Maggie Gallagher’s tautology

Over at Volokh, Maggie Gallagher makes the curious argument that society needs marriage because without marriage, people would be having children out of wedlock.

Marriage regulates people who aren’t married by the way, e.g. by making it clear when a baby is going to be born “out of wedlock” . . . . So marriage as a legal status is one of the ways we get young men and women to do any one of the hard things necessary to make sure they postpone babies until they are married. Marriage is a way of wrestling with the fact that, men and women attracted to the opposite sex can just make a baby, with no intention or forethought, under the grip of a pretty powerful passion to boot: One drink too many and 9 months later, boom there’s a baby.

In related news, law schools are important because without law schools, one couldn’t earn a law school diploma. Also, blogs are important because without them, the bloggernacle could not exist.

In the mean time, thank your stars that we’ve got marriage. If not for marriage, people everywhere would just be getting drunk and having lots of out-of-wedlock babies.

30 comments for “Maggie Gallagher’s tautology

  1. Kaimi continues his campaign of supporting the Church’s stance on gay marriage by attacking every fellow traveler with the Church that he can find. With friends like these, who needs enemies?

  2. Kaimi: Once again, I am affraid that you are wrong.

    It seems to me that she is making the rather pedestrian distinction between marriage as a legal status and marriage as a social institution. Her rather straightforward claim is apparently that marriage as a legal status serves the salutory purpose of encouraging young people to buy into marriage as a social institution. As an empirical matter her claim may be true or false, but it is not tautalogical.

  3. From the article: “Marriage is a universal human institution because every society needs to regulate the procreative consequences of male-female sexual attraction.”

    IANAL, but in the United States, don’t both the father and the mother have legal obligations to their offspring even without marriage? It seems to me that these would qualify as “procreative consequences.”

  4. Kaimi misidentifies a tautology. Nate misspells tautology. Which is worse? Sounds like a fascinating thread topic to me.

    Aaron B

  5. I think you’re missing the point by quibbling over formal semi-linguistic aspects rather than the core of her argument. The core seems to be that marriage is an important method of ritualizing and controlling sexual impulses that otherwise would be difficult to contain. That’s a fairly standard sociological argument and seems rather unobjectionable to me.

    To formalize the notion of integrated parental commitment as a prerequisite for childbearing seems to me to be the right answer for most people (certainly for me; probably for many of the people I interact with as a physician). Child support laws seem at best a weak echo of the marital commitment.

    I’m not saying it’s right for everyone, just that I perceive it to be right for our society, which is a different issue.

    And to quibble with the opening salvo (er… post), a more apt analogy might be lawyers are better (or worse, depending on your perspective and definition of harm) when they’ve passed the bar.

  6. PS, I see from Volokh that this is playing out in the same-sex marriage debate. It’s not clear to me that this particular issue is relevant to the debate about same-sex marriage.

  7. I’m sorry, Kaimi, this post is weak. You removed her quote from context and deliberately misread her argument.

  8. how can you look at yourself in the mirror in the morning…i bet you pay your kids to shave your face.

  9. just kidding kaimi

    Her tautology may be alittle bit shaky but no reasonable person can deny that traditional marriage is important to society. And those who argue against traditional marriage has lost his/her brain. It takes a man and a woman to bring a child into this world and it takes a man and a woman to raise that child. The parents owe it to that child have him/her come into the world in wedlock.

    People like you Kaimi, very politely put, use your reasoning and worldly philosophies to say you in your views on marriage but it’s ultimately for naught. All your knowledge avails you nothing. True wisdom is the correct application of knowledge.

  10. The problem I see isn’t that the point is a tautology, but that the point is wretchedly unclear. It seems that the only defense of marriage really offered there is that marriage forces people to jump through a hoop before having kids. I do agree with Kaimi that the defense of marriage relies on the undefended presumption that the distinctions that legal marriage creates are themselves useful. It’s not clear to me why it would be better for a kid to be raised in a house where the parents are legally married than to be raised in a house where the parents live together, get along, and never got the piece of paper. There are reasons for that, but none of them are explored in that piece. I find some of those reasons (such as a public manifestation of commitment) persuasive, but not good enough to defend the idea that the distinctions are essential to the family.

    I think that the real sensitivity here is due to the need to defend the idea that any move toward SSM will destroy the family. I see no reason that another’s iniquity, if one indeed sees it as such, will have some devastating effect on one’s own decisions. That’s probably not the topic of this thread, but I do think that this is why any argument that seems to defend traditional marriage needs to be swallowed.

  11. Also, one of the comments on the post in question does pretty well to note that marriage isn’t necessarily an answer as an institution for the whole problem. For people that aren’t ready for marriage for whatever reason, the insitution doesn’t do a lot to help them raise a good family or anything like it. Sexual behavior nowadays, in a lot of cases, seems better regulated by birth control than by the institution of marriage.

