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PART THREE (Continued)
MATERIALS ON LEGISLATIVE FACTS
62 JOHN R. SEARLE, MAKING THE SOCIAL WORLD: THE STRUCTURE OF
HUMAN CIVILIZATION 6-16, 84-93, 102-08, 143-44 (2010).
2
63 Douglas Farrow, Why Fight Same-Sex Marriage?, TOUCHSTONE, Jan.—Feb. 2012 35
64 Ross Douthat, Gay Parents and the Marriage Debate, THE NEW YORK TIMES, June
11, 2002.
43
65 INSTITUTE FOR AMERICAN VALUES (BENJAMIN SCAFIDI, PRINCIPAL
INVESTIGATOR), THE TAXPAYER COSTS OF DIVORCE AND UNWED
CHILDBEARING: FIRST-EVER ESTIMATES FOR THE NATION AND ALL
FIFTY STATES (2008).
47
66 BEYOND SAME-SEX MARRIAGE: A NEW STRATEGIC VISION FOR ALL OUR
FAMILIES & RELATIONSHIPS (July 26, 2006).
92
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).
120
68 DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 3-4, 11-21, 55, 91-106,
120-25, 171-75, 179-201 (2007).
166
69 [Reserved] 231
70 [Reserved] 232





TAB 62




6 Malcing che Social World
This investigation is historically situated. It is not che son of ching that
could have been undertaken a hundred years ago or even ftfcy years ago. I n
ea.rlier eras, from the seventeenth century until the late twentieth century,
most philosophers in the Western tradition were preoccupied with epistemic
questions. Even questions about language and society were construed as
largely epistemic: How do we know what ocher people mean when they
calk? How do we know chat the statements we make about social reality are
really true? How do we verify them? These are interesting questions, but I
regard them as peripheral. One of the agreeable fearures of writing in the
present era is that we have in large part overcome our three-hundred-year
obsession with epistemology and skepticism. No doubt many interesting
epistemic questions remain, bur in this investigation I will mostly ignore
them.
It is an odd fact of intellectual history that the great philosophers of the past
cenrury had little or nothing to say about social oncology. l am thinking of
such figures as Frege, Russell, and Wittgenstein, as well as Quine, Carnap,
Scrawson, and Austin. But if they did not address the problems that interest
me in this book, they did develop techniques of analysis and approaches to
language that I intend to use. Standing on their shoulders, as well as on my
own earlier work, I am going to try ro look at a terrain they did nor see. And
why is this an appropriate subject for philosophy and not the proper domain
of empirical sciences? Because it rums out char society has a logical ( c o n c e p ~
tual, propositional) structure char admits of, indeed requires, logical analysis.
111 The Conceptual Apparatus
In this section, I will begin by giving a brief summary of most of the basic
conceptual apparatus that I will use in this book. No doubt this will all be
done too swiftly, and to get a full understanding you will have to read the rest
of the book. But I want you to see from the start what I am up to and why
I think it is important.
This work proceeds on the basis of a cenain methodological assumption: at
the very beginning we have to assume that human society, a society that is
importantly different from all other animal societies known to me, is based on
cenain rather simple principles. Indeed, I will argue that its institutional
strucrures are based on exactly one principle. The enormous complexities
of human society are different surface manifestations of an underlying
001091
8 Making the Social World
2. COLLECTIVE INTENTIONALITY
How does the system of status functions work? I will have a great deal more to
say about this later, bur at present, I can say that for the status functions to
aCtually work, there must be collective acceptancwr recognition of the object or
person as having that status. In earlier writings, I tended to emphasize
acceptance, but several commentators, especially Jennifer Hudin, thought
this might imply approval. I did not mean it to imply approval. Acceptance,
as I conscrue ic, goes all the way from enthusiastic endorsement co grudging
acknowledgment, even the acknowledgment that one is simply helpless to do
anything about, or reject, the institutions in which one finds oneself. So in this
book, to avoid this misunderstanding, I will use "recognition" or sometimes
the disjunction "recognition or acceptance." The point is that status functions
can only work to the extent that they are collectively recognized. I want to
emphasiz.e again that "recognition" does not imply "approval." Hatred,
apathy, and even despair are consistent with the recognition of that which
one hates, is apathetic toward, and de.spairs of changing.
StatuS functions depend on collective intentionaliry. In this book I devote a
whole chapter to collective inrentionaliry, so I will not tell you about it now,
except to say that a remarkable fact about human beings and some animals is
that they have the capaciry to cooperate. They can cooperate not only in the
actions that they perform, but they can even have shared attitudes, shared
desires, and shared beliefs. An interesting theoretical question, by no means
resolved by animal psychologists,
3
is, To what extent does collective inten-
tionaliry exist in other species? Bur one thing is dear. It exists in the human
species. It is only in virtue of colleccive recognition that this piece of paper is a
rwenry-dollar bill, that Barack Obama is president of the United Scates, char
I am a citizen of rhe United States, that the Giants beat the Dodgers three co
cwo in eleven innings, and chat the car in the driveway is my properry.
3· DEONTIC POWERS
So far I have claimed that there are status functions that exist in virtue of
collective inrenrionaliry. But why are they so important? Without exception,
the status functions carry what I call "deontic powers." That is, they carry
3. De Waal, Frans, Our bmn- Apt: A Ltading Primntologitt Explains Wiry We Are Who \Ve
Are, New York: Riverhead, 2005; and Call, Joseph, and Michael Tomasello, Primate
Cognition, New York: Oxford Universicy Press, 1997.
001093
The Purpose of This Book 9
rights, duties, obligations, requirements, permissions, authorizations, entitle-
ments, and so on. I introduce the expression "deontic powers" to cover all of
these, both the positive deoncic powers (e.g., when I have a right) and the
negative deontic powers (e.g., when I have an obligation), as well as other
logical permucations such as conditional deontic powers and disjunctive
deontic powers. An example of a conditional deontic power would be my
power to vote in the Democratic primary ifl register as a Democrat. I have the
power to vote, but only conditional on registration. An example of a disjunct-
ive deontic power would be my power to register either as a Democrat or as a
Republican, but not both.
4· DESIRE INDEPENDENT REASONS FOR ACTION
It is because status functions carry deomic powers that they provide the glue
that holds human civilization together. And how do they do chat? Deomic
powers have a unique trait, again, I think, uncommon and perhaps unknown
in the animal Jcingdom: once recognized, they provide us with reasons for
acting that are independent of our inclinations and desires. If I recognize an
object as "your propeny," for example, then I recognize that I am under an
obligation not to take it or use it without your permission. Even ifl am a thief,
I recognjze that I am violating your rights when I appropriate your property.
Indeed, the profession of being a thief would be meaningless without the
belief in the institution of private property, because what the thief hopes to do
is to take somebody else's private property and make it his own, thus
reinforcing his commitment and the society's commitment to the institution
of private property. So statUs functions are the glue that holds society together.
They are created by collective imencionality and they function by carrying
deontic powers. But that raises a very interesting question: how on Earth
could human beings create such a marvelous feature and how do they
maintain it in existence once it is created? I will put off answering chat
question until we get to the discussion in the next section, "Status Functions
as Created by Declarations."
5. CONSTITUTIVE RULES
It is important to distinguish at least rwo kinds of rules. Our favorite examples
of rules regulate antecedently existing furms ofbehavior. For example, the rule
"Drive on the right-hand side of the road" regulates driving in the United
001094
12 Making the Social World
change the world by producing a speech act, the aim of which is to cause a
change. The order is aimed at causing obedience; the promise is aimed at
causing fulfillment. In these cases it is not the aim of the speech act to match
an independently existing reality. Rather, the aim is to change reality so that it
will match the content of the speech act. Ifl promise to come and see you on
Wednesday, the point of the utterance is to bring about a change in reality by
creating a reason for me co come and see you on Wednesday and thus getting
me co keep the promise. If I order you to leave che room, the aim is to cry to
get you co leave the room by way of obeying my order, co get your behavior to
match the content of che speech act. I say of these cases that they have the
world-to-word direction of fit. Their point is co get the world to change to
match the content of the speech act. I represent the upward or world-to-word
direction of fit with an upward arrow T. There are some other speech aces that
I won't go into at present, which don't have either of these directions of fit
but where the fit is taken for granted, such as when I apologize for stepping
on your foot or thank you for giving me a million dollars. But they are
not relevant to our presem inquiry, so I will put off their discussion until
Chapter 4·
There is a fuscinating class of speech acts that combine the word-to-world 1
and the world-to-word i direction of fit, which have both directions of ftt
simultaneously in a single speech act !. These are cases where we change reality
to match the propositional content of the speech act and thus achieve world-
to-word direction of fit. But, and chis is the amazing part, we succeed in so doing
because we represent the reality as being so changed. More than three decades
ago, I baptized these as "Declarations." They change the world by declaring that
a state of affairs exists and thus bringing that state of affairs into existence.
The most famous cases of Declarations are what Austin called "performa-
tive utterances."
6
These are the cases where you make something the case by
explicicly saying that it is the case. Thus you make it the case that you promise
by saying, "I promise." You make it the case that you apologize by saying,
" I apologize." Someone makes it the case that he gives an order by saying, " I
order" or even "I hereby order." These are the purest cases of the Declaration.
One of the primary theoretical points of this book is ro make a very srrong
claim. With the important exception of language itself, all of institutional
real icy, and therefore, in a sense, all of human civilization, is created by speech
6. Austin, John L Hqw to Do Things with Words, Cambridge: Harvard University Press,
1962..
001097
14 Making the Social World
institution to accepting that anybody who satisfies such and such a condition
is the president-elect.
This discussion so far reinforces a p,oiot made in my earlier work, The
Construction of Socia[ Reality, and that is that all of insritULional reality is
created by linguistic representation. You do nor always need actual words of
existing languages, but you need some sorts of symbolic representation for the
institutional fact co exisL As I noted before, there is, however, an interesting
and crucial class of exceptions: linguistic phenomena themselves. Thus, the
existence of a Dedaration is itself an institutional fact and thus a status
function. Bur does it itself require a further Declaration to exist? It does
not. Indeed, if it did, we would have an infinite regress. But now, what is it
about language rhac makes it a system of status functions that is exempt from
the general requirement that all status functions are created by Status Func-
tion Dedaracions? We use semantics to create a realiry that goes beyond
semantics, and semantics to create powers that go beyond semantic powers.
But the linguistic facts, the fact that such and such an utterance counts as a
statement or a promise, are not facts where the semantics goes beyond the
semantics. On the contrary, semantics is sufficient to account for the existence
of the statement or the promise. The semantic content of the speech act by
itself cannot make money or private property, but the semantic content of the
speech act by itself is sufficient to make statemenu, promises, requests, and
questions. The difference is in the nature of the meanings involved, and I will
explain that difference in much further detail in Chapters 4 and 5·
At first sight, it might seem that formulae of the form "X counts as Yin C"
function the same for language as they do for other institutional facts. Thus, it
is indeed the case that an appropriate urrerance of the sentence "Snow is
white" counts as the making of the statement that snow is white, as it is the
case that because he meets certain conditions, Barack Obama counu as the
president of the United States. Bur in spite of this apparent similariry, there is
a huge difference, and it has to do with the nature of meaning. The meaning
of the sentence "Snow is white" by itself is sufficient to guarantee that an
appropriate utterance will constitute the making of a statement to the effect
that snow is white. But the meaning of the sentence "Obama is president" by
itself is in no way sufficient to guarantee that Obama is in fact president. In
the case of the sentence, formulae of the form "X counts as Yin C" describe
the constitution of meaning and not a separate linguistic operation that we
perform. But in the case of nonlinguistic institutional facts, constitutive rules
of the form "X counu as Y in C" describe a lingttistic opmu£on that we
001099
The Purpose of This Book I5
perform by which we create new inscitutional facts, facts whose existence
involves more than just the meaning of the sentences and utterances used to
create them. I will have more to say about this distinction in Chapter 5·
V. How This Book Fits into the Overall Philosophical Project
I work from an overall philosophical vision that I will now summarize so that
the reader can see how each individual claim fits into the overall pattern. The
mind has a beautiful and symmetrical formal structure. By "formal" I just
mean that the structural features of beliefs, desires, perceptions, intentions,
and so on can be specified independencly of any particular contents. Basic to
chat formal structure is the distinction between the "cognitive faculties"-
percepcion, memory, and belief-and the "conative and volitional
cies"- desire, prior intention, and intention-in-action. These rwo sets relate
co realicy in quite different ways. I have already introduced the notion of
direction of fit as a feature of speech acts, but I hope it is obvious that it applies
equally well co menc.al states. Beliefs, like statements, have the downward or
mind {or direction of fit 1. And desires and intentions, like
orders and promises, have the upward or (or word) direction
of fie f. Beliefs and percepcions, like statements, are supposed to represent
how things are in the world, and in that sense they are supposed to fit the
world; they have mind-to-world direction of fir 1. The conative-volitional
states such as desires, prior intentions, and intencions-in-action, like orders
and promises, have the direction of fit j . They are not
supposed to represent how things are but how we would like them to be or
how we intend co make them be. In addicion to these rwo faculties, there is a
third, imagination, where the propositional conrent is not supposed to fit
realicy in the way that the propositional contents in cognition and volition are
supposed to fit, but which nonetheless functions crucially in creating social
and institutional realicy. Imagination, like fiction, has a propositional content.
If, for example, I tcy to imagine what it would have been like to Jive in ancient
Rome, it is a bit like giving a ficrional account of my life in ancient Rome in
chat in neither case am I actually committed to something having occurred to
me in fact. In both imagination and fiction the world-relating commitment is
abandoned and we have a propositional content without any commitment
that it represent with either direction of fit. These topics form the subject
matter of most of the next chapter, and their extension to collective menc.al
001100
Language as Biological and Social 85
affairs. You have the capacity to create states of affairs with a new deontology;
you have the capacity to create rights, duties, and obligations by performing
and getting other people to accept certain sorts of speech acts. Once you and
others recognize someone as a leader, and an object as someone's property,
and a man or a woman as someone with whom you have a special bond, then
you have already created a public deontology. You have already created public
reasons for accion that are desire-independent. But notice how the language
that we use to describe these phenomena functions. It creates them. The
language constitutes them in an important way. Why? Because the phenom-
ena in question are what they are in virtue of being represenred as what they
are. The representariom, which are parrly constitutive of institutional reality,
the reality of government, private properry, and marriage as well as money,
universities, and cocktail parties, is essentially linguistic. Language doesn't ju\t
describe; it creates, and pardy conscirutes, what it both describes and creates.
The maneuver I am describing has che logical form of a Declaration, as I
claimed in Chapter 1. We make something the case by representing it as being
the case. So when I say "That woman is my wife" or "He is our leader" or
"That is my hut," these categorizations contain two levels of meaning. At one
level there is simply a preexisting relationship; but when I describe that
relationship in a certain way, when I say chat the person or object now "counts
as" something more than the exiscing physical factS, I am adding a deontology
to the person or object-and that deontology extends into the future. That
deontology is created by a Status Function Declaration.
Compositionality figures essentially in the creation of social and institu-
tional reality. Given compositional icy, the animal can do much more than just
represent existing states of affairs; it can represent states of affairs that do not
exist buc which can be brought into existence by getcing a community to
accept a certain class of speech aces. So, for example, the man who says, "This
is my property," or the woman who says, "This is my husband" may be doing
more than just reporting an antecedently existing state of affairs; he or she may
be creating a state of affairs by Declaration. A person who can gee other people
to accept this Declaration will succeed in creating an institutional reality that
did not exist prior to that Oeclaracion.
We do not yet have performatives, because they require specific performa-
cive verbs or ocher performative expressions; but we do have Declarations with
their double direction of fit. If I declare, "This is my house," chen I represent
myself as having a right to the house (word-to-world direction of fit) and, if
I get others co accept my representation, then I create that right because the
001103
s
THE GENERAL THEORY OF
INSTITUTIONS AND INSTITUTIONAL
FACTS: lANGUAGE AND SOCIAL REALITY
'
f
l The Sea of Institutional Reality
We live in a sea of human insrirurional Facts. Much of rhis is invisible ro us.
as it is hard for the fish ro see the water in which they swim, so it is hard
for us ro see rhe instirutionality in which we swim. Institutional facts are
without exception constituted by language, but the functioning of language is
hard to see. This might seem an odd thing co say because we are
often conscious of language when we engage in a conversation, receive a
telephone call, pay our bills, answer our e-mail, and so on. "Whac I mean is
chn,t we are noc conscious of the role of language in constituting social reality.
We are aware of such things as the actual conscious speech acts we perform,
:wd we are often aware of such unimportant things as the accents with which
ocher people speak, but the constitutive role o flanguage in the power relations
in whid1 we are immersed is, for the mosc pare, invisible to us.
One of the advantages of living in other cultures is that one can become
more acutely conscious of the different and unfamiliar institutional struc-
tures. But at home one is less aware of the sea of institutionaljry. I get up in
the morning in a house jointly by me and my wift. I dri ve to do my
job on the campus in a car that is registered to both of us, and I can drive
kgally only because I am the holder of a valid California driver's licmst. On
the way, I illegally answer a cell phone call from an old friend. Once I am in
my office the weight of institutional reality increases. I am jn the Philosophy
Department of rhe of California in Berkaey. I am surrounded by
students, colleaguu, and employus. I teach university courus and
90
001108
The General Theory of Institutions and Institutional Facts 93
Il The General Theory of Institutions and Institutional Facts
In this chapter I want co use the materials that we have assembled in the
preceding chapters to construct a general theory of human nonlinguistic social
institutions and institutional facts within those institutions. I have tried, in
Chapter 4, to account for language, and now I want to use chat account to
explain nonlinguistic institutional facts such as money, properry, government,
and marriage.
There is an awkwardness in terminology that I need to clarify. I want to
contrast "linguistic" institutional faces such as the fact that someone stated
that it is raining from "nonlinguistic" institutional faces such as the fact that
Obama is president. But on my own account all arc
created and lingui!t tically constituted and maintained. So it
can be misleading to describe some of them as "nonlinguistic." What I mean
by chat is chat the facts in question go beyond facts about meanings. The
powers of the presidency are created by semantics, but the powers in
question go beyond the powers of semantics. Intuitively there is an obvious
distinction between facts such as that someone made a statement or asked a
question and such facts as that someone is president or has $1,000 in his
bank account. I name the former class "linguistic" and the latter class
"nonlinguistic," but I do not mean to imply that the nonlinguistic are not
linguistically created and maintained. A main aim of this chapter is to
explain exactly how.
From now on, when I say "institutional fact" I mean "nonlinguistic
institutional fact" unless otherwise noted. I want to answer the following
questions: What are the procedures by which we create institutional reality?
\Vhat is the distinction between institutions and institutional facts within
those institutions? What is the distinction between the initial creation and the
subsequent continuation of existence of institutional faces? How is it possible
to create institutional facts without a preexisting institution?
CREATING INSTITUTIONAL FACTS
I said in Chapter 1 that all institutional facts are created by the same logical
operation: the creation of a realiry by represeocing it as existing. The general
form for the creation of status functions is this:
We (or D make it the case by Declaration that theY scarus function ex.ists.
001111
102 Making the Social World
or persons, S, such chat in virtue ofSRY, S has rhe power co perform acts (of
cype) A.
The point of adding this extra clause is to make it clear that we are not just
creati ng Y status functions for their own sake but to assign powers- positive,
negative, conditional, and so on-to actual people by reuuing them to the Y
status fonctions created. These relations can vary with the cype of status
function in question. In the case of the presidency, the person is identical
with the bearer of the Y starus function. In the case of money, the person is the
possessor of the money. In the case of private property, the person empowered
is the owner of the private property. In the case of corporations, specific
persons have specific powers and obligations. So far chen, we have introduced
an operator that creates a status function, and then within the scope of that
operator, we have introduced powers chat attach to the status function. The
next step is to show the form in which the recognition of the status function is
essential to its operation:
We collectively recognize (Y exists inC and because (SRY (S has the power
(S does A)))).
In order for the collective recognition to enable the functioning of the deontic
power, both the existence of the status function and irs relation to S must be
within the scope of the collective recognition.
IV. The Continued Maintenance of Institutional Reality:
More Status Function Declarations
We need both collective intentionality and the assignment of function to enable
these operations to work in acrual societies. Unless che institutional ['lets Jre
collecrivdy recognized or accepted and the participants understand the deontol-
ogy carried by status functions, rhe institutional facts will not lock into human
rationality an :will nor provide reasom for action. For example, unless there is
some form of collective recognition or acceptance of property rights, and unless
the parricipants have the concept of a "right" in the first place, the system of
private property will not work, nor will it even be intelligible.
The actual complexities will introduce special features. For example, you
do not need a separate attitude of recognition or acceptance for institutional
facts within a preexisting institutional structure. If, for example, you accept
001112
The General Theoty oflnstitutions and lnscitucional Facrs 105
V. Further Questions
Now that we have stated the general theory, we need to answer the following
questions:
1. What is the point of doing this? How do we benefit from these
institutions and institutional facts?
2. How do we get away with it? It seems chat we are inventing a reality out
of nothing.
3· How does our account of institutional facts meet our basic requirement,
the requirement that the human reality of institutions and institutional
facts must not only be consistent with the basic structure of the world but
must be a natural outgrowth of that basic structure?
4· Why is language special, and not just one institution among others?
5· What is the special role of written language?
6. If institutional facts have to be believed to exist, in order to exist, chen
how can we discover new and surprising information about them? How
are surprising discoveries in the social sciences possible?
7· What is the logical form of statements about institutional facts, and
how do we account for their apparent lack of extensionality?
8. What is the role of imagination in creating institutional real icy?
I have already answered some of these questions implicitly, but I now want
to make the answers explicit.
QUESTION 1: STATUS FUNCTIONS AND DEONTIC POWERS
Why do . ~ e do this? Why do we create these elaborate institutional structures
such as money, government, property, and universities? There is no single
purpose served by all human institutions, and indeed, institutional reality is
almost as various as human reality itself. But, I have argued, there is a
common element that runs through all (or nearly all) institutions, and that
is that they are enabling structures that increase human power in many
different ways. Think what life would be like if we did not have money,
schools, property rights, and above all, language. Some social theorists have
seen institutional facts as essentially constraining.
5
That is a very big mistake.
5. Durkheim, Emile, The Rules ofSociolcgical Method, George E. G. Catlin (ed.), crans.
Sarah A. Solovay and John M. Mueller, Glencoe, ll: Free Press, 1938.
001115





