Well, thanks to the Massachusetts Supreme Court, same-sex marriage moves from simmer to full boil. It nothing else, the spectacle of Bush attempting to appease the Religious Right by head-faking toward a constitutional amendment while managing to never really go that way and alienate the majority of Americans will be equalled only by the spectacle of the Democratic nominee (whichever one is deemed "electable" this week) trying to appease the left wing core activists in the party by supporting "something" for same-sex couples but not having the guts, or risking the same votes Bush risks, by actually being in favor of calling it "marriage." In but a few years we've gone from what "is" is to what "marriage" is. Progress? Eh.

In the WSJ this morning, Mitt Romney, the governor of Massachusetts, has an op-ed that exemplifies one of the main problems with the conservative position on this issue: its historical ignorance. He writes:

Contrary to the court's opinion, marriage is not "an evolving paradigm." It is deeply rooted in the history, culture and tradition of civil society. It predates our Constitution and our nation by millennia. The institution of marriage was not created by government and it should not be redefined by government.

Yes indeed, it does predate "us." But in that long and lovely history, marriage has taken many forms, and the participants in marriage have had a dizzying array of rights, options, and roles. And cross-culturally, we are all, I think, aware of the range of arrangements that constitute marriage. So, Mr. Governor, marriage IS an evolving paradigm. If it hadn't evolved, we'd still be back at women as chattel and same-color only, just to mention two contemporary examples.

And yes, it wasn't created by government, but the question at hand is who is redefining it? Heterosexuals have, over even just the last 100 years, significantly redefined marriage and governments have normally, though not always, followed in their wake by changing the law to reflect de facto practice. The reality of the early 21st century is that same-sex couples are, in many case, de facto married. Granting those relationships legal protection is not redefining marriage - that's already happening. It's simply codifying practice and recognizing the ongoing evolution of the institution. Much as marriage evolved to recognize women's full equality and our lack of concern over the skin color of the partners, it is now evolving to include same-sex couples. That's not government redefinition, that's social evolution.

Romney continues:

Marriage is a fundamental and universal social institution. It encompasses many obligations and benefits affecting husband and wife, father and mother, son and daughter. It is the foundation of a harmonious family life. It is the basic building block of society: The development, productivity and happiness of new generations are bound inextricably to the family unit. As a result, marriage bears a real relation to the well-being, health and enduring strength of society.

All fair enough. In fact, it would be wonderful if heterosexual marriages actually did all that! But the question is what all of this has to do with excluding gays and lesbians. If it's so damn important, why don't we want more people involved in it? (And watch out when "new generations" gets invoked - that's heading for trouble.)

Because of marriage's pivotal role, nations and states have chosen to provide unique benefits and incentives to those who choose to be married. These benefits are not given to single citizens, groups of friends, or couples of the same sex. That benefits are given to married couples and not to singles or gay couples has nothing to do with discrimination; it has everything to do with building a stable new generation and nation.

Oooooooooh, "stability" is it? You mean there's something "unstable" about same-sex couples? (Not to mention all the "stable" heterosexual couples that are keeping marriage and families so healthy.) So it's not about discrimination, yet allowing same-sex couples into the institution will destablize it. Unfortunately, the governnor chose not to expand on this point, but I'd love to hear what he thinks is so unstable about same-sex relationships, or how they will destabilize society writ large.

And look what's back! Our old friend "new generation." Once again, marriage rights are linked to procreation to justify the exclusion of gays and lesbians. Tell me Governor, if it's all about building a "stable new generation," will you ask the people of Massachusetts to support a law banning marriage by infertile couples, and requiring all married couples to have children? If not, what damage is done to a "stable new generation" by allowing same-sex couples the same freedom to share their lives together that is enjoyed by heterosexual couples who either can't have, or don't want, children?

As I noted in an earlier post, there are plausible arguments against full legal recognition of same-sex marriage, but those arguments, at least from a broadly liberal perspective, are going to have to show some demonstrable harm to third parties from it, and further demonstrate, in my view, that such harms aren't already at play with current practice. If same-sex marriage poses a threat to "stable new generations," then why aren't we outlawing other practices that do, e.g. divorce, childlessness, and putting kids in day care, if the conservatives are to be believed? The inconsistency, if not hypocrisy, of most of the conservative arguments against same-sex marriage is so transparent that it's no wonder they face the accusation of discrimination, and feel compelled to be defensive about it. Most conservatives are smart people. Given that, how else to explain the obvious weakness of their arguments other than it being a case of a tortured intellectual opposition to something they just find "icky"?