    Of course, we know that in those circumstances, one should simply abstain from sex. But, if you’re not going to abstain, I don’t see “the moral choice” as a bad marriage with kids. Honestly, I’d rather see meaningless sex without kids than an awful marriage with kids, even if the first is “fornication”. They’re both terrible ideas, but I do think that the first is less terrible.

    I also want to note that I sustain marriage as an institution. I just don’t think we should hold it up as a panacea.

  12. Hmmm….I was afraid that word would be tautology. Which I have heard but had to look up. Now I think I do tautology a lot, if I’m arguing. Doesn’t it mean redundant?

    But you wouldn’t say “her redundancy.” In this context, it seems to mean scholarship.

  13. Can someone translate comment #12 into a something of substance for me? Perhaps that’s asking for too much?

    Aaron B

  14. D-Train, I don’t understand why the choice is between meaningless sex without kids or a bad marriage with kids. Birth control has significant failure rates, and those failure rates translate into real live babies (or abortions). Fornication, even if birth control is used, still creates out-of-wedlock babies, just at a lower rate than woud happen otherwise.

  15. Dangit. I spent all last evening fishing around in LexisNexis for something useful to shore up my thinking regarding tomorrow’s property case: Baker v. State – Vt. 1999. The whole time through this chapter in property I’d been getting the feeling something was missing (kind of the ‘something is being multiplied by zero, so that 1=2, but I couldn’t put my finger on it), and the logic presented in the casebook goes tickety-tickety down the track so that ‘obviously’ the outcome in Baker is the best most rational decision. Shepardizing Baker, I discover the Indiana DOMA case (Morrison v. Sadler) decided earlier this year and Voila! The missing piece – nowhere in the property book was there any mention of marriage being primarily an institution for the protection of children! Morrison cites Gallagher for evidence of the normative function of marriage… and I discovered her 2002 Louisiana law review article, with some interesting analysis re the Baker case.

    Now I find y’all saying that her reasoning isn’t sound? Look, I’m new to this law game (obviously). Are decisions like Baker inevitable, or can a solid, non-tautological non-faith-based argument be made for the reservation of marriage as an opposite-sex institution? If not Gallagher’s argument of normative function, then what?

  16. The above is a serious plea for help understanding – though I have some hope most classmates will be mind-numbed by the torts midterm before even getting to Property, I would like to be prepared for class discussion of the case (I can hear the prof. now: “So, what do you think about this decision? Is it a good one?”). There are only 2 LDS students in all of the class of ’08.

  17. D-Train,

    Read the current Ensign about the differences between living together and being married and its impact on Children in the article about marriage. Look at the study results. Marriage as opposed to living together has a signifigant positive impact on Children as a whole across society.

    That fact that we even need to debate about this topic as LDS is a bit disturbing to me. But I love to debate…

  18. From the October Ensign. Enuff said…..

    Summary from Why Marriage Matters: Twenty-One Conclusions from the Social Sciences

    1. Marriage increases the likelihood that fathers have good relationships with their children.

    2. Cohabitation is not the functional equivalent of marriage.

    3. Growing up outside an intact marriage increases the likelihood that children will themselves divorce or become unwed parents.

    4. Marriage is a virtually universal human institution.


    5. Divorce and unmarried childbearing increase poverty for both children and mothers.

    6. Married couples seem to build more wealth than singles or cohabiting couples.

    7. Married men earn more money than do single men with similar education and job histories.

    8. Parental divorce (or failure to marry) appears to increase children’s risk of school failure.

    9. Parental divorce reduces the likelihood that children will graduate from college and achieve high-status jobs.

    Physical Health and Longevity

    10. Children who live with their own two married parents enjoy better physical health, on average, than do children in other family forms.

    11. Parental marriage is associated with a sharply lower risk of infant mortality.

    12. Marriage is associated with reduced rates of alcohol and substance abuse for both adults and teenage children.

    13. Married people, especially married men, have longer life expectancies than do otherwise similar singles.

    14. Marriage is associated with better health and lower rates of injury, illness, and disability for both men and women.

    Mental Health and Emotional Well-Being

    15. Children whose parents divorce have higher rates of psychological distress and mental illness.

    16. Divorce appears significantly to increase the risk of suicide among both adults and their adolescent children.

    17. Married mothers have lower rates of depression than do single or cohabiting mothers.

    Crime and Domestic Violence

    18. Boys raised in single-parent families are more likely to engage in delinquent and criminal behavior.

    19. Marriage appears to reduce the risk that adults will be either perpetrators or victims of crime.

    20. Married women appear to have a lower risk of experiencing domestic violence than do cohabiting or dating women.

    21. A child who is not living with his or her own two married parents is at greater risk of child abuse.

    Project cosponsored by Center of the American Experiment; the Coalition for Marriage, Family, and Couples Education; and the Institute for American Values. See online report in archives, Feb. 14, 2002, at http://www

  19. b.,

    These are interesting facts and undoubtedly true correlations. But many of them stand as correlations rather than having been proved as causal implications of marriage.

