2. In an early footnote, Allen explains, “Throughout this Article ‘marriage’ means western marriage. Exceptions to the marriage definition can be found for any definition of marriage within some small tribe in a remote location or ancient time. As argued below, these types of marriages can be ignored because they do not survive or are unsuccessful in generating large populations” (950 n. 4).
That’s convenient. It allows Allen to ignore, for example, the various Native American cultures in which gay marriage was documented by early Spanish explorers across the southern US. And he gets to do it by implying that gay marriage was the cause of the cultures’ demise (and not, say, smallpox and gunpowder).
2. Throughout the article, Allen asserts that marriage was designed for procreation, that it “has always contained the expectation of fertility.” Of course that’s not true for all marriages—no one expects fertility when two octogenarians marry each other. In his MercatorNet interview, Allen says that a fundamental difference between gay and straight marriages is the absence of children in gay marriages, which “means that gays and lesbians are getting something different out of their relationships that is different (eg, companionship).” But that’s not a fundamental difference! That’s something gays and lesbians have in common with lots of straight couples.
In his article, Allen barely addresses this point, writing on page 958, “These cases [infertile/elderly couples] do not affect the ex ante presumption that marriage will be procreative, which, for reasons discussed below, requires legitimate sex to take place within the marriage. That ex post a couple remains childless does not challenge the presumption and intention of the institution.” But elderly couples don’t “ex post” turn out to be childless; just like gay and lesbian couples, they go into a marriage expecting “something different” (eg, companionship). So those couples most certainly do (or should) affect Allen’s “ex ante” assumptions about the nature of marriage.
In a footnote on page 950, Allen also writes that elderly couples are admitted into the institution because “the social costs are low.” Despite Allen’s best efforts, though, I still don’t see how the social “cost” of gay marriage is any higher.
3. Allen details the issues that gay marriages (and divorces) raise for the societal understanding of the institution. Gay couples are less likely to raise children, for example, or if they do those children will have biological ties outside of the marriage. But all of those challenges are already raised by some straight couples: couples who go childless by choice, who adopt, use IVF, etc. Allen responds to this objection in a footnote: “Children within same-sex marriages are different. Many, if not most, children in such marriages, arrive from a previous heterosexual marriage. Thus, there is no screening as with traditional adoption. How rights are to be divided between the married parents and the biological third party, and whether children in gay households are to be treated the same as lesbian households, is yet to be determined” (962 n. 34) But that’s the same situation as children in (straight) step-families. Again, nothing new.
Basically, Allen is trying to blame gay couples for challenges that society will face (or already has faced) no matter what, due to the diversity of straight couples.
But to go back to the Costanza/sweater analogy I used yesterday, rather than placing blame, it’s better to see marriage as a V-neck. Gays can’t stretch it out, because accommodation is already part of its design.
3. Speaking of diversity, Allen writes: “Legal recognition of same-sex marriage means that three different types of relationships will be regulated under the same legal umbrella.” Those three types are heterosexual relationships, gay male relationships, and lesbian relationships, which he sees as three fundamentally different things. He supports this view with social science data that suggests that gay men have lots of sex, lesbians are more likely to separate, etc.
If you’ve read this blog for a while, you know this type of averages-based Platonism drives me batty. In this view, nothing is individual; everything is an iteration, a version, a copy, of some platonic form. Thus if some study shows that lesbian relationships are, on average, less stable than straight ones, then lesbian relationships are inherently unstable, never mind the two women next door to you who have been together for forty years.
Now, I know Allen is an economist and, as such, he likes to see things in big, societal terms. But humans are individuals, and I think it’s more accurate to say that the legal umbrella of marriage already regulates an infinite variety of relationships.
That doesn’t absolve us of the responsibility of defining marriage in questions of law; it just means that we have to think harder about what all married couples have in common. And, when you look at the breadth of actual marriages in the real world, it becomes clear that the answer isn’t procreation, or the presumption of procreation. [And, as I’ve written before, if you’re Catholic, you can’t even say that marriage necessarily requires sexual intercourse.]
4. Allen’s “economic” thinking also leads him into an occasionally ugly utilitarianism. He says that decisions about legalizing same-sex marriage ought to be made through an analysis of the costs and benefits of both including and excluding gays from the institution of marriage. And the costs of excluding gay couples? Minimal. He explains: “In recent paper examining same sex couples in Canada, I find that gays and lesbians make up on ¾ of 1 percent of the population, and that across the entire country there are only about 33,000 children living with a gay or lesbian in the household.”
Oh. That’s it.
And what about those 33,000 children? They’re S-O-L in Allen’s reasoning, outweighed by the theoretical “inclusion costs” which, by the way, are not materializing anywhere gay marriage has been legalized.
5. I guess that last objection crystallizes my two main problems with Allen. First, I’m not sure an economic cost/benefit analysis is the way to determine who should be included in the institution of marriage—unless we’re including in “benefits” things like justice and equality. But if you’re going to do it, then you need to get those costs and benefits right, and I don’t think Allen has:
A) To me, telling 33000 children their parents don’t merit the stabilizing benefits of institutional marriage is a horrific exclusion cost. To Allen, it’s minimal.
B) Meanwhile, the inclusion costs Allen attributes to gay marriage aren’t showing up in the real world, and are based on a questionable reading of a prior example of changing marriage laws.
C) Finally, I don’t see Allen anywhere considering the benefits of including gays in marriage. I think this results from his misunderstanding of the full spectrum of the goods of marriage. On average, married people are healthier than their single counterparts; they miss less work, drink less alcohol, take fewer drugs, commit fewer crimes. And, of course, marriage provides stable couples to adopt and raise children who wouldn’t otherwise have parents. In other words, marriage is good for society for lots of reasons that go beyond procreation.
On page 960, Allen writes, “In a properly functioning heterosexual marriage, there are two parents; they are married, and they are biologically linked to the children.”
You read that right: Allen is saying that childless marriages (and adoptive marriages!) are not properly functioning marriages. This idea runs throughout his writing, as when, for example, he suggests that society merely tolerates elderly marriages because they have low social costs—not because they actually benefit society.
In reality, society doesn’t merely tolerate elderly or childless marriages. We celebrate them. And we celebrate them because we have a fuller understanding of the goods of marriage than Allen displays in his writings. And that fuller understanding is, in part, driving the growing cultural acceptance of gay marriage. Allen, like his colleague Robert George, thinks that Americans need to ask themselves What is marriage? and What is the purpose of marriage?before they can decide on the issue of gay marriage. His writings, though, show that he is the one who actually needs to think harder about those questions.