Baseball Crank
Covering the Front and Back Pages of the Newspaper
January 19, 2011
POLITICS/LAW: The Winning Statistic in the Same-Sex Marriage Debate

There are a welter of issues raised by the public policy debate over same-sex marriage and whether to treat it, for purposes of the law, as identical to traditional opposite-sex marriage. Among other things, there is the broader debate over the propriety of valuing tradition (i.e., the collected experience by trial and error of large numbers of people over time) and the respect we give to broad-based popular sovereignty in evaluating human relationships. But even treated purely as a matter of quantifiable empirical social science, the legal debate comes down to whether there exists any rational basis for distinguishing the two relationships. The burden of establishing the complete absence of such a rational basis is on the proponents of court-mandated "marriage equality." And new Census data makes that burden harder to carry.

While I'm in favor of granting civil-union status to consenting same-sex adults, I have made the point at great length previously (see here and here) that the most obvious legal argument for why opposite-sex relationships are different from same-sex relationships - and can be recognized as such in democratically-enacted laws - is that they are vastly more likely to produce children, for reasons so biologically obvious they should not have to be repeated. Now the New York Times has given us some statistics from the Census Bureau that confirm the relatively low number of same-sex couples that are raising children (even before we get to the issue of bearing biological children): "About a third of lesbians are parents, and a fifth of gay men are." The Times article breaks this out by region, but even its most optimistic spin shows an incidence of child-rearing that would be very low by the standards of opposite-sex couples:

About 32 percent of gay couples in Jacksonville are raising children, Mr. Gates said, citing the 2009 Census data, second only to San Antonio, where the rate is about 34 percent.

Consider, by contrast, the overall Census data for married couples. If you compare the "All Families" line to the "With own children, any age" line, you can quickly calculate that 60.2% of married couples have children in the household, and 74% of those include at least one child under age 18. If you break it out by the age of the heads of household, you see that a very large proportion of married couples in the prime child-bearing years have children at home - 24.6% for married teenagers, 37.7%, 22.8% and 26.1% for married couples 55-64, 65-74 and age 75+, respectively, but for the prime years 58.5% (age 20-24), 69.8% (25-29), 80.6% (30-34), 86.2% (35-39), 84.9% (40-44), 77.8% (45-49), and 62.1% (50-54). And the declining numbers after age 55 simply reflect people who have finished the job of parenthood. If that's not a statistically significant disparity, what would be? I defy anybody to come up with any significantly-sized sample of same-sex couples at any age that shows over 80-85% to be engaged in raising children.

At the end of the day, this is why the real action in the legal battle - other than simply judge-shopping - is in the proponents trying to change the legal standard by which their evidence should be judged. Because the data is against them.

Posted by Baseball Crank at 12:00 PM | Law 2009-13 • | Politics 2011 | Comments (27) | TrackBack (0)
Comments

A. So raising children is the only reason people should be allowed to be "married?" Please start culling heterosexual couples who do not reproduce from the marriage ranks, then. They too should have a separate classification under your argument, right?

B. One reason gay couples frequently don't have kids is that many right-wing homophobes would still prefer a child rot in an orphanage than have two loving parents of the same gender. Right-wing: pre-natal, fine, preschool, screwed!

Just some friendly thoughts. :-)

Posted by: DZ at January 19, 2011 12:27 PM

This is such an intellectually embarrassing steaming pile of rationalizing poop that it doesn't even deserve the time to be laughed at. What a joke. Really, this is so far beneath you it's ridiculous.

Posted by: jim at January 19, 2011 12:34 PM

OK, let's just eliminate marriage all together. The government should eliminate all laws, licencing, etc. related to marriage. That way people can do whatever they want. Hey, they even "marry" animals if they want. What does society care!

Posted by: Lee at January 19, 2011 12:46 PM

Lee, that makes no sense. Or, I guess, it makes a lot of sense. A lot of non-sense.

