Case No.

12-17668

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BEVERLY SEVCIK, et al.,
Plaintiffs-Appellants,
v.
GOVERNOR BRIAN SANDOVAL, et al.,
Defendants-Appellees,
and
COALITION FOR THE PROTECTION OF MARRIAGE,
Intervenor-Defendant-Appellee.

On Appeal from the United States District Court
For the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL
The Honorable Robert C. Jones, District Judge

MOTION FOR LEAVE TO EXCEED TYPE-VOLUME
LIMITATION OF APPELLEE COALITION
FOR THE PROTECTION OF MARRIAGE

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
STEWART TAYLOR & MORRIS PLLC
12550 W. Explorer Drive, Suite 100
Boise, ID 83713
Tel: (208) 345-3333

Lawyers for Appellee Coalition for the Protection of Marriage
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Pursuant to Ninth Circuit Rule 32-2, Defendant-Appellee Coalition for the
Protection of Marriage (hereinafter “Coalition”) respectfully requests leave to file
an answering brief in excess of the applicable type-volume limitation. See Fed. R.
App. P. 32(a)(7)(B). In order to adequately respond to Appellants’ 25,529-word
opening brief, the Coalition requests leave to file an answering brief of no more
than 25,200 words. Leave to exceed the type-volume limitation is warranted given
the manifest importance of the issues raised by this appeal and the necessity for the
Coalition to respond to Appellants’ over-length brief. The Coalition’s request is
supported by the Declaration of Monte Neil Stewart filed herewith.
Dated: January 21, 2014 Respectfully submitted,

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
STEWART TAYLOR & MORRIS PLLC
12550 W. Explorer Drive, Suite 100
Boise, ID 83713
Tel: (208) 345-3333

By: s/ Monte Neil Stewart
Monte Neil Stewart

Lawyers for Appellee Coalition for the
Protection of Marriage

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on January 21, 2014.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

s/ Monte Neil Stewart
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Case No. 12-17668

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BEVERLY SEVCIK, et al.,
Plaintiffs-Appellants,
v.
GOVERNOR BRIAN SANDOVAL, et al.,
Defendants-Appellees,
and
COALITION FOR THE PROTECTION OF MARRIAGE,
Intervenor-Defendant-Appellee.

On Appeal from the United States District Court
For the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL
The Honorable Robert C. Jones, District Judge

DECLARATION OF MONTE NEIL STEWART

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
STEWART TAYLOR & MORRIS PLLC
12550 W. Explorer Drive, Suite 100
Boise, ID 83713
Tel: (208) 345-3333

Lawyers for Appellee Coalition for the Protection of Marriage
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I, Monte Neil Stewart, declare as follows:
1. I am a member of the law firm Stewart Taylor & Morris PLLC,
counsel for Defendant-Appellee Coalition for the Protection of Marriage (the
“Coalition”). I make this declaration in support of the Coalition’s Motion for
Leave to Exceed Type-Volume Limitation for its answering brief. I have personal
knowledge of the facts set forth herein.
2. In order to respond to Appellants’ 25,529-word opening brief, the
Coalition requests leave to file an answering brief of no more than 25,200 words.
3. Leave to exceed the type-volume limitation is warranted given the
manifest importance of the issues raised in this appeal and the necessity for the
Coalition to adequately respond to Appellants’ over-length opening brief, which, in
addition to addressing the complex constitutional questions considered by the
district court, addresses also a substantive due process claim not raised below.
4. Consideration of the issues presented in this appeal will require a
careful and thorough analysis of the legal impact of the United States Supreme
Court’s recent opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), on the
issues presented in this appeal. Windsor was entered after the district court ruled
and has yet to be carefully analyzed by any United States Court of Appeals.
5. In Perry v. Brown, No. 10-16696, an appeal that involved issues
similar to those presented here, this Court granted leave to the appellees to file an
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over-length answering brief of no more than 27,000 words. Perry v. Brown, No.
10-16696, Dkt. 145-2, 173.
6. No other party opposes the Coalition’s request. Counsel for
Plaintiffs-Appellants indicated that they would not object to the Coalition’s request
for leave to exceed the type-volume limitation, so long as the Coalition did not
request to file a brief longer than 26,500 words. See Dkt. 20-1 at 5, 20-2 at 5.
7. Based on the reasons set forth herein, the Coalition respectfully
requests leave to file an answering brief of no more than 25,200 words.
I declare, under penalty of perjury under the laws of the United States, that
these facts are true and correct and that this Declaration is executed this 21st day of
January 2014 in Boise, Idaho.

s/ Monte Neil Stewart
Monte Neil Stewart



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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on January 21, 2014.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

s/ Monte Neil Stewart

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Case No. 12-17668

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BEVERLY SEVCIK, et al.,
Plaintiffs-Appellants,
v.
GOVERNOR BRIAN SANDOVAL, et al.,
Defendants-Appellees,
and
COALITION FOR THE PROTECTION OF MARRIAGE,
Intervenor-Defendant-Appellee.

On Appeal from the United States District Court
For the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL
The Honorable Robert C. Jones, District Judge

ANSWERING BRIEF OF DEFENDANT-APPELLEE
COALITION FOR THE PROTECTION OF MARRIAGE

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
STEWART TAYLOR & MORRIS PLLC
12550 W. Explorer Drive, Suite 100
Boise, ID 83713
Tel: (208) 345-3333

Lawyers for Appellee Coalition for the Protection of Marriage
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ii


CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1, Federal Rules of Appellate Procedure, Defendant-
Appellee Coalition for the Protection of Marriage states that it is a Nevada non-
profit corporation in good standing and that it has no shareholders.
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iii


TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ........................................................ ii
TABLE OF AUTHORITIES ........................................................................... vi-xviii
INTRODUCTION .................................................................................................... 1
STATEMENT OF JURISDICTION....................................................................... 10
STATEMENT OF THE ISSUES............................................................................ 10
ADDENDUM OF PERTINENT AUTHORITIES ................................................. 11
STATEMENT OF THE CASE ............................................................................... 11
SUMMARY OF THE ARGUMENT ..................................................................... 16
ARGUMENT .......................................................................................................... 17
I. RELEVANT AND ROBUST LEGISLATIVE FACTS SHOW THAT
SOCIETY HAS GOOD REASONS TO PRESERVE “THE UNION OF A MAN
AND A WOMAN” AS A CORE MEANING OF THE MARRIAGE
INSTITUTION ................................................................................................... 17

A. When parties present competing legislative facts, the
courts defer to those chosen by the government decision-
maker. ................................................................................................. 18

B. The “union of a man and a woman” meaning at the
core of Nevada’s marriage institution provides valuable
social benefits ..................................................................................... 26

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iv

1. The man-woman marriage institution maximizes the likelihood that
children will have both mother and father in their lives, an arrangement
that, on a wide range of indicators of human flourishing, has been shown to
generate the best life-long outcomes....................................................................... 34

a. The man-woman meaning in marriage furthers Nevada’s vital
interest in maximizing the number of children who are raised by their
own two biological parents ........................................................................... 35

b. The man-woman meaning in marriage furthers Nevada’s vital
interest in maximizing the number of children raised by parents who
can at least give them the benefits of gender complementarity .................... 42

c. The man-woman meaning in marriage minimizes fatherlessness in
the lives of children, a condition particularly challenging to children’s
well-being generally. .................................................................................... 46

2. Man-woman marriage protects religious liberties ............................................ 51

C. Plaintiffs’ constricted view of what marriage is does not
negate the legislative facts showing the institution to be much
broader and deeper in its nature and purposes. .................................. 56

II. WHAT MARRIAGE OUGHT TO BE IS A DECISION THAT MUST BE
LEFT TO DEMOCRATIC PROCESSES, ESPECIALLY WHEN THOSE
PROCESSES ARE OPERATING IN A FAIR AND OPEN WAY AND WHERE
GENDERLESS MARRIAGE PROPONENTS ARE EFFECTIVELY
DEPLOYING VERY CONSIDERABLE POLITICAL POWER. .................................... 61

III. NEVADANS HAVE RIGHTLY VALUED THE INTERESTS
SUSTAINING NEVADA’S MARRIAGE LAWS ..................................................... 64

IV. BAKER V. NELSON BINDS THIS COURT TO RULE AGAINST THE
PLAINTIFFS. ................................................................................................... 67

V. WINDSOR SUPPORTS NEVADA’S MARRIAGE LAWS ................................... 68

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v

A. Windsor reviewed a law materially different in
motivation, authority, operation, and consequences from
Nevada’s Marriage Laws. .................................................................. 68

B. Plaintiffs wrongly ask this Court to make the same
mistake that Congress made with DOMA and that
Windsor corrected............................................................................... 72

C. The Plaintiffs wrongly equate DOMA’s
discrimination found unconstitutional in Windsor with
Nevada’s profoundly different decision to preserve the
man-woman marriage institution ....................................................... 74

D. The Plaintiffs wrongly read Windsor as recognizing a
free-standing substantive due process right to “equal
dignity” that requires judicial imposition of a genderless
marriage regime .................................................................................. 77

E. Plaintiffs wrongly read Windsor as basing a “right” to
genderless marriage on “harm” to same-sex couples and
the children connected to their relationships ...................................... 79

VI. THERE IS NO FUNDAMENTAL RIGHT TO A GENDERLESS
MARRIAGE REGIME ......................................................................................... 86

VII. THERE IS NO LEGAL OR FACTUAL BASIS FOR DEPLOYING
“HEIGHTENED SCRUTINY” IN THIS CASE ......................................................... 93

VIII. NEVADA’S MARRIAGE LAWS DO NOT CONSTITUTE SEX
DISCRIMINATION ............................................................................................ 97

IX. NEVADA’S MARRIAGE LAWS ARE NOT THE RESULT OF
ANIMUS AND A BARE DESIRE TO HARM ........................................................... 99

X. NEVADA’S DPA REINFORCES RATHER THAN UNDERMINES THE
CONSTITUTIONALITY OF NEVADA’S MARRIAGE LAWS ................................ 101

CONCLUSION ..................................................................................................... 103
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vi

TABLE OF AUTHORITIES
United States Supreme Court Cases
Baker v. Nelson,
409 U.S. 810 (1972) ................................................................................. 15, 16, 67
Bd. of Regents v. Roth,
408 U.S. 564 (1972) ..............................................................................................81
Dandridge v. Williams,
397 U.S. 471 (1970) ....................................................................... 8, 19, 80, 81, 84
Dred Scott v. Sanford,
60 U.S. (19 How.) 393 (1857) ..............................................................................66
FCC v. Beach Commc'ns, Inc.,
508 U.S. 307 (1993) ....................................................................................... 22, 23
FCC v. Nat'l Citizens Comm. for Broadcasting,
436 U.S. 775 (1978) ..............................................................................................21
Frontiero v. Richardson,
411 U.S. 677 (1973) ..............................................................................................96
Grutter v. Bollinger,
539 U.S. 306 (2003) ................................................................................. 24, 25, 44
Heller v. Doe,
509 U.S. 312 (1993) ....................................................................................... 22, 23
Hicks v. Miranda,
422 U.S. 332 (1975) ..............................................................................................68
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ..........................................................................................15
Kadrmas v. Dickinson Pub. Schs.,
487 U.S. 450 (1988) ..............................................................................................23
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vii

Lawrence v. Texas,
539 U.S. 558 (2003) ..............................................................................................90
Lochner v. New York,
198 U.S. 45 (1905) ................................................................................................66
Loving v. Virginia,
388 U.S. 1 (1967) ..............................................................................................6, 90
Massachusetts Bd. of Ret. v. Murgia,
427 U.S. 307 (1976) ................................................................................................ 8
McConnell v. FEC,
540 U.S. 93 (2003) ................................................................................................15
Otis v. Parker,
187 U.S. 606 (1903) ..............................................................................................46
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992) ..............................................................................................90
Romer v. Evans,
517 U.S. 620 (1996) ..............................................................................................16
San Antonio Indep. Sch. Dist. v. Rodgriguez,
411 U.S. 1 (1973) .................................................................................................... 8
Shelby Cnty., Alabama v. Holder,
133 S. Ct. 2612 (2013) ..........................................................................................73
Sosna v. Iowa,
419 U.S. 393 (1975) ..............................................................................................75
Tully v. Griffin, Inc.,
429 U.S. 68 (1976) ................................................................................................68
Turner Broadcasting Sys., Inc. v. FCC,
512 U.S. 622 (1994) ..............................................................................................21
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viii

Turner v. Safley,
482 U.S. 78 (1987) ................................................................................................90
Vance v. Bradley,
440 U.S. 93 (1979) ......................................................................................... 22, 24
United States v. Virginia,
518 U.S. 515 (1996) ................................................................................. 18, 44, 46
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................................. passim
Washington v. Glucksberg,
521 U.S. 702 (1997) ...................................................................................... passim
Williams v. North Carolina,
317 U.S. 287 (1942) ....................................................................................... 26, 71
Zablocki v. Redhail,
434 U.S. 374 (1978) ...................................................................................... 86, 90

United States Court of Appeals Cases
Am. Civil Liberties Union of Nevada v. Lomax,
471 F.3d 1010 (9th Cir. 2006) ..............................................................................12
Compassion in Dying v. Washington,
79 F.3d 790 (9th Cir. 1996) ........................................................................... 20, 66
Dunigan v. City of Oxford, Mississippi,
718 F.2d 738 (5th Cir. 1983) ................................................................................19
High Tech Gays v. Def. Indus. Sec. Clearance Office,
895 F.2d 563 (9th Cir. 1990) ......................................................................... 18, 95
Marshall v. Sawyer,
365 F.2d 105 (9th Cir. 1966) ................................................................................18
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ix

Massachusetts v. U.S. Dep't of Health & Human Servs.,
682 F.3d 1 (1st Cir. 2012) .....................................................................................67
United States v. California Mobile Home Park Mgmt. Co.,
107 F.3d 1374 (9th Cir. 1997) ..............................................................................15
United States v. Juvenile Male,
670 F.3d 999 (9th Cir. 2012) ........................................................................ passim

United States District Court Cases
In re Kandu,
315 B.R. 123 (W.D. Wash. 2004) .........................................................................97
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) .......................................................... passim
Libertarian Nat'l Comm., Inc. v. FEC,
930 F. Supp. 2d 154 (D.D.C. 2013) ......................................................................18
Smelt v. Orange,
374 F. Supp. 2d 861 (C.D. Cal. 2005) ..................................................................97
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ......................................................... 86, 97

State Cases
Andersen v. King Cnty.,
138 P.3d 963 (Wash. 2006) ........................................................................... 87, 97
Ass'n of Nat'l Advertisers, Inc. v. FTC,
627 F.2d 1151 (D.C. Cir. 1979) ............................................................................19
Baehr v. Lewin,
852 P.2d 44 (Haw. 1993) ......................................................................................86
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x

Baker v. Vermont,
744 A.2d 864 (Vt. 1999) .......................................................................................97
Conaway v. Deane,
932 A.2d 571 (Md. 2007) .............................................................................. 86, 97
Dean v. District of Columbia,
653 A.2d 307 (D.C. 1995) ....................................................................................86
Goodridge v. Dep't of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ............................................................ 26, 41, 56, 61
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) .............................................................................. 87, 97
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ......................................................................................97
King v. Bd. of Regents of Univ. of Nevada,
200 P.2d 221 (Nev. 1948) ...................................................................................103
Lewis v. Harris,
908 A.2d 196 (N.J. 2006) .....................................................................................86
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) .....................................................................86
Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974) .................................................97
Standhardt v. Super. Ct.,
77 P.3d 451 (Ariz. Ct. App. 2003) ........................................................................86
Van Sickle v. Haines,
7 Nev. 249 (1872) .................................................................................................11
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ...............................................................................41

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xi

Foreign Cases
Hyde v. Hyde, (1866) 1 L.R.P. & D. 130 .................................................................11

Statutes
1 U.S.C. § 7 ..............................................................................................................69
28 U.S.C. § 1983 ......................................................................................................13
Defense of Marriage Act, Pub. L. No. 104-199, § 3, 110 Stat. 2419
(1996) ..................................................................................................................... 69
Laws of Territory of Nevada, Part 2:33: 1861 ......................................................... 11
Nev. Stat. § 88 (1876) ..............................................................................................11
Nev. Rev. Stat. § 122.020 ................................................................................. 11, 53
Nev. Rev. Stat. §§ 122A.040 ...................................................................................13
Nev. Rev. Stat. § 122A.100(1)(a)(1)........................................................................13
Nev. Rev. Stat. § 122A.200(1)(a) ............................................................................13
Nev. Rev. Stat. § 122A.510 ............................................................................ 13, 102

Constitutional Authorities
Nev. Const. art. I, § 21 ...................................................................................... 11, 12
Nev. Const. art. XIX, § 2(1) .....................................................................................12
Nev. Const. art. XIX, § 2(4) .................................................................................... 12


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xii

Rules
Ninth Circuit Rule 28-2.7 ........................................................................................11

Other Authorities
3 W. Cole Durham & Robert Smith, Religious Organizations and the Law §§
14:20 to 14:30 (2013) .................................................................................... 51, 52
Adam J. MacLeod, No Interest in Fathers, Public Discourse, Jan. 14, 2014,
http://www.thepublicdiscourse.com/2014 /01/11034/ ..........................................48
Alan Duke, Hawaii to become 16th state to legalize same-sex marriage,
CNN.com, Nov. 13, 2013, http://www.cnn.com/2013/11/12/us/hawaii-same-sex-
marriage/ ...............................................................................................................63
Alan Wolfe, The Malleable Estate: Is marriage more joyful than ever?, Slate,
May 17, 2005, http://www.slate.com/ id/2118816 ...............................................58
Andrew Sullivan, Recognition of Same-Sex Marriage, 16 Quinnipiac L. Rev. 13
(1996) ....................................................................................................................31
Angela Bolt, Do Wedding Dresses Come in Lavender? The Prospects and
Implications of Same-Sex Marriage, 24 Soc. Theory & Prac. 111 (1998) ...........31
Brenda Hunter, The Power of Mother Love: Transforming Both Mother and Child
(1997) ....................................................................................................................43
Brian Bix, Reflections on the Nature of Marriage, in Revitalizing the Institution of
Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage
112 (Alan Hawkins et al. eds., 2002) ............................................................. 92, 93
Bruce J. Ellis et al., Does Father Absence Place Daughters at Special Risk for
Early Sexual Activity and Teenage Pregnancy?, 74 Child Dev. 801 (2003) .......47
Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L.
Rev. 4 (1996) ................................................................................................. 29, 46
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xiii

Chai R. Feldblum, Moral Conflict and Conflicting Liberties, in Same-Sex Marriage
and Religious Liberty: Emerging Conflicts 123 (Douglas Laycock et al. eds.,
2008) .............................................................................................................. 51, 52
Daniel Cere, War of the Ring, in Divorcing Marriage: Unveiling the Dangers
in Canada's New Social Experiment 9 (Daniel Cere & Douglas Farrow eds.,
2004) .....................................................................................................................31
David Blankenhorn, Fatherless America (1995) .............................................. 43, 47
David Blankenhorn, The Future of Marriage (2007) ........................... 30, 38, 58, 90
David Popenoe, Life Without Father: Compelling New Evidence that
Fatherhood & Marriage are Indispensable for the Good of Children and
Society (1996) ................................................................................................ 43, 47
Deborah A. Widiss, Changing the Marriage Equation, 89 Wash. U.L. Rev.
721 (2012) .............................................................................................................31
Devon W. Carbado, Straight Out of the Closet, 15 Berkeley Women's L.J. 76
(2000) ....................................................................................................................31
Douglas Farrow, Canada's Romantic Mistake, in Divorcing Marriage:
Unveiling the Dangers in Canada's New Social Experiment 1 (Daniel Cere &
Douglas Farrow eds., 2004) ..................................................................................31
Douglas W. Allen, High school graduation rates among children of same-sex
households, 11 Review of Economics of the Household 635 (2013) ..................40
Eerik Lagerspetz, On the Existence of Institutions, in On the Nature of Social
and Institutional Reality 70 (Eerik Lagerspetz et al. eds., 2001) .........................27
Eerik Lagerspetz, The Opposite Mirrors: An Essay on the Conventionalist
Theory of Institutions (1995) ................................................................................27
E.J. Graff, Retying the Knot, The Nation, June 24, 1996, at 12 ..............................31
Elrini Flouri & Ann Buchanan, The role of father involvement in children’s later
mental health, 26 J. Adolescence 63 (2003) .........................................................47
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xiv

