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...can appeal the increasing number of Americans open to equal rights for gay people. Since the 1990s, opponents have argued that allowing same-sex marriage would undermine the institution of marriage. In recent publications, Hoover Institute scholar Stanley Kurtz has expanded this argument and provided evidence to support it. He argues that Scandinavian "registered partnerships", which provide same-sex couples with almost all the same rights and responsibilities as marriage, are "both an effect and a reinforcing cause of this Scandinavian trend toward unmarried parenthood." According to Kurtz, "Once marriage is separated from the idea of parenthood, there seems little reason to deny marriage, or marriage-like partnerships, to same-sex couples. By the same token, once marriage (or a status close to marriage) has been redefined to include same-sex couples, the symbolic separation between marriage and parenthood is confirmed, locked-in, and reinforced."
Eskridge, Spedale, and Ytterberg dissent from Kurtz's speculative causal link between registered partnerships and what he calls the "end" of marriage in Scandinavia. To begin with, the authors question Kurtz's logic. Family law throughout much of the West has, arguably, undermined marriage as an institution by making it easier to exit and by providing civil alternatives with some of the benefits and few of the obligations. But expanding the eligibility of marriage, or a parallel institution, to same-sex couples who want to take on the civil obligations as well as the benefits of marriage does not logically undermine the institution of marriage. More important, the evidence from Scandinavia refutes rather than supports Kurtz's logic. Long-range trends in marriage rates, divorce rates, and non-marital births either have been unaffected by the advent of same-sex partnerships or have moved in a direction that suggests that the institution of marriage is strengthening. Finally, the authors focus on the security of children in Scandinavia and find none of the ill effects posited by Kurtz.
In a concluding section, Eskridge, Spedale, and Ytterberg raise normative questions relevant to the ongoing search for arguments to deny gay people civil equality. The big loser in such a campaign is marriage. By scapegoating gay marriage (or partnerships) as the "cause" of marriage's decline, pseudo-conservatives tend to reinforce the actual causes of the decline--the options straight couples are utilizing, such as no-fault divorce and cohabitation rights.
Lesbians and gay men in the United States have been arguing for same-sex marriage for more than a generation. Their constant refrain has been an old-fashioned appeal to equal treatment by the state: lesbian and gay couples ought to have the same legal options as straight couples, including the option of sealing their commitments with civil marriage licenses. Instinct in American society, the presumption of equal treatment is as old as the Declaration of Independence. And equal treatment by the state has constitutional bite through the Equal Protection Clause in the U.S. Constitution.
If presumptive equality is the starting point, the burden is on opponents of same-sex marriage to justify the discrimination. Justifications for the discrimination have shifted over the last thirty years, but in a sedimentary way. Old arguments never die. They are supplemented by newer arguments, in the hope that moderate (i.e., non-homophobic) Americans will find something in any one of them. In the 1970s, the main argument against same-sex marriage was definitional: As a matter of religion, history, or biology, marriage cannot be anything else but one man and one woman. This argument remains persuasive to many Americans, but others find it too sectarian to credit fully. Once such skepticism surfaced, in the 1980s, opponents supplemented the definitional argument with policy arguments. An early argument along these lines was that same-sex marriage would be a state stamp of approval on homosexuality, a condition Americans considered lamentable if not abominable. This is the famous "no promo homo" argument. (1) Although acceptable to many Americans, this argument has the policy disadvantage of resting on little or no evidence and the moral disadvantage of sounding mean.
In the 1990s, the opponents of same-sex marriage created a new line of critique, one that avoided the metaphysical circularity of the definitional argument and the negativity of the no promo homo argument. The new line, which has been embraced within the White House and the most anti-gay circles of Capitol Hill, is this: "We love gays and lesbians--but as a society we cannot give them things that would undermine traditional marriage, which is the foundation of America's values and culture. Same-sex marriage would do precisely that--undermine marriage and the nuclear family. For that reason, neutral people should be skeptical of complete equality for these people." (2) This is smart strategy on the part of traditionalists, as this form of argument avoids the main defects of the definitional and no promo homo arguments. The defense of marriage argument is consequentialist and so avoids circularity; indeed, it provides a functional reason why marriage must be one man and one woman. It's also a positive rather than negative argument: "We traditionalists love just about everyone--and look what we've done for homosexuals, we don't put them in jail anymore. But a positive and loving approach requires that we consider the public welfare, especially the welfare of children, our most vulnerable charges. So we cannot go along with the entire 'homosexual agenda,' for it sacrifices a great institution and the public welfare." Some traditionalists take it one step further and argue that, somehow, same-sex marriage also hurts children.
Most advocates of the defense of marriage argument are self-serving politicians, sectarian moralists, or thinly veiled bigots grasping at any straw they can to support policies reflecting their anti-gay prejudice. (Some are all three.) Stanley Kurtz, a resident scholar at Stanford's Hoover Institution, is one of the few academics making this argument, and so his articles and congressional testimony are worth examination. (3) The present article will examine his particular claim that registered partnerships in Scandinavia have contributed to the decline of marriage and the increase in non-marital births in that part of the world. Our examination will be critical but also constructive. What can we learn from the experience of Denmark and Sweden in particular? What we learn depends on what we consider, and our effort here will be to expand the record well beyond Mr. Kurtz's treatment.
