Should Gay Marriages be Allowed? Becker

Many gay couples want to be allowed to call their union "marriage" mainly because they believe this will give their relation a degree of acceptance that is closer to that given to heterosexual unions. They also believe that marriage connotes a more stable long-term relation, although gay unions have a well-known tendency to dissolve at even higher rates than heterosexual marriages, and that very likely would continue even if their unions are called marriages. The narrowly economic gains from being married are a decidedly minor part of the desire by gays to have their matches called marriages. For the reasons just stated, one can understand why many gay couples want to be allowed to marry. What I find difficult to understand is why there is so much opposition; for example, I doubt if a referendum legalizing gay marriage would pass in many states. As Posner indicates, allowing gay couples to marry will have little effect on either the attraction or stability of marriages between heterosexuals. I believe this opposition reflects hostility to gays and their unions that can no longer be expressed in other more traditional forms, such as calling them names or harassing them. As a result, the marriage issue has become a rallying point that allows hostility to gays to be hidden behind other reasons. To be sure, it is a strange way to express that hostility in light of other options that have been allowed to gays that are far more radical. I am mainly thinking of the recent practices of allowing gay couples, married or not, to adopt children, allowing lesbian couples to bear children through sperm supplied by sperm banks, or allowing male gay couples to use their sperm to impregnate women who bear children that a gay couple raises. Although rather few gay couples have children as yet, that practice is a far bigger venture into the unknown than is permitting gay couples to be married. It is still too early to have reliable evidence on the effects on children of being raised by gay parents, but I suspect these effects will be more negative than positive, in part because even married gay couples are likely to dissolve their match at relatively high rates. I also find it strange that gays having and raising children arouses much less opposition than does polygamy, where several women voluntarily agree to be married to the same man (a far rarer form of polygamy is when several men agree to be married to the same woman). Why should society care if two (or more) women are willing to be married to the same man, especially in an environment where men and women rather than their parents generally make their choices about who to marry? We trust women to make many other decisions that seem strange to others-such as when a twenty year old woman marries a 65 year old man- so what logical grounds are there to disallow several woman voluntarily accepting marriage to the same man? Moreover, since polygamy would increase the demand for women as marital partners-however slightly since polygamy would be very uncommon- the argument that it is a form of exploitation of women is also without foundation. I have proposed for many years that marriage should be basically a private contract between the men and women involved-they can add a religious ceremony if they so desire. There is no reason why the standard contract should be supplied by the government rather than by market forces. An explicit contract would be compulsory, even if it only has a minimum number of stipulations and rules. Most persons marrying might use such a standard contract, but others would have special provisions, such as the allocation of assets in event of dissolution, responsibilities for housework and other activities, and obligations toward children. The state would set minimum obligations toward children since society has an interest in how children are treated. Such contracts would be equally available to homosexuals, as they are already in some countries and many states of the United States. These contracts would reduce the role of governments in marital arrangements where they have no special competence or interests- again, aside from the protection of children. It would also eliminate the gay marriage issue since gays would have access to contracts as fully as heterosexuals. It would also allow couples to stipulate in writing any special arrangements they want to see enforced in their unions. Such contracts are unlikely to replace government determined marital terms in the foreseeable future. So until then, it would be wise to expand the concept of marriage to include homosexual relations, and perhaps polygamy as well.

Comments

[Justin Evan Smith]

I could not agree more.

[Justin Evan Smith]

I could not agree more.

[Daniel Gomez]

I agree with the idea of making marriage a private contract and not a civil status. I do see, however, many reasons for gays and lesbians to actively search for equal marriage rights, in whatever form they exist for their heterosexual counterparts; being an unmarried gay couple imposes a lot of extra costs that heterosexuals do not face. Gay couples not allowed to wed do not enjoy the privileges of married couples, they are not recognized as a couple for tax purposes, for child bearing purposes, for adoption purposes, in case one partner becomes ill or dies. Clearly gays and lesbians are substantially better-off with marriage than without.

On the issue of children and stability of gay and lesbian marriages, the scarce evidence suggests that gay and lesbian couples are no different than their heterosexual counterparts and maybe even more stable (see this article in the NYT:http://www.nytimes.com/2008/06/10/health/10well.html?_r=1&oref=slogin)
Furthermore, the possibility of entering a recognized marriage as a gay couples could precisely contribute to eliminate any truth (if truth there is) of gay couples being somehow less committed than straight ones.

On the child issues, I really do not know of any compelling evidence to suggest that being raised by gay parents could be detrimental to children. In what sense would the negative outweigh the positive as you suggest? You do not elaborate on this point and it would be interesting to know what exactly are these positives and negatives.

