2:13-cv-00217 #42

PHILIP S.
LOTT (5750)
STANFORD E. PURSER (13440)
Assistant Utah Attorneys General
J OHN E. SWALLOW (5802)
Utah Attorney General
160 East 300 South, Sixth Floor
P.O. Box 140856
Salt Lake City, Utah 84114-0856
Telephone: (801) 366-0100
Facsimile: (801) 366-0101
Email: phillott@utah.gov
Email: spurser@utah.gov
Attorneys for Defendants Gary R. Herbert and John E. Swallow

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DEREK KITCHEN, individually; MOUDI
SBEITY, individually; KAREN ARCHER,
individually; KATE CALL, individually;
LAURIE WOOD, individually; and
KODY PARTRIDGE, individually,

Plaintiffs,

vs.

GARY R. HERBERT, in his official capacity
as Governor of Utah; J OHN SWALLOW, in
his official capacity as Attorney General of
Utah; and SHERRIE SWENSEN, in her
official capacity as Clerk of Salt Lake
County,

Defendants.

APPENDIX IN SUPPORT OF STATE
DEFENDANTS MOTION FOR
SUMMARY JUDGMENT

Civil Case No. 2:13-cv-00217-RJ S

J udge Robert J . Shelby

TABS 40 TO 45a
(797 - 826)
Case 2:13-cv-00217-RJS Document 42 Filed 10/11/13 Page 1 of 43
ii

APPENDIX
TABLE OF CONTENTS

Tab # Description Page

PART ONE
LEGAL MATERIALS

1. Utah Code 30-1-2

1
2. Utah Code 30-1-4.1

2
3. Utah Constitution Art. 1, 29 (Amendment 3)

3
4. H.J .R. 25, J oint Resolution on Marriage (as originally filed)

4
5. H.J .R. 25, J oint Resolution on Marriage (Senate Floor Amendments)

6
6. H.J .R. 25, J oint Resolution on Marriage (final, reflecting Senate amendments)

7
7. Chart: The definition of marriage: State statutory and constitutional
provisions
9
8. Chart: The definition of marriage: State ballot measures

13
9. Chart: The language of State constitutional bans on domestic partnership and
other non-marital unions
18
10. Chart: Court decisions on the marriage issue

23
11. Chart: Pending cases on the marriage issue

25
12. J urisdictional Statement, Baker v. Nelson, No. 71-1027 (U.S. Supreme Court
Feb. 11, 1971)
27
13. Amicus curiae brief of Social Science Professors, Hollingsworth v. Perry, No.
12-144, and United States v. Windsor, No. 12-307 (U.S. Sup. Ct. J anuary
2013)
40
14. Amicus curiae brief of Scholars of History and Related Disciplines,
Hollingsworth v. Perry, No. 12-144 (U.S. Sup. Ct. J anuary 2013)
81
15. [Reserved]

16. [Reserved]

iii

PART TWO
MATERIALS ON ADJUDICATIVE FACTS

17. Affidavit of William C. Duncan and Exhibit 1 (curriculum vitae)

127
18. Excerpts from Utah Voter Information Pamphlet, General Election,
November 2, 2004
150
19. Vote count on Amendment 3, by county, with totals, and with percentages

155
20. Campaign materials for Amendment 3

156
21. Campaign materials against Amendment 3

171
22. New accounts, press releases, and editorials regarding Amendment 3

183
23. Fund-raising and expenditures in the Amendment 3 campaign

222
24. Affidavit of Dr. J oseph P. Price and Exhibit 1 (curriculum vitae)

223
25. [Reserved]

26. [Reserved]

PART THREE
MATERIALS ON LEGISLATIVE FACTS

27. INSTITUTE FOR AMERICAN VALUES, WHY MARRIAGE MATTERS: THIRTY
CONCLUSIONS FROM THE SOCIAL SCIENCES (3d ed. 2011).
232
28. THE WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN
PRINCIPLES (2008).
280
29. INSTITUTE FOR AMERICAN VALUES, MARRIAGE AND THE LAW: A STATEMENT
OF PRINCIPLES (2006).
318
30. INSTITUTE FOR AMERICAN VALUES (DAN CERE, PRINCIPAL INVESTIGATOR),
THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH
AMERICA (2005).
362
31. INSTITUTE FOR AMERICAN VALUES ET AL. (ELIZABETH MARQUARDT,
PRINCIPAL INVESTIGATOR), THE REVOLUTION IN PARENTHOOD: THE EMERGING
GLOBAL CLASH BETWEEN ADULT RIGHTS AND CHILDRENS NEEDS (2006).
413
32. COMMISSION ON PARENTHOODS FUTURE & INSTITUTE FOR AMERICAN
VALUES (ELIZABETH MARQUARDT, PRINCIPAL INVESTIGATOR), ONE PARENT
OR FIVE: A GLOBAL LOOK AT TODAYS NEW INTENTIONAL FAMILIES (2011).
457
33. INSTITUTE FOR AMERICAN VALUES (ELIZABETH MARQUARDT, NOVAL D.
GLENN, & KAREN CLARK, CO-INVESTIGATORS), MY DADDYS NAME IS
DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM
DONATION (2010).
529
iv

