Obi Wan v Jabba

It was Obi Wan Kenobi versus Jabba the Hut at the Cato Institute as Yale Law professor William (Bill) Eskridge debated Maggie Gallagher, Yale graduate and anti-gay industry marriage scholar. The title of the forum was “Gay Marriage: Evidence from Europe?”

Eskridge opened. He and Darren Spedale recently published
Gay Marriage: For Better of for Worse? What We’ve Learned from the Evidence.
He was well prepared. His Powerpoint presentation outlined the three common arguments against same-sex marriage:

  • Natural Law “Same-sex marriage is contrary to ‘natural law’ (i.e. Genesis or the Bible) and its variant, the slippery-slope ‘it will lead to polygamy, or Judge Posner marrying his cat’. (MEOOOWW!)”
  • Stamp of Approval “Same sex marriage is not worthy of state recognition; and its variant no-promo-homo.”
  • End of Marriage “Children will be harmed from being raised outside of natural marriage, or as Bill Frist, Robert Bork and Tom Delay claim, marriage is dying in Scandinavia”

Bill studied Denmark from 1989 (when registered partnerships were legalized) to the present and found that since 1989:

  • More co-habiting heterosexuals are marrying
  • The law helped international business
  • Public health improved due to a reduction in HIV and other diseases

He concluded that same-sex marriage does not harm the institution, but that social conservatives do when they scapegoat gay people for marriage woes. He believes that there will be slow regional equality gains in the U.S. and an emerging menu of options including domestic partnership, cohabitation and cohabitation-plus, registered partnerships, civil unions, marriage and covenant marriage.

Maggie, president of the Institute for Marriage and Public Policy, a think tank that bears the motto “Strengthening marriage for a new generation” polled the 100 person crowd to see who she was talking to. 65% favored marriage equality, 25% opposed it, and 10% felt it was none of Maggie’s business, a typical crowd for her. Maggie felt that Bill’s arguments made sense for civil unions, but not for marriage because every society across the globe has had a singular concept of heterosexual marriage which must be protected from same-sex marriage and no-fault divorce and stuff like that…

She was ill-prepared for the actual topic at hand. She had no evidence and admitted that her expertise is in traditional marriage, not same-sex marriage. She was struck by the role of evidence anyway, because in her view traditionalists are required to produce evidence while innovators get to have their way without any evidence. (She must have missed Bill’s Powerpoint.) She decried promoters of same-sex marriage who put themselves in the position of saying there are no legitimate arguments against same-sex marriage, when what they are doing is “overturning the hysteria”.

She presented two statistics:

  • Few European gay couples take advantage of options 2-6%.
  • Swedish civil unions have low entry rates and high dissolution rates, 50% higher for gay couples and 100% higher for lesbian couples (because, she says, there are “two women to be dissatisfied.” Analyzing the underlying assumption here would require another post).

And she helpfully explained that marriage is not a good vehicle for what gay people actually need. She also explained the marriage equality “justice argument” as: If you believe that husband and wife marriage is “distinctive” and don’t believe that there is “no difference” between a same-sex and an opposite-sex marriage, you are a bigot, homophobe and hatemonger. Maggie doesn’t think she’s a bigot, therefore the justice argument must not be valid.

More of Maggie’s arguments: Marriage is an outgrowth of human nature and benefits society because:

  • More hets – the majority of people are heterosexual.
  • Babies, babies, babies “we need babies and babies need mothers and fathers”
  • Fatherhood at stake“marriage attaches fathers to their families and spares women from unequal treatment”

Do children need mothers and fathers? Child Trends reports that family structure matters. Two biological parents in a low conflict marriage are best for children. If we accept same-sex marriage, this passionate moral argument that there is no difference between same and other-sexed marriages, then heterosexual sex “the sex that makes babies – is NO LONGER SPECIAL! What we establish through ‘equality’ will diminish the great significance of natural families. Believing that children need mothers and fathers is NOT bigotry.”

Countries moving towards marriage equality are ‘de-norming’ marriage with low fertility rates, non-traditional forms of unions, and delayed child rearing. People who understand the importance of generativity through the joining of the two halves of the human race find marriage equality incomprehensible.

There is one point of agreement with Bill, civil unions are ok (but not really*).

