« On Gay Marriage-BECKER | Main | Gay Marriage--Posner's Response to Comments »



Feed You can follow this conversation by subscribing to the comment feed for this post.


The state's involvement in marriage is, I believe, explained by two societal concerns. One, the protection of unequal gender spouses. Second, the promotion and strengthening of "marriage" as the institution of preference for the rearing of children.

Though history has brought us to a point where conventional and gay marriage have converged (gays can have and raise children through adoption or artificial insemination, and the women's rights movement has eliminated some, though not all, of the need to protect women from their spouses), I believe there remain valid reasons for the state to treat traditional marriage preferentially, and to remain involved in the institution.

Though some gays would certainly have and raise children in their marriage, I do not think it is in dispute that they would do so at a much lower rate than heterosexuals. While the state does not withhold benefits or recognition of marriage from marriages without children, if a marriage lasts long enough it usually (almost always) does. The same cannot be said of gay couples. Thus, the principal reason for the state's involvement in marriage, that of the rearing of children, is not served efficiently by conferring benefits to all gay couples.

Further, as Becker touches on, the homosexual marriage may be an inferior substitute for heterosexual marriage. It may even be superior for all I know, but that is an open question, a question which is best resolved through adhering to tradition and caution, rather than plodding forward despite those unanswered questions.

The state, then, can choose to withhold marriage either because it thinks insufficient gays would have and raise children, its primary concern, or because it thinks gay marriage is inferior to traditional marriage. Both of these rationales seem to be unassailable from an honest application of the "rational basis" test.

The second primary concern of the state in marriage is the protection of unequal gender spouses. The state's regulation of marriage was designed in many ways to protect women from easy abandonment, as well as to protect children from the results of that dissolution. The role of caregiver exposes--and continues to do so to more women than men--one to economic hardships. Though the rise of no fault divorce signals a change in this attitude, I do not think many dispute that the state's involvement in marriage acts as an equalizing factor (marriage as a partnership, even if the economic power is asymetrical).

Of course because homosexual marriages are marriages where both partners are of the same sex this concern does not present itself. However, there may be some need to protect the primary caregiver (if there is one), regardless of the sex, for some of the same reasons. Still, this interest is much reduced, especially considering the likely number of gay marriages producing children.


First off, I would like to assert that I am a strong supporter of gay marriege who is not gay or closely related to someone who is. I feel as if I have a personal stake in the issue based on (among other things) my deep moral belief in promoting equality.

I was in Boston when legal gay marriages began, and I honestly felt overjoyed as if a great victory had been won for civil rights and fairness. It was a happy day. I do NOT agree with the statement that supporters are less passionate or personally invested in the issue than opponents. Nor do I think this is an issue that only affects gays positively. Everyone benefits from promoting equal treatment under the law, and the law becomes simpler to administer and understand.

"Most people don't want their children to become homosexuals, and this aversion is a factor in the utility calculus."

Perhaps it is a factor, but the analysis is complicated by the fact that the main reason many people want their kids to be straight is because they fear discrimination and hate crimes will find them if they are gay. This is similar to arguments from 1950 that would say "misegenation is bad because mixed-race kids will be treated poorly". Well, the correct response to that was/is to stop the poor treatment and discrimination and hate crimes.

While "outrage" is potentially a legitimate thing to include in the utilitarian calculus, you must be careful to only include the outrage that is rational. People argue against affirmative action for many reasons but no one would include among them "affirmative action makes klansmen feel bad". Bare desire to harm is not an interest that should ever be counted! (For the same reason we don't let convicted murderers vote)

Changing the terminology (civil unions v. marriage) in order to placate the hard-right is a clear signal to gays that even if the results are practically the same, they still are not fully equal or accepted in the eyes of society. So, like with school segregation, we would be likely to find that 1) the two things are not really practically equal, and 2) that difference, even if metaphorical, "may affect hearts and minds in a way unlikely ever to be undone."


"Both of these rationales seem to be unassailable from an honest application of the "rational basis" test."

ANY rationale is unassailable from an honest application of the "rational basis" test. It is diverting to sit in Con Law class and try to come up with a position that does NOT have at least one ex post "rational" basis. That is why civil rights lawyers argue for a stricter test.

Many of the first marriages in Mass. were between couples who already had children.


Does Corey's passion for equality extend to polygamy and polyamory as well? Not that they're equivalent, but if we're just concerned with equality than why wouldn't they similarly be entitled?

