May 13, 2012
On Homosexual Marriage
On Homosexual Marriage-Becker
Posner shows how attitudes toward homosexuals have changed dramatically during the past half century. This change did not take place in a vacuum because most sexual and family attitudes underwent revolutionary changes during the same time period. Divorced women were outcasts at that earlier time, whereas now divorced women as well as men are considered part of the normal marital landscape. To be an unmarried mother was then considered shameful, whereas although unmarried motherhood is not yet accepted as normal, unmarried mothers are not ostracized. The pill and other improved contraceptives ushered in a sexual revolution that enormously increased sexual activities of unmarried teenagers and adults.
In today's sexual environment, homosexuality no longer seems exotic or radically unnatural. For this reason, while American anti-discrimination law protects homosexuals from discrimination, acceptance of homosexuals in the workplace and elsewhere would have greatly increased even without legal protection against discrimination. I am not familiar with any studies that assess the causes of the decline in discrimination against homosexuals, but they would show, I believe, that changes in attitudes were more important than legislation.
I am not suggesting that discrimination against homosexuals is gone. The recent resignation of an important member of Governor Romney's staff was apparently forced by the public disclosure that he was a homosexual. Still, such discrimination has greatly declined, and in an increasing number of activities homosexuals no longer have to hide their sexual orientation, and often openly bring their sexual partners to different public events.
In more and more states, although still a minority of states, homosexuals can now form civil unions that give them most of the rights possessed by heterosexual marriages. Moreover, a growing number of companies give surviving members of homosexual unions the same benefits as they give survivors of heterosexual unions. One natural and desirable change would be to give homosexual civil unions the full set of rights that married couples have. Indeed, one may want to go as far as several Scandinavian countries, and give the same rights that married couples have to couples who have lived together for a number of years, even if they never codified their relationships into marriages or civil unions.
Gay couples would of course welcome such changes, but many of them would object that these changes would not go far enough because they want to call their unions "marriages". As Posner indicates, many religious Christians, Jews. and Moslems, and some other heterosexuals as well, strongly object to calling homosexual unions "marriages", although many of these objectors would be willing to give homosexual civil unions most of the rights that married couples have. Yet it is strange that homosexuals can more readily adopt children, or provide the sperm for children that they raise, than they can call themselves "married".
I have argued several times previously that all "marriages" should be basically contractual arrangements between couples, whether heterosexual or homosexual. These couple-specific contracts would specify the duties of each member, including the conditions needed to terminate their arrangement, so that couples rather than laws and judges would determine the conditions under which they stay together or breakup. These contracts would be tailored to the special needs of each couple, and could even be made compulsory in order to take away any information revealed when a person asks his or her mate for a contract (see my discussion of gay marriage on 8/10/2008).
If such contracted civil unions became the norm, homosexual unions would not be any different than heterosexual unions. If civil unions obtained all the rights of marriage unions, then the issue of gay "marriage" would turn only on language, although it is emotionally charged language on both sides of the debate.
As part of my classical liberal views I believe that gays who form unions and want to call these unions "marriages" should clearly have the right to do so, even though many others object to that description of their unions. However, since law is settling the gay marriage issue, the next best solution is to have these laws determined at the state rather than federal level. When laws are at the state level, homosexuals who want to call their unions marriages can move to states that allow that designation, or they should be able to gain residency in states that allow that description, and afterwards return to their states of more permanent residency.
But as Posner reminded me, this type of temporary move to another state runs into the 1996 Defense of Marriage Act, which says that no state is required to recognize a marriage made in another state if it is not between a man and a woman. The Obama administration indicates that it will not enforce the Act, but it is not clear how they can force states to recognize marriages between gays if they do not want to.
Even if homosexual marriages arranged in other states had to be recognized by all states, this kind of evasion of state laws that do not allow homosexual marriages is not ideal. It is similar to the way couples could divorce prior to the 1970s when they lived in states where divorces were banned or difficult to acquire. Many individuals wanting a divorce went for several weeks to gain residency in states like Nevada that allowed divorce. After gaining their divorces, they then returned home as divorced persons.
To repeat, the ideal solution would make all "marriages" contractual civil unions that would specify the rights of both parties. Every couple, including gay couples, would then be allowed to call their arrangement a marriage if they so desired. Unfortunately, such a radical change in the approach to "marriage" is unlikely to occur in the foreseeable future.
Homosexual Marriage—Posner
President Obama's declaration of support for homosexual marriage has focused public attention on the question whether such marriage should be permitted, although so far the response has been rather tepid. It no longer seems a hot issue, though it may heat up in the furnace of a presidential election campaign.
