Same-sex marriage and Disneyesque fantasies

ABC’s television show Modern Family is amazing entertainment. It is brilliantly written and acted, and well-deserving of its numerous Emmy and Golden Globe awards. It is also post-modern propaganda.

The show is centered around Jay Pritchett and his immediate family members. Jay is a sixty-something wealthy owner of a construction firm who is married to his much younger trophy wife Gloria. Gloria has a son Manny from a previous marriage, and together they have a newborn son. Jay has a married daughter, and a gay son Mitchell who is married to Cam. The latter have an adopted daughter named Lily.

The over-riding sub-text is that “love conquers all.” Whether or not Jay will be dead by the time his newest son reaches middle school, or whether or not Lily will suffer without a mother, are questions with an obvious answer: “family” structure – the set of formal and informal rules and expectations that regulate our lives with others – doesn’t matter. A “modern family” founded on loving relationships is a happy place where every possible type of family arrangement is all right, and irrelevant to any social purpose.

Real life is so much more complicated than a television show. Contrast any episode of Modern Family with the strange case of Craig Hutchinson. In 2006 the Nova Scotian Hutchinson poked holes in all of his girlfriend’s condoms in an effort to get her pregnant. He was successful, but when she found out what he had done she went to the police and he was initially convicted of aggravated sexual assault in 2009. That conviction was overturned on appeal, but a second Nova Scotia court found him guilty of sexual assault and sentenced him to eighteen months in jail. The appeal of that charge was upheld in January of 2013, and is likely to be appealed to the Supreme Court of Canada.

On the surface, the moral of the Hutchinson case simply seems to be “watch out for untrustworthy boyfriends.” But it turns out to be deeper than this, and connected to the meaning of marriage and our history with same sex marriage. At a first pass, what makes the Hutchinson case so important are the implications for the rest of us.

Consent, kids, and the family unit

As noted in the appeal trial, if a woman lies to her male partner about her use of birth control pills, is she guilty of sexual assault? If a child results from a sexual union in which the male only consented to have sex, is the father liable for child support? The case of Mr. Hutchinson cuts right to the heart of consent, intercourse, and parenthood. That is, where does this boundary of consent start and finish?

It is a new problem for a post-modern world. Historically, if you had sex you were likely to have babies (indeed, it still works this way!), and consent to sex was consent to be a parent. Ours is now a land where we have created a legal fiction that separates sex from babies. It has been a long time coming. Both the widespread adoption of the oral birth control pill in the 1970s and the ready availability of abortion have made the separation possible in practice. However, it was not until the introduction of same sex marriage in Canada in 2005 that the separation became a principle in law.

Most Canadians think that same sex marriage did little more than just “add” another type of couple to the marriage franchise. In reality, literally hundreds of laws had to be changed, but more importantly the entire notion and meaning of marriage changed – both in a legal and social way. For example, consider the meaning of “parent.” Historically the legal definition of parent always began with the biological relation of the mother and father. Exceptions were made for adoptions, but the concept of “natural parent” was important in connecting every child with their biological parent. This concept of parent was discarded for what is now generally known as “legal parenthood.” A parent is now the one legally recognized as the parent. This may be presumed to be the biological parent, but in a world of same sex parenting, this doesn’t always make sense.

Same sex marriage: a difference in kind, not just degree

The point is that same sex marriage was not a simple addition, but a redefinition. Consider another example related to Mr. Hutchinson. An ancient legal family doctrine has been the “presumption of paternity.” This doctrine held that no one could challenge the paternity of children resulting from the union of a man and woman (with the exception of the man himself). If a man was having sex with a woman, and a child resulted, then the man was presumed to be the parent. The purpose of this doctrine was to tie together sex and diapers. No man could deny his parental responsibility on the grounds that he had agreed to have sex, not children.

