What is culture? Sometimes we use that word as the opposite of economics or law. Here I mean something very specific. Culture, as James Davison Hunter put it, is the power to name reality.
In this sense, law is not the opposite of culture, but a particularly powerful player. What the law names as reality, is (in America at least) probably the single most powerful player in our shared reality.
If you doubt that, think about divorce for a minute.
When no-fault divorce was passed, its proponents promised us that the change in the law would not affect marriage generally — it would only affect bad marriages, which should be dissolved. And in recent times, gay-marriage advocates I’ve debated have asserted that my views about marriage, after gay marriage, will have a similar status in law and culture, to my views about divorce. (I’m Catholic). Now I think they are wrong about this analogy — because we didn’t pass no-fault divorce laws out of a concern for equality or using equal-protection arguments. And equality norms (at the heart of the SSM case) expand the power of government to suppress (though not criminalize) dissent in our system, which is why it is so striking to me to see so many libertarians, like Deroy, clambering aboard that train, as if SSM represents an expansion of liberty . . . but that’s a digression.
When the law actually endorsed unilateral divorce, it changed the terms of everybody’s marriage. Now the happily, romantically married may not notice this in practice. But not only the bad marriages, but the so-so marriages, the good-enough marriages were and are profoundly affected by the law — not only directly, but by the cultural changes in the public understanding of marriage that the law only partly caused and but certainly reinforced and institutionalized.
If you have a right to divorce at will, what you lose is the right to make an enduring marriage — at least if you live in consensual (shared) reality.
Are you with me so far?
No-fault divorce represented not only a change in incentives for individual married couples but a broad cultural change — and/or marker for change — in the public understanding of marriage.