This has led a lot of commenters at both the Volokh Conspiracy and other sites conclude that there simply is no reasonable defense for Gallagher's position and that, in fact, her arguments are a thin cover for anti-gay bigotry.
Here's where I stand in this debate. I strongly believe that same-sex couples should have the same legal rights as opposite-sex couples (though I'm not opposed to the civil union/domestic partnership solution, as long as it truly confers similar rights on the partners). At the same time, I don't believe that everyone who opposes same-sex marriage is a bigot or a hater, or someone who necessarily regards gay sex as "icky" and gays as inferior. And I think that the legalization of same-sex marriage does have potential social and cultural repercussions that cannot be easily dismissed.
On the "bigotry" issue: In particular, as someone who has read a lot of Gallagher's past work (I reviewed her first book, Enemies of Eros, for The Detroit News in 1990), I have to say that she has never struck me as anti-gay. If there an animus toward anyone in Enemies of Eros, it's heterosexual men who (in Gallagher's view) exploit women -- either by having sex with them without any intention of marriage, or by walking out on their wives and children, or even by staying married but balking at taking on the sole-breadwinner role so that the wife has the choice of devoting herself to nurturing children.
I strongly disagree with many if not most of Gallagher's ideas, from her 1950-ish view of sex roles in the family (she is not opposed to women having careers but firmly believes that nurturing children and caring for the home is, biologically, the woman's role) to her insistence on treating women as victims (in Enemies of Eros, she asserts that if a woman who is not prepared to shoulder "the burden of paternity" in case of conception is being exploited, even if she consents "fully, knowledgeably, enthusiastically" to such "exploitation"). But I don't believe she's a gay-basher, and I don't believe that her opposition to same-sex marriage stems from bigotry. Gallagher's chief concern for her entire career has been the protection of traditional marriage for the benefit of women and children -- some of the commenters seem unaware of her longstanding opposition to no-fault divorce -- and I'm sure she sincerely views her stance on gay marriage as being in the same category.
As for Gallagher's argument, which some of the commenters managed to summarize better than she did: the crux of it is that legalizing same-sex marriage is going to deal a death blow to the already weakened link between marriage and procreation, by formally recognizing the union of two people who are biologically incapable of reproducing. Many of the commenters seem to assume that Gallagher is saying that heterosexuals get married primarily for procreative purposes, and proceed to easily knock down that assumption. But to some extent, they are knocking down a straw man. Somewhere in the midst of her ramblings, Gallagher explicitly states that she is not arguing that people marry solely or mainly in order to have children. Rather, she is arguing that the reason the sexual union of male and female is and has always been surrounded by special legal protections, and has been accorded a special status, is that such unions are known to result in children. Take away procreation as a crucial element of marriage, and the rationale for special government sanction for marriage vanishes (and perhaps the rationale for cultural support, as well); it becomes just another private relationship in which society has no special interest. The end result, Gallagher predicts, will be "the de-institutionalization of marriage altogether." And like it or not, she has a point. Unless children are an issue, why should the government take an interest in whether we settle down with a steady partner in a sexual relationship? Yes, there is evidence that married people are happier and healthier than singles, but that doesn't necessarily justify government involvement; there is also plenty of evidence that people who have a network of close friends are happier and healthier than loners, but we don't have special legally mandated benefits for friendships.
I think Gallagher is probably wrong about the "de-institutionalization of marriage," if by that she means that the marital "benefit package" will be abolished. Taking away benefits people already have is never a popular move (which is one reason the legalization of same-sex marriage in Massachusetts is likely to stick). It is more likely that some of the benefits now associated with marriage will be extended to other close relationships. Actually, The New Republic's Gregg Easterbrook, a supporter of same-sex marriage, predicted this very scenario in an online column shortly after the Massachusetts Supreme Judicial Court ruling on same-sex marriage:
If significant numbers of gays and lesbians begin to wed, the 100 million single people may become more dismayed that still more people wearing rings get special deals while they do not. Equally important, for every gay or lesbian pair who weds, winning benefits, a couple of single people must be taxed more to fund these benefits. Benefits can't just be demanded; someone must provide them. Marriage benefits for gays and lesbians will not come from the pockets of those in traditional one-man-one-woman unions. The benefits will come from the pockets of the single.
You chortle now, but as same-gender unions gain acceptance, prejudice against the single may become the final frontier. Marriage definitely isn't for everyone; some people were made by God to be single, and why should society punish them for that? Millions of people wish to marry but cannot find suitable partners; why should society punish them for that? The single makes substantial contributions to society, including often assisting in the all-important raising of children. Many single people form long-term or even life-long bonds to each other based not on eros but Platonic friendship; why shouldn't such people be able to pool their credit, inherit each other's property without taxation, and so on? ... At any rate, complaints from the single seem the next logical progression of this debate, and complaints from the single are going to be hard to rebut.
Indeed, one could argue that when married employees are permitted to include their spouses in their health and retirement benefits, this effectively amounts to a "marriage bonus" that single employees are denied (unequal pay for equal work?).
If some of the benefits of marriage are extended to non-marital relationships, will it harm marriage? Probably not in any practical sense (how many people weigh their spouse's insurance policy as a factor in deciding to marry?), but marriage would lose its special status and hence, probably, some of its prestige as well.
