«NOS. 14-556, 14-562, 14-571, 14-574 IN THE Supreme Court of the United States JAMES OBERGEFELL, ET AL., Petitioners, v. RICHARD HODGES, DIRECTOR, ...»
Williams, Camille, Planned Parent-Deprivation: Not In the Best Interests of the Child, 4 WHITTIER J.
CHILD & FAM. ADVOC. 375 (Spring 2005)............. 16 Wilson, James Q., THE MARRIAGE PROBLEM: HOW OUR CULTURE HAS WEAKENED FAMILIES (2002).... 5 Witherspoon Institute, MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES (2008)
INTEREST OF AMICI CURIAE 1Amici are scholars of the effects that marriage law has on the welfare of women, children, and underprivileged populations. They teach and/or write in a variety of disciplines, but all have, through their research, come to the same conclusion, expressed in this brief, that redefining the institution of marriage away from its roots in the biological complementarity of men and women will have profound negative consequences on society in general and specifically on women and children, particularly those who are socioeconomically underprivileged.
Camille S. Williams has researched, taught and published articles about a variety of family law issues, including research on the disparate impact some laws have on women and children. As one of the authors whose scholarship is relied upon in this brief, she is familiar with the literature about the benefits sex-integrated marriage provides women and children.
Dr. Janice Chik Breidenbach is an Assistant Professor of Philosophy at Ave Maria University.2 Her scholarship has focused on sexual ethics, the complementarity of men and women, and theories of female empowerment and gender equality. She has also engaged in research on public policy issues concerning This brief is filed with the consent of all parties. No counsel for a party in this Court authored this brief in whole or in part, and no person other than amici and their counsel made any monetary contribution intended to fund its preparation or submission.
Institutional affiliations are listed for identification purposes only.
low-income fragile families, particularly focusing on women and children.
Dr. Melissa Moschella is an Assistant Professor of Philosophy at The Catholic University of America, and currently a Myser Fellow at the Notre Dame Center for Ethics and Culture. She is also a member of the Academic Council of the International Children's Rights Institute. She has published articles on the moral dimensions of bioethics, children's rights, parental rights, conscience rights and sexual ethics.
Dr. Susan E. Hanssen is an Associate Professor of History at the University of Dallas, where she teaches American Civilization and American Women’s History. As the 2010–2011 Garwood Fellow at the James Madison Program in American Ideals and Institutions at Princeton University she began a research project on Henry Adams and the Adams family women, and particularly his concern about the weakening of a culture of strong women and the destruction of the family in America.
Maggie Gallagher is a senior fellow with the American Principles Project and was the founder of the Institute for Marriage and Public Policy and co-founder of the National Organization for Marriage. She is the author of four books on marriage, including The Case for Marriage; The Abolition of Marriage: How We Destroy Lasting Love; and most recently Debating SameSex Marriage.
SUMMARY OF ARGUMENTThroughout the history of civilization, marriage’s universally defining feature has been the uniting of man and woman. That timeless conception of marriage has been society’s best means of connecting men to the women who bear their children and ensuring that they collectively remain a family. For centuries, that understanding of marriage has served to forestall the ills—especially to women, children, and underprivileged populations—that all too often result when society separates sex, procreation, and childrearing. It has provided stability where there might otherwise be disorder. Where it has flourished, marriage has greatly benefited society, as well as children and adults (both men and women) in married households, particularly those from underprivileged backgrounds.
Recently, however, some States have changed marriage’s universally defining feature in their laws.
No one knows for sure what the long-term effects of this fundamental change might be. But many reasonable people of good will are legitimately concerned about transforming marriage into an institution that denies the importance of gender diversity for family life, that further entrenches an adult-centered view of marriage, and that no longer affirms marriage’s animating social purpose of connecting sex, procreation, and childrearing. They worry that such a transformation will impede marriage’s ability to serve society as it has so well in the past.
Their concerns are well-founded. In particular, it is reasonable to project that the redefinition of marriage will have negative long-term consequences. And that is particularly true for women and their children in socioeconomically disadvantaged communities.
That topic is the focus of this brief.
ARGUMENT I. The Institution of Marriage Guides and Channels Human Behavior, and Especially Benefits Women in Disadvantaged Communities and their Children.
