Wake Up Maggie, I Think I've Got Something to Say to You
Julian Sanchez | October 21, 2005, 6:20pm
Post below revised a bit from first version for clarity.
Same-sex marriage opponent Maggie Gallagher has been guest-blogging up a storm over at the Volokh Conspiracy, and Crooked Timber's Kieran Healy has rounded up the posts with a bit of commentary.
I am, alas, inclined to agree with Healy: The post series began with some reasonable-enough throat-clearing about the historical link between marriage and procreation, but rapidly degenerated (beginning with the suggestion that "death by sexual disorganization" caused the fall of the Roman Empire), by the time she reached her penultimate and final posts, into a truly phenomenal collection of non-sequiturs. That this seems to have been the opinion of most of the Volokh commenterers is, rather self-flatteringly, taken as evidence that "the wall is still up pretty high" against the "air and light" she's offering. (Continued after the jump...)
What's most interesting is that, while Gallagher purports to be making the case against same-sex marriage, there's very little there there: We go from throat-clearing about the general importance of marriage to postscript, with a bare handful of sentences devoted to what one would expect to be the crux of the argument. The throat-clearing bits mostly have to do with establishing that a major historical function of marriage has been the regulation of procreation and child-rearing, and that it's ceteris paribus better for children to be raised by a married couple than by single or even cohabiting parents. She further argues that it's better still if the married couple are the biological parents of the child they raise—something that's plausible enough on evolutionary psychology grounds as a statistical generalization.
Let's grant all those premises as generalizations; they still don't get Gallagher remotely near where she's trying to go. To the extent it's possible to extract a straigthforward argument from this series of posts, it's crucial to it that the regulation of procreation and child-rearing be, not merely a major public purpose of marriage, but the purpose.
Now, that's just demonstrably false. Gallagher cherry-picks some case law asserting the importance attached to this function of marriage, but omits, for instance, Loving v. Virginia's emphasis on the freedom to marry as "as one of the vital personal rights essential to the orderly pursuit of happiness by free men." In her final post, Gallagher imagines the (apparently ridiculous) situation in which business partners marry as an economic arrangement, without any particular love or intimacy between them. But, of course, nothing in current law precludes (different-gendered) partners from doing just than. And, as I noted last month, there have been times and places where marriage was seen, above all, as about cementing a business partnership and regulating household division of labor—or establishing trade between nomadic groups, or uniting disparate landholdings, or regulating inheritance, or cementing political alliances. As Amptoons observed a few years back, even contemporary pro-marriage conservatives had (until SSM became such a bugbear), a list of six "dimensions" of marriage, of which child-rearing was but one.
Gallagher chastizes Andrew Sullivan for raising the inconvenient point that, in fact, we don't narrowly-tailor the legal institution of marrriage to make it centrally or exclusively about procreation. Certainly, we could: Infertility has, in the past, been seen as natural grounds for dissolution of a marital union. If we wanted to really hammer home that all-important link between marriage and child-rearing, we could make it available only to those with a declared intent to conceive a child or adopt. Of course, with a rapidly growing number of gays raising children and half of the rest indicating a desire to someday, this would fail to exclude gay couples systematically unless we allowed marriage only between pairs who intended to biologically conceive a child genetically related to both parents—and even then the exclusion would probably not last much past a few advances in reproductive technology.
Gallagher seems to think that arguments of this sort are attempts to prove that marriage has no (public or legal) functional connection to procreation. But that's, one, ludicrous and, two, far more than someone like Sullivan needs to show to explode Gallagher's argument. All that's required is what's frankly boringly obvious in both history and law: Marriage serves a wide variety of private, public, and legal functions; child-rearing and procration are among them but far from exhaustive; and the institution as already structured recognizes this multiplicity of function. So why exclude gay couples, who certainly might raise children, and in the case of lesbians are capable of bearing them as well, but admit all heterosexual couples, whether they intend to or are even capable of procreating or raising children? According to Gallagher: "Because the way it works in reality is, the more people attracted to the opposite sex who enter such unions, the better off children will be."
