Institute for American Values - 14 Set 06

New Report!
Marriage and the Law: A Statement of Principles

 

More than one hundred leading family and family law scholars from both sides of the political spectrum have issued a powerful new critique of family law trends that downgrade marriage, calling on judges, legislators, and legal experts to make finding new ways to support marriage a higher priority. The report, Marriage and the Law: A Statement of Principles, was released today by the Institute for American Values and the Institute for Marriage and Public Policy.

Summary

Even as the social sciences have revealed the critical importance of marriage for adult and child well-being, these scholars charge, family law as an intellectual discipline is moving in the opposite direction ,embracing a destructive "family diversity" ethic that (falsely) sees marriage as "just one of many equally valid lifestyles." They point to unilateral divorce, some same-sex marriage decisions, and the prestigious American Law Institute's recommendation that the law treat cohabiting couples as if they were married as evidence of these destructive trends in family law.   "This model of marriage is based on demonstrably false and therefore destructive premises," say experts who have signed Marriage and the Law: A Statement of Principles. By endorsing family diversity as the primary social goal, family law "will likely make it harder for civil society in the United States to strengthen marriage as a social institution."

The politically diverse group of scholars who are releasing the statement includes William Galston of the Brookings Institution, Steve Nock of the University of Virginia, Linda Waite of the University of Chicago, Norval Glenn of the University of Texas at Austin, David Popenoe of the National Marriage Project at Rutgers University, Mary Ann Glendon of Harvard University, and Margaret Brinig of Notre Dame Law School. A number of the signatories support legalizing same-sex marriage.

 

These scholars represent the leading intellectual proponents on one side of a debate within family law about what marriage is and how the law should support it - a debate that has been both greatly intensified by the same-sex marriage debate and one which will have consequences for that debate. On one side of the debate are those legal scholars who believe that the role of family law should be to endorse and encourage as many family forms as possible. Within family law, this is referred to as the "family diversity" model of marriage, and it has been widely accepted by legal scholars. For instance, in 2002, the prestigious American Law Institute published an influential report and set of recommendations, Principles of the Law of Family Dissolution, suggesting that the new and main aim of family law is to protect and promote family diversity, and that, accordingly, law should reduce and in some cases abolish distinctions between married and unmarried persons. Family  diversity advocates say that neither law nor society should prefer any one kind of family structure over any others. In this view, for example, single-mother families and two-parent families are equally valid family forms.

 

By contrast, the scholars who signed the Marriage and the Law statement believe marriage is an irreplaceable social institution that protects children "by increasing the likelihood that children will be raised by their mother and father." Marriage is not primarily about adults and their rights but about children and their needs, these scholars affirm: "[S]ympathy and fairness cannot blind us to the importance of the basic sexual facts that give rise to marriage in virtually every known society: The vast majority of human children are created through acts of passion between men and women. Connecting children to their mother and father requires a social and legal institution called 'marriage' with sufficient power, weight, and social support to influence the erotic behavior of young men and women."
 

One-third of U.S. children are now born out of wedlock, and slightly less than half of all marriages end in divorce, they point out. The result for children and communities is devastating, these scholars say. Family law scholars, judges, and legislators therefore urgently need to make strengthening marriage a major goal. "What if marriage really is an essential core institution of American society, a close kin in importance to private property, free speech and free enterprise, public education, equal protection of the law, and a democratic form of government?" they ask, "How then should law and society treat marriage?"
 

The Marriage and the Law report offers a number of concrete suggestions for strengthening marriage in law and culture. They include requiring a one- or two-year waiting period for unilateral divorce; codifing the basic obligations of marriage by statute; and adding as a new goal to court-connected divorce education programs facilitating reconciliations in nonviolent marriages.
 

These scholars who are releasing Marriage and the Law have already had a major impact on policymakers and court decisions concerning marriage. Their direct influence is visible in the recent Washington and New York court decisions about same-sex marriage, which endorsed as rational the idea that marriage is intrinsically related to children and that children thrive when raised by their mother and father. It is worth noting, at the same time, that a number of the signatories support legalizing same-sex marriage. The scholars have also played a major role in the growing critique of no-fault divorce. Louisiana, for example, in a historic move this July became the first state in a generation to dramatically lengthen waiting periods for no-fault divorce (to one year where children are involved). Democratic Governor Kathleen Blanco signed the measure into law.

The debate about marriage and how the law should support it was in full swing this summer. In July, thirty experts launched a major critique of the American Law Institute's Principles of Family Dissolution (which reflects the family diversity philosophy) in a volume published by Cambridge University Press, Reconceiving the Family. Also in July, following the Washington court's decision on same-sex marriage, 260 activists and academics released a statement, "Beyond Marriage," that argues for embracing diversity in all its forms as the core value of family law. By calling for communities that "explore the widest range of . . . possibilities in love, gender, desire and sex - and in the creation of new forms of constructed families," the "Beyond Marriage" statement appears to be endorsing polygamy and group marriage or "polyamory."