Gay Marriage

The surprising decision of Spain, once the most Catholic country in Europe (except for Ireland), to recognize gay marriage—a decision that comes in the wake of a similar decision by Canada and, of course, by the Supreme Judicial Court of Massachusetts—presents an appropriate occasion on which to consider what light economic analysis might shed on the issue.

Economics focuses on the consequences of social action. One clear negative consequence is the outrage felt by opponents of gay marriage and of homosexual rights in general. Philosophers like John Stuart Mill would not consider that such outrage should figure in the social-welfare calculus; Mill famously argued in On Liberty that an individual has no valid interest in the activities of other people that don't affect him except psychologically. (Mill had in mind the indignation felt by English people at Mormon polygamy occurring thousands of miles away in Utah.) But that is not a good economic argument because there is no difference from an economic standpoint between physical and emotional harm; either one lowers the utility of the harmed person.

The issue is more complicated to the extent that some of the outrage is based on fear that making homosexual relationships respectable by permitting homosexual marriage will encourage homosexuality. Most people don't want their children to become homosexuals, and this aversion is a factor in the utility calculus. However, they are probably mistaken in thinking that homosexuality is chosen; there is compelling evidence that sexual orientation is an innate (probably genetic) rather than acquired characteristic. It is not clear what weight, if any, society should give to opinions formed on the basis of scientific error.

Obviously there are benefits to homosexual couples from marriage—otherwise there would be no pressure to extend marriage rights to them. (Whether, given the alternative of civil unions, there are incremental benefits to marriage is a separate question that I discuss later.) Some of these benefits appear to impose no significant costs on others and thus are clear social gains: an example is that a married person does not have to have a will in order to bequeath his property at death to his spouse. Unless "outrage" costs are high, such benefits would, in an economic analysis, warrant recognizing gay marriage.

However, other benefits to married couples impose costs on third parties; an example is social security spousal and survivor benefits, to the extent they are not (and usually they are not) fully financed by the social security taxes paid by the person bestowing or obtaining the benefits. But such redistributive effects are equally imposed by heterosexual marriage, so they don't make a strong argument against homosexual marriage, especially since homosexual marriages are unlikely to be a significant fraction of all marriages. Only 2 to 3 percent of the population is homosexual and, judging from experience thus far, lesbians, who are far outnumbered by male homosexuals, seem much more interested in homosexual marriage than men are. Although I am not able to verify this figure, I believe that about two-thirds of gay marriages are lesbian, even though only about a third of homosexuals are lesbian. If this pattern persists, the total number of gay marriages will probably be very small relative to the number of heterosexual marriages.

The more fundamental economic question is why marriage is a legal status. One can imagine an approach whereby marriage would be a purely religious or ceremonial status having no legal consequences at all, so that couples, married or not, who wanted their relationship legally defined would make contracts on whatever terms they preferred. There could be five-year marriages, "open" marriages, marriages that could be dissolved at will (like employment at will), marriages that couldn't be dissolved at all, and so forth, and alimony and property settlement would be freely negotiable as well. The analogy would be to partnership law, which allows the partners to define the terms of their relationship, including the terms of dissolution. As with all contracts, the law would impose limits to protect third-party interests, notably those of children.

If outrage costs are set to one side, a purely contractual approach to (or replacement for) marriage makes sense from an economic standpoint because it would permit people to define their legal relationships in accordance with their particular preferences and needs. For those who did not want to bother to negotiate a "marriage" contract, the law could provide a default, one-size-fits-all solution—the conventional marital status embodied in state marriage statutes. That would reduce transaction costs for those people content with the standard "form contract." The law would, however, have to decide what contractual relationships qualified for social security and other public benefits to which spouses are entitled under current law.

The contract approach to marriage may seem radical, but that is because of a lack of historical perspective. Marriage has changed enormously over the course of history. In many cultures, it has signified the purchase of a woman by a man's family. In other cultures, instead of brideprice, there is dowry (an approximation to the purchase price for a husband, paid by the wife's family.). Arranged marriages, often of children, have been common. Divorce at will by the man only has been common; likewise, of course, polygamous marriage (including in the Old Testament). Trial marriages, defeasible if the wife fails to become pregnant, were a Scandinavian institution. Shia law recognizes temporary marriages. "Companionate" marriage, in which husband and wife are expected to be best friends, is a modern institution. In short, marriage has changed greatly in history, and it would be foolish to think that the current marriage conventions will remain fixed for all time. With the rise of no-fault divorce, the enforcement of prenuptial agreements, and the decline of alimony, marriage is evolving in the direction of contract. That evolution has contributed to the movement for gay marriage. For, as marriage becomes more like a contract, it becomes harder to see why homosexuals—who as I say are free to form other contracts—should be excluded from its benefits.