That's it. Recognize that this is the crucial turning point in the argument—this is where her case stands or falls. Gallagher could defend a version of marriage that's more narrowly and strictly linked to child-rearing and procreation, though that wouldn't really allow her to draw the clean gay/straight boundary she wants. Instead, she moves to a distinction based on affective orientation rather than either procreation or child-rearing, asserting that this, too, is somehow "better for children"—presumably even after taking into account the children whose gay natural or adoptive parents can't marry their partners—but without any hint of explanation.
Now, we can make some sense of this if we see it through a sort of Straussian lens. As I suggested previously, the idealization of marriage, and much of its appeal, turns crucially on its serving those other functions: promising fulfillment and intimacy for the married couple, rather than just a stable childrearing environment. It's not that SSM threatens to disconnect marriage from procreation; the argument for gay marriage is appealing precisely because people already understand that marriage has meanings and functions beyond procreation.
Maybe what Gallagher says here is an indication that she recognizes this. She's effectively saying: Look, we can't have marriage just be about procration (and design law accordingly); its appeal involves all these other things that induce people to do it. Indeed, the people for whom (and for whose children) its most important are precisely those who demonstrably don't feel the need to get married just to provide a stable environment for their kids. Those people need, if you will, the marriage fairy tale. This entails a recognition that, at least for many people, marriage is not conceived as (exclusively) a procreative institution, even if its serving that function is what explains its universality. But that's the end of the game for Gallagher, or should be. You might think that providing a stable structure for linking kids and biological parents is the most important function marriage serves, but Gallagher's own argument against Sullivan (not to mention, as she might put it "all of human history") make it crystal clear that it can serve this function without the parties to it generally conceiving that as the sole or even primary function. Indeed, as her argument recognizes, it might very well serve that function better if people don't see that as the exclusive or even primary function.
In short, Gallagher wants it both ways. At some level, she understands that since the 18th century shift away from marital pairings determined by extended families, by a strong-handed paterfamilias, or by the broader community, the already existing conception of marriage as (inter alia) a vehicle for romantic fulfillment is necessary to the preservation of the institution as a sufficiently broad one. But she wants to avoid the logical consequences of people's thinking about it that way. I don't think she can get both.
En passant: We also get, in Gallagher's final post (the low point of the series, with the highest non-sequitur/text ratio) the assertion that SSM advocates want to "the use government power to impose a new morality on a reluctant people." The idea here is that there are too many cultural accretions of marriage to extend the legal institution to same-sex couples without appearing to give some kind of endorsement—conferring the cultural good vibes no less than the legal privileges. Gallagher doesn't seem able to see that the situation's perfectly symmetrical in this regard: So long as marriage (which, as she observes, was not invented by government) is bound up with the legal and political institution, the law will "impose" in this fashion. State involvement in marriage has, at various points in history, entailed little more than the formal recognition of an antecedent, primarily religious ritual. Codifying one particular form of marriage in law locks out the kind of natural evolution we otherwise have seen and doubtless would see in the institution. If we did not see the state as defining "marriage" in terms of its cultural connotations as well as its formal legal benefits, we'd already have widespread "gay marriage."
As we come to Gallagher's final post, we find little more than a rehashing of what we've seen to date: Having married parents is a great good to children (fine), and admitting couples who can't (yet) conceive any child they might raise between themselves somehow degrades the procreative and child-rearing functions of marriage. But the crucial mechanism is, as per usual, never really specified: We're not told why allowing that marriage may serve non-procreative functions will undermine the institution. All we get are some highly disanalogous analogies. Since this—not whether marriage is generally good, not whether it's typically better for kids to grow up in the context of marriage than with a single parent—is the key point of disagreement, we're going to need something a lot better here to make the argument work.
Jadagul | October 21, 2005, 8:51pm | #
I think Morat has part of it. One important consideration—which probably explains why "there's no there there"—is that she's not trying to convince readers that SSM is bad. She's trying to explain enough of her position so that readers can understand why a sane person could believe SSM is bad. I have some sympathy for her: I don't actually agree with her arguments, but they're not per se
incoherent. They're just wrong.
