The Volokh Conspiracy

Thanks again to Eugene for letting me in the forum this week.

In the end it comes down to this: Given that gay families exist, and are not going to be eliminated or converted by any means acceptable to the American people, what is to be done with them? Is it better for society that they be shunted aside, marginalized, ostracized, made to feel alien to traditional values and institutions? Or is it better that they be included in the fabric of American life, including the most important social institution we have for encouraging, recognizing, and reinforcing loving families? I can see why a sexual liberationist, or a radical of any stripe, might say, “Keep them out.” I have never been able to understand how a conservative could say that.

In the end I doubt this issue will be decided on the basis of debaterish points and arguments. It will be decided on the basis of the lessons we tend to draw from the real-world experiences we have and the people we know. What I have tried to do is outline a different way of thinking about gay marriage that might allow the thoughtful traditionalist conservative to reconcile his innate and healthy suspicion of change with his insight that marriage really is good for people and their families.

Analogies can obfuscate, but in their own way they can distill a matter to its essence. In her last post two weeks ago, Maggie described the issue of gay marriage by use of a vivid analogy that I will never get out of my mind:

Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened-- stumbling, loaded down, tired; enfeebled-- the conditions of the modern life are clearly not favorable to it. But still it’s your only hope, because to get across that desert you need a camel.

Now, chop off its legs and order it to carry you to safety.

That’s what SSM looks like, to me.

That’s one way to see it. Here’s another:

Imagine you stand with your loved one and child in the middle of a vast, hostile desert. You are burdened – stumbling, loaded down, tired. These are the conditions of modern life for you and they are not favorable, but you’ve been trying to make it. To get across that desert you need a camel.

Along comes a caravan with a hundred camels, three of them with no riders, more than enough for you and your family. You plead to use them, agreeing to pay your way and live by their rules for the journey.

But they say, "No, you might disturb the camels we’re riding on."

That’s what the denial of marriage to gay families looks like, to me.

In a world where gay families had nothing to do with the problems marriage now faces, it’s pretty odd to “defend” marriage by keeping them out. With these wholly unrelated challenges to marriage out there, William Eskridge recently said that defending marriage by opposing gay marriage is like building a Maginot Line. You get all excited about your fine fortress, you preen and prance around about your impending victory, you pop open some champagne, and then . . . the enemy sneaks through the Ardennes and overruns you.

The traditionalist reformer must not simply be satisfied that the reform is headed in the right direction, but must also be satisfied with the pace of that reform and with how the reform is brought about. The process considerations demand that any reform be based not simply on reasoned judgment, but on reasoned judgment informed by actual lived experience. Moreover, the reform must proceed slowly and incrementally to allow a consensus to develop in favor of the reform and to gauge what effects the effort is actually having.

This Burkean process of “a slow but well-sustained progress” is already very much in motion toward the ultimate destination of gay marriage.

1. The incremental path to gay marriage: the steps taken

Over the past 50 years or so a remarkable development has occurred in America: the increasing normalization and acceptance of gay life. This process has advanced incrementally and its vector has been toward the formation and growth of gay families. It is what makes gay marriage for the first time thinkable.

You can see this phenomenon in numerous legal and social changes. First, laws criminalizing gay sex were gradually either legislatively or judicially wiped away in almost every state until the Supreme Court invalidated the few remaining such laws in Lawrence v. Texas. At the same time gay communities were forming in neighborhoods in the large cities with a burgeoning culture of bars, organizations, and newspapers. Professional organizations like the APA removed homosexuality from the list of mental disorders and declared that efforts to “cure” or convert gays were unethical. Homosexuals began emerging from the closet in large numbers, helping to dispel myths about gays, moving out of urban centers and into the suburbs. And they began looking for more in life than fleeting and furtive sexual encounters. This was all a predicate for the flourishing of gay families.

Gay families, first just couples, began to spring up in the new climate. Adoption was available to gays in 49 states, foster parenting in all 50. Advances in reproductive science made it possible for gays to procreate their own biological children (outside of prior heterosexual marriages). So gays began raising children in increasing numbers, fueling what is today sometimes called a “gayby boom.” A quasi-marriage culture was sprouting.

It was inevitable that law would take notice of these changes, and of new learning about sexual orientation, and adjust to accommodate the realities of family life. Changes in family law allowed gays to obtain custody of their children after divorce without having their sexual orientation considered an automatic disqualification. Many jurisdictions began recognizing second-parent adoptions that provided some measure of legal protection to the parents and children in gay families.

All of this bottom-up momentum toward the formation of families led to some recognition of the relationships of gay couples. It started primarily in the private sector, where companies began offering health and other benefits to the same-sex “domestic partners” of their employees. This practice spread until today most major companies in the country offer these benefits.

Then cities and counties began recognizing the domestic partnerships of their employees. Then states began to recognize gay relationships, first domestic partnerships offering only some benefits to certain gay couples. Now states are beginning to recognize civil unions, which give gay families all of the benefits of marriage yet save the word “marriage” for opposite-sex couples. The big barrier was broken in 2004, when one state began recognizing full-fledged gay marriages. Some of these state-level changes have been pushed judicially (civil unions in Vermont and gay marriages in Massachusetts). But, much more remarkable, they are now happening legislatively (civil unions in Connecticut and very broad domestic partnerships in California).

