One More Round with Douglas Allen and Le Fou du Roi


[Today is Jennifer Lopez’s birthday. She’s now elderly, according to Douglas Allen.]


In case you missed it, last week Le Fou du Roi posted a response to my reading (part 1 & part 2) of Douglas Allen’s “Economic Assessment of Same-Sex Marriage Laws” (2006). I’m very late in responding and I already owed Le Fou du Roi a response to his challenging answer to my post on Dostoevsky and Randall Smith, but here goes.

Taking his posts in tandem (along with the two Allen articles he’s posted) and reading back through what I’ve already written, I’m happy to let the conversation stand where it is now. I think (at least) my key point holds up: Le Fou du Roi and Allen predict negative societal consequences from gay marriage, but still don’t show how those things will come to pass. In his last post, Le Fou du Roi linked a second article by Allen, from 2010, in which the economist argues that his 2006 predictions are already coming true. Specifically, he points to several court cases involving gay couples, custody, and parenting rights, and says that cases like those are changing marriage for the worse. But the examples he uses a) still require a logical leap to the “negative feedback loop” he foresees, in which marriage rates drop and divorce rates rise; b) come almost entirely from places without legalized gay marriage; and c) reflect challenges that have been or could be brought by straight couples, especially ones that use artificial reproduction technology. In fact, the quotation that Allen provides from one of these court decisions reads: “In this era of evolving reproductive technology and intent basedparenthood, our laws must acknowledge these realities and not simply cling to genetic connections as preconditions to being placed on a birth certificate.” [emphasis added] (1067).

I do want to address one more aspect of Le Fou du Roi’s last post. In my post, I wrote that “we have a fuller understanding of the goods of marriage than Allen displays in his writings” and that Allen and many gay marriage opponents need to think harder about the questions What is marriage? and What is the purpose of marriage?

Le Fou du Roi responded “It’s difficult not to read into this, however, the tacit codicil ‘until you arrive at an answer conducive to the endorsement of genderless marriage.’”

The implication is that my reasoning is a post-hoc rationalization meant to justify what I already believe. Which, ironically, is more or less what I think Allen’s doing. Allen presents his system as objective, but his methodology stacks the deck against gay marriage at just about every opportunity.

Here are three examples, from the 2010 article that Le Fou du Roi linked, “Who Should Be Allowed Into the Marriage Franchise?”:

1. As I wrote, one of the most obvious analogies for gay marriage is marriage between elderly individuals: both types of pairings are incapable of procreating, and both types go into marriage knowing that. But since we allow elderly marriages, and most of us even celebrate them, Allen doesn’t want us to make that comparison. Instead, he wants us to see gay marriage as more akin to incest and polygamy, two types of union that, on the surface, have little in common with gay couplings—but do have the benefit (for Allen) of being both unpopular and illegal.

And, lo and behold, Allen tells us that using his objective system he has determined that the costs and benefits of gay marriage are most similar to those of incest and polygamy.

Why not elderly marriage?

Well, he tells us, the exclusion costs of elderly marriage are higher, because “Like the infertile couple, it is difficult to identify all elderly couples ex ante” (1057).

Wait, what? You’re probably thinking. I’ve never had trouble identifying elderly couples. Plus, don’t we all have birth certificates?


[You sneaky devils. I see you!]

Ah, but as Allen goes on, we learn that by “elderly” he means anyone who might possibly be past child-bearing age, which differs depending on the individual: “It is easy to identify two octogenarians at the local senior center as elderly, but not so easy to identify the marginal elderly couple, who are perhaps in their forties.” And on page 1060 Allen tells us what age he’s using as his cutoff to define elderly:


Yes, 45.

No, really. 45.


Now you see why I’ve taken so long to write this post. Obviously, reading that precipitated a massive existential crisis. I’m only 10 years away from old age! What have I done with my life?

In all seriousness, if Allen is worried about identifying couples on the margins of elderliness, all he has to do is move the cutoff past those margins. It’s true, 46-year-olds might still be thinking about the possibility of kids when they marry, but 80-year-olds aren’t. So make the cutoff 80. Or 75. Or even 65.* Logistically, nothing could be easier than forbidding from marriage couples in which both individuals are past a given age. Of course, that would be an unjust and unpopular law, and Le Fou du Roi says that it would cause considerable constitutional problems. But that’s the whole point.**

In any case, the “exclusion costs” Allen finds for elderly couples, at least the ones that differ from gay couples, are just a function of his idiosyncratic definition of “elderly.”


2. It’s also surprising how little consideration Allen gives to the possible benefit that gay couples might provide by adopting and raising kids that otherwise wouldn’t have two parents. In one sentence in a footnote on page 1065, Allen concedes, “Raising these children may be a social benefit if the children perform better than in single households or the same as in heterosexual households” (n 73).

