The Inbreeding of the Legal Sense: Same-sex marriage and the Fantasy of the Libertarian Ideal

In AN ECONOMIC ASSESSMENT OF SAME-SEX MARRIAGE LAWS, (http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No3_Allen.pdf) Doug Allen makes the point that laws defining and governing marriage are actually socially-publically recognized/prescribed rules for enforcing a more-or-less ideal balance between the various interests of the natural mating relationship. This is a balance that ideally would obtain naturally, that is, without any such external enforcement, and thus without any of the ‘meddlesomeness’ of the enforcing entit(y/ies).

But, in a non-ideal world involving every manner of imbalance, including every manner of greed or selfishness, there is no reality to a libertarian ideal in any realm of human behavior, especially in the realm of sexual relations. This is because humans were not made for a world of such imbalances, especially not for an imagined sexual world of The Endless Honeymoon (humans are designed to procreate, not just to copulate).

But, this implies that the human individual was not made for exercising self-control and critical self-reflection when faced with adverse circumstances. Rather, the human was made for acting simply as if the world is, or ought to be, in harmony with him/herself at all times and for all reasons. The fact that the world is not that harmonious with the individual means there can only be an accumulation of disharmony for any society that takes the present, fallen world as if that world is the only world that ever existed. It’s a naive (and often very selfish) individual who does not appreciate that him/herself is, and occasionally adds to, the adverse imbalances that constitute the imperfections of the world.

Doug Allen makes the case that laws which grant or legitimate same-sex marriage are motivated by a naive and ignorant libertarian idealism: ignorant about the nature of the human being and, thus, about society. And, to be naive about society is to be even more naive about civilization, because civilization is a more-or-less deliberative-adaptive social and economic construct. As I hope to show, and as I think Doug Allen does show, the legal institution-and-recognition of same-sex marriage is one variety—and the most profound variety—of the inbreeding of a legal system.

Herebelow is an excerpt of AN ECONOMIC ASSESSMENT OF SAME-SEX MARRIAGE LAWS (all in-bold emphases are mine), with my final comments after it.

 

Although economists generally see individuals coming together for cooperative exchange and production as generating much more wealth (broadly defined) than they could on their own, such cooperation also enables people to take advantage of one another or behave opportunistically. For example, employees shirk their duties, people write bad checks, spouses commit adultery, and so on. To mitigate these opportunistic behaviors, successful societies create institutions that constrain private incentives. These institutions are wide ranging, and at a general level include firms, families, laws, customs, and governments. Within each of these there are vast arrays of rules and norms to regulate opportunistic behavior at the relevant level. When societies were successful in adopting the optimal rules for their particular circumstances, they tended to outperform other societies. Eventually, only those societies with optimal rules survive.

How institutions actually come into being is irrelevant to the question of efficiency. Intentions do not matter; whether constructed in order to achieve a specific goal or developing by chance, only optimal institutions survive in the competitive world of social interactions. The implication is that surviving, or long-lasting, institutions are economically efficient. In the context of marriage—perhaps the oldest institution—the survival criteria are quite obvious. Societies incapable of replicating themselves in numbers and quality relative to competing societies simply die out or are taken over. In dealing with the legal regulation of marriage, courts and legislatures form laws that either work well or do not in varying degree. Poorly designed laws lead to lobbying efforts and appeals that result either in successful regulation of marriage or in unsuccessful marriages, which in turn lead to low fertility, low quality offspring, and ultimately a decline in the society. Either way, the Darwinian conclusion is inevitable: the general institutions of marriage we observe today are efficient, as they are the result of centuries of evolution.

Starting with the idea that long-lasting institutions efficiently regulate or constrain behavior, a question is presented: what is being regulated in the context of marriage, and for what purpose? Many economists have concluded that marriage is primarily (but not exclusively) designed to regulate procreative behavior because the private incentives of men and women at various points in their life cycles are often incompatible with the social objectives of the marriage. On the surface, this argument seems ridiculous. The alternative, that marriage is based fundamentally on love, seems more reasonable. However, the love hypothesis is over- and under-inclusive. Many people love one another in both sacrificial and sexual ways (for example, cohabitants, polygamists, homosexuals), but are not married. At the same time, there are loveless marriages in which love, though once present, no longer exists, and arranged marriages in which love is not present at the beginning. Historically, love played almost no role in marriage; matches were arranged between kinship groups. Ultimately, however, theories of marriage must be tested empirically. As this Article argues, at least in the context of no-fault divorce laws, evidence does not support the love-based marriage hypothesis.

