For the Surrogacy Revolution, Thank Free Markets and Voluntary Exchange

Reprinted from the Chicago Tribune in the Duluth News Tribune (talk about the heartland): Gay men increasingly turn to surrogates to have babies.

Yes, they are, and it represents a sea change in the lives of gay men who are, increasingly, married with children.

The surrogacy revolution is premised on free enterprise and the voluntary exchange of a market economy, made possible when government and its army of bureaucrat regulators get out of the way.

Government’s role here is limited to enforcing contracts, when necessary, as adjudicated by the courts.

Let’s Celebrate the End of DP Benefits

Some LGBT advocates can’t recognize a sign of victory, or feel it’s not in their organizational interest to do so.

As the Washington Blade reports in Future of domestic partner benefits uncertain, “the U.S. Supreme Court’s historic ruling in June legalizing same-sex marriage in all 50 states…has prompted more private sector employers as well as public employers…to drop domestic partner benefits for their employees.”

Remarked Camilla Taylor, an attorney with Lambda Legal Defense and Education Fund, “that’s unfortunate because we believe people should not have to get a legal marriage in order to be respected as a family.”

But this isn’t about “respect”; it’s about reasonably limiting employer-provided benefits to spousal relationships with a commitment to permanency, as demonstrated by becoming a legal family unit with mutual obligations and responsibilities toward each other.

Moreover, the Blade reports:

Lambda Legal and several other national LGBT rights organizations, including the Human Rights Campaign, have issued statements calling on employers to retain domestic partner benefits for unmarried employees.

Some LGBT rights advocates have said forcing employees in a same-sex relationship to marry as a condition for receiving partner benefits such as health insurance coverage could subject them to discrimination in states where anti-LGBT discrimination remains legal.

News flash: If you’ve signed up with the HR department to receive same-sex domestic partner benefits, your employer already knows you’re gay.

While the activists want to paint the ending of DP benefits as a retrenchment, it’s just the opposite. And the employers ending these stop-gap programs haven’t suddenly turned anti-gay. As the Blade noted, according to corporate benefits attorney Todd Solomon, “the companies he knows that have dropped domestic partner benefits have a record of being LGBT supportive due, in part, to their earlier decisions to promote those benefits to same-sex couples that were barred by law from marrying.”

Which, of course, makes sense.

In a companion story, State Dept. considers phasing out DP benefits, the Blade reports that a gay entry-level Foreign Service officer said:

the State Department’s domestic partner program “was the thing that really made” him “feel welcomed” in the agency.

“While it’s great that we can get married much more easily now, my partner and I are not looking forward to being forced into a shotgun marriage due to a policy change that takes away the benefits we were promised.”

Sorry, but absent a contract, benefits are subject to change. And an employer doesn’t owe your boyfriend or girlfriend subsidized health care.

Being Reasonable

Rod Dreher has a good post about the martyrdom of Kim Davis.  He is concerned about the effect of her case on religious freedom in general.  But he’s ignoring the central protection Kentucky itself has instituted to protect religious liberty.

Prof. Eugene Volokh has the best analysis of the actual law, and the Kentucky religious freedom protection statute seems very clear that the state would make a reasonable accommodation for Davis if she were interested in being reasonable.  In fact, the religious freedom laws passed by both the state and federal governments in the last two decades, are weighted — sometimes unreasonably (in my view) — in favor of religious freedom.  Despite my feelings, that is a policy choice elected officials have made, and it is the law.

Davis’ best argument is that she doesn’t want to have her name on state marriage certificates if they will be issued to same-sex couples, because the use of her name in those circumstances violates her religious beliefs.  The statute only requires her beliefs to be sincere, not objectively reasonable or even consistent.  Under the Kentucky law, if it is not unduly burdensome on the state to remove her name, she could continue to serve in her job.  That would require either reconfiguring how Kentucky marriage certificates look and perhaps having to reprint all of them going forward, or perhaps somehow scratching her name (if not her office title) from them.  These options may or may not be reasonable given the specifics of what processes are in place, which ones are required by state statute, etc.

Volokh says this is a “modest” request. That might be true, though “modest” might not be the word I’d use. If one elected official in one Kentucky county can bring lawful marriages in her jurisdiction to a virtual halt because of her religious beliefs, and demands that her view of religion be accommodated countywide, and possibly statewide depending on the statutory rules for marriage forms, that seems to me immodest in the extreme.

Davis’s case is extraordinary because she has insisted that her personal religious belief should govern, not just her own actions, but those of her entire office, including (in her view) all of the people who work for her.