Abroad, the move to gay marriage in countries with legal and political heritages similar to our own has been dramatic. There’s full gay marriage now in Belgium, the Netherlands, Spain, and most importantly for our purposes, in Canada. Within ten years, I am confident that all or nearly all of the European Union will recognize gay marriages. The dissonance will be increasingly difficult to maintain.

There has been a counter-trend, of course, represented by the recent passage of state constitutional amendments banning the recognition of gay marriages (and often much else). But these have passed mostly in states (like Mississippi) that were not headed toward recognition anyway. There is nothing inevitable about gay marriage. But the overall trend toward the formation of gay families and toward some recognition and protection of those families has been unmistakable.

Moreover the trend has been largely a Burkean one: incremental and based on real-world experience with gay people and families. This incrementalist experimentation has allowed us to begin to judge whether any of the harmful effects predicted by opponents of these reforms have materialized.

Consider, for example, the comments of Massachusetts state senator Brian P. Lees, a Republican who is the state senate minority leader and was a co-sponsor of a state constitutional amendment that would have banned gay marriage. After more than a year of gay marriage in his state he changed his mind and opposed the amendment he had previously sponsored. “Gay marriage has begun and life has not changed for the citizens of the commonwealth,” he said, “with the exception of those who can now marry who could not before.” “Massachusetts Rejects Bill to Eliminate Gay Marriage,” New York Times A12 (Sept. 15, 2005). It’s too early to draw any definitive conclusions about the Massachusetts example, but the preliminary returns are in and they offer no support to doomsday scenarios about gay marriage.

2. The incremental path to gay marriage: the steps ahead

Where do we go from here? I think a Burkean approach dictates two things. First, there should not be an immediate, nation-wide resolution of this issue either in favor of gay marriage or against it. That counsels strongly against either a decision from the Supreme Court forcing gay marriage on the country or the passage of a federal constitutional amendment banning gay marriage throughout the country. Either resolution of the issue would be profoundly un-Burkean because either, at this point, would necessarily be based on a priori reasoning rather than practical knowledge and experience. Fortunately, neither of these national, top-down resolutions of the issue seems likely to occur. Federalism, the historic design of American government, will be allowed to work its magic on this issue.

Second, the reform toward gay marriage should continue incrementally and with a strong preference that it move legislatively. That is, state legislatures should generally begin by taking moderate steps toward recognition that fall short of marriage. This could mean setting up a same-sex domestic partnership registry, and extending to registered partners some of the rights and obligations typical of marriage. Things like the right to visit a sick or dying partner in the hospital and the right to make important decisions for an incapacitated partner come immediately to mind. Perhaps allowing partners to transfer property to one another free of gift taxation. Second-parent adoptions, which even Maggie said she might support, should be allowed for registered partners. If things go well, the state could over time attach new rights and responsibilities to domestic partners.

It may be that in a few states, citizens who already have much experience with gay families can move more quickly. They could grant gay families all (or nearly all) of the rights and responsibilities of marriage and call the relationships “civil unions” or something else, but not marriage. Connecticut is an example of this. California is pretty close. New York and a few other states seem ripe to be next. I see no reason why such states could not move with dispatch toward full gay marriage, especially as the evidence from Massachusetts becomes clearer. There is already a consensus, a "general conciliation," in these states pretty close to gay marriage.

Once more evidence of the effects of protecting gay families is in, states can of course draw on the lessons learned in other states and move more confidently and quickly.

3. The incremental path to gay marriage: disadvantages

There are two disadvantages to this generally go-slow, state-by-state approach. One is that incrementalism necessarily means that states will be creating relationship statuses apart from marriage. Jon Rauch, who supports gay marriage, has argued forcefully that creating a menu of statuses may have the effect of knocking marriage off its perch as the “gold standard” for relationships. It’s a real concern, but I think its force can be blunted. In creating alternative statuses states should be careful to limit participation to same-sex couples. Domestic partnerships and civil unions should not be available to opposite-sex couples, who already have marriage available to them. This can be done constitutionally and, I think, it’s politically viable. Connecticut is a good example. That state legislatively created civil unions for gay couples but not for straight couples. California has (with a limited exception for elderly couples who lose certain important legal benefits if they marry) also limited its domestic partnerships to same-sex couples.

Also, once a state moves to full gay marriage, it should say good-bye to any alternative status it created for gay couples. Once marriage is allowed, gay couples should not retain an option unavailable to straight couples. I think this, too, may be politically viable since there’s some evidence that private employers in Massachusetts have begun to eliminate their domestic partnership benefits. If the pre-marriage alternative status has been limited to gay couples, as I suggested above could be done, there’s not going to be any politically sustainable argument why the alternative status should be available to them (and only to them) once they’re eligible for marriage.