Marriage, the Family, and Scandinavia
Two of us have developed extensive accounts of the same-sex marriage movement in Scandinavia, with special focus on Denmark and Sweden. (4) In 1989, Denmark enacted its Registered Partnership Law. The law provided that, starting in October 1989, two adults of the same sex could enter into a registered partnership. Wherever in Danish law the word "marriage" or "spouse" appeared, the same rights and duties would be applicable to registered partners, with three exceptions: Danish registered partners could not adopt children, have joint custody of children, or be married in the state church. This law created a new institution, whereby same-sex Danish couples could register and thereby trigger almost all of the same rights and duties legally associated with marriage. But the institution of marriage and its full complement of rights were reserved for different-sex couples. Norway adopted a virtually identical registered partners law in 1993.
The Swedish Registered Partnership Law was enacted in June 1994 and took effect on January 1, 1995. Like the Danish law, the Swedish law created a new institution which vested almost all the same rights and duties of marriage in registered couples. The list of exceptions is longer in Sweden. Registered partners, according to the 1994 Act, could not jointly adopt, could not have joint custody of children, could not avail themselves of state assisted-reproduction facilities, did not enjoy the presumption of paternity for children born in the relationship, and did not have some minor pension rights. Iceland, Greenland, and Finland have subsequently enacted similar statutes, all patterned on the 1989 Danish law.
Although none of these countries has recognized same-sex marriages, they are pioneers in providing state recognition of lesbian and gay unions. As of 1999, the Danish adoption and joint custody restrictions were eliminated, except insofar as registered partners are seeking to adopt children outside of Denmark. As of 2003, the Swedish adoption and joint custody exceptions were repealed, with no exceptions; hence, Swedish registered partners can adopt internationally. In addition, the Swedish government has recently appointed a commission to study proposals to recognize same-sex marriages.
Our initial goal is to understand the Scandinavian registered partnership laws in the context of family law and family formation in those countries. Because we have done field research in Denmark and Sweden and have command of the data for those countries, we shall focus on them.
Population and Urbanization. We start with the following broad observations about the demography of these countries. In Denmark and Sweden, there was a robust population growth in each decade of the nineteenth and first half of the twentieth centuries. Since 1950, population has continued to rise in each country, but at modest rates. This trend is documented in Tables S-1 (Sweden) and D-1 (Denmark), which may be found at the end of this article.
The big demographic fact for both countries is that they have shifted from being overwhelmingly rural societies to overwhelmingly urban ones. In Sweden, more than 90% of the population lived in rural areas in 1800; by the 1970s the figure was less than 20%, where it has pretty much remained for the last generation. (5) Overall, the rural/urban balance in Sweden has been relatively stable since the early 1970s. The same pattern can be found for Denmark, whose capital Copenhagen dominates that country's population statistics even more than Stockholm dominates Sweden's.
An urban society is one where there will be more economic opportunities for women outside the home, and this has proven to be even more true in the Scandinavian countries than elsewhere in the urbanized West. (6) Women in Scandinavia are economically more independent from men in these countries than anywhere else in the world; they have more economic opportunities outside the home, and the state supports their careers with liberal child care and maternity leave policies. An urban society, at least in the modern era, is one where large families are not as desirable as in rural societies. With both men and women in mobile workplaces, there are a large number of romantic opportunities.
Scandinavian family law and culture are largely driven by these foregoing demographic, social, and political developments. In the second half of the twentieth century, characteristic features of these countries include the following: their current marriage and birth rates are low by historic standards, the state supports women's economic and professional opportunities outside the home, many children are born in cohabiting relationships as well as in marriages, sex education is universal and rates of sexually transmitted diseases very low.
Marriage and Divorce Rates. We have a time series of marriage and divorce in Sweden, from 1750 to the present; Table S-1 presents the most relevant fraction of these data. Between 1850 and 1950, Sweden had a substantial marriage rate and a small but increasing incidence of divorce. This pattern changed after 1960. Between 1960 and 1974, the marriage rate steadily declined, and the divorce rate doubled. The big jump in divorces came after 1973, when Sweden eliminated the "due cause" requirement for dissolving a marriage. (This was similar to the "no-fault divorce" rules adopted across the United States in that period.) In 1974, when the legal change went into effect, more than 26,000 couples divorced, the largest number in Swedish history.
Also in 1973, Sweden enacted a statute giving legal recognition to cohabiting different-sex partners. Although not entitled to all the legal entitlements of marriage, the new law attached some rights and duties to cohabiting partners. This law apparently codified norms that had already taken hold, because it has not had a big effect on the Swedish marriage rate, which has been relatively stable since 1974. The exception to this post-1973 stability was a huge spike in 1989. In that year, there were significant pension-based incentives for Swedes to marry, and more than 100,000 did so--by far the largest number of marriages in Swedish history. The 1989 spike suggests that many Swedish couples were cohabiting in the 1980s, but there are no official figures on the number of cohabiting couples.
