2:13-cv-00217 #47

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

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

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

Plaintiffs,

vs.

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

Defendants.

APPENDIX IN SUPPORT OF STATE
DEFENDANTS MOTION FOR
SUMMARY JUDGMENT

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

J udge Robert J . Shelby

TABS 61b TO 65a
(1079 - 1141)
Case 2:13-cv-00217-RJS Document 47 Filed 10/11/13 Page 1 of 74
ii

APPENDIX
TABLE OF CONTENTS

Tab # Description Page

PART ONE
LEGAL MATERIALS

1. Utah Code 30-1-2

1
2. Utah Code 30-1-4.1

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

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

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

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

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

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

23
11. Chart: Pending cases on the marriage issue

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

16. [Reserved]

iii

PART TWO
MATERIALS ON ADJUDICATIVE FACTS

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

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

155
20. Campaign materials for Amendment 3

156
21. Campaign materials against Amendment 3

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

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

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

223
25. [Reserved]

26. [Reserved]

PART THREE
MATERIALS ON LEGISLATIVE FACTS

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

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

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

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

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

v

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

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

70. [Reserved]

PART FOUR
CANADIAN AND BRITISH LAW JOURNAL ARTICLES

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

Dated this 11
th
day of October, 2013.

J OHN E. SWALLOW
Utah Attorney General

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

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

vii

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

/s/ Philip S. Lott

The General Theory of Institutional Facts (Part I) 101
quired to do as a result of the assignment of status specified in the
Y term. Here are some examples:
John has one thousand dollars in the bank.
Tom is a citizen of the United States.
Clinton is President.
Sally is an attorney.
Sam owns a restaurant.
Each of these assigns rights and responsibilities. The first example
assigns to John the right to buy things or employ people with his
money and the duty to pay taxes on interest earned by the money.
The second example assigns to Tom the right, among many oth-
ers, to vote in elections and the obligation, among many others, of
getting a Social Security number. The third example assigns to
Clinton the right to veto legislation and the responsibility of deliv-
ering a State of the Union address to Congress, etc. Notice also that
institutional facts that assign rights and responsibilities can also be
destroyed or eliminated in various ways. Here are some examples:
Ann lost all her money.
Ivan's fortune in rubles has become worthless through infla-
tion.
Nixon resigned from office.
Coolidge's term expired.
Sam got divorced.
Sally's husband died.
3. Honor: Status for Its Own Sake
The point of honors (and dishonors) is to have statuses valued (or
disvalued) for their own sake, rather than just for their further
consequences. Examples are victory and defeat in games, and in-
stitutionally sanctioned forms of public honor and disgrace. Here
are some examples:
001079
102 The Construction ofSocial Reality
Mark won the Far West skiing championship.
McCarthy was censured by the U.S. Senate.
Bill was awarded a medal by the College de France.
In addition to these three categorical types of status-functions, we
need also to identify the conditional or procedural features of de-
on tic powers and honors.
4. Procedural Steps on the Way to Power
and Honor
Within institutions we can assign procedural stages toward the
achievement of either rights and responsibilities or honors and
disgraces. Here are some examples:
Bill voted for Reagan.
Clinton was nominated the Democratic candidate for President.
The objection was sustained by the judge.
In the case of voting, though one has a right to vote, the actual
casting of the vote does not create any new rights and responsibil-
ities by itself. Only the accumulated set of votes establishes a win-
ner with the requisite majority and therefore with new rights and
responsibilities. Getting six votes is like getting six points in a foot-
ball game, but unlike getting six dollars. Six votes and six points
are procedural steps on the way to winning, but you can't do any-
thing else with them. With six dollars you can actually buy some-
thing. Again, when a candidate is nominated for the Presidency,
he or she does acquire new rights and responsibilities as a candi-
date, but the whole point of the candidacy is supposed to be that it
is a stage on the way to becoming President.
One and the same institutional fact can involve all four of the pre-
ceding features. Thus becoming a Democratic nominee gives the
person so nominated certain rights and responsibilities, it is a
001080
The General Theory of Institutional Facts (Part 1) 103
great honor, and it is a procedural stage on the road to becoming
President, and the whole thing could not exist without words OI'
other sorts of symbols, as I explained in Chapter 3.
I want to illustrate these points by showing how they apply to
the case of games. Games are especially useful objects of study
for this analysis because they provide a microcosm of larger so-
