The Future of Public Laws for Private Marriages

Despite sweeping reformulations in intimate relationships in the past quarter century, one can doubt whether most Americans' "common sense" about marriage has vastly changed. . . . The resiliency of belief in legal marriage as the destination of a love match and as a safe haven begs for explanation, even when hyperbole about love seems to demand none. ²

This passage from Nancy Cott's comprehensive story of marriage in America suggests that marriage is just barely a legal arrangement. Most married people are unaware of the possibility that law might reach into their ongoing marriage. Rather, marriage is experienced as a social institution of norms and customs. The reason sweeping reformulations in domestic life and domestic relations laws (as well as the fact that a significant minority of marriages end in "easy" no fault divorces) have not altered the "common sense" about marriage is because the realm of law is different from the institution of marriage.

Laws and Norms

Our private lives are played according to different rules than are our public lives at work, at school, at worship, or in politics. We reject inequitable treatment of men and women in public, yet most people, including wives, accept an "unequal" division of gender roles within the home. "Traditional" or "gendered" marriages persist because they are considered fair. I am not suggesting that most Americans oppose gender equality, only that most Americans understand gender equality in public as fundamentally different from the elemental aspects of gender that inhere in marriage and sexual relationships. Private marriages are organized, in large part, by custom and convention (e.g., religious beliefs, patterns transmitted across generations). They are governed by social norms. The purpose of this essay is to highlight the difference between norms and laws as the basis for marriage. In so doing, I will argue that domestic relations laws designed to foster equal marriages are inconsistent with common sense ideas about fairness.

Marriage is best understood as an institution, or system of norms rather than laws. All societies include certain elemental institutions (at a minimum, an economy, some system of education, a state, religion(s), and family). Each institution consists of integrated clusters of positions (or roles) that are well known for their responsibilities and perquisites. So just as any institution is a cluster of roles, any role is a cluster of norms. Thus norms of family life, for example, influence how I treat my brother's wife as well as how I treat his daughter. They also influence how my wife and I interact.

Unlike laws, social norms are soft boundaries around some realm of behavior. They are soft because they are enforced informally. Still, like laws, they are sometimes violated. However, though norms are sometimes violated by some people, they are never violated by the majority, which is to say, a norm is, by definition, generally viewed as legitimate by most people. That is why it is a norm rather than a law, custom, or habit.

This simple observation highlights a critical distinction between social norms and laws. While norms are, by definition, viewed as legitimate, laws are not always appreciated that way, despite their promulgation through democratic processes. Whenever a law is viewed as illegitimate, it is unlikely to influence social norms, at least in the short term. A norm is more than average behavior. The fact that most married people are sexually faithful most of the time is not what makes fidelity a norm. Fidelity is a norm because it is widely regarded as right. A norm is an "ought" or "ought not" that is widely shared and deemed to be legitimate. A norm is an average bolstered by a sense that this is how things ought to be. The key to understanding the relationship between laws and norms, therefore, is the legitimacy of law. Laws may influence or bolster social norms, but they do so mainly when they are viewed as legitimate.

Any legal project that attempted to "equalize" private...