Two Treatments of Pluralism: Canada and the United States

Abstract

Canada and the United States, while similar in many ways, diverge substantially when it comes to family law. Canada’s marriage and divorce law is national, while the U.S. family law is largely governed by state law. This makes rules in the United States heterogeneous compared to those in Canada, and thus easier to tailor to the preferences of people living in the various states. A more important difference between the two treatments is that Canada supports a diversity of relationships positively (through providing for financial assistance and legal recognition) and through its public policy. The United States, while tolerating most family forms, formally recognizes only marriage and adoption, leaving adults in heterodox relationships to private support or contract. In both these North American jurisdictions, people live in a variety of family forms. While most heterosexual couples marry, some do not. This paper considers the effects of the differing policies on young people in two minority groups, the Québécois in Canada and African Americans in the United States, both of which groups de facto eschew formal marriage. Both are relatively impoverished groups, and both historically have suffered discrimination and been underrepresented among the national power elites. Yet despite these surface differences, the two groups diverge in terms of the mental health of their youth, and quite notably in terms of the rate at which they commit suicide. This chapter will attempt to portray these similarities and differences as well as propose several reasons for the differing results. Most of my interactions with Jüergen Backhaus over the past 20 years stemmed from his editorship of the European Journal of Law and Economics. Some of these involved articles that were for some reason too controversial to find ready acceptance elsewhere.

Fritz Duda Family Professor Of Law, University of Notre Dame. Thanks are due to Hazel Thompson-Ahye and the Caribbean Regional Meeting of the International Society for Family Law as well as attendees of my keynote address at the Canadian Law and Economics Association meeting in 2010.

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Most of my interactions with Jüergen Backhaus over the past 20 years stemmed from his editorship of the European Journal of Law and Economics. Some of these involved articles that were for some reason too controversial to find ready acceptance elsewhere. For example, one, coauthored with economist Michael Alexeev was entitled Fraud in Courtship: Annulment and Divorce,¹ and maintained that there is an optimal amount of premarital fraud. Even more provocative, perhaps, was a sociobiology piece with Douglas Allen, Sex, Property Rights and Divorce,² providing a theoretical and empirical explanation for the “7-year itch.” Perhaps after taking these chances on me he felt he could ask me to write for him as well as to referee for the journal, as I do quite regularly. At Jüergen’s invitation, I therefore responded to a piece bemoaning elimination of a law requiring equality of housework caused by the reunification of Germany.³ Finally, I had the pleasure of his soliciting a chapter from me on family law for the Elgar Companion.⁴ So it is somewhat in the spirit of this rather inventive exchange that I submit this contribution to the collection celebrating him.

Canada and the United States, while similar in many ways, diverge substantially when it comes to family law. Canada’s marriage and divorce law is national, while the U.S. family law is largely governed by state law. This makes rules in the United States heterogeneous compared to those in Canada, and thus easier to tailor to the preferences of people living in the various states.

More important for this paper, Canada’s approach to pluralism, dealing with nontraditional family forms, differs as well. In C-23, the Modernization of Benefits Act, Canada gave unmarried couples (and their children) the same federal benefits and obligations as to married couples.⁵ Canada now recognizes same-sex marriages as well as granting many benefits to heterosexual couples who do not marry.⁶ These legal changes were also reflected in Canadian writing on the family. In 2001, the Canadian Law Commission after much study released a report called Beyond Conjugality, which included the words, “The state cannot create healthy relationships; it can only seek to foster the conditions in which close personal relationships that are reasonably equal, mutually committed, respectful and safe can flourish.”⁷

In contrast, states in the United States consistently maintain differences between married and unmarried couples,⁸ and the federal government has enacted legislation favoring marriage and confining it to a man and a woman (while allowing states to do so).⁹ The legislation, as in Canada, is reflected in both academic studies and political documents. For example, in the same year as Beyond Conjugality, University of Chicago demographer Linda Waite published her much discussed The Case for Marriage: Why Married People are Happier, Healthier, and Better Off Financially.¹⁰ President Obama, while taking a progressive stance on national health care, has also touted marriage in his Audacity of Hope ¹¹ (2006).