Besides these two points, I fully agree with the message: marriage should encompass gay and straight unions.

[Thomas B.]

"[T]he argument that [polygamy] is a form of exploitation of women is... without foundation."

It seems plausible that you could have a non-exploitative polygamist relationship, but polygamy seems to thrive in misogynistic social structures.

Maybe the link is illusory, or maybe coincidental, but it's obvious the association wasn't simply invented whole cloth.

[gary47290]

The reasons to "legalization" of polygamy is a red herring in the arguments against marriage equality for same-sex couples is because

( 1 ) there is not demand for it. Until a vocal responsible movement arises, it's not relevant. Who is raising the concerns? Anti-Gay conservatives, and fringe fundies in the mountain west such as Warren Jeffs.

( 2 ) There is not reason to think poloyandry (1 woman / multiple men) will equal to polygyny (1 man / multiple women). No matter how small the amount of multiple marriages, you will face the increase of unmarraigable young men as older/wealthier men cause gender imbalance by removing women from the marriage pool. Our social and legal system has no way to manage the expected rise in horny single men, which will be highly destabilizing.

[Art]

"It is still too early to have reliable evidence on the effects on children of being raised by gay parents, but I suspect these effects will be more negative than positive, in part because even married gay couples are likely to dissolve their match at relatively high rates."

huh? should we start dividing couples into sub-groups and determining which groups break up more often and take restrictive actions accordingly? maybe we should oppose Jewish couples who both went to Northeastern Universities to have kids because they divorce up at a very high rate [fabricated example, of course]?

I don't see much economic analysis in either post about the effects of denying marriage rights to gays.

[Kathryn]

Thomas - the association of polygamy with misogyny is certainly not invented out of thin air, but there are laws against the types of coercion and abuse that seem to be common in "fundie separatist" communities - not least laws against statutory rape and minimum ages of consent for marriage. Those should be enforced vigorously. But as you note, correlation isn't causation, and I suspect that the illegality of polygamy itself gives rise to many of those problems and permits them to flourish (by pushing polygamy underground, fostering a defensive fortress mentality in its practitioners, and detering abuse victims from seeking help). Knowing that seeking official help for abuse will likely destroy your entire community and end with your family broken up and in state custody does not tend to make people enthusiastic about demanding their rights. With legal alternatives enabling people who wish (for whatever reason) to practice polygamy to do so openly, I wager you'd find much less tolerance within those communities for the types of abuse you see now.

Gary - if a rationale for denying recognition to polygamous unions is minimizing the number of unattached men, why doesn't the same rationale require all women to marry? How could restriction of women's, or anyone else's, rights be an acceptable way to solve men's social problems?

[John]

Regarding the concern about same-sex couples splitting more frequently and the effect this would have on children, wouldn't you assume that child-rearing would *decrease* the rate at which couples split up? Certainly having children is no guarantor of a stable/permanent relationship between parents, but I'd expect that on the margin some couples *would* stay together and work things out "for the sake of the children."
It's certainly true that sexual norms (regarding fidelity, etc) are different in the gay community than elsewhere, but I've seen plenty of gay couples who marry settle into behavior patterns closely resembling those of heterosexuals. (In fact, some gay people are alarmed by this trend!) The phenomenon may be one of self-selection: since there is very little pressure on same-sex couples to marry, the couples who do marry are those who are more committed to staying together.
I haven't seen any divorce rates specifically for same-sex married couples in Massachusetts--I see that the state's overall divorce rate has dropped since allowing same-sex marriage, but I don't see anything more specific. Does anyone have relevant data here?

[Richard]

I agree that it's strange that the marriage issue is more controversial than the issue of adoption by same-sex couples. Many of the arguments against same-sex marriage involve the supposed disadvantages to children of same-sex couples. But now that we've pretty much decided as a society to allow same-sex couples to adopt (or to go through the surrogacy process) it seems clear to me that it is, at the very least, better for such children to have married same-sex parents than to have unmarried same-sex parents.

Are children disadvantaged by having same-sex parents? To the extent that's true, I think it's mainly because of the social stigma aimed at LGBT people in general and, more specifically, to their having children.

If that type of family structure becomes more common over time, my guess is that the stigma will diminish. In the meantime, the children might have a difficult time of it, but I would not want us to give in to the bigotry and take the path of limiting adoption rights of same-sex couples.

