MercatorNet: You argue that marriage is an institution with its own norms which exists in many different legal systems. So what are the basic characteristics of marriage?
Douglas Allen: I think is important to think of marriage as an "institution" rather than some other metaphor. Perhaps the worst way to think about marriage is "as a contract". A contract is a legally enforced agreement between two people, and although marriage contains this element, there is much more to marriage than this. An institution, is a collection of expectations, norms, and humanly devised constraints that work together towards some social objective. Across cultures and time there are a number of basic institutional characteristics of marriage that are relatively constant.
These characteristics would include the following. First, there is a strong contractual element to marriage. Marriage almost always requires some degree of consent between the husband and wife. Even in arranged marriages the individuals are almost always involved in some extent and often have veto powers. In modern marriages, the couple determine a number of the details of marriage. For example, how things are to be shared, produced, and monitored are matters left up to the couple.
Second, marriage always has involved third parties. Families are involved in marriages, but so are extended family members, non-blood relations, and third parties like the church, state, or tribe. These third parties often regulate the terms of entry into and exit from marriage. Here is where marriage starts to move beyond mere contract. Whereas contracts can be customized between two people, marriage regulations are common across couples. The meaning of marriage for one couple in British Columbia, is the same for another couple. Every couple within a jurisdiction faces the same entry and exit conditions.
Among these third party regulations we see many similarities across time and space. Marriage has always been a life-long arrangement (although recently in Mexico City some politician suggested making marriage a matter of a renewable two-year contract). Marriage has, until very recently, been heterosexual. For the most part marriage has centered on monogamous relations, although there are many instances of polygamous ones. Marriage is always a sharing arrangement. Rather than one spouse "hiring" the other, couples form unions and share in the good and bad times.
Finally, marriage is the institution that all societies have used as their first choice in raising children.
These similarities do not mean that one cannot find exceptions. In the history of mankind all sorts of institutions have been used to regulate sex. What we know is that these isolated cases were unable to grow in numbers and wealth. As a result they either died out, or quickly converted when contact was made with other civilizations. In addition, often events in life (such as death), have meant that second-best arrangements have had to be made to accommodate children. Hence, most societies have had to develop welfare systems around marriage that include multiple marriages, adoption, and the like.
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MercatorNet: Many people say that adverse consequences of legalising same-sex marriage are just social science scaremongering. But you argue that we should learn from the legalisation of no-fault divorce.
Douglas Allen: Yes. This gets back to my fundamental point: marriage is an institution designed with a purpose. If you mess with it, there will be consequences.
During the no fault divorce debate the same arguments were made that are heard today: "marriage is a formalization of love". Hence, if a couple no longer loves each other, why shouldn't they be allowed to divorce? The view was that there exists an exogenous number of dead and living marriages, and so the law was only setting free those trapped in a dead marriage.
Well, guess what? Marriage is designed to mitigate bad behavior, and by allowing individuals to unilaterally abandon their marital responsibilities there was a lot of bad behavior.
In the 1960s debate, no one thought the divorce rate would change, but it changed enormously and led to a divorce culture. No one thought there would be changes to labor force participation, hours worked, violence against spouses, suicide rates for children, and on and on. And yet, changes to these thing are linked to no-fault divorce.
The no-fault divorce experiment proves that marriage is an institution designed with a purpose, and therefore, further changes to accommodate same sex couples will also have consequences. As in the 1960s we're probably unable to predict what they all will be, but they will come nonetheless.
One of the overriding purposes of marriage has been to encourage fertility. Every couple wants to have one baby, but not enough want to have enough to replace or grow a population. This has been a social problem for 3,000 years (ask the Spartans). Over the past 100 years we've been able to dodge this bullet through high levels of wealth and immigration, but as we continue to erode the value of marriage, reduced fertility is likely a long-term consequence.
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