Gary J. Gates, LGBT Parenting in the United States, The Williams Institute,
UCLA School of Law (Feb. 2013), http://williamsinstitute.law.ucla.edu/wp-
content/uploads/LGBT-Parenting.pdf ..................................................................50
Gregory Ace et. al., The Moynihan Report Revisited, 6 Urban Institute 1 (2013),
available at http://www.urban.org/UploadedPDF/412839-The-Moynihan-
Report-Revisited.pdf .............................................................................................47
Helen Reece, Divorcing Responsibly (2003) ...........................................................27
House hearing on same sex marriage resumes Saturday, khon2.com, Nov. 1, 2013,
http://www.khon2.com/news/house-hearing-on-same-sex-marriage-resumes-
Saturday ................................................................................................................53
John Locke, Second Treatise of Government (Richard H. Cox ed., 1982)
(1690) ....................................................................................................................29
John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765
(1997) ....................................................................................................................65
John Rawls, Political Liberalism (1995) .................................................................65
John R. Searle, Making the Social World: The Structure of Human
Civilization (2010) ......................................................................................... 27, 29
John R. Searle, The Construction of Social Reality (1995) .............................. 26, 27
Joseph Raz, The Morality of Freedom (1986) .................................................. 29, 31
Jonathan Culler, Literary Theory: A Very Short Introduction (1997) ....................45
Jonathan Vespa et. al., America’s Families and Living Arrangements: 2012, U.S.
Census Bureau, U.S. Dept. of Commerce (Aug. 2013),
http://www.census.gov/prod/ 2013pubs/ p20-570.pdf .........................................50
Judith Stacey, In the Name of the Family: Rethinking Family Values in the
Postmodern Age (1996) ........................................................................................31
Kate Millet, Sexual Politics (1977) ..........................................................................45
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xv

Katharine K. Baker, Bionormativity and the Construction of Parenthood, 42 Ga. L.
Rev. 649 (2008) ....................................................................................................36
Katherine K. Young & Paul Nathanson, The Future of an Experiment, in
Divorcing Marriage: Unveiling the Dangers in Canada's New Social
Experiment 48 (Daniel Cere & Douglas Farrow eds., 2004) ...............................31
Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747 (2011) ............95
Ladelle McWhorter, Bodies and Pleasures: Foucault and the Politics of Sexual
Normalization (1999) ............................................................................................31
Leonard Sax, Why Gender Matters: What Parents and Teachers Need to Know
About the Emerging Science of Sex Differences (2005) .......................................43
Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and
Responsibility (2006) ............................................................................................56
Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a
Social Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J.
33 (2004) ...........................................................................................................9, 31
Malia Zimmerman, Experts say Hawaii’s gay marriage bill worst at protecting
religious freedom, Hawaii Reporter, Oct. 30, 2013,
http://www.hawaiireporter.com/experts-say-hawaiis-gay-marriage-bill-worst-at-
protecting-religious-freedom/123 .........................................................................63
Mark D. Regnerus, Parental Same-Sex Relationships, Family Instability, and
Subsequent Life Outcomes for Adult Children: Answering Critics of the New
Family Structures Study with Additional Analysis, 41 Soc. Sci. Research 1367
(2012) ............................................................................................................. 40, 43
Marc D. Stern, Same-Sex Marriage and the Churches, in Same-Sex Marriage
and Religious Liberty: Emerging Conflicts 1 (Douglas Laycock et al. eds.,
2008) .....................................................................................................................51
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xvi

Matthew B. O'Brien, Why Liberal Neutrality Prohibits Same-Sex Marriage:
Rawls, Political Liberalism, and the Family, 1 Brit. J. Am. Legal Stud. 411
(2012) ........................................................................................... 29, 30, 35, 37, 40
Monique Garcia, Signed and sealed: Illinois 16th state to legalize gay marriage,
Chicago Tribune, Nov. 21, 2013, http://www.chicagotribune.com/news/ chi-
illinois-gay-marriage-bill-signing-20131120,0,4464600.story ............................63
Monte Neil Stewart, Eliding in Washington and California, 42 Gonzaga
L. Rev. 501 (2007) ................................................................................... 27, 62, 64
Monte Neil Stewart, Genderless Marriage, Institutional Realities, and
Judicial Elision, 1 Duke J. Const. L. & Pub. Pol'y 1 (2006) ................................26
Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam.
L. 11 (2004) ................................................................................. 27, 40, 46, 79, 93
Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Pol'y 313
(2008) ................................................................................................... 9, 30, 57, 58
Monte Neil Stewart, Marriage, Fundamental Premises, and the California,
Connecticut, and Iowa Supreme Courts, 2012 BYU L.
Rev. 193 ............................................................................................ 32, 37, 54, 58
Monte Neil Stewart & William C. Duncan, Marriage and the Betrayal of Perez and
Loving, 2005 BYU L. Rev. 555 ...........................................................................90
Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry, 1 Law &
Sexuality 9 ............................................................................................................31
Nancy F. Cott, The Power of Government in Marriage, 11 The Good Soc'y 88
(2002) ....................................................................................................................29
Peter A. Hall & Rosemary C.R. Taylor, Political Science and the Three New
Institutionalisms, 44 Pol. Stud. 936 (1996) ..........................................................32
Press Release, Office of the Press Secretary, The White House, President Obama
Launches National Conversation on Importance of Fatherhood and Personal
Responsibility (June 19, 2009), http://www.whitehouse.gov/the-press-
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xvii

office/president-obama-launches-national-conversation-importance-fatherhood-
and-personal-r .......................................................................................................47
Press Release, Retail Association of Nevada, RAN Poll Shows Nevadans
Optimistic about State’s Economy, but Recovery Not Felt by Most Households
(Oct. 2013), http://www.rannv.org/documents/23/Poll Release-
RANOct2013Final.pdf ..........................................................................................63
Richard E. Redding, Politicized Science, 50 Soc'y 439 (2013) ...............................41
Richard R. Clayton, The Family, Marriage, and Social Change
(2d ed. 1979) .........................................................................................................27
Richard W. Garnett, Taking Pierce Seriously: The Family, Religious
Education, and Harm to Children, 76 Notre Dame L. Rev. 109 (2000) ..............29
Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment: A Question of
Time, 57 Tex. L. Rev. 919 (1979) .........................................................................99
Ryan T. Anderson, Clashing Claims, National Review Online, Aug. 23, 2013,
http://www.nationalreview.com/ article/356539/clashing-claims-ryan-t-
anderson#! ...................................................................................................... 52, 53
Scott Yenor, Family Politics: The Idea of Marriage in Modern Political Thought
(2011) ....................................................................................................................57
Sean Whaley, Nevada Legislature advances gay marriage resolution, Las Vegas
Review Journal, May 23, 2013, http://www.reviewjournal.com/news/nevada-
legislature/nevada-legislature-advances-gay-marriage-resolution .......................63
Sherif Girgis et al., What Is Marriage? Man and Woman: A Defense
(2012) ................................................................................................. 31, 51, 56, 90
Shulamith Firestone, The Dialectic of Sex: The Case for Feminist Revolution
(1970) ....................................................................................................................45
Stephanie Coontz, Marriage, A History: From Obedience to Intimacy, or How
Love Conquered Marriage (2005) ........................................................................58
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xviii

The Feminists: A Political Organization to Annihilate Sex Roles, in Radical
Feminism 368 (Anne Koedt et al. eds., 1973) ......................................................45
The New Institutionalism in Organizational Analysis, (Walter W. Powell & Paul J.
DiMaggio eds., 1991).............................................................................................. 32
Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, Out/Look
Nat'l Gay & Lesbian Q., Fall 1989, at 19 .............................................................30
Thomas M. Messner, The Heritage Foundation, Same-Sex Marriage and the Threat
to Religious Liberty (2008),
http://www.heritage.org/research/reports/2008/10/same-sex-marriage-and-the-
threat-to-religious-liberty ............................................................................... 52, 53
Victor Nee, Sources of the New Instiutionalism, in The New Institutionalism
Sociology 1 (Mary C. Brinton & Victor Nee eds., 2001) .....................................32
Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions,
Exchange, and Social Structure, in The New Institutional in Sociology
19 (Mary C. Brinton & Victor Nee eds., 1998) ....................................................26
Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting,
Married, and Single-Parent Families, 65 J. Marriage and Fam. 876 (2003) ......... 47



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1

INTRODUCTION

For twenty years now, this Nation has been engaged in a discussion over the
public meaning and social purposes of marriage. The issue is whether marriage
will continue as the union of a man and a woman and therefore as an institution
directed to certain great social tasks, with many of those involving a man and a
woman united in the begetting, rearing, and educating of children. Or whether
marriage will be torn away from its ancient social purposes and transformed into a
government-endorsed celebration of the private desires of two adults (regardless of
gender) to unite their lives sexually, emotionally, and socially for as long as those
personal desires last. As is right among a self-governing people, the most
important part of that discussion has happened in campaigns leading to elections
determining the issue.
In elections on the marriage issue in Nevada and many other States, the
common and collective wisdom came down in favor of preserving and
perpetuating man-woman marriage. The majority of an informed and thoughtful
electorate had powerful and worthy reasons for its vote. That majority sensed that
a child’s formative years are benefitted by the presence of both a mother and a
father. They understood that the man-woman marriage institution vindicates the
child’s interest in knowing and being raised by her own natural mother and father.
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They perceived that, among all child-rearing modes, the married mother-father
mode had the outcomes best for children and for society. They understood that,
with fatherlessness clearly leading to social ills, the man-woman marriage
institution plays an important role in teaching and promoting fatherhood.
At the same time, that majority of voters sensed that a genderless marriage
regime will officially repudiate the child’s interest in knowing and being raised by
her own natural mother and father, will work against the ideal of each child
benefitting from the presence of both a mother and a father, will disparage the
intact, biological, married family as the gold standard for life in the United States,
will also disparage the need for fathers in the home, and, as troubling as any dark
cloud on the horizon, will be inimical to the religious liberties of broad swaths of
our Nation’s peoples of faith and their churches, with all those who oppose
genderless marriage for conscience sake being driven from the public square and to
the very margins of culture.
Thwarted in the free, open, democratic process—for the time being—
genderless marriage proponents ran to the courts with the claim that the majority
was depriving them for no good reason of a constitutional right—the right to
change marriage’s meaning from the union of a man and a woman to the union of
two persons without regard to gender. After all, these adults cannot have their
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3

desires fulfilled unless and until the law makes just that change; they cannot be
legally married until the law redefines marriage; and they cannot be socially and
culturally married until the law’s vast power effectively suppresses the competing
man-woman meaning.
This great constitution-altering project, supported by many of the Nation’s
elites, has been built on—because it had to be, there being no alternative—a
number of falsehoods. The most essential and fundamental falsehood in the
proponents’ narrative is that marriage is nothing more than a close personal
relationship between two adults designed—as an act of free choice—to satisfy their
personal emotional, psychological, and sexual purposes, with marriage’s social
goods being security for adults (and any children who may happen to be connected
to the relationship), economic protection, and public affirmation of commitment.
This description of marriage is true as far as it goes; the material falsehood resides
in the notion of nothing more than. Marriage is, as a matter of fact, much more
than what genderless marriage proponents can allow. It is a vital social institution
with broad additional public purposes and social benefits—purposes and goods
sensed, understood and perceived by the large majority of Nevada’s voters and
noted above. In those additional public purposes and social benefits are found the
valuable and compelling societal (and hence governmental) interests that sustain
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man-woman marriage against every constitutional attack regardless of the level of
judicial scrutiny deployed.
Another essential falsehood in the proponents’ story is that, as a group, gay
men and lesbians are so politically powerless that the courts must come to their
rescue against an unfeeling, or even malevolent, majority. The obvious falsity of
this assertion should make it embarrassing. Hawai’i’s marriage case, Jackson v.
Abercrombie, 12-16995—which was earlier combined with this case in the Ninth
Circuit for briefing and oral argument—was effectively mooted just recently by a
show of massive political power when, in the face of strong opposition by man-
woman marriage proponents, the Hawai’i legislature voted to redefine marriage as
the union of two persons without regard to gender. In 2009 in Nevada, over two-
thirds of both houses of the State legislature overrode the then-Governor’s veto and
enacted a complete domestic partnership act. Then, in the spring of 2013, the
Nevada legislature passed for the first of two required times a joint resolution to
repeal the 2002 amendment to the State constitution defining marriage as the union
of a man and a woman. Moreover, genderless marriage proponents are
proclaiming that, based on legislative nose-counting and public opinion polls, the
legislature will pass the joint resolution again in the spring of 2015, thereby putting
the matter on the November 2016 general election ballot, where a strong majority
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of the voters will pass it and thereby open the way to a prompt redefinition of
marriage in Nevada. Yet the Plaintiffs still assert the “politically powerless”
falsehood in this Court to attempt to short-circuit the free, open, and democratic
process.
Another key falsehood is that in preserving man-woman marriage, the
majority was motivated by animus—ill-will and a mean-spirit towards and a bare
desire to harm gay men and lesbians. The “evidence” for this falsehood is an
argument built upon the first falsehood, that marriage is nothing more than a close
personal relationship. The argument goes like this: Because marriage is nothing
more than what the close personal relationship model allows, to let same-sex
couples marry will not adversely affect marriage at all, indeed, it will strengthen it,
and society will lose no valuable social goods now provided by marriage. There is
no downside. (How will letting Adam and Steve marry hurt your marriage?)
Because there is no downside, the majority has no good reason to keep same-sex
couples from marrying. Therefore, their motive must be animus; there is no other
possible explanation. But—take away the blindfold of the first falsehood, and the
fair and honest person sees right away that there is much that is good and even
essential to society very likely to be lost when the law suppresses the man-woman
marriage institution. Wanting to preserve that which is good and essential against
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such loss is a rational, intelligent, compelling reason for the majority voting as it
did. This reality puts the lie to the animus falsehood.
The genderless marriage proponents’ story also relies on several misleading
strategies.
One of those strategies is to argue that just as white supremacists engrafted
anti-miscegenation rules onto the marriage institution and were rightly repudiated
by the Supreme Court in Loving,
1
so homophobes, with laws like Nevada’s 2002
marriage amendment, have engrafted the man-woman meaning onto marriage and
should likewise be repudiated by this Court. At first blush, this strategy is only
silly because, of course, the union of a man and a woman has been a core,
constitutive meaning of the marriage institution found in virtually every society
since pre-history. Nevada’s marriage amendment did not add that institutionalized
meaning but rather sought to protect and preserve it and the valuable social
benefits flowing from it. On closer examination, this strategy reveals something
deeply troubling. White supremacists engrafted the anti-miscegenation rules onto
the marriage institution—and thereby altered marriage from how it had existed at
common law and throughout the millennia—to bend that institution into the new
and foreign role of inculcating white supremacist doctrines into the consciousness
of the people generally. Because of the profound teaching, forming, and

1
Loving v. Virginia, 388 U.S. 1 (1967).
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transforming power that fundamental social institutions like marriage have over all
of us, this evil strategy undoubtedly worked effectively for decades. Question:
Where does one see today a similar massive political effort to profoundly change
the marriage institution in order to bend it into a new and foreign role, one in
important ways at odds with its ancient and essential roles? Answer: The
genderless marriage movement. The big difference, of course, is the immorality of
the effort to advance the white supremacist dogma compared to the morality of the
effort to advance the social well-being and individual worth of gay men and
lesbians. Whether that moral objective is sufficiently weighty to justify so bending
and altering the marriage institution is for the free, open, democratic process to
decide. Certainly, the comparison of laws that protect the man-woman meaning of
marriage to anti-miscegenation laws is a false analogy that provides no basis for
any court to mandate the redefinition of marriage.
Another of the genderless marriage proponents’ key strategies is to cherry-
pick some phrases from Windsor
2
and then declare that, on the basis of those
phrases, the constitutional contest is over—in their favor. The proponents employ
this strategy to try to get the courts to ignore both the powerful language and ideas
in Windsor clearly supporting the opposite conclusion and large swaths of well-
established Supreme Court jurisprudence contrary to the proponents’ selective

2
United States v. Windsor, 133 S. Ct. 2675 (2013).
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reading of Windsor but consistent with that decision read in its entirety. That
jurisprudence, exemplified by such cases as Glucksberg
3
and San Antonio
Independent School District,
4
teaches that the Supreme Court generally refuses to
constitutionalize and thereby take out of the democratic processes big social policy
debates like the funding of public education,
5
treatment of the elderly
6
and the
poor,
7
and assisted suicide
8
and will do the same with the great debate over the
public meaning and social purposes of marriage.
A third misleading strategy of the genderless marriage proponents is to
attempt to make this and similar cases very much about homosexuality and the
lives of gay men and lesbians and very little about marriage. However, this case is
very much about marriage. It is crucially important in this case to get right what
marriage is. Equally important, however, is to see for what they are arguments
over what marriage ought to be. The “all about gay men and lesbians” strategy,
beyond its emotional and rhetorical uses, obscures that the public debate over
marriage is in large part a debate over what marriage ought to be—a debate over
two competing models for marriage. Because the public debate is very much about

3
Washington v. Glucksberg, 521 U.S. 702 (1997).
4
San Antonio Indep. Sch. Dist. v. Rodgriguez, 411 U.S. 1 (1973).
5
Id.
6
Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976).
7
Dandridge v. Williams, 397 U.S. 471 (1970).
8
Glucksberg, 521 U.S. 702.
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what marriage ought to be, this case is easily resolved here. No responsible person
sees the Constitution as authorizing federal judges to decide issues like what
marriage ought to be. Our whole history as a self-governing people cries out that
such an issue is to be decided through our democratic processes and that judges not
usurp that role.
More than a decade ago, Nevadans engaged in a large public debate about
marriage—what it is and what it ought to be—and resolved that debate through
their free, open, democratic process. Now they are re-engaging in that debate, and
just as before, they will resolve it through that same democratic process, if the
judges of this Court resist the siren song to resolve it first by imposing on Nevada
their personal views of the good.
* * * * * * * * * * * *
Law-trained people who argue and resolve the marriage issue might not
always know as much about marriage as they think they do
9
because they operate
under the false understanding that marriage is a legal construct. It is not (although
law, like other institutions, certainly interacts with the marriage institution). The
societal interests that constitutionally justify marriage’s limitation to the union of a

9
See Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social
Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J. 33, 34 (2004);
see also Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Pol’y 313, 317
(2008) (“Marriage Facts”).
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man and a woman exist in the very nature and fabric and operation of marriage in
our society. Thus, to do right by this case, this Court must educate itself about
marriage to a deep, not a superficial, level. A major burden of this brief is to
facilitate that education.
STATEMENT OF JURISDICTION
The Coalition accepts the Opening Brief’s Statement of Jurisdiction.
STATEMENT OF THE ISSUES
1. Whether the Fourteenth Amendment’s Equal Protection Clause requires
Nevada to change its definition of marriage from the union of a man and a woman
to the union of two persons.
2. Whether the Fourteenth Amendment’s Due Process Clause requires
Nevada to change its definition of marriage from the union of a man and a woman
to the union of two persons.
10