[JK]

I don't oppose gay marriage. I oppose the redefinition of the word "marriage" to encompass social arrangements that were not included in the definition at the time various laws pertaining to and affecting marriage were passed. Our principles of democracy should compel states and Congress to amend every law that uses "marriage", "spouse", etc. to add a definition incorporating homosexual marriage. If the amended law passes, great. If it doesn't, well...that's democracy. But don't try to redefine the English language as an end run around our legislative system.

[Hans Bader]

Treating marriage as a private contract, as Professor Becker suggests, is a wonderful idea, because it would protect marriage much better than the current legal regime, which actually encourages divorce and nasty divorce tactics.

The current legal regime gives judges, upon divorce, vast, arbitrary discretion under so-called "equitable distribution" to treat similarly situated couples very differently (for example, giving a stay-at-home wife 65% of the marital property in one case and 25% in another case, decided in the same courthouse, and involving similarly situated couples).

That is grossly inequitable, and few private individuals would voluntarily permit such arbitrary decision-making if they had the choice.

Married couples tend to find out just how arbitrary divorce laws are only when it is too late: when they are getting a divorce.

The marriage contract is the only one where breach is currently rewarded.

In contemporary America, divorce courts effectively reward breach of the marital "contract," since the spouse who initiates the divorce has an immense tactical advantages in obtaining the relief that spouse seeks. By contrast, the opposing spouse who seeks to preserve the marriage both has no prospect of doing so under current no-fault divorce laws, which permit unilateral divorce without cause, and often is unable to get a decent lawyer for a substantial period of time after the divorce proceedings begin (and is less able to vet and select the appropriate divorce lawyer than the spouse who initiates the divorce proceedings).

Moreover, in most states, courts are not even allowed to consider fault in dividing up property and setting alimony, meaning that a cheating spouse can get permanent alimony (see, e.g., Calvin v. Calvin (a case in which the Virginia Court of Appeals awarded alimony to a wife whom it admitted was unfaithful, "vindictive and cruel").

Indeed, in California, a prenuptial agreement that attempts to take fault into account in any future divorce is deemed void as against public policy, according to the California Court of Appeal!

That's a massive infringement of freedom of contrast that would not be permitted in other areas of the law.

Treating marriage as a private contractual agreement, without state interference, would be a step up for marriage.

(By the way, I am not divorced, am happily-married, and while I am an attorney (with an economics degree), I do not practice, or profit from, divorce law. I have, however, read thousands of divorce cases).

[Hans Bader]

I have two posts about the economics of divorce that add to what I have said above about how divorce laws encourage divorce (Thus, treating marriage as a purely private contract would actually protect marriage):

www.openmarket.org/2007/12/04/the-economics-of-divorce/

www.openmarket.org/2008/01/02/
anti-business-freakish-divorce-laws-result-from-too-many-lawyer-legislators/

[Hans Bader]

Many monogamous people would be better off not marrying (at least until Professor Becker's wise suggestion that marriage be treated as a purely private contract is adopted).

When the government gets involved in marriage, it often undermines it.

For example, in Calbi v. Calbi, the New Jersey courts recently ordered a man to pay alimony to the ex-wife who killed his child, despite public outcry.

Few individuals would enter into a marriage contract that allows a spouse to leave the marriage, kill the children, and then demand alimony from the innocent spouse.

But that's what the New Jersey courts did.

If marriage were a purely private contractual arrangement, without much state involvement (other than enforcement of the contract), that wouldn't happen.

Given how little benefit many gay people would get from being allowed to marry, it's not clear why there is so much interest in gay marriage, pro or con.

I don't understand die-hard gay marriage opponents (and don't really understand die-hard gay marriage supporters either).

[Erica]

Becker writes "What I find difficult to understand is why there is so much opposition [to gay marriage]" when little opposition exists to adoption by gays or to various assisted birth procedures.

Marriage is now and for most of documented human history has been both an economic pact and method of legitimating children (and thereby establishing rights to goods and property).

In Western society marriage has also become associated with a set of rituals and beliefs. Thus the practice of marrying within "the church" and having religious officials conduct the ceremony. Adoption (one example Becker provides) is considerably less ritualized than marriage in most human societies; it's also much more socially flexible. Assisted birth procedures haven't been around long enough to have become laden with two-thousand years of exegesis and ritual. Neither example is comparable to marriage in terms of its public symbolism.

The conflation of the economic aspects and religious meaning is at the core of the opposition to gay marriage. When those in opposition speak of "marriage," they are referring to a ritual- and belief-laden practice--not to marriage as an economic arrangement.