In 1967 the Supreme Court, in a case called Loving v. Virginia, held that the prohibition found in the laws of a number of southern states against interracial marriage was unconstitutional. The decision was the culmination of a long series of judicial, legislative, regulatory, and corporate measures that collectively had eliminated most public, and as well a degree of private, discrimination against blacks. It would have been odd for prohibitions of interracial marriage to have survived the antidiscrimination movement. The evolution of homosexual rights has been similar. In the 1950s, when I was growing up, homosexuals had, as homosexuals, no rights; homosexual sex was illegal (though rarely prosecuted), homosexuals were banned from the armed forces and many other types of government work (though again enforcement was sporadic), and there were no laws prohibiting private employment discrimination against homosexuals. Because homosexuality is much more concealable than race, homosexuals did not experience the same economic and educational discrimination, and public humiliations, that blacks experienced. But to avoid discrimination and ostracism they had to conceal their homosexuality and so could not openly engage in homosexual relationships or disclose their homosexuality to the heterosexuals with whom they associated. Homosexual marriage was out of the question, even though interracial marriage was by the 1950s legal in most states.
Although I knew in the 1950s that there were homosexuals, if asked I would have truthfully said that as far as I knew I had never met one, or expected ever to meet one, any more than I had ever met or expected to meet an Eskimo.
Beginning in the 1960s and accelerating dramatically in the 1990s and 2000s, legal changes and changes in public attitudes resulted in the dismantling of most public and private discriminatory measures against homosexuals. Why the powerful antipathy toward homosexuality gave ground so rapidly and, it seemed, effortlessly, in the sense that resistance seemed to melt away rather than having to be overcome by militant action, is something of a puzzle. Greatly increased tolerance of nonmarital sex, and of cohabitation as a substitute for marriage, reduced the traditional abhorrence of homosexual sex, which was (and to a large extent still is, since only a handful of states recognize homosexual marriage) nonmarital; and with the decline of prudery, deviant sexual practices created less revulsion in the straight population. A number of foreign countries and U.S. states recognized homosexual marriage or close-substitute civil unions.
Another factor in increased tolerance is that as homosexuals began feeling less pressure to conceal their homosexuality, and so began to mingle openly with heterosexuals, the latter discovered that homosexuals are for the most part indistinguishable from heterosexuals, and this created sympathy for homosexuals' desire to be treated equally with heterosexuals both generally and in regard to marriage. Moreover, the older view of homosexuality (especially male homosexuality) as a choice—the "selfish" choice because male homosexuals have on average more sexual partners (because men are on average more promiscuous than women) and didn't have to worry about pregnancy (one reason men are more promiscuous than women)—gradually gave way to realization on the part of most people that homosexual preference is innate, rather than chosen or the result of seduction or recruitment. There is no gene for homosexuality (as shown by the fact that if one identical twin is homosexual, more often that not the other one is heterosexual), but it is highly likely that a combination of genetic factors (studies of identical twins reveal that if one identical twin is homosexual, the likelihood that the other will be is greater than the incidence of homosexuality in the population as a whole) and prental and other biological factors cause homosexuality. See the excellent discussion in "Biology and Sexual Orientation," http://en.wikipedia.org/wiki/Biology_and_sexual_orientation.
That there is a genetic component in homosexuality may seem paradoxical, since homosexuals produce on average fewer offspring than heterosexuals, which might lead one to expect that over time homosexuality would diminish and eventually disappear—which of course has not happened. But in the harsh ancestral environment in which human beings evolved, there was a tradeoff between number and survival of offspring. A family with many children would not be able to feed and protect them; none might survive childhood. Both menopause and homosexuality are ways of increasing the ratio of adult caregivers to children, since homosexuals can provide care to their nephews and nieces and menopausal women to their grandchildren, without either group having obligations to their own children. The result can be a net increase in inclusive fitness (number of descendants); there are fewer offspring but more survive to an age at which they produce offspring.
This is just a theory; it has not been confirmed by evidence. An alternative theory, for which there is some evidence, is that male homosexuality has survived because the female relatives of male homosexuals are more fertile than women who have no male homosexual relatives. This is an alternative genetic explanation for homosexuality.
Whatever the precise causality, there seems very little doubt that homosexuality is innate. It appears to be universal, despite public and private efforts (the latter by parents) to prevent it. Homosexuals invariably report having discovered their homosexual orientation at an early age. And psychologists' efforts to "cure" it have virtually never succeeded, despite the disadvantages even in a tolerant society of being homosexual.
If homosexuality is innate, it becomes difficult to see why it should be thought to require regulation. And for the additional reason that the homosexual population is very small. Kinsey's estimate that 10 percent of the population is homosexual has long been discredited; it appears that no more than 2 to 4 percent is. This small population is on the whole law-abiding and productively employed, and having a below-normal fertility rate does not impose the same costs on the education and welfare systems as the heterosexual population does. It is thus not surprising that in response to the President's announcement of his support for homosexual marriage, Republican leaders cautioned their followers not to be distracted by this issue from the problems of the U.S. economy. This was tacit acknowledgment that homosexual marriage, and homosexual rights in general, have no economic significance.
It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. Many devout Christians, Jews, and Muslims are strongly opposed to homosexual marriage, and to homosexuality more generally. Why they are is unclear. If as appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God's will? Stated differently, why has sex come to play such a large role in the Abrahamic religions? I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.