10
Plaintiffs’ Complaint challenged Nevada’s marriage laws only on the basis of
the Equal Protection Clause of the Fourteenth Amendment. Excerpts of Record
(“ER”) 718–22. It did not raise a substantive due process claim, a fact noted and
honored by the parties and the district court at various times in the proceedings
below. E.g., ER 665. Now, however, the Plaintiffs are raising before this Court
and have fully briefed a substantive due process claim. The three Defendants
defending here (the Governor, Clerk-Recorder Glover, and the Coalition), after
thorough discussion among their respective counsel and very deliberate
consideration, have jointly decided (1) not to object to the Plaintiffs’ course
regarding their substantive due process claim, (2) to brief that issue in their
respective Answering Briefs, and (3) to urge this Court to address and resolve the
Plaintiffs’ substantive due process claim on the merits. The Coalition adopts the
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ADDENDUM OF PERTINENT AUTHORITIES
Pursuant to Ninth Circuit Rule 28-2.7, the Coalition has reproduced
pertinent constitutional and statutory provisions in an Addendum accompanying
this Answering Brief.
STATEMENT OF THE CASE
Since attaining statehood, Nevada’s legal definition of marriage has always
been limited to the union of a man and woman, first by constitutional adoption of
the common law,
11
then by express statutory language,
12
and most recently by
express constitutional amendment.
13
The legal definition has thus always mirrored
and supported the widely shared public meaning that, along with other widely
shared public meanings, makes up Nevada’s vital social institution of marriage.
The Coalition for the Protection of Marriage (“Coalition”) is a Nevada non-
profit corporation organized to protect the man-woman marriage institution

statement of the reasons for that decision set forth in the other Defendants’
Answering Briefs.
11
Van Sickle v. Haines, 7 Nev. 249, 285–86 (1872), explains how Nevada’s
constitution adopted the common law of England. The well-established common-
law definition of marriage is found in Hyde v. Hyde, (1866) 1 L.R.P. & D. 130, 134
(Lord Penzance): “[M]arriage . . . may . . . be defined as the voluntary union for
life of one man and one woman, to the exclusion of all others.”
12
The 1861 laws of Territory of Nevada regarding marriage were expressly
limited to “a male and a female.” Part 2:33: 1861. The same limitation on
marriage was codified in 1876 in the Statutes of Nevada, Nev. Stat. § 88 (1876),
and is substantially the same today, Nev. Rev. Stat. § 122.020.
13
Nev. Const. art. I, § 21.
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through, among other ways, use of the initiative process. Nevada’s citizens
reserved to themselves the power to legislate by initiative. Nev. Const. art. XIX, §
2(1). By way of the State’s petition process, they may place qualified initiatives to
amend the constitution on a statewide general election ballot. Id. If a
constitutional initiative obtains voter approval in two consecutive general
elections, the initiative is adopted, and the Nevada constitution is amended. Nev.
Const. art. XIX, § 2(4); see also Am. Civil Liberties Union of Nevada v. Lomax,
471 F.3d 1010, 1012 (9th Cir. 2006).
With the Coalition’s leadership, Nevada’s citizens followed that process
through the 2000 and 2002 general elections to amend the Nevada constitution by
adding to it this language: “Only a marriage between a male and female person
shall be recognized and given effect in this state.” Nev. Const. art. I, § 21
(“Marriage Amendment”). Both in 2000 and in 2002, the “yes” vote was slightly
in excess of two-thirds of all votes cast on the ballot initiative.
14
As noted above,
the Marriage Amendment did not change Nevada’s definition of marriage.
However, it did give the man-woman meaning of the marriage institution the
highest level of protection that was in the power of Nevada voters to provide.

14
The 2000 vote in favor of the Marriage Amendment was 69%; the 2002 vote,
67%. Dist. Ct. Dkt. 30-1 at 2 ¶5 (Affidavit of Richard Ziser).
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13

In 2009, Nevada’s legislature enacted the Nevada Domestic Partnership Act
(“DPA”), Nev. Rev. Stat. §§ 122A.010 to .510. The DPA authorizes a “social
contract” between two people “in an intimate and committed relationship of mutual
caring,” without regard to gender. Nev. Rev. Stat. §§ 122A.040,
122A.100(1)(a)(1). It further provides: “Domestic partners have the same rights,
protections and benefits, and are subject to the same responsibilities, obligations
and duties under law . . . as are granted to and imposed upon spouses.” Nev. Rev.
Stat. § 122A.200(1)(a). Consistent with the Marriage Amendment, the DPA
expressly provides that a domestic partnership “is not a marriage.” Nev. Rev. Stat.
§ 122A.510. Although the DPA is available to man-woman couples, without
question it was enacted in very large measure to benefit same-sex couples.
The Plaintiffs are eight same-sex couples, all residents of Nevada. Four of
the couples have married in jurisdictions other than Nevada. The other four
couples want to marry in Nevada. ER 700–03.
Invoking 28 U.S.C. § 1983, the Plaintiffs initiated this civil action against
Nevada’s Governor and the clerks of Washoe County, Clark County, and Carson
City, alleging that Nevada’s Marriage Amendment and similar state laws
(collectively “Marriage Laws”) violate the Constitution’s Fourteenth Amendment
by preventing some of the Plaintiffs from marrying under color of Nevada law and
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by withholding Nevada’s recognition of the foreign marriages of the rest. ER 695–
724. The unmarried Plaintiffs seek, as their ultimate relief, to marry in Nevada
with the State’s sanction; the Plaintiffs with foreign marriages, to have Nevada
recognize those marriages. ER 723. Such relief requires that Nevada change (or
be forced to change) its definition of marriage from the union of a man and a
woman to the union of two persons without regard to gender.
When the Plaintiffs brought this action, the Coalition successfully intervened
and became a party defendant. The Plaintiffs correctly acknowledge that they
withdrew their opposition to the Coalition’s Rule 24 intervention motion, Opening
Br. at 7, but say somewhat misleadingly that they “reserved the ability to revisit the
issue at a later stage if necessary” when what their counsel in fact said was that
“the plaintiffs would reserve the right to come back to the Court if it turns out that
there’s any scheduling issues or delay that we don’t anticipate.” ER 666. No
scheduling issues or unanticipated delays occurred. More importantly, the
Plaintiffs did not make an issue on appeal of the Coalition’s status as a party
defendant by intervention. Accordingly, the Coalition is a full party to this civil
action, not a second-class party, and it would be as wrong for this Court to ignore,
evade, or elide any argument properly made by the Coalition as it would be to do
the same in connection with any argument advanced by the Plaintiffs or the
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15

Governor or Clerk-Recorder Glover. That is the logic and teaching of Rule 24
jurisprudence. See, e.g., United States v. California Mobile Home Park Mgmt. Co.,
107 F.3d 1374, 1378 (9th Cir. 1997) (“[I]ntervening parties have full party status in
the litigation commencing with the granting of the motion to intervene.”).
15

Three defendants actively defended in the district court (and are actively
defending here): the Governor, Carson City Clerk-Recorder Alan Glover, and the
Coalition. The Washoe County and Clark County clerks named as defendants
elected to stay on the sidelines.
The active parties filed various dispositive motions, and in a November 26,
2012, order the district court (Chief Judge Robert Clive Jones) ruled on them all,
holding that:
 Plaintiffs’ claims were precluded at the district court level by Baker v.
Nelson, 409 U.S. 810 (1972) (mem.), except to the extent that they relied on

15
The Coalition’s Article III standing is not an issue. In McConnell v. FEC, 540
U.S. 93 (2003), overruled in part on other grounds by Citizens United v. FEC, 558
U.S. 310 (2010), the Supreme Court, having determined that there was a case or
controversy based on the personal stake of the original defendant, permitted the
intervenor to “piggyback” on the existing dispute without showing its own
independent personal stake. Id. at 233. In any event, the Coalition demonstrated
in the record that it had four adequate, separate, and independent bases for its own
Article III standing. Dist Ct. Dkt. 30 at 13-15 & 30-1 at 2-6. (All “Dist. Ct. Dkt.”
references are to filings in the district court.) One of those, the Coalition’s status
as the Marriage Amendment’s proponent, was subsequently rejected by the
reasoning in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), but the other three
bases remain valid.
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16

Romer v. Evans, 517 U.S. 620 (1996), which the court saw as relying on a
theory other than the equal protection and due process theories advanced in
Baker. ER 9–12; in the interest of judicial economy, however, the district
court proceeded to address all the arguments then being raised by the
Plaintiffs;
 Rational basis review is the proper level of judicial scrutiny for Plaintiffs’
sexual orientation equal protection claim. ER 13, 16–29;
 Because they rationally advance legitimate societal (and hence
governmental) interests, Nevada’s Marriage Laws do not perpetrate
unconstitutional sexual orientation discrimination. ER 30–41.
 Because Nevada’s Marriage Laws treat men as a class and women as a class
equally, they do not perpetrate unconstitutional sex discrimination. ER 14–
16.
Having disposed of all of Plaintiffs’ claims, the district court entered a final
judgment on December 3, 2012. ER 1. Plaintiffs filed their Notice of Appeal on
the same day. ER 43–45.
SUMMARY OF THE ARGUMENT
Nevada’s Marriage Laws have as their purpose and effect preserving and
perpetuating the man-woman meaning at the core of the marriage institution that
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has always played a vital role in Nevada society. The assessments, perceptions,
and understandings of Nevada’s voters and a wide and deep body of scholarly
work on social institutions together support the conclusion that this core man-
woman meaning materially and even uniquely provides multiple valuable benefits
and that if the law were to suppress that meaning (as it must for same-sex couples
to marry or have their foreign marriages recognized) then over time those benefits
will diminish and then likely be lost altogether. Accordingly, Nevada has
sufficiently good reasons—the preservation of those valuable social benefits—for
keeping the man-woman meaning at the core of the marriage institution. The
reality and validity of those reasons defeat all the Plaintiffs’ constitutional
challenges and certainly negate the animus slander.
ARGUMENT
I. RELEVANT AND ROBUST LEGISLATIVE FACTS SHOW THAT SOCIETY HAS GOOD
REASONS TO PRESERVE “THE UNION OF A MAN AND A WOMAN” AS A CORE
MEANING OF THE MARRIAGE INSTITUTION.

The ultimate issue here is whether the State of Nevada has sufficiently good
reasons to preserve “the union of a man and a woman” as a core meaning of the
marriage institution. That is the ultimate issue whether the theory is due process or
equal protection and, if equal protection, whether the theory is sexual orientation
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discrimination or sex discrimination.
16
The standard for what constitutes
sufficiently good may vary depending on the particular theory,
17
but the ultimate
issue is the same.
A. When parties present competing legislative facts, the courts defer to those
chosen by the government decision-maker.

The reasons for preserving man-woman marriage reside in the realm of
legislative facts, not adjudicative facts. “Adjudicative facts are facts about the
parties and their activities . . . , usually answering the questions of who did what,
where, when, how, why, with what motive or intent”—the types of “facts that go to
a jury in a jury case,” or to the factfinder in a bench trial. Marshall v. Sawyer, 365
F.2d 105, 111 (9th Cir.1966) (quoting Kenneth C. Davis, The Requirement of a
Trial-Type Hearing, 70 Harv. L. Rev. 193, 199 (1956)) (internal quotation marks
omitted).
18
“Legislative facts,” by contrast, “do not usually concern [only] the
immediate parties but are general facts which help the tribunal decide questions of
law, policy, and discretion.” Id. “Legislative facts are ‘general facts which help
the tribunal decide questions of law and policy,’ are ‘without reference to specific
parties,’ and ‘need not be developed through evidentiary hearings.’” Libertarian

16
Compare United States v. Juvenile Male, 670 F.3d 999, 1011–13 (9th Cir.
2012) (substantive due process), with High Tech Gays v. Def. Indus. Sec.
Clearance Office, 895 F.2d 563 (9th Cir. 1990) (sexual orientation discrimination),
and United States v. Virginia, 518 U.S. 515 (1996) (sex discrimination).
17
See note 16 supra.
18
We are not aware of any contested adjudicative facts in this case.
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19

Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154, 157 (D.D.C. 2013) (quoting
Friends of the Earth v. Reilly, 966 F.2d 690, 694 (D.C. Cir. 1992) and Ass’n of
Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1161–62 (D.C. Cir. 1979)). A
legislative fact “is a question of social factors and happenings . . . .” Dunigan v.
City of Oxford, Mississippi, 718 F.2d 738, 748 n.8 (5th Cir. 1983).
Certain legislative facts may not be contested or contestable; many presented
in this Answering Brief are in that category. But sometimes legislative facts are
contested, that is, informed and thoughtful people disagree on the validity of a
proffered legislative fact. In such cases, the courts do not step in to declare one
view to be true and the competing view false. Rather, if the legislative fact is fairly
debatable, the courts defer to the government decision-maker’s choice. The courts
do this for several powerful reasons. First, the courts understand and value the
phenomenon of collective wisdom. Our democratic ethos privileges the reasonable
understandings and conclusions reached—the legislative facts chosen—by the
people through our democratic processes, not those of this or that elite no matter
how confidently asserted. See, e.g., Dandridge v. Williams, 397 U.S. 471, 487
(1970) (“We do not decide today that the Maryland regulation is wise, that it best
fulfills the relevant social and economic objectives that Maryland might ideally
espouse, or that a more just and humane system could not be devised. Conflicting
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claims of morality and intelligence are raised by opponents and proponents of
almost every measure . . . . [T]he Constitution does not empower this Court to
second-guess state officials . . . .”).
A Washington State case asserting a right to assisted suicide provides a
powerful example of this privileging of the reasonable legislative facts chosen
through our democratic processes. The State prohibited assisted suicide. This
Court en banc held that prohibition unconstitutional. Compassion in Dying v.
Washington, 79 F.3d 790, 798 (9th Cir. 1996) (en banc). In doing so, it dismissed
some of the State’s assessments of social practices and their likely impacts. For
example, the State asserted an interest in protecting the integrity and ethics of the
medical profession, but this Court concluded that “the integrity of the medical
profession would [not] be threatened in any way by [physician-assisted suicide],”
despite the contrary assessment of the State and responsible observers of the
medical profession. Id. at 827. As another example, the State asserted an interest
in protecting vulnerable groups—including the poor, the elderly, and disabled
persons—from abuse, neglect, and mistakes, but this Court dismissed the State’s
concern that disadvantaged persons might be pressured into physician-assisted
suicide as “ludicrous on its face.” Id. at 825. On these two points and others like
them, the Supreme Court flatly rejected this Court’s substitution of its own
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assessments of the relevant social practices and their likely impacts for those of the
State and unanimously reversed this Court’s judgment. Washington v.
Glucksberg, 521 U.S. 702, 728–36 (1997). The Supreme Court privileged the
reasonable understandings and conclusions reached—the legislative facts chosen—
by the people through democratic processes.
Second, many legislative facts, often the most important, are really
predictions of what will happen in society in the future assuming this or that
present governmental action. Given the complexity of human society, one sensible
prediction ought not be accepted as an objective “truth” in the face of a contrary
but still rationally made prediction. E.g., FCC v. Nat’l Citizens Comm. for
Broadcasting, 436 U.S. 775, 813–14 (1978) (“However, to the extent that factual
determinations were involved . . . , they were primarily of a judgmental or
predictive nature . . . . In such circumstances complete factual support in the
record for the . . . judgment or prediction is not possible or required; ‘a forecast of
the direction in which future public interest lies necessarily involves deductions . . .
.’”) (quoting FPC v. Transcon. Gas Pipe Line Corp., 365 U.S. 1, 29 (1961));
Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 665–66 (1994) (Kennedy, J.,
plurality opinion) (noting that “[s]ound policymaking often requires legislators to
forecast future events and to anticipate the likely impact of these events based on
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deductions and inferences for which complete empirical support may be
unavailable” and highlighting a “substantial deference” to the government
decision-maker in such situations).
Third, the courts understand the limits on their own competence. “It makes
no difference that the [legislative] facts may be disputed or their effect opposed by
argument and opinion of serious strength. It is not within the competency of the
courts to arbitrate in such contrariety.” Vance v. Bradley, 440 U.S. 93, 112 (1979)
(quoting Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357 (1916)) (internal
quotation marks omitted).
In rational basis review, the contest between competing legislative facts can
be quite lopsided against the government and the government will still prevail.
The courts uphold the challenged government action if there is any reasonably
conceivable state of legislative facts that could provide a rational basis for it. See,
e.g., FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993). The action is
presumed constitutional and “[t]he burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it[.]” Heller
v. Doe, 509 U.S. 312, 320 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts
Co., 410 U.S. 356, 364 (1973)). If any basis is even minimally debatable, plaintiffs
lose. The government, by contrast, has no duty “to produce evidence to sustain the
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rationality of a statutory classification.” Id. “[A] legislative choice is not subject
to courtroom factfinding and may be based on rational speculation unsupported by
evidence or empirical data.” Beach Commc’ns, 508 U.S. at 315. Moreover, even
if all defendants fail to articulate the requisite rational basis, a court will still
uphold the challenged government action if it on its own can identify rational
grounds. See, e.g., Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463 (1988).
This settled law has an impact on summary judgment jurisprudence. As the
district court correctly observed in the Hawai’i marriage case:
Disputes of fact that might normally preclude summary judgment in
other civil cases, will generally not be substantively material in a
rational basis review. That is, the question before this Court is not
whether the legislative facts are true, but whether they are “at least
debatable.”

Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1105 (D. Haw. 2012) (citations
omitted).
Even if the level of judicial scrutiny is heightened (and there is no basis for
use of any level of scrutiny other than rational basis review in this case) the courts
will still not step in to declare as “true” or “false” a well-contested legislative fact
but instead will use the legislative facts chosen by the government decision-maker.
The reasons for such judicial deference—the limits of the courts’ competence, the
uncertainty of predictions of society-wide consequences, and the wisdom of
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respecting democratically made choices between competing legislative facts—still
remain. Although under heightened scrutiny the courts may not accept some
minimally plausible legislative fact conjured up in support of the challenged
government action, they will defer to robustly supported legislative facts even if
“opposed by argument and opinion of serious strength. It is not within the
competency of the courts to arbitrate in such contrariety.” Vance, 440 U.S. at 112
(quoting Rast, 240 U.S. at 357).
All this is demonstrated by Grutter v. Bollinger, 539 U.S. 306 (2003), which
applied the highest and most rigorous level of judicial scrutiny because of the
presence of racial classifications. The plaintiff in that case challenged the
University of Michigan Law School’s consideration of race and ethnicity in its
admission decisions, specifically consideration in favor of applicants from three
underrepresented minority groups: blacks, Hispanics, and Native Americans. This
public law school’s leaders made an “assessment that diversity will, in fact, yield
educational benefits.” Id. at 328 (emphasis added). That is the legislative fact
chosen by the government decision-makers, but it was a vigorously contested
legislative fact, with many able voices making powerful showings in favor of just
the opposite legislative fact, that the diversity sought did not yield educational
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benefits and even harmed those intended to be benefitted.
19
Nevertheless, the
majority of the Supreme Court deferred, expressly and unabashedly, “to the Law
School’s conclusion that its racial experimentation leads to educational benefits.”
In the majority’s own words:
The Law School’s educational judgment that such diversity is
essential to its educational mission is one to which we defer. The Law
School’s assessment that diversity will, in fact, yield educational
benefits is substantiated by respondents and their amici. Our scrutiny
of the interest asserted by the Law School is no less strict for taking
into account complex educational judgments in an area that lies
primarily within the expertise of the university.

