MATERIALS ON LEGISLATIVE FACTS
27 INSTITUTE FOR AMERICAN VALUES, WHY MARRIAGE MATTERS: THIRTY
CONCLUSIONS FROM THE SOCIAL SCIENCES (3d ed. 2011).
28 THE WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN
29 INSTITUTE FOR AMERICAN VALUES, MARRIAGE AND THE LAW: A
STATEMENT OF PRINCIPLES (2006).
30 INSTITUTE FOR AMERICAN VALUES (DAN CERE, PRINCIPAL
INVESTIGATOR), THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE
CRISIS IN NORTH AMERICA (2005).
HIS STATEMENT comes from a team of family scholars chaired by
W. Bradford Wilcox of the University of Virginia. The state-
ment is sponsored by the Center for Marriage and Families at
the Institute for American Values and the National Marriage Project at
the University of Virginia. The sponsors are grateful to The Lynde and
Harry Bradley Foundation, The William H. Donner Foundation, and
Fieldstead and Company for their generous support.
On the cover: Woman Writing List That
Binds Two Hearts by Bonnie Timmons.
© Bonnie Timmons/The Image Bank/
© 2011, Institute for American Values.
No reproduction of the materials con-
tained herein is permitted without the
written permission of the Institute for
First edition published 2002. Second edi-
tion 2005. Third edition published 2011.
Institute for American Values
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Table of Contents
Five New Themes.............................................................................
A Word about Selection Effects........................................................
Our Fundamental Conclusions........................................................
The Thirty Conclusions: A Snapshot......................................................
The Thirty Conclusions...........................................................................
Physical Health and Longevity.........................................................
Mental Health and Emotional Well-Being........................................
Crime and Domestic Violence..........................................................
W. BRADFORD WILCOX is associate professor of sociology and director of
the National Marriage Project at the University of Virginia.
JARED R. ANDERSON is assistant professor of marriage and family therapy
at Kansas State University.
WILLIAM DOHERTY is professor of family social science and director of
the Citizen Professional Center at the University of Minnesota.
DAVID EGGEBEEN is associate professor of human development and soci-
ology at Pennsylvania State University.
CHRISTOPHER G. ELLISON is the Dean’s Distinguished Professor of Social
Science at the University of Texas at San Antonio.
WILLIAM GALSTON is Ezra K. Zilkha Chair and Senior Fellow in
Governance Studies at the Brookings Institution.
NEIL GILBERT is Chernin Professor of Social Welfare and co-director of
the Center for Child and Youth Policy at the University of California at
JOHN GOTTMAN is professor emeritus of psychology at the University of
RON HASKINS is a senior fellow in the Economic Studies Program and co-
director of the Center on Children and Families at the Brookings
Institution, and a senior consultant at the Annie E. Casey Foundation.
ROBERT I. LERMAN is an institute fellow at the Urban Institute and pro-
fessor of economics at American University.
LINDA MALONE-COLÓN is chair of the Department of Psychology and
executive director of the National Center on African American Marriages
and Parenting at Hampton University.
LOREN MARKS holds the Kathryn Norwood and Claude Fussell Alumni
Professorship and is associate professor of family studies at Louisiana
ROB PALKOVITZ is professor of human development and family studies
at the University of Delaware.
DAVID POPENOE is professor emeritus of sociology at Rutgers
MARK D. REGNERUS is associate professor of sociology at the University
of Texas at Austin.
SCOTT STANLEY is a research professor and co-director of the Center for
Marital and Family Studies at the University of Denver.
LINDA WAITE is the Lucy Flower Professor of Sociology at the University
JUDITH WALLERSTEIN is senior lecturer emerita at the School of Social
Welfare at the University of California at Berkeley.
most our history is that cohabitation has emerged as a powerful alter-
native to and competitor with marriage.
For this reason, the third edition of Why Marriage Matters focuses new
attention on recent scholarship assessing the impact that contemporary
cohabitation is having on marriage, family life, and the welfare of chil-
dren. This edition also picks up on topics that surfaced in the first two
editions of the report, summarizing a large body of research on the
impact of divorce, stepfamilies, and single parenthood on children,
adults, and the larger commonweal. The report seeks to summarize
existing family-related research into a succinct form useful to policy
makers, scholars, civic, business, and religious leaders, professionals,
and others interested in understanding marriage in today’s society.
Five New Themes
Children are less likely to thrive in cohabiting households,
compared to intact, married families. On many social, educa-
tional, and psychological outcomes, children in cohabiting house-
holds do significantly worse than children in intact, married families,
and about as poorly as children living in single-parent families. And
when it comes to abuse, recent federal data indicate that children in
cohabiting households are markedly more likely to be physically,
sexually, and emotionally abused than children in both intact, mar-
ried families and single-parent families (see figure 3). Only in the
economic domain do children in cohabiting households fare consis-
tently better than children in single-parent families.
Family instability is generally bad for children. In recent years,
family scholars have turned their attention to the impact that tran-
sitions into and out of marriage, cohabitation, and single parent-
hood have upon children. This report shows that such transitions,
especially multiple transitions, are linked to higher reports of
school failure, behavioral problems, drug use, and loneliness,
among other outcomes. So, it is not just family structure and family
process that matter for children; family stability matters as well. And
the research indicates that children who are born to married par-
ents are the least likely to be exposed to family instability, and to
the risks instability poses to the emotional, social, and educational
welfare of children.
American family life is becoming increasingly unstable for
children (see figure 4).
Sociologist Andrew Cherlin has observed
that Americans are stepping “on and off the carousel of intimate rela-
tionships” with increasing rapidity.
This relational carousel spins par-
ticularly quickly for couples who are cohabiting, even cohabiting
couples with children. For instance, cohabiting couples who have a
child together are more than twice as likely to break up before their
child turns twelve, compared to couples who are married to one
another (see figure 5). Thus, one of the major reasons that children’s
lives are increasingly turbulent is that more and more children are
being born into or raised in cohabiting households that are much
more fragile than married families.
The growing instability of American family life also means
that contemporary adults and children are more likely to live
in what scholars call “complex households,” where children and
adults are living with people who are half-siblings, stepsiblings, step-
parents, stepchildren, or unrelated to them by birth or marriage.
Research on these complex households is still embryonic, but the ini-
tial findings are not encouraging. For instance, one indicator of this
growing complexity is multiple-partner fertility, where parents have
children with more than one romantic partner. Children who come
from these relationships are more likely to report poor relationships
with their parents, to have behavioral and health problems, and to
fail in school, even after controlling for factors such as education,
income, and race. Thus, for both adults and children, life typically
becomes not only more complex, but also more difficult, when parents
fail to get or stay married.
The nation’s retreat from marriage has hit poor and working-
class communities with particular force. Recent increases in
cohabitation, nonmarital childbearing, family instability, and family
complexity have not been equally distributed in the United States;
these trends, which first rose in poor communities in the 1970s and
1980s, are now moving rapidly into working-class and lower-middle-
class communities. But marriage appears to be strengthening in more
educated and affluent communities. As a consequence, since the
early 1980s, children from college-educated homes have seen their
family lives stabilize, whereas children from less-educated homes
have seen their family lives become increasingly unstable (see figure
6). More generally, the stratified character of family trends means that
the United States is “devolving into a separate-and-unequal family
regime, where the highly educated and the affluent enjoy strong and
stable [families] and everyone else is consigned to increasingly unstable,
unhappy, and unworkable ones.”
We acknowledge that social science is better equipped to document
whether certain facts are true than to say why they are true. We can
assert more definitively that marriage is associated with powerful social
goods than that marriage is the sole or main cause of these goods.
A Word about Selection Effects
Good research seeks to tease out “selection effects,” or the preexisting
differences between individuals who marry, cohabit, or divorce. Does
divorce cause poverty, for example, or is it simply that poor people
are more likely to divorce? Scholars attempt to distinguish between
causal relationships and mere correlations in a variety of ways. The
studies cited here are for the most part based on large, nationally
representative samples that control for race, education, income, and
other confounding factors. In many, but not all cases, social scientists
used longitudinal data to track individuals as they marry, divorce, or
stay single, increasing our confidence that marriage itself matters.
Where the evidence appears overwhelming that marriage causes
increases in well-being, we say so. Where marriage probably does so
but the causal pathways are not as well understood, we are more
We recognize that, absent random assignment to marriage, divorce, or
single parenting, social scientists must always acknowledge the possi-
bility that other factors are influencing outcomes. Reasonable scholars
may and do disagree on the existence and extent of such selection
effects and the extent to which marriage is causally related to the better
social outcomes reported here.
Yet, scholarship is getting better in addressing selection effects. For
instance, in this report we summarize three divorce studies that follow
identical and nonidentical adult twins in Australia and Virginia to see
how much of the effects of divorce on children are genetic and how
much seem to be a consequence of divorce itself. Methodological inno-
vations like these, as well as analyses using econometric models, afford
us greater confidence that family structure exercises a causal influence
for some outcomes.
Departures from the norm of intact marriage do not necessarily harm
most of those who are exposed to them.
While cohabitation is associ-
ated with increased risks of psychological and social problems for chil-
dren, this does not mean that every child who is exposed to cohabita-
tion is damaged. For example, one nationally representative study of
six- to eleven-year-olds found that only 16 percent of children in cohab-
iting families experienced serious emotional problems. Still, this rate
was much higher than the rate for children in families headed by mar-
ried biological or adoptive parents, which was 4 percent.
While marriage is a social good, not all marriages are equal. Research
does not generally support the idea that remarriage is better for children
than living with a single mother.
Marriages that are unhappy do not
have the same benefits as the average marriage.
Divorce or separation
provides an important escape hatch for children and adults in violent or
high-conflict marriages. Families, communities, and policy makers inter-
ested in distributing the benefits of marriage more equally must do
more than merely discourage legal divorce.
But we believe good social science, despite its limitations, is a better
guide to social policy than uninformed opinion or prejudice. This report
represents our best judgment of what current social science evidence
reveals about marriage in our social system.
Children who live with their own two married parents enjoy
better physical health, on average, than do children in other
Parental marriage is associated with a sharply lower risk of
Marriage is associated with reduced rates of alcohol and sub-
stance abuse for both adults and teens.
Married people, especially married men, have longer life
expectancies than do otherwise similar singles.
Marriage is associated with better health and lower rates of
injury, illness, and disability for both men and women.
Marriage seems to be associated with better health among
minorities and the poor.
Physical Health and Longevity
Children whose parents divorce have higher rates of psycho-
logical distress and mental illness.
Cohabitation is associated with higher levels of psychological
problems among children.
Family breakdown appears to increase significantly the risk of
Married mothers have lower rates of depression than do single
or cohabiting mothers.
Mental Health and Emotional Well-Being
Boys raised in non-intact families are more likely to engage in
delinquent and criminal behavior.
Marriage appears to reduce the risk that adults will be either
perpetrators or victims of crime.
Married women appear to have a lower risk of experiencing
domestic violence than do cohabiting or dating women.
A child who is not living with his or her own two married parents
is at greater risk of child abuse.
There is a growing marriage gap between college-educated
Americans and less-educated Americans.
Crime and Domestic Violence
Children are most likely to enjoy family stability when
they are born into a married family.
There is an emerging scholarly consensus that family stability in and of
itself is linked to positive child outcomes.
By contrast, children who
are exposed to family transitions—from a divorce to the breakup of a
mother’s romantic relationship with a live-in boyfriend—are more likely
to experience behavioral problems, drug use, problems in school, early
sex, and loneliness. The evidence also suggests that multiple transitions
(where children are exposed to more than one breakup or new rela-
tionship) are especially harmful for children.
Family transitions are thought to harm a mother’s ability to interact pos-
itively with her child(ren) by affecting her economic, social, and psy-
chological resources. They also necessitate the establishment of new
routines and relationships that may be difficult for children to navigate.
Selection may also be at work; that is, pre-existing maternal attributes
made lead both to multiple union transitions and poor child outcomes,
though selection does not appear to tell the whole story.
Children born to married parents are the most likely to enjoy family
stability over their childhood. According to data from the Fragile
Families and Child Wellbeing Study, which follows children in twenty
cities around the U.S., only 13 percent of children born to married par-
ents experience a maternal partnership transition (i.e., the end or start
of a relationship) by age 3, compared to 50 percent of those born to
cohabiting parents, 69 percent of those born to “visiting” (i.e., dating
but not cohabiting) parents, and 74 percent of those born to a single
mother (i.e., a mother no longer in a romantic relationship with the
Indeed, a number of studies suggest that cohabitation in a range of
cultural and national contexts is less stable than marriage.
and African American children born into cohabiting unions were
more likely to see their parents break up than their peers who were
born to married parents.
Cohabitations are unstable not just in the
United States. In one study of seventeen Western countries, parental
cohabitation was associated with higher risk of parental separation,
even in Sweden where parental cohabitation is very common
(although the difference between parental cohabitation and marriage
in Sweden is less pronounced than in other countries).
In fact, one
new study of family instability in Sweden found that children born to
cohabiting couples are more than 70 percent more likely to see their
parents separate by age fifteen, compared to children born to married
Unfortunately, in part because childbearing and childrearing in a
cohabiting household is becoming more common in the United States,
family stability has declined for children in the United States over the
course of the last three decades even though the divorce rate has
This overall decline in family stability for children is partic-
ularly striking because children born to married couples now enjoy
more stability than they did thirty years ago. This decline is also strik-
ing because the deinstitutionalization of marriage has largely been lim-
ited to working-class and poor communities in the United States. For
both economic and cultural reasons, more educated and affluent
Americans are now markedly more likely to succeed in marriage than
their less privileged fellow citizens.
This means that children in poor
and working-class communities are triply disadvantaged: they have
fewer economic resources, their parents are less likely to be married,
and they are more likely to be exposed to numerous family transitions
over the course of their lives.
Children are less likely to thrive in complex households.
Over the last four decades, increases in divorce, cohabitation, and
nonmarital childbearing have increased the prevalence of complex
households—where children share a household with stepsiblings,
half-siblings, stepparents, or with adults with whom they are unrelated
by marriage, adoption, or blood. Children are more likely to suffer
economically, psychologically, and socially when they live in complex
households, in part because such households often do not have clear
norms, boundaries, and a clear family identity to provide stability,
direction, and purpose to their members, and to the relationships
within these households.
Research indicates that children in stepfamilies are more likely to expe-
rience school failure, delinquency, teenage pregnancy, and incarcera-
tion than children growing up in intact, married families.
This is in
part, as Andrew Cherlin has pointed out, because stepfamilies are
“incomplete institutions” that have fewer commonly understood norms,
roles, and rituals than intact, married families.
As a consequence, step-
parents often have more difficulty relating to their stepchildren than do
biological parents, which is one reason that stepchildren are less likely
to thrive than children from intact, married families.
Children whose parents have engaged in multiple-partner fertility
(MPF), where adults have children with two or more partners, have
similar problems. Because MPF can be associated with “baby mama
drama” (i.e., conflict between former romantic partners or spouses
who had a child together, or between one of them and a new romantic
partner of the other partner or spouse), and because it is practically
difficult for mothers and fathers to invest financially, emotionally, and
temporally in children across different households, children from such
MPF families are more likely to suffer health problems, externalizing
behaviors such as fighting, lower academic achievement, and lower
quality relationships with their parents, compared to children in intact,
Interestingly, even children living in a family with their own biolog-
ical, married parents appear to be more likely to suffer if they are
exposed to complexity, in the form of step- or half-siblings located
in their own household. New research suggests that children living
with their married biological parents were more likely to fail in
school, to suffer from depression, and to engage in delinquent
behavior if they live with stepsiblings from a parent’s prior union.
This is probably because the stresses of stepfamily living and the
challenges of supporting a former spouse can undercut the parenting
of mothers and fathers who head up a blended family. This new
research provides more evidence that children are more likely to
thrive when their parents succeed in channeling their reproductive
lives into one marriage.
Cohabitation is not the functional equivalent of marriage.
As a group, cohabitors in the United States more closely resemble sin-
gles than married people, though cohabitation is an exceptionally het-
erogenous status, with some partners treating it as a prelude to mar-
riage, others as an alternative to marriage, others as an opportunity to
test for marriage, and still others as a convenient dating relationship.
Adults who live together are more similar to singles than to married
couples in terms of physical health
and emotional well-being and
as well as in assets and earnings.
Children with cohabiting parents have outcomes more similar to
the children living with single (or remarried) parents than chil-
dren from intact marriages.
In other words, children living in
cohabiting unions do not fare as well as children living in intact,
married families. For instance, one recent study found that
teenagers living in cohabiting unions were significantly more
likely to experience behavioral and emotional difficulties than
were teenagers in intact, married families, even after controlling
for a range of socioeconomic and parenting factors.
problem is that cohabiting parents are less likely to devote their
financial resources to childrearing. One study found that cohab-
iting parents devoted a larger share of their income to alcohol
and tobacco, and a smaller share of their income to children’s
education, compared to married parents.
Selection effects account for a portion of the difference between
married people and cohabitors. As a group, cohabitors (who are not
engaged) have lower incomes and less education.
live together also, on average, report relationships of lower quality
than do married couples—with cohabitors reporting more conflict,
more violence, and lower levels of satisfaction and commitment.
This lower relationship quality among cohabitors explains their
higher levels of depression compared to married individuals.
biological parents who cohabit have poorer quality relationships
and are more likely to part than parents who marry.
Cohabitation differs from marriage in part because Americans
who choose solely to live together are less committed to each
other as partners and their future together.
Partly as a conse-
quence, cohabiting couples are less likely than married couples
to pool their income.
Another challenge confronting cohabiting
couples is that partners often disagree about the nature and
future of their relationship—for instance, one partner may antic-
ipate marriage and the other partner may view the relationship
as a covenient form of dating.
New research also suggests that
the instability and lower levels of commitment associated with
cohabitation can be deleterious for the elderly, who appear to
be more likely to be institutionalized or abandoned if they are
cohabiting rather than married.
In a society that still largely reveres marriage—even if marriages
are less and less likely to happen—nonmarriage often means
something relative to marriage. Marriage is a clear, mutual, non-
ambiguous signal of commitment; in contrast, cohabitation is
widely recognized as ambiguous when it comes to signaling
commitment in the absence of some other strong signal of mar-
ital intention such as engagement.
Growing up outside an intact marriage increases the likeli-
hood that children will themselves divorce or become
Children whose parents divorce or fail to marry are more likely to
become young unwed parents, to enter their marriages with lower
commitment, to experience divorce themselves someday, to marry as
teenagers, and to have unhappy marriages and/or relationships.
Daughters raised outside of intact marriages are approximately three
times more likely to end up young, unwed mothers than are children
whose parents married and stayed married.
Parental divorce increas-
es the odds that adult children will also divorce by at least 50 percent,
partly because children of divorce are more likely to marry prematurely
and partly because children of divorce often marry other children of
divorce, thereby making their marriage even more precarious.
Divorce is apparently most likely to be transmitted across the genera-
tions when parents in relatively low-conflict marriages divorced.
There is ongoing debate about whether the link between parental and
offspring divorce has weakened over time (as divorce rates increased
up through the early 1980s and then fell slightly), but there is consensus
that this association remains significant.
Moreover, remarriage does
not appear to help children. For instance, girls in stepfamilies are
slightly more likely to have a teenage pregnancy compared to girls in
a single-parent family, and much more likely to have a teenage preg-
nancy than girls in an intact, married family.
Children who grow up
in stepfamilies are also more likely to marry as teenagers, compared to
children who grow up in single-parent or intact, married families.
Finally, research also indicates that the effects of divorce cross three
generations: that is, grandchildren of couples who divorced are signif-
icantly more likely to experience marital discord, negative relationships
with their parents, and low levels of educational attainment, compared
to grandchildren whose grandparents did not divorce.
Marriage is a virtually universal human institution.
Marriage exists in virtually every known human society.
The shape of
marriage varies considerably in different cultural contexts, but at least
since the beginning of recorded history—in all the flourishing varieties
of human cultures documented by anthropologists—marriage has been
a universal human institution. As a virtually universal human idea, mar-
riage involves regulating the reproduction of children, families, and
society. While marriage systems differ (and not every person or class
within a society marries), marriage across societies is a publicly
acknowledged and supported sexual union that creates kinship obliga-
tions and resource pooling between men, women, and the children that
their sexual union may produce.
Marriage, and a normative commitment to marriage,
foster high-quality relationships between adults, as well
as between parents and children.
Some say that love, not marriage, makes a family. They argue that family
structure per se does not matter; rather, what matters is the quality of
Others argue that the marital ethic of lifelong
commitment needs to be diluted if we seek to promote high-quality
relationships; instead, the new marital ethic should be conditional, such
that spouses should remain together only so long as they continue to
love one another.
However, these arguments overlook what we know about the
effect of marriage, and a normative commitment to the institution
of marriage, on intimate relationships. By offering legal and nor-
mative support and direction to a relationship, by providing an
expectation of sexual fidelity and lifelong commitment, and by fur-
nishing adults a unique social status as spouses, marriage typical-
ly fosters better romantic and parental relationships than alterna-
tives to marriage.
For all these reasons, in part, adults who are
married enjoy happier, healthier, and less violent relationships,
compared to adults who are in dating or cohabiting relationships.
Even among older adults who were previously married, remarriage
seems to lead to happier relationships than cohabitation, though
differences on several other aspects of relationship quality are not
Parents who are married enjoy more supportive and less
conflictual relationships with one another, compared to parents
who are cohabiting or otherwise romantically involved with one
In turn, as we have seen, married parents generally have
better relationships with their children than do cohabiting,
divorced, unmarried, or remarried parents.
Some of the associa-
tions between family structure and family process are products of
selection—that is, couples with better relationships are more likely
to get and stay married. But, as this report makes clear, the
research also suggests that social, legal, and normative supports
provided by marriage foster better intimate relationships and parent-
But so does the idea of marriage. Individuals who value the institution
of marriage for its own sake—that is, who oppose easy divorce, who
believe that children ought to be born into marriage, and who think
marriage is better than cohabitation—are more likely to invest them-
selves in their marriages and to experience high-quality marital rela-
tionships. Ironically, individuals who embrace a conditional ethic to
marriage—that is, one that suggests marriages ought to continue only
so long as both spouses are happy—are less happy in their marriages.
One longitudinal study found that individuals who oppose divorce are
more likely to devote themselves to their spouse, even after controlling
for the initial quality of the marriage.
Two studies show that spouses,
particularly husbands, are more likely to sacrifice for their spouse if they
are strongly committed to the future of their marriages.
A recent study
finds that women’s marital happiness, and their reports of happiness
with their husband’s affection and understanding, are strongly and pos-
itively linked to high levels of shared spousal commitment to pro-mar-
Another study found that fathers who are normatively
commited to marriage are significantly more likely to praise and hug
their children than fathers who are not committed to marriage.
Scholars speculate that a strong normative commitment to marriage
makes married adults less likely to look for alternative partners and
more conscious of the long-term character of their relationship, both of
which encourage them to invest more in their current relationship.
Thus, adults who hold a strong normative commitment to marriage
appear to enjoy higher-quality relationships with family members, com-
pared to adults who are not strongly committed to the institution of
Marriage has important biosocial consequences for
adults and children.
Marriage has biological consequences for adults and children. We are
just beginning to discover the myriad ways that marriage seems to pro-
mote good outcomes in what social scientists call the “biosocial” area of
life—the connection between our social relationships and how our bod-
ies function. In the last decade, two marriage-related biosocial outcomes
have emerged as particularly important.
First, marriage appears to reduce men’s testosterone levels. More than
five studies analyzing different populations find that married men (espe-
cially married fathers) have lower testerone levels than similar men who
are never-married or divorced.
For this outcome, however, cohabiting
men appear to be affected just as much as are married men. What seems
to matter for men’s testorone levels are intimate, ongoing, and everyday
relationships with one woman.
Given that testosterone is associated
with aggression, sensation-seeking, and a range of other antisocial
behaviors, one of the ways that marriage may influence men is by reduc-
ing their levels of testosterone.
Of course, there may be selection effects
at work: that is, it may be that men with lower levels of testosterone are
less likely to engage in antisocial behavior and more likely to marry. The
two longitudinal studies done so far have obtained mixed results. One
strongly suggests that, for men, marriage plays a causal role in driving
down testosterone (as well as cortisol).
The other has found no effect
of becoming partnered (defined as a long-term monogamous relation-
ship) on men’s testosterone level.
Future research will have to further
unpack the relationships between marriage, testosterone, fatherhood,
and antisocial behavior among men.
Second, girls appear to benefit in their sexual development from grow-
ing up in an intact, married family. Extensive research by psychologist
Bruce Ellis and others indicates that adolescent girls who grow up apart
from an intact, married household are significantly more likely to have
early menstruation, premature sexual activity, and a teenage pregnancy.
He finds that girls who have close, engaged relationships with their
fathers have menstruation at a later age and that girls who lose their bio-
logical father as young children have menstruation at an earlier age.
Moreover, girls who live with an unrelated male (e.g., stepfather, moth-
er’s boyfriend) have menstruation even earlier than girls living in a sin-
gle-mother household. Ellis speculates that girls’ sexual development is
influenced by the male pheromones—biological chemicals that individ-
uals emit to one another, which have been associated with accelerated
sexual development in mammals—they encounter in their social envi-
ronment. The pheromones of their father appear to inhibit premature
sexual development, while the pheromones of an unrelated male appear
to accelerate such development. In Ellis’s words: “These findings…are
broadly consistent with the hypothesis that pheromonal exposure to the
biological father inhibits pubertal development in daughters.”
Early sexual development, in turn, is associated with significantly high-
er levels of premature sexual activity and teenage pregnancy on the part
of girls, even after controlling for economic and psychological factors in
the household that might otherwise confound the relationship between
family structure and girls’ sexual activity.
So this line of research
strongly suggests that an intact, married household protects girls from
premature sexual development and, consequently, teen pregnancy. One
genetically-informed study, however, suggests that much of this associa-
tion may be due to selection into family structure by genetic predisposi-
tion (i.e., both mother and daughter have an underlying biological make-
up that makes them more likely to have early menstruation). In a study
of children of sisters, including twin sisters, there was no difference in
age at first sex for the offspring of twin sister dyads where one child had
a father in the home and the other did not, but there was for the children
of non-twin sisters.
Future research will have to determine if genes,
environment, or some combination thereof account for the association
between father absence and early menstruation among adolescent girls.
Divorce and unmarried childbearing increase poverty for
both children and mothers, and cohabitation is less likely
to alleviate poverty than is marriage.
Research has consistently shown that both divorce
increase the economic vulnerability of both children and
mothers. The effects of family structure on poverty remain powerful,
even after controlling for race and family background. Changes in family
structure are an important cause of new entries into poverty (although
a decline in the earnings of the household head is the single most
important cause). Child poverty rates are high in part because of the
growth of single-parent families.
In fact, some studies indicate that all
of the increase in child poverty since the 1970s can be attributed to
increases in single parenthood due to divorce and nonmarital child-
When parents fail to marry and stay married, children are
more likely to experience deep and persistent poverty, even after con-
trolling for race and family background. The majority of children who
grow up outside of intact, married families experience at least one year
of dire poverty (family incomes less than half the official poverty thresh-
Divorce as well as unmarried childbearing plays a role: between
one-fifth and one-third of divorcing women end up in poverty follow-
ing the divorce.
Cohabitation does not alleviate poverty as well as mar-
riage does. The ratio of income to needs for children in cohabiting fam-
ilies is .43 points lower than that of those in married families.
The effect of divorce on women’s incomes persists in contemporary
America, but it appears to have lessened since 1980 as women’s labor
market position has improved.
Single mothers’ income gains have
been only marginal across the same time period.
Married couples seem to build more wealth on average
than singles or cohabiting couples.
Marriage seems to be a wealth-creating institution. Married couples
build more wealth on average than do otherwise similar singles or
cohabiting couples, even after controlling for income.
Analysis of the
National Longitudinal Survey of Youth (1979 cohort), which tracked
respondents from adolescence to their early forties, reveals that the per
person net worth of married individuals is 93 percent higher than it is
for single individuals, and divorced individuals have a per person net
worth 77 percent lower than single respondents.
The economic advan-
tages of marriage stem from more than just access to two incomes.
Marriage partners appear to build more wealth for some of the same
reasons that partnerships in general are economically efficient, includ-
ing economies of scale and specialization and exchange. Marital social
norms that encourage healthy, productive behavior and wealth accu-
mulation (such as buying a home) also appear to play a role. Married
parents also more often receive wealth transfers from both sets of
grandparents than do cohabiting couples; single mothers almost never
receive financial help from the child’s father’s kin.
effect of fatherhood on asset accumulation varies by marital status: mar-
ried fathers increased their rate of asset accumulation after becoming
fathers while unmarried fathers saw their rate of asset accumulation
Marriage reduces poverty and material hardship for dis-
advantaged women and their children.
A growing body of research by economist Robert I. Lerman and others
indicates that the economic benefits of marriage extend even to women
who come from disadvantaged backgrounds. Focusing on low-income
families, Lerman found that married couples with children generally had
lower levels of material hardship—that is, they were less likely to miss
a meal or fail to pay their utilities, rent, or mortgage—compared to
other families, especially single-mothers living alone.
In another study,
he found that mothers with low academic abilities who married saw
their living standards end up about 65 percent higher than similar single
mothers living with no other adult, over 50 percent higher than single
mothers living with another adult, and 20 percent higher than mothers
who were cohabiting.
Other research has found that disadvantaged
mothers are significantly less likely to be in poverty if they had their first
child in marriage, compared to similar mothers who had their first child
out-of-wedlock. This research found that 35 percent of disadvantaged
African American mothers who had a nonmarital first birth are below
the poverty line, compared to 17 percent of African American mothers
who had a marital first birth. The protective effect of marriage is even
stronger among women at high risk of poverty versus those at low
Why is marriage more likely to help poor women and children than
cohabitation? Married couples appear to share more of their income and
other property, they get more support from extended families and
friends, and they get more help from civic institutions (churches, food
There are two caveats to this work. First, marriage does
not produce as many benefits for women who have a premarital birth.
Second, marriage also does not produce much of an economic boost for
women who go on to divorce, and divorce is more common among
women with comparatively low levels of income and education.
women, particularly poor women, do not much benefit economically
from marriage unless their marriages are stable.
Minorities benefit economically from marriage also.
The economic benefits associated with marriage are not limited to
whites. Research also suggests that African Americans and Latinos ben-
efit materially from marriage. Studies find marriage effects at the com-
munity and individual levels. At the societal level, black child poverty
rates would be almost 20 percent lower than they currently are had the
proportion of black children living in married families not fallen below
At the individual level, one study found that black single mothers who
marry see their income rise by 81 percent (compared to an income
increase of 45 percent for white single mothers). This same study found
that the income of black children fell by 53 percent two years after a
Another study of older women indicates that married African
American women enjoy significantly more income than their widowed,
divorced, and never married peers.
Both black and Hispanic older
women experience declines in household income and assets following
marital disruption, be it divorce or widowhood.