But the presumption of paternity makes no sense in a world of same sex marriage. After all, in a lesbian marriage there is no male, and in all same sex marriages sex does not lead to children. So out it went, and we have ended up a short while later with the strange case of Mr. Hutchinson where the appeals court has agreed that consent to sex does not necessary mean a consent to parenthood. Where this will all end, is anyone’s guess, but the consequences are not likely to be good. They won’t be good because, unlike Modern Family, love is never enough when it comes to regulating the selfish behavior of spouses and children. Which is why the institution of marriage was invented and is ubiquitous across time and cultures.

The modern marriage: A breakdown in the “civilize us” deal

I raise the contrast between Modern Family and Mr. Hutchinson because on the surface Canadians seem to hold a Disney-like view of marriage where everyone lives happily ever after once they have found their soul mate, when the reality is sometimes people poke holes in condoms and otherwise behave badly. Over the centuries, the social institution of marriage has developed to mitigate the bad behavior and encourage good behavior. In adopting same sex marriage Canada fundamentally altered that institution, and the case of Mr. Hutchinson (along with others) show that this change was not without a cost.

And this begs the following question: if Canada radically altered its most basic and fundamental institution, what was the reason for? If one pays attention to the same debate taking place south of the border, one might conclude that Canada changed marriage for “equality” reasons.

However, “marriage equality” is a recent U.S. slogan, and it was not a large part of the debate in Canada. At the time it was simply argued that there were i) large numbers of gay and lesbian
folks, ii) these folks wanted to marry, and iii) they wanted their children to have the benefits of marriage. Problems like those of Mr. Hutchinson — that someone could consent to sex without also consenting to the responsibility for its results — were not anticipated, and so the small risks seemed nothing compared to the potential benefits. It was practically a no-brainer.

From a social science point of view, one of the benefits of same sex marriage has been the collection of data on people with alternative sexual orientations. Statistics Canada now collects information that simply didn’t exist in the past. And the numbers might surprise a few people.

A fact-based analysis of where we are

Let’s just start with the simple question of how many? According to the Canadian Community Health Survey, there are only about 80,000 lesbians in the entire country. Of lesbian households, there are approximately 24,000 children with only a small fraction being adopted, and only 12.2% of lesbians actually married. For gays the numbers are more dramatic. There are about 143,000 gay men in the country, but only approximately 11,500 children, and only 4.9% of gaymen are married. Contrast this with heterosexuals. About 34.5 million people are heterosexual, and of these close to 49% are married. There are approximately ten million children in the country.

According to this large, random sample survey, if we add up all gay men, lesbians, and bi-sexuals they amount to only 1.42% of the population. These households account for less than one third of one percent of all children. Gay men and lesbians have not flocked to marriage, nor have they experienced a baby boom. Indeed, the survey suggests that over 90% of children in these homes come from a previous heterosexual union. It doesn’t matter which way you slice it, the argument for the social benefits of same sex marriage seem quite small given the small numbers of gays, lesbians, and children involved.

Marriage or marriage-like unions

Perhaps the benefits of same sex marriage come from providing institutional protection to the children in these unions. For decades studies based on small biased samples of lesbian mothers have shown that children perform equally well, if not better, in same sex households where a “double dose” of motherhood increases child performance.

As larger, more reliable, data sets have become available the question of child performance can be more accurately estimated. Recent work by myself and others using the United States and Canada census files have shown interesting results that contradict the above notions of lesbian mother households as being superior to heterosexual households. (Until very recently, no one ever examined gay parented households.)

In the United States the census allows the researcher to know if a child has made normal progress through school; that is, whether or not the child has failed a grade. In Canada, the information is slightly different, but the researcher can tell if the child has graduated from high school or not. It turns out that the results from both countries are remarkably similar. Holding constant a number of demographic variables, including marital status, in the United States a child who grows up in a same sex household is about 35% less likely to make normal progress through school compared to a child who grows up in an opposite sex married household. In Canada, a similar child is only about 70% as likely to graduate from high school. Other recent studies have found results that suggest the children in these relationships are also struggling.

