FIC Blog

Two prominent pro same-sex “marriage” scholars attacked the Marriage Protection Amendment (MPA) yesterday in op-ed written for the Hartford Courant. Why publish it in a state whose entire Congressional delegation opposes the MPA? The real goal, it seems, is to soften up local opinion in advance of next year’s push to legalize full same-sex “marriage” in Connecticut.

The scholars, William Eskridge and Darren Spedale, make three arguments against the MPA. They say that activist judges have not taken the marriage issue away from the people:

Where? The Massachusetts Supreme Judicial Court required same-sex marriage recognition, but the people can amend the state constitution through a referendum process.

Yes, and the people can amend the federal constitution too. Eskridge and Spedale casually dismiss Nebraska and Georgia—where federal judges struck down state MPAs that were overwhelmingly supported by the people—and talk of state judges who will “better reflect local sentiment.” But they’re proving our point. The voters of Nebraska and Georgia knew they were protecting the traditional definition of marriage—not outlawing “ordinary contract rights previously available to lesbian and gay couples”—and they do not appreciate having their collective will overturned by an activist judge employing a disingenuous argument. And if Eskridge and Spedale are so concerned about “reflecting local sentiment” they must know that legislatures can do it better than judges, even elected judges.

Eskridge and Spedale acknowledge that traditional marriage is in peril, but:

The law has contributed to the decline of marriage through such recent modifications as no-fault divorce (which makes marriage easy to exit) and the common recognition of prenuptial agreements, and by recognizing legal rights and benefits for cohabitating (straight) couples. Rather than scapegoating gays and lesbians as the threat to traditional marriage, society might rethink these modifications.

Of course, the pro-family movement opposes the trends that Eskridge and Spedale cite. Indeed, it is in large part because of societal trends weakening marriage that same-sex “marriage” has even become thinkable. Pointing out that same-sex “marriage” would make a bad situation worse does not “scapegoat” homosexuals.

But Eskridge and Spedale claim that same-sex “marriage” would not undermine marriage:

Before Denmark recognized same-sex couples in 1989, the Danish marriage rate was falling, and the divorce and non-marital childbirth rates soared. If the president was right that gay marriage harms the institution, one would expect these trends to accelerate after that country recognized lesbian and gay partnerships.
Yet the opposite occurred: After 1989, the marriage rate increased, the divorce rate fell and the rate of childbirths outside of marriage declined for the first time in decades. Similar but less dramatic trends occurred in the other Scandinavian countries.

Stanley Kurtz has responded to Eskridge and Spedale at length in No Nordic Bliss, Zombie Killers and Smoking Gun. In No Nordic Bliss Kurtz explains why Eskride and Spedale focus on the misleading case of Denmark while ignoring more relevant data:

Scandinavian demographers agree that the slight recent uptick in marriage rates across Scandinavia does not contradict the general picture of martial decline. Instead it reflects “catching up” by older Scandinavians who’d postponed marriage and childbearing for years, as well as remarriage among the large pool of divorced. This slight uptick in marriage and childbearing among over-30’s disguises rising parental cohabitation and out-of-wedlock birth rates among younger Scandinavians. In Sweden, and especially Norway, growing out-of-wedlock birthrates make the overall trend toward marital decline clear.

Only in Denmark has “catching up” by older couples been enough to largely offset and disguise growing parental cohabitation among the young. This reflects two recent public policy changes. Denmark massively expanded its day care system in the 1990s, and rates of day care use therefore rose more sharply in Denmark during the 1990s than in Sweden or Norway. Historically, Denmark (where nearly all women work, and “housewives” are virtually unknown) has had much more limited parental-leave policies than other Scandinavian countries. That, too, changed in the 1990s, when for the first time Danes were granted up to 52 weeks of parental leave for each child.
The combination of this increase in both day care and parental leave unleashed pent-up demand for parenting among Denmark’s older working women. That pushed fertility up (likely, only temporarily), which in turn meant more marriages among Danes over 30. (Although even many of these older Danes become parents without marrying.) In 2003, the average Danish woman giving birth for the first time was 30.1 years old…

By connecting the world’s first same-sex partnerships with a radical equalization of heterosexual marriage and cohabitation in 1987, Sweden introduced same-sex unions as a new factor reinforcing an already existing pattern of marital decline. But if you want to see the causal force of same-sex partnerships disentangled from other factors, look to the Netherlands. In Holland, unlike Scandinavia, there was little or no pre-existing practice of parental cohabitation when same-sex partnerships were introduced. So the Dutch out-of-wedlock birthrate accelerated at double-speed under the impact of the change. The Dutch case is like a natural laboratory that allows us to isolate the causal effect that began in Sweden in 1987. (For details, see “No Explanation,” “Dutch Debate” and “Standing Out“.)

As Kurtz discusses in “Nordic Bliss”—and contrary to the impression given by their Courant op-ed—Eskridge and Spedale have actually offered a “full-throated endorsement” of parental co-habitation in their work. And in “Zombie Killers” Kurtz unmasks more of their radicalism:

Yet there’s actually a striking similarity between the views of Eskridge and Spedale, and the European sociologists they neglect to discuss. Eskridge and Spedale have summarily dumped the “conservative case” for same-sex marriage. Instead, they favor a “menu” approach, in which marriage is merely one of several options among a wide array of family forms. Eskridge and Spedale even call for an American state to abolish marriage altogether and experiment with a partnership registration scheme for everyone. It’s tough to get more radical than that. Eskridge and Spedale deride the “slippery-slope” argument, even as they themselves recommend a slide down the slope.

“Marriage Protection From What?” asks the headline of their Courant op-ed. The answer is: protection from the sort of world envisioned by radical would-be social engineers like Eskridge and Spedale.