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."