If a legislature adopts same sex marriage, then of course polygamy needn't follow, even though it might make their case more plausible. But if you propose to use the Court, creating legal principles as you go, in this case a right to marriage on one's own terms, then I don't see much of a barrier from applying those principles to polygamy or polyamory. Or does equality just extend as far as you want it, and no further?

I don't doubt that passion is high among some supporters. But experience in countries which have legalized gay marriage shows that interest in the gay community is remarkably low. The quest for gay marriage does yield many tangible benefits, however. It's a short cut to broader acceptance, and if established by the judiciary the precedent creates a solid footing for more protection from discrimination. Gay marriage, then, seems to me an indirect and expedient way to accomplish a greater agenda, an agenda I am in much agreement with, though I cannot condone the means to which that agenda is now advanced.


"But if you propose to use the Court, creating legal principles as you go, in this case a right to marriage on one's own terms, then I don't see much of a barrier from applying those principles to polygamy or polyamory. Or does equality just extend as far as you want it, and no further?"

On one's own terms? What are the "new terms" for marriage that gays have proposed?

Zilch Van Nyet

you say:
-"The issue is more complicated to the extent that some of the outrage is based on fear that making homosexual relationships respectable by permitting homosexual marriage will encourage homosexuality."

You fail to point out that a lot of the concern with the issue of gay marriage lies in the fear of a loss of values.
Marriage, throughout at least 5000 years of history, has always been the basis for the foundation of a family, through the union of a man and a woman. In effect Marriage is not a right, it is an institution.

as you rightly point out further down:
" The most remarkable aspect of the current controversy is that it is mainly about a word "marriage." "

I haven't seen so far any valid justification to the changing of the meaning of this word.

While i appreciate that homosexual couples would want to have the same legal and economic framework applied to their union as that of a heterosexual married couple, i believe there is also a strong drive behind this within the homosexual community to have the rest of society recognise their union as just as "normal" as that of a heterosexual married couple.

It is unfortunate that one should be branded a homophobic bigot for pointing this out in European countries where "gay rights" are on the verge of being recognised.

michael persoon

Ever since I was 14 and read Robert Heinlein's "The Moon is a Harsh Mistress" I have been a fan of contract based marriages. They represent all of the non-religious aspects of marriage and respect personal autonomy. If the variuos multitudes of religions want to create their own "marriages" let them do so and let them bar whomever they want from participating in their sacrament, but the state should let the markets and choice rule.

Yes, I think this should include polygamy and polyamory. If a group of persons want to associate in this way why not? A facial objection that it has historically been used as a means to subjugate women and marry children can be addressed. Look to contract law itself for solutions: persons under 18 can void/cannot enter into contract, contracts entered into under duress are voidable, contracts without consideration are voidable, etc.

No one has raised it, but just to address it now, supporting polygamy does not lead to support of bestiality, etc. Entering a contract requires consent by both parties. Animals are property and cannot consent. You cannot contract with an animal and you cannot marry an animal.

As for the "rational basis test" not being a real test, see Romer v. Evans where the Sup. Ct. struck down a Colorado Law that prevented any Colorado authority from giving protected status to homosexuals. In doing so it held that there was no legitimate state interest, among other things.

Sorry for not performing a marginal-cost/marginal-benefit analysis, but I think that has been addressed and I didn't really feel like going through a list of benefits of extending marriage at this point.

michael persoon

Sorry for the double post.

Just a brief response to the person posting about the legitimate state interest in marriage being the preferred method for child rearing.

An application of that as a rule of law ic clearly underinclusive if directed at gays and not at childless couples or couples past child rearing age. While underinclusiveness is fine if the case is analyzed as a "gay" issue (not a protected class) it can also be framed as an issue of what can (ontologically) constitute a family. Once it is framed as a "family rights" issue then greater constitutional protection is afforded and underinclusiveness is very questionable.

Getting to a family rights issue is a bit recursive and a chicken/egg problem, but I think that is really what it comes down to. Is a family only a "husband" and "wife" with children. Or, is it a group that lives together and functions as a family unit. There is significant case law on the subject matter really beginnign with Moore v. City of East Cleveland that extended "family" to include intergenerational blood relatives. The chicen/egg issue is that these family rights have only been applied to blood/marriage relations, BUT that is precisely what is trying to be achieved int his instance--the right to marry and live as a family.