A radical decoupling of marriage and procreation would bring about other cultural changes -- or rather, accelerate them, since they have been underway for some time. Straight couples would probably face less of an expectation that, once married, they will have children as a matter of course. And that expectation definitely still exists: in a comment at the Volokh Conspiracy, "Law Student Kate" writes that on many occasions, when she has told people she doesn't intend to have children, she has been asked why she bothered to get married. (For the record, I find that incredibly rude; however, I do think that less obnoxious pro-natalist social pressures serve a useful purpose.) However, I think a more pressing concern for Gallagher is not that people will stop having babies, but that fewer babies will be raised by a mother and a father. And again, I don't think her worries are wholly groundless.
The other day, I read a very moving article by Jonathan Rauch about a wedding of two young men he attended recently in Massachusetts. Asked by Rauch why he wanted to marry, one of the grooms replies, "I wanted the stability, I wanted the companionship, I wanted to have a sex life that was accepted, I wanted to have kids." Perhaps this is very old-fashioned of me, but I found the last part of this comment rather striking. Obviously, in a biological sense, this young man does not need marriage to have kids. (A partnered gay friend of mine who adopted a child from a Russian orphanage actually had to pose as a single guy for the adoption to go through.) Rauch would no doubt say -- and I think it's a strong argument -- that this young man's desire to raise children in a marriage even though he didn't biologically need a spouse for the purpose is actually a powerful endorsement of marriage as an institution. But one can see another side to this as well. Once you take away the ideal of the procreative couple, is there any reason to believe that the family unit best suited for raising a child is a pair whose union is based on romantic love? Sure, two caregivers are better than one, but why shouldn't the other caregiver be a relative or even a friend?
In the past 20 years or so, there has been a growing trend of women becoming single mothers by choice. Many other women are held back by the fact that the prospect of solo motherhood is too daunting, financially and practically. But what if two close female friends, who are straight but haven't found "the right man" -- or, perhaps, aren't very interested in having a permanent male partner -- decide to pool their resources and take advantage of marriage laws, perhaps even enabling one of them to stay home or to work part-time? In a culture where female friendships are often viewed as more central to women's lives than romantic bonds with men (a year ago Salon.com ran an article provocatively titled "Girlfriends Are the New Husbands"), could full acceptance of same-sex marriage lead to acceptance of such child-rearing partnerships between heterosexual women? I think it's (pardon the inevitable pun) conceivable. To me, this would be indisputably a bad thing, since it would result in the further alienation of men from children and family life.
One more point to ponder: if the primary purpose of marriage is the romantic happiness and satisfaction of adults, then staying together for the sake of the children even if romantic passion and intimacy have one out of the marriage -- an ideal many people who are neither reactionary nor bigoted would like to reclaim -- becomes a far less tenable proposition.
The argument that procreation is a fundamental element of marriage, however, has a serious weakness: opposite-sex couples in which one partner is infertile, or in which the woman is past childbearing age, are permitted to marry. Gallagher says that "both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all." What she means, I believe, is that infertile male-female couples are in some important way exactly like couples who are planning to have children but don't have any yet, and elderly husbands and wives are in some important way exactly like parents with grown children; a same-sex couple is fundamentally different, since non-generativity is inherent in their very gender (rather than being a medical problem or a life stage).
While the pro-SSM commenters at the Volokh Conspiracy seemed baffled by Gallagher's argument, I can see her point: A male-female coupleis the basic biological unit involved in reproduction , even if this particular couple happens to be non-procreative for one reason or another. But there are some pretty powerful counterarguments, too. Surely in some ways, a same-sex couple that plans to adopt or to have a baby biologically related to one of the partners has far more in common with an opposite-sex couple planning to have children than either of them has with newlyweds in their '80s, or with a career-oriented couple "child-free" couple in which both husband and wife have opted for sterilization. If older and infertile couples can be "the exception that proves the rule," why not same-sex couples?
Another important counterargument to Gallagher's reasoning is that the trends she deplores -- the shift toward a view of marriage centered around romantic love rather than procreation, divorce, single mtoherhood, the weakening of traditional sex roles in marriage and of social pressures to marry and have children -- are already here. So is de facto gay marriage (some churches and synagogues have been marrying same-sex couples for years). Preventing state recognition of same-sex marriage is not going to reverse those trends. But I think that for Gallagher and many other social conservatives, the legalization of same-sex marriage amounts to an official death certificate for traditional sexual arrangements and an affirmation that the forces of modernity have won.
This post is threatening to meander, so I'll sum up my basic view of the debate. I think it's possible that the legalization of same-sex marriage will lead to social changes that will result in the loss of the special status of marriage as we know it, and perhaps in more children being raised in family units other than married couples (straight or gay). It is also possible that it will lead to none of these consequences, and will have a marginal, if any, effect on heterosexual marriages. It could even, as Rauch argues, have the effect of increasing respect for marriage. I think that we need an honest discussion of these possible outcomes, and of how we as a society can manage the recognition of same-sex unions (which I think is a matter of basic justice and dignity) in such a way as to minimize potential negative repercussions.
My view of marriage and family is very different from Maggie Gallagher's, but I do agree with her that a healthy society should ensure that children, in general, are raised by their mothers and fathers. The small number of gay couples with children hardly poses a threat to this social norm. Let's talk about how we can respect their rights, and promote more stable heterosexual families as well.
Update: Maggie Gallagher responds.
Update: See also my other posts on this topic: