Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, August 11, 2008

Becker-Posner Blog Debate Gay Marriage

On August 10, 2008 the Becker-Posner Blog debated Gay Marriage. Judge Posner's article is entitled The Economics of Gay Marriage--Posner and Professor Becker's article is entitled Should Gay Marriages be Allowed? Becker

Judge Posner

Judge Posner does not take a position on whether can marriage should be permitted. Instead, he offers a historical overview and some very interesting economic analysis. Most interesting is his claim that only 2% of males are gay and 1% of females are gay. Where does he get that from?? As Judge Posner states:

What are likely to be the consequences of gay marriage? If few homosexual couples take advantage of the right to undertake such a marriage, the consequences, at least in the short run, will be slight, especially since the right will be recognized in only a few states for the foreseeable future. But even if all states recognized gay marriage and the Defense of Marriage Act were repealed, the consequences would be small simply because the homosexual population is small and many homosexual couples will not bother to marry; many heterosexual couples nowadays do not bother to marry, especially if they don’t plan to have children, and a higher percentage of heterosexual than homosexual couples do not plan to have children. The much-bandied-about figure that 10 percent of the population is homosexual is false; it is based on a misinterpretation of Kinsey's data. The true figure is about 2 to 3 percent for men and 1 percent for women.

My qualification "in the short run" was intended to leave open the question whether widespread recognition of gay marriage, and thus the legitimating of homosexual relationships, might either increase the number of homosexuals or undermine heterosexual marriage. I do not think either consequences is likely. Sexual preference seems pretty clearly to be genetic or otherwise innate rather than chosen on the basis of social attitudes toward particular sexual practices. Despite greatly increased tolerance of homosexual behavior in many countries (including the United States) in recent decades, there is no evidence that I am aware of that the number of people who prefer homosexual to heterosexual sex has grown. Homosexuals are more open about their sexual identity and this creates an impression that there is more homosexuality than there used to be--and there may indeed be more homosexual behavior. But the preference appears to be unchanged.

Professor Becker

Professor Becker basically supports gay marriage. He has an interesting idea. He proposes that marriage be done by contract between two consenting adults whether they are gay or straight. This would take the state out of it.

In my view, this is an interesting idea, but it is not going to take the state out of it because the enforcability of these contracts would depend upon whether or not public policy will permit gay marriage. 

This certainly makes for interesting reading.

Mitchell H. Rubinstein

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