Under a contractual approach, gay marriage as an issue would disappear, because the state would not be being asked to "recognize" gay marriage and by doing so offend people who are distressed by homosexuality. No one thinks that homosexuals should be forbidden to make contracts, and marriage would be just a contract so far as any legal consequences were concerned. It would be left to individual religious sects to decide whether to permit church marriages of homosexuals.

The most remarkable aspect of the current controversy is that it is mainly about a word—"marriage." The reason is that although most Americans still oppose civil unions (among American states, only Vermont and Connecticut authorize civil unions, though New Jersey authorizes a related arrangement called domestic partnership; a number of foreign nations now authorize civil unions, some under the name "registered partnership"), I imagine that if the homosexual-rights lobby dropped marriage from its agenda and put all its effort into lobbying for civil unions, many states would soon recognize them, and eventually the federal government would follow suit and grant parties to such unions the legal status of spouses for purposes of social security and other federal laws; when that happened, there would be no practical difference between civil unions and marriage. Why so much passion is expended over the word "marriage" baffles me. After all, even today, and even more so if civil unions were officially recognized, homosexual couples can call themselves "married" if they want to. And this brings to the fore the disadvantage of treating marriage as a legal status. Were it just a contract, government would have no role in deciding what word the parties could use to describe the relationship created by it.

Although personally I would not be upset if Illinois (where I live) or any other state decided to recognize homosexual marriage, I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion; and here it should be noted that although the margin in the polls by which homosexual marriage is opposed is not great, the opponents tend to feel more strongly than the supporters. Most supporters of homosexual marriage, apart from homosexuals themselves (not all of whom favor homosexual marriage, however), and some (not all) of their parents, support it out of a belief in tolerance rather than because of a strong personal stake, whereas many of the opponents are passionately opposed, some because they fear homosexual recruitment, contagion, etc., but more I think because they believe that official recognition of homosexual marriage would disvalue their own, heterosexual marriages.

Of course it is often the duty of courts to buck public opinion; many constitutional rights are designed for the protection of minorities. But when, as in this case, there is no strong basis in the text or accepted meaning of the Constitution for the recognition of a new right, and that recognition would cause a powerful public backlash against the courts, the counsel of prudence is to withhold recognition. Doing so would have the additional advantage of allowing a period of social experimentation from which we might learn more about the consequences of homosexual marriage. One state, Massachusetts, already recognizes homosexual marriage, as do a small but growing number of foreign nations (Spain, Canada, Belgium, and the Netherlands). Perhaps without judicial intervention gay marriage will in the relatively near future sweep the world—and if not it may be for reasons that reveal unexpected wisdom in the passionate public opposition to the measure.

These were fascinating comments, to which I cannot do full justice.

One issue that a number of comments raise is whether honosexuality is truly genetic or otherwise innate, or is a choice. Some distinctions will help to focus the issue. First, there is a fundamental difference between homosexual behavior and homosexual orientation. Many heterosexuals engage in homosexual behavior when there is no heterosexual alternative open to them--e.g., men in prisons or on naval vessels (before they were integrated), teenage boys in all-male boarding schools, and young men in Mediterranean cultures where marriage is late and women are largely unavailable for sex outside of marriage. I discuss this "opportunistic" homosexuality at length in my 1995 book* Sex and Reason*. There is also opportunistic heterosexuality--notably, men and women who enter heterosexual marriages to have children and/or conceal their homosexuality. I can't see a good reason for encouraging either kind of behavior.

Concerning homosexual orientation as distinct from behavior, there is an important distinction between genetic and innate determinants. One could be born possessing a particular trait because of one's genes, or because of some accident during pregnancy. In either case, the trait would not be "chosen." In the case of homosexual orientation, there is a fair amount of evidence that it is genetic; I discuss this in my book; also, a recent study reported in the New York Times actually found a gene that causes homosexual behavior in fruit flies. The evidence that homosexual orientation is, if not genetic, certainly innate is more diffuse but cumulatively persuasive, and includes the fact that homosexuality seems to crop up in all human cultures, including ones that reprobate it, and the almost complete failure of efforts to "cure" homosexuality despite the strong incentives of those who submit to such treatments. The "cure" when successful consists not of acquiring heterosexual orientation but of suppressing homosexual behavior. If homosexual orientation were simply a "bad habit," it could be broken more easily than cigarette smoking, an addiction that has a physical as well as a psychological dimension; no one thinks it can be.