Part of the reason for poorer child performance might be the instability of same sex unions. Married lesbians are about three times more likely, and married gays about 1.5 times more likely, to divorce compared to opposite sex married couples. This higher divorce rate holds even when there are children involved. Social scientists do not understand why same sex marriages are less stable, but the effect of divorce on children is well known. Still other research suggests that fathers and mothers are not perfect substitutes for each other, and so children benefit from having different sexed parents. In any event, seeking a justification for same sex marriage through benefits to children does not look promising.

Are we sure that marriage reflects most gay and lesbian choices?

Recent work on matching and sorting behaviors has shown some other interesting differences between couples of different sexual orientations. When a heterosexual is considering matching up with someone of the opposite sex, one consideration turns out to be the other’s genetic fitness and overall health status. This is not to say that when gays and lesbian match up they ignore such factors, but they turn out to play a minor role in the choice of partner. This makes some sense because sex between members of the opposite sex often leads to children, and both parties have an interest in high quality genetic and healthy offspring. As a result, heterosexuals worry more about the health and genetic traits of their sexual partners than do same sex couples.

Differences in matching is just one of the new behavioral differences that researchers are now learning about. No doubt there are many more. Which puts a twist on the original question: why should an institution like marriage, which has evolved over centuries to manage and regulate heterosexual relations throughout a procreative life cycle be of optimal value to same sex couples who have a fundamentally different relationship with their partner? It is easy to understand why same sex couples would have supported same sex marriage — it was the best they could do under the circumstances of the time.

Perhaps a better type of marriage exists for same sex couples that could handle the unique circumstances of their unions, without being imposed on the unions of opposite sex couples. It is an important question because, as the Hutchinson case points out, changes made to accommodate same sex couples apply in bad ways to opposite sex couples.

In other words, about the only benefit of same sex marriage is that it allows gays and lesbians to acquire the private marriage benefits, without contributing to the social ones. This would be fine if the current system did not impose costs on other married relations. Indeed, it begs the question of redefining marriage for individual aims and priorities over larger social benefits and costs.

The evolution of choice for all

As Canada continues to wrestle through the changes that will come, perhaps we should not be afraid to revisit the entire question all over again. The Modern Family answer is that loving individuals should be allowed to marry regardless of their sexual orientation (unless they are polygamous on religious grounds). But marriage based on love is a Disney idea with as much depth as an animated feature. Marriage is actually a complicated social institution intended
to manage the selfish and often bad behaviors that arise when two people want to live together. If there are no strong numerical reasons for the current form of same sex marriage and if such marriage is bad for the rest, then perhaps a different option is warranted.

The genie is out of the bottle, and no one is suggesting an elimination of marriage rights from same sex couples. However, what is the case to be made for a “one size fits all” type of marriage? If, as we are learning, same sex unions are different from opposite sex ones, then why should their marriage regulations be the same? If, as we are learning, same sex unions are not very stable under the current marriage rules, then why shouldn’t these types of unions be allowed to evolve on their own terms? Who knows what these evolutions would be. Some have suggested “term limits,” and different “property rules.” It really doesn’t matter what the changes are. The point is only that changes made to suit one type of marriage should not be applied to other types of marriages. If the changes are not well suited for the vast majority of heterosexuals, then why should we run the risk of meddling with one of the most basic and bedrock institutions ever invented?

Mr. Hutchinson may strike some as an anomaly and an exception, but I suspect his case is more the tip of an iceberg.


Douglas Allen grew up in Langley, British Columbia, and earned his Phd at the University of Washington in 1988. He was an assistant professor at Carleton University in Ottawa before he moved back to Simon Fraser in 1990, and is now the Burnaby Mountain Professor of Economics. Professor Allen has published over 70 academic articles, along with five books. His latest book, The Institutional Revolution: Measurement and the Economic Emergence of the Modern World (2012), is published by the University of Chicago.

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