TAB 63




Touchstone, Jan/Feb 2012
http://www.touchstonemag.com/archives/print.php?id=25-01-024-f
Why Fight Same-Sex Marriage? (excerpt)
Is There Really That Much at Stake?
by Douglas Farrow
Why fight same-sex marriage? …
Moreover, it is perfectly plain to anyone following the fight closely that same-sex marriage is
merely a proximate goal -- something to be abandoned as quickly as it was invented, when its
work is done. Can it really be worth fighting then?
The answer is yes, for reasons that become clear when we have taken account of the work it is
meant to do. And what is that work? Positively, to normalize homosexual relationships.
Negatively, to de-normalize heterosexual monogamy. (Those who claim that they want
homosexual relationships to be more like monogamous heterosexual relationships may or may
not be sincere, but they represent no significant constituency.)
Now, some think that this larger project can be left to market forces. But others think that
heterosexual monogamy, as the source of widespread discrimination against alternative
sexualities and lifestyles, must be repudiated as a social standard. Same-sex marriage is the tool
of choice for doing that. By redefining marriage as a union of two (or more) persons, rather than
as the union of one man and one woman, the offending norm is removed from the body politic
with a single incision. Afterwards, a wider assault on homophobia and heterosexism can follow.
Double-Edged Knife
Tools need to be crafted, of course, and social debates carefully framed. That has already been
done with remarkable skill. The knife that is poised to remove the traditional definition of
marriage from America has been honed at both edges.
The one edge is shaped by an appeal to our best instincts -- the love of liberty, and of liberty in
love. This is the emotive edge, flashing with winsome pictures of same-sex families and
disturbing anecdotes about marginalization. It also plays on feelings of repression and guilt. As
one young woman (quoted in an Associated Press story) put it: “They love and they have the
right to love. And we can’t tell somebody how to love.”
The other edge is the harder, more rational edge, shaped by an appeal to autonomy and equality.
Not content with the anecdotal, it drives home the case for rights -- rights not merely to love as
one sees fit but to equal recognition of that love by the state. Hence also to recognition of the
001121
wrong, both morally and constitutionally, of the traditional definition of marriage that privileges
the heterosexual norm.
In America, this knife was first wielded in Massachusetts by the 2003 Goodridge court, which
concluded as follows:
Barred access to the protections, benefits, and obligations of civil marriage, a person who enters
into an intimate, exclusive union with another of the same sex is arbitrarily deprived of
membership in one of our community’s most rewarding and cherished institutions. That
exclusion is incompatible with the constitutional principles of respect for individual autonomy
and equality under law.
Massachusetts later sued the federal government for attempting, through the Defense of Marriage
Act (DOMA), to enshrine in law the status quo ante. The suit claimed that “in enacting DOMA
Congress overstepped its authority, undermined states’ efforts to recognize marriages between
same-sex couples, and codified an animus towards gay and lesbian people.” Not wishing to be
implicated in that animus, the White House has declined to defend DOMA, the fate of which has
yet to be decided. If DOMA fails, same-sex marriage will succeed in the courts of state after
state, and with it the de jure normalization and denormalization of which we have spoken.
The Bonds of Marriage
Alarmed about all of this, various champions have sprung to the defense of marriage, which they
are now reduced (in a concession I regard as a mistake) to calling “traditional” or “historic”
marriage. Over the past decade or so, they have tried to re-frame the debate by highlighting the
abiding contributions of that institution, while avoiding as far as possible the appearance of
animus against homosexuals.
Those contributions are manifold, and a good deal of emphasis has rightly been placed on the
positive social and economic outcomes that marriage continues to produce in contemporary
society. But at the center -- indispensable to the rest -- is the service marriage does to the bond
between a child and its natural parents. “Sex makes babies, and babies need a mother and a
father,” as Maggie Gallagher (an indefatigable champion) likes to say. Marriage is designed to
make it more likely that children will have and keep their parents.
Same-sex marriage proponents, for their part, are forced to set aside this concern. On their view,
the parent-child bond lies beyond the immediate purview of marriage, as does the particular
sexual act that produces children. Marriage is simply the formalization of an intimate
relationship between adults. If those adults happen to produce or obtain children, well, that is
another matter. Moreover, their bond with those children does not require any particular family
structure to support it; good outcomes can be had from diverse family structures.
The debate about what constitutes a family, and about outcomes for children, is an increasingly
lively one. It is largely driven, however, by the normalization/de-normalization agenda that
underlies same-sex marriage. The irony of this can hardly be missed. For same-sex marriage, as
courts in North America have made clear, is predicated on a denial of procreation or child-
001122
rearing as a definitive interest. Marriage is about adult bonding, and adult bonding is all there is
to marriage.
The champions of marriage respond that they are very much in favor of adult bonding, which the
institution is indeed meant to serve. That bonding, though good in itself, is for a purpose beyond
itself, however. It is for a purpose of public as well as private interest, the purpose of procreation
and child-rearing. It is not necessary, they point out, to hold that procreation constitutes the only
good of marriage in order to recognize that procreation is an essential good of marriage. Nor, for
that matter, is it necessary to hold that a childless marriage is not a marriage, at least where the
childlessness is not deliberate -- a matter rightly shielded from public scrutiny. But they insist
that to exclude procreation as an essential or defining good makes nonsense of marriage.
Divine & Human Rights
Surely that is correct. The third-century Roman jurist, Modestinus, captured the common
understanding of marriage with the following definition: “Marriage is the union of a man and a
woman, a consortium for the whole of life involving the communication of divine and human
rights.” This union and these rights exist, not merely for their own sake, but also and especially
for the sake of the inter-generational concerns of progeny and property; with a view, that is, to
the conditions necessary for the founding and flourishing of the family. The rights involved are
divine as well as human because marriage is generative, and hence pre- as well as pro-political;
because what is founded through marriage is, in the twentieth-century language of the Universal
Declaration of Human Rights, “the natural and fundamental group unit of society.”
The same elements that found expression in Modestinus perdured and prospered in the
Augustinian understanding of marriage as an institution entailing, not one, but three interwoven
goods: proles, fides, et sacramentum -- procreation or fruitfulness, loyalty or faithfulness, and
bonding or sacred union. That societies shaped by this understanding took the unusual step of
making marriage monogamous testifies to the seriousness with which each of these goods was
regarded, precisely in its service to the others. It was by developing them in their mutuality,
moreover, that heterosexual monogamy (to use the language of its detractors) created the
conditions for the new and deeper respect for women and for children that until recently has
characterized the West.
But marriage for some time has been under feminist attack for its putative institutionalization, in
the name of divine rights, of oppressive patriarchal tendencies. This attack – coordinated, as it
now is, with a Rawlsian assault on religious or comprehensive doctrines in the public sphere --
has helped create a very different set of conditions, the conditions necessary for the advent of
same-sex marriage. And same-sex marriage, by eliminating the first good (proles), has begun to
unravel the whole fabric of marriage, setting up something else in its place: an institution not
intrinsically connected to the family, or at all events not connected to the natural family. The
divine and human rights belonging to marriage are thus beginning to disappear, as I want now to
make clear.
A Society Very Small
001123
“Everyone has the right to marry and to found a family,” says the Universal Declaration, and the
family thus founded “is entitled to protection by society and the State.”
Parenthetically, we should observe that “everyone” really does mean everyone, though of course
not everyone wills to marry or is able to do so. It is ludicrous, then, to propose that same-sex
marriage expands the pool of those who have a right to marry. It does no such thing, since
everyone already has that right. As I pointed out some time ago in Divorcing Marriage, only if
marriage is redefined as a union of persons, rather than the union of a man and a woman, is it
possible to argue that homosexuals have been “barred access” to marriage—which evokes the
question, why change the definition?
It does no such thing, moreover, since what same-sex marriage offers, which has naught to do
with founding a family, is indeed something other than marriage, as Girgis, George, and
Anderson ably showed in their article, “What Is Marriage?” in the Harvard Journal of Law and
Public Policy (2010). Same-sex marriage is simply a variant of what Elizabeth Brake calls “adult
care networks,” which can be made available in virtually any size or shape (“Minimal Marriage,”
Ethics, 2010).
Pace Brake, we should observe also that when a family of some description is founded by a
same-sex couple, it is always founded by violating the natural parent-child bond that marriage is
intended to nurture and protect. It deprives the child, whether in the same way that divorce does
or in some more innovative technological way, of its prima facie right to its own father and
mother. But we should notice something else as well, and not merely parenthetically --
something too little noticed either by the detractors or by the champions of marriage. Same-sex
marriage violates the natural parent-child bond in every family, and the right of the family to
protection by society and the state.
How so?
In Rerum Novarum Pope Leo XIII rightly described the family as “a society very small . . . but
none the less a true society, and one older than any State,” with “rights and duties peculiar to
itself which are quite independent of the State.” This society, “founded more immediately in
nature,” is what the Universal Declaration has in mind when it speaks in article 16 of the family.
The family’s status as “natural” -- that controversial adjective is deployed only in this one
specific article -- allows it a certain priority over civil society and the state. The latter share an
obligation to protect the family, but the family is not at their disposal.
Same-sex marriage dispenses with all of that, however. By excising sexual difference, with its
generative power, it deprives itself of any direct connection to nature. The unit it creates rests on
human choice, as does that created by marriage. But whether monogamous, polygamous, or
polyamorous, it is a closed unit that reduces to human choice, rather than engaging choice with
nature; and its lack of a generative dimension means that it cannot be construed as a fundamental
building block.
Institutionally, then, it is nothing more than a legal construct. Its roots run no deeper than
positive law. It therefore cannot present itself to the state as the bearer of independent rights and
001124
responsibilities, as older or more basic than the state itself. Indeed, it is a creature of the state,
generated by the state’s assumption of the power of invention or re-definition. Which changes
everything.
A Tool of the State
Six years ago, when same-sex marriage became law in Canada, the new legislation quietly
acknowledged this. In its consequential amendments section, Bill C-38 struck out the language
of “natural parent,” “blood relationship,” etc., from all Canadian laws. Wherever they were
found, these expressions were replaced with “legal parent,” “legal relationship,” and so forth.
That was strictly necessary. “Marriage” was now a legal fiction, a tool of the state, not a natural
and pre-political institution recognized and in certain respects (age, consanguinity, consent,
exclusivity) regulated by the state. And the state’s goal, as directed by its courts, was to assure
absolute equality for same-sex couples. The problem? Same-sex couples could be parents, but
not parents of common children. Granting them adoption rights could not fully address the
difference. Where natural equality was impossible, however, formal or legal equality was
required. To achieve it, “heterosexual marriages” had to be conformed in law to “homosexual
marriages.” The latter produced non-reproductive units, constituted not by nature but by law; the
former had therefore to be put on the same footing, and were.
The aim of such legislation, as F. C. DeCoste has observed in “Courting Leviathan” (Alberta
Law Review, 2005),
is to de-naturalize the family by rendering familial relationships, in their entirety, expressions of
law. But relationships of that sort -- bled as they are of the stuff of social tradition and experience
-- are no longer family relationships at all. They are rather policy relationships, defined and
imposed by the state.
Here we have what is perhaps the most pressing reason why same-sex marriage should be
fought, and fought vigorously. It is a reason that neither the proponents nor the opponents of
same-sex marriage have properly debated or thought through. In attacking “heterosexual
monogamy,” same-sex marriage does away with the very institution -- the only institution we
have -- that exists precisely in order to support the natural family and to affirm its independence
from the state. In doing so, it effectively makes every citizen a ward of the state, by turning his or
her most fundamental human connections into legal constructs at the state’s gift and disposal.
In Nation of Bastards I have tried to provide a larger account of this, and to show how it leaves
the parent-child relation open to increasing intervention by the state. The current cover for that
intervention is the notion of children’s rights -- meaning, far too often, the right of the child to
whatever it is that the state, acting on behalf of adults other than its parents, wants it to have: a
good education in state ideology, for example, which these days includes “diversity training” in
“alternative family structures.”
That should surprise no one, for if marriage is not procreative, it is not educative either. Where is
the educative authority to be transferred, if not to the state, whose pater familias power increases
001125
as the rights and freedoms of the natural family diminish? And what will the state do with its
newfound power, if not use it to undermine further the sphere of the family, and the sphere of the
church or religious community as well -- the two spheres where “divine and human rights”
independent of the state are located?
Accelerated Unraveling
I spoke of an unraveling. Those who point to places like Canada as counter-evidence -- gleefully
observing, in their own preferred metaphor, that the sky has not yet fallen in jurisdictions with
same-sex marriage -- either take others for fools or make fools of themselves. With an institution
as basic as marriage, one must think in terms of centuries, not mere months or years.
There are, however, signs of a certain acceleration. It took some two hundred years for J eremy
Bentham’s essay on pederasty, which first proposed that objections to homosexual acts were
rooted “only in prejudice,” to find political expression in the demand for same-sex marriage. (Is
it not Bentham’s voice that we hear in the charge that DOMA “codifies an animus towards gays
and lesbians”?) It has not taken long at all for activists in this tradition, aided by a development
we will touch on later, to produce the still more radical Yogyakarta agenda, which they are
presently trying to entrench at the United Nations and impose on states worldwide.
The Yogyakarta Principles on the Application of International Human Rights Law in Relation to
Sexual Orientation and Gender Identity was crafted in 2006 as a master plan for the next phase
of the war on heterosexual monogamy. The document dispenses, as does same-sex marriage
legislation, with the binary logic of male and female that has hitherto governed human society. It
presupposes instead the very different binary of homosexual and heterosexual orientation -- a
binary that can more easily be cracked and broken down into a kaleidoscope of gender identities.
It then reads into a long list of human rights, including the right to found a family and the right to
education, a warrant, or rather a demand, for the protection and promotion of the interests of
“people of all sexual orientations and gender identities” (emphasis added).
What this means in practice is an all-out assault, in every sector of society, on heterosexism or
heteronormativity; that is, on anything that seems to privilege the male-female binary or the
nuclear family. Here in Quebec there is even a government white paper mapping out the strategy
for la lutte contre l’homophobie et l’heterosexisme. Same-sex marriage, it says, served to
“consecrate” the legal equality of same- and opposite-sex couples; it is time now to press on to
full social equality by eradicating all forms of heterosexist bias. The commandments imperiously
delivered to the nations at Yogyakarta, by a self-declared panel of experts, thus find local
expression in a policy replete with warnings about “systemic investigations” of infractions and
“rigorous monitoring and assessment mechanisms.”
There is, then, a further vital reason why same-sex marriage must be vigorously contested,
namely, that no peace is to be had by capitulation. Like it or not, the great struggle is under way.
Marriage, if you please, is the Sudetenland, and its concession is the precursor to a cultural
Blitzkrieg.
….
001126
Douglas Farrow is Professor of Christian Thought at McGill University in Montreal. His most
recent book is Ascension Theology (T&T Clark, 2011).

001127





TAB 64




Gay Parents and the Marriage Debate - NYTimes.com

Ross Douthat
F:VAl.UATIONS
JUNE 11, 2012, 12:06 PM
Gay Parents and the Marriage Debate
Page 1 of3
Slate is out with two pieces today on an attention-getting new study that looks at adult
outcomes for children raised by parents in same-sex relationships - one by the study's
author, the University of Texas sociologist Mark Regnerus (who co-authored the excellent
survey "Premarital Sex in America"), and a response by Will Saletan that tries to tease out
some of the study's implications for the gay marriage debate. The background to the
study is the striking fact that even as traditional marriage has declined in the United
States- marriage rates tumbling, out-of-wedlock childbirth climbing, and cohabitation
becoming as respectable as wedlock- the evidence has mounted for the institution's
importance to the well-being of children. A happy childhood is possible in many different
environments, of course. But a growing body of research indicates that no other parental
arrangement, from single motherhood to cohabitation to shared custody, affords as many
social, economic and emotional advantages as being raised by two biological parents
joined in a lifelong commitment. (Isabel Sawhill from the Brookings Institution and Kay
Hymowitz from the Manhattan Institute have both had good recent pieces elaborating on
some of these themes.)
As the cause of same-sex marriage has advanced, however, a number of shtdies have
suggested that gay parenting may be an exception to this rule, and that the outcomes of
children raised by homosexual couples may be identical to children raised by married
biological parents. Identical, or even better: One high-profile recent shtdy marshaled
evidence that children oflesbian households, in particular, may have advantages over the
children of straight couples.
Many of these studies, though, compared relatively small and self-selected samples of gay
couples to a larger range of heterosexuals. Many relied on the parents' own assessments
of their children's well-being; few followed the children into adulthood. (Another just-
published paper surveys some of the limits of the prior research.) This is where
Regnerus's study comes in: It's more comprehensive than many of its predecessors,
drawing on a large survey of Americans between the ages of 18-39 and comparing young
adults who reported having a parent in a same-sex relationship to young adults who grew
up in other family structures (married, single-parent, step-parents, etc.).
For this population, Regnerus's findings basically confirm the two-parent biological
family's advantages. Across a range of variables, from mental health to material
prosperity, intact heterosexual households showed different and generally better long-
httn://douthat.hloQ!':.nvtime!':_com/2012/0n/11 /pav-narents-ancl-the-marri:::tP"e-cleh:::tte/?miP"e... 10/11 /?01?
001128
Gay Parents and the Marriage Debate - NYTimes.com Page 2 of3
term outcomes for children than other family structures - gay parents included. (These
differences were actually larger with lesbian mothers than with gay fathers, though this
may reflect the fact that children with dads in gay relationships were less likely to be
living with them.) The same patterns held, too, when the study controlled for particular
challenges facing children from same-sex households, like whether they faced bullying
and lived in a more conservative part of the country. Children do not "need a manied
mother and father to h1rn out well as adults," Regne1us cautions. But neither does there
appear to be a gay and lesbian exception to the general pattern that "children appear
most apt to succeed well as adults when they spend their entire childhood with their
married mother and father."
Or at least, there wasn't such an exception in the recent past. Because it focuses on adult
outcomes, Regnerus's study is necessarily a look backward. No matter where they lived or
how they were treated by their peers, many of his subjects came of age when
homosexuality was still marginalized and despised and gay marriage barely on the radar
screen. The majority were born to male-female couples in which one partner later came
out as gay (adding an extra layer of complexity and heartbreak), rather than being
planned via adoption, sperm donation or in vitro fertilization. Almost none were raised in
a single same-sex household for their entire childhood. Today the models of gay
parenting have presumably shifted, the stability of gay households has presumably
increased, and the outcomes for children may be shifting as well.
For the purposes of the gay marriage debate, then, any past disadvantages associated
with being raised in same-sex households could easily be cited as evidence for why gay
couples need full marriage rights now - the better to guarantee their children, existing or
potential, the stability and continuity the institution provides. If a similar sh1dy a
generation hence shows significant convergence between children raised in married same
-sex households and children in intact biological families, it would vindicate one part of
the case for same-sex marriage.
This is basically the argument that Saletan makes in his remarks:
What the study shows, then, is that kids from broken homes headed by gay
people develop the same problems as kids from broken homes headed by
straight people. But that finding isn't meaningless. It tells us something
important: We need fewer broken homes among gays, just as we do among
straights. We need to study Regnerus' sample and fix the mistakes we made
20 or 40 years ago. No more sham heterosexual marriages. No more post-
parenthood self-discoveries. No more deceptions. No more affairs. And no
more polarization between homosexuality and marriage. Gay parents owe
their kids the same stability as straight parents. That means less talk about
marriage as a right, and more about marriage as an expectation.
httn://douthat.b]oQs.nvtimes.com/2012/0n/11 10/11 /?01?
001129
Gay Parents and the Marriage Debate - NYTimes.com Page 3 of3
To the extent that Regnerus's findings make a case for skepticism about gay marriage, on
the other hand, it's mostly a case for federalism and patience. Same-sex marriage is a
social experiment, and like most experiments it will take time to understand its
consequences. We don't know how relationship norms and expectations \vill evolve in the
gay community - where the ongoing Dan Savage-style debates about monogamy and
fidelity will lead, for instance, or how closely same-sex marriage will be associated \-vith
childrearing. We don't know how plausible Saletan's vision of wedlock and parenting
running on parallel tracks for gays and straights really is. And the near-universal liberal
optimism on the subject notwithstanding, we don't really know how straight culture \vill
be influenced on the long run by the final, formal severing of marriage from procreation.
If gay marriage gains ground on its current trajectory- state by state, steadily but still
somewhat gradually, driven mostly by generational change - then there ·will be time to
watch these trends and debate their implications. But if the Supreme Court (that is,
Anthony Kennedy) simple nationalizes gay marriage, there v.rill be no room for debate
and no chance for any reconsiderations.
If gay marriage is simply a basic natural right, of course - the formal legal expression of
our right to love as we wish - it shouldn't be up for reconsideration under any
circumstances. This is a widespread view of wedlock, and it may already be the dominant
one. But RegnenlS's study is a reminder of why marriage has traditionally been regarded
as something other than just a celebration oflove and a signifier of civic equality, and
why the rationale for the institution has involved a child's rights to his or her biological
parents as well as in two lovers' rights to one another. Marriage's purpose, in this sense,
has not been just to validate the consenting adults who enter into it, but to provide
support and recognition for a particular way of bearing and rearing children- one whose
distinctive advantages remain apparent, even as that recognition declines and disappears.
Copyright 2012 The New York Times Company I Privacy Policy I NYTimes.com 620 Eighth Avenue New York, NY 10018
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001130





