Random thoughts on gay marriage
Peter A. Taylor
July 25, 2015
Movements born in hatred very quickly take on the characteristics of the thing they oppose.
— J.S. Habgood, Archbishop of York
All within the state, nothing outside the state, nothing against the state.
— Benito Mussolini
I have heard a lot of arguments about gay marriage. I find none of them very persuasive. Here are some thoughts, in no particular order:
1. Mother Nature gets a vote, but nobody seems to be able to read her handwriting. One would think that homosexuality would be an evolutionary disadvantage, and would get itself eliminated from the gene pool in short order. Why has this not happened? There are a number of theories, but none of them seem compelling. The slutty sister theory? A virus? Is a slight tendency towards homosexuality a "relief valve" that limits the amount of violence between men in circumstances when women are in short supply? It remains a mystery.
Part of the motivation for writing this is a podcast, Descending the Tower, that starts by claiming that homosexuality is "degenerate", and explaining what this means. I read this as the naturalistic fallacy: homosexuality is unnatural, a diversion of natural impulses into activity that does not lead to reproduction, and therefore bad. One problem with this argument is that homosexuality isn't all that unnatural, or people wouldn't be doing it. Is it any more unnatural than flying an airplane, or playing ice hockey (especially in Houston)? Is ice hockey degenerate? Am I "degenerate" for having two children, but not three? A second problem is that the fact that something is or is not natural doesn't mean that it's good or bad. A high infant mortality rate is natural, but is it good? Hume's guillotine tells us that we can't derive "ought" from "is". Arthur Leff's "Memorandum from the Devil also makes this point and is a very good read. I highly recommend it.
Gay marriage advocates singing "Born This Way" are also committing the naturalistic fallacy.
2. Chesterton's fence also gets a vote. The idea is that you should try to find out why a decision was made before you reverse it. Lots of traditional religions disparage homosexuality. But why? If Mother Nature is okay with it, why should God object? In the Judeo-Christian tradition, Chesterton's fence points us to the writer of Leviticus regarding a ban on homosexual activity. But why? One would think that straight men would like having their competition eliminate itself. Leviticus was written thousands of years ago, and we don't know why or by whom. Was homosexuality causing problems with STDs? Were gays in that society slackers? Were they bad soldiers? Did the author resent having been abused by a pedophile as a child? Was it an attempt by high-status men in a polygamous society to humiliate low-status men? Was it a disgust reaction? If the Leviticus author's society was polygamous, do the author's reasons still apply in a monogamous one? The trail is cold. We don't know enough about the Leviticus author's thinking to be able to give any sort of confident response to it.
I want to elaborate on the Mother Nature vs. God theme. (Longer version here.) "Mother Nature" represents natural selection, which works on genes, mostly at the individual level (individual survival, mate selection, reproduction, and parental investment). Our genes are adapted for an environment that existed maybe 100,000 years ago. I am using "God" as a metaphor for the happiness and well-being of a society as a whole. Religions evolve more rapidly than genes, and under slightly different pressures. "God" (i.e. Leviticus) may be adapted for an environment that existed maybe 3000 years ago, and maybe is still current. Why do they conflict? Maybe (1) there is a mismatch between selection pressures that existed 100,000 years ago and more recent selection pressures, or (2) there is a conflict of interest between individual selection and group selection. Or maybe (3) there are quality of life issues in addition to Darwinian success. Or maybe (4) Mother Nature has a high scrap rate. But there is something mysterious going on. "God" seems to think that the sexual selection software that "Mother Nature" has installed is broken and has to be patched.
What happens if we uninstall the patches, and celebrate behavior that society used to condemn? Progressives talk about "the precautionary principle" in the context of global warming, but don't seem to want to apply similar arguments in the context of gay marriage. Who has the burden of proof, and how heavy is it? I don't want to take an extreme position that one side carries the entire burden and that the burden should be so high as to prohibit experimentation. But experiments should be recognized as experiments. They should be performed slowly (we are working with a time frame of generations), and experimenters should be prepared to roll back the changes at any moment. We have reason to suspect that something is likely to go seriously wrong.