Well, as everyone reading this probably knows, the consensus is that children raised by gay couples do perform better than in single households and the same as in heterosexual households. Now, I’m not new to these conversations. I would absolutely expect Allen to dispute that consensus. But he doesn’t even address it. He acts like it doesn’t exist, like the issue of how gays are doing at raising kids is a novel question and hey, maybe somebody should look into it?


3.This is sort of a pattern with Allen. He’s thought of lots of ways that gay marriage could semi-conceivably harm society, but he doesn’t even pay lip service to some ways gay marriage might bring benefits, not even to argue why they should be dismissed.

One more example: as Le Fou du Roi points out, Allen’s “inclusion costs” depend heavily on the notion of a negative feedback loop, by which the changes that gay marriage will bring will, theoretically, make the institution less attractive to straight couples. Of course, the feedback loop could also work in the opposite direction: it’s totally plausible that gay marriages could increase the social capital of the institution, creating a positive feedback loop and making marriage more attractive to the general population. Jonathan Rauch has been making this argument for years, and it goes like this:

One way to [encourage marriage] is to signal, legally and culturally, that marriage is not just one of many interchangeable “lifestyles,” but the gold standard for committed relationships. For generations, both law and culture signaled that marriage is the ultimate commitment, uniquely binding and uniquely honored; that everyone could and should aspire to marry; and that marriage is especially important for couples with children. Same-sex marriage may be the first opportunity the country has had in decades to climb back up the slippery slope and say, quite dramatically, that marriage—not co-habitation, not partnership, not civil union, but marriage—is society’s first choice. An American gay couple in their eighties got married in Canada in 2003 after 58 years together. Asked why they bothered, one of them replied, “The maximum is getting married.” That is a good pro-marriage signal to send.

If you take this view of the cultural message of same-sex marriage, then there may be significant benefits for children, gay and straight alike. Gay children, of course, benefit directly from knowing that their future holds the prospect of marriage, with all the blessings that go with it. Straight children benefit when they look all around and see marriage as the norm. If a child sees that Mr. and Mrs. Smith, the neighbors to the left, are married, and that Mrs. and Mrs. Jones, the neighbors to the right, are married—that sends a positive and reassuring message to children about both the importance of marriage and the stability of their community. Every marriage signals the cultural primacy of marriage and adds to the social capital available to adults and children.

This type of thinking has (at least partly) motivated some high-profile conversions on the issue, like those of David Blankenhorn, who testified against gay marriage in California in 2010, but began supporting it in 2012, and Catholic writer Jody Bottum. Bottum wrote last year:

In fact, same-sex marriage might prove a small advance in chastity in a culture that has lost much sense of chastity. Same-sex marriage might prove a small advance in love in a civilization that no longer seems to know what love is for. Same-sex marriage might prove a small advance in the coherence of family life in a society in which the family is dissolving.

What does Allen think of this reasoning? I don’t know, and I’ve now read about 70 pages of his writing. Despite the fact that he quotes Rauch in his 2006 article, Allen gives no indication that he’s considered the point.

This is what I mean when I say that Allen needs to think harder about the goods and purpose and definition of marriage. It’s not just that he disagrees with me. It’s that I don’t see him grappling with all of the facets of these questions.

However, that’s not an accusation I could make about Le Fou du Roi. I know I’ve left some of his points unanswered, but I appreciate his willingness to engage, and his honesty and thoughtfulness in doing so. Le Fou du Roi says he’s enjoyed this exchange, and I have, too.



*Allen writes, “Hundreds of women in their fifties now give birth each year, and in 2008, aseventy-year-old woman in India gave birth to twins.” He appears to be referring to Omkari Panwar, who may have actually been 72 when she gave birth. Two things to note about that point, though: first, Panwar, like virtually every woman whom I could find documented as giving birth over 65, used artificial reproductive technology to conceive. In fact, most women giving birth after 65 used donor eggs (and often donor sperm), creating the very same third-party parenting problems that Allen worries about with gay couples.

Second, if the purpose of marriage is to bind mothers and fathers to their biological offspring for life, then extremely aged parents present another problem: it’s highly likely that one or both parents will pass away before their children reach adulthood. In other words, even if elderly marriages are fertile, it’s still debatable whether they fulfill what gay marriage opponents say is the essential public purpose of the institution.

Also, in his response to me, Le Fou du Roi brought up the biblical stories of Sarah and Elizabeth. My snappy response: Sarah and Abraham had the same father. I’ll consider her as a counter-example when someone like Allen includes her in his cost/benefit analysis for allowing incestuous unions.

**I’m no legal expert; Le Fou du Roi is. I’m not sure, in constitutional terms, why citing procreation as the purpose of marriage justifies the exclusion of gay couples from the institution, but not the exclusion of extremely elderly couples. I welcome his input on that question.


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