Most of those who find gay marriage acceptable are talking about marriage as an economic contract between individuals that confers a set of rights and responsibilities; they are not referring to (or perhaps aware of) the sacramental or religious nature of marriage in many mainstream Christian denominations.

I suspect that if the term "marriage" was dropped by those advocating gay marriage and was replaced by a term such as "civil union" or "domestic partnership," much opposition would dissolve. For social conservatives, "marriage" is a loaded term; if gay marriage advocates better understood this, their economic and social equality arguments might make more of an impact.

[sallycoin8]

I just show my typical point of view about gay marriage from us LGBT. Of course, you may hear many simliar support ideas about it online, especially from LGBT. here is the one i love best on the forum of Bimingle.com "Gays do have the same rights as everyone else. They are free to marry someone of the opposite sex just like anyone else." we just wanna be a common person.

[sallycoin8]

I just show my typical point of view about gay marriage from us LGBT. Of course, you may hear many simliar support ideas about it online, especially from LGBT. here is the one i love best on the forum of Bimingle.com "Gays do have the same rights as everyone else. They are free to marry someone of the opposite sex just like anyone else." we just wanna be a common person.

[Augie]

Hmmm, considering the most recently published statistics that gay marriages have a ONE PERCENT divorce rate compared to the FIFTY PERCENT divorce rate of heterosexually miserable marriages . . . one can assume this blogging bigot is using "Rove Math" and GW's "it's only numbers" to validate his spiritual constipation.

Alas, this is America who depends upon talking points and bigotry to enhance their manhood. We must never-ever allow ourselves to be revered around the world and wear our intellectually constipated on our lapels with our flag pins!

The horror of elevating our nation to the heights of other nations who DO HAVE LEGAL gay marriages would defeat our national barbarism.

[DanJ]

Is marriage a contract, or a covenant? The two words are related, but I believe "covenant" is a bit stronger.

Increasingly in Western culture, it is being seen as a contract - you do this, I'll do that -- and if I'm unhappy with it, I'm out. This attitude has had significant economic ramifications, in that the breakup of families is typically a much "less efficient" way to run a culture and raise children.

However, if marriage is understood to be a lifelong, unbreakable covenant, wherein parties offer a commitment to one another that is not revoked, even under difficult circumstances, perhaps the word "marriage" would regain a bit of its meaning and our culture would regain a bit of its moral heritage.

I applaud your courage for engaging in this difficult issue on your blog, from an economic perspective. However, I'm not sure one can take "morality" out of the debate here. Where do the signposts of "right and wrong" point?

If marriage can mean anything between private parties, upon what basis do you step in and enforce outside standards?

Could someone avoid the "marriage penalty tax" entering a marriage "contract" with an animal? Or a child? Or a group? Or a blogging community? Should health insurance companies be forced to carry any "dependents" a person chooses to call his own, based on his "private contracts"?

Surely, even the most liberal thinker among us has a "line" that he believes should not be crossed - and the reason, I doubt, has anything to do with economics.

[HH]

DanJ
A lot of the issues you mention point out that you can't privatize marriage entirely unless many other laws are changed as well. For example, an insurance company can always contractually agree which dependents it wants to cover, and which it will refuse to. But if a law were to require an insurance company to cover dependents, it would make privatization of marriage difficult, since insurance companies would have to react to the potential to abuse.

As for the more specific examples you list: one cannot marry an animal any more than one can marry a chair - animals are property under the law, and rightfully so. Minors and mentally incompetent persons enjoy rightful protections under the law, so the danger of their being abused is small. Polygamy has been addressed on this blog, but my take is that the upside is much smaller than the downside, even though the real effect would be small. I think the current culture is such that most people wouldn't want to be party of a polygamous relationship anyway. If it does happen in any larger scale, we'd have a potentially destabilizing group of males [it's always males] at the bottom of the proverbial barrel. China is about to encounter this problem, as a result of its one-child policy.

Finally, to your "covenant" idea. It's difficult to gauge just how strongly marriage stability should be encouraged. One hand, society benefits from stable long-term relationships and families, so that a no-marriage policy would likely be destructive. At the same time, a "marriage-at-all-costs, no-divorce-ever" policy would likely be bad as well, forcing many to remain in relationships they don't want to be in. [People would likely search longer for a better match, but mistakes always happen.] The optimum point somewhere in between, but I doubt we can declare ex-ante just how strongly marriage is to be encouraged.