3. The US Constitution gets a vote. More generally, the "classical liberal" or "natural law" tradition gets a vote, and this is not necessarily the same as the Judeo-Christian religious tradition. Philip K. Howard, in The Death of Common Sense, describes the legal concept of "rights" as a trump card: if you have a right to something, the legal system has to jump out of your way in order to accomodate you. These classical liberal rights clearly include life, liberty, and property, but within limits set by tradition, local law, and common sense: freedom of speech doesn't include the right to yell, "Fire!", in a crowded theater. Also, as Zechariah Chafee wrote, "Your right to swing your arms ends just where the other man's nose begins." The legal system has to define what and where a "nose" and an "arm" are when these words are used metaphorically. Anti-sodomy laws restrict liberty, but does sodomy have effects (like killing people in crowded theaters) that justify bans or restrictions? Perhaps problems with spreading STDs? My judgement is no, that the presumption of liberty stands, and that the existance of anti-sodomy laws really was a human rights issue. However, that issue went away with the Supremes' Lawrence v. Texas decision, striking down anti-sodomy laws throughout the US. Regardless of what you think about the correctness of the decision in terms of the Constitution, unlike abortion in the wake of the Roe v. Wade decision, I
haven't heard any have heard hardly any sentiment expressed whatsoever for bringing anti-sodomy laws back. Americans seem almost universally embarrassed to have had them on the books in the first place, and glad to be rid of them without having to draw attention to themselves. Anti-sodomy laws in the US are a dead letter.
Other rights arguments involve "equality", either as expressed in the 14th Amendment "equal protection" clause, or as a general moral principle. A great deal has been made of cases where gay couples have had trouble with hospital visitation or inheritance. I heard one anecdote in which a valid will was reportedly thrown out by a judge. This seems to me to have simply been a bad decision by the judge; it isn't really evidence that the law is bad, but rather that there are some bad judges. As an argument for gay marriage, it seems like a red herring. The real issue regarding inheritance is that, for a straight married couple, a will would not have been necessary in the first place. In the absence of a will, the property would have gone to the spouse. Similarly, it is possible for two people who are not legally married to sign powers of attorney or other legal documents that would establish hospital visitation rights and other powers associated with being the legal next of kin. This is automatic for legally married people, and otherwise inconvenient and somewhat expensive. Is it a violation of human rights if certain laws are more convenient for some people than others? Suppose that I never married, that my closest living relative is my brother, and that he and I don't get along. It would be convenient for me in that scenario to be able to go down to the local courthouse, fill out a form, check off some boxes, and declare a cousin whom I do get along with as my legal next of kin. No one is suggesting that it is a human rights violation that no such conveniences are available to single heterosexuals. Why, then, is it a human rights violation that similar conveniences are not available to members of gay couples? Would it help if I were having sex with my cousin?
The government's involvement in marriage confers benefits that act in some ways as a sort of subsidy. Let's do another thought experiment. Suppose that the government subsidizes corn, but not soybeans. Suppose further that I am a farmer, and I want the same subsidy that the corn farmers are getting, but I want to grow soybeans instead. Maybe my land isn't well suited for corn, or I don't like corn. Maybe I'm allergic to corn; perhaps I was "born that way". Is it a human rights violation, or a violation of the 14th Amendment, for the government to give subidies to people who grow corn, but not to people who grow soybeans? If the government is permitted to discriminate between growing corn and growing soybeans, why can't it discriminate between vaginal sex and anal sex?
The Constitution also requires the government to keep its hands off of religion. Marriage is awkward in part because it is both a religious sacrament and a legal contract. Several proposed compromises over gay marriage involve separating these two aspects. One compromise is to continue to define "marriage" as heterosexual, and create a corresponding "domestic partnership" for gays. Another approach would be to define "marriage" as a religious institution, call the corresponding legal contract "domestic partnership", and make the contract available to both gays and straights. If the controversy over gay marriage were really about the substance of the law, either of these compromises should have worked. But they didn't. Something is fishy.
Again, many proponents of gay marriage claim that this is a human rights issue. One visiting minister at my UU church a few years ago condemned opponents of gay marriage from the pulpit as "neo-Nazi skinheads". I see it largely as a semantics question, analogous to the question of what language a poultry farmer uses in describing chickens. Is it morally permissible to use specialized terms, "rooster" and "hen", to describe male and female chickens? Or is that some scandalous form of animal cruelty?
