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«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, ...»

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This community must deal with a multiplicity of factors and obstacles in the course of their day-to-day lives that individuals with higher incomes and levels of education generally do not face. Very real and immediate questions of how to make ends meet and how to deal with emotional turbulence, threats to personal security, and other impacts of higher rates of crime and social disturbance in their communities demand their time and attention on a daily basis. See Garance Franke-Ruta, Remapping the Culture Debate, AMERICAN PROSPECT (Feb. 2006) (“Lower-income individuals simply live in a much more disrupted society, with … more interpersonal and interfamily strife, than do the middle- and upper-middle class people they want to be like”). These and other factors tend to drive the socioeconomically disadvantaged to “local”—that is, short-term—modes of decision-making that do not fully consider the long-term consequences of many of their relationship choices. See Wax, Diverging, at 71.

But this sort of short-term decision-making in the relationship context often “generates a pattern of infidelity, short-lived liaisons, and fragile partnerships.” Wax, Diverging, at 57. “The expected results” of that type of behavior “include lower marriage rates, a rise in short-term cohabitation, more multiple partner fertility, higher numbers of extra-marital births, and children growing up in fatherless families.” Id.

Thus, communities that engage in short-term modes of decision-making benefit greatly from marriage’s historic model because that model encourages a men and women to marry, remain sexually faithful to each other, and jointly raise the children they beget. See id., at 60-61. But because redefining marriage away from its biological roots would further blur—and, in some ways, finally destroy—that historic understanding of marriage, the poor and marginalized will be among the most adversely affected by this fundamental social change.

Notably, history has shown that the socioeconomically disadvantaged are the most vulnerable to changing social understandings of marriage. See supra at 5-6, 10-11. As discussed above, past legal changes that have already undermined the historic understanding of marriage have harmed the poor and least-educated the most. Thus, it stands to reason that this further change, which is more far-reaching than any alteration that preceded it, would inflict its harm on the socioeconomically disadvantaged above all others.

Not only will the undermining of marriage’s historic norms harm the poor and disadvantaged, but the new norms that will accompany a redefined marital institution will further exacerbate those harms. “As the incidence of non-marriage and single parent families within more vulnerable groups increases, group dynamics, such as tipping and contagion, may … increas[e] the frequency of self-defeating behaviors.” Wax, Diverging, at 65. “As these patterns become more dominant, they will in turn be considered more acceptable,” thus creating “a new set of norms” that “may further entrench these behaviors, making them more difficult to reverse.” Id.

Other segments of the community are not likely to experience the anticipated harms to the same degree as the poor and marginalized. For example, “[m]ore educated and advantaged individuals are by and large better equipped to do for themselves” the tasks performed by “strong institutional and normative expectations.” Wax, Diverging, at 62. Their higher propensity to engage in long-term modes of decision-making enables them to perceive the inherent value of embracing marriage’s traditional norms and positions them to better navigate the erosion of our historic understanding of marriage. Id. Thus, the legal profession, as a class of well-to-do and well-educated social elites, would be remiss if it were to view the consequences of redefining marriage only from its own rather unique perspective.

C. Redefining Marriage Risks Several Specific Anticipated Harms to Women and Children in Disadvantaged Communities.

1. More Women Will Be Left to Raise their Children as Single Mothers.

The Pool of Heterosexual Men Interested in Marriage and Fatherhood Will Decrease. Redefining marriage will treat gender as unimportant to family life.

See supra at 13. As heterosexual men from disadvantaged communities come to believe that they are not necessary to their partner’s or their children’s wellbeing, they will be less likely to marry or actively engage as fathers.

