Same Sex Marriage Is Not the Same As Opposite Sex Marriage

At the core of the two same-sex marriage cases argued this week before the Supreme Court is the fundamental question of whether the Constitution requires the state and federal governments to treat same-sex marriage exactly the same as traditional, opposite-sex marriage for all purposes for all time, or whether it is permissible to draw reasoned distinctions between the two, ranging from California’s simple reservation of the term “marriage” to opposite-sex couples to the federal government’s comprehensive reservation of all federal benefits of marriage (including joint tax filings, Social Security benefits and immigration status) to opposite-sex couples. I respectfully submit that this should not be a difficult question. Common human experience, basic biology, and existing social science all confirm that there are significant differences between SSM and traditional marriage. Whether or not you support SSM as a political and policy matter, there should be no doubt as a legal matter that the state has the same legitimate right that it has always possessed to draw distinctions between the two in the many, many areas of law that touch on marriage and family life.
I have not, over the years, spent much time or energy on the battle over political recognition of same-sex marriage; while I don’t think it’s a wise idea, it is also not likely to have enormous consequences, for reasons I discuss below. Democracy works, however imperfectly: things done legislatively can be modified or undone the same way, can be adapted in different ways to the needs of different jurisdictions, and can be passed or amended with protections for conscientious dissent. Personally, for two decades, I’ve supported the “live and let live” option of civil unions, the moderate solution that allows people the freedom to choose whatever partner they want and make a life together, with the basic rights of contract, inheritance, hospital visitation and the like. Call it a marriage if you want, but without the official endorsement and coercive power of the state behind the name.

But the democratic process is one thing. A judicial determination that the Constitution prohibits recognition of any distinctions between the two institutions for all time would have much more far-reaching effects on our laws – effects we may not even be able to anticipate or foresee until creative lawyers have gone off to the races with this freshly-minted legal doctrine. We have seen, over and over, how changes in law and policy produce unforeseen or unintended consequences in the family and society; the institution of marriage in particular has buckled badly under a long series of liberal social experiments over the past five decades. You’d think that by now we would at least have learned to stop using irrevocable court decisions to open Pandora’s Box.

It does the law no good to pretend things that are not so. Whatever the merits of SSM, it is not the same thing as marriage between a man and a woman, and the differences are neither irrational nor insignificant. Even if you support SSM, the only reasonable conclusion is that male-male or female-female marriage is not the same as male-female marriage. Let us count the most obvious ways.

I. Children

Marriage has many facets: it’s an emotional coupling, a religious sacrament, an economic unit, and the basic building block of social organization of all kinds. But the aspect of marriage that is of most urgent interest to the state is its role in producing children and creating a home for them. Children are, literally, the future of the state: no kids, no future. They are also the aspect of married life that the state traditionally involves itself in most heavily, from child custody law to the substantial public role in education.

And there is no disputing the facts that (1) opposite-sex couples are dramatically more likely to produce children in marriage than same-sex couples; and (2) opposite-sex couples are dramatically more likely to produce children outside of marriage than same-sex couples. Both facts, combined with the state’s interests in promoting the birth of children and having them reared in stable, two-parent homes, create a compelling state interest in promoting traditional opposite-sex marriage that simply does not exist in the case of SSM.

And that’s before we get to the distinct question of whether same-sex marriages are truly the equivalent of a home with both a father and a mother.

A. Where Babies Come From

Even in an age when modern science can provide children without sex, virtually all of the world’s children are the product of opposite-sex unions, for obvious reasons. If we evaluated our laws on the basis of common human experience accessible to the average voter – as was the case for the first century and a half of our democracy – that would be the end of the argument (the Bill of Rights has served us just fine even though it was adopted without the benefit of social-science studies). The available data, unsurprisingly, supports the same conclusion: far lower rates of child-rearing among same-sex couples.
I looked at this issue in 2011, in response to a New York Times writeup of 2009 Census Bureau data showing that “[a]bout a third of lesbians are parents, and a fifth of gay men are.” A rising proportion of those children are adopted: 19%, up from 8% a decade ago, which is good news in that adoption is a good thing, but also a reminder of the distinction from how traditional marriages operate. A more recent American Community Survey report from the Census Bureau put the estimate at 593,000 same-sex couples, of whom 115,000 (19%) had children age 18 or under in the home – but 15.9% of those couples had no “own children” (a group that includes biological children, adopted and step-children), more than twice the rate of married couples with children in the home. Thus, the actual “own children” rate is 16.3%.