It is often said—and rightly so—that marriage is an institution. See, e.g., Williams v. North Carolina, 317 U.S. 287, 303 (1942). But in reciting that truism, many often overlook or fail to appreciate an institution’s inherent role in guiding and channeling human behavior.
“In its formal sociological definition, an institution is a pattern of expected action of individuals or groups enforced by social sanctions, both positive and negative.” Robert N. Bellah, et al., THE GOOD SOCIETY 10 (1991). Stated differently, “[i]nstitutions are the humanly devised constraints that structure … social interaction.” Douglass C. North, Institutions, 5 J. OF ECON. PERSPECTIVES 97, 97 (Winter 1991). “Institutions …, by the very fact of their existence, control human conduct by setting up predefined patterns of conduct, which channel it in one direction as against the many other directions that would theoretically be possible.” Peter Berger and Thomas Luckmann, THE SOCIAL CONSTRUCTION OF REALITY 52 (1966); see also A.R. Radcliffe-Browne, STRUCTURE AND FUNCTION IN PRIMITIVE SOCIETY 10-11 (1952) (“[A] person [in a social institution] knows that he is expected to behave according to these norms and that the other person should do the same”).
Institutions influence people’s choices and behavior through a set of social rules, norms, expectations, and understandings—formal and informal, legal and cultural. See Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions, Exchange, and Social Structure, in THE NEW INSTITUTIONALISM IN SOCIOLOGY 19 (Mary Brinton & Victor Nee eds., 1998). As its history makes clear, the institution of marriage developed for the primary social purpose of encouraging men and women to enter durable unions, remain sexually faithful to each other, and jointly raise the children that naturally result from their relationships.
See W. Bradford Wilcox. et al.,, Why Marriage Matters 15 (Institute for American Values 2d ed. 2005) (“[M]arriage across societies is a publicly acknowledged and supported sexual union which creates kinship obligations and sharing of resources between men, women, and the children that their sexual union may produce”); James Q. Wilson, THE MARRIAGE PROBLEM: HOW OUR CULTURE HAS WEAKENED FAMILIES 41 (2002). At bottom, then, marriage, as a social institution, exists to connect children to both their mother and father and to connect fathers and mothers to each other. See Kingsley Davis, Introduction: The Meaning and Significance of Marriage in Contemporary Society, in CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION 1, 7-8 (Kingsley Davis ed., 1985). Indeed, that is the reason why “governments got into the business of defining marriage, and remain in the business of defining marriage” still today. DeBoer v. Snyder, 772 F.3d 388, 404 (6th Cir. 2014).
Marriage accomplishes its purposes by, among other things, forging a social expectation that connects marriage, sex, procreation, and childrearing.
See Ex parte State ex rel. Alabama Policy Inst., No.
1140460, 2015 WL 892752, at *35-36 (Ala. Mar. 3, 2015) (quoting Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 995-96 (Mass. 2003) (Cordy, J., dissenting)). In particular, marriage encourages men to commit to the women with whom they are in sexual relationships and the children born as a result of those relationships. See id. Marriage additionally maintains a complex web of interrelated norms that collectively affirm marriage’s overriding purpose as providing for the welfare of children by connecting them to both their mother and father. See generally Brief of Amici Curiae Marriage Scholars.
When stable marriages thrive, women and those in socioeconomically disadvantaged communities (including children) benefit the most because “[m]arriage provides security, support and stability for women and the children they care for.” Lynne Marie Kohm, What’s the Harm to Women and Children? A Prospective Analysis, in WHAT’S THE HARM? DOES LEGALIZING SAME-SEX MARRIAGE REALLY HARM INDIVIDUALS, FAMILIES OR SOCIETY 79, 83 (Lynn D. Wardle ed., 2008).3 Indeed, married women generally have more wealth than their unmarried counterparts. See Audrey Light, Gender Differences in the Marriage and Cohabitation Income Premium, 41 DEMOGRAPHY 263, 263-84 (May 2004) (noting that women experience substantial financial gains from marriage). And social science research indicates that “marriage is effective
Men also benefit from marriage, but “the benefits to men of a
long-standing committed marriage may be more remote, less tangible, and less immediate than for women.” Amy L. Wax, Diverging Family Structure and “Rational” Behavior: The Decline in Marriage as a Disorder of Choice, in RESEARCH HANDBOOK ON THE ECONOMICS OF FAMILY LAW 15, 60 (Lloyd R. Cohen & Joshua D. Wright eds., 2011) (hereafter “Wax, Diverging”).
in lifting many mothers and children out of poverty.” Wax, Diverging, at 29 (citing at least ten sources).4 But when marriages either disappear or break down, women in underprivileged communities—and their children—suffer the most. For example, unmarried women are often left to raise their children as single mothers, but that life is usually quite difficult for women and their kids, particularly economically. Id.