It has been long recognized that “the culture of fatherhood and the conduct of fathers change from decade to decade as social and political conditions change.” William J. Doherty, et al., Responsible Fathering, 60 J. MARRIAGE & FAM. 277, 278 (1998). This inconstant history of fatherhood has led many scholars to conclude that fathering is “more sensitive than mothering to contextual forces.” Id. Indeed, research shows that men “are more reliant on … social and relationship supports to foster their healthy involvement in family life and parenting.” Jason S. Carroll & David C. Dollahite, “Who’s My Daddy?” How the Legalization of Same-Sex Partnerships Would Further the Rise of Ambiguous Fatherhood in America, in WHAT’S THE HARM?, supra, at 47, 62.

Troublingly, though, the redefinition of marriage will transform marriage—society’s core family structure—to make men’s involvement ancillary and optional. Therefore, this will likely alienate men from marriage and family life, causing “an increase in men who live outside marriage and parenthood altogether.” Carroll & Dollahite, supra, at 63.





More Single Mothers. As the pool of heterosexual men interested in marriage and fatherhood decreases, fewer women will marry.11 Nevertheless, these women will continue to have children, and as a result,

See Steven L. Nock, The Consequences of Premarital Fatherstrong>

hood, 63 AM. SOC. REV. 250, 251 (1998) (hereafter “Nock, Consequences”) (“[W]hen social or environmental factors alter this equilibrium [between suitable male and female partners] … marriages will be … foregone.”); Wax, Diverging, at 25 (noting that a decline in marriageable men “will drive down marriage rates”).

more kids will be born out of wedlock12 and raised by single mothers.13 Regrettably, however, the increase in singlemother homes will negatively affect both women and their children. Poverty is substantially higher among single mothers than married mothers. See Adam Thomas & Isabel Sawhill, For Love and Money? The Impact of Family Structure on Family Income, 15 THE FUTURE OF CHILDREN 57, 57 (Fall 2005) (“[S]ingle-parent households … have less family income and are more likely to be poor than … married-parent families”); Lichter, supra, at 60. This is so, at least in part, because “[b]ecoming a single parent … seriously interferes with work and education, and saddles a woman with onerous responsibilities that are difficult to bear alone.” Wax, Diverging, at 57.

Children raised by single mothers also tend to suffer. The absence of economic resources is among the most important factors contributing to “children’s lower achievement in single-parent homes.” Sara McLanahan & Gary Sandefur, GROWING UP WITH A SINGLE PARENT: WHAT HURTS, WHAT HELPS 3 (1994).

Another significant factor is the absence of fathers, id., because “[t]he weight of scientific evidence seems Jennings, supra, at 75 (noting that after The Netherlands redefined marriage, “out-of-wedlock births … crept up 8%, … the highest rate of increase since 1970).

See Doherty, Responsible Fathering, at 280 (“In nearly all cases, children born outside of marriage reside with their mothers” and experience “marginal” father presence); Nock, Consequences, at 251 (noting that a lack of marriageable men “contributes to … the formation of female-headed families”).

clearly to support the view that fathers matter” for children’s development, Wilson, supra, at 169.14 Because they lack adequate resources and their father’s daily involvement, those children, when compared to kids “of similar background who grow up with both parents at home,” are more likely to drop out of high school or become teenage parents. See McLanahan & Sandefur, supra, at 2. They are also likely to turn to a life of violence. See Jennings, supra, at 71 (“[B]eing born to an unmarried mother is by far the most significant factor disposing children to a life of crime—more significant than IQ, race, culture, or education”). These sorts of negative child outcomes not only place additional stress and strain on mothers, they also demonstrate how single-mother homes often perpetuate poverty from one generation to the next.15

14 See e.g., Jane Mendle, et al., Associations Between Father Ab-

sence and Age of First Sexual Intercourse, 80 CHILD DEV. 1463, 1463 (2009); Eirini Flouri & Ann Buchanan, The Role of Father Involvement in Children’s Later Mental Health, 26 J. ADOLESCENCE 63, 63 (2003); see also Barack Obama, Obama’s Speech on Fatherhood (June 15, 2008), http://www.realclearpolitics.com/articles/2008/06/obamas_speech_on_fatherhood.html; David Popenoe, LIFE WITHOUT FATHER (1996).