Finally, preliminary research shows that marriage education workshops can make a real difference in helping married couples stay together and in encouraging unmarried couples who are living together to form a more lasting bond. Expanding access to such services to low-income couples, perhaps in concert with job training and placement, medical coverage, and other services already available, should be something everybody can agree on ….¹²

In summary, the difference between the two treatments is that Canada supports a diversity of relationships positively (through providing for financial assistance and legal recognition) and through its public policy. The United States, while tolerating most family forms,¹³ formally recognizes only marriage and adoption, leaving adults in heterodox relationships to private support or contract.

In both these North American jurisdictions, people live in a variety of family forms. While most heterosexual couples marry, some do not. This paper considers the effects of the differing policies on young people in two minority groups, the Québécois in Canada and African-Americans in the United States, both of which groups de facto eschew formal marriage.¹⁴ Both are relatively impoverished groups, and both historically have suffered discrimination and been underrepresented among the power elites. Yet despite these surface differences, the two groups diverge in terms of the mental health of their youth, and quite notably in terms of the rate at which they commit suicide. This paper will attempt to portray these similarities and differences as well as propose several reasons for the differing results.

1 A Portrait of the Family in Contemporary Quebec and for African-Americans

While a minority of Canadians¹⁵ are identified as Québécois,¹⁶ Quebec contains a disproportionate percentage of the cohabiting couples and single-parent families in Canada.¹⁷ In 2009, nearly half the couples in the province were unmarried,¹⁸ and more than half the births in Quebec were to unmarried mothers.¹⁹ About 31.5 % of households live in “common law” unions compared to 15.7 % for all of Canada counting Quebec, or 9.2 % without it.²⁰ In Quebec, as in other provinces and in the United States, the United States, cohabiting relationships are only half as stable as are marital ones (Table 1).²¹

Table 1 Probability for Women to Separate, by Type of First Union, Quebec 2006

Nor has this difference in instability changed over the years, even though the percentage of cohabiting couples in the province is allegedly the highest in the world.²² Quebec also boasts a higher divorce rate than the other provinces in Canada, 49.9 % by age 50 (Fig. 1 and Table 2).²³

Fig. 1

Union dissolution in Quebec, by union type (time-varying)

Table 2 Cumulative percentages of separation 12 years after the beginning of the union, according to union type and cohort, Quebec and other Canadian provinces

As previously indicated, the story for African-Americans looks much the same. In 2010, 25 % of African-American, or Black, women over 35 had never married (compared to 7 % for white women),²⁴ and in 2008, 71.8 % of all births in this group occurred outside marriage.²⁵ While the single-mother-headed family has occurred for some time among the African-American population, as in Quebec, it is far from stable. Even at the end of 3 years, couples remain together only slightly more than half the time, while at the end of 5 years, the number of intact relationships has declined to only 26 % (Figs. 2 and 3).²⁶

Fig. 2

Never-married among Blacks, United States

Fig. 3

Probability of separation: US by race [Vital and Health Statistics (U.S.), Marriage and Divorce in the United States: A Statistical Portrait Based on Cycle 6 (2002) of the National Survey of Family Growth, Series 23, No. 28, February, 2010, Center for Disease Control, Atlanta, 2010, page 9 & Fig. 15]

While short-lived relationships are painful for those involved when they end, what is more important is that children in them will experience disruption in their living patterns. This holds true both in “common law” families in Quebec and among cohabiting African-Americans in the United States (Figs. 4 and 5).²⁷

Fig. 4

Cumulative probability of a child’s living through a disrupted union

Fig. 5

Likelihood of disruption of various forms of union by child’s age

How old is the child likely to be when the parents separate?

Again, among African-Americans, the result is similar. According to a study based on the National Survey of Family Growth, three-fifths of Black children will no longer be living with both parents at age 5.²⁸ This is more than twice as high a probability of disruption in their living situation as for those born to married parents, even controlling for other factors.²⁹

1.1 Adolescent Outcomes in African-American and Québécois Families

In my prior work, I have noted that despite material disadvantages and lower educational attainment, Black adolescents do remarkably well from a psychological standpoint.³⁰ They display no more depression or anxiety, less substance abuse, and no more delinquency than other Americans once income is taken into account.³¹ Furthermore, as we will see shortly, they remain optimistic about the future compared to their peers.