TAB 65




On the cover: Man and Woman Splitting Dollar by
Todd Davidson, Stock Illustration RF, Getty
Images.
© 2008, Georgia Family Council and Institute for
American Values. No reproduction of the materi-
als contained herein is permitted without the
written permission of the Institute for American
Values.
ISBN: 1-931764-14-X
Institute for American Values
1841 Broadway, Suite 211
New York, New York 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
Website: www.americanvalues.org
Email: info@americanvalues.org
M
OST OF THE PUBLIC DEBATE over marriage focuses on the role of marriage as
a social, moral, or religious institution. But marriage is also an economic
institution, a powerful creator of human and social capital. Increases in
divorce and unwed childbearing have broad economic implications, including
larger expenditures for the federal and state governments. This is the first-ever
report that attempts to measure the taxpayer costs of family fragmentation for
U.S. taxpayers in all fifty states. Among its findings: Even programs that result in
very small decreases in divorce and unwed childbearing could yield big savings
for taxpayers.
The report’s principal investigator is Benjamin Scafidi, an economist in the
J. Whitney Bunting School of Business at Georgia College & State University. The
co-sponsoring organizations are the Institute for American Values, the Institute for
Marriage and Public Policy, Georgia Family Council, and Families Northwest.
The co-sponsoring organizations are grateful to Chuck Stetson and Mr. and Mrs.
John Fetz for their generous financial support of the project. The principal investi-
gator is grateful to Deanie Waddell for her expert research assistance.
001132
Page 4
Project Advisors
Project advisors provided expert review but are not authors of the report. Affiliations
are listed for identification purposes only. Any errors or omissions in this report are
the responsibility of the principal investigator and not of the project advisors.
James Alm
Andrew Young School of Policy Studies at Georgia State University
Obie Clayton
Morehouse College
Ron Haskins
The Brookings Institution
Brett Katzman
Kennesaw State University
Robert Lerman
Urban Institute
Theodora Ooms
Center for Law and Social Policy
Roger Tutterow
Mercer University
Matt Weidinger
U.S. House Ways and Means Committee
W. Bradford Wilcox
University of Virginia
About Benjamin Scafidi
Ben Scafidi is an associate professor in the J. Whitney Bunting School of Business
at Georgia College & State University. His research has focused on education and
urban policy. Previously he served as the Education Policy Advisor for Georgia
Governor Sonny Perdue and served on the staff of both of Georgia Governor Roy
Barnes’ Education Reform Study Commissions. He received his Ph.D. in Economics
from the University of Virginia and his bachelor’s degree in Economics from the
University of Notre Dame. Ben was born and raised in Richmond, Virginia. Ben and
Lori Scafidi and their four children reside in Milledgeville, Georgia.
001134
Page 5
Executive Summary
T
HIS STUDY PROVIDES THE FIRST RIGOROUS ESTIMATE of the costs to U.S. taxpayers
of high rates of divorce and unmarried childbearing both at the national and
state levels.
Why should legislators and policymakers care about marriage? Public debate on
marriage in this country has focused on the “social costs” of family fragmentation
(that is, divorce and unwed childbearing), and research suggests that these are
indeed extensive. But marriage is more than a moral or social institution; it is also
an economic one, a generator of social and human capital, especially when it
comes to children.
Research on family structure suggests a variety of mechanisms, or processes,
through which marriage may reduce the need for costly social programs. In this
study, we adopt the simplifying and extremely cautious assumption that all of the
taxpayer costs of divorce and unmarried childbearing stem from the effects that
family fragmentation has on poverty, a causal mechanism that is well-accepted and
has been reasonably well-quantified in the literature.
Based on the methodology, we estimate that family fragmentation costs U.S. tax-
payers at least $112 billion each and every year, or more than $1 trillion each
decade. In appendix B, we also offer estimates for the costs of family fragmenta-
tion for each state.
These costs arise from increased taxpayer expenditures for antipoverty, criminal jus-
tice, and education programs, and through lower levels of taxes paid by individuals
who, as adults, earn less because of reduced opportunities as a result of having been
more likely to grow up in poverty.
The $112 billion figure represents a “lower-bound” or minimum estimate. Given the
cautious assumptions used throughout this analysis, we can be confident that cur-
rent high rates of family fragmentation cost taxpayers at least $112 billion per year.
The estimate of $112 billion per year is the total figure incurred at the federal, state,
and local levels. Of these taxpayer costs, $70.1 billion are at the federal level, $33.3
billion are at the state level, and $8.5 billion are at the local level. Taxpayers in
California incur the highest state and local costs at $4.8 billion, while taxpayers in
Wyoming have the lowest state and local costs at $61 million.
If, as research suggests is likely, marriage has additional benefits to children, adults,
and communities, and if those benefits are in areas other than increased income lev-
els, then the actual taxpayer costs of divorce and unwed childbearing are likely
much higher.
001135
Page 6
How should policymakers, state legislators, and others respond to the large taxpayer
costs of family fragmentation? We note that even very small increases in stable mar-
riage rates as a result of government programs or community efforts to strengthen
marriage would result in very large savings for taxpayers. If the federal marriage
initiative, for example, succeeds in reducing family fragmentation by just 1 percent,
U.S. taxpayers will save an estimated $1.1 billion each and every year.
Because of the modest price tags associated with most federal and state marriage-
strengthening programs, and the large taxpayer costs associated with divorce and
unwed childbearing, even modest success rates would be cost-effective. Texas, for
example, recently appropriated $15 million over two years for marriage education
and other programs to increase stable marriage rates. If this program succeeds in
increasing stably married families by just three-tenths of 1 percent, it will be cost-
effective in its returns to Texas taxpayers.
This report is organized as follows: Section I explains why policymakers may have
an interest in supporting marriage. Sections II and III explain the methods used to
estimate the taxpayer cost of family fragmentation by using evidence about the rela-
tionship between family breakdown and poverty. Section IV reveals the national
estimate of the taxpayer cost. Estimated costs for individual states are found in
appendix B.
Finally, a note to social scientists: Few structural estimates exist of the relationships
needed to estimate the taxpayer costs of family fragmentation. Therefore, we have
used indirect estimates based on the assumption that marriage has no independent
effects on adults or children other than the effect of marriage on poverty.
001136
Page 8
But marriage is more than a moral or even social institution; it is also an economic
one, a generator of social and human capital, especially when it comes to children.
Not much attention has been focused to date on the hard, economic costs of family
fragmentation, by which we mean not only the economic costs to affected individ-
uals and families but also to the public purse.
There are good reasons for suspecting that taxpayer costs associated with family
fragmentation are substantial: To the extent that the decline of marriage increases
the number of children and adults eligible for and in need of government services,
costs to taxpayers will grow. To the extent that increases in family fragmentation
also independently drive social problems faced by communities—such as crime,
domestic violence, substance abuse, and teen pregnancy—the costs to taxpayers of
addressing these increasing social problems are also likely to be significant. Pointing
out these concerns is not to “blame the victim,” but rather to launch a serious effort
to determine what these costs are. If these costs are deemed substantial, then it is
worth thinking carefully about how these costs can be lowered so that resources
can be freed for other useful purposes.
In 2000, a group of more than one hundred family scholars and civic leaders noted
the range of public costs associated with family breakdown, concluding:
Divorce and unwed childbearing create substantial public costs, paid by tax-
payers. Higher rates of crime, drug abuse, education failure, chronic illness,
child abuse, domestic violence, and poverty among both adults and children
bring with them higher taxpayer costs in diverse forms: more welfare expen-
diture; increased remedial and special education expenses; higher day-care
subsidies; additional child-support collection costs; a range of increased direct
court administration costs incurred in regulating post-divorce or unwed fami-
lies; higher foster care and child protection services; increased Medicaid and
Medicare costs; increasingly expensive and harsh crime-control measures to
compensate for formerly private regulation of adolescent and young-adult
behaviors; and many other similar costs.
While no study has yet attempted precisely to measure these sweeping and
diverse taxpayer costs stemming from the decline of marriage, current research
suggests that these costs are likely to be quite extensive.
5
In response to public concerns about the negative consequences of divorce and
unmarried childbearing for child well-being, the federal government and many
states have modestly funded programs aimed at strengthening marriage.
Since the mid-1990s, at least nine states have publicly adopted a goal of strength-
ening marriage, and seven states have dedicated funding (often using a very small
001138
Page 9
portion of their federal TANF, or welfare, funds) to various programs designed to
strengthen marriage.
6
For example, Oklahoma offers marriage skills classes throughout the state, provid-
ing the courses at no charge to low-income participants. In 2007, Texas legislators
mandated that a minimum of 1 percent of the federal TANF block grant to the state
be spent on marriage promotion activities, providing an estimated $15 million per
year for two years.
7
In addition to the TANF block grants, the Deficit Reduction Act of 2005 provided an
additional $150 million annually for a Healthy Marriage and Responsible
Fatherhood Program, administered by the Administration for Children and Families
of the Department of Health and Human Services. These monies were specifically
allocated for programs designed to help couples form and sustain healthy marriage
relationships, with up to $50 million available for responsible fatherhood promo-
tion.
8
Overall, less than 1 percent of TANF dollars are spent annually on healthy
marriage programming.
Evaluation is under way to determine the effectiveness of these programs. In the
meantime, this study provides the first rigorous estimate of the costs to taxpayers of
the decline of marriage, both at the national level and the state level.
9
II. How Might Marriage Affect Taxpayers?
Empirical Literature Review
R
ESEARCH SUGGESTS THAT MANY of the social problems and disadvantages
addressed by federal and state government programs occur more frequently
among children born to and/or raised by single parents than among children
whose parents get and stay married.
10
The potential risks to children raised in
fragmented families that have been identified in the literature include poverty,
mental illness, physical illness, infant mortality, lower educational attainment
(including greater risk of dropping out of high school), juvenile delinquency, con-
duct disorders, adult criminality, and early unwed parenthood. In addition, family
fragmentation seems to have negative consequences for adults as well, including
lower labor supply, physical and mental illness, and a higher likelihood of commit-
ting or falling victim to crime.
11
To the extent that family fragmentation causes negative outcomes for children and
adults, it also leads to higher costs to taxpayers through higher spending on
antipoverty programs and throughout the justice and educational systems, as well
as losses to government coffers in foregone tax revenues.
001139
Page 10
A crucial issue for this study is to ascertain to what extent the associations between
family fragmentation and these negative outcomes are causal. There are of course
powerful selection effects into marriage, divorce, and unwed childbearing, and
some portion of the negative outcomes for children in nonmarital families are
caused by habits, traits, circumstances, and disadvantages among adults that may
also lead to divorce and nonmarital childbearing.
12
For example, a dating couple facing an unexpected pregnancy may choose not to
marry because the man is unemployed. Depending on how one looks at it, the
out-of-wedlock birth may be said to result from the father’s low-earnings or the
mother and child’s poverty may be said to result from the out-of-wedlock birth.
Untangling “what causes what” is a challenge faced by many researchers who
study the family.
How Much Does Marriage Reduce Poverty?
Researchers respond to this challenge by using a variety of methods to control for
unobserved selection effects (that is, to account for other factors that could be
explaining the finding) and to tease out causal relationships (that is, to untangle
“what causes what”). In this case, the idea that family fragmentation contributes to
child poverty has been studied extensively and is widely accepted.
13
Marriage can
help to reduce poverty because there are two potential wage earners in the home,
because of economies of scale in the household, and possibly also because of
changes in habits, values, and mores that may occur when two people marry.
14
In addition, there is recent, intriguing research that uses naturally occurring evi-
dence to examine whether family fragmentation causes poverty. Elizabeth Ananat
and Guy Michaels, for example, use an unusual predictor of whether a married
couple will stay married (the predictor is whether their firstborn child is a male,
since research has shown that divorce is less likely when this is the case). With this
predictor they are able to study married couples who do and do not divorce and
conclude that “divorce significantly increases the odds that a woman with children
is poor.”
15
Their analysis suggests that almost all of the increase in poverty
observed among divorced mothers is caused by the divorce. Less than 1 percent
of these women and children live in poverty if their first marriage is intact, while
more than 24 percent of divorced women with children are living in poverty.
16
Another area of research uses national data to simulate changes in family structure.
For example, Robert Lerman used the Current Population Survey (CPS) and simu-
lated “plausible” marriages by matching single mothers to single males who were
the same race and were similar in age and education levels. He found that if these
theoretical marriages occurred they would reduce poverty by 80 percent among
these single-mother households.
17
Adam Thomas and Isabel Sawhill used a similar
001140
Page 11
approach and concluded that marriage would reduce poverty among single moth-
ers substantially, by about 65 percent.
18
Both Lerman’s and Thomas and Sawhill’s estimates assume that getting married has
no effect on men’s labor supply (and therefore male earnings). Most research on
this topic, by contrast, finds that marriage leads to a modest increase in male labor
supply, which would further reduce poverty rates. David Ribar did a useful survey
of the literature on the impact of marriage on men’s earnings.
19
Other research that seeks to analyze the impact of marriage on poverty consists of
studies that conduct a “shift-share analysis,” which show what poverty rates would
be if the proportion of households in different family structures remained constant
over a given time period. Examples of this research include work done by Hilary
Hoynes, Marianne Page, and Ann Stevens and by Rebecca Blank and David Card.
These studies find that over 80 percent of poverty is related to changes in family
structure, such as increases in households headed by single mothers.
20
One cautionary note, however, is that these studies could overstate the impact of
family structure on income because they do not account for the likelihood that, as
Thomas and Sawhill say, “single-parent families possess characteristics that dispro-
portionately predispose them to poverty.”
21
For example, persons struggling with
mental illness, substance abuse, or criminal records might find it difficult both to
hold a job and to get or stay married. Nevertheless, even studies that attempt to
control for these factors strongly suggest that family fragmentation negatively affects
the income available to single parents and their children.
Does Family Fragmentation Increase Crime?
In addition to poverty, family fragmentation also appears to have large effects on
rates of crime, according to three separate bodies of literature.
For example, research that considers entire communities has found a strong associ-
ation between the percent of single-parent households and crime rates. In one case,
Robert O’Brien and Jean Stockard found that increases in the proportion of adoles-
cents born outside of marriage were linked to significant increases in homicide
arrest rates for fifteen to nineteen year olds.
22
A second large body of literature—investigations of individual families using vari-
ables, such as parent-child relationships or mothers’ education levels—finds that a
child raised outside of an intact marriage is more likely to commit crimes as a teen
and young adult. In one study Cynthia Harper and Sara McLanahan control for a
large number of demographic and other characteristics and find that boys reared in
single-mother households and cohabitating (or “living together”) households are
001141
Page 12
typically more than twice as likely to commit a crime that leads to incarceration,
when compared to children who grow up with both their parents.
23
Finally, a body of literature that analyzes future crime rates of juvenile offenders
shows that stable marriages reduce the likelihood that adult males will commit addi-
tional crimes. With a unique data set of former juvenile offenders spanning several
decades, Robert Sampson and his colleagues find evidence that marriage leads
these former juvenile offenders to commit fewer crimes as adults, even when con-
trolling for unobserved selection effects.
24
Overall, research on family structure suggests a variety of ways marriage might
reduce the demand for costly public services. A stable marriage might reduce the
likelihood of domestic violence, alcohol abuse, and parental depression, and might
increase the human and social capital available to children in the home in ways that
(independent of income) improve children’s educational and other outcomes. Two
parents in the home might provide more effective supervision of adolescents,
reducing the risk of delinquent activities. At the same time, divorce may be some-
times desirable. For example, about one-third of marriages ending in divorce are
“high conflict” marriages, and children, on average, appear to be better off when
those marriages end.
25
In this analysis, however, we adopt the simplifying and extremely cautious
assumption that all of the taxpayer costs of divorce and unmarried childbearing
stem solely from the negative effects family fragmentation has on poverty in female-
headed households. We make this simplifying assumption because the effect of
marriage on poverty has been established, is widely accepted, and can be reason-
ably well-quantified based on existing data.
III. Is the Methodology Used in This Estimate Reasonable?
T
HIS STUDY USES SEVERAL CALCULATIONS to estimate the taxpayer costs of family
fragmentation. These estimates include calculations of foregone tax revenue
in income taxes, FICA (Social Security and Medicare) taxes, and state and
local taxes as a result of family fragmentation. They also include the direct costs to
taxpayers as a result of increased expenditures on local, state, and federal taxpayer-
financed programs in the following areas:
• Temporary Assistance for Needy Families (TANF) cash assistance
• Food Stamps
• Housing Assistance
• Medicaid
• State Children’s Health Insurance Program (SCHIP)
• Child Welfare programs
001142
Page 13
• Women, Infants, and Children (WIC) assistance
• Low Income Home Energy Assistance Program (LIHEAP)
• Head Start
• School Lunch and Breakfast Programs
• The Justice System
26
As noted previously, we assume taxpayer costs are driven exclusively by increases
in poverty; that is, we used the most widely accepted and best quantified conse-
quence of divorce and unmarried childbearing. It is important to recognize that if
family fragmentation has additional negative effects on child and adult well-being
that operate independently of income—and if these effects increase the numbers of
children or adults who need and are served by taxpayer-funded social programs—
then our methodology will significantly underestimate taxpayer costs. For example,
if family fragmentation increases the number of children who suffer from chronic
illnesses,
27
these additional costs to taxpayers would not be reflected in the esti-
mates provided by this study.
To put it another way, the methodology we use assumes that marriage would not
improve the habits, mores, or other behaviors of adults or children in ways that lead
to reduced social problems or increased productivity.
What Costs Are Associated with Means-Tested Government Programs?
To obtain an estimate of the taxpayer costs of family fragmentation, this study uses
the literature and information already described to make three key assumptions:
• Assumption 1: Marriage lifts zero households headed by a single male out
of poverty.
• Assumption 2: Marriage lifts 60 percent of households headed by a single
female out of poverty.
• Assumption 3: The share of expenditures on government antipoverty
programs that is due to family fragmentation is equal to the percent of
poverty that results from family fragmentation.
28
Taken as a group, these assumptions err on the side of caution. They are more likely
to lead to an underestimate of the actual taxpayer costs of family fragmentation
rather than an overestimate. Assumption 1 leads us to understate taxpayer costs
because marriage might bring a second wage earner into single-father households
and/or allow men to focus more effort on labor market activities that would
increase household earnings. Assumption 2 is based on the discussion on pages
10–11 of this report, specifically the empirical results provided by Ananat and
Michaels and Thomas and Sawhill.
29
001143
Many transfer programs, such as Head Start, Section 8 housing vouchers, and
LIHEAP are not entitlements. That means not all individuals or households poten-
tially eligible to receive funding or services under these programs receive them.
For non-entitlement programs, savings realized from increases in marriage and
marital stability could be reaped by taxpayers or the savings might be passed on
to other poor people.
33
But if such savings were to occur, legislators and voters
could either choose to change the rules and use the money for other government
purposes or return it to taxpayers.
The next steps in our study were finding ways to estimate any increased costs to
the justice system caused by family fragmentation and any foregone tax payments
that would result from eliminating family fragmentation. These two sets of calcula-
tions require some discussion.
What Costs Are Associated with the Justice System?
Evidence suggests that boys raised in single-parent households are likely to commit
crimes at much higher rates than boys raised in married households.
34
Further, mar-
riage reduces the likelihood that adult men will commit crimes.
35
For the purposes of calculating the impact of family fragmentation on increased
costs to the justice system, however, we use the following cautious and simplifying
assumption: All of the effects of family fragmentation on crime operate through their
impact on childhood poverty rates. In this analysis, we are following Harry Holzer
and his colleagues. They created a methodology to estimate the impact of eradicat-
ing childhood poverty on costs to the U.S. economy. One cost they consider is the
cost to the justice system—which includes courts, police, prisons, and jails.
Essentially, based on several assumptions taken from the empirical literature on
crime, they report that 24 percent of crime is caused by childhood poverty.
36
Using
this result, we estimate that if marriage were to reduce childhood poverty rates by
36.1 percent, then costs for the justice system would be reduced by approximately
$19 billion. (See details of this calculation in table A.1.)
How Are Foregone Tax Revenues Estimated?
To estimate the impact of family fragmentation on foregone tax revenues, we must
estimate the increase in taxable income that would result from marriage. We again
make the simplifying assumption that marriage has no behavioral effect; in other
words, marriage would not increase the labor supply of men and would therefore
have no impact on the taxable earnings of single parents who marry. Again, given
the rich literature on how marriage impacts male labor supply,
37
this is a cautious
assumption, which increases our confidence that our analysis does not overestimate
the actual taxpayer costs of the decline of marriage.
Page 16
001146
Similarly, we assume that all of the effects of family fragmentation on children’s
future earnings capacity operate only through their impact on rates of childhood
poverty. Given the rich but difficult-to-quantify body of evidence that married par-
ents contribute to increasing the human and social capital of their children in other
ways (in addition to income),
38
this decision represents another simplifying but cau-
tious assumption, which increases our confidence that our results will not overesti-
mate the taxpayer costs.
There is good evidence on the impact of childhood poverty on future productivity.
Holzer and his colleagues estimate that childhood poverty reduces income nation-
ally by $170 billion per year. That is, they find that if children in poverty had instead
grown up in households that were not in poverty, then these children would as
adults earn $170 billion more each year.
39
Using Holzer’s estimate of total costs of
childhood poverty on adult annual earnings and the estimate that marriage would
reduce childhood poverty by 36.1 percent, we estimate that marriage would
increase taxable earnings by over $61 billion per year.
To translate this data into an estimate of tax losses from losses in future productiv-
ity, we must make simplifying assumptions about tax rates. For this analysis, we
assume that all of the increase in earnings is taxed at the 10 percent rate for U.S.
income taxes and that all of this increase in earnings is taxed at 15.3 percent for
FICA (as tax economists generally find that employees bear the burden of FICA tax-
ation through lower wages). To estimate losses in state and local taxation, we use
the national average percentage of income that is paid in state and local taxes—11
percent—as reported by the Tax Foundation on April 4, 2007.
40
(The details of this
calculation are shown in table A.1.)
IV. What Is the Total Estimated Cost of Family
Fragmentation?
H
OW MUCH DO HIGH RATES of divorce and unmarried childbearing cost U.S. tax-
payers? Here is our estimate:
Family fragmentation costs U.S. taxpayers at least $112 billion each year, or
over $1 trillion dollars per decade.
41
This $112 billion annual estimate includes the costs of federal, state, and local gov-
ernment programs and foregone tax revenues at all levels of government. Table 7
shows an itemized estimate.
To find the cost of family fragmentation in your state, turn to page 38.
Page 17
001147
these judgments with the precision necessary to quantify them, we left this program
out of the analysis. While some fraction of currently cohabiting taxpayers might pay
a marriage penalty if they were to marry, the overall poverty-reducing effects of
marriage are likely to move many more families off the EITC rolls. (See appendix
A for more detail.)
Similarly, some fraction of public school budgets is likely spent in dealing with social
problems created by divorce and unmarried childbearing. Children whose parents
stay married are less likely to repeat a grade, exhibit conduct disorders requiring
special education outlays, or require expensive special education services generally.
Again, none of these costs are reflected in our analysis.
We have also excluded one of the largest taxpayer costs on the book: Medicaid for
the elderly and Medicare for unmarried adults. They are excluded partly because
most people do not think of older single adults when they think of “fragmented
families.” But high rates of divorce and failure to marry mean that many more
Americans enter late middle-age (and beyond) without a spouse to help them man-
age chronic illnesses, or to help care for them if they become disabled.
43
Through
the Medicare and Medicaid system taxpayers are picking up a large, but difficult to
quantify, part of the costs as a result.
Third, we have ignored for the purposes of this analysis any behavioral effects of
marriage. We have assumed that all the benefits of marriage come solely from
reduced rates of poverty for children, ignoring the evidence that stably married par-
ents provide human and social capital to their children other than income in ways
that increase children’s well-being and reduce the likelihood they will need or incur
expensive government services, from repeating grades at school to ending up in the
child protective system or the juvenile justice system.
Similarly, we have assumed no behavioral effects of marriage on fathers’ earning
capacity. If stable marriage increases men’s earnings, as the literature suggests, and/or
decreases the likelihood that they will commit crimes as adults, our methodology
most likely underestimates the taxpayer costs associated with unmarried parenthood.
Fourth, there is one other major reason we believe $112 billion each year repre-
sents a cautious, minimum estimate: For the purposes of this analysis, we assume
that households that marry will “take up” or use government benefits for which they
are eligible at the same rate as single-mother households. In reality, existing data
shows that lower-income married couples are far less likely to choose to use gov-
ernment benefits for which they are eligible than single-mother households.
Overall, single mothers are roughly twice as likely to take advantage of government
benefits for which they are eligible than are low-income married couples.
44
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001149
Many more details, including a discussion of the empirical literature on which our
conclusions are based, are found in appendix A.
V. What Are the Policy Implications?
H
OW SHOULD POLICYMAKERS, state legislators, and others respond to these new,
rigorous estimates of the large taxpayer costs of family fragmentation?
First, public concern about the decline of marriage need not be based only on the
important negative consequences for child well-being or on moral concerns, as impor-
tant as these concerns may be. High rates of family fragmentation impose extraordi-
nary costs on taxpayers. Reducing these costs is a legitimate concern of government,
policymakers, and legislators, as well as civic leaders and faith communities.
Second, even very small increases in stable marriage rates would result in very large
returns to taxpayers. For example, a mere 1 percent reduction in rates of family
fragmentation would save taxpayers $1.12 billion annually.
Given the modest cost of government and civic marriage-strengthening programs,
even more modest success rates in strengthening marriages would be cost-effective.
Texas, for example, recently appropriated $15 million over two years for marriage
education and other programs to increase stable marriage rates. If such a program
succeeded in increasing stably married families by just three-tenths of 1 percent, it
would still save Texas taxpayers almost $9 million per year. Efforts are currently
underway to evaluate the impact of these programs.
Conclusion
E
ACH YEAR, FAMILY FRAGMENTATION costs American taxpayers at least $112 billion
dollars. These costs are recurring—that is, they are incurred each and every
year—meaning that the decline of marriage costs American taxpayers more
than $1 trillion dollars over a decade.
These costs are due to increased taxpayer expenditures for antipoverty, criminal jus-
tice and school nutrition programs, and through lower levels of taxes paid by indi-
viduals whose adult productivity has been negatively influenced by growing up in
poverty caused by family fragmentation.
This figure represents a minimum or “lower-bound” estimate. If, as research sug-
gests is likely, marriage has additional economic and social benefits to children,
adults, and communities—benefits that reduce the need for government services
and that operate through mechanisms other than increased income—then the actu-
al taxpayer costs of the retreat from marriage are likely much higher.
Page 20
001150
Given the cautious assumptions used throughout this analysis, we can be confident
that current high rates of family fragmentation cost taxpayers at least $112 billion a
year, or more than $1 trillion over a decade. Finding new ways to strengthen mar-
riage and reduce unnecessary divorce and unmarried childbearing is a legitimate
and pressing public concern.
Because of the very large taxpayer costs associated with high rates of divorce and
unmarried childbearing, and the modest price tags associated with most marriage-
strengthening initiatives, state and federal marriage-strengthening programs with
even very modest success rates will be cost-effective for taxpayers.
Page 21
001151
Appendix A: Testing the Analysis:
Is the Estimate of $112 Billion Too High or Too Low?
In this appendix, we consider in detail four arguments that suggest the estimate that
the total taxpayer cost of family fragmentation of $112 billion is too high and four
arguments that it is too low.
Is $112 Billion Too High?
In this section, we consider four arguments that suggest the $112 billion estimate is
too high:
1. If cohabitating households were to marry, most of them receiving transfer
payments would receive a marriage bonus from the federal tax and trans-
fer system.
2. The use of Holzer’s research in this study exaggerates the actual impact of
low income on childhood poverty.
3. The use of Thomas and Sawhill’s research in this study overestimates the
impact of marriage on reducing poverty.
4. The main assumption of this study—that the percentage of government
program costs due to family fragmentation is proportional to the amount
of poverty due to family fragmentation—overestimates the taxpayer costs.
1. If cohabitating couples were to marry, they would receive a marriage bonus from
the federal tax and transfer system.
The earned income tax credit (EITC) is an approximately $40 billion antipoverty
program that provides cash subsidies to low-income working adults, and Temporary
Assistance to Needy Families (TANF) is a $16 billion cash assistance program for
low-income families. Gregory Acs and Elaine Maag report that of the 1.1 million
people living in cohabitating households earning less than 200 percent of the
poverty level and receiving the EITC and/or TANF, about three-fourths of these
households would receive an average marriage bonus of approximately $2,423,
while about 10.5 percent of these households would receive a marriage penalty of
$1,742 in 2008. Thus, if the cohabitating adults in these households were to marry,
taxpayers would face increased expenditures for these two social programs. Taken
together, these estimates from Acs and Maag suggest that taxpayer expenditures for
the EITC, TANF, and the child tax credit would increase by about $0.5 billion if all
cohabitating couples were to marry.
45
Given the results in Acs and Maag, is our estimate of the taxpayer cost of family
fragmentation too high by $0.5 billion? In table 7, we ignore any costs of family frag-
mentation on the EITC. We do so because of complications such as the one pointed
out by Acs and Maag that some households would get higher EITC payments if they
became married households and nothing else about them (e.g., labor supply)
changed. Nevertheless, it appears likely that the net taxpayer costs of family
Page 22
001152
fragmentation on the EITC would be positive because marriage would render mil-
lions of EITC recipients ineligible for any EITC benefits by adding a second wage
earner to the household and/or possible positive effects on male labor supply. If
marriage, as discussed in the next subsection, would decrease net expenditures on
the EITC, then the approach used in this study would underestimate the taxpayer
costs of family fragmentation by ignoring the EITC.
2. The use of Holzer’s results in this study overestimates the impact of low income
in childhood on adult outcomes.
We rely on results from Harry Holzer’s research to make two calculations—costs to
the justice system and increased tax payments. Holzer and his colleagues make a
case that the assumptions that underlie their estimates are cautious, and we find
their case persuasive. However, they make a broad interpretation of the relationship
between childhood poverty and life outcomes as follows:
[W]e interpret the causal effects of childhood poverty quite broadly. They
include not only the effects of low parental incomes, but also of the entire range
of environmental factors associated with poverty in the U.S., and all of the per-
sonal characteristics imparted by parents, schools, and neighborhoods to chil-
dren who grow up with or in them. We define “poverty” broadly in this way in
part because researchers have been unable to clearly separate low income from
other factors that affect the life chances of the poor, and also because the set
of potential policy levers that might reduce the disadvantages experienced by
poor children go beyond just increasing family incomes. Of course, in defining
poverty this way, we also assume that the entire range of negative influences
associated with low family incomes would ultimately be eliminated if all poor
children were instead raised in non-poor households.
46
(Holzer’s emphasis)
Childhood poverty may be a proxy for “environmental factors” that may or may
not be improved by the income gains from marriage. Thus, reliance on Holzer’s
estimates of the costs of childhood poverty could potentially overstate any bene-
fits of marriage that come from marriage reducing childhood poverty. One way to
think about this issue carefully is to list the broad pathways (i.e., “the environ-
mental factors”) through which growing up in poverty is associated with child-
hood disadvantage:
a. Low income may mean lower quality food, shelter, transportation, and
medical care for children.
b. Low income may necessitate living in worse neighborhoods (fewer parks,
more crime, less social trust), and poor neighborhood quality may
adversely affect child well-being.
c. Low income may mean attending worse schools.
d. Low income may negatively affect parenting processes (warmth, monitor-
ing, discipline) because of the stress economic hardship places on other-
wise competent parents.
Page 23
001153
e. Conversely, parents may have low incomes because they are less
motivated and skilled and this lesser competence may be exhibited in
parenting as well.
f. Low income may hurt children because low-income families are more
likely to have only one parent present, and therefore only half the social
and human capital available to the child.
If absence of money itself is the root cause of the negative effects of childhood
poverty, then any strategy that increases income will increase child well-being.
With more money, parents can provide better nutrition, education, housing, and
medical care. They can move to better neighborhoods and enjoy better schools. It
may be the case, however, that not all the potential pathways through which child-
hood poverty negatively affects child well-being can be “treated” with more
money. More money may lower the income stress but not the emotional stress of
single parenting, for example. In addition, there may be less human and social cap-
ital that results when one parent—only half the potential talent pool for parent-
ing—is available.
If marriage increases household income, then marriage would ameliorate the neg-
ative effects of childhood poverty that operate through pathways labeled a, b, c,
and d above. Marriage may also address at least some of the other pathways
through which childhood poverty is associated with relative deprivation (f). But
marriage does not address all of the pathways: What if low-income parents are sim-
ply less competent generally in parenting as in other domains of life (e)? What if
they are less motivated to help their children succeed or have fewer of the skills
needed to help their children manage school or work?
To the extent that childhood poverty is caused by living with adults who have per-
sistent personality traits or skill deficits that lessen child well-being, neither income
supports nor increased marriage alone will “treat” these problems.
Holzer and his colleagues make an adjustment for genetic factors that may be pres-
ent in the ability to generate labor market earnings that they believe errs on the side
of caution. But not all the selection effects may be understood to be genetic in
nature. What if single moms or dads simply are people who have lower average
parenting skills and less motivation to begin with? If this is the case, then the use
of Holzer’s results for two calculations leads to an overestimate of the taxpayer cost
of family fragmentation.
Like Holzer, this analysis is constrained by the availability and quality of relevant
empirical evidence. We believe, however, that the way we use Holzer’s results does
not lead to an overestimate for at least three reasons:
• If the assumptions Holzer and his colleagues used are cautious, then that
offsets at least some of the “environmental” effects of having a mother or
father with less motivation, whether married or not.
Page 24
001154
• Our analysis assumes no effect of marriage on the labor supply of parents.
The best evidence, as reported in Ribar’s extensive literature review in
2004, indicates that marriage increases male labor supply and seems not to
depress the average female labor supply in the more recent groups of
women studied.
47
• Our analysis assumes no behavioral effect of marriage on parenting skills. If
marriage reduces stress on parents, which leads to better parenting, then this
approach underestimates the true taxpayer costs of family fragmentation.
Given the limits of the available empirical evidence, we implicitly assume that these
three reasons exactly offset any of the effects of childhood poverty that are due to
unobserved lower motivation and/or skills present among single parents. To the
extent this assumption is wrong and it leads to overstating taxpayer costs because
of the use of Holzer’s research, the magnitude of the overestimate would have to
be viewed in light of the magnitude of our underestimates as described in the next
subsection. As suggested below, these underestimates are likely quite substantial.
3. The use of Thomas and Sawhill’s research overestimates the impact of marriage