By contrast, looking at the 2010 CPS data and drilling into Table F1, we can see more detailed data on how opposite-sex married couples have families. Among married couples, there are 24.575 million families with “own children” under age 18 out of 58.41 million overall – 42.1%, or two and a half times the rate of same-sex couples. And when you break down the married couples by age, what you see is that the percentage with minor children in the home peaks at 83.8% of married couples age 35-39. Only about 15% of opposite-sex married couples between age 35-45 have no children living with them at all. You will look long and hard for a sub-sample of same-sex couples that looks anything like this. The bulk of couples with no children at home are senior citizens whose kids have grown up:

That’s before you get to the question of how many children these families have. Comparative data is harder to come by on this point, but anecdotal experience suggests that there are very, very few same-sex couples with three or more children in the home. By contrast, in the peak childbearing years, we see that more than a quarter of married couples are families of five or more, and over 60% are families of four or more:

Ten years into the SSM experiment in Canada, we see a similar disparity:

There are approximately 21,000 married same-sex couples in Canada, out of 6.29 million married couples. Same-sex couples (married and unmarried) constitute 0.8% of all couples in Canada; 9.4% of the 64,575 same-sex couples (including common-law and married) have children in the home, and 80% of these are lesbian couples. By contrast, 47.2% of heterosexual couples have children in the home.

(As an aside, we will encounter a few times in this essay the distinctions between gay men and lesbians; suffice to say that what can be generalized from the data about one group is not always true of the other. Gay men and gay women are still men and women.)

The evidence on this point is clear, and consistent with elementary biology and common experience: married opposite-sex couples are significantly more likely to be raising children than same-sex couples, and quite likely more children. A government interested in the next generation will rationally be much more interested in the opposite-sex couples.

B. Where Adults Come From

1. Motherhood And Its Deniers

Is there any rational basis to conclude that two parents of the same sex are not the equivalent of a mother and a father? You would think that common human experience tells us that of course there is. Not everything of value or importance in life can be quantified by social scientists. For example, in order to accept the proposition that same-sex parents are equal in all ways to opposite-sex parents, you must literally accept the conclusion that a mother adds nothing of unique value to a child’s life that a man could not provide – no unique value to breastfeeding, no unique value to maternal love, no unique value to a female role model in the life of a young girl or to teach a young boy how to respect a female authority figure. (The same goes for the absence of male role models in two-female households, despite everything we know about the importance of fathers in the development of young men.) I submit that you do not have to be any sort of bigot to believe that mothers have a value no man can entirely replace, or to fear the consequences for family law if the United States Supreme Court holds that this is an irrational opinion.

The case for arguing that common sense and experience are wrong on this point rests wholly on appeals to social science – appeals that are deeply flawed. First of all, it’s always hazardous to cast Constitutional rules in permanent concrete based on social science data that can be disproven by subsequent studies. The very nature of science is that it is subject to change, but courts are in the business of providing final and unchanging answers based on the evidence at a particular point in time. The Supreme Court in 1927 held, in Buck v. Bell, that states could forcibly sterilize the “unfit” (e.g., the mentally retarded) for the good of the state – a decision that rested on the widely-accepted eugenic and Malthusian economic theories of the day, now long since discredited. Buck‘s reliance on social science gave us this cringe-inducing passage from Justice Holmes for an 8-1 majority that included such distinguished Justices as William Howard Taft and Louis Brandeis:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes….Three generations of imbeciles are enough.

The lone dissenter in Buck was, not coincidentally, the sole Catholic on the Court at the time, Justice Pierce Butler, a firm believer in tradition and religion.
Skepticism of the limits of social science is not a sentiment unique to SSM opponents; as Rod Dreher has noted, it’s nearly impossible to find supporters of SSM who could ever be persuaded by any social-science data to abandon that support, having decided in most cases that the issue is one of fundamental rights rather than utilitarian benefit to society.

2. Lies, Damned Lies, And Statistics

All that aside, what does the social science say about the quantifiable merits of same-sex parents as opposed to traditional homes with a father and a mother? The answer is surprisingly unsatisfactory, if you’re accustomed to thinking of social science as an all-seeing oracle. Certainly there is enough anecdotal evidence to support the idea that same-sex parents are capable of raising children well, but that’s not the issue; as a comparison, we know that individual single moms can raise children well, but we also know from a vast body of literature that as a group, single moms are more likely to produce kids with a host of problems, both because single parenting is hard and because fathers are important. Similarly, the question is not the existence of some number of good and diligent same-sex parents, but whether same-sex parenting is so identical in all meaningful respects to traditional married parenting that no rational distinction could ever be drawn between the two.

Liberal commentators would have you believe that there is an unbroken chain of scientifically incontrovertible evidence showing that distinctions between opposite-sex and same-sex parents are inconceivable. Most prominent is the 2005 claim in a brief by the American Psychological Association that “[n]ot a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents.” Here’s what the district court claimed in the Proposition 8 case:

Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy,successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.

And here’s Nathaniel Frank, writing in Slate – before admitting that “none of this should matter” because he would support SSM “[e]ven if gay parenting did disadvantage kids”:

“Rarely is there as much consensus in any area of social science as in the case of gay parenting,” said Judith Stacey, the New York University sociologist who is one of the deans of gay parenting scholarship….
Is there any research showing disadvantages for kids with gay parents? Try as they might, conservative scholars, often funded by anti-gay think tanks, have failed to produce a single study….Whatever you may say about the limits of the gay parenting studies – and all research has limits – the pro-gay research is currently winning, 45-0.