My impression is that the label, "marriage", is more prestigious than "domestic partnership", and that's what the real objection to "domestic partnership" is. It's as if there is one zip code for the ritzy side of town and another zip code for the other side of the railroad tracks. Everybody wants to be able to write the ritzy zip code in the return address on his outgoing mail.
Given the public acceptance of the elimination of anti-sodomy laws throughout the entire US by the Lawrence v. Texas decision, this rhetoric about "human rights" is dishonest. "I'm in the wrong zip code" (i.e. the wrong legal pigeonhole) is not a crime against humanity.
4. A pseudo-George Washington gets a vote. As the apocryphal quotation has it,
Government is not reason, it is not eloquence — it is force. Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.
This is in contrast with rhetoric that gay marriage is a victory for "love" and "dignity". As one libertarian lesbian wrote, the real problem is that too many gays and lesbians are statists who are looking to the government to provide them with unconditional love and acceptance.
What is the relationship between love and the legal recognition of marriage? There are loveless marriages, and there are arranged marriages that grow into love, but that's not what we're arguing about here. We're arguing about the modern standard Western model, where people decide that they're in love first, and then they decide whether they want a Justice of the Peace and an IRS agent to be involved. The claim that homosexuals are being deprived of "love" by not having legal recognition has this backwards. It's like Nancy Pelosi saying that we have to pass the bill in order to find out what's in it: let's get a formal blessing from the almighty State so that we can find out what this thing called "love" is and whether we want to be in a relationship.
"Dignity" is a similar rhetorical device. One thing I learned as a child was that not everyone was going to like me. I don't have a right to be popular, and I don't have a right to receive accolades without first having performed some exemplary service for the organization giving out the accolades. I would prefer that the government not go out of its way to humiliate me, but I also don't see why it should pat me on the head and tell me I'm a good boy just for being a special snowflake.
I can understand how theists might think that God is the source of all moral authority, and want to petition Him for a blessing. There are also some people who have some really weird (i.e. insane) ideas about government. But unless the person employing it is insane enough to confuse the government with God, this rhetoric about "love" and "dignity" is dishonest.
5. Now we come to the meat of the controversy. What are the government's legitimate interests in sexual relationships?
In an ideal world, a discussion about the government's legitimate interests should refer to something like the list of proper functions of government offered by Milton and Rose Friedman in Free to Choose (paperback, pp. 19-25):
One possibility, popular among libertarians, is that the government has exactly the same set of legitimate interests in homosexual relationships as it has in heterosexual ones: none. This probably goes too far. Marriage carves out a safe space from government in some respects, such as protection against forced testimony in court and authority over children.
Marriage plays some role in establishing legal next of kin, at least in defining default rules. It plays some role in the division of property in an acrimonious breakup, again at least in defining defaults. But those functions don't necessarily have much to do with sex. Celibate people also have kin. Non-sexual partnerships also need to be able to dissolve in an orderly way.
Clearly, if a relationship brings children into the world, and the government has an interest in (1) the population under its jurisdiction in general and (2) children in particular, then the government has a potential interest in that relationship, especially since having children is what a thermodynamicist would call "an irreversible process". This point is often obscurred by a false dilemma: marriage and reproduction are either perfectly correlated, or else they have nothing whatsoever to do with one another. Clearly this dilemma is false. The relationship between heterosexual marriage and childbirth may be loose, but it is a whale of a lot tighter than the relationship between homosexuality and childbirth. Governments routinely regulate relationships that are far looser than this (see Wickard v. Filburn and the "dormant commerce clause"). So one plausible answer to the question posed by Chesterton's fence is that marriage is an inefficient way of subsidizing children.
Another explanation is that it is a way of establishing responsibility for children. In the absense of paternity testing, a woman's husband is presumed to be the biological father of the children she conceives, and is financially and otherwise responsible for them. This is distinct from adoption of a child that is not one's biological child. Is there a reason for maintaining a distinction between parents and step-parents? Yes. See The Truth about Cinderalla: A Darwinian View of Parental Love. Not all parents are better than all step-parents, but in the absence of perfect information, the distinction makes sense. The claim that the State's interest in marriage is about children is generally plausible for heterosexual marriage, and only marginally if at all relevant for gay couples.