on reducing poverty.
Thomas and Sawhill estimate that marriage would lift 65.4 percent of single-
mother households out of poverty.
48
In their microsimulation they place individu-
als in the March 1999 CPS in “plausible” marriages until they obtain a marriage rate
similar to 1970. Attempting to marry all single-mother households would likely fall
short because of a lack of marriageable men—prisoners are disproportionately men,
as are the unemployed, and men have lower life expectancies than women. The
dearth of marriageable men is one reason that we use a 60 percent figure instead
of the 65.4 percent estimate from Thomas and Sawhill. In addition, Thomas and
Sawhill assume no behavioral effects of marriage on male labor supply, which sug-
gests they underestimate the effect of marriage on poverty reduction. For these two
reasons, our use of Thomas and Sawhill’s research should not lead to an overesti-
mate of the taxpayer cost of family fragmentation.
4. The main assumption of this study—the percentage of the costs of government
programs due to family fragmentation is proportional to the percent of poverty
due to family fragmentation—overestimates the taxpayer costs.
To the contrary, the following thought experiment suggests that this assumption
likely leads to an underestimate of the taxpayer cost of family fragmentation.
Suppose there was an antipoverty program that cost taxpayers a total of $100 bil-
lion. Also suppose this program provided $5,000 per year to 10 million married
households and $5,000 per year to 10 million single-mother households. In addi-
tion, suppose that 20 million married households were eligible for the program but
only 10 million used it, while all 10 million single-mother households eligible for
the program used it.
Page 25
001155
If each of the 10 million single-mother households in this thought experiment were
instead married households, consider two questions:
• How would the methodology used in this study estimate the taxpayer cost
of family fragmentation?
• What would be the “true” taxpayer cost of family fragmentation?
Using the methodology of this study, 6 million of the single-mother households (at
60 percent) using this program would no longer use it, which means the cost of
family fragmentation would be 6 million multiplied by $5,000, which equals $30 bil-
lion. Also, the analysis would assume that the remaining 4 million single-mother
households that are now married households would still use the program.
Would $30 billion likely be the “true” costs? We suspect not, because married
couples use benefits for which they are income-eligible at a much lower rate
than single-parent households: Only 50 percent of initially married households
eligible for the program use it. As shown in tables 4–6, single-mother house-
holds are far more likely at any given income level to choose to use govern-
ment benefits:
• Single-mother households with incomes less than 200 percent of the
poverty line are 2.6 times more likely to receive Food Stamps than married
households earning less than 200 percent of the poverty line.
• Single-mother households with incomes less than 200 percent of the
poverty line are 2.9 times more likely to receive cash assistance than mar-
ried households earning less than 200 percent of the poverty line.
• Single-mother households with incomes less than 200 percent of the
poverty line are 1.56 times more likely to receive Medicaid than married
households earning less than 200 percent of the poverty line.
If we assume that currently single mothers had instead married and that they
would use government benefits for which they are eligible at the same rate as
other married households (50 percent), then the “true” taxpayer costs of family
fragmentation would be $40 billion ($30 billion + 0.5 x 4 million x $5,000). Thus,
using the methodology of this study would understate the “true” costs by 33 per-
cent using the assumption that married households and single-mother households
receive the same average benefit ($5,000 per household in this example), and that
single-mother households take up the antipoverty program at a rate twice as large
as married households.
The main assumption of this study seems to be a reasonable simplifying assump-
tion, because of the much higher take-up rate of antipoverty programs of single-
parent households relative to similarly situated married households; this assumption
perhaps leads to an underestimate of the taxpayer cost of family fragmentation.
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001156
To sum up, any differences in unobserved levels of average motivation between
single and married mothers complicate using much of the existing empirical litera-
ture to estimate the taxpayer cost of family fragmentation. The assumptions that
underlie this analysis, however, are extremely cautious in an attempt not to over-
state the taxpayer costs. Specifically, by assuming no beneficial behavioral effects
of marriage on adults or children, we are likely underestimating taxpayer costs.
Is $112 Billion Too Low?
In this section, we consider four arguments that suggest that the $112 billion esti-
mate is too low:
1. Ignoring the EITC, public education, and other government programs
underestimates the true taxpayer costs of family fragmentation.
2. Ignoring the direct impact of family fragmentation on crime (independent
of poverty) underestimates the taxpayer costs.
3. Ignoring any impact of marriage on single fathers understates the tax-
payer cost of family fragmentation.
4. Ignoring the fact that, given income-eligibility, single-mother households
are much more likely than married households to take up subsidies from
transfer programs underestimates the likely taxpayer costs of family frag-
mentation.
1. Ignoring the EITC, public education, and other government programs underesti-
mates the true taxpayer costs of family fragmentation.
We ignore EITC expenditures largely because of the lack of empirical information
needed to make reasonable assumptions about how marriage will affect usage of
the EITC and related programs in our complex tax code. But ignoring potential tax-
payer savings produced by marriage on EITC expenditures means ignoring a very
expensive government program that is almost certainly affected by marriage rates.
Taxpayers spend approximately $40 billion on cash assistance to the working poor
under the EITC. As shown in table A.2, using the assumptions in this study, family
fragmentation would lead to about $12.68 billion in higher taxpayer costs on the
EITC. Adjusting this estimate based on the results of Acs and Maag, as discussed
under the first argument in the previous subsection, would reduce that amount by
about $0.5 billion, leaving a net taxpayer cost of about $12.18 billion.
We have chosen to ignore the EITC expenditures (including potential savings of an
additional $12.18 billion each year) because the consequences of marriage for the
EITC are complex and would involve multiple assumptions of how marriage would
affect men’s and women’s earnings.
In addition to the EITC, this analysis does not assume any costs of family fragmen-
tation to the public school system, which is almost certainly not true. Considerable
research suggests that children raised outside of intact marriages are more likely to
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001157
be held back a grade, to be in special education, and to qualify for remedial serv-
ices, although we do not have hard data on how much of these effects are due to
unobserved selection bias and how much are “caused” by lack of marriage.
If marriage were to reduce the percentage of children receiving special or remedial
services, then family fragmentation would create significant taxpayer costs for
public education, as federal and state funding formulas tend to provide large
amounts of extra funding for children receiving these services. (These costs may
be offset, however, by more teens dropping out of school as a result of family
fragmentation, which reduces the direct taxpayer costs of public education.
49
)
The lack of evidence of exogenous changes in family structure on the likelihood of
receiving special education or remedial services or staying in school, and the lack of
comparable cost data on remedial and special education services across states,
makes it impossible to estimate these costs with confidence. But the lack of data
does not mean that family fragmentation has no impact on educational expenditures.
Finally, we exclude the approximately 71 percent of Medicaid expenditures devoted
to the disabled and the elderly from the analysis, thereby making the cautious
assumption that family fragmentation has no impact on these expenditures. Most
people do not think of elderly unmarried adults or middle-aged disabled singles as
belonging to “fragmented families.” Nonetheless, there is considerable evidence that
older adults who are unmarried are more likely to become disabled, to manage
chronic diseases less successfully, and to need nursing home care as they age.
50
Excluding these large public costs thus likely significantly underestimates the
actual costs to taxpayers from the decline in marriage.
2. Ignoring the direct impact of family fragmentation on crime (independent of
poverty) underestimates the taxpayer costs.
Estimates of the potential impact of family structure on crime, even those that do
not control for selection bias, are large and arguably should not be ignored. As dis-
cussed in the section on methodology on page 12, it appears that family fragmen-
tation has large effects on crime, both in terms of increasing the likelihood that a
child raised outside of marriage will commit crimes
51
and the likelihood that adult
men will leave criminal activity after they are married.
52
While Harper and
McLanahan use a large number of control variables to help isolate the effect of fam-
ily structure on youth crime, they do not control for unobserved selection effects.
Nonetheless, their estimated effects of family structure on crime are extremely
large—typically children reared in single-mother households are more than twice as
likely to engage in criminal activities as children reared in a married household. For
example, they report that children living with a single mother are 2.168 times more
likely to be incarcerated than children living with both parents, all else being
equal.
53
Suppose we had assumed that over half their result was due to selection
bias—that the single mothers in their sample possessed such poor parenting skills
that even if they got married most of the estimated effect Harper and McLanahan
reported was due to selection bias. Specifically, suppose that children reared with
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001158
a single mother are only 50 percent more likely to engage in criminal activity than
children raised with both parents, all else being equal. As shown in table A.2, using
this more aggressive approach yields an estimate that family fragmentation is
responsible for about $29 billion in costs to the justice system as opposed to the
$19.3 billion estimate used to generate the main result of this study.
The $29 billion estimated cost of family fragmentation to the justice system is
either too high or too low depending on the true magnitude of any exogenous
effects of marriage on criminal activity. The $19.3 billion figure represents about
8.7 percent of all costs to the justice system ($19.3 billion / $222.8 billion = 0.087),
while the $29 billion figure represents 13 percent of all costs to the justice system
($29 billion / $222.8 billion = 0.13).
To put these two estimates in context, note that, according to the Bureau of Justice
Statistics, in 2002 only 43.6 percent of inmates report that they lived with both par-
ents “most of the time” while growing up.
54
While the majority of inmates did not
live with both parents most of the time while growing up, the figure used to gen-
erate the main estimate of this study suggests that only 8.7 percent of the costs of
the justice system can be attributed to family fragmentation. As stated previously,
Sampson and his colleagues endeavor to control for selection effects and find that
former juvenile offenders commit fewer crimes as adults when married. Because
our estimates here ignore these potential taxpayer savings from marriage, our
method is more likely to underestimate than overestimate the taxpayer costs of fam-
ily fragmentation to the justice system.
3. Ignoring any impact of marriage on single fathers understates the taxpayer cost
of family fragmentation.
Research suggests that married men become more committed workers at least in part
as a result of marriage. Therefore, if single fathers were to marry, it is likely that their
labor supply would increase leading to increased tax payments. Further, tables 4–6
show that single-father households have higher take-up rates of antipoverty pro-
grams than married households with similar incomes.
Adding a second wage earner would render single-father households less likely to
receive government assistance via increased income and economies of scale.
Economies of scale via marriage—essentially “savings from size”—imply that by liv-
ing together, two adults are better able to share expenses and escape poverty. Ribar
provides an example of how marriage leads to economies of scale:
Consider the outcomes for a couple with a 9th–11th grade education and one
child in 2001. The median annual income for a woman with this level of edu-
cation was $10,330, while the median annual income for a similarly educated
man was $19,434. If the mother and child lived apart from the father, their
income would have been below the two-person poverty threshold of $12,207;
however, if the family lived together, their combined income would have
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001159
exceeded the three-person threshold of $14,255. The mother and child would
have also met the gross income requirement for food stamps if they lived apart
from the father but would [sic] been ineligible if they lived with him. Even if
the mother had no income and the family just depended on the father’s
resources, they would have been above the poverty line and ineligible for food
stamps if they all lived together.
55
4. Ignoring the fact that, given income-eligibility, single-mother households are
much more likely than married households to take up subsidies from transfer
programs underestimates the taxpayer costs.
As shown in tables 4–6, single-mother households have higher take-up rates of gov-
ernment antipoverty programs than married households with similar incomes. Thus,
even if single-mother households that were instead married households were to
remain eligible for transfer programs, it appears they would be less likely to use
them. The methods used to estimate the taxpayer cost of family fragmentation at
$112 billion ignore this likelihood, and suggest this estimate is too low.
To sum up, this study is likely underestimating the taxpayer cost of family fragmen-
tation because (1) there likely would be net savings of EITC expenditures due to
any increase in marriage rates of non-cohabitating single parents and savings from
other programs not considered here; (2) the estimated costs to the justice system
are too low if there is a direct effect of marriage on reducing crime—which seems
likely given the research done to date; (3) there are taxpayer costs of single-father
households that are ignored here; and (4) the take-up rate of antipoverty programs
would likely decline if single-parent households were instead married households
that remained eligible for these programs.
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001160
Appendix B:
Explaining the Methodology for State-Specific Costs
This appendix describes the methodology used to estimate state-specific tax-
payer costs of family fragmentation. These estimates include costs to state and
local taxpayers.
The methods used to create the state-specific estimates are similar to the methods
employed to create the national estimate described in the body of this report. For
the state-specific estimates, we used the 2006 Current Population Survey to estimate
the state-specific reductions in total poverty and child poverty that would result
from marriage. These estimates are shown in the last columns of tables A.3 and A.4
and are based on assumptions 1–3 described on page 13. These tables include the
underlying data used as well as other information that reveal how total and child
poverty fall disproportionately on unmarried households, and on households
headed by single females in particular.
Table A.5 shows the components and the total state and local taxpayer costs of fam-
ily fragmentation for each state. These taxpayer costs include foregone state and
local tax revenue and costs to the justice system, TANF, Medicaid, SCHIP, and child
welfare programs. State-specific data for the overall costs of these programs come
from the sources listed in the “Notes to Table A.1” on page 33.
State-specific cost estimates, however, were not available for costs to the justice
system, and foregone earnings are not estimated at the state level. To make state-
specific estimates for these two line items, we assume that the proportion of tax-
payer costs that accrues to a given state is equal to the proportion of poverty
caused by family fragmentation in the state. For example, using the information
in table A.3, we calculate that 10.2 percent of all childhood poverty in the U.S.
that is due to family fragmentation occurs in the state of California. Thus, 10.2 per-
cent of the increase in national income that comes from reducing childhood
poverty via marriage is assigned to California. Correspondingly, 10.2 percent of
the reduction in state and local justice costs that results from marriage are also
assigned to California.
56
Page 31
001161
Page 33
Notes to Table A.1
The numbers at the beginning of each paragraph correspond to the sub-calculations
listed in table A.1.
1. This calculation is adapted from a similar calculation by Harry Holzer and his colleagues (see
endnote 37). Jens Ludwig estimates that federal, state, and local taxpayers spent $200 billion on the
justice system—prisons, police, courts, etc.—in 2003 (see “The Costs of Crime” testimony to the U.S.
Senate Committee on the Judiciary on September 19, 2006, http://judiciary.senate.gov/
testimony.cfm?id-2068&wit_id-5749). If taxpayer expenditures on the justice system increased at the
rate of inflation indicated by the CPI-U, then taxpayers spent $222.8 billion on the justice system in
2007. Holzer and his colleagues use what they believe to be a conservative estimate that 24 percent
of crime is due to childhood poverty. Combined with the estimate that 36.1 percent of childhood
poverty is caused by family fragmentation, then the taxpayer cost of family fragmentation to the jus-
tice system is $222.8 billion times 0.24 times 0.361, which equals approximately $19 billion. (In the
tables, an asterisk denotes the multiplication function.)
2. We use FY 2005 data on TANF cash assistance expenditures that comes from the National
Association of State Budget Officers FY 2005 State Expenditure Report (Washington, DC: NASBO,
2006). We did not inflate the expenditure data for inflation because TANF expenditures seem to be
leveling off in recent years.
3. The expenditure on Food Stamps was retrieved from http://www.fns.usda.gov/pd
/fssummar.htm and excludes $2.7 billion in administrative costs. Thus, we assume that administrative
costs would not decrease due to a caseload decline.
4. The FY 2006 expenditure on federal housing assistance was retrieved from
http://www.gpoaccess.gov/usbudget/fy06/pdf/budget/hud.pdf. In FY 2006, HUD spent about $23 bil-
lion on homeless programs, rental assistance, and public housing. Thus, the calculation excludes
expenditures on other housing programs such as the Low Income Housing Tax Credit. We did not
inflate FY 2006 expenditure data for inflation because expenditures on housing programs have oscil-
lated in the past few years.
5. FY 2005 Medicaid expenditure data comes from NASBO FY 2005 State Expenditure Report and
includes federal and state expenditures. The FY 2005 expenditure for Medicaid was inflated using the
CPI-U to make an estimate of FY 2007 expenditures. Since Medicaid expenditures tend to grow faster
than the rate of inflation, this FY 2007 estimate is cautious. According to the Kaiser Family Foundation
in 2008 (see http://www.statehealthfacts.org/medicaid.jsp), 40 percent of Medicaid expenditures are for
the disabled, while another 26 percent are for the elderly. Non-elderly adults and children receive 29
percent of Medicaid expenditures. (The uses of the remaining Medicaid expenditures are reportedly
unknown.) For this analysis, we use the cautious assumption that family fragmentation leads to no
Medicaid costs for the elderly or the disabled. Thus, only 29 percent of total Medicaid expenditures are
potentially impacted by family fragmentation under this assumption.
6. FY 2006 federal and state expenditures on SCHIP were retrieved from the Kaiser Family
Foundation website (see http://www.statehealthfacts.org/comparetable.jsp?ind-235&cat-4). Given the
uncertainty surrounding SCHIP reauthorization, we did not inflate expenditures to 2007 dollars.
7. An estimate of FY 2004 federal and state expenditures on the child welfare system came from
C. A. Scarcella et al., The Cost of Protecting Vulnerable Children (Washington, DC: Urban Institute,
2006). We inflated their FY 2004 estimate for 2007 dollars using the CPI-U. Scarcella and colleagues
label the following government programs as “child welfare” programs: services for children and fam-
ilies to prevent abuse and neglect, family preservation services, child protective services, in-home serv-
ices, out-of-home placements such as foster care, and adoption services.
8. Information on FY 2003 federal WIC expenditures came from the U.S. House Committee on
Ways & Means Green Book (see http://www.gpoaccess.gov/wmprints/green/index.html) and was esti-
mated for FY 2007 using the CPI-U.
9. Information on FY 2003 federal LIHEAP expenditures came from the U.S. House Committee on
Ways & Means Green Book (http://www.gpoaccess.gov/wmprints/green/index.html) and was estimated
for FY 2007 using the CPI-U.
10. Information on FY 2003 federal Head Start expenditures came from the U.S. House Committee
on Ways & Means Green Book (http://www.gpoaccess.gov/wmprints/green/index.html) and was esti-
mated for FY 2007 using the CPI-U.
001163
Page 34
11. Information on FY 2003 federal School Breakfast and Lunch expenditures came from the U.S.
House Committee on Ways & Means Green Book (http://www.gpoaccess.gov/wmprints
/green/index.html) and was estimated for FY 2007 using the CPI-U.
12. Holzer and his colleagues estimate that U.S. national income is $170 billion lower because of
childhood poverty. Using the estimate that 36.1 percent of childhood poverty is due to family frag-
mentation, then the decrease in national income from family fragmentation is approximately $61 bil-
lion. To make these calculations we assume that this extra national income would be taxed at a 10
percent federal marginal income tax rate, a 15.3 percent FICA tax rate, and an 11 percent state plus
local tax rate. The latter figure is the average percent of income spent on state plus local taxation (see
the Tax Foundation website at http://www.taxfoundation.org/taxdata/show/335.html). We use a 15.3
percent FICA tax rate because tax economists generally believe that employees bear the full burden
of the employer share of these payroll taxes via lower wages (see Daniel Hamermesh and Albert Rees,
The Economics of Work and Pay, 5th ed. (New York: HarperCollins College Pub., 1993).
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Endnotes
1. Of course, the death of one’s spouse is another reason why an adult may not be married.
2. U.S. Census Bureau, 2005 American Community Survey.
3. Joyce A. Martin et al., “Births: Final Data for 2004,” National Vital Statistics Reports 55, no. 1
(September 29, 2006): 3.
4. W. Bradford Wilcox et al., Why Marriage Matters: 26 Conclusions from the Social Sciences (New
York: Institute for American Values, 2005), 10–11, and Institute for American Values, The Marriage
Movement: A Statement of Principles (New York: Institute for American Values, 2000),
http://center.americanvalues.org/?p=19.
5. Institute for American Values, The Marriage Movement, 11.
6. T. Ooms, S. Bouchet, and M. Parke, Beyond Marriage Licenses: Efforts in States to Strengthen
Marriage and Two-Parent Families (Washington, DC: Center for Law and Social Policy, 2004). The wel-
fare reform act of 1996 converted federal welfare funding (now known as TANF or Temporary
Assistance for Needy Families) into block grants to the states, becoming the first federal law explic-
itly to promote marriage. Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA), 42 U.S.C. 1305 (P.L. 104–193, Aug. 22, 1996). Three of the four purposes of the welfare
reform law relate to marriage, giving the states broad latitude in the use of the welfare funds: (1) to
provide assistance to needy families so that children may be cared for in their own homes or in the
homes of relatives; (2) to end the dependence of needy parents on government benefits by promot-
ing job preparation, work and marriage; (3) to prevent and reduce the incidence of out-of-wedlock
pregnancies; and (4) to encourage the formation and maintenance of two-parent families.
7. 2007 Texas H.B. 2683, fiscal note, http://www.capitol.state.tx.us/. Data on Texas program also
from personal communication with Bill Coffin, Special Assistant for Marriage Education at Administration
for Children and Families, Department of Health and Human Services.
8. Deficit Reduction Act of 2005, § 7103, P.L. 109–171 (codified at 42 U.S.C. 603(a)(2)). Allowable
marriage activities under the marriage initiative include the following: (1) public advertising campaigns
on the value of marriage and the skills needed to increase marital stability and health; (2) education
in high schools on the value of marriage, relationship skills, and budgeting; (3) marriage education,
marriage skills, and relationship skills programs, that may include parenting skills, financial manage-
ment, conflict resolution, and job and career advancement, for non-married pregnant women and non-
married expectant fathers; (4) premarital education and marriage skills training for engaged couples
and for couples or individuals interested in marriage; (5) marriage enhancement and marriage skills
training programs for married couples; (6) divorce reduction programs that teach relationship skills;
(7) marriage mentoring programs which use married couples as role models and mentors in at-risk
communities; and (8) programs to reduce the disincentives to marriage in means-tested aid programs,
if offered in conjunction with any activity above.
9. To address this issue, we propose the following thought experiment: If all currently unmarried
adult women were instead married (which would also mean all children now living with a single
mother were instead living with two married parents), how much would taxpayers save? The amount
that taxpayers would save if all single women (including mothers) married is the taxpayer cost of fam-
ily fragmentation. (Again, we are not saying that all women should be married, rather that posing such
a scenario helps us to capture the costs of family fragmentation.) Throughout the analysis, individu-
als who are not married or who have experienced a divorce or a nonmarital birth are considered to
be living in a “fragmented” family. As discussed below, we exclude all adults and children living with
a male householder with no spouse present from the analysis only in the interest of creating a very
cautious estimate of the taxpayer cost of family fragmentation. Further, as shown in table 2, single
motherhood occurs much more frequently than single fatherhood. As discussed below, it is likely not
theoretically possible (nor necessarily desirable) for all women to be married, and the analysis in this
study takes this concern into account.
10. Lack of fulltime work seems to be the biggest cause of poverty in America with family frag-
mentation being the second largest cause; see Ron Haskins and Isabel Sawhill, “Work and Marriage:
The Way to End Poverty and Welfare,” Policy Brief, Welfare Reform & Beyond #28 (Washington, DC:
Brookings Institution, 2003). See also Paul Amato, “The Impact of Family Formation Change on the
Cognitive, Social and Emotional Well-Being of the Next Generation,” The Future of Children 15, no. 2
(Fall 2005): 75–96; Wilcox et al., Why Marriage Matters; K. A. Moore et al, “Marriage from a Child’s
Perspective: How Does Family Structure Affect Children and What Can We Do about It?” Child Trends
Research Brief, June 2002; Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What
Helps, What Hurts (Cambridge, MA: Harvard University Press, 1994).
001169
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11. Wilcox et al., Why Marriage Matters; David Ribar, “What Do Social Scientists Know about the
Benefits of Marriage? A Review of Quantitative Methodologies,” IZA Discussion Paper # 998 (Bonn,
Germany: Institute for the Study of Labor, January 2004), http://ftp.iza.org/dp998.pdf.
12. Examples of habits, traits, and disadvantages that may lead to negative life outcomes (which
are costly to taxpayers) and to a lack of marriage, to divorce, and to nonmarital childbearing include
not considering the impact of present actions and choices on the future, proclivity to violence, and a
lack of employment skills.
13. See, for example, P. R. Amato and R. A. Maynard, “Decreasing Nonmarital Births and
Strengthening Marriage to Reduce Poverty,” The Future of Children 17, no. 2 (Fall 2007): 75–96.
14. G. S. Becker, A Treatise on the Family (Cambridge, MA: Harvard University Press, 1981) pro-
vides the seminal economic explanation: specialization and exchange and economies of scale. Ribar,
“What Do Social Scientists Know?” provides an extensive review of the empirical literature on these
effects. For example, Ginther and Zavodny suggest that marriage leads to a causal increase in male
labor supply; see D. Ginther and M. Zavodny, “Is the Male Marriage Premium Due to Selection? The
Effect of Shotgun Weddings on the Return to Marriage,” Journal of Population Economics 14 (2001):
313–328.
15. In a forthcoming article in the Journal of Human Resources titled “The Effect of Marital
Breakup on the Income Distribution of Women with Children,” Elizabeth O. Ananat and Guy Michaels
use exogenous variation in the sex of the firstborn child to estimate the impact of divorce on income.
Prior studies have shown that marriages in which the firstborn child is male are less likely to end in
divorce (see, e.g., K. Bedard and O. Deschenes, “Sex Preferences, Marital Dissolution, and the
Economic Status of Women,” Journal of Human Resources 40, no. 2 [Spring 2005]: 411–434).
16. Ananat and Michaels, “The Effects of Marital Breakup,” table 3.
17. Robert Lerman, “The Impact of the Changing U.S. Family Structure on Child Poverty and
Income Inequality” Economica 63 (1996): S119–S139.
18. In “For Richer or for Poorer: Marriage as an Antipoverty Strategy,” Journal of Policy Analysis
and Management 21, no. 4 (2002): 587–599, Adam Thomas and Isabel Sawhill (like Lerman) did not
match all single mothers with husbands. They report that there were more than enough single white
males to marry all single white mothers in the CPS, but there was a shortage of single black males to
marry all single black mothers. In many low-income communities, women probably outnumber mar-
riageable men, because of higher death and incarceration rates of males, meaning it would not be the-
oretically possible to marry all single mothers. They suggest that the lack of marriageable black males
or the reported undercount of minorities in the CPS could be responsible for the dearth of black males
available in the CPS. In addition to black males, there is likely also a shortage of elderly males of all
races eligible to marry elderly females because of higher death rates at younger ages among males.
19. Ribar, “What Do Social Scientists Know?” 38–46.
20. See Hilary Hoynes, Marianne Page, and Ann Stevens, “Poverty in America: Trends and
Explanation,” Journal of Economic Perspectives 20, no. 1 (Winter 2006): 47–68, published by the
American Economic Association; and R. Blank and D. Card, “Poverty, Income Distribution and
Growth: Are They Still Related?” Brookings Papers on Economic Activity 48, no.2 (1993): 285–340, pub-
lished by The Brookings Institution.
21. Thomas and Sawhill, “For Richer or for Poorer.”
22. Robert M. O’Brien and Jean Stockard, “The Cohort-size Same-size Conundrum: An Empirical
Analysis and Assessment Using Homicide Arrest Data from 1960 to 1999,” Journal of Quantitative
Criminology 19 (2003): 1–32.
23. Cynthia Harper and Sara McLanahan, “Father Absence and Youth Incarceration,” Journal of
Research on Adolescence 14, no. 3 (2004): 369–397. Harper and McLanahan do not attempt to control
for unobserved selection effects, which limits our confidence that all of the large differences in risk of
incarceration they found due to family structure are causally related to parents’ marital status.
However, the large number of control variables in their empirical model and the large magnitudes of
their results make it hard to believe that the impact of family fragmentation of boys’ and young men’s
criminal conduct is zero.
24. Robert Sampson, J. Laub, and C. Wimer, “Does Marriage Reduce Crime? A Counterfactual
Approach to Within-Individual Causal Effects,” Criminology 44, no. 3 (2006): 465–504.
25. Paul R. Amato and Alan Booth, A Generation at Risk: Growing Up in an Era of Family
Upheaval (Cambridge: Harvard University Press, 1997), 220. While the theoretical and empirical case
for marriage having a beneficial impact on men, women, and children may be strong, surely in some
cases spouses and children are better off without one parent in the home. For example, a woman and
children may be better off without the father when the father is violent or when the marriage is high-
conflict. In “Until Death Do You Part: The Effects of Unilateral Divorce on Spousal Homicides,”
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Economic Inquiry 41 (2003): 163–183, T. S. Dee finds that unilateral divorce laws, which were found
to lead to increases in divorce (see L. Friedberg, “Did Unilateral Divorce Raise Divorce Rates?
Evidence from Panel Data,” American Economic Review 88 [1998]: 608–627), have a negligible effect
on the incidence of husbands murdering wives, but unilateral divorce coupled with laws that
favored husbands in the division of marital property led to a 21 percent increase of lethal spousal
violence against husbands. Contrary to Dee’s results, B. Stevenson and J. Wolfers (see “Bargaining
in the Shadow of the Law: Divorce Laws and Family Distress” Quarterly Journal of Economics 121,
no. 1 [2006]: 267–288) find that no-fault divorce led to a large decline in spousal homicide against
wives and no change in spousal homicide against husbands. Dee replicates the results of a 2000
version of Stevenson and Wolfers’ work and finds that their results are sensitive to a variety of
assumptions and specification (see Dee, pp. 177–178). It is unclear whether any changes in their
analysis that were present in Stevenson and Wolfers’ published version in 2006 render Dee’s con-
cerns in 2003 moot, as Stevenson and Wolfers do not directly address these concerns in 2006.
Therefore, there does not seem to be definitive evidence that unilateral divorce laws decrease
spousal homicide against wives. Nevertheless, Wilcox et al., Why Marriage Matters, 31, summarize
evidence that married women are subject to less violence inside and outside the home relative to
single and cohabitating women. In addition, Ananat and Michaels find that divorce benefits some
women with children financially, as they moved in with relatives with significant incomes and/or
the former husband was not contributing anything or very much to family income (see their forth-
coming article “The Effects of Marital Breakup”). Nevertheless, as discussed in the text, Ananat and
Michaels also find that divorce greatly increases the odds that women with children are in the low-
est income quartile. In some individual cases women and children may be better off without the
children’s father because they avoid violence or poverty, but empirical evidence suggests that mar-
riage tends to have the opposite effect by keeping women and children away from violence and
increasing material resources.
26. There are other taxpayer-funded programs that likely experience larger expenditures due to
family fragmentation such the Earned Income Tax Credit, remedial school programs, and special edu-
cation programs. These programs were excluded because we did not feel comfortable making reason-
able cost estimates given the available empirical literature. The likelihood that these programs would
experience reduced costs if more single-adult households became married families suggests that this
estimate of the taxpayer cost of family fragmentation is an underestimate of the true costs. Some state
funds for TANF programs that benefit children are included in the “child welfare” calculation below,
but other non-cash assistance TANF funds are excluded from this analysis.
27. Some evidence suggests that more children in single-parent families are hospitalized for asthma
or childhood diabetes because single parents can be less able to manage the complex stresses of
chronic illness for themselves and their children, and because they have less access to adequate health
care. See Linda Waite and Maggie Gallagher, The Case for Marriage: Why Married People Are Happier,
Healthier, and Better-Off Financially (New York: Doubleday, 2000).
28. Assumption 3 does not imply that only households in poverty are eligible for means-tested
programs. Most federal means-tested programs serve significant numbers of households with incomes
above poverty thresholds. As marriage would reduce poverty by increasing household incomes, mar-
riage would also increase the income of households that already had incomes above poverty thresh-
olds but were receiving means-tested transfers. At least some of these households would be rendered
ineligible for these means-tested transfers due to marriage.
29. Ananat and Michaels, “The Effects of Marital Breakup” and Thomas and Sawhill, “For Richer
or for Poorer.”
30. In table 3, female-headed households refers to all households with a female householder and
no spouse present, including households with and without children. In 2006 there were 12,827,000
children in poverty. Among those, 7,715,000 lived with a single mother. If marriage were to lift 60 per-
cent of these 7,715,000 children out of poverty, then 4,629,000 children would escape poverty. Thus,
marriage would lift 4,629,000/12,827,000 or 36.1 percent of these children out of poverty. In 2006 there
were 36,460,000 total persons in poverty. Among those, 19,257,000 lived with a female householder
with no spouse present or were themselves the female householder with no spouse. If marriage were
to lift 60 percent of these 19,257,000 individuals out of poverty, then 11,554,000 people would escape
poverty. Thus, marriage would lift 11,554,000/36,460,000 or 31.7 percent of these individuals out of
poverty.
31. Based on their estimate of the impact of marriage on the poverty status of female-headed
households, Thomas and Sawhill find that the overall 1998 poverty rate would have been 24 percent
lower if the proportion of children living in female-headed households in 1998 was the same as had
existed in 1970 (see Thomas and Sawhill, “For Richer or for Poorer”).
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32. Based on table 3, assumption 2 suggests that family fragmentation is responsible for 36.1 per-
cent of childhood poverty, and assumption 3 suggests that family fragmentation is responsible for 36.1
percent of taxpayer costs on these programs.
33. For example, under current rules, if increases in marriage moved some children off the Head
Start rolls (because they are no longer poor), then other children who are eligible but do not currently
receive Head Start services would be admitted into newly freed-up Head Start spaces.
34. Harper and McLanahan, “Father Absence and Youth Incarceration.”
35. Sampson, Laub, and Wimer, “Does Marriage Reduce Crime?”
36. Harry Holzer et al., The Economic Costs of Poverty in the United States: Subsequent Effects of
Children on Growing Up Poor (Washington, DC: Center for American Progress, January 24, 2007),
http://www.americanprogress.org/issues/2007/01/pdf/poverty_report.pdf.
37. See, for example, Ribar, “What Do Social Scientists Know?”
38. See, for example, McLanahan and Sandefur, Growing Up with a Single Parent.
39. Holzer et al., The Economic Costs of Poverty.
40. In the estimates for individual states, we use state-specific average tax rates from
TaxFoundation.org, “Tax Data: State and Local Tax Burdens Compared to Other U.S. States,
1970–2007,” April 4, 2007, http://www.taxfoundation.org/taxdata/show/335.html.
41. The specific calculations for each line item and the data sources used are contained in table
A.1 and its notes. These taxpayer costs can be considered as annual recurring costs under the assump-
tion that current rates of single motherhood remain constant into the future.
42. For example, the U.S. spends almost $500 billion per year on public education. See Thomas
D. Snyder, Mini-Digest of Education Statistics, 2007, NCES 2008-023. (Washington, DC: National Center
for Education Statistics, Institute of Educational Sciences, U.S. Department of Education, 2008).
43. See, for example, Waite and Gallagher, The Case for Marriage; and Elizabeth Marquardt, “The
New Alone,” Washington Post, January 27, 2008, B01.
44. As shown in tables 4–6 based on the 2006 Current Population Survey, single-mother house-
holds with income less than 200 percent of the poverty line are 2.6 times as likely to receive Food
Stamps, 2.9 times as likely to receive cash assistance, and 1.56 times as likely to receive Medicaid than
married couples also earning less than 200 percent of the poverty threshold.
45. Using estimates and calculations from Gregory Acs and Elaine Maag, Irreconcilable
Differences? The Conflict between Marriage Promotion Initiatives for Cohabiting Couples with Children
and Marriage Penalties in Tax and Transfer Programs (Washington, DC: Urban Institute, 2005), we
estimate the $0.5 billion amount.
46. Holzer et al., The Economic Costs of Poverty, 6.
47. Ribar, “What Do Social Scientists Know?”
48. Thomas and Sawhill, “For Richer or for Poorer.”
49. Of course, higher dropout rates would lower future earnings, and government spends con-
siderable resources on attempting to prevent high school students from dropping out and providing
services to help dropouts earn a high school diploma or GED.
50. See Waite and Gallagher, The Case for Marriage.
51. Harper and McLanahan, “Father Absence and Youth Incarceration.”
52. Sampson, Laub, and Wimer, “Does Marriage Reduce Crime?”
53. Harper and McLanahan, “Father Absence and Youth Incarceration,” table 2.
54. Doris J. James, The Profile of Jail Inmates, 2002, Special Report NCJ 201932 (Washington, DC: U.S.
Department of Justice, Bureau of Justice Statistics, July 2004), http://www.ojp.usdoj.gov/bjs/abstract/pji02.htm.
55. Ribar, “What Do Social Scientists Know?” 38.
56. Based on data used by Jens Ludwig in “The Costs of Crime” testimony to the U.S. Senate
Committee on the Judiciary” on September 19, 2006, in the entire U.S., state and local taxpayers spent
about $183 billion on the justice system in FY 2007, while the remaining $49 billion was spent by the
federal government (see http://judiciary.senate.gov/testimony.cfm?id=2068&wit_id=5749).
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TAB 66




