The Magazine

Defining Families Down

Marriage versus family diversity.

Sep 25, 2006, Vol. 12, No. 02 • By CLAUDIA ANDERSON
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THE WORST THING about public life in the United States is the harsh, ugly, barking, bad-faith-assuming, accusatory tone" of most discussion of important matters on which people disagree. So says David Blankenhorn, the unassuming and resourceful founding president of the Institute for American Values, a small think tank in New York whose annual symposium last week was devoted to the hotly contested matter of marriage and the law.

Should our laws treat marriage and cohabitation as if they were identical? Is the old conjugal view of marriage as a lifelong union of husband and wife obsolete, an impediment to our dealing with the new realities of cohabitation, late marriage, divorce, and non-marital childbearing? Or is that old view essential to the sound rearing of the next generation? Is a marriage culture something to be revived and strengthened in our laws, or should its remnants be jettisoned in favor of laws better adapted to a culture of "close relationships" and "family diversity"?

Bringing these questions into focus was the release Thursday of a "Call to the Nation" signed by over 60 leading scholars and practitioners of family law, many of them present at the symposium. Entitled "Marriage and the Law: A Statement of Principles," it is a careful and impassioned defense of the idea that the law must support this vital social institution.

The first panel brought together a leading signatory, Mary Ann Glendon, Learned Hand Professor of Law at Harvard; a scholar who declined to sign the statement, June Carbone, of Santa Clara University School of Law; and a beleaguered voice from the front lines, Leah Sears, chief justice of the Supreme Court of Georgia.

Carbone, while endorsing much of the statement as an "aspirational model," placed her reservations in the context of sociological change over the last two centuries. Deep trends in the culture, she said, have worked to separate intimate relationships from parenthood, and she was fatalistic about the possibility of pushing sex and procreation back inside marriage. The day of "policing sexuality" (abstinence, chaperones, shotgun weddings) has given way to the day of "policing fertility" (birth control, abortion). The effort to restore the privileged status of marriage, she implied, is not only futile but foolish.

Yet something has to give. In the 15 years Leah Sears has served on Georgia's high court, she has watched with alarm as its domestic-relations caseload has risen from 20 percent of all criminal and civil cases to 65 percent. And that doesn't include the fallout from family breakdown in juvenile court. Georgia's underfunded courts are swamped, she says--and, worse, they "are not the proper venue to solve our family problems."

Sears, who studied human ecology at Cornell in the early 1970s, was searching for some source of constructive thinking about this problem when she "stumbled upon" the work of the Institute for American Values on the web. She attended last year's symposium, and came away, she said, "transformed, energized." By July 2006, her court had set up a Commission on Children, Marriage and Family Law to study "the legal issues associated with the fragmentation of our families." Its first white paper can already be read at www.gasupreme.us.

Some of the particular points of controversy in family law emerged in the second panel. In 2002, the influential American Law Institute published a complex, thousand-page document, Principles of the Law of Family Dissolution, advocating the promotion of family diversity. With help from the Institute for American Values, a collection of essays responding to the ALI has just been published under the title Reconceiving the Family. The editor of the volume, Robin Fretwell Wilson of the University of Maryland School of Law, and several other contributors were on the panel.

One area of contention is the rights of a "de facto parent." This is an adult not related to a child by birth or marriage, but who has lived in the child's home and established a parent-like relationship with the child. When a cohabiting relationship breaks up, what should be this person's rights to property and custody?

The ALI would treat de facto parents almost the same as legal parents. It would grant them rights if they met certain criteria, including performing half of certain caretaking tasks (driving the child to doctor's appointments, reading to the child, making decisions about its education, and so on) over a stipulated period such as two years. Absent from the ALI's criteria is any attempt to measure the quality of the relationship between the adult and the child--whether it is loving and trustful. This is a cause for concern, argues Wilson, given the well-established overrepresentation of mothers' boy friends among abusers of children.

Similarly, Marie T. Reilly, of the Penn State Dickinson School of Law, deplored the blurring of the line between family and nonfamily relationships. "It is true and ubiquitous in our legal system that family claimants have priority over others," she said. Drawing on a background in economics, she noted, "When creditors come knocking, it matters desperately who are my family."

It was another judge--Jean Toal, chief justice of the Supreme Court of South Carolina--who further illuminated the
danger of treating marriage and cohabitation the same in law. When a marriage is entered into, two people publicly state their mutual commitment. Even a common law marriage in South Carolina requires the "mutual intent to live together as husband and wife" and can be dissolved in the eyes of the state only by divorce.

But cohabitation is different. It is often entered into without any intention of permanence or clearly understood mutual obligations. Is it wise to heap onto these vaguer, weaker alliances the rights and obligations of marriage? On the contrary, Toal argued, it is marriage that needs to be revalued. "We need to empower this special relationship."

Toal's point made for a natural segue to the luncheon address by Don Browning, professor emeritus of ethics and the social sciences at the Univer sity of Chicago Divinity School. Family law, Browning noted, is largely concerned with family breakdown--with the "back door" of marriage. It is necessary to clarify our thinking about the "front door" of marriage--the theory of justice underlying it, and the theory of the goods of life it is intended to serve.

Browning passed in review the work of two contemporary thinkers whose accounts of marriage and family law he finds ultimately wanting--federal judge Richard Posner and feminist legal scholar Martha Fineman--before concentrating on the tradition he embraces. This is the tradition, going back to Aristotle and the Bible, that "formed the genetic code of Western family law." This tradition, he said, "is especially attentive to the good of kin altruism," parents' natural inclination to nurture and invest in their children. Marriage, in this tradition, "integrates love, passion, faithfulness, mutual help, and kin investment in an institution supported by society."

The law, he urged, must shed its "false sense of moral neutrality" and join with other branches of culture to strengthen marriage on the front end, not just manage the damage when families break down.

The symposium wrapped up with the inaugural event of a new Institute for American Values project, in which "two teams of scholars, from two different philosophical perspectives, will investigate together the future of parenthood." Meeting in public for the first time, liberal feminist Linda C. McClain of Hofstra University School of Law and McGill University's Dan Cere, director of the Institute for the Study of Marriage, Law and Culture in Toronto, discussed her new book The Place of Families: Fostering Capacity, Equality, and Responsibility, and the question, "Do liberalism and the family go together?"

"Family law through history was illiberal," McClain stressed; it often enshrined female subordination. To eliminate sex discrimination from the law is not to impose a new meaning on marriage, she insisted. At the same time, she favored what are clearly innovations, same-sex marriage (a subject on which the Institute for American Values takes no position and its affiliated scholars disagree) and "kinship registration," to extend legal recognition to nonmarital supportive relationships.

Cere works in Canada, in the shadow of "Beyond Conjugality," a 2001 report by the Law Commission of Canada that energetically explores dis establishing marriage in favor of supporting a wide variety of "close personal adult relationships." He expressed wariness of state intrusion into the personal sphere. He cited Locke's account of family as a pre-political institution vital to human well-being, and argued that, as in the case of religion, so in the case of marriage and family, the liberal state must exercise restraint. First, do no harm.

Pressed by David Blankenhorn to identify their most fundamental disagreement, McClain and Cere seemed to concede that the sticking point is one that has bedeviled us for some decades: whether and how men and women are different, and what that means about equality.

Claudia Anderson is managing editor of THE WEEKLY STANDARD.