The point of "financially and otherwise responsible" is that the interests of children are not well served by broken homes except in extreme cases. Ordinarily, divorce with children is tragic even if the parents have plenty of money. So we don't merely want to establish paternity, we actually want marriages with children to succeed, at least until the children are grown. The State has an interest in these relationships being fairly stable. How legal recognition of gay marriage is relevant to this is not immediately clear to me.
It could be argued that the most important function of "marriage" is to stabilize heterosexual couples with children long enough for the children to grow up, but that the best thing the State can do to help is to have as little to do with it as possible. This is arguably a job for the Church, not the State, and the State's involvement is arguably an artifact of the dark old days when Western governments had state religions and took them seriously.
My favorite explanation for why the government has a legitimate interest in sex is in order to stop heterosexual men from fighting over women. If individual men and women are left to their own devices, my impression is that the likely result is that the 20% or so most successful men will try to monopolize 80% or so of the women, and civilized society comes to resemble a huge bar fight scene from a campy movie. Marriage, especially monogamous marriage, minimizes the conflict. One to a customer. Every trash can gets a lid. The police only have to get involved in exceptional cases. This suggests that the government has a legitimate interest in monogamous heterosexual marriage, but not homosexual marriage, and should be positively hostile to polygamy.
Another set of reasons why governments have a special interest in marriage, seen as a branch of contract law, is that there are special problems in enforcing certain kinds of contracts. Some of the special problems involve the emotional aspects of marriage, such as a couple's promise to love one another. However, these sort of emotional promises are not meaningfully enforceable in a court of law, and are the domain of priests and psychotherapists. Other problems associated with marriage as contract have to do with the relationships being asymmetrical in some way, usually because of the asymmetrical roles of men and women in reproduction. One asymmetry in the standard "married with children" model is that the woman's investment in the family is front-loaded, where the man's investment is back-loaded. The woman typically makes compromises in her career and spends the most time and effort when the children are young. The man's peak financial investment may not occur until the children are in college. From a Darwinian standpoint, the man has an incentive to divorce when the woman has done most of the work, before he has done most of his. There is also the "middle-age crazy" asymmetry problem that Satoshi Kanazawa describes in Why Beautiful People Have More Daughters: when a woman gets too old to have more children, a man the same age can dump her and start over with a younger woman. In these situations, no-fault divorce is a bad deal for women. The corresponding problem for men is cuckoldry. If a married man has an extramarital affair, it threatens the marriage for emotional reasons, and diverts resources away from the marriage, but his wife's children are still hers. It's worrisome, but not immediately catastrophic. If the wife has an extramarital affair, the man could easily find himself supporting children that aren't his. From a Darwinian standpoint, this is a worst-case scenario for the man. These asymmetry arguments suggest that the government has a particular interest in heterosexual marriage contracts, especially involving children, and that no-fault divorce is a bad idea, but it's hard to see how this gives the government much of a legitimate interest in gay marriage.
The "public bads" that are covered under the "public works" function include communicable diseases. In my opinion, this is the best of the arguments in favor of gay marriage. By recognizing gay marriages, we hope to stabilize homosexual relationships, encouraging gays to be less promiscuous, thus reducing the spread of AIDS and other STDs. However, the mechanism by which this works is unclear. What causes long-term homosexual relationships to fail, or to not form in the first place? Are threats of custody battles, alimony, or child support payments relevant? What about threats of the property division in a divorce being affected by infidelity? Is there a stronger argument than the claim that the State lending its prestige to the marriage will motivate the couple to stay together, and not engage in extra-marital sex?
The best argument that comes to mind against gay marriage is the (NSFW) norm equalization argument, and is basically the reverse argument, that gay marriage is more likely to bring the instability of gay relationships to heterosexual couples than to stabilize the homosexuals. According to this view, the principal immediate purpose of marriage is to protect heterosexual men against cuckoldry, without which significant paternal investment is unlikely. The argument depends on some statistics on homosexual relationships, and some propositions about evolutionary psychology and about how the legal system works, all of which appear plausible to me. It also depends on some assumptions about how politics plays out, also plausible: that it will continue to be dominated by feminist ideology that is hostile, or at best indifferent, to the concerns of relatively low-status men. Basically, the argument claims that men going into gay marriages have little expectation of fidelity, and that if gay and straight marriages are equal in the eyes of the law, then men going into straight marriages are entitled in a court of law to little expectation of fidelity, either. The argument also states that, given no-fault divorce, this change is merely another nail in the coffin of a legal institution that is already functionally dead.