Compare the extent of her preferences to those of Judge Vance Day in Oregon.  Judge Day has announced that he will not perform same-sex marriages due to his religious beliefs. Unlike the office of a county clerk, the performance of marriages is entirely discretionary for a judge. In fact, Judge Day specifically told his staff that they should forward any requests for same-sex marriages to other judges who do not share his religious objections.  Judge Day has at the very least made it clear that his religious objections are his own, and made an accommodation to the same-sex couples who might have approached his office to make sure that their rights are protected at the same time that his religious beliefs are respected.

Here is another example, one cited by Dreher that works in the opposite direction.  Gavin Newsom, as mayor of San Francisco, announced in 2004 that he felt California’s law prohibiting same-sex marriage was unconstitutional, and that henceforth City Hall would be happy to provide marriage licenses to same-sex couples, which is did, to great joy.  Dreher calls this “lawlessness,” and implies that those who supported Newsom are hypocrites if they oppose Davis.

Newsom went beyond his authority as mayor, but he was not, as a NYTimes editorial quoted by Dreher suggests, defying a court order.  In fact, the California Attorney General challenged the mayor’s political grandstanding, and when the California Supreme Court ruled against Newsom, the marriages ended.  Dreher’s comparison of Newsom to Davis would hold only if the mayor had truly disobeyed the court ruling and maybe gone to jail for that.

Moreover, while Newsom was indeed acting (or more accurately overacting) on a moral principle, it was one grounded in the civil law, not God’s.  The prior year, the Massachusetts Supreme Court had ruled that the state constitution protected the rights of same-sex couples to get married.  While Newsom was in grave error about his own authority, he also knew when the stunt was over.

Davis now has to make that same determination.  She can be a martyr for as long as she likes.  Kentucky officials can determine whether it makes sense to accommodate her religious beliefs and remove her name from marriage certificates.  The question is whether she is going to be reasonable enough to accept the terms she, herself, offered.

Polygamy Steps Up

Now on the horizon:

  • The AP reports that “A Montana man said Wednesday that he was inspired by last week’s U.S. Supreme Court decision legalizing gay marriage to apply for a marriage license so that he can legally wed his second wife.”
  • A commentary in Politico by Fredrik deBoer aruges “It’s Time to Legalize Polygamy, with the subhead: “Why group marriage is the next horizon of social liberalism.”
  • Jonathan Rauch responds (also in Politico) No, Polygamy Isn’t the Next Gay Marriage.
  • Similarly, Cathy Young writes at Time Polygamy Is Not Next.
  • In response, a commentary in by Charles C.W. Cooke at National Review asks Is Polygamy on the Right Side of History?, contending that Rauch and Young are naïve if they think that the polygamous marriage movement isn’t going to ride the same emotional appeal as same-sex marriage.

That’s a lot of focus in the week following the Supreme Court’s landmark gay marriage ruling!

While there are far fewer polygamy advocates than gay people who wanted to marry, it’s clear that the polyamorous are now making the same kinds of arguments that advocates of same-sex marriage equality advanced. I have no idea how this will play out, but the debate is clearly gaining prominence.

More. The Washington Post chimes in with Is polygamy next in the marriage debate?:

Chief Justice John G. Roberts’s dissenting opinion raised the question of whether the court’s rationale could be used to legalize plural marriage down the road.

“Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” Roberts wrote. “Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.”

Some are now using Roberts’s arguments to revisit the idea of legalized polygamy.

Well, Roberts seems to have opened the door.

A New Day

A friend remarked that his facebook feed looks like an explosion in a skittles factory (rainbow hues all round). In the aftermath of an historic day, there has been much, much said. I’ll simply point out that our good friend Jonathan Rauch has posted The Supreme Court weds gay marriage to family values and also a look back Here’s how 9 predictions about gay marriage turned out. Both are worth reading.

And because I’m a compulsive GOP watcher, I’ll also note that the Wall Street Journal offers a roundup of responses from GOP presidential wanabees. Jeb Bush comes out best: “I believe the Supreme Court should have allowed the states to make this decision,” but “I also believe that we should love our neighbor and respect others, including those making lifetime commitments. In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.”

Scott Walker, shamefully, doubled down on his call for an anti-gay-marriage constitutional amendment.