In the context of marriage, the conflict between the private and social incentives is often linked to the biology of procreation. For example, because women bear children at a young age, they make large, family-specific investments early in their lives. Such investments place them at risk of abandonment by men who initially indicate commitment in exchange for sex. But biology cuts both ways; because men seldom know the paternity of their children with certainty, a woman who mates with a given man might be able to “breed up” by exchanging sexual intercourse with a higher quality male, allowing the original mate to raise the latter’s child unknowingly. These are just two examples of how biology could create a conflict between private and social incentives. Rules restricting abandonment, punishing adultery, and restricting male-female interactions are ways to mitigate these problems. In general, though, marriage is designed to deal with the myriad issues that arise between a husband and a wife, and to create incentives to procreate and to invest in their offspring so that they will be successful members of the next generation. An implication of this theory is that the optimal marriage rules have been remarkably constant across time and cultures, because these issues remain relatively constant across heterosexual couples.

Legal recognition of same-sex marriage means that three different types of relationships will be regulated under the same legal umbrella. Advocates of same-sex marriage portray gay and lesbian couples as similar to one another and portray both as similar to heterosexual couples. All couples love each other, all couples seek the benefit of marriage, and all aspire to equality and dignity. No one claims, however, that they are identical, and in many cases the differences between couples could matter for successful legal regulation. In terms of observable behavior, heterosexuals, gays, and lesbians appear to form three distinctly different types of relationships. In an early study on couples, researchers found major differences in behavior between the three types. Gay men had very high rates of sexual activity, while lesbian couples had sex on average once per month. Heterosexuals, especially during the childbearing years, have sexual frequency rates similar to those of gay men. Gay men were more likely to have multiple partners than lesbians or heterosexuals. In a study on same-sex registered unions in Sweden and Norway, researchers found a number of differences between gay and lesbian unions. Surprisingly, gays were almost twice as likely as lesbians to be married. Gay men were much more likely to have wide age differences in the couple, while lesbians were most likely to be of the same age. Gay men were more educated, and more likely to not have been in a previous heterosexual marriage. Most significantly, they found that gay marriages had dissolution rates fifty percent higher than heterosexual couples, and lesbian marriages had dissolution rates three hundred percent higher. The lesbian rate of separation was twice that of gay couples.

These differences may not be the result of a lack of legal regulation; rather, they may reflect a more basic difference. The fundamental difference between these three types of unions is the biological relationship between parents and children. In a heterosexual marriage, biology is perfectly aligned with the definition of parent. Indeed, the legal notion of “natural parent” is the biological parent. In a properly functioning heterosexual marriage, there are two parents; they are married, and they are biologically linked to the children. Indeed, the institutional apparatus of marriage is designed to produce this effect. In a same-sex marriage, if there are children, this biological link is necessarily severed. This difference, whether one believes it to be good or bad, produces a different set of incentive problems between heterosexual and same-sex marriages.

Historically, marriage was designed to create a bond between a biological mother, father, and their children. This was not always possible: some marriages fail, spouses die, and some couples are unable to procreate. The result has been allowance for remarriage, adoption, artificial insemination, and the like. These have been second-best solutions to unfortunate circumstances; there was never the threat that these ex post outcomes would influence the institution of marriage. The impossibility of same-sex procreation, however, presents a different set of circumstances. All children in a same-sex marriage necessarily have a broken biological link to at least one of their parents, whether because of a previous marriage by one of the partners, artificial insemination, or adoption. What is the exception for heterosexual marriage is ubiquitous for same-sex marriages. It is not obvious that current structures—such as adoption and reproductive technology—that are adequate for heterosexual marriage will be sufficient for same-sex marriages.

