Gallagher and SSM
Professor Eugene Volokh has been kind enough to permit Maggie Gallagher, President of the Institute for Marriage and Public Policy, to guest-blog about the dangers of same-sex marriage (”SSM”). It is a rare event that an opponent of same-sex marriage is taken seriously, especially among academics and intellectuals.
Maggie has posted some great stuff about why same-sex marriage would destroy and irreparably harm traditional marriage.
First bite:
The now-common view (thanks largely to the SSM debate itself) is that marriage as a legal status matters because it opens the door to a host of benefits that incentivize marriage. (Thus, folks argue, the incentives for opposite-sex couples will still be the same, how can gay marriage matter? As Evan Wolfson likes to say, they aren’t running out of marriage licenses.).
I don’t think its true the law incentivizes marriage through benefits (although I have to confess I wouldn’t mind if it were), so I also don’t think this accurately describes how the law of marriage currently matters. Most people don’t get anything that feels like a check from the government when you marry. Many, probably the majority of people, take a financial hit when they marry. (Through the tax code and the welfare system, see Eugene Steurele’s study in the latest issue of The Future of Children).
If you think about it from a law and econ perspective, it’s amazing anyone does marry. Marriage means voluntarily subjecting yourself to state regulation, paying more taxes (or forgoing the EITC), and assuming legal and financial responsibility for another person. In return for what exactly? The right to order an autopsy?
There are some big financial benefits to marriage (that are legal incidents of marriage I mean), but I don’t think they are very powerful as incentives for marriage, for the simple reason that most people marry relatively young, and most of the big benefits occur after one of you is dead (a social security benefit, the right to pass your estate untaxed). Ok., there is health insurance for some people (although others upon marriage lose access to government health insurance. This latter loss may be particularly significant to young pregnant women, possibly people with HIV, too.).
So I believe, as someone whose thought pretty hard about law, public policy and marriage, that the most important remaining way the legal institution of marriage supports the social institution of marriage is in fact definitional.
Marriage’s unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.
Redrawing the definitional boundaries of marriage, is thus fiddling with the law’s core remaining support for marriage (and we’ve withdrawn quite a few legal supports in recent years).
Isn’t that what the radicals who advocate SSM want to achieve–definitional chaos? By severing marriage’s definition from the exclusivity of the male/female coupling, marriage loses its ties with procreativity. Moreover, same-sex couples would not be entitled to any government-derived benefits of marriage because the intended cohort of the benefit (a heterosexual union) has been expanded beyond the type of “marriage” those laws were tailored to help.
Second bite (addressing the argument that infertility of heterosexual couplings weakens the procreative argument supporting traditional marriage):
A subtler argument sometimes made is this: well, we have some nonprocreating couples in the mix. Why would adding SS couples change anything? Two points: SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples. This intrinsically means (if the effort is successful) downgrading if not eliminating the social significance of generativity (procreation and family structure). The second truth is that both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all.
Isn’t societal assurance just want the homosexuals want? They want society to acquiesce to their chosen gay or lesbian lifestyle. That is really what the same-sex marriage movement is about. It’s not about strengthening marriage or society. It is about legimatizing through the law a lifestyle practiced by a scant minority of Americans yet disapproved of by a super-majority. Moreover, Gallagher’s point decleats SSM advocates’ argument that an absence of fertility proves that marriage is not tied to procreation and illustrates the substantial concern a definition change would bring–elimination of link between society and marriage.
SSM advocates aren’t interested in longevity (i.e., the impact of SSM on society 50 years down the road) and their push to change marriage’s definition proves it.