cial phenomena. Famously, Wittgenstein a1gued that there is no
essence marked by the word "game." But all the same, there are
certain common features possessed by paradigmatic games such
as those in competitive sports-baseball, football, tennis, etc. In
each case the game consists of a series of attempts to overcome
certain obstacles that have been created for the purpose of trying
to overcome them. Each side in the game tries to overcome the
obstacles and prevent the other side from overcoming them. The
rules of the game specify what the obstacles are and what can be
done to overcome them, as well as what must and what must not
be done. Thus in baseball the rules allow the batter to swing at the
ball, but they do not require him to swing. However, after he gets
three strikes he must leave the batter's box and let someone else
bat. Most of the rules of the game have to do with rights and
obligations (feature 2) but the overall aim is winning (feature 3)
and many of the intervening steps are procedural (feature 4). For
example, several of the rights and obligations are conditional.
Thus if a batter has one strike or three balls, that does not so far
give him any further rights or obligations, but it establishes condi-
tional rights and obligations: two more strikes and he is out, one
more ball and he is walked to first base. Such conditional rights
and obligations are typical of institutional structures. For exam-
ple, in American universities, after so many years of service you
are entitled to be considered for a tenure position.
'This answer to Wittgenstein on games was not invented by me. I do not know
who first thought of it or where I first heard it, but it has become part of the oral
tradition.
001081
104 Tile Construction ofSocial Reality
1'he IJogical Structure of Conventional Power
To further explore the issues raised in the tentative taxonomy of
the previous section, I now want to examine the intentional struc-
ture of institutional facts. My aim is to try to state the general form
of the content of the Y status-function when we go from X to Y in
the formula "X counts as Yin C." Because theY content is imposed
on the X element by collective acceptance, there must be some
content to these collective acceptances (recognitions, beliefs, etc.);
and I am suggesting that for a large class of cases the content
involves some conventional power mode in which the subject is
related to some type of action or course of actions. Furthermore,
because there are strict limits on what sorts of powers can be cre-
ated by collective acceptance, we ought to be able to state the gen-
eral forms of the content of the Y term in a very small number of
formulae. Because power is always the power to do something or
constrain someone else from doing something, the propositional
content of power status-functions is always in part that
(S does A)
where "S" is to be replaced by an expression referring either to a
single individual or a group, and ''/\' by the name of an act, action,
or activity, including negatives such as refraining or abstaining.
Following this line of thought, we see that the primitive struc-
ture of the collective intentionality imposed on the X term, where
X counts as Yin C, is
We accept (S has power (S does A)).
Formally speaking, one can perform a number of operations on
this basic structure, and these operations exemplify several dis-
tinctions I have made. As mentioned earlier, there is a distinction
between positive and negative conventional powers, the distinc-
tion between enablements and requirements. There is also a dis-
tinction between the creation and destruction of conventional
powers. Examples of this are the distinctions between marriage
001082
The General Theory of Institutional Facts (Part Il) 117
71w Continued Exislence of Institutional Facls
The secret of understanding the continued existence of institu-
tional facts is simply that the individuals directly involved and a
sufficient number of members of the relevant community must
continue to recognize and accept the existence of such facts. Be-
cause the status is constituted by its collective acceptance, and be-
cause the function, in order to be performed, requires the status,
it is essential to the functioning that there be continued accep-
tance of the status. The moment, for example, that all or most of
tl1e members of a society refuse to acknowledge property rights,
as in a revolution or other upheaval, property rights cease to exist
in that society.
One of the most fascinating-and terrifying-features of the
era in which I write this is tl1e steady erosion of acceptance of
large institutional structures around the world. The breakdown
of national identification in favor of ethnic tribalism occurs in
places as various as Bosnia, Canada, tl1e former Czechoslovakia,
Turkey, and many American universities. In several African coun-
tries there is no way to tell where the army ends and tl1e armed
bands begin or who is a "military leader" and who a "warlord." In
Russia the instability is such tl1at anything one might say with con-
fidence now-about tl1e relations among the state, the military,
the secret police, and organized crime, for example-is likely to
be out of date by the time you read this. The temptation in all these
cases is to think that in the end it all depends on who has the most
armed might, that brute facts will always prevail over institutional
facts. But that is not really true. The guns are ineffectual except to
those who are prepared to use them in cooperation with others
and in structures, however informal, with recognized lines of au-
thority and command. And all of that requires collective inten-
tionality and institutional facts.
One of the great illusions of the era is that "Power grows out of
the barrel of a gun." In fact power grows out of organizations, i.e.,