Posted by: jim at January 19, 2011 1:09 PM

I really cannot figure the dread fear gay people engender in the right wingnuts. Really I can't. Not even when the "smoking gun letter" that just came out of the Vatican shows so much against such homophobia. But really:

1. All marriage is, but a definition, a civil union

2. A "marriage" as performed or "sanctified" by a religious leader is a religious rite. And frankly, if a priest, imam, rabbi, whomever or whatever, it's also their right to say no, since such homophobia does seem built into many religions (I do exclude the Church of the Flying Spaghetti Monster, which honestly makes a lot more sense than the others)

3. The concept that marriage is to produce children was used a lot by Sean Hannity. What was odd is that it was right after one of Rush's marriages--not the last one though. Does that mean people in their 60s 70s and 80s may not marry?

Crank, you have young children. Your job is to make sure they are set to deal with life when you are gone. And yes, to instill your values in them. Give them values; teach them right from wrong; give them your goals, but don't give them your fears.

Posted by: Daryl at January 19, 2011 1:55 PM

"While I'm in favor of granting civil-union status to consenting same-sex adults..."

Separate but equal. That's mighty "white" of you.

Posted by: Berto at January 19, 2011 5:14 PM

Crank,

Let's focus on the purely legal aspect of this. Wouldn't you need to show, even for rational basis review, that somehow recognizing same-sex marriage -discourages- producing children? What's the rational basis for the distinction if recognizing same-sex marriage really doesn't have any effect on opposite-sex couples having children?

Posted by: MVH at January 19, 2011 5:54 PM

No, you just have to show that the legislature has a rational basis for preferring one relationship over the other, and thus treating them differently. That's the way rational basis review works to protect all sorts of laws that do not actually make any sense, after all.

Posted by: Crank at January 19, 2011 5:57 PM

Actually eliminating marriage as a part of our law makes perfect sense. Two people can work out a legally binding civil contract between themselves without the government interfering. Marriage laws establish such a contract that the law enforces. We just eliminate the government and make it a civil matter.

The liberals get their "marriage" anyway the two people want it.

We give no tax breaks based on these civil contracts, hence everyone is treated the same if they are "married" ir not.

Problem solved!

Posted by: Lee at January 19, 2011 6:17 PM

After gay marriage becomes legal isn't it fair to assume that 60% straight couples will continue to have children and 30% of same-sex couples will? So what is the point of the article? In the end it's just old-fashined prejudice. - nonsense really.

Posted by: Tim at January 19, 2011 9:16 PM

Crank,

Is there an explicit Constitutional basis to bar gays from marriage? Isn't this the same as saying Blacks can't marry Whites? This is a rather ridiculous stance you've taken, Crank.

Crank, you seem to be very enamored of Jesus, the Bible, Catholicism, etc. And I know your Church has archaic, and hateful, laws against gays. However, imagine, if you will, if the Bible hadn't been written at a time when homosexuality was so taboo. Do you think if Jesus dined with tax collector, prostitutes, and the lowest of the low, he wouldn't sup with gays?

Jesus is not god, obviously, for there is no god, but don't you think your Good Shepherd was rather inclusive? Wasn't that sorta his point? Why are you so set on keeping people out of the party, then...?

Posted by: Jason at January 19, 2011 10:02 PM

Is there an explicit Constitutional basis to bar gays from marriage?

Yes, it's called the Tenth Amendment: the States have general police powers over these sorts of traditional subjects of state law.

As to the feds, there's no federal authority to bar gay marriage unless the Constitution is amended, but the federal government does have the ability to define who is "married" for purposes of the Internal Revenue Code and other explicily authorized federal laws.

Posted by: Crank at January 19, 2011 10:31 PM

"Yes, it's called the Tenth Amendment: the States have general police powers over these sorts of traditional subjects of state law."

This is the same crap that caused Rand Paul to place his foot in his mouth last year. Remember when he said, technically, the Civil Rights Act was "unconstitutional", because the States should have the right to control such matters? This is the same argument as you make above.

Posted by: Jason at January 20, 2011 8:08 AM

I believe that the legal question is broader than you indicated, and that the evidence you cited is not necessarily dispositive even if rational basis review is applied.