Her argument against SSM is actually very close to my argument against marriage as a state institution. As I understand it, the claim goes something like: "Marriage has many purposes, but most of these are irrelevant to the state. The state can only endorse marriages for some relevant purpose; and the reason the state supports marriages is to promote procreation. This isn't why people marry; it's just why the state supports them." I've actually been claiming that this is non-unreasonable for a while; if you believe that
A)the state has the authority to endorse marriages in order to promote X, and
B)promoting gay marriage undermines X,
then it follows that the state should not endorse gay marriage.
Most SSM proponets attack (B), and they're probably right (I'm pretty sure they are, but I don't
know, not having seen any really good reasearch. But it seems obvious). Around here, we also sometimes attack (A), arguing that the government has no good authority that allows it to endorse marriages; I'm in that camp myself. But this is why we're reasonably close to Ms. Gallagher. She says, "there's only one value that could legitimize the state interfering here: procreation. So the state can only sanction marriages that benefit procreation." In contrast, I say, "there is no value that could legitimize the state interfering here. So the state can't sanction marriages at all."
We actually agree on SSM: the state has no authority to allow it. We disagree on regular, straight marriage: I don't think the state has authority to allow it, either.
thoreau | October 21, 2005, 10:31pm | #
So, I've said it before and I'll say it again: I have no clue how it will harm society if homosexuals are allowed to sign binding contracts to share property, power of attorney, etc. etc. Granted, in an ideal society the state would not apply the word "marriage" to those contracts, leaving that decision to the two people (or more in Utah) involved in the contract, in accordance with their personal beliefs and desires.
But it doesn't seem all that harmful if the word "marriage" appears at the top of the contracts. I mean, it's just a word. Speaking as a happily married Catholic, I can tell you that purchasing the marriage license from the courthouse was not a particularly meaningful event for either me or my wife. The vows were much more meaningful.
So, what exactly is the harm in letting gays do this? Heterosexual couples who want to get married won't refrain just because they see gays doing it. They won't refrain from having kids if they want them, and they won't want kids any less. They won't love each other any less if gays get married. My wife and I didn't feel any differently about each other after Massachussettes started marrying gays.
And gay marriage certainly won't prompt heterosexuals to try the other side of the fence in response. You know how straight guys generally won't even sit too close to each other on the couch when watching a football game? And you know how you could never talk your girlfriend into so much as kissing another woman, let along sleep with one? Well, do you really think that marriage licenses will change either situation? At most, it will encourage the handful of gays still in the closet to come out.
Last year I had this argument over and over and over with a guy who no longer comes here, and in the end all he could come up with was that gay marriage would ruin the economy due to health insurance and pensions and other benefits. Two responses: The first is that if this were true then employers would prefer single heterosexuals over married heterosexuals. (That may be the case in certain select professions, for all I know, but it certainly isn't the general case.) The second is that gays are at the very most 10% of the population (probably considerably less IMHO, but that's just my guess). I find it hard to believe that gays will be the straw that makes the economic camel's back. (For more on what might destroy our economy see gaius marius.)
So, I have yet to see any explanation of why this will destroy our society. If anything, it will create a few more jobs for florists, caterers, bakers, etc.
Besides, as I've said before, between the the florist, the musicians, the decorators, the pastry chef, the old uncle with no date, and the priest, every wedding already includes
at least one gay person. How much harm could it do if we add another one to the wedding? :)
mattc | October 22, 2005, 9:23am | #
It will be a long time before homosexuals will be truly accepted in American society, barring some great societal collapse. Correct me if I'm wrong, but it seems like homosexuals (particularly men) are only marginally accepted in industrialized, well developed nations. In the third world, or more impoverished nations, homosexuality is a blatant sin, and heavily discriminated against, to the point of torture, imprisonment, or death.
If the all the wealthy, developed nations of the world were to collapse, or become much less powerful, homosexual rights would be nearly forgotten. Its only because we live in a relatively peaceful, prosperous society that we have the luxury of arguing about giving homosexuals the right to marry.
