brutality in the armed forces against persons who acknowledge their sexual preference. We can and should care about how government accurately executes the wishes of the diseased. Changing laws to accommodate a behavior around since the beginning of time (were amoebas subject to same sex attraction?) seems a waste of precious resources. Or, are we maximizing utility when we devote our energy to this task? A better use of time could be the posting of calories next to food names! (See Judge Posner's post a bit back.) I was reprimanded for saying that a child was acting gay, in other words, he was cutting up and off task. The middle school principal didn't even want to talk about the dual use and meaning of words in language ... so no talk about puns or homophones! When divorce is all too common why push for alternative marriage ... or as Roseanne Barr said "if we are so worried about same sex behavior have them get married and then there won't be any sex just like it is for married non same sex persons." Hey JP, your pizza bearing sex tern earned her masters at the London School of Economics. Her thesis was entitled "finding an impartial juror." So much for your snooty reference to her undergraduate institution!

hello,I'm a college student from China,and I'm learning economics. But i don't think there exists any connections between the economics and the gay marrriage. i'm sorry but i haven't met any gay around me, in my country gays are few,and unacceptable. i'm confusing that if i want to study further and be someone famous like you, must i study such thing like gay marriage?
i'm really sorry,because i admire you. i'm not questioning your conclusion ,just can't understand, being a new learner

hello,I'm a college student from China,and I'm learning economics. But i don't think there exists any connections between the economics and the gay marrriage. i'm sorry but i haven't met any gay around me, in my country gays are few,and unacceptable. i'm confusing that if i want to study further and be someone famous like you, must i study such thing like gay marriage?
i'm really sorry,because i admire you. i'm not questioning your conclusion ,just can't understand, being a new learner

HH thanks and likewise. As an aside, relevant to nothing, or perhaps the "concern" that a few gay marriages will lower our fertility rate to the point of population decline, consider two life boats land on two different islands. One has 8 men and 2 women, while the other has 2 men and 8 women. A few years later I'm betting the one with the 8 women has a lot more children.......... or, Ha! some strong female rowers.

Daphne, Welcome! It's good to see that you and others are studying economics. If you're given free reign you'll learn a lot about the flaws of both the US and China. Ha! perhaps you can teach Americans to save more and consume less and we can teach Chinese to live it up a bit by saving less and consuming more.

As for your thoughts about gays they were socially "unacceptable" in the US during many of our lifetimes....... ie before the 70's or so. And, of course, seemingly rare. Odds are the percentage of gays is likely similar in your country as any other though they may be inhibited from acting on their feelings or do so very secretly to avoid being "unacceptable" or heaping shame on themselves and families.

It's unlikely that you'll get an answer from either of the Profs here so I'd offer that the economic aspects of gay life is negligible in either nation whether they openly marry or remain "in the closet" so I doubt you'll have to study it.

Instead you've other huge challenges. One example Chinese will all want to buy cars as they become wealthier, but that era is waning fast, so there is the challenge of providing mobility without going through the whole cars, roads, more cars, more roads cycle as have the "advanced" nations for the last century. Starting from a smaller automotive base at this point would seem to hold some advantages.

Good luck! Econ should be a good field there. Jack

HH, Just as there is evolution, so there is de-evolution. "Are we not men? No, we are amoebas"!
What brought us forth from the pond scum was the ability too constrain our behaivor.

"What brought us forth from the pond scum was the ability too constrain our behaivor. "

Interesting [and wrong] view of evolution, both social and biological. There can't be de-evolution since evolution doesn't have a direction. It just happens. Whoever survives, survives. In fact, the most interesting theory I've heard yet about the origins of homosexuality is that, as population becomes too large and starts draining its environment of necessary resources, homosexuality acts as a constraint on population growth. If this were true [I have no idea] then making homosexual behavior more acceptable would actually be to everyone's benefit. There's no way to judge, ex ante, what constitutes a "decline."
You talk about drawing the line regarding "unnatural" sexual expression. What's unnatural? Clearly people are engaging in it. [As do bonobos, various other primates, and some other mammals.] Also, why conflate what's natural with what's good and moral? Murdering rivals and infanticide are also natural, for us and many other species. Does that make it good? [No.]

All of these fears of a decline remind me of some comedian's response to the "moral crumbling of America":

"Right. Like my generation invented sodomy."

This is a reply to Jack's critique of my post commenting on Judge Posner's views on homosexual marriage. My replies are denoted by "CR" as in "Chris Replies" at the start and end of my current comments.

