On Homosexual Marriage-Becker

 

Posner shows how attitudes toward homosexuals have changed dramatically during the past half century. This change did not take place in a vacuum because most sexual and family attitudes underwent revolutionary changes during the same time period. Divorced women were outcasts at that earlier time, whereas now divorced women as well as men are considered part of the normal marital landscape. To be an unmarried mother was then considered shameful, whereas although unmarried motherhood is not yet accepted as normal, unmarried mothers are not ostracized. The pill and other improved contraceptives ushered in a sexual revolution that enormously increased sexual activities of unmarried teenagers and adults.

In today’s sexual environment, homosexuality no longer seems exotic or radically unnatural. For this reason, while American anti-discrimination law protects homosexuals from discrimination, acceptance of homosexuals in the workplace and elsewhere would have greatly increased even without legal protection against discrimination. I am not familiar with any studies that assess the causes of the decline in discrimination against homosexuals, but they would show, I believe, that changes in attitudes were more important than legislation.

I am not suggesting that discrimination against homosexuals is gone. The recent resignation of an important member of Governor Romney’s staff was apparently forced by the public disclosure that he was a homosexual. Still, such discrimination has greatly declined, and in an increasing number of activities homosexuals no longer have to hide their sexual orientation, and often openly bring their sexual partners to different public events.

In more and more states, although still a minority of states, homosexuals can now form civil unions that give them most of the rights possessed by heterosexual marriages. Moreover, a growing number of companies give surviving members of homosexual unions the same benefits as they give survivors of heterosexual unions. One natural and desirable change would be to give homosexual civil unions the full set of rights that married couples have. Indeed, one may want to go as far as several Scandinavian countries, and give the same rights that married couples have to couples who have lived together for a number of years, even if they never codified their relationships into marriages or civil unions.

Gay couples would of course welcome such changes, but many of them would object that these changes would not go far enough because they want to call their unions “marriages”. As Posner indicates, many religious Christians, Jews. and Moslems, and some other heterosexuals as well, strongly object to calling homosexual unions “marriages”, although many of these objectors would be willing to give homosexual civil unions most of the rights that married couples have. Yet it is strange that homosexuals can more readily adopt children, or provide the sperm for children that they raise, than they can call themselves “married”.

I have argued several times previously that all “marriages” should be basically contractual arrangements between couples, whether heterosexual or homosexual. These couple-specific contracts would specify the duties of each member, including the conditions needed to terminate their arrangement, so that couples rather than laws and judges would determine the conditions under which they stay together or breakup. These contracts would be tailored to the special needs of each couple, and could even be made compulsory in order to take away any information revealed when a person asks his or her mate for a contract (see my discussion of gay marriage on 8/10/2008).

If such contracted civil unions became the norm, homosexual unions would not be any different than heterosexual unions. If civil unions obtained all the rights of marriage unions, then the issue of gay “marriage” would turn only on language, although it is emotionally charged language on both sides of the debate.

As part of my classical liberal views I believe that gays who form unions and want to call these unions “marriages” should clearly have the right to do so, even though many others object to that description of their unions. However, since law is settling the gay marriage issue, the next best solution is to have these laws determined at the state rather than federal level. When laws are at the state level, homosexuals who want to call their unions marriages can move to states that allow that designation, or they should be able to gain residency in states that allow that description, and afterwards return to their states of more permanent residency.

But as Posner reminded me, this type of temporary move to another state runs into the 1996 Defense of Marriage Act, which says that no state is required to recognize a marriage made in another state if it is not between a man and a woman. The Obama administration indicates that it will not enforce the Act, but it is not clear how they can force states to recognize marriages between gays if they do not want to.

 Even if homosexual marriages arranged in other states had to be recognized by all states, this kind of evasion of state laws that do not allow homosexual marriages is not ideal. It is similar to the way couples could divorce prior to the 1970s when they lived in states where divorces were banned or difficult to acquire. Many individuals wanting a divorce went for several weeks to gain residency in states like Nevada that allowed divorce. After gaining their divorces, they then returned home as divorced persons.

To repeat, the ideal solution would make all “marriages” contractual civil unions that would specify the rights of both parties. Every couple, including gay couples, would then be allowed to call their arrangement a marriage if they so desired. Unfortunately, such a radical change in the approach to “marriage” is unlikely to occur in the foreseeable future.

Comments

[Jimbino]

Y'all need to contemplate how fine our world would be if all references to sex were barred from all laws and regulations of our land.

Beyond that, imagine how fine our world would be if all folks were considered to have rights as individual persons--rights that were not affected by their love, sex, cohabitation or marriage with another.

You may say I'm a dreamer.

[Mitchell K.]