Id. at 328. On the basis of this deference to the government decision-maker’s
choice of a contested legislative fact (and, necessarily, rejection of contrary
assessments), the Court upheld the law school’s admissions program. The Court
did not anoint one assessment as “true” and the contrary assessment as “false.” It
deferred to the government decision-maker’s choice.

19
In dissent, Justice Thomas marshaled those voices and added his own,
stating:

The Court’s deference to the Law School’s conclusion that its
racial experimentation leads to educational benefits will, if adhered to,
have serious collateral consequences. The Court relies heavily on
social science evidence to justify its deference. The Court never
acknowledges, however, the growing evidence that racial (and other
sorts) of heterogeneity actually impairs learning among black
students.

539 U.S. at 364 (Thomas J., dissenting) (citations omitted).
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These firmly established legal principles matter very much in this case.
Here, the Plaintiffs, their experts, and their amici fail to do two things: one, they
fail even to contest many of the legislative facts supporting Nevada’s choice to
preserve the man-woman marriage institution and, two, as to the rest of those
supportive legislative facts, they fail to negate the reality that the people’s
assessments are reasonably and even robustly supported.
B. The “union of a man and a woman” meaning at the core of Nevada’s
marriage institution provides valuable social benefits.

The following robustly supported legislative facts sustain Nevada’s
Marriage Laws against all constitutional challenges:
Marriage is a vital social institution,
20
and, like all social institutions, is
constituted by a unique web of shared public meanings.
21
Many of those
meanings rise to the level of norms.
22


20
E.g., Williams v. North Carolina, 317 U.S. 287, 303 (1942) (“[T]he marriage
relation [is] an institution more basic in our civilization than any other.”);
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003) (“Marriage
is a vital social institution.”).
21
See, e.g., John R. Searle, The Construction of Social Reality 32 (1995) (“Searle,
Construction”); Supplemental Excerpts of Record (“SER”) 140; see also Monte
Neil Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, 1
Duke J. Const. L. & Pub. Pol’y 1, 8–28 (2006) (“Institutional Realities”).
22
See, e.g., Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions,
Exchange, and Social Structure, in The New Institutionalism in Sociology 19
(Mary C. Brinton & Victor Nee eds., 1998) (“An institution is a web of interrelated
norms—formal and informal—governing social relationships.”).
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The marriage institution affects individuals profoundly; institutional
meanings and norms teach, form, and transform individuals, supplying identities,
purposes, practices, ideals, and a moral/ethical compass for navigating the
institution’s realm.
23

Just as a society creates and sustains its marriage institution (by the use of
language
24
), a society can change it. Because marriage is constituted by shared
public meanings, it is necessarily changed when those meanings are changed or are
no longer sufficiently shared. Indeed, that is the only way marriage can be
changed.
25
When marriage’s previously institutionalized public meanings and
norms are no longer sufficiently shared by a society, through whatever means and
for whatever reason, the institution disappears.
26
This is called de-
institutionalization. A new institution with different public meanings and norms

23
See, e.g., Helen Reece, Divorcing Responsibly 185 (2003); SER 140; Monte
Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 11 (2004)
(“Judicial Redefinition”); see also Richard R. Clayton, The Family, Marriage, and
Social Change 19, 22 (2d ed. 1979); Monte Neil Stewart, Eliding in Washington
and California, 42 Gonzaga L. Rev. 501, 503 (2007) (“Eliding”).
24
See Searle, Construction, supra note 21, at 32; John R. Searle, Making the
Social World: The Structure of Human Civilization 90 (2010) (“Searle, Social
World”).
25
See, e.g., Eerik Lagerspetz, The Opposite Mirrors: An Essay on the
Conventionalist Theory of Institutions 28 (1995); Eerik Lagerspetz, On the
Existence of Institutions, in On the Nature of Social and Institutional Reality 70, 82
(Eerik Lagerspetz et al. eds., 2001).
26
See, e.g., id.; Searle, Construction, supra note 21, at 117.
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may take the previous institution’s name (“marriage”), but it will be a different
institution.
Across time and cultures, a core meaning constitutive of the marriage
institution has nearly always been the union of a man and a woman.
27
Marriage’s
man-woman meaning provides materially and even uniquely multiple valuable
social benefits, which we address later on.
A society can have only one social institution denominated “marriage.”
Society cannot simultaneously have as shared, core, constitutive meanings of the
marriage institution both “the union of a man and a woman” and “the union of any
two persons”—any more than it can have monogamy as a core meaning if it also
allows polygamy. One meaning necessarily displaces or at least precludes the
other. Given the role of language and meaning in constituting and sustaining
institutions, two “coexisting” social institutions known society-wide as “marriage”
amount to a factual impossibility. Thus, every society must choose either to retain
man-woman marriage or, by force of law, replace it with a radically different
genderless marriage regime.
28
(The Plaintiffs’ core message is that the Constitution
requires this Court to mandate the latter.)

27
See, e.g., SER 19–20, 524–34.
28
A society actually has a third option: no normative marriage institution at all.
Many of the most influential advocates of genderless marriage correctly and gladly
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Although the law did not create the man-woman marriage institution,
29
it has
the power to de-institutionalize it by suppressing the shared public meanings that
constitute it.
30
The law’s power arises from its expressive or educative function
magnified by its authoritative voice.
31
With respect to the marriage institution, the
Plaintiffs seek to use the law’s power to suppress the man-woman meaning by
replacing it with the any-two-persons meaning. (That is the only way that they can
“marry” in any intelligible sense.) The reach of that power to suppress is large and
sufficient, especially in light of the fact that, after redefinition, the old meaning
would be deemed “unconstitutional” and the mandate imposing the new meaning
would be seen as vindicating some important “right.” In those circumstances,
suppression would be a constitutional imperative.

see that as leading quite naturally to no normative marriage institution at all. For a
clear example of high-level advocacy for such, see SER 690–716.
29
Man-woman marriage is unquestionably a pre-political institution. See, e.g.,
John Locke, Second Treatise of Government 47 (Richard H. Cox ed., 1982) (1690);
SER 497–523; Searle, Social World, supra note 24, at 86; see also Richard W.
Garnett, Taking Pierce Seriously: The Family, Religious Education, and Harm to
Children, 76 Notre Dame L. Rev. 109, 114 n.29 (2000) (the law’s provisions
regulating marriage no more “created” the marriage institution than the Rule
Against Perpetuities “created” dirt).
30
See, e.g., SER 59, 93, 140–41; Nancy F. Cott, The Power of Government in
Marriage, 11 The Good Soc’y 88 (2002).
31
See, e.g., Joseph Raz, The Morality of Freedom 162 (1986); Cass R. Sunstein,
Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 69–71 (1996);
Matthew B. O’Brien, Why Liberal Neutrality Prohibits Same-Sex Marriage:
Rawls, Political Liberalism, and the Family, 1 Brit. J. Am. Legal Stud. 411, 413–
15 (2012); see also SER 59, 93, 140–41, 683–89.
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Genderless marriage is a profoundly different institution than man-woman
marriage.
32
Although there is overlap in formative instruction between the two
possible “marriage” institutions, the significance is in the divergence, which is seen
in the nature of the two institutions’ respective social benefits and also in the two
institutions’ respective norms, ideals, and practices. (This divergence is explained
in more detail below.)
The radical difference between the two institutions could not be otherwise:
fundamentally different meanings, when magnified by institutional power and
influence, produce divergent social identities, aspirations, projects, and ways of
behaving, and thus different social benefits.
33
Well-informed observers of
marriage—regardless of their sexual, political, or theoretical orientations—
uniformly acknowledge the magnitude of the differences between the two possible
institutions of marriage.
34
The reality is that changing the meaning of marriage to

32
See, e.g., O’Brien, supra note 31, at 413–15; Stewart, Marriage Facts, supra
note 9, at 323–24.
33
See, e.g., SER 59, 93.
34
We begin a long list (that could readily be made even longer) with the then
executive director of Lambda Legal Defense and Education Fund, Thomas
Stoddard, who argued that “enlarging the concept” of marriage would “necessarily
transform it into something new.” Thomas B. Stoddard, Why Gay People Should
Seek the Right to Marry, Out/Look Nat’l Gay & Lesbian Q., Fall 1989, at 19. In
addition, e.g., David Blankenhorn, The Future of Marriage 167 (2007) (“Future”)
(“I don’t think there can be much doubt that this post-institutional view of marriage
constitutes a radical redefinition. Prominent family scholars on both sides of the
divide—those who favor gay marriage and those who do not—acknowledge this
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that of “any two persons” will transform the institution profoundly, if not
immediately then certainly over time as the new meaning is mandated in texts, in
schools, and in many other parts of the public square and voluntarily published by
the media and other institutions, with society, especially its children, thereby losing
the ability to discern the meanings of the old institution.
None of the Plaintiffs, their experts, or their amici negate these legislative
facts.
35
The Plaintiffs attempt to rely on expert witness Letitia Anne Peplau’s

reality.”); Daniel Cere, War of the Ring, in Divorcing Marriage: Unveiling the
Dangers in Canada’s New Social Experiment 9, 11–13 (Daniel Cere & Douglas
Farrow eds., 2004) (“Divorcing Marriage”); Douglas Farrow, Canada’s Romantic
Mistake, in Divorcing Marriage, supra, at 1–5; Ladelle McWhorter, Bodies and
Pleasures: Foucault and the Politics of Sexual Normalization 125 (1999); Raz,
supra note 31, at 393; Judith Stacey, In the Name of the Family: Rethinking
Family Values in the Postmodern Age 126–28 (1996); Sherif Girgis et al., What Is
Marriage? Man and Woman: A Defense 54–55 (2012); Katherine K. Young &
Paul Nathanson, The Future of an Experiment, in Divorcing Marriage, supra, at
48–56; Angela Bolt, Do Wedding Dresses Come in Lavender? The Prospects and
Implications of Same-Sex Marriage, 24 Soc. Theory & Prac. 111, 114 (1998);
Devon W. Carbado, Straight Out of the Closet, 15 Berkeley Women’s L.J. 76, 95–
96 (2000); Gallagher, supra note 9, at 53 (“Many thoughtful supporters of same-
sex marriage recognize that some profound shift in our whole understanding of the
world is wrapped up in this legal re-engineering of the meaning of marriage.”); E.J.
Graff, Retying the Knot, The Nation, June 24, 1996, at 12; Nan D. Hunter,
Marriage, Law, and Gender: A Feminist Inquiry, 1 Law & Sexuality 9, 12–19
(1991); Andrew Sullivan, Recognition of Same-Sex Marriage, 16 Quinnipiac L.
Rev. 13, 15–16 (1996).
35
Genderless marriage proponents sometimes try to contest that genderless
marriage is a profoundly different institution than man-woman marriage but their
“counter-argument” is driven by expediency; because of their need to elide the
argument we make here, in their public pronouncements “advocates have carefully
minimized the impact of the change they seek.” Deborah A. Widiss, Changing the
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opinion that “[t]here is no scientific support for the notion that allowing same-sex
couples to marry would harm different-sex relationships or marriages. The facts
that affect the quality, stability, and longevity of different-sex relationships would
not be affected by marriages between same-sex couples.” ER 306. This opinion,
however, evidences a large blind spot. Peplau ignores or is ignorant of the
teachings of the “new institutionalism” in the social sciences, which focus on the
role of social institutions in shaping social behaviors through widely shared public
meanings that form and transform individuals in profound ways.
36
Accordingly,
she does not come to grips with and certainly does not deny the social institutional
realities of marriage set forth in this Section.
37


Marriage Equation, 89 Wash. U.L. Rev. 721, 778, 781 (2012). The proponents’
“counter-argument” is also based on a quite constricted and factually inaccurate
view of what man-woman marriage is in the American experience. In subsection
C. below, we demonstrate that view’s factual inaccuracy.
36
See generally The New Institutionalism in Organizational Analysis (Walter W.
Powell & Paul J. DiMaggio eds., 1991); Peter A. Hall & Rosemary C.R. Taylor,
Political Science and the Three New Institutionalisms, 44 Pol. Stud. 936 (1996);
Victor Nee, Sources of the New Institutionalism, in The New Institutionalism in
Sociology 1 (Mary C. Brinton & Victor Nee eds., 2001); see also Monte Neil
Stewart et al., Marriage, Fundamental Premises, and the California, Connecticut,
and Iowa Supreme Courts, 2012 BYU L. Rev. 193, 204 (“Fundamental
Premises”).
37
Peplau’s blind spot regarding social institutional realities is evident in other
ways. An example is her reliance on divorce data from Massachusetts in the few
years immediately before and immediately after the 2004 inception of court-
mandated genderless marriage there. ER 322–23. Her point is that the sky is not
falling now that Massachusetts has a genderless marriage regime. But the
undeniable reality of institutional momentum clearly invalidates this point.
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The man-woman meaning at the core of the marriage institution does and
will influence people and guide their conduct now and in the coming generations in
ways positive and beneficial to children generally, to the generality of adults, and
to our Nation’s commitment to religious liberties. The social institutional realities
recognized and chosen by Nevada and its citizens teach clearly that if the law were
to suppress that meaning, the readily predicted consequence would be first the
diminution over time and then the loss of the valuable social benefits that meaning
uniquely provides, with a genderless marriage regime being inimical to those
benefits.
The benefits for children at stake here flow from marriage’s historic success
in maximizing the number of children who know and are raised by their own
mother and father. Those benefits include generally better life-long outcomes in
the psychological, emotional, physical, educational, employment, marital, and
other social realms. In trying to contest the reality of those benefits, genderless
marriage proponents make a counter-argument that boils down to this: “Men and
women are interchangeable. A child does not need both a mother and a father.
Those who believe otherwise are bigots.” The Constitution, however, does not

Something as massive and pervasive in our society and humanity as the man-
woman marriage institution, like a massive ocean-going ship, does not stop or turn
in a short space or a short time. With an institution as fundamental and deep-
rooted as marriage, one must think in terms of decades to observe the full effects of
changes in the public meanings.
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allow a judge to buy such a counter-argument—in light of the robust,
democratically chosen legislative facts against it.
Further legislative facts set forth below show genderless marriage regimes’
tendency to be in conflict with and even destructive of the religious liberties of a
large portion of our Nation’s people of faith and their churches. A court-imposed
change in the definition of marriage inevitably would create a wide variety of
religious-freedom conflicts for individuals who object to genderless marriage on
religious grounds. Thus, another valuable benefit of man-woman marriage at stake
here is its protection of those religious liberties.
1. The man-woman marriage institution maximizes the likelihood that children
will have both mother and father in their lives, an arrangement that, on a wide
range of indicators of human flourishing, has been shown to generate the best
life-long outcomes.

Man-woman marriage teaches an important cluster of norms and ideals: of a
child knowing and being reared by her mother and father, of a child being raised
by parents who can at the very least give her the benefits of gender
complementarity, and of a child experiencing a father rather than fatherlessness in
the home. Because it is a powerful social institution, the teachings of man-woman
marriage will make more likely the realization of those ideals. The teachings of
genderless marriage run counter to all those norms and ideals. Because it will
completely replace the old institution, genderless marriage’s contrary teaching will
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35

make realization of those ideals less likely; indeed, the ideals will no longer be
socially endorsed at all but rather seen as discredited relics. Thus, this case will
determine whether our society will maximize or minimize the benefits of a child
knowing and being reared by her mother and father, of experiencing gender
complementarity in the home of her childhood and youth, and of being spared from
fatherlessness and the ills associated with it.
Nevada has chosen to maximize those benefits. For most Nevadans,
marriage is principally about the welfare of children, rather than principally about
meeting the emotional needs of adults or about affirming adults’ private choices.
38

The Constitution allows Nevada to maximize those benefits.
a. The man-woman meaning in marriage furthers Nevada’s vital interest in
maximizing the number of children who are raised by their own two biological
parents.

Common sense and emerging social science findings teach that knowing and
be reared by her mother and father in and of itself is a source of strength and
flourishing for the child. This ideal of a child knowing and being brought up by
his or her biological parents—with exceptions being justified only in the best
interests of the child, not for the gratification of any adult desires—matters to

38
O’Brien, supra note 31, makes an in-depth examination of the supposed “public
reasons” advanced to support one or the other possible marriage institutions,
concluding that no valid “public reason” sustains genderless marriage but that
maximizing the benefits of a child knowing and being reared by her mother and
father is a valid “public reason” sustaining man-woman marriage.
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36

children.
39
Prof. Katharine K. Baker perceived this in her analysis of
bionormativity—that is, of the norm that parental rights and obligations align with
biological parenthood.
40
She perceived that the interests served by that norm must
be analyzed separately for the state, parents, and children.
41
Children’s interests in
bionormativity differ from the state’s and from parents’; children “seem to have
what is potentially the strongest interest in the biology of biological parenthood.”
42

Professor Baker explains that this may be because there are “psychological benefits
associated with being raised by one’s biological parents.”
43

A recent study confirms Prof. Baker’s suggestion regarding the
“psychological benefits associated with being raised by one’s biological parents.”
That study was “the first effort to learn about the identity, kinship, well-being, and
social justice experiences of young adults who were conceived through sperm
donation.”
44
It assembled a representative sample of 485 adults between the ages
of 18 and 45 years old who said their mother used a sperm donor to conceive them,
and used as comparison groups 562 young adults adopted as infants and 563 young
adults raised by their biological parents . The study found that, on average, young

39
See, e.g., SER 438–78, 717–38; cf. SER 77.
40
Katharine K. Baker, Bionormativity and the Construction of Parenthood, 42
Ga. L. Rev. 649, 682–91 (2008).
41
Id. at 682.
42
Id.
43
Id. at 686.
44
SER 304.
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adults conceived through sperm donation “are hurting more, are more confused,
and feel more isolated from their families.”
45
Among other negative outcomes, the
study found, after controlling for socio-economic factors, that sperm donor
offspring are significantly more likely than their peers raised by their biological
parents to manifest delinquency, substance abuse and depression and are 1.5 times
more likely to suffer from mental health problems.”
46

Man-woman marriage not only supports the birthright of children to be
connected to their mothers and fathers, it is the indispensable social predicate for
that birthright to have meaning and reality.
47
Where man-woman marriage is a
strong social institution, it is much more likely that a child knows and is raised by
the man and the woman whose sexual union created her, exactly because the
parents are married. Where the institution is weaker, such an outcome is less likely.
Where the marriage ethos is weak or nonexistent, a child knowing and being raised
by his mother and father is a mere fortuity.
48

A genderless marriage regime is not just neutral towards the child’s interest
in bonding with her biological parents; as a matter of public policy and by force of

45
Id.
46
Id. at 306, 338–39. For a fuller summary of the study’s findings, see O’Brien,
supra note 31, at 446–48; see also SER 546–76.
47
See, e.g., SER 58, 93; Stewart, Fundamental Premises, supra note 36, at 243–
56.
48
Id.
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law, it thwarts that interest.
49
“The legalization of same-sex marriage, while
sometimes seen as a small change affecting just a few people, raises the startling
prospect of fundamentally breaking the legal institution of marriage from any ties
to biological parenthood.”
50
That prospect is a reality in Canada; the same bill
redefining marriage to the union of any two persons also contained, in order to
maintain the coherence of the scheme, a provision ending in law the concept of
“natural parenthood” and replacing it with the concept of “legal parenthood” (a
child’s parents are who the state says the parents are).
51
After implementation of
genderless marriage, a child knowing and being raised by her biological parents
will not be the result of cultural, political, and institutional aspirations and
objectives, but very likely a mere fortuity.
[S]ame-sex marriage would require us in both law and culture to deny
the double origin of the child. . . . It would require us, legally and
formally, to withdraw marriage’s greatest promise to the child—the
promise that, insofar as society can make it possible, I will be loved
and raised by the mother and father who made me. . . . But a society
that embraces same-sex marriage can no longer collectively embrace
this norm and must take specific steps to retract it. One can believe in
same-sex marriage. One can believe that every child deserves a
mother and a father. One cannot believe both.
52



