1. Same-Sex Marriage: Why Legal Change Means Social Change
By Bryce J. Christensen and William C. Duncan
An opinion journalist recently announced that his previous strongly expressed opposition to redefining marriage so as to include same-sex couples had been abandoned.1 He explained that he had thought that redefining marriage would cause quick and catastrophic changes to the social strength of marriage. Now that some states have embraced “gay marriage” he has not been able to discern any serious problems for the institution of marriage or the family, so he thinks it would be fine to move ahead with the social experiment.
This kind of thinking is not uncommon. In fact, many people reasonably wonder how changes in the law, especially the law related to family, could have any impact on individual behavior. This question accords with much individual experience. It is probably somewhat rare, for instance, for individuals (except perhaps at the margins) to think about legal rules before proposing marriage or before deciding to have a child.
So, does the law a state adopts affect the family? Asked a different way, does the law merely reflect reality or might it interact with other variables to change reality?
In the marriage context, we have a very good example from which to learn. In 1969, California replaced previous legal standards for divorce so that couples would be granted divorce if they merely alleged that they could not get along. This legal change spread eventually to every state (Utah in 1987). Did the law have an effect on social realities? Of course it did. Economist Douglas Allen and family scholar Maggie Gallagher concluded after a careful study: “The best evidence suggests no-fault divorce increases the divorce rate on the order of 10 percent.”2 This, of course, is significant but is hardly the only effect. Dr. Allen points out that other studies demonstrate changes in “labor force participation for women, total hours of work for women, and a feminization of poverty”3 as well as rising ages at marriage that are attributable to the change in divorce laws.4
Legal scholar Rebecca Probert notes another example in English law regarding cohabitation. The legal changes were actually quite slight but they created a widespread perception that cohabitation would have the same legal effect as marriage and that perception, in turn, led to dramatic increases in both the rate of cohabitation and the acceptance as a practice. 5
Obviously, the mechanism of change in behavior and attitudes affected by legal changes can be complex and varied. A recent book on dating among “emerging adults” by sociologists Mark Regnerus and Jeremy Uecker provides an important framework for understanding the ways in which individuals may make decisions about marriage, sexuality and family life. They note that we respond to market-like forces (availability, competition, etc.) as well as “social scripts.”
The law can modify the “market” of family relationships by providing incentives and penalties for certain choices. Most obviously, welfare payments directed to unmarried parents will likely increase the number of such parents. Tax credits for children can affect family size. Making divorce simple and removing legal consequences from filing for divorce increases its prevalence.
Perhaps more important is the effect on social scripts. People, especially young people, are not likely to make choices they have never seen modeled or that they believe are not really feasible for their lives because of the examples with which they are surrounded. This is true even if these “examples” are really just imaginary, as with television or media portrayals, which Dr. Regnerus and Dr. Uecker found very influential in affecting young adults’ choices about sexuality. Something like this seems to be at work in the recent finding that a majority of Americans believe, inexplicably, that 25 percent of the population is gay or lesbian when even gay rights advocates would put the percentage at 3.5 percent.6 The law can create and endorse social scripts as it did with cohabitation in England.
This brings us back to the claim that same-sex marriage will have essentially no effect and so legally redefining marriage is no big deal.
One might initially wonder why, if the law is so powerless, it is so important to make the change. Why, for instance, if redefining marriage will have no effect on the attitudes and behavior of Americans related to marriage and family life it will still, miraculously, create widespread acceptance of alternative family forms among Americans. The experience of the Netherlands (where Parliament enacted same-sex marriage in 2001) makes very clear that 10 years after marriage has been redefined, most same-sex couples do not marry, marriage rates are still declining, divorce and unwed childbearing continue to increase and the hopes that gay marriage would lead to a renaissance in marriage generally are very unlikely to materialize.
We can predict that some changes are likely to follow from the redefinition of marriage, though, and we can predict that with a high degree of confidence. For instance, since this legal change is presented as the next advance in civil rights, those who oppose it for religious or other reasons will be labeled bigots. Indeed, five years after same-sex marriage came to Massachusetts a survey showed: “Thirty-six percent of all Massachusetts voters agreed with the statement, ‘Some people I know personally would be reluctant to admit they oppose gay marriage because they would worry about the consequences for them or their children.’”7 The idea that children benefit from a relationship with both a mother and a father is likely to lose support as well when the law officially endorses the idea that parents are fungible. The Massachusetts survey showed “support for the idea that the ideal is a married mother and father [for children] dropped from 84 percent to 76 percent” from 2004 to 2009.
Another important consequence is even easier to predict because it is being openly advocated by some proponents of redefining marriage. After the New York legislature redefined marriage, The New York Times ran an article relaying the views of an increasingly prominent activist that what the America of Bill Clinton, Arnold Schwarzenegger, et al. needs is more openness to adultery:
The view that we need a little less fidelity in marriages is dangerous for a gay-marriage advocate to hold. It feeds into the stereotype of gay men as compulsively promiscuous, and it gives ammunition to all the forces, religious and otherwise, who say that gay families will never be real families and that we had better stop them before they ruin what is left of marriage. But Savage says a more flexible attitude within marriage may be just what the straight community needs. Treating monogamy, rather than honesty or joy or humor, as the main indicator of a successful marriage gives people unrealistic expectations of themselves and their partners. And that, Savage says, destroys more families than it saves.
