What is Marriage For? The Public Purposes of Marriage Law

Summary

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I. Introduction A. What is Marriage For? B. Why? What is the State's Interest in the Sexual Unions in General, and This Kind of Sexual Union in Particular of its Citizens? I. Models Of Marriage Law: The Relationship View A. Implications for Legal Equality of Informal Unions B. Are Informal Unions Marriage Equivalents? Evidence from the Social Sciences C. The Limits of Intimacy as a Rationale for Marriage Law D. The Consequences for Effective Fatherhood III. Models Of Marriage Law: A Normative Social Institution A. Marriage and Child Well-Being 1. Psychological Adjustment 2. Physical Health and Longevity 3. Crime and Delinquency . Child Abuse 5. Education and Socieconomic Attainment 6. Family Formation B. Marriage Law as a Family System C. Marriage and the Successful Reproduction of Society IV. Conclusion

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What is Marriage For? The Public Purposes of Marriage Law

Maggie Gallagher is an affiliate scholar at the Institute for American Values, the co-author with Linda J. Waite of The Case for Marriage: Why Married People are Happier, Healthier, and Better-Off Financially (2000), author of The Abolition of Marriage: Why We Destroy Lasting Love (1996) and the principal drafter and co-signatory of The Marriage Movement: A Statement of Principles (2001), available at http://www.marriagemovement.org.

I. Introduction

A. What is Marriage For?

Every known human society has some form of marriage.1In every complex society governed by law, marriage exists as a public legal act and not merely a private romantic declaration or religious rite.2

As Kingsley Davis summed up the anthroplogical evidence: "Although the details of getting married-who chooses the mates, what are the ceremonies and exchanges, how old are the parties-vary from group to group, the principle of marriage is everywhere embodied in practice . . . ."3

As a practically universal human idea, marriage is about regulating the reproduction of children, families, society. While marriage systems differ, marriage across societies is a public sexual union that creates kinship obligations and sharing of resources between men, women, and the children their sexual union may produce.

B. Why? What is the State's Interest in the Sexual Unions in General, and This Kind of Sexual Union in Particular of its Citizens?

Family law has become in recent years mired in and enlarged by controversial public debates over sexuality, autonomy, responsibility and the law. From the new reproductive technology to no-fault divorce to civil unions, Americans have been questioning the proper role of law in regulating or facilitating intimate partnerships, which requires rethinking the once-axiomatic relationship between sex, parenting and marriage. Before we can decide whether, say, gender is irrelevant to the public purposes of marriage, we have to decide what those public purposes are. Why does the state get involved in the intimate lives of its citizens at all?

There are two broad views of marriage currently competing in the public square. They are not mutually exclusive, in the sense that most Americans today draw our understanding of marriage from both streams. But ultimately these two competing visions of what marriage is for lead the law ...

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