What is Marriage For? The Public Purposes of Marriage Law
| Author | Maggie Gallagher |
| Position | ffiliate scholar at the Institute for American Values |
| Pages | 773-791 |
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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.
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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.
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 Page 775 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 in dramatically opposing directions.
Here is one view: Marriage is an essentially private, intimate, emotional relationship created by two people for their own personal reasons to enhance their own personal well-being. Marriage is created by the couple, for the couple.
It is wrong, discriminatory, as well as counterproductive, therefore, for the state to favor certain kinds of intimate relations over others. Marriage has a legal form but no specific content. Each person has the right to express socially his or her own inner vision of family, sexuality and intimacy, on an equal basis.
Sometimes this argument is made in its purest possible form. As Rutgers law professor Drucilla Cornell put it:
The state should have no right to privilege or impose one form of family structure or sexuality over another. This would mean that some adults could choose consensual polygamy. Mormon men could have more than one wife. Four women who worship the mother goddess could also recognize and form a unity and call their relationship a marriage. There would be no state-enforced single relationship-not monogamy, heterosexuality, polygamy, or polyandry . . . [Legislating] love and [conscripting] men is a sign of the fear of, not a solution to, the crisis of families. Intimate associations are different undertakings. They always have been so. The freedom to form families opens up the possibility of people creating their own families in the way most suitable to them.4
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More often, the argument is tempered with an acknowledgment that the state does have a potential interest in regulating intimate relations, including marriage, but it is limited to the protection of existing dependents. To the extent marriage protects the weak (children), the state may prefer marriage. But it makes no sense in this view for the state to deny the benefits of marriage to any two people, especially any two people with children. The only goods of marriage that the state confers are a small number of practical advantages in inheritance, social security and health insurance law. There is no rational reason, therefore, to withhold these benefits from any couple, cohabiting, same-sex, or other, who wishes to claim them on behalf of themselves or (especially) their dependents.
So this view of marriage as primarily an emotional good created by the private couple leads to calls (and in countries outside the United States to judicial rulings and legislation) to abolish any distinction between cohabitation and marriage, between what some call formal and informal unions. In the Summer of 2000, writing in Family Law Quarterly, distinguished family law scholar Harry D. Krause put it this way:
[A]n irrational, sentimental cocoon . . . has clouded logical discussion and intelligent debate . . . Today's sexual and associational lifestyles differ so much that the state should not continue to deal with them as though they were one: the old role-divided, procreative marriage of history. That marriage may not yet be history, but it should be seen for what is has become: one lifestyle choice among many.
A pragmatic, rational approach would ask what social functions of a particular association justify extending what social benefits and privileges. Marriage, qua marriage, would not be the one event that brings into play a whole panoply of legal consequences. Instead, legal benefits and obligations would be tailored according to the realities-speak social value-of the parties' relationship.5
Addressing tax laws that treat married and cohabiting couples differently, Professor Krause concludes: "The rational answer seems Page 777 clear: Married and unmarried couples who are in the same factual positions should be treated alike."6
What difference does the fact of marriage make in this relational view? None because marriage is just a word for a relationship actually created by and for the couple.
A burgeoning body of social science literature on cohabitation in this country shows that cohabitation is not in fact the functional equivalent of marriage. Cohabitors more closely resemble singles than married people.7 Children with cohabiting parents have outcomes more similar to the children of single parents than children from intact married families.8 Adult cohabitors are more similar to singles than to married couples in terms of rates of physical health and disability,9emotional well-being and mental health,10 as well as assets and earnings.11
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People who live together also, on average, report relationships of lower quality-with cohabitors reporting more conflict, more violence, and lower levels of satisfaction and commitment than married couples.12 Even biological parents who cohabit have poorer quality relationships and are more likely to part than parents who marry.13 Cohabitation differs from marriage in part because it selects for partners with lesser commitment to the relationship. The public nature of the marriage partnership, with its long time-horizon, formal entry and exits, and relatively well-developed socially supported enforced norms of behavior, also affect the returns of marriage vis-vis more informal unions.14
Yet a distinguished legal scholar in a major family law journal simply assumed that the functional equivalence of cohabitation and marriage was self-evident, once the cocoon of sentiment was stripped away by a hard-headed rationalist like himself-so deeply ingrained in certain circles has the idea become that marriage is no more than a piece of paper that delivers certain legal benefits.15
In the larger sweep of history, despite significant countercurrents,16 this view of marriage-as-emotional intimacy is gaining ground.17 One view of marriage is that it is a personal right Page 779 of the individual, created by the individual, for purposes which the individual alone defines. When two individuals happen to have desires and tastes for each other that coincide for a lifetime, that is beautiful. If not, it is simply no one else's business.
Of course if this is what marriage is for, many things about the state's traditional regulation of marriage become difficult to understand. It is difficult to understand in this scheme why the state would be involved in marriage at all, or why marriage must be confined to the couple-at the most basic level, why the word marriage requires intimacy at all. If fairness is the issue, why can a worker give his health insurance benefits only to someone he...
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