BEYOND SAME-SEX MARRIAGE:
A NEW STRATEGIC VISION FOR ALL OUR
FAMILIES & RELATIONSHIPS
July 26, 2006
We, the undersigned - lesbian, gay, bisexual, and transgender (LGBT) and allied activists, scholars,
educators, writers, artists, lawyers, journalists, and community organizers - seek to offer friends and
colleagues everywhere a new vision for securing governmental and private institutional recognition
of diverse kinds of partnerships, households, kinship relationships and families. In so doing, we
hope to move beyond the narrow confines of marriage politics as they exist in the United States
today.
We seek access to a flexible set of economic benefits and options regardless of sexual orientation,
race, gender/gender identity, class, or citizenship status.
We reflect and honor the diverse ways in which people find and practice love, form relationships,
create communities and networks of caring and support, establish households, bring families into
being, and build innovative structures to support and sustain community.
In offering this vision, we declare ourselves to be part of an interdependent, global community. We
stand with people of every racial, gender and sexual identity, in the United States and throughout
the world, who are working day-to-day - often in harsh political and economic circumstances - to
resist the structural violence of poverty, racism, misogyny, war, and repression, and to build an
unshakeable foundation of social and economic justice for all, from which authentic peace and
recognition of global human rights can at long last emerge.
WHY THE LGBT MOVEMENT NEEDS A NEW STRATEGIC VISION
Household & Family Diversity is Already the Norm
The struggle for same-sex marriage rights is only one part of a larger effort to strengthen the
security and stability of diverse households and families. LGBT communities have ample reason to
recognize that families and relationships know no borders and will never slot narrowly into a single
existing template.
All families, relationships, and households struggling for stability and economic security will be
helped by separating basic forms of legal and economic recognition from the requirement of marital
and conjugal relationship.
U.S. Census findings tell us that a majority of people, whatever their sexual and gender identities,
do not live in traditional nuclear families. Recognizing the diverse households that already are the
norm in this country is simply a matter of expanding upon the various forms of legal recognition
that already are available. The LGBT movement has played an instrumental role in creating and
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Beyond Same-Sex Marriage 2
advocating for domestic partnerships, second parent adoptions, reciprocal beneficiary arrangements,
joint tenancy/home-ownership contracts, health care proxies, powers of attorney, and other
mechanisms that help provide stability and security for lesbian, gay, bisexual, and heterosexual
individuals and families. During the height of the AIDS epidemic, our communities formed support
systems and constructed new kinds of families and partnerships in the face of devastating crisis and
heartbreak. Both our communities and our HIV organizations recognized, respected, and fought for
the rights of non-traditionally constructed families and non-conventional partnerships. Moreover,
the transgender and bisexual movements, so often historically left behind or left out by the larger
lesbian and gay movement, have powerfully challenged legal constructions of relationship and
fought for social, legal, and economic recognition of partnerships, households, and families, which
include members who shatter the narrow confines of gender conformity.
To have our government define as "legitimate families" only those households with couples in
conjugal relationships does a tremendous disservice to the many other ways in which people
actually construct their families, kinship networks, households, and relationships. For example, who
among us seriously will argue that the following kinds of households are less socially,
economically, and spiritually worthy?
• Senior citizens living together, serving as each other's caregivers, partners, and/or constructed
families
• Adult children living with and caring for their parents
• Grandparents and other family members raising their children's (and/or a relative's) children
• Committed, loving households in which there is more than one conjugal partner
• Blended families
• Single parent households
• Extended families (especially in particular immigrant populations) living under one roof, whose
members care for one another
• Queer couples who decide to jointly create and raise a child with another queer person or
couple, in two households
• Close friends and siblings who live together in long-term, committed, non-conjugal
relationships, serving as each other's primary support and caregivers
• Care-giving and partnership relationships that have been developed to provide support systems
to those living with HIV I AIDS
Marriage is not the only worthy form of family or relationship, and it should not be legally and
economically privileged above all others. While we honor those for whom marriage is the most
meaningful personal- for some, also a deeply spiritual- choice, we believe that many other kinds
of kinship relationship, households, and families must also be accorded recognition.
An Increasing Number of Households & Families Face Economic Stress
Our strategies must speak not only to the fears, but also the hopes, of millions of people in this
country- LGBT people and others - who are justifiably afraid and anxious about their own
economic futures.
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Beyond Same-Sex Marriage 3
Poverty and economic hardship are widespread and increasing. Corporate greed, draconian tax cuts
and breaks for the wealthy, and the increasing shift of public funds from human needs into
militarism, policing, and prison construction are producing ever-greater wealth and income gaps
between the rich and the poor, in this country and throughout the world. In the United States, more
and more individuals and families (disproportionately people of color and single-parent families
headed by women) are experiencing the violence of poverty. Millions of people are without health
care, decent housing, or enough to eat. We believe an LGBT vision for the future ought to
accurately reflect what is happening throughout this country. People are forming unique unions and
relationships that allow them to survive and create the communities and partnerships that mirror
their circumstances, needs, and hopes. While many in the LGBT community call for legal
recognition of same-sex marriage, many others -heterosexual and/or LGBT - are shaping for
themselves the relationships, unions, and informal kinship systems that validate and support their
daily lives, the lives they are actually living, regardless of what direction the current ideological
winds might be blowing.
The Right's "Marriage Movement" is Much Broader than Same-Sex Marriage
LGBT movement strategies must be sufficiently prophetic, visionary, creative, and practical to
counter the right's powerful and effective use of"wedge" politics- the strategic marketing of fear
and resentment that pits one group against another.
Right-wing strategists do not merely oppose same-sex marriage as a stand-alone issue. The entire
legal framework of civil rights for all people is under assault by the Right, coded not only in terms
of sexuality, but also in terms of race, gender, class, and citizenship status. The Right's anti-LGBT
position is only a small part of a much broader conservative agenda of coercive, patriarchal
marriage promotion that plays out in any number of civic arenas in a variety of ways - all of which
disproportionately impact poor, immigrant, and people-of-color communities. The purpose is not
only to enforce narrow, heterosexist definitions of marriage and coerce conformity, but also to slash
to the bone governmental funding for a wide array of family programs, including childcare,
healthcare and reproductive services, and nutrition, and transfer responsibility for financial survival
to families themselves.
Moreover, as we all know, the Right has successfully embedded "stealth" language into many anti-
LGBT marriage amendments and initiatives, creating a framework for dismantling domestic partner
benefit plans and other forms of household recognition (for queers and heterosexual people alike).
Movement resources are drained by defensive struggles to address the Right's issue-by-issue
assaults. Our strategies must engage these issues head-on, for the long term, from a position of
vision and strength.
"Yes!" to Caring Civil Society and "No!" to the Right's Push for Privatization
Winning marriage equality in order to access our partners' benefits makes little sense if the benefits
that we seek are being shredded.
At the same time same-sex marriage advocates promote marriage equality as a way for same-sex
couples and their families to secure Social Security survivor and other marriage-related benefits, the
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Beyond Same-Sex Marriage 4
Right has mounted a long-term strategic battle to dismantle all public service and benefit programs
and civic values that were established beginning in the 1930s, initially as a response to widening
poverty and the Great Depression. The push to privatize Social Security and many other human
needs benefits, programs, and resources that serve as lifelines for many, married or not, is at the
center of this attack. In fact, all but the most privileged households and families are in jeopardy as a
result of a wholesale right-wing assault on funding for human needs, including Medicare, Medicaid,
welfare, HIV -AIDS research and treatment, public education, affordable housing, and more.
This bad news is further complicated by a segment of LGBT movement strategy that focuses on
same-sex marriage as a stand-alone issue. Should this strategy succeed, many individuals and
households in LGBT communities will be unable to access benefits and support opportunities that
they need because those benefits will only be available through marriage, if they remain available at
all. Many transgender, gender queer, and other gender-nonconforming people will be especially
vulnerable, as will seniors. For example, an estimated 70-80% ofLGBT elders live as single people,
yet they need many of the health care, disability, and survivorship benefits now provided through
partnerships only when the partners are legally married.
Rather than focus on same-sex marriage rights as the only strategy, we believe the LGBT
movement should reinforce the idea that marriage should be one of many avenues through which
households, families, partners, and kinship relationships can gain access to the support of a caring
civil society.
The Longing for Community and Connectedness
We believe LGBT movement strategies must not only democratize recognition and benefits but also
speak to the widespread hunger for authentic and just community.
So many people in our society and throughout the world long for a sense of caring community and
connectedness, and for the ability to have a decent standard of living and pursue meaningful lives
free from the threat of violence and intimidation. We seek to create a movement that addresses this
longing.
So many of us long for communities in which there is systemic affirmation, valuing, and nurturing
of difference, and in which conformity to a narrow and restricting vision is never demanded as the
price of admission to caring civil society. Our vision is the creation of communities in which we are
encouraged to explore the widest range of non-exploitive, non-abusive possibilities in love, gender,
desire and sex - and in the creation of new forms of constructed families without fear that this
searching will potentially forfeit for us our right to be honored and valued within our communities
and in the wider world. Many of us, too, across all identities, yearn for an end to repressive
attempts to control our personal lives. For LGBT and queer communities, this longing has special
significance.
We who have signed this statement believe it is essential to work for the creation of public arenas
and spaces in which we are free to embrace all of who we are, repudiate the right-wing demonizing
ofLGBT sexuality and assaults upon queer culture, openly engage issues of desire and longing, and
affirm, in the context of caring community, the complexities and richness of gender and sexual
diversity. However we choose to live, there must be a legitimate place for us.
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Beyond Same-Sex Marriage 5
THE PRINCIPLES AT THE HEART OF OUR VISION
We, the undersigned, suggest that strategies rooted in the following principles are urgently needed:
)' Recognition and respect for our chosen relationships, in their many forms
)' Legal recognition for a wide range of relationships, households, and families, and for the
children in all of those households and families, including same-sex marriage, domestic
partner benefits, second-parent adoptions, and others
)' The means to care for one another and those we love
)' The separation of benefits and recognition from marital status, citizenship status, and the
requirement that "legitimate" relationships be conjugal
)' Separation of church and state in all matters, including regulation and recognition of
relationships, households, and families
)' Access for all to vital government support programs, including but not limited to: affordable
and adequate health care, affordable housing, a secure and enhanced Social Security system,
genuine disaster recovery assistance, welfare for the poor
)' Freedom from a narrow definition of our sexual lives and gender choices, identities, and
expression
)' Recognition of interdependence as a civic principle and practical affirmation ofthe
importance of joining with others (who may or may not be LGBT) who also face opposition
to their household and family compositions, including old people, immigrant communities,
single parents, battered women, prisoners and former prisoners, people with disabilities, and
poor people
We must ensure that our strategies do not help create or strengthen the legal framework for gutting
domestic partnerships (LGBT and heterosexual) for those who prefer this or another option to
marriage, reciprocal beneficiary agreements, and more. LGBT movement strategies must never
secure privilege for some while at the same time foreclosing options for many. Our strategies
should expand the current terms of debate, not reinforce them.
A WINNABLE STRATEGY
No movement thrives without the critical capacity to imagine what is possible.
Our call for an inclusive new civic commitment to the recognition and well-being of diverse
households and families is neither utopian nor unrealistic. To those who argue that marriage
equality must take strategic precedence over the need for relationship recognition for other kinds of
partnerships, households, and families, we note that same-sex marriage (or close approximations
thereof) were approved in Canada and other countries only after civic commitments to universal or
widely available healthcare and other such benefits. In addition, in the United States, a strategy that
links same-sex partner rights with a broader vision is beginning to influence some statewide
campaigns to defeat same-sex marriage initiatives.
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Beyond Same-Sex Marriage 6
A Vision for All Our Families and Relationships is Already Inspiring Positive Change
We offer a few examples of the ways in which an inclusive vision, such as we propose, can promote
practical, progressive change and open up new opportunities for strategic bridge-building.
• Canada
Canada has taken significant steps in recent years toward legally recognizing the equal value
of the ways in which people construct their families and relationships that fulfill critical
social functions (such as parenting, assumption of economic support, provision of support
for aging and infirm persons, and more).
o In the 1990s, two constitutional cases heard by that country's Supreme Court
extended specific rights and responsibilities of marriage to both opposite-sex and
same-sex couples. Canada's federal Modernization of Benefits and Obligation Act
(2000) then virtually erased the legal distinction between marital and non-marital
conjugal relationships.
o In 2001, in consideration of its mandate to "consider measures that will make the
legal system more efficient, economical, accessible, and just," the Law Commission
of Canada released a report, Beyond Conjugality, calling for fundamental revisions in
the law to honor and support all caring and interdependent personal adult
relationships, regardless of whether or not the relationships are conjugal in nature.
• Arizona
The Arizona Together Coalition (www.aztogether.org) is currently running a broad, multi-
constituency campaign that emphasizes how the proposed constitutional amendment to
"protect marriage" will affect not just same-sex couples but also seniors, survivors of
domestic violence, unmarried heterosexual couples, adopted children and the business
community. The Arizona Coalition highlights the probability that the amendment will
eliminate domestic partnership recognition, by both government and businesses. They also
point out that DOMA supporters are the same forces that wanted to keep cohabitation a
crime. As a result of the Coalition's efforts, support for the constitutional amendment
declined sharply in polls (from 49% to 33%) in the course of a few months (May 2005-
September 2005). Accordingly, should the amendment make it onto the November 2006
ballot, Arizona is poised to become the first state to reject a state anti-gay constitutional
marriage amendment in the voting booth. We suggest that the LGBT movement pay close
attention to the way that activists in Arizona frame their campaign to be about protecting a
variety of different family arrangements.
• South Carolina
The South Carolina Equality Coalition (www.scequality.org) is fighting a proposed
constitutional amendment with an organizing effort emphasizing "Fairness for All
Families." This coalition is not only focused on LGBT-headed families, but is also
intentionally building relationships with a broad multi-constituency base of immigrant
communities, elders, survivors of domestic violence, unmarried heterosexual couples,
adopted children, families of prisoners, and more. As we write this statement, the Coalition's
efforts to work in this broader way are being further strengthened by emphasis on the
message that "Families have no borders. We all belong."
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Beyond Same-Sex Marriage 7
• Utah
In September 2005, Salt Lake City Mayor Ross Anderson signed an Executive Order
enabling city employees to obtain health insurance benefits for their "domestic partners." A
few months later, trumping the executive order, the Salt Lake City Council enacted an
ordinance allowing city employees to identify an "adult designee" who would be entitled to
health insurance benefits in conjunction with the benefits provided to the employee. The
requirements included living with the employee for more than a year, being at least 18 years
old, and being economically dependent or interdependent. Benefits extend to children of the
adult designee as well. While an employee's same-sex or opposite-sex partner could
qualify, this definition is broad enough to encompass many other household configurations.
The ordinance has survived both a veto by the Mayor (who wanted to provide benefits only
to "spousal like" relationships) and a lawsuit launched by anti-gay groups. The judge who
ruled in the lawsuit wrote that "single employees may have relationships outside of
marriage, whether motivated by family feeling, emotional attachment or practical
considerations, which draw on their resources to provide the necessaries of life, including
health care." We advocate close attention to such efforts to provide material support for the
widest possible range of household formations.
We offer these four examples to show that there are ways of moving forward with a strategic vision
that is broader than same-sex marriage, and encompassing of all our families and relationships.
Different regions of our country will require different strategies, but we can, and must, keep central
to our work the idea that all family forms must be protected - not just because it is the right thing to
do, but also because it is the strategic and winnable way to move forward.
A Bold, New Vision Will Speak to Many Who are Not Already With Us
At a time when an ethos of narrow self-interest and exclusion of difference is ascendant, and when
the Right asserts a scarcity ofhuman rights and social and economic goods, this new vision holds
long-term potential for creating powerful and vibrant new relationships, coalitions, and alliances
across constituencies- communities of color, immigrant communities, LGBT and queer
communities, senior citizens, single-parent families, the working poor, and more -hit hard by the
greed and inhumanity of the Right's economic and political agendas.
At a time when the conservative movement is generating an agenda of fear, retrenchment, and
opposition to the very idea of a caring society, we need to claim the deepest possibilities for
interdependent social relationships and human expression. We must dare to dream the world that
we need, the world that has room for us all, even as we also do the painstaking work of crafting the
practical strategies that will address the realities of our daily lives. The LGBT movement has a
history ofbeing diligent and creative in protecting our families. Now, more than ever, is the time to
continue to find new ways of defending all our families, and to fight to make same-sex marriage
just one option on a menu of choices that people have about the way they construct their lives.
We invite friends everywhere to join us in ensuring that there is room, recognition, and practical
support for us all, as we dream together a new future where all people will truly be free.
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Beyond Same-Sex Marriage
SIGNED BY:
(All organizational affiliations listed for identification purposes only.
Asterisks indicate "BEYOND SAME-SEX MARRIAGE" authors.)
Mimi Abramovitz
8
Professor of Social Policy, Hunter College School of Social Work and the CUNY Graduate Center
Author, Regulating the Lives of Women
Katherine Acey *
Executive Director, Astraea Lesbian Foundation for Justice
Kimberly D. Acquaviva
Washington, DC
Cathy Albisa
Executive Director, National Economic and Social Rights Initiative
Dorothy Allison
Author, Bastard Out of Carolina, and Cavedweller
Amy Andre
Sexuality author/educator and bi activist,
Documentary filmmaker, Black And White All Over Films
Martha Ackelsberg
Prof of Government and Women's Studies, Smith College
co-author, Why We're Not Getting Married
Nikhil Aziz
Executive Director, Grassroots International
Iuelle Bagwell
Coordinating Team Member, Church Within a Church Movement
Marlon M. Bailey
Chancellor's Postdoctoral Fellow in Gender and Women's Studies,
University of California-Berkeley
Andre Banks,
Director of Media and Public Affairs, Applied Research Center
RachelBaum
Former National Program Associate Director, The National Coalition of Anti-Violence Projects
Nancy K. Bereano
Organizer, Tompkins County Working Group on LGBT Aging
001182
Beyond Same-Sex Marriage
Founding publisher and editor, Firebrand Books
Lauren Berlant
George M. Pullman Professor of English, University of Chicago
Editor, Intimacy
Joan E. Biren (JEB)
Filmmaker/photographer
Ricky Blum
Board of Directors, Queers for Economic Justice
Staff Attorney, Legal Aid Society
Member, Pride At Work
Terry Boggis *
9
Director, Center Kids, the family program of The Lesbian, Gay, Bisexual and Transgender
Community Center
Co-Chair, Board of Directors, Queers for Economic Justice
Marsha C. Botzer
Founder, Ingersoll Gender Center
Candice Boyce
Board Chair, African Ancestral Lesbians United for Societal Change
Laura Briggs
Associate Professor of Women's Studies, University of Arizona
Author, Reproducing Empire: Race. Sex. Science and U.S. Imperialism in Puerto Rico
Member, No More Deaths
Susie Bright
author
Michael Bronski
Visiting Professor in Women's and Gender Studies and Jewish Studies, Dartmouth College
Author, The Pleasure Principle: Sex. Backlash, and the Struggle for Gay Freedom
Wendy Brown
Professor ofPolitical Science, University of California-Berkeley
Author, States of Injury
Wayne Bryant
Past President, Bisexual Resource Center
Author, Bisexual Characters in Film
Charlotte Bunch
Executive Director, Center for Women's Global Leadership, Rutgers University
001183
Beyond Same-Sex Marriage 10
Kent Burbank
Executive Director, Wingspan (South Arizona's LGBT Community Center)
Linda Burnham
Executive Director, Women of Color Resource Center, Oakland
Richard D. Burns
Executive Director, Lesbian, Gay, Bisexual & Transgender Community Center
Judith Butler
Maxine Elliot Professor, Rhetoric and Comparative Literature, University of California-Berkeley
Author, Gender Trouble and Antigone's Claim
Leslie Cagan
National Coordinator, United for Peace and Justice
Mandy Carter
Board Member, National Black Justice Coalition
Former Executive Director, Southerners On New Ground
Ellen Carton
Former Executive Director, Gay & Lesbian Alliance Against Defamation
Virginia Casper
Associate Dean for Academic Affairs, Bank Street College of Education, New York City
Co-author, Gay Parents/Straight Schools: Building Communication and Trust
Eli Clare
Author, Exile and Pride: Disability, Queerness, and Liberation
Pat Clark
Former Executive Director, Fellowship of Reconciliation
Cheryl Clarke
Poet and author, The Days of Good Looks: Prose and Poetry: 1980-2005
Blanche Wiesen Cook
Author, Eleanor Roosevelt, vols. I & II
Professor, John Jay College & the Graduate Center/CUNY
E.G. Crichton
Professor of Art, University of California-Santa Cruz
Paisley Currah
Executive Director, Center for Lesbian and Gay Studies (CLAGS)
Director, Transgender Law & Policy Institute
001184
Beyond Same-Sex Marriage
Wendy Curry
Vice President, BiNet USA
Ann Cvetkovich
Professor ofEnglish, University of Texas, Austin
Author, An Archive of Feelings: Trauma, Sexuality and Lesbian Public Cultures
Debanuj Dasgupta *
Board of Directors, Queer Immigrant Rights Project
Trishala Deb
Program Coordinator for the Training and Resource Center, Audre Lorde Project
Kathleen DeBold
Executive Director, Mautner Project, the National Lesbian Health Organization
Lara Deeb
Assistant Professor of Women's Studies, University of California-Irvine
Founding member, Radical Arab Women's Activist Network
Board member, National Council of Arab Americans Defense of Civil Rights Committee
Joseph N. DeFilippis*
Executive Director, Queers for Economic Justice
Former Director, SAGE/Queens
John D'Emilio
Professor of Gender Studies, University of Illinois at Chicago
Founding Director, The Policy Institute of the National Gay and Lesbian Task Force
Co-Editor, Creating Change: Sexuality, Public Policy and Civil Rights
Lisa Dettmer
Producer, Women's Magazine KPF A Radio
Caroyln Dinshaw
Founder, The Center for the Study of Gender and Sexuality
Professor of English and Social & Cultural Analysis, New York University
Founding Co-Editor, GLQ: A Journal of Lesbian and Gay Studies
Bill Dobbs
Betty Dodson, PhD
Sexologist
Author, Sex for One and Orgasms for Two
Heidi Dorow
Activist
II
001185
Beyond Same-Sex Marriage
Marta Drury
Nobel Peace Prize Nominee, 1000 Women for Peace, 2005
Martin Doberman
Distinguished Professor Emeritus, City University of New York
Founder, Center for Lesbian and Gay Studies, CUNY
Author, Stonewall
Aine Duggan
Vice-President, Food Bank for New York City
Board of Directors, Queers for Economic Justice
Lisa Duggan *
Professor and Director of American Studies, New York University
12
Author, The End of Marriage: The War Over the Future of State Sponsored Love (forthcoming)
Barbara Ehrenreich
Contributing Writer, New York Times, Harpers, The Progressive and Time Magazine
Author, Bait and Switch and Nickel and Dimed
Rev. Marvin M. Ellison
Willard S. Bass Professor of Christian Ethics, Bangor Theological Seminary
Author, Same-Sex Marriage? A Christian Ehtical Analysis
Annie Ellman
Co-founder and former Executive Director, Center for Anti-Violence Education
David L. Eng
Associate Professor of English, Rutgers University
Jeffrey Escoffier
Writer/Editor
Author, Sexual Revolution and American Homo: Community and Perversity
Rachel Epstein
Coordinator, LGBT Parenting Network, Family Service Association of Toronto
Paula Ettelbrick
Executive Director, International Gay and Lesbian Human Rights Commission
Kenyon Farrow *
Co-Editor, Letters from Young Activists: Today's Rebels Speak Out
Author, "Is Gay Marriage Anti-Black?"
Anne Fausto-Sterling
001186
Beyond Same-Sex Marriage 13
Professor of Biology and Gender Studies in the Department of Molecular and Cell Biology and
Biochemistry, Brown University
Author, Sexing the Body
Leslie Feinberg
Co-Chair, LGBT Caucus of National Writers Union/UA W
Author, Stone Butch Blues
Chai Feldblum
Professor of Law, Georgetown University Law Center
Roderick Ferguson
Associate Professor of American Studies, University of Minnesota
Author, Aberrations in Black: Toward a Queer of Color Critique
Martha Albertson Fineman
Robert W. Woodruff Professor, Emory University- School of Law
Author, The Autonomy Myth: A Theozy of Dependency
Laura Flanders
Host, Air America Radio
Charles Flowers
Executive Director, Lambda Literary Foundation
Katherine M. Franke
Professor ofLaw, Columbia University in the City of New York
Joyful Freeman
Director, GLTBQ Youth Program (Seattle), American Friends Service Committee
Monroe France
Educational Training Manager, GLSEN: Gay, Lesbian, Straight Education Network
Board of Directors, Queers for Economic Justice
Susana T. Fried
Independent Consultant on Gender, Sexuality and Human Rights
Former Program Director, International Gay and Lesbian Human Rights Commission
Stephen Eagle Funk
Regional Director, Iraq Veterans Against the War
Coco Fusco
Associate Professor, Columbia University in the City of New York
Robert Galloway
Pastor, MCC Knoxville, Tennessee
001187
Beyond Same-Sex Marriage
Abigail Garner
Author, Families Like Mine: Children of Gay Parents Tell It Like It Is
Nicky Grist
Executive Director, The Alternatives to Marriage Project
David Goldberg
Professor and Director, Humanities Research Institute, University of California-Irvine
Author, The Racial State
TamiGold
Filmmaker I Activist
Professor, Hunter College CUNY
Richard Gollance
Los Angeles, CA
Letitia Gomez
Gayatri Gopinath
Associate Professor ofWomen's Studies, University of California-Davis
Author, Impossible Desires: Queer Diaspora and South Asian Public Cultures
Catherine Gund
Filmmaker I Writer I Activist
Ellen Gurzinsky *
Educator I Activist
Former Executive Director, The Funding Exchange
Gael Gundin Guevara
Judith Halberstam
Professor of English, University of Southern California
Director, Center for Feminist Research at USC
Author, Female Masculinity
Karl Hamner
President, KMH Consulting, Inc.
Health Consultant I Bisexual Rights Activist
Eileen Hansen
Jean Hardisty
14
Author, Mobilizing Resentment: Conservative Resurgence from the John Birch Society to the
Promise Keepers
001188
Beyond Same-Sex Marriage
Founding and Former Executive Director, Political Research Associates
Adam Haslett
Writer
Mary Haviland
Former Co-Director, CONNECT, New York City
Kris Hayashi
Executive Director, Audre Lorde Project
Silvia Henriquez
Executive Director, National Latina Institute for Reproductive Health
Robert-John Hinojosa
Field Director, Fairness for all Families Campaign, South Carolina
President, Palmetto Umoja, SC
Co-Director, SONG, North Carolina
Lou Hoffman
Board Member, Minnesota Bisexual Organizing Project
Ann Holder
Associate Professor of History, Pratt Institute
Amber Hollibaugh *
Senior Strategist, National Gay and Lesbian Task Force
Board of Directors, Queers for Economic Justice
Author, My Dangerous Desires: A Queer Girl Dreaming Her Way Home
Mary E. Hunt
Catholic feminist theologian
Co-director, Women's Alliance for Theology, Ethics and Ritual
Nan Hunter
Professor, Brooklyn Law School
Co-Author, Sex Wars: Sexual Dissent and Political Culture
Loraine Hutchins *
Co-Editor, Bi Any Other Name
Advisory Board, BiNet USA
Abbie Illenberger
Assistant Political Director, UNITE HERE!
Janet Jakobsen
Director, Center for Research on Women, Barnard College
15
001189
Beyond Same-Sex Marriage
Co-Author, Love The Sin: Sexual Regulation and the Limits of Tolerance
Amira Jarmakani
Assistant Professor of Women's Studies, Georgia State University
Lillian Jimenez
Executive Director, Latino Educational Media Center
Darnell L. Johnson
Organizational Manager, Fairness Campaign
Co-chair, 2004 Kentucky "No on the Amendment" campaign
Founder/past President, Common Ground, University of Louisville
Rebecca 0. Johnson
Writer/ Activist
Ronald S. Johnson
Former Associate Executive Director, Gay Men's Health Crisis
Kenneth T. Jones
Research, Community Activist
Board member, In The Life Atlanta
Lani Ka'ahumanu
Co-editor, Bi Any Other Name
Advisory Board, BiNet USA
Rachael Kamel
16
Education Coordinator, Community Relations Division, American Friends Service Committee
Caren Kaplan
Associate Professor of Women's Studies and Chair of the Cultural Studies Graduate Group
University of California-Davis
Co-Editor, Between Woman and Nation
Esther Kaplan
Author, With God on Their Side
Host, Beyond the Pale, WBAI
Morris B. Kaplan
Professor of Philosophy, Purchase College, State University of New York
Jonathan Ned Katz
Historian/Independent Scholar
Author, Gay American History
Melanie Kaye/Kantrowitz
001190
Beyond Same-Sex Marriage
Author. The Issue is Power: Essays on Women, Jews. Violence and Resistance
Former Executive Director, Jews for Racial and Economic Justice
Bobbi Keppel
co-founder, Unitarian Universalists Bi Network
Hamid Khan
Executive Director, South Asian Network
Surina Khan *
Senior Program Officer, Women's Foundation of California
Former Executive Director, International Gay and Lesbian Human Rights Commission
Richard Kim *
Writer, The Nation
founding Board member, Queers for Economic Justice
Laura Kipnis
Professor of Radio-TV-Film, Northwestern University
Author, Against Love
Gwyn Kirk
Co-editor, Women's Lives: Multicultural Perspectives
Co-founder, Women for Genuine Security
Cathy Knight
Executive Director, Church Within a Church Movement
Debra Kolodny
Editor, "Blessed Bi Spirit: Bisexual People of Faith,"
Exec. Dir., ALEPH: Alliance for Jewish Renewal
Kitty Krupat
17
Associate Director, JosephS. Murphy Center for Worker Education, City University of New York
Co-editor, Out at Work
Frances Kunreuther
Director, Building Movements Project
Former Executive Director, The Hetrick Martin Institute
Malachi Larrabee-Garza
Advanced Political Education Coordinator, The School of Unity and Liberation (SOUL)
Board Member, Transgender and Intersex Justice Project (TGIJP)
DekeLaw
ArthurS. Leonard
001191
Beyond Same-Sex Marriage
Professor ofLaw, New York Law School
Asha Leong
Campaign Manager, South Carolina Equality Coalition
Rabbi Michael Lerner
Editor, Tikkun Magazine
National Chair, The Network of Spiritual Progressives
J enifer Levin
Author, Water Dancer and The Sea of Light
Reverend Jacqueline J. Lewis
Senior Minister in Charge, The Middle Collegiate Church, New York, NY
Yoseiiio V. Lewis
Board of Directors, National Gay and Lesbian Task Force
Writer/Performance Artist
Phoenix Lindsey-Hall
Volunteer Coordinator, The Fairness Campaign, Louisville, KY
Susan Lob
Director, Voices of Women Organizing Project
Kerry Lobel *
Scott Long
Director, LGBT Rights Program, Human Rights Watch
Lisa Lowe
Professor of Literature, University of California-San Diego
Author, Immigrant Acts: On Asian American Cultural Politics
Craig Lucas
Writer I Director
Samuel Lurie
Director, Transgender Awareness Training
Chris Lymbertos
Oakland, CA
Pat Maher
Co-Director, Haymarket's People Fund
Martin Manalansan
18
001192
Beyond Same-Sex Marriage
Associate Professor of Anthropology, University of Illinois at Champaign-Urbana
Author, Global Divas: Filipino Gay Men in the Diaspora
Rickke Mananzala
Campaign Coordinator, FIERCE!
William Mann
Writer and Historian
Beth Maples-Bays
East Tennessee Bureau Chief, Out and About Newspaper
Co-President, Greater Knoxville LGBTQ Leadership Council
19
Vice President, National Lesbian and Gay Journalists Association Tennessee Nashville) Chapter
Armistead Maupin
Writer/Producer
Pam McMichael
Director, Highlander Research and Education Center
Founding Co-Director, Southerners on New Ground
Terrence MeN ally
Writer
Alice M. Miller, JD*
Ass't Professor, Clinical Population and Family Health, Columbia University, Mailman School of
Public Health
Marshall Miller
Co-Founder, The Alternatives to Marriage Project
Co-Author, Unmarried to Each Other: The Essential Guide to Living Together as an Unmarried
Couple
Gwendolyn Mink
Co-Coordinator, Women's Committee of 100
Charles N. Clark Professor, Studies in Women and Gender, Smith College
Author, Welfare's End
Donna Minkowitz
Journalist
Author, Ferocious Romance
Nasreen Mohamed
Writer & Activist, Minneapolis
Jeffrey Montgomery
Executive Director, Triangle Foundation
001193
Beyond Same-Sex Marriage
Board Member, Woodhull Freedom Foundation
Richard W. Morrison
Executive Editor, University of Minnesota Press
Shadow Morton
Jose E Muiioz
Associate Professor and Chair of Performance Studies, New York University
Author, Disidentifications: Queers of Color and the Performance of Politics
Yasmin Nair
Activist, Educator
Member, CLIA (Chicago LGBTQ Immigrants Alliance)
Writer, Windy City Times
Scot Nakagawa
Grants and Program Director, Social Justice Fund Northwest
Holly Near
Singer/ Activist
Joan Nestle
Lesbian Herstory Archives
HebaNimr
Program Coordinator, Partnership for Immigrant Leadership and Action
Reverend Dr. Penny Nixon
Senior Minister, MCC San Francisco
Robin Nussbaum
Educator/ Activist
20
Former Coordinator, American Friends Service Committee (AFSC), Queers for Justice Program
Robyn Ochs
marriage equality activist
Editor, Getting Bi: Voices of Bisexuals Around the World
Margo Okazawa-Rey
Research Consultant, Women's Centre for Legal Aid and Counseling
Doyin Ola
Welfare Organizer, Queers for Economic Justice
Working Group Member, TransJustice, a project of the Audre Lorde Project
Steering Committee, Uhuru-Wazobia, LGBT Africans
001194
Beyond Same-Sex Marriage
Ana Oliveira *
Executive Director, New York Women's Foundation
Former Executive Director, Gay Men's Health Crisis
Nancy Ordover
Author, American Eugenics: Race, Queer Anatomy, and the Science ofNationalism
Reverend Freeman L. Palmer, Minister
21
Congregational Life and Development, Middle Collegiate Church, New York, New York
Cori Schmanke Parrish *
Board of Directors, Queers for Economic Justice
Cindy Patton
Professor of Sociology, Simon Fraser University
Author, The Invention of AIDS
Clarence Patton
Executive Director, The New York City Gay and Lesbian Anti-Violence Project
Acting Director, National Coalition of Anti-Violence Programs
Gerry Gomez Pearlberg
Poet/Editor
Ann Pellegrini
Associate Professor of Performance Studies and Religious Studies, New York University
Co-Author, Love the Sin: Sexual Regulation and the Limits of Tolerance
Denise Penn
Past President, BiNet USA
Board Member, The American Institute of Bisexuality (AlB)
Rosalind Petchesky
Distinguished Professor, Hunter College & the Graduate Center, City University of New York
Author, Abortion and Woman's Choice
Suzanne Pharr *
Author, In the Time of the Right: Reflections on Liberation and Homophobia: A Weapon of Sexism
Former Director, Highlander Research and Education Center
Judith Plaskow
Professor of Religious Studies, Manhattan College
co-author, Why We're Not Getting Married
Nancy Polikoff *
Professor of Law, American University, Washington College of Law
Author, Valuing All Families (forthcoming, Beacon Press, 2007)
001195
Beyond Same-Sex Marriage
Elizabeth Povinelli
Professor of Anthropology, Columbia University
Author, Empire of Love: Toward A Theory oflntimacy, Genealogy and Carnality
Achebe Betty Powell *
Activist I Educator
Consultant, Betty Powell Associates
Lisa Powell
Attorney and activist
The Rev. Cecil Charles Prescod
Director, Public Voice for Peace and Equality Project, Love Makes A Family, Inc.
Jasbir Puar
Assistant Prof. of Women's and Gender Studies, Rutgers University
Christopher Punongbayan
Advocacy Director, Filipinos for Affirmative Action
Susan Raffo
Editor, Queerly Classed: Gay Men and Lesbians Write About Class
Chandan Reddy
Assistant Professor Department of English, University of Washington, Seattle
Betsy Reed
Executive Editor, The Nation
Reno
Performance Artist
Ruby Rich
Author of Chick Flicks: Theories and Memories of the Feminist Film Movement
Community Studies Dept, UC Santa Cruz
Holly Richardson
Out Now
Ignacio Rivera *
Board of Directors, Queers for Economic Justice
Founder of Poly Patao Productions I performance artist
Colin Robinson
Founder, Caribbean Pride
22
Former Executive Director, New York State Black Gay Network & Gay Men of African Descent
001196
Beyond Same-Sex Marriage
Ruthann Robson
Professor of Law, City University of New York School of Law
Juana Maria Rodriguez
Associate Professor, Women and Gender Studies, UC Davis
Author, Queer Latinidad
Loretta J. Ross
National Coordinator, SisterSong Women of Color Reproductive Health Collective
Rev. Nori Rost
Executive Director, Just Spirit: A Center for People of All Faiths
Maggi Rubenstein
Co-founder, the San Francisco Bisexual Center
Founding member, Bay Area Bisexual Network
Graciela Isabel Sanchez
Director, Esperanza Peace and Justice Center
Ronni Sanlo ED.D
Director, UCLA LGBT Center
23
Founding Chair, National Consortium of Directors ofLGBT Resources in Higher Education
Ann Schranz
Unitarian Universalist minister
Joan Wallach Scott
Professor of Social Science, Institute for Advanced Study, Princeton University
Rinku Sen
Executive Director, Applied Research Center
Publisher, Colorlines Magazine.
Mark M. Sexton and W. Kirk Wallace
Svati P. Shah
Member, South Asian Lesbian and Gay Association
Assistant Professor/Faculty Fellow, Center for the Study of Gender and Sexuality,
New York University
Julie Shapiro
Associate Professor ofLaw, Seattle University School of Law
Eveline Shen
Executive Director, Asian Communities for Reproductive Justice
001197
Beyond Same-Sex Marriage
Carl Siciliano
Founder/Executive Director, Ali Forney Center
Kathy Skaggs
Writer
Anna Marie Smith
Associate Professor of Government, Cornell University
Author, Welfare Reform and Sexual Regulation (forthcoming)
Rita Smith
Executive Director, National Coalition Against Domestic Violence
Sarah Sohn
Board ofDirectors, Queers for Economic Justice
Former Legal Fellow, Immigration Equality
Alisa Solomon
Director, Arts & Culture MA, Graduate School of Journalism, Columbia University
Former Executive Director, Center for Lesbian and Gay Studies, CUNY
Dorian Solot
Co-Founder, Alternatives to Marriage Project
Co-Author, Unmarried to Each Other: The Essential Guide to Living
Together as an Unmarried Couple
Dean Spade
Founder, Sylvia Rivera Law Project
Judith Stacey
Professor of Sociology, New York University
Author, Brave New Families
Erich Steinman
Co-Editor, Bisexuality in the Lives of Men: Facts and Fictions
Gloria Steinem
Founder and original publisher, Ms. Magazine
Jessica Stern
24
Researcher, Lesbian, Gay, Bisexual and Transgender Rights Program, Human Rights Watch
Board Member, Queers for Economic Justice
Jacquelyn Stevens
Associate Professor, Law and Society Program, University of California-Santa Barbara
Author, Reproducing the State
001198
Beyond Same-Sex Marriage
Julia Sudbury
Professor of Ethnic Studies, Mills College
Founding member, Critical Resistance
Editor, Global Lockdown: Race. Gender & the Prison-Industrial Complex
Ashley Tellis
Asst. Professor, English, Eastern Illinois University
Queer Immigrant Rights Project
Beth Teper
Executive Director, COLAGE (Children of Lesbians and Gays Everywhere)
Jennifer Terry
25
Associate Professor and Director of Women's Studies, University of California-Irvine
Author, American Obsession: Science. Medicine and Homosexuality in Modern Society
Kendall Thomas *
Activist
Nash Professor of Law, Columbia University in the City of New York
Juhu Thukral
Director, Sex Workers Project at the Urban Justice Center
Judith Thurman
Writer
Bonnie Tinker
Executive Director, Love Makes a Family, Inc.
Jay Toole
Shelter Organizer, Queers for Economic Justice
Barbara Turk
Former Executive Director, YWCA of Brooklyn
Judith E. Turkel
Turkel Forman & de Ia Vega LLP, New York
Sharon Ullman
Associate Professor of History, Bryn Mawr College
Author, Sex Seen: The Emergence of Modem Sexuality in America
Tony Valenzuela
Writer I Gay Men's Health Advocate
Paula Vogel
001199
Beyond Same-Sex Marriage 26
Adele Kellen berg Seaver Professor of Literary Arts and Comparative Literature, Brown University
Playwright, How I Learned to Drive
KCWagner,
Director of Workplace Issues, Cornell-ILR, NYC
Leonie Walker
Philanthropic Activist
Carla Wallace
Fairness Campaign Leadership Council, Louisville, Kentucky
Suzanna Walters
Chair ofthe Department of Gender Studies, Indiana University
Author, All the Rage: The Story of Gay Visibility in America
Michael Warner
Professor ofEnglish, Rutgers University
Author, The Trouble with Normal
Denise Wells
Cornel West
Robin West
Professor ofLaw, Georgetown University Center of Law
Marcy Westerling
Founder and Executive Director, Rural Organizing Project, Scappoose, Oregon
Kay Whitlock *
Writer/Organizer
Former National Representative for LGBT Issues, The American Friends Service Committee
Robyn Wiegman
Professor and Margaret Taylor Smith Director of Women's Studies, Duke University
Author, American Anatomies: Theorizing Race and Gender
Maya Wiley
Executive Director, Center for Social Inclusion
Penelope Williams
NE Regional Coordinator emeritus, BiNet USA
Co-organizer, People of Color Institutes, Creating Change
Andre A. Wilson
Organizer/ Activist, Trans Health Advocate
001200
Beyond Same-Sex Marriage
Co-founder, Transforum ofUniversity of Michigan
Member, Pride At Work- Michigan
Joe Wilson
Program Officer for Human Rights, Public Welfare Foundation
Documentary Filmmaker, qWaves Productions
Ellen Willis
Professor of Journalism and Mass Communication
Director, Concentration in Cultural Reporting and Criticism, New York University
JoAnn Wypijewski
Columnist, Mother Jones
Independent Journalist
Jesi Yager
Artist/ Activist
Former volunteer, 2004 Kentucky "No on the Amendment" Campaign
27
Former Director, 2004 National Coming Out Day Works on Shirt Project, Louisville, KY
Former Administrative Staff, New Hampshire Freedom to Marry Campaign
Miriam W. Yeung, MPA
Director of Public Policy and Government Relations, The Lesbian, Gay, Bisexual & Trans gender
Community Center
Kenji Yoshino,
Professor of Law, Yale Law School
Rebecca Young
Assistant Professor of Women's Studies, Barnard College
Karen Zelermyer
Executive Director, Funders for Lesbian and Gay Issues
Beth Zemsky *
GLBT Studies, University of Minnesota
Former Co-Chair of the Board of Directors, National Gay and Lesbian Task Force
001201