The legal question is not simply whether there exists any rational basis for distinguishing between gay and straight couples for the purposes of legal marriage. Rather, there is the additional question of whether rational basis is the proper standard of review, or if "intermediate" or strict scrutiny should apply. I'm aware the Supreme Court has come down on the side of rational basis review, but that does not mean it was a correct ruling, or that it won't be overturned. Without arguing the merits of which standard should be applied, it should be acknowledged that which is the proper standard of review is also a proper question.

The legal question is also a bit broader because, as someone else has mentioned, it is not at all clear that pro-creation is the only basis of the marriage right. Again, I am aware that much of the Supreme Court's jurisprudence in the area of privacy, marital, and family rights finds its justification in pro-creation. But it is not the only justification the Court has used, and it is not clear that it should be. If we believe in the concept of privacy freedom as a corollory of substantive due process (an assumption with which I gather Crank and some others will take issue, and though they may be right let's take it as a given for now because otherwise the debate isn't about gay marriage anymore but whether straight marriage is consitutionally protected), I don't think it unreasonable to suggest that that right is in some way related to the right to choose one's mate as a fundamental life decision. This seems to me a fairly uncontroversial assumption, even if Anthony Kennedy's pronouncements of them demonstrate the severe need for more precise definition and limiting principles.

With respect to the evidence you cite that gay couples are raising fewer kids than straight couples, this evidence is only meaningful if you also make the following two assumptions: (1) that legalizing gay marriage would lead to an increase in people who are leading "alternative" (to harken back to the 80's and early 90's) lifestyle; and, (2) that legalizing gay marriage would NOT lead to an increase in the number of gay couples raising kids. Neither of these assumptions seem particularly tenable. I don't think people decline to "become" (very poor choice of words, I know. Sorry, wasn't sure what else to put here) gay simply because they can't get married. It's not like gay men are saying, "well, crap, I like guys. But since I can't marry them, I guess I will just be with women instead." Second, and conversely, it seems entirely plausible to me that gay couples do not raise kids as often because they often do not have the protection that marriage affords them. In many (perhaps most? I'm not sure) states, gay couples, AS COUPLES, cannot adopt; only a single man can. If that couple splits up, they do not have the protection of divorce proceedings to enforce custody rights in the child. Heck, they don't have custody rights in the child because they are neither the biological or legal parent. Thus even though a gay parent may have developed a genuine and mutually beneficial relationship with a child over a long period of years, that parent has no legal recourse of the couple fails.

Posted by: Rich at January 20, 2011 9:02 AM

"the federal government does have the ability to define who is "married" for purposes of the Internal Revenue Code and other explicily authorized federal laws."

So you've just destroyed your entire argument. Since you now state that the Feds have powers to determine marriage for the Internal Revenue Code, you are granting marriage a purpose with a civil intent, not a religious one. So in accordance with your own agenda, I'm right and you are wrong. Anyone who wants to "Civilly wed" must get a marriage license. Anyone who wants to be "married in accordance with a religious observance" has no rights at all under our civil law.

Posted by: Daryl at January 20, 2011 10:01 AM

Crank,

I'm a little rusty on rational basis - I don't deal with too many Constitutional issues. I took a look at some of the boilerplate for rational basis, particularly the principle that "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."

You are right - that's an incredibly easy standard to meet. I thought there might be a little more to it, but I guess not.

I haven't thought about the intermediate scrutiny issue much, but my first impression is that rational basis is the right level of review. You can't just say the level of scrutiny should be higher just because you don't like the law. You really have to make the case that as a general class, they should be subject to it. That's a much tougher case.


I

Posted by: MVH at January 20, 2011 12:55 PM

Lee - Easier said than done. Distinctions based on marital status are incorporated in thousands of provisions of local, state and federal law, and whole bodies of law - probate, child custody, etc. - would have to be rewritten by nearly every legislative body in the nation. As I see no realistic possibility that our democratic process could make that happen in a coordinated fashion, it's not worth debating.