The second disadvantage of incrementalism is that, while we are waiting around, a lot of states will be cementing anti-gay-marriage policy into their state constitutions. Eighteen states have already done so and my home state of Texas is about to become the next (an especially pointless action, since there’s no chance that Texas’s extremely conservative and elected judiciary will force gay marriage on the state). It will be very hard to dislodge these amendments once they’re in place. Long after the evidence is in that recognizing gay families is a good thing for the families and for their communities, these places will be stuck with the frightened prejudgments of an earlier generation that did not have the knowledge or experience the later generation will by then have. That will be terrible for gay families in those states, who will suffer needlessly for decades. I don’t know what to say except that if the alternative to state-by-state incrementalism is a Supreme Court decision mandating gay marriage anytime in the near future, the price of that would be even higher. It would be a constitutional amendment banning gay marriage throughout the nation for the rest of our lives.

Finally, while I believe civil unions are a huge and often necessary step toward gay marriage, they should not be confused with the ultimate destination, which is marriage itself. I have asked many married couples I know whether they would, if given the option, trade in their marriages for a civil union. Every one of them said no, even though civil union would make no difference in their legal rights and relations — assuming federal recognition. (I am sure there are some couples who would have said yes, but I suspect they’re a small minority of married folks.) That’s because marriage is much more than the sum of its legal attributes. It has a cultural, social, and historical significance no other status can touch. Whatever it is that caused my married friends to say no, that’s exactly the thing that gay families with civil unions will be lacking.

Let me be clear: I favor full-fledged gay marriage. In a few states, very soon, it may be possible to recognize gay families in marriage. The traditionalist in me sees the strong arguments for it as the end result, and I have made those arguments this week. But the Burkean in me wants us to get there the right way, and that means doing it in many places slowly and by degree.

Next: last thoughts.

For many liberals, gay marriage is nowadays an easy case. It eliminates discrimination against a class of people. It signals tolerance for diverse families. It eliminates an archaic distinction. If the benefits seem to outweigh the harms, as they do, let’s go for it. And the sooner the better.

For a principled conservative, embracing gay marriage is not nearly so easy. A venerable principle of conservatism, rooted in the work of Edmund Burke, is that we should respect tradition and history. This strain of conservatism prefers stability to change, continuity to experiment, and the tried to the untried. Burke was the father of modern traditionalist conservatism. Others were more analytically rigorous (Hayek and Oakeshott) or more directly influential on American political conservatism (Kirk and Buckley). But Burke was the first among the modern writers to lay out the basic principles and to do so in an almost poetic way.

Understanding Burke’s philosophy is key to understanding a traditionalist conservative’s take on gay marriage. Two aspects of Burke’s thought – his faith in the possibility of slow progress and his willingness to depart from an original design, even one based on ancient values – are especially relevant.

1. Traditionalist conservatism and reform

Burke has often been identified as a defender of existing practices and traditions against innovation. There is much in Burke’s writings and speeches to support this view. He wrote in Reflections on the Revolution in France:

[I]nstead of casting away all our old prejudices, we cherish them to a very considerable degree, and, to take more shame to ourselves, we cherish them because they are prejudices; and the longer they have lasted and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages.

However, the common reading of Burke as simply a defender of tradition often misses the richness and subtlety of his philosophy. He did not oppose all evolution of a society’s practices, traditions, and values. Rather, he counseled deliberation and patience in reform.

For Burke, the operation of change should be “slow and in some cases almost imperceptible.” He urged forbearance and consensus-building. He defined a statesman as having “a disposition to preserve and an ability to improve.” He believed deeply in the possibility of “a slow but well-sustained progress.” In other words, Burke supported incremental change rather than the convulsive social upheavals he saw in events like the French Revolution.

Burke’s leading modern American disciple, Russell Kirk, took a similar approach to social change. “Society must alter,” Kirk wrote in The Conservative Mind, “for slow change is the means of its preservation, like the human body’s perpetual renewal.” In his analysis of Burke, Kirk noted:

Does the observance of prejudice and prescription, then, condemn mankind to a perpetual treading in the footsteps of their ancestors? Burke has no expectation that men can be kept from social change, or that a rigid formalism is desirable . . . . Even ancient prejudices and prescriptions must sometimes shrink before the advance of positive knowledge . . . .

Kirk added: “Conservatism never is more admirable than when it accepts change that it disapproves, with good grace, for the sake of a general conciliation.”

Burke also saw that the original design of an institution would inevitably undergo change: “[N]othing in progression can rest on its original plan,” he wrote. “We may as well think of rocking a grown man in the cradle of an infant.” Edmund Burke, “Letter to the Sheriffs of the City of Bristol on the Affairs of America (1777),” in Edmund Burke: Selected Writings and Speeches 245-46 (Peter J. Stanlis, ed., 1963). From Britain’s mistreatment of the colonies, Burke drew a valuable lesson about the fallibility of human reliance on supposed venerable beliefs and the need to re-examine those beliefs in the light of experience. On March 22, 1775, he articulated this lesson in a famous speech to Parliament:

Our late experience has taught us that many of those fundamental principles formerly believed infallible are either not of the importance we imagined them to be, or that we have not at all adverted to some other far more important and far more powerful principles which entirely overrule those we had considered omnipotent.

Edmund Burke, “Speech on Moving Resolutions for Conciliation with the Colonies, March 22, 1775,” Selected Writings, at 196.

