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Gay Marriage: For Better or for Worse? What We’ve Learned From the Evidence By William N. Eskridge, Jr., and Darren R. Spedale Oxford University Press, $29.95 So much has already been said about same-sex marriage that it would seem there’s little left to add to the debate. The problem is that neither proponents nor opponents have been able to make an argument that can trump the other side’s. Most of the positions advanced so far are based on moral values � such as respect for cultural tradition or respect for individual freedom � that can’t be refuted. In their new book, “Gay Marriage: For Better or for Worse?,” William Eskridge Jr., a professor at Yale Law School, and Darren Spedale, a former associate at White & Case, try to place the debate over same-sex relationships in a different context. They don’t consider a hypothetical event: What would happen if gay marriage were to be legalized in the United States in the future? Rather, they look at an actual situation: What has happened in Denmark, Norway and Sweden since each nation created a form of same-sex marriage (called “registered partnership”) more than a decade ago? The result is an original addition to the rapidly expanding literature on the legal status of gay men and lesbians. Instead of a morality-based polemic, Eskridge and Spedale have produced an empirical study about the real effects of state-sanctioned relationships for same-sex couples. They show that, contrary to the arguments of some American conservatives, allowing homosexuals to tie the knot has not had an adverse impact on heterosexual marriage in Scandinavia. The authors also paint an interesting numerical portrait of the gay men and lesbians who have tied the knot. Eskridge and Spedale’s study has both the virtues and vices of a book written by two lawyers. While it’s rationally argued and superbly supported, at times it’s also dry and repetitious. The dull title suggests that some of the blandness might be by design: Given the heated passions on both sides of the same-sex marriage debate, introducing a certain amount of tedium helps to lower the temperature. Lawyers have had more to say about the legal status of gay relationships than most-civil marriage is a statutory matter, after all � and few have written as much about the subject as Eskridge. After starting his legal career at the now-defunct New York firm of Shea & Gould, he moved into the academic world, initially focusing his scholarly work on statutory interpretation. But over the past decade, Eskridge has also written or co-authored five books on the legal status of homosexuals. Eskridge and Spedale’s book is the most thorough examination yet of what’s happened in the countries with the longest experience of state-sanctioned relationships for gay couples. Denmark passed its registered partnership act in 1989; Norway, in 1993; and Sweden, in 1995. The laws, which are virtually identical, grant all of the rights of marriage to partnerships but don’t use the “M” word. There are three components to the authors’ statistical portrait: what happened to marriage in Scandinavia after the partnership laws were enacted, what happened to marriage before the laws entered the books, and how homosexuals have responded to the laws. Contrary to the arguments of some American conservatives, Eskridge and Spedale show that the marriage, divorce and nonmarital birth rates haven’t changed much in Denmark, Norway and Sweden since the partnership acts. Much more significant is what happened in the decades preceding the laws. In the ’70s and ’80s, the number of marriages plummeted, divorces soared and nonmarital births boomed (and not just in Scandinavia, but around the Western world, including the U.S.). The reasons are obvious, according to Eskridge and Spedale. The adoption of no-fault divorce made it easier than ever for married couples to split up. Concurrently, there was a sharp drop in the social stigmatization of nonmarried couples and children born out of wedlock. The result isn’t surprising, according to Eskridge and Spedale: “Like other institutions deprived of its legal monopoly, marriage has seen its market share fall dramatically.” If anyone’s to blame for the decline of marriage, the authors write, it’s heterosexuals. How have gay men and lesbians in Denmark, Norway and Sweden responded to the partnership laws? One, more gay men than lesbians have taken advantage of the new laws. Two, a steadily increasing number of same-sex couples, both male and female, are raising children. Three, surprisingly few homosexual couples have decided to get hitched. Depending on the estimate used for the size of the gay population, no more than 10 percent � and possibly as little as 1 percent � of all Scandinavian homosexuals have decided to register their partnerships. Eskridge and Spedale suggest a number of possible reasons for this, but the most plausible is cultural conditioning: Having grown up thinking that marriage (or its equivalent) would never be an option, gay men and lesbians now have to get used to the possibility. Still, they seem to be warming up to the idea: The number of Scandinavian same-sex couples registering their partnerships has steadily risen each year. Of course, as Eskridge and Spedale go on to admit, the benign effects of Scandinavian registered partnerships aren’t going to sway most U.S. opponents of same-sex marriage. As they note, “For most Americans, the [gay marriage] debate is about moral truth, not social consequences.” Public opinion polls have consistently shown that even as straight people grow more comfortable with gay people and gay relationships, a steady majority still says that they disapprove of gay sexual activity. Borrowing the terminology of sociologists, anthropologists and other academics, Eskridge and Spedale characterize this disapproval as “disgust.” They write that disgust fulfills a very understandable function: boundary maintenance. People establish the parameters of their society by defining those behaviors that they absolutely will not countenance. The fact is, though, that not all heterosexuals think homosexuality is disgusting. Why? The standard explanation is that these straights know individual gay people; when they think of homosexuality, they don’t think of it as something mysterious and abstract, but as a characteristic of a specific person whom they know and do not find threatening. Of course, not all straight people will decide that gay is okay just because they know someone who is. Furthermore, meet-and-greet only goes so far as a political strategy for those members of society, both straight and gay, who think that homosexuals deserve more legal rights. That’s why Eskridge and Spedale propose a solution they call “equality practice.” The idea is that if a society gradually enacts a series of small legal improvements for gay people, homo-anxious straights have time to get used to the idea, and the politics of disgust can be ameliorated. The authors lay out a specific sequence of reforms that must be in place before same-sex marriage can even be considered: first, the decriminalization of gay sex; next, nondiscrimination and hate crimes law; then, the creation of initial legal protections for same-sex couples. In support of their argument, Eskridge and Spedale note that this is mostly how events unfolded in Denmark, Norway and Sweden. They also stress a second point: In each Scandinavian nation, the changes took place in parliament, not in the courts. This was important because legislatures only act after a social consensus has been achieved. Echoing other commentators, the authors write that court decisions lacking popular support will not be respected. The implications for the U.S. are clear, Eskridge and Spedale believe. American same-sex marriage advocates should likewise focus their efforts on state legislatures instead of the courts. And rather than trying to win gay marriage at once, they should build up to this goal. Brian Zabcik is a senior editor at The American Lawyer, a Recorder affiliate based in New York City.

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