Black men who marry
also see a significant increase in their income, about $4000 according to
Black men see bigger increases in their household
incomes than do white men (increases of 31 percent and 23 percent,
respectively) because black women are more likely to work than white
Finally, African Americans and Latinos who are married also
enjoy significantly higher levels of household equity, compared to their
peers who are not married.
Married men earn more money than do single men with
similar education and job histories.
A large body of research, both in the United States and other developed
countries, finds that married men earn between 10 and 40 percent more
than do single men with similar education and job histories.
selection effects may account for part of the marriage premium (insofar
as men with more stable and better-paying jobs are more likely to
the most sophisticated, recent research appears to confirm that
marriage itself increases the earning power of men on the order of 21
to 24 percent.
A study of identical twin pairs, which was able to
account more rigorously for selection effects, similarly found an earn-
ings increase of 26 percent.
Why do married men earn more? The causes are not entirely under-
stood, but married men appear to have greater work commitment, more
strategic approaches to job searches, and healthier and more stable per-
sonal routines (including sleep, diet, and alcohol consumption). One
study found that married men were more likely to quit with a new job
in hand, less likely to quit without a new job in hand, and less likely to
be fired, compared to unmarried men.
Husbands also benefit from
both the work effort and emotional support that they receive from
A study of German men finds that married men may also be
less content with their earnings, which may spur them to work harder
and earn higher wages.
All of the findings along these lines are consistent with the larger propo-
sition advanced by sociologist Steven Nock that men undergo an impor-
tant average transformation in their sense of themselves and their
responsibilities in the transition from nonmarriage to marriage.
Parental divorce (or failure to marry) appears to increase
children’s risk of school failure.
Parental divorce or nonmarriage has a significant, long-term negative
impact on children’s educational attainment. Children of divorced or
unwed parents have lower grades and other measures of academic
achievement, are more likely to be held back, and are more likely to
drop out of high school. The effects of parental divorce or nonmarriage
on children’s educational attainment remain significant even after con-
trolling for race, family background, and genetic factors.
nationally-representative study of more than 1,000 adolescents that con-
trolled for differences in parental education and income found that
teenagers were 60 percent less likely to graduate from high school if
they came from cohabiting families, compared to their peers who came
from intact, married families.
Likewise, kindergarteners living with
cohabiting parents have lower reading, math, and general knowledge
scores—whether they are living with their biological cohabiting parents
or one parent and a cohabiting partner. The differences in math and
general knowledge are explained by differences in parenting practices
and maternal depression, but differences in reading ability remain even
after having accounted for these factors.
Adolescents who live in
stable cohabiting families become less engaged in school than those in
stable biological married families, single-mother families, or married
stepfamilies. Those in single-mother families have decreased engage-
ment compared to those in stable biological married families.
Transitioning into a cohabiting family lowers school engagement as
well, as does transitioning from a cohabiting family to a married step-
Indeed, family transitions in general have been linked to poor-
er academic achievement,
and both family structure and transitions
appear to matter for educational outcomes.
Children whose parents
divorce end up with significantly lower levels of education than do chil-
dren in single-mother families created by the death of the father.
Children whose parents remarry do no better, on average, than do chil-
dren who live with single mothers.
It is not yet clear if the effects of
family structure vary by race. Some studies indicate that African
American educational performance is affected more than white per-
formance by father absence, whereas other studies come to the oppo-
Parental divorce reduces the likelihood that children will
graduate from college and achieve high-status jobs.
Parental divorce appears to have long-term consequences on chil-
dren’s socioeconomic attainment. While most children of divorce do
not drop out of high school or become unemployed, as adults, chil-
dren of divorced parents have lower occupational status and earnings
and have increased rates of unemployment and economic hardship.
They are less likely to attend and graduate from college and also less
likely to attend and graduate from four-year and highly selective col-
leges, even after controlling for family background and academic and
One reason for this may be that
divorced parents contribute significantly less money to their children’s
college education. While married parents contribute a median of
$1,804 per year to college costs, divorced (and not remarried) parents
contribute just $502, and remarried parents just $500—differences that
persist after controlling income and other relevant factors. Divorced
parents may have underreported their ex-spouse’s contribution, but
even so their contribution is not likely to rise anywhere near the level
of married parents.
Physical Health and Longevity
Children who live with their own two married parents
enjoy better physical health, on average, than do children
in other family forms.
Divorce and unmarried childbearing appear to have negative effects
on children’s physical health and life expectancy.
research suggests that parental divorce and cohabitation increase the
incidence of health problems in children.
For example, in one
recent longitudinal study the probability that a five-year-old child
with stably-married parents was in excellent health was .69, com-
pared to probabiliies of .65 for those whose parents divorced, .62 for
those whose parents stably cohabited, and .59 for those whose par-
ents dissolved their cohabitation.
The health advantages of married
homes remain, even after taking socioeconomic status into account.
Even in Sweden, a country with an extensive social welfare system
and a nationalized health care system, children who grow up outside
an intact family are much more likely to suffer serious disadvantages.
One recent study of the entire Swedish population of children found
that boys who were reared in single-parent homes were more than
50 percent more likely to die from a range of causes—e.g., suicide,
accidents, or addiction—than boys who were reared in two-parent
homes. Moreover, even after controlling for the socioeconomic status
and psychological health of parents, Swedish boys and girls in single-
parent families were more than twice as likely as children in two-
parent families to suffer from psychiatric diseases, suicide attempts,
alcoholism, and drug abuse; they were also more likely to experience
traffic injuries, falls, and poisonings than their peers in two-parent
The health effects of family structure extend into adulthood. One study
that followed a sample of academically gifted, middle-class children for
seventy years found that parental divorce reduced a child’s life
expectancy by four years, even after controlling for childhood health
status and family background, as well as personality characteristics such
as impulsiveness and emotional instability.
Another analysis found
that forty-year-old men whose parents had divorced were three times
more likely to die in the next forty years than were forty-year-old men
whose parents stayed married. “[I]t does appear,” the researchers con-
clude, “that parental divorce sets off a negative chain of events, which
contribute to a higher mortality risk among individuals from divorced
Parental marriage is associated with a sharply lower risk
of infant mortality.
Babies born to married parents have lower rates of infant mortality. On
average, having an unmarried mother is associated with an approxi-
mately 50 percent increase in the risk of infant mortality.
parental marital status predicts infant mortality in both blacks and
whites, the increased risk due to the mother’s marital status is greatest
among the most advantaged: white mothers over the age of twenty.
The cause of this relationship between marital status and infant mortal-
ity is not well known. There are many selection effects involved:
Unmarried mothers are more likely to be young, black, less educated,
and poor than are married mothers. But even after controlling for age,
race, and education, children born to unwed mothers generally have
higher rates of infant mortality.
While unmarried mothers are also less
likely to get early prenatal care,
infant mortality rates in these
instances are higher not only in the neonatal period, but through infancy
and even early childhood.
Children born to unmarried mothers have
an increased incidence of both intentional and unintentional fatal
The sharp differences in infant mortality between married
women who list a father’s name on the birth certificate and both mar-
ried and unmarried women who don’t, compared to the smaller (but
still signficant) difference between married and unmarried women who
list a father’s name on the birth certificate, suggests paternal involve-
ment may be a key factor in avoiding infant mortality and explaining
the marital advantage.
Marital status remains a powerful predictor of
infant mortality, even in countries with nationalized health care systems
and strong supports for single mothers.
Marriage is associated with reduced rates of alcohol and
substance abuse for both adults and teens.
Married men and women have lower rates of alcohol consumption and
abuse than do singles (including cohabitors). Longitudinal research con-
firms that young adults, particularly men, who marry tend to reduce
their rates of alcohol consumption and illegal drug use.
whose parents marry and stay married also have lower rates of sub-
stance abuse, even after controlling for family background and the
genetic traits of the parents.
Twice as many young teens in single-
mother families and stepfamilies have tried marijuana (and young teens
living with single fathers were three times as likely). Young teens whose
parents stay married are also the least likely to experiment with tobacco
Data from the National Household Survey on Drug Abuse
show that, even after controlling for age, race, gender, and family
income, teens living with both biological parents are significantly less
likely to use illicit drugs, alcohol, and tobacco.
How does family fragmentation relate to teen drug use? Many pathways
are probably involved, including increased family stress, reduced
parental monitoring, and weakened attachment to parents, especially
Married people, especially married men, have longer life
expectancies than do otherwise similar singles.
Married people live longer than do otherwise similar people who are
single or divorced.
Husbands as well as wives live longer on average,
even after controlling for race, income, and family background.
most developed countries, middle-aged single, divorced, or widowed
men are about twice as likely to die as married men, and nonmarried
women face risks about one-and-a-half times as great as those faced by
These differences by marital status have persisted
over time, and the differences between married and widowed individ-
uals may even have intensified in recent years.
One recent study argues that rather than crude measures of marital sta-
tus, marital histories—the nexus of marital status, timing, transitions, and
duration—are predictive of mortality. Indeed, marital status was the
least robust indicator of longer life, and accumulation of marriage dura-
tion the most robust. Nevertheless, each of these marital factors was
important in predicting survival. The effect of marriage on life expectancy
begins in young adulthood and accrues across the life course as indi-
viduals remain in, exit, and reenter marital relationships.
for adults, the stability of married life across the life course plays an
important role in fostering adult health.
Marriage is associated with better health and lower rates
of injury, illness, and disability for both men and women.
Both married men and women enjoy better health on average than do
single, cohabiting, or divorced individuals.
Selection effects regarding
divorce or remarriage may account for part of this differential, although
research has found no consistent pattern of such selection.
people appear to manage illness better, monitor each other’s health,
have higher incomes and wealth, and adopt healthier lifestyles than do
otherwise similar singles.
For example, one recent study finds married
men have higher serum carotenoid levels than never-married, divorced,
or widowed men, and married women have higher levels of the same
than do widowed women, suggesting marriage promotes diets higher
in fruit and vegetable intake.
A recent study of the health effects of marriage drawn from 9,333
respondents to the Health and Retirement Survey of Americans between
the ages of fifty-one and sixty-one compared the incidence of major dis-
eases, as well as functional disability, in married, cohabiting, divorced,
widowed, and never-married individuals. “Without exception,” the
authors report, “married persons have the lowest rates of morbidity for
each of the diseases, impairments, functioning problems and disabili-
ties.” Marital status differences in disability remained “dramatic” even
after controlling for age, sex, and race/ethnicity.
Another study from
the federally-funded Centers for Disease Control found that married
adults were less likely to be in poor health, to have activity limitations,
to have headaches, to suffer serious pyschological distress, to smoke,
and to have a drinking problem, compared to widowed, divorced, and
However, studies also suggest that the health effects of marriage vary by
marital quality, especially for women. Research by psychologist Janice
Kiecolt-Glaser and her colleagues indicates that women’s health is par-
ticularly likely to suffer when they are in poor-quality relationships and
thrive when they are in high-quality relationships. For instance, negative
marital behaviors (e.g., criticisms, put-downs, sarcasm) are associated
with increased levels of stress hormones (epinepherine, ACTH, and
norepinephrine), with higher blood pressure, and with declines in
So, particularly for women, marital quality, not
simply marital status, is strongly correlated to better health outcomes.
Moreover, there is a negative effect of poor marital quality on self-rated
health that appears to grow with age,
and remaining in a long-term,
low-quality marriage may actually be worse for one’s overall health than
Low marital quality has been implicated as one
reason why single mothers who marry do not reap the marital benefits
that childless women who marry do.
Marital conflict also appears to be
tied to functional impairment among midlife and older adults.
As with studies of marriage and mortality, marital status may not ade-
quately gauge the effect of marital history on physical health. For both
men and women, marriage duration is associated with lower rates of
disease. For women, early marriage (at or before age eighteen) and
number of divorce transitions predict poorer health outcomes; for men,
divorce duration and widowhood transitions are important.
again, the research suggests that a stable, lifelong marriage typically
benefits women and men’s health.
Despite the overall health advantages for married individuals, the tran-
sition to marriage is associated with at least one disadvantage: weight
In one recent study, researchers found that those who married
had BMI scores 1.129 units higher, on average, than those who
remained unmarried three years later—the equivalent of gaining eight
pounds for a person 5’10” tall and weighing 170 pounds.
and women who marry are more than two times more likely to become
obese than those who are in a non-cohabiting, dating relationship.
Here, adults who marry probably feel less pressure to stay fit to attract
or keep a partner, compared to their unmarried peers.
Marriage seems to be associated with better health
among minorities and the poor.
A recent report from the Centers for Disease Control indicates that
African American, Latino, and low-income adults also enjoy health ben-
efits from marriage. African American and Latino adults who are married
are less likely to be in poor health, to have activity limitations, to smoke,
to have a drinking problem, and to suffer serious pyschological distress,
compared to cohabiting, never-married, divorced, and widowed adults
who were African American or Latino. Poor married adults were less
likely to be in poor health, to have activity limitations, to smoke, to have
a drinking problem, or to suffer serious psychological distress, compared
to cohabiting, divorced, and widowed adults. (However, they did not do
consistently better than never-married adults).
may also increase the risk of obesity for African American women.
Marriage also has implications for child health. Studies indicate that
Latino and African American infants are significantly more likely to die
at or around birth, suffer from low birth weight, or be born premature
if they are born outside of marriage.
More research needs to be done
on the health consequences of marriage for low-income and minority
populations to confirm and extend these findings.
Mental Health and Emotional Well-Being
Children whose parents divorce have higher rates of psy-
chological distress and mental illness.
In the last four decades, a large body of research on divorce has accu-
mulated that generally indicates that divorce often causes children con-
siderable emotional distress and doubles the risk that they will experi-
ence serious pyschological problems later in life.
Children of divorce
are at higher risk for depression and other mental illness over the
course of their lives, in part because of reduced educational attainment,
increased risk of divorce, marital problems, and economic hardship.
A twenty-five-year study by psychologist Judith Wallerstein and her col-
leagues found that that the effects of divorce on children crescendoed
as they enter adulthood. Their relationships with the opposite sex were
often impaired by acute fears of betrayal and abandonment, and many
also complained that they had never witnessed a man and a woman in
a happy relationship and doubted that achieving such a relationship
Indeed, the recent growth of cohabitation flows in part
from the loss of confidence that many children of divorce have in mar-
Having witnessed divorce up close, many young adults are
afraid that they will not achieve lifelong love and they feel handicapped
in their search for love and marriage by their lack of models of a happy
relationship between a man and a woman, their lack of knowledge
about how to resolve differences, and their expectation of betrayal and
abandonment by their lover, wife, or husband.
So they cohabit, date,
or hookup instead of marrying.
Since Wallerstein published her pioneering book, Second Chances:
Men, Women, and Children a Decade After Divorce, which suggested
that divorce was associated with a fear of abandonment, sleeplessness,
a rise in aggression, and chronic anxiety among the children of divorce,
a large body of research on divorce has accumulated, which generally
indicates that divorce often causes children considerable emotional dis-
tress and doubles the risk that they will experience serious pyscholog-
ical problems later in life. Children of divorce are at higher risk for
depression and other mental illness over the course of their lives, in part
because of reduced educational attainment, increased risk of divorce,
marital problems, and economic hardship.
The timing of the breakup may matter as well. Family instability prior
to the end of kindergarten (be it divorce or another type of parental
breakup) but not from first through fourth grades heightens externaliz-
ing behavior problems and lowers peer compentency among fifth
There is mixed evidence as to whether these higher rates of psycho-
logical distress are causally related to parental divorce or instead to
some genetic factor(s). Studies from two sites—Australia and Virginia—
conducted by the same research team report very different results. Two
of these studies followed identical and nonidentical twins in Australia
who married and had children. Some of these twins went on to
divorce. By comparing the children of divorce with children from intact
families in this sample, the researchers were able to determine the role
that genetic factors played in fostering psychological problems among
the children of divorce. Specifically, these studies found that children
of divorce were significantly more likely to suffer from depression,
alcohol and drug abuse, delinquency, and thoughts of suicide.
researchers’ own words: “The results of the modeling indicated that
parental divorce was associated with young-adult offspring psychopathol-
ogy even when controlling for genetic and common environmental
factors related to the twin parent.”
However, in a similarly-designed
study of Virginians, the researchers found that the apparent effect of
parental divorce on emotional problems could be attributed to genetic
differences among parents who divorced, even as genetics did not
explain the association between parental divorce and alcohol problems.
The researchers note that cross-cultural differences, measurement dif-
ferences, or sampling differences may account for the discrepancy.
There is some additional evidence that the psychological effects of
divorce differ depending on the level of conflict between parents prior
to divorce. When marital conflict is high and sustained, children benefit
psychologically from divorce. When marital conflict is low, children
suffer psychologically from divorce. Unfortunately, about two-thirds of
divorces appear to be taking place among low-conflict spouses.
Cohabitation is associated with higher levels of psycho-
logical problems among children.
Studies find that children in cohabiting families are significantly more
likely to experience depression, difficulty sleeping, feelings of worth-
lessness, nervousness, and tension, compared to children in intact, mar-
For example, one nationally-representative study of
six- to eleven-year-olds found that 15.7 percent of children in cohabit-
ing families experienced serious emotional problems (e.g., depression,
feelings of inferiority, etc.), compared to just 3.5 percent of children in
families headed by married biological or adoptive parents.
Kindergartners in cohabiting stepfamilies report more sadness and lone-
liness than those who live with their married biological parents. Those
who cohabit with their biological parents do not differ from those who
live with their married parents. Both types of cohabiting families, how-
ever, are associated with lower levels of self-control among kindergart-
Adolescents in stably cohabiting stepfamilies experience more
increases in depression than their counterparts in stable biological par-
ent families, and transitioning from a cohabiting stepfamily to a married
stepfamily also appears to increase depression among adolescents.
The effect of cohabitation may be contingent on its social institutional-
ization. For example, children born born to Latina mothers in countries
where cohabitation is more prevalent and accepted exhibit less exter-
nalizing behavioral problems than those born in countries where it is
But, in the United States at least, cohabitation is
a risk factor for children’s mental health.
Family breakdown appears significantly to increase the
risk of suicide.
High rates of family fragmentation are associated with an increased risk
of suicide among both adults and adolescents.
Divorced men and
women are more than twice as likely as their married counterparts to
Married individuals were also substantially less likely
to commit suicide than were divorced, widowed, or never-married
In the last half-century, suicide rates among teens and
young adults have tripled. The single “most important explanatory vari-
able,” according to one new study, “is the increased share of youths liv-
ing in homes with a divorced parent.” The effect, note the researchers,
“is large,” explaining “as much as two-thirds of the increase in youth
suicides” over time.
Another study suggests that if family structure
remained as it was in 1970, 179,000 fewer children per year would con-
sider suicide and 71,000 fewer children would attempt suicide.
Married mothers have lower rates of depression than do
single or cohabiting mothers.
The absence of marriage is a serious risk factor for maternal depression.
Married mothers have lower rates of depression than do cohabiting or
single mothers. Cohabiting mothers are more likely to be depressed
because they are much less confident that their relationship will last,
compared to married mothers.
Married mothers also perceive that they
receive more support from their child(ren)’s father.
Single mothers are
more likely to be depressed by the burdens associated with parenting
alone. One study of 2,300 urban adults found that, among parents of
preschoolers, the risk of depression was substantially greater for unmar-
ried as compared to married mothers.
Single mothers who marry (and
remain married), moreover, receive the same mental health benefits as
childless women who marry.
Marriage protects even older teen moth-
ers from the risk of depression. In one nationally representative sample
of eighteen- and nineteen-year-old mothers, 41 percent of single white
mothers having their first child reported high levels of depressive symp-
toms, compared to 28 percent of married white teen mothers in this age
Longitudinal studies following young adults as they marry, divorce, and
remain single indicate that marriage boosts mental and emotional well-
being for both men and women.
We focus on maternal depression
because it is both a serious mental health problem for women and a
serious risk factor for children.
Not only are single mothers more likely
to be depressed, the consequences of maternal depression for child
well-being are greater in single-parent families, probably because single
parents have less support and because children in disrupted families
have less access to their (nondepressed) other parent.
One study found that single mothers who are no longer in a romantic
relationship (of any kind) with their child’s father one year after the
birth exhibit the most mental health problems, but even those who are
cohabiting with the father or in a romantic, non-cohabiting relationship
with the father have more mental health problems than married moth-
ers. In this study, about 29 percent of mothers who were no longer in
a romantic relationship with their child’s father report at least one mental
health problem, compared to 24 percent of those in a romantic, non-
cohabiting relationship, 23 percent of those in a cohabiting relationship,
and 16 percent of those who were married. These differences persisted
even after controls for relevant background characteristics.
Crime and Domestic Violence
Boys raised in non-intact families are more likely to
engage in delinquent and criminal behavior.
Even after controlling for factors such as race, mother’s education,
neighborhood quality, and cognitive ability, one recent study found that
boys raised in single-parent homes are about twice as likely (and boys
raised in stepfamilies are more than two-and-a-half times as likely) to
have committed a crime that leads to incarceration by the time they
reach their early thirties. (The study found that slightly more than 7 per-
cent of boys were incarcerated at some point between the ages of fif-
teen and thirty.)
Teens in both one-parent and remarried homes display more deviant
behavior and commit more delinquent acts than do teens whose par-
ents stayed married.
Teens in one-parent families are on average less
attached to their parent’s opinions and more attached to their peer
groups. Combined with lower levels of parental supervision, these atti-
tudes appear to set the stage for delinquent behavior.
research indicates that the link between single-parenthood and delin-
quency does not hold for African American children.
The research on cohabiting families and youth crime and delinquency
is still in its infancy. Nevertheless, studies indicate that adolescents in
cohabiting families are more likely to engage in delinquent behavior, to
cheat, and to be suspended from school.
Moreover, white and Latino
adolescents in cohabiting households were more likely to have behav-
ioral problems than adolescents living in intact, married households and
adolescents living in single-mother households.
One reason that teens
in cohabiting households appear to do worse than teens living in single-
parent homes is that cohabiting households are usually led by their
mother and an unrelated male. Such boyfriends are more likely to be
abusive than a married father, and they are also more likely to compete
with the child for the attention of the mother.
Family transitions are also related to increases in delinquency among
adolescents. Specifically, moving from a two-biological parent family to
a single-mother family and moving from a single-mother family to either
a cohabiting or married stepfamily is associated with an increase in
delinquency for adolescents. However, moving to a single-mother family
from a married or cohabiting stepfamily does not appear to matter, nor
does moving from a cohabiting stepfamily to a married stepfamily. In
other words, children who transition out of a stable, intact, married
family are more likely to engage in delinquent behavior.
Marriage appears to reduce the risk that adults will be
either perpetrators or victims of crime.
Overall, single and divorced women are four to five times more likely
to be victims of violent crime in any given year than are married
women. Single and divorced women are almost ten times more likely
than are wives to be raped, and about three times more likely to be the
victims of aggravated assault. For instance, the U.S. Department of
Justice estimates that the violent victimization rate was 17 per 1000 mar-
ried women compared to more than 60 per 1000 single and divorced
women in 1992–1993. Similarly, compared to husbands, unmarried men
are about four times as likely to become victims of violent crime.
Marriage also plays a crucial role in reducing male criminality.
of five hundred chronic juvenile offenders found that those who mar-
ried and enjoyed high-quality marriages reduced their offense rate by
two-thirds, compared to criminals who did not marry or who did not
establish good marriages.
Research by sociologist Robert Sampson
indicates that murder and robbery rates in urban America are strongly
tied to the health of marriage in urban communities. Specifically, he
found that high rates of family disruption and low rates of marriage
were associated with high rates of murder and robbery among both
African American and white adults and juveniles.
In his words,
“Family structure is one of the strongest, if not the strongest, predictor
of variations in urban violence across cities in the United States.”
Another recent study comes to a similar conclusion, claiming that the
difference in family structure between whites and blacks is one of the
most consistent explanations for the black-white homicide gap.
Marriage also reduces criminality in the Netherlands, indicating the
effect is not unique to the American context.
Other research indicates
that declines in marriage rates among working-class and poor men in
the 1970s drove crime rates markedly higher in that decade. The rea-
son? Married men spend more time with their wives, who discourage
criminal behavior, and less time with peers, who often do not.
of the most rigorous research on the causal relationship between mar-
riage and crime finds that marriage reduces the odds of a man com-
mitting a crime by about 35 percent.
Married women appear to have a lower risk of experi-
encing domestic violence than do cohabiting or dating
Domestic violence remains a serious problem both inside and outside
While young women must recognize that marriage is not a good strategy
for reforming violent men, a large body of research shows that being
unmarried, and especially living with a man outside of marriage, is asso-
ciated with an increased risk of domestic abuse.
One analysis of the
National Survey of Families and Households found that cohabitors were
over three times more likely than spouses to say that arguments became
physical over the last year (13 percent of cohabitors versus 4 percent of
spouses). Even after controlling for race, age, and education, people
who live together are still more likely than married people to report vio-
Mothers of infants likewise report higher incidence of
partner violence when they are either cohabiting or in a non-cohabiting
During young adulthood, however, when mar-
riage is less normative and dating more so, there does not appear to be
differences in relationship violence between marrieds and daters. Even
so, the difference between marrieds and cohabitors persists for young
Another study of domestic violence among African
Americans found that African American women were more likely to be
victimized if they were living in neighborhoods with higher proportions
of cohabiting couples.
Overall, as one scholar sums up the relevant
research, “Regardless of methodology, the studies yielded similar results:
Cohabitors engage in more violence than do spouses.”
Selection effects play a powerful role. Women are less likely to marry,
and more likely to divorce, violent men. So, one reason that women in
cohabiting relationships are more likely to have a violent partner is that
cohabiting women in nonviolent relationships are more likely to move
into marriage, whereas cohabiting women in violent relationships are
less likely to move on to marriage; this means that the most violent rela-
tionships are more likely to remain cohabiting ones.
suggest that the greater integration of married men into the community,
and the greater investment of spouses in each other, also play a role.
Married men, for example, are more responsive to policies such as
mandatory arrest policies, designed to signal strong disapproval of
A child who is not living with his or her own two married
parents is at greater risk of child abuse.
Children living with single mothers, mother’s boyfriends, or stepfathers
are more likely to become victims of child abuse.
Children living in
single-mother homes have increased rates of death from intentional
Another national study found that 7 percent of children who
had lived with one parent had experienced sexual abuse, compared to
4 percent of children who lived with both biological parents, largely
because they had more contact with unrelated adult males.
research found that, although boyfriends contribute less than 2 percent
of nonparental childcare, they commit half of all reported child abuse
by nonparents. The researcher concludes that “a young child left alone
with a mother’s boyfriend experiences elevated risk of physical
A recent federal report on child maltreatment found that
“[c]hildren living with two married biological parents had the lowest rate
of overall Harm Standard maltreatment, at 6.8 per 1,000 children,”
whereas “[c]hildren living with one parent who had an unmarried partner
in the household had the highest incidence of Harm Standard maltreat-
ment (57.2 per 1,000).”
Another study focusing on fatal child abuse in
Missouri found that preschool children were 47.6 times more likely to
die in a cohabiting household, compared to preschool children living in
an intact, married household.
Stepfathers also present risks to children. As psychologists Martin Daly
and Margo Wilson reported, “Living with a stepparent has turned out
to be the most powerful predictor of severe child abuse yet.”
have found that young children in stepfamilies are more than fifty
times more likely to be murdered by a stepparent (usually a stepfa-
ther) than by a biological parent.
One study found that a preschool-
er living with a stepfather was forty times more likely to be sexually
abused than one living with both of his or her biological parents.
There is a growing marriage gap between college-edu-
cated Americans and less-educated Americans.
As late as the 1970s, the vast majority of adult Americans were living in
an intact marriage, and almost nine in ten children were born into mar-
ried families. No longer. Now, less than half of adults are married, and
almost half white high-school educated Americans.
nation’s retreat from marriage has dramatically reshaped the nature of
adult life, and the context of family life for children.
But this retreat from marriage has hit poor, working-class, and
minority communities with particular force. By contrast, marriage
trends among more educated and affluent Americans have largedly
stabilized or taken a turn for the better. For instance, nonmarital child-
bearing rose more than six-fold from 5 percent in 1982 to 34 percent
in 2006–2008 among white high-school educated Americans. Over this
same period, it did not rise at all for white college-educated
Americans, among whom only 2 percent of children were born ou
tside of marriage in the 1980s and the 2000s. Similarly, over this same
period, family instability rose among Americans who did not have col-
lege degrees, but fell among college-educated Americans. Since 1982,
the percentage of fourteen-year-olds living with both of their parents
has declined for children living with parents who do not have college
degrees, while it has increased for children whose parents have college
Thus, in the United States today, there is a growing marriage gap such
that the educated and the affluent are enjoying more stable and high-
quality marriages, and the less educated and less affluent are experi-
encing lower-quality and less stable marriages. Indeed, poor and working-
class Americans are increasingly foregoing marriage entirely, opting
instead for cohabiting unions that often do not serve them and their
children well over the long term.
The growing marriage gap is troubling for at least two reasons. It
leaves working-class and poor adults more distanced from an institu-
tion that has historically lent purpose, meaning, responsibility, mutual
aid, and a sense of solidarity to the lives of countless men and
women. And it leaves children in poor and working-class communities
doubly disadvantaged, insofar as children in these communities have
access to fewer socioeconomic resources and fewer intact, married
ARRIAGE IS MORE THAN A PRIVATE EMOTIONAL RELATIONSHIP. It is
also a social good. This is not to claim that every person can
or should marry. Or that every child raised outside of marriage
is damaged as a result. Marriage is not a panacea that will solve all of
our social problems.
But marriage matters. Children in average intact, married families are
more likely to thrive than children in average single- and stepparent
families, and families headed by cohabiting couples. Communities
where good-enough marriages are common have better outcomes for
children, women, and men than do communities marked by high rates
of divorce, unmarried childbearing, cohabition, and high-conflict or vio-
lent marriages. Moreover, as we have seen, the benefits of a strong mar-
riage culture extend across lines of race, ethnicity, and class.
Indeed, if we adapt a public health perspective in thinking about the
effects of marriage on the commonweal, we can see that the effects of
marriage are—at the societal level—quite large. Sociologist Paul Amato
recently estimated the effects of returning marriage rates for households
with children to the level they were in 1980. This is what he found:
Increasing marital stability to the same level as in 1980 is associated
with a decline of nearly one-half million children suspended from
school, about two hundred thousand fewer children engaging in
delinquency or violence, a quarter of a million fewer children receiv-
ing therapy, about a quarter of a million fewer smokers, about
80,000 fewer children thinking about suicide, and about 28,000
fewer children attempting suicide.
So the institutional strength of marriage in our society has clear conse-
quences for children, adults, and the communities in which they live.
If policy makers are concerned about issues as varied as poverty, crime,
child well-being, rising economic inequality, and the fiscal limits of the
contemporary welfare state, they should recognize that the nation’s
retreat from marriage is closely connected to all of these issues. To
strengthen marriage, more funding is needed for research that points
the way toward new public policies, community initiatives, and public
campaigns to help strengthen marriage, particularly in minority and
low-income communities most affected by the retreat from marriage.
