This and the following article will focus more on marriage and its relationship with the state. The conjugal view better describes what distinguishes marriage from other human goods, something that the revisionist view is helpless to do. Like friendship, marriage is a bond, but marriage is a bond of a special kind. We’ve discussed some of these differences in the previous two blog entries. Spouses vow their whole selves for their whole lives. This comprehensiveness puts the value of marriage in a class apart from the value of other relationships. Some say that marriage has no public value, and call for the state to get out of the marriage business altogether. Others say that marriage has no distinctive public value, and this being the case the state can remake the definition of marriage to fit whatever our preferences are. This article will deal primarily with the first fallacy, and the next article will deal with the second.
To the point that supposedly “marriage has no public value.” To recap a bit, the law does not set terms for friendships or allow us to sue over their neglect, and there are no civil ceremonies to forming friendships or legal obstacles to ending them. Why is marriage different? Because friendship does not affect the common good in ways that warrant legal recognition; marriage does. This is really the only way to account for the fact that virtually all cultures in the history of the world have regulated male-female sexual relationships. Only these relationships produce new human beings. Children need a long and delicate process of ongoing care and supervision, one to which men and women typically bring different strengths, and for which they are better suited the more closely related they are to their children. Unless children mature they will never become healthy, upright, productive members of society. The fact is, the state of our entire civilization depends on healthy, upright, productive citizens. As Maggie Gallagher puts it, “The critical public or ‘civil’ task of marriage is to regulate sexual relationships between men and women in order to reduce the likelihood that children will face the burdens of fatherlessness, and increase the likelihood that there will be a next generation that will be raised by their mothers and fathers in one family, where both parents are committed to each other and to their children.” This is not just a conservative viewpoint either. David Blankenhorn, a liberal Democrat says that anthropologists and other experts all report a cluster of related facts: “Humans are social; they live in groups. They strongly seek to reproduce themselves. They are sexually embodied. They carry out sexual (not asexual) reproduction. And they have devised an institution to bridge the sexual divide, facilitate group living, and carry out reproduction. All human societies have this institution. They call it ‘marriage.'”
Marriage is costly and fragile, however, so people tend to require social pressures to get and stay married, namely a strong marriage culture. The late eminent sociologist James Q. Wilson wrote, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children, does not solve.” The universal social need presented by relationships that can produce children explains why every society in history has recognized marriage. The state shouldn’t have the primary responsibility for this, it falls upon churches, synagogues, mosques, etc; but the state should lend a supporting hand. Marriage law sends a strong public message about what it takes to make a marriage–what marriage is. This affects people’s beliefs, and therefore their expectations and choices, about their own marriages. The mutual influence of law and culture has been confirmed by the evidence from the effects of no-fault divorce laws. A no-fault divorce is a divorce in which the breaking up of a marriage does not require a showing of wrongdoing by either party. Every state has some version of it and in my view it’s one of the worst marriage laws ever passed. Douglas Allen and Maggie Gallagher did a review of all research since 1995 on no-fault divorce laws to see if they affected the divorce rate. They found that no-fault divorce did increase the divorce rate by at least 10% (one estimate has it at an 88% increase), but this wasn’t the only effect: as a result of the law, more couples have either delayed marriage or chose not to marry at all, and no-fault divorce has likely resulted in a permanent increase in divorce risk. The state’s influence on marriage is extensive.
Abolishing civil marriage is practically impossible anyway. Even if the word “marriage” was stricken from law the state will still license, and attach dues and benefits to, certain bonds. Abolish these forms of regulation and they will only be replaced by messier, retroactive regulation: disputes over property, custody, visitation and child support. So the state can only decide if it will discharge these tasks either more or less efficiently, it can’t escape them. This is because the public functions of marriage–both to require and to empower parents (especially fathers) to care for their children and each other–require society-wide coordination. It’s inescapable. No private organization can regulate this, because they can bind only their own. Remember, a major function of marriage is to bind all third parties (schools, adoption agencies, summer camps, hospitals, friends, relatives, strangers, etc) to treat a man as father of his wife’s children, husbands and wives to certain privileges, sexually off-limits, etc. Only the state can regulate this with any consistency. In fact it’s best if the state does, which is proven by a simple example: why don’t even extreme libertarians object to traffic laws? Because of the great trouble traffic laws prevent, and their universal acknowledgement is key to their being obeyed. This is a good comparison with civil marriage laws. Marriage is not just about private problems and rewards; at stake are rights, and costs and benefits for all society. Here is a link briefly summarizing the large amount of research documenting the benefits of marriage. Marriage benefits children, benefits spouses, helps create wealth, helps the poor especially, and checks state power. Let’s take a closer look at each of these.