On the other hand, French-speaking young people in Quebec have the highest provincial suicide rate in Canada,³² and one of the highest in the Western world. They are more depressed,³³ and less optimistic than other adolescents, as I will discuss below. They abuse alcohol at a higher rate than do most Canadian adolescents.³⁴ Figures 6 and 7 show the suicide rate, one in terms of its change over time, one in comparison to the rest of Canada. Figure 6 shows that the rate has decreased from a peak in about 1995 of 34.4/100,000 for males 15–24 (though it is higher than that today), but remains comparatively higher than other provinces.³⁵ The second shows a comparison for all ages over years 2005–2011.³⁶

Fig. 6

Taux de mortalité par suicide selon les groupes d’âge, hommes, ensemble du Québec, 1981 à 2007

Fig. 7

Suicide Races for Youth, Canada and Quebec

1.2 Reasons for the Difference

A Montreal psychiatrist,³⁷ citing the Quiet Revolution, when the Church became uninvolved with governmental functions, as well as family breakdown (increased failure to marry), argues that the social upheaval in Québec since the 1960s has affected troubled teenagers by giving them nothing stable to fall back on. Further, he stated, “We are a society that values the quality of life rather than its quantity… Life is [seen by some teenagers as] not worth living if you cannot guarantee its quality.”

This hypothesis is consistent with my own. One of the central features of my recent book, Family, Law, and Community,³⁸ is that typically families need community support to flourish. This support may come from formal legal status, such as marriage or adoption. It may also stem from mediating institutions, such as religious organizations, parochial schools,³⁹ or perhaps military service.

What I have reported above for suicide among youths also holds true for their depression⁴⁰ and alcohol use.

The tables that follow consider smoking, comparing Quebecois, Canadian, and other provincial populations,⁴¹ followed by similar data involving the United States as a whole compared to its African-Americans (Fig. 8 and Table 3).

Fig. 8

U.S. Smoking Among High School Students [Chart produced from Excel version of Table 61, Use of selected substances in the past 30 days among high school seniors, 10th graders, and 8th graders, by sex and race: United States, selected years 1980–2012. National Institutes of Health, National Institute on Drug Abuse, Monitoring the Future Study, annual surveys. http://www.cdc.gov/nchs/hus/contents2013.htm#061]

Table 3 Smoking in Canada and by Province, 1999

There are similar differences in alcohol use and in binge drinking (Figs. 9 and 10).

Fig. 9

Alcohol use in US high schools

Fig. 10

Binge drinking in US high schools

1.3 Optimism Among African-Americans and the Québécois, a Provisional Study

Another way of looking at the difference is to consider what might be opposite (positive) outcomes related to optimism. For this paper, I have compared data from two comparable datasets, the National Longitudinal Survey of Youth (US), 1997 and 2002.⁴² Data for Canada comes from the similarly titled National Longitudinal Survey of Children and Youth, 2002 wave.⁴³ Here are the regression coefficients for optimism among the Québécois and African-Americans, holding constant income and the nurturing qualities of the mother. All children studied live with their mothers. Again, the Québécois are those who live in the province, speak French, and are white. The dependent variable in both the papers is some version of optimistic (Tables 4 and 5).⁴⁴

Table 4 Optimism among Québécois adolescents

Table 5 Optimism among African-American adolescents

African-American adults continue to be relatively more optimistic as well.⁴⁵ One study attributes the optimism, as well as the lower levels of suicide, to values consistent with Black culture: to report that God is responsible for life and to hold communitarian rather than individualistic values.⁴⁶

1.3.1 The Common Problem and the Two Approaches: A reprise

Both the governments have a common problem under study here. This issue concerns what should be done with increasing cohabitation among a minority population, many of whom are poor. The Canadian solution, as I have stated it, is to stop privileging marriage, that is, to provide equal benefits to all who cohabit, thus recognizing de facto unions.⁴⁷ The solution in the United States first involves leaving solutions up to the individual states. Second, it privileges marriage. Examples include the federal marriage initiative,⁴⁸ which stresses marriage education, and the Defense of Marriage Act,⁴⁹ in which the federal government refuses to recognize same-sex marriage and through which states are freed from the usual obligation of honoring other states’ marriages.

