Gay Marriage

Gay Marriage Legal Issues in Europe

Same Sex Marriage

See also Registration of Marriage.

Recognizing 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‚Äîotherwise 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‚Äîthe 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‚Äîwho as I say are free to form other contracts‚Äîshould 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‚Äî”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‚Äîand if not it may be for reasons that reveal unexpected wisdom in the passionate public opposition to the measure.

Author: Posner



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5 responses to “Gay Marriage”

  1. International Avatar


    The state’s involvement in marriage is, I believe, explained by two societal concerns. One, the protection of unequal gender spouses. Second, the promotion and strengthening of “marriage” as the institution of preference for the rearing of children.

    Though history has brought us to a point where conventional and gay marriage have converged (gays can have and raise children through adoption or artificial insemination, and the women’s rights movement has eliminated some, though not all, of the need to protect women from their spouses), I believe there remain valid reasons for the state to treat traditional marriage preferentially, and to remain involved in the institution.

    Though some gays would certainly have and raise children in their marriage, I do not think it is in dispute that they would do so at a much lower rate than heterosexuals. While the state does not withhold benefits or recognition of marriage from marriages without children, if a marriage lasts long enough it usually (almost always) does. The same cannot be said of gay couples. Thus, the principal reason for the state’s involvement in marriage, that of the rearing of children, is not served efficiently by conferring benefits to all gay couples.

    Further, as Becker touches on, the homosexual marriage may be an inferior substitute for heterosexual marriage. It may even be superior for all I know, but that is an open question, a question which is best resolved through adhering to tradition and caution, rather than plodding forward despite those unanswered questions.

    The state, then, can choose to withhold marriage either because it thinks insufficient gays would have and raise children, its primary concern, or because it thinks gay marriage is inferior to traditional marriage. Both of these rationales seem to be unassailable from an honest application of the “rational basis” test.

    The second primary concern of the state in marriage is the protection of unequal gender spouses. The state’s regulation of marriage was designed in many ways to protect women from easy abandonment, as well as to protect children from the results of that dissolution. The role of caregiver exposes–and continues to do so to more women than men–one to economic hardships. Though the rise of no fault divorce signals a change in this attitude, I do not think many dispute that the state’s involvement in marriage acts as an equalizing factor (marriage as a partnership, even if the economic power is asymetrical).

    Of course because homosexual marriages are marriages where both partners are of the same sex this concern does not present itself. However, there may be some need to protect the primary caregiver (if there is one), regardless of the sex, for some of the same reasons. Still, this interest is much reduced, especially considering the likely number of gay marriages producing children.

  2. International Avatar


    First off, I would like to assert that I am a strong supporter of gay marriege who is not gay or closely related to someone who is. I feel as if I have a personal stake in the issue based on (among other things) my deep moral belief in promoting equality.

    I was in Boston when legal gay marriages began, and I honestly felt overjoyed as if a great victory had been won for civil rights and fairness. It was a happy day. I do NOT agree with the statement that supporters are less passionate or personally invested in the issue than opponents. Nor do I think this is an issue that only affects gays positively. Everyone benefits from promoting equal treatment under the law, and the law becomes simpler to administer and understand.

    “Most people don’t want their children to become homosexuals, and this aversion is a factor in the utility calculus.”

    Perhaps it is a factor, but the analysis is complicated by the fact that the main reason many people want their kids to be straight is because they fear discrimination and hate crimes will find them if they are gay. This is similar to arguments from 1950 that would say “misegenation is bad because mixed-race kids will be treated poorly”. Well, the correct response to that was/is to stop the poor treatment and discrimination and hate crimes.

    While “outrage” is potentially a legitimate thing to include in the utilitarian calculus, you must be careful to only include the outrage that is rational. People argue against affirmative action for many reasons but no one would include among them “affirmative action makes klansmen feel bad”. Bare desire to harm is not an interest that should ever be counted! (For the same reason we don’t let convicted murderers vote)

    Changing the terminology (civil unions v. marriage) in order to placate the hard-right is a clear signal to gays that even if the results are practically the same, they still are not fully equal or accepted in the eyes of society. So, like with school segregation, we would be likely to find that 1) the two things are not really practically equal, and 2) that difference, even if metaphorical, “may affect hearts and minds in a way unlikely ever to be undone.”

  3. International Avatar


    Ever since I was 14 and read Robert Heinlein’s “The Moon is a Harsh Mistress” I have been a fan of contract based marriages. They represent all of the non-religious aspects of marriage and respect personal autonomy. If the variuos multitudes of religions want to create their own “marriages” let them do so and let them bar whomever they want from participating in their sacrament, but the state should let the markets and choice rule.

    Yes, I think this should include polygamy and polyamory. If a group of persons want to associate in this way why not? A facial objection that it has historically been used as a means to subjugate women and marry children can be addressed. Look to contract law itself for solutions: persons under 18 can void/cannot enter into contract, contracts entered into under duress are voidable, contracts without consideration are voidable, etc.

    No one has raised it, but just to address it now, supporting polygamy does not lead to support of bestiality, etc. Entering a contract requires consent by both parties. Animals are property and cannot consent. You cannot contract with an animal and you cannot marry an animal.

    As for the “rational basis test” not being a real test, see Romer v. Evans where the Sup. Ct. struck down a Colorado Law that prevented any Colorado authority from giving protected status to homosexuals. In doing so it held that there was no legitimate state interest, among other things.

    Sorry for not performing a marginal-cost/marginal-benefit analysis, but I think that has been addressed and I didn’t really feel like going through a list of benefits of extending marriage at this point.

  4. International Avatar


    What I think we’ve got here is a jurisdictional problem. Such that, where does the authority and power of the Civil Law begin and end, and where does the authority and power of the Ecclesiastical Law begin and end. Clearly, the Civil Law is ascendant when it comes to civil unions and as it has stood since time immemorial, Ecclesiastical when it comes to marriage.

    It appears that a well connected (or perhaps powerful voting block) wishes to obscure this long standing differentiation, because it wants to have its way and is concerned that the various religious organisations and councils will not appease them (and as some would say, their vices)on religious and moral grounds. So they are trying to pressure the Civil authorities to suppress the Religious authorities by using the power of the Courts to circumvent what has been the Law.

    This raises an important fundamental issue for the body politic, which is, do we still believe in the separation of powers between Church and State or should we violate this principle and allow the civil authority and power over the various religious groups; simply to appease a small but vocal special interest group?

  5. International Avatar

    John Kelsey

    Is there strong evidence for the nature vs nurture side of homosexuality? It’s certainly intuitive that it would be mostly nature (do you remember any choice about being sexually/romantically attracted to anyone?), but it’s not clear that this is strong evidence, since people often aren’t all that good at picking apart the reasons for why they like or dislike things.

    I thought this was still hotly debated, as most genetics/personal choice/morality/society overlaps are.

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