Eskridge Rebuttal:

Eskridge emphatically disagreed with the assertion ‘same-sex marriage proponents believe opposition is based on homophobia’. His book contains a long write-up on the cultural basis of what he calls the ‘marriage-protection’ argument. Opponents have, like the French after WWI, drawn a Maginot line that shall not be crossed by the Germans. Unfortunately, France’s Maginot line was never tested. Germany invaded France via Belgium, not from the north.

Bill also took issue with the generativity argument. Generativity is no longer exclusively tied to the natural biological family and same-sex couples can contribute. Most sex is not procreative. The two things that scare Bill are:

  • Overpopulation and global warming
  • Lone parents which represent 26.5% of American households

Bill concluded that same-sex marriage is not a huge historical shift. There have been same-sex couples throughout history and their unions have been recognized. Today, marriage is not FOR procreation, it’s for commitment and for raising children. The largest legal change marriage has experienced is no-fault divorce.

Maggies Rebuttal:

All marriage-protection court cases have been lost on the ‘rational relation test’ which found no rational basis for the state to keep marriage exclusively between a man and a woman. Unsurprisingly, Maggie disagrees with this finding. Marriage “regulates the sexual union” and encourages children. If marriage is about commitment, why is there sex? Marriage matters because children need their mothers and fathers; children born to cohabitating parents do worse; marriage increases the likelihood that children will grow up with their biological parents. Finally, denial of these “facts” is ‘intellectual unseriousness’.


Q. Maggie, please comment on couples who get married later in life.
A. Older couples don’t contradict the social function of marriage. I was an unwed mother 10 years. Gay people don’t get babies unintentionally.

Q. Bill, what is the role of family law in human behavior? To what extent does family law affect behavior?
A. Under the rational basis test, the state has to justify inequality. It’s hard to believe the state can affect behavior.

Q. All, why don’t we have an income requirement because that would be in the best interest of the child?
A. Maggie: Sex makes babies regardless of income
A. Bill: State policies like the family medical leave act are in the best interests of children.

Q. Bill, you miss the subtlety of the Stanley Kurtz argument about what happened when same-sex marriage was imposed on Denmark We don’t want to de-norm marriage.
A. Bill: Kurtz’s argument is what David Hume labeled the post hoc ergo propter hoc fallacy. My research disputes Kurtz’s point that adopting gay marriage hastens a marriage decline. There is no correlation or causation. The social conservatives should have drawn the line at no fault divorce and other alternatives to marriage.
A. Maggie: Kurtz assumed a burden of proof that he could not meet.

*After the forum, I stopped by the podium and asked Maggie if I could relate a personal story and ask a question. She hesitantly agreed. I told her that my husband and I just celebrated our son’s graduation, and that anti-gay activists had extended her sentiment that ‘every child deserves a mother and a father’ to claim that we raised our child out of ‘selfishness’. She acknowledged that our child rearing was probably not a nefarious act and that I do value family. I then asked if she lives in VA since IMAPP’s P.O. box is in Manassas. Her treasurer lives in Manassas. She lives in the Boston area. Regardless I gave her the voteNOva palm card and asked her how she would vote on our amendment. She read the first sentence and said she would vote yes. I asked her to read the entire amendment, she said she would vote yes to protect marriage based on the first clause:

“That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.”

She said she would not have written the amendment the way it’s written, but that she would vote yes. She was getting impatient. I asked her to acknowledge my situation, that the more I support marriage, the more I run afoul of the language:

“intends to approximate the design, qualities, significance or effects of marriage.”

She blinked and dismissed me with her body language. I felt as if Jabba the Hut had just picked me up, chewed off my legs, picked his teeth with my bones, and thrown me to the ground, expendable collateral damage in the all-important culture war.

Epilogue “Living in Boston, Maggie should have a pretty good understanding of the actual changes in marriage since 2003. The marriage equality community can’t allow this slighted single-mother cross-bearing pundit to claim expertise in the ‘de-norming’ of marriage when she really doesn’t seem interested in our stories. She is however interested in highlighting every case where a disrespected non-traditional family or supporter lashes out and calls a ‘marriage-protector’ a bigot or homophobe.

Maggie may be holding on to some personal resentment for the marginalization she experienced as a single parent. Yes, gay people can have sex and not get pregnant, but so can straight people. That’s not a good reason to deny us marriage equality.

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3 Responses to Obi Wan v Jabba

  1. Pingback: Vivian J. Paige » Eskridge v Gallagher: The marriage debate

  2. Jonathan Weintraub says:

    According to Maggie’s site, video and podcast are up at Cato

  3. Pingback: Equality Loudoun » The Nanny State