Wednesday, July 20, 2005

The law and economics of gay marriage :: Becker-Posner

Judge Posner:

Of course it is often the duty of courts to buck public opinion; many constitutional rights are designed for the protection of minorities. But when, as in this case, there is no strong basis in the text or accepted meaning of the Constitution for the recognition of a new right, and that recognition would cause a powerful public backlash against the courts, the counsel of prudence is to withhold recognition. Doing so would have the additional advantage of allowing a period of social experimentation from which we might learn more about the consequences of homosexual marriage. One state, Massachusetts, already recognizes homosexual marriage, as do a small but growing number of foreign nations (Spain, Canada, Belgium, and the Netherlands). Perhaps without judicial intervention gay marriage will in the relatively near future sweep the world - and if not it may be for reasons that reveal unexpected wisdom in the passionate public opposition to the measure.
Professor Becker:

gay couples have been allowed for a while to engage in much more significant behavior that has been associated throughout history with heterosexual couples. I am referring to the rights that gay couples already possess to adopt children, or to have one lesbian partner use sperm from a male to become pregnant, bring a fetus to term, and have a baby that the lesbian partners raise together, or the right of one gay male partner to impregnate a woman who bears a child that is raised by the two gay partners. No one knows yet what is the effect on children of being raised by a gay couple. Yet it is a far more important departure from how children have been raised throughout history, with potentially much greater consequences, than using the word marriage to describe a gay union.
. . .
gay couples might actually be in a better position than heterosexual couples if gay couples could use contracts to define their rights and obligations, while heterosexual couples were mainly subject to less flexible judicial and legislative law. In fact, courts frequently override the provisions of marital contracts among heterosexuals, which they may be less likely to do when dealing with contracts between gays.

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