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The Hitch—A Commentary by William Eskridge, Jr. '78

The following op-ed originally appeared in the October 27, 2006, issue of The Wall Street Journal.

The Hitch
By Darren R. Spedale and William N. Eskridge Jr.

On Wednesday, the New Jersey Supreme Court decided that gay couples are entitled to the same legal rights and benefits that the state confers upon married couples. While some other courts have also favored gay marriage, it faces an uphill battle among the voters. This November, for example, eight states -- Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin -- have initiatives on their ballot that would amend their state constitutions to prevent recognition of same-sex marriage (and in some states, civil unions as well). To date, not a single such initiative has failed; 19 states now have constitutional amendments prohibiting recognition of gay and lesbian marriages within their borders.

The proponents of these initiatives have been successful, in significant part, because they have convinced voters that the legalization of same-sex marriage would destroy, or at least significantly harm, the institution: Heterosexuals would lose faith in marriage, family structures would be weakened, and more children would be raised out of wedlock as a result. But would these things actually happen?

* * *

These are no longer hypothetical questions, because same-sex marriage is no longer just a theoretical possibility. Denmark was the first country to extend the rights and responsibilities of marriage to same-sex couples in 1989; and although the law used the name "registered partnership," straight as well as lesbian and gay Danes have generally equated these partnerships with marriage. Norway followed the Danish example in 1993, Sweden in 1995. While the actual title of "marriage" has been granted to gay couples elsewhere in the world only within the last five years, the Nordic countries have provided us with a rich source of information, and a 17-year history, as to what actually happens in society when gay and lesbian citizens marry.

Social conservatives suggest that legal recognition of same-sex couples has harmed society. Sen. Bill Frist has stated that "years of de facto same-sex marriage in Scandinavia has further weakened marriage"; similar claims have been made by Sens. John Cornyn, Rick Santorum, James Inhofe and Sam Brownback.

However, there is no evidence that allowing same-sex couples to marry weakens the institution. If anything, the numbers indicate the opposite. A decade after Denmark, Norway and Sweden passed their respective partnership laws, heterosexual marriage rates had risen 10.7% in Denmark; 12.7% in Norway; and a whopping 28.8% in Sweden. In Denmark over the last few years, marriage rates are the highest they've been since the early 1970s. Divorce rates among heterosexual couples, on the other hand, have fallen. A decade after each country passed its partnership law, divorce rates had dropped 13.9% in Denmark; 6% in Norway; and 13.7% in Sweden. On average, divorce rates among heterosexuals remain lower now than in the years before same-sex partnerships were legalized.

In addition, out-of-wedlock birthrates in each of these countries contradict the suggestion by social conservatives that gay marriage will lead to great increases in out-of-wedlock births and therefore less family stability for children. In Denmark, the percentage of out-of-wedlock births was 46% in 1989; now it is 45%. In Norway, out-of-wedlock births jumped from 14% in 1980 to 45% right before partnerships were adopted in 1993; now they stand at 51%, a much lower rate of increase than in the decade before same-sex unions. The Swedish trend mirrors that of Norway, with much lower rates of increase post-partnership than pre-partnership.

Is there a correlation, then, between same-sex marriage and a strengthening of the institution of marriage? It would be difficult, and suspect, to establish a cause-and-effect relationship between these trends in heterosexual marriage and marriage rights for gays and lesbians. But the facts demonstrate that there is no proof that same-sex marriage will harm the institution of marriage, or children. An optimistic reading of the facts might even suggest that the energy and enthusiasm that same-sex couples bring to the institution of marriage may cause unmarried heterosexual couples to take a fresh look at marriage as an option.

Our research has also uncovered additional social benefits. In dozens of interviews with partnered couples and through other sources, we found that marriage rights had an important beneficial effect not only on the couples themselves, but on their local and national communities as well. Couples reported that their relationships were stronger and more durable, that relationships with family members had deepened, that co-workers had become more tolerant and supportive, and their children felt greater validation by having married parents. Many couples reported a greater emphasis on monogamy, which may be reflected by the fact that national rates of HIV and STD infections declined in each of the Scandinavian countries in the years after they passed their partnership laws.

Finally, what about the "slippery slope" argument -- that same-sex marriage would start a dangerous movement toward legal recognition of socially unacceptable relationships? This hasn't happened in Scandinavia; 17 years later, there are still no calls for recognizing polygamy, incestual marriage or marriage to animals. Danes you ask about the slippery slope think you are joking. They realize that same-sex marriages serve essentially the same goal as opposite-sex marriages: lifetime commitment to your better half, the person who completes you.

In short, the sky hasn't fallen. Rather than scapegoating gay couples as the attackers from which marriage needs "defending," pundits and politicians alike should look to no-fault divorce, prenuptial agreements and legal recognition of heterosexual cohabitation as the real culprits of weakened marriage. As the evidence indicates, societies where gay couples have the rights of marriage seem to be doing just fine.

Mr. Spedale, an investment banker in New York City, and Mr. Eskridge, the John A. Garver professor of jurisprudence at Yale University, are coauthors of "Gay Marriage: For Better or For Worse? What We've Learned From the Evidence" (Oxford University Press, 2006).