Thoughts from
San Diego on Law, Politics, and Culture

 
Marriage, Schmarriage (Part III): A Conservative Case For and Against Same-Sex Marriage
By Gail Heriot

Since I've already had two earlier posts (here and here) that have drawn criticism, I might as well go all the way and offend everyone–supporters and opponents of same sex marriage alike. Why else have a blog?

Let me start with the very politically incorrect topic of promiscuity. (Phew, I said it!) As I see it, promiscuity is the starting point for both a secular conservative case in favor of and a secular conservative case against the legal recognition of same-sex marriage. Gay men on average have more sexual partners than heterosexuals or lesbians. A whole lot more. The numbers differ by an order of magnitude, as my friend the astrophysicist would put it.

No, I’m not saying if you are gay that you are promiscuous. And no, I’m not saying if you are straight or lesbian that you are not promiscuous. (And mercy no, I don’t need to hear the story of your brother Ken and his ex-wife Tiffany.) I’m talking about averages. But, at least when issues of public policy are being discussed, averages matter.

Socio-biologists claim to understand all this. As they explain it, men, who can in theory father an almost unlimited number of children, have a natural tendency toward promiscuity as a reproductive strategy, while women, whose physical investment in bearing each child is great, are better off being picky about their mates and pursuing a strategy of monogamy. In heterosexual relationships, therefore, women are typically the ones to put the brakes on things. And among gay men, no one is there to serve that function. In the end, however, I don’t much care if the socio-biologists are wrong or right. For my purpose, it’s enough to know that gay men are on average significantly more promiscuous than both women and straight men.

“So what?” you may ask, “What’s the matter with sex?” And to be honest, you may be right. But the judgment of the ages has been that long-term promiscuity often leads to an unhappy life, to regret, and finally to a lonely old age and death–and that a few other people usually get hurt along the way. Don Juan is not a happy or sympathetic figure in literature, and neither are most of his fellow life-long libertines.

Can I absolutely prove that promiscuity leads to unhappiness? Of course not. There are limits to proving who is happy and who is unhappy and even greater limits to proving why. Social science can’t take you everywhere. These are among the reasons I would never dream of outlawing promiscuous conduct (or homosexual conduct). But that doesn’t mean that the traditional view is mistaken. And it doesn’t mean that I would oppose all non-coercive sanctions that might subtly influence people to walk the traditional straight and narrow.

For example, if I were a mother, I would consider it my duty to cajole, to nag and, in extreme cases when I thought it would be effective, even to threaten to disinherit my adult son or daughter if I knew he or she was engaging in seriously promiscuous conduct. On this, it wouldn’t matter if they were gay or straight. And if the neighbor lady were to give them the evil eye when she observes a different man or woman leaving their apartment every morning, so much the better. The world is not black and white. The fact that certain conduct ought not be prohibited does not by any means that it ought not be subject to more subtle sanctions. Sometimes it means that subtle sanctions are all the more important.

Some would say that the government (as opposed to the neighbor lady and me) should not play favorites among what philosophers call “conflicting visions of the good life.” So long as it’s not clearly and directly hurting anyone, conduct ought to be both legal and free from state influence, subtle or not-so-subtle.

But, to me, that seems both wrong in the abstract and not remotely the world we live in. Surely, when the Congressional Medal of Honor is awarded, the government is playing favorites between different visions of good conduct. Some people might regard an antiwar protester’s conduct as more praiseworthy than the military hero’s, but it seems odd (and probably in the end suicidal for the state) to take the position that it cannot choose to reward only the military hero. The same may go for other conduct that the state may wish to praise or even subsidize–including volunteering one’s time or spending one’s money on charitable activities. It would be odd to say that the state must also praise and subsidize those who spend their time and money betting on the ponies at the race track just because gambling is not actually prohibited.

Perhaps it ought to work this way: Conduct ought not be prohibited unless a strong case can be made for its harmfulness to third parties and the prohibition is applied evenhandedly. And sometimes the provision of benefits (or the imposition of fees) can be so large that the case ought to be treated as a prohibition. But lesser benefits and endorsements should be subject to somewhat lesser standards. The state should not be able to act whimsically by giving special recognition or small subsidies to people whose names begin with A-K, but it should not be held to the same standards of direct and provable harm (or benefit) that it would be if the conduct were being prohibited either.

All of this is a rather long way of getting around to say that it doesn’t seem categorically wrong for the state to engage in some policies that are designed to subtly influence people away from promiscuous conduct. That’s not to say that all such policies would be a good idea; most would probably be too heavy handed. But the legal recognition of marriage and the creation of certain tax incentives in favor of marriage do not strike me as obviously inappropriate or any more objectionable than tax incentives to home ownership. It’s important not to get overly puritanical about being anti-puritanical.

It’s fair to ask at this point which way all of this cuts when it comes to same-sex marriage. And I think the best answer is that it isn’t completely clear. On the one hand, one could make the argument that the legal recognition of same-sex marriage might promote monogamy among the gay population and hence conservatives interested in dampening promiscuity ought to support it, maybe even promote it. If gay men were given an extra incentive to enter into long-term, monogamous relationships, more of them might do it.

All that doesn’t strike me as obviously wrong. But the opposite argument is also plausible–that legal recognition of same-sex marriages might in the long run have negative effects. First, by removing some of the subtle social and political pressures not to be gay, those men with bisexual tendencies who might otherwise have identified themselves as primarily straight and entered into a monogamous relationship or marriage might just start identifying themselves as primarily gay and not enter into a monogamous relationship. Second, same-sex marriage may inevitably have higher rates of faithlessness and divorce than opposite-sex marriage (particularly opposite-sex marriages with children) and this might further damage the already-embattled institution of marriage. Conservatives should therefore oppose same-sex marriage.

I freely admit that my conservative case against same-sex marriage is riddled with the word “might.” But that doesn’t resolve the issue, since my conservative case in favor of same sex marriage is riddled with the word “might” too. Which forecast is right and which is wrong? Where does the burden of proof lie? And is there anything same-sex marriage advocates (or opponents) can do to improve the appeal of their arguments? What role, if any, should civil unions play here? Or same-sex marriages that do not enjoy legal recognition?

Fortunately for you the reader, this post is already much too long, so I can beg off until at least tomorrow. But stay tuned for Part IV ....
posted by Gail at 1/18/2005 10:56:00 PM