34. Margaret Somerville, What About the Children, in DIVORCING MARRIAGE:
UNVEILING THE DANGERS OF CANADAS NEW SOCIAL EXPERIMENT 63-78
(Daniel Cere & Douglas Farrows eds., 2004).
669
35. Margaret Somerville, Childrens human rights and unlinking child-parent
biological bonds with adoption, same-sex marriage and new reproductive
technologies, 13 J . FAM. STUD. 179-201 (2007).
687
36. Margaret Somerville, Childrens Human Rights to Natural Biological Origins
and Family Structure, 1 INTL J . J URISPRUDENCE FAM. 35 (2010).
710
37. Don Browning & Elizabeth Marquardt, What About the Children? Liberal
Cautions on Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY,
STATE, MARKET, AND MORALS 173-192 (Robert P. George & J ean Bethke
Elshtain, eds., 2006).
732
38. Maggie Gallagher, (How) Does Marriage Protect Child Well-Being?, in THE
MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 197-212
(Robert P. George & J ean Bethke Elshtain, eds., 2006).
752
39. Seana Sugrue, Soft Despotism and Same-Sex Marriage, in THE MEANING OF
MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 172-96 (Robert P.
George & J ean Bethke Elshtain, eds., 2006).
770
40. THE SOCIOLOGY OF GEORGE SIMMEL 128-32 (Kurt H. Wolff, trans. & ed.,
1950).
797
41. CLAUDE LVI-STRAUSS, THE VIEW FROM AFAR 39-42 (J oachim Neugroschel
& Phoebe Hoss trans. 1985)
804
42. G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 1-3 (1988).

810
43. EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY:
SEXUAL PRACTICES IN THE UNITED STATES 310-13 (1994).
815
44. CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING
INSTITUTION 7-8 (Kingsley Davis, ed., 1985).
819
45. J AMES Q. WILSON, THE MARRIAGE PROBLEM 40-41, 168-170 (2002).

823
46. BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH 10-11 (1962).

831
47. DADDY DEAREST? ACTIVE FATHERHOOD AND PUBLIC POLICY 57 (Kate
Stanley ed., 2005).
834
48. DAVID POPENOE, LIFE WITHOUT FATHER: COMPELLING NEW EVIDENCE THAT
FATHERHOOD AND MARRIAGE ARE INDISPENSABLE FOR THE GOOD OF
CHILDREN AND SOCIETY 139-63 (1996).
837
49. William J . Doherty et al., Responsible Fathering: An Overview and
Conceptual Framework, 60 J . MARRIAGE & FAM. 277-292 (1998).
852
50. KRISTIN ANDERSON MOORE ET AL., MARRIAGE FROM A CHILDS PERSPECIVE:
HOW DOES FAMILY STRUCTURE AFFECT CHILDREN, AND WHAT CAN WE DO
ABOUT IT?, a Child Trends Research Brief (2002).
868
51. Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United
States: incidence and disparities, 2006, 84 CONTRACEPTION 478-85 (2011).
876

v

52. ELIZABETH WILDSMITH ET AL., CHILDBEARING OUTSIDE OF MARRIAGE:
ESTIMATES AND TRENDS IN THE UNITED STATES, a Child Trends Research
Brief (2011).
884
53. SAMUEL W. STURGEON, THE RELATIONSHIP BETWEEN FAMILY STRUCTURE
AND ADOLESCENT SEXUAL ACTIVITY, a familyfacts.org Special Report
(November 2008).
890
54. U.S. Dept. of Health and Human Servs., Administration for Children &
Families, Office of Planning, Research & Evaluation, Distribution of Abuse
and Neglect by Family Characteristics, in FOURTH NATIONAL INCIDENCE
STUDY OF CHILD ABUSE AND NEGLECT (NIS-4)
892
55. Paul R. Amato, The Impact of Family Formation Change on the Cognitive,
Social, and Emotional Well-Being of the Next Generation, 15 THE FUTURE OF
CHILDREN 75-96 (2005).
936
56. Douglas W. Allen, High school graduation rates among children of same-sex
households, 11 Rev. of Econ. Of the Household (published on-line September
26, 2013).
959
57. Mark Regnerus, How different are the adult children of parents who have
same-sex relationships? Findings from the New Family Structures Study, 41
SOCIAL SCIENCE RESEARCH 752-70 (2012).
983
58. Mark Regnerus, Parental same-sex relationships, family instability, and
subsequent life outcomes for adult children: Answering critics of the new
family structures study with additional analyses, 41 SOCIAL SCIENCE
RESEARCH 1367-77 (2012).
1002
59. Loren Marks, Same-sex parenting and childrens outcomes: A closer
examination of the American psychological associations brief on lesbian and
gay parenting, 41 SOCIAL SCIENCE RESEARCH 735-51 (2012).
1013
60. WILLIAM C. DUNCAN, MISPLACED RELIANCE ON SOCIAL SCIENCE EVIDENCE
IN THE PROPOSITION 8 CASE, Vol. 5, No. 6, an Institute for Marriage and
Public Policy Research Brief (2012).
1030
61. J OHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 4-5, 27-29, 31-37,
55-57, 59-60, 76-104, 117-120, 227-28 (1995).
1035
62. J OHN R. SEARLE, MAKING THE SOCIAL WORLD: THE STRUCTURE OF HUMAN
CIVILIZATION 6-16, 84-93, 102-08, 143-44 (2010).
1089
63. Douglas Farrow, Why Fight Same-Sex Marriage?, TOUCHSTONE, J an.Feb.
2012
1121
64. Ross Douthat, Gay Parents and the Marriage Debate, THE NEW YORK TIMES,
J une 11, 2002.
1128
65. INSTITUTE FOR AMERICAN VALUES (BENJ AMIN SCAFIDI, PRINCIPAL
INVESTIGATOR), THE TAXPAYER COSTS OF DIVORCE AND UNWED
CHILDBEARING: FIRST-EVER ESTIMATES FOR THE NATION AND ALL FIFTY
STATES (2008).
1131
66. BEYOND SAME-SEX MARRIAGE: A NEW STRATEGIC VISION FOR ALL OUR
FAMILIES & RELATIONSHIPS (J uly 26, 2006).
1175
67. SHERIF GIRGIS, RYAN T. ANDERSON, AND ROBERT P. GEORGE, WHAT IS
MARRIAGE? MAN AND WOMAN: A DEFENSE 1-2, 6-12, 23-36 (2012).
1202
vi

68. DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 3-4, 11-21, 55, 91-106,
120-25, 171-75, 179-201 (2007).
1227
69. [Reserved]

70. [Reserved]

PART FOUR
CANADIAN AND BRITISH LAW JOURNAL ARTICLES

71. Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage:
Rawls, Political Liberalism, and the Family, 1 BRIT. J . AM. L. STUDIES (Issue
2, Summer/Fall 2012, May 1, 2012).
1291
72. F.C. DeCoste, Courting Leviathan: Limited Government and Social Freedom
in Reference Re Same-Sex Marriage, 42 ALTA. L. REV. 1099 (2005).
1352
73. F.C. Decoste, The Halpern Transformation: Same-Sex Marriage, Civil
Society, and the Limits of Liberal Law, 41 ALTA. L. REV. 619 (2003).
1377
74. Monte Neil Stewart, Judicial Redefinition of Marriage, 21 CAN. J . FAM. L. 11
(2004).
1403

Dated this 11
th
day of October, 2013.

J OHN E. SWALLOW
Utah Attorney General

/s/ Philip S. Lott
Philip S. Lott
Stanford E. Purser
Assistant Utah Attorneys General
Attorneys for Defendants Gary R. Herbert
and John Swallow

CERTIFICATE OF SERVICE
I hereby certify that on the 11
th
day of October, 2013, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system which sent notification of such filing to the
following:
Peggy A. Tomsic tomsic@mgplaw.com
J ames E. Magleby magleby@mgplaw.com
J ennifer Fraser Parrish parrish@mgplaw.com
MAGLEBY & GREENWOOD, P.C.
170 South Main Street, Suite 850
Salt Lake City, UT 84101-3605

vii

Ralph Chamness rchamness@slco.org
Darcy M. Goddard dgoddard@slco.org
Salt Lake County District Attorneys
2001 South State, S3500
Salt Lake City, Utah 84190-1210