systematic arrangements of status-functions. And in such organi-
001083
zations the unfortunate person with a gun is likely to be among
the least powerful and the most exposed to danger. The real
power resides with the person who sits at a desk and makes
noises through his or her mouth and marks on paper. Such peo-
ple typically have no weapons other than, at most, a ceremonial
pistol and a sword for dress occasions.
Because institutions survive on acceptance, in many cases an
elaborate apparatus of prestige and honor is invoked to secure
recognition and maintain acceptance. Charles de Gaulle's behav-
ior regarding France, both during and after World War II, was a
continuous illustration of these points. By constantly insisting on
the honor and prestige of France, by pretending that an indepen-
dent French government continued to exist during the war, and
by constantly insisting that other national leaders acknowledge
him as an equal, de Gaulle helped to re-create and maintain the
French nation-state. And the point is completely general. Where
the institution demands more of its participants than it can extract
by force, where consent is essential, a great deal of pomp, cere-
mony, and razzmatazz is used in such a way as to suggest that
something more is going on than simply acceptance of the for-
mula X counts as Y in C. Armies, courtrooms, and to a lesser ex-
tent universities employ ceremonies, insignia, robes, honors,
ranks, and even music to encourage continued acceptance of the
structure. Jails find these devices less necessary because they
have brute force.
One way to create institutional facts in situations where the in-
stitution does not exist is simply to act as if it did exist. The classic
case is the Declaration of Independence in 1776. There was no in-
stitutional structure of the form X counts as Y in C, whereby a
group of the King's subjects in a British Crown Colony could cre-
ate their independence by a performative speech act. But the
Founding Fathers acted as if their meeting in Philadelphia was a
context C such that by performing a certain declarative speech act
X they created an institutional fact of independence Y. They got
away with this, that is, they created and sustained acceptance of
001084
The General Theory of Institutional Facts (Part Il) 119
the institutional fact because of local community support and mil-
itary force, culminating in Cornwallis's surrender at Yorktown.
The formula "X counts as Y" applies to both the creation and the
continued existence ofthe phenomenon, because the constitutive
rule is a device for creating the facts, and in generaC the existence
of the fact is constituted by its having been created and not yet de-
stroyed. Thus going through the ceremony counts as getting mar-
ried, and getting married and not subsequently dying, getting
divorced, or having the marriage annulled counts as being mar-
ried. Saying "I declare the parliament open" counts as opening the
parliament, and for the parliament to have been opened and not
subsequently closed counts as its being in session.
Status Indicators
Since institutional facts exist only by human agreement, in many
cases they require official representations, what I earlier called
status indicators, because the existence of institutional facts can-
not in general be read off from brute physical facts of the situa-
tion. War is an exception for the obvious reason that the brute
facts-people killing one another on a large scale, for example--
usually make official indicators unnecessary. Money does notre-
quire additional documentation, because it is itself a form of
documentation. It says on the bill that it is "One Dollar" or "Ten
Pounds," etc., and all these terms are defined as money. Even in
preliterate societies coins are easily recognizable as such, and
thus such features as shape and size mark the conventional fact
that the object is a coin. Stocks and bonds, as well as credit cards
and checks, also speak for themselves. Likewise, speech acts are
self-identifYing for those who know the language.
In complex societies common status indicators are passports
and driver's licenses. They indicate the status of the bearer as
someone who is legally entitled to travel to and from foreign coun-
tries or is legally qualified to drive. The most common device for
status indication is the written signature. Signing a document may
001085
create a new institutional fact, but the continued existence of the
written signature indicates, other things being equal, the contin-
ued existence of the fact. The signature on the document persists
in a way that the live pel'formative does not and thus is able to play
its role as a status indicator. The function of status indicators is al-
ways epistemic. We need to distinguish the role of language in
constituting the institutional fact, a role I described in Chapter 3,
from the role of language in identifying that which has already
been constituted, even though the same word OJ' symbol may
serve both roles. I am describing this latter role when I speak of
status indicators.
Some status indicators need not be explicitly linguistic, that is,
they need not be actual words. The most obvious examples are
wedding rings and uniforms. But both are nonetheless symbolic
in a way that is just like language, and wearing a wedding ring or
a uniform is performing a type of speech act. Such indicators
serve not only epistemic functions but other functions as well-
expressive, ceremonial, aesthetic, and most importantly, constitu-
tive. Of course, the uniform does not constitute being a
policeman, but it does symbolize a status-function; and that sym-
bolization, in some form or other, is essential to the existence of
the status function. Throughout this book I have tried to empha-
size that in institutional facts language is not only descriptive but
constitutive of reality.
The Hierarchy of li'acts: From Brute
to Institutional
