Beyond the expansion framework: how same-sex marriage changes the institutional meaning of marriage and heterosexual men's conception of marriage.

• Author: Hawkins, Alan J.
• Position: Brigham Young University Symposium on the Future of Families and of Family Law

OVERVIEW

Social institutions profoundly affect human behavior. They provide human relationships with meaning, norms, and patterns, and in doing so encourage and guide conduct; they are the "humanly devised constraints that shape human interaction." (1) That is their function. And when the definitions and norms that constitute a social institution change, the behaviors and interactions that the institution shapes also change.

Marriage is society's most enduring and essential institution. As with any institution, changing the basic definition and social understanding of marriage--such as by nullifying its gendered definition--will change the behavior of men and women in marriage and will even affect whether they enter marriage in the first place. Whether deemed good or bad, redefining marriage separate from its historically gendered purposes will have significant consequences.

We know this not only as a matter of sound theory, logic, and common sense, but from experience with other changes to marriage and marriage-related expectations. Specifically, the advent of no-fault divorce changed the legal and social presumption of permanence in marriage. That change had profound consequences. While affording adults greater autonomy and facilitating an easier end to dangerous or unhealthy relationships, it also contributed to an unexpected increase in divorces from low-conflict marriages, created a tangible sense of fragility for all marriages, and left more children being raised without present fathers, with attendant adverse consequences.

Although it is far too early to know exactly how redefining marriage to include same-sex couples will change marriage, we argue that such a significant change will likely further weaken heterosexual men's connection to marriage. Marriage has been an important way that adult men establish their masculinity in a way that benefits women, children, communities, and society. A de-gendered conception of marriage likely weakens the institution's power to channel men's generative masculinity in child- and family-centered ways. This, in turn, will likely increase the risk that more children will be raised without the manifest benefits of having their fathers involved day to day in their children's lives. These risks justify states' caution in redefining marriage in non-gendered terms.

INTRODUCTION

Social institutions exist primarily to guide and channel human behavior in ways that benefit society. Preeminent social anthropologist A. R. Radcliffe-Brown described social institutions as a means for society to order "the interactions of persons in social relationships." (2) In social institutions, "the conduct of persons in their interactions with each other is controlled by norms, rules or patterns." (3) As a consequence, "a person [in a social institution] knows that he [or she] is expected to behave according to these norms and is justified in expecting that other persons should do the same." (4)

Through such rules, norms, and expectations--some legal, others cultural--social institutions become constituted by a web of public meaning. (5) Social institutions, and the language we use to describe them, in large measure, define relationships and how we understand and act within them.

[L]anguage--or more precisely, normative vocabulary--is one of the key cultural resources supporting and regulating any [social] institution. Nothing is more essential to the integrity and strength of an institution than a common set of understandings, a shared body of opinion, about the meaning and purpose of the institution. And, conversely, nothing is more damaging to the integrity of an institution than an attack on this common set of understanding with the consequent fracturing of meaning. (6) Marriage is a vital institution. As a group of prominent family scholars said: "[A]t least since the beginning of recorded history, in all the flourishing varieties of human cultures documented by anthropologists, marriage has been a universal human institution." (7) Courts have long recognized the institutional nature of marriage. (8)

Thus, although serving many private ends, marriage's institutional nature means that it is not merely a private arrangement. It exists also to shape and guide human behavior to serve public and social purposes. And those public purposes have centered on uniting a man and a woman to order their sexual behavior and maximize the welfare of their children:

Marriage exists in virtually every known human society.... As a virtually universal human idea, marriage is about ... the reproduction of children, families, and society.... [M]arriage across societies is a publicly acknowledged and supported sexual union which creates kinship obligations and sharing of resources between men, women, and the children that their sexual union may produce. (9) That has been the social, linguistic, and legal meaning of marriage from ancient times and that meaning continues in contemporary society. (10) Indeed, until very recently, "it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex." (11) This was the accepted pattern due to the fact that only the union of a man and a woman can produce a child. And until a few years ago, the law universally reflected and reinforced that historical, cultural, linguistic, and biological understanding.

Abandoning marriage's gendered definition and redefining it in nongendered terms would fundamentally alter its meaning and many of its public purposes. That necessarily follows from the very nature of marriage as a social institution. As Professor Daniel Cere of McGill University has explained: "Definitions matter. They constitute and define authoritative public knowledge.... Changing the public meaning of an institution changes the institution. [The change] inevitably shapes the social understandings, the practices, the goods, and the social selves sustained and supported by that institution." (12)

As we have observed the current debate over the meaning of marriage, our overwhelming impression is that the debate is cast predominantly as a decision about whether to "expand" or "extend" the boundaries of marriage to include same-sex couples. This argument rests on the assumption that the basic nature of marriage will remain largely unchanged by granting marriage status to same-sex partnerships, and that all this policy change would do is absorb same-sex partnerships within the boundaries of marriage and extend the benefits of marriage to a wider segment of society. (13) Indeed, the very term "same-sex marriage" implies that same-sex couples in long-term committed relationships are already a type of marriage that should be appropriately recognized and labeled as such. But this understanding is flawed in that it fails to understand how recognizing same-sex partnerships as marriages would signify a fundamental change in how marriage is collectively understood and the primary social purposes for which it exists.

If marriage is redefined to mean the union of two people without regard to gender, it will weaken its inherent focus on children. Such a change, to be sure, would afford a few more children living in same-sex-couple households the opportunity to grow up in what the law would deem a married household. But the law would then teach that marriage is "essentially an emotional union" (14) that has no inherent connection "to procreation and family life." (15) In a formal statement, seventy prominent academics from all relevant disciplines expressed "deep[] concerns about the institutional consequences of same-sex marriage for marriage itself," concluding that "[s]ame-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage" and "undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget." (16) Defining marriage as merely the union of two persons, in short, would "distill[] marriage down to its pure close relationship essence." (17)

Courts and jurists have likewise acknowledged the profound change in social meaning that would follow a change in marriage's basic definition:

We cannot escape the reality that the shared societal meaning of marriage--passed down through the common law into our statutory law--has always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. (18) I. NO-FAULT DIVORCE: A PRECEDENT FOR UNDERSTANDING LEGAL CHANGE TO THE DEFINITION OF MARRIAGE

The conclusion that redefining marriage will materially alter the mix of social benefits marriage provides is supported not only by sound socio-institutional theory, logic, and common sense, but by experience with other changes to marriage and marriage-related expectations. Of course, no one can know the precise, long-term consequences of redefining marriage to include same-sex couples. It is simply too soon, and the ways it may affect marriage are too complex to be understood without ample time and extensive conceptual and empirical inquiry. Justice Alito recently made this point:

Past changes in the understanding of marriage ... have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. (19) Compelling cautionary lessons can be drawn from recent...