In coming weeks, the U.S. Supreme Court will be flooded with “amicus curiae” (“friend-of-the-court”) briefs detailing the specialized arguments of a variety of interests on whether they should redefine marriage to include same-sex couples in all fifty states.
One of the strangest arguments was submitted on March 5 by “379 employers and organizations representing employers.” It boiled down to this: the Supreme Court should force genderless marriage on every state — in order to save us same paperwork.
You see, many corporations now give benefits, such as health insurance, to the same-sex “domestic partners” of their homosexual employees. If those employees are not legally married, however, the benefits are treated differently for tax purposes, which complicates the accounting.
For this, we are supposed to change the definition of our most fundamental social institution.
The employers’ brief includes other arguments as well — although they are even more nebulous. For example, they claim that “discrimination impairs an employer’s ability to compete for the best workforce.” If this is true, however, you would think companies with internal nondiscrimination policies and domestic partner benefits would want to retain that competitive advantage — rather than demanding that the courts forcibly level the playing field.
The brief claims that homosexual employees will not want to relocate to states where they cannot legally “marry” a same-sex partner. If this were such an important factor in being able to obtain “the best workforce,” however, you would think it would show up in macroeconomic data.
For example, growth in jobs, personal income, and population are some key measures of a state’s economic health. We can also gauge a state’s commitment to the natural marriage of one man and one woman or to the genderless redefinition of marriage by the results of the democratic process there. There are thirty states in which the people voted to define marriage as the union of one man and one woman in their state constitutions. There are ten states which did not adopt such a limitation, but which instead changed the definition of marriage to include same-sex couples via the democratic process (either a legislative vote, popular referendum, or both), not through a court order.
If the theory that redefining marriage aids economic competitiveness is correct, then we would expect the ten states that voluntarily redefined marriage to be disproportionately represented in the fastest growing states, while the thirty that acted to defend natural marriage should suffer.
The data show the exact opposite. The top ten states in personal income growth between the second and third quarters of 2014, as reported by the Department of Commerce in December, did include three of the states that freely chose to redefine marriage — New York (at #6), Washington (7), and Hawaii (with an amendment that prevented the courts, but not the legislature, from redefining marriage) at number 9. However, four of the top five states in personal income growth were marriage amendment states — Texas (1), Utah (3), Arizona (4), and Nevada (5).
Among the top ten states in population growth from the 2010 census to July 1, 2014, two (Washington at #6, and Hawaii at #9) were marriage-redefining states. However, all eight others, including all of the top five (North Dakota, Texas, Colorado, Utah, Arizona) were marriage amendment states.
Finally, among the top ten states in job growth, according to June 2014 projections by Kiplinger, all ten were marriage amendment states (North Dakota, Texas, Arizona, Utah, Colorado, Idaho, Florida, Oregon, Georgia, and South Dakota). If anything, these data suggest that redefining marriage may hinder economic growth, not help it.
Some may argue that it doesn’t matter if the redefinition of marriage arrived via democratic process or court order — what matters is that same-sex couples now get civil marriage licenses. However, being among the twelve remaining states that have never issued such licenses did not stop Texas from ranking first in income growth, and second in both population and job growth. It did not stop North Dakota from ranking first in both population and job growth; nor did it stop South Dakota from being in the top ten in two of these categories or Georgia from being in the top ten in one.
The economic argument for redefining marriage is not, strictly speaking, a legal or constitutional argument at all. It is a political argument, which the 379 employers are welcome to make before the legislatures or the people of the states. One thing I would hope that all Americans would agree on is this: the Supreme Court cannot — it must not — make its decisions on constitutional claims based on what the Justices (or anyone else) prefers as public policy.
However, we should be especially wary of making such decisions based on assertions that are so easily shown to be empirically false.