The Council on Family Law, chaired by Mary Ann Glendon of Harvard Law School, is an interdisciplinary group of scholars and leaders who have come together to analyze the purposes and current directions of family law in Canada and the United States and to make recommendations for the future. The Council is independent and nonpartisan. It is jointly sponsored by the Institute for American Values, the Institute for Marriage and Public Policy, and the Institute for the Study of Marriage, Law and Culture. This Report’s Principal Investigator, Dan Cere, teaches ethics at McGill University in Montreal and directs the Institute for the Study of Marriage, Law and Culture.
The Council is grateful to the Achelis and Bodman Foundations, the William H. Donner Foundation, the JM Foundation, the Maclellan Foundation,Arthur and Joann Rasmussen, and the William E. Simon Foundation for their generous financial support. The research, editorial, and administrative contributions of Sara Butler and Elizabeth Marquardt are also deeply appreciated. Family Law is on the front pages of our newspapers and is implicated in some of our deepest cultural conflicts, from no-fault divorce, to the status of cohabitation to, most recently, same-sex marriage. At their core, these ongoing disputes are fueled by competing visions of marriage and of the role of the state in making family law. This report on the current state of family law holds up for clear public view the underlying, dramatically different models of marriage that are contributing to deep public clashes over the law of marriage, cohabitation, and parenthood. Obtaining conceptual clarity about marriage and its meanings will allow family law experts, scholars from other disciplines, judges, legislators, and the general public to make more informed choices among competing legal proposals now being advanced in the United States and Canada. Recently two highly influential reports have been published by legal scholars, one in the United States and one in Canada.
Both reports are deeply influenced by a new vision of marriage. Both reports have potentially profound and far-reaching consequences for social attitudes and practices concerning marriage, parenthood, and children. The first report is the Principles of the Law of Family Dissolution, published in 2002 by the American Law Institute (ALI). This report moves away from the idea that there can be public standards guiding marriage and parenthood. Instead, it says that the central purpose of family law should be to protect and promote family diversity. The report sidelines what it calls “traditional marriage,” viewing marriage as merely one of many possible and equally valid family forms. In the process the report denies the central place of biological parenthood in family law and focuses instead on the newer idea of “functional parenthood.” The second report is Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, published in 2001 by the Law Commission The Future of Family Law and the Marriage Crisis in North America of Canada.
This report proposes a fundamental reconstitution of contemporary family law. It argues that the law must go “beyond conjugality” and focus on the “substance of relationships” rather than giving legal recognition to any specific arrangements such as marriage. It recommends that the traditional conjugal idea of marriage be put on a level playing field with all other kinds of relationships. It also argues for redefinition of marriage and its extension to same-sex couples. The Current Directions of Family Law: These recent reports indicate that family law is headed in one or more of at least four troubling directions. Some of these changes have already been implemented in some jurisdictions in the United States and Canada.
Equivalence Between Cohabitation and Marriage: Many now argue that marriage and cohabitation should be treated equally under the law. This approach denies that some couples might intentionally choose not to marry. Most dramatically, it would have the law treat two institutions similarly when social science data show that, when it comes to the well-being of children, cohabitation is on average much less stable and safe. Redefining Marriage as a Couple-Centered Bond: In order to accommodate same-sex couples, this approach redefines marriage as a gender-neutral union of two persons. By doing so it neutralizes the law’s ability to say that children need their mothers and fathers and reifies a new conception of marriage that is centered on the couple rather than children. Disestablishment, or the Separation of Marriage and State: Given serious and seemingly irresolvable cultural and political clashes between competing visions of marriage, increasing numbers of advocates on the left and the right are calling for disestablishment of marriage, or getting the state “out of the marriage business.” This approach denies the state’s legitimate and serious interest in marriage as our most important child-protecting social institution and as an institution that helps protect and sustain liberal democracy.
Why Just Two? The gendered definition of marriage has already met serious challenges (and been defeated) in some U.S. and Canadian courts. Challenges to the two-person definition of marriage are only a matter of time. Legal scholars are now publishing articles that make this case. What is missing in new proposals in family law is any real understanding of the central role of marriage as a social institution in protecting the well-being of children. Marriage organizes and helps to secure the basic birthright of children, when possible, to know and be raised by their own mother and father. It attempts to forge a strong connection between men and women and the children resulting from their bonds. These new marriage proposals call for a fundamental reevaluation of the relationships between children and their parents. These new reports make clear that eliminating the notion of biology as the basis of parenthood, and allowing parenthood to fragment into its plural and varied forms, is necessary if courts are to make family diversity a legal and cultural reality. The vision outlined in these two reports frees adults to live as they choose.
