Why the Last Defense of Same-Sex Marriage Bans Fails

The waiting is the hardest part.

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After literally decades of shifting rationales for banning same-sex marriage, opponents of equality have made their last stand in the case of Obergefell v. Hodges, which the Supreme Court will decide in the next two weeks. During oral arguments in April, proponents of straight-only marriage laid out their case in the strongest terms they could muster, a distillation of years of conservative think-tank messages honed and re-honed as each previous argument fell.

So what’s the best they’ve got? For the answer, all eyes were on John Bursch, a Michigan assistant attorney general representing the four states defending their same-sex marriage bans. Across the 45 minutes allotted for his argument, Bursch was asked exactly 10 different times how letting gay couples wed would harm the institution of marriage—a question most legal experts think must be persuasively answered to justify denying gay people this fundamental right.

That the justices asked the question 10 times signals that they received no good answer from Bursch. What case was he trying to make? After attending the oral arguments and poring over the transcripts, I can confidently identify the most compelling iteration of an uncompelling argument: “It has to do with the societal understanding of what marriage means,” Bursch said at one point. “If you de-link marriage from creating children, you would expect to have more children created outside the bonds of marriage.”

This assertion—the most thoughtful and humane anti-gay-marriage statement that smart conservatives have put forward in recent years (and the one that proponents insist proves that opposing same-sex marriage doesn’t mean you’re anti-gay)—boils down to a “norms” argument. It assumes that people choose to get married primarily to meet certain expectations that society enforces in order to serve an important social purpose. In this case, that purpose is to ensure that, if children result from a heterosexual pairing, those kids will grow up with their parents committed to them and to one another.

Everyone knows things don’t always work out this way. But that’s the point of a norm: it’s not a guarantee of uniform outcomes, just an expectation meant to guide socially desirable behavior. Tinker with the norm, goes the theory, and you’re bound to lose control over aspects of human behavior that it’s important to get right. If the marital norm is transformed by including gay couples in its bounds, some worry, there goes the neighborhood.

But that’s a big “if.” The argument put forward at the Supreme Court this spring is based not only on a theory about social norms but also on an empirical prediction about how Americans will react to including gay couples in marriage. “If this Court ensconces in the Constitution a new definition of marriage,” fretted Bursch, “and it reduces the rate that opposite-­sex couples stay together” and “bound to their children,” then kids throughout the nation could suffer. The norms argument is how opponents of equality tie same-sex marriage to kids. It’s not the children of same-sex couples they are worried about (although they tried that argument, too; it’s long been settled), but all the other kids of the world. If a number of people react to same-sex marriage by opting not to marry, goes the thinking, more children will be born to unwed parents. To avoid such a fate, Bursch reasons, the state is justified in denying gays and lesbians the right to marry.

But is this all-important prediction—the key to the entire anti-gay-marriage position—correct? Why would some Americans decline to marry just because gay couples are allowed to?

There are two plausible reasons. First, they might dislike gay people so much that they wouldn’t want to be members of any club that admits them. There’s no evidence this is so, but even if it were, it is a constitutionally impermissible basis for a law. A 1984 Supreme Court case denied a father’s effort to gain custody of his daughter because the child’s mother was now in an interracial relationship. The father was entitled to his racist moralizing, said the court, but it could not be the foundation for law. “Private biases may be outside the reach of the law,” said the opinion, “but the law cannot, directly or indirectly, give them effect.”

The second reason straight people may react to same-sex marriage by declining to wed is that they view the purpose of marriage as so tied to procreation that they believe allowing non-procreative couples to marry renders it superfluous. Yet non-procreative couples are already allowed to marry. They include people who are infertile, post-fertile, incarcerated, childless by choice, or who choose to adopt rather than procreate. If all these other couples are allowed to marry, but same-sex couples are not, it’s fair to surmise that prejudice, rather than child welfare, may be driving this cart.

The existence of non-procreative marriages has repeatedly led courts, including the Supreme Court, to recognize that marriage is in no way definitionally tethered to creating children. Nearly 30 years ago, in upholding the right of prisoners to marry (it’s tough to procreate when one of you is behind bars), the Supreme Court listed four chief attributes of marriage: a public statement of commitment to a partner, an expression of religious faith (for some), a social blessing of a couple’s intimacy, and a gateway to government benefits and protections. Procreation was not among them.

Nine years later, in a 1996 state court ruling striking down Hawaii’s same-sex marriage ban (reversed by voters before it could take effect), the judge listed eight elements of marriage, including commitment, social recognition, legal benefits, and “having or raising children”—all eight of which same-sex couples could enjoy.