See Robert I. Lerman & W. Bradford Wilcox, For Richer, For Poorer: How Family Structures Economic Success in America 3 (Institute for Family Studies 2014) (“Growing up with both parents (in an intact family) is strongly associated with more education, work, and income among today’s young men and women.

Young men and women from intact families enjoy an annual ‘intact-family premium’ that amounts to $6,500 and $4,700, respectively, over the incomes of their peers from single-parent families.”).

More Irresponsible, Unmarried Men Create Additional Hardships for Women and Children. For many men, particularly those from disadvantaged communities, marriage and active fatherhood play a vital role in their maturation—shifting their behaviors from antisocial and selfish to productive and othersoriented. See Steven L. Nock, MARRIAGE IN MEN’S LIVES 6-8 (1998); George A. Akerlof, Men without Children, 108 THE ECONOMIC JOURNAL 287, 290 (1998) (“[M]en settle down when they get married: if they fail to get married they fail to settle down”); Steven Rhoads, TAKING SEX DIFFERENCES SERIOUSLY 252-53 (1994). “Studies indicate that when men avoid marriage …, they continue with some of the antisocial and destructive behaviors that are more common among single men.” Kohm, supra, at 84 (citing Akerlof, supra, at 287).16 The prevalence of this socially disruptive conduct among some men hurts women and children, who are often the targets of their destructive conduct. Thus, one of the many ways in which marriage benefits women is that “marriage makes men better.” Williams, Women, supra, at 490.

These problems will compound as the absence of marriage perpetuates itself. Women are understandably uninterested in marrying prospective mates with significant behavior shortcomings such as drug abuse and a lack of employment. See Wax, Diverging, at 57 (“These women’s … failure to marry, despite a proSee also Williams, Women, supra, at 490 (noting that some groups of unmarried young men can be “prone to engage in violence and predatory sex” and that, “[c]ompared with the married, young unmarried men tend to be lazy and unfocused”).

fessed desire to do so, is a function of … [the] bad character and anti-social conduct” of such men). Therefore, the longer that these men live outside marriage, and the more that they persist in their socially disruptive behavior, the less likely that women will ever view them as suitable marriage partners.

Unwed men can also jeopardize the welfare of women and their children in other ways, both direct and subtle. For instance, unmarried men who father children typically have much less contact with their children than do married men, depriving those children of a strong father-child bond. Unmarried men also tend to make less money than their married counterparts.17 This diminished income inflicts additional hardships on the children that these men beget—and, by extension, the mothers of those children—because fewer resources are available to support the children’s upbringing.

2. More Man-Woman Couples Will Cohabit Rather Than Marrying, Thereby Further Harming Women and Children in Underprivileged Populations.

See Lerman & Wilcox, supra, at 3 (“[M]en enjoy a marriage

premium of at least $15,900 per year in their individual income compared to their single peers”); Alexandra Killewald, A Reconsideration of the Fatherhood Premium: Marriage, Coresidence, Biology, and Fathers’ Wages, 78 AM. SOC. REV. 96, 113 (2012) (“Together, these three ties [marriage, co-residence, and biology] linking fathers to their children and their children’s mother lead to higher wages for fathers than for non-fathers, but absent any one tie the fatherhood premium disappears.”); Nock, Consequences, at 250.

As discussed above, redefining marriage will obscure the institution’s purpose of connecting sex, procreation, and childrearing in the biological family. See supra at 15. As this occurs, the social expectation and pressure to marry for man-woman couples having or raising children will likely decrease further, particularly in socioeconomically disadvantaged communities. See Robert P. George, et al., WHAT IS MARRIAGE?

62 (2012) (noting that it might be “more socially acceptable … for unmarried parents to put off firmer public commitment”). These developments, over time, will lodge in the public consciousness the idea that marriage is merely an option (rather than a social expectation) for man-woman couples raising children.



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