Another technique to move into greater constitutional protection is to move into "right" to privacy line of thought based on the Griswald line. Marriage is between a "man" and a "woman." Two persons present themselves as a "man" and a "woman" for marriage. Does the state have the right to verify their "man" and "woman" status. It seems rather invasive to have a crotch check on the spot (althoug some states do demand blood tests). Beyond that, what of hermaphrodites? Is there a statutory definition of "man" and "woman." Is it gender based? Is it chromosome based? Is it gonadic based?

Once again, apologies for the double post.


"Does Corey's passion for equality extend to polygamy and polyamory as well? Not that they're equivalent..."

The issue this week is gay marriage, which as you admit, is not equivalent to polygamy.

"Marriage, throughout at least 5000 years of history, has always been the basis for the foundation of a family, through the union of a man and a woman."

Who's history? I assume from your tone that you mean Western Judeo-Christian tradition and that you are not accustomed to thinking of the 5 Billion other people on this planet as having a history.

Posner has already given (in his defense of contract marriage) a nice collection of variants on marriage even within western cultural history.
If you look beyond that scope the variations are even more pronounced.

"I haven't seen so far any valid justification to the changing of the meaning of this word."

And I haven't seen any justification for legislatively imposing your narrow ethno-centric definition on an entire multi-cultural society.
How does gay marriage cheapen your own vows between a man and a woman. If it truly is a union then it shouldn't be vulnerable to erosion based on what third-parties do with their lives.

I submit that often with same-sex marriage, tradition is the mask for a bare desire to punish gay people. Those who would claim otherwise have the burden of proving that either they are harmed in some way or that their "outrage" is rational (which is the same thing).

We have progressed far enough with racial civil rights that no one would step up here and defend discrimination with, "well, Blacks have traditionally been discriminated against for over 500 years." Why then should someone be able to deny status to gay couples just "because that is what we have always done"? It should take far more than that.


Perhaps you undervalue the harm that results from the federal government not recognizing gay marriage. For instance, a close friend of mine, who is pursuing his PhD near Boston, recently married his male partner of many years here in Massachusetts. Neither are United States citizens. While their marriage is recognized by the state, it is not by the federal government and thus the spouse of my friend has no legal right to remain in the country while he continues his PhD studies. Of course, the same does not apply to foreign heterosexual couples. A mere contract will not suffice in addressing this issue.


Very interesting post. I find one major flaw in Posner's analysis: recognizing "outrage" as a legitimate factor in a rational evaluation of the gay marriage issue, or of any issue. Did it matter in the 1960s that some southern whites were "outraged" at the thought of ending segregation? Did "outrage" at the Jews justify Nazi Germany? Does the "outrage" of the Arab street justify suicide bombing? It's about time that we stopped talking about "outrage" and started making rational arguments. Otherwise, the world will devolve into different radical groups sharing mutual "outrage" but no rational thought. Politics will become a shouting match rather than a discussion. I already see this happening far too often. Just watch "Hardball." :-)

Posner's analysis would make bigotry a legitimate reason to legalize discrimination, and an especially strong one as well, since bigots often experience a great amount of "outrage" against those whom they deem inferior.

I am waiting for a true victim of "gay marriage" to step forward. When one does, he or she should testify before Congress the next time an anti-gay marriage amendment is considered. If this individual is something less than a bigot, I will be surprised.

All that aside, Posner's suggestion of "contract marriage" is a good one. There is a good argument that the state should not be involved in voluntary personal relationships between consenting adults.


Richard Posner said:

Why so much passion is expended over the word "marriage" baffles me. After all, even today, and even more so if civil unions were officially recognized, homosexual couples can call themselves "married" if they want to.

Imagine that due to longstanding tradition (although not uniform throughout all times and all cultures) marriage was commonly accepted as the union of one man and one woman as long as neither the man or woman were named "Richard".

Imagine that this practice was embedded in both culture and law, implicitly through common law and explicitly through statutes at the state and federal level. Imagine that people named Richard were free to contract and could call themselves "married", although none of the existing cultural and legal standards would recognize such a marriage. Do you think that the Richards of the world would be passionately seeking a change in the culture and law, or would they calmly and rationally pursue civil union statutes which would give them the same rights as married couples without actually being married?

Univeral contract-based marriage would be wonderful but it remains as much a pipe dream as most other libertarian visions of utopia. In the real world there is an abundance of state authority that distinguishes between the married and the unmarried and it is not going away anytime soon. Those distinctions don't simply take the form of tax benefits and adoption rights; the state has reserved for itself the ability to declare a marriage "real" and accordingly worthy of respect and deference. If the state were completely out of the marriage business then fighting passionately over terminology (marriage vs. civil unions) would indeed be pointless. But as long as the state asserts that some people can be married and others cannot, those who are told they cannot marry will fight to control the state's authority and end their exclusion.