49
See, e.g., SER 163–66, 182–297; Blankenhorn, Future, supra note 34, at 201.
50
SER 213.
51
SER 191–92.
52
Blankenhorn, Future, supra note 34, at 201.
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Additional benefits maximized by the ideal of married mother-father child-
rearing and crucial for a child’s and hence society’s well-being, include physical,
mental, and emotional health and development; academic performance and levels
of attainment; and avoidance of crime and other forms of self- and other-
destructive behavior such as drug abuse and high-risk sexual conduct. To
maximize the possibility of achieving those outcomes in society generally, married
mother-father child-rearing is the optimal mode.
53

This is a contested point; genderless marriage advocates argue that outcomes
for same-sex couple childrearing are just as good, as shown by various studies. In
context, they are saying that it is not the man-woman meaning at the core of the
marriage institution that materially contributes to this social good (the optimal
child-rearing mode); rather, that social good results from the care of any two
loving, mutually committed adults; therefore, to de-institutionalize man-woman
marriage and replace it with a genderless marriage regime will not result in
diminution or loss of this social good.
The Plaintiffs, most of their experts, and many of their amici make a rather
massive effort to persuade this Court to declare their “no differences” legislative
facts to be “true.” However, there are robustly supported legislative facts to the

53
See, e.g., SER 1–181, 479–96, 535–60, 577–84, 593–617.
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contrary. Social science sees married mother-father as the child-rearing mode with
the best outcomes for the child on very important measures. “The intact,
biological, married family remains the gold standard for family life in the United
States, insofar as children are most likely to thrive—economically, socially, and
psychologically—in this family form.”
54
In contrast, various social science studies
have severely undermined the claim of “no difference” between married mother-
father child-rearing and same-sex couple child-rearing.
55

Almost since the beginning of judicial consideration of the constitutionality
of man-woman marriage twenty years ago, genderless marriage advocates have
urged the courts to declare the “no differences” assessments “true.” Every

54
SER 11. Man-woman marriage is the most effective means humankind has
developed so far to maximize the level of private welfare provided to the children
conceived by passionate, heterosexual coupling. See, e.g., SER 49–86; 101; 585–
92; Stewart, Judicial Redefinition, supra note 23, at 44–52. In addition to the
provision of physical needs such as food, clothing, and shelter, the phrase private
welfare encompasses opportunities such as education, play, work, and discipline
and intangibles such as love, respect, and security. The effective provision of
private welfare to children generally is among the most significant of the social
benefits conferred by man-woman marriage and constitutes the deep logic of
marriage. See Stewart, Judicial Redefinition, supra note 23, at 44–46.
55
Douglas W. Allen, High school graduation rates among children of same-sex
households, 11 Review of Economics of the Household 635 (2013); Mark D.
Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent
Life Outcomes for Adult Children: Answering Critics of the New Family Structures
Study with Additional Analysis, 41 Soc. Sci. Research 1367 (2012); SER 618–53.
For good summaries of the latter two studies, see O’Brien, supra note 31, at 443–
45, and Jackson v. Abercrombie, 884 F. Supp. 2d. 1065, 1115 (D. Haw. 2012); see
also SER 654–82.
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American appellate court except one
56
has declined to do so; they have instead
heeded Justice Sosman’s cogent warnings that the “[i]nterpretation of the data
gathered by those studies then becomes clouded by the personal and political
beliefs of the investigators” and that “the most neutral and strict application of
scientific principles to this field would be constrained by the limited period of
observation that has been available.”
57

The assertions of various professional organizations appearing as amici in
support of the Plaintiffs are no better than the studies from which they are
purportedly derived. As a matter of good science, those assertions cannot
substitute for otherwise underdeveloped or inadequate studies. In our move to
good science, we long ago abandoned the notion that invoking Aristotle’s name (or
that of the American Psychological Association) ended inquiry; we abandoned that
notion because the sole test must be what the doing of the science itself discloses.
As already demonstrated, the studies underlying the organizations’ assertions are
robustly contested.
Further, the opinion testimony of Prof. Nancy Cott is of no avail to the
Plaintiffs’ position. Prof. Cott’s attempted challenge to the man-woman marriage

56
See Varnum v. Brien, 763 N.W.2d 862, 873–74, 899 n.26 (Iowa 2009).
57
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 979–80 (Mass. 2003)
(Sosman, J., dissenting); accord Richard E. Redding, Politicized Science, 50 Soc’y
439 (2013) (analyzing reaction to Regnerus study).
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institution as the provider of the optimal child-rearing mode actually reaffirms that
benefit’s continuing validity. Prof. Cott says: “The notion that the main purpose
of marriage is to provide an ideal or optimal context for raising children was never
the prime mover in states’ structuring of the marriage institution in the United
States, and it cannot be isolated as the main reason for the state’s interest in
marriage today.”
58
Note the careful limitation to “main purpose,” “prime mover,”
and “main reason.” Prof. Cott does not deny that perpetuating the optimal child-
rearing mode (by perpetuating the man-woman marriage institution) continues as
an important, even compelling, societal interest. Any quibble over whether it is
the “main” or “prime” interest at stake is irrelevant to this Court’s constitutional
analysis; what is relevant is that the interest is real, valuable, and enduring.
b. The man-woman meaning in marriage furthers Nevada’s vital interest in
maximizing the number of children raised by parents who can at least give them
the benefits of gender complementarity.

The man-woman marriage institution teaches powerfully the social ideal and
model of a child being raised by a man and a woman, even in the absence of
complete or partial biological ties. Thus, the man-woman meaning maximizes the
number of children receiving the benefits of gender complementarity in their
upbringing. Those benefits are real. Even when children are not reared by their
own married biological fathers and mothers, children who live with a married

58
ER 269.
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mother and father, one of whom is an adoptive parent, do almost as well (again, on
average) as children raised by both biological parents.
59
Research also establishes
that, for whatever reasons,
60
mothers and fathers tend on average to parent
differently and thus make unique contributions to the child’s overall
development.
61
The psychological literature on child development has long
recognized the critical role that mothers play in their children’s development.
62

More recent research also reveals the vital role that fathers play in their children’s
development.
63
In short, gender diversity or complementarity among parents—what one
scholar has called “gender-differentiated parenting”
64
—provides important benefits

59
See Regnerus, supra note 55, at 1367.
60
For example, some researchers have concluded that males and females have
significant innate differences that flow from differences in genes and hormones.
According to these researchers, these biochemical differences are evident in the
development of male and female brain anatomy, psyche, and even learning styles.
See Leonard Sax, Why Gender Matters: What Parents and Teachers Need to Know
About the Emerging Science of Sex Differences (2005). But whether differences in
parenting styles are the result of inherent differences between the sexes or other
factors, there is no question that fathers tend to parent differently from mothers.
61
Id.; David Blankenhorn, Fatherless America (1995) (“Fatherless”).
62
E.g., Brenda Hunter, The Power of Mother Love: Transforming Both Mother and
Child (1997).
63
See, e.g., David Popenoe, Life Without Father: Compelling New Evidence that
Fatherhood & Marriage are Indispensable for the Good of Children and Society
146 (1996) (“The burden of social science evidence supports the idea that gender-
differentiated parenting is important for human development and that the
contribution of fathers to childrearing is unique and irreplaceable.”).
64
Id.
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to children. Accordingly, Nevada and its people understandably have elected to
preserve that social institution most effective at maximizing the number of children
receiving those benefits.
In the context of these discussions of child-rearing modes, our point must
not be misunderstood. We do not contend that the individual parents in same-sex
couples are somehow “inferior” as parents to the individual parents who are
involved in married, mother-father parenting. The point, rather, is that the
combination of male and female parents is likely to draw from the strengths of
both genders in ways that cannot occur with any combination of two men or two
women, and that this gendered, mother-father parenting model provides important
benefits to children. That this would be so is hardly surprising. Society has long
recognized that diversity in education brings a host of benefits to students. See,
e.g., Grutter v. Bollinger, 539 U.S. 306 (2003). If that is true in education, why
not in parenting? And as the Supreme Court has taught: “[T]he two sexes are not
fungible; a community made up exclusively of one [sex] is different from a
community composed of both” and “[i]nherent differences between men and
women, we have come to appreciate, remain cause for celebration . . . .” United
States v. Virginia, 518 U.S. 515, 533 (1996) (quoting Ballard v. United States, 329
U.S. 187, 193 (1946)) (internal quotation marks omitted). And, again, man-woman
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marriage effectively teaches the norm and ideal of gender complementarity in
child-rearing, while genderless marriage counters them.
Plaintiffs do not and cannot negate these robustly supported legislative facts
regarding gender complementarity. In the face of this argument supportive of
man-woman marriage, its opponents revert to the notion that men and women are
interchangeable or, at the very least, that the law must not allow any official
recognition of differences between the two sexes. That notion makes sense only to
people who have accepted a particular theory of gender advanced by radical social
constructivists and that theory’s logical extension into a “legal” principle that the
law can never classify on the basis of sex.
65
These are people at the extreme
constructionist end of the essentialist/constructionist spectrum. Adherents to the
radical social constructionist position, to a greater or lesser extent, take it as their
project to deconstruct the “gendered” differences between men and women
66
and
advance this project by advocating that the law not make gender-based distinctions
at all.
67


65
Regarding the information set forth in this paragraph, see generally SER 739–
42.
66
See, e.g., Jonathan Culler, Literary Theory: A Very Short Introduction 97–101
(1997); The Feminists: A Political Organization to Annihilate Sex Roles, in
Radical Feminism 368, 368–69 (Anne Koedt et al. eds., 1973); Shulamith
Firestone, The Dialectic of Sex: The Case for Feminist Revolution 11 (1970).
67
See, e.g., Kate Millet, Sexual Politics 33–36 (1977). Genderless marriage
advocates attempt to use radical social constructionist conclusions because, they
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In making the Marriage Amendment part of their constitution, Nevada’s
voters declined to buy into the radical social constructivists’ theory of gender.
Equally important, the Supreme Court has declined to accept it. See Virginia, 518
U.S. 515.
68
It would be bad constitutional law to do otherwise. See, e.g., Otis v.
Parker, 187 U.S. 606, 608–09 (1903) (Justice Holmes’s cautioning against the
tendency of judges, consciously or unconsciously, overtly or covertly, to read
social theories into the constitution: “Otherwise a constitution, instead of
embodying only relatively fundamental rules of right, as generally understood by
all English-speaking communities, would become the partisan of a particular set of
ethical or economical opinions . . . .”).
c. The man-woman meaning in marriage minimizes fatherlessness in the lives of
children, a condition particularly challenging to children’s well-being generally.

In 2009, the White House announced that it was launching “a national
conversation on fatherhood and personal responsibility.” The conversation
commenced with an event celebrating five outstanding fathers. The President
explained:

argue, there is no defensible basis under equality jurisprudence for man-woman
marriage in light of the “fact” that there are no differences between men and
women that matter (or should matter) in the eyes of the law.
68
For analysis of the Supreme Court’s refusal in United States v. Virginia to
accept the radical social constructivists’ theory of gender, see, for example,
Sunstein, supra note 31, at 76; Stewart, Judicial Redefinition, supra note 23, at 92–
95.
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[W]hen fathers are absent—when they abandon their responsibility
to their kids—we know the damage that does to our families. Children
who grow up without a father are more likely to drop out of school
and wind up in prison. They’re more likely to have substance abuse
problems, run away from home, and become teenage parents
themselves.
69


Emphasizing the positive, the President also said: “We all know the difference that
responsible, committed fathers like these guys [the five outstanding fathers] can
make in the life of a child.”
70

Extensive studies have affirmed that fathers are essential to the enterprise of
parenting.
71
And the costs of policies increasing the number of fatherless families
have proven to be very high.
72



69
Press Release, Office of the Press Secretary, The White House, President
Obama Launches National Conversation on Importance of Fatherhood and
Personal Responsibility (June 19, 2009), http://www.whitehouse.gov/the-press-
office/president-obama-launches-national-conversation-importance-fatherhood-
and-personal-r.
70
Id.
71
See, e.g., Popenoe, supra note 63; Blankenhorn, Fatherless, supra note 61;
Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting,
Married, and Single-Parent Families, 65 J. Marriage and Fam. 876 (2003); Elrini
Flouri & Ann Buchanan, The role of father involvement in children’s later mental
health, 26 J. Adolescence 63 (2003) (concluding “[f]ather involvement at age 7
protected against psychological maladjustment in adolescents,” even when
controlling for mother involvement).
72
See, e.g., note 71 supra; Gregory Ace et. al., The Moynihan Report Revisited, 6
Urban Institute 1 (2013), available at http://www.urban.org/UploadedPDF/
412839-The-Moynihan-Report-Revisited.pdf; Bruce J. Ellis et al., Does Father
Absence Place Daughters at Special Risk for Early Sexual Activity and Teenage
Pregnancy?, 74 Child Dev. 801 (2003).
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The man-woman marriage institution teaches and honors the role of “father”
and prepares males to fulfill it. A genderless marriage regime, with its Parent A
and Parent B, eliminates from the law the office and role of “father,” teaching
instead that the gender of parents does not matter. Thus, under such a regime, the
law no longer can promote and valorize fatherhood or teach that fulfillment of its
duties is good for children generally.
73

* * * * * * * * * * * *

Man-woman marriage teaches the norms and ideals of a child knowing and
being reared by her mother and father, of gender complementarity in child-rearing,
and of responsible fatherhood. To the extent a society realizes those norms and
ideals, children generally do better, flourish more fully, and have better lives.
There is no mystery and should be no confusion about the objectives of Nevada’s
Marriage Laws. Nevada is preserving the man-woman meaning in its marriage
institution to re-enforce in a powerful way those norms and ideals. Man-woman
marriage teaches and valorizes them, and genderless marriage necessarily does the
opposite. Thus, man-woman marriage maximizes the realization of those norms
and ideals, for the enduring benefit of children generally.

73
The dilemma of those who seek to promote fatherhood while at the same time
promoting genderless marriage is analyzed in Adam J. MacLeod, No Interest in
Fathers, Public Discourse, Jan. 14, 2014, http://www.thepublicdiscourse.com/2014
/01/11034/.
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With full constitutional authority, a State may teach, by enshrining the man-
woman meaning, that marriage is and ought to be principally about what is good
for children generally rather than about what is good for adult desires and private
choices. Because Nevada’s means and objectives are fully legitimate, highly
intelligent, and compelling, there is no constitutional flaw in its Marriage Laws.
Nor can the Marriage Laws’ constitutionality be rationally attacked by
reference to the children in same-sex couple households. Like most States, Nevada
engages in two large but different child-welfare endeavors. One, by preserving the
man-woman meaning in marriage, it seeks to maximize the number of children
down through the generations who know and are reared by mother and father, who
have the benefits of gender complementarity in their upbringing, and who are
spared the woes of fatherlessness. Two, in various ways (including with the DPA),
Nevada seeks to protect the present welfare of individual children found in varying
circumstances.
As to the second important endeavor, Nevada’s laws, including the DPA,
provide to the children in same-sex couple households on an equal basis the same
financial and other material benefits that Nevada’s various statutory programs
provide to children generally. Plaintiffs’ can point to no Nevada-administered
program that does otherwise, although they blame the Marriage Laws for
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“depriving” children in same-sex couple households of access to federal benefits
afforded children in married households. That blame is misplaced, for the reasons
explained Section V.D. below. But that misplaced blame does set up perfectly the
wisdom of Nevada’s choices with its two large but different child-welfare
endeavors. To maximize benefits to children in same-sex couple households
through its second endeavor, Nevada must (so Plaintiffs argue) abandon and undo
its first endeavor—it must cease to use the man-woman marriage institution to
teach powerfully the norms and ideals of a child knowing and being reared by her
mother and father, of gender complementarity in child-rearing, and of responsible
fatherhood. Nevada must (so Plaintiffs argue) suppress that institution by
implementing a genderless marriage regime, which counters those norms and
ideals. Yet given the huge disparity in numbers between children connected to
same-sex couple households and all other children,
74
for Nevada to abandon and
undo its first endeavor is to minimize rather than maximize benefits to children
generally—and that is neither rational nor moral.

74
The most recent data indicates that about 125,000 same-sex couple households
in the United States have children present. Gary J. Gates, LGBT Parenting in the
United States, The Williams Institute, UCLA School of Law (Feb. 2013),
http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Parenting.pdf. In
contrast, nearly 25,000,000 households have a married mother and father, Jonathan
Vespa et. al., America’s Families and Living Arrangements: 2012, U.S. Census
Bureau, U.S. Dept. of Commerce (Aug. 2013), http://www.census.gov/prod/
2013pubs/ p20-570.pdf, while over 10,000,000 households with children have no
father present and over 3,000,000 have no mother present, id.
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The same analysis applies with equal strength and validity to Plaintiffs’
argument that the Fourteenth Amendment compels Nevada to abandon and undo
its first child-welfare endeavor so as to reduce dignitary harms, or “stigma,” to
children in same-sex couple households.
75
Because of the compelling importance
of the benefits sought by Nevada’s first child-welfare endeavor for the largest
number of children possible, the Constitution does not require Nevada to abandon
that endeavor.
2. Man-woman marriage protects religious liberties.