Becker feels that all marriages "should be contractual arrangements whether heterosexual or homosexual" with "couple-specific contracts [that] would specify the duties of each member... so that couples rather than laws and judges" would define their union. Becker's prescription is too open-ended to be compatible with civil marriage as it is largely understood by Americans on both sides of the same-sex marriage divide.

His outline leaves room for polygamous and incestuous marriages between adults (if I understood Becker's political positions correctly, he does support legal polygamous unions). The standard arguments against incestuous marriages are less potent in the modern era and particularly so in the case of incestuous homosexual unions because there is no real possibility of pregnancy. Our society would not tolerate legal recognition for polygamy and incest that Becker's laissez faire approach does not proscribe.

Of course, Becker's "couple-specific" contract approach also permits totally platonic and inconsequential marriages between family members, friends, coworkers, etc. without any strings or legal obligations attached. It is a definition for marriage that is elastic to the point of being almost meaningless, and it cannot be squared with our current system of civil marriage for all of its various penumbras and entitlements in our legal system (including social security payments, preferred tax status, etc.) and its value as a form of social signaling. The role that civil marriage for heterosexual couples plays in social signaling is frequently ignored (as it was recently by the 9th Circuit Court of Appeals during the Prop 8 controversy) by those who insist that the court system should declare a constitutional right to same-sex marriage even when civil unions or domestic partnerships already exist (as they do in California).

Lastly, I believe that Becker erred when he remarked that "the recent resignation of an important member of Governor Romney’s staff was apparently forced by the public disclosure that he was a homosexual." It seems that this individual was openly homosexual, was known within the Republican hierarchy, and that his resignation was not due to public disclosure of his sexuality. I don't really understand the circumstances surrounding his resignation myself, and there appears to be some confusion on this matter even within the Romney camp.

[Anne Roberts]

I am pro gay marriage but I am afraid some states and citizens of the country are not ready for this yet. it is much better if the states have their own laws regarding gay marriages to avoid conflict. But this country is called the United States of America for a reason.

[Corlyss]

Methinks that's just dinking with the language. We could call all such unions "ham sandwiches." It wouldn't change a thing about the emotional reactions to them.

I'm 66 yrs old and I've supported gay marriage for years two reasons alone: 1) so they can adopt kids who need loving committed parents regardless of gender or orientation; and 2) to give gays a chance to prove they are not sexual anarchists who want to tear down social norms just for the sake of doing so. They have often claimed to be "normal people" with a twist. Okay. Prove it.

[Tyler]

American antidiscrimination law does not protect gays against discrimination of any kind. There is no such federal nondiscrimination law, and only a minority of states have such laws on a state level. Even some "blue" states like Pennsylvania provide no such protection because of fierce Republican opposition.

[Dr. Zaheer Abbas]

After going through the discussions of Becker, Obama administration seems like hypocrite. If they are not gona enforce homosexual Act, then why are they propagating it. Is it election stunt??? And if they leave this implementation to discretion of states, then they might not achieve their election objectives. It may result that various states implement this act differently with some totally ignoring it. If such happens then segmented states of America would be better name instead of United States of America.

[Tyler]

Obama is enforcing DOMA, just not defending it in court. So binational gay spouses are still being deported. Furthermore, he only thinks the federal-definition-of-marriage section is unconstitutional--his administration hasn't challenged the provision allowing states to refuse to recognize other states' same-sex marriages

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Methinks that's just dinking with the language. We could call all such unions "ham sandwiches." It wouldn't change a thing about the emotional reactions to them.

[Brent Davis]

Marriage is not simply a contract between consenting adults with the possibility of sexual activity. Marriage has always meant the union of a man and a woman, generally for the purpose of legitimate procreation, and provides for a legitimate union of opposite genders whose separation under normal circumstances is and should be protected.
It is generally the one universally acceptable condition where members of the opposite sex can be safely and honorably be left alone together with their children if they have any.
When a man attempts to be alone with a woman outside of this relationship it is a cause for concern and even alarm because of the sexual pressures that may ensue.
Ths is why we have segregated restrooms and changing areas: to protect us when we are vulnerable from unwanted sexual pressure and attention.
When someone of the same sex violates our privacy by makiing unwanted sexual advances or engaging in voyeurism we are understandably outraged. They are taking advantage of our vulnerability and harming civilized association by allowing expression of their sexual desires which should normally be reserved for the opposite sex and only after honorably winning the agreement of that member of the opposite sex and, ideally, entering into a marital relationship where such contact is clearly mutually desired and expected. This method of containing the sexual appetite is one that promotes safety, honor and the parental needs of children and the family needs of society. Marriage has thus become an honored institution.