When I read these conservative anti-same-sex marriage screeds, my belief that Margaret Atwood's wonderful book The Handmaid's Tale is a bit overwrought as a cautionary tale just gets eroded away a little bit more.

I'm in the third year of a three-year administrative appointment and my dean has just begun a campus-wide performance review. He has specifically asked for letters from folks who work closely with me, and will send out a broader campus call for information shortly. That's one way to get accountability I suppose. In a small place, with relatively few layers of administration in academic affairs, that's probably easier to do. In any case, I don't see the systematic threat to tenure, nor do I see Deming's situation as just being about tenure. It certainly points to other problems in higher ed, as Robert rightly notes.

Wow, things are heating up in this little corner of cyberspace! Mark is trying to out-libertarian David Bernstein (I caught the same point in David's op-ed) and Arthur is calling W treasonous for trying to enshrine heterosexual marriage in the Constitution. Hard to argue with either of those positions! For those interested in the same-sex marriage issue, there was quite an intense debate over on the Hayek-L list the week before last that might be worth looking at. The thread headers should be obvious. I will just add, about my own participation in that debate, that my position is identical to Arthur's: ideally the state should be out of marriage, but in the world in which we live where the state is involved, as should be the case with all such involvements, it may not discriminate in its actions.

The conservative animus toward same-sex marriage never ceases to amaze me. It cannot be explained, in my view, by any rational objection. The good news is that I see much less of this animus among my students, including those who are otherwise pretty conservative. In the end, the conservative objection often amounts to philosophically tortured attempts to justify the "naturalness" or "genital compatibility" of heterosexual marriage/procreation, ignoring when such marriages involve infertile persons or placing genitals where they, supposedly, don't belong. If not that, it becomes a really weak attempt to construct evidence and argument where none exists, e.g. Stanley Kurtz. Kurtz's argument has been ably destroyed by Andrew Sullivan, and it's worth repeating that if one of my first-year students tried to make an argument that failed to distinguish causation and correlation and so blatantly over-looked or discounted a dozen intervening variables, I'd make her rewrite the paper.

At the end of the day, the only reasonable objection is one that attempts to address Mill's harm principle: somehow same-sex marriage harms third parties. Kurtz's argument that it undermines the institution of marriage might qualify if there was any evidence, or if it weren't the case that heterosexuals are doing such a good job at undermining it themselves. If someone could make the argument that same-sex marriage meant same-sex couples parenting more frequently and could provide evidence that children raised in such homes are somehow harmed, that would be more persuasive. Unfortunately, the evidence I'm aware of suggests there are no major differences in psychological outcomes for children of same-sex parents as compared to children of opposite sex parents. And we certainly know that the evidence does suggest that, ceteris paribus, two parents are better than one (not to mention the fate of so many children languishing in foster care and orphanages). That those who claim to support "family values" are so eager to prevent people who wish to form familes from doing so, and to thereby reduce the number of families available to take in children who have none, is the height of hypocrisy and makes me sad and angry. In that order.

Will's post below is right on the money, especially this bit:

Conservatives tend to see the feminist movement and the so-called sexual revolution as perverse, willful repudiations of the sorts of regulative convention that make civilization possible. Yet here we are; civilization remains. And they fail to relate these cultural shifts to the ongoing development of capitalism, which, in other moods, they are only too eager praise. The increased economic autonomy of women, of which the feminist movement is as much a response as a cause, fundamentally alters the terms of sexual and marital relations, and thereby fundamentally alters the social meaning of man- and womanhood

This is a point I've tried to make in other contexts: pining for a world where markets are free and vigorous and the culture remains untouched is asking for the impossible. Conservatives just seem to miss this entirely. It is the very wealth, technology, and resources devoted to education that capitalism has made possible that has been largely responsible for the profound changes in gender roles that we've seen in the last 35 years. To claim to support free markets yet to expect that these sorts of changes can be prevented, stopped, or reversed is just not possible. You can't stand athwart the market and yell "stop." This is one reason why I really like Virginia Postrel's work. She gets the dynamism of the market-culture interaction.