We also need ongoing, basic scientific research on marriage, cohabitation,
and family instability that contributes to the development of strategies
and programs that help strengthen marriage and slow the relational
merry-go-round that all too many adults and children now find them-
There is promising evidence of successful strategies,
but such strategies should continue to be informed by ongoing
We need to answer questions like the following: What are the long-term
consequences for children of growing up in increasingly unstable and
complex families? How can we prevent nonmarital childbearing and
bridge the marriage gap? How can families, marriage educators, thera-
pists, and public policy help working-class and poor parents recognize
that cohabitation does not compare to marriage when it comes to start-
ing a family? How can communities be mobilized to promote a marriage-
friendly culture? And how do we bring together those who are doing
the grassroots work of strengthening marriage with researchers and
public officials in order to create synergies of knowledge, practice, and
If marriage is not merely a private preference, but also a social and
public good, concerned citizens, as well as scholars, need and deserve
answers to these and similar questions.
FIGURE 2. PERCENT OF CHILDREN EXPERIENCING PARENTAL DIVORCE/SEPARATION AND
PARENTAL COHABITATION, BY AGE 12; PERIOD LIFE TABLE ESTIMATES, 2002-07
PARENTAL DIVORCE PARENTAL COHABITATION
Source: Kennedy and Bumpass, 2011. Data from National Survey of Family
Growth. Note: The divorce/separation rate only applies to children born to
FIGURE 1. PERCENT OF FIRST CHILDREN EXPERIENCING PARENTAL DIVORCE BY AGE 10,
BY PARENTS’ YEAR OF MARRIAGE (1960-1997)
Source: SIPP Data, 2001, 2004, and 2008. Women with premarital births excluded.
FIGURE 5. PERCENT OF CHILDREN EXPERIENCING PARENTAL SEPARATION BY AGE 12
BY MOTHER’S RELATIONSHIP STATUS AT BIRTH; PERIOD LIFE TABLE ESTIMATES, 2002-07
MARRIED MOTHER COHABITING MOTHER
Source: Kennedy and Bumpass, 2011. Data from National Survey of Family
FIGURE 6. PERCENT OF 14-YEAR-OLD GIRLS LIVING WITH MOTHER AND FATHER,
BY MOTHER’S EDUCATION AND YEAR
Source: National Survey of Family Growth, 1982 and 2006-08.
MOTHER HAD NO
MOTHER HAD HIGH
Te Witherspoon Institute is grateful to the John Templeton Foundation
and the Social Trends Institute for the ﬁnancial assistance that has made this research possible.
Te opinions expressed in this report are those of the signatories and do not necessarily reﬂect the
views of the John Templeton Foundation or the Social Trends Institute.
Marriage and the Public Good: Ten Principles
© 2008 by Te Witherspoon Institute
Tis book is the sole property of Te Witherspoon Institute. It may not be altered or edited in any way.
It may be reproduced for circulation only in its entirety, without charge. All reproductions of this book must
contain the copyright notice (i.e., “Copyright © 2008 by Te Witherspoon Institute) and this Copyright/Reproduction
Limitations notice. Please notify the Witherspoon Institute of any intentions to circulate or reproduce
this book. Tis book may not be used without the permission of Te Witherspoon Institute for
resale or the enhancement of any other product sold.
Te Witherspoon Institute
16 Stockton Street
Princeton, New Jersey 08540
This “Call to the Nation” stems in part from several consultations on marriage and
the law held at the Harvard Law School in 2004 and 2005. For their leadership and
hard work, the sponsors are grateful to Mary Ann Glendon of the Harvard Law
School and the other members of the Council on Family Law, and to the many
family and legal scholars across the country who contributed to the Statement.
The sponsors are also 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 Joshua Baker
and Dr. Bonnie Robbins are also deeply appreciated.
On the cover: The Curtain, 2005 by Brian
Kershisnik. © 2005, Brian Kershisnik. Used with
permission. For more information about Brian
Kershisnik and his work, please visit:
Layout by Josephine Tramontano.
© 2006, Institute for American Values. No repro-
duction of the materials contained herein is per-
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Institute for American Values.
For more information or additional copies, con-
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Fax: (212) 541-6665
Table of Contents
Why We Come Together..................................................................................
The Failing “Family Diversity” Model..............................................................
The Emerging Consensus on Marriage............................................................
The Failure of Family Law................................................................................
What’s Missing? Dependency, Generativity, and Responsibility....................
Evidence of Troubling Trends in Family Law..................................................
Why are Marriage and Family Law Headed in the Wrong Direction?.............
Can We Go Back?.............................................................................................
Is There a Better Way? Toward a New Working Model in Family Law...........
How Does Family Law Matter?.........................................................................
Principles of Pro-Marriage Legal Reform: Six Criteria.....................................
Appendix: Strengthening Marriage in Family Law: Proposals...................................
OW SHOULD family law treat marriage? In this report, a group of family schol-
ars and legal scholars come together to acknowledge some key propositions
about marriage and family law in the United States.
Marriage is a key social institution, with profound material, emotional, and social
consequences for children, adults, and society. As marriage weakens, fewer men are
committed to family life, more women are saddled with the unfair burdens of par-
enting alone, and children’s ties to both their parents (especially fathers) are
weakened. Communities face increasing social and economic problems.
The most important benefits of marriage are not the sole creation of law. Social science
evidence strongly suggests the prime way that marriage as a legal institution protects
children is by increasing the likelihood that children will be raised by their mother
and father in lasting, loving (or at least reasonably harmonious) family unions.
Marriage in any important sense is not a creation of the State, not a mere creature
For marriage to create these benefits, it must be more than a legal construct. Creating
a marriage culture that actually does protect children requires the combined
resources of civil society—families, faith communities, schools, and neighbor-
hoods—public policy, and the law in order to channel men and women towards
loving, lasting marital unions. In recent years more Americans, and more family
scholars, are taking marriage seriously.
Unfortunately, the recent trend in family law as a discipline and practice has been
just the opposite. Family law as a discipline has increasingly tended to commit two
serious errors with regard to marriage: (a) to reduce marriage to a creature of statute,
a set of legal benefits created by the law, and (b) to imagine marriage as just one of
many equally valid lifestyles. This model of marriage is based on demonstrably false
and therefore destructive premises. Adopting it in family law as a practice or as an
academic discipline will likely make it harder for civil society in the United States to
strengthen marriage as a social institution.
As scholars and as citizens, we recognize a shared moral commitment to the basic
human dignity of all our fellow citizens, black or white, straight or gay, married or
Marriage and the Law
A Statement of Principles
unmarried, religious and non-religious, as well as a moral duty to care about the
well-being of children in all family forms. But sympathy 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.
We do not all agree on individual issues, from the best way to reform unilateral
divorce to whether and how the law should be altered to benefit same-sex couples.
We do agree that the conceptual models of marriage used by many advocates are
inadequate and thus contribute to the erosion of a marriage culture in the United
States. We seek to work together across the divisive issue of gay marriage to affirm
the basic importance of marriage to our children and to our society. We call on all
the makers of family law—legislators, judges, the family law bar, and legal scholars
who create the climate in which other players operate—to develop a deeper under-
standing of and commitment to marriage as a social institution.
A prime goal of marriage and family law should be to identify new ways to support
marriage as a social institution, so that each year more children are protected by the
loving marital unions of their mother and father.
I. Why We Come Together
[Marriage] is something more than a mere contract.... It is an
institution, in the maintenance of which in its purity the public is
deeply interested, for it is the foundation of the family and of society,
without which there would be neither civilization nor progress.
—Justice Stephen Johnson Field, Maynard v. Hill, 125 U.S. 190, 210-
What if statements like these, which to modern ears sometimes sound like mere plat-
itudes, turn out to be true? 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
How then should law and society treat marriage?
We are legal scholars, family scholars, lawyers, and reformers who come together to
affirm a large and serious vision of the significance of marriage in American society
and in American law.
Many of us have devoted substantial parts of our professional and public lives to
addressing the consequences of family fragmentation and fatherlessness for children,
for adults, and for the larger community. We are deeply committed to the moral prin-
ciple of equal regard between men and women, and of marriage reforms that are
consistent with the equal dignity of both genders. We are especially concerned with
protecting adults and children threatened by family violence, and with reducing
destructive conflict between parents. We gladly acknowledge the importance of
additional social and legal institutions for protecting children, such as adoption, and
the obligations of a good society to care about children in all family forms, traditional
or non-traditional. We come together to affirm seven great truths about marriage and
Marriage and family law is fundamentally oriented towards creating and
protecting the next generation. Marriage serves many social purposes,
including meeting adult needs for love and intimacy. The classic goods and goals
of marriage include love, fidelity, sexual satisfaction, and mutual support, as well
as the creation and care of children.
Marriage is an important institution for
adults, satisfying the yearning for companionship and creating a social ecology
that helps men and women bridge the sex divide. Equality, intimacy, and benefits
for adults are all important. But these adult needs cannot displace marriage’s
central role in creating children who are connected to and loved by the mother
and father who made them.
The primary way that marriage protects children is by increasing the likeli-
hood that a child will know and be known by, love and be loved by, his
or her mother and father in a single family union. The primary benefits of
marriage for children, therefore, are not a set of legal incidents that the law can
confer upon other family structures by court order or legislative decree. The law
of marriage protects children to the extent that it succeeds in getting men and
women to have and raise their children together. Because women are connected
to their children naturally, through the process of gestation and birth, marriage is
especially important for effectively connecting children to fathers, not only satis-
fying more children’s longing for a loving father, but creating more equal distri-
bution of parenting burdens between men and women.
Marriage is first and foremost a social institution, created and sustained by
civil society. Law sometimes creates institutions (the corporation is a prime mod-
ern example). But sometimes the law recognizes an institution that it does not and
cannot meaningfully create. No laws, and no set of lawyers, legislators, or judges,
can summon a social institution like marriage into being merely by legal fiat.
Marriage and family therefore can never be reduced to a legal construct, a mere
creature of the state. Faith communities play a particularly powerful role in sus-
taining marriage as a social institution. The attempt to cut off “civil marriage” from
“religious marriage”—to sever our understanding of the law of marriage from the
traditions, norms, images, and aspirations of civil society that give marriage real
power and meaning—is in itself destructive to marriage as a social institution.
The law’s understanding of marriage is powerful. Legal meanings have
unusually powerful social impacts. People who care about the common good,
therefore, need to take seriously the potential consequences of dramatic legal
changes in marriage and family law.
“Neutrality” is rarely an option.
government intervenes in important social debates, from no-fault divorce to
same-sex marriage, the law privileges its own viewpoint and has the power to
affect the culture of marriage as a whole, often in ways few intend or foresee.
Marriage is an irreplaceable social good. Marriage is more than a values issue.
Irreplaceable goods—equality of opportunity, the prevention of poverty, the well-
being of children, the equal dignity of men and women, and the transmission of
American civilization into the future—are at stake in the marriage debate. The
well-being of society and children depends on the health of our marriage culture.
High rates of divorce, unmarried childbearing, as well as violent or high-
conflict marriages, hurt children. An abundance of social science evidence
shows that all three of these forms of family breakdown hurt children. One key
purpose of marriage is to prevent the damage that occurs to children when their
mothers and fathers fail to build decent, average, good-enough, lasting, loving
A good society cares about the suffering of children. Children are
resilient and can become functioning, loving, successful adults in a number
of family forms. But the resilience of children is no good excuse for moral
callousness on the part of parents or society. A good society does not ignore
conditions that create unnecessary suffering for children on the grounds that
children can overcome difficulties. In a good society, adults seek to shield
children from damaging threats, pain, and suffering, even when doing so
requires assuming greater burdens and making significant sacrifices for the
Out of these seven truths comes our shared commitment:
A major goal of marriage and family law should be supporting civil
society’s efforts to strengthen marriage, so that more children are
raised by their own married mother and father in loving, lasting
II. The Failing “Family Diversity” Model
ANY RESPECTED and influential voices in family law, as we lay out below,
reject the idea that law and society should support and affirm marriage,
arguing instead for a family diversity model in family law.
What is the family diversity model? It is a normative moral commitment to the idea
that no family form is superior to any other family form. The family diversity model
transforms family fragmentation from a social problem into a sign of progress. Its
advocates say that neither law nor society should prefer any one kind of family struc-
ture over any others. In the family diversity model, marriage is not the preferred con-
text for childraising, but one of many possible, equally approved family forms adults
ought to choose freely, without social support or censure.
Professor Katherine Bartlett, for example, one of the “reporters” (or drafters) of the
American Law Institute’s Principles of the Law of Family Dissolution, distills the moral
and social argument made by family diversity advocates in a recent essay entitled
Saving the Family from the Reformers.
Her work in family law, she says, is driven
by “the value I place on family diversity and on the freedom of individuals to choose
from a variety of family forms....”
But what happens to children when adults claim the right to choose for themselves
from a variety of family forms? Two generations ago, Americans advocating the
family diversity model as a moral ideal may not have known the consequences of
increasing family fragmentation. But forty years of social experimentation has
demonstrated conclusively: the “family diversity” experiment has failed.
This is not merely our personal view. An abundance of objective social science evi-
dence now shows that marriage is not just one of many equally protective family
forms. When marriages fail, or fail to take place, children, women, men, and society
When men and women fail to get and stay married, children are placed at risk.
Children raised outside of intact marriages have higher rates of poverty, mental ill-
ness, teen suicide, conduct disorders, infant mortality, phys-
ical illness, juvenile delinquency, and adult criminality. They
are more likely to drop out of school, be held back a grade,
and launch into early and promiscuous sexual activity, lead-
ing to higher rates of sexually transmitted diseases and early,
unwed parenthood. After a broad and vigorous scientific
debate we now know that, as the nonpartisan child-research
organization Child Trends recently put it, “Research clearly
demonstrates that family structure matters for children.” Of the family structures that
have been well-studied:
“the family structure that helps children 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.”
The retreat from marriage hurts women, as well as children. As marriage
weakens, the practical result is not greater egalitarianism, but widespread gender
inequality, as women disproportionately shoulder the costs and burdens of raising
Divorce or legal separation can provide important protections for
women, as well.
Adequate child support and other appropriate supports for single
mothers are important. But neither a government check nor a child support check
offers children or their mothers the same benefits as an intact, loving family.
High rates of family fragmentation contribute to a broad array of social
problems for communities and taxpayers, including increasing rates of poverty,
crime, juvenile delinquency, substance abuse, teen pregnancy, and other social
We are concerned first about the suffering and risk to children whose
parents part. But because marriage is an important generator of human and social
capital, we are also concerned with the ways that adults as well as whole commu-
nities suffer when a marriage culture frays.
The decline of marriage creates serious inequalities of opportunity, affecting
poor children and racial minorities disproportionately. Marriage is a wealth-building
institution, a profound source of social and human capital.
Today many American
children, through no fault of their own, are deprived of the significant social, edu-
cational, economic, spiritual, emotional, and psychological advantages of functioning,
intact married families.
The “family diversity”
experiment has failed.
This is not merely our
A growing acceptance of fatherlessness as “normal” promotes a dehumanized
vision of men and masculinity. Children long for their fathers as well as their
mothers. This longing emerges so early, and for many children with such intensity,
that it is hard to dismiss as a mere “social construct.” Men also need and want a
vision of masculinity that affirms the indispensable role of good family men in
protecting, providing for, and nurturing children, as well as in caring for and about
their children’s mother. A culture that no longer expects most men to become reli-
able fathers and husbands promotes a degraded vision of masculinity to men and
about men, one deeply at odds with the human dignity of men and women and with
the needs of children.
The marriage gap promotes racial and class inequities in America. In America
today, the risks and burdens of fatherlessness and family fragmentation are not evenly
distributed across the spectrum of class and race, but are disproportionately experi-
enced by our least-advantaged children and communities. In a good society, the vast
majority of children will receive the love and care of their own mother and father,
regardless of race, income, or social class. Discrimination, unequal employment
opportunities, gender mistrust, and any other cultural, social, or economic barriers
to strengthening marriage in particular ethnic or socioeconomic communities are
important social problems to be remedied, not diversities to be celebrated.
When men and women fail to build decent marriages in which to rear their
children together, children suffer. Even when children are not “permanently dam-
aged” in ways that social scientists are equipped to measure, most children find the
separation of their mother and father from each other to be extremely painful, and
many find it has lasting consequences for their own experience of family and per-
(High conflict and violent marriages are also extremely damaging to
children.) Thus a marriage-supportive culture must find ways to reduce not only
divorce and unmarried childbearing, but also destructive conflict and family violence.
Respect for Pluralism as a Moral Value
Let us be clear on what we mean (and do not mean) by this critique of family
diversity. Respect for pluralism as a moral value is widely shared in America. It has
multiple and overlapping meanings reflecting (a) the deep value Americans place on
personal liberty; (b) our commitment to democratic dialogue that finds value in lis-
tening to others’ perspectives even where we disagree; (c) the right of minorities to
equal protection of the laws; and (d) compassion for those whose disadvantaged cir-
cumstances require special accommodation in order to participate fully in American
This rich array of meanings is not the subject of our criticism here. We agree with
family diversity advocates that all parents struggling to raise responsible children
should be respected for their efforts. We agree with family diversity advocates that
single mothers and their children need special help from families, neighbors, and the
wider community to help overcome the difficulties they face when men fail to
become responsible fathers.
But when family diversity comes to mean that society must equally affirm all the
choices adults make about family forms, regardless of how they affect children or
others, then we must respectfully, but forcefully, disagree. Breaking up a family,
for example, is not an immutable characteristic, like race or
gender; it is a choice made by at least one adult. A call to
reflection about when and under what circumstances that
choice is appropriate is not a threat to equality but part
and parcel of human dignity. Adults who make choices
that affect their children (as well as themselves and others)
have a right to more than “happy talk” that uncritically sup-
ports their choice, whatever they choose to do. They, like
all of us, deserve to live in a society which engages in compassionate, morally seri-
ous, and intellectually credible discussion about when and how adults’ choice to
divorce or have children outside of marriage can hurt children, men and women,
Family diversity advocates sometimes imply that we may not speak about the better
performance of some family forms than others for children because hearing that truth
may make some of us uncomfortable with choices we have made. When family
diversity moves from a principle of compassion for those in difficult circumstances,
to positioning itself as a core moral ideal for family life, it fundamentally asks law
and society to take the side of unencumbered adult individualism over the needs of
our own children. Compassion for adult feelings cannot trump the needs of children
or the demands of truth.
The good society reaches out to children in all family forms. A good society protects
children from the consequences of parental irresponsibility and seeks positive means
(including adoption) to provide for children whose biological parents fail them. But
a good society equally never seeks deliberately to create conditions that deprive a
child of his or her natural mother and father, or licenses adult irresponsibility towards
the children men and women make.
We recognize that one or both adults can conduct their marriages so badly that children
are better off if parents part. We recognize, too, that human beings are resilient, that
children raised outside of intact marriages sometimes can and do surmount the
difficulties and grow to become loving, functional, and successful adults. But the
alleged resilience of children is no good excuse for moral callousness on the part of
parents or society. Adults in a good society have and feel a powerful moral obligation
to protect their own children from damaging suffering and risk, even when doing so
requires assuming additional risks, deprivations, and burdens themselves.
Compassion for adult
feelings cannot trump the
needs of children or the
demands of truth.
When it comes to marriage, we are hopeful that truth and compassion can both pre-
vail. We can respect all families struggling to raise decent children, even while
acknowledging and striving towards an ideal in which each year more children are
born to and raised by their own mother and father joined in a lasting, loving marital
union, one that is premised in the first instance on innate human dignity, one that is
safe from family violence and marked by equal regard between husbands and wives.
III. The Emerging Consensus on Marriage
N THE LAST DECADE we have witnessed many promising signs of a cultural renew-
al around marriage. Americans have responded to the growing awareness of the
social problems created by rising rates of family fragmentation in a characteristi-
cally American way: by social learning, reform, and renewal.
These hopeful signs include: a broad consensus of scholars across ideological lines
acknowledging the important role marriage plays in protecting the well-being of
modest declines in divorce over the last twenty years;
proval of divorce among young people (many of whom are intimately familiar with
its effects on children);
an increase in the number of African American children
living with married parents;
an increase in the number of children living with both
and an increased commitment among married couples to per-
manence (and greater happiness) than found among married people 20 years ago.
We recognize that many factors besides attitudes and values affect family formation
behavior. We know these hopeful signs for marriage renewal are only preliminary and
may prove fleeting. We know that other indicators suggest that the marriage crisis is far
But as Americans have increasingly recognized the importance of lasting
marriages, more Americans are also making renewed efforts to strengthen marriage.
To succeed in this great task, all the custodians of our marriage traditions—families,
faith communities, marriage experts, educators, therapists, and other parts of civil
society—must work together to transmit a deeper, richer, and more effective marriage
culture to the next generation. Among these important custodians of our marriage
tradition we include the makers of family law: judges, legislators, the family law bar,
and the academy.
IV. The Failure of Family Law
N THE MIDST of these hopeful signs of social renewal, we call attention to an
increasingly disturbing trend: As scholars in other disciplines come to shed
increasing light on the importance of marriage as a key social institution, family
law as a discipline is moving in the opposite direction, embracing family diversity as
the moral ideal which should undergird family law. Even as American society in gen-
eral begins to refocus on how marriage can better serve the needs of children, much
of family law as a discipline and practice remains preoccupied with the sexual choices
and rights of adults.
This embrace of family diversity as our core social and legal ideal make it increasingly
likely that family law, as a practice, will make it harder for Americans to do the
critical task of protecting children by strengthening marriage.
We seek in this statement to investigate the reasons for this
failure of family law, to analyze why so few of the legal cus-
todians of marriage have integrated new scholarly evidence
on the importance of marriage into their work, and to forge
a new consensus about the basic conceptual principles that
underlie marriage and family law.
We do so recognizing that basic principles are but one tool used in evaluating
specific family laws and possible family law reforms. We do not mean to foreclose
important debates on how family law can best address unilateral divorce, encour-
age marriage, support ties between parents and children, reduce domestic abuse,
or address the new issue of same-sex unions. We do not all necessarily agree on
the specifics of various proposed legal reforms. But we do agree that the concep-
tual framework being promoted by the official custodians of family law—in the
academy, the bar, and in many recent judicial decisions—is an impoverished one
that needs to be changed if the law is going to support families and children,
rather than undermine society’s ongoing efforts to help children and strengthen
We gather together in particular to call attention to two large and important ideas:
Marriage is fundamentally a social institution, shaped by civil society.
Marriage cannot be created by government. Marriage is not merely a legal con-
struct, and the authors of family law go wrong when they speak, act, and legis-
late as if marriage were a creature of the state, no more than the sum of its legal
incidents. Marriage is in the first instance a moral bond between two individuals.
As a social institution, it is profoundly a product of civil society, rooted in and
responding to persistent facets of human biology, in which government and law
play a crucial, but only a supporting role.
Our social safety net is primarily social. Marriage’s existence in anything but a
nominal sense depends on the combined efforts of families, friends, and faith
communities, and on the efforts of the “custodians” of the marriage tradition, old
and new: clergy, therapists, counselors, and family scholars. One cannot create a
social institution like marriage simply by passing laws or ordering it into being.
Much of family law
remains preoccupied with the
sexual choices and
rights of adults.
Yet the mere fact that the law alone cannot create marriage does not make family
law irrelevant or negligible. Good family law does play a role in helping civil
society to sustain marriage. Bad law can surely undermine these efforts. Getting
the law wrong has real consequences for marriage (as in other areas of civil soci-
ety or the economy that are touched by law). In order to do their job properly,
makers of family law must become more knowledgeable about and respectful
toward the underlying social institution that they are attempting to regulate. The
law must view itself as a collaborative player rather than a dominant hegemon in
marriage and family life.
In family law, the interests of children should come first. Why? Partly
because children are vulnerable dependents whose protection by government
and third-parties should trump adult agendas of right or left.
But children’s interests come first in family law for another key reason as well.
Family, as a social institution, is in a basic sense profoundly “about” (though not
limited to) children. Families are the means through which we make the next
generation, transmitting our society to the future. Marriage transforms biologically
unrelated adults into kin, jointly committed to caring for any children they have
(or adopt). If the law is to fulfill its crucial role in helping sustain this social insti-
tution, the custodians of marriage and family law (judges, scholars, lawyers, and
legislators) cannot lose sight of the one crucial and irreplaceable social function
of marriage and family: encouraging men and women to come together to give
themselves to the next generation.
V. What’s Missing? Dependency, Generativity, and
N RECENT YEARS, the story of the law has changed in ways profoundly destructive
to the interests of children, of women who care for them, and of men who wish
to be dependable family men. (For examples, see “Evidence of Troubling Trends
in Family Law,” Section VI, infra.) Although there are dissenters (and arguably an
the story of marriage currently embedded in our family law is
largely of two rights-bearing individuals seeking personal satisfaction and making
What’s missing from this current legal story of marriage? Three large human realities:
dependency, generativity, and responsibility.
The problem of dependency (for both the old and young) is particularly acute today.
Changes in demography and social roles mean that there are large increases in
dependency needs at precisely the same time that supportive institutions (such as
marriage) are weakening. An aging population (an increase in the proportion of
older people to younger people in society), in particular, threatens to challenge the
capacity of other institutions—the neighborhood, faith communities, and the state—
to support dependency.
Re-imagining family law as the story of rights-bearing individuals making choices
removes from family law the very core of family life, with
the obligations to connection and caring that arise from
relatedness, not merely personal choice. Not all familial obli-
gations are also legal ones. But legal discourse that directly
or indirectly seeks to imagine the family as a series of close
personal relationships collapses the distinction between
elective affinities and family obligations, between friends
and family, between those we help because we want to, and
those we want to help because they belong to us.
When men and women enter sexual unions, one potential result is children. Crafting
marriage and family as the story of adult rights to diverse choices radically subordinates
the well-being of children to the needs, desires, and tastes of rights-bearing adults.
Marriage emerged in virtually every known society to wrestle with the problematic of
fatherhood, the biologically based sexual asymmetry in which men and women jointly
have sex, but women alone bear children. The process of gestation and birth ensures
that at a minimum, the mother is around when the baby is born. But no identical bio-
logical imperative connects the father to his child, or to the mother of his children.
Marriage emerges out of the child’s need for a father and the mother’s need for a mate.
It emerges, too, out of a deep-seated longing among men to uncover a masculine role
in the drama of creating and nurturing human life, to become the kind of husband
that women want and the kind of father that children look up to. Marriage thus helps
create a greater equality between parents than nature alone can sustain.
As family law moves towards embracing a family diversity ethic as its core goal, it
begins to tell a story about marriage and family life that is radically divorced not only
from lived experience, but also from the aspirations of young people. With the
advent of unilateral divorce, for example, the story the law tells about marriage is
this: Marriage is the temporary union of two independent adults who stay together
for their own private purposes, so long as it happens to suit the interests of both
adults. The aspiration to marriage, on the other hand, includes a desire to become
the kind of human being who can be counted on by one’s spouse and by one’s
One cannot create a social
institution like marriage
simply by passing laws or
ordering it into being.
children. A family law based on a “thin” ethic of justice, in which unisex rights-
bearing individuals make choices about lifestyles, cannot serve the fullness of adult
capacities or desires, much less the needs of children whose consent is not asked or
required. Of course, such a trend in legal thinking is not universal. As the conven-
tional wisdom in family law increasingly embraces family diversity and adult sexual
liberty as core goals, many family law scholars across the ideological spectrum are
demonstrating increasing unease with the consequences for children and society,
and a renewed search for a better model for marriage and family law.
VI. Evidence of Troubling Trends in Family Law
Exhibit A: The 70s Divorce Revolution
In the 1970s and early 1980s, nearly every state in the union moved towards some
form of unilateral no-fault divorce, and they did so with very little public debate, or
attention to the consequences for children. At the 1970 meeting of the National
Conference of Commissioners on Uniform State Laws, in an extended discussion of
divorce law, the commissioners quickly batted aside the idea that children’s interests
might differ from adults’ desires:
At this point, the Chairman consulted an expert Reporter...who
added summarily: “[W]hile the studies are fairly recent and there
aren’t a great many of them, what studies there are which have
followed up children of divorce suggest that children of divorced
parents make out better on every relevant criterion...than do the
children of undivorced parents who label their parents’ marriages as
With the passage of time, more experience, and better social science evidence, these
sanguine views of divorce as generally beneficial to children (whenever one partner
wants out) have been replaced by more realistic views, supported by more exten-
sive scientific evidence, that acknowledge that when it comes to divorce the desires
of adults and the interests of children often diverge.
What an adult chooses is not
necessarily best for children, especially in the absence of strong social norms guid-
ing parents’ understanding of the consequences, advising when it is “okay” to
choose to divorce.
As William A. Galston has pointed out:
The benefits of no-fault divorce were immediate, especially for men
seeking an easier exit from long-established marriages. An under-
standing of the costs emerged more slowly, through painful experience
and the gradual accretion of research.
Yet many current debates in marriage and family law disturbingly recapitulate this
easy equation of the interests and desires of adults and the needs of children. The
assumption that all family forms adults may choose are equally protective of children
has proven dangerously false. The same mistake ought not be repeated in contem-
porary family law debates.
Exhibit B: ALI and Family Law Scholarship
The assumption that marriage is just one of many equally affirmed family forms now
permeates much family law scholarship.
In the summer of 2000, writing in Family Law Quarterly, distinguished family law
scholar Harry D. Krause put it this way: “A pragmatic, rational approach would ask
what social functions of a particular association justify extending what social bene-
fits and privileges. Marriage, qua marriage, would not be the one event that brings
into play a whole panoply of legal consequences.”
Speaking about tax laws that
treat married and cohabiting couples differently, he concludes: “The rational answer
seems clear: Married and unmarried couples who are in the same factual positions
should be treated alike.”
Similarly, in the Principles of the Law of Family Dissolution, the American Law
Institute declares that our society has a fundamental commitment to “family diversity.”
People live in a variety of ways. The way they live is what gives rise to legal and
moral obligations. The ALI’s report also argues that the fact that a marriage has or
has not taken place should have minimal, if any, legal or social implications. In the
ALI report’s view, a legal marriage vow, a public pledge by the couple to lifelong
mutual care, sexual fidelity, financial support, and a shared family life, gives rise to
no unique expectations or obligations fundamental to the principle of social justice
in family life:
[T]he absence of formal marriage may have little or no bearing on the
character of the parties’ domestic relationship and on the equitable
considerations that underlie claims between lawful spouses at the
dissolution of a marriage.
This view of marriage as a formal relationship, rather than a social institution that
changes people and their relationships, leads the ALI to advocate for treating cohab-
iting couples, at least in some instances, as if they were married.
Exhibit C: Trends in Canadian and European Law—Equating Marriage
Several European nations and Canada, as well as Australia and New Zealand, have
recently adopted policies whereby cohabiting couples (“de facto couples”) are given
the same (or similar) legal treatment as married couples simply by virtue of having
lived together for a specified period of time.
Unlike earlier common law marriages,
such spousal status does not depend upon a couple having held themselves out as
a married couple, or even having made a private marriage commitment, but instead
arises simply out of the extended cohabitation.