Which seems like the least baffling choice: fighting for Richard marriage, fighting for Richard civil unions, or fighting to overthrow the state's monopoly on defining marriage?

Peter Pearson

Many of us watched the Civil Rights Acts of the 1960's, which ostensibly just called for fair treatment for blacks, metamorphose into a system of hiring quotas, admissions preferences, and racial privileges. Against that background, and given that many of the benefits of marriage can be achieved by gender-neutral contracts, one might reasonably worry that the benefits of same-sex marriage (capturing the remaining benefits of marriage) warrant the risk of laying the government's coercive powers at the disposal of yet another pressure group.

On the bright side, a relaxation of the legal definition of marriage might finally rid us of the inheritance tax: the old and infirm will simply marry their heirs and apply the unlimited spousal deduction.


Judge Posner writes:

Philosophers like John Stuart Mill would not consider that such outrage should figure in the social-welfare calculus; Mill famously argued in On Liberty that an individual has no valid interest in the activities of other people that don't affect him except psychologically. (Mill had in mind the indignation felt by English people at Mormon polygamy occurring thousands of miles away in Utah.) But that is not a good economic argument because there is no difference from an economic standpoint between physical and emotional harm; either one lowers the utility of the harmed person.

I think a justification for Mill's view is that, on issues like gay marriage, the offended person, not the offender, is the least-cost avoider of the psychological harm. All he has to do is quit being so offended.

John Kelsey

The political argument seems to largely revolve around the word "marriage," as both Posner and Becker pointed out. I think this is an example of both sides wanting to use the law as a tool to advertise their preferred values--whether that's "homosexuality is unacceptable in our society" or "homosexuality is acceptable in our society." In either case, I think it's a poor use of the law, which has enough trouble handling contract enforcement and keeping the peace.

It seems to me that the contract-marriage idea makes a lot of sense in light of what happened to marriage over the last 50 years or so. The terms under which marriages were made changed, as divorces became much easier to get. That was a change in the understood meaning of millions of agreements between individuals, carried out by legislators and courts. That shouldn't be easy to do. If the country moves right over the next 50 years, we could easily see gay marriages un-recognized by state legislatures, or precedent and law set up to treat them very differently than other marriages in divorce court, say. Doing marriage by contract seems like it would make this harder to do.



Homosexual is an outdated and oppressive term. It is a relic of a period when gays were treated as diseased. Most of us now prefer gay or lesbian (although both have their problems). Judge Posner, we would appreciate you refering to it as "gay marriage." Thanks.


Posner (and Becker) make a lot of interesting and insightful points. As usual, I will focus on what I disagree with. :)...there is no difference from an economic standpoint between physical and emotional harm; either one lowers the utility of the harmed person. ... It is not clear what weight, if any, society should give to opinions formed on the basis of scientific error.Emotional harm differs from physical harm in that emotional harm depends on the harmed person's opinions. In the case of emotional harm, the economic utility of the harmed person can be raised (or lowered) by the harmed person changing their opinions. This may be the most economically efficient solution for opinions that are formed on the basis of scientific error. ...although the margin in the polls by which homosexual marriage is opposed is not great, the opponents tend to feel more strongly than the supporters.While I don't have strong feelings about homosexual marriage specifically, the broader question of how to balance freedom and conformity (when should I do what I want, when should I do what other people want and when should other people do what I want) is something I feel very strongly about. Even for opponents of homosexual marriage, the real issue is unlikely to be homosexual marriage specifically. I suspect that for the majority of both supporters and opponents, the real issue is about how to balance balance freedom and conformity. Specifically, it is about the role of moral beliefs in balancing freedom and conformity. One of the founding principles of the United States was separation of church and state which is very much about the role of moral beliefs in balancing freedom and conformity. Based on the history of the United States, people on both sides would be expected to feel very strongly about the underlying issues of homosexual marriage. Try, for example, suggesting to an average American that they should have exactly as much freedom as Muslim moral beliefs allow. :)


"As for the "rational basis test" not being a real test, see Romer v. Evans where the Sup. Ct. struck down a Colorado Law that prevented any Colorado authority from giving protected status to homosexuals. In doing so it held that there was no legitimate state interest, among other things."

You don't actually believe they were applying the rational basis test as defined by the Court, do you?