In fact, most of the studies in this area have suffered from a combination of flaws, which cannot be cured simply by repeating them over and over in multiple studies: (1) very small sample sizes, the bane of any kind of statistical study; (2) unrepresentative, often self-selected samples, (3) inherent biases in self-reporting by the parents; and (4) failure to choose a proper comparison group. Partly this is the inherent difficulty of the project, given the relative recency and rarity of such families. But there are also reasons to suspect that it reflects the political and social biases of the researchers.

The amicus brief filed in the Proposition 8 case by Leon Kass, Harvey Mansfield and the Institute for Marriage and Public Policy lays out the general argument for why social science “consensus” reports like the APA’s should be regarded more as political documents than science, and why social science in general and fields like sociology and psychology in particular are especially prone to left-leaning political bias that colors and enforces such consensuses. The brief describes the characteristics of the existing research:

One prominent study, for example, relied on a sample recruited entirely at lesbian events, in women’s bookstores, and in lesbian newspapers. Others relied on samples as small as 18 or 33 or 44 cases. And most of them relied heavily on reports by parents about their children’s well-being while the children were still under their own care.

(Citations omitted). This is the kind of “random” sampling that gives you internet polls won by Ron Paul. The perils of self-reporting by parents are especially noteworthy in this context, where the reporting parents are fully aware of the political purposes to which the research will be put. Yet the proponents adopt the familiar tactic of declaring that a “consensus” of a large number of studies endorsed by a large number of politically sympathetic scientists is conclusive of the issue, regardless of the actual scientific rigor of the studies themselves. We have seen this movie many times before.

Salon, for example, touts one long-running study of 78 children of lesbian families over 25 years that found “zero percent of children reported physical or sexual abuse – not a one.” Ezra Klein cites the author of an American Academy of Pediatrics brief in favor of SSM who describes this as “[t]he best study” available. But given the number of families involved and the self-selected nature of such a long-running sample, it is a stretch to consider this a significant finding applicable to the population as a whole. Albert Pujols opened last season by going 116 plate appearances without a home run; this does not make it irrational to be concerned about pitching to Albert Pujols.

The most detailed effort yet to open the hood and see what is actually inside these studies was performed by Loren Marks of the LSU School of Human Ecology, who published a paper in Social Science Research in 2012 examining the 59 published studies behind the APA’s breezy assertion of a scientific consensus. (Marks did not examine the other 8 studies cited by the APA, which were “unpublished dissertations.”) Marks opened his paper by comparing the research on same-sex families to the by-now bulletproof research showing the advantages of traditional married parents over “cohabiting, divorced, step, and single-parent families,” noting that those studies used “large, representative samples” such as “four nationally representative longitudinal studies with more than 20,000 total participants.” By contrast, Marks found:

-“[M]ore than three-fourths (77%) of the studies cited by the APA brief are based on small, nonrepresentative, convenience samples of fewer than 100 participants. Many of the non-representative samples contain far fewer than 100 participants, including one study with five participants”

-The samples were “racially homogenous,” none of them focusing on African-American, Hispanic or Asian-American families. Of course, social science studies of the family commonly find large racial disparities – picking an all-white sample is an extremely easy way to bias your results.

-More broadly, he cited a “continuing tendency of same-sex parenting researchers to select privileged lesbian samples…’Much of the research [still] involved small samples that are predominantly White, well-educated [and] middle-class.'”

-“[C]omparison studies on children of gay fathers are almost non-existent in the 2005 Brief.”

-“[I]n selecting heterosexual comparison groups for their studies, many same-sex parenting researchers have not used marriage-based, intact families as heterosexual representatives, but have instead used single mothers…[one pair of researchers] used 90.9 percent single-father samples in two other studies.”

-The APA, while ignoring these flaws in the studies it relied on, excluded one of the largest studies available, which had found significant differences in educational outcomes on the theory that assessments by teachers (i.e., tests and progress reports) were “subjective assessments.” Note the contrast between this and the APA’s eager acceptance of self-reporting by parents.

-Most of the studies ignored “societal concerns of intergenerational poverty, collegiate education and/or labor force contribution, serious criminality, incarceration, early childbearing, drug/alcohol abuse, or suicide that are frequently the foci of national studies on children, adolescents, and young adults,” and again the APA simply ignored one “book-length empirical study” that had used a more diverse sample and had concluded that “If we perceive deviance in a general sense, to include excessive drinking, drug use, truancy, sexual deviance, and criminal offenses, and if we rely on the statements made by adult children (over 18 years of age)…[then] children of homosexual parents report deviance in higher proportions than children of (married or cohabiting) heterosexual couples.”