Informed and thoughtful observers on both sides of the marriage issue agree
that imposition of a genderless marriage regime by force of law (especially
constitutional law) will materially interfere with, diminish, and otherwise injure
over time the religious liberties of religious organizations and people of faith
whose religious foundations support man-woman marriage and oppose genderless
marriage.
76
This acknowledgment of adverse impacts on religious liberties is

75
We address the legal flaws in Plaintiffs’ “harms” argument in Section V.E.
below.
76
See, e.g., 3 W. Cole Durham & Robert Smith, Religious Organizations and the
Law §§ 14:20 to 14:30 (2013); Girgis, supra note 34, at 62–64; compare Marc D.
Stern, Same-Sex Marriage and the Churches, in Same-Sex Marriage and Religious
Liberty: Emerging Conflicts 1–58 (Douglas Laycock et al. eds., 2008) with Chai
R. Feldblum, Moral Conflict and Conflicting Liberties, in Same-Sex Marriage and
Religious Liberty 123–56.
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reflected in the writings of genderless marriage advocates
77
and those neutral on
the marriage issue but concerned about preservation of religious liberties.
78
These
adverse impacts on religious liberties matter to Nevada and to our Nation to a very
great extent because their people, to a very great extent, adhere to religions firmly
opposed to genderless marriage. Thus, the potential for religious conflict is
enormous.
79

A genderless marriage regime’s adverse impacts on the religious liberties of
churches include increased liability in private anti-discrimination lawsuits and a
range of government penalties such as exclusion from government facilities,
ineligibility for government contracts and licenses, and withdrawal of tax exempt
status.
80
The adverse impacts on the religious liberties of individuals include
government-authorized sanctions—either directly imposed by government or
resulting from private anti-discrimination lawsuits—for heeding conscience and

77
E.g., Feldblum, supra note 76, at 123–56.
78
E.g., Durham & Smith, supra note 76, §§ 14:20–14:23, 14:25–14:30.
79
This reality is in sharp contrast to the reality of a small minority of religious
believers—concentrated in a relatively small part of the country—whose religious
views once cast interracial man-woman marriage as wrong.
80
E.g., id. Specific, concrete examples of these conflicts are given in Thomas M.
Messner, The Heritage Foundation, Same-Sex Marriage and the Threat to
Religious Liberty (2008), http://www.heritage.org/research/reports/2008/10/same-
sex-marriage-and-the-threat-to-religious-liberty, and Ryan T. Anderson, Clashing
Claims, National Review Online, Aug. 23, 2013, http://www.nationalreview.com/
article/356539/clashing-claims-ryan-t-anderson#!.
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declining to provide services connected to such activities as same-sex couple
weddings and lodging.
81

Nevada’s same-sex couples, including the Plaintiffs, have never had a
“right” to marry in Nevada, that is, to have the law impose on the State a
genderless marriage regime.
82
Accordingly, this is not a case where the judicial
task is to balance the religious liberties of people and communities of faith, on one
hand, against, on the other hand, the right of same-sex couples to marry. The
issue, rather, is whether Nevada has sufficiently good reasons for preserving man-
woman marriage. If it does, then same-sex couples do not have a right to marry in
the first place. In such a case, there is simply no balancing between competing
rights to be done because there are no competing rights. So what matters is the
demonstration of the robust legislative fact that preserving man-woman marriage
protects religious liberties against the high likelihood of diminution and loss. That
in itself constitutes a sufficiently good reason for Nevada’s choice.
Plaintiffs argue that a genderless marriage regime will not adversely impact
religious liberties because “no religion will be required to change its religious
policies or practices with regard to same-sex couples, and no religious officiant
will be required to solemnize a marriage in contravention of his or her religious

81
See note 80 supra.
82
See, e.g., Nev. Rev. Stat. § 122.020.
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beliefs[.]” Opening Br. at 85 (quoting In re Marriage Cases, 183 P.3d 384, 451–
52 (Cal. 2008)). But to say that a genderless marriage regime will not adversely
impact religious practice A or B is not proof that it will not adversely impact
religious practice C or D. The Plaintiffs have been silent about the adverse impacts
on the religious liberties that we identified with specificity in the district court and
again here—adverse impacts that even vigorous but intellectually honest
genderless marriage proponents have frankly acknowledged as being highly likely.
So it can hardly be said that the Plaintiffs have demonstrated a contrary legislative
fact. They certainly have not negated the robustly supported legislative fact
pertaining to religious liberties set forth here.
83

* * * * * * * * * *
When Nevada’s citizen-voters went to the polls in 2000 and 2002, they had
to make a choice about the norms and ideals of a child knowing and being raised
by her mother and father and of experiencing both gender complementarity and
responsible fatherhood and the further social ideal of guarding against the
diminution and loss of religious liberties and privileges of conscience. Genderless
marriage proponents argued, as they always do, that as a matter of fact none of

83
Plaintiffs also rely on the religious liberties “analyses” of the California,
Connecticut, and Iowa Supreme Courts in their respective genderless marriage
cases, Opening Br. at 85, without acknowledging or otherwise coming to grips
with the demonstrated material defects in those analyses. See Stewart,
Fundamental Premises, supra note 36, at 263–74.
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these benefits would be adversely impacted or diminished, that letting Adam and
Steve marry would not hurt any individual’s marriage or marriage in general, that
there would be no harm, that there would be no downside, that there would be no
social, cultural, or political price to be paid. Those were their legislative facts, and
Nevada’s citizen-voters did not buy them. They chose, as was their right, to give
credence to the contrary and robustly supported legislative facts, those
demonstrated above.
Now genderless marriage proponents are asking this Court to ignore or
otherwise dismiss those democratically chosen legislative facts, accept contrary
legislative facts (in the few places where some are presented), and on that basis say
that Nevada does not have sufficiently good reasons to preserve the man-woman
marriage institution. But settled federal law does not countenance such a judicial
course. In these circumstances, this Court must defer to the legislative facts chosen
by the authorized government decision-makers—Nevada’s citizen-voters
themselves. Those legislative facts all point to man-woman marriage as
maximizing valuable benefits—to children, to adults, and to society generally.
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C. Plaintiffs’ constricted view of what marriage is does not negate the
legislative facts showing the institution to be much broader and deeper in its
nature and purposes.

What we will call the broad description of marriage encompasses the social
realities set forth above: the understanding that “the institution of marriage was
created for the purpose of channeling heterosexual intercourse into a structure that
supports child rearing;” “that marriage is essentially the solemnizing of a
comprehensive, exclusive, permanent union that is intrinsically ordered to
producing new life, even if it does not always do so;” and that “marriage has been
viewed as an institution . . . inextricably linked to procreation and biological
kinship.”
84
The broad description also encompasses the understanding that
marriage's social goods include “love and friendship, security for adults and their
children, economic protection, and public affirmation of commitment,”
85
in
addition to those described above.
In contrast to the broad description of marriage, the narrow view underlying
all essential arguments for genderless marriage limits its description of the goods
of marriage to love and friendship, security for adults and their children, economic

84
United States v. Windsor, 133 S. Ct. 2675, 2718 (2013) (Alito, J., dissenting)
(citations omitted). For a more detailed explanation of the broad view of marriage,
see Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 995–96 (Mass. 2003)
(Cordy, J., dissenting), and Girgis, supra note 34, at 23–36.
85
Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and
Responsibility 6 (2006).
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protection, and public affirmation of commitment. This constricted description
results from the narrow view’s adherence to what scholars refer to as the “close
personal relationship” model of marriage, where “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 . . . and children are not really connected.”
86

This view is of a relationship “that has been stripped of any goal beyond the
intrinsic emotional, psychological, or sexual satisfaction which the relationship
currently brings to the [two adult] individuals involved.”
87
The narrow view
“tend[s] to strip marriage of the features that reflect its status and importance as a
social institution.”
88
The narrow view insists that marriage is no more than what
the narrow view describes.
89


86
SER 144.
87
SER 145. See Scott Yenor, Family Politics: The Idea of Marriage in Modern
Political Thought 5 (2011):

The more advocates of autonomy emphasize individual choice, the
more marriage and family life are disabled from achieving serious
public purposes.

. . . Modern advocates of autonomy and personal independence
distort the satisfactions of marriage into personal satisfactions. They
underestimate how genuinely satisfying marital love creates mutual
dependence that limits human autonomy and fail to see how marriage
and family life are satisfying because they involve this love and
dependence.
88
SER 144.
89
See Stewart, Marriage Facts, supra note 9, at 337.
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The contest between the broad description and the narrow view is a contest
between competing legislative facts, with those supporting the broad description
clearly being the stronger.
90
Only careless, popularizing “scholars”—on whom
Plaintiffs rightly do not rely—claim that the narrow view, a relatively recent
phenomenon in our society, has overcome and suppressed the broad view, with its
emphasis on children, family duties, and mutual dependence.
91

That the broad description of marriage is a robustly supported legislative fact
matters very much in resolving the marriage issue because the narrow vision
underlies every argument the proponents of genderless marriage make.
92
These
arguments invariably ignore the broad description (while at the same time
generally obscuring their essential reliance on the narrow vision as such) because
fair acknowledgement of the broad description is fatal to those arguments.
93

The Plaintiffs’ one serious effort to establish the factual accuracy of the
narrow view and thereby negate the broad description falls far short. That effort is

90
See, e.g., Stewart, Marriage Facts, supra note 9, at 350.
91
See Stephanie Coontz, Marriage, A History: From Obedience to Intimacy, or
How Love Conquered Marriage (2005). Critics from across the spectrum have
questioned Coontz’s work. See, e.g., Alan Wolfe, The Malleable Estate: Is
marriage more joyful than ever?, Slate, May 17, 2005, http://www.slate.com/
id/2118816; Blankenhorn, Future, supra note 34, at 236, 239–40 (“Coontz has
made a career out of arguing that her own philosophical preferences and the laws
of historical inevitability are one and the same.”).
92
See Stewart, Fundamental Premises, supra note 36, at 197–211.
93
See id.
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the testimony of Prof. Nancy Cott. Although Prof. Cott lists aspects of marriage
common to both the narrow and the broad descriptions, she does not aver that
contemporary marriage is limited to those aspects or that the additional aspects of
marriage ignored by the narrow view but captured by the broad description are
factually false. This is particularly telling because the additional aspects were set
forth in considerable detail in our district court filings and in other relevant
literature before Prof. Cott prepared her declaration. Furthermore, although Prof.
Cott states that marriage is an evolving and changing institution, she does not
assert that the changes have eliminated the additional aspects of marriage included
in the broad description. Her statements set forth only now-abandoned institutional
meanings and practices other than those additional aspects. The most that Prof.
Cott says regarding the validity of those additional aspects is that the “exclusion of
same-sex couples from equal marriage rights stands at odds with the direction of
historical change in marriage in the United States.”
94
That statement carefully
avoids saying that the “historical change” has overtaken and eliminated the broad
description’s additional aspects of marriage. Those aspects are continuing,
valuable, and important components of contemporary American marriage—and
fully sustain man-woman marriage’s constitutionality.

94
ER 264, 281.
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One other aspect of the Plaintiffs’ treatment of our account of what marriage
is merits comment. Plaintiffs label our account as a “baseless private view that
marriage equality tarnishes the institution of marriage.” Opening Br. at 16. What
is meant by “private view”? It probably means nothing more than “the view held
by people who disagree with us.” There is certainly nothing “private” in the broad
description of marriage or in the literature of the new institutionalism or about the
marriage institution itself. There are no “private” social institutions because social
institutions are constituted by and only by webs of widely shared public meanings,
and when those public meanings are no longer sufficiently widely shared, the
institutions cease. More importantly, it is the grossest falsehood to label as
“baseless” the careful account given here of the adverse impacts on marriage’s
valuable social benefits likely resulting from legal suppression of the man-woman
meaning at the core of the institution. The hurling of this falsehood is an act of
desperation. The Plaintiffs have known about the Coalition’s intended defense of
the Marriage Laws—the same defense set forth in this Section I—for a long time.
The Coalition’s Motion to Intervene was the second substantive filing in this action
(right after the Complaint), Dist. Ct. Dkt. 30, and it set forth the defense in detail.
Id. at 7–11. And even much earlier, in November 2003, three highly regarded
members of the Massachusetts Supreme Judicial Court adhered to the social
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institutional defense of man-woman marriage.
95
Yet, with all that time to come up
with a responsible counter to that defense, the Plaintiffs, their five experts, and
their seventeen amici have not been able to do so. They have simply failed to
engage the social institutional argument for man-woman marriage in any
intellectually rigorous and honest way. It is a startling and telling phenomenon,
one underscored by the hurling of the “baseless” falsehood.
II. WHAT MARRIAGE OUGHT TO BE IS A DECISION THAT MUST BE LEFT TO
DEMOCRATIC PROCESSES, ESPECIALLY WHEN THOSE PROCESSES ARE OPERATING
IN A FAIR AND OPEN WAY AND WHERE GENDERLESS MARRIAGE PROPONENTS ARE
EFFECTIVELY DEPLOYING VERY CONSIDERABLE POLITICAL POWER.

Plaintiffs and other genderless marriage advocates want marriage changed
from what it is to something different so as to make it helpful to their personal,
social, and economic aspirations and status. The argument is that marriage ought
to have the core meaning of “the union of two persons without regard to gender” so
as to improve and advance the situation of gay men and lesbians and any children
attached to their relationships. The political question (for nearly everyone) is not
whether such improvement and advancement is a good objective in the abstract; it
is. The real political question is what is the cost of such a profound redefinition of
marriage? Genderless marriage advocates say there is none, there is no harm or
downside, only upside. The majority of the voters in Nevada and in a large

95
Goodridge v. Dep’t Pub. Health, 798 N.E.2d 941, 983–1005 (Mass. 2003)
(Cordy, J., dissenting). Justices Spina and Sosman joined this dissent.
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majority of the other States have so far concluded otherwise; in previous elections
they chose, as was their right, to give credence to the contrary legislative facts set
forth in the previous Section, which point to a quite heavy social cost indeed.
96

It is definitely for democratic processes, not the courts, to answer this
question of what marriage ought to be and to resolve the social-cost issue. E.g.,
Washington v. Glucksberg, 521 U.S. 702, 735 (1997) (“Throughout the Nation,
Americans are engaged in an earnest and profound debate about the morality,
legality, and practicality of physician-assisted suicide. Our holding permits this
debate to continue, as it should in a democratic society.”). This approach of
deferring to democratic processes is especially compelling when, as now, those
processes are operating in a fair and open way and where, as in Nevada and
elsewhere, genderless marriage proponents are effectively deploying very
considerable political power. We previously described the political situation in
Nevada, where the State legislature has started the process to repeal the Marriage
Amendment, and in Hawai’i, where the legislature voted to redefine marriage as

96
The evidence suggests that those whose own lives and neighborhoods reflect
the practices and norms of the close personal relationship model of marriage, the
narrow view, are generally supportive politically of genderless marriage, while
those whose own lives and neighborhoods reflect the practices and norms of the
broad description of marriage generally are not. See Stewart, Eliding, supra note
23, at 534.
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the union of two persons without regard to gender.
97
We also note that, while this
Answering Brief was being written, the Illinois legislature and governor changed
the legal meaning of marriage in that State to the union of two persons without
regard to gender.
98

It is right that the large public debate about marriage—what it is and what it
ought to be—be conducted and resolved through the free, open, democratic
process. Nevadans are re-engaging in that debate, and just as before, they will
resolve it through their free, open, democratic process, if the judges of this Court

97
For an overview of matters in Hawaii, see, for example, Alan Duke, Hawaii to
become 16th state to legalize same-sex marriage, CNN.com, Nov. 13, 2013,
http://www.cnn.com/2013/11/12/us/hawaii-same-sex-marriage/ (summarizing);
House hearing on same sex marriage resumes Saturday, khon2.com, Nov. 1, 2013,
http://www.khon2.com/news/house-hearing-on-same-sex-marriage-resumes-
saturday (highlighting the extensive testimony hearing); Malia Zimmerman,
Experts say Hawaii’s gay marriage bill worst at protecting religious freedom,
Hawaii Reporter, Oct. 30, 2013, http://www.hawaiireporter.com/experts-say-
hawaiis-gay-marriage-bill-worst-at-protecting-religious-freedom/123
(summarizing the very real religious liberty concerns presented by those who
support and oppose redefining marriage).
Regarding Nevada, see Sean Whaley, Nevada Legislature advances gay
marriage resolution, Las Vegas Review Journal, May 23, 2013,
http://www.reviewjournal.com/news/nevada-legislature/nevada-legislature-
advances-gay-marriage-resolution; Press Release, Retail Association of Nevada,
RAN Poll Shows Nevadans Optimistic about State’s Economy, but Recovery Not
Felt by Most Households (Oct. 2013), http://www.rannv.org/documents/23/Poll
Release-RANOct2013Final.pdf (reporting on opinion poll which found 57% of
Nevadans support repealing Nevada’s Marriage Amendment).
98
See Monique Garcia, Signed and sealed: Illinois 16th state to legalize gay
marriage, Chicago Tribune, Nov. 21, 2013, http://www.chicagotribune.com/news/
chi-illinois-gay-marriage-bill-signing-20131120,0,4464600.story.
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resist the siren song to resolve it first by imposing on Nevada their personal views
of the good.
III. NEVADANS HAVE RIGHTLY VALUED THE INTERESTS SUSTAINING NEVADA’S
MARRIAGE LAWS.

Section I above sets forth the robust legislative facts demonstrating that the
man-woman meaning at the core of our marriage institution provides valuable
social benefits (or, in legal parlance, advances legitimate societal interests); that a
genderless marriage regime will likely jeopardize, diminish, and even eliminate
those benefits over time; and that, by using the force of law to assure the
continuing institutionalization of the man-woman meaning, the Marriage Laws
protect those legitimate societal interests. This Section addresses more fully the
concept of valuable.
Different people place different values on various social benefits. For
example, someone living in San Francisco, far and away this Nation’s most
childless large city,
99
and imbued with the cultural assumptions material to that
city’s status may well place low value on man-woman marriage’s benefits
pertaining to reproduction and child-rearing. Similarly, a single woman not
desiring a husband but desiring a child and willing to use sperm from an
anonymous donor will probably place little or no value on the child’s interest in

99
See Stewart, Eliding, supra note 23, at 534 n.186.
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knowing and being reared by both his mother and father. And, someone not
engaged himself in the exercise of religion and distrustful of those who are may
place little value on the religious liberties at stake here. As a final example,
someone who has bought in wholly to the radical social constructionist theory of
gender probably will not place any value on the benefits of gender
complementarity in child-rearing. To the extent anyone personally devalues man-
woman marriage’s benefits, he or she will probably also devalue society’s efforts
to preserve and perpetuate that distinct institution.
These personal valuations of man-woman marriage’s unique social benefits
no doubt arise in large part from what John Rawls called people’s “comprehensive
doctrines.”
100
The Supreme Court has not written his notion of “public reason”
into constitutional jurisprudence, and we do not advocate for that. We raise Rawls
only to frame this issue: In assessing whether there are sufficiently good reasons
to sustain Nevada’s Marriage Laws against constitutional attack, how do the judges
of this Court value the societal interests those laws protect? Certainly it should not
be on the basis of their respective comprehensive doctrines. Judging on the basis
of one’s own comprehensive doctrines leads, in operation, to the kind of

100
See John Rawls, Political Liberalism 13 (1995); see also John Rawls, The Idea
of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997).
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problematic judging seen in Dred Scott,
101
in Lochner
102
and its progeny, and in
this Court’s en banc decision in the Washington assisted-suicide case.
103

Judicial valuation of the societal interests that laws are designed to protect
should be based on both objectively reasonable considerations and due deference
to the valuations emerging from democratic processes. Applying that answer leads
to a high valuation of the benefits materially and even uniquely provided by the
man-woman marriage institution and therefore protected and advanced by
Nevada’s Marriage Laws. Society has a compelling interest in its own
perpetuation, both biologically and culturally. The man-woman marriage
institution is the best device humankind has yet devised to assure, to the greatest
extent possible given human nature, the orderly reproduction of society. Society
has a compelling interest, based in a universally shared public morality, both to
assure that the children, the weakest and most vulnerable among it, are reared in
the optimal mode, again to the greatest extent possible given human nature, and to
vindicate the child’s interest in knowing and being reared by her mother and father.

101
Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), superseded by U.S.
Const. amend. XIII, §§ 1 & 2 and U.S. Const. amend. XIV, § 1.
102
Lochner v. New York, 198 U.S. 45 (1905), overruled in part by Ferguson v.
Skrupa, 372 U.S. 726 (1963).
103
Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc),
rev’d, Washington v. Glucksberg, 521 U.S. 702 (1997). We reference this case
with due respect, to remind that the judges of this Court, like all other judges, are
not entirely immune to the temptation to substitute their own value judgments for
those made democratically.
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And if the first part of the First Amendment teaches anything, it is that our society
and our Constitution value highly religious liberties qua religious liberties, thereby
making their protection against the likely depredations of a genderless marriage
regime both important and valuable.
IV. BAKER V. NELSON BINDS THIS COURT TO RULE AGAINST THE PLAINTIFFS.
On this issue, the Coalition adopts the analysis of the First Circuit in its
DOMA case
104
and the portions of the Governor’s and Clerk/Recorder Glover’s
respective Answering Briefs consistent with that analysis. We add just two
observations.
One, the Supreme Court’s resolution of Baker v. Nelson was fully consistent
with, and is rightly seen as a straightforward application of, our constitutional
jurisprudence on the right, power, and sovereignty of the states to define marriage
within their respective borders. That jurisprudence stretches from the beginning of
the Republic right through Windsor (as we show in the following Section).
Two, in arguing against application of the Baker v. Nelson judgment here,
Plaintiffs quote Justice Ginsburg’s comments made during oral argument in
Hollingsworth to the lawyer arguing in favor of Proposition 8. Opening Br. at 96–
97. In aid of his position, that lawyer had invoked Baker v. Nelson. Justice

104
Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir.
2012), cert. denied, 133 S. Ct. 2884 (U.S. 2013).
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Ginsburg expressed some thoughts on the precedential value of that decision in the
Supreme Court. In the Supreme Court is the point Plaintiffs miss. A Supreme
Court dismissal for want of a substantial federal question is a ruling on the merits
binding on the lower federal courts, e.g., Hicks v. Miranda, 422 U.S. 332, 343–45
(1975), but with a lesser precedential value at the Supreme Court itself, e.g., Tully
v. Griffin, Inc., 429 U.S. 68, 74 (1976) (a summary disposition of an appeal “is not
here ‘of the same precedential value as would be an opinion of this Court treating
the question on the merits,’”) (quoting Edelman v. Jordan, 415 U.S. 651, 671
(1974) (emphasis added)). Accordingly, Justice Ginsburg’s comments add nothing
to this Court’s analysis of the extent to which Baker v. Nelson binds this Court.
That extent, of course, is completely.
V. WI NDSOR SUPPORTS NEVADA’S MARRIAGE LAWS.
We read Windsor in its entirety and as part and parcel of and consistent with
the totality of Supreme Court jurisprudence in this area. Read in its entirety and
not as an aberration, Windsor supports Nevada’s Marriage Laws.
A. Windsor reviewed a law materially different in motivation, authority,
operation, and consequences from Nevada’s Marriage Laws.

