Bench Memos

Law & the Courts

100 Scholars: Requiring States to Recognize Same-Sex Marriage Will Fundamentally Alter the Marriage “Ecosystem,” Likely Reducing Opposite-Sex Marriage Rates

In the marriage case now before the Supreme Court, I filed on behalf of 100 academic marriage scholars an amicus brief explaining how same-sex marriage erodes or erases key norms flowing from the man-woman definition of marriage.  The brief also explained how, just as modest reductions in water flow or temperature often substantially alter a biological ecosystem, redefining marriage would fundamentally change that institution—and in so doing likely reduce opposite-sex marriage rates and thereby lead to a host of societal ills. 

Advocates of same-sex marriage seem frightened of that analysis.  So they either ignore it, mischaracterize it, or when forced to confront it, mock it unfairly, as did an op-ed by Dana Milbank  in Tuesday’s Washington Post.  

Yet same-sex marriage advocates don’t deny that turning marriage into a genderless regime will fundamentally alter the marriage ecosystem.  To the contrary, E.J. Graff, who wrote what has been called the “bible” of the same-sex marriage movement, declared, “[s]ame-sex marriage is a breathtakingly subversive idea…[If it ever] becomes legal, [the] venerable institution [of marriage] will ever stand for sexual choice, cutting the link between sex and diapers.”

Nor have these advocates disputed that removing the man-woman definition will undermine several social norms that flow from it, and that are critical to the ecosystem’s success in nurturing children:  (1) the value of biological bonding between parents and children; (2) gender diversity in parenting; (3) postponement of procreation until marriage; (4) the social value of creating and raising children; and (5) sexual exclusivity between spouses.  All of these norms are founded upon the overarching norm of child-centricity:  that adults put the interests of children first, their own second.

Finally, advocates have not disputed that a drop in opposite-sex marriage rates would have serious social consequences:  For example, with fewer women married during years of fertility, there will be more nonmarital pregnancies—necessarily resulting in more children who are either aborted or functionally fatherless. 

The only thing these advocates dispute is the first link in the causal chain—that redefining marriage will depress opposite-sex marriage rates.  But that naturally follows from what the advocates do not dispute:  Transforming marriage into an “any-two-loving-adults” institution will erode the norms listed above—not because of the mere presence of married same-sex couples, but because of the legal and institutional changes required for them to marry.  And as marriage becomes primarily a vehicle for adult fulfillment, fewer heterosexuals will marry, or stay married, particularly those who need social encouragement to do so.  

It happened before when the no-fault divorce revolution degraded America’s marriage ecosystem.  And it can happen again.

Moreover, while there is usually a cultural lag before institutional changes show up in data, the brief also shows that what little data we have is consistent with the 100 scholars’ theoretical predictions.  In the U.S., for example, the data show actual reductions in opposite-sex marriage rates in states that have adopted same-sex marriage. 

Mr. Milbank accuses these scholars of “cherry picking” these statistics.  But he then provides his own cherry-picked numbers—numbers that include same-sex marriages, and numbers that often start years before a state redefined marriage.

In fact, according to state records, Massachusetts’ opposite-sex marriage rate the year before it adopted same-sex marriage (2002) was 5.6, while in 2012, the last year of available data, the opposite-sex marriage rate was 5.1—an 8.9% decline.  Similarly, in the other three states for which we have data, a comparison between the year before a state implemented same-sex marriage and the last year of available data shows significant declines in opposite-sex marriage rates in Vermont (5.1% decline since adopting same-sex marriage in 2009), Iowa (9.2% decline since 2009 adoption ) and Connecticut (7.3% decline since 2008 adoption).  And from 2009-2012—the four-year period during which all four of these states had same-sex marriage —the U.S. marriage rate stayed constant at 6.8 every year.  

This clear correlation between redefining marriage and falling opposite-sex marriage rates may not prove causation, but it’s enough to establish a risk of reduced opposite-sex marriages.  

The same pattern of a redefinition damaging the marriage ecosystem emerges abroad.  And the most sophisticated statistical study, which focused on the Netherlands—the nation that has had same-sex marriage the longest—actually found a causal connection, with same-sex marriage reducing opposite-sex marriage rates among young women by at least 5 percent. (Other studies have attempted a similar causal analysis of same-sex marriage’s impact in the United States, but as the 100 scholars’ brief explains, these studies suffered from insufficient years of data and methodological flaws.)  Tellingly, Mr. Milbank doesn’t even address that study.

Same-sex marriage advocates like Mr. Milbank can mischaracterize or mock the analysis, but they have offered neither a sound explanation nor a counter-argument that doesn’t itself rely on cherry-picked data.  They have therefore failed to undermine what the 100 scholars have shown, namely, that a judicially imposed redefinition of marriage risks substantial reductions in opposite-sex marriages and all the harm to the marriage ecosystem that would entail—including more functionally fatherless children. 

That would be a national tragedy.  And it’s a powerful reason for the Supreme Court not to usurp the States’ constitutional authority, if they so choose, to continue defining marriage as a man-woman union. 

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