What is primarily at stake with gay marriage is the implicit societal endorsement of homosexuality. Gay marriage promotes the idea that homosexuality is normal and proper, rather than abnormal and shameful.

For conservative religious people who regard homosexuality as sinful, gay marriage is essentially the government proclaiming that their religion is false. The use of the word "marriage" adds to the sacrilege, but it's not the central issue.


Given the number of likely gay marriages and the number of people claiming offense at them, there is not a one-to-one ratio of offendor to offended.If avoidance by the offended person means letting go of (or not forming) an opinion that is based of scientific error then there might be a long term economic benefit (rather than cost) for avoidance in addition to the economic benefits to the offendor.


"For conservative religious people who regard homosexuality as sinful, gay marriage is essentially the government proclaiming that their religion is false."

And for liberal religious people, banning gay marriage is an establishment of the views of conservative religious people. It is just as morally objectionable to me to have the government legislate your views as the opposite would be for you.

So what is the solution? Treat everyone the same legally and Congress shall make no law respecting an establishment of religion. If your only objections to gay marriage are religious then you have a hard sell in a country with so much support for separation of church and state.

If anyone requires the government to punish gay people in order to feel strong in their faith, then I would suggest they reflect on the nature of their faith.

Con (law) Man

Judge Posner notes, but quickly passes over, the rather interesting question of how much weight we ought to give to antigay animus that is based on the scientifically demonstrable error that homosexuality is chose. Judge Posner suggests that we may not want to pay much attention to opinions that are scientifically unfounded.

Suppose, however, as seems to be true, that antigay animus is based in large measure on religious intuitions about how God wants us to treat homosexuals. Is a religious intuition supported by no evidence, or at least only scriptural evidence, less or more deserving of attention than a merely scientifically ignorant opinion? Is it that disutility based on religious intuitions has social value in a way that disutility based on a factual error does not?


What I think we've got here is a jurisdictional problem. Such that, where does the authority and power of the Civil Law begin and end, and where does the authority and power of the Ecclesiastical Law begin and end. Clearly, the Civil Law is ascendant when it comes to civil unions and as it has stood since time immemorial, Ecclesiastical when it comes to marriage.

It appears that a well connected (or perhaps powerful voting block) wishes to obscure this long standing differentiation, because it wants to have its way and is concerned that the various religious organisations and councils will not appease them (and as some would say, their vices)on religious and moral grounds. So they are trying to pressure the Civil authorities to suppress the Religious authorities by using the power of the Courts to circumvent what has been the Law.

This raises an important fundamental issue for the body politic, which is, do we still believe in the separation of powers between Church and State or should we violate this principle and allow the civil authority and power over the various religious groups; simply to appease a small but vocal special interest group?


"However, they are probably mistaken in thinking that homosexuality is chosen; there is compelling evidence that sexual orientation is an innate (probably genetic) rather than acquired characteristic. It is not clear what weight, if any, society should give to opinions formed on the basis of scientific error."

First, those that still maintain that a person CHOOSEs to feel or not feel sexually attracted to the opposite sex, the same sex, or both sexes are working with a different set of premises than those of us who understand that sexual orientation is not chosen.

Second, how would the policy discussion change if sexual orientation WAS a product of choice? (Here, the response likely involves something like "society's interest in promoting reproduction and the family unit" -- well, ok, but then why don't we make it a lot more difficult to have children, get a divorce, etc.?)

I think there is often a lot of confusion about sexual orientation and sexual behavior. It seems to me that all sexual behovior is a product of choice and therefore can be regulated (that is, it is possible to regulate it). But sexual orientation is not a behavior, so you cannot regulate it -- you can't regulate away homosexuality. This point might seem elementary on this discussion board, yet I think much of the public still feels that society can regulate away homosexuality. That's absurd.

John Kelsey

Is there strong evidence for the nature vs nurture side of homosexuality? It's certainly intuitive that it would be mostly nature (do you remember any choice about being sexually/romantically attracted to anyone?), but it's not clear that this is strong evidence, since people often aren't all that good at picking apart the reasons for why they like or dislike things.

I thought this was still hotly debated, as most genetics/personal choice/morality/society overlaps are.


The comments to this entry are closed.

Become a Fan

May 2014

Sun Mon Tue Wed Thu Fri Sat
        1 2 3
4 5 6 7 8 9 10
11 12 13 14 15 16 17
18 19 20 21 22 23 24
25 26 27 28 29 30 31