With the country still simmering after the Massachusetts court decision that could extend marriage to gay couples, it’s time to separate the chaff from the wheat in the arguments for gay marriage.

There are several good arguments for gay marriage. Among these are the stability and commitment it would encourage in gay relationships and in gay life generally. That would benefit everybody, gay and straight.

There are also some bad arguments against gay marriage. An example is the selective logic of the procreation argument, which holds that nobody is required to procreate in order to marry, except gay couples, who can’t procreate, and so must unfortunately be excluded.

We should acknowledge, however, that we ourselves have been guilty of making some bad arguments for gay marriage. Here are three:

”Bad Argument #1: It’s All About the Benefits.”

The most common argument for gay marriage emphasizes the harm that’s done to gay couples by excluding them from the protections and benefits of marriage. Among these are tax benefits, settled property division and presumed child visitation and/or custody upon death or divorce, testimonial privileges in court, hospital visitation, and health benefits extended by private employers or governments to the spouses of workers. Someone has tallied over 1,000 marital benefits and privileges. Give us all these goodies, too, the argument goes.

Benefits are indeed part of the story about why it’s wrong to exclude gay couples from marriage, but they are not the most important part of it. Some of the benefits of marriage can be replicated — at some cost and inconvenience to the couple — through wills, trusts, and contracts.

Emphasizing the riches of marriage misses the richness of marriage. Very few people marry in order to experience the magic of filing a joint income tax return. They marry because, in our tradition and history, marriage is the way couples in a community signal the depth of their commitment to one another. Their family and peers reciprocate by supporting and celebrating that commitment, which in turn reinforces it. Everyone understands the stakes.

If the benefits were all that mattered, civil unions would be an adequate substitute. Yet, “We’re unionized,” simply does not have the powerful social significance of, “We’re married.” So let’s argue for the benefits, but let’s not stop there.

”Bad Argument #2: We Have a ‘Right’ to Marry.”

Another common argument for gay marriage is more legalistic, and less functional, than the first. It tends to emphasize the discrimination in the marriage exclusion, holding that gays have just as much “right” to marry as heterosexuals.

The problem is that, while a reasonable legal argument can indeed be made for gay marriage, it is unlikely to persuade anyone who isn’t already convinced that gay marriage is a good idea or at least not a bad idea. Legal conclusions follow, they do not create, arguments on the merits of an issue.

Another problem with the rights argument is that it tends to channel our efforts toward courts, where the issue will not ultimately be won, and away from legislatures and from the hearts of our fellow citizens, where it must be won. The comparatively easy work of writing briefs for judges and their clerks will not substitute for the hard work of persuading the people we’re right.

”Bad Argument #3: Gay Marriage Will Revolutionize Society, and That’s Good.”

This perspective was recently expressed by sociologist Kersti Yllo, a professor at Wheaton College in Massachusetts. “We need to acknowledge [conservatives’] argument that gay and lesbian marriages have the potential to change civilization as we know it,” says Yllo. “And that will be a good thing.”

”Gay marriage is not the cause of the problems with marriage, but neither is it a solution.”

There are at least three versions of this argument. One holds that heterosexuals have screwed up marriage and gays will do a better job. But gay couples, I predict, will suffer divorce rates just as high as their straight counterparts. There will be instances of gay spousal abuse and infidelity, just as there are for straight couples. Gay marriage is not the cause of the problems with marriage, but neither is it a solution.

A second version of the revolution argument maintains that gay marriages will be less “stifling” and perhaps more “open-textured,” offering a healthy alternative marital model to straight couples. What is primarily meant by these euphemisms, I think, is that gay male couples will play around more.

I doubt the rate of publicly “open” gay marriages will be very high, for reasons I’ve offered elsewhere. Further, whatever that rate, I doubt it will have any effect on straight couples because gay couples will comprise a tiny percentage of all marriages and because women will continue to demand monogamy in opposite-sex marriages.

Moreover, if gay marriage did have this “liberating” effect on straight marriage, that would be a good argument against gay marriage. Sexually open relationships are on average less stable and lasting than monogamous ones. Introducing even more instability into opposite-sex marriages would be terrible for the relationships themselves and for the children they often produce.

The third version of the revolution argument holds that gay marriage will undermine traditional gender roles under which wives do housework and husbands make money. Like the better-living-through-adultery fallacy just discussed, this argument assumes a huge effect from a small cause. Besides, gay couples are often not radically different from straight couples in their division of labor. Finally, traditional marital roles have already declined to a great extent.

While Arguments Nos. 1 and 2 are just bad when offered by themselves, Argument No. 3 in all its versions is just plain bad.

”’Dale Carpenter is a professor at the University of Minnesota Law School, where he teaches courses on Sexual Orientation and the Law, the First Amendment, and Commercial Law. He also writes a regular column, “OutRight,” for several gay publications across the country. Carpenter graduated from Yale College and from the University of Chicago Law School, where he served as editor-in-chief of the law review. After law school, Carpenter was a law clerk to the Hon. Edith H. Jones of the United States Court of Appeals for the Fifth Circuit. His email is:”’ mailto:OutRight@aol.com

”’HawaiiReporter.com reports the real news, and prints all editorials submitted, even if they do not represent the viewpoint of the editors, as long as they are written clearly. Send editorials to”’ mailto:Malia@HawaiiReporter.com

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