Fencing About Gay Marriage
Megan McArdle is at pains to point out that she herself doesn’t view her essay as making an argument against legalizing gay marriage, only against a certain blitheness to the consequence of social changes at the margin. I think she protests too much in some ways – at the level of metamessage unburdening oneself of 4400 words focusing on the “pretty arrogant” outlook of legalization proponents with nary an indication of any perceived failings in the approaches of prohibitionists, it’s not surprising that gay marriage proponents will oppose you and opponents gush.
But taking Megan’s essay in the spirit offered, it’s worth trying to see if her case studies offer much support for the continued legal prohibition against gay marriage.
Megan has two arguments about the social effects of policy changes: first, that what matters is the effect at the margins; second, that that effect is dynamic – “each additional illegitimate birth would, in effect, slightly destigmatise the next one,” as she writes discussing changes in welfare eligibility. I think both of her principles are indisputably true. I don’t think they have much to tell us about gay marriage. Let’s consider her examples in turn.
First, the income tax. At its adoption, legislators declined to put a constitutional cap of 10% on the level because there was no need: Americans would never stand for an income tax even that high! Result: you know.
The “marginal effect” argument doesn’t really come into play here, but the dynamic impact one certainly does. Once you have a tax of 9%, a 10% tax doesn’t seem like so much more; once you have a tax of 10%, an increase to 11% – “pennies per family for better schools/tanks/mohair security!” – seems like small beer. Failing to forbid income taxes over 10% combined with government’s hunger for revenue meant taxes over 10%.
Second, the opening of public housing and welfare benefits to unwed mothers. Megan’s argument is that these changes made unwed motherhood marginally more attractive and dynamically more attractive over time, with “”each additional illegitimate birth.” I agree. Here the causal argument is direct: pay for unwed motherhood, you’ll get unwed motherhood. Increase the visibility of unwed mothers, you’ll decrease the stigma against illegitimacy and get more illegitimacy.
Third, the relaxation of divorce laws. Megan argues that the two phases of reform, relaxing requirements for divorce with cause and instituting no-fault divorce, led to more divorce. The causal argument here too is straightforward: make divorce easier to get and you’ll get more divorces. This argument seems to me to more closely resemble the income tax case than the illegitimacy case. In the first and third case, there is a thing a class of people wants that could be forbidden, but is not. They are better able to act on their desires. Their example inspires others to want what they have. In the middle case, it’s not just a matter of removing barriers but of actively incenting the behavior – the state doesn’t just remove a law against the thing you want, it gives you money for it.
I want to leave aside justice claims for the moment, for two reasons. We may come back to why I do later on.
Now the social-conservative case against gay marriage fits the above form-factors poorly, I think. Let’s look at how the change in the laws against divorce weaken the institution of marriage again: they make it easier for the people who want to get out of marriages to do so. As more people leave marriages, they reduce the stigma against leaving marriages. Likewise with the income tax: dropping the barrier allows people who wanted to institute an income tax in the first place to create one, and the lack of a ceiling allows members of the same class to raise it.
Needless to say, allowing homosexual marriage doesn’t remove legal barriers to ending marriages; it removes legal barriers to starting them.
The illegitimacy story – incent a class of people to do X and you get a lot of X – is similarly inapposite. In a regime of legalized gay marriage, no agency will be settling any benefits on heterosexuals for leaving marriage or declining to form them that they aren’t already getting.
The form of the social conservative argument against gay marriage is entirely different: easing couple-formation among Class A is supposed to make couple-formation less attractive to Class B. One version of this argument would hold that Class B so reviles Class A that they will, at the margin, want less to do with any institution Class A has contaminated. Social conservatives on their best behavior are at pains to avoid this one. Instead they argue that marriage is deeply attractive because it is an opportunity to “step[] into an explicitly gendered role,”as Megan puts it, and opening the institution to Class A, gay couples, compromises that.
I can’t say definitively that it doesn’t, because one can’t prove a negative. I can say that the “gendered roles are the it thing about marriage” claim has a distinctly after-the-fact air about it; that is, it feels like the opposition to gay marriage comes first, and the reasoning afterward.
Which gets us to the problem of Chesterton’s fence in the passage Jane quotes. Chesterton’s choice bits:
There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”
This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable.
That’s all well and good. I even agree with it. But note how much more modest Chesterton’s “more intelligent type of reformer” is than the Stanley Kurtzes and Maggie Gallaghers of our day. Chesterton’s conservative does not pretend to know what the fence was for either. He is not, as the social conservatives are, ascribing a purpose to the fence that bears no proven essential relationship to its original purpose. Our modern social conservative is the mirror of Chesterton’s “modern type of reformer.” One projects idiocy on his forebears; the other projects his own preoccupations.