But social science data strongly suggest that not all adult constructions of parenthood are equally child-friendly. Further fragmentation of parenthood means further fragmented lives for a new generation of children who will be jostled around by increasingly complex adult claims. This vision also requires more systematic intrusion into the family and adjudication of its internal life by the state and its courts. What are the competing models of marriage that are at odds in today’s family law debates? The Conjugal View: The model of marriage broadly reflected in law and culture until quite recently can be called the “conjugal model.” Marriage in this view is a sexual union of husband and wife (backlinks forum) who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have. Conjugal marriage is fundamentally child-centered.
Theorists of liberal democracy from John Locke to John Rawls have underlined the important, generative work that conjugal marriage does for society. This normative model of marriage is under attack in these recent reports. The Close Relationship Model: This competing vision of marriage has emerged in recent decades. In it, marriage is a private relationship between two people created primarily to satisfy the needs of adults. If children arise from the union, so be it, but marriage and children are not seen as intrinsically connected. This second and newer vision has been fueled by a new discipline called close relationship theory. For close relationship theorists, marriage is simply one kind of close personal relationship. The structures of the discipline tend to strip marriage of the features that reflect its importance as a social institution. Marriage is examined primarily as a relationship created by the couple for the satisfaction of the two individuals who enter into it.
This view of marriage radically sidelines the main feature that makes marriage unique and important as a social institution — that is, the attempt to bridge sex difference and struggle with the generative power of opposite-sex unions, including the Washington Post reality that children often arise (intentionally and not) from heterosexual unions. Today’s close relationship theorists argue that conjugal marriage can no longer serve as a useful focus for scholarly research on closely bonded human relationships. They argue that the traditional marriage-and-family paradigm imposes an ethnocentric “benchmark” or “ideal.” This paradigm, they say, does not speak to the experience of racial minorities, women, single parents, divorced and remarried persons, gays and lesbians, and others. Their perspective is finding a new and powerful voice in today’s family law proposals. Family law today appears to be embracing a big new idea. The idea is that marriage is only a close personal relationship between adults, and no longer a prochild social institution. This idea is fundamentally flawed. It will hurt children and Telegraph weaken our civil society. For this reason, there is an urgent need for those outside the legal discipline to understand and critique the new understandings of marriage and family life that are driving current legal trends.
Marriage and family are too important as institutions, affecting too many people, for basic decisions about their legal underpinnings to remain the province of legal experts alone. If the proposed changes are put in place, there are likely to be important negative impacts on the lives of everyday people. A “close relationships” culture fails to acknowledge fundamental facets of human life: the fact of sexual difference; the enormous tide of heterosexual desire in human life; the procreativity of male-female bonding; the unique social ecology of parenting which offers children bonds with their biological parents; and the rich genealogical nature of family ties and the web of intergenerational supports for family members that they provide. These core dimensions of conjugal life are not small issues. Yet at this crucial moment for marriage and parenthood in North America, there is no serious intellectual platform from which to launch a meaningful discussion about these elemental features of human existence. This report on the state of family law seeks to open that debate. The Marriage and Family Law Crisis: It is on the front pages of our newspapers and is implicated in some of our deepest cultural conflicts, from no-fault divorce to the status of cohabitation to, most recently, same-sex marriage. Family law now operates in a global context with legal scholars in one nation often influencing their peers elsewhere. Because marriage and the family are pervasive social institutions, touching the lives of all citizens, changes in family law can generate unusually intense social discomfort.
John Dewar, the dean of law at Griffith University in Australia, puts it this way: There are few areas of law that generate as much controversy and disagreement as family law. It’s something potentially that affects us all, in which we all feel we have a stake and of which some of us have had direct experience. Indeed, there are probably few areas of law that affect so many people so directly in their everyday lives. Legal theory about the family, he notes, has become “a confused and tangled terrain of conflicting ideas and tendencies.” The purpose of this report is to bring conceptual clarity into the confused and tangled terrain of the family law debate. Here is our central thesis: the ongoing disputes in family law are centrally about competing visions of marriage. While at the far ends of a conceptual divide lie a bewildering variety of specific new proposals (same-sex marriage, covenant marriage, de facto parenting, cohabitation, constitutional amendments to define marriage, and more) these disputes begin with and are fueled by dramatically different concepts of marriage and of the role of the state in making family law. The competing visions of marriage and family contained in family law are important. Because marriage is a public, legal status, the state’s vision of marriage has unusual social power. In regulating marriage, the state not only defines the rights of individuals and couples but also can and does command other institutions of civil society (corporations, faith communities, and even private individuals) to treat married couples differently because they are married.