There is an implicit hierarchical taxonomy in the account I have
been giving, and I would now like to try to make it explicit. The
world of Supreme Court decisions and of the collapse of commu-
nism is the same world as the world of the formation of planets
and of the collapse of the wave function in quantum mechanics.
One of the aims of this book is to show how that can be so, how
the world of institutions is part of the "physical" world. A hierar-
001086
Conclusion
One way to get at the underlying thrust of what I have been argu-
ing in this book is this: On my view the traditional opposition that
we tend to make between biology and culture is as misguided as
the traditional opposition between body and mind. Just as mental
states are higher-level features of our nervous system, and conse-
quently there is no opposition between the mental and the physi-
cal, the mental is simply a set of physical features ofthe brain at a
higher level of description than that of neurons; so there is no op-
position between culture and biology; culture is the form that bi-
ology takes. There could not be an opposition between culture
and biology, because if there were, biology would always win. Dif-
ferent cultures are different forms that an underlying biological
substructure can be manifested in. But if that is right, then there
ought to be a more or less continuous story that goes from an on-
tology of biology to an ontology that includes cultural and institu-
tional forms; there should not be any radical break. The thesis I
have been arguing is that there is no radical break. The connect-
227
001087
228 Conclusion
ing terms between biology and culture are, not surprisingly, con-
sciousness and intentionality. What is special about culture is the
manifestation of collective intentionality and, in particular, the
collective assignment of functions to phenomena where the func-
tion cannot be performed solely in virtue ofthe sheer physical fea-
tures of the phenomena. From dollar bills to cathedrals, and from
football games to nation-states, we are constantly encountering
new social facts where the facts exceed the physical features of the
underlying physical reality.
However, though there is a continuum from the chemistry of
neurotransmitters such as seretonin and norepinephrine to the
content of such mental states as believing that Proust is a better
novelist than Balzac, mental states are distinguished from other
physical phenomena in that they are either conscious or poten-
tially so. Where there is no accessibility to consciousness, at least
in principle, there are no mental states. Similarly, though there is
a continuity in collective behavior between lions attacking a hyena
and the Supreme Court making a constitutional decision, institu-
tional structures have a special feature, namely, symbolism. The
biological capacity to make something symbolize-or mean, or
express-something beyond itself is the basic capacity that under-
lies not only language but all other forms of institutional reality as
well. Language is itself an institutional structure because it in-

valves the imposition of a special kind of function on brute physi-
cal entities that have no natural relation to that function. Certain
sorts of sounds or marks count as words and sentences, and cer-
tain sorts of utterances count as speech acts. The agentive func-
tion is that of representing, in one or other of the possible speech
act modes, objects and states of affairs in the world. Agents who
can do this collectively have the fundamental precondition of all
other institutional structures: Money, property, marriage, govern-
ment, and universities all exist by forms of human agreement that
essentially involve the capacity to symbolize.
'
001088

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
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
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 opmuon 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
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 cant 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 communitys 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 marriagewhich 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 familys 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 states 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 states 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 states 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 childrens 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
Benthams 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 Benthams 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 lhomophobie et lheterosexisme. 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 reports 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 bachelors 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 communitiessuch as crime,
domestic violence, substance abuse, and teen pregnancythe 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.
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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 fathers low-earnings or the
mother and childs 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
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approach and concluded that marriage would reduce poverty among single moth-
ers substantially, by about 65 percent.
18
Both Lermans and Thomas and Sawhills estimates assume that getting married has
no effect on mens 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 mens 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 OBrien 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 literatureinvestigations of individual families using vari-
ables, such as parent-child relationships or mothers education levelsfinds 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
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