    That said, since all he is saying is that x is greater than y, but not saying how much greater, I would guess that most of them are probably correct as causal effects, even if the size of the effect is sometimes not large and often unknown.

    I’m all for marriage, but it irks me to see descriptives passed off as scientifically proven causal chains.

  20. Umm, if the best of married couples and living-together couples were equally committed, what exactly is keeping the living-together couples from getting that “piece of paper”?

    The difference isn’t so much love as commitment. The commitment involved in marriage allows women to feel safe in child bearing. Having children to care for makes a woman more vulnerable, since it’s difficult to survive in the world and take care of children if she can’t depend on her man to help, not just for now, but for as long as her children are dependent on her. If her man doesn’t want to marry, a woman would be very unwise to give up her career to put more energy into her home and family. The commitment (i.e. “piece of paper”) itself changes the nature of the relationship.

  21. re: 9. Answer: Just following Jesus, Josh. Just following Jesus.
    (answering generically for liberal mormons).

  22. Bbell,

    I agree with Frank’s comment that most of the benefits there are simply correlations. My own view is that economics has a lot more to do with nearly all of those things than marriage does, although stable families are certainly good. That point aside, these studies deal in aggregates and not in best cases. My point is more of a thought experiment than anything. If two couples are equally committed, equally loving, etc., would the legal distinctions of marriage make a dime’s worth of difference to how the kids come out? The clear answer, in my mind, is no.


    First point about birth control taken. Some kids will come from even the most “careful” fornication. That said, if you’re serious about birth control (a condom in my view is not serious), there won’t be many slip-ups. I agree that abstinence is the best policy, but my point above was simply that marriage is not a panacea and certainly not for the legalistic reasons that Maggie noted.

    What makes people “get the piece of paper” is enculturation. Pure and simple. We’ve been taught that commitment=marriage and that not commitment=not marriage. Your point only holds true in a culture where legal marriage is the cultural norm. Look at my response to Bbell and consider that point. Again, I favor marriage. My point is simply that Maggie’s claim isn’t good enough. Remember that, to buy her argument, you need to be buying the legal distinction and not any of the correlating factors that don’t NECESSARILY have anything to do with marriage. I concede that they do in our cultural context, but commitment, love, and all the rest are not essential to the legal concept of marriage. Both the institution of marriage and the effective raising of children are, in my opinion, built upon these things. Therefore, it’s not proper to conclude that marriage creates good kids.

  23. D-Train, what cultures, besides some segments of modern Western culture, have not made legal or religious marriage the cultural norm?

  24. About birth control in cohabitation versus marriage: Maggie Gallagher gives some stats about that:

    “2. Does sex makes babies?

    “An analysis of contraceptive failure rates in actual use concluded, “About three million pregnancies in the United States (48%) were unintended in 1994. Some 53 percent of these occurred among women who were using contraceptives.â€?

    “Contraceptive failure rates in the first year of use varied considerably among different demographic groups but were never trivial: About 47 percent of cohabiting adolescent women experience a contraceptive failure (aka unintdended pregnancy) in the first year of contraceptive use, compared to 8 percent of married women age 30 and older. [Sara’s note: this is probably not only because married women over 30 act more responsibly, but are also less fertile. The more fertile one is, the greater chance of “contraceptive failure.”]

    “Another analysis of the 1995 National Survey of Family Growth concluded: “The risk of failure during typical use of reversible contraceptives in the United States is not low—overall, 9 percent of women become pregnant within one year of starting use. The typical woman who uses reversible methods of contraception continuously from her 15th to her 45th birthday will experience 1.8 contraceptive failures.â€?

    “Nationally, three-fourths of births to unmarried couples were unintended by at least one of the parents. By their late thirties, 60 percent of American women have had at least one unintended pregnancy. Almost 4 in 10 women aged 40-44 have had at least one unplanned birth. (70.4 percent of births to married women were intended by both parents, compared to just 28 percent of births to unmarried mothers.)

    “Almost all children born to sexual unions of husband and wife begin life with both mother and father committed to raising their children together. Only a minority of children in other sexual unions do.”

    These stats make sense to me. Marriage involves commitment, which requires looking beyond the now, to the future. It would make sense that married people who are serious about not having children would have greater discipline to back that intention up with appropriate action. It would make sense that those who haven’t committed to marriage would be more likely to be living in the moment and less likely to foresee the consequences of a moment of passion, especially in a culture like ours that so throughly separates the ideas of sex and babies.

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