This passage reveals two important components of Burke’s traditionalist conservatism. First, what we presently regard as “fundamental principles” are not immune to critique and revision based on the lessons derived from experience. Second, experience may reveal that our operating principles are subordinate to even more fundamental principles that should overrule them. This is hardly a static philosophy of governance. It is one that does not shy from drawing lessons from experience that cause us to revise even our deepest notions of right and wrong.

Thus, the popular image of the conservative as the person who stands “athwart history yelling ‘Stop!’” needs to be amended. Rather, the dominant strain of principled conservatism has stood athwart history yelling, “Slow down!”

2. Traditionalist conservatism and gay marriage

For a traditionalist, the direction of a reform certainly matters. On Monday and Tuesday, I tried to show how a traditionalist might view gay marriage as a good direction for reform. It will likely stabilize and traditionalize gay couples and their families, with positive effects not only for individuals and their children but also for their communities, for the cause of limited government, for marriage, and for traditionalist values even in gay culture. It will also make available the most traditionally moral life possible for the gay person. On Wednesday and Thursday, I responded to traditionalist concerns about the definition of marriage, the dangers of loosening the ethic of monogamy within marriage, polygamy, and procreation.

But all that is still not enough. A traditionalist case for gay marriage must also grapple with four strong aspects of Burkean conservatism: (1) a preference for stability over change; (2) a sense that existing practices embody a wisdom of the ages that a reformer’s “private stock of reason” may not fully appreciate; (3) when reform is needed, a loathing for basing it on abstract ideas divorced from actual lived experience; and (4) a preference for incremental and small reform over dramatic and radical reform.

It is easy to construct from this a powerful Burkean case against gay marriage. (1) Gay marriage is of course a change, so we should be suspicious and resistant on that account alone. (2) Marriage is a long-standing, cherished, and important institution that has never before included the union of a man and a man or a woman and a woman; its historic practice of uniting men and women, and not same-sex partners, may have a reason that our logic cannot fully perceive. (3) Gay marriage is being brought to us in the service of non-marital and abstract causes, like “equality” and “inclusion” and “tolerance.” (4) And worse yet, it is a radical change being thrust upon us suddenly by impatient activists and courts.

All of this has great force, and it may be decisive for a Burkean conservative. It is in my view the best argument against gay marriage.

Let me suggest, very tentatively here, that gay marriage, approached as a reform of marriage in the right way, might be consistent with Burke’s approach. It is certainly not commanded by traditionalist conservatism, but is perhaps consistent with it. Let’s consider each of the Burkean concerns.

First, it’s obvious that all change should not be implacably resisted. Change is a means of society’s preservation. The fact that gay marriage is a change is not enough by itself to overcome any argument in favor of it. Burkean conservatism, applied to this controversy, puts the onus on the reformers. That’s why gay-marriage advocates have the burden of proof. But it is not an impossible burden.

Second, it’s also true that the man-woman definition may embody a logic of its own that we cannot fully appreciate. This urges special caution, since the man-woman feature of marriage has lasted long and prevailed generally. But this, too, cannot be a complete barrier to changing marriage, just as it could not have been a barrier to past dramatic reforms of human practices, values, and institutions. When the first reformers proposed that women should be given the right to vote, for example, it would have been easy to say in response that men-only voting embodied a wisdom we could not fully appreciate, even though we could not come up with very good reasons for women’s disfranchisement. Burke’s insight here about the fallibility of reason is not a justification for stopping all change, even to cherished institutions; it is a warning to base change on actual lived experience and not simply reason.

Third, gay families are a part of our lived experience as a nation; they are not abstractions. There are 250,000 children being raised by 600,000 gay couples, at a minimum. There are 1-2 million children overall being raised among the estimated 9 million gay Americans. Gay families, including those raising children, have grown from the bottom-up, not from the top-down. They have sprung up organically from the experience of millions of people who have the same yearnings for connection, for love, for fidelity, for security, for family, and even for faith, that straight Americans have. Our positive knowledge about gay individuals and families has advanced tremendously over the past few decades, from a time when they seemed nothing more than a diaspora of perverted criminals, to today, when Americans increasingly recognize them as our perfectly responsible and normal friends, co-workers, brothers, sisters, mothers, and fathers. They have shown themselves capable of the kind of commitment associated with marriage.

In the face of the advance of this positive knowledge, it is possible that, from a Burkean perspective, it is some of the opponents of gay marriage who operate on abstract theories that have little to do with real human lives. Some, but not all, opponents of gay marriage appear to cling to an anachronistic view of gay people that is increasingly divorced from all learning, law, life, and experience.

Up to now, gay marriage has indeed been pitched mostly by ambitious reformers with no reverence for traditional institutions, and even with a deep hostility to those institutions, operating on abstract political theories. But as I have tried to show this week it is possible, just possible, to see gay marriage as a reaffirmation of our best traditions of marital commitment, devotion to others for whom one is responsible, and even as accepting the communal obligation to help raise the next generation. Or instead of a simple reaffirmation of long-standing values, gay marriage might be a translation of them into modern times and experience. Radical reformers advocating gay marriage are likely to be bitterly disappointed by what their reform produces.