Jason - No, it's completely different. I'm not invoking the Tenth Amendment to prohibit the feds from doing anything. I'm just pointing out that the states have always had power over this sort of topic. The federal government is a government of enumerated powers. The states are not. This is Con Law 101, it's not at all controversial.

Rich - As I noted in the post, the difficulty of winning on a rational basis standard is why the proponents keep trying to get a different level of scrutiny to apply. But there's no support for doing so other than a desire to change the outcome. I've also never argued that procreation is the only reason for marriage, just that that one reason - in which the state has a clear interest - is enough for these purposes. I also reject your premise that the state needs to show a hypothetical impact of a different set of laws to justify existing laws - rational basis review doesn't require that, it just says the state has to have some basis for considering two things to be unlike enough to classify them differently.

Daryl - You're playing semantics here and not making the least bit of sense. Of course, distinctions made by law have civil consequences (although I would note that nothing prevents the federal government from adopting, for purposes of federal law, some definition of marriage other than one licensed by particular states). That doesn't mean, to my mind, what it seems to mean to you, which is that the civil consequences of the law impose some sort of restriction on the intent behind the law, or that anyone who gets married in a church or synagogue "has no rights at all under our civil law." But in either event, this whole post is about delineating an obvious secular, empirical aspect of marriage, which is that opposite-sex married couples are more likely to have children and therefore of greater interest to the state.

Also, you forget the point discussed in my last post on this - a huge amount of the objection to civil unions is the contention that the term "marriage," because of the cultural freight it has built up from tradition and its association with the religious rite, is itself a thing of symbolic value. So I ask: do you have any objection to civil unions (assuming for the sake of argument you're talking about California-style unions that have little if any distinction in legal right from marriages)? It seems, from your visceral hostility to any linkage between the legal right and the cultural symbol, you'd be fine with that.

Posted by: Crank at January 20, 2011 1:15 PM

I guess what I've tried to separate is the terms marriage and civil union. Whether they mean the same or not, the civil rights conferred on them are the same, and that is my issue. If someone isn't "married" they don't have inheritance, child custody rights, medical decision rights, joint taxation rights. The keyword is "rights." And also, as I said, I could care less if a Priest, Rabbi, or whomever refuses to perform a gay marriage, or a mixed religious one. That is the perogative of the religion. But when a priest can "marry" a couple and it confers on them "civil" rights that have nothing to do with a religious function, the state should get out of it. Because there is no compelling argument that it's better for male/female marriages to be the only sanctioned ones because they are more likely to have kids. Because then you should not allow for anyone who can't have kids be married, be they gay or straight.

It's semantics if we are arguing only over a word, but not when we are arguing over basic constitutional rights. I am making sense, but only if you agree with me. Fine. You aren't making sense to me. I would rather be wrong my way than yours, because wrong your way denies rights to many many people. Wrong my way leaves the right quaking in fear, but that's all.

Posted by: Daryl at January 20, 2011 2:05 PM

Crank,

Wow. Even considering your usual standards on the use of data to arrive at a pre-ordained conclusion, this post is a feat of gymnastics that would undoubtedly earn all 10’s at the Olympics.

The “collective experience by trial and error over large periods of time” – the “law of big numbers” in probability theory – is a reasonable way of finding patterns in random events. In the making of policy? Not so much.

Your entire analysis ignores the historical context in which gay and lesbian people have been treated. For most of history, gays and lesbians have been treated as outcasts, and even as criminals. They have been forced to live their lives in the closet. Until very recently and, in many parts of the country, even now they must continue to live that way or face retribution. Accordingly, their ability to adopt children or, in the cases of lesbian couples, to give birth have been exceedingly limited. Census data showing fewer same-sex couples to be raising children is exactly what anyone would expect.

Under your “logic,” if one were considering not too long ago whether women should allowed to vote of blacks to attend college, and the statistics showed men voting in far higher percentages than women or whites graduating from college in far higher percentages than blacks, you would have your “winning” statistic and women would not vote and blacks would still be segregated.