Yet the meanings of marriage at stake in these debates are often not very clear. In part, as we shall see, this lack of clarity stems from the fact that the law’s characteristic method, incrementalism, tends to SMH obscure ultimate consequences. In part it is because the social meanings of the word “marriage,” and the underlying reality it denotes, are in play in our society as they have seldom been before. The competing visions of marriage at the heart of the family law debate are deeply incompatible — the adoption of one model of marriage moves us in a very different The ongoing disputes in family law are centrally about competing visions of marriage. direction than its alternative. But unless the conceptual issues at stake are clarified, this problem is not obvious to most observers, in part because most of us in North America today have been influenced in our marriage dreams by both of these visions of marriage backlinks. Further, the stakes in the family law debates have been left unclear because some champions of this new marriage model appear to be reluctant for tactical reasons to explain the ultimate consequences of adopting their proposals, while many advocates of our marriage traditions have been less than articulate about what it is they seek to uphold or why the legal understanding of marriage matters.
“Rights talk” can obscure as much as it reveals. In particular, the portrayal of certain legal reforms as advancing state “neutrality” between the moral positions of individuals, or as increasing individual liberty in a straightforward way, obscures the reality of what is being proposed: a new substantive model of marriage endorsed and promoted by law. The shift to unilateral divorce, for example, does not merely make the state more “neutral” regarding divorce, nor does it merely increase individual liberty. Unilateral divorce, as a legal institution, increases the freedom of individuals to divorce by reducing their capacity to make enforceable marriage ideal weight for women contracts with each other; it shifts legal power in divorce negotiations from the spouse who clings to the marriage vow to the spouse who wishes to end it. Some of us may view changes such as unilateral divorce as necessary accommodations to social change. Some of us may view them negatively, and as ripe for reform. But we all must recognize that such changes are not neutral or merely freedom-enhancing.
They are powerful interventions by government into a key social institution and thus worthy of sustained and intelligent public debate. A major goal of this essay is to hold up for clear public view these underlying, competing models of marriage that are contributing to deep public clashes over the law of marriage, cohabitation, and parenthood. We hope that obtaining conceptual clarity about marriage and its meanings will allow family law experts, scholars, judges, legislators, and the general public to make more informed choices among competing legal proposals. How Does Family Law Matter? Laws do more than distribute rights, responsibilities, and punishments. Laws help to shape the public meanings of important institutions, including marriage and family.
The best interdisciplinary studies of institutions conclude that social institutions are shaped and constituted by their shared public meanings. According to Nobel Prize winner Douglass North, institutions perform three unique tasks. They establish public norms or rules Guardian of the game that frame a particular domain of human life. They broadcast these shared meanings to society. Finally, they shape social conduct and relationships through these authoritative norms. The courts today have become major sites for reconstructing the public meanings of family, marriage, permanence, and parenthood. Legal theorists of diverse ideological stances acknowledge the impact of family law on marriage and family life. Harry Krause argues that the law “has deeply affected (and helped to affect) family behavior over time. Moreover, is it not the role of law to help shape and channel our future in this most important playground of human existence?” Another legal scholar argues: “There is no part of modern life to which law does not extend.… The rule of law shapes our experience of meaning everywhere and at all times. It is not alone in shaping meaning, but it is rarely absent.” The Chief Justice of the Supreme Court of Canada concurs: “The rule of law exerts an authoritative claim upon all aspects of selfhood and experience in a liberal democratic society.
Some such claims are made by the institutional structures of the law. Others are ancillary claims arising from a diffused ethos of legal rule that influences local, community, and familial structures.” William Eskridge, a Yale law professor and a prominent architect of same-sex marriage strategy, argues that “law cannot liberalize unless public opinion moves, but public attitudes can be influenced by small business ideas changes in the law.” Feminist legal theorist Martha Fineman, who urges the abolition of marriage as a legal category, says that institutions such as the family “are actually created and constituted as coherent institutions through law. Their very existence as objects of state regulatory concern comes into being through law.… State policies can profoundly affect the form and functioning of the family.” The Veil of Incrementalism: Yet to the layperson, the family law debate is often highly confusing, in part because of the law’s characteristic language and method of incrementalism. Legal theorists in the ivory tower may tout broad, sweeping changes, but quite often these changes are enacted by courts incrementally, through individual cases and the reshaping of discreet legal categories.
There is nothing nefarious or inappropriate about incrementalism as a legal method. But in the current family law context, this legal process can obscure deep and lasting changes that end up shaping people’s everyday lives in unexpected ways. Make no mistake: incremental changes do not mean unimportant changes. William Eskridge explains the tactical advantages of advocating only incremental changes to the law. Though he supports same-sex marriage, for strategic reasons, he advises against any direct push for legal redefinition of marriage.