Fourth, is gay marriage really a radical change, as many opponents (and commentators this week) have insisted? Is it especially unwise in this time of 50% divorce rates and 33% illegitimacy rates to experiment with marriage?

Throughout the extensive history of fundamental changes in the institution of marriage cries of radicalism have greeted every proposed reform. In 1911, the Supreme Court rejected the right of women to sue their husbands for abuse, calling such an idea “revolutionary, radical and far-reaching.” Thompson v. Thompson, 218 U.S. 611, 31 S. Ct. 111, 112 (1912).

The type of reform matters for whether we should consider it radical and destabilizing, and therefore un-Burkean. No-fault divorce led to unexpected and unintended consequences that have weakened marriage in some respects; the divorce rate skyrocketed. But that was a change in an exit rule for marriage, allowing people to get out easily. And it potentially directly affected every single marriage in America, since everyone was eligible to exit.

Gay marriage is a proposal to change an entrance rule, to let more people in. There have been many changes in marriage entrance rules over our history: interracial marriage, age requirements, consanguinity requirements, to name a few. I am not aware of any evidence that a change in marriage entrance rules has ever harmed marriage as an institution. And gay marriage does not directly affect every marriage, since every other marriage remains heterosexual. To believe gay marriage affects every marriage is to rest on very abstract theorizing about present “social meaning” or wild speculation about distant future social meanings. A traditionalist conservative should distrust such reasoning.

Some will object, as Maggie has, that gay marriage is not merely a change in an “entrance rule” of marriage, but in the “substantive conception” of marriage. If that’s so, it’s also not unprecedented.

There has been no more profound change in the history of marriage than the evolution of women from being the property of their husbands to being the equals of them. Women’s equality in marriage was a fundamental change in the “substantive conception” of marriage that directly affected every marriage in the land. It was fiercely resisted as a harbinger of the end of marriage and the end of civilization. There were costs associated with that change and it certainly altered the social meaning of marriage. But it was worth it, on balance. Next to that, allowing a 3% increase in the number of people who can get married, which will at least not directly affect the 97% of marriages that are heterosexual, is not radical at all.

There remains a final serious issue for the Burkean conservative: the pace and process of reform. More on that in the next post.

I’m afraid I didn’t have time to read much of the commentary today. I do plan to go back and skim the commentary from this week later on. Since this will be my last commentary response, let me encourage you to send any burning questions I haven’t answered to me directly at dalecarp@umn.edu.

I do have a couple of quick responses.

First, thanks to the commentator who pointed out that all this talk about gays and gay couples as “non-procreative” or “sterile” is actually a bit misleading. Many gay people have biological children through various means. It’s especially common among lesbians, who have an easier time with artificial insemination than gay men do with hiring surrogates. Plus, of course, gay people raise their biological children from prior marriages. They will be raising these children no matter what we decide about gay marriage.

Second, a commentator brought up an essay by Stanley Kurtz purporting to show that “gay marriage” has led to a number of social pathologies in Scandinavia, including more out-of-wedlock births. Stanley Kurtz, “The End of Marriage in Scandinavia,” Weekly Standard (February 2, 2004). This thesis has been carefully rebutted in M. V. Lee Badgett, Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriages? Evidence From Scandinavia and the Netherlands, Discussion Paper (Council on Contemporary Families and Institute for Gay and Lesbian Studies, July 2004), and in William N. Eskridge, Darren R. Spedale, and Hans Ytterberg, “Nordic Bliss? Scandinavian Registered Partnerships and the Same-Sex Marriage Debate,” Issues in Legal Scholarship (available at www.bepress.com/ils/iss5/art4/).

Maggie said a lot two weeks ago and I will not begin to respond to it all here. A big problem I have with her argument is that she never gets around to acknowledging how gay marriage might help gay families. I don’t think she hates gay families, I just don’t think she’s thought about them much. I’d be very curious to see what she has to say about my Monday and Tuesday postings. For her, gay marriage is, on one side of the ledger, all potential cost (to marriage, to society, to traditional families) and, on the other side of the ledger . . . nothing.

Another big problem I have with her argument is that she conceives gay marriage as simply an effort to satisfy adult needs, or as just another trophy gays want to carry around in the culture wars to show how inclusive and tolerant we’ve all become. I can understand why she has that impression; many gay-marriage advocates have talked about gay marriage in these rather loose and abstract terms. But I don’t think these views even begin to explain the deep yearning of gay families to be united in marriage. Their struggles are not abstract.

Maggie’s argument against gay marriage comes down to her answers to two important questions: What is marriage for? How will gay marriage undermine it?

1. What is marriage for?

Maggie’s answer to this question, as I understand it from her posts here two weeks ago, comes in this key quote (obviously her argument is much longer than this), followed by my response:

“Procreation . . . is the reason for marriage’s existence as a public (and yes legal) institution.”

I can imagine three different possible views of the role of procreation as the public purpose of marriage: (1) Procreation, and procreation alone, explains why we have marriage (Maggie’s view); (2) Procreation is an important reason why we have marriage, but not the only one (my view); and (3) Procreation is not a reason why we have marriage.