[John Bisceglia]

It is criminal how LGBT familes, with and without children, have to "wait patiently" for the SAME legal protections that are handed out LIKE CANDY to heterosexuals. For many in the LGBT community, we have lost all patience with both voters and politicians when it comes to JUSTICE and COMMON DECENCY concerning our families, so we are doing what we CAN do - withholding tax until we are treated EQUALLY. Those interested in joining this fight can GOOGLE "Gay Tax Protest" to find out about my own protest, and find links to others.

[MRutter]

You couldn't of said it better.

[Anonymous]

Mr. Becker,

I have to reiterate the same comments I wrote to you in 2005 on this subject: http://www.becker-posner-blog.com/archives/2005/07/on_gay_marriage.html.

1) I wonder whether some of the assumptions you raise (e.g., that gays have more fragile relationships) would collapse if and when the rights and social responsibilities associated with marriage were granted to these disenfranchised groups. Do you expect this would be the case? Surely the institution of marriage (and the associated benefits, as well as the difficulties inherent in divorce) provides some incentives to couples to remain in a relationship.

2) Regarding your unfortunate statement in 2005: "I believe, although there is little evidence yet, that the effects on children raised by gay couples will usually be quite negative" and your equally unfounded (and unevolved) statement in 2008
and "It is still too early to have reliable evidence on the effects on children of being raised by gay parents, but I suspect these effects will be more negative than positive, in part because even married gay couples are likely to dissolve their match at relatively high rates."
This merely distracts your readers from the real question at hand of gay marriage and from your otherwise well-articulated position on marriage contracts. Surely an economist of your standing could invest some time (or the time of a graduate student) into seriously evaluating this question before making this sort of statement.

It has been three years--support your statements with some data. You have a public and professional responsibility to do so, rather than retreating to
what you might "suspect."

3) To this point, and more fundamentally, essentially what do the success / failure rates of children (ignoring the question of how one might measure this) from married, heterosexual, two-parent homes have to do with the parents right to marry in the first place? It is a poorly reasoned argument to make civil freedoms contingent on certain unforeseen outcomes.

Please try to be more responsible in your posts on this subject.

[Daniel]

I agree with the Anonymous post on the issue of children and gay families. Too bad Mr Anonymous doesn't have the decency of signing off with a name.

[Chris Graves]

I would have no objection to privatizing marriage as long as anti-discrimination laws are repealed and social welfare programs are repealed or severely time-limited and limited in terms of conditions for which people can qualify for benefits. If these additional reforms were to be enacted, then people in members of a community at large could take up the role of the State in monitoring and controlling others' perverted behavior. Constant criticism, ostracism, and job and housing discrimination could do the trick of reigning in sexual deviants even more effectively than making these activities illegal. Each of these actions that could be taken by responsible members of the community are within the purview of each individual's rights.

A civilization cannot survive if a conservative sexual ethic is not maintained. The reason for this historical truth is obvious. The family is the main source of social welfare of its individuals coupled with a personalistic, caring ethic. As people become less connected with people who care for them in a tender and special way, they become more callous and less willing to care for others. People cannot live alone without ties to others. As Aristotle noted, only a beast or a god can live alone. But a de-personalized sexual ethic that dissolves the family as does homosexuality, bestiality, commercial sex, and polygamy leads to de-personalized attitudes and behavior which in turn leads to personal and social pathologies.

Perversions provide competition for marriage for sexual and emotional outlets, so that fewer people will act on their sexual interests within the confines of a loving, tender, committed relationship. This is especially true since marriage is very hard to maintain due to the inherent tensions in living with someone in marriage. The short-run costs of establishing a marriage can dwarf the long-term benefits. There must be a short-term compensating factor to the costs of finding a life-long mate and then maintaining a home in the face of difficulties early in the marriage when most divorces occur as the couple negotiates the terms of their interactions.

[NYSkeptic]

Good points by both Posner and Becker, except Becker's generalization that kids raised by gay parents will have greater developmental and socialization problems solely by virtue of being raised by gay parents because those parents split up at higher rates. That is dangerous and unsupported territory, unsupported if only because there is not enough data - openly gay couples raising children being a relatively new phenomenon. A couple staying married throughout their childrens' youth does not necessarily equal a happily-married couple. Many couples stay together "for the kids," which often breeds resentment which is often directed at the marriage partner. I would venture that kids observing this dynamic growing up might have more problems forming healthy adult relationships than those exposed to a happily-married gay couple, even if that couple eventually splits up in a healthy way.

On the other hand, arguing that "gay couples on average produce screwed-up kids more often" perpetuates harmful stereotypes that fire up the ignorant and convince the apathetic that things are probably best just the way they are.

I think the best way to ensure happy children is to give their parents the freedom to pursue happiness in whatever way they see fit.