-“[V]irtually none of the peer-reviewed, same-sex parenting comparison studies” looked at adults raised in same-sex parent homes, but only at children and adolescents, thus excluding from consideration social and emotional problems that are commonly observed only in adulthood. Research on children of divorce, for example, has found a number of problems that do not surface until adulthood.

Nobody who has not already made their mind up would find research of this nature conclusive of anything.

One recent study that attempted to fix the problems Marks identified was published in the same edition of the same journal by University of Texas professor Mark Regnerus. Regnerus’ study had – as he freely admitted – limitations of its own, discussed below. But the reaction to Regnerus’ work – in contrast to how the badly flawed studies examined by Marks were swallowed uncritically – vividly illustrates why credible, unbiased research on this topic is so hard to come by.

Regnerus set out to do a truly randomly selected study over a large population sample, and to remove the problem of biased parental reporting by interviewing adults about their childhood experiences. His sample covered 15,000 respondents, and despite the subsequent firestorm, no problem was ever identified with his methods or the data he gathered. Unlike most of the prior research, the respondents with a “gay father” or “lesbian mother” (more on which below) were, respectively, 48% and 43% black or Hispanic. His findings were dramatic across numerous types of outcomes, detailing greatly elevated incidence of parental rape, parental pedophilia and suicidal tendencies; as he explained his findings,

Even after including controls for age, race, gender, and things like being bullied as a youth, or the gay-friendliness of the state in which they live, such respondents were more apt to report being unemployed, less healthy, more depressed, more likely to have cheated on a spouse or partner, smoke more pot, had trouble with the law, report more male and female sex partners, more sexual victimization, and were more likely to reflect negatively on their childhood family life, among other things.

But Regnerus’ effort faced the usual problem: his random sample, large as it was, turned up only a little over 200 respondents who said they had a parent who had been in a gay or lesbian relationship. And of those 200, only two – two! – reported that the parent’s relationship was stable enough to cover their entire childhood (in both cases, the parents were lesbians):

In his original article, he reported that an initially-screened population of 15,000 young adults aged 18-39 yielded a set of 163 who said their mothers had had a same-sex relationship sometime during their childhood. (There were only 73 who said this of their fathers.)
In his new article, Regnerus has re-sorted a dozen of the FGR cases into the MLR category (since in these cases the subjects reported that both parents had had same-sex relationships). Now focusing on his 175 subjects in the MLR category, he finds that fewer than half of them (85) ever lived with both their mother and her same-sex partner during their childhood.

But that low number tapers off dramatically when subjects report the length of the couple-headed period: “31 reported living with their mother’s partner for up to 1 year only. An additional 20 reported this relationship for up to 2 years, five for 3 years, and eight for 4 years.” He later adds that “only 19 spent at least five consecutive years together, and six cases spent 10 or more consecutive years together.”
How many children were raised by two women staying together from the child’s first birthday to his or her eighteenth? Just two. And how many such cases were there in the FGR category – of children raised by two men together for their whole childhood? Zero. This, out of an initial population of 15,000.

As Regnerus’ most prominent critic notes, “[a] woman could be identified as a ‘lesbian mother’ in the study if she had had a relationship with another woman at any point after having a child, regardless of the brevity of that relationship and whether or not the two women raised the child as a couple.” (Although the claim that he included one-night stands is silly, given that these were relationships recalled by their children in adulthood. The charge that Regnerus improperly classified people with homosexual relationships as homosexuals is also particularly odd, given the Left’s usual insistence for Constitutional law purposes that homosexuality is an immutable characteristic, and it effectively reads the children of bisexuals out of the debate.)

Anyone familiar with how liberals respond to scientific findings they don’t like can predict what happened next: immediately upon the publication of his study, Regnerus was subjected to a campaign of vilification aimed at discrediting his work, destroying his professional reputation and deterring any other scholar from pursuing a similar line of inquiry. The University of Texas convened an audit of his study to deal with the pressure campaign, and the editor of the journal hired a prominent, vocal critic of Regnerus to audit the peer-review process that led to its publication. Andrew Ferguson and Matthew Franck detail the blow-by-blow of this campaign to destroy Regnerus.

And by and large, Regnerus passed the audits. The UT audit found “no falsification of data, plagiarism or other serious ethical breaches constituting scientific misconduct.” The journal audit grudgingly concluded the journal editor acted correctly, despite a lot of sniping by its hostile author at Regnerus and the peer reviewers. But the liberal blogs and newspapers continued to act as if Regnerus had been unmasked as a charlatan.

Twenty-seven scholars (including Marks) signed a joint letter defending Regnerus’ sample selection:

[T]he demographics of his sample of young-adult children of same-sex parents – in terms of race and ethnicity – come close to resembling the demographics of children from same-sex families in another large, random, and representative study of gay and lesbian families by sociologist Michael Rosenfeld that has been well received in the media and in the academy…

We are disappointed that many media outlets have not done their due diligence in investigating the scientific validity of prior studies, and acknowledging the superiority of Regnerus’s sample to most previous research….We are also disappointed that many of our academic colleagues who have critiqued Regnerus have not publicly acknowledged the methodological limitations of previous research on same-sex parenting.