/s/ Philip S. Lott


TAB 40

The Sociology of
Georg Siinmel
TRANSLATED, EDITED, AND WITH AN INTRODUCTION BY
Kurt H. Wolff
The Free Press, Glencoe, Illinois
000797
Copyright 1950 by The Free Press. All rights in this book are reserved
and no part thereof may be reprinted without permission from the
copyright owners, except small portions used in connection with a
review or notice of the book in a magazine or newspaper. THE SoCIOL-
OGY OF GEORG SIMMEL has been set in Bodoni and Baskerville types,
printed on Antique Wove paper supplied for this book by the Per-
kins and Squier Company. Composition, printing, and binding by
Knickerbocker Printing Corp., New York. Manufactured in the
United States of America.
DESIGNED BY SIDNEY SOLOMON
000798
128 The Isolated Individual and the Dyad
ture which they feel exists and operates on its own. Yet in all
its purity, this condition is met only rarely even in groups of as
few as three. Likewise, the third element in a relation between
two individuals-the unit which has grown out of the interac-
tion among the two--interferes with the most intimate nature of
the dyad; and this is highly characteristic of its subtler structure.
Indeed, it is so fundamental that even marriages occasionally
succumb to it, namely, when the first child is born. The point
deserves some further elaboration.
7. Monogamous Marriage
The fact that male and female strive after their mutual union
is the foremost example or primordial image of a dualism which
stamps our life-contents generally. It always presses toward
reconciliation, and both success and failure of the reconcilia-
tion reveal this basic dualism only the more clearly. The union
of man and woman is possible, precisely because they are oppo-
sites. As something essentially unattainable, it stands in the way
of the most passionate craving for convergence and fusion. The
fact that, in any real and absolute sense, the "I" can not seize
the ''not-1," is felt nowhere more deeply than here, where their
mutual supplementation and fusion seem to be the very reason
for the opposites to exist at all. Passion seeks to tear down the
borders of the ego and to absorb "I" and "thou" in one another.
But it is not they which become a unit: rather, a new unit
emerges, the child. The parents' nearness, which they can never
attain to the extreme extent they desire but which always must
remain a distance; and, on the other hand, their distance, which
nevertheless to an infinite degree approaches their becoming-
one-this is the peculiar dualistic condition in the form of which
what has become, the child, stands between his creators. Their
varying moods now let one of these two elements play its role,
now the other. Therefore, cold, intrinsically alienated spouses
do not wish a child: it might unify them; and this unifying func-
tion would contrast the more effectively, but the less desirably,
with the parents' overwhelming estrangement. Yet sometimes
it is precisely the very passionate and intimate husband and
wife who do not wish a child: it would separate them; the meta-
000799
Monogamous Marriage 129
physical oneness into which they want to fuse alone with one
another would be taken out of their hands and would confront
them as a distinct, third element, a physical unit, that mediates
between them. But to those who seek immediate unity, media-
tion must appear as separation. Although a bridge connects two
banks, it also makes the distance between them measurable; and
where mediation is superfluous, it is worse than superfluous.
Nevertheless, monogamous marriage does not seem to have
the essential sociological character of the dyad, namely, absence
of a super-personal unit. For, the common experience of bad
marriages between excellent persons and of good marriages be-
tween dubious ones, suggests that marriage, however much it
depends on each of the spouses, may yet have a character not
coinciding with either of them. Each of the two, for instance, may
suffer from confusions, difficulties, and shortcomings, but man-
ages to localize them in himself or herself, as it were, while con-
tributing only the best and purest elements to the marital rela-
tion, which thus is kept free from personal defects. If this is the
case, the defect may still be considered the personal affair of the
spouse. And yet we have the feeling that marriage is something
super-personal, something which is valuable and sacred in itself,
and which lies qeyond whatever un-sacredness each of its ele-
ments may possess. It is a relationship within which either of the
two feels and behaves only with respect to the other. His or her
characteristics, without (of course) ceasing to be such, neverthe-
less receive a coloration, status, and significance that are different
from what they would be if they were completely absorbed by
the ego. For the consciousness of each of them, their relationship
may thus become crystallized as an entity outside of them, an
entity which is more and better (or worse, for that matter) than
he or she is, toward which he has obligations and from which he
receives good or fateful gifts, as if from some objective being.
This rise of the group unit from its structure, which consists
of the mere "I" and "thou," is facilitated, in the case of marriage,
by two circumstances. First, there is its incomparable closeness.
The fact that two fundamentally different beings, man and
woman, form such a close union; that the egoism of each is so
thoroughly suspended, not only in favor of the other, but also
in favor of the general relationship, including the interests and
000800
the honor of the family and, above all, the children-this is
really a miraculous fact. It is grounded in bases of the ego which
rationalistically are inexplicable and which lie beyond its con-
sciousness. It is also expressed in the distinction between the
unit and its elements. That each of them feels the relation to be
something with its own life-forces, merely indicates that it is
incommensurable with the personal, self-contained ego, as we
usually conceive it.
The second point is that this idea is further corroborated by
the super-individual character of marriage forms, which are
socially regulated and historically transmitted. It is impossible
to decide whether the immeasurable differences in the nature
and value of individual marriages are larger or smaller than
are those among individuals. But no matter how great either of
the differences may be, no couple has by itself invented the form
of marriage. Its various forms are valid, rather, within given cul-
ture areas, as relatively fixed forms. In their formal nature, they
are not subject to the arbitrary shadings and fates of individuals.
If we look at the history of marriage, we are struck, for instance,
by the important, always traditional role that is played by third
persons during courtship, in negotiations regarding dowry, and
in the wedding ceremonies proper. They are not always rela-
tives: they include the priest who seals the marital union. This
un-individualized initiation of marriage forcefully symbolizes
its sociologically incomparable structure: in regard to its content
and interest, as well as to its formal organization, this most per-
sonal relation of all is taken over and directed by entirely super-
personal, historical-social authority. This inclusion of traditional
elements profoundly contrasts marriage with friendship and
similar relations, in which individual freedom is permitted much
more play. Marriage, essentially, allows only acceptance or re-
jection, but not modification. It thus evidently favors the feeling
of an objective form, of a super-personal unit. Although each of
the two spouses is confronted by only the other, at least partially
he also feels as he does when confronted by a collectivity; as the
mere bearer of a super-individual structure whose nature and
norms are independent of him, although he is an organic part of
it.
Modern culture seems more and more to individualize the
000801
Monogamous Marriage 131
character of the given marriage, but at the same time to leave
untouched, even in some respects to emphasize, its super-individ-
uality, which is the core of its sociological form. At first glance,
it may appear as if the great number of marriage forms found
in half-cultures and past high-cultures (some of them based on
the choice by the parties to the contract, some on their specific
social positions), reflected an individualization that is at the
service of the individual marriage. Actually, the reverse is true.
Each of these types is profoundly un-individual and socially
pre-determined; and being more minutely articulated, it is
much narrower and tighter than is a very general and pervasive
marriage form, whose more abstract character is bound to leave
greater play to personal differentiation.
Here we encounter a very general sociological uniformity. If
the general is socially defined; if, that is, all relevant situations
are stamped by a pervasive social form, a much greater freedom
of individual behavior and creativity prevails than is true when
social norms are crystallized in a variety of specific forms, while
seemingly paying attention to individual conditions and needs.
In the latter case, there is much more interference with what is
properly individual: the freedom of differentiation is greater
when the lack o( freedom concerns very general and pervasive
features.
9
The uniform character of the modern marriage form
thus certainly leaves more room for individual articulations
than do a larger number of socially pre-determined forms. On
the other hand, it is true that its generality, which suffers no ex-
ception, greatly increases the character of objectivity and au-
tonomous validity that it has in comparison with individual
modifications in which we are interested here.
1
o
9 These correlations are treated in detail in the last chapter. ["The Enlarge-
ment of the Group and the Development of Individuality"; not contained in this
volume.]
10 The peculiar combination of subjective and objective, personal and super-
personal or general elements in marriage is involved in the very process that forms
its basis-physiological pairing. It alone is common to all historically known forms
of marriage, wh1le perhaps no other characteristic can be found without excep-
tions. On the one hand, sexual intercourse is the most intimate and personal
process, but on the other hand, it is absolutely general, absorbing the very per-
sonality in the service of the species and in the universal organic claim of nature.
The psychological secret of this act lies in its double character of being both wholly
personal and wholly impersonal. It explains why it is precisely this act that could
become the basis of the marital relation which, at a higher sociological stage, re-
000802
Something sociologically similar can be seen in the dyad of
business partners. Although the formation and operation of the
business rests, exclusively perhaps, on the cooperation of these
two personalities, nevertheless the subject matter of the coopera-
tion, the business or firm, is an objective structure. Each of the
two has rights and duties toward it that in many respects are not
different from those of any third party. And yet this fact here has
another sociological significance than in the case of marriage.
Because of the objective character of the economic system, busi-
ness is intrinsically separate from the person of the owner,
whether he be one or two, or more persons. The interaction
among the participants has its purpose outside itself, while in
marriage it has it within it. In business, the relationship serves
as the means for obtaining certain objective results; in marriage,
all objective elements are really nothing but means for the sub-
jective relation. It is all the more remarkable that the psychologi-
cal objectivity and autonomy of the group structure, which is not
so essential to other dyads, does exist in marriage, along with
immediate subjectivity.
peats the same duality. But it is in the very relation between marriage and sex
behavior that we find a most peculiar formal complication. For, however impossible
it is to give a positive definition of marriage in view of the historical heterogeneity
of marriage types, it can certainly be said which relation between man and woman
is not marriage--the purely sexual relation. Whatever marriage is, it is always
and everywhere more than sexual intercourse. However divergent the directions
may be in which marnage transcends sexual intercourse, the fact that it transcends
it at all makes marriage what it is. Here is, sociologically speaking, an almost
unique phenomenon: the very point that all marriage forms have in common is the
one which they have to transcend in order to result in marriage. Elsewhere there
seem to be only very distant analogies. Thus all artists, no matter how heterogene-
ous their stylistic and imaginative tendencies may be, must know natural phenom-
ena very minutely, not in order to stay within them, but in order to fulfill their
specific artistic task by going beyond them. In a similar way, all historical and indi-
vidual variations of gastronomic culture must satisfy relevant physiological needs,
but again not to stop there, but to transcend this merely general need satisfaction
by means of the most diverse stimuli. But among sociological formations, marriage
seems to be the only one, or at least the purest, of this type. Here all cases of a
given social form really contain only one common element; but this element is not
sufficient to realize the form. This form emerges, rather, only when something else,
something inevitably individual, which is different from case to case, is added to
the general.
000803