Will is also quite right to note that the feminist movement is "as much a response as cause" of the increased economic independence of women. If you look at the data on female labor force participation, it was climbing well before the 1960s, suggesting that the feminist movement may well have been more a response to the fact that women were getting out there in the market and realizing the changes that needed to take place culturally and legally. A very readable book on all of this is Stephanie Coontz's "The Way We Never Were."

Will's post also raises another question that fascinates me: economic theory predicts (and Dick McKenzie and Gordon Tullock did so explicitly in 1975) that as women's wages rise, the burden of housework should shift more toward men. If the division of labor between the market and the household is driven by the opportunity cost of each partner's time, then as the cost of women's time at home rises with their wages, we should see them doing less housework and men doing more, at least relative to each other if not absolutely. The evidence from time diaries is that men have picked up, no pun intended, a bit more of the work in the household, but not nearly in proportion to the gain in women's wages. It's an interesting question why women continue to bear the burden of what sociologists call the "second shift." I have a few thoughts on why, but I'm going to hold those for a bit. What's interesting to me is the ways in which libertarians have largely not investigated these sorts of cultural questions, nor do we feel especially comfortable discussing them if there's no apparent link to the intervention of the state. I think that's a mistake - in the long run, if libertarianism is going to gain ground both intellectually and politically, it's going to have to address these sorts of questions. They take up too much space in many people's day-to-day existence to just shrug because the state has no big role.

A friend just sent me this piece on Adobe including code in Photoshop that prevents users from copying and manipulating images of many of the world's major currencies, presumably to prevent counterfeiting. There are a couple of worrisome things here, including the state apparently requesting/demanding that such code be included in private software, and Adobe agreeing and not informing customers about it. In addition, it would seems to be a limit on free speech to the extent artists might like to use Photoshop to create artistic images that involved currency. (Not to mention the fact that manipulating the image of currency is not per se illegal.) But I'd like to make a point that I haven't seen raised elsewhere: once again, this whole situation creates problems,and a bad precedent for state involvement, precisely because of the existence of state monopoly central banks. Where states control the currency, they will act in understandable ways to protect those monopoly rents, and presumably pressuring Adobe into doing this would be one of those ways.

In a world of competitive banking, not only would banks have plenty of good reason to make their currencies hard to counterfeit (and banks did so historically, before central banking), they could also negotiate competitively with companies like Adobe to make these sorts of deals. Adobe would certainly be in a better position to resist where the power of the state is not involved, but rather the more decentralized forms of power we see in the market. Moreover, banks and/or software manufacturers could test the market to see whether customers really cared about an issue like this, or whether they were indifferent. The discovery processes of the market would both allow for more options and put more pressure on all parties concerned to be more forthcoming about what is and is not in their software.

A conversation on a Usenet group brought up an observation I've noted about the classical liberal/libertarian movement that has persisted over the course of the now more than 20 years I've been involved. There are, and have been, a goodly number of prominent gay men in both the academic and policy sides of the movement for many, many years, and the Libertarian Party has had a gay rights plank and gay men involved for many years as well. And in the more recent past, there's been a flourishing of openly gay conservative men. All this is to the good I think. But it raises an interesting question: why don't we see many (any?) prominent libertarian lesbians?

Now perhaps they are there and I just don't know about them, and if so, mea culpa, and please don't name names! Still, given the increasing numbers of libertarian women in the academic, policy, and political worlds, it's surprising that open lesbians remain so few in number or at least so far below the radar.

Obviously, I'm not trying to out people, but it is curious and the real question to me is whether or not there's something about the way libertarianism is couched, or about the underlying ideas (perhaps maybe the focus on rights?) that makes it far more attractive to homosexual men than women. I'm also not interested in launching a recruiting drive; nonetheless, it remains a fascinating question about the culture of the libertarian movement and the broader culture as well. (I also think a parallel argument can be made about the conservative movement.) It's the question of"why" that I find fascinating. Of course I may start hearing that I need to check my premise here! If my initial assumption is wrong, I'm happy to hear about it.