…Regnerus has been chided for comparing young adults from gay and lesbian families that experienced high levels of family instability to young adults from stable heterosexual married families. This is not an ideal comparison. (Indeed, Regnerus himself acknowledges this point in his article, and calls for additional research on a representative sample of planned gay and lesbian families; such families may be more stable but are very difficult to locate in the population at large.)

But what his critics fail to appreciate is that Regnerus chose his categories on the basis of young adults’ characterizations of their own families growing up, and the young adults whose parents had same-sex romantic relationships also happened to have high levels of instability in their families of origin. This instability may well be an artifact of the social stigma and marginalization that often faced gay and lesbian couples during the time (extending back to the 1970s, in some cases) that many of these young adults came of age. It is also worth noting that Regnerus’s findings related to instability are consistent with recent studies of gay and lesbian couples based on large, random, representative samples from countries such as Great Britain, the Netherlands, and Sweden, which find similarly high patterns of instability among same-sex couples. Even Judith Stacey, a prominent critic of Regnerus’s study, elsewhere acknowledges that studies suggest that lesbian “relationships may prove less durable” than heterosexual marriages. Thus, Regnerus should not be faulted for drawing a random, representative sample of young-adult children of parents who have had same-sex romantic relationships and also happened to have experienced high levels of family instability growing up.

(Emphasis mine; footnotes omitted).

The vehemence of the attacks on Regnerus, by people who were happy to tout far less reliable studies, ought to be a gigantic red flag to anyone tempted to view the social science in this area as the work of disinterested professionals who care only to find the truth. And any tour of the work of Marks, Regnerus and their critics should disabuse anyone of the notion that we have ironclad-for-all-time scientific proof of equal outcomes that should be cast permanently into Constitutional law. Given the many common-sense reasons, grounded in experience, to think that both fatherhood and motherhood have unique value, the overwhelming scientific evidence that traditional marriage is superior to all the other family structures that have been studied, the relative recency and rarity of same-sex parent households and the current state of the science, the most logical answer is that both Congress and the voters of the State of California could rationally conclude that a family with a mother and a father is preferable to a family with two mothers and no father or two fathers and no mother.

C. Traditional Marriage In Crisis

These are all reasons why the state should consider traditional marriage a more valued partner in bringing children into the world than SSM. By contrast, the battery of serious social problems that follow from unmarried pregnancies is – again, for obvious reasons – almost entirely a heterosexual phenomenon, and a growing one. As a result, the state’s powerful interest in promoting opposite-sex marriage as an alternative to opposite-sex childbearing out of wedlock has no comparable counterpart among same-sex couples.

Is traditional marriage struggling? Absolutely, and that is precisely why this seems a most perverse time to bind the hands of the state in choosing its best ally in this process. Child-bearing trends in the U.S., as elsewhere, are headed in a very bad direction, both in terms of dramatically fewer children being born and a higher proportion being born out of wedlock:

20-somethings are driving America’s all-time high level of nonmarital childbearing, which is now at 41% of all births, according to vital-statistics data from the Centers for Disease Control and Prevention….Between 1990 and 2008…the rate of nonmarital childbearing among 20-something women has risen by 27%.
The shift of unmarried parenthood from teens to 20-somethings is in part an unexpected consequence of delaying marriage. Over four decades, the age for tying the knot has risen steadily to a new high of nearly 27 for women and 29 for men, according to Census figures.
…[A] key part of the explanation for the struggles of today’s working and lower middle classes in the U.S. is delayed marriage. When the trend toward later marriage first took off in the 1970s, most of these young men and women delayed having children, much as they had in the past. But by 2000, there was a cultural shift. They still put off their weddings, but their childbearing – not so much. Fifty-eight percent of first births among this group are now to unmarried women.

That leads to an epidemic of fatherlessness:

In every state, the portion of families where children have two parents, rather than one, has dropped significantly over the past decade. Even as the country added 160,000 families with children, the number of two-parent households decreased by 1.2 million. Fifteen million U.S. children, or 1 in 3, live without a father, and nearly 5 million live without a mother. In 1960, just 11 percent of American children lived in homes without fathers.

It can get worse. Norway, Sweden and Denmark have all seen marriage rates plummet since the 1990s, with corresponding rises in the percentage of children born out of wedlock:

Scandinavian family dissolution has only been worsening. Between 1990 and 2000, Norway’s out-of-wedlock birthrate rose from 39 to 50 percent, while Sweden’s rose from 47 to 55 percent. In Denmark out-of-wedlock births stayed level during the nineties (beginning at 46 percent and ending at 45 percent). But the leveling off seems to be a function of a slight increase in fertility among older couples, who marry only after multiple births (if they don’t break up first). That shift masks the 25 percent increase during the nineties in cohabitation and unmarried parenthood among Danish couples (many of them young). About 60 percent of first born children in Denmark now have unmarried parents. The rise of fragile families based on cohabitation and out-of-wedlock childbearing means that during the nineties, the total rate of family dissolution in Scandinavia significantly increased.