TAB 67




Comprehensive Union
WHAT, THEN, IS MARRIAGE? AS ITS TITLE SUGGESTS, THIS
book provides our answer. More succinctly, so does this sen-
tence: Marriage is a comprehensive union of persons. Let us
explain.
It is impossible for two people to be one, or united, in every
sense without ceasing to be two people. So unity of that sort is
not even desirable. Marriage is not comprehensive in that sense.
Good spouses need not hold the same jobs or play the same
musical instruments. But any kind of community is formed by
consent to pursuing certain goods and by certain activities,
following the commitment appropriate to those activities and
goods. It is in those three basic features of any bond-unifying
activity, unifying goods, and unifying commitment-that mar-
riage is comprehensive.
First, it unites two people in their most basic dimensions,
in their minds and bodies; second, it unites them with respect
to procreation, family life, and its broad domestic sharing; and
third, it unites them permanently and exclusively.
2J
001213
24 WHAT IS MARRIAGE?
COMPREHENSIVE UNIFYING ACTS:
MIND AND BODY
First, unlike ordinary friendship, marriage unites people in all
their basic dimensions. It involves a union of minds and wills
that unfolds in a sharing of lives and resources. But marriage
also includes bodily union. This is because your body is an es-
sential part of yo11, not a vehicle driven by the "real" you, your
mind; nor a mere costume you must don. If a man ruins your
car, he vandalizes your property, but if he slices your leg, he
injures )'Oil. Since the body is part of the human person, there is
a difference in kind between vandalism and violation; between
destruction of property and mutilation of bodies.
This point has been developed at length.
1
But we can make it
vivid by considering some of its other moral implications: What
is peculiarly perverse about torture? That it uses some aspects
of a person (body and affects) against other aspects of his or her
self (wishes, choices, and commitments). Why is rape gravely
wicked even when performed on someone in a coma who never
finds out and sustains no lasting injuries? It still involves misus-
ing-abusing-a person, and not merely using and replacing
intact his or her property. More positively, spouses find it beau-
tiful and uniquely appropriate that their children are a mixture
of their bodies. Couples see their infertility as a tragic limitation
even when they can adopt. Proud new parents care which child
is handed to them in the maternity ward. The evidence of our
embodiedness, and of its value, is all around us.
Because of that embodiedness, any union of two people must
include bodily unio11 to be comprehensive. If it did not, it would
leave out-it would fail to be extended along-a basic part of
each person's being.
1
Suppose a man and woman build an exclusive relationship
based on deep conversation. They pledge to talk about their
most secret sorrows and joys with each other, and only each
other, until death do them part. Have they married? Clearly
001214
.mites people in all
Jf minds and wills
rces. But marriage
·our body is an es-
e "real" you, your
a man ruins your
;I ices your leg, he
1n person, there is
iolation; between
1es.
ut we can make it
1plications: What
ses some aspects
,ects of his or her
f is rape gravely
coma who never
I involves misus-
g and replacing
1ses find it beau-
·n are a mixture
:ragic limitation
are which child
evidence of our
"'O people must
d not, it would
a basic part of
1e relationship
lk about their
1nd only each
rried? Clearly
COMPREHENSIVE UNION 25
not. If we substitute for deep conversation some more overtly
physical act-besides sex-they still are not married. Mar-
riage requires exclusivity with respect to sex, to a certain kind
of bodily union. But what makes sex special? Our bodies can
touch and interact in all sorts of ways, so why can sexual union
make two people one body ("one flesh," to cite ancient Hebrew
scripture, and a concept central to many legal and philosophical
traditions about marriage) as nothing else can?
3
Start with a more familiar case. Something about your or-
gans-your heart, stomach, lungs-makes them one body, one
organic substance. But what? It is not that they are together in
space: rocks in a pile do not make one mineral substance. Nor is
it their shared genetic code: Identical twins have (roughly) one
code but not one body; a transplant patient's heart is part of his
body, but differently coded.
No, what makes for unity is common action: activity toward
common ends. Two things are parts of a greater whole-are one
-if they act as one; and they act as one if they coordinate to-
ward one end that encompasses them both. A carburetor on
a Detroit assembly line and a transmission in Highland Park
are two things; when combined to coordinate toward a single
encompassing goal (convenient locomotion), they form one ma-
chine: say, a Model T.
Organic unity is similar, only stronger: Henry Ford's design
-a human choice-imposed unity on the parts of the Model T.
The parts of a body have their unity by nature. They are natu-
rally incomplete when apart, naturally greater than their sum
when together.
In short, then, your organs are one body because they are
coordinated for a single biological purpose of the whole that
they form together: sustaining your biological life. Just so, for
two individuals to unite organically, their bodies must coordi-
nate toward a common biological end of the whole that they
form together. When they do so, they do not just touch or in-
terlock. Their union is not just felt, or metaphorical (see appen-
001215
, the union of a single
is impossible through
viduals are naturally
t there is one respect
y is possible between
1 a mate really does
tus, and there alone,
>y virtue of their sex-
at has the biological
neither can perform
gica lly, the first step
xocess. By engaging
:ouch, much as one's
by coordinating to-
they form together.
iological good, their
1 when its end is not
:curs in coitus even
1tion toward a single
1d would deepen the
ial about the sort of
1l and philosophical
this act the genera-
loving expression of
narital act. In other
iistinctively marital
r distinctively mari-
to unite as spouses
·m," which says that it is
e consider this argument
COMPREHENSIVE UNION 27
do, to extend their union of hearts and minds onto the bodily
plane.*
All interpersonal unions are, so far as they go, valuable in
themselves: not just as a means to other ends. So a husband
and wife's loving bodily union in coitus and the special kind
of relationship that it seals are valuable, even when concep-
tion is neither sought nor achieved. But two men, two women,
and larger groups cannot achieve organic bodily union: there
is no bodily good or function toward which their bodies can
coordinate.
In particular, pleasure-say, as a means to deeper attachment
-cannot play this role for several reasons. The good must be
truly common and for the couple as a whole, but mental states
are private and benefit partners, if at all, only individually. The
good must be bodily, but pleasures as such are aspects of ex-
perience. The good must be inherently valuable, but pleasures
are good in themselves only when they are taken in some other,
independent good.
5
So while pleasure and delight deepen and
enrich a marital union where one exists, they cannot be its foun-
dation. They cannot stand on their own.
*Criticizing our argument, Jason Lee Stcorts scoffed at the implication that
"the value of a relationship between two persons in love [would depend! on the
structure of their genitals." But one might as well ridicule the idea that Juliet's
attraction to Romeo could depend "on the structure of Romeo's genitals." Simi-
larly, people often ask scornfully what could be so special about penile-vaginal
intercourse. But one could ask of the revisionist what's so special about bonds en-
hanced by orgasm. With the right (unfair) description, any view can be ridiculed.
The question is nor whether there's a description that obscures the special value
of conjugal acts, but whether there is a true description that highlights it. Organic
bodily union and li(e-gh•ing act, both related to the concept of comprehensive
1111ion, make the special value of marriage luminous, bur apply only to husband
and wife. Sec Jason Lee Srcorrs, "Two Views of Marriage, and the Falsity of the
Choice between Them," National Reuiew, February 7, 2on, http://www.national
review.com/a rt icles/26 3 67 2/two-views-ma rriage-a nd- fa lsi ty-choice-hetween
-thcm-jason-lce-sreorts. For a reply, sec Sherif Girgis, "Real Marriage," National
Review, March 21, 2011, http://www.nationalreview.com/articlesh63679/real
-marriage-sheri f-gi rgis.
001217
28 WHAT IS MARRIAGE?
Only bodily coordination toward reproduction, then, gives
rise to organic bodily union. Whether other acts are good, bad,
or indifferent, they bring about no true bodily union. So the re-
lationships that they are meant to foster, good or bad, cannot be
marital: for marital means comprehensive, and comprehensive
includes bodily.
COMPREHENSIVE UNIFYING GOODS:
PROCREATION AND DOMESTIC LIFE
Second, besides uniting spouses in every basic dimension (body
and mind), marriage unites them in pursuit of every basic kind
of good. In particular, marriage calls for the wide-ranging co-
operation of a shared domestic life, for it is uniquely ordered
to having and rearing children:•:· The comprehensive good of
family life enriches a marriage as such, and lack of children is
a lack for a marriage, in a way that is not true for best friends,
roommates, or teammates. Most people acknowledge this fact
about marriage. The conjugal view best explains it.
By "shared domestic life" we mean more than the courte-
ous noninterference that two mismatched freshman roommates
might achieve by winter break. Spouses unite the whole of
their selves (mind and body), and the demands of marriage are
shaped by those of parenting. So marriage requires coordina-
tion (compatibility) of the whole of the spouses' lives, as well as
some positive cooperation in the major dimensions of human
development, which are, after all, the major dimensions of child
development: physical, intellectual, social, moral, aesthetic, and
so on. In all these ways, again, the goods to which marriage is
aimed are comprehensive.
But once we've defined it, we can see that shared domestic
life would be at best an optional bonus, and at worst a suffocat-
*This point, often misunderstood, is worth clarifying. It is not that only true
spouses could want, decide, or manage to rear children together. The point is that
even apart from people's decisions and desires, marriage is the kind of bond inher-
ently fulfilled and extended by the spouses' having and rearing children.
001218
>roduction, then, gives
her acts are good, bad,
odily union. So there-
;ood or bad, cannot be
·e, and comprehensive
asic dimension (body
it of every basic kind
:he wide-ranging co-
is uniquely ordered
1prehensive good of
d lack of children is
rue for best friends
,
knowledge this fact
'lains it.
re than the courte-
eshman roommates
mite the whole of
tds of marriage are
requires coordina-
;es' lives, as well as
tensions of human
limensions of child
>raJ, aesthetic, and
which marriage is
t shared domestic
:worst a suffocat-
It 1s not that only true
·ther. The point is that
he kind of bond in her·
ing children.
COMPREHENSIVE UNION 29
ing hindrance, to nonfamilial bonds, just as surely as rearing a
child with your college roommate would be. What, then, makes
marriage different in these two ways?
Just deciding to rear children is not enough to make you mar-
ried: three monks who commit to caring for an orphan do not
thereby marry. Nor is childrearing necessary for being spouses.
Accordingly, our law for centuries has treated coitus, not
adoption or birth or conception, as the event that consummates
a marriage, and has recognized the marriages of infertile cou-
ples.
6
This should not surprise us. The idea that we are trying to
explain is not that the relationship of marriage and the compre-
hensive good of rearing children always go together. It is that,
like a ball and socket, they fit together: that family life specially
enriches marriage; that marriage is especially apt for family life,
which shapes its norms.
A more promising way to explain this connection between
marriage and family life is to consider how other bonds are spe-
cially related to certain goods via certain activities.
Ordinary friendships, for example, are unions of minds and
wills, by which each friend comes to know and seek the other's
good. So they are sealed-friends are most obviously and truly
befriending-in conversations and common pursuits. Scholarly
relationships are most embodied in joint inquiry, discovery, and
publication; drama troupes, in rehearsals and shows. There is
a parallel, in other words, between the common good to which
any bond is ordered and the activity that most embodies it.
To be clear, it is not just that certain activities symbolize the
fact that a relationship is of this or that type. They partly make
it so. A baseball team does not just show the world what it is
through practices and games; rather, playing the game is how
teammates make themselves more truly what they have commit-
ted to being together.
So if there is some basic connection between the compre-
hensive good of procreation (hence family life) and the bond
of marriage, we can expect a parallel link between procreation
and the activity that enacts, renews, or embodies a marriage.
001219
30 WHAT IS MARRIAGE?
That connection is obvious if the conjugal view is correct: Pro-
creation is the good that fulfills and extends a marriage, because
it fulfills and extends the act that embodies or consummates
the commitment of marriage: sexual intercourse, the generative
act. Conversely, if a man and woman commit to form the sort
of union fulfilled by the good of family life, then coitus-the
sort of act fulfilled by conception-uniquely embodies or re-
news their commitment. It mirrors, at the bodily level, the sort
of bond they have established by consent.
In short, marriage is ordered to family life because the act by
which spouses make love also makes new life; one and the same
act both seals a marriage and brings forth children. That is why
marriage alone is the loving union of mind and body fulfilled
by the procreation-and rearing-of whole new human beings.
Relationships of two men, two women, or more than two,
whatever their moral status, cannot be marriages because they
lack this inherent link to procreation. Any sexual acts they in-
volve, in addition to not being organic bodily unions, will not be
ordered to procreation; so they will not embody a commitment
ordered to family life: a marital commitment. Unsurprisingly,
in the common-law tradition, only coitus (not mutual stimula-
tion by other means, even between a legally wedded man and
woman) has been recognized as consummating a marriage.
This is not to say that infertile couples cannot marry. Con-
sider again the sports analogy: The kind of cooperation that
makes a group into a baseball team is largely aimed at winning
games. Teammates develop and share their athletic skills in the
way best suited for honorable wins-for example, with assidu-
ous practice and good sportsmanship. But such development
and sharing are possible and inherently valuable for teammates
even when they do not win a game.
Just so, marital cooperation in both sexual and domestic
life is characteristically ordered to procreation and childrear-
ing. Spouses develop and share their whole selves in the way
best suited for honorably parenting-for example, with broad
001220
32. WHAT IS f\IAIUUAGf,?
sportsmanly quest for skillful performance, may call for regular
weekly or monthly attendance, but there is no loss in not liv-
ing with your bowling partner. Domestic sharing between non-
spouses, even where possible, is not generally called for.) But
marriage unites spouses in mind and body, and is ordered to
producing not just one or another human value but whole new
persons, new centers of value. So it inherently calls for the broad
sharing of life that would be needed for helping new human
beings develop their capacities for pursuing every basic kind of
value. That is, spouses benefit as spouses from at least some co-
operation intellectually, in recreation, and so on. 9
What marriage is, and what our marriage policy should be-
these are questions about basic values, about what we ought
to do as a society. So they cannot be settled by the descrip-
tions of social science alone, any more than the moral status
of our health care laws can be settled by the cause-and-effect
descriptions of pharmacology. We doubt that anyone, on reflec-
tion, really denies this: if parenting by four people had the same
outcomes as two-person parenting, neither we nor revisionists
would be forced to deny that marriage calls for monogamy.
At the same time, if parenting (cooperating as mother and
father) really does uniquely fulfill marriage, it is natural to ex-
pect that marriage is normally apt for parenting. Indeed, as we
will see in the next two chapters, according to the best available
sociological evidence, children fare best overall when reared
by their wedded biological parents. So not only does childrear-
ing deepen and extend a marriage; children also benefit from
marriage.
COMPREHENSIVE COMMITMENT: A RATIONAL BASIS
FOR NORMS OF PERMANENCE AND EXCLUSIVITY
To recapitulate: marriage involves acts that unite spouses com-
prehensively, and it unites them in pursuit of a comprehensive
range of goods. So, third and finally, in virtue of both these
001222
34 WHAT IS MARRIAGE ?
such stability is undermined by divorce, which deprives children
of an intact biological family, and by infidelity-which betrays
and divides one's attention to spouse and children, often with
children from other couplings.
12
The intrinsic connection be-
tween marriage and children therefore reinforces the reasons
spouses have to stay together and faithful for life.
In short, a union comprehensive in these senses-a union of
mind and body, ordered to procreation and family life-must
by the same token be comprehensive in commitment: through
time (hence the vow of permanence) and at each time (hence the
vow of exclusivity). But in the revisionist account of marriage,
where organic bodily union, an orientation to family life, and
broad domestic sharing are at best optional, so are permanence
and exclusivity.
Finally, the conjugal view better explains why spouses should
pledge sexual exclusivity at all. If marriage is, as the revisionist
must hold, essentially an emotional union, this norm is hard to
explain. After all, sex is just one of many pleasing activities that
foster vulnerability and tenderness, and some partners might
experience deeper and longer-lasting emotional union with each
other if their relationship were sexually open. But the conjugal
view distinguishes marriage by a certain type of cooperation,
defined by certain common ends: bodily union and its natural
fulfillment in children and family life. So it is not at all arbitrary
in picking out sexual activity as central to the vow of exclusivity.
In nonmarital relationships, again, it is hard to see why this
sort of commitment, if it can be specified at all, should be not
only desirable whenever not very costly (as stability always is),
but required for anyone hoping to form such a relationship.
This is borne out by reasoned reflection, revisionists' own argu-
ments, the progress of recent policy proposals, and preliminary
social science (see chapters r and 4).
In 1
v1e
tivt
in 1
od
do
to
goo
s e ~
shi
no
an
of
go
Sp•
mt
tic
of
Ill!
of
ac
la1
cr
he
he
m
l\1
Ul
St:
OJ
Ul
sr
001224
J6 WHAT 13 MARRIAG E ?
and do not merely touch or interlock. This generative kind of act
physically embodies their specific, marital commitment.
Also, spouses unite bodily only by coitus, which is ordered
toward the good of bringing new human life into the world.
New life, in a sense, is one human good among others, but in
another sense, it transcends and includes other human goods.
Having consented to sharing in the generative acts that unite
them organically (as "one flesh"), spouses cooperate in other ar-
eas of life (intellectual, recreational, etc.) in the broad domestic
sharing uniquely apt for fostering the all-around development of
new human beings. Of course, they also cooperate in the tasks
of parenting when children do come. Ordinary friendships-the
unions of hearts and minds embodied in conversations and vari-
ous joint pursuits-can have more limited and variable scope.
Finally, in view of its comprehensiveness in these other
senses, marriage inherently calls for comprehensive commit-
ment: permanence and exclusivity. Like the union of organs into
one healthy whole organism, marriage is properly total and last-
ing for the life of the parts. (Indeed, comprehensive union can
be achieved only by two people, because no act can organically
unite three or more people bodily.) Again, marriage is uniquely
apt for having and rearing children, an inherently open-ended
task calling for unconditional commitment. But friendships as
such require no promise of permanence and are enhanced, not
betrayed, by openness to new members.
In short, as most people acknowledge, marriage involves a
bodily as well as mental union of spouses, a special link to chil-
dren and domestic life, and permanent and exclusive commit-
ment. All three elements converge in, and go to constitute, the
conjugal view.
l
g
tl
1
6
1!
n
p
0
i1
c
f
r
t
n
v
v
001226
Comprehensive Union
WHAT, THEN, IS MARRIAGE? AS ITS TITLE SUGGESTS, THIS
book provides our answer. More succinctly, so does this sen-
tence: Marriage is a comprehensive union of persons. Let us
explain.
It is impossible for two people to be one, or united, in every
sense without ceasing to be two people. So unity of that sort is
not even desirable. Marriage is not comprehensive in that sense.
Good spouses need not hold the same jobs or play the same
musical instruments. But any kind of community is formed by
consent to pursuing certain goods and by certain activities,
following the commitment appropriate to those activities and
goods. It is in those three basic features of any bond-unifying
activity, unifying goods, and unifying commitment-that mar-
riage is comprehensive.
First, it unites two people in their most basic dimensions,
in their minds and bodies; second, it unites them with respect
to procreation, family life, and its broad domestic sharing; and
third, it unites them permanently and exclusively.
2J
001213
24 WHAT IS MARRIAGE?
COMPREHENSIVE UNIFYING ACTS:
MIND AND BODY
First, unlike ordinary friendship, marriage unites people in all
their basic dimensions. It involves a union of minds and wills
that unfolds in a sharing of lives and resources. But marriage
also includes bodily union. This is because your body is an es-
sential part of yo11, not a vehicle driven by the "real" you, your
mind; nor a mere costume you must don. If a man ruins your
car, he vandalizes your property, but if he slices your leg, he
injures )'Oil. Since the body is part of the human person, there is
a difference in kind between vandalism and violation; between
destruction of property and mutilation of bodies.
This point has been developed at length.
1
But we can make it
vivid by considering some of its other moral implications: What
is peculiarly perverse about torture? That it uses some aspects
of a person (body and affects) against other aspects of his or her
self (wishes, choices, and commitments). Why is rape gravely
wicked even when performed on someone in a coma who never
finds out and sustains no lasting injuries? It still involves misus-
ing-abusing-a person, and not merely using and replacing
intact his or her property. More positively, spouses find it beau-
tiful and uniquely appropriate that their children are a mixture
of their bodies. Couples see their infertility as a tragic limitation
even when they can adopt. Proud new parents care which child
is handed to them in the maternity ward. The evidence of our
embodiedness, and of its value, is all around us.
Because of that embodiedness, any union of two people must
include bodily unio11 to be comprehensive. If it did not, it would
leave out-it would fail to be extended along-a basic part of
each person's being.
1
Suppose a man and woman build an exclusive relationship
based on deep conversation. They pledge to talk about their
most secret sorrows and joys with each other, and only each
other, until death do them part. Have they married? Clearly
001214
.mites people in all
Jf minds and wills
rces. But marriage
·our body is an es-
e "real" you, your
a man ruins your
;I ices your leg, he
1n person, there is
iolation; between
1es.
ut we can make it
1plications: What
ses some aspects
,ects of his or her
f is rape gravely
coma who never
I involves misus-
g and replacing
1ses find it beau-
·n are a mixture
:ragic limitation
are which child
evidence of our
"'O people must
d not, it would
a basic part of
1e relationship
lk about their
1nd only each
rried? Clearly
COMPREHENSIVE UNION 25
not. If we substitute for deep conversation some more overtly
physical act-besides sex-they still are not married. Mar-
riage requires exclusivity with respect to sex, to a certain kind
of bodily union. But what makes sex special? Our bodies can
touch and interact in all sorts of ways, so why can sexual union
make two people one body ("one flesh," to cite ancient Hebrew
scripture, and a concept central to many legal and philosophical
traditions about marriage) as nothing else can?
3
Start with a more familiar case. Something about your or-
gans-your heart, stomach, lungs-makes them one body, one
organic substance. But what? It is not that they are together in
space: rocks in a pile do not make one mineral substance. Nor is
it their shared genetic code: Identical twins have (roughly) one
code but not one body; a transplant patient's heart is part of his
body, but differently coded.
No, what makes for unity is common action: activity toward
common ends. Two things are parts of a greater whole-are one
-if they act as one; and they act as one if they coordinate to-
ward one end that encompasses them both. A carburetor on
a Detroit assembly line and a transmission in Highland Park
are two things; when combined to coordinate toward a single
encompassing goal (convenient locomotion), they form one ma-
chine: say, a Model T.
Organic unity is similar, only stronger: Henry Ford's design
-a human choice-imposed unity on the parts of the Model T.
The parts of a body have their unity by nature. They are natu-
rally incomplete when apart, naturally greater than their sum
when together.
In short, then, your organs are one body because they are
coordinated for a single biological purpose of the whole that
they form together: sustaining your biological life. Just so, for
two individuals to unite organically, their bodies must coordi-
nate toward a common biological end of the whole that they
form together. When they do so, they do not just touch or in-
terlock. Their union is not just felt, or metaphorical (see appen-
001215
, the union of a single
is impossible through
viduals are naturally
t there is one respect
y is possible between
1 a mate really does
tus, and there alone,
>y virtue of their sex-
at has the biological
neither can perform
gica lly, the first step
xocess. By engaging
:ouch, much as one's
by coordinating to-
they form together.
iological good, their
1 when its end is not
:curs in coitus even
1tion toward a single
1d would deepen the
ial about the sort of
1l and philosophical
this act the genera-
loving expression of
narital act. In other
iistinctively marital
r distinctively mari-
to unite as spouses
·m," which says that it is
e consider this argument
COMPREHENSIVE UNION 27
do, to extend their union of hearts and minds onto the bodily
plane.*
All interpersonal unions are, so far as they go, valuable in
themselves: not just as a means to other ends. So a husband
and wife's loving bodily union in coitus and the special kind
of relationship that it seals are valuable, even when concep-
tion is neither sought nor achieved. But two men, two women,
and larger groups cannot achieve organic bodily union: there
is no bodily good or function toward which their bodies can
coordinate.
In particular, pleasure-say, as a means to deeper attachment
-cannot play this role for several reasons. The good must be
truly common and for the couple as a whole, but mental states
are private and benefit partners, if at all, only individually. The
good must be bodily, but pleasures as such are aspects of ex-
perience. The good must be inherently valuable, but pleasures
are good in themselves only when they are taken in some other,
independent good.
5
So while pleasure and delight deepen and
enrich a marital union where one exists, they cannot be its foun-
dation. They cannot stand on their own.
*Criticizing our argument, Jason Lee Stcorts scoffed at the implication that
"the value of a relationship between two persons in love [would depend! on the
structure of their genitals." But one might as well ridicule the idea that Juliet's
attraction to Romeo could depend "on the structure of Romeo's genitals." Simi-
larly, people often ask scornfully what could be so special about penile-vaginal
intercourse. But one could ask of the revisionist what's so special about bonds en-
hanced by orgasm. With the right (unfair) description, any view can be ridiculed.
The question is nor whether there's a description that obscures the special value
of conjugal acts, but whether there is a true description that highlights it. Organic
bodily union and li(e-gh•ing act, both related to the concept of comprehensive
1111ion, make the special value of marriage luminous, bur apply only to husband
and wife. Sec Jason Lee Srcorrs, "Two Views of Marriage, and the Falsity of the
Choice between Them," National Reuiew, February 7, 2on, http://www.national
review.com/a rt icles/26 3 67 2/two-views-ma rriage-a nd- fa lsi ty-choice-hetween
-thcm-jason-lce-sreorts. For a reply, sec Sherif Girgis, "Real Marriage," National
Review, March 21, 2011, http://www.nationalreview.com/articlesh63679/real
-marriage-sheri f-gi rgis.
001217
28 WHAT IS MARRIAGE?
Only bodily coordination toward reproduction, then, gives
rise to organic bodily union. Whether other acts are good, bad,
or indifferent, they bring about no true bodily union. So the re-
lationships that they are meant to foster, good or bad, cannot be
marital: for marital means comprehensive, and comprehensive
includes bodily.
COMPREHENSIVE UNIFYING GOODS:
PROCREATION AND DOMESTIC LIFE
Second, besides uniting spouses in every basic dimension (body
and mind), marriage unites them in pursuit of every basic kind
of good. In particular, marriage calls for the wide-ranging co-
operation of a shared domestic life, for it is uniquely ordered
to having and rearing children:•:· The comprehensive good of
family life enriches a marriage as such, and lack of children is
a lack for a marriage, in a way that is not true for best friends,
roommates, or teammates. Most people acknowledge this fact
about marriage. The conjugal view best explains it.
By "shared domestic life" we mean more than the courte-
ous noninterference that two mismatched freshman roommates
might achieve by winter break. Spouses unite the whole of
their selves (mind and body), and the demands of marriage are
shaped by those of parenting. So marriage requires coordina-
tion (compatibility) of the whole of the spouses' lives, as well as
some positive cooperation in the major dimensions of human
development, which are, after all, the major dimensions of child
development: physical, intellectual, social, moral, aesthetic, and
so on. In all these ways, again, the goods to which marriage is
aimed are comprehensive.
But once we've defined it, we can see that shared domestic
life would be at best an optional bonus, and at worst a suffocat-
*This point, often misunderstood, is worth clarifying. It is not that only true
spouses could want, decide, or manage to rear children together. The point is that
even apart from people's decisions and desires, marriage is the kind of bond inher-
ently fulfilled and extended by the spouses' having and rearing children.
001218
>roduction, then, gives
her acts are good, bad,
odily union. So there-
;ood or bad, cannot be
·e, and comprehensive
asic dimension (body
it of every basic kind
:he wide-ranging co-
is uniquely ordered
1prehensive good of
d lack of children is
rue for best friends
,
knowledge this fact
'lains it.
re than the courte-
eshman roommates
mite the whole of
tds of marriage are
requires coordina-
;es' lives, as well as
tensions of human
limensions of child
>raJ, aesthetic, and
which marriage is
t shared domestic
:worst a suffocat-
It 1s not that only true
·ther. The point is that
he kind of bond in her·
ing children.
COMPREHENSIVE UNION 29
ing hindrance, to nonfamilial bonds, just as surely as rearing a
child with your college roommate would be. What, then, makes
marriage different in these two ways?
Just deciding to rear children is not enough to make you mar-
ried: three monks who commit to caring for an orphan do not
thereby marry. Nor is childrearing necessary for being spouses.
Accordingly, our law for centuries has treated coitus, not
adoption or birth or conception, as the event that consummates
a marriage, and has recognized the marriages of infertile cou-
ples.
6
This should not surprise us. The idea that we are trying to
explain is not that the relationship of marriage and the compre-
hensive good of rearing children always go together. It is that,
like a ball and socket, they fit together: that family life specially
enriches marriage; that marriage is especially apt for family life,
which shapes its norms.
A more promising way to explain this connection between
marriage and family life is to consider how other bonds are spe-
cially related to certain goods via certain activities.
Ordinary friendships, for example, are unions of minds and
wills, by which each friend comes to know and seek the other's
good. So they are sealed-friends are most obviously and truly
befriending-in conversations and common pursuits. Scholarly
relationships are most embodied in joint inquiry, discovery, and
publication; drama troupes, in rehearsals and shows. There is
a parallel, in other words, between the common good to which
any bond is ordered and the activity that most embodies it.
To be clear, it is not just that certain activities symbolize the
fact that a relationship is of this or that type. They partly make
it so. A baseball team does not just show the world what it is
through practices and games; rather, playing the game is how
teammates make themselves more truly what they have commit-
ted to being together.
So if there is some basic connection between the compre-
hensive good of procreation (hence family life) and the bond
of marriage, we can expect a parallel link between procreation
and the activity that enacts, renews, or embodies a marriage.
001219
30 WHAT IS MARRIAGE?
That connection is obvious if the conjugal view is correct: Pro-
creation is the good that fulfills and extends a marriage, because
it fulfills and extends the act that embodies or consummates
the commitment of marriage: sexual intercourse, the generative
act. Conversely, if a man and woman commit to form the sort
of union fulfilled by the good of family life, then coitus-the
sort of act fulfilled by conception-uniquely embodies or re-
news their commitment. It mirrors, at the bodily level, the sort
of bond they have established by consent.
In short, marriage is ordered to family life because the act by
which spouses make love also makes new life; one and the same
act both seals a marriage and brings forth children. That is why
marriage alone is the loving union of mind and body fulfilled
by the procreation-and rearing-of whole new human beings.
Relationships of two men, two women, or more than two,
whatever their moral status, cannot be marriages because they
lack this inherent link to procreation. Any sexual acts they in-
volve, in addition to not being organic bodily unions, will not be
ordered to procreation; so they will not embody a commitment
ordered to family life: a marital commitment. Unsurprisingly,
in the common-law tradition, only coitus (not mutual stimula-
tion by other means, even between a legally wedded man and
woman) has been recognized as consummating a marriage.
This is not to say that infertile couples cannot marry. Con-
sider again the sports analogy: The kind of cooperation that
makes a group into a baseball team is largely aimed at winning
games. Teammates develop and share their athletic skills in the
way best suited for honorable wins-for example, with assidu-
ous practice and good sportsmanship. But such development
and sharing are possible and inherently valuable for teammates
even when they do not win a game.
Just so, marital cooperation in both sexual and domestic
life is characteristically ordered to procreation and childrear-
ing. Spouses develop and share their whole selves in the way
best suited for honorably parenting-for example, with broad
001220
32. WHAT IS f\IAIUUAGf,?
sportsmanly quest for skillful performance, may call for regular
weekly or monthly attendance, but there is no loss in not liv-
ing with your bowling partner. Domestic sharing between non-
spouses, even where possible, is not generally called for.) But
marriage unites spouses in mind and body, and is ordered to
producing not just one or another human value but whole new
persons, new centers of value. So it inherently calls for the broad
sharing of life that would be needed for helping new human
beings develop their capacities for pursuing every basic kind of
value. That is, spouses benefit as spouses from at least some co-
operation intellectually, in recreation, and so on. 9
What marriage is, and what our marriage policy should be-
these are questions about basic values, about what we ought
to do as a society. So they cannot be settled by the descrip-
tions of social science alone, any more than the moral status
of our health care laws can be settled by the cause-and-effect
descriptions of pharmacology. We doubt that anyone, on reflec-
tion, really denies this: if parenting by four people had the same
outcomes as two-person parenting, neither we nor revisionists
would be forced to deny that marriage calls for monogamy.
At the same time, if parenting (cooperating as mother and
father) really does uniquely fulfill marriage, it is natural to ex-
pect that marriage is normally apt for parenting. Indeed, as we
will see in the next two chapters, according to the best available
sociological evidence, children fare best overall when reared
by their wedded biological parents. So not only does childrear-
ing deepen and extend a marriage; children also benefit from
marriage.
COMPREHENSIVE COMMITMENT: A RATIONAL BASIS
FOR NORMS OF PERMANENCE AND EXCLUSIVITY
To recapitulate: marriage involves acts that unite spouses com-
prehensively, and it unites them in pursuit of a comprehensive
range of goods. So, third and finally, in virtue of both these
001222
34 WHAT IS MARRIAGE ?
such stability is undermined by divorce, which deprives children
of an intact biological family, and by infidelity-which betrays
and divides one's attention to spouse and children, often with
children from other couplings.
12
The intrinsic connection be-
tween marriage and children therefore reinforces the reasons
spouses have to stay together and faithful for life.
In short, a union comprehensive in these senses-a union of
mind and body, ordered to procreation and family life-must
by the same token be comprehensive in commitment: through
time (hence the vow of permanence) and at each time (hence the
vow of exclusivity). But in the revisionist account of marriage,
where organic bodily union, an orientation to family life, and
broad domestic sharing are at best optional, so are permanence
and exclusivity.
Finally, the conjugal view better explains why spouses should
pledge sexual exclusivity at all. If marriage is, as the revisionist
must hold, essentially an emotional union, this norm is hard to
explain. After all, sex is just one of many pleasing activities that
foster vulnerability and tenderness, and some partners might
experience deeper and longer-lasting emotional union with each
other if their relationship were sexually open. But the conjugal
view distinguishes marriage by a certain type of cooperation,
defined by certain common ends: bodily union and its natural
fulfillment in children and family life. So it is not at all arbitrary
in picking out sexual activity as central to the vow of exclusivity.
In nonmarital relationships, again, it is hard to see why this
sort of commitment, if it can be specified at all, should be not
only desirable whenever not very costly (as stability always is),
but required for anyone hoping to form such a relationship.
This is borne out by reasoned reflection, revisionists' own argu-
ments, the progress of recent policy proposals, and preliminary
social science (see chapters r and 4).
In 1
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001224
J6 WHAT 13 MARRIAG E ?
and do not merely touch or interlock. This generative kind of act
physically embodies their specific, marital commitment.
Also, spouses unite bodily only by coitus, which is ordered
toward the good of bringing new human life into the world.
New life, in a sense, is one human good among others, but in
another sense, it transcends and includes other human goods.
Having consented to sharing in the generative acts that unite
them organically (as "one flesh"), spouses cooperate in other ar-
eas of life (intellectual, recreational, etc.) in the broad domestic
sharing uniquely apt for fostering the all-around development of
new human beings. Of course, they also cooperate in the tasks
of parenting when children do come. Ordinary friendships-the
unions of hearts and minds embodied in conversations and vari-
ous joint pursuits-can have more limited and variable scope.
Finally, in view of its comprehensiveness in these other
senses, marriage inherently calls for comprehensive commit-
ment: permanence and exclusivity. Like the union of organs into
one healthy whole organism, marriage is properly total and last-
ing for the life of the parts. (Indeed, comprehensive union can
be achieved only by two people, because no act can organically
unite three or more people bodily.) Again, marriage is uniquely
apt for having and rearing children, an inherently open-ended
task calling for unconditional commitment. But friendships as
such require no promise of permanence and are enhanced, not
betrayed, by openness to new members.
In short, as most people acknowledge, marriage involves a
bodily as well as mental union of spouses, a special link to chil-
dren and domestic life, and permanent and exclusive commit-
ment. All three elements converge in, and go to constitute, the
conjugal view.
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001226