TAB 41

THE VIEW
FROM AFAR
Claude Le,ri-Strauss
I I
TRANSLATED DY
JOACHIM NEUGROSCHEL
A ~ D
PHOEBE HOSS
Basic Books, Inc., Publishers I New York
000804
The Family
household and bear and raise to be a practically
unhersal phenomenon, present in type e>f society.
1 hesc txtreme posuJons suffer from simplicity. We know cases-
r.lre, 11 is trul-when' fo1mily bonds as we conceive of them seem not
tv Amnng the Na>ar, 1\ll imponant large group Jiving on the
t+.Ia!.1l)Jr coJstof India, the men. engrossed 10 \var, could not establish
a fJmilr. A purely symholical ceremony, marriage did not crc:atc per
mancnr ties between spouse!.: the married wuman had as many lovers
ns !.he and the children bclonged to the maternnlline. Family
authority and property rights were exercised not by the ephemeral
hu.,b:tnd a per'>oo-bur the wife's brothers. Since land
wa!. culti\"ated by an inferiur cnste, subservient to the Nayu, a
"oman's brothers were a<> completely free ns her insiguiticant
to de\ otc themselves to militar}' activities.
Bizarre h.wc frequently been misunderstood by being
\icwcd as I he \"estigc of an nr:dlaic sQcial org:tnizatic)u, onct' common
in most societies. llighly spt>dali'l,ed. the NRyor arc the proc:luc:-t of a
lung historical evolution and can teflrh us nothing 1lbou1 the early
of humanity. On the orher hand, there is linle doubt that the
Nayar an extreme form of :1 tendenc-y that is far more fre
qutnt in human societies th<lfl is hcli<wcd.
\\'ith()ut going as f.tr .t5 the Nnyar, some human sntictics rcsnirt the
role ol the mnjugal family. they recognize 11, l.mt only as one pattern
amoug Such is the in Africa, a01ong the Masai and the:
ChaggJ, whose youngest cia:.!' of adult men were dedicated to warlike
lived in rllllitM} settings, and established \'er)' free cmo
tinn:d Jnd "CX!I<tl rcl..1tiom with tht' corrtsponding d:1ss of adult girls.
It" onlr after this .u:ti\c period the men couiJ marry and stan
:l lanuly. In a systt'rll, the conjugal family existed side side \l.'ith
imtituuon.ll promiscuity.
For <hfltrent the same dual pattan prcv:1ilcd among the
Bor6ro and other tribes of central Braz.il, and Rnwng rhc Muria and
other trihes of lnda and Ao;sam. All the known inst;\nces could be
:arranged in a w.ty as to make the Nayar rl.'prcsem the nH>SI
systematic, and )t)gically extreme ,asc. Uut the tendency
th.u 11 llusu att:- mJntfestec.l elsev. hel'e, .md nne sees 11 rcJppc.1r in
cmllryomc form e\'en in modern smehes
Such wa') the (":lSe of N;ttl Gcrm.lll)', where the family unll
bcg1nning 10 '>piJt; on thr (lllC hand, the men <l<:dJcJtcd co politseJI :tnd
milit;try w11rk .tnrl cnjo}'lng a prc'it!J,:C th.u allo)'.l;ed them a wide
lawudc of behJvior: on the other h;Htd, the women," ho.!.c: vocation
000808

