by Neil H. Buchanan
Yesterday's Washington Post included an op-ed by Dana Milbank, "The New Argument Against Gay Equality: Same-Sex Marriage Kills," which describes and effectively dismantles an especially loopy new argument from someone named Gene Schaerr, who was a losing lawyer in Utah's SSM case. (Schaerr is no minor player or local rube, by the way, having clerked for Justice Scalia.) That the argument is nutty does not, of course, mean that it will lead to any embarrassed distancing by other people on the right; and, in fact, the Heritage Foundation held an event earlier this week in which Schaerr laid out what one might generously call his argument.
Here, I will briefly describe that non-argument. This will be fun, in its way, but it is not difficult. Indeed, Milbank does a great job on his own mocking Schaerr's claims. Even so, Milbank missed one big possible defense by Schaerr. After describing (and ridiculing) that possible defense, I will tie this argument back into my recent musings about lying and dishonesty by right-wing politicians in this country. Although my earlier writings focused on arguments about taxes, it turns out that there is an interesting connection between these various deceptions.
Schaerr makes his argument in the form of a statistical claim: "nearly 900,000 more children of the next generation would be aborted as a result of their mothers never marrying." Notwithstanding his decision to put a numerical estimate on the number of abortions, Schaerr admitted to Milbank that his argument "is still too new to do a rigorous causation analysis using statistical methods." So, it is not really a numerical claim, but Schaerr is willing to say that the effect will be big, so big that he can put a big number on it with no factual underpinning.
Lacking actual statistical analysis, how does Schaerr get from SSM to that supposed increase in abortions -- especially given that, as Milbank points out, married gay couples are likely to adopt children, plausibly reducing the number of abortions? (I am not saying that this cause-and-effect has been tested, either. But we are now talking about hypotheses only.)
Schaerr's chain of illogic goes like this: gay marriage causes fewer opposite-sex marriages, which leads to more out-of-wedlock pregnancies, which leads to more abortions. Sure, that sounds insane. However, it does have the advantage of claiming to be evidence-based. Even the most out-there statistical claims can be tested, and if the evidence turned out to be suggestive of unexpected connections, those connections would be worth pursuing. No such luck, however, for Schaerr's desperation play.
There seem to be two statistical claims floating around Schaerr's argument. He now asserts that U.S. states in which same-sex marriages have been legal have seen declines in marriage rates. This is a replacement for a claim that was part of the State of Utah's arguments in its federal legal proceedings, that birth rates had fallen in states with SSM. As Milbank points out, birth rates have been falling nationwide for some time, and the birth rates in Utah and Texas have actually fallen faster than birth rates in Vermont, Massachusetts, and Connecticut.
Milbank gathers similar statistics to debunk Schaerr's claims about marriage rates: "The national marriage rate declined to 6.8 per 1,000 in 2012, from 8.0
in 2002, before Massachusetts became the first state to legalize gay
marriage. The Massachusetts rate dropped from 5.9 in 2002 to 5.5 in
2011, while Connecticut went from 5.7 to 5.5 and Vermont went from 8.6
to 8.3. But Texas and Utah, free of same-sex marriage, dropped from 8.4
to 7.1, and from 10.4 to 8.6, respectively."
Let us leave aside the complete failure to connect decreases in birth rates to increases in abortion rates. Let us also ignore the many unstated and unsupported statistical connections between declines in marriage and increases in abortions. (And, of course, let us not fail to note that Schaerr's argument has the effect of causing the discussion to rush past his central claim, equating abortion and "killing.") What Milbank fails to consider is the miraculous power of all bad things to affect everything around them, in the past, present, and future.
A core argument from the likes of Schaerr, after all, has been that simply knowing that same-sex couples are marrying degrades the value of marriage among heterosexuals. Surely, state borders are not enough to block the dispiriting knowledge that SSM is on the march nationwide, or to prevent that trend from upsetting people in red states. Maybe straight people in Utah and Texas are so distressed by what is happening elsewhere, and so worried about SSM coming to their home states, that they began shunning marriage in anticipation of the inevitable.
Of course, this argument also has the virtue of explaining any declines in marriage and/or birth rates before even Massachusetts allowed same-sex marriages: People knew for years that this was coming, and so the lack of apparent cause-and-effect in real time is really a matter of people anticipating future events. After all, given that people on the right continue to rage against "the Sixties," maybe the Beatles' "Revolution" and "Lucy in the Sky With Diamonds" somehow set this all in motion. (No comment needed regarding the Rolling Stones' "Let's Spend the Night Together.")
We have, in fact, recently heard a version of this very argument. After the mid-term elections last Fall, when the economic reports began to show that the economy had been improving for months, notwithstanding the supposedly ill effects that President Obama and Senate Democrats were having on the country, rising Senate Majority Leader Mitch McConnell had a ready answer: The economy started to improve earlier in 2014, because people suspected that the Republicans were going to do well in the November elections!
As I noted at the beginning of this post, the illogic of Schaerr's argument provides fresh insights into the arguments that I have made in three of my most recent Dorf on Law posts (here, here, and here). In those posts, I have described deliberately misleading statements as "lies," "deceptions," "distortions," and similar terms. Two of my examples have been Republicans' invention and repetition of the terms "IRS Code" to describe the tax code that Congress enacted (diverting public anger toward the agency that tries to administer Congress's mess), and "death tax" to describe the federal estate tax.
As always, calling out any particular deception has brought forth some halfhearted defenses. "IRS Code" is not really misleading, I am told, because everyone knows what it means. Similarly, I should see that"death tax" is not exactly a lie, because it is a tax that is collected at death.
It is true that some lies are more bald-faced than others, but that does not make them any less deceptive. If anything, the whole point of dressing them up is to make them more deceptive. For example, Milbank quotes a Heritage staffer claiming that "every nation and every state that have redefined marriage have seen
their marriage rates decline by at least 5 percent after that
redefinition, even as the marriage rates in the rest of the states
remain stable." I have not looked at whatever data to which he might be referring, but I recognize weasel words like "stable" when I see them.
When I enrolled in law school, I was a literalist when it came to lying. My attitude was not George Costanza's famous "it's not a lie if you believe it" line from "Seinfeld," but rather that so long as one says nothing that is, in isolation, a literal falsehood, then one is not lying. "Sorry that I cannot go to your party. My car broke down again." How clever not to add that the car has already been fixed!
As I have noted in various places, law school had the counter-intuitive effect of making me less likely to rationalize lies with half-truths. If I really did not want to go to a party, and I did not want to tell the host why not, I realized that there was really no moral high ground to saying, "Well, I didn't actually lie." That is why rules for perjury, standards for "good faith and fair dealing" in contracts, and professional ethics rules are written more broadly than "no literal falsehoods allowed." Even the familiar courtroom witness's oath to tell "the truth, the whole truth, and nothing but the truth" captures the need to prevent serious arguments from descending into absurd gamesmanship.
Similarly, legal standards often include an inquiry into whether a party "knew, or should have known" how his statements would be understood. Regarding the estate tax, I have written in the past (e.g., here and here) why "Well, it is a tax at death" and similar arguments do not work. My point here is simply that even political arguments can and should be held to a standard higher than "not literally a bald-faced factual falsehood." Notwithstanding our cynicism about "lies, damned lies, and statistics," defaulting to the lowest standards is no better than having no standards at all.