I can’t see how the third view could be correct. As Maggie says, sex makes babies, society needs babies, and when those babies are born out of marriage the children themselves and society suffer in all kinds of ways. Marriage, through many of its legal features and the social expectations that attach to it, is the institution that encourages people to have children and to have children within marriage.

But I also can’t see how Maggie is correct that procreation-within-marriage is the only public purpose of marriage.

Legally, procreation has never been a requirement of marriage, as Maggie well knows. (Legal consummation requirements are not the same thing.) Two states, Wisconsin and Arizona, even require that first-cousins not be able to procreate before they can marry.

Maggie could respond, I suppose, that the one man-one woman legal definition is in fact the procreative purpose written implicitly into law. But that is a rather indirect way of getting at what is supposedly an exclusively procreative purpose since many one man-one woman couples neither have nor want children. If, legally, procreation were the only purpose of marriage, the requirement could be made explicit. Yet the law allows and supports childless marriages.

Culturally, Maggie’s procreation-only view of marriage is even more questionable. Even couples who have children do not view their marriage as being only or even primarily about procreation. Their marriages are about children, yes, but also love, religious faith, commitment, and caretaking. For those couples who can’t or won’t have children, their marriages are obviously also not justified by procreation.

When confronted with this powerful cultural and familial reality that so sharply contests her vision of marriage, Maggie responds that people “don’t view these marriages as mere instruments for making babies. Nor do I.” Here Maggie recognizes, as she must, that marriage functions culturally and socially in ways that contrast sharply with her view of its sole public purpose. It’s worth asking why we should adopt a view of marriage that reduces its public essence to one single purpose if neither the legal nor the cultural/social understanding of marriage supports the view that it’s only about that one purpose.

That leaves my view, and I think the law’s and our culture’s, that procreation is an important public reason for marriage but not the only reason. We know that it’s an important purpose because, legally, many attributes of marriage relate directly to the rights and responsibilities of married couples who have children. Culturally and socially, the expectation of having children is a common reason we celebrate a new marriage. The new couple is going to raise a family, and in that fact they are happy and we are happy.

But both legally and culturally/socially we have public interests in marriage besides procreation. Notice that the legal rights and responsibilities associated with children apply to all legal parents of children, no matter whether they got those children through procreation, adoption, surrogacy, or reproductive technology. These distinctive child-raising-related legal features of marriage can apply, and do apply, even to parents who can’t or won’t procreate. And they apply with a force that’s just as great no matter the provenance of the children.

(So yes, as one commentator notes, child-rearing explains many of the distinctive features of marriage law. But as I have pointed out, many gay couples are raising children, so they will be able to make use of these features. The rest, who are not raising children, will make use of the many other distinctive features of marriage, just as childless straight couples do.)

The law imposes some duties of care and mutual responsibility on spouses, apart from any children they’re raising. Culturally, the expectations that spouses will love one another, care for another, be committed to each other, live together, are even greater.

There is a public interest in recognizing marriages that can be expected to produce, on balance, both individualistic and communitarian benefits. Procreation is an important individualistic and communitarian purpose of marriage — but it is not, and need not be, the only purpose.

2. How will gay marriage undermine marriage?

Maggie’s answer to this question is a bit harder to pin down. But I think it comes down to these two quotes, each followed by my responses:

“[S]omething big has changed when marriage becomes a union of any two persons. Procreation and family structure are out.”

For purposes of procreation, marriage already is the union of any two persons. Non-procreative straight couples already marry. Non-procreative gay couples, in this sense, change nothing in the existing practice of marriage: most married couples can procreate, but a few can’t. That practice will remain the same.

Why does gay marriage mean procreation and family structure are out? It would seem to mean the opposite, at least with respect to family structure. Maggie’s answer comes in the next quote.

“If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad.”

I take this to be a kind of social-meaning argument. Gay marriage, on this view, would change the meaning of marriage for everybody by sending a message that procreation is dispensable and that mom-and-dad-raising-kids is not the best environment for children.

Social meaning arguments of this sort are very hard to dispute, no matter what the issue is. You can just make a frightening assertion about some future instability brought about by mysterious forces and, really, what can anybody say in response? We don’t believe you? I have frankly struggled with her point, not because I think it’s true but because I’m at once horrified by the result she foresees and very unclear how gay marriage would get us there.

Here’s one way to get at the problem with her prediction. Suppose I said this: “If a sterile couple can get married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad.”

We’d know I was wrong about this social-meaning prediction because we already live in this world and we can see that it has not come true. So if these existing marriages don’t send the harmful message why would gay marriages?

Maggie comes closest to answering this question when she says: “[B]oth 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.”

What does she mean that sterile straight couples are part of “the natural life-cycle of marriage” but sterile gay couples are not? I don’t know for sure, but I can guess. She might be drawing on modern natural-law theorists who argue that sterile straight couples can engage in sexual “acts of a reproductive-kind,” while gay couples cannot. Which comes down to saying, gay couples can’t have straight sex. In other words, gay couples – alone among all sterile couples – must be denied marriage because they are not straight couples. That’s a conclusion, not an argument.

Moreover, given how abstract this idea of “the natural life cycle of marriage" seems it’s hard to see how anybody would take any particular message away from it. Millions of childless married couples are already part of our lives. The presence of gay couples in the mix, to use Maggie’s formulation, “doesn’t signal anything in particular at all.”