TAB 42

A HISTORY OF
MARRIAGE
SYSTEMS
G. Robina Quale
,,
CONTRIBUTIONS IN F'AMILY STUDIES, NUMl3ER 13
ffil GREENWOOD PRESS
New York Westport, Connecticut London
000810
(
CHAPTER 1
Relationships Among Marriage Rules, Kinship
Rules, and Socioeconomic Conditions: A
Hypothesis of the Spiral-like Development of
Marriage Systems
Marriage systems involve the sets of rules used in societies to govern the
establishment, continuance, and dissolution of marriage. These include rules
concerning who may be married and who may not, among both kin and
nonkin. They also include rules concerning the holding and transmission of
property or status. However, to try to understand the actual operation of
a marriage system by looking at it in isolation from its full context is to
behave like a taxonomist rather than like a hunter. The hunter who discerns
a leopard in the forest would err profoundly in rushing to attack without
considering wind direction, sun position, ground conformation, paths of
escape open to the leopard, indications of the presence of other leopards
such as its mate or irs cubs, indications of the presence of other animals the
leopard might be watching for, signals from hunting companions, or indi-
cations of the presence of other human beings. The leopard must be seen,
to be either avoided or attacked. Bur the leopard must then be fully related
to its context, if the hunter is to escape becoming the hunted.
The functioning of a marriage system also needs to be fully related to the
overall economic and political situation within which families and individ-
uals must make their way. That overall situation ought in turn to be looked
at historically, for it is constantly changing from the situation for which the
currently used rules were made. Sometimes that change may seem as violent
as a hurricane. Sorr:etimes it may seem almost glacially slow. But it is never
entirely absent. It is always forcing people to rethink what they should do,
how they should do it, and with whom they should do it.
Marriage is an alliance, before it is anything else. At a minimum, it is an
alliance between the two it brings together. However, in some societies it
may take less of their time and attention than it does in others.
Marriage is usually an alliance between the two families from which those
partners came. Still, it may be less of a preoccupation for those families in
some societies than in others.
000812
(
Marnago: Rults, Ktnship Rules, and So..:ioecouomic Conduions 3
band's relationship with his wife. Still even the Nayar anticipated that the
publicly acknowledged father of a child would take an affectionate interest
in it. When the spec1fic political and social circumstances which had led to
dcernphasizing the husband-father's role changed during the 19th century,
that affectionate interest proved so strong that the whole property-holding,
marriage, and inheritance system was O\'erturned. Both men and women
evidently wanred to be able to treat their spouses as primary partners in
raising the children born to them. They clearly did not want to have men
continue to be torn between their duty to their sisters' children and their
concern fur their own, to the distress of women whose own husbands could
do little to help them if a brother started giving more to a wife'!. children
than to his nieces and nephews.
The Nayar s y ~ t e m stre,sed the role of a woman's eldest living brother,
who remained at home to manage the famtly property, over the role of her
soldier husband (usually a younger son of some other family) who nught
be lost in battle. It may date as far back as the wars that accompanied the
decline of the great Chola empire in southern India in the llth century A.D.
It was certainly well entrenched by the time Europeans reached southern
India at the end of the 15th century, for they soon beg,m w describe it, in
amazed fascination. Its rise 111 an era of frequent and bloody conflict, its
endurance through centuries of continuing strife, and its overturn after the
establishment of an effective peacekeepmg central government all demon-
strate the vital need to look at marriage systems in their larger social and
historical context, if their workings are to be understood in full.
No marriage system develops in isolation from other elements in people's
lives. Among the Nayar the eldest brother who stayed home took all re-
sponsibility for the economic mamtenance of the nonfighring women and
children. That made it possible for the husb.:md to take none, and for most
men to be gone on militar} service most of the tune. lr also made it possiblt'
to accept the legitimacy of marriages between a woman and several hus-
bands, each of whom might spend his military leave m her company, and
each of whom might on his side be wed to sevnal women. In that way he
could go to another of them if the wife he chose to go to first was already
entertaining another of her husbands. However, it took the special circum-
stances of being a hereditary military group to lead to such a marriage
system, and to sustain it. The cultivators who grew the crops on lands the
Nayar aristocracy held from their Brahmin overlords had very difft'rent sets
nf rules for marri <lge, property-holding, and inheritance. So did those Brah-
min overlords, the ones who relted on the Nayar men to fight their wars.
They needed different rules, even though they lived in the same region, at
the same time, as members of the same society, and in the same larger
political and economiC system. As C. J. Fuller makes clear in The Nayars
Tod,zy ( 1976), they were in different politicnl and social circumst.mccs, so
that ro look at either cultivatOr or Nayar or Brahmin in central Kcrala in
000814

TAB 43

310
CHAP"HR 8
levels of education are as5ociated with greater social and sexual liberalism (see
chapter 14) and with greater sexual experimentation (see Kinsey, Pomeroy, and
Martin 1948: Kinsey et al. 1953: and chapter 3 above). Acceptance of nontradi
tiona! sexual behavior is likely to be higher among the more educated. This
may facilitate higher rates of reponing among the better educated. even i f be-
havioral differences across education level:> are negligible. But it seems likely
that both effects occur.
We have already observed some drop-off in heterosexual partners (and rates
of sexual activity) among the more highly educated women (see chapters 3 and
5) On the one hand, more education for women may represent greater gender
nonconfonnity. But it may also represent a higher level of personal resources
(human capital) that can translate tnto more economic and social opportunities,
which would. in tum. increase one's ability to please oneself rather than others.
The fact that younger women (those under forty) report higher levels of same-
gender partners in all three ume periods but do not so clearly repon htgher
levels of same-gender desire may be due to historical changes that affect the
opportunities and nonns for cohorts differentially. In particular, the expectation
and need for wornen to work and the lowenng of barriers to economic success
have had a greater effect on younger women. A more general pattern of
younger women's sexual expenences becoming somewhat more like m.:ns
seems to be enitrgn;g i:-: ni hoth same- and opposite-gender activi!y.
Both the ideology of women's equality and the structural bases for its realiza-
tion have been increasing in the postwar period, but with especially marked
increases since the late 1960s.
The .Ui.xture of Same- and Opposite-Gender Sex Partners
So far we have focused on the existence of any same-gender partners 111
given time periods or the expresswn of sexual interest in people of the same
gender. Many of those who report same-gender sexual experience or tnterest
also have sexual experil'nces with and interest in people of the opposite gender
:?.S wei!. Tables 8.3A and 8.38 show the gender breakdown of sex partners in
various time periods and the distribution of sexual iueni1fication and se>:l!<'l
attraction for men and women.
First, It-t us look at the mixture of genders of sex partners in four di!fercnt
time periods; the past year, the past five years, since age eighteen. and smce
puberty. As would be expected. the longer the time period. the higher the pro-
portion of people who report having had any same-gender partners. However,
the relative proponion of people who have had only same-gender partners
compared to the proportion who have had partners of both genders changes
dramaucally. Whtle the O\erall proportions of men and women :cpo111ng any
same.-gender partners differ. the general pattern of how these are distributed
bet\l.ecn people having only same-gender partners and having partners
1f both genders is quite similar. Beginning with the distribution of partners by
gender m the lasl year, v.e lind that 2.7 percent of the men had a male partner
HOMOSEXUALITY
311
TablelDA
of Same-Gender nnd Oppositt-Gender
Par1ners (percentages)
-
Ps n Pasr 5
Ps 10 Lasr Yea:- Years
Ps Since Age IS
Ps smce Puben
M w M w