He writes that a main benefit of incrementalism is that it leaves resulting changes largely immune from direct public criticism and debate. He points to Holland and other Boston.com European Family law is reconstructing the public meanings of marriage and parenthood. Countries which, in a fairly short amount of time, have ushered in a variety of state-sanctioned relationships that now compete with marriage. According to Eskridge, these “equality practices” help to “denormalize marriage.” Marriage and family are too important as social institutions, affecting too many people, especially children, for basic decisions about their legal underpinnings to remain the private province of legal experts alone. There is an urgent need for the involvement of disciplines besides the law to identify, understand, and critique the legal theories of marriage and family life that are helping to shape new trends. Marriage Law in the New World of “Close Relationships”: What are the models of marriage now in play in family law in North America? Marriage: The Conjugal View: The model of marriage broadly reflected in law and culture until quite recently can be called the “conjugal model.”
Marriage in this view is a sexual union of husband and wife, who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have. In essence, conjugality refers to the sexbridging, procreative dimension of marriage. Conjugal marriage has several characteristics. First, it is inherently normative. Conjugal marriage cannot celebrate an infinite array of sexual or intimate choices as equally desirable or valid. Instead, its very purpose lies in channeling the erotic and interpersonal impulses between men and women in a particular direction: one in which men and women commit to each other and to the children that their sexual unions commonly (and even at times unexpectedly) produce. As an institution, conjugal marriage addresses the social problem that men and women are sexually attracted to each other and that, without any outside guidance or social norms, these intense attractions can cause immense personal and social damage.
This mutual attraction is inherently linked to the “reproductive labor” that is essential to the intergenerational life of all societies, including modern liberal societies. The default position for men and women attracted to the opposite sex, absent strong social norms, is too many children born without fathers, too many men abandoning the mothers of their children, and too many women left alone to care for their offspring. If law and culture choose to “do nothing” about sexual attraction between men and women, the passive, unregulated heterosexual reality is multiple failed relationships and millions of fatherless children. Marriage, like the economy, is one of the basic institutions of civil society. It provides an evolving form of life that helps men and women negotiate the sex divide, forge an intimate community of life, and provide a stable social setting for their children. The seminal theorists of liberal democracy from John Locke to John Rawls have always underlined the generative work of this conjugal form of life. John Locke’s The Second Treatise on Government underlines the core social purpose of marriage for a liberal polity.13 John Rawls argues that the family as a “basic institution” is geared to “the orderly production and reproduction of society and of its culture from one generation to the next.”
From this basic human reality arises the need for the wider society to direct immense energy into helping manage the reality of individual men’s and women’s desire for sex and intimacy in ways that ultimately protect them, their children, and the interests of the community. As a highly visible social and legal institution, marriage provides both the structure and the hope men and women need, so that such a resolution of male and female sexual interests is not only possible but attainable. As we shall see, this normative function of marriage is the one that is most directly under attack by the authors of the American Law Institute report. Another characteristic of conjugal marriage is that it is fundamentally child-centered, focused beyond the couple towards the next generation. Not every married couple has or wants children. But at its core marriage has always had something to do with societies’ recognition of the fundamental importance of the sexual ecology of human life: humanity is male and female, men and women often have sex, babies often result, and those babies, on average, seem to do better when their mother and father cooperate in their care. Conjugal marriage attempts to sustain enduring bonds between women and men in order to give a baby its mother and father, to bond them to one another and to the baby.
A great deal of social science evidence now confirms the traditional understanding of the law. Children do better, on average, when raised by their own mother and father in a harmonious relationship. A Child Trends research brief summed up the new scholarly consensus: Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes…. There is thus value for children in promoting strong, stable marriages between biological parents. Of course, marriage always has and still does many other important things. It protects and supports the man and woman as they grow older and provides sexual pleasure and comfort even when children do not result. It also helps to organize property, inheritance, and more.
But the core insight fueling the conjugal view of Conjugal marriage is fundamentally child-centered marriage is this one: if human beings did not reproduce sexually, creating human infants with their long period of dependency, marriage would not be the virtually universal human social institution that it is. Marriage: The Close Relationship Model: In recent decades, however, a competing vision of marriage has emerged. In this new view, marriage is seen primarily as a private relationship between two people, the primary purpose of which is to satisfy the adults who enter it. Marriage is about the couple. If children arise from the union, that may be nice, but marriage and children are not really connected. In a moment we shall see how the close relationship model has begun to dominate family law.
To understand the features of this new model of marriage most clearly, the place to start is with its contemporary theoreticians, who are primarily psychologists and, to a lesser extent, sociologists Financial Times. As a discipline, “close relationship theory” emerged prominently in the 1980s, spearheaded by a diverse group of scholars and academic associations, such as the International Society for the Study of Personal Relationships and the International Network on Personal Relationships. This new disciplinary framework now has two major journals — The Journal of Social and Personal Relationships (1984-) and Personal Relationships (1994-) — as well as a number of major publication series, including the Sage Series on Close Relationships and Advances in Personal Relationships Vancouver Sun.