The Magazine

Defining Families Down

Marriage versus family diversity.

Sep 25, 2006, Vol. 12, No. 02 • By CLAUDIA ANDERSON
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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.