Table D-1 demonstrates similar trends in Denmark. The marriage rate in Denmark eroded during the twentieth century, but did not decline as dramatically as Sweden's marriage rate did. Compare Tables D-1 and S-1. While the annual Danish marriage rate hovered between 700 and 900 per 100,000 people until 1970, the Swedish rate declined to the 500s and 600s after World War II. As in Sweden, however, the marriage rate declined significantly in the 1970s. Starting in 1972, the total number of married couples in Denmark declined in every year of the decade. (7) More couples were living together outside of marriage.
In the late 1970s, Danish courts started vesting different-sex cohabiting relationships with some of the rights and duties of marriage. Danmarks Statistik reports there were 160,355 cohabiting couples in 1980. (8) Not surprisingly, the annual marriage rate dipped to its lowest levels in the late 1970s and early 1980s. In 1982, only 477.1 Danes out of 100,000 got married. Many of the Danes not marrying were entering into cohabiting relationships; there were 178,692 cohabiting couples in 1982, an increase of 11.4% in two years. During the same two-year time span, the total number of married Danes declined from 2,328,492 to 2,273,461, a decline of 2.4%. Every year of the 1980s, Denmark saw a significant increase in the total number of cohabiting couples and a small decline in the number of married couples. The 1990s saw marriage rates rebound. The total number of married couples went up every year between 1995 and 2003 (inclusive), before dipping slightly in 2004. Cohabitation rates have leveled off in that same period and declined slightly in 2002-04.
Like Sweden, Denmark saw a steadily increasing divorce rate in the twentieth century. The biggest jump occurred between 1970 and 1971, the years after Denmark adopted its version of no-fault divorce (1969). Every year since 1970 has seen an increase in the total number of divorced Danes, with the biggest jumps coming in the 1970s and early 1980s. For most of the no-fault period, the annual divorce rate has fluctuated between 270 and 300 per 100,000 Danes--except during the 1990s, when the divorce rate dipped into the low and middle 200s.
Births. In the 1970s, the Swedish birth rate significantly declined (see Table S-2). Most women were working outside the home, and many were enjoying full-time careers. Overall, they were having fewer children. Between 1950 and 1974, Swedish women gave birth to between 105,000 and 125,000 children per year. In 1975, births fell to 103,632 and were below 100,000 per year between 1976 and 1985; for the last 20 years, they have hovered around 100,000 annually. Sweden's lower birth rate is primarily the result of the skilled use of contraceptives. Even though the average Swedish girl is sexually active at an earlier age than American girls, teen pregnancy in the 1980s was one-third the rate of American teen pregnancy, because Swedish girls insisted on contraception and were capable in deploying those techniques. During this same period, abortion under specified conditions was allowed, but it was never as common in Sweden as in the United States, and since 1990 the abortion rate has fallen in Sweden. (9)
The Swedish birth rate has remained low for the last generation, but there has been a change in the pattern of births. Many children are born within marital relationships, many are born to cohabiting couples, and many are born to single mothers. Table S-2 reports the pattern of births since 1990. For the last generation, the non-marital birth rate for Sweden has been steadily rising, although the rate of increase fell off in the late 1990s. State policy plays a large role in this social phenomenon. The Swedish government recognizes cohabiting unions and provides women in such unions legal protections, provides working women with child care and maternity leave whether or not the mother is married, and bars any discrimination against nonmarital children. So there is not great pressure on Swedish women to bear children within marriage, and many of them do not. (10)
As in Sweden, the birthrate in Denmark significantly declined in the 1970s, as demonstrated in Table D-2. The reasons were the same as the reasons for Sweden--women's skilled deployment of birth control techniques. In 1970, there were almost 71,000 live births in Denmark, a figure that held up until 1976, when it dropped to 65,267. Further declines left the birth rate at just over 50,000 per year in the early 1980s. Unlike Sweden, Denmark enjoyed a new baby boom in the late 1980s and 1990s. The birthrate soared from 53,749 in 1985 to 69,771 in 1995 and remained between 64,000 and 68,000 for the next eight years.
The pattern of births outside of marriage also soared in Denmark after 1970, as Table D-2 also documents. In 1970, births outside of marriage accounted for 11% of total births. That percentage tripled in the decade, reaching 33.2% in 1980, 43.0% in 1985, and 46.4% in 1990. Since 1990, the percentage of births outside of marriage has declined slightly, from the 46-47% range to the 44-45% range. The percentage of non-marital births was stable at this 44-45% level from 2000 to 2004.
Non-Marital Households. Table S-2 suggests that many children in Sweden do not grow up in households where their parents are married to one another. Perhaps paradoxically, however, most Swedish children today live with their biological parents, though that percentage has declined in the last generation. By one estimate, based upon Sweden's Register of Families with Children, 70% of Swedish 17 year-olds were...
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