February 28, 2006,
Now that we've learned about the Swedish drive to abolish marriage and recognize polyamory (see "Fanatical Swedish Feminists"), and about the demise of marriage in the Netherlands (see "Standing Out"), let's take a look at an important attempt to refute my arguments on Scandinavian marriage. In 2004, Yale Law Professor William Eskridge, Attorney Darren Spedale, and Sweden's Ombudsman for Sexual Orientation Discrimination, Hans Ytterberg, published "Nordic Bliss? Scandinavian Registered Partnerships and the Same-Sex Marriage Debate." (For brevity, I'll refer only to first-author Eskridge.) Understanding Eskridge's criticisms will tell us much about the meaning of same-sex marriage.
Against MarriageThe most revealing thing about Eskridge's paper is that it goes beyond a mere defense of registered partnerships to offer a full-throated endorsement of Swedish parental cohabitation. Having a Swedish government official as a coauthor emphasizes the point.
But Eskridge goes further and criticizes me for treating Sweden's 56-percent out-of-wedlock birthrate as a problem. "[Kurtz] uses the term 'out-of-wedlock births' in a consistently disparaging manner," complains Eskridge. This, says Eskridge, means "fetishizing one institution" (i.e. marriage), at the expense of the perfectly legitimate Swedish practice of parental cohabitation. Is there anything wrong with the fact that so many Swedish children are raised by unmarried couples? "Of course not," says Eskridge.
Eskridge defends Swedish parental cohabitation by pointing to a study that found Swedish children suffering when raised by a lone parent, but doing better when raised by either married or cohabiting parents. Eskridge neglects to mention that this equivalence between married and cohabiting parents applies only as long as the couples stay together. But cohabiting parents break up at two to three times the rate of married parents, which in the long run means more kids raised by lone parents. This problem of family instability is my main complaint about parental cohabitation. Yet Eskridge doesn't refute the point; he ignores it.
So while Eskridge offers a passing good word for marriage, he is actually deeply hostile to the idea of marriage as the preferred setting for parenthood. Eskridge endorses a Swedish system that has effaced virtually every legal distinction between marriage and cohabitation. Sweden is actually the model for America's most radical anti-marriage activists. So the "conservative case" for gay marriage is looking awfully dead right now.
MisrepresentationsHaving ignored my critique of parental cohabitation, Eskridge goes on to egregiously misrepresent my causal framework. Eskridge claims that I consider Sweden the best and clearest example of the negative effect of same-sex marriage. False. Norway is the clearest Scandinavian example of the negative effects of same-sex partnerships (as I've repeatedly noted), and the Netherlands is the most important European example.
Eskridge goes into high dudgeon over my supposed inability to acknowledge that many factors contributed to martial decline in Sweden, well before registered partnerships were introduced in 1994. Yet I've repeatedly noted the importance of multiple causal factors and pre-existing marital decline. That's exactly why I concentrate on Norway and the Netherlands rather than Sweden and Denmark. Gay marriage had more effect on Norway and the Netherlands because there was "more marriage" left to undermine when gay marriage came around than in either Sweden or Denmark. There's no way Eskridge can even claim to refute me without looking at Norway and the Netherlands. Yet he spends all his time on the two countries where marriage had declined the furthest even before gay marriage was introduced (while pretending I don't understand that point).
But that's not all. The Swedish out-of-wedlock birthrate continued to rise after passage of registered partnerships in 1994, and there's good reason to view registered partnerships as a contributing factor in that rise. As we saw in "Fanatical Swedish Feminists," Swedish legislation removing the final remaining differences between registered partnerships and marriage (e.g., the right to state-funded artificial insemination), made a point of treating marriage, registered partnerships, and mere cohabitation alike. So instead of highlighting marriage's privileged status as a site for parenthood, partnership legislation is communicating the message that marriage is no different from cohabitation.
The Very BeginningThat message is not new. On the contrary, it goes back to 1987, when Sweden adopted the world's first same-sex partnership legislation. And this points to perhaps the greatest weakness in Eskridge's argument. If we take into consideration only the time after the 1994 passage of Swedish registered partnerships, then the negative effect on marriage is real but limited. That's why it makes sense to turn to Norway and the Netherlands for a clearer shot at isolating the causal effect. Yet there's also a very strong case for counting from 1987, when Sweden passed its first same-sex partnership legislation. And if we count from 1987, Eskridge's already misleading statistical argument collapses completely, since Swedish marriage has weakened substantially since 1987.