Homosexual relationships are a violation of the institution of marriage. Homosexuality is a perversion of human sexual design, and results, if not checked, in the depraved mind that would allow an individual to continually engage in perverted behavior: it does nothing to promote safe and civilized childrearing by both biological parents--those with the most in common with their children biologically. Those engaging in homosexual behavior see the honor given to those who commit to marriage relationships and they long for the same respect and privilege but they are violating the character of restraint necessary to deserve such honor. They cannot produce children with each other and so, to raise children they must deprive a child or at least one of his or her biological parents and of the honorable institution of marriage which should be the role model for the child in continued procreation and societal development. Those who seek to have their depraved unions stamped with the honorable label of marriage must change the definition of marriage to do so and by so doing do harm to a very important and necessary societal institution in which children can be honorably raised by their biological parents, those who have the most in common with them and therefore are most able to relate to them and understand them biologically.

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[Mark Adams Brown]

Dr. Becker observes: "Yet it is strange that homosexuals can more readily adopt children, or provide the sperm for children that they raise, than they can call themselves “married”."

I would suggest the remedy for that strange inconsistency is to "regulate" sperm donation and adoption, for the following reasons:

I. The Selective Campaign For Human Rights

The Rights Of Children. If parents deny their offspring child support, the parents are jailed. But if parents deny their child the fundamental right to a mother and father, we salute the parents for “advancing” human rights. Regardless of their sexual orientation, adults who would intentionally deny artificially-created children a mother and a father should be legally barred from artificial insemination and surrogately-conceiving children.

II. "Marriage": A Property Regime to Benefit Children

What Is State-Sanctioned Marriage? It is a pre-defined set of property rights given spouses to encourage raising better children. The State has no capacity to bless marriages. State-sanctioned "marriage" (as distinct from a blessing by a religious authority or a private pledge between two persons) is designed to give a couple, and especially the wife, mutual property rights and expensive financial benefits (pensions, medical insurance) that enhance the couple's financial stability to encourage them to invest resources in bearing and nurturing children. Its rationale, which justifies society paying for the extra benefits, does not apply to same-sex couples who are naturally, and also ethically, disqualified from parenthood.

III. Same-Sex Couples Ethically Disqualified From Parenthood

Same-sex couples, like some single adults who rely on artificial insemination or surrogates to produce children without a spouse, ethically disqualify themselves from parenthood. They selfishly withhold from children a FUNDAMENTAL HUMAN RIGHT - the right to be born to a mother and a father. Artificially conceiving a child, with premeditated intent to deny the child a mother and father, is child abuse, and should be regulated.

Mark Adams Brown
May 16, 2012

[Dennis Tuchler]

It strikes me that marriage has become more than a baby-making device by which tribes can grow and defend themselves. We have no problem with allowing sterile couples to marry, We have no problem with allowing married couples to use contraception or surgical intervention to prevent pregnancy. The objection to same-sex marriage cannot be related to some natural law notion of marriage as a baby-making union. Finally, we have separated sex from marriage, accepting non-marital sex, and hoping that it does not produce too many single-mother households. So, what is left to marriage? I think that what is left is the formation of a community of mutual support and care that has some longevity. If I am right, then it is reasonable to support such communities only if they do some social good, whether or not that good includes raising children.

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[Jon]

Gay marriage is like Greece leaving the Euro.

If Greece ends up leaving the Eurozone it is widely feared it will destabilize the Union. This is NOT because Greece contributes materially to the Zone's GDP (Greece only contributes 2% to the whole) and Greece is not a major importer or exporter of goods.

No, Greece's departure will shatter trust in the Euro as a permanent currency. The Eurozone and the Euro were established to be permanent structures that no one left. There was not even a legal method for leaving articulated because it was never supposed to happen.

If Greece then leaves, it shatters the notion that the Euro is unbreakable and will always hold together. This breach of trust will create destabilization in and of itself because the Euro will not be trusted as a currency that will always be around. That lack of faith is destructive. People will speculate "Who might leave next?" And they will cash out of the Euro.

If we shatter the original meaning of Marriage – which it has had since time began – people will (further) lose trust in Marriage as a good institution and will be less likely to join it. People will not buy in to the need to get married and Society will suffer. Society benefits from strong families and strong marriages.

I support gay/lesbian/Homosexual’s right to form committed relationships and be recognized by the law – but I don’t see how it can be done using the word “marriage” without undermining that very word.

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[Family Lawyers Surrey]

Homosexual marriage is not a expected events in most of the muslim countries of the world. I also do not like this type of marriage.

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These couple-specific contracts would specify the duties of each member, including the conditions needed to terminate their arrangement

[John Corso]

As an Arendtian, I agree with Becker that the communities recognized as states should have the right to regulate their own marriage laws (with reciprocity in place).

The religious argument is flawed, though, because it gives priority to specific religions. Many religions right now (say, Unitarians, Buddhists, Reform Jewish Congregations...) currently have their religious freedoms impinged because while they offer same-sex marriages, the state refuses to recognize their religious authority. This is a violation of their religious freedom. Why does the opinion of the religious right always seem to trump the real rights of the religious left?

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