There is another problem that arises in every same-sex marriage: children receive only one type of gender influence from their parents. In addition to the uncertain direct effects of same-sex parenting on children, this situation may give rise to difficult contractual issues. No doubt many of these families will seek out role models for their child from among the other sex, perhaps from the biological parent. These third parties are likely to play more important roles in the context of same-sex marriage, and with this increased importance may come increased legal rights of the third party. Or, perhaps the solution will take another route, with the state playing a larger role in the inculcation of gender identity. One wonders if such an approach would lead to greater state involvement in the raising of children from heterosexual families as well.

The point is simply this: the ability to procreate is a fundamental difference between same-sex and opposite-sex couples. This difference is likely to manifest itself in hundreds of different issues that may require or warrant some type of legal intervention. Thus, any transfer of rights permitting same-sex marriage may harm heterosexual couples, for whom the present regime was created, and for whom it is efficient.

 

In short, only if ‘love’ between two individuals were the sole issue in defining and enforcing marriage could same-sex marriage justifiably be recognized by society. Yet that’s the libertarian ideal being used to rationalize the legal recognition of same-sex unions as essentially equal to heterosexual unions. But, if such a simplistic ideal were the reality which same-sex proponents in effect claim it is, then any two individuals should have the right to ‘marry’, no matter what natural relations they have to each other and to human society, including whether either of them is human, adolescent, progeny-of-the-other, serial murderer, terrorist, etc.. In other words, in a world full of every manner of natural and unnatural adverse imbalances, the more open is marriage to being redefined inclusively, the more indifferently and otherwise chaotically is any instance of marriage allowed to be dissolved (or force-ably dissolved by meddlesome external entities even for the sake of some twisted idea of a ‘wider’ social benefit).

The simple fact is that sexual activity between two persons of the same gender, regardless of any sexual attraction between them, is an act which borrows upon the natural mating drive of heterosexuality (even if one of both of these homosexually-acting persons feels little or no sexual attraction to anyone of the opposite gender). And, the ultimate question is whether such ‘borrowing’ is not, in fact, stealing. If one or both of these individuals is heterosexual, then their homosexual action certainly can be seen as stealing (such as in a world populated only by two men and two women in which all four are heterosexual). You see, the question is whether sex outside of a stable, intentionally life-long marriage is stealing, or is simply the right of every horny SOB. Because, if it’s not stealing, then who of us can rightly command (and expect the wider society to enforce) that anyone ever be faithful to us as a sexual/reproductive partner? This is the issue.

…And it all bears on whether the mating drive itself is a human and civil right: that a human has the right to the sort of dignities which allow him or her eventually to be married; the right not to have physical and mental health destroyed by the arrogance, greed, and pushy self-interest of fellow citizens, whether parents, employers, official spiritual leaders, or government officers and systems of law. It cuts all the way down and across, even to the right to be born without a conflict of sexual self-identity.

I can only imagine how much of a theft it is for a heterosexual, for sake of a present convenience, to engage in homosexual behavior. As a heterosexual, I call it the most abominable kind of theft, though a theft not on the immediate visible level, but on the level of a microbiological economy which is invisible to humans except in terms of deepest repulsion or disagreement.

The fact that those born with conflicts of sexual self-identity are identified by an open society as caring and empathic individuals says nothing of whether that conflict is a disability or not. Some of the most disabled people are among the most caring of people. So, it is a pragmatic reaction on the part of an open society to legitimize same-sex unions. That would not be the reaction if such conflicted individuals were insensitive and ‘beastly’. But, the nature of that conflict tends to make them more, not less, sensitive, because it involves the very core of themselves as sexual, and thereby biologically reproduce-able, beings.

One can live by eating through a tube, but the deepest and broadest kind of companionship between two creatures is not so subject to alternatives. So, while even homosexuals long for such companionship, and while they hope, and occasionally try, to obtain it, can they ever really attain it if their efforts are misdirected both internally and externally?

To be a homosexual in a heterosexual world is in itself to be oppressed, even if the whole world were ‘Ok’ with it. Most of the more empathic or otherwise open heterosexuals know this. But, knowing this does not say in which direction to prosecute the case for their sake. One can let the child have the entire candy store for free, to be eaten as he pleases, but the fact that he is born so poor that he cannot afford even a piece of fruit does not mean that letting him have the candy store is the sensible way to get food in his stomach. Some things aren’t the food they seem to be.

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