Blurring the legal boundaries
between the committed and less committed relations makes it harder for the com-
munity to recognize who is married, and for married couples to signal to one another
their own commitment.
Exhibit D: The Legal Debate about Marriage and Same-Sex Unions
We do not all agree substantively on the issue of whether the legal definition of
marriage should be altered to include same-gender couples. Some of us are inclined
to favor it, others to oppose it. Some of us are uncertain and concerned about how
to weigh or balance the interests involved, from the well-being of children to the
legitimate needs of gay and lesbian people.
We do agree, however, that the basic understanding of marriage underlying much of
the current same-sex marriage discourse is seriously flawed, reflecting all the worst
trends in marriage and family law generally. It is adult-centric, turning on the rights of
adults to make choices. It does not take institutional effects of law seriously, failing to
treat with intellectual seriousness any potential consequences that changing the basic
legal definition of marriage may have for the children of society. In many cases it
directly or indirectly seeks to disconnect marriage from its historic connection to pro-
creation. Sadly, an attack on the idea that family structure matters now forms a part of
some advocates’ case for same-sex marriage in both the courts and the public square.
We invite advocates of same-sex marriage who genuinely believe that two parents are
better than one to develop public arguments for same-sex marriage that do not dispar-
age connecting mothers and fathers to their children as an important social norm.
In the very first U.S. court decision favoring same-sex marriage (Baehr v. Lewin), for
example, the high court of Hawaii declared, “This court construes marriage as ‘“a part-
nership to which both partners bring their financial resources as well as their individ-
ual energies and efforts.”’” Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993). The highest
judicial authority in the state thus produced a definition of marriage which, as one
legal scholar has noticed, “is virtually indistinguishable from the definition one might
accord a business partnership. . . . Indeed, it could embrace nearly all forms of col-
The Hawaii Supreme Court is not, of course, alone. Numerous
legal scholars in recent times have advanced or assumed this view of marriage.
Courts that have moved to same-sex marriage display a distressing tendency to first
reduce marriage to a legal construct, unrelated to any natural, biological, or sexual
realities, such as the generation of children or the gender asymmetry in parenting.
In the Massachusetts same-sex marriage ruling, Goodridge v. Department of Public
Health, the Court began its constitutional analysis with the statement, “We begin by
considering the nature of civil marriage itself. Simply put, the government creates
Similarly a recent federal trial court opinion striking down
Nebraska’s state marriage amendment described marriage baldly as a “creature of
Courts have by no means uniformly accepted this relatively novel view of marriage,
or rejected the importance of procreation and family struc-
ture to the intrinsic purposes of marriage.
court decisions in Washington and New York demonstrate
renewed respect for this understanding.
To frame the same-gender marriage issue as exclusively
about gay and lesbian civil rights fails to take seriously the
issues at stake. Many of us believe that same-sex marriage
may offer important potential goods, from increasing stability
for children raised by parents in same-sex partnerships, to
greater social attention toward the legitimate needs of gay and lesbian people. But
we recognize that the question of whether and how altering the legal meaning of
marriage from the union of male and female to a unisex union of any two persons
will change the meaning of marriage itself is a critical question, which serious people
must take seriously, and about which Americans of good will may and do disagree.
VII. Why are Marriage and Family Law Headed in the
S AMERICA IN GENERAL and other scholarly and intellectual disciplines in partic-
ular have moved towards a deeper understanding of and support for marriage
as a social institution, why has much of family law moved in the opposite
A. “Building a House in a Hurricane”
One reason that trends in marriage and family law have been less than ideal is that
it is hard to build a house in a hurricane. The last forty years have seen dramatic
changes in social, sexual, and family mores. When social mores are changing rapidly,
it may be particularly difficult for experts to perceive, much less enact, the kind of
legal reforms that would be most supportive of the interests of children and society
as a whole.
The law must adapt to social change. But the judges and legislators who make family
law, and the legal scholars who create the climate of legal opinion which influences
judges and legislators, must exercise more caution about building houses in hurricanes,
The basic understanding of
marriage underlying much of
the current same-sex
marriage discourse is
lest they inadvertently institutionalize and thereby perpetuate potentially harmful
Today, as the hurricane subsides (i.e., as the divorce rate declines and unmarried
childbearing has stopped accelerating as rapidly as it did in the 1970s and 1980s), is
a particularly apt moment to survey the damage, and to reassess the goals of family
law, and the means available at law to support these goals.
B. “Too Few Players at the Table”
“U.S. law is not handed down from on high even at the U.S. Supreme Court,’’ U.S.
Supreme Court Justice Stephen Breyer said recently, “The law emerges from a
conversation with judges, lawyers, professors and law students. . . .”
There is much truth in this claim. But one of the troubles with marriage and family
law is that, when it comes to understanding and making wise law for our most basic
social institution for protecting children, it is not good enough to have a conversation
that takes place only between lawyers, judges, professors, and law students. The
conversation from which the law emerges needs to include many more players, who
are far more knowledgeable about the social institution called marriage that the law
In particular, the legal discourse surrounding marriage and family law needs to
incorporate the knowledge and insights of other custodians of the marriage tradition,
including the emerging consensus among family scholars on the importance of
marriage for child well-being.
C. “The Skewed Perspective of the Big Divorce Bar”
There is nothing nefarious or unethical about high-powered divorce lawyers
becoming involved in crafting legal proposals. But there is something extremely
limiting—intellectually, morally, and socially—when family law discourse begins to
be dominated by the unrepresentative experience of the big divorce bar.
In the first place, highly paid divorce lawyers are paid to represent the interests
of adults, not children. Second, the big divorce bar represents primarily clients
with high incomes and major assets. In this way, the divorces they handle are
extremely unrepresentative. Most adults who divorce have limited incomes and
When the big divorce bar dominates family law, the law begins to be shaped by the
most unrepresentative experience of the extremely affluent. The laws thus shaped
are then used to regulate the lives of the vast majority of Americans, who are not
rich, and of children, who are unrepresented at the bar.
Even with the best of intentions, and a broader client base, making law based on
broken and disrupted families without considering or acknowledging the effects on
all marriages represents a limited perspective. Family law today is like “Gray’s
Pathology” when it should be “Gray’s Anatomy.”
D. “The Myth of Mutual Consent”
For many years, legal debates about divorce law were
informed (or misinformed) by the “myth of mutual consent.”
Legal experts talked about no-fault divorce as if it took place
ordinarily by mutual consent, merely enabling couples who
wished to divorce to do so with a minimum of acrimony or
The reality of divorce in America today is that in the major-
ity of divorces, only one spouse wants to divorce.
For the law to unilaterally take
the side of this spouse is not government “neutrality.” It is to reduce, as one com-
mentator recently noted, the obligations of the marriage contract to the same status
as gambling debts (that is, to mere “debts of honor” unenforceable at law).
Divorce or separation can provide an escape hatch from truly horrific relationships.
But it also often breaks up families in situations where both spouses can acknowl-
edge many personal and emotional benefits of the marriage for themselves and their
If two people are determined to break up their marriage, there is little the law can
do to make them live together as a family. But the myth of mutual consent under-
writing the unilateral divorce revolution wrongly suggests that most or all divorces
today are driven by such an inexorable determination on the part of the couple.
Instead, the evidence suggests that many divorced people are deeply ambivalent
about the decision to divorce, and can imagine other outcomes that might have been
better for themselves and their children.
Part of the goal of family law should be to
encourage such imaginings when they still can do some good, to support both
spouses, not merely the one who wishes to divorce, and to therefore find concrete
ways to encourage reconciliations, where appropriate and possible, in the majority
of distressed marriages that are not violent.
VIII. Can We Go Back?
IVEN THIS CRITIQUE of current family law, should American society merely “go
back” to early forms of family law? No. We cannot “go back” and we do not
want to. Many of the changes in the culture of marriage have been good for
women, children, and society, including increasing respect for the equal dignity of
Today is a particularly apt
moment to survey the
damage, and to reassess the
goals of family law.
men and women, increased protections for victims of domestic violence committed
inside or outside of marital relationships, and greater legal protections for children
born outside of marriage.
But if we cannot go back to the mythical past, before law and culture responded to
women’s aspirations for equality, and before children were raised in large numbers
in alternative family forms, neither can we indulge in nostalgia for the 1970s, when
many educated Americans viewed anything sexually new or nontraditional as intrin-
sically progressive or life-enhancing. Having painfully learned how children, adults,
and communities suffer when marriages fall apart, or fail to take place, we cannot
go back and pretend that our current high rates of fragmented families and father-
less children represent progress, rather than a social problem to be solved.
IX. Is There a Better Way? Toward a New Working Model
in Family Law
OW DO WE move law towards a legal theory of marriage that is more respectful
toward and supportive of marriage as a social institution? We propose three
1. Marriage Is Not Merely a Legal Construct.
When it comes to economics, courts, legal scholars, judges, legislators, and other
thoughtful observers have no trouble recognizing the gap between “the law” and the
underlying social phenomenon that the law attempts to regulate. No court in
America would preface an important decision in telecom law, for example, by flatly
declaring, “Government creates the telecommunications industry,” even though the
development of this or any other industry is in part dependent on the proper struc-
turing of laws governing that industry. American legal minds understand that there
is a gap between the thing economic law regulates (e.g., productive activity) and the
law itself. Despite many disagreements about particulars, American legal minds also
understand that in the realm of economics getting the structure of law right matters.
Similarly, it is hard (as yet) to imagine a court of law declaring that it creates “civil
even though there are important laws regulating who the parent is,
and what the rights of parents are, and even though adoption can transfer the sta-
tus of motherhood to non-biological parents. The state understands very well that a
phenomenon as large and significant as motherhood cannot be reduced to a legal
construct or a creature of statute. In making laws about parenthood, the state is
regulating a key set of productive relationships that it does not and cannot create.
What does this mean in the context of the current marriage debates? A government
that understands that it does not create markets or motherhood needs to understand
that marriage cannot be reduced to a legal construct either. Marriage as a meaningful
social institution—one that makes a difference in the hearts and minds and behavior
of mothers and fathers and the wider society—is necessarily the product of civil
society: of families, faith communities, songwriters, storytellers, neighbors, and
friends, who together create a vision of what marriage means in our shared public
culture. It is family, friends, and faith communities who do the necessary and hard
work of raising children to become young men and women who respect the mar-
riage bond and at least try to live up to its demands.
This is not work that the law, alone, can do. Because mar-
riage is so intimately related to the generation of and the
protection of children, government has always been seen to
have a legitimate role in regulating the “civil effects” of mar-
The law also plays an important role in sustaining
the shared meanings and consequences of marriage. Getting
the law of marriage right therefore matters a great deal.
Part of getting marriage law right requires a renewed modesty and realism on the
part of the state, including our courts. The state cannot by itself create a marriage
that matters, one capable of constraining or channeling erotic drives of adults in
the interests of children and society. The state therefore must exercise special care
not to undermine this web of meanings sustaining our increasingly fragile marriage
The law must recognize that it is only one of many players—albeit an important
one—that together help create and sustain a marriage culture. “Civil marriage,”
absent the support of civil society, is unlikely to mean much for children or society.
Only when marriage is broadly supported by law and civil society, including but not
limited to faith communities, does it remain a powerful social institution, capable of
directing the behavior of men and women in the interests of children and society.
2. Human Nature Exists and Places Limits on What Law Can
Human nature exists and sets limits on what law can accomplish by fiat alone. In the
economic domain, it is well understood that, for example, while we may wish that
people would protect others’ property as assiduously as they protect their own, if
we make legislation based on this assumption, bad things will happen, because it is
(Explaining why, as one university president famously puts it, “Nobody
washes rental cars.”
When it comes to marriage, law must respect the reality of the ways in which
human biology, human nature, and social relationships are intertwined. We may
wish men to be, say, equally committed fathers outside of marriage as inside of
Government needs to
understand that marriage
cannot be reduced to
a legal construct.
it. We may even legally declare that children will have the same rights to their
fathers’ care and support inside and outside of marriage, but the law’s commands
alone will not make it so.
Mother and child are intimately connected by the
bonds of pregnancy and birth. Father and child are not so linked, unless culture,
law, and society conspire to transform sperm donors into true lovers and good
husbands, and thereby into reliable fathers. A good society consciously seeks to
raise boys who aspire to be good family men. The principal vehicle in our soci-
ety, and virtually every known human society, for linking fathers to their children
We support laws requiring unmarried fathers, as well as married fathers, to support
their children, financially and in other ways. We also know, from 40 years of social
experimentation, that child-support payments do not replace a loving, hands-on
dad. If we want our children to know and be loved by their fathers, law and culture
must acknowledge and respond to human sexual realities by supporting a marriage
3. Social Institutions Matter and They Matter a Great Deal.
A new respect for the idea that institutions matter permeates the field of economics
and its relationship to law. As two prominent scholars argued recently, “The central
message of the New Institutional Economics is that institutions matter for economic
Economic institutions are not created by law, although they are deeply affected by
it. Firms, markets, and contracts exist first as institutions of civil society. Their legal
treatment, however, profoundly affects the extent to which these (mostly) privately
ordered relations succeed in achieving their (partly) public goals.
Sophisticated economic thinking recognizes that contracts, for example, are not just
legal constructs, supported by legal sanctions; they are also social understandings
supported by social norms. Business people believe that, by and large, contracts are
to be honored, not only because the law will extract punishments for failing to do
so, but also because this is how honorable business people behave. These internal-
ized ideals, as well as the reputational consequences of violating business norms,
affect the way business people behave with respect to contracts. The law plays an
indispensable role in maintaining these social expectations by enforcing contracts.
But the shared understanding of the contract, and the social (and not just legal) con-
sequences of being perceived to deal in good faith, are important mechanisms for
bringing the benefits of contract to life.
Whereas many once believed that withdrawing legal regulation was all that was nec-
essary for the economy to flourish, the post-Soviet experience has taught economists
to realize that goods like the market depend on social institutions, such as social trust
and respect for the rule of law. As Furubotn and Richter conclude, “The invisible
hand, if unaided by supporting institutions, tends to work slowly and at high cost.”
If this insight is true for a purely economic institution, how much more must it be
for something as primarily and primordially social as marriage?
Judges, legislators, family law scholars, and other influential legal thinkers need to
take seriously the “institutional” effects of law on the culture
X. How Does Family Law Matter?
HY DOES the law matter? Historically in the United
States, legal scholars have focused on explaining
the power of law “from the perspective of the
In these models, the law shapes individuals’
actions by changing the structure of incentives—imposing punishments (criminal
sanctions, civil liability or penalties for marital misconduct, for example), or offer-
ing benefits. These are of course extremely important functions of law and public
But it is equally important to consider the consequences of law and legal institutions
“from the perspective of the good man,” from the role the law plays in shaping
norms, expectations, and therefore behaviors among the law-abiding. Laws do more
than punish, as Mary Ann Glendon has pointed out: “In England and the United
States the view that law is no more or less than a command backed up by organ-
ized coercion has been widely accepted. The idea that law might be educational,
either in purpose or technique, is not popular among us. . . . [L]aw is not just an
ingenious collection of devices to avoid or adjust disputes and to advance this or
that interest, but also a way that society makes sense of things.”
It is “part of a
distinctive manner of imagining the real.”
Professor Carl Schneider points to the “channeling function” of law:
By and large, then, the channeling function does not primarily use
direct legal coercion. People are not forced to marry. One can con-
tract out (formally or informally) of many of the rules underlying
marriage. One need not have children, and one is not forced to treat
them lovingly. Rather, the function forms and reinforces institutions
which have significant social support and which, optimally, come to
seem so natural that people use them almost unreflectively. It relies
centrally but not exclusively on social approval of the institution, on
social rewards for its use, and on social disfavor of its alternatives.
The law must recognize that
it is only one of many
players that together help
create and sustain a
As another family scholar recently put it, “Laws do more than distribute rights, respon-
sibilities, and punishments. Laws help to shape the public meanings of important
institutions, including marriage and family.”
Scholars who have adopted behavioral law and economics perspectives have
already explored some of the many ways that the social signals sent by law affect
generally prevailing social norms. For example, the law’s choice of default rules
affects the parties’ own perceptions of what is “fair” or “normal” when they nego-
The law sends “social signals” that affect individuals and communities that are dis-
tinct from any cost-benefit analysis individuals make about incentives or punish-
ments imposed by the law. Legal scholars widely acknowledge this phenomenon
in other contexts. For example, changes in law may trigger “informational” or
“reputational” cascades, in which Americans adopt certain beliefs because they
perceive others to acknowledge them as true, or because they perceive their
social standing will be negatively affected because of what others believe to be
true and good. The social changes in racial attitudes and values triggered by civil
rights laws, for example, represent one such phenomenon. As two scholars note:
“Laws that have produced compliance with little or no enforcement, such as those
that relegate smoking to designated areas and those that require people to clean
up after their dog, have much to do with the informational and reputational
Same-sex marriage supporters are acknowledging this same privileged power of the
law to affect social meaning when, for example, they argue (as the Goodridge court
did) that the creation of separate legal status for same-sex couples would not be the
same as marriage, even if the legal benefit structure was identical.
We may agree or disagree about the message the law would send in such
instances, but we cannot credibly act or reason as if such social signals do not
exist, or are not significant. The law’s understanding of a social institution is a
privileged and powerful one. The public, shared understanding of a basic social
institution like marriage is affected by how the law describes, understands, and
enacts marriage. Because social institutions are cognitive—they direct human
behavior by shaping shared perceptions—changing the public meaning of mar-
riage will change what marriage is and how it is experienced by every member
of the larger society.
One may see these kinds of social consequences of legal change as good, or as ques-
tionable, or as both. But to argue that these kinds of cultural effects of law do not
exist, and need not be taken into account when contemplating major changes in
family law, is to demonstrate a fundamental lack of intellectual seriousness about the
power of law in American society.
XI. Principles of Pro-Marriage Legal Reform: Six Criteria
AW AND PUBLIC POLICY have many legitimate goals, from protecting children in
alternate family forms, to promoting civility and respect for rights of individ-
uals in the public square, to encouraging equal regard between men and
women. Support for sustaining marriage is, in our view, a critical value and social
need, but we do not mean to suggest that it is the only one, or a trump card that
should settle all important conflicts of goods, or clashes of values in the public
At the same time, if supporting marriage is a purported goal of a proposed legal
change, it is important to develop principles that help us to distinguish when and
what kinds of legal and policy changes are likely to support marriage as a social
institution, and what kinds of legal changes are likely to make it more difficult for
civil society to sustain a marriage culture. In that spirit we offer the following six cri-
teria for thinking through proposals intended to support marriage.
A legal or policy reform strengthens marriage as a social institution when it:
Protects the boundaries of marriage, clearly distinguishing married
couples from other personal relations, so that people and communities can
tell who is married, and who is not.
The harder it is to distinguish married
couples from other kinds of unions, the harder it is for communities to reinforce
norms of marital behavior and the more difficult it is for marriage to fulfill its
function as a social institution.
Treats the married couple as a social, legal, and financial unit. When the
law, through the tax code or other means, disaggregates the family and treats
married men and women as if they were single, this does not represent “neutral-
ity.” Because marriage is in fact a real economic, emotional, social, parenting, and
sexual union, the law must in justice treat married couples as a unit, rather than
as unrelated individuals.
Reinforces norms of responsible marital behavior, such as encouraging per-
manence, fidelity, financial responsibility, and mutual support and discouraging
violence or destructive conflict, for example. Marriage is not merely an expres-
sive ceremony. It is a real public commitment that has content: a substantive pur-
pose and strong social norms. While civil society must do the heavy lifting in
establishing social norms surrounding marriage, law and public policy should
reinforce and support efforts to do so.
Seeks to reduce divorce, unmarried childbearing, and/or violence and
destructive conflict in marriage. The best single indicator for how well mar-
riage is faring in American society is: What proportion of American children are
being born to and raised by their own married mom and dad in a reasonably har-
Does not discourage childbearing (or adoption
) by married couples.
Children are one of the prime social goods created by marriage. Marriage as a
social and legal institution is dedicated in part to encouraging men and women
who want them to have children and raise them together.
Communicates a preference for marriage (provided it is not high-conflict
or violent) as the preferred context for childrearing, particularly to young
people who will be making the choices that affect the next generation’s well-
being. Legal changes intended to celebrate family diversity as a social ideal are
necessarily at odds with a marriage culture. Not every child has had or will ever
have the protection of a mom and dad joined in a reasonably harmonious marital
union. Support for all children is essential to a decent and just society, regardless
of whether their parents are married. But coping with family fragmentation in law
and culture is different from celebrating it. A pro-marriage reform envisions mar-
riage as a preferred social ideal, and not just one of many equally promising
lifestyles, especially for parents of children.
TRENGTHENING MARRIAGE in American society is an important social goal. As
twelve family scholars recently put it:
“Marriage is an important social good, associated with an impressively
broad array of positive outcomes for children and adults alike. Family
structure and processes are of course only one factor contributing to
child and social well-being.... But whether American society succeeds
or fails in building a healthy marriage culture is clearly a matter of
legitimate public concern.”
The law is only one tool in this larger effort at cultural renewal, but it is an impor-
tant one. Americans are a forward-looking and optimistic people. We look forward
to a broader discussion of ways that family law, as a discipline and practice, can
support Americans’ marriage dreams, so that more children are raised by their own
mothers and fathers joined in loving, lasting marriages.
Appendix: Strengthening Marriage in Family Law:
HIS IS A LIST of proposals intended to generate new discussion among state
legislators and family lawyers about ways law and public policy might
strengthen marriage in law and in society. As signers of this document, we do
not all endorse each of these reforms. We realize that the law, which has concrete
impact on real people, cannot be reduced to a “values” discussion. People of good
will who support marriage can and do disagree profoundly about particular policies
and legal approaches, including the suggestions outlined below. Continued reflection,
input, and practical experience with consequences will lead many legal and family
scholars in different directions regarding these and other pro-marriage suggestions.
We do hope, through offering concrete examples like these, to generate new attention
to the need and discussion of the best means for strengthening marriage in law and
culture, and of possible strategies for doing so.
Establish a preference for married couples in adoption law. While it may not
always be possible, and therefore should not be legally mandatory, the best interests
of a child are generally served by being raised by a married mother and father, at
least in the case of nonfamilial adoptions. Adoption exists to serve the needs of
children, not to promote adult rights to choose diverse family forms.
Offer (or mandate) a remarriage and stepfamily education workshop for cou-
ples where one or both parties have a child from a previous relationship.
Stepfamilies pose unique challenges for married couples and their children, as well
as great opportunities when they succeed. Encourage community groups (faith-
based and civic) to offer targeted help to new families in the process of blending.
Require a substantial waiting period for unilateral divorce. Create a one- or
two-year waiting period before a spouse can obtain a no-fault divorce without mutual
consent, in nonviolent marriages. Require spouses to show “good faith” efforts or
“due diligence” to save their marriages, by taking responsible steps to reconcile (in
the absence of violence).
Codify the basic obligations of marriage by statute. Marriage is created by the
freely given consent of a man and woman, witnessed by church and/or state, to
enter into a permanent sexual, financial, emotional, and parenting union. Its basic
obligations include sexual fidelity, permanence, mutual care and support of each
other and any children of their union. Require couples to sign an affidavit upon getting
a marriage license that they have read and understood these basic obligations.
Add a new goal to court-connected divorce education programs: Facilitating
reconciliations in nonviolent marriages. Half of all counties have court-connected
divorce education programs. These typically have just two goals: reducing litigation
and reducing parental acrimony. Adding a third goal of facilitating reconciliations
where possible would allow state and federal governments to work with marriage
education experts and family scholars to establish the “best practices” for programs
that achieve all three goals. Even when reconciliation is not reached, teaching
relationship skills will help co-parenting relationships and help the parties’ next
Add a marriage message to teen pregnancy prevention programs. Programs
using federal or state government funds should teach the next generation that, ideally,
you should be grown, educated, and married before deliberately seeking to get
Offer marriage education, and divorce interventions, to low-income couples.
The current administration has proposed a marriage initiative that primarily offers
relationship skills and education to low-income couples who want to marry.
Congress should expand such legislation to offer divorce interventions designed to
reduce conflict and encourage reconciliations to low-income couples, and provide
the money necessary to evaluate such programs and establish “best practices.” But
even in the absence of federal legislation, faith communities, state and local govern-
ment, and community groups should look for new ways to offer effective marriage
education and divorce interventions to low-income married couples, in order to
reduce unmarried childbearing, divorce, and high-conflict or violent marriages.
1. John Witte, Jr., The Goods and Goals of Marriage, 76 NOTRE DAME L. REV. 1019 (2001).
2. “The idea that legal rules may influence social norms is hardly new.” June Carbone, Back to
the Future: The Perils and Promise of a Backward-Looking Jurisprudence, in RECONCEIVING THE FAMILY:
CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTE’S PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION 209,
230 n.137 (Robin Fretwell Wilson ed., 2006); see also Cass R. Sunstein, On the Expressive Function of
Law, 144 U. PA. L. REV. 2021 (1996); Lawrence Lessig, Social Meaning and Social Norms, 144 U. PA. L.
REV. 2181 (1996); Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH.
L. REV. 338 (1997).
3. For example, “‘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 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 accom-
modations 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.” DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA 10
(New York: Institute for American Values) (2005).
4. “More children” does not mean all children. Nor do we mean to imply that marriage as a social
ideal justifies or requires undermining the rights of parents who are not married. Supporting marriage
does not mean legally mandating marriage for all.
5. Katherine T. Bartlett, Saving the Family from the Reformers, 31 U.C. DAVIS L. REV. 809 (1998)
(Brigitte M. Bodenheimer Memorial Lecture on the Family).
6. Id. at 817.
7. The family structures compared in the Child Trends brief include intact married families, step-
families, cohabiting families, and single-parent families. They do not include children raised by same-
8. Kristin Anderson Moore et al., Marriage from a Child’s Perspective: How Does Family Structure
Affect Children, and What Can We Do About It?, CHILD TRENDS RESEARCH BRIEF (Child Trends,
Washington, D.C.), June 2002, at 6 (available at http://www.childtrends.org/Files/MarriageRB602.pdf).
9. See, e.g., Suzanne M. Bianchi et al., The Gender Gap in the Economic Well-Being of Nonresident
Fathers and Custodial Mothers, 36 DEMOGRAPHY 195 (1999); Mary Naifeh, Dynamics of Economic Well-
Being, Poverty 1993-94: Trap Door? Revolving Door? Or Both? CURRENT POPULATION REPORTS: HOUSEHOLD
ECONOMIC STUDIES, P70-63 (U.S. Bureau of the Census, Washington, D.C.), July 1998; Ross Finnie,
Women, Men, and the Economic Consequences of Divorce: Evidence from Canadian Longitudinal
Data, 30(2) CANADIAN REV. OF SOC. AND ANTHROPOLOGY 205 (MAY 1993).
10. Margaret Brinig & Douglas Allen note that, despite the benefits of marriage for women (and
reciprocal costs of divorce), the majority of divorces are initiated by women. Margaret F. Brinig and
Douglas W. Allen, These Boots Are Made for Walking: Why Most Divorce Filers are Women, 2 AMER. L.
& ECON. REV. 126, 126-27, 129 (2000) (“Throughout most of American history, wives rather than hus-
bands have filed for divorce. The proportion of wife-filed cases has ranged from around 60% for most
of the 19th century to, immediately after the introduction of no-fault divorce, more than 70% in some
states.... What makes the high filing rate for women most puzzling, however, is that it is generally
assumed that overall husbands should be the ones most wanting out of marriage—particularly since
the introduction of no-fault divorce. This understanding results from the focus on post-divorce financial
status. Even by the most conservative accounts, the average divorced woman’s standard of living
declines from the one she enjoyed during marriage, and it declines relatively more than does the average
husband’s.... Yet women file for divorce more often than men. Not only do they file more often, but
some evidence suggests they are more likely to instigate separation, despite a deep attachment to their
children, and the evidence that many divorces harm children.”) (citations omitted).
11. See, e.g., W. BRADFORD WILCOX ET AL., WHY MARRIAGE MATTERS, SECOND EDITION: TWENTY-SIX
CONCLUSIONS FROM THE SOCIAL SCIENCES (New York: Institute for American Values) (2005); THE MARRIAGE
MOVEMENT: A STATEMENT OF PRINCIPLES 11 (New York: Institute for American Values) (2000) and cites
therein: “Divorce and unwed childbearing create substantial public costs, paid by taxpayers. Higher
rates of crime, drug abuse, education failure, chronic illness, child abuse, domestic violence, and
poverty among both adults and children bring with them higher taxpayer costs in diverse forms: more
welfare expenditure; increased remedial and special education expenses; higher day-care subsidies;
additional child-support collection costs; a range of increased direct court administration cost incurred
in regulating post-divorce or unwed families; higher foster care and child protection services;
increased Medicaid and Medicare costs; increasingly expensive and harsh crime-control measures to
compensate for formerly private regulation of adolescent and young-adult behaviors; and many other
similar costs.... [C]urrent research suggests that these costs are likely to be quite extensive.”
12. LINDA J. WAITE AND MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER,
HEALTHIER, AND BETTER-OFF FINANCIALLY (2000).
13. See, e.g., JUDITH WALLERSTEIN ET AL., THE UNEXPECTED LEGACY OF DIVORCE: A 25 YEAR LANDMARK STUDY
(2000); ELIZABETH MARQUARDT, BETWEEN TWO WORLDS: THE INNER LIVES OF CHILDREN OF DIVORCE (2005).
14. Twelve leading family scholars recently summarized the research literature this way: “Marriage
is an important social good associated with an impressively broad array of positive outcomes for chil-
dren and adults alike.... [W]hether American society succeeds or fails in building a healthy marriage
culture is clearly a matter of legitimate public concern.” WILLIAM J. DOHERTY ET AL., WHY MARRIAGE
MATTERS: 21 CONCLUSIONS FROM THE SOCIAL SCIENCES 6 (New York: Institute for American Values) (2002);
see also Kristin Anderson Moore et al., Marriage from a Child’s Perspective: How Does Family Structure
Affect Children, and What Can We Do About It?, CHILD TRENDS RESEARCH BRIEF (Child Trends,
Washington, D.C.), June 2002, at 6 (available at http://www.childtrends.org/Files/MarriageRB602.pdf).
15. Joshua R. Goldstein, The Leveling of Divorce in the United States, 36(3) DEMOGRAPHY 409-414
16. In 1977, a Gallup poll of 13 to 17 year olds found that 55 percent of teens felt it was “too
easy” to get a divorce. By 2003, the proportion had jumped to 77 percent. Heather Mason, “What Does
D-I-V-O-R-C-E Spell for Teens?” GALLUP POLL TUESDAY BRIEFING, June 17, 2003.
17. Associated Press, Married Households Rise Again Among Blacks, Census Finds, N.Y. TIMES,
April 26, 2003, at A15.
18. Perhaps the most important indicator of marriage’s health, from a child-centered standpoint,
is the proportion of children living with both biological parents in an intact, low-conflict marriage.