Once the innate character of homosexual orientation is accepted, the way is paved for analogizing, as a number of the comments do, the claim of equality for homosexuals to the claim of equality for members of racial minorities--the latter a claim almost universally accepted in this society. I accept the analogy, and of course also accept that the Supreme Court in Loving v. Virginia held that it is unconstitutonal for government to forbid interracial marriage. My reasons for nevertheless opposing courts' ruling that it is unconstitutional to forbid gay marriage are twofold. First, the courts would benefit from a period in which experience with gay marriage in one or more states and several foreign nations, together with growing experience with civil unions, would lay a solider empirical basis than exists now for assessing the consequences of gay marriage. There is value in social experiments, and hence in not terminating them prematurely. (Compare the bad practice of terminating clinical drug trials as soon as there is some, but often incomplete and inconclusive, evidence that the drug being tested does have some therapeutic value, which the placebo administered to the control group does not.)

Second, and at the risk of seeming to take a Realpolitik approach to constitutional law, I don't think it's the business of the courts to buck public opinion that is as strong as the current tide of public opinion running against gay marriage. That is the lesson of the response to Roe v. Wade, even though there is far more public support for abortion rights than for gay marriage. Because the basis in conventional legal materials for creating a constitutional right either to abortion or to gay marriage is extremely thin, opponents cannot be persuaded that the creation of these rights by courts is anything other than a political act by a tiny, unelected, unrepresentative, elite committee of lawyers.

It is true of course, as one of the comments pointed out, that Brown v. Board of Education, in declaring racial segregation in public schools illegal, outraged many Southerners, but this was understood to be the reaction of a national minority (Southern whites) selfishly motivated by a desire to maintain black people in a politically and economically subordinate, dependent position.* Brown *would have been unthinkable--and in my pragmatic view unsound--had the case arisen in 1900 rather than the 1950s, because in 1900 the vast majority of the American population would have considered compelled racial integration of public schools improper. Moreover, I do not think the opposition to gay marriage is primarily motivated by a desire, even an unconscious one, to subordinate homosexuals to heterosexuals, or by a fear of homosexual recruitment--though that is a factor, as I mentioned in my original posting. I think the main basis for the opposition is religious and (responding to another comment) that such opposition is different from opposition based on a scientific error. Religion is not scientific, but there is a difference between a belief that is demonstrably based on error and a belief based on a system of thought that science neither supports nor refutes. (Science cannot refute the existence of the soul, for example, because there is no scientific test that could refute it. Sophisticated religions are careful to place their key claims beyond the possibility of scientific falsification.) In a democratic society, one has to respect religious beliefs; and no reasonable theory of the meaning of the religion clauses of the First Amendment permits one to argue that religious belief cannot be permitted to influence secular law. No one supposes that punishing murder is an establishment of religion just because the Ten Commandments--a religious code--states "Thou shalt not kill."

Although I don't think that courts should force gay marriage on the society, the arguments against gay marriage do not strike me as compelling. For example, it is true that the institution of marriage is oriented toward the production and rearing of children, but there are so many childless marriages, including second or third marriages of divorcees or widows or widowers, that it would be arbitrary to forbid gay marriage on the ground that, on average, such marriages produce fewer children. And indeed, if it is correct that most gay marriages will be between lesbians, the average number of children in gay marriages may not be significantly below the norm, since most lesbians, like other women, I imagine want to have children. Nor am I aware of evidence that children raised in homosexual households are on average more maladjusted, unhappy, antisocial, etc. than the rest of us; the evidence I reviewed in Sex and Reason did not support such a hypothesis, though the book was published a decade ago and perhaps there is now some evidence to support it. Finally, it is unclear to me that marriage is any longer*heavily * subsidized--there is after all the "marriage tax" to consider.

One last point. One of the comments points out correctly that civil unions do not give homosexuals the full equivalent of marriage because the federal government refuses to recognize them as marriage equivalents for purposes of social security and other federal benefits. But that is equally true of gay marriages contracted in Massachusetts: the federal government does not recognize these as "marriage" for federal-law purposes. I believe that the prospects for federal recognition of civil unions would be greater if the homosexual-rights movement dropped gay marriage and focused entirely on civil unions. Gay marriage is the red flag before the bull.