Correlation is not causation, but these are the three countries that were first to adopt same-sex marriage; what is debatable is whether the collapse of traditional marriage in those countries and the adoption of same-sex marriage were really both symptoms of a common, larger cause.

D. Strategies For Ignoring The Evidence

Defenders of SSM have two tried-and-true gambits to avoid the obvious and dramatic disparities between the two institutions in their relationship to the core roles of childbearing and childrearing. One is to argue that it’s required for defenders of the current marriage laws to not only show that traditional marriage is different from SSM in ways that are important to society, but also provide social-science evidence that classifying them identically will directly cause quantifiable harm to traditional marriage. But this puts the cart before the horse. The first question is whether there’s a rational basis for drawing a distinction, not providing conclusive social-science evidence that failure to make the distinction will cause quantifiable harm. We do not live in a world of infinite resources, and rational basis review traditionally allowed legislatures very broad latitude in choosing how to deploy them. If traditional marriage is much more intimately connected to the bearing and raising of children than SSM, then the state’s interest in encouraging married child-rearing and discouraging unmarried child-rearing is ample justification for prioritizing marriage among opposite-sex couples, as the Defense of Marriage Act does, or for that matter reserving the privileged social status of the title “marriage,” as Proposition 8 does.

The other argument is that the widely differential rates of childbearing are somehow a pretext because the state does not actually require opposite-sex couples to have children or even be able to have children. To start with, this is an interesting argument coming from liberal commentators who commonly rely on ‘state of the median citizen’ social-science data. Moreover, traditionally, infertility was grounds at law for divorce in states that had fault divorce regimes.
But even leaving that aside, there are multiple reasons why the state doesn’t intrude on this question at the time of marriage. The most obvious is the numbers: opposite sex couples tend to have children, so simply confirming that a couple is a male and a female is a fairly strong basis for presuming the ability and intent to have kids without asking more invasive questions before issuing a license. Note the chart above showing rates of parenthood over 80% in the peak childbearing years. And young couples who aren’t sure if they want kids may end up having them anyway, while couples who are past the age of having children often already have children from previous marriages and will provide them with a marital home. Nothing in rational-basis law forbids the government from providing a benefit to one group who is significantly more likely to produce the desired end.

II. Marriage and Divorce

A. Fewer Marriages?

A second major distinction between SSM and traditional marriage is that, even with traditional marriage in its current, battered state, experience has shown that same-sex couples get married at lower rates and may be less likely to stay together long-term. The rates of legal coupling are low to begin with:

[Among] marriage, civil unions, domestic partnerships, and reciprocal-beneficiary relationships…the most recent U.S. Census data reveal that, in the last 15 years, only 150,000 same-sex couples have elected to take advantage of them – equivalent to around one in five of the self-identified same-sex couples in the United States….in the first four years when gay marriage was an option in trailblazing Massachusetts, there were an average of only about 3,000 per year, and that number included many who came from out of state.

This dearth of early adopters is not peculiar to America. Research conducted in 2004 by Gunnar Anderson, a professor of demography at Sweden’s Stockholm University…looked at legal partnerships in both Norway and Sweden and found that in Norway, which legalized civil unions in 1993, only 1,300 homosexual couples registered in the first eight years, compared with 190,000 heterosexual marriages; in Sweden, between initial passage in 1995 and a review in 2002, 1,526 legal partnerships were registered, compared with 280,000 heterosexual marriages. In the Netherlands, gay marriage is actually declining in popularity: 2,500 gay couples married in 2001 – the year it was legalized – and that number dropped to 1,800 in 2002, 1,200 in 2004, and 1,100 in 2005. In 2009, the last year for which figures are available, less than 2 percent of marriages in the Netherlands were between same-sex couples.

Controlling for the ratio of homosexuals to heterosexuals does little to explain the enthusiasm gap. For rates to be similar, we would have to pretend that only 0.5 percent of the population of Sweden, 0.7 percent of the population of Norway, and less than 2 percent of the population of Holland is gay. In fact, the numbers tend closer to an average of 4 percent, which suggests that heterosexual couples are up to eight times more interested in registering their relationships than homosexual couples.

The Williams Institute concluded that, “When a state allows marriage for same-sex couples, over 60 percent of those who marry come from other states” – a bubble effect that will disspate further if the institution stops being a novelty.
The good news, for opponents or skeptics of SSM, is that this suggests why political adoption of SSM is not actually that big a deal; the number of such unions is likely to remain vanishingly small. Saying that political enactment of SSM will destroy traditional marriage is like saying that eating a pint of Ben & Jerry’s will make you fat. This reality is one of the main reasons why the storm and fury over this issue is so overrated compared to, say, 900,000 abortions a year.