Jack's post begins here:

Chris; A few of your conclusions do not seem valid:

“A genetic study of male sexual orientation,” Archives of General Psychiatry, vol. 48:1089-1096, December 1991 show that only 52% of identical twins are both homosexual. If genetic structure determined sexuality then the percentage of identical twins both being homosexual would have to be 100%. So, other factors must be at work.

jjjjjjjj No. A 52% correlation is enormous by comparison to a 5% rate in the population as a whole. 1 in 2 compared to 1 in 20??? And, of course other factors are at work; human beings and their relationships are complex and diverse.

CR: My argument is deductively valid. Here is the argument.
Premiss 1: If homosexuality is deterministically caused by genetic factors, then in cases where one identical twin is homosexual, the other should be homosexual in 100% of such cases.
Premiss 2: From empirical studies, in cases where one identical twin is homosexual, the other is not in far less than 100% of such cases.
Therefore: Homosexuality is not deterministically caused by genetic factors.

Please notice that in my original post, I did acknowledge that genetics may play a factor. But from the available evidence so do other factors, which you acknowledge in your reply. So, apparently we agree that Judge Posner, along with many who speak on this issue, greatly overstates the role of genetics in strictly determining one's sexuality. CR

"Second, there are cases of people deliberately experimenting with homosexuality as well as other deviant sexual practices. Some young women deliberately choose to pursue lesbian relationships while in college and then move to heterosexual relationships later in life in order to avoid pregnancy and other complications while in college. Even when free choice is not so explicit, one can choose to open oneself to certain practices and cultivate a taste for them even if one is not inclined in that direction. Consider Tom Wolfe's analysis of sexuality in *I am Charlotte Simmons* where constant exposure to promiscuous sex opens the title character to sexual behavior she had never engaged in nor would have considered engaging in previously."

jjjjjjjjjj Tom Wolfe is a story teller and neither he nor I know how prevalent female "gay til grad" behavior is.......... nor whether and how often it continues post graduation. It's "interesting" that college women who are but 25% of the population seem most mentioned in this ............ mythology?

CR: First, Wolfe is not simply a fiction writer who he makes up his facts. He is a journalist who bases his fictional work on his reporting. There are cases where females have chosen to engage in homosexual acts. Some are college students, others are porn actresses, others are simply curious and experiment. There are males who have also explored homosexual acts. In each case, these folks have chosen to open up to an experience that they did not feel compelled to act on. We can clearly classify these sexual interests as chosen, again refuting the claim that free choice plays no role in sexual expression. CR

"(1) Do such moves as recognizing homosexual "marriage" that acts to legitimize homosexuality reduce the cost of engaging in deviant forms of sexuality thereby increasing their frequency?

jjjjjjjjjj Who knows? But surely marriage and perhaps the task of child rearing lessens the frequency of sex with different partners.

CR: Surely, it does lower the stigma, which lowers cost. As you know from economic theory, if costs are lowered, then the quantity of anything produced and consumed will increase, all other factors constant. Judge Posner noted that the underlying issue in this controversy is this goal of removing the stigma of homosexuality in the general public. Homosexuals want equality with heterosexuals. I believe that goal should be resisted. CR

"(2) Does providing less costly, competing outlets for sex and emotional attachment make the costly and demanding institution of marriage less attractive for people to invest in?"

jjjjjjjjjjj Like what prostitution? I guess it IS true that some very poor societies engage in the sharing of a "wife" when no one man can afford to do so, but I don't think we've become that poor so far.

CR: We are moving in that direction and have been for some time. Marriage and family are currently in jeopardy (declining marriage rate, birth rate, higher divorce rate). I could tie this point in with Professor Becker's overly optimistic discussion of societal decline.
Again, if we just apply economic theory here, we can see the principle very clearly. If we artificially lower the costs of competing products, so to speak, then people will move to them. Forcing people to recognize homosexual marriage, which they clearly do not want to do given referenda on this issue in states around the country, is one means of artificially lowering costs of alternatives to marriage. The same can be said of government subsidies of AIDS research and anti-discrimination laws and policies. Yes, the same can be said for other competitors for traditional marriage, such as couples living together outside of marriage. CR

"Finally, Judge Posner makes a strange distinction between being a homosexual and engaging in homosexual behavior. Would he use the same analysis in discussing adultery? Most every man is potentially an adulterer, but he is not one until he actually commits the sin."

jjjjjjjjjjjjj Surely such a "strange distinction" is the position of many a church and I suppose for the most part we'd like to assume that the celibates of some religions are hetro but who don't practice. BTW when does the "adulterer commit the sin?" Pres Carter "lusting in his heart?" Flirtation and engaging in 'hot chat' at work, party or on the net? The technically "non-sex" of Bill and Monica? Other?