More. Some addition thoughts from Andrew Sullivan, shared with the New York Times. From one of the first and strongest intellectual advocates of same-sex marriage (along with Jonathan Rauch and Bruce Bawer), two points that go against the grain of the current LGBT progressive narrative but are spot on:

The movement succeeded because it made a conservative argument as much as a liberal one. It was crucial to be able to make it in a way that didn’t pigeonhole it as a left-wing issue — in fact, for the first 15 years or so, it was seen as a right-wing issue, particularly in the gay community. It was important to reach out to people like moderate Catholics, who could see what was truly conservative and reformist about this, as opposed to radical and revolutionary. …

I think the main issue now will be protection of religious liberty. Many of us have no problem allowing religious institutions to run their own organizations as they see fit, as long as they are sincere and in good faith. I don’t think they have anything to fear. What we need to express at this point is magnanimity. We’ve got to let people who genuinely find [same-sex marriage] disconcerting the space and time to deal with it. That’s what I would caution and urge.

Victory for Marriage!

Truly an historic day.

A 5-4 decision, with the majority opinion by Justice Kennedy. Chief Justice Roberts joined the dissenters (Scalia, Alito, Thomas).

Holding: Fourteenth Amendment requires a state to license a marriage between two people of the same sex. Sixth Circuit is reversed.

Here’s the opinion. Excerpt:

The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

This dynamic can be seen in the Nation’s experience with gay and lesbian rights. …

The fundamental liberties protected by the Fourteenth Amendment’s Due Process clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. … Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Justice Kennedy concludes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.

More. OK, enough celebrating. Let the political acrimony begin. From The Hill

That partisan divide could complicate the calculus for Republicans ahead of the 2016 election. Hillary Clinton, the current Democratic front-runner, has already incorporated the issue into her campaign, which she launched with a video that included a brief appearance by a same-sex couple.

But every GOP candidate has spoken out against granting a national right to same-sex marriage, so all eyes will be on how the party reconciles that stance with the court decision.

The party and its presidential contenders will have to decide whether to punt on the issue and remove it from the electoral conversation, or to dig in and fight back with a proposal for a constitutional amendment to overrule the court, as Sen. Ted Cruz (Texas) and Gov. Scott Walker (Wis.) have supported.

By November 2016, a GOP nominee who campaigns in favor of voiding hundreds of thousands of legal marriages and leaving the children of these unions with far fewer family protections is going to seem very extreme, I suspect.

Furthermore. Andrew Sullivan: It Is Accomplished. He recalls:

Much of the gay left was deeply suspicious of this conservative-sounding reform; two thirds of the country were opposed; the religious right saw in the issue a unique opportunity for political leverage – and over time, they put state constitutional amendments against marriage equality on the ballot in countless states, and won every time. Our allies deserted us. The Clintons embraced the Defense of Marriage Act, and their Justice Department declared that DOMA was in no way unconstitutional the morning some of us were testifying against it on Capitol Hill. For his part, president George W. Bush subsequently went even further and embraced the Federal Marriage Amendment to permanently ensure second-class citizenship for gay people in America. Those were dark, dark days.

He concludes, “Know hope.”

And this. The front page of the New York Times for Saturday, June 27.

Making the Conservative Case

Sooner or later, U.S. conservatives who are not fanatical zealots will come around on same-sex marriage. But they will do so in response to conservative arguments grounded in morality and concerns for social stability, not progressive contentions—such as those deployed in the failed campaign against California’s Prop. 8, in which political ads called rousinlgy for equal access to multitudinous government benefits. For libertarian-minded conservatives, arguments favoring freedom and recognition of natural rights (not rights to government entitlements) are most resonant.

Conservative arguments have certainly been made over the years, including by writers associated with the Independent Gay Forum, the now disbanded parent of this blog. But it’s good to see the conservative case gaining new prominence.

For example, National Review has published many attacks against same-sex marriage and legal equality for LGBT people. But this week they’ve included a supportive piece by their own managing editor, Jason Lee Steorts, An Equal Chance at Love: Why We Should Recognize Same-Sex Marriage. He writes:

Another way of saying this is that sexual counter-revolutionaries are telling a noble lie. The lie is that it is immoral to think of sex and marriage as anything other than child-directed …

The trouble with noble lies is that sooner or later people see through them. When they do, they tend to have revolutionary overreactions. And when that happens, what is needed is not a complete reversion to the old view, but a synthesis of what was right in that view with what was right in the reaction against it.

In their ideological absolutism, many traditionalists today stand in the way of such a synthesis. Their position on same-sex marriage is tragic, in that they have taken a stand against burgeoning social endorsement of commitment and sexual exclusivity as ends in themselves.

In a kind of concurring opinion, Prof. Jonathan H. Adler of the Case Western University School of Law offers A conservative case for gay marriage at the Volokh Conspiracy blog, noting:

A focus on the interests of children — the actual children who are alive today and who will be born in the years to come — supports a profoundly conservative, and quite Burkean, argument for gay marriage.