Another argument against gay marriage is that, in combination with surrogate motherhood and artificial insemination, it normalizes the deliberate conception of children by people who are likely to provide children with below-average home environments.
6. Again, none of these arguments are all that persuasive to me. Yes, it's true that the institution of monogamous marriage seems to be in decline, but homosexuality probably doesn't have much directly to do with it. Donald Sensing attributed the decline of marriage to (1) the fact that modern birth control has decoupled sex from pregnancy and (2) that fact that easy divorce has destroyed the credibility of long-term marital commitments. He also mentions "socio-commercial feminism" that undermined the social status of mothers and "post-liberal Christian theology" that undermined the Church's role in stabilizing marriage.
More generally, modern feminist intellectual fashions tend to use men as scapegoats, and regard marriage as oppresion by default. This tends to make divorce the first resort rather than the last resort for a marriage under stress.
Another factor in the decline of marriage is bureaugamy, the tendency for the welfare state to serve as a provider for women who want to have children by men who can't or won't provide for them. Why marry (or remain married to) a low-status man when you can have a baby by a high-status man and get the government to support you?
The point is that gay marriage is small beer one way or the other.
7. So, what's the controversy really about? In our less-than-ideal world, we have to look not just at what libertarians think the government's functions ought to be, but also at the functions that the political elites actually think are important. These are, roughly:
The only one of these functions that is important in the context of gay marriage is the first one. A good short introduction to why this is the primary function of government is Robin Hanson's post, "Politics isn't about Policy". (Bryan Caplan has a thorough discussion of voters' motivations in The Myth of the Rational Voter.) Where gay marriage is concerned, the political factions divide roughly into "old school" Christians and Progressives. The Progressives include both Humanists (aka "Smart People") and "new school" Christians (aka "apathetic agnostics", "Churchians", and "moralistic therapeudic Deists"). Note that social status is a zero-sum game.
Gays are part of the Democratic Party's votebank, so they are entitled to some spoils. But the reason they are politically important is mostly because they are a convenient stick with which to poke conservative Christians, which is a sport enjoyed by all Progressives. You can judge the sincerity of the Progressives' sympathies for gays by the fact that the Progressives call the Tea Partiers "teabaggers". The real point of gay marriage is to humiliate the Christians. Toward this end, Progressives are extremely enthusiastic about separation of church and state ... until they see an opportunity to poke the Southern Baptists in the eye with a sharp stick.
The message being delivered by gay marriage goes something like this:
You Christians used to be able to set society's moral standards, but we Progressives do it now. Now we'll rub your face in it by profaning something that you think is sacred: marriage. And while we're at it, we'll make the Catholic Church buy condoms for nuns. Not because nuns need condoms or because we care about nuns, but just because it's fun to give the Christians swirlies.
While Progressives were building political support for gay marriage, it was important to avoid discussing the ultimate lengths to which Progressive ideas would be carried, but as victory is attained, the veil is lifted. This leads us to Dreher's Law of Merited Impossibility (LMI):
It's a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they're going to get.
Now that the Supremes have made their Obergefell v. Hodges ruling, the polygamy shoe has started to drop. If there is nothing magical about opposite sexes, it's going to be increasingly difficult to claim that there is anything magical about the number two. Christians get another swirlie in the form of further loss of freedom of association. They're not allowed to live and let live; they (e.g. conservative Christian bakers) have to actively participate in the new sacrament of the State religion. Christians complain about this, and Progressives respond by making sanctimonious posts on Facebook that try to justify the court's decision by trying to equate shopping for a wedding cake with having a medical emergency.
It is my considered opinion that getting to use the government to humiliate one's political opponents is not a "human right".
Furthermore, if you're running for political office, even if I agree with 100% of your policy positions, if I think you're a big enough asshole, I'm going to vote against you just because I think you're an asshole.