First, marriage benefits children. The best available social science suggests that children tend to do best when reared by their married mother and father. Studies that control for other factors, including poverty and even genetics, suggest that children reared in intact homes do best in all of the following: educational achievement, emotional health, familial and sexual development, and their overall behavior as a child and an adult (this includes rates of aggression, attention deficit disorder, delinquency and incarceration). According to a left-leaning institution, Child Trends, “Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage… It is not simply the presence of two parents…but that presence of two biological parents that seems to support children’s development.” According to another study in the Journal of Marriage and Family, “the advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.” Recent literature reviews by the Brookings Institution, Princeton University, the Center for Law and Social Policy and the Institute for American Values all corroborate these findings. Single-motherhood, cohabitation (“living together”), joint custody after divorce, and step-parenting have all been reliably studied, and the result is clear: children tend to fare worse under every one of these alternatives to married biological parenting. As I have noted in another post, the most recent well-constructed research of which I’m aware include same-sex couples as a deficient alternative as well. Note the link between marriage and children: just as it provides a powerful reason to hold the conjugal view of marriage, it also provides the central reason to make marriage a matter of public concern. Virtually every Supreme Court case recognizing as fundamental the right to marry indicates as the basis for the conclusion “the first purpose of matrimony, by the laws of nature and society, is procreation.” In fact, “marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.” Yes, marriage benefits children.
Second, marriage tends to help spouses financially, emotionally, physically and socially. It’s not that people who are better off tend to marry, but that marriage makes people better off. Thus men, after their wedding, tend to spend more time at work, less time at bars, more time at religious gatherings, less time in jail, and more time with family according to the late U of Virginia sociologist Steven Nock. More than signal maturity, marriage can promote it. Permanently committed to the marriage relationship, husbands and wives gain emotional insurance against life’s temporary setbacks. They leave the sexual marketplace and escape its heightened risks. They enjoy the benefits of a sharpened sense of purpose, dedicated to their children and each other. Working more robustly, they reap more abundantly these fruits as well.
Third, the fact the marriage benefits children and spouses supports a study by Professor Wilcox at U of Virginia who concluded, “The core message…is that the wealth of nations depends in no small part of the health of the family.” This study suggests that marriage and fertility trends “play an underappreciated and important role in fostering long-term economic growth, the viability of the welfare state, the size and quality of the workforce, and the health of large sectors of the modern economy.” If anything interests the state, surely these things must; so too then, does marriage.
Fourth, given its economic benefits it is no surprise that the decline of marriage most hurts the least well-off. Kay Hymowitz argues in her book Marriage and Caste in America that the decline of marriage culture has hurt lower-income communities and African-Americans the most. It seems a leading factor of whether someone will know poverty or prosperity is whether she knew the love and security of her married mother and father growing up.
Finally, since a strong marriage culture is good for all these things, it also serves the cause of limited government. Where marriages break down or never form, the state expands due to lawsuits to determine paternity, visitation rights, child support and alimony. As absentee fathers and out-of-wedlock births become common, a train of social pathologies follows, and with it greater demand for policing and state-provided social services as well. Two sociologists studied marriage culture in the Scandinavian countries and showed that the further marriage culture declined, the more the size and scope of state power and spending grew. A study by the left-leaning Brookings Institution found $229 billion in welfare money from 1970 – 1996 that can be directly attributed to the breakdown of the marriage culture and the resulting increase in teen pregnancy, poverty, crime, drug abuse and health problems. A 2008 study found that divorce and unwed childbearing cost taxpayers $112 billion each year!
In spite of those that say marriage has no public value and the state should get out of the business of regulating marriage at all, privatizing marriage would be a catastrophe. Almost every human interest that might justify state action, such as health, security, educational development, and social order would also justify legally regulating marriage. So much for that argument.