Set aside some utopian conception of what marriage is or should be about in the ideal, and instead recognize the way we live now — how and why we marry and how children are brought into this world and the homes in which they are raised. There are hundreds of thousands of children alive today who stand to benefit from being raised in more-stable, two-parent households. Every state allows gay people to raise children — and nearly all allow homosexuals to adopt or serve as foster parents. If this is acceptable (and few would argue that it’s worse for a child to be raised by gay parents than no parents at all) how can it be in the interests of these same children to ensure that they are raised in less optimal conditions?

He concludes:

If the Supreme Court acts as expected, these issues will be moot. But perhaps if conservatives think more about the children, they will feel a little better about the practical implications of such a result.

It won’t convince Justices Scalia, Alito and Thomas, but the well-stated moral logic in these arguments will allow future conservatives to say, with British Prime Minister David Cameron, “Conservatives believe in the ties that bind us. Society is stronger when we make vows to each other and we support each other. I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.”

Ireland: Economic Liberalization Yields Gay Equality

James Peron, writing at the Huffington Post, explains The Seismic Shift in Irish Values, and One Reason It Happened. He writes:

Historically, the more market-oriented the economy, the more the well-being of LGBT people increases. Politicized markets require political power, something sexual minorities rarely have, but depoliticized economies only need an entrepreneur willing to cater to a minority. …

It was the Financial Times that noted the role of material wealth on social liberalism. They wrote, “Ireland’s apparent willingness to embrace gay marriage is therefore as much a product of the Celtic Tiger years as it is a reflection of the decline of the Church’s influence.” With rising prosperity, Irish voters started embracing socially liberal reforms, matching the economically liberal reforms of a few years earlier: deregulation and more individual choice.

Peron comments, “Similar seismic shifts in cultural values occurred in other nations following periods of economic boom. The relative prosperity of the 1950s in America gave way to the social turbulence of the ’60s, which saw the culmination of not only the civil rights movement but the movements for women’s liberation and, of course, gay liberation.”

He concludes:

With the rise of individualism, it becomes harder and harder to damn those “not like us.” There is no “us” anymore, just many individuals, each with different values and priorities. Depoliticized markets ought to terrify [social] conservatives, for in them social change is born.

I’d add that in the U.S., the term “liberalism” has been co-opted by advocates of statist social engineering, but in much of the world “liberalism” still connotes opposition to economic regulation. Perhaps one reason for America’s polarization between the statist left and the social right—both opposed to individual freedom from government—is the Orwellian corruption of our political language.

More. Tweeted British Prime Minister David Cameron, head of Britain’s Conservative Party: “Congratulations to the people of Ireland, after voting for same-sex marriage, making clear you are equal if you are straight or gay.”

Gallup Says….

As of this month, 60% of Americans now support same-sex marriage, up from 55% last year, and the highest Gallup has found on the question since it was first asked in 1996.

Regarding political affiliation, the breakdown is Democrats at 76% support, independents at 64% and Republicans at 37%. However:

Those who are opposed to gay marriage are a good deal more likely to say that a candidate’s stance on the issue can make or break whether that candidate receives their vote (37%) than those who are supportive of gay marriage (21%). And both are more likely to say the issue is a defining factor than they have been in the past.

On both ends of the political spectrum, this could make same-sex marriage a more salient issue in the 2016 election than it has been previously. While pro-gay marriage voters are more likely to hold a political candidate’s feet to the fire than in the past, there is an even larger bloc of anti-gay marriage voters who could reject a candidate for espousing marriage equality.

Gallup concludes:

While an anti-same-sex marriage position should not present a challenge for GOP candidates in the primary, it could be more challenging in a general election setting given majority support among all Americans.

I’d add that GOP presidential candidates who talk adamantly about marriage being a 2,000 institution that apparently has never changed and must not be altered by the judiciary (some would allow by popular vote) are going for the base, and in all likelihood never going to be president.

But they’ll carry the hardcore religious right vote.

20 Years from DP Benefits to Marriage

As the Cato Institute’s David Boaz and I both predicted 20 years ago(!), domestic partner benefits may be left behind in an era when all couples can get married. David’s May 13 blog post at the Cato at Liberty blog takes note of the long road from then to now. He also links to both recent Wall Street Journal coverage on this development (“Firms Tell Gay Couples: Wed or Lose Your Benefits“), and my January blog post (“Domestic Partner Benefits Are (Almost) Passé“).

For the historically minded, two decades ago David addressed the issue here, among other places, and I did so here.