At bottom, I remain perplexed about one thing. What are [the collective] you so afraid of? How does same-sex marriage threaten “traditional” marriage? “I defy anybody to come up with any significantly-sized sample” showing how same-sex marriage harms “traditional” marriage.

Oh, and if you want an enumerated power to support federal regulation, how about " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" and "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Posted by: Magrooder at January 20, 2011 4:21 PM

Crank,

I don't see how arguing for a different standard of review necessarily undermines the argument that the gay marriage ban fails rational basis review. The distinction can still fail rational basis review even though a higher standard of scrutiny is applied. Maybe as a practical matter arguing in the alternatives undermines credibility to a certain extent, but as a matter of logic I don't see why that should be the case. I also take issue with your suggestion that there's no support for changing the standard of review other than the desire to change the outcome. Again, I acknowledge that the Supreme Court has come down on the side of rational basis review here. That decision, though, was hardly a slam-dunk: it was 5-4. Moreover, it is in my opinion inconsistent with prior case law determining when higher levels of scrutiny are warranted. For example, strict scrutiny, as originally conceived by Justice Stone, was though to apply in three situations: (1) legislation restricting participation in the political process, on the theory that the political process should be the first line of defense against undesireable legislation and judicial intervention is thus warranted where the rules of the game are being constricted; (2) legislation aimed at "discrete and insular minorities," on the theory that precisely because they are minorities, they cannot, by definition, protect their rights in a political system based upon majority rules; and, (3) legislation restricting "fundamental" rights." Obviously, (1) is not at issue in the gay-marriage debate. I do submit, however, that gays constitute a minority deserving of heightened judicial protection. Perhaps homosexuals are neither discrete nor insular, but then again neither are women and the Supreme Court has applied a heightened standard of review to gender discrimination. Moreover, woman actually constitute the majority; homosexuals certainly do not. Lastly, there certainly is a history of discrimination against homosexuals in this country, although I concede that it certainly does not rise to the level of that faced by African-Americans, the paradigmatic "discrete and insular minority" (I won't bother comparing it to discrimination suffered by Indians, hispanics, Jews, or anyone else, simply because the "my group's had it tougher than yours" debate is pointless at best and harmful at worst). And with respect to (3), marriage has explicitly been held to be a fundamental right. So, although there may be nothing directly on point, and it may even be that the better weight of the case law is contrary to my position here (though I don't think that to be the case), it certainly is not the case that there is "no" support, other than a desire to change the outcome, for the argument that a higher standard of review should be applied.

It's a fair point to say that procreation need only be a conceivable, and not the sole or even dominant motivation for it to serve as a justification under rational basis review. And I don't mean to suggest that the state need "show a hypothetical impace of a different set of laws to justify the existing set of laws." They don't. As I believe you have noted, under rational basis review the state need not show anything. The burden is on the claimant to show that the state's purported justification is not a rational one. My point is that to the extent that procreation is the justification for banning in gay marriage, it is not a rational one because the state has no basis, rational or otherwise, for believing that distinguishing between homosexuals and straights does not further the goal of procreation. Yes, it is true that straight couples or much more likely to have kids than gay ones. But that is only a rational basis for believing that a gay marriage ban facilitates procreation if prohibiting gay marriages actually leads to fewer gay couples. This may not even be strong enough-on this justification, it's not enough that the distinction reduce the number of gay couples. Rather, it would have to actually increase the number of straight couples. Thus although the state does have evidence saying that straight couples raise more children than gay ones, it does not have any evidence to suggest that banning gay marriage will lead to more kids because there's nothing to suggest that such a ban would either reduce the number of gay couples or increase the number of straight ones. Now it's a fair response to say that because it's rational basis review the state is not required to produce such evidence, and that the claimant actually has that burden. Do I have the empirical evidence that would likely be necessary to win on this point where rational basis is applied? No, I don't. But I feel reasonably confident that if proper methods were employed, sociological studies would likely bear this out. And I'm asking this as an honest question: As a matter of sheer logic, does it seem to you that banning gay marriage will actually reduce the number of gay couples while increasing the number of straight ones? As I said in my previous post, I don't believe this to be the case. But I'm more than willing to listen to the contrary position.