This is not the first instance of the Times raising the idea that straight couples could learn something from the acceptance of “nonmonogamy” among same-sex couples.8 Columnist Ross Douthat very reasonably suggests “that the example of same-sex unions might partially transform marriage from within, creating greater institutional flexibility – particularly sexual flexibility – for straight and gay spouses alike.” 9
While we cannot predict with certainty every consequence of legal changes in the family or the timing in which they might occur, we can confidently reject the idea that there will be none. Whether those consequences will be salutary or disastrous depends on the change we accept. Pretending otherwise will not change the consequences or prevent them from happening, but it might lull us into a false sense of security that will make the inevitable effects more painful.
Co-author Bryce J. Christensen, Ph.D., is associate professor of English at Southern Utah University and adjunct fellow of Sutherland Institute’s Center for Family and Society. He is a contributing editor to The Family in America and author of Divided We Fall: Family Discord and the Fracturing of America (Transaction, 2005). He has also published articles on family issues inSociety, The Public Interest, Policy Review, Modern Age, and other journals.
Co-author William C. Duncan, J.D., is director of the Marriage Law Foundation and is the director of Sutherland Institute’s Center for Family and Society. He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.
1. David Frum, “I Was Wrong About Same-Sex Marriage” CNN, June 27, 2011 athttp://articles.cnn.com/2011-06-27/opinion/frum.gay.marriage_1_family-stability-marriage-hispanic-mothers?_s=PM:OPINION.
2. Douglas W. Allen & Maggie Gallagher, “Does Divorce Law Affect the Divorce Rate?” Institute for Marriage and Public Policy Research Brief No. 1, July 2007.
3. Douglas W. Allen, “Let’s Slow Down: Comments on Same-Sex Marriage and Negative Externalities” December 2010 at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722764.
4. Sharon Haddock, “’No Fault’ Divorce Takes Togetherness Out of Process” Deseret News, March 7, 2010 athttp://www.mormontimes.com/article/1140/studies/yourtimes/home%20&%20family; Douglas W. Allen, “No-Fault Divorce in Canada: Its Cause and Effect” 37 Journal of Economic Behavior & Organization 129 (1998).
5. Rebecca Probert, “From Fornicators to Family: Cohabitants and the Law, 1600-2011” Legal Studies Research Paper No. 2011-08 (University of Warwick Inaugural Lecture, 9 February 2011).
6. Lymari Morales, “U.S. Adults Estimate That 25% of Americans are Gay or Lesbian” Gallup, May 27, 2011 at http://www.gallup.com/poll/147824/Adults-Estimate-Americans-Gay-Lesbian.aspx.
7. National Organization for Marriage, “Five Years After Goodridge: Gay Marriage Divides Massachusetts Voters,” May 17, 2009) athttp://www.nationformarriage.org/site/apps/nlnet/content2.aspx?c=omL2KeN0LzH&b=5075189&ct=7000219.
8. Scott James, “Many Successful Gay Marriages Share an Open Secret” New York Times,January 28, 2010 at http://www.nytimes.com/2010/01/29/us/29sfmetro.html.
9. Ross Douthat, “More Perfect Unions” New York Times, July 3, 2011 athttp://www.nytimes.com/2011/07/04/opinion/04douthat.html.
2. Give Sundance credit where credit is due
By Stan Swim
A few weeks ago in another post on this blog, Sutherland analyst Matthew Piccolo brought to light the vulgar content presented during parts of the Sundance Institute’s annual film festival. While I share his concerns about the festival, Sundance also deserves praise for the family-friendly content it does produce. For example, a couple of years ago Sundance resumed family-friendly programming on its outdoor stage at Sundance Resort. Last week my wife and I attended a dress rehearsal of Sundance Summer Theatre’s The Sound of Music, produced in collaboration with UVU’s School of the Arts. …
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3. When Tiger’s values disintegrated, so did his world
By Dave Buer
Tiger Woods recently announced that he and his longtime caddie Steve Williams parted ways. Williams’ departure is simply the latest in the stream of friends, family members and corporate partners who have left in the wake of Woods’ stunning infidelity and self-centeredness (see graphic).
What led to this colossal personal, professional and financial collapse? For Woods, it was his gradual but consistent choice to abandon the values he had been taught.
4. Faith, family, free markets: fertile ground for happiness
By Matthew Piccolo
America’s founders believed that God endowed us with “certain unalienable rights, that among these are life, liberty and the pursuit of happiness” and “that to secure these rights, governments are instituted among men.”
Let’s focus on the third unalienable right in that list: the pursuit of happiness. What is “happiness” and what can government do to protect our pursuit of it?
5. Tribune article stacks up ironies
By Stan Rasmussen
A recent edition of The Salt Lake Tribune included a story titled, “Gay BYU filmmaker ready to tell his story,” by Peggy Fletcher Stack (July 8, 2011).
The article is about Kendall Wilcox, yet Ms. Stack appropriates Mr. Wilcox’s quandary to proclaim the mantra upon which she seems fixated: Hasten the day when the LDS Church is no longer hopelessly obstinate and desperately non-progressive. The instances of irony in the article are numerous. …
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