December 7th, 2012
Will marriage equality wreck people’s conception of marriage and destroy society? Our opponents think so. They put the idea in their legal arguments, and I recently mocked Nevada Judge Robert Jones for allowing the possibility in his ruling against us. For the sake of reasoned discourse, though, we ought to take this seriously for a moment and see if it makes any sense.
Judge Jones argued:
Should that institution be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.
Sounds ridiculous to me, but Jones seems to think plausibility is irrelevant. He also wrote:
The question is whether the State has any conceivable basis, even speculatively, to believe that spouses or prospective spouses might feel this way, for whatever reason…
But that’s not quite right. He references the court case Jackson v Abercrombie to support this notion that any conceivable speculative harm is sufficient for his ruling, but here’s what Jackson says:
Under rational basis review, the state is not required to show that allowing same-sex couples to marry will discourage, through changing societal norms, opposite-sex couples from marrying. Rather, the standard is whether the legislature could rationally speculate that it might.
I added the emphasis. The speculation needs to be rational. In other words, while I could conceivably speculate that marriage equality will rip a hole in the space-time continuum, allowing armed bunnies from another universe to cross over and prevent straights from marrying, that wouldn’t be rational speculation.
So let’s see how rational Judge Jone’ is being. Let’s profile these hypothetical people for whom marriage equality would so devalue the civil institution that they would opt out of it.
First, obviously, they can’t be supporters of same-sex marriage. By definition, these folks won’t have a harsh, life-changing reaction against the passage of marriage equality. The same goes for people who don’t much care about same-sex marriage, pro or con.
That leaves us with the opponents of marriage equality. But do they all fall into Judge Jones’ speculative group? Certainly not.
Think about the larger, more popular, more influential anti-gay churches. They have little incentive to offer “purely private” religious ceremonies “without civil sanction” — if only becaue doing so reduce their secular authority and power, something churches are often loathe to do.
Less cynically, the more thoughtful of these churches would recognize the dangers (helpfully listed by Judge Jones) of “out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages” and thus they’d follow their moral obligation to guide congregants away from those dangers and into civil marriage.
Actually, this is also is true for those who put forth non-religious reasons for opposing marriage equality. This same litany of dangers would lead the Maggie Gallaghers and Jennifer Roeback Morses of the world, along with their followers, to marry and to counsel marriage for others.
Who do we have left? Just a virulently anti-gay fringe too irrational to recognize the benefits of civil marriage. But wait — we needn’t even worry about them. After all, we’ve altered marriage laws before: It’s now easy to divorce and just as easy to remarry. So we can split our irrational, anti-gay fringe into two groups:
And that’s it. We’ve eliminated pretty much the entire population from concern. We don’t have to worry about any of the following and their reaction to the passage of same-sex marriage:
I suppose, even after all this, you can find a tiny, tiny segment of the population who will ditch civil marriage if two guys or two gals can get hitched. But will they be a “meaningful percentage” of the population? Rational thinking says no.
That was a nice thought experiment. However, if someone claimed that marriage equality will lead people to stop getting married, I wouldn’t haul out this argument right away. I’d merely take a rational tone with a rational smile and ask the rational question:
“Can you describe these people for me?”
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