To correctly understand the reason that the Supreme Court found the line-
drawing in Windsor constitutionally offensive, it is of paramount importance to
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correctly identify the classes created by DOMA
105
and the consequences of its line-
drawing. The line that DOMA drew was between man-woman couples validly
married under the laws of a State and same-sex couples also validly married under
those same laws. Although when DOMA was passed in 1996 no State authorized
same-sex couples to marry, it was clearly understood that, if and when that
happened, DOMA would operate to create those two classes and to treat the
married same-sex couples as not married for any federal purpose. As to the
resulting harms to those couples, Windsor is fairly read as identifying two
categories: economic and dignitary.
The relevant and extraordinary feature of DOMA’s line-drawing was that
the federal government, with only very minor and specific exceptions, had never
before made a definition of marriage but rather had always deferred to the States; if
a State said a couple was married, the federal government treated the couple as
married. Windsor deemed this highly “unusual” feature offensive in two closely
related ways. First, it impinged on the authority of the States to regulate and define
domestic relations, principally marriage, a power that under our federalism has
always been pre-eminently, indeed, virtually exclusively, the prerogative of the
States. Second, the line-drawing coupled with the “unusual” departure from

105
All references here to “DOMA” are limited to section 3 of the federal Defense
of Marriage Act, 110 Stat. 2419 (1996), which amended the Dictionary Act at 1
U.S.C. § 7.
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deference to the States’ traditional authority over marriage suggested that DOMA
was targeting same-sex couples for adverse treatment more than it was advancing
the various fiscal and uniformity interests proffered in the statute’s defense.
The States’ reserved power to regulate marriage, as an aspect of our
federalism, without question played a central role in Windsor’s holding that
DOMA is unconstitutional. Windsor explained that “‘[t]he states, at the time of the
adoption of the Constitution, possessed full power over the subject of marriage and
divorce . . . [and] the Constitution delegated no authority to the Government of the
United States on the subject of marriage and divorce.’” United States v. Windsor,
133 S. Ct. 2675, 2691 (2013) (quoting Haddock v. Haddock, 201 U.S. 562, 575
(1906)) (emphasis added). Windsor reaffirmed that “‘when the Constitution was
adopted the common understanding was that the domestic relations of husband and
wife and parent and child were matters reserved to the States.’” Id. at 2691
(quoting Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383–84 (1930)) (emphasis
added). Windsor emphasized the States’ “historic and essential authority to define
the marital relation,” id. at 2692, on the understanding that “[t]he definition of
marriage is the foundation of the State’s broader authority to regulate the subject of
domestic relations with respect to the ‘[p]rotection of offspring, property interests,
and the enforcement of marital responsibilities[,]’” id. at 2691 (quoting Williams v.
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North Carolina, 317 U.S. 287, 298 (1942)). And the Court noted that “[c]onsistent
with this allocation of authority, the Federal Government, through our history, has
deferred to state-law policy decisions with respect to domestic relations.” Id.
106

Specifically, the Court held that New York’s recognition of same-sex marriage was
“without doubt a proper exercise of its sovereign authority within our federal
system, all in the way that the Framers of the Constitution intended.” Id. at 2692.
Congress went astray, the Court held, by “interfer[ing] with the equal dignity of
same-sex marriages, a dignity conferred by the States in the exercise of their
sovereign power.” Id. at 2693. Given this reasoning, it is “undeniable” that the
Supreme Court’s judgment in Windsor “is based on federalism.” Id. at 2697
(Roberts, C.J., dissenting).
Windsor’s thorough discussion of both DOMA’s infringement on the States’
sovereignty over marriage and the economic and dignitary harms resulting from
that infringement illuminate the decision’s holdings. To the extent that the Court’s
decision to strike down DOMA is based on Fifth Amendment substantive due
process jurisprudence, its holding is that a couple (probably any couple, whether

106
Windsor also made clear the independence of one State, in making its marriage
decisions, relative to all other States. The decision states that diversity among the
States regarding same-sex marriage is consistent with the “the long-established
precept that the incidents, benefits, and obligations of marriage . . . may vary,
subject to constitutional guarantees, from one State to the next.” 133 S. Ct. at
2692.
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man-woman or same-sex) bears a right (with the federal government bearing the
corresponding duty) to federal recognition of the privileged marriage status
conferred on the couple by a State in the exercise of its sovereign power in the area
of domestic relations. To the extent that the Court’s decision to strike down
DOMA is based on the equal protection component of the Fifth Amendment’s due
process clause, the holding is that the governmental fiscal and uniformity interests
supposedly advanced by the creation of the disfavored class are not sufficiently
good reasons for that creation in light of two realities: one, that creation amounted
to an extraordinary, unprecedented, and affirmative federal infringement on the
States’ sovereign power over marriage; two, that infringement suggested a
targeting of the disfavored class more than the advancement of legitimate interests.
The Plaintiffs ignore these central aspects of Windsor. Consequently, their
misreadings and misuses of Windsor are many, and we counter those in the
following sections.
B. Plaintiffs wrongly ask this Court to make the same mistake that Congress
made with DOMA and that Windsor corrected.

The Plaintiffs’ challenge to Nevada’s definition of marriage invites this
Court to make the same error Congress committed in enacting DOMA—by
creating a “federal intrusion on state power” with its resulting “disrupt[ion] [to] the
federal balance.” Id. at 2692. Windsor affirms that Nevada’s laws defining
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marriage deserve this Court’s respect and deference, no less than New York’s.
Like New York, Nevada adopted its definition of marriage “[a]fter a statewide
deliberative process that enabled its citizens to discuss and weigh arguments for
and against same sex marriage,” and its laws reflect “the community’s considered
perspective on the historical roots of the institution of marriage.” Id. at 2689,
2692–93. That Nevada chose to keep and preserve the man-woman definition of
marriage, while New York decided to adopt a genderless marriage regime, does
not detract from the validity of Nevada’s choice. Windsor reaffirms “the long-
established precept that the incidents, benefits, and obligations of marriage . . . may
vary, subject to constitutional guarantees, from one State to the next.” Id. at 2692.
Singling out Nevada’s marriage laws for less respect or deference than the
Supreme Court gave New York’s laws would contradict that Court’s endorsement
of nationwide diversity on the States’ consideration of genderless marriage and
violate the “‘fundamental principle of equal sovereignty’ among the States.”
Shelby Cnty., Alabama v. Holder, 133 S. Ct. 2612, 2623 (2013) (quoting Northwest
Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).
In brief, fundamental principles of federalism reserve for Nevada the
sovereign authority to define and regulate marriage. A judicial declaration
nullifying Nevada’s definition of marriage would disrupt the federal balance, just
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as DOMA did, by interjecting federal power into an area of law recognized as
uniquely belonging to State authority.
C. The Plaintiffs wrongly equate DOMA’s discrimination found
unconstitutional in Windsor with Nevada’s profoundly different decision to
preserve the man-woman marriage institution.

In the exercise of its sovereign authority, New York elected to experiment
with a genderless marriage regime. That meant that it conferred equal marital
status on all couples it deemed married, including the couple of which the Windsor
plaintiff was a part. The federal government through DOMA, however, created
two classes of married New York couples by treating some of them—same-sex
couples—as not married despite New York’s authoritative pronouncement to the
contrary. Windsor held unconstitutional the federal creation of those two classes of
married couples and their resulting disparate treatment under federal law.
Plaintiffs seek to cast what Windsor held to be unconstitutional as any
governmental decision about marriage that distinguishes between man-woman
couples and same-sex couples. But there is no justification for such a
characterization. Windsor itself said:
The federal statute is invalid, for no legitimate purpose overcomes the
purpose and effect to disparage and to injure those whom the State, by
its marriage laws, sought to protect in personhood and dignity. By
seeking to displace this protection and treating those persons as living
in marriages less respected than others, the federal statute is in
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violation of the Fifth Amendment. This opinion and its holding are
confined to those lawful marriages.

133 S. Ct. at 2696.
Further, large and compelling differences exist between DOMA’s decision
regarding New York married couples (what Windsor struck down) and Nevada’s
decision to preserve man-woman marriage (what Windsor supports). First, and
most obviously, Nevada exercised, just as New York did, its sovereign powers
over the marriage institution within its borders, see, e.g., Sosna v. Iowa, 419 U.S.
393, 404 (1975) (“[D]omestic relations [is] an area that has long been regarded as
a virtually exclusive province of the States.”), whereas the federal government with
DOMA acted without delegated authority because “‘the Constitution delegated no
authority to the Government of the United States on the subject of marriage and
divorce,’” Windsor, 133 S. Ct. at 2691(quoting Haddock, 201 U.S. at 575)
(emphasis added).
Second, Nevada decided to preserve the man-woman marriage institution.
Because of the very nature of that institution, Nevada’s decision is far different, in
a profoundly substantive way, from the federal government’s decision in DOMA.
The federal government had no effective or constitutional power to preserve the
institution in New York exactly because that State had already used its sovereign
powers to mandate a genderless marriage regime and thereby de-institutionalize
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over time man-woman marriage. But Nevada has both effective and constitutional
power to preserve the man-woman marriage institution and has chosen to use it.
As Windsor pointed out in the language just quoted, DOMA had “no legitimate
purpose” in infringing on New York’s sovereign power over marriage in that State
and on the marital status of those whom that State authorized and deemed to be
married. But Nevada’s project of preserving the man-woman marriage institution
is far different from the DOMA project and serves powerful legitimate purposes.
Those purposes, stated most succinctly, are to perpetuate the valuable social
benefits materially provided by the man-woman marriage institution and likely to
be lost if the law suppresses the man-woman meaning at the core of and
constitutive of the institution. We have demonstrated those benefits and their
jeopardy in Section I above.
Yes, Nevada made a choice different from New York’s choice, but the
legitimate purposes and interests to be served by Nevada’s choice are at least as
powerful and valid as those New York thinks it is advancing and, in the judgment
of Nevada’s citizens, will be most beneficial to marriage, to generations of children
yet to come, and to society generally. Most importantly for present purposes,
Windsor did not enshrine in the Constitution New York’s choice any more than it
did that for Nevada’s choice; rather, Windsor protected our federal balance by
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striking down DOMA’s unauthorized and unjustified interference with New
York’s choice. Especially in light of Windsor, this Court should reject the
Plaintiffs’ importuning that this Court make its own DOMA-like interference with
Nevada’s choice.
D. The Plaintiffs wrongly read Windsor as recognizing a free-standing
substantive due process right to “equal dignity” that requires judicial
imposition of a genderless marriage regime.

Plaintiffs argue that judicial imposition of a genderless marriage regime is
constitutionally required to vindicate the right of same-sex couples and the children
connected to their relationships to “equal dignity” because perpetuation of the
man-woman marriage institution violates that right. Opening Br. at 38–48.
Plaintiffs purport to derive this so-called right from Windsor. But this is a clear
misreading. The Supreme Court saw this: New York’s genderless marriage
regime confers an equal marital status on all couples that State authorizes and
deems to be married, whether man-woman couples or same-sex couples. That
status confers benefits and advances interests, including economic breaks and
heightened dignity or social standing. Because the marriage status is equal for all
New Yorkers who enjoy it, so too is the dignity conferred by that status. This
“equal dignity” is thus a creation of the State of New York, and, indeed, its
conferral and enjoyment no doubt constitute one of the reasons that State elected to
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go the genderless marriage route. But this “equal dignity” is not also a creation of
the federal constitution. What is a creation of the federal constitution is our
federalism and the equal protection right against harm-inflicting classifications
made without sufficiently good reasons. Because DOMA inflicted harm on
married New York same-sex couples by diminishing, with “no legitimate
purpose,” their State-conferred “equal dignity” in marriage, Windsor vindicated the
federal constitutional interests conjoined by the facts of this case, our federalism
and equal protection of the laws.
But Windsor certainly did not create a free-standing substantive due process
right to equal dignity for people generally or to equal dignity for gay men and
lesbians or to equal dignity for same-sex couples relative to marriage. Nothing in
the decision sustains the notion that it did such a thing. Much in the decision
defeats that notion, including the express language limiting the holding to a
situation where federal legislation operates “to injure those whom the State, by its
marriage laws, sought to protect in personhood and dignity” and thereby is
operating “to displace this [State-conferred] protection and treating those persons
as living in marriages less respected than others . . . . This opinion and its holding
are confined to those lawful marriages.” 133 S. Ct. at 2696. Beyond the decision
itself is the powerful reality that the Supreme Court has not read “dignity” or
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“equal dignity” into our body of constitutional law as either a free-standing right or
a value or even an interpretive guide—despite (or because of) efforts by its
counterparts in other countries to do that.
107
A right to “equal dignity” has no
inherent boundaries or limitations and thus, if judicially recognized, must become
nothing other than a powerful machine for imposition of judicial notions of the
good and thereby for material constriction of the realms of national life governed
by democratic processes.
108

E. Plaintiffs wrongly read Windsor as basing a “right” to genderless marriage
on “harm” to same-sex couples and the children connected to their
relationships.

Plaintiffs devote much of their Opening Brief to discussion of the “harms”
experienced by same-sex couples and the children connected to them as a
consequence of the absence of a genderless marriage regime. Opening Br. at 17–
29. Those harms are said to include harms (i) to social status and a sense of self-
worth (that is, to a “dignity” interest); (ii) to practical or administrative interests;
and (iii) to the absence of federal benefits, primarily of an economic nature,
accorded married people. (Because of Nevada’s DPA, there is no loss of access to
State economic benefits accorded married people.) Lodged within this discussion
of harms are the related notions that these harms (i) give rise to a fundamental

107
See Stewart, Judicial Redefinition, supra note 23, at 100–19.
108
See id.
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substantive due process right to a genderless marriage regime, with the resulting
heavier burden on the State to justify its “interference” with this supposed right,
and (ii) result in a heightened level of judicial scrutiny of the Plaintiffs’ equal
protection claims. These notions are wrong.
Consistent with well-settled constitutional jurisprudence, Windsor never
suggests that the extent of resulting harm somehow determines the recognition or
not of a fundamental substantive due process right. If an interest does not
otherwise qualify as a fundamental right, or protected liberty interest, it does not
qualify whether harm to the interest is great or little. If there is real and remediable
harm to a protected liberty interest, whether great or little, the law will vindicate
the interest.
The same holds true in the equal protection context. The State’s reasons for
a classification are adjudged sufficiently good or not independently of the extent of
harm to the disfavored class, except where the classification impinges on a
fundamental right such as freedom of speech. Dandridge v. Williams, 397 U.S.
471 (1970), illustrates the correct and limited role of “harm” in equal protection
jurisprudence. Maryland put a cap on welfare payments so that large impoverished
families received less than they needed, whereas smaller impoverished families
were not so harmed. Id. at 472–73. The Supreme Court was not at all callous
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towards the large families’ harsh conditions but nevertheless held that the
classification must be subjected to rational basis review.
To be sure, the cases cited, and many others enunciating this
fundamental standard [of rational basis review] under the Equal
Protection Clause, have in the main involved state regulation of
business or industry. The administration of public welfare assistance,
by contrast, involves the most basic economic needs of impoverished
human beings. We recognize the dramatically real factual difference
between the cited cases and this one, but we can find no basis for
applying a different constitutional standard. . . . [I]t is a standard that
is true to the principle that the Fourteenth Amendment gives the
federal courts no power to impose upon the States their views of what
constitutes wise economic or social policy.

Id. at 485–86 (citations and footnotes omitted).
109

In substantive due process jurisprudence, the threshold question is whether
the right asserted by the plaintiff is a fundamental right guaranteed by the
Fourteenth (or Fifth) Amendment’s due process clause. In answering this first
question, it is the nature of the interest asserted, not the extent of the harm, that
matters. This important principle first became clear in procedural due process
cases. E.g., Bd. of Regents v. Roth, 408 U.S. 564, 570–71 (1972) (“[T]o determine
whether due process requirements apply in the first place, we must look not to the
‘weight’ but to the nature of the interest at stake.”). It is now equally clear in
substantive due process cases. Thus, in United States v. Juvenile Male, 670 F.3d

109
Dandridge v. Williams itself explains the First Amendment exception to the
general rule that the extent of harm does not alter the equal protection equation.
397 U.S. 471, 484 (1970).
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999 (9th Cir. 2012), certain juveniles claimed a substantive due process right not to
be registered as sex offenders because the resulting harms were grievous,
amounting to an “onerous lifetime probation.” Id. at 1011. But this Court gave no
role to that harm in deciding whether to recognize the asserted right; it held against
the claim of fundamental right and applied rational basis review. Id. at 1012–13.
This Court’s approach was consistent with that of the Supreme Court in
Washington v. Glucksberg, 521 U.S. 702 (1997). There the Court did not weigh or
even consider the plight of terminally ill persons who desired to end their life with
“dignity” but were precluded from doing so by the statute prohibiting assisted
suicide; rather, like this Court in Juvenile Male, it applied rational basis review.
Glucksberg, 521 U.S. at 728.
Windsor is fully consistent with this settled law. It did not use the perceived
harms to the disfavored class (economic and dignitary) to recognize a fundamental
right or to impose heightened scrutiny. The decision contains no language
suggesting it did either. The decision itself makes clear its purpose for examining
at some length those perceived harms—to determine whether DOMA’s
discrimination between two classes of lawfully married couples was “of an unusual
character” and “motivated by an improper animus or purpose.” 133 S. Ct. at 2693
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(referencing Dep’t of Agric. v. Moreno, 413 U.S. 528, 534–35 (1973), and Romer
v. Evans, 517 U.S. 620, 633 (1996)).
The responsibility of the States for the regulation of domestic relations
is an important indicator of the substantial societal impact the State’s
classifications have in the daily lives and customs of its people.
DOMA’s unusual deviation from the usual tradition of recognizing
and accepting state definitions of marriage here operates to deprive
same-sex couples of the benefits and responsibilities that come with
the federal recognition of their marriages. This is strong evidence of a
law having the purpose and effect of disapproval of that class. The
avowed purpose and practical effect of the law here in question are to
impose a disadvantage, a separate status, and so a stigma upon all who
enter into same-sex marriages made lawful by the unquestioned
authority of the States.