That marriage is not confined to procreation is evident when looking at how officials characterize it in less politically charged contexts than the same-sex marriage debate—that is, when people aren’t busy contorting their logic to fit anti-gay-marriage ideology. A Michigan handbook for wedding officiants offers several sample ceremonies that describe marriage as “a relationship so close and intimate that it will profoundly influence” a couple’s future and tells couples that from the marital commitment, “you can expect the greatest measure of earthly happiness.” Children are not mentioned. One of the most relied-upon family law documents in Massachusetts characterizes marriage as a structure of rights and obligations established to “support individuals’ expectations of emotional and sexual intimacy, vows of fidelity and commitment and sharing of economic assets and support.”

Yet we don’t need to draw on abstract definitions to assess the impact of marriage equality. Today, same-sex marriage is not merely a future possibility; it already exists nationwide in 19 countries and 37 U.S. states and the District of Columbia. Has this reality reduced straight marriage rates and increased out-of-wedlock births?

The theory is bizarre on its face. Gary Gates, the nation’s preeminent demographer of LGBT populations, points out that if every same-sex couple in the United States got married this second, it would represent about 1 percent of all married couples. That means the defense’s theory rests on the outlandish assumption that this 1 percent would revolutionize the behavior of the other 99 percent.

In fact, however, there is now a body of evidence that allows us to answer this question empirically. Gates writes of two recent studies published in the prestigious journal Demography, which found no evidence that same-sex marriage has depressed marriage rates either in the United States or the Netherlands, the first nation to legalize it. He adds, “In 2013, the portion of children being raised by married different-sex parents in the U.S. was actually a little bit higher in states where same-sex couples could legally marry (65 percent) compared to states where marriage was restricted to different-sex couples (64 percent).”

Other research has reached the same conclusion, such as this Slate data analysis which found that marriage rates were slightly higher, and divorce rates slightly lower, in states that allowed same-sex marriage. Data from history tell the same story: Conservatives have, for ages, breathlessly proclaimed that inclusion and equality would destroy American institutions, such as when they insisted that racially integrating the military, and later allowing openly gay service, would destroy unit cohesion and drive the good troops out. It didn’t happen, and there was never any reason to think it would.

Of course, we need not deny the obvious: Many married couples reproduce, and some Americans still link marriage and procreation in their minds. But as a legal matter, that link hasn’t been a requirement—or even central to the definition—of marriage for decades. Even if we concede that a state may have a stake in linking procreation to marriage—so that kids are more likely to be raised by a committed couple—there is a vast difference between the reasons a state gives for a certain policy and the reasons ordinary individuals use to make choices. A state can link marriage and procreation in its reasoning even if individuals don’t. Indeed, public policy routinely assumes that individuals make choices for different reasons than the state—hence the system of incentives and rewards to maintain order. (The state imposes fire codes for public safety, but people choose to abide by them to avoid a fine.)

This is where Bursch stumbles. He confuses how governments try to regulate behavior with how individuals actually make decisions. It’s one thing to argue that the state should create an institution that nudges people to make long-term commitments to their child’s other parent. It’s quite different to assume that individuals choose when, whether, and whom to marry on that same basis. It may be right that states encourage marriage in order to channel procreative energy into stable coupledom, but that doesn’t seem to be why most individuals choose to get married.

Indeed, Bursch makes this concession in an assertion that totally contradicts his entire case. In his initial argument, he was explicit that for marriage to serve its alleged purpose of binding parents to their kids, marriage must be linked to creating children “in people’s minds.” But later, responding to questions about whether couples who can’t or don’t plan to have kids should be allowed to wed, he said this: “Many people get married thinking that they can’t have kids or won’t have kids, and they end up with children.” It’s for these couples that marriage is essential: If they inadvertently end up with kids, the state wants them married.

So now Bursch admits that plenty of people get married thinking they won’t have kids—after basing his entire argument on the importance of preserving people’s mental link between marriage and procreation. In fact, the absence of such a mental link—not the need to protect it—is the very reason why we have marriage!

What all this shows is there is no rational basis to exclude same-sex couples from marriage, and thus no constitutional basis to allow the bans to stand. In fact, the only rationale for the bans is rationalization—what people do when bias trumps reason. We’ll find out soon whether five or more justices can see that.

Read more of Slate’s coverage of same-sex marriage at the Supreme Court