I have no problem with gays getting married. However, I am not married or even in a serious romantic relationship. Most of the married people I've talked to about gay marriage are against it. I believe that homosexuality is a biological process that cannot be totally "unlearned". However, most of the people I talk to about homosexuality think its a lifestyle choice.
So, from my meager perspective, gay marriage is dead in the water. That doesn't mean that other places see it as such. I have a cousin who lives in Illinois with his gay partner. For all intents and purposes they are "married". They own a house together, live together, and are faithful to each other. I don't see why they shouldn't be allowed to have the same benefits as my other cousin, who's been in the exact same kind of relationship for much less time, just because she is married.
Tom Crick | October 22, 2005, 9:09pm | #
State recognition of marriage grants married couples the *right* to force others to give preferential treatment to their spouse. Hospital visitation is a good example of this; hospitals restrict access to patients, but are forced by law to allow access to spouses.
I guess this really is taking me back to the basics.
Under the premise that other people's rights end where mine begin, I'm tryin' to think how a gay person getting married encroaches on my rights and liberties--and I'm drawin' a blank!
Also, I think people have the right--and sometimes maybe the duty--to break unjust laws.
...but a discriminatory law prohibiting gay marriage would be hard to break. If the state discriminated against gay people by prohibiting them from getting driver's licenses, that would be easy. ...They could just drive without licenses. ...but how do you collect survivor's benefits in spite of not being legally married, etc.?
Still, if gay people start getting legally married, somehow, I suspect hospitals will adjust. ...and I'm not so sure the state should force hospitals to give preferential treatment to spouses anyway.
Inasmuch as the Equal Protection clause applies here, it forbids giving preferential goverment treatment to ANY married couples. It certainly doesn't mandate that gay couples join straight couples in receiving better treatment than is given to single people any polygamists.
I asked about the Equal Protection Clause because I know we have some fine legal minds that visit this site, and I really would like to understand why the Equal Protection Clause doesn't apply here.
...I didn't mean to suggest that the Equal Protection Clause
specifically mandates gay marriage!
The Equal Protection Clause--as I understand it--says that the states can't discriminate against a person arbitrarily. They can do it if a person is convicted by a jury of his peers, etc., but they can't just decide not to register a black man to vote or not to give a driver's license to a Chinese woman... ...or, it seems to me, they can't just decide arbitrarily not to give a marriage license to a gay person.
...I could be wrong about that, that's why I asked. ...but I don't see anything in your response that explains why Fourteenth Amendment protections don't apply to a gay person.
I suppose the state could discriminate and not give a marriage license to a barnyard animal, but we're not going down that silly road, are we?
thoreau | October 23, 2005, 9:21am | #
mattc-
That's a valid concern. In regard to taxes, I dunno. I'm pretty sure I've heard some gay people complain about not getting tax advantages, but I've also heard constant complaining about the "marriage penalty". I always find my tax forms confusing enough that I've never bothered to calculate taxes for me and my wife without marriage factored in, just to see. Just too much hassle. I wouldn't be shocked if the tax code, as convoluted as it is, has both an incentive and a penalty for marriage.
In regard to health benefits, my wife and I each get our insurance from our employers, so we've never looked into what it would take to get one of us covered on the other's policy. I always thought that people who want spouses covered usually have to pay. I dunno, maybe there are some employers who give free benefits to spouses, but for most people they'll still have to pay if they want to get insurance through their buddy's employer.
Also, marriage contracts are messy to terminate. If two friends get married to enjoy some financial benefits, and then get divorced when one of them meets a girl that he'd like to marry, the buddies may become former buddies when one tries to take the other's car or something.
I'm not completely discounting the financial incentives that might motivate two heterosexual men to marry each other, but I wouldn't weigh them too heavily either. And considering the hassles associated with terminating such a relationship, I'm even more skeptical.
Finally, good luck to the guy who's at the club with his friend, trying to pick up some girl, and then introduces his buddy as "my husband." See how fast that girl runs away.
OTOH, the girl who introduces her friend as "my wife" may find that lots of guys become much more interested all of a sudden...