This is wrong. Eskridge lightly glosses over the fact that the Homosexual Cohabitation Act of 1987 was directly tied to a major legislative equalization of heterosexual cohabitation and marriage. In 1987, Sweden extended most of the protections of marriage to cohabiting heterosexual couples, going much further in equalizing marriage and cohabitation than ever before. And the historic Homosexual Cohabitation Act of 1987 was essentially an extension to same-sex couples of the newly liberalized law for heterosexuals.
So the most radical equalization of marriage and cohabitation in Swedish history was directly connected to the first same-sex partnership legislation in world history. The cultural message is clear: Marriage is little different from either heterosexual or homosexual cohabitation. So, contrary to Eskridge, the Homosexual Cohabitation Act of 1987 was a major expression of Sweden's cultural separation of marriage and parenthood. In both a literal-legal and a metaphorical sense, the first gay partnership law was tied to a radically skeptical attitude toward marriage as the preferred site for parenthood.
First CauseHistorically, that first 1987 law was deeply connected to the registered partnership legislation that followed. A minority on the Swedish commission that recommended that first same-sex partnership law wanted to adopt full-fledged gay marriage. The ultimate goal was clear from the start. It was only political prudence that limited that first move. But when the first Swedish same-sex partnership law took effect in January of 1988, it created political momentum in nearby Denmark. So in that very same month, January 1988, Denmark put a proposal for registered partnerships before Parliament, which passed in 1989. After Norway followed suit in 1993, Sweden came on board with full-fledge registered partnerships in 1994. Obviously, the whole process was a tightly connected chain of events set off by Sweden's initial partnership plan in 1987. This continuous history, and the powerful symbolic impact of Sweden's world's-first innovation in 1987, strongly suggests that we can legitimately begin "counting" the effect of same-sex partnerships on Swedish marriage from 1987.
Actually, Swedish marriage is markedly weaker than current marriage or divorce rates indicate. Since my first piece on Scandinavia, I've explained how misleading Scandinavian marriage statistics now are. Slight decreases in Scandinavian divorce rates do not indicate greater family stability. Instead they reflect the fact that the pool of married people has been shrinking for years. With fewer married couples, there is a smaller pool of potential divorcees. And now, instead of formal divorce alone, we get the unrecorded de facto divorces that come when the growing number of Scandinavia's cohabiting parents break up (at two to three times the rate of married parents). Eskridge continues to ignore these arguments. But even without them, the decline in Swedish marriage since 1987 is obvious.
Catching UpEskridge makes much of a slight recent uptick in marriage rates across Scandinavia. For example, the Swedish marriage rate rose from 425 (per 100,000) in 2002 to 435 in 2003. But both rates were well below 1987's 490 or 1988's 523. How does Kurtz explain this recent marriage "resurgence?" Eskridge urgently demands. Eskridge knows perfectly well what my explanation is (since I've offered it repeatedly). He just doesn't want to comment on it.
Scandinavian demographers agree that the slight recent uptick in marriage rates across Scandinavia does not contradict the general picture of martial decline. Instead it reflects "catching up" by older Scandinavians who'd postponed marriage and childbearing for years, as well as remarriage among the large pool of divorced. This slight uptick in marriage and childbearing among over-30's disguises rising parental cohabitation and out-of-wedlock birth rates among younger Scandinavians. In Sweden, and especially Norway, growing out-of-wedlock birthrates make the overall trend toward marital decline clear.
The combination of this increase in both day care and parental leave unleashed pent-up demand for parenting among Denmark's older working women. That pushed fertility up (likely, only temporarily), which in turn meant more marriages among Danes over 30. (Although even many of these older Danes become parents without marrying.) In 2003, the average Danish woman giving birth for the first time was 30.1 years old.
CausesAlthough I'm focusing on the causal issue, it's worth noting that Eskridge egregiously caricatures my views on cohabitation and divorce, claiming that I favor any and all family liberalizations, except same-sex marriage. Eskridge's caricature is easily refuted by my NRO essay, "Strange Bedfellows."
So Scandinavia leads the world in parental cohabitation and the legal equalization of cohabitation and marriage. Amazingly, even as he claims to defend marriage, Eskridge actually endorses this system. Meanwhile, Sweden has seen the birth of a political drive to abolish marriage and recognize polyamory. That doesn't look like "nordic bliss" to me. Also, Eskridge has absolutely nothing to say about the continued decline of marriage in Norway, the actual center of my Scandinavian case. And today we've learned that the effect of introducing same-sex partnerships to Sweden in 1987 unravels Eskridge's already weak statistical case there. Combine these Scandinavian examples with the Dutch experience, and it's clear that gay marriage weakens marriage itself.