Between 1991 and 2001 (after years of decreases), the proportion of American children living with
both biological parents rose slightly from 61.7% in 1991 to 62.2% in 2001. Stacy Furukawa, The Diverse
Living Arrangements of Children: Summer 1991, CURRENT POPULATION REPORTS P70-38 (U.S. Bureau of
the Census, Washington, D.C.), Sept. 1994, at 3-4 (Tables 1-2); Rose M. Krieder & Jason Fields, Living
Arrangements of Children: 2001, CURRENT POPULATION REPORTS P70-104 (U.S. Bureau of the Census,
Washington, D.C.), July 2005, at 3 (Table 1).
19. Paul R. Amato et al., Continuity and Change in Marital Quality Between 1980 and 2000, 65(1)
J. MARRIAGE & FAM. 1 (2003).
20. Recent reductions in divorce have been concentrated among the college educated (Steven P.
Martin, Growing Evidence for a Divorce Divide? Education and Marital Dissolution Rates in the U.S.
Since the 1970’s (Md. Population Res. Center Working Paper, available at
http://www.popcenter.umd.edu/people/martin_steven/papers/marital_dissolutions.doc); and the latest
Census data shows that unwed childbearing, which appeared to be leveling off in the late 90s and
early 21st century, has resumed its rise. Joyce A. Martin et al., Births: Final Data for 2003, 54(2)
NATIONAL VITAL STATISTICS REPORTS 10 (Table D) (Sept 8, 2005).
21. Scholars who have become increasingly disturbed by this tendency to understand family law
through the lens of “rights-bearing adults” span the ideological spectrum. See, e.g., MARTHA ALBERTSON
FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995); MARY
ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991); BARBARA DAFOE
WHITEHEAD, THE DIVORCE CULTURE (1997); Carl E. Schneider, Moral Discourse and the Transformation
of American Family Law, 83 MICH. L. REV. 1803 (1985).
22. See DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA (New
York: Institute for American Values) (2005); Harry D. Krause, Marriage for the New Millennium:
Heterosexual, Same Sex—Or Not At All?, 34 FAM. L.Q. 271 (2000); Martha Minow, Redefining Families:
Who’s In and Who’s Out?, 62 U. COLO. L. REV. 269 (1991); Ira M. Ellman, Unmarried Partners and the
Legacy of Marvin v. Marvin: “Contract Thinking” Was Marvin’s Fatal Flaw, 76 NOTRE DAME L. REV. 1365,
23. Adoption in our society, for example, emerged as an important institution whose purpose is
to serve children’s needs, not adult interests or desires.
24. See, e.g., Marsha Garrison, Marriage Matters: What’s Wrong with the ALI’s Domestic Partnership
Proposal, in RECONCEIVING THE FAMILY: CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTE’S PRINCIPLES OF
THE LAW OF FAMILY DISSOLUTION (Robin Fretwell Wilson ed., 2006); Anita Bernstein, For and Against
Marriage: A Revision, 102 MICH L. REV. 129 (2003); Elizabeth S. Scott, Divorce, Children’s Welfare, and
the Culture Wars, 9 VA. J. SOC. POL’Y & L. 95 (2001); Robert F. Cochran, Jr. & Paul C. Vitz, Child Protective
Divorce Laws: A Response to the Effects of Parental Separation on Children, 17 FAM. L.Q. 327 (1983).
25. Helen M. Alvare, The Turn Toward the Self in the Law of Marriage and Family: Same-Sex
Marriage and its Predecessors, 16 STAN. L. & POL’Y REV. 135, 152 (2005) (quoting 2 THE DIVORCE LAW
DEBATES, TRANSCRIPTS FROM THE 1965-1973 ANNUAL MEETINGS OF THE UNIFORM LAW COMMISSION 139 (Judy
Parejko ed.) (Aug. 3, 1970) (emphasis added).
26. As Frank Furstenberg described the evolution of scholarly thinking on this issue:
It is probably true that most children who live in a household filled with continual
conflict between angry, embittered spouses would be better off if their parents split
up—assuming that the level of conflict is lowered by the separation. And there is
no doubt that the rise in divorce has liberated some children (and their custodial
parents) from families marked by physical abuse, alcoholism, drugs, and violence.
But we doubt that such clearly pathological descriptions apply to most families that
disrupt. Rather, we think there are many more cases in which there is little open
conflict, but one or both partners finds the marriage personally unsatisfying.... A
generation ago, when marriage was thought of as a moral and social obligation,
most husbands and wives in families such as this stayed together. Today, when mar-
riage is thought of increasingly as a means of achieving personal fulfillment, many
more will divorce. Under these circumstances, divorce may well make one or both
spouses happier; but we strongly doubt that it improves the psychological well-
being of the children.
FRANK F. FURSTENBERG, JR., & ANDREW J. CHERLIN, DIVIDED FAMILIES: WHAT HAPPENS TO CHILDREN WHEN
PARENTS PART 71-72 (1991).
See also Andrew J. Cherlin, Going to Extremes: Family Structure, Children’s Well-Being, and Social
Science, 36 DEMOGRAPHY 421, 427 (1999):
[T]he evidence suggests that genetic inheritance and its interaction with the envi-
ronment are part of the story but far from the whole story. Thus the lesson I draw
is that the actual effect of family structure lies between the extremes. Whether a
child grows up with two biological parents, I conclude, makes a difference in his
or her life; it is not merely an epiphenomenon. Not having two parents at home
sometimes leads to short- and long-term problems, but not all the differences we
see in outcomes are the results of family structure. Some of the differences would
have occurred anyway. Moreover, parental divorce or being born to unmarried
parents does not automatically lead to problems. Many (perhaps most) children
who grow up in single-parent families or in stepfamilies will not be harmed seri-
ously in the long term.... Growing up in single-parent family is not a sentence to
life at emotional hard labor, but it sometimes has consequences that parents would
not wish upon their children.”
Kristin Anderson Moore et al., Marriage from a Child’s Perspective: How Does Family Structure
Affect Children, and What Can We Do About It?, CHILD TRENDS RESEARCH BRIEF (Child Trends,
Washington, D.C.), June 2002, at 6 (available at http://www.childtrends.org/Files/MarriageRB602.pdf):
Research clearly demonstrates that family structure matters for children, and the
family structure that helps children 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.
27. As Andrew Cherlin notes, the social norms surrounding marriage have significantly weakened
in recent decades: “[W]hat has occurred over the past few decades is the deinstitutionalization of mar-
riage.... By deinstitutionalization I mean the weakening of the social norms that define people’s behavior
in a social institution such as marriage. In times of social stability, the taken-for-granted nature of
norms allows people to go about their lives without having to question their actions or the actions of
others. But when social changes produces situations outside the reach of established norms, individuals
can no longer rely on shared understandings of how to act.” Andrew J. Cherlin, The
Deinstitutionalization of American Marriage, 66(4) J. MARR. & FAM. 848, 848 (2004).
28. William A. Galston, Divorce American Style, 124 THE PUBLIC INTEREST 12, 13 (Summer 1996).
29. For an analysis of these trends see DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE
CRISIS IN NORTH AMERICA (New York: Institute for American Values) (2005).
30. Harry D. Krause, Marriage for the New Millennium: Heterosexual, Same Sex—Or Not At All?,
34 FAM. L.Q. 271, 276 (2000).
31. Id. at 278 (emphasis in original).
32. American Law Institute, Introduction, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND
RECOMMENDATIONS (2002). For example, certain custody rules “run counter to the commitment that this
society avows towards family diversity.” (Overview of Chapter 2, I. The Current Legal Context); Parents
have rights because in part, “Society, in turn, benefits from the diverse social fabric that is created by
the decentralized manner in which [children’s] care is provided.” (Overview of Chapter 2, I. The
Current Legal Context); One of the “principles of Chapter 2” is to “preserve the diversity of parenting
arrangements within families,” (Overview of Chapter 2, II. An Overview of the Principles of Chapter 2);
These proposed changes “help[ ] to move beyond the terms of public policy debates that posit a ‘best’
way of dividing up responsibility for children...to a legal framework focusing on the diverse circum-
stances and possibilities of each individual family.” (Overview of Chapter 2, II. An Overview of the
Principles of Chapter 2).
33. Id. at § 6.02 cmt. a (emphasis added).
34. Id. at §§ 6.01–6.06.
35. For example, the Ontario Family Law Act of 1990 defines “spouse” for purposes of support
obligations to include (in addition to the parties to a marriage) “either of two persons who are not
married to each other and have cohabited, (a) continuously for a period of not less than three years,
or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.”
R.S.O. 1990, ch. F.3, § 29. See also Nicholas Bala, Controversy Over Couples in Canada: The Evolution
of Marriage and Other Adult Interdependent Relationships, 29 QUEEN’S L.J. 41, 45-59 (2003) (describing
Canadian provincial support rules); Katharina Boele-Woelki, Private International Law Aspects of
Registered Partnerships and Other Forms of Non-Marital Cohabitation in Europe, 60 LA. L. REV. 1053
(2000) (describing legal status of nonmarital cohabitation in Europe); Bill Atkin, The Challenge of
Unmarried Cohabitation—The New Zealand Response, 37 FAM. L.Q. 303 (2003); Lindy Willmott et al.,
De Facto Relationships Property Adjustment Law—A National Direction, 17 AUSTL. J. FAM. L. 1, 2-5
(2003) (describing differences in state rules).
36. One commentator refers to this as a “conscriptive approach” to marriage-like relationships.
Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation,
52 UCLA L. REV. 815 (2005).
37. But for a dissenting view on this particular point, see ROBERT E. RODES, JR., ON LAW AND
CHASTITY 125-27 (2006).
38. See, e.g., Mary L. Bonauto, Civil Marriage as a Locus of Civil Rights Struggles, 30 HUMAN RIGHTS
3, 7 (Summer 2003) (“[C]hild-rearing experts in the American Academy of Pediatrics, the American
Psychiatric Association, and the American Psychological Association insist that the love and commit-
ment of two parents is most critical for children—not the parents’ sex or sexual orientation.”); MICHAEL
S. WALD, SAME-SEX COUPLES: MARRIAGE, FAMILIES, AND CHILDREN: AN ANALYSIS OF PROPOSITION 22–—THE
KNIGHT INITIATIVE 11 (Stanford, CA: The Stanford Institute for Research on Women and Gender & The
Stanford Center on Adolescence) (1999) (Assessing the claim that “it is better for children to be raised
by two opposite-sex married parents,” Stanford University Law Professor Michael Wald points to social
science research and concludes baldly, “[T]he evidence does not support these claims.”); Editorial, Not
Fair, Governor, BOSTON GLOBE, March 3, 2005 (“Romney has taken a page from President Bush’s illogic
by insisting that every child ‘has a right to a mother and a father,’ implying that two women or two
men could not possibly do the job. But many studies have shown that, while children fare better having
two parents, the sexual orientation of those parents is inconsequential.”).
39. Norval D. Glenn, The Struggle for Same-Sex Marriage, 41(6) SOCIETY 25 (Sept./Oct. 2004).
40. Charles J. Reid, Jr., The Augustinian Goods of Marriage: The Disappearing Cornerstone of the
American Law of Marriage, 18 BYU J. PUB. L. 449, 473-474 (2004).
41. See, e.g., Herma Hill Kay, From the Second Sex to the Joint Venture: An Overview of Women’s
Rights and Family Law in the United States During the Twentieth Century, 88 CAL. L. REV. 2017, 2089
(2000); Sanford N. Katz, Marriage as Partnership, 73 NOTRE DAME L. REV. 1251 (1998); Marjorie E.
Kornhauser, Theory Versus Reality: The Partnership Model of Marriage in Family and Income Tax Law,
69 TEMP. L. REV. 1413 (1996); Bea Ann Smith, The Partnership Theory of Marriage: A Borrowed Solution
Fails, 68 TEX. L. REV. 689 (1990); Katherine Spaht, Solidifying the ‘No-Fault’ Revolution: Postmodern
Marriage as Seen Through the Lens of ALI’s ‘Compensatory Payments,’ in RECONCEIVING THE FAMILY:
CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTE’S PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION 249
(Robin Fretwell Wilson ed., 2006).
42. Goodridge v. Dept. of Publ. Health, 798 N.E.2d 941, 954 (Mass. 2003).
43. Citizens for Equal Protection, Inc. v. Bruning, 368 F. Supp. 2d 980, 999 (D. Neb. 2005), rev’d
No. 05-2604, 2006 U.S. App. LEXIS 17723 (8th Cir. July 14, 2006).
44. See, e.g., Hernandez v. Robles, 805 N.Y.S. 2d 354 (N.Y. App. 2005), aff’d Nos. 86-89, 2006 N.Y.
LEXIS 1836 (July 6, 2006). (“The law...sets up heterosexual marriage as the cultural, social and legal
ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbear-
ing to sustain the population and society; the entire society, even those who do not marry, depends
on a healthy marriage culture for this latter, critical, but presently undervalued, benefit. Marriage laws
are not primarily about adult needs for official recognition and support, but about the well-being of
children and society, and such preference constitutes a rational policy decision.”); Lewis v. Harris, 875
A.2d 259, 269 n.2 (N.J. App. 2005) (“We...note that the historical and prevailing contemporary concep-
tion of marriage as solely a union between a single man and a single woman is based partly on soci-
ety’s view that this institution plays an essential role in propagating the species and child rearing.”);
Morrison v. Sadler, 821 N.E.2d 15, 24 (Ind. App. 2005) (“The State, first of all, may legitimately create
the institution of opposite-sex marriage, and all the benefits accruing to it, in order to encourage male-
female couples to procreate within the legitimacy and stability of a state-sanctioned relationship and
to discourage unplanned, out-of-wedlock births resulting from ‘casual’ intercourse.”); Smelt v. County
of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005) (“The Court finds it is a legitimate interest to
encourage the stability and legitimacy of what may reasonably be viewed as the optimal union for
procreating and rearing children by both biological parents. Because procreation is necessary to per-
petuate humankind, encouraging the optimal union for procreation is a legitimate government interest.
Encouraging the optimal union for rearing children by both biological parents is also a legitimate pur-
pose of government. The argument is not legally helpful that children raised by same-sex couples may
also enjoy benefits, possibly different, but equal to those experienced by children raised by opposite-
sex couples. It is for Congress, not the Court, to weigh the evidence.”); Wilson v. Ake, 354 F. Supp.
2d 1298, 1309 (M.D. Fla. 2005) ([T]his court...is bound by the Eleventh Circuit’s holding that encour-
aging the raising of children in homes consisting of a married mother and father is a legitimate state
interest.... DOMA is rationally related to this interest.”)(internal citations omitted); In re Kandu, 315
B.R. 123, 146 (Bankr. W.D. Wash. 2004) (“Authority exits [sic] that the promotion of marriage to encour-
age the maintenance of stable relationships that facilitate to the maximum extent possible the rearing
of children by both of their biological parents is a legitimate congressional concern.”); Standhardt v.
Superior Court, 77 P.3d 451, 463-64 (Ariz. App. 2003) (“We hold that the State has a legitimate interest
in encouraging procreation and child-rearing within the marital relationship, and that limiting marriage
to opposite-sex couples is rationally related to that interest.”); Dean v. District of Columbia, 653 A.2d
307, 337 (D.C. App. 1995) (“[I]t appears that the Supreme Court has seen marriage as having a tradi-
tional principal purpose: to regulate and legitimize the procreation of children. See Zablocki [v.
Redhail, 434 U.S. 374, 385-86 (1978)]; Skinner [v. Oklahoma, 316 U.S. 535, 541 (1942)].... I believe that
this central purpose of the marriage statute—this emphasis on child-bearing—provides the kind of
rational basis defined in Heller, 113 S. Ct. at 2642-43, permitting limitation of marriage to heterosexual
45. Andersen v. King County, Nos. 75934-1, 75956-1, 2006 Wash. LEXIS 598 (July 26, 2006);
Hernandez v. Robles, Nos. 86-89, 2006 N.Y. LEXIS 1836 (July 6, 2006).
46. For an assessment of such ongoing efforts in law and public policy to strengthen marriage,
see THEODORA OOMS ET AL., BEYOND MARRIAGE LICENSES: EFFORTS TO STRENGTHEN MARRIAGE AND TWO-
PARENT FAMILIES, A STATE-BY-STATE SNAPSHOT (Washington, D.C.: Center for Law and Social Policy)
47. Associated Press, Justices Debate International Law on TV, N.Y. TIMES, January 13, 2005.
48. Sanford L. Braver et al., Who Divorced Whom? Methodological and Theoretical Issues, 20 (1/2)
J. DIVORCE & REMARRIAGE 1, 7 (1993) (In a study of divorcing couples responding to the question “Which
one of you was the first to want out of the marriage?” less than 10% of respondents indicated that it
was a mutual decision); FRANK F. FURSTENBERG, JR., & ANDREW J. CHERLIN, DIVIDED FAMILIES: WHAT HAPPENS
TO CHILDREN WHEN PARENTS PART 22 (1991) (“Four out of five marriages ended unilaterally, usually at
the wife’s insistence.”); Joseph Hopper, The Rhetoric of Motive in Divorce, 55(4) J. MARR & FAM 801,
805 (1993) (“[S]tudies have noted that most divorcing people describe their divorces as non-mutual
and that they have no difficulty specifying who decided on a divorce and who did not”).
49. “When the law declared that it couldn’t judge matrimonial disputes and would henceforth treat
spouses who kept their marriage vows the same as those who repudiated them, it put a once-
sacramental institution on the legal footing of a gambling debt.” George Jonas, The Window Was
Broken in the 1960s, NATIONAL POST (CANADA), February 7, 2005.
50. Joseph Hopper, The Rhetoric of Motive in Divorce, 55(4) J. MARR & FAM 801 (1993).
51. See, e.g., Joseph Hopper, The Rhetoric of Motive in Divorce, 55(4) J. MARR & FAM 801 (1993).
E. Mavis Hetherington found that 20 percent of adults who divorced had “enhanced” lives as a result;
10 percent were “competent loners”; 40 percent had “different partners and different marriages, but
usually the same problems”; the remaining 30 percent were judged worse off because of the divorce.
E. MAVIS HETHERINGTON & JOHN KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED 6-7 (2002).
Several state-wide polls of divorced adults show that many wish they had tried harder to make their
marriage work. GLENN T. STANTON, 1998 SOUTH CAROLINA MARITAL HEALTH INDEX 38-42 (1998) (62% of
divorced South Carolinians wished they had tried harder to keep their marriage together); NEW JERSEY
FAMILY POLICY COUNCIL, NEW JERSEY MARRIAGE REPORT: AN INDEX OF MARITAL HEALTH (1999) (46% of
divorced New Jersey adults wish they had tried harder to work through differences before divorcing);
MINNESOTA FAMILY INSTITUTE, MINNESOTA MARRIAGE REPORT (1998) (66% of divorced Minnesotans responded
affirmatively to the question “Looking back, do you wish you and your ex-spouse had tried harder to
work through your differences?”). See also PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING
UP IN AN ERA OF FAMILY UPHEAVAL 220 (1997) (noting that only “30% [of parents who divorced] reported
more than two serious quarrels in the last month, and 23% reported that they disagreed ‘often’ or ‘very
often’ with their spouses”).
52. Although there are signs of interest in deconstructing parenthood in this way, as well. See,
e.g., Civil Marriage Act, Consequential Amendments, Bill C-38, 38th Parliament (Can) (1st Sess. 2005);
LAW COMMISSION OF CANADA, BEYOND CONJUGALITY: RECOGNIZING AND SUPPORTING CLOSE PERSONAL ADULT
RELATIONSHIPS xxiv (2001), (referring to parent-child relationships as “intergenerational relationships that
involved the rearing of children.”); AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION:
ANALYSIS AND RECOMMENDATIONS § 2.03(1) (2002) (describing three categories of parents: “unless other-
wise specified, a parent is either a legal parent, a parent by estoppel, or a de facto parent.”) In
comments, the ALI reporters note that the category of “legal parent” will “ordinarily include biological
parents, whether or not they are or ever have been married to each other, and adoptive parents.” Id.
§ 2.03, cmt. a. See also RELATIVE VALUES: RECONFIGURING KINSHIP STUDIES (Sarah Franklin & Susan
McKinnon, eds., 2001); JUDITH BUTLER, UNDOING GENDER 102-130 (2004) (Chapter 5, “Is Kinship Always
Already Heterosexual?”); Helen Rhoades, The Rise and Rise of Shared Parenting Laws: A Critical
Perspective, 19 CAN. J. FAM. L. 75, 107-108 (2002); JONATHAN HERRING, FAMILY LAW 264, 305ff (2001) (sug-
gesting 5 distinct varieties of parenthood: “genetic parenthood,” “coital parenthood,” “gestational parent-
hood,” “post-natal (social or psychological) parenthood,” and “intentional parenthood”); Katharine T.
Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the
Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879 (1984); Conference Description, Task
Force Roundtable, “Parentage Reform Conference,” William and Mary Law School, Sept. 29-30, 2005
(“What would be an ideal set of rules for assigning newborn children to parents?”).
53. See, e.g., Lynn D. Wardle, “Multiply and Replenish”: Considering Same-Sex Marriage in Light
of State Interests in Marital Procreation, 24 HARV. J. L. & PUB. POL’Y 771 (2001).
54. Recent advances in behavioral law and economics, pointing to systematic irrational biases in
human cognition and behavior, which some argue give rise to a need for a more active role by gov-
ernment in managing markets, are another example of taking human nature, and the limits it imposes,
seriously. See, e.g., BEHAVIORAL LAW AND ECONOMICS (Cass R. Sunstein ed., 2000).
55. Thomas L. Friedman, Iraqis at the Wheel, N.Y. TIMES, Nov. 6, 2003, at A33 (“I repeat, yet again,
Lawrence Summers’ dictum: ‘In the history of the world, no one has ever washed a rented car.’”).
56. Sandra L. Hofferth & Kermyt G. Anderson, Are All Dads Equal? Biology Versus Marriage as a
Basis for Paternal Investment, 65 J. MARR & FAM. 213, 213 (2003); Robin Fretwell Wilson, Evaluating
Marriage: Does Marriage Matter to the Nurturing of Children?, 42 SAN DIEGO L. REV. 847 (2005).
57. EIRIK G. FURUBOTN & RUDOLF RICHTER, INSTITUTIONS AND ECONOMIC THEORY: THE CONTRIBUTIONS OF
THE NEW INSTITUTIONAL ECONOMICS 1 (2d ed. 2005).
58. For example, “The mechanism design literature focuses on the ex ante (or incentive align-
ment) side of contract and assumes that disputes are routinely referred to and that justice is effectively
(indeed, costlessly) dispensed by the courts. In contrast, transaction cost economics maintains that the
governance of contractual relations is primarily effected through the institutions of private ordering
rather than through legal centralism.” OLIVER E. WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM
59. EIRIK G. FURUBOTN AND RUDOLF RICHTER, INSTITUTIONS AND ECONOMIC THEORY: THE CONTRIBUTIONS
OF THE NEW INSTITUTIONAL ECONOMICS 20 (2d ed. 2005).
60. See Oliver W. Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897) (“If you want
to know the law and nothing else, you must look at it as a bad man, who cares only for the material
consequences which such knowledge enables him to predict, not as a good one, who finds his reasons
for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”).
61. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW: AMERICAN FAILURES, EUROPEAN
CHALLENGES 7-8 (1987).
62. Id. at 8 (quoting CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE
ANTHROPOLOGY 175 (1983)).
63. Carl E. Schneider, The Channeling Function in Family Law, 20 HOFSTRA L. REV. 495, 504 (1992).
64. DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA 10 (New
York: Institute for American Values) (2005).
65. For example, “The most fundamental insight for contract theory provided by evidence of the
status quo bias is that the choice of default rules is always relevant, not just in situations of high trans-
action costs or asymmetric information. If lawmakers’ choice of default terms alters parties’ prefer-
ences for contract terms—causing an increase in the strength of their preferences for the default term
and a decrease in the strength of their preferences for alternative terms—the choice of default terms
has the potential to affect any private contract.” Russell Korobkin, Behavior Economics, Contract
Formation, and Contract Law, in BEHAVIORAL LAW AND ECONOMICS 116, 137 (Cass R. Sunstein ed., 2000)
(emphasis added). See also Russell Korobkin, The Status Quo Bias and Contract Default Rules, 83
CORNELL L. REV. 608 (1998); Russell Korobkin, Inertia and Preference in Contract Negotiation: The
Psychological Power of Default Rules and Form Terms, 51 VAND. L. REV. 1583 (1998); Margaret F. Brinig
& Steven L. Nock, Marry Me, Bill: Should Cohabitation be the (Legal) Default Option? 64 LA. L. REV.
66. Timur Kuran & Cass R. Sunstein, Controlling Availability Cascades, in BEHAVIORAL LAW AND
ECONOMICS 374, 395 (Cass R. Sunstein ed., 2000).
67. So the Massachusetts Supreme Judicial Court concluded with respect to a “civil unions” bill,
“The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered
choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to
second-class status.” Opinions of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass. 2004).
68. Giving special recognition to marriage does not imply support for punitive discrimination
against other family forms, which we reject as harmful and unjust to children.
69. See note 35, supra.
70. Encouraging adoption by married couples, where a child lacks even one biological parent
capable of raising him or her, is another important goal for public policy.
71. At least for children who are involved in nonfamilial adoptions. There is some evidence that
kinship care may be better for children, at least in communities where the extended family is a
cultural tradition. Margaret F. Brinig & Steven L. Nock, How Much Does Legal Status Matter? Adoptions
by Kin Caregivers, 36 FAM. L.Q. 449 (2002).
72. WILLIAM J. DOHERTY, ET AL, WHY MARRIAGE MATTERS: 21 CONCLUSIONS FROM THE SOCIAL SCIENCES 6
(New York: Institute for American Values) (2002).
73. A similar idea was proposed by Elizabeth S. Scott and Robert E. Scott, Marriage As Relational
Contract, 84 VA. L. REV. 1225 (1998). See also John Crouch, No-Fault Divorce Laws and Divorce Rates
in the United States and Europe: Variations and Correlations, in THE FAMILY IN THE NEW MILLENNIUM:
PROTECTING THE NATURAL AND FUNDAMENTAL GROUP UNIT OF SOCIETY (Scott A. Loveless & Thomas B.
Holman eds., forthcoming 2006).
A model for such legislation might be found by amending the Virginia rule.
Va. Code Ann. § 20-91 (2006) (Grounds for divorce; other grounds include adultery, felony con-
viction with confinement for more than one year with no subsequent cohabitation, and cruelty or
desertion after a year):
A. A divorce from the bond of matrimony may be decreed:...(9)(a) On the applica-
tion of either party if and when the husband and wife have lived separate and apart
without any cohabitation and without interruption for one year. In any case where
the parties have entered into a separation agreement and there are no minor chil-
dren either born of the parties, born of either party and adopted by the other or
adopted by both parties, a divorce may be decreed on application if and when the
husband and wife have lived separately and apart without cohabitation and with-
out interruption for six months....; as follows:
A. A divorce from the bond of matrimony may be decreed:... (9)(a) On the appli-
cation of [both parties] if and when the husband and wife have lived separate and
apart without any cohabitation and without interruption for one year, [or by either
party when the husband and wife have lived separate and apart without any cohab-
itation and without interruption for two years]. In any case where the parties have
entered into a separation agreement and there are no minor children either born of
the parties, born of either party and adopted by the other or adopted by both par-
ties, a divorce may be decreed on application if and when the husband and wife
have lived separately and apart without cohabitation and without interruption for
74. With the passage of the administration’s Healthy Marriage Initiative, federal funds are now
available for exactly this kind of intervention. Deficit Reduction Act of 2005, Pub. L. No. 109-171, §
7103, 120 Stat. 138 (to be codified at 42 U.S.C. 603(a)(2)).
Affiliations listed for identification purposes only.