TAB 68




Copyright© 2007 by David Blankenhorn
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any
means, electronic, mechanical, photocopying, recording, or otherwise,
without the prior written permission of Encounter Books, 900 Broadway
Suite 400, New York, New York, 10003.
First edition published in 2007 by Encounter Books, an activity of
Encounter for Culture and Education, Inc., a nonprofit, tax exempt
corporation.
Encounter Books website address: www.encounterbooks.com
Manufactured in the United States and printed on acid-free paper.
The paper used in this publication meets the minimum requirements of
ANSI/NISO 239.48-1992 (R 1997)(Permanence of Paper).
Library of Congress Cataloging-in-Publication Data
Blankenhorn, David.
The future of marriage I by David Blankenhorn.
p. em.
ISBN 1-59403-QSl-2 (alk. paper)
1. Marriage. 2. Marriage-History. 3. Same-sex marriage.
I. Title.
HQ503. B53 2007
306.84 '8-dc22
10 9 8 7 6 5 4 3 2 1
2006025736
001228
INTRODUCTION 3
come to believe one thing with more certainty than anything else:
What children need most are mothers and fathers. Not caregivers. Not
parent-like adults. Not even "parents." What a child wants and needs
more than anything else are the mother and the father who together
made the child, who love the child, and who love each other. As G. K.
Chesterton once said in a similar context, "That I know is a good
thing .... If other things are against it, other things must go down."
1
In recent decades, of course, the marital conduct of hetero-
sexuals in the United States has done much to erode both the ideal
and the reality of the mother-father childrearing union. Many advo-
cates of same-sex marriage are only too happy to highlight this fact,
and in one respect their point is a fair one. Why draw the line at
same-sex marriage when we as a society seem to be unwilling to
draw the line anywhere else? At the same time, for anyone who
wishes the institution well, the concern remains. Redefining mar-
riage to include gay and lesbian couples would eliminate entirely
jn law, and weaken still further in culh.Jre, the basic idea of a mother
and a father for every child. Once this proposed reform became
law, even to say the words out loud in public-"Every child needs
a father and a mother"-would probably be viewed as explicitly
divisive and discriminatory, possibly even as hate speech. For card-
carrying child advocates and marriage nuts like me and my col-
leagues, this possibility is disturbing.
Many thinkers, perhaps most notably Isaiah Berlin, the great
twentieth-century philosopher of liberalism, have pointed out that
many important choices we face do not involve choosing between
good and bad, but between good and good. It is good to deter crime
by punishing criminals; it is also good to forgive. But doing more
punishing means doing less forgiving, because the two goods are,
to some extent, mutually exclusive.
Berlin's concept of goods in conflict is central to my under-
standing of society's need to make choices regarding the definition
of marriage.
2
One good is the equal dignity of all persons. Another
good is a mother and a father as a child's birthright. These goods
are at least partially in conflict. Resolving that conflict-making a
morally responsible choice about the future of marriage that is faith-
ful to the essential purposes of the institution while at least recog-
nizing both of these goods-is a major aim of this book.
001229
WHAT Is MARRIAGE? 13
unmarried couples. For these family law professionals, marriage
can hardly be defined at all. They see marriage as radically subjec-
tive and almost infinitely malleable-really nothing more than a
collection of discrete relationships and private accommodations. At
one point in the report we learn that marriage should be understood
as "an emotional enterprise, filled with high returns and high risks.''
Beyond this, it turns out that each marriage is unique: "Different
couples arrive at different accommodations in their relationships,
and some depart from social conventions. Intimate relationships
often involve complex emotional bargains that make no sense to
third parties with different needs and perceptions."
13
Ali we can say
for sure, it appears, is that marriage is an emotional enterprise.
In 2003, the Supreme Judicial Court of Massachusetts issued
a ruling effectively requiring the state legislature to take steps to
redefine marriage to include same-sex couples. The essence of mar-
riage, the court said, is "the exclusive commitment of two individ-
uals to each other." The purposes of this commitment are "love,"
"mutual support," and a way of living that brings "stability to our
society." The justices also wrote that "marriage is at once a deeply
personal commitment to another human being and a highly pub-
lic celebration of the ideals of mutuality, companionship, intimacy,
fidelity, and family."
14
In 2004, a superior court judge in the state of Washington
ruled that same-sex couples can marry under Washington State
law. In his ruling, Judge William L. Downing offered this defini-
tion: "To 'marry' means to join together in a close and permanent
way." Rephrased a bit, marriage is "a close personal commitment"
that "is intended to be permanent." Judge Downing added that
such close, intended-to-be-permanent commitments are "spiritu-
ally significant."
15
In 2005, a judge on the Supreme Court of the State of New
York ruled that a New York State law effectively limiting marriage
to male-female couples was unconstitutionaL In her ruling, Justice
Doris Ling-Cohan defined marriage as "the utmost expression of
a couple's commitment and love," and as "a unique expression of
a private bond and profound love between a couple." It is "highly
personal" and "the most intimate of relationships." People who
marry "publicly commit to a lifetime partnership with the person
001233
'
!l
n
·j
ever pretended that marriage is not fundamentally about socially
approved sexual intercourse. Which is why, in law and cultures
everywhere, to consummate a marriage is to have sexual intercourse;
and why refusing to consummate a marriage with sexual intercourse
is ahnost universally viewed as a negation of the marriage and there-
fore as grounds for divorce; and why everyone knows that the term
"marriage bed" means the place where the spouses have sex.
After all, what one assumption does everyone make about
married couples? That they are involved in an emotional enter-
prise? Of course not. It's that the spouses are having sex with one
another! Yet today in the United States, as we debate the future of
the most important sexual institution ever devised by our species,
we seem quite determined to define it in strictly asexual terms. It's
like defining General Motors without mentioning cars.
There is another word almost entirely missing from the cur-
rently prevailing definitions of marriage. It's a word closely related
to matters of sexual embodiment and sexual intercourse. That word
is "children" -or what Andrew Sullivan calls ''breeding." Children
rarely make an appearance in the thin descriptions of marriage as
a personal commitment or an expression of love. Mostly, they are
not seen and not heard.
In fact, the Supreme Judicial Court of Massachusetts in its
2002 opinion explicitly considers and then rejects as "inappropri-
ate" the view that marriage is centrally concerned with bearing
and raising children. The justices point out that people applying
for marriage licenses in Massachusetts do not have to prove that
they are fertile and intend to have children. Moreover, "the Com-
monwealth affirmatively facilitates bringing children into a fam-
ily regardless of whether the intended parent is married or
unmarried, whether the child is adopted or born into a family,
whether assisted technology was used to conceive the child, and
whether the parent or her partner is heterosexual, homosexual, or
bisexual."
18
The justices make their case with admirable clarity.
Marriage and procreation are hereby defined as separate and uncon-
nected. Adult emotional ties are over here where it says "marriage."
Children are over there.
Yet this way of understanding marriage presents a fonnida-
ble intellectual problem. For many centuries and across human
001236
culhJres, virrually all scholars, jurists, and other commentators on
marriage have emphasized that marriage as a human institution
is deeply connected to bearing and raising children. Surveying the
cross-cultural evidence, the anthropologist Helen Fisher sums it
up simply: "People wed primarily to reproduce."
19
Bertrand Russell was no friend of conventional sexual moral-
ity. But he recognized clearly enough that "it is through children
alone that sexual relations become of importance to society, and
worthy to be taken cognizance of by a legal instihJtion." Thus: "The
main purpose of marriage is to replenish the human population of
the globe."
20
Fisher is right. Russell was right. Without children, marriage
as instirution makes little sense.
After all, why did we humans invent marriage in the first
place? Why do we keep it around? Here is a proposition that can-
not be empirically proven, but that is almost certainly true. If human
beings did not reproduce sexually and did not start out in life as
helpless infants--,if, for example, new humans arrived on earth
fully grown, brought to society by storks-our species would never
have developed an institution called marriage. We would be doing
many interesting things, but getting married would not be among
them. Accordingly, to insist that we erase children from our formal
understanding of marriage comes very dose to insisting that mar-
riage itself makes no formal sense.
Notice also the circularity of this argument. What purports
to be a definition-marriage is not connected to children-is in fact
a redefinition that ends up negating the very thing being defined.
Before our very eyes, the task of understanding marriage becomes
a going-out-of-business sale.
In fact, the justices in Massachusetts, with seeming equanim-
ity, contemplate precisely this prospect: The concept of "marriage"-
"civil unions" or other similar terms, the justices make clear, simply
won't do-is so important that denying it to same-sex couples
means that they are "excluded from the full range of human expe-
rience." But why is this particular concept so important? On this
point, the justices are stunningly inarticulate. Marriage, they tell
us, is two people making a commitment to one another. We get
sugary pieties-marriage "fulfills yearnings for security, safe haven,
001237
I
20 THE FuTURE oF MARRIAGE
and that is worthy of strong social support. If we could move toward
this goal by embracing same-sex marriage, I would gladly embrace
it. If adopting same-sex marriage was likely to be part of a larger
societal shift leading to better marriages, less divorce, and less
unwed childbearing- or, more modestly, if it seemed likely that
adopting same-sex marriage would not significantly undermine
efforts to renew our wider marriage culture-! am confident that
most marriage advocates would favor its adoption. I know that I
would. But if adopting same-sex marriage is likely to impede that
larger goal, I will be against it.
Those who disagree with me can charge that I am proposing
a moral metric in which, regardless of the ultimate policy decision
on same-sex marriage, the rights of gays and lesbians take second
place to the needs of an existing social institution. The charge would
be acrurate. But for me the same moral metric applies to other mar-
riage issues tllat have nothing to do with homosexuality. For exam-
ple, I have testified before state legislatures in favor of reforms in
marriage law- such as longer waiting periods, mandatory coun-
seling, and in some cases a requirement to show fault-that would
place restrictions on "no fault" divorce, or what amounts to the
unilateral right to divorce. In short, I favor limiting certain adult
freedoms in the name of child well-being and the health of mar-
riage as an institution.
In the case of same-sex marriage, one priority ~ the particu-
lar rights and needs of same-sex couples-the right to equal respect,
the right to form loving, stable partnerships and families, and the
need for greater social acceptance. Another priority is the collec-
tive rights and needs of children-the right to know and be loved
by a mother and a father, and the need for as many children as pos-
sible to grow up under a strong shelter of marriage, our society's
most pro-child institution. To the degree that these two priorities
can be in harmony, or at least exist together in peace, I want to
embrace them both. To the degree that I must choose, with some
anguish I will choose children's collective rights and needs-I will
choose marriage as a public good-over the rights and needs of
gay and lesbian adults and those same-sex couples who are rais-
ing children.
001240
WHAT Is MARRIAGE? 21
The central issue in the same-sex marriage debate is not homo-
sexuality; it is marriage itself. In the next few chapters, we will seek
with fresh eyes to uncover an adequate answer to what might seem
to be the simplest of questions: What is marriage? First, we exam-
ine a few shards of evidence from the prehistory of our species,
including some findings from brain scientists who study the bio-
chemistry of human attachment. Next, a visit to ancient
Mesopotamia and the Nile Valley, where marriage first emerged in
recorded history. Then to the Trobriand Islands, where marriage
today is quite unlike the pattern familiar to us. Then we can craft
a working definition of marriage for our time.
001241
THE RIVER VALLEYS 55
beware of approaching the women. It does not go well .... He who
has a wandering eye for the women cannot be keen. A thousand
men may be distracted from their own advantage. One is made a
fool .... Do not do it-it really is an abomination-and thou shall
be free from sickness of heart every