Moreover, while divorce can inflict adverse consequences, illness, and psychological distress on all the parties involved, the evidence indicates that the problems are particularly acute for women and children.
S. Hope, B. Rodgers, and C. Power, Marital Status Transitions and Psychological Distress: Longitudinal Evidence from a National Population Sample, 29 PSYCHOLOGICAL MEDICINE 381 (Mar. 1999).
Decreasing incidence of marriage, increasing marital breakdown, and the harms that accompany both are widespread throughout disadvantaged communities. See generally Kathryn Edin & Maria Kefalas, PROMISES I CAN KEEP: WHY POOR WOMEN PUT MOTHERHOOD BEFORE MARRIAGE (2005); Sara McLanahan, Diverging Destinies: How Children are Faring Under the Second Demographic Transition, 41 DEMOGRAPHY 607 (2004). Indeed, a wealth of data shows that people
See, e.g., Daniel T. Lichter. et al., Is Marriage a Panacea? Union
Formation Among Economically Disadvantaged Unwed Mothers, 50 SOCIAL PROBLEMS 60, 60 (Feb. 2003) (“The economic benefits of marriage are especially strong among women from disadvantaged families”); Camille S. Williams, Women, Equality, and the Federal Marriage Amendment, 20 BYU J. PUB. L. 487, 492 (2006) (“[M]arriage helps women, especially women with children, attain financial stability”).
with lower levels of education are less likely to marry,5 more likely to have children outside of marriage,6 and more likely to divorce.7 A vibrant marriage culture thus plays a vital role in bringing about the well-being of women and children, particularly those in socioeconomically disadvantaged groups. Therefore, if the redefinition of marriage further undermines marriage’s vital role in connecting sex, procreation, and childrearing or in linking men to both their children and their children’s mothers, it is reasonable to anticipate that this social change will inflict harm on these groups above all others.
See Nicholas Bakalar, Education, Faith, and a Likelihood to Wed, New York Times Science Times, at D7 (Mar. 23, 2010) (“The higher the level of education, the more likely people [are] to wed.”); Wax, Diverging, at 15-16 (collecting data).
See W. Bradford Wilcox, et al., The Marginalization of Marriage in Middle America, Brookings Institute at 2 (Aug. 10, 2011), available at http://brookings.edu/~/media/research/files/papers/2011/8/10%20strengthen%20marriage%20wilcox%20cherlin/0810_strengthen_marriage_wilcox_cherlin.pdf (noting that the non-marital birth rate is 6 percent among Americans with a college degree, compared to 44 percent among Americans with only a high-school diploma); Ron Haskins and Elizabeth Sawhill, CREATING AN OPPORTUNITY SOCIETY 208 (2009) (noting that The least educated women are “six times as likely as the most educated women to have a baby outside of marriage”).
Steven P. Martin, Trends in Marital Dissolution by Women’s
Education in the United States, 15 DEMOGRAPHIC RESEARCH 537,537-60 (2006).
II. Past Well-Intentioned Changes to Marriage Law and Policy Have Harmed Women and Children in Disadvantaged Communities.
“Institutions always have a history, of which they are the products. It is impossible to understand an institution adequately without an understanding of the historical process in which it was produced.” Berger & Luckmann, supra, at 72. As a result, prudence counsels those involved in the current debate over the definition of marriage to inquire about—and learn from—past legal changes that have affected the institution.
For example, no-fault-divorce laws are a prime example of past changes in marriage laws that had a substantial (and largely unanticipated) effect on how people think about and interact with the institution.
More than forty years ago, legislatures throughout the Nation began adopting no-fault-divorce laws for laudable purposes, such as facilitating the end of dangerous or unhealthy marriages. See Betsey Stevenson & Justin Wolfers, Bargaining in the Shadow of the Law: Divorce Law and Family Distress, 121 Q. J.
ECON. 267, 267 (2006).