1.3.2 Why Might the Outcomes Be So Different? Religion in Quebec: Policies and Reactions

In the 1990s, the Roman Catholic religious hierarchies in Québec that had performed most educational and health care services in the province ceded authority over them to the provincial government.⁵⁰ (For schools, this was a gradual process that did not conclude until 2006.)⁵¹ Québec is now the only Canadian province with no church-run (parochial) elementary schools,⁵² and religion may not be taught in or after school classes.

Beginning in the 1960s, church attendance in Quebec declined from the highest to the lowest rates in Canada.⁵³ While this may be for a number of reasons, some academics speculate that while Church reforms following Vatican II empowered the laity,⁵⁴ this movement did not relax unpopular stances toward birth control, abortion, and women’s place in the Church.⁵⁵ Quebec now resembles some northern European nations in terms of attendance and importance given to religion.⁵⁶ In 1986, nearly half (48 %) of Quebec residents said they attended religious services at least once a month. By 2011, about one-in-six Quebecers (17 %) reported attending religious services at least once a month, a drop of 31 points (or 70 %), according to a Pew Research Center poll (Fig. 11).⁵⁷

Fig. 11

Religious attendance, Canada

While the identity of the Québécois has been consistently and insistently oriented around the French language, the association with the Catholic Church has disappeared. Alain Bélanger attributes this to a rejection of what Michel Brunet called “les trois dominantes de la pensée canadienne-française: l’agriculturisme, le messianisme et l’anti-étatisme” [the three main components of French Canadian thought: agriculturalism, antistatism, and messianism].⁵⁸

1.4 A Recap of the Situation in the United States: Effect of Religiosity

The federal government in the United States provides much less generous social welfare support than does Canada.⁵⁹ In the United States, people who are married enjoy extensive legal and social protections.⁶⁰ People who are not must rely primarily on contract (or sometimes local domestic partner laws).⁶¹ Unlike Canada, where the distinctions between married and common law couples are legally blurred (at least while the relationships last), the two categories remain quite distinct in the US. As we have seen, African-Americans, like the Québécois, do not take advantage of marriage to the same extent as the majority population. Most African-American children grow up in a family that, at least at some point, and sometimes from the beginning, is headed by a single mother. Andrew Billingsley and Barbara Morrison-Rodriguez argued that African-American communities turn to the church when they go through extending crisis for different types of support.⁶² This may be particularly true for single mothers, often under stress.⁶³ Susan Sullivan found that mothers use religion to help build their children’s self-esteem and give them “a sense of self-efficacy stemming from religious beliefs and prayer.”⁶⁴

One obvious difference is that while the United States is an outlier in terms of religiosity among “first world” nations, African-Americans, as a group, are far more religious than most.⁶⁵ This provides a contrast to the failing religiosity of the Québécois (Fig. 12).

Fig. 12

Religiosity of African-Americans [A Religious Portrait of African Americans, Pew Forum on Religion & Public Life, Jan. 30, 2009, http://pewforum.org/A-Religious-Portrait-of-African Americans.aspx. (last visited April 22, 2011)].

2 Conclusion: The Importance of Support

Families need community support in order to function well, particularly when we consider children’s well-being.⁶⁶ Typically, this support comes from communities through the legal status of marriage and adoption. However, while it is not optimal, cohabitation may suffice for children’s well-being (though it will not be stable), but only if the parents (in most cases, the mothers) have some sort of other, external support. In this chapter, I have tried to demonstrate that religion appears to be a mediating communitarian factor for African-Americans but not for the Québécois. This difference may explain the better psychological, health, and mortality outcomes.

I would like to interject a few words of caution, however. The empirical comparison drawn here is only for a few outcome variables, and, at least for my own work on optimism, uses the simplest possible model. In fact the Canadian data is a “synthetic” dataset rather than the complete one. The consistent findings with depression, suicide, and tobacco use should support this interpretation, however.