One commentator has suggested that perhaps Maggie means that gay marriage would have a “norm-related magnification” effect, adding to an already potent set of harmful cultural signals against procreation and mom-dad-raising-child. But for gay marriage to have a magnification effect we must know what it is magnifying and how. If it sends no signal that the rest of the 97% of marriages will notice, it has no magnification effect. If it sends a positive signal about marriage, it has a (small) subtraction effect from the existing harmful messages.

Similarly, another thoughtful commentator suggests that maybe gays, who he hypothesizes have an unusually large cultural voice, will send signals disproportionate to their small numbers. I doubt gays’ alleged cultural power is really that strong, but even if it were we’d have to ask this question: is it better to have these powerful cultural and intellectual speakers outside the marriage tent throwing rocks at it or simply ignoring it? Or is it better to have them inside the tent absorbing its values?

Let me suggest an alternative message gay marriage might send to the culture: “Marriage is good for you. You should get married. If you’re raising kids, you better get married. Family structure matters.”

Let me suggest a message that’s being sent through the denial of gay marriage: “Marriage is just one alternative among many. Look at us, we’re happy. You don’t need it. You can raise kids successfully without it. Marriage is invidious discrimination.”

Don’t get me wrong, I think gay marriage will send almost no message that heterosexuals will pay much attention to, after the initial furor subsides. They will be 3% of marriages so the numbers will just be too small for people to much notice in their daily lives. The people who don’t like it will dismiss gay marriages with scare quotes, the way they do now: gay “marriages.” They will see these gay “marriages” as counterfeits, their own marriages as the real thing, and go on about their lives.

Others will rejoice that we’ve finally let in a group of people who believe in marriage so much, who need it in their lives so much, whose children will benefit from it so much, that they fought for it as if fighting for their lives.

Tomorrow: Burke, process, and last thoughts.

The most common argument of all against gay marriage is the procreation argument. It can be stated this way: “Procreation is indispensable to human survival. Marriage is for procreation, and procreation should occur within marriage. Procreation is the one important attribute of marriage that supplies the male-female definition. Gay couples can’t procreate as a couple, so gay couples shouldn’t be allowed to marry.”

The argument over procreation has generated a back-and-forth between advocates and opponents of gay marriage that follows a familiar and somewhat tedious pattern. It goes something like this:

Thrust (by gay-marriage opponents): Marriage is for procreation. Gay couples can’t procreate. So gay couples should not be allowed to marry.

Parry (by gay-marriage advocates): But procreation has never been required for marriage, so the premise that “Marriage is for procreation” is wrong, or at least incomplete. Sterile couples, old couples, and couples who simply don’t want to procreate are all allowed to marry. Nobody objects to their marriages, so nobody should on this ground object to same-sex marriages.

The parry by gay-marriage advocates is sometimes called the “sterility objection.” Let’s take the argument beyond this standard thrust-and-parry.

1. The sterility objection to the procreation argument: two responses and counter-responses.

The procreationists have a couple of fairly standard responses to the sterility objection.

First, they say that laws are made for the general rule, not the exceptions. Most opposite-sex couples can reproduce, but no gay couple can. Second, they argue that the failure to require married couples to procreate is only a concession to the impracticality and intrusiveness of imposing an actual procreation requirement. It is not an abandonment of the procreation principle itself. We need no intrusive test to know same-sex couples can’t reproduce (as a couple), the procreationists observe.

The first response to the sterility objection – that laws are made for the general rule — is an evasion. Laws do often state general rules, and they are often over- or under-inclusive in some way. But laws also provide exceptions where appropriate and just, where some policy purpose is served by the exception. Gay marriage, like non-procreative straight marriage, might be a good policy exception to the procreationists’ rule that marriage exists for procreation. Whether gay marriage is a good exception to the asserted general rule that marriage is about procreation depends upon arguments extrinsic to the procreation argument, e.g., whether encouraging stable gay coupling through marriage would benefit gay families and society. (Remember, I’m not making a constitutional argument about whether the government should, as a constitutional matter, be able to make marriage laws that are not narrowly tailored to the state’s claimed interests.)

The second response to the sterility objection – that a procreation requirement would be unduly intrusive – is equally unavailing. If we were serious about the procreationist project – that is, if we were serious that procreation is the only public interest in marriage – we could require prospective married couples to sign an affidavit stating that they are able to procreate and intend to procreate. (We could entirely bar from marriage elderly couples beyond a certain age.) If, say, in ten years they had not procreated we could presume they are either unable or unwilling to do so and could dissolve their union as incapable of satisfying the only public purpose of marriage. That system would not require invasive fertility examinations.

Yet we would never require opposite-sex couples to fill out such a fertility form. I think most people would scoff at the idea, and rightly so. They would even think it’s cruel, especially perhaps to elderly couples. But why? They would scoff at the idea because marriage today is not understood to be essentially about procreation, although procreation-within-marriage is important. Marriage is understood today to have other important public functions and purposes – including providing the individualistic and communitarian benefits I have outlined.