Social conservatives either need a more compelling causal explanation of how gay marriage would harm straight marriage, or they need closer analogies than Megan managed. Give me compelling historical cases of the form “We opened Institution X to Class A and that caused it to weaken among Class B” and you’ll have at least a level of surface plausibility that social conservatives currently don’t have. You won’t have won the argument by any means – at that point we have to weigh your story against the justice claims that have been patiently waiting to be brought back in to the discussion. But at least you’ll have an argument.
Now, let me here take Chesterton’s test by explaining the purpose of the fence and why it is meet and fitting to remove it.
Marriage performs key functions. It is far more functional for couples to rear children than uncoupled individuals. (It may be more functional yet for heterosexual couples to rear children than homosexual ones. SSM opponents make this very claim. That would be a matter for social science to prove and I don’t think it has.) It is probably as important on the other end – as a way by which children separate themselves from their parents on reaching adulthood. Every marriage ceremony I’ve ever attended has been quite clear on this, as is the Bible. (”The wife shall cleave to the husband.”) We know that this is important for genetic mixing. I’d argue it’s also important for social mixing. Marriage as separator of offspring from forebear makes society less clannish. The search for and taking of mate widens social circles and enlarges trust networks while at the same time militating against mere atomism. You don’t just separate from the old family, you cleave to a new one. Marriage provides a person with a tribune, someone you trust to advocate for you in your times of helplessness.
Those seem like very good things indeed, and as good for gays as straights. Indeed, I count the further bourgeiousification of Gay America as one of the chief benefits of legalizing same-sex marriage. But the best reason the fence – SSM prohibition – should come down has to do with the rearing of children. It is a simple fact that gays are rearing more children than ever. They can either do it as married people or singles. I think it’s clearly better that they do it as married people.
Furthermore, this will, if anything, strengthen, not weaken, heterosexual marriage as an institution for child-rearing. Right now a heterosexual man hungry for a “gendered role” has two obvious options open to him – father children out of wedlock, or within. Just as Jane’s welfare mothers could see either women having children with husbands or without, my fathers can see either children being raised by married couples or children being raised outside of wedlock. Gay marrieds raising children aren’t another “gendered role” he can pursue. Hey! Maybe I’ll marry a guy and have kids instead of a woman! He’s not into guys. His choices are “kids within marriage” or “kids outside of marriage.” Gay marriage means the marginal straight guy, the one looking for any excuse to avoid The C-Word, ladies, sees that many fewer “kids outside marriage.”
That is my Chestertonian story. It is unprovable, but I argue that it’s at least as plausible as the prohibitionist story. I’d argue that it’s much moreso. Most importantly, it isn’t even an argument for taking the fence down. It’s an argument for adding another gate.
Comment by Leonard —
April 7, 2005 @ 12:16 am
As you say: it’s unprovable.
.
The social-conservative rejoinder, stated or not, would be that anathematizing gays serves a social purpose. And I’d have to say, there may be something to that. What matters is not just oppressing gays; rather, what matters is oppressing everyone who departs sufficiently far from the norm. On the margin, that is, if we conceive of equality and rights as extending to just anyone, others will want in. It’s all of a piece. Allow gays rights (or provide privileges), then you have to the same for everyone. Foreigners. Criminals. Unmarried women. Patriarchy is at risk. Society as we know it is at risk.
.
I can see the argument. It’s colorable. Maybe gay marriage really will put the nail in the coffin of hetero marriage. Maybe that, in turn, will lead to the downfall of Christian Civilization. A new dark age.
.
Maybe not.
.
My point here is not to make that argument – leave that to Stanley Kurtz. Rather, my point is that one simply cannot know what the “fence” really does. Some knowledge, sure. Your story seems plausible to me. But it’s not a proof.
.
Absent a theory of human society on the same level of predictivity of say, the Newtonian theory of gravity, we’re left some real doubt. And that’s where ideology comes in. Ideology allows us to judge things using relatively minimal information, stuff which we might actually be able to know. Not “what are the social ramifications of marriage”, but, “is it equal protection?”
.
I can’t with any certainty why the fence is there. But I don’t need to know why it’s there if it’s made of human bones. In that case, I push it down.
Comment by dsquared —
April 7, 2005 @ 4:44 am
The thing that interests me is that the word “wedlock” has never, ever, ever been used, other than in the context of some socially conservative policy idea or other.