Id. Windsor’s examination of the perceived harms demonstrated the existence of
“a disadvantage, a separate status, and so a stigma” and did so as part of the larger
endeavor of showing, as required by Moreno and Romer, that the “purpose and
practical effect of the law here in question [was] to impose” such harms. 133 S.
Ct. at 2693.
In light of the settled law set forth above and honored by Windsor, the
Plaintiffs’ extended discussion of their plight resulting from the absence of a
genderless marriage regime in Nevada is simply not relevant to the substantive due
process issue of a fundamental right to such a regime or to the equal protection
issue of the level of judicial scrutiny applied to the decision to preserve the man-
woman marriage institution.
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The Plaintiffs argue one particular harm at length: because not married in
the eyes of Nevada law, they do not receive the federal benefits accorded married
persons. Opening Br. at 17–22. This argument has three fatal defects. First,
under settled law and as already noted, this harm (like the others advanced) is not
relevant to the due process fundamental right issue or to the equal protection level
of judicial scrutiny issue.
Second, this lack-of-federal-benefits harm is not relevant to any issue in this
case. Plaintiffs’ Complaint attacks only the exercise of State power, never the
exercise of federal power. Yet it is federal power that limits certain federal
benefits to couples lawfully married in their jurisdiction of residence. Only federal
power can expand the class of recipients of those federal benefits, and certainly
Congress has the power to make those benefits available to couples lawfully
married in any jurisdiction and/or to couples in a legal domestic partner
relationship, such as those who take advantage of Nevada’s DPA. The fact that
federal law has not—or has not yet—expanded in those ways is in no way a
function of State action. If the federal decision to limit benefits to couples lawfully
married in their jurisdiction of residence violates any constitutional provision,
110

that provision is the Fifth Amendment, not the Fourteenth Amendment, and this is
only a Fourteenth Amendment case.

110
It does not. See Dandridge v. Williams, 397 U.S. 471 (1970).
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Third, if this argument about lack-of-federal-benefit harms is meant to track
Windsor’s approach to harms—to consider the existence of “a disadvantage, a
separate status, and so a stigma” as part of the larger endeavor of considering
whether the “purpose and practical effect of the law here in question [was] to
impose” such harms—the argument fails entirely. In 2000 and 2002, when
Nevada’s voters passed the Marriage Amendment, DOMA was the law of the land,
and it prevented federal marriage benefits to same-sex couples regardless of the
content of State law. So it is ludicrous to suggest that the voters’ motive was to
deprive same-sex couples of those federal benefits. That leaves only the
possibility—equally ludicrous—that after the Supreme Court’s 5-4 decision in
Windsor in June 2013, Nevada’s voters suddenly developed the mean-spirited
motive to maintain Nevada’s Marriage Laws so as to “facilitate” the deprivation
resulting from the limits in federal laws—with that motive rendering the Marriage
Laws unconstitutional the hour after Windsor was announced.
In sum, the Plaintiffs’ lengthy discussion of harms advances not at all the
principled resolution of the real and important issues in this case but rather
confuses work on that task.
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VI. THERE IS NO FUNDAMENTAL RIGHT TO A GENDERLESS MARRIAGE REGIME.
Because the Supreme Court has repeatedly recognized the fundamental right
of a man and a woman to marry,
111
Plaintiffs argue that this right must extend to
same-sex couples as well. Opening Br. at 30–38. However, nearly all courts that
have considered that argument have rejected it. It runs afoul of the settled law that
governs recognition of a new fundamental right and polices the boundaries of
fundamental rights already recognized. And, most important of all, it is
constructed on a notion of what marriage is that is profoundly at odds with the
social institutional realities of contemporary American marriage.
Over the twenty years American courts have been intensely engaged with
the marriage issue, most have either expressly rejected same-sex couples’
fundamental-right argument or declined to accept it although it was presented to
them.
112
This rejection is right in light of the settled law governing the
fundamental-rights issue generally and in light of the social realities of marriage.

111
See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (collecting cases).
112
E.g., ER 34 n.9; Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1098 (D. Haw.
2012); Wilson v. Ake, 354 F.Supp.2d 1298, 1307 (M.D. Fla. 2005); Standhardt v.
Super. Ct., 77 P.3d 451, 460 (Ariz. Ct. App. 2003); Dean v. District of Columbia,
653 A.2d 307, 332–33 (D.C. 1995); Baehr v. Lewin, 852 P.2d 44, 55-57 (Haw.
1993); Morrison v. Sadler, 821 N.E.2d 15, 29 (Ind. Ct. App. 2005) (agreeing with
due process holding in Standhardt); Conaway v. Deane, 932 A.2d 571, 624 (Md.
2007); Lewis v. Harris, 908 A.2d 196, 211 (N.J. 2006) (“Despite the rich diversity
of this State, the tolerance and goodness of its people . . . we cannot find that a
right to same-sex marriage is so deeply rooted in the traditions, history, and
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This Court recently summarized that settled law:
The Supreme Court has described the “fundamental” rights protected
by substantive due process as “those personal activities and decisions
that this Court has identified as so deeply rooted in our history and
traditions, or so fundamental to our concept of constitutionally
ordered liberty, that they are protected by the Fourteenth
Amendment.” Those rights are few, and include the right to marry, to
have children, to direct the education and upbringing of one’s
children, to marital privacy, to use contraception, to bodily integrity,
to abortion, and to refuse unwanted lifesaving medical treatment. [An
asserted right must] be “so rooted in the traditions and conscience of
our people as to be ranked as fundamental,” . . . and “implicit in the
concept of ordered liberty,” such that “neither liberty nor justice
would exist if they were sacrificed[.]”
United States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir. 2012), (citations
omitted). And importantly for present purposes, this Court also emphasized “that
the analysis begins with a ‘careful description of the asserted right.’” Id. (quoting
Reno v. Flores, 507 U.S. 292, 302 (1993)). Indeed, in case after case, the Supreme
Court has insisted on “carefully formulating the interest at stake in substantive due
process cases.” Washington v. Glucksberg, 521 U.S. 702, 722 (1997). In
Glucksberg, for instance, the Court rejected broad statements of the asserted
interest, such as “a liberty interest in determining the time and manner of one’s
own death” or “the right to choose a humane, dignified death,” in favor of the more

conscience of the people of this State that it ranks as a fundamental
right.”); Hernandez v. Robles, 855 N.E.2d 1, 17–18 (N.Y. 2006); Andersen v. King
Cnty., 138 P.3d 963, 979 (Wash. 2006) (en banc) (calling a conclusion that there is
a fundamental right “astonishing”).

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precise formulation “whether the ‘liberty’ specially protected by the Due Process
Clause includes a right to commit suicide which itself includes a right to assistance
in doing so.” Id. at 722–23 (citations omitted).
The Plaintiffs’ description of the asserted right is not careful; in fact,
nowhere do they explicitly describe the right, relying instead on a series of
allusions and negative analogies. Opening Br. at 31–38. Thus, they suggest that
the right “touches on . . . fundamental privacy rights,” id. at 31, partakes of
“freedom of personal choice,” id. at 32, includes “‘the freedom of choice’ of whom
to marry,” id. at 33, and “the freedom to choose one’s partner,” id., implicates “the
liberty of individuals to build important personal relationships,” id. at 34, and
includes “the right of all people to enter into intimate associations,” id. The right
Plaintiffs seek to have declared fundamental, however, is not at all difficult to
describe. The existing right to marry is and unquestionably always has been the
right of a man and a woman to marry. That is not the right Plaintiffs seek to
vindicate. They seek “fundamental right” status for a right to marry another person
of the same sex. Only this statement meets the degree of descriptive care
Glucksberg demands. See 521 U.S. at 722.
Our fundamental-rights jurisprudence, applied in a quite straight-forward
way, will not hold the right to marry a person of the same sex to be a fundamental
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right. The right to marry a person of the same sex does not meet the test recently
restated in Juvenile Male. Historically, this Nation never recognized the right. It
did not exist anywhere in this Nation until a 4-3 decision of the Massachusetts
Supreme Judicial Court mandated it in that State in 2003 (effective date 2004).
Although a minority of the other States have followed suit, either by judicial
mandate or legislative action,
113
at the same time that was happening something
very big happened in our national life: thirty-one States amended their
constitutions to protect marriage as the union of a man and a woman, and six more
States continued protection by legislation.
114
So whether one looks back to the
time of the Founding or to the time of the Civil War Amendments or to just the
past fifteen or twenty years, the view is the same: This Nation and its people have
not caused the “right” to marry a person of the same sex to be deeply rooted in our
history and traditions or to be fundamental to our concept of constitutionally
ordered liberty, such that neither liberty nor justice would exist if the “right” were
not enshrined in constitutional law. Rather, this Nation and most of its people have
sought to preserve “the union of a man and a woman” as a core meaning of our
vital social institution of marriage.

113
See Addendum of Pertinent Authorities (“Add.”) at A-10 to A-17; note 97
supra.
114
See Add. at A-8 to A-15.
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The cases relied on by Plaintiffs do not support a contrary conclusion.
Lawrence v. Texas, 539 U.S. 558 (2003), expressly differentiates between the
fundamental right of gay men and lesbians to enter an intimate relationship, on one
hand, and, on the other hand, the right to marry a member of one’s own sex: “The
present case does not . . . involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter.” Id. at 578.
And Justice O’Connor said that “preserving the traditional institution of marriage”
would be a “legitimate state interest.” Id. at 585 (O’Connor, J., concurring).
Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374
(1978), and Turner v. Safley, 482 U.S. 78 (1987), hold no relevance at all. Each
decision invalidated a state law withholding marriage from man-woman couples
for reasons that have nothing to do with this case. Moreover, the invocation of
Loving as part of the strategy to equate the man-woman meaning in marriage to
anti-miscegenation laws (described in the Introduction) reminds that the
comparison is a false analogy and therefore provides no basis for any court to
mandate the redefinition of marriage.
115

The Plaintiffs also quote a plurality opinion in Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992), that certain

115
Regarding the fallacy of this strategy, see Blankenhorn, Future, supra note 34,
at 172–79; Girgis, supra note 34, at 77–81; Monte Neil Stewart & William C.
Duncan, Marriage and the Betrayal of Perez and Loving, 2005 BYU L. Rev. 555.
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“matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment.” Opening Br. at 39. But in a subsequent
majority opinion, the Supreme Court expressly denied that its “liberty
jurisprudence, and the broad, individualistic principles it reflects” safeguards a
range of interests derived from “a general tradition of ‘self-sovereignty’” or
“deduced from abstract concepts of personal autonomy.” Glucksberg, 521 U.S. at
724–25 (citation omitted). Instead, the Court has taught: “That many of the rights
and liberties protected by the Due Process Clause sound in personal autonomy
does not warrant the sweeping conclusion that any and all important, intimate, and
personal decisions are so protected, and Casey did not suggest otherwise.” Id. at
727–28 (citations omitted) (emphasis added).
The social realities of the marriage institution make starkly clear just how
novel, how profoundly radical, how different from the fundamental right to marry
the Plaintiffs’ asserted “right” is. Plaintiffs can marry or have their foreign
marriages recognized only if Nevada changes or is forced to change its legal
meaning of marriage from the union of a man and a woman to the union of two
persons without regard to gender. That is certain. This means that the right
Plaintiffs are seeking, in reality and substance, is the right to have a State-imposed
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genderless marriage regime. This is the only right the State can give them.
Although the State has the power through the law to suppress the man-woman
meaning and thereby de-institutionalize the current marriage institution, the State
has no power to usher the Plaintiffs or any other same-sex couples into that
venerable institution. The very act of ushering them in will transform the old
institution (not all at once, of course, but certainly over time) and make it into a
profoundly different institution, one whose meanings, values, practices, and vitality
are speculative but certainly different from the meanings, values, practices and
vitality up until now inhering in the man-woman marriage institution.
116

Thoughtful and informed people have recognized from the beginning of the contest
over the marriage issue that, although same-sex couples look to the law to let them
into the privileged institution and the law may want to, it cannot; it can only give

116
See Brian Bix, Reflections on the Nature of Marriage, in Revitalizing the
Institution of Marriage for the Twenty-First Century: An Agenda for
Strengthening Marriage 112–13 (Alan Hawkins et al. eds., 2002):

Marriage is an existing social institution. One might also helpfully
speak of it as an existing “social good.” The complication in the
analysis is that one cannot fully distinguish the terms on which the
good is available from the nature of the good. As Joseph Raz wrote
regarding same-sex marriage, “When people demand recognition of
gay marriages, they usually mean to demand access to an existing
good. In fact they also ask for the transformation of that good. For
there can be no doubt that the recognition of gay marriage will effect
as great a transformation in the nature of marriage as that from
polygamous to monogamous or from arranged to unarranged
marriage.”
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them access to a different regime of different value.
117
So there is both a radical
and an extremely radical aspect of the “fundamental right” the Plaintiffs want this
Court to recognize: a right to both State creation of a genderless marriage regime
and State suppression of the man-woman marriage institution that unavoidably
competes with it. That is not a “fundamental right” in our national and
constitutional heritage but is the likely destroyer of one.
Because of this point, Plaintiffs and all genderless marriage advocates must
of necessity embrace the narrow or close personal relationship description of
marriage and try to get the courts to do the same, all the while trying to get them
also to turn a blind eye to the broad description of American marriage. The narrow
view posits a marriage regime already much like a genderless marriage regime, as
noted in Section I.C. above. But robust legislative facts sustain the broad
description of marriage and therefore sustain what we say here about the extremely
radical nature of the “fundamental right” claimed by the Plaintiffs.
VII. THERE IS NO LEGAL OR FACTUAL BASIS FOR DEPLOYING “HEIGHTENED
SCRUTINY” IN THIS CASE.

Plaintiffs’ plea for “heightened scrutiny” fails for at least three reasons.
One, Nevada’s Marriage Laws infringe on no fundamental right. Two, the
Supreme Court is no longer in the business of dispensing “suspect classification”

117
See id.; Stewart, Judicial Redefinition, supra note 23, at 83–85.
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designations to this or that identity group so as to shield them from the workings of
normal democratic processes. Three, even if the Supreme Court were open to
such, the gay/lesbian community cannot satisfy the requirements for such a
designation, especially the “politically powerless” requirement.
The previous section establishes the first reason. As this Court recently said
in United States v. Juvenile Male: “In a substantive due process analysis, we must
first consider whether the statute in question abridges a fundamental right. If [it
does] not, the statute need only bear a ‘reasonable relation to a legitimate state
interest to justify the action.’” 670 F.3d 999, 1012 (9th Cir. 2012) (quoting
Washington v. Glucksberg, 521 U.S. 702, 722 (1997)). That is rational basis
review.
As to the second reason, from Romer to Lawrence to Windsor, there has
been a tremendous push to have the Supreme Court hold that sexual orientation
discrimination triggers heightened scrutiny. Consistently, the Court has not done
that. This reality, stretching now over almost two decades, validates this
assessment from one of the leading advocates of genderless marriage:
All classifications based on other characteristics—including age,
disability, and sexual orientation—currently receive rational basis
review. Litigants still argue that new classifications should receive
heightened scrutiny. Yet these attempts have an increasingly
antiquated air in federal constitutional litigation, as the last
classification accorded heightened scrutiny by the Supreme Court was
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that based on nonmarital parentage in 1977. At least with respect to
federal equal protection jurisprudence, this canon has closed.

Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 756–57 (2011)
(emphasis added). The district court in this case stated well the likely reason for
that canon closing. ER 27–28.
As to the third reason, even if the old canon were still open to addition, the
gay/lesbian community cannot meet the requirements for “suspect classification”
treatment, specifically the “immutability” and “politically powerless”
requirements. This “suspect classification” issue—including the continuing
validity of High Tech Gays
118
as this Circuit’s authoritative voice on the issue—has
been fully ventilated. We adopt the analysis on the issue provided by the district
courts in this case and in the Hawai’i marriage case.
119
We add only two points.
First, as explained in the Introduction above, the theory of political
powerlessness has been mugged by a gang of facts. In most succinct terms,
genderless marriage advocates by their own account are winning and will continue
to win the political battle in Nevada over marriage. This account relies on
legislative nose counting and credible polling data and builds on the fact that
super-majorities in both houses of the Nevada legislature in 2009 overrode the

118
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir.
1990).
119
ER 14–30; Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1099–1103 (D.
Haw. 2012).
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then-Governor’s veto of the DPA and that the legislature just this year enacted a
joint resolution starting the process of repealing the Marriage Amendment. As the
district court so well explained, invoking heightened scrutiny often operates to
preclude resolution of policy issues through democratic processes and, although
that may be appropriate in defense of a socially disdained and politically powerless
class or of a clear fundamental right, such preclusion in other cases inflicts grave
injury on the very structure, logic, and genius of our form of government. ER 27–
28. Nevada’s gay/lesbian community simply has no valid claim on this Court for
immunity from the rigors of democracy.
No doubt sensing this reality, the Plaintiffs argue that “the relative political
powerless of a group [must be measured nationally], not in any one state.”
Opening Br. at 60 n. 36. The only authority cited is Frontiero v. Richardson, 411
U.S. 677, 685–88 (1973), which did not have before it this particular issue and
made no comment or allusion to it. It is bad logic and bad constitutional law that
Nevada must have its fair, open, effective, balanced democratic processes shunted
aside because of supposed political “realities” in Mississippi.
Plaintiffs also wrongly argue that somehow Windsor must be viewed as
endorsing the Second Circuit’s adoption of heightened scrutiny in cases of sexual
orientation discrimination. Opening Br. at 49–50 n. 30. Windsor did no such
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thing. It did not address at all that aspect of the Second Circuit’s decision. It did
not adopt as its own any part of that decision. All it did was affirm the Second
Circuit’s judgment, which was an affirmance of the district court’s order holding
DOMA unconstitutional. In these circumstances, no authority supports the
Plaintiffs’ argument.
In short, the law directs that the constitutionality of Nevada’s Marriage Laws
be determined by way of rational basis review. Without in any way qualifying or
backing away from that conclusion, we note again that Nevada’s reasons for
preserving the man-woman marriage institution are sufficiently good and powerful
to sustain the Marriage Laws regardless of the level of scrutiny used.
VIII. NEVADA’S MARRIAGE LAWS DO NOT CONSTITUTE SEX DISCRIMINATION.
Plaintiffs argue that the Marriage Laws discriminate against then on the
basis of sex. Opening Br. at 86–92. This is not a hard issue. First, the courts have
nearly unanimously rejected that argument in the context of marriage cases.
120


120
E.g., ER 12–16; Jackson, 884 F. Supp. 2d at 1098–99; Smelt v. Orange, 374 F.
Supp. 2d 861, 876–77 (C.D. Cal. 2005); Wilson v. Ake, 354 F. Supp. 2d 1298,
1307–08 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 143 (W.D. Wash. 2004); In
re Marriage Cases, 183 P.3d 384, 439 (Cal. 2008); Conaway v. Deane, 932 A.2d
571, 599 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1, 10–11 (N.Y. 2006);
Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999); Andersen v. King Cnty., 138
P.3d 963, 987–89 (Wash. 2006)(en banc); Singer v. Hara, 522 P.2d 1187, 1192
(Wash. App. 1974).
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Second, Nevada’s Marriage Laws treat men as a class and women as a class
equally.
Third, marriage’s provision of the statuses and identities of husband and
wife does not constitute government endorsement of the “separate spheres
tradition” or an impermissible sex-role allocation or perpetuate prescriptive sex
stereotypes. Although some cultures and subcultures have hung various sex-roles
and hence sex-role stereotypes on the pegs of husband and wife, such sex-roles and
stereotypes and any resulting separate spheres tradition are not inherent in the two
statuses, and nothing in Nevada’s Marriage Laws reinforces sex-role stereotypes or