Rich

Posted by: Rich at January 20, 2011 5:05 PM

Lee - Easier said than done. Distinctions based on marital status are incorporated in thousands of provisions of local, state and federal law, and whole bodies of law - probate, child custody, etc. - would have to be rewritten by nearly every legislative body in the nation. As I see no realistic possibility that our democratic process could make that happen in a coordinated fashion, it's not worth debating.

Really? You can't possible see a situation in which all existing marriages are 'grandfathered' based upon pre-existing law, and that 'marriage', as defined and legislated by the state, as we see it today, is withdrawn. In it's place, 'marriage' no longer exists, but all couples, regardless of sexual orientation, religion, etc..., will be recognized by the state (and this is all that matters, legally speaking) as being joined in a civil union, with all of the same rights that previously existed for what was previously defined as Marriage.

At that point, you're only talking about semantics, and the definition of the word 'marriage' vs. 'civil union'. However, all of the rights remain the same. There should be no reason why reasonable people on both sides of the debate could not agree on these terms. If you're part of the pro-gay marriage crowd, and this doesn't work for you, well I fear your intent was never to gain equal rights, but to redefine what marriage is. If you're part of the anti-gay marriage crowd, and you can't live with this either, then your proclamations about 'protecting marriage' are a sham, and you're simply seen as the bigot you most likely are.

If a church wants to perform a marriage for a gay or lesbian couple, that's completely up to them. If a couple (gay or straight) want to call themselves married, regardless of whether or not their nuptials were held in a church, or in city hall, that's up to them.

However, as far as the state is concerned, it's just a civil union.

Posted by: AgentW at January 20, 2011 5:38 PM

AgentW,

I completely agree.

Posted by: MVH at January 21, 2011 8:54 AM

For some time I had no visceral understanding of why homosexuals chose with such seeming desperation to gain legal status for their loose and often transient unions. Eventually it became clear. They know (consciously or sub-consciously) that perverted forms of sex are wrong (not necessarily morally wrong so much as biologically and socially non-productive) and guilty consciences drive them to demand the forms of social acceptance.

Desire for civil advantages--better tax treatment, visitation and inheritance rights, etc, most of which can be gained via simple clerical work--is nothing but a smoke screen.

Posted by: Dai Alanye at January 22, 2011 11:53 AM

Good post, Crank.

What I find truly curious is the argument that gay marriage will not have any effect on regular marriage. Obviously it will. Actually, this goes well beyond that single issue. The century that just passed was filled with unexpected results caused by "minor" changes that were obviously not going to impact anyone. Giving monetary support to single mothers (the right thing to do, mind you) would not influence any young girl to become a single parent. Why would it? A few bucks being thrown my way would not in any way change how I, personally, would act, so why would it impact anyone else?

*FACE PALM*

Never forget that there are people on the fringes who could go either way. That irrelevancy that makes no difference to you will be more than enough to change the decisions of many. And once the fringe moves in one direction or another, that simple momentum can push more people in that direction. Suddenly, the entire landscape has changed fundamentally. But you have not personally changed anything, so I guess nothing really has changed, has it?

When you reward something, you get more of it. If you punish something, you get less of it. Those are the general rules. If you cannot imagine how a change could make a difference, you do not have much of an imagination.

Posted by: Paul at January 22, 2011 2:21 PM

Paul,
I've been saying the same about corporate donations to elections.

Posted by: Berto at January 22, 2011 3:06 PM

Dai,

Thanks for underlining in no uncertain terms the true nature of this whole ludicrous argument. Well done.

Posted by: jim at January 22, 2011 4:18 PM

I have to agree with jim.
Fantastic use of irony by Dal, which really spelled out the morally bankrupt position of the anti-same sex marriage crowd.
Kudos, Dal. Well played.

Posted by: Berto at January 23, 2011 12:31 AM
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