Comment by Brian —
April 7, 2005 @ 5:02 am
The other problem with this particular argument
against gay marriage is that it ignores the trend
in attitudes towards gays in general. Especially the attitudes of HR departments, which want to be
able to attract desirable employees. So they offer
healthcare and other significant other benefits to
same sex partners. At this point, they are now
offering a benefit to “single” gay employees that
they aren’t offering to “single” straight employees,
so to correct that hetero significant others are
allowed to get the married benefits. And, coupled
to the marriage income tax penalty for dual income
families, you’ve created a scenario where getting
married makes no financial sense for two career
couples. If however, you allow gay marriage, you
can limit spousal benefits to spouses and protect/encourage the institution.
Comment by Frank —
April 7, 2005 @ 7:33 am
Leonard- Thank you. I tried to make that arguement at Obsidian Wings, but with much less eloquence.
.
“I can’t with any certainty why the fence is there. But I don’t need to know why it’s there if it’s made of human bones. In that case, I push it down.”
.
Awesome
Comment by Nicholas Weininger —
April 7, 2005 @ 9:48 am
Very, very nicely done.
Note that your Chestertonian story limits itself to positive effects of SSM vis-a-vis social values that social conservatives unambiguously share. With a little less such limitation, the list could be extended.
For example, those of us who value the legal equality of men and women should support SSM, since if SSM is legal, judges in family-law cases will see more and more marriages that are easy to treat as partnerships of equals. In adjudicating the divorce of a gay couple they won’t have any cultural assumptions to go on about who is “weaker”, who is the better child-rearer, etc. The resultant precedents will also apply to the law of heterosexual marriages, and thus make that law less sexist. Your social conservatives will of course object that those sexist assumptions are good and traditional and rooted in innate biological differences, and they’ll of course be wrong.
Comment by Avram —
April 7, 2005 @ 10:29 am
“Mister Chesterton, tear down this fence!”
Comment by matthew hogan —
April 7, 2005 @ 10:31 am
Ah, the great strength of Unqualified Offerings and its limitations, in a nutshell:
“But taking [fill-in-blank's] essay in the spirit offered…”
Comment by Jim Henley —
April 7, 2005 @ 10:47 am
Matt: If that doesn’t merit a “Heh. Indeed.” nothing does!
Comment by Max —
April 7, 2005 @ 12:03 pm
Policy analysis is to MMcA as Mozart is to “Grandma Got Run Over by a Reindeer.”
Comment by Jess Nevins —
April 7, 2005 @ 12:37 pm
I realize it’s a basic rhetorical error to debunk a hypothetical example rather than the principle it’s meant to illustrate, but…Chesterton ought to have known better than to have chosen such a poor example. Gates and bars were slapped across roads across the U.K. in the 19th century as a way to raise tax revenue for local and national governments. The gate didn’t grow organically; “some person had some reason for thinking it would be a good thing for somebody,” and that reason was separating the citizenry from more of their money.
Comment by the talking dog —
April 7, 2005 @ 1:02 pm
The Israelis have (IIRC) an interesting answer to this conundrum: don’t allow any civil marriages at all. That’s right: all marriages to be recognized in Israel (excepting, I suppose but am not sure, foreign marriages) must be performed by benefit of clergy. Rather than injecting the state in parochial concerns and prejudices– keep it out. Altogether. A legislator in Massachusetts had the same idea (allow city registers to issue ONLY civil unions– marriages require clergy), but was shot down…
Religions need not trouble themselves with rights imposed by law, or much of anything. If American law adopted this approach– register your religious marriage and your state blessed civil union separately, then we’d be fine. We’d have no argument with the reactionaries (that’s the word, folks: same sex marriage is NOW LEGAL IN THE UNITED STATES OF AMERICA, until someone turns the clock back), because we couldn’t make their religion marry gays… merely make the state recognize “civil unions”.
Trouble is, we didn’t do that. And as a result, there are something like 1 to 2 thousand separate mentions in federal law alone (and countless state and local laws to boot) of some attribute (governmental goodie or benefit, tax consequence, privilege, or something) attached to the word “marriage”. That means by not permitting a class of couples to get these attributes (goodies, privilegese, etc.) we are discriminating against people on the basis of gender (not sexual orientation).
Problem is, the damned activist judges are not making decisions at odds with existing law: they are making decisions BECAUSE of existing law. Laws against arbitrary discrimination based on gender. THAT is the default. And fair Megan has simply failed to rebut the “arbitrary” part of that.
I think UO once put it best: “because we think its icky” may be a basis to oppose a policy, but not necessarily a good basis.
Comment by Avram —
April 7, 2005 @ 3:39 pm
Of course, Israel still has religious problems over marriage, they’re just different problems.