w M w
Nc partners
10.5 13.3 5.9 "i.l 38 33 2.
Opposite gender only
86 s 85 4 900 907 9:] 92 5 90 3 94.
Both men and women
.,
3 2. 1 1.4 40 1
5.8 J.
I
Same gender only 10 10 zo .S 9 4
6
Any (%)
Both men a.'ld women
51,6 62.-:J 51.6 89 9 90 7 9-l.'
Same gender only 7-1.7 75 0 48 .t 37 I 18 4 10.1 93 5
Total N
3.491 -1,376 2.224 2.838 3.073 3.853 1.134 1.67l
Par1ncr \anable.. (last year. p;t!ot hvc and smce c1ghtecn) me from combmed GSS and NHSL!
(append!x C. SAQ 2. 4. 7. 5. and 9 cumu!at1vcly l Pa.nr.ers smcr. pubcny ts based on ag1
of iir<r mtercourse and age of lir\t same-gender panner from NHSLS C. l\
:!0 anc! 40)
Table 8.JB
Prevalence of Snual Identity and Sexual Allraction,
by Gender I p.!rcenlJigcsJ
[ Sexual Attracrion' M W.......
Sc.tua.! tdenrity"
M w
----
W
I
' Onh opoos1te gender q3 8 !I'VJ
gender 2 6 SOi
Both genders 6 .S
OJtcr
.3 I
Hcrerosnual
96.9 9S.6
8iscul
8 5
Homosexual
:.o .9 Mostly 'Arne gender . 7 6
Ar.y same-gender sex I%J; Only sam" gender 2.: 3
Roth men and women 28.2 31_5
To1aiN ).731
gender only 71 8 IS2.5

