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 Sunday, October 23, 2005
A Question for People Who See No Mechanism/Maggie Gallagher
Do you have a theory or conception about how law and culture interact? This is a real question, not a rhetorical zinger. I'm suspecting, and I could quite well be wrong, that for many people who see no mechanism, "law" and "culture" are conceptually two quite different and separate things. For libertarians in particular, the bright line between "law" which is public and "culture" which is private is one of the pillars of their political theory, and often worldview. Political liberals by contrast understand quite well how to use the law to move the culture. (Bill Eskeridge is very eloquent on this point, if we bother to read him). Well and good. They know what they are doing and will tell you so, if you listen. But what is odd to me is the way that libertarians are now often endorsing these kind of power moves, on liberty grounds. Marriage (and family) is of course particularly challenging for libertarians (and classical liberals) because it is a pre-liberal institution. Which John Stuart Mill understood very well, but Reason no longer seems even to glimpse. posted by maggie at 11:16 AM | link 
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"I'm suspecting, and I could quite well be wrong, that for many people who see no mechanism, "law" and "culture" are conceptually two quite different and separate things."
I'm not sure what to make of this. I think law and culture are conceptually different, but at the same time they're not particularly separate and they're certainly not non-interacting in general. _Sometimes_, law profoundly affects culture. Sometimes it doesn't. One has to look at the details in the way that you're resolutely avoiding. In fact it's precisely because I don't see any mechanism between a law permitting SSM and attitudes to opposite-sex marriage, that I'm betting that the same law _will_ have a positive effect on attitudes to same-sex relationships.
Okay, let's try this with a real example.
In stages between 1994 and 2001 the United Kingdom moved from a system of giving all married couples a extra approx $3,000 tax-free allowance to a system of tax credits based on the number of dependent children and income level.
That was a change in the law which in my opinion severely changed the status of marriage in the UK. The numbers of first marriages in 2003 are 70% that of 1994, the numbers of out-of-wedlock births up by 30%.
That mechanism makes sense, the marginal cases that would previously decide to get married when facing the extra expense and less income of impending parenthood now see no immediate benefit in getting married. They tend to put marriage off until their finances are "more secure" which in some cases mean they never make it to the altar.
There's an example of a change in the law having a clear linkage to a change in society and that mechanism being borne out in the results. I see how that works, but still don't see your mechanism on same-sex marriage.
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