In the US, some religious opponents of equal marriage rights argue that the state would go on to force churches to marry same-sex couples using anti-discrimination laws.
Comment by Glaivester —
April 7, 2005 @ 7:59 pm
“And, coupled to the marriage income tax penalty for dual income families”
There is no longer a marriage penalty, I believe, due to the 2001 tax cuts.
Comment by J —
April 7, 2005 @ 11:39 pm
Social conservatives either need a more compelling causal explanation of how gay marriage would harm straight marriage, or they need closer analogies than Megan managed. Give me compelling historical cases of the form “We opened Institution X to Class A and that caused it to weaken among Class B†…
Here’s a recent Class A — interracial couples (Loving v. Virginia, 1967). Have any social conservatives examined that example (not that it would bolster their case)?
Pingback by Noli Irritare Leones » Blog Archive » More links to other blogs —
April 8, 2005 @ 10:23 am
[...] loved this post on same-sex marriage by Megan McArdle, and linked it and several responses to it over at Marriage Debate blog. Stentor has another interesting response to McArd [...]
Trackback by Dust in the Light —
April 9, 2005 @ 12:19 pm
Whitewashing the Fence
There it is, the assumption that social conservatives have ulterior motives when it comes to the same-sex marriage debate: One version of this argument would hold that Class B so reviles Class A that they will, at the margin, want…
Comment by Jaybird —
April 9, 2005 @ 1:45 pm
The unintended consequence that I suspect is most likely from gay marriage is a decrease in child-bearing.
.
The attitude still remains somewhat that the point of marriage is to start a family. I don’t have any numbers to back this particular suspicion up but I suspect that 99% of all children who are planned by both parents are born within wedlock.
.
If marriage loses a little bit of its “it’s a place to start a family” and becomes a “it’s an institution for people who are in love who want to have sex monogamously” just a bit more at the margins, there will likely follow less procreative sex and more interpersonal growth experience sex that does not result in children.
.
Don’t get me wrong, I think that gays should be allowed to marry. I just think that the unintended consequences are a decrease in fecundity across society as a whole.
Pingback by Noli Irritare Leones » Blog Archive » Luther and Purgatory —
April 11, 2005 @ 10:32 am
[...] th the skin, flesh and bones of his sheep. At this point, I’m reminded of a fellow commenting at High Clearing in a same-sex marriage thread that I can’t with any ce [...]
Comment by Detail Picker —
April 11, 2005 @ 5:49 pm
How is it that expanding the definition of marriage to include same sex couples will be the end of the matter? There are groups that would very much like to legalize polygamy; using the same logic as the same-sex marriage movement, and in fact much of the language from Justice Kennedy’s holding in the Lawrence case, they can argue their case convincingly. What basis is there for denying them their right to marry; “two” is just as arbitrary as “woman and man”. If two women can marry, why cannot three? Or four?
Or consider this: if any two men can marry, why cannot two brothers also marry? The only reason for denying marriages on the basis of incest is the issue of cosanguinity leading to birth defects — but two brothers, or two sisters, won’t be having any children in that way, so it is not an issue. How can one logically deny two brothers their right to a same-sex marriage? Once one kind of incest is legal, how is it possible to deny other kinds of marriage formerly made illegal by anti-incest laws?
Opening this gate for one seems to open this gate for a lot more; what are the long term effects on this industrial society of legalizing polygamy, polyandry and other forms of group marriage, and/or incestous marriage? I cannot even guess at this time, and wager that I’m not the only one.
Comment by Jim Henley —
April 11, 2005 @ 6:17 pm
So, Detail Picker. Are you saying you don’t have an argument against gay marriage AND you don’t have arguments against polygamy and consanguinous marriage? Because for an obvious social conservative like yourself, that must be very not comfortable.
Comment by Detail Picker —
April 11, 2005 @ 10:38 pm
Jim Henley wrote:
“So, Detail Picker. Are you saying you don’t have an argument against gay marriage AND you don’t have arguments against polygamy and consanguinous marriage?”
Why, no. Thanks for asking. I’m wondering what, if any, argument the pro-SSM folks have against incest and poly-marriage.
“Because for an obvious social conservative like yourself, that must be very not comfortable.”
It’s a real relief to me to know that people out there in the great world wide web are concerned for my comfort, it really is.
Pingback by Alas, a blog » Blog Archive » Interesting Discussion on Same-Sex Marriage —
April 20, 2005 @ 5:24 am
[...] ng social acceptance of homosexuality can be categorized as anything other than progress. Jim at Unqualified Offerings gets in the deal; answering Megan’s examples and al [...]