Whenever I do a gay marriage post, I feel like prefacing it by saying “some of my best friends are gay.” In fact, that statement is no longer true. I didn’t turn on my friends, but I did settle down to marriage with children in the suburbs. In this community there are no gays, not because they would be discriminated against (Heaven forfend, in my liberal enclave), but because this is not the life gay couples seek. Those gay couples I know live to the south of me, in urban environments, sans children, with both parties to the relationship working at high paying yuppy jobs.
These on the ground realities — and I know there are exceptions, with gay couples devotedly raising families and childless straight couples partying in the big city — need to be recognized before there can be honest debate about gay marriage. And Thomas Sowell does just that:
Analogies with bans against interracial marriage are bogus. Race is not part of the definition of marriage. A ban on interracial marriage is a ban on the same actions otherwise permitted because of the race of the particular people involved. It is a discrimination against people, not actions.
Justice Oliver Wendell Holmes said that the life of the law has not been logic but experience. Vast numbers of laws have accumulated and evolved over the centuries, based on experience with male-female unions.
There is no reason why all those laws should be transferred willy-nilly to a different union, one with no inherent tendency to produce children nor the inherent asymmetries of relationships between people of different sexes.
Despite attempts to evade these asymmetries with such fashionable phrases as “a pregnant couple” or references to “spouses” rather than husbands and wives, these asymmetries take many forms and have many repercussions, which laws attempt to deal with on the basis of experience, rather than theories or rhetoric.
Wives, for example, typically invest in the family by restricting their own workforce participation, if only long enough to take care of small children. Studies show such differences still persisting in this liberated age, and even among women and men with postgraduate degrees from Harvard and Yale.
In the absence of marriage laws, a husband could dump his wife at will and she could lose decades of investment in their relationship. Marriage laws seek to recoup some of that investment for her through alimony when divorce occurs.
Those who think of women and men in the abstract consider it right that ex-husbands should be as entitled to alimony as ex-wives. But what are these ex-husbands being compensated for?
And why should any of this experience apply to same-sex unions, where there are not the same inherent asymmetries nor the same tendency to produce children?
I believe that there is room for the law to expand to protect gay civil unions. Gays should not be banned from participating in their partner’s significant life moments, such as illness or death. If they’ve melded their finances over the years and then split. they should be entitled to protections at law. Those gay couples who have children need special protection, not for their sake, but for the children’s sake, since they will see the same economic asymmetries as married couples with children. And so on.
I do not believe, however, that we should just overthrow an institution that has defined human-kind since the dawn of time. It may ultimately be the right thing to do, but it certainly shouldn’t be done by our judges, nor should it be done based on a couple of decades of political agitation aimed at the judicial system. And certainly, to the extent that there is a national debate on this subject, it should be a debate that addresses the issue honestly, rather than one that parades around under the guise of remedying discrimination.