CR: The sin is committed when one commits the sin. Otherwise, if the thought crosses my mind that I would like to rob the bank as I stand in line, then I would be guilty of bank robbery. An action is required to say that I have committed the action. Incidentally, oral sex is sex. The other examples mentioned here are attempts at evasion. If there is not a clear boundary, then one is not justified in claiming that there are no boundaries.
This point and the previous one is why Patrick Devlin argued to retain laws governing sexual mores. Society is an organic whole that is brought into harmony by all sorts of practices that cannot be clearly articulated and defended--until they fail. Michael Polanyi also makes a similar point about tacit knowledge. We know when things have gone too far, but cannot exactly articulate what all that is involved and why. What Judge Posner and Professor Becker do very well is to articulate only a small fraction of what is involved in a matter. The common sense of the average person as they act provides much more information than all of the books and decisions written by these scholars. We can see a similar phenomenon in the price system. Price condenses a lot of complex information that no one mind could grasp in a short time. Culture and tradition act in a way similar to price. As Edmund Burke observed, they transmit the collected experience of generations in a form that we tend to process subconsciously in gut reactions, intuition, and prejudices.
Finally, the comments by Jack in this segment of his critique returns us to the free will issue. Just because one has an urge does not entail that one has to act upon it. Jesus' point on the Sermon on the Mount about evil intentions is not to justify acting on impulse. CR

"I want to contest the view that homosexuality is not chosen but is an innate characteristic for those who are homosexual as well as open homosexuality not being a threat to (heterosexual) marriage."

jjjjjjjjjj And, how does any of this "threaten" hetero marriage

CR: Homosexuality and other deviant forms of sexuality provide alternative sexual and emotional outlets for people. A practice such as civil unions has been taken up by heterosexuals as an alternative to marriage. Civil unions make it less costly to enter and leave the relationship thereby making the more demanding institution of marriage less attractive--in the short-run. The costs from these deviant sexual arrangements are hidden from view in the short-run. The long-run costs explode for all concerned, including neglected children and the public at large who must pay the social welfare costs that should be borne by the family as well as having to interact with those who have not been socialized in a loving home. The majority of men in prison for violent crime come from broken homes. The culture pays by dying as fewer people have children and raise them in a secure, loving environment (see the work by John Bowlby and his successors in Attachment Theory).CR

"If homosexuality is deterministically caused by genetic factors, then in cases where one identical twin is homosexual, the other should be homosexual in 100% of such cases."

Genetic development is ridiculously complex. Even identical genes can result in different people, much like the same recipe creates similar, but not identical cakes every time you use it. The slightest deviation in the chemical reactions and protein productions that genes influence, and you've got different people. Given the strong natural default toward heterosexuality, these deviations can easily create a "low" correlation of 52%. The logical validity of your demand for 100% correlation is only true if the processes are identical, but they chemistry is not as deterministic as we'd sometimes like it to be.

Thanks for your comment, HH. How would you propose testing for genetic determinism so that you do not make such a claim non-falsifiable?

HH, Our world, our lives, our reality, our social structure, etc., etc., etc., is Anthropocentric. No matter how much the biologists, geneticists and the like would simply like to call any and all evolution an open ended and an ongoing process, the reality is, that we (anthropos)are the culmination and pinnacle of evolutionary development. In the new, wonderful, and strange world of Sociobiology, evolution-devolution is a hotly contested issue.

There are many other things that can come into play that can impact and change an organism. Such as the principles of Eugenics and Law. Which is one of the reasons for the proscriptions against "unnatural" sexual activity.

To paraphrase H.G.Wells take on Eugenics and his interpretation in "The Island of Lost Souls":

The speaker: -Cracks the whip- "What is the Law"?

Sayer of the Law: "We are not to walk around on all fours. Are we not men?"

Crowd of animal-men: "Are we not men"?

ETC. ETC.

"Thanks for your comment, HH. How would you propose testing for genetic determinism so that you do not make such a claim non-falsifiable?"

Probably a better question for a biologist. I imagine our testing ability is improving. I don't see why it should be technologically impossible someday to observe the chemical processes that occur as identical twins develop, and to note any differences that may or may not occur. That would probably be helpful: does it matter which protein is synthesized first? What influences the order, if it varies at all? I don't think we're close to knowing everything there is to know, or even enough to settle this debate, but it seems to me the claim is as much or more falsifiable as the opposite: as we know, you can't really prove a negative. Proving there is no genetic component will be at least as hard as proving there is one.

In the short run, I guess the origins of homosexuality do matter, at least to some. The question then simply becomes, what are some people allowed to do if others don't like it? Drink, yes. Do drugs, no. Be gay, we'll see. We can have that debate, too, but it helps to see the two distinct components.

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