1.'!01 1,732
Frum C. sccron 8, qur;uon 49
'From C, quc,llrms 47 and 48
and 1.3 percent of the women a female partner. Of these, about three out of
four report having only same-gender partners in the past twelve months. while
the other quarter had at one partner of each gender. In the past five years,
-l. i percent of the men and 2.2 percent of the women had at least one same-
gender partner. About half these men had both male and female partners in this
llrnc period. The women are more likely than t.ie men to have had sex with
both men and women than only same-gender partners. Almost two-thirds of
the womc:n reponing a female partner in the pas: five years also repon a male
partner. The proportion of the men with male partners since age eighteen who
report having had only male partners declines to about 20 percent of the total
For women, the comparable figure is about 10 percent. When the time period
000817
312
CHAPTERS
under consideration is extended to all partners since puberty, the proportion of
men with only male partners declines again to I 0 percent of the men with any
male partners.
18
Translated to a prevalence rate for the men as a whole. this
means that, since puberty. under I percent of all men (0.6 percent) have had
sex only with other boys or men and never with a female panner. For women,
the proportion is even smaller. ,\bout 5 percent of the women who have had
female partners since puberty have never had sex with a male partner. This
means that, overall. only 0.2 percent of all women have had sex only with
women.
These findings based on measures of sex partners indicate once again just
how nommtive heterosexuality is in our society. Over a lifetime, the vast major-
ity of people who report sex with others include at least one opposite-gender
partner. On the other hand, we have seen that there is a minority, about 9 per-
cent of men and 4 percent of women, who have sex with someone of their
own gender (see the any sex column in table 8.2). These data also indicate the
importance of the life course in viewing issues such as the gender of sex part-
ners as a dynamic process. Given the relatively low rates of same-gender part-
ners and the small size of our sample. it is not possible to look at questions of
the movement back and forth between panncrs of each gender over time. For
many, no doubt. the pattern of the mixture of panners represents some experi-
mentation early on a.'1d into a fixed choice later. if for no other
reason than the fact that most people have relatively few partners ovcrali lSCe
ch:tpter 5). On the other hand. there arc some people who have had both male
and female partners in the past one to five years. Here again, men and women
also appear to differ. Women are much more likely than men in :my time frame
longer than a year to have had male as well as female partners, given that they
have any same-gender partners.
Let us now tum briefly to the questions of self-identification and sexual
attraction (table 8.38). The questions that we asked are in the present tense
and refer to the respondents' self-assessment at the time of the interview. The
distribution of the responses on sexual identification resembles the distribution
of panners in the past year."' Does this meanlho:st answers to a que5!inn about
sexual orientation reflect a statement about current behavior. or do current be-
havior and orientation express relatively stable outcomes of a developmental
process? In l!ither case, the ratio of reports of a self-identification of homoscx-
28. The measu"" used here fur panners smce pu'brny 1s based solely on the quesnons abou! the
of sex (3fter pubcny) w1th first s:unc and first opp<>s1tegender partner tn the childhood and
adolescence section of tlu: que!tionnaire. This i'roduccs a slightly (,)wer rate. uf samegender pan
ners than the anv Jamgerufer parrnu measure used in fig. ll.l and table 8.2.
29 The maJor difference is that. while ahout tO percent of the Slllllple had no pMtners tn the
past year. pracucatly everyooe gave an answer that dosdf fit into one of the three maJor categones.
homosexual. or btscxual. The distnbution IS cons1stenl with the idea that the non-
'cxually Jctive people had the same dtstnbuuon on sexual tdentuy as the sexually acuve people
HoMosexUAliTY 313
ual to one of bisexual is similar to the ratio of having only same-gender pan-
ncrs to havrng partners of both genders in the past year (between 2: I and 3: I).
Responses to the question about sexual attraction display another interest-
ing difference between men and women. If one looks only at the respondents
who report any sexual attraction to people of their own gender, one finds that.
whereas the men follow a bimodal disuibution, the women's distribution is
monotonic. An equal proportion of men (2.4 percent) report being attracted
only to other men as repon being attracted mostly to women (2.6 percent). The
other categories of same-gender attraction for men, that is. the men who report
equal attr:tction to men and women and the men who report mainly but not
exclusively being attracted to other men, arc much lower. at 0.6 and 0.7 per-
cent, respectively. For the women. the pattem is quite different. The largest
group of women v,.ho report same-gender attraction arc those who report
mostly, but not exclusively, being attracted to men, 2.7 percent. As the degree
of sexual attraction to other women increases, the proportion of women re-
porting it declines. Only 0.3 percent of women report being exclusively at -
tracted to other women. Now compare these rates with the rates of self-
identification (categories of sexual orientation). Slightly more men report be-
ing exclusively atlracted to other men than report considering themselves to be
homosexual (2.4 vs. 2.0 percent), whereas more women consider themselves
to be homosexual than report exclusive same-gender attraction (0.9 vs. 0.3 per-
cent). While ihe numbers here :!."e very small. i1 appears that, whereas two-
thirds of the women who consider themselves to be homosexual report at least
some minimal level of sexual attraction to men. a much smaller minonty of
the men who report attraction to men but none to women do not consider them-
selves to be homosexual. Again, there seem to be somewhat elusive (owing to
small sample sizes) but intriguing differences between the way that !'ame-
gcnder sexuality is experienced by men and women in the United States.
Str Partner.r, Frequency, and Practices
In this section, we retum to some key measures of sexual behavior from
chapters 3 and 5 and compare their prevalence for people who do and do not
report same-gender partners. This is a preliminary analysts based on crude
summaries of means and proportions. We are limited by the fact that the rates
of reporting same-gender sexual behavior are so low and our sample size is
Slllall. In chapters 3 and 4, we have already seen that the distribution of sexual
behaviors is related to a variety of social characteristics. We have also seen that
the distribution of same-gender sexuality is similarly differentiated. Ideally,
one would want to look at the differences between sexual behavior between
same- and opposite-gender couples, taking into account these other social sta-
tuses and contexts. However, we have barely thiny men and women in many
of these categories, the minimum that we have set for computing group esti-
mates. In several cases. there are fewer than thirty women who had same-
000818

TAB 44

CONTEMPORARY
"
MARRIAGE
Comparative Perspectives on a Changing Institution
edited by
Kingsley Davis
in association with
Amyra Grossbard-Shechtman
RUSSELL SAGE FOUNDATION NEW YORK
000819
. ~ .
j - ~
1
!\
~
.
(
7 SIGNIFICANCE OF MARRIAGE IN CONTEMPORARY SOCIETY
sual union," which is widely tolerated but not ordinarily given
official or religious recognition. In some parts of Latin America it
constitutes a majority of all unions. Unlike common-law marriage,
the consensual union, unless recognized by statute, has no legal
standing. To dissolve it, one does not need a divorce. The man is
not required to support the woman or her offspring. The only en-
forcement of family obligations therefore comes from public opin-
ion, which may be sufficient in small communities but not in
cities. Unlike parties to a common-law marriage, a partner in a
consensual union can be married to someone else, in which case
the relationship can be called concubinage or de facto polygamy.
Unions other than full marriage generally lack more than for-
mal recognition and approval. For instance, if a couple openly live
together and establish a division of labor but do not (at least for
the time being) intend to stay permanently togetheJ and have chil-
dren, they are missing three and possibly four of the attributes of
true marriage in Figure I.l. On the other hand, they do share a
common residence, which gives their relation the name "cohabita-
tion." If this trait is also missing, the relationship is harder to
name, but the term liaison perhaps comes the nearest.
Why Sexual Unions?
If this conceptual analysis of marriage and its alternatives is use-
ful. it leads us to the question of why the various kinds of union
exist and why they differ in normative standing. For example, why
is it that all five of the unions named in the stub of Figure 1.1 have
one trait in common, namely, a sexual relationship of some dura-
tion? The answer: this is what we mean by "unions," and it is
unions that we are discussing. But why is it that, of all five types of
union, marriage is the only one entered with full public approval
and ceremonial recognition? The answer is again simple: that is
what is called "marriage." The family is the part of the institu-
tional system through which the creation, nurture, and socializa-
tion of the next generation is mainly accomplished. If these vital
and extremely demanding tasks are to be performed efficiently,
some individuals must be held responsible for them and rewarded
for the effort. The genius of the family system is that, through it,
the society normally holds the biological parents responsible for
000821

TAB 45

000823

2:13-cv-00217 #42

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2:13-cv-00217 #42

Uploaded by

Copyright:

Available Formats

PHILIP S.

You might also like