B. More Divorces?

If same-sex marriages are rare, there are also indications (although the data on this is more uneven) that they may be less stable than opposite-sex marriages – the opposite of what you might expect in a population in which so few couples settle down in the first place. The Scandanavian experience provides long-term data:

In Norway, male same-sex marriages are 50 percent more likely to end in divorce than heterosexual marriages, and female same-sex marriages are an astonishing 167 percent more likely to be dissolved. In Sweden, the divorce risk for male-male partnerships is 50 percent higher than for heterosexual marriages, and the divorce risk for female partnerships is nearly double that for men. This should not be surprising: In the United States, women request approximately two-thirds of divorces in all forms of relationships – and have done so since the start of the 19th century – so it reasonably follows that relationships in which both partners are women are more likely to include someone who wishes to exit.

Experience in the U.S., as in Norway and Sweden, shows that same-sex married couples tend to be disproportionately female:

According to UCLA’s Williams Institute, two-thirds of legally recognized same-sex couples in the United States are lesbian. (Solely on the “marriage” front, in Massachusetts’s first four years, this statistic was 62 percent.)

The divorce rate is much lower among gay couples in Denmark, where – unlike virtually all other jurisdctions – the majority of same-sex marriages are male.
Early experience in jurisdictions like the U.S. and the U.K. where same-sex marriage is relatively new tend to show a lower divorce rate for same-sex couples – but that should not be surprising, given that the early rush to the altar includes a backlog of couples who have already been together for years and are less likely than ordinary newlyweds to split. As California-based “non-traditional family law” practitioner Frederick Hertz writes at the Huffington Post:

I suspect that this can be attributed to the types of couples getting married in these early years of same-sex marriage, and not a testament to the stability of lesbian and gay relationships. There’s no statistical data out yet on this particular dynamic, but in my experience as a lawyer working with same-sex couples, the partners getting married tend to be those who have already been together for some time. They already have weathered the stormy middle years of coupledom, and they are consciously committed to being a family. For that reason, we should not be surprised that they are not rushing to get divorced so quickly.

We can say with some certainty that experience shows that same-sex couples are much less likely to marry than opposite-sex couples. As to whether those marriages will be as durable, the most charitable conclusion is that we are a long way from having data that would show comparable rates of marital stability and longevity.

C. Traditional Marriage In Crisis, Redux

As I noted above, traditional marriage’s virtues have not prevented it from suffering serious social decay as the primary unit for bearing and raising children. This has, in fact, been part of a broader loss of respect and fidelity to traditional marriage:

Only about half of Americans are married now, down from 72 percent in 1960, according to census data. The age at which one first gets married has risen by six years since 1960, and now only 20 percent of Americans get married before the age of 30. The number of new marriages each year is declining at a slow but steady rate. Put simply, if you are an unmarried adult today, you face a lower chance of ever getting married, a longer wait and higher divorce rates if you do get married. The Pew Research Center recently found that about 40 percent of unmarried adults believe that marriage is becoming obsolete.

While marriage is in decline, unmarried cohabitation is on the rise. Fifteen times the number of couples today live together outside of marriage than in 1960.

The downward trend has continued in the latest Pew study, with the rate of new marriages per 1000 eligible adults dropping from 41.4 in 2008 to 36.4 in 2011, a 12% drop just since President Obama took office.

California has been the leader in this field, long ago obliterating the distinctions between marriage and cohabitation with liberal divorce laws, “palimony” and opposite-sex civil unions, all of which have been used as arguments in the Prop. 8 case for why there’s not much left of traditional marriage in California to distinguish it from same-sex civil unions.

The causes of the decline of traditional marriage are numerous and beyond the scope of this essay. But with all the ground marriage has lost, the last thing it needs is a Supreme Court declaration that its role in childbearing and rearing and its traditional status in society and religion have no rational value.

III. Tradition

I’ve stuck here to the mostly-quantifiable nuts and bolts of family formation, childbearing and rearing, and family dissolution. Of course, there’s much more to marriage than that, as our social and religious traditions have long recognized. It is important to bear in mind that the Supreme Court originally cited the longstanding traditional status of marriage as the basis for the not-anywhere-in-the-text “fundamental” right to privacy, in the 1965 Griswold v Connecticut decision:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Indeed, as I have discussed before, the Ninth Circuit discussed at length the traditional social status of marriage as its basis for concluding that the challengers to Proposition 8 had suffered an injury to Constitutional rights by being unable to share in that status. Yet, in a bait-and-switch, the challengers argue that tradition only counts on one side of the scale: that they can demand a free ride on the social status of traditional marriage while denying that the courts can consider where that social status came from.

