Thoughts from
San Diego on Law, Politics, and Culture

 
Marriage, Schmarriage (Part VI): Will Same-Sex Marriage Really Affect Anything?
By Gail Heriot

A couple of my correspondents have expressed doubt that same-sex marriage will have either of the effects that I've talked about in my earliers posts here, here, here, here and here.

Tom Chatt, for example, who sent me an extremely thoughtful response favoring same-sex marriage, expressed doubt that it will have the upside effect of dampening promiscuity among members of the gay community and suggested instead that only committed couples will enter into such marriages. (I liked his teasing example: "'Oh honey, why don't we get married? True, we'll have to give up promiscuity, but we'll get tax breaks!'")

On the other hand, Brett McDonnell, whose interestng and fair-minded response I mentioned in my last post, concentrated his doubt on my downside effect--that traditional marriage will be harmed by the introduction of same-sex marriage. He asks: "Is the idea that straight people will see gay men being unfaithful to their husbands, figure it's OK, and go out and do the same? ... Is that really a plausible story?"

(Somehow this reminds me of "Broken Windows," James Q. Wilson and George L. Krelling's 1982 article in Atlantic Monthly. They suggested that scrubbing away graffiti, cleaning up trash, and fixing broken windows might reduce crime in high-crime neighborhoods. Many people, used to the modern cliche that you shouldn't "sweat the small stuff," considered all this counter-intuitive and teased them with scenarios like this: "Sluggo, that new flower p0t in the park is so pretty that I think I'm going to give up my life of crime!" But Wilson and Krelling stood their ground, and the evidence now suggests that they may well have been right. (See
Fixing Broken Windows by George L. Krelling and Catherine M. Coles.))

The truth is that there are eight million stories in the Naked City. And at every given moment thousands and thousands of people are facing tough questions for which they plausibly could go either way. Should I get married? Should I get divorced? Should I tell my husband what I really think of him? Should I punch my brother-in-law in the nose for what he did to my sister? And the ever popular, should I give this damn thing one more try?

Can the legal recognition of same-sex marriage (which fair-minded people agree is likely to have higher rates of break-up than traditional marriage, particularly traditional marriages that involve children) affect some of those decisions? I can't see how it could fail to. To me, the interesting issue is which effects will dominate, not whether there will be such effects. Consider these hypotheticals:

****Susan may be the sort of woman who has a hard time committing to anything, but once she does, she tends to do well. Her problem is that when she is considering whether to marry her boyfriend, she can't help but remember what a terrible time her older brother had when he was divorcing his same-sex spouse. In the end, it's just enough to give her cold feet.

****Beth learns that her husband has been spotted in a restaurant stroking the shoulder of a female colleague. It's not clear that he has actually cheated on her (and in fact he hasn't--yet). Her instinct is to confront her husband and ask for an explanation (and in this case her instinct would have been correct, since it would have snapped her husband back into reality, before things had gone too far). But she confides in a gay friend who advises her that he keeps his own same-sex marriage intact by ignoring minor indiscretions. Only half-convinced, she reins herself in somewhat and simply asks her husband where he had lunch that day. When he answers that he had lunch at his desk, she stares darts at him, but he is too thick to notice. Undeterred, his relationship with his colleague gets out of hand.

****Bob's marriage to Carolyn has generally been a happy one, both inside and outside the bedroom. Bob, however, has always regarded himself as a potential bisexual. He has never acted on this interest of his; ten years ago he considered it, but decided that getting caught by anyone would be the most humiliating thing that could happen to him, even if Carolyn and the children never found out. Lately, however, he's noticed that such things just don't seem to carry with them the same social stigma they used to, in part because of the legal recognition of same-sex marriage. This time he decides to go through with it.

Similar hypotheticals can be imagined for the upside argument that same-sex marriage could somehow "domesticate" the gay lifestyle. Of course, Tom is right that few gay couples would be thinking, "Hey, now that the law has changed, we should give up our promiscuous lifestyle and get married!" But that's not the point. The idea is not that a proposed change in the law could move some people from A to Z. Instead, such a change could move a lot of people a little bit--from A to B, B to C, and Y to Z. A previously committed couple may get married and even hold a big wedding to mark the occasion. Their best friend, who is not so committed, but on the whole would prefer it, is inspired by their example and tries a little harder to find someone special. And he succeeds. His neighbor has an adult son who is into the bathhouse scene, and she steps up her criticism of him. The son responds not by giving up the bathhouse, but by joining to local gay youth club that goes bowling on Friday nights (one of three nights a week he previously used to frequent the bathhouses.) Gradually, he is pulled away from the most promiscuous lifestyle into to one that is somewhat less promiscuous--a small victory for Mom, but still a victory.

Well, that's just six stories. There are 7,999,994 more to tell. When we add them all up, which of these effects--upside or downside---will ultimately outweigh the other? As I suggested in my earlier posts, I don't know. I am just another of Burke's error-prone mortals "with the puny resources of individual reason to sustain" me. But to me, that's precisely why caution is in order.

posted by Gail at 1/24/2005 03:49:00 PM