Lawrence A. Alexander, Warren Distinguished Professor of Law, University of San Diego
School of Law
Douglas W. Allen, Burnaby Mountain Professor, Department of Economics, Simon Fraser
Helen M. Alvare, Associate Professor of Law, Columbus School of Law, The Catholic
University of America
Eric G. Andersen, Associate Dean and Professor of Law, University of Iowa College of Law
Ralph C. Anzivino, Professor of Law, Marquette University Law School
Matthew J. Astle, Associate, Wiley Rein & Fielding (Washington, DC)
John S. Baker, Jr., George M. Armstrong, Jr. Professor of Law, Louisiana State University Law
Iain T. Benson, Executive Director, Centre for Cultural Renewal (Ottawa, Ontario)
Thomas C. Berg, Professor of Law, University of St. Thomas School of Law (Minnesota)
G. Robert Blakey, William J. & Dorothy K. O’Neill Professor of Law, Notre Dame Law School
David Blankenhorn, Founder and President, Institute for American Values (New York, NY)
Lackland H. Bloom, Jr., Professor of Law, Dedman School of Law, Southern Methodist
Thomas G. Bost, Professor of Law, Pepperdine University School of Law
William S. Brewbaker III, Professor of Law, University of Alabama School of Law
Lester Brickman, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University
Margaret F. Brinig, Sorin Professor of Law, Notre Dame Law School
Kingsley R. Browne, Professor of Law, Wayne State University Law School
Don Browning, Alexander Campbell Professor Emeritus of Ethics and the Social Sciences,
University of Chicago Divinity School
Ernest Caparros, Professor of Law Emeritus, University of Ottawa
Dan Cere, Director, Institute for the Study of Marriage, Law and Culture (Montreal, Quebec)
Ellen T. Charry, Harmon Associate Professor of Systematic Theology, Princeton Theological
Robert F. Cochran, Jr., Louis D. Brandeis Professor of Law, Pepperdine University School of Law
Lloyd Cohen, Professor of Law, George Mason University School of Law
John E. Coons, Robert L. Bridges Professor of Law Emeritus, University of California, Berkeley
School of Law
Rev. John J. Coughlin, O.F.M., Professor of Law, Notre Dame Law School
John Coverdale, Professor of Law, Seton Hall Law School
John Crouch, family law attorney, Crouch & Crouch Law Offices (Arlington, VA)
Craig W. Dallon, Associate Dean and Professor of Law, Creighton University School of Law
Joseph W. Dellapenna, Professor of Law, Villanova University School of Law
George W. Dent, Jr., Schott - van den Eynden Professor of Law, Case Western Reserve
University School of Law
David K. DeWolf, Professor of Law, Gonzaga University School of Law
William J. Doherty, Professor of Family Social Science and Director of the Marriage and
Family Therapy Program, University of Minnesota
Richard F. Duncan, Welpton Professor of Constitutional Law, University of Nebraska College
John E. Dunsford, Chester A. Meyers Professor of Law, Saint Louis University School of Law
John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman
University School of Law and Director, The Claremont Institute Center for Constitutional
Jean Bethke Elshtain, Laura Spelman Rockefeller Professor of Social and Political Ethics,
University of Chicago Divinity School
John Fee, Professor of Law, J. Reuben Clark Law School, Brigham Young University
Scott FitzGibbon, Professor of Law, Boston College Law School
Maggie Gallagher, President, Institute for Marriage and Public Policy (Manassas, VA)
William A. Galston, Senior Fellow, The Brookings Institution
Richard W. Garnett, Lilly Endowment Associate Professor of Law, Notre Dame Law School
George E. Garvey, Vice Provost and Dean of Graduate Studies, The Catholic University of
James A. Gash, Associate Professor of Law and Associate Dean for Student Life, Pepperdine
University School of Law
Robert P. George, McCormick Professor of Jurisprudence, Princeton University
Stephen Gilles, Professor of Law, Quinnipiac University School of Law
Mary Ann Glendon, Learned Hand Professor of Law, Harvard Law School
Norval Glenn, Ashbel Smith Professor of Sociology, University of Texas, Austin
Lino A. Graglia, A. Dalton Cross Professor of Law, University of Texas School of Law
Christopher B. Gray, Professor and Chair, Department of Philosophy, Concordia University
Timothy L. Hall, Associate Provost and Professor of Law, University of Mississippi School of
Scott C. Idleman, Professor of Law, Marquette University Law School
Arthur J. Jacobson, Max Freund Professor of Litigation and Advocacy, Benjamin N. Cardozo
School of Law, Yeshiva University
William H. Jeynes, Professor of Education, California State University, Long Beach
Kris W. Kobach, Daniel L. Brenner/UMKC Scholar and Professor of Law, UMKC School of Law
Thomas C. Kohler, Professor of Law, Boston College Law School
Michael I. Krauss, Professor of Law, George Mason University School of Law
Michael G. Lawler, Director, Center for Marriage and Family, Creighton University
Randy Lee, Professor of Law, Widener School of Law
Leonard J. Long, Professor of Law, Quinnipiac University School of Law
Daniel H. Lowenstein, Professor of Law, University of California, Los Angeles
Calvin R. Massey, Professor of Law, Hastings College of the Law, University of California
Phillip L. McIntosh, Associate Dean and Professor of Law, Mississippi College School of Law
Pamela Rogers Melton, Associate Director for Administration, Coleman Karesh Law Library,
University of South Carolina
Geoffrey P. Miller, Stuyvesant P. Comfort Professor of Law, New York University School of Law
Stephen Monsma, Professor of Political Science Emeritus, Pepperdine University
John E. Murray, Jr., Chancellor and Professor of Law, Duquesne University
Robert F. Nagel, Rothgerber Professor of Constitutional Law, University of Colorado School of Law
John Nagle, John N. Matthews Professor and Associate Dean for Faculty Research, Notre
Dame Law School
Grant Nelson, Professor of Law, University of California, Los Angeles
Leonard Nelson, Professor of Law, Cumberland Law School, Samford University
Joel A. Nichols, Associate Professor of Law, Pepperdine University School of Law
Steven L. Nock, Commonwealth Professor of Sociology, University of Virginia
Laurence C. Nolan, Professor of Law, Howard University School of Law
Gregory Ogden, Professor of Law, Pepperdine University School of Law
David Popenoe, Professor of Sociology and Co-Director, National Marriage Project, Rutgers
Stephen G. Post, Professor of Bioethics, Case Western Reserve University School of Medicine
Stephen B. Presser, Raoul Berger Professor of Legal History, Northwestern University School
Charles J. Reid, Jr., Associate Professor of Law, University of St. Thomas School of Law
Thurston H. Reynolds, Professor of Law, Thomas Goode Jones School of Law, Faulkner
Robert E. Rodes, Jr., Paul J. Schierl/Fort Howard Corporation Professor of Legal Ethics, Notre
Dame Law School
Paul H. Rubin, Samuel Candler Dobbs Professor of Economics and Law, Emory University
Ronald J. Rychlak, MDLA Professor of Law and Associate Dean for Academic Affairs,
University of Mississippi School of Law
Mark S. Scarberry, Professor of Law, Pepperdine University School of Law
Susan Shell, Professor and Chair, Department of Political Science, Boston College
Peter Skerry, Professor of Political Science, Boston College and Nonresident Senior Fellow,
Stephen F. Smith, Professor of Law and John V. Ray Research Professor, University of Virginia
School of Law
Steven D. Smith, Warren Distinguished Professor of Law, University of San Diego School of Law
David M. Smolin, Professor of Law, Cumberland Law School, Samford University
Katherine Shaw Spaht, Jules F. and Frances L. Landry Professor of Law, Louisiana State
University Law Center
Andrew C. Spiropoulos, Professor of Law and Director, Center for the Study of State
Constitutional Law and Government, Oklahoma City University School of Law
John Randall Trahan, James Carville Associate Professor of Law, Louisiana State University
J. David Velleman, Professor of Philosophy, New York University
Robert K. Vischer, Associate Professor of Law, University of St. Thomas School of Law
David M. Wagner, Associate Professor, Regent University School of Law
Linda J. Waite, Lucy Flower Professor in Urban Sociology, University of Chicago
Lynn D. Wardle, Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham
Amy Wax, Robert Mundheim Professor of Law, University of Pennsylvania Law School
Margaret J. Weber, Professor and Dean, Graduate School of Education and Psychology,
Barbara Dafoe Whitehead, Co-Director, National Marriage Project, Rutgers University
Robin Fretwell Wilson, Professor of Law, University of Maryland School of Law
John Witte, Jr., Jonas Robitscher Professor of Law and Ethics and Director, Center for the
Study of Law and Religion, Emory University School of Law
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About the Institute for American Values
The Institute for American Values is a nonpartisan organization dedicated to strength-
ening families and civil society in the U.S. and the world. The Institute brings together
approximately 100 leading scholars — from across the human sciences and across
the political spectrum — for interdisciplinary deliberation, collaborative research,
and joint public statements on the challenges facing families and civil society. In all
of its work, the Institute seeks to bring fresh analyses and new research to the atten-
tion of policy makers in government, opinion makers in the media, and decision
makers in the private sector.
About the Institute for Marriage and Public Policy
The Institute for Marriage and Public Policy is a nonprofit, nonpartisan organization
dedicated to high quality research and public education on ways that law and public
policy can strengthen marriage as a social institution. Working with top scholars,
public officials, and community leaders, iMAPP brings the latest research to bear on
important policy questions, seeking to promote thoughtful, informed discussion of
marriage and family policy at all levels of American government, academia, and civil
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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
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.
Table of Contents
Members of the Council on Family Law...............................................................................
Introduction: The Marriage and Family Law Crisis...............................................................
How Does Family Law Matter?..................................................................................
The Veil of Incrementalism........................................................................................
Marriage Law in the New World of “Close Relationships”...................................................
Marriage: The Conjugal View....................................................................................
Marriage: The Close Relationship Model..................................................................
Two Case Studies.......................................................................................................
The American Law Institute Report: Principles of the Law of Family Dissolution......
Beyond Conjugality: The View from Canada............................................................
Critiquing these Reports: What’s Left Out?................................................................
The Future of Family Law: Four Possible Directions............................................................
1. Equivalence Between Cohabitation and Marriage................................................
2. Redefining Marriage as a Couple-Centered Bond.................................................
3. Disestablishment, or the Separation of Marriage and State..................................
4. Why Just Two?........................................................................................................
Parenthood: The Next Legal Frontier....................................................................................
Members of the Council on Family Law
Iain T. Benson, Centre for Cultural Renewal
David Blankenhorn, Institute for American Values
Margaret Brinig, University of Iowa College of Law
Don S. Browning, University of Chicago Divinity School, Emeritus
Ernesto Caparros, University of Ottawa Faculty of Law, Emeritus
Dan Cere, McGill University (Principal Investigator)
Maura D. Corrigan, Chief Justice, Michigan Supreme Court
John Crouch, Americans for Divorce Reform
Maggie Gallagher, Institute for Marriage and Public Policy
Mary Ann Glendon, Harvard Law School (Council Chair)
Christopher B. Gray, Concordia University
Thomas C. Kohler, Boston College Law School
John E. Murray, Jr., Duquesne University School of Law
David Novak, University of Toronto
David Popenoe, Rutgers University, National Marriage Project
T. Peter Pound, Centre for Cultural Renewal
Leah Ward Sears, Presiding Justice, Supreme Court of Georgia
Carl E. Schneider, University of Michigan Law School
Katherine Shaw Spaht, Louisiana State University Law Center
Lynn D. Wardle, Brigham Young University Law School
Robin Fretwell Wilson, University of Maryland School of Law
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
Two Recent Reports
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
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.
Children: The Missing Piece
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.
Clashing Models of Marriage
What are the competing models of marriage that are at odds in today’s family
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. 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 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 pro-
child social institution. This idea is fundamentally flawed. It will hurt children and
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 intel-
lectual 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
Introduction: The Marriage and Family Law Crisis
FAMILY LAW IS HOT. 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 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
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.
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 indi-
vidual liberty. Unilateral divorce, as a legal institution, increases the freedom of
individuals to divorce by reducing their capacity to make enforceable marriage
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 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 ideo-
logical 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.”
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 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 European
Family law is
reconstructing the public
meanings of marriage and
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 sex-
bridging, 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
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.
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
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 dom-
inate 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.
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
Close relationship theory focuses primarily on the nature of relationships
between two people (or what is called “dyadic” relationships). For close relationship
theorists, marriage becomes a subcategory of this core concept; marriage is simply
one kind of close personal relationship. The structures of the discipline tend to strip
marriage of the features that reflect its status and importance as a social institution.
Marriage is examined primarily as a relationship created by the couple for the
satisfaction of the two individuals who are in it.
Of course close relationship theorists are not operating in a vacuum. Close
relationship theory reflects real trends in society that are making marriage less
connected to its classic purposes as a social institution. For example, while marriage
remains a wealth-generating institution,
other institutions of society (such as the
market and government) have taken over large parts of the economic and social
insurance functions marriage once had. While marriage remains a socially preferred
context for sexual intercourse, the sexual revolution (including the growth in social
acceptance for couples living together) has reduced the stigma for those who have
sex outside of marriage. While marriage continues to have considerable connection
to children in the public mind, large increases in unmarried childbearing have
increased social acceptance of unwed parents and their children. In addition, high
rates of divorce and the personal longings for a soul mate are changing the way
young people think about marriage.
Anthony Giddens, probably Britain’s most distinguished sociologist, writes that
the close relationships approach to human sociality is reconfiguring popular as well
as academic culture, bringing about a new grammar of intimacy. He believes that
we are moving from a marriage culture to a culture that celebrates
A “pure relationship” is one that has been
stripped of any goal beyond the intrinsic emotional, psycho-
logical, or sexual satisfaction which the relationship currently
brings to the individuals involved.
As an academic field, close relationship theory insists on
bringing a common theoretical and methodological approach
to the study of all “sexually based primary relationships.”
Similar values and processes are said to govern the initiation,
maintenance, and dissolution dynamics of all close relationships. The existence (or
lack) of a legally recognized bond such as marriage is a secondary consideration.
In one sense, there is nothing particularly novel about the idea of marriage as a
close personal relationship. Classical Western perspectives on marriage have always
stressed that marriage must be grounded in committed friendship. Close relationship
theory can help us to understand this dimension of marriage.
But it is also clear that once marriage is viewed as just another dyadic relationship,
the distinctive features grounding the conjugal understanding of marriage are simply
edited out of the discourse.
That which is distinctive about marriage is not allowed
to enter the discussion.
What gets left out? The answer is the main feature that makes marriage unique
— the attempt to bridge sex difference and the struggle with the generative power
of opposite-sex unions. Conjugal marriage attempts to confront the fact that hetero-
sexual sex acts can and often do produce children. This reality raises a set of concerns
of critical importance to children, couples, and the species — concerns that close
relationship theory is not prepared to take on.
Instead, many close relationship theorists maintain that what was once called
the nuclear conjugal family can no longer serve as a useful focus for research on
closely bonded human relationships.
They argue that viewing sexual and procreative
life through the lens of conjugal marriage constitutes an external, “ideological”
perspective that distorts objective analysis. 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.
In the late 1980s, leading close relationship theorists recommended that legal
theorists expand their thinking about sexually bonded intimacy beyond the confines
of the family to include all “close relationships.”
And so, as we shall see, they have.
In the new view, marriage
is to satisfy adult needs.
Marriage and children
are not connected.
Two Case Studies: The American Law Institute’s Principles of the Law of
Family Dissolution and the Law Commission of Canada’s Beyond Conjugality
The clearest evidence of the intellectual dominance of the close relationship
model of marriage in family law discourse can be found in two highly influential
law reports, published within a short time of each other, one in the United States
and one in Canada.
The first report is the Principles of the Law of Family Dissolution, published in
2002 by the American Law Institute (ALI). The ALI usually publishes what it calls
“restatements” of the law. These influential reports are used by academics, attorneys,
and judges to help make sense of laws that may not have been decided yet by a
state’s own case law, and courts will sometimes adopt their restatements. It is rare
for the ALI to take on family law and rarer still for them to suggest changes to
existing law — as they have in the Principles of the Law of Family Dissolution —
rather than simply restating the law.
The second report is Beyond Conjugality: Recognizing and Supporting Close
Personal Adult Relationships, published in 2001 by the influential Law Commission
of Canada. The Law Commission of Canada is appointed by the Canadian federal
government as an independent federal law reform agency that advises Parliament
on how to improve and modernize Canada’s laws.
Both reports come from legal organizations that have shaped the development
of laws in their respective nations in the past. These two new reports are a good
vantage point from which to analyze and view the direction of conventional legal
thought on marriage and family law in North America.
We have no reason to suppose that the authors of these reports have necessarily
read the work of leading close relationship theorists. But the underlying concepts
of marriage becoming predominant in the culture and developed most clearly by
close relationship theorists exert a powerful influence on these leading theorists of
family law. Both of these reports push family law in profoundly new directions
whose purposes and aims are sometimes far removed from (and often contrary to)
family law’s former public purposes that included protecting marriage and the best
interests of children.
The American Law Institute Report: Principles of the Law of Family Dissolution
The ALI report seeks to change existing family law in a number of key areas.
First, the report moves away from the notion of public standards for marriage and
parenthood. Instead, it emphasizes individualized decision-making and voluntary
adult arrangements through prenuptial and marital agreements, parenting plans,
and separation agreements.
Public standards of the sort that once influenced family
law are, in this report, subject to relentless critique for their failure to promote
diversity and their tendency to impose social “stereotypes.”
Such standards for
familial life “run counter to the commitment this society avows towards family
The authors warn that “even when a determinate standard conforms to
broadly held views about what is good for children, it can intrude — just as inde-
terminate standards do — on matters concerning a child’s upbringing that society
generally leaves up to parents themselves, and standardize
child-rearing arrangements in a way that unnecessarily curtails
diversity and cultural pluralism.”
Professor Katherine Bartlett, one of the report’s three main
drafters (or “reporters”), said that the passion that drives her
the value I place on family diversity and on the freedom of indi-
viduals to choose from a variety of family forms. This same value
leads me to be generally opposed to efforts to standardize families into a certain
type of nuclear family because a majority may believe this is the best kind of family
or because it is the most deeply rooted ideologically in our traditions.
Instead, Bartlett wants to embrace equally all forms of “intimate relationships.”
She and her peers aim to de-privilege marriage by treating cohabiting and other kinds
of relationships just like marriage. In this view, protection of diverse constructions of
intimacy becomes the central public task of family law.
Second, the ALI proposes to sideline what it calls “traditional marriage,” resituating
marriage as merely one of many possible and equally valid family forms, along with
cohabiting couples, singles, gay and lesbian families, and others.
The report presses
toward full legal marriage rights for same-sex couples by seeking to place same-sex
couples, cohabiters, and married people all on the same level playing field when they
dissolve their unions. The only sustained discussion of the characteristics of conju-
gality occurs in the chapter devoted to domestic partnerships. The report pushes aside
“the legal formality of marriage” in order to refocus family law on “relationships that
may be indistinguishable from marriage.”
The social ecology of male/female bonding
does not appear as one of the thirteen indicia of a marriage-like relationship.
new understanding of marriage seeks to replace “conjugality” with “relationship” or
couplehood as the central organizing principle of family law. According to the ALI
report, this emphasis on “the character of the relationship” and the recognition of a
diversity of “marriage-like” relationships “draws its inspiration from Canada.”
Third, the report’s recommendations shift the focus from biological parenthood
to functional parenthood (with “functional parenthood” meaning the day-to-day
work of raising children). The report argues that the traditional biological view of
parenthood as “an exclusive, all-or-nothing status” fails to grapple with diverse
constructions of parenting in contemporary society.
Protection of diversity
becomes the central public
task of family law.
Finally, the report is reluctant to define some of the key institutions — marriage,
family, and parenthood — that it targets for legal reform. Yet despite the authors’
reluctance to pin themselves down, a discernible vision of human relationships
percolates through this document. In their view, marriage and parenting are rela-
tionships with very high degrees of plasticity and indeterminacy. They are only
given meaning by the choices of diverse individuals in a wide array of relationships.
In this view, marriage is infinitely malleable. Only the vaguest definitions are
possible. “Marriage,” the authors venture, “is an emotional enterprise, with high
returns and high risks.”
It is a function of individual commitments and accommo-
dations: “Different couples arrive at different accommodations in their relationships,
and some depart from the social conventions. Intimate relationships often involve
complex emotional bargains that make no sense to third parties with different needs
In the view of the ALI authors, marriage has almost no real public
content. Instead, marriage is the relational play of highly subjective, diverse con-
structions of intimacy and love.
The implications of this constructivist view of marriage surface in the document’s
opening discussions of no-fault divorce. In a constructivist world of marital intimacy,
it is all but impossible to assign fault when intimacy breaks down. Without anchors
of meaning for marriage, fault becomes an almost empty concept. Even the word
“cause” loses meaning; there can be no such thing as an objective “cause” of a
divorce. The authors of the ALI report tell us that some individuals tolerate a spouse’s
drunkenness or adultery and never resort to divorce. Others, they say, may seek a
divorce if a spouse grows “fat” or spends long hours in the office.
When this happens,
they ask, is the divorce “caused” by one spouse’s offensive or unattractive conduct, or
by the other’s unreasonable intolerance? The report’s answer is: who can say? The
complexity of individual choices makes it impossible to determine “cause.”
reporters warn that any attempt to do so necessarily involves a “sleight of hand,” since
it requires a moral assessment that amounts to “rewarding virtue and punishing sin.”
Aside from the most minimal of standards of conduct — for example, it bars
domestic violence — the report concludes it is nearly impossible to determine after
the fact what was right or wrong about spousal conduct in a marriage that is ending.
Beyond Conjugality: The View from Canada
Beyond Conjugality proposes a fundamental reconstitution of contemporary
family law. As its title says, the report argues that the law must go “beyond conju-
gality” and focus on the “substance of relationships” rather than giving legal recog-
nition to any specific “arrangements,” such as marriage. It contends that govern-
ments “should recognize and support” all significant adult “close relationships” that
are neither dysfunctional nor harmful.
The only clear standards for relational
behavior are the offside zones delineated by criminal law.
The authors of Beyond Conjugality define a “close personal relationship,”
offering a fluid definition in which marriage is firmly placed as just one of the
varied relationships adults might form:
The focus in this Report is on interdependent relationships between adults: those
personal relationships that are distinguished by mutual care and
concern, the expectation of some form of an enduring bond,
sometimes a deep commitment, and a range of interdependen-
cies — emotional and economic — that arise from these fea-
tures.… These economically and emotionally interdependent
relationships are one of the very foundations of Canadian
social life. They may or may not involve parenting responsibil-
ities that certainly influence the range of interdependencies
created. They may or may not involve sexual intimacy. They
may or may not be characterized by deep economic interde-
pendency. Governments need to ensure that the law respects the diverse choices
that Canadians make.
Two legal scholars who contributed to the preparatory work for this report have
argued: “The role of the law ought to be to support any and all relationships that
further valuable social goals, and to remain neutral with respect to individuals’
choice of a particular family form or status.”
In Beyond Conjugality, the Law Commission of Canada spells out the full logic
of these legal ideas and trends. It recommends that legal reformers eliminate the
special status accorded to “marital” relationships. In this view, conjugality is too
restrictive, since it excludes whole categories of interpersonal relationships that
exhibit patterns of interpersonal, emotional, and economic interdependence that
are equivalent to, or in some cases surpass, the commitments of sexualized close
relationships between heterosexuals. It urges the federal government to provide a
legal framework that would capture the “relational equality” of all close personal
The main direction of the Beyond Conjugality report is toward the complete
elimination of the category of marriage from law. In a somewhat confusing maneuver,
however, the report concludes by proposing major — and significantly contradictory
— reforms. The bulk of the report lays out a new legal framework for dealing with
close adult relationships that would replace the traditional conjugal category of
marriage with one that puts all relationships on an equal playing field. Then, in the
last chapter, the report does an about-face to reaffirm the legal institution of marriage
while arguing for its redefinition and extension to same-sex couples.
The closing argument for the redefinition of marriage in Beyond Conjugality has
stolen the legal and political stage in Canada, laying out the legal template for the
just one of the many
adults might form.
major Canadian court decisions in favor of the redefinition of marriage. This template
also appears in the proposed new Civil Marriage Act (Bill C-38) which redefines
marriage as a union of two persons.
Critiquing These Reports: What’s Left Out?
In these legal reconstructions, what drops out of view? Quite a lot, it turns out.
Marriage serves a number of critical purposes in human culture. It addresses the fact
of sexual difference between men and women, including the unique vulnerabilities
that women face in pregnancy and childbirth. It promotes a public form of life and
culture that integrates the goods of sexual attraction, interpersonal love and com-
mitment, childbirth, child care and socialization, and mutual economic and psycho-
logical assistance. It provides a social frame for procreativity. It fosters and maintains
connections between children and their natural parents. It sustains a complex form
of social interdependency between men and women. It supports an integrated form
of parenthood, uniting the biological (or adoptive), gestational, and social roles that
These are large issues. Yet in these reports, with a wave of the constructivist
wand, these long-standing human concerns are systematically displaced from their
formerly central position in family law. In their place the authors are recommending
the legal imposition of a new model of close personal relations.
Despite the fact that sex-difference and opposite-sex attraction and bonding are
fundamental features of human existence, and that marriage is an institution that
attempts to work within this vast and complex domain, in contemporary legal
debates in the U.S. and Canada, these core issues are being pushed off the table.
Legal scholars make much of the fact that theorists have discovered “no difference”
between married and unmarried couples, or homosexual and heterosexual relation-
ships, when it comes to the basic dynamics of love, compatibility, and intimacy. But
the authorities cited to support this thesis are strong proponents of close relationship
The problem with close relationship theory is that it is fine-tuned to discover
exactly what it predicts, namely, that unmarried same-sex and opposite-sex couples
reveal the same patterns of interpersonal intimacy evident in married couples. The
core relational values of intimacy, commitment, interdependence, mutual support,
and communication get cranked out as the exemplary values for all close relationships,
including marriage. Certainly, good marriages partake of these core relational values,
but marriage as an institution encompasses much more than this limited set of inter-
personal concerns. Understanding marriage only as a close personal relationship,
but nothing more, leaves our understanding flat and impoverished.
The kinds of values or patterns cited by close relationship theorists turn out to
be found in many types of relationships, not just ones in which the two people have
sex. Friendships, sibling relationships, and parent-child attachments also partake of
values such as commitment, mutual support, and the rest. By talking about relation-
ships in terms of generic “interpersonal intimacy,” close relationship theorists bracket
out, before the discussion even begins, the specificity of marriage as a form of life
struggling with the unique challenges of bonding sexual difference and caring for
children who are the products of unions.
Today, contemporary family law theorists are bent on ham-
mering this new theory into law, usually using the avenue of
constitutional law. What is striking is the breathless speed of
these developments in the absence of any real scholarly or
public debate. A particular school of thought openly aimed at
re-conceptualizing marriage first took root in the academy in
the 1980s. By the late 1990s it had come to dominate fashionable
academic theorizing on sexual intimacy. That school of thought
is successfully urging family law scholars to think in radically
new ways about family law. Much of the new thinking centers on ways to transform
family law from its historic role as the protector of marriage into something very
close to its antagonist.
What is likely to happen next?
The Future of Family Law: Four Possible Directions
IF THE CLOSE relationship model of marriage triumphs, where is family law head-
ed? One or more of at least four troubling outcomes for family law is likely.
The First Direction: Equivalence Between Cohabitation and Marriage
The first direction that family law might take is to reduce the distinctions
between marriage and cohabitation by treating more and more cohabiting couples
as if they were married. After all, if marriage is just a word that means “close intimate
relationship,” what is the legal justification for treating people differently based on
a wedding? In some jurisdictions, this transition is already well established.
Since the characteristic features that are distinctive to marriage (including shared
social norms about roles and expectations and the public vow before community,
God, and the law) have already been ruled off the table by close relationship theory,
today these features tend to be ignored by legal experts in favor of those aspects
that make marriage and cohabitation similar.
Thus, the American Law Institute report argues that the movement toward
equivalence should be harmonized and universalized. The rights and benefits
regarding partners should be based on “the character of their social relationship,”
What is striking
is the speed of these
developments in the
absence of any public
not their marital status.
(The possibility that marriage might change the character
of the spouses’ relationship is not considered.) The ALI report treats the “failure to
marry” as insignificant and meaningless:
As the incidence of cohabitation has dramatically increased … it has become
increasingly implausible to attribute special significance [to] the parties’ failure to
marry. Domestic partners fail to marry for many reasons. Among others, some have
been unhappy in prior marriages and therefore wish to avoid the form of marriage,
even as they enjoy its substance with a domestic partner. Some begin in a casual
relationship that develops into a durable union, by which time a formal marriage
ceremony may seem awkward or even unnecessary.… Failure to marry may reflect
group mores. Some ethnic and social groups have a substantially lower incidence
of marriage and a substantially higher incidence of informal domestic relationships
than do others. Failure to marry may also reflect strong social or economic inequality
between the partners, which allows the stronger partner to resist the weaker
partner’s preference for marriage. Finally there are domestic partners who are not
allowed to marry each other under state law because they are of the same sex.…
In all of these cases the absence of formal marriage may have little or no bearing
on the intentions of the parties, the character of the parties’ domestic relationship,
or the equitable considerations that underlie claims between lawful spouses at the
dissolution of a marriage. Normatively, Chapter 6 takes the view that family law
should be concerned about relationships that may be indistinguishable from marriage
except for the legal formality of marriage.
Because the goal of the ALI is to treat all “marriage-like” relationships similarly,
it is forced to define not marriage, but “domestic partnership.” This concept, rather
than marriage, becomes the underlying social reality to which the law must conform.
The ALI report defines domestic partnerships by a set of generic relationship
characteristics that mark “a life together as a couple.”
As more cities in the United States establish “domestic partnership” registries,
this term is gaining recognition in law as a kind of midway status between marriage
and singleness. Increasing numbers of private corporations and union agreements
use any valid government recognition of a relationship as the basis for providing
contractually guaranteed benefits to unmarried couples, and some permit couples
simply to file affidavits affirming that they are domestic partners as the condition
for receiving benefits such as health insurance. Overall, though, the argument that
cohabiters have a general right to be treated as married has made relatively little
headway in the United States, except in the case of same-sex couples who can
legally marry in Massachusetts.
Canadian courts, by contrast, have been quite receptive to the idea that treating
couples differently based on marital status constitutes unjust discrimination. Like the
ALI report, Canadian courts have cited as determinative the characteristics that are
often common to both married and non-married intimacy,
shelter, sexual and personal behavior,
mutual service, social life together, societal
perceptions of the couple, economic support, and parenting.
Although Canadian courts have appealed to “conjugal characteristics” in order
to establish the fundamental similarity of marital and non-
marital forms of intimate life, they have also demonstrated a
surprising awareness of the dangers of doing so. For ironically,
the argument that all “marriage-like” relationships should be
treated alike still requires the law to define which relation-
ships are worthy of being treated as “marriage-like” by the
courts, and continues to use “marriage” as the basic social
norm for making this distinction. In other words, when courts
replace marital norms with close relationships norms, they
still leave the law in the position of promoting certain “normative” concepts of
Canadian courts have mostly dealt with this problem by calling attention to the
fluidity and plasticity of the standards they have created. In Macmillan-Dekker v.
Dekker, Supreme Court Justice Bertha Wilson writes that characteristics such as shar-
ing a home or having a sexual relationship are merely “indicia” of “a conjugal/
spousal relationship.” Wilson stresses their malleable nature:
I conclude that there is no single, static model of a conjugal relationship, nor of
marriage. Rather, there are a cluster of factors which reflect the diversity of con-
jugal and marriage relationships that exist in modern Canadian society. Each
case must be examined in light of its own unique, objective facts … the seven
factors [that define conjugality] are meant to provide the Court with a flexible
yet objective tool for examining the nature of relationships on a case-by-case
In a dissenting opinion in 1993, Justice Claire L’Heureux Dubé anticipated later
legal developments in arguing that these conjugal characteristics should not reinforce
a normative model of conjugality:
The use of a functional approach would be problematic if it were used to establish
one model of family as the norm, and to then require families to prove that they
are similar to that norm. It is obvious that the application of certain variables could
work to the detriment of certain types of families. By way of example, the
requirement that a couple hold themselves out to the public as a couple may not,
perhaps, be appropriate to same-sex couples, who still often find that public
acknowledgement of their sexual orientation results in discriminatory treatment.
If marriage is just a close
relationship, why treat
based on a wedding?
To avoid the risks of normativity, Justice Peter Cory, writing for the majority in
M. v. H., suggests an “infinitely” plastic definition of conjugality:
Certainly an opposite-sex couple may, after many years together, be considered to
be in a conjugal relationship although they have neither children nor sexual
relations. Obviously the weight to be accorded the various elements or factors to
be considered in determining whether an opposite-sex couple is in a conjugal
relationship will vary widely and almost infinitely. The same must hold true of
same-sex couples. Courts have wisely determined that the approach to determining
whether a relationship is conjugal must be flexible. This must be so, for the relationships
of all couples will vary widely.
The heart of the equivalence approach is the idea that marital status is a mere
formality. Similar relationships should be treated similarly, regardless of whether or
not a marriage ceremony ever took place.
There are at least two serious problems with the equivalence approach. First, it
runs roughshod over the long-established principle that marriage requires consent.
Cohabiters are now to be locked by government into a marital regime whether they
like it or not.
Indeed, for some legal scholars, coercion is precisely the point. According to
Roderick Macdonald, the former president of the Law Commission of Canada, “self-
ascription” — that is, the couple’s understanding of the relationship — is of limited
value in determining a couple’s legal status, since any such definition can be
effectively blocked by one non-consenting partner in the relationship:
No matter how broadly a concept is defined by law, if the status it confers depends
only on self-ascription, many of those intended to be the beneficiaries of the status
will be excluded. Suppose for a moment that the law were amended to provide that
persons of the same sex could get married, and that, were they to do so, the full
panoply of rights and responsibilities attaching to the status of marriage would
apply. This opening up of the concept of marriage might well address many of the
legal concerns now expressed by same-sex couples. But, just as for heterosexual
couples, it would be of no help to a partner in a common-law same-sex relationship
who wants to marry but whose partner does not.