Tradition alone is an insufficient basis, of course, to sustain invidious forms of discrimination such as slavery. But as to the pragmatic question of what works for society, ignoring tradition is both anti-empirical and anti-democratic: anti-empirical because it turns a blind eye to the actual, practical experience of a much larger sample size of people than any social science study can measure, and anti-democratic because common experience is the very reason why we have government by and of the people in the first place rather than rule by self-appointed experts.

IV. Some Concluding Considerations

In evaluating and predicting what the Supreme Court might do in the two cases before it, it’s important to recognize that – as is common in big, controversial cases – there are a welter of procedural and structural issues before the Court that could lead to the cases being disposed of without reaching the core question of equating the two types of marriage. For example, I’m sympathetic on policy grounds to the federalism argument in the DOMA case, specifically that Section 3 of DOMA should have allowed federal benefits such as tax treatment to be determined on the basis of whether the marriage was recognized in the state where the couple resides, rather than imposing a uniform federal definition applicable to all federal programs (some federal definition being needed for areas where the federal government has plenary legislative powers). The argument holds that domestic relations are traditionally left to the states under the Tenth Amendment, and thus even federal programs must use state-law definitions. But I am somewhat skeptical of the merits of the federalism argument as a constitutional mandate, as it could have far-reaching and unanticipated effects if there is not a logical stopping point. (Of course, a federalism resolution to the DOMA challenge becomes an empty husk if the Proposition 8 case tells the states to recognize SSM).

The California Proposition 8 case is not so easily disposed of; the Court can likely duck the issue only by declaring that the voters of the state of California are effectively not entitled to have their decisions represented in court, or that the challengers had no standing to sue. (This is a topic for another day, but the tendency of this sort of thing to happen is an argument for why popular referenda are not really a very effective tool – they are almost always challenged in court, and the voters are usually too disorganized and defenseless to stand up against a political establishment that is unwilling to obey the voters).

The libertarian argument for cutting the Gordian knot of whether to equate SSM with traditional marriage is to suggest that government get out of the marriage business altogether. Like so many libertarian arguments, this presents an excellent academic/”thought experiment” exercise, but is completely impractical as a real-world political solution. There are over a thousand federal laws that reference marriage, and many multiples of that across the country, including the whole body of family law (child custody, divorce courts, adoption, inheritance).

Uprooting the entire structure and replacing it with something completely different – even if it was the clearly superior policy option – would be the political work of a generation, requiring a massive multi-jurisdictional legislative effort that would crowd out dealing with any other problem for many years. There is a good deal of sense and wisdom to the broad libertarian observation that we drive ourselves deeper into these debates every time we expand government’s role in education, healthcare, retirement and other areas that are deeply entangled with family life (the Windsor DOMA case, for example, is an estate tax case). But there is simply no practical option to take the ball of marriage and go home, abandoning the debate over how to define marriage in the laws that remain; that just leaves the field entirely to left-wingers, who never, ever propose abandoning the levers of government.

And it won’t stop there; it never does. I’ve written before of the Seven Stages of Liberal Legal Activism:

1. It’s a free country, X should not be illegal.

2. The Constitution prohibits X from being made illegal.

3. If the Constitution protects a right to X, how can it be immoral? Anyone who disagrees is a bigot.

4. If X is a Constitutional right, how can we deny it to the poor? Taxpayer money must be given to people to get X.

5. The Constitution requires that taxpayer money be given to people to get X.

6. People who refuse to participate in X are criminals.

7. People who publicly disagree with X are criminals.

Dana Loesch neatly sums up a handful of the recent examples of why the next stage from a Supreme Court ruling on “marriage equality” will be the legal persecution of anyone who, on religious grounds, refuses to get involved in the same-sex marriage business, a process for which the controversy over the HHS contraception mandate was merely a dry run. (More here with similar examples from the Canadian experience; in Denmark, the Parliament voted to mandate that churches perform same-sex weddings).

Now, many of the people pushing “marriage equality” and changing their Facebook profiles to a red equals sign are, of course, well-meaning; they have gay friends or relatives, or they’re gay themselves, or they simply like the old-fashioned American ideal of equality. Who’s not in favor of equality for everybody? But anyone who lived through the Sixties or Seventies remembers well how much damage can be done by well-meaning liberals who never understand what they are tearing down, or who they are empowering, or why our system of government has checks, balances, limitations and written laws. Good intentions are never an adequate substitute for the truth.

As conservatives, we take the world as it is. Marriage, as traditionally understood, has served us well, and today is in trouble for reasons that go far beyond SSM. But if the Supreme Court holds as a matter of law that many of the things of value in marriage – its unique role in bearing and begetting children, the distinct value of mothers and of fathers, its tendency to endure over time and promote monogamy, its social status developed by centuries of experience, its sacramental role in many major religious traditions – are irrational considerations, forbidden to even be considered by government policymakers, then we are headed down a very dark road indeed, one with no light of experience or historical precedent to guide us.

What could go wrong?

Disclaimer: as usual, my opinions are my own and do not represent those of my employer, clients, or anybody else but me.