Another look at the institution of marriage Carrie Yodanis University of British Columbia

Today Examining parliamentary debates around same sex marriage and common law marriage. How and why did the State go with marriage, when it could have done something different and better?

New institutional perspective Marriages are not private but public. An institution, characterized by formal and informal rules and taken for granted assumptions. Couples turn to the institution when figuring out how to live day to day as married. (children, DOL, money, name taking, living arrangements…) The institution of marriage is still strong – still constraining.

Institutional isomorphism Couples may try to do something different. But are pulled back to the institution because of three processes (DiMaggio and Powell) 1. Coercive – pressure from other institutions, state 2. Normative – standardization in “knowledge” 3. Mimetic – reducing risk and uncertainty In the end, do what others are doing, even if another approach would have better outcomes.

Same sex marriage and common law marriage are not changes to the institution of marriage, but expansions of the institution. Research that same sex and common law relationships are following the rules and expectations of marriage. (children, money, DOL, monogamy, “marriageable”) Marriage narrows options to do things differently (Elizabeth, Baker, Green, Manning, Jamieson…)

Method Why did the State opt for marriage and not something different? Look at parliamentary debates in Canada around Federal Civil Marriage Act (2006) BC Family Law Act (2013)

Same sex marriage Three possibilities were considered: 1. Marriage for opposite sex and unions for same sex (not a change in the institution) 2. Marriage for all couples (not a change in the institution) 3. State out of the “marriage business” Marriage - religious State - distribute rights, benefits across a range of registered relationships (a change)

What happens in the debates >700 pages No one argues in support of something different (#3) Focus on those who argue for marriage for all (#2) Themes – Problems argued to be solved with marriage. 1. Guaranteeing equal rights 2. Addressing diversity 3. Managing resistance to change

1. Guaranteeing rights equal Argument – Things are not equal, marriage will make things equal. “The debate is before us today because gay and lesbian people…sought full equality in a key institution of this society, that institution being marriage.” “Today is National Day Against Homophobia…I therefore stand with pride as a member of a government responsible for removing…discrimination and hate against persons because of their sexual orientation.”

2. Addressing diversity Argument – There is more diversity, there needs to be more marriage. “We are different….We not only encourage but celebrate those differences. Today in this chamber we will celebrate the diversity of Canada once again. We will send a statement to the world that in Canada gays and lesbians will not be considered second class citizens. They will not be offered marriage lite; they will be offered full marriage.”

3. Managing resistance to change Argument – No one wants change, everyone loves marriage “There is nothing in the bill that undermines the institution of marriage….this bill [is] actually strengthening the institution of civil marriage.” “This has not been an attempt to change our society's understanding of marriage. These are couples who sought to be included in marriage as we understand it today, not change its values, ideals or traditions. They have willingly and enthusiastically sought out its responsibilities, obligations and duties.”

continued “This fight has gone on for over 30 years because gay and lesbian Canadians, like other Canadians, believe in the institution of marriage. Many gay and lesbian Canadians want to be married because they believe in the commitment and responsibilities that are implied in marriage.” “This change is before us now because couples want to be married and want to uphold the traditions of marriage. They strongly support the institution and champion it.”

Is marriage the best solution? With marriage, rights are not equal for all. diversity is limited. marriage, unchanged, excludes those who want something different.

Why marriage? Coercive processes – minimize opposition from religious institutions. “This option [getting out of marriage] was rejected by all major religions when their representatives appeared before the standing committee in None of them were prepared for religious marriage no longer to be legally binding.” “It is worth noting that this idea [getting out of marriage] was rejected by the major religions themselves when their representatives appeared before the Standing Committee on Justice and Human Rights in 2003.”

Normative processes Marriage “best” for relationships, children, society. “I believe that access to civil marriage for gay and lesbian couples will add to the stability of Canadian families and Canadian society.” “The parents of those children need to be allowed to marry so the children can have legally married parents.” “In gay and lesbian and heterosexual relationships, we all know that having children in a secure setting does many wonderful things for them.”

continued “…the ability to enter into and formalize one of the most meaningful relationships in life.” “They seek the stability it will allow for them, for their children and for their families.” “I heard from a young man from my riding named Andy who wrote: Please, help me to grow my future family. You are the person that will dictate whether or not this will happen.” “This is about strengthening people's commitment to one another.”

Mimentic processes Focus on the risk and uncertainty of doing something different “To get out of the business of marriage, Parliament would have to pass a bill declaring that no one is legally able to get married for civil purposes in Canada. Can you imagine such legislation? How would we explain to Canadians, to our own parents and grandparents, that they are no longer married in the eyes of the law?”

“If marriage no longer existed, there would no longer be any federal jurisdiction if such new civil unions break down, which could lead to a patchwork of disparate laws, varying with province of residence, and probably no recognition of these new civil unions outside Canada.” “Denying all opposite sex couples the opportunity to marry in order to refuse it to a few same sex couples would be an extreme way to resolve the problem of equality. That would be replacing one injustice with a greater one to opposite sex couples.” “Thus, it is not at all surprising that no other country in the world has taken a step down that path.”

State sees marriage as the solution to problems and sees only problems in something different. Goes with the established path, although something different may have had better outcomes.

Common law marriage - BC Family Law Act Made property rights the same as marriage, last remaining difference. “How a new law in B.C. turned thousands of live-in lovers into married couples.” “Common-law couples as good as married in B.C.”

Give equal rights to women: “…mainly women, who were in common-law relationships and had made the assumption that being in that common-law relationship for two years entitled them to a certain amount of property division, a very unhappy surprise met them when that relationship would break down.” Although marriage does not make all equal.

Address diversity: “As I said before, common-law couples are increasing. In 1991 it was 6.5 percent of couples who were common law, and as of 2006 it's up to 8.2 percent. The new property division rules will apply to unmarried couples who have been living together for two years. This means common-law couples, like married couples, will generally share any property that accrues to them in the course of their relationship.” Although, this limits diversity. (Elizabeth, Baker, Quebec)

Marriage is “best”: “So common-law relationships will now be treated the same as married families. I believe that that will not only be better for the individuals involved in that relationship directly but for their children as well. Again we see the best interests of the child coming forward, as we recognize that those who are the offspring of a common-law relationship are indeed entitled to the same kinds of expectations.”

Conclusion Turning to the institution of marriage is a limited solution. Still go in this direction. A process of institutional isomorphism seems to push policy toward the institution of marriage, although another direction may have better results. In the end, reinforces the role of the State as itself a coercive mechanism pushing couples to conform to the established rules and expectations of marriage.