Here the procreation argument suffers an experiential flaw; it is like an argument from another world, not the world we inhabit. In the world we inhabit, procreation is an important but not essential attribute of the public institution of marriage.

This may also expose a potential political flaw in the procreation argument: by repeatedly emphasizing that the only public purpose of marriage is procreation, opponents of gay marriage run the risk of demeaning the many married couples for whom children are either unwanted or impossible. Yet their marriages are celebrated, not simply tolerated and certainly not disdained.

Further, this second response to the sterility objection suggests that the general rule of procreation must bend (1) to the overriding needs and interests of society to help individuals settle down and (2) to the interests of the couples unable or unwilling to live by the procreation purpose. If that exception exists for non-procreative straight couples, why not for non-procreative gay couples? If it would be cruel or pointless to deny them marriage, why not gay couples? If there is an answer to this question, it cannot be found in the procreation argument.

2. Practical consequences to procreation of admitting gay couples to marriage.

Even if the procreation argument seems logically weak, are there practical consequences to human procreation of admitting gay couples to marriage? I can think of two possible fears. One fear is that procreation itself would slow down, perhaps below the “replacement rate,” the level at which humans must reproduce in order to stay ahead of deaths. This slowdown would eventually imperil the species. The other fear is that, as the connection between marriage and procreation is loosened, procreation may increasingly occur outside of marriage. Both could happen at once, and both would be bad.

But neither of these consequences is very plausible. Start with the fear of a population implosion. How would allowing gay couples to wed cause a decline in reproduction rates? It’s not clear why straight couples would stop procreating, or even procreate less, if gay couples could marry. The factors driving people to reproduce — the needs for love and to love another, the instinct to propagate one’s genes, religious obligations — would all still exist if Adam and Steve could marry. If Western civilization is truly facing a population implosion, as some suggest, that is attributable to many complex factors that are already in play (like great wealth and better health in old age), long before gay marriage was even a twinkle in Andrew Sullivan’s eye.

Here’s one possible mechanism arising from gay marriage that might lead to population decline. Professor Douglas Kmiec, quoting Robert Bork, has argued that gay marriage “‘will lead to an increase in the number of homosexuals.’” Kmiec, The Procreative Argument, 32 Hastings L. Q. 653, 661. Perhaps, the procreationist might conjecture, there are some “waverers” – people who stand somewhere between homosexuality and heterosexuality – who will be brought toward more homosexual behavior by the stigma-easing effect of permitting gay marriage. More homosexuals means less procreation, the theory goes.

There’s been a lot of research on sexual orientation in the past few decades, and I’ve never seen good evidence for the waverers theory. Sexual orientation, whatever its causes, appears for the vast majority of people to be unchosen and at least strongly resistant to change based on incentives in public policy. The idea that the incidence of homosexuality in a society varies with the degree of legal repression or acceptance shown toward homosexuality has no empirical support. Richard Posner, Sex and Reason, at 163, 296-97. Homosexual preference appears to be no more common in tolerant societies than in repressive societies. Id. at 296.

But even assuming there are waverers, the idea that they would contribute meaningfully to a population implosion is not plausible. Remember, for this theory to be correct, there need not only to be waverers but enough of them brought into homosexuality by the gay marriage to make any real difference in rates of reproduction. There is no evidence to support the idea that they exist in such substantial numbers.

Not only that, these waverers would have to more than offset the gains in reproduction from allowing gay marriage. After gay marriage is allowed, closeted homosexuals will be less likely to enter unhappy and unstable marriages with partners of the opposite sex. This will free up their heterosexual spouses to seek marriageable partners with whom they can procreate and form more lasting relationships. The resulting reduction in the number of such unstable marriages should be good for procreation rates and good for marriage as a whole, not bad. But this, too, will not be a large enough number to affect reproduction rates.

It’s also not clear why gay marriage would drive more straight couples to reproduce outside of marriage. The legal and social-reinforcement benefits of marital procreation would still be available to them, after all. The problems of non-marital procreation would still be there to discourage it. (Maggie has a theory about this, which I’ll address in the next post.)

But fortunately we do not have to guess at the probability of these cataclysmic consequences. We already have much experience with a world in which there is no requirement to procreate within marriage. No couple has ever been required to procreate in order to marry. No couple has ever even been required to be able to procreate in order to marry. Sterile couples and old couples can marry. Couples physically able to procreate but who do not want to procreate can get married.

These non-procreative categories of childless married couples are already a larger segment of the married population than the small number of gay married couples would be. Everybody knows married couples who can’t or won’t have children. Yet despite their inherent or explicit rejection of the putative marital duty to procreate, and despite the fact that we nevertheless let these non-procreative straight couples wed with abandon, humans continue to procreate and marriage continues to be the normative situs for procreation.

Nobody blames non-procreative married straight couples for the alleged population implosion; and nobody blames them for illegitimacy rates. Why should non-procreative gay couples, once allowed to wed, get the blame for these phenomena?

So here’s where we are: millions of existing married opposite-sex couples are just as non-procreative as any married gay couple would ever be, yet gay couples are to be denied marriage because they are non-procreative.

Does Maggie have an answer for why this different treatment might be justified? I’ll address Maggie’s argument against gay marriage in the next post later today.