A later set of instructions from a father to a son, probably dating
from somewhere between 1100 and 800 BCE, echoes this advice,
saying, "Every man who is settled in a house should hold tl1e hasty
heart firm. Thou shouldst not pursue after a woman. Do not let her
steal away thy heart." There are also some thoughts about treating
a wife with respect:
Thou shouldst not supervise too closely thy wife in her own
house, when thou knowest that she is efficient. Do not say to her,
"Where is it? Fetch it for us!" when she has put it in the most
useful place. Let thy eye have regard, while thou art silent, that
thou mayest recognize abilities. How happy is it when thy
hand is with her!u
We moderns often seem to assume that couples long ago were
not as emotionally aware as we are today. Perhaps their spousal
feelings for, or against, one another simply didn't run as deep as
ours do. Perhaps marriage in those days wasn't actually about sex-
as-relationship and generativity after all, but instead "really" about,
say, property or social status.
Nonsense. Except in some respects among that very small
slice of humanity who are royalty or nobility-who at times do
marry largely in order to strengthen political and economic alliances
between groups-that has never been true. No one denies that
property and social status (and many other big realities as well)
affect all spheres of human social life, from education to medicine
to, yes, marriage. But what affects something is different from the
tlling itself. For almost all of humanity, marriage has always and
in all places been "really" about the male-female sexual bond and
the children that result from that bond. That was certainly true in
the two river valleys where this distinctive way of men and women
living together became a vibrant public institution.
001242
5
What Marriage Is
m IN ALL OR NEARLY ALL human societies, marriage is socially
approved sexual intercourse between a woman and a man, con-
ceived both as a personal relationship and as an institution, prima-
rily such that any children resulting from the union are-and are
understood by the society to be-emotionally, morally, practically,
and legally affiliated with both of the parents.
That's what marriage is. It's a way of living rooted in the
fundamental physiological and biochemical adaptations of our
species, as developed over the course of our long prehistory. It
first entered into recorded history in the two river valleys about
five thousand years ago. It is constantly evolving, reflecting the
complexity and diversity of human cultures. It also reflects one
idea that does not change: For every child, a mother and a father.
The exact wording of this definition is my own, but the def-
inition is anything but idiosyncratic. It rests on a large and grow-
ing mountain of scholarly evidence. It incorporates widely shared
conclusions about the meaning of marriage reached by the lead-
ing anthropologists, historians, and sociologists of the modern era.
As a result, I don't think that the essence of this definition should
be controversial. Let me briefly explain each phrase.
001243
WHAT MARRIAGE Is 97
rules, you definitely need a social institution. Both rights and insti-
tutions are essential components of any good society. But they are
separate things; neither can be reduced to the other. For this rea-
son, it is highly misleading to suggest that a primary social insti-
tution such as marriage can be defined as a "bundle of rights."
This is more than an academic quibble about a definition. In
today's discussion of marriage in the United States, by far the
biggest problem is the widespread refusal to respect or even
acknowledge the institutionality of marriage. It's as if we have for-
gotten what a social institution is.
Douglass C. North, who won the 1993 Nobel Prize in Eco-
nomics, can help us with this problem. He succinctly describes
social institutions as "the rules of the game" that "define the incen-
tive structures of society." Institutions are
the humanly devised constraints that structure human interaction.
They are made up of formal constraints (e.g., rules, laws, constitu-
tionsL informal constraints (e.g., norms of behavior, conventions,
self-imposed codes of conduct), and their enforcement character-
istics.H
For North, social institutions are primarily about what one may
not do.
Similarly, the anthropologist and marriage scholar A R. Rad-
cliffe-Brown reminds us that social institutions are "the ordering
by society of the interactions of persons in social relationships."
You know you are part of an institution when what you encounter
is not "haphazard conjunctions of individuals," but instead situa-
tions in which "the conduct of persons in their interactions with
others is controlled by norms, rules, or patterns." Accordingly, a
sign and consequence of participating in a social institution is that
"a person knows that he is expected to behave according to these
norms and that other persons should do the same."
15
Social institutions carry public meaning. Let's consider an
example. Just for fun, we'll make it about sex. Let's say that I am a
young adult who hopes and expects one day to marry. If I person-
ally believe that sexual fidelity in marriage is important, that is a
private opinion. But if the institution of marriage communicates
to everyone that sexual fidelity is important, and if the institution
001249
WHAT MARRIAGE Is 99
stop marrying, and when those who keep doing so cannot say why
and therefore are unable to treat their marriages seriously.
Children resulting from the union are-and are understnod btj the
society to morally, practically, and legally
affiliated with both of tl1e parents
A social institution-for what? Why do all human groups establish
this institution and keep it around? Follow the basic steps: From
sexual desire, the female and male of the species come together for
sexual union, from which develops an interpersonal relationship
and a shared way of life, which in turn every society surrounds
with elaborate rules and invests with important meanings. For what
purposes? Conversely, under what circumstances might a society
stop caring whether or how people married?
Let' s recall the basic development of marriage's long prehis-
tory. A series of "biological innovations" made human beings very
sexy creatures-not so that the mother and father will make a baby,
but so that the mother and father will stay together to mise the baby.
Let's also recall Lipit-lshtar of Sumer and Akkad: "I made the father
stand by his children. I made the child stand by his father."
TI1e oldest marriage laws of India are the Dharmasutras, prob-
ably dating from the third or second century BCE, and the lAw Code
of Manu, probably from the first century BCE or the first century
CE. A central preoccupation in these codes is the importance of pro-
creation within marriage. For example, a husband is obligated to
have sexual intercourse with his wife, particularly when she is fer-
tile.16 At the same time, "there is nothing in this world as sure to
shorten a man's life as consorting with someone else's wife." Inter-
course and pregnancy must take place only within a lawful mar-
riage: "Women were created to bear children, and men to extend
the line; therefore, scriptures have prescribed that the Law is to be
carried out .... "
17
And: "The excellence of the marriage determines
the excellence of the children that issue from it."
18
Let's go to rural southern Europe in the 1980s. Here, the
anthropologist Joan Frigole Reixach describes the centrality of pro-
creation to her informants' understanding of marriage:
001251
102 THE FUTURE OF MARRIAGE
provides for the legitimation of children and defines their status in
relationship to the conjugal family and the wider kin group."
24
Social institutions exist to meet basic human needs. An insti-
tution that exists everywhere on the planet, in addition to what-
ever else it may be doing in this or that specific locale, is also
obviously meeting at least one primary, cross-cultural human need.
Regarding marriage, we have now identified that need. If human
beings were not sexually embodied creatures who everywhere
reproduce sexually and give birth to helpless, socially needy off-
spring who remain immature for long periods of time and who
therefore depend on the love and support of both of the parents
who brought them into existence, the world almost certainly would
not include the institution of marriage.
Primnrily
An important limitation of the Notes and Queries definition is its
failure to include the word "primarily" between the phrases "a
man and a woman" and "such that ... " Marriage is fundamentally
and everywhere a procreative institution, but that is by no means
all that marriage is.
For example, marriage is typically an economic as well as a
procreative alliance. Husband and wife, and often other relatives
on each side as well- remember the Trobriand uncle and the
urigubu--<:ooperate economically, dividing labor according to capac-
ity and social roles and in effect establishing kin-based economic
enterprises. For this reason, marriage in human societies is com-
monly a wealth-generating, asset-building institution. Even in the
United States, where this dimension of marriage is seldom recog-
nized and is less important than it is in village and tribal societies,
research shows that, compared with similar people who are unmar-
ried, married people earn more money and accumulate more
wealth.
25
Moreover, in many societies (although not in the United
States), children are viewed in economic terms more as assets than
as liabilities-another example of the ways in which marriage cross-
culturally tends economically to be a producing as well as a con-
suming institution. The economic dimensions of the marital bond
001254
WHAT MARRIAGE Is 103
typically both thicken and help stabilize marriage as a social
institution.
Marriage in many, probably most, human societies establishes
an alliance not only between the two spouses, but also between
two organized groups of kin. We saw this phenomenon in ancient
Mesopotamia. We saw it very clearly in the Trobriand Islands, where
each individual is a member not only of a nuclear family, but also
of a distinct matrilineage-each with its own history, customs,
magic, and status-as well as a member of one of four totemic clans,
which are also partly kin-based.
26
In traditional African societies,
this dimension of marriage appears to be even more important.
Each African marriage unites corporate kin groups-whether lin-
eages, subclans, or dans-which function as basic components of
political and social structureF
Some scholars, including Claude Levi-Strauss, have suggested
that marriage itself can be understood fundamentally as alliances
between kinship groups. This viewpoint is sometimes called the
"alliance theory" of marriage, as contrasted to the more commonly
advanced descent theory, which takes as its analytic starting point
the two spouses and their offspring. My own reading of the evi-
dence is that the alliance theorists often go too far. In their accounts,
married couples themselves all but disappear. Also, in common
with many Marxist scholars, alliance theorists frequently, and in
my view wrongly, regard women essentially as passive objects
whose "sexual services" are constantly being traded back and forth
by groups of men.
28
Think about your own marriage, or about any
other marriages that you have observed, or about the marriages
that we glimpsed in the two river valleys or in the Trobriand Islands,
and ask yourself if such harsh and impersonal theories of marriage
accurately match what you know of the human reality, the lived
experience, of marriage in diverse societies. To me, they do not.
The weight of evidence clearly supports the evolutionary
scholars and the descent theorists. To understand marriage and the
family, we begin with sex and birth-with the mother and her infant,
and through her the possibility of social fatherhood, and with father-
hood the possibility of expanded family relationships. These must
be our starting points, because these are the baseline dimensions
of human generativity and family life. They are the core biological
001255
120 THE FUTURE OF MARRIAGE
Gary Witherspoon in Nnvnjo Kinship nnd Marringe.
63
Navajo men
during this period did these things for their children first and fore-
most by geHing married. Witherspoon points out that in Navajo soci-
ety, with its matrilineal descent system and its high valuation of
motherhood, the father-child relationship "is traced through another
person, the mother." Therefore, "The father-child bond is really just
another extension of the husband-wife bond."
64
The effectiveness,
even the possibility, of Navajo fatherhood as a hands-on social role
was intimately linked to the status of Navajo men as husbands.
Remember Malinowski: "The father is defined socially, and
in order that there may be fatherhood there must be marriage."
65
In the matrilineal societies of the Navajo, as in the Trobriand Islands,
the single most important precondition for effective fatherhood is
marriage, and a primary purpose of marriage is to give children
two responsible parents as a birthright.
Wl1at Good Is a Definition of Marriage?
Kind reader, I believe that we have found the core meaning of mar-
riage. Can it serve us as a guide for the future?
Perhaps not. We Americans have never felt particularly con-
strained by history or tradition, even our own, much less the inher-
ited ways of other peoples in far-off places. What counts for us is
today and the future. Yesterday hardly seems to matter-Ameri-
cans are probably less influenced by the past than any other peo-
ple on earth. We also don't care much for authority. We don't like
to bend the knee. If our institutions disappoint us, we change or
scrap them, or at least try very hard to do so. As Harold Rosen-
berg put it, our tradition is the tradition of the new. Because I'm
as American as the next fellow, I find much to admire in this way
of thinking.
The rest of this book is about the future of marriage in the
United States. What are the institution's strengths and weaknesses?
Can it remain-can it more fully become--our society's most pro-
child way of living? Or will it eventually become just an ersatz
word, a Hallmark greeting-card word, used to name our private
love relationships and perhaps qualify for some government
001259
WHAT MARRIAGE Is 121
benefits? Is it possible to reconcile our desire for equal treatment
for same-sex couples with our desire to protect and renew mar-
riage as our primary social institution?
Discerning the core meaning of marriage does not provide us
with answers to these questions. Understanding our inheritance
does not tell us what to do with it. At the same time, surely the
understanding helps. It tells us what the stakes are. It contributes
to moral and intellectual seriousness. As we debate the future of
marriage in one society, surely recognizing the basic structure of
marriage as a human institution offers us the right starting point,
the best place to stand in order to gain the clearest view ahead and
try to take our best steps forward.
At a minimum, we ought to consign to the cultural dustbin
those comically inadequate definitions of marriage that currently
dominate the debate in the United States. Chapter One contains
many examples of what I mean. All of these definitions make the
same basic point: Marriage is a private relationship based on mutual
caring. Most of them even follow the same rhetorical style. TI1ey
typically begin with the claim that marriage is constantly chang-
ing. Next they say that marriage in former days was really
ble; it was racist and sexist, and mostly it was all about property.
From these insights, the conclusion is obvious: If the deepest mean-
ing of marriage that marriage is always changing, and if mar-
riage historically has been pretty awful and crass, then why not
say that marriage today is whatever we want it to
if this formulation might help us achieve some useful social goal?
Here is an example of this idea, from Mike Anton, writing in
the Los Angeles Times in 2004:
Marriage as Americans know it today didn't exist 2,000 years ago,
or even 200 years ago. Rather than an unbending pillar of society,
marriage has been an extraordinarily elastic institution, constantly
adapting to religious, political and economic shifts and pliable in
the face of sexual revolutions, civil rights movements and chang-
ing cultural norms.
So that's what marriage is. Plus we learn:
Throughout most of human history, a man married a woman out
of desire-for her father 's goats, perhaps. Marriage was a
001260
WHAT MARRIAGE l s 123
rnother."
69
More recently he has written: "Few propositions have
more empirical support in the social sciences than this one: Corn-
pared to all other family forms, families headed by married, bio-
logical parents are best for children."
70
And again: "A central
purpose of the institution of marriage is to ensure the responsible
and long-term involvement of both biological parents in the diffi-
cult and time-consuming task of raising the next generation."
71
Based on this conclusion, he proposes a national strategy of "pro-
moting marriage" in order to revive "the two-natural-parent"
farnily.n
That's what David Popenoe thinks. Many "leading experts
and major studies" agree with him. For example, in 2002 a group
of researchers from Child Trends, a nonpartisan research center,
concluded that "research clearly demonstrates that family struc-
ture matters for children, and the family structure that helps chil-
dren the most is a family headed by two biological parents in a
low-conflict marriage." And further: "Thus, it is not simply the
presence of two parents, as some have assumed, but the presence
of two biological parents that seems to support children's develop-
ment."73 Clearly "two biological parents" is scholar-speak for
"mother and father." And as we've seen, while marriage across
human societies has little to say about disembodied abstractions
called "parents/' marriage is centrally concerned with bringing
together into a common life the mother and father who make the
baby.
In no human society and in no period of history is it reason-
able to view marriage primarily as a "property arrangement." Nor
has marriage ever been viewed by any society primarily as a
"dynastic arrangement." Marriage typically does involve property
(as do religion, art, just about everything), but it can never be
reduced to a matter of property?
4
The claim that the Catholic Church had "nothing to do with
marriage'' during the Church's first millennium is preposterous.
From the first century onward, starting with Jesus' teachings on
divorce and remarriage, the clergy and theologians of the Church
developed a robust theology and law of marriage. By the fifth cen-
tury, after the Christianization of the Roman Empire, much of the
Chmch's internal canon law of marriage had become Roman law
001262
WHAT MARRIAGE Is 125
I don' t mean to single out as rmusual, or as particularly flawed,
this one description of marriage by Evan Wolfson. Countless oth-
ers are equally flawed, and in pretty much the same ways. The
result is a generalized conceptual disaster such that on one of the
key issues of our day, we as a society often seem literally not to
know what we are talking about. If this book captures with any
accuracy what marriage is, the dominant definition of marriage in
today's public debate is all but worthless. We must toss it out and
start over. Then and only then can we dream marriage's future.
001264
Gooos IN CoNFLICT 179
much smaller idea: marriage as another name for a private com-
mitted relationship.
We as a society can and should accept the dignity of homo-
sexual love and the equal worth of gay and lesbian persons. But
must we shrink and restructure marriage in these institution-maim-
ing, child-threatening ways in order to achieve this social process?
I do not suggest that the answer is easy. But to me, the answer is no.
Marriage exists for public purposes that can be specified.
Diminishing homophobia is not one of marriage's public purposes. Mar-
riage is institutionally alive to the fact of sexual embodiment and,
flowing from it, sexual reproduction. Regarding the subjective and
often complex issue of sexual orientation, marriage is institution-
ally deaf, blind, and dumb. It doesn't ask, tell, require, record, stip-
ulate, accept, judge, or reject on the basis of individual sexual desire.
Asking marriage to do so now-asking marriage to reconstitute
itseli according to the criterion of sexual orientation, and in doing
so to help change public attitudes about orientation-is asking mar-
riage to do something entirely unprecedented, and something for
which the institution is radically ill equipped.
When people seek to reshape and use marriage for a bad pur-
pose, such as fostering racism through anti-miscegenation laws,
the moral judgment is easy. When a major social institution is threat-
ened for a good cause, the moral judgment becomes difficult and
painful, because doing more of one good thing requires doing less
of another. That is our predicament today regarding same-sex mar-
riage. There is no true analogy between yesterday' s racists and
today' s defenders of maniage' s customary forms. The only accu-
rate analogy is between the advocates of anti-miscegenation laws
and the advocates of same-sex marriage, since each group wants
to recreate marriage in the name of a social goal that is fundamen-
tally unconnected to marriage.
The Right to Marry
When Andrew Sullivan insists that "only marriage" can make it pos-
sible for a young gay man to know that "his love has dignity," he is
grounding the plea for same-sex marriage in one of humanity's most
001268
180 T HE FUTURE OF MARRIAGE
powerful ideas. That idea is that all persons possess equal dignity,
and therefore that all are entitled to equal moral regard. Philoso-
phers increasingly view this idea as the essential universal moral
law-the starting point of ahnost all liberal moral thought and the
necessary foundation of any philosophical stance consistent with
basic human values.U
In the modern era, the idea of equal human dignity has been
expressed most concretely, and has achieved its greatest impact,
through the development and practice of human rights. The most
seminal human rights document in the world today, the United
Nations 1948 Universal Declaration of Human Rights, begins its pre-
amble with these properly famous words: "Recognition of the inher-
ent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace
in the world." The first sentence of the Declaration's first article reads:
"All human beings are born free and equal in dignity and rights."
This concept of human rights based on inherent human dig-
nity is changing the world. Increasingly, talking about rights is the
way that we talk about many of our most important needs and
aspirations. Both in the United States and internationally, the lan-
guage of rights has become a primary language for expressing our
ideas of the good, especially regarding standards of justice. As the
Canadian human rights scholar Michael Ignatieff puts it,
Rights are not just instn1ments of the law, they are expressions of
our moral identity as a people. When we see justice done-for
example, when an unjustly imprisoned person walks free, when a
person long crushed by oppression stands up and demands her
right to be heard- we feel a deep emotion rise within us. That
emotion is the longing to live in a fair world . Rights may be pre-
cise, legalistic, and dry, but they are the chief means by which
humans express this longing.
12
The modern human rights revolution carries powerful impli-
cations for the institution of marriage. The most important is that
marriage is a fundamental human right, stemming from the equal
dignity of all persons. The Universal Declaration of Human Rights
establishes this point clearly in Article 16: "Men and women of full
age, without any limitation due to race, nationality or religion, have
001269
182 THE fUTURE OF MARRIAGE
statement of human rights. As the legal scholar Mary Ann Glen-
don puts it, when we read it as a whole, we find that "the Decla-
ration's vision of liberty is inseparable from its call to social
responsibility." She states:
When read as it was meant to be, namely as a whole, it is an inte-
grated document that rests on a concept of the dignity of the
human person within the family. In substance, as well as in form,
it is a declaration of interdependence-interdependence of peo-
ple, nations, and rights.
1
'
So let us examine more fully what the Declaration tells us about
the right to marry and to found a family. Here is Article 16, the one
concerning marriage, in its entirety:
Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a
family. They are entitled to equal rights as to marriage, during
marriage, and at its dissolution.
Marriage shall be entered into only with the free and full con-
sent of the intending spouses.
The family is the natural and fundamental group unit of soci-
ety and is entitled to protection by society and the State.
Here we see six important ideas. Marriage is intrinsically linked to
children. Men and women have equal rights in marriage. Marriage
requires the spouses' free consent. The natural family is society's
basic group unit. The institution of the family deserves protection.
And, marriage is a fundamental human right.
The key point is that each of these ideas is connected to all
the others. Freedom is linked to solidarity. Marriage is linked to
family. Rights imply responsibility. Institutions are not wished
away; they exist, and they matter. Together, these six ideas are not
perfect and do not tell us everything about marriage, but they ably
suggest marriage's fundamental shape and public purpose. Above
all, the Declaration clearly does not intend for these ideas to be
pulled apart and isolated from one another. It is certainly not say-
ing, or even remotely implying, that the master idea, the one right,
is that anyone has the right to marry anyone.
1
b
001271
Gooos IN CoNFLICT 189
parents die. Sometimes they do not or cannot competently parent
their child. Sometimes they become threats to their own children.
In such cases, society can and must intervene directly on behalf of
the child, primarily through institutions such as adoption and state-
run residences for children. "As far as possible" is not an escape
clause for indifferent policy makers or for parents who would rather
do whatever, but is instead a sober recognition by the state that
sometimes, tragically, children are denied their birthright to their
two parents.
The United Nations Convention declares that I lzave a right as
a child to the mother and father who made me. I am owed this right "as
far as possible"; the only exception is when, due to tragedy, it is
either not possible or not in my best interests to be raised by my
natural parents. This right is as essential to me as having a name.
Yet across the world today, and especially in the rich countries
of the West children are increasingly denied this basic birthright.
The divorce and unwed childbearing revolutions of recent decades
mean that, with each passing year, more and more of our children
are not living with and being cared for by their own two natural
parents. In the United States, for example, the astonishing truth is
that the proportion of all children who do not grow up living with
their own mothers and fathers is now roughly as large as the pro-
portion who do.
29
We are witnessing, with a considerable degree of
indifference, a widespread and growing breach of a basic human
right. This fact alone ought to concern anyone who cares about chil-
dren-and anyone who cares about human rights.
But today, a new and potentially lethal threat to this right is
emerging and gaining momentum. We can see the threat in any
number of recent policy recommendations, commercial ventures,
court decisions, interest group claims, and expert arguments, in
the United States and in several other countries as well. The threat
is the proposed elimination in law of the idea that there is some-
thing normative or desirable about a child being raised by her nat-
ural mother and her natural father. According to the researcher
Frank Furstenberg and colleagues,
Numerous studies have shown that individuals generally fare
best both in childhood and in later life when they grow up with
001278
192 THE FuTUilE OF MARRIAGE
children have a birthright to know and be cared for by their two
natural parents is not invalidated merely by pointing to the exis-
tence of adoption. Legalized adoption does not mean that parent-
hood is one thing and "genetics" is something entirely different. It
does not imply that there is nothing distinctive or nonnative about
natural parents. Nor does it mean we must pretend that adoption
is unconnected to loss. Most of all, the existence of adoption does
not mean that society is obliged to smile benignly and pretend that
all is well when individuals or couples decide to take unprece-
dented steps- not as an altruistic response to a child's loss, but as
a personal prerogative for which they seek society's support and
collaboration-to bring into this world children who by definition
can never be cared for by their two natural parents. So much for
the argument based on adoption.
Some proponents also try to justify the new rights claim-
both explain its inevitability and insist that there is nothing really
novel about it-by invoking the reality of divorce and unwed child-
bearing. Both of these practices undermine the child's right to her
two natural parents, yet we as a society tolerate them. Few if any
of us are prepared to outlaw them. So proponents of the new rights
claim pose this challenge: Isn't the new assertion about family for-
mation just a bit more of the same-a further expression of essen-
tially the same cultural values?
It is true, of course, that all three of these behaviors result in
higher numbers of children in nontraditional family struchl.res. But
the right to marry the person you choose and form the family you
choose departs sharply, and in the most alarming possible way,
from the C\lready disturbing cultural precedents set by the spread
of divorce and unwed childbearing.
Divorce is failure, an unhappy ending. No one gets married
planning or hoping to divorce. Almost no one denies that divorce
is a major cause of childhood suffering today.
33
Although divorce
is sometimes necessary, and even at times can open a pathway to
future adult flourishing, a choice to divorce can never be anything
better than the least bad choice. As the novelist Pat Conroy put it,
"Every divorce is the death of a small dvilization."
34
Conversely, the new rights claim concerns a novel approach
to founding a family-a birth, not a kind of death. It is not about
·.
001281
Goons IN CoNFLICT 195
down to one, or up to three or more. The recommended changes
in New Zealand are intended to facilitate and normalize both
options.
For example, depending on the wishes of the adults involved,
egg or sperm donors may elect to "opt out" of legal parenthood.
In recognition of this option, the Law Commission helpfully rec-
ommends several changes in New Zealand's birth certificates. For
example, instead of reporting that the father of the newborn is
"unknown" -the commission reports that some mothers find such
terminology unpleasant-a mother could instead request that the
birth certificate simply stipulate that the child was born of the
mother and "by donor." The commission also recommends in such
cases that the birth certificate inform the child-"the person whose
certificate it is" -that "other information" about the child's origins
may be available from the federal Register of Births, Deaths and
Marriages. Such "other information" could include the fact that the
father-excuse me, the donor-"opted out" of legal parenthood.
("Tough luck, kid, sometimes they opt out!")
On the other hand, if a sperm or egg donor reaches such an
agreement with the intended parental couple-either heterosexual
or homosexual, married or unmarried-the Law Commission also
recommends permitting the egg or sperm donor to "opt in" to par-
enthood. In these cases, the child in question would have three legal
parents. Four or more parents might be possible in some cases.
Exactly how many would depend on the agreements reached by
the collaborating adults.
38
So, if some children in New Zealand are going to have three
legal parents, why can't those parents all marry one another? Allow-
ing three persons legally to co-parent a child but not to marry would
surely constitute arbitrary discrimination against those parents,
wouldn't it? Please whisper hello to group marriage.
Of course, in the public debate on same-sex marriage and the
alleged right to found families of choice, anyone who brings up
polyamory or polygamy is usually chastised harshly for offering
"slippery slope" arguments. But as we've seen, legal scholars are
already publishing articles in law journals making the case for
legally recognized polyamory. I'll bet that these advocates, who are
just as passionate and serious about their goal as gay marriage
001284
198 THE FUTURE OF MARRIAGE
calls genetic orphans, or children who do not and cannot know
their natural origins.
43
• Children have the right to be heard. Today, the rights claims of
adults come through loud and dear, but children's voices are
much harder to hear. That could and should change.
In a good society, when it comes to making new rights claims, every-
body gets to play.
So here are two basic but conflicting rights claims:
1. I have the right as an adult to marry the person I choose and form
the frtmily I choose.
2. I have the right as a child to be cared for by my natural mother
and father.
The conflict is not between good and bad-each claim affirms
valuable human goods. But the conflict can't be wished away. And
so we must choose. For me, sustaining the right of the child to her
two natural parents is ultimately more important than granting
adults more freedom of choice. There are three reasons why.
First, virtually all of our religious and secular moral tradi-
tions emphasize that when we are forced to make hard choices
between competing interests, we should seek first and foremost to
protect the interests of those who are less able to protect themselves.
In this case, that means children.
The second reason relates to the principle of the greatest good
for the greatest number. The proportion of homosexuals in society
is small. The proportion of homosexuals who would choose to
marry is smaller. The proportion of homosexuals who would choose
to marry and raise children together is almost certainly still smaller.
On the one hand, the impact of the right to marry and to form fam-
ilies of choice would almost certainly be large and positive for that
minority. So let's stipulate that a few in society would benefit greatly.
On the other hand, changing marriage, regardless of why we
do it, changes marriage for everyone. In particular, it changes par-
enthood for everyone.
44
When Canada, by way of implementing
same-sex marriage, erased the concept of natural parent from basic
Canadian law, there was no asterisk saying "for gay and lesbian
couples only." The idea of the natural parent got wiped out in law
for every child and every couple in Canada.
001287
Gooos IN CoNFLICT 199
Changing a public meaning is a collective event; the mean-
ing changes for eve11;one. If the child's current right to her two nat-
ural parents goes down completely, as the proponents of the new
rights claim insist that it must, then that right as a societal prom-
ise will no longer pertain to any child.
When a change of this sort takes place, we as a society sel-
dom feel an immediate impact. It's not like an earthquake, but more
like the imperceptible shifting of the earth's tectonic plates. Our
foundations change, as deviancy is defined down."
5
The movement
is slow, but powerful and ultimately determinative. On the princi-
ple of the greatest impact on the greatest number, and with what I
hope is full knowledge of and respect for the competing goods at
stake, I conclude that we ought to elevate the rights of the children
over the freedom of the adults.
The third and final reason concerns the core purposes of mar-
riage in human societies. The single most important purpose is to
give to the child the mother and father who made the child. Mar-
riage does not exist in order to address the problem of sexual orien-
tation or to reduce homophobia. Marriage does not exist in order to
embody the principle of family diversity or to maximize adult choice
in the area of procreation and child rearing. A case can be made for
each of these latter objectives, but marriage as a human institution
was never intended to pursue any of them. It makes better sense to
ask an institution to do what it is built to do, rather than something
it was never meant to do. I conclude again that sustaining children's
rights in this regard should outweigh new adult freedoms.
"Where's the Threat?"
A gay man writes in to USA Todny: "Please clarify for me: How
exactly would my marrying my partner of more than four years
threaten the institution of marriage?"
46
In a similar tone of exas-
peration and bewilderment, a guest columnist for the Los Angeles
Daily News writes: "I truly do not understand the argument that
same-sex marriage somehow dilutes the institution of marriage ....
How loving and committed gays or lesbians living together and
creating homes and families threatens anyone is beyond me.''
47
001288
Gooos IN CoNFLICT 201
thinking person, that merely asking the question is sufficient to
clinch the argument.
But we know already that the answer is not self-evident. It' s
not enough merely to ask the question. So let's try in good faith to
answer it.
There's the Threat
I have suggested that permitting same-sex couples to marry would
threaten the institution of marriage in two fundamental ways.
First, the deep logic of same-sex marriage is deinstitutional-
ization. This fact, it seems to me, is essentially beyond dispute.
Deinstitutionalization may not require same-sex marriage, but
same-sex marriage plainly presupposes and requires deinstitution-
alization. Do we want, in pursuit of a good cause, to transform mar-
riage once and for all from a pro-child social institution into a
post-institutional private relationship?
Second, same-sex marriage would require us in both law and
culture to deny the double origin of the child. I can hardly imagine
a more serious violation. It would require us to change or ignore
our basic human rights documents, which announce l e a r l ~ and
for vitally important reasons, that every child has a birthright to her
own two natural parents. It would require us, legally and formally,
to withdraw marriage's greatest promise to the child-the promise
that, insofar as sodety can make it possible, I will be loved and raised
by the mother and father who made me. When I say, "Every child
deserves a mother and a father," I am saying something that almost
everyone in the world has always assumed to be true, and that many
people today, I think most people, still believe to be true. But a sod-
ety that embraces same-sex marriage can no longer collectively
embrace this norm and must take specific steps to retract it. One
can believe in same-sex marriage. One can believe that every child
deserves a mother and a father. One cannot believe both.
Surely we can at least recognize that same--sex marriage is not
a simple issue of good versus bad, enlightened versus reactionary.
The real conflict is between one good and another: the equal dig-
nity of all persons and the worth of homosexual love, versus the
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