But for many who advocate “equivalence” as part of a broader embrace of family
diversity, the coercive aspects of this legal regime remain troubling. In the Nova Scotia
v. Walsh decision, for example, the Canadian courts abruptly reversed years of legal
movement in the direction of equivalence. Instead, the Court suddenly insisted on the
need to respect individuals’ freedom to choose, or not to choose, more committed
forms of partnership. Quoting an earlier opinion of Justice L’Heureux-Dubé, Nova
Scotia v. Walsh argues that “the decision to marry or, alternatively, not to marry,
depends entirely on the individuals concerned.” According to the judges, “family
means different things to different people … all of them equally valid and all of them
equally worthy of concern, respect, consideration, and protection under the law.” The
state should not impose a marital regime “retroactively.”
The second problem with the equivalence approach is that
social science evidence by and large fails to support its central
contention, which is that marriage is just a formality. Instead, the
differences between marital and cohabiting relationships appear
to be real and significant, at least in the United States, where
most of the research has been conducted.
A group of twelve
diverse U.S. family scholars, for example, recently concluded:
Cohabitation is not the functional equivalent of marriage. As a
group, cohabiters in the United States more closely resemble sin-
gles than married people. Children with cohabiting parents have outcomes more
similar to the children living with single (or remarried) parents than children from
intact marriages. Adults who live together are more similar to singles than to mar-
ried couples in terms of physical health and emotional well-being and mental
health, as well as in assets and earnings.… Couples who live together also, on aver-
age, report relationships of lower quality than do married couples — with cohab-
iters reporting more conflict, more violence and lower levels of satisfaction and
commitment. Even biological parents who cohabit have poorer quality relationships
and are more likely to part than parents who marry. Cohabitation differs from mar-
riage in part because Americans who choose merely to live together are less com-
mitted to a lifelong relationship.
Moreover, three-quarters of children born to cohabiting couples are likely to see
their parents split up by the time they are sixteen years old.
Whether the standard
is relationship durability or relationship satisfaction or tangible benefits to adults or
the well-being of children, cohabitation is not the same thing as marriage. The
“equivalence” regime is unjust because it treats couples who are unwilling to make
a marriage commitment as if they have done so. It is unwise because the law
communicates to younger people the demonstrably false idea that marital status
makes no difference for the well-being of a couple or their children.
The Second Direction: Redefining Marriage as a Couple-Centered Bond
A second direction marriage law might take is substantive redefinition. In this
approach, the law would continue to allow distinctions to be made between married
couples and cohabiting couples, with marriage remaining a distinct legal status. But
to support the central
contention of the
the meaning of marriage would be redefined by courts, primarily on behalf of same-
sex couples, as a commitment between any two people. The new legal definition
strips all remaining remnants of sex, gender, and procreativity from the public,
shared meaning of marriage. In contrast to the “equivalence” view, once full access
to marriage is granted irrespective of sex, any legal benefits to domestic partnerships
should in theory be rolled back.
(This approach has been called the “Levelling
Marriage becomes the only legally recognized close relationship.
To privilege one version of marriage in law — as a gender-neutral, couple-
centered bond that centers primarily on commitment — necessarily involves the
public repression of alternative meanings. In classrooms and courtrooms today,
proponents of the couple-centered conception of marriage are arguing that the
commonly held view of marriage as a conjugal union of man and woman is a
prejudice analogous to racism. In Canada, the majority of provincial courts have
argued that this irrational and discriminatory view of marriage needs to be weeded
out of public law and replaced. The proposed Civil Marriage Act is attempting to
bring the rest of Canada into harmony with this legal conclusion. Meanwhile,
alternative legal categories such as civil unions have been panned as a repugnant
“separate but equal category.”
Because the law retains the special legal status
associated with marriage, the redefinition approach authorizes the state to begin to
exert negative pressure on private individuals, organizations, and communities that
subscribe to the older conjugal view of marriage now viewed as “discriminatory” by
Court decisions in both Massachusetts and Canada authorizing same-sex marriage
follow this basic script. Each calls for the substantive redefinition of marriage as a
“union of two persons.” Each also inaugurates the process of stigmatizing the alter-
native conjugal view of marriage as discriminatory, suggesting the future pariah status
of people who cling to the older view.
In Canada, Ontario Justice Harry S. Lafarge argues that “the real, although
unstated, purpose of the restriction [of marriage to a man and a woman] is to preserve
the exclusive privileged status of heterosexual conjugal relationships in society.” He
declares this understanding of marriage to be “repugnant.”
In the U.S., the four judge
majority in Goodridge v. Department of Public Health (which legalized same-sex
marriage in Massachusetts) denounced as “discriminatory” the conjugal view of
marriage as a union of man and woman. The belief that marriage intrinsically unites
male and female in a sexual bond that reinforces their personal obligations to each
other and to any children they produce is dismissed as “rooted in persistent prejudices
against persons who are (or who are believed to be) homosexual.” “The Constitution,”
they warn, quoting a 1984 Supreme Court case, “cannot control such prejudices but
neither can it tolerate them.”
As the majority in Baehr v. Lewin (a 1993 case in Hawaii
regarding same-sex unions) warned, “constitutional law may mandate, like it or not,
that customs change with an evolving social order.”
This strong language suggests that the legal creation of a couple-centered under-
standing of marriage is achieved by placing the older conjugal meaning of marriage
under a moral and legal cloud of suspicion. It will place the law in a stance that is
hostile towards cultural and religious communities that adhere to the ethos of con-
jugal marriage as the backbone of their communal life.
In an important decision, Canadian Justice Robert Blair
candidly remarked that this change was not an “incremental”
one but rather a “profound change” with serious implications
for vast areas of marriage and family law. Blair states that
the consequences and potential reverberations flowing from such
a transformation in the concept of marriage … are extremely
complex. They will touch the core of many people’s belief and
value systems, and their resolution is laden with social, political,
cultural, emotional, and legal ramifications. They require a
response to a myriad of consequential issues relating to such things as inheritance
and property rights, filiation, alternative biogenetic and artificial birth technologies,
adoption, and other marriage-status driven matters.
Both advocates and opponents agree that the redefinition of marriage would do
far more than simply incorporate the small number of homosexuals in the population
into the existing marital regime.
The Third Direction: Disestablishment, or the Separation of Marriage and State
How might we avoid contentious public disputes about the meaning of marriage?
One possible solution is to conclude that the law should no longer establish any
definition of marriage. Only a few years ago, almost no one favored this idea. But
today this option appears to be gaining converts across the political spectrum.
Disestablishment is thus a third possible direction for the future of marriage.
On the left, “queer theorists” such as Michael Warner adopt a radical liberationist
argument for disestablishment.
Warner argues that the extension of marriage to gays
and lesbians is no less than an attempt to herd all human sexuality into the narrow
conjugal box. Others support disestablishment because they feel that marriage is
essentially a religious institution, something in which a secularized liberal state
should have no role. One proponent of this view, Nancy Cott, argues that Christian
models of conjugal monogamy have been legally imposed on social life.
author similarly characterizes the “permanent, monogamous, marriage, nuclear,
heterosexual” concept of family as “an explicitly Christian concept of marriage.”
this view, the heterosexual definition of marriage legally imposes a particular the-
ological or religious vision of marriage on society, one that violates the convictions
Sex, gender, and
procreativity are stripped
of sexual dissenters and nonconformists.
Cott and others feel that the separation of
church and state requires ridding the law of any theological vision of marriage.
However, redefining marriage provides no easy solution to the dilemma of state
endorsement of some religious view. Religious groups can be found that endorse
same-sex marriage, polygamy, monogamy, and even polyamory.
In choosing any
substantive vision of marriage, therefore, the state will end up endorsing some
religion’s marital vision.
Faced with competing and conflicting conceptions of marriage, proponents of
disestablishment argue that the state should take this breakdown of social consensus
as the cue for it to get out of the marriage business.
They argue that the liberal
state learned how to adopt a stance of measured distance towards religion and the
economy. It must now adopt a stance of measured distance towards marriage. Civil
matters related to interdependent relationships (taxation, inheritance, community
property, and more) could be handled by a more neutral registry system.
The removal of marriage as a legal category was one option put forward by the
Canadian court decisions striking down the existing law of marriage.
It was also
proposed as an option by the Department of Justice in its directives to Canada’s
Standing Committee on Justice and Human Rights in hearings on the question of
same-sex marriage. The disestablishment of marriage would be achieved by
“removing all federal references to marriage and replacing them by a neutral registry
In the Beyond Conjugality report, the Law Commission of Canada considers
Nancy Cott’s argument for disestablishment:
Borrowing the term from the history of church and state, Nancy Cott has described
the transformation in the relationship between marriage and the state in the United
States as “disestablishment.” Just as the state does not recognize a single, officially
established church, no longer is any single, official model of adult intimate relation-
ship supported and enforced by the state.
Instead, the law would embrace virtually all interdependent relationships.
Indications of a marital, conjugal relationship — such as sexual intimacy, cohabitation,
the dyadic restriction (only two people can get married), and even restrictions based
on consanguinity — would be removed from law.
This approach is grounded in the
conviction that democratic societies have a fundamental obligation to “respect and
promote equality between different kinds of relationships,” to celebrate “the diversity
of personal adult relationships,” and to honor “the freedom to choose whether and
with whom to form close personal relationships.”
The new family law would be
in essence a universal buddy system that offers legal protections for all citizens,
whether straight or gay, parents or not, and whether they are involved with only
one person, or many.
Yet once family law becomes a universal buddy system, some have reasonably
asked why the law should be concerned at all about who is having sex with
That the law traditionally has an interest in sexual activity largely because
children often arise — intentionally or not — from heterosexual couplings seems
currently to escape the attention of many scholars and, indeed, an increasing number
of judges. Rather, they conclude that the legal preoccupation
with sexual intimacy is arbitrary and pointless. One study on
the legal “irrelevancy” of sex approvingly cites Eric Lowther, a
member of the Canadian Parliament, who said the following
when speaking in opposition to the extension of benefits to
There are many types of gender relationships: siblings, friends,
roommates, partners, et cetera. However, the only relationship
the government wants to include is when two people of the same
gender are involved in private sexual activity, or what is more commonly known
as homosexuality. No sex and no benefits is the government’s approach to this bill.
Even if everything else is the same, even if there is a long time cohabitation and
dependency, if there is no sex there are no benefits. Bill C-23 is a benefits-for-sex-
bill. It is crazy.
Lowther favors the existing definition of marriage as a heterosexual bond. His
critics are advocates of same-sex marriage. Yet both agree that there is a fundamental
flaw in the current legal construction of conjugality. According to them,
the question of whether a relationship has a sexual component bears no connection
to legitimate state objectives. Once this is recognized, and sex is removed from the
scope of relational inquiries, the distinction between conjugal and non-conjugal
relationships collapses. And we then need to develop better ways to determine
when and how the existence of an adult personal relationship is relevant and
should be recognized in law.
The fundamental argument of the Law Commission of Canada in Beyond
Conjugality is the same. The report argues for a broad legislative approach to all adult
close relationships that involve significant mutual dependence. The presence or
absence of sexual conduct in the relationship is considered incidental. The fact that
some kinds of sex acts produce children and some do not merits no consideration.
As mentioned earlier, Beyond Conjugality does end somewhat confusingly with
a call for the redefinition of marriage, even after making a strong case for disestab-
However, the original thrust of the report, found in its title, was to lay
out a new legal framework which would eliminate the category of conjugality from
As the law becomes a
universal buddy system,
why should it care about
who is having sex with
law and replace it with a more inclusive civil registry system. In such a system,
marriage as we have known it — marriage as a social institution — would likely
still play a role for some time to come. But in the eyes of the law, that role will be
a bit part, written in very small print and destined eventually to wither away.
In Canada this classical liberal argument for disestablishment has been drowned
out by a newer and more aggressive social liberalism arguing for a redefinition of
marriage. But it was one of Canada’s historical Liberal leaders, Pierre Elliot Trudeau,
who laid down the principle that the state must get out of the bedrooms of the
nation. Some liberals argue that disestablishment is the only viable alternative in the
face of apparently irresolvable legal and political disagreements about the authori-
tative meaning of conjugality.
On the right-leaning end of the spectrum, certain religious constituencies are also
questioning whether disestablishment might be preferable to a full-fledged legal
redefinition of marriage. They point out that the political regulation of marriage was
a relatively late development in the history of Western marriage. For some, the state
has done more harm than good in its attempts to influence the direction of the
marriage culture. Perhaps it’s time to get the state out of the marriage business.
hope that, just as the separation of religion and state is responsible for the relatively
flourishing religious sector in the United States, getting the government out of marriage
would be a prelude to a marriage revival. They argue that marriage, like religion, can
only really flourish when it is freed from political control and manipulation.
But it is clear that there is nothing “neutral” about the state refusing to recognize
and accommodate the fact of marriage in law. In places like the United States,
where marriage remains a significant legal category, its disestablishment would take
an enormous amount of political and cultural energy of the kind that is unlikely to
feed a flourishing marriage culture. More likely the disestablishment of marriage
would support a troubling and already all too common perception that marriage
may be a nice ceremony but is no longer a key social institution.
Ironically, the consequence of disestablishment is not likely to be greater
individual freedom, but rather more intense and far-reaching state regulation of
formerly private relations. Married people generally regulate their family affairs
without direct government interference, except in cases of criminality or violence.
By comparison, the state routinely tells divorced and unmarried parents when they
can see their kids and how much child support to pay, and often intervenes in
thorny disagreements such as what school the child will attend, or what religion he
or she will be raised in, or if a parent is allowed to relocate. Outside of marriage,
the state is necessarily drawn into greater and more intrusive regulation of family
life. Because sex between men and women continues to produce children, and
because women raising children alone are economically and socially disadvantaged,
governments will continually wrestle with expensive and intrusive efforts to protect
children born outside of marital unions.
Finally, the right’s disestablishment argument presumes that the state has no key
interest in the existence of marriage. While marriage is partly a religious institution
for religious people, it has never been only a religious act. In the Western tradition
marriage has represented the best efforts of state and society to integrate disparate
goods — love, money, mutual support, sex, children — in the service of helping
men and women raise the next generation in circumstances
most likely to sustain them, their children, and the society.
The huge and complex slice of human experience consti-
tuted by heterosexual bonding, procreativity, and parent-child
connectedness sweeps across non-religious as well as religious
spheres of social activity and meaning. In a real sense, marriage
is bigger and more elemental to human life than religion.
Marriage in every known society has been deeply influenced
and colored by religious traditions in the societies in which it
has taken root. But marriage is even older than some of our
oldest religious traditions. It existed before Judaism and well before Christianity and
Islam. Marriage is influenced by religion, but it is not solely a religious institution,
and it is certainly not solely a Christian institution. Religious traditions and civil
society have critical roles to play in shaping a marriage culture; but in a large,
complex society, government and the law will ignore marriage at their peril.
Some disestablishment proponents also seem to assume that children
can be treated as a category separate from adult relationships. Martha Fineman,
for instance, argues that the law should get out of adult relationships and leave them
to private contracts. She believes that this move would allow the law and public
policy to focus its attention on adult-child caregiving relationships. However, this
seemingly logical deconstruction is but a symptom of the family fragmentation that
has a deeply negative impact on children. Disestablishment might work well in a
world of freestanding adult relationships. But the bedrooms of the nation still produce
children. The offspring of our sexual bonds are profoundly vulnerable and demand
the state’s interest.
Why Just Two?
As Beyond Conjugality’s provocative title suggests, the family legal trends
sweeping North America and the world have no natural or necessary stopping point.
All of these major trends in law are part of a movement to channel public law into
a new authoritative framework that is “beyond conjugality.” Where is this movement
leading? Once marriage is repositioned as merely one of many equally valid examples
of a close relationship, is there a compelling rationale for refusing legal recognition
to any close relationship, including all forms of friendship and mutual care? Probably
not. If conjugal relationships “vary widely and almost infinitely,” then virtually any
the state is drawn into
more intrusive regulation
of family life.
caring or sharing close relationship is arguably worthy of state recognition and
social support. Such a move appears to set the stage for a vast extension of the rule
of law into the sphere of intimate relations, including legal recognition of multiple
Those determined to alter the public meaning of marriage admonish us to shelve
such questions. A Canadian human rights lawyer insists that problematic concerns
about where new legal changes might lead need “not be decided at this point.” The
immediate and pressing legal challenge is to redefine marriage in order to include
same-sex couples. Raising the problem of future legal implications “merely compli-
cates an already thorny issue.”
However, the debate about the next round of legal reforms has already begun.
In An Introduction to Family Law, Gillian Douglas of Cardiff Law School agrees
with the American Law Institute report, arguing that the “continuing limitation of
marriage to heterosexual couples … derives from an ideological rather than a logical
imperative.” She follows this observation with a deconstructive swipe at another key
pillar of what she terms “the traditional view of marriage” — its limitation to two
people. Douglas writes: “The abhorrence of bigamy appears to stem again from the
traditional view of marriage as the exclusive locus for a sexual relationship and from
a reluctance to contemplate such a relationship involving multiple partners.”
Critics of legalizing same-sex marriage have occasionally argued that once gender
is removed from the definition of marriage, there will be little rationale to limit the
number of people in a marriage. This “slippery slope” argument is usually derided
by advocates of same-sex marriage as being made in bad faith. What most people
do not know is that the argument for the legal recognition of polyamory is more
likely today to be raised in legal circles by leading proponents of close relationship
theory, not critics of same-sex marriage. Much talk about polyamory is coming from
the left, not the right. Hoping to ride the coattails of the gay marriage movement,
some, like the Unitarian Universalists for Polyamorous Awareness, are now pushing
for liberal religious traditions to recognize multiple-partner marriage.
Similarly, Beyond Conjugality raises the question of whether the new legal
category of “close personal relationship” should be “limited to two people.” The
report insists that “the values and principles of autonomy and state neutrality
require that people be free to choose the form and nature of their close personal
Roger Rubin, a former vice-president of the National Council
on Family Relations, is confident that the current movement to redefine marriage
“has set the stage for a broader discussion over which relationships should be legally
Professor Elizabeth Emens of the University of Chicago Law School
has followed up with a major legal defense of polyamory.
We discover that in the plastic world of “intimate relationships,” firm distinctions
begin to dissipate. Severed from its link to the biology of heterosexual reproduction,
conjugality begins to inflate and morph. The first inflation successfully drew
cohabitating relationships into the marital regime. The second inflation, the assim-
ilation of same-sex relationships, has jumped quickly from the academy into the
courtroom. Its legal victories are beginning to stack up. The legal challenge to the
two-person nature of marriage is only a matter of time.
Yet when the dust settles, there is likely to be real dissatisfaction with the
impoverished horizons of this new paradigm, especially with
its likely negative impact on the lives of everyday people. A
culture of pure relationships is marked by profound intellectual
myopia. It fails to bring into focus fundamental facets of human
life: the fact of sexual difference; the enormous tide of hetero-
sexual desire in human life; the massive significance of
male/female bonding and procreativity; 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 in the current
debate, even alluding to them typically invites blank, angry stares. At this crucial
moment for marriage and parenthood in North America, there appears to be no
serious intellectual platform from which to launch a meaningful discussion about
these elemental features of human existence. About these fundamentally important
issues, contemporary family law scholarship is both silent and dismissive.
Parenthood: The Next Legal Frontier
HOW WILL MOVING “beyond conjugality” affect legal notions of parenthood?
Marriage organizes and helps to secure the basic birthright of children, when
possible, to know and be raised by their own mother and father. A pivotal purpose
of this social institution has been to forge a strong connection between
male/female bonds and the children resulting from those bonds. Moving beyond
the conjugal view of marriage inevitably involves a legal reevaluation of the rela-
tionships between children and their parents. In particular, what is being put into
play is the idea of biological parenthood as a fixed right that the state is obliged
The Civil Marriage Act proposed by the Canadian government not only redefines
marriage but also simultaneously eliminates the category of “natural parent” from
federal law and replaces it with the category of “legal parent.”
This kind of move
threatens a fundamental reconfiguration of the norms of marriage and parenthood.
Some indication of the future might lie in the reports put out by the American
Law Institute and the Law Commission of Canada. These reports have much to say
about parenting, much of which may be disturbing to parents.
The bedrooms of the
nation still produce
Beyond Conjugality draws a bright line between marriage (a recognized close
personal adult relationship) and parenthood. The authors argue that these two
categories “raise very different issues.”
Parenthood is not related to marriage.
The central purpose of marriage is “to provide an orderly framework in which
couples can express their commitment to each other and voluntarily assume a
range of legal rights and obligations.”
Children are stripped from the core
meaning of marriage and instead shuffled into another category of close personal
relationships known as “intergenerational relationships that involved the rearing
The American Law Institute carries its suspicion of legally enforced norms in
family life into the very definition of parenthood. For the ALI authors, even age-old
standards, such as the one stating that family law should operate in “the best
interests of children,” are questioned on the grounds that they introduce moral
norms into family law.
Katherine Bartlett, one of the ALI authors, writes that too often this age-old
standard masks normative judgments about preferred models of child-parent
[T]he best interests of the child is a highly contingent social construction. Although
we often pretend otherwise, it seems clear that our judgments about what is best
for children are as much the result of political and social judgments about what kind
of society we prefer as they are conclusions based upon neutral or scientific data
about what is “best” for children. The resolution of conflicts over children ultimately
is less a matter of objective fact-finding than it is a matter of deciding what kind of
children and families — what kind of relationships — we want to have.
In the ALI report, Bartlett and her co-authors worry that any appeal to an
“objective” standard for parental conduct might threaten the one value that figures
most prominently throughout the pages of their report, that of family diversity:
[E]ven when a determinate standard conforms to broadly held views about what
is good for children, it can intrude — just as indeterminate standards do — on
matters concerning a child’s upbringing that society generally leaves up to parents
themselves, and standardize child-rearing arrangements in a way that unnecessarily
curtails diversity and cultural pluralism.
In a lecture, Bartlett notes proudly that she and her team were able to come up
with a “default rule that avoids these kinds of empirical and normative assumptions
about the family and is, accordingly, less family-standardizing.”
This “default rule”
points to past parenting practices. How individual adult claimants have historically
participated in the day-to-day raising of the children with whom they are in close
relationship will determine their parental status: “[This rule] operates not from a
state-determined, family-standardizing ideal but from where the parents themselves
left off. It is based not on empirical evidence of the experience of families in the
aggregate but on the individual experiences of the family before the court.”
Moreover, methods of determining custody or parental arrangements must be chal-
lenged if they “run counter to the commitment this society
avows toward family diversity.”
In service of this goal, the ALI report affirms “the positive
correlation between the interests of the parents and the welfare
of their children.”
It argues that the courts must carefully
respect the diverse choices and lifestyles of parents since the
“improved self-image” of the parents rebounds to the “ultimate
benefit” of the child.
It suggests that the law must protect and
foster parental “self-esteem.” If basic self-esteem needs are not
met in the judicial process, then “parents are more likely to
engage in strategic, resentful or uncooperative behavior from which children may
This broad support for any family that adults dream up is supposed to be in the
interests of children. But just in case, and with remarkable bluntness, the ALI report
notes: “Even a child’s awareness of such a relationship, or dislike of the individual
with whom a parent has developed an intimate relationship, should not justify
interferences relating to the child’s welfare or parental fitness; children cannot be
protected from every source of unhappiness and unease.”
In the ALI report, even the question “who is a parent?” is up for grabs. In a
nutshell, their viewpoint states that “unless otherwise specified, a parent is either a
legal parent, a parent by estoppel, or a de facto parent.” The category of the natural
or biological parent does not figure as an independent category in this threefold
classification, nor do adoptive parents. Instead, biological and adoptive parents are
folded into the other three categories.
Traditionally, parent by estoppel has been the case in which a man, in good
faith, believes that he is the father of his spouse’s child and continues fully accepting
his parental responsibilities even after he learns that he is not the biological father.
The ALI report pries open this concept in order to offer it to any biologically unre-
lated person who wants to take on parenting responsibilities. Thus, a parent could
be a person who “lived with the child since the child’s birth, holding out and
accepting full and permanent responsibilities as parent, as part of a prior co-parenting
agreement with the child’s legal parent.”
The report thus defines a parent by
estoppel as “an individual who, even though not a legal parent, has acted as a parent
under specified circumstances which serve to estop [stop, block] the legal parent
from denying the individual’s status as a parent.” This category is “afforded all of
the privileges of a legal parent.”
The ALI’s close relationship
parenthood into a domain
created by the state.
The extension of the category of estoppel aims, in part, at legalizing the parental
status of same-sex partners:
[This report] contemplates the situation of two cohabiting adults who undertake to
raise a child together, with equal rights and responsibilities as parents. Adoption is
the clearer, and thus preferred, legal avenue for recognition of such parent-child
relationships, but adoption is sometimes not legally available or possible, especially
if one of the adults is still married to another, or if the adults are both women, or
What is missing from the triad of legal parent, parent by estoppel, and de facto
parent? What is missing is the core idea that parenthood is a category based on bio-
logical realities beyond governmental redefinition. The legal definition of parent is
severed from its deep links to biology and based on a more pliable assessment of
the people who are said to care for a child on a day-to-day basis. Parenthood thus
becomes a flexible category that gives courts and legislatures the capacity to redefine
parental relationships based on evolving standards. In the ALI report, these standards
are typically portrayed as “permissive.” For example, if an adult wishes to take on
quasi-parental responsibilities for a child, the courts should enforce his or her rights.
But in principle, if the best interests of the child require the imposition of parental
responsibilities on unrelated adults, there is no good reason in the ALI worldview
to abstain from doing so. By living with a parent, a boyfriend or girlfriend can acquire
legally enforceable rights to a child. They may also (and this point is typically unclear)
acquire legally enforceable responsibilities. Parenthood becomes a flexible legal
category, with the courts — rather than the child’s existing parents — determining
when a person has devoted enough care and attention to an unrelated child to
acquire parental rights.
Such proposals attribute a great deal of intention and self-awareness to choices
that adults often make without thinking them through a great deal. For instance,
does a father really intend for his current live-in girlfriend to have a long-term role
as a “parent” in his child’s life, even after he breaks up with her, simply because he
welcomed her caring for his child while they lived together? When a parent remarries,
he or she makes an active decision to form a new family, to bring a stepparent into
their child’s life in a parent-like role. Do cohabiting parents approach the decision
to move in together with the same sense of investment? Some may, but many may
not and may avoid marriage precisely because they are unsure how long they want
the relationship to last or how much influence they want their current love interest
to have in their child’s life. Surely some adults would be aghast to think that, simply
by living with a child’s parent, the law might someday require them to take on
financial or other responsibilities for the child, even if they were no longer involved
with the child’s parent.
Almost as an afterthought, the ALI’s new close relationship marital regime
transforms parenthood into a domain created by the state. One scholar writes that
the traditional “privileging of biological parenting” represents a “heterosexual”
constraint on “the wide range of family forms and practices.”
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.
Jonathan Herring, who sees such fragmentation as a positive
change, identifies five contemporary varieties of parenthood.
First, he writes, there is “genetic parenthood,” the individuals
that supply the egg and sperm needed to produce a baby. Second, there is “coital
parenthood,” the union of sperm and egg (typically, but not always, in heterosexual
intercourse). Third, there is “gestational parenthood,” the carrying of the fetus by a
Fourth, there is “post-natal (social or psychological) parent-
hood,” the raising of the child after birth. Finally, there is a fifth category that the
author calls “intentional parenthood,” when an adult or adults who intend to be
parents initiate a process (through surrogacy or assisted reproduction) leading to
the birth of a child.
All five forms of parenting can be analytically and practically separate from one
another, as diverse adults participate in the distinct activities of supplying genetic
material, conceiving, carrying, birthing, and nurturing.
Might breaking parenthood up into all its constituent parts lead to some confusion?
The American Law Institute report authors think so. They explore this expanding
pastiche of parental identities that Herring sifts out of current legal debates, trying
to open new legal doors to accommodate the fragmentation. One scholar, Richard
Storrow, argues that the report’s shift towards a functional view of parenthood is
heading in exactly the right direction, but suggests that the tweaking of legal categories
will have to go further. Specifically, Storrow argues that the interests of “intentional
parents” must be addressed.
Parenthood by “pure intention” represents the full
cultural shift from an emphasis on “biogenic unity” to an emphasis on “the family
Parents who set the process in motion through assisted reproduction
or surrogacy become his ideal type for this type of parenthood.
One rather large problem with this idea is that about half of pregnancies today
are still unplanned. They are “unintentional.” The brave new world of intentional
parenthood is supposed to provide a child for every adult who wants one. But let’s
flip the picture and look at the situation from the child’s point of view. If intention,
not biology, becomes the thin legal ground holding parents accountable to their
children, what happens to all the children who are conceived in a moment when
Is the father’s
ex-girlfriend a parent?
they were not actively wanted by both parents? At a minimum, how will the state
enforce child support payments from fathers who can claim that they never intended
to be a parent in the first place? If enough parents were to buy the American Law
Institute view that biology is essentially unimportant, are there enough “intentional”
adoptive parents out there to raise all the “unintended” children who happen to be
In their push to delink law from biology, legal reformers seem blind to the basic
facts of human reproduction. Only the tiniest fraction of babies are born today
through elaborate fusions of genetic, coital, and gestational parenthood. The baby
born of one woman’s eggs, in another woman’s womb, with the aid of a sperm
donor, rates headlines precisely because the event is so rare. The vast majority of
babies are still born, both intentionally and not, to men and women who are
engaging in the passionate and often unpredictable business of sex.
Fragmentation of parenthood means more fragmented lives for children who
will be jostled around by an increasingly complex set of adult claims. It also means
more systematic intrusion into the family and adjudication of its internal life by the
state and its courts.
To address the problem, the courts might be wise to consider an old idea:
marriage. When it works, marriage unfragments. It manages to hold together the
intentional, the biological (genetic, coital, and gestational) and the psychological
and social dimensions of parenthood. It creates a thick social ecology that integrates,
rather than endlessly fractures, the basic features of human parenthood.
Across cultures, the institution of marriage works to support the ties of natural and
adoptive parents to their children. It provides broad public affirmation and support
for this type of bond. It enshrines a basic birthright of children whenever possible to
know, to be connected to, and to be raised by both of their biological parents. It does
so in a robust but malleable way (with the possibility of adoption for exceptions to
The United Nations Convention on the Rights of the Child states that “the
child shall … have the right from birth to a name, the right to acquire a nationality
and, as far as possible, the right to know and be cared for by his or her parents” (Art.
The authors of this convention brilliantly recognize several key features of
children’s individual identity and security — having a name, being a citizen of a
nation whose laws protect you, and, whenever possible, being raised by the two
people who made you.
New legal changes threaten further to undermine this birthright. For instance,
whatever one feels about the merits of same-sex marriage, it is clear that legalizing
these unions must, of necessity, diminish the social importance of children being
raised by their own biological parents. Rewriting marriage laws to accommodate
same-sex unions sends a powerful signal to the vast majority of would-be parents,
who are heterosexuals, that the law is not explicitly concerned about children
being raised whenever possible by their biological mother and father. Even candid
advocates for same-sex marriage recognize that the inclusion of these unions in the
social ecology of parenting entails fundamental shifts for children. One advocate
concedes (and celebrates) the fact that building law upon gay experience
involves the reconfiguration of family — de-emphasizing blood, gender, and kinship
ties and emphasizing the value of interpersonal commitment. In
our legal culture the linchpin of family law has been the marriage
between a man and a woman who have children through pro-
creative sex. Gay experience with “families we choose” delinks
family from gender, blood, and kinship. Gay families of choice
are relatively ungendered, raise children that are biologically
unrelated to one or both parents, and often form no more than
a shadowy connection between the larger kinship groups.
Precisely this disconnect between children and natural parents is the new legal
vision of marriage that has emerged out of the recent Canadian judgments in favor
of same-sex marriage in Ontario, British Columbia, and Quebec. These decisions
evaluate two features: the unity of the couple and functional parenthood (that is,
the day-to-day raising of children). In this view, the procreative link between marriage
and children drops completely out of view, as well as the genealogical rights of
children to know and be connected to their ancestors. Further, in Canada’s proposed
new Civil Marriage Act, the redefinition of marriage requires the elimination of the
category of “natural parent” across federal law. Parenthood is thus transformed into
a legal construct that has no inherent relationship to sexuality and childbirth.
In the world of the Principles of the Law of Family Dissolution and Beyond
Conjugality, adults construct relationships and children adjust. This understanding
of parent-child relationships frees adults to live as they choose. But the data strongly
suggest that not all adult constructions of parenthood are equally child-friendly. For
example, the common assumption of those who advocate for flexible definitions of
parenthood is that children are just as safe in continuing contact with non-biologi-
cally related caretakers as they are with biological parents. But the actual evidence
points in the opposite direction. A large body of social scientific evidence now
shows that the risk of physical or sexual abuse rises dramatically when children are
cared for in the home by adults unrelated to them, with children being especially
at risk when left alone with their mothers’ boyfriends. Robin Wilson, a legal scholar
at the University of Maryland, has presented the empirical evidence of increased
risk in an article in the Cornell Law Review.
To put it mildly, the data suggest
that legal theorists are standing on very thin ice when they dismiss or debunk the
significance of biological parenthood.
Delinking parenthood from marriage, embracing the variety of relationships
that adults construct as the new “standard,” and conceptualizing the parent-child
Intention, not biology,
holds parents accountable
to their children.
relationship as just another “close relationship,” may free adults to live in the
diverse family types they choose, but it seriously undermines the law’s historic role
to seek to protect the best interests of children. Children need and desire, whenever
possible, to be raised by their own parents.
Though fallible, marriage is society’s
best known way to try to fulfill that need. A legal system that moves its emphasis
“from partners to parents” may sound good for children, but the actual practice of
fragmenting parenthood and valuing “intentional” parenthood over all else will
ultimately leave children more, rather than less, insecure.
SOCIAL INSTITUTIONS ARE constituted by their shared public meanings. The legal
imposition of new and contested public meanings upon marriage and parenthood
represents the power of the state hard at work in the soft-shelled domain of civil
society. This legal and political imposition on marriage seeks to re-engineer the
authoritative public norms of these institutions on the basis of appeals to relatively
new theories of diversity, relationality, and functional parenthood.
This trend raises fundamental questions for liberalism. Is the state violating the
measured distance that the liberal state should adopt towards the basic institutions
of civil society? Are the courts legally imposing a sectarian form of social liberalism?
Are the courts abandoning their traditional role of protecting civil society from
encroachment by the state?
These moves also hold questions for the future of marriage itself. Institutions
like marriage and parenthood are not simply mechanisms to fulfill individual needs
and aspirations. They are also thick, multi-layered realities that speak to the needs
for meaning and identity within human community. Marriage is the complex cultural
site for opposite-sex bonding. A rich heritage of symbols, myths, theologies, tradi-
tions, poetry, and art has clustered around the marital bond. To change the core
features of marriage is to impact real people, adults and children, whose lives will
be significantly shaped by the renewal or decline of this institution.
The type of legal theorizing proposed by the American Law Institute’s Principles
of the Law of Family Dissolution and the Law Commission of Canada’s Beyond
Conjugality systematically marginalizes, and drives to the very periphery of public
law, the core features of conjugal marriage and parenthood. The complex social
institution of marriage does require ongoing change to sustain and enrich its devel-
opment. But the well-being of children, parents, couples, and society is seriously
threatened by the push to “de-normalize” the core features of marriage and parent-
hood and to strip their historic public meanings from law and public discourse.
In this remade world, marriage is reconstituted in order to celebrate relationship
diversity. What drops out of view? Quite a lot, it turns out. Marriage serves critical
purposes in human culture. It addresses the fact of sexual difference between men
and women, including the unique vulnerabilities that women face in pregnancy and
childbirth. It promotes a unique form of life and culture that integrates the goods
of sexual attraction, interpersonal love and commitment, childbirth, child care and
socialization, and mutual economic and psychological assistance. It provides a
social frame for procreativity. It fosters and maintains connections between children
and their natural parents. It sustains a complex form of social interdependency
between men and women. It supports an integrated form of parenthood, uniting
the biological (or adoptive), gestational, and social roles that parents play.
The value of diversity is key to justice in our civil society. But by itself, diversity
is an inadequate basis for understanding marriage as an institution. The diversity-
trumps-everything approach marginalizes what tradition, religion, and even now
the social sciences tell us about family formation, parenting, and children’s well-
Can an insistence on family diversity as our primary lodestar offer any meaningful
insight into the distinctive significance of marriage in human culture? Can close
relationship theory stir up any reflective wonder about the remarkable social-sexual
ecology that animates human culture? Can functional parenthood capture the deep-
seated human concern for connection between children and their natural parents?
For most ordinary citizens on both sides of this longest border in the world, the
common sense answer to these questions is “no.”
This rough human wisdom suggests that our leading academics and legal theorists
may be getting it wrong. Not just a little wrong. Not just wrong in a few places. But
deeply, fundamentally wrong. Perhaps we should insist that they go back to the
drawing board and try to get it right.
1. Recognize that marriage is a social institution, not merely individuals following
laws devised by legal professionals.
2. Identify and encourage people going into the field of family law who will seek
to strengthen rather than weaken marriage.
3. A minimum five-year moratorium should be placed on any changes to the laws
affecting the definition of marriage. The purpose of the moratorium is to allow for
informed democratic consultation and deliberation.
4. Research into family law should broaden its base and welcome a more interdis-
ciplinary approach to issues of marriage, parenthood, and family. Legal research
associations such as the American Law Institute and the Law Commission of Canada
should recognize the limits of their competence to reform these fundamental features
of ordinary life. Their work should be undertaken in a far more interdisciplinary,
exploratory, and collaborative way.
5. Governments should foster more democratic consultation and deliberation on
the question of the role of marriage in society. Broad-based representative commis-
sions should be formed to explore public interest concerns in the area of marriage
and family life. These commissions should consist primarily of those affected by
changes to the institution of marriage: ordinary citizens, cultural communities, marriage
and family life associations, and religious communities, rather than lawyers and
6. Governments and universities should invest in more research on marriage and
family life. Research should focus on the following:
Gathering relevant statistical information on national trends and developments in
marriage, parenthood and family life;
Gathering cross-cultural and trans-national data;
Interdisciplinary conferences, research and programs on marriage, parenthood
and family life;
Research on the impact of diverse family forms on the well-being of children; and
Research to track properly the shifting attitudes and behaviors of youth culture
in relationship to marriage and pathways to marriage.
1. John Dewar, “Family Law and Its Discontents,” International Journal of Law, Policy
and the Family 14 (2000): 59-60.
3. Douglass C. North, Institutions, Institutional Change, and Economic Performance
(New York: Cambridge University Press, 1990a). The “new institutionalism” in economics,
sociology, and social anthropology underlines the critical importance of public norms and
rules. For some classic discussions see North as well as Mary C. Brinton and Victor Nee,
eds., The New Institutionalism in Sociology (New York: Russell Sage Foundation, 1998);
Mary Douglas, How Institutions Think (Syracuse, NY: Syracuse University Press, 1986).
4. Harry Krause, “Marriage for the New Millennium: Heterosexual, Same-Sex — Or Not
At All?” Family Law Quarterly 34 (2000): 284-85.
5. Paul Kahn, The Cultural Study of Law (Chicago: University of Chicago Press, 1999),
6. Beverly McLachlin, “Freedom of Religion and the Rule of Law,” in Recognizing Religion
in a Secular Society, ed. Douglas Farrow (Montreal, QC and Kingston, ON: McGill-Queen’s
University Press, 2004), 14. See also Katharine T. Bartlett, “Re-Expressing Parenthood,” in
Family, State and Law, vol. 2, ed. Michael D. Freeman (Dartmouth: Ashgate, 1999), 163.
7. William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay Rights
(New York: Routledge, 2002), 154.
8. Martha Fineman, The Autonomy Myth: A Theory of Dependency (New York: The New
Press, 2004), 63.
9. “One lesson Professor Waaldjik [a leading European gay law theorist] and I would
draw [from the experience of same-sex marriage] … is that legal recognition of same-sex
marriage comes through a step-by-step process.… Such a process is sequential and
incremental: it proceeds by little steps. Registered partnership laws have not been adopt-
ed until a particular country has first decriminalized consensual sodomy and equalized the
age of consent for homosexual and heterosexual intercourse; then has adopted laws pro-
hibiting employment and other kinds of discrimination against gay people; and, finally, has
provided other kinds of more limited state recognition for same-sex relationships, such as
giving legal benefits to or enforcing legal obligations on cohabiting same-sex couples. That
the Netherlands has just recognized same-sex marriages was facilitated by its prior recognition
of, and successful experience with, registered partnerships.” Eskridge, Equality Practice,
10. “[L]aw cannot liberalize unless public opinion moves, but public attitudes can be
influenced by changes in the law. For gay rights, the impasse suggested by this paradox
can be ameliorated or broken if the proponents of reform move step by step along a
continuum of little reforms. [There are] pragmatic reasons why such a step-by-step process
can break the impasse: it permits gradual adjustment of antigay mindsets, slowly empowers
gay rights advocates, and can discredit antigay arguments.” Ibid., 154.
11. Ibid., 225. Margaret Brinig notes that Canada proceeded along a series of small steps
towards legalizing same-sex marriage. See “Chapter 6 and Default Rules,” in Reconceiving
the Family: Critical Reflections on the American Law Institute’s Principles of the Law of
Family Dissolution, ed. Robin Wilson (Cambridge: Cambridge University Press, forthcoming).
The same case has also been made for Norway and Scandinavia; see Turid Noack,
“Cohabitation in Norway: An Accepted and Gradually More Regulated Way of Living,”
International Journal of Law, Policy and the Family 15 (2001): 102-17.
12. John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University
Press, 2001), 162.
13. John Locke, Second Treatise on Government, chap. VII, sec. 78.
14. Rawls, Justice as Fairness, 162-3.
15. See Maggie Gallagher and Joshua K. Baker, “Do Moms and Dads Matter? Evidence
from the Social Sciences on Family Structure and the Best Interests of the Child,” Margins
4 (2004): 161-180.
16. Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, Marriage from a Child’s
Perspective: How Does Family Structure Affect Children and What Can We Do About It?
Child Trends Research Brief (Washington, DC: Child Trends, June, 2002), 1. Also available
at http://www.childtrends.org/files/MarriageRB602.pdf. For more evidence of the importance
of intact families for children see Sandra L. Hoffreth and Kermyt G. Anderson, “Are all dads
equal? Biology versus marriage as a basis for paternal investment,” Journal of Marriage and
Family 65, no. 1, (2003): 213-32; and Wendy D. Manning and Kathleen A. Lamb,
“Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families,” Journal of
Marriage and Family 65, no. 4, (2003): 876-93.
17. This line of argument is common in evolutionary psychology. For discussions of kin
altruism and parental investment see chapter three in Louise Barrett, Robin Dunbar, and John
Lycett, Human Evolutionary Psychology (Princeton, NJ: Princeton University Press, 2002);
Mary Daly and Margo Wilson, Sex, Evolution and Behavior (Belmont, CA: Wadsworth, 1978).
18. Halpern v. Canada (Attorney General),  225 D.L.R. (4th) 529 (Can.), par. 130;
Goodridge v. Department of Public Health, 798 N.E.2d 941, 961-64 (2003).
19. See Dan Cere, The Experts’ Story of Courtship (New York: Institute for American
Values, 2000), 15-31.
20. See, for example, Linda J. Waite and Maggie Gallagher, The Case for Marriage: Why
Married People Are Happier, Healthier and Better-Off Financially (New York: Doubleday,
21. See David Popenoe and Barbara Dafoe Whitehead, The State of Our Unions: The
Social Health of Marriage in America, 2001, (Rutgers, NJ: The National Marriage Project,
22. Anthony Giddens, The Transformation of Intimacy: Sexuality, Love and Eroticism in
Modern Societies (Stanford, CA: Stanford University Press, 1992), 58.
23. John Scanzoni, Karen Polonko, Jay Teachman, and Linda Thompson, The Sexual
Bond: Rethinking Families and Close Relationships (Newbury Park, CA: Sage Publications,
1989), 9, 13.
24. One consequence of this flattening of marriage into a close personal relationship is
that the public meaning of marriage must be redefined and shaped by the common patterns
of same-sex relationships, not the distinctive capacities of opposite-sex ones. The Ontario
Court of Appeals was blunt. It stated that the law of marriage needed to be redesigned to
meet the “needs, capacities and circumstances of same-sex couples, not … the needs,
capacities and circumstances of opposite-sex couples.” This view rested on the basis that
“the purpose and effects of the impugned law must at all times be viewed from the
perspective of the claimant.” Halpern v. Canada (Attorney General),  225 D.L.R. (4th)
529 (Can.), par. 91.
25. For a generalized discussion of how institutional frameworks (like scholarly disciplines)
make certain kinds of thoughts “unthinkable,” see Douglas, How Institutions Think (see n. 3).
26. Scanzoni, et al., The Sexual Bond, 9, 13.
27. Julia Wood and Steve Duck, “Off the Beaten Track: New Shores for Relationship
Research,” in Understudied Relationships: Off the Beaten Track, ed. Julia Wood and Steve
Duck (Thousand Oaks, CA: Sage, 1995).
28. Scanzoni, et al., The Sexual Bond, 14-24.
29. The European Commission on Family Law is also proposing major legal reforms to
harmonize European family law codes. One of its most recent reports is Principles of
European Family Law Regarding Divorce and Maintenance between Former Spouses
(Antwerp: Intersentia, 2004).
30. The Principles of the Law of Family Dissolution is the work of a select group of legal
academics who had enormous autonomy in the development of this report. David Westfall
raises some critical concerns about the controlled nature of the consultative process. See
“Unprincipled Family Dissolution: The American Law Institute’s Recommendations for
Spousal Support and Division of Property,” Harvard Journal of Law and Public Policy 27
31. American Law Institute, Principles of the Law of Family Dissolution: Analysis and
Recommendations (Philadelphia: American Law Institute, 2002), chap. 1, I-III (hereinafter
32. For example, see the discussion of “prohibited factors” in the analysis of “Criteria
for Parenting Plan,” ALI Principles, sec. 2.12.
33. Ibid., chap. 1, I.b.
34. Ibid., sec. 2.02, cmt. c.
35. Katharine T. Bartlett, “Saving the Family from the Reformers” (Brigitte M.
Bodenheimer Memorial Lecture on the Family), University of California, Davis Law Review
31 (1998): 817.
36. ALI Principles, chap. 6.
37. Ibid., chap. 1, “Overview of Chapter 6 (Domestic Partners).”
38. Ibid., sec. 6.03.
39. Ibid., chap. 1, “Overview of Chapter 6 (Domestic Partners).”
40. Ibid., chap. 1, I.b.
41. Ibid., chap. 1, IV.b.
43. “In the context of marital failure, however, the word ‘cause’ has no such meaning,
and its use simply masks a moral inquiry with a word pretending a more objective
assessment. Some individuals tolerate their spouse’s drunkenness or adultery and remain
in the marriage. Others may seek divorce if their spouse grows fat, or spends long hours
in the office. Is the divorce ‘caused’ by one spouse’s offensive conduct, or by the other’s
unreasonable intolerance? In deciding that question the court is assessing the parties’ relative
moral failings, not the relationship between independent and dependent variables. And the
complexity of marital relations of course confounds the inquiry.” Ibid., chap. 1, III.a(1).
46. Law Commission of Canada, “Recognizing and Supporting Close Personal Relationships
Between Adults” (discussion paper) (Ottawa: Law Commission of Canada, 2000), sec. 2(b).
47. Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close
Personal Adult Relationships (Ottawa: Law Commission of Canada, 2001), xxiv-xxv (hereinafter
48. Brenda Cossman and Bruce Ryder, Gay, Lesbian and Unmarried Heterosexual
Couples and the Family Law Act: Accommodating a Diversity of Family Forms (Toronto,
ON: Ontario Law Reform Commission, 1993), 5.
49. Beyond Conjugality, xxii-xxiii, 13-15.
50. In the Ontario Superior Court marriage decision, Justice Robert Blair stated that
“marriage must be open to same-sex couples who live in long-term, committed, relationships
— marriage-like in everything but name — just as it is to heterosexual couples.” Halpern
v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 32.
51. For example, Eskridge’s argument for the similarity of same-sex and opposite-sex
relationships cites as his authorities the research of close relationship theorists Letitia Anne
Peplau and Susan D. Cochrane, “A Relationship Perspective on Homosexuality” in
Homosexuality/Heterosexuality: Concepts of Sexual Orientation, ed. David P. McWhirter
(New York: Oxford University Press, 1990. William N. Eskridge, Jr., The Case for Same-Sex
Marriage: From Sexual Liberty to Civilized Commitment (New York: Free Press, 1996), 109,
52. One consequence of this flattening of marriage into a close personal relationship is
that the public meaning of marriage must be redefined and shaped by the common pat-
terns of same-sex relationships, not the distinctive capacities of opposite-sex ones. The
Ontario Court of Appeal was blunt. It stated in Halpern that the law of marriage needed to
be redesigned to meet the “needs, capacities and circumstances of same-sex couples, not
… the needs, capacities and circumstances of opposite-sex couples” (see n. 24).
53. ALI Principles, sec. 6.01.
54. Ibid., chap. 1, “Overview of Chapter 6 (Domestic Partners).”
55. Ibid., sec. 6.03. Sharing a life together as a couple is characterized by features such
as common commitments or promises to one another (oral or written) or representations
to others of their relationship, economic interdependence, collaborative life together,
evidence that the relationship wrought change in the life of “either or both of the parties,”
responsibilities for each other such as each naming the other as beneficiary, qualitative
distinctiveness of the relationship compared to other relationships, emotional or physical
intimacy of the relationship, assumption of parental functions toward a child.
56. Molodowich v. Penttinen,  17 R.F.L. (2d) 376 (Can.).
57. Under sexual and personal behavior Judge Kurisko posed the following questions:
“Did the parties have sexual relations? If not, why not? Did they maintain an attitude of
fidelity to each other? What were their feelings toward each other? Did they communicate
on a personal level? Did they eat their meals together? What, if anything, did they do to
assist each other with problems or during illness? Did they buy gifts for each other on
special occasions?” Molodowich v. Penttinen, par. 21-27.
58. Macmillan-Dekker v. Dekker  10 R.F.L. (5th) 352 (Can.), par. 68, quoted in
Brenda Cossman and Bruce Ryder, “What is Marriage-Like Like? The Irrelevance of
Conjugality,” Canadian Journal of Family Law 18 (2001): 269, 290.
59. Canada (Attorney General) v. Mossop  1 S.C.R. 554 (Can.), par. 60. In this case
an employee was denied bereavement leave based on family status to attend the funeral
of the father of his same-sex partner. The majority decided against the complainant.
60. M. v. H.,  2 S.C.R. 3 (Can.), par. 60. This ground-breaking decision extended
the right to spousal support to gays and lesbians in same-sex unions.
61. Marsha Garrison, “Is Consent Necessary? An Evaluation of the Emerging Law of
Cohabitant Obligations,” University of California, Los Angeles Law Review 52 (2005).
62. Roderick A. Macdonald, “All in the Family,” Transition Magazine 30, no. 2 (2000),
63. Miron v. Trudel,  2 S.C.R. 418 (Can.), par. 105; Nova Scotia vs. Walsh,  4
S.C.R. 325 (Can.), par. 42.
64. Much research in Canada and Europe combine “formal” and “informal” couples in
one category. While this may be a justifiable decision for some purposes it has the side
effect of making it impossible to discern in those studies whether and how married and
cohabiting couples differ.
65. William J. Doherty, et al., Why Marriage Matters: 21 Conclusions from the Social
Sciences (New York City: Institute for American Values, 2002), 7-8 (internal citations omitted).
66. “Fully three-quarters of children born to cohabiting parents will see their parents
split up before they reach age sixteen, whereas only about a third of children born to married
parents face a similar fate. One reason is that marriage rates for cohabiting couples have
been plummeting. In the last decade, the proportion of cohabiting mothers who go on to
eventually marry the child’s father declined from 57% to 44%.” From David Popenoe and
Barbara Dafoe Whitehead, Should We Live Together? What Young Adults Need to Know
about Cohabitation Before Marriage, 2nd ed. (Piscataway, NJ: National Marriage Project,
2002), 8. They cite Wendy Manning, “The Implications of Cohabitation for Children’s Well-
Being,” in Just Living Together: Implications for Children, Families, and Public Policy, ed.
Alan Booth and Ann C. Crouter (Hillsdale, NJ: Lawrence Erlbaum Associates, 2002).
67. James M. Donovan, “An Ethical Argument to Restrict Domestic Partnerships to Same-
Sex Couples,” Law and Sexuality 8 (1998): 649.
68. Terry Kogan, “Competing Approaches to Same-Sex Versus Opposite-Sex, Unmarried
Couples in Domestic Partnerships and Ordinances,” Brigham Young University Law Review
69. Jonathan Rauch argues for this approach in Gay Marriage: Why It is Good for Gays,
Good for Straights, and Good for America (New York: Henry Holt and Company, 2004).
70. See, for instance, Prime Minister Paul Martin’s opening speech in favor of the new
Civil Marriage Act, House of Commons, Hansard, Feb. 16, 2005.
71. Halpern v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 243.
72. Goodridge, which on November 18, 2003, rendered a four-three decision in favor
of same-sex marriage, was the American version of Halpern v. Canada. The quoted phrases
are drawn from the opinion of Justice Greaney. Goodridge v. Department of Public Health,
798 N.E.2d 941, 968 (2003); Palmore v. Sidoti 466 U.S. 429, 433 (1984). See also the opinion
of Justices Marshall, Greaney, Ireland, and Cowin in Opinion to the Senate, 802 N.E.2d 565,
73. Baehr v. Lewin, 74 Haw. 530, 570 (1993).
74. “The Courts are not the best equipped to conduct such a balancing exercise, in my
opinion. This is not an incremental change in the law. It is a profound change. Although
there may be historical examples of the acceptance of same-sex unions, everyone
acknowledges that the institution of marriage has been commonly understood and accepted
for centuries as the union of a man and a woman. Deep-seated cultural, religious, and
socio-political mores have evolved and shapes society’s views of family, child-rearing and
protection, and ‘couple-hood’ based upon that heterosexual view of marriage. The apparent
simplicity of linguistic change in the wording of a law does not necessarily equate with an
incremental change in that law. To say that altering the common law meaning of marriage
to include same-sex unions is an incremental change, in my view, is to strip the word
‘incremental’ of its meaning.” Justice Robert Blair in Halpern v. Canada, 215 D.L.R. (4th)
223 (Can.), par. 97-99.
75. For discussion in the popular press, see for example, John Havelock, “State should
limit role to civil unions,” Anchorage (AK) Daily News, July 31, 2004; Editorial, “Avoid
divisiveness over who marries; Religious bodies should bless holy matrimony; government
should protect civil unions,” San Antonio (TX) Express-News, Nov. 15, 2004; Michael
Kinsley, “Abolish Marriage; Let’s really get the government out of our bedrooms,”
Washington Post, July 3, 2003; Deroy Murdock, “Stop Licensing Marriage,” Scripps Howard
News Service, July 10, 2004.
76. Michael Warner, The Trouble With Normal: Sex, Politics and the Ethics of Queer Life
(Cambridge, MA: Harvard University Press, 2000).
77. Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA:
Harvard University Press, 2001).
78. Nicholas Bala, “Context and Inclusivity in Canada’s Evolving Definition of the
Family,” International Journal of Law, Policy and the Family 16 (2002): 147.
79. See Janet R. Jacobsen and Ann Pelegrini, Love the Sin: Sexual Regulation and the
Limits of Tolerance (New York: New York University Press, 2003); Larry C. Backer, “Religion
as the Language of Discourse of Same Sex Marriage,” Capital University Law Review 2002:
80. “Polyamory” means “many loves,” while polygamy means “many marriages.”
Polyamorous unions of three or more people may or may not involve one or more couples
who are married to one another.
81. Some calling for disestablishment include: Paula L. Ettelbrick, “Domestic Partnership,
Civil Unions, or Marriage: One Size Does Not Fit All,” Albany Law Review 64 (2001): 905;
Dianne Post, “Why Marriage Should Be Abolished,” Women’s Rights Law Reporter 18 (1997):
283; Patricia A. Cain, “Imagine There’s No Marriage,” Quinnipiac Law Review 16 (1996): 27;
Nancy D. Polikoff, “Why Lesbians and Gay Men Should Read Martha Fineman,” American
University Journal of Gender, Social Policy and Law 8 (1999): 167, 176; Martha Albertson
Fineman, The Neutered Mother, the Sexual Family and Other Twentieth-Century Tragedies
(New York: Routledge, 1995), 270-72; Nancy D. Polikoff, “We Will Get What We Ask For:
Why Legalizing Gay and Lesbian Marriage Will Not ‘Dismantle the Legal Structure of Gender
in Every Marriage,’” Virginia Law Review 79 (1993): 1535; Jennifer Jaff, “Wedding Bell Blues:
The Position of Unmarried People in American Law,” Arizona Law Review 30 (1988): 207.
82. Halpern v. Canada (Attorney General),  225 D.L.R. (4th) 529 (Can.), par. 150.
83. Department of Justice Canada, “Marriage and Legal Recognition of Same-Sex
Unions: A Discussion Paper” (discussion paper) (Ottawa: Department of Justice Canada,
84. Beyond Conjugality, 128.
85. Ibid., 118-120.
86. Ibid., 13, 17.
87. For instance see Cossman and Ryder, “What is Marriage-Like Like?” (see n. 58).
88. Ibid., 323.
89. Ibid., 326.
90. This tension in the report may be due to the fact that the composition of the report
occurred under the leadership of two presidents of the Law Commission.
91. In 1880, the first modern papal encyclical on marriage, “On Christian Marriage” by
Leo XIII, expressed serious concerns about the political usurpation of marriage by the
92. Julius Grey, “Equality Rights Versus the Right to Marriage: Toward the Path of
Canadian Compromise,” Policy Options (October, 2003): 33.
93. Gillian Douglas, An Introduction to Family Law, Clarendon Law Series (Oxford:
Oxford University Press, 2001), 30-31.
94. See http://www.uupa.org.
95. Beyond Conjugality, 133, fn.16.
96. See Rubin’s “Alternative Lifestyles Today” in Handbook of Contemporary Families,
ed. M. Coleman and L.H. Ganong (Thousand Oaks: Sage Publications, 2004), 32-33. Note
that same-sex marriage laws also threaten the dyadic restriction on marriage because in
order for same-sex couples to have children without resorting to adoption they must
necessarily involve a third person in order to conceive and bear a child.
97. Elizabeth F. Emens, “Monogamy’s Law: Compulsory Monogamy and Polyamorous
Existence,” New York University Review of Law and Social Change 29 (2005).
98. See Bill C-38, Civil Marriage Act, 1st sess., 38th Parliament (2005), “Consequential
99. Beyond Conjugality, xxiv.
100. Ibid., 129.
101. Ibid., xxiv.
102. ALI Principles, sec. 2.08, cmt b.
103. Bartlett, “Re-Expressing Parenthood,” 173 (see n. 6).
104. ALI Principles, 2.02(c).
105. Bartlett, “Saving the Family from the Reformers,” 852 (see n. 35).
106. Ibid., 853.
107. ALI Principles, 1.01.
108. Ibid., 2.02, reporter’s note a.
110. Ibid., 2.02(b).
111. Ibid., 2.12(f).
112. Ibid., 2.03(1). The legal category will “ordinarily include biological parents,
whether or not they are or ever have been married to each other, and adoptive parents.”
Ibid., 2.03, cmt. a.
113. Ibid., 2.03(1)(b)(iii).
114. Ibid., 2.03(1)(b); ibid., cmt. b.
115. Ibid., 2.03.
116. Helen Rhoades, “The Rise and Rise of Shared Parenting Laws: A Critical
Perspective,” Canadian Journal of Family Law 19 (2002): 107-108.
117. Studies arguing for the deconstruction of the concept of natural parent and kinship
relations include: Sara Franklin and Susan McKinnon, eds., Relative Values: Reconfiguring
Kinship Studies (Durham, NC: Duke University Press, 2001); Judith Butler, “Is Kinship Always
Heterosexual?” in Undoing Gender (New York: Routledge, 2004), 102-130.
118. Most people are familiar with the concept of a surrogate mother, a woman who
carries a baby which is genetically her child with plans to give the baby to another person
or couple after birth. A newer form of surrogacy is the “gestational carrier” who carries a
fetus created by using another woman’s egg. Infertile couples might prefer gestational
carriers because of the possibility of having a baby that is genetically their own and/or the
lower perceived risk that the surrogate will change her mind and keep the child.
119. Jonathan Herring, Family Law (London: Longman, 2001), 264, 305f.
120. Richard F. Storrow, “Parenthood by Pure Intention: Assisted Reproduction and the
Functional Approach to Parentage,” Hastings Law Journal 53 (2002): 597-679; Janet L.
Dolgin, “Choice, Tradition, and the New Genetics: The Fragmentation of the Ideology of
Family,” Connecticut Law Review 32 (2000): 520-566.
121. Storrow, “Parenthood by Pure Intention,” 628.
122. Current legislation in Quebec dealing with sperm donation places the rights of
adults over the rights of children to know their biological parents.
123. This right also implies that children should not to be the subjects or products of
experimental reproductive technologies that may have long-term effects on life, health, and
identity that remain as yet unknown.
124. William N. Eskridge Jr., Gaylaw: Challenging Apartheid in the Closet (Cambridge,
MA: Harvard University Press, 1999), 11.
125. Robin Wilson, “Children at Risk: The Sexual Exploitation of Female Children after
Divorce,” Cornell Law Review 86 (2001) 251, 256.
126. June Carbone, From Partners to Parents: The Second Revolution in Family Law
(New York: Columbia University Press, 2000), 227
127. See F. C. DeCoste’s insightful discussion in “The Halpern Transformation: Same-
Sex Marriage, Civil Society, and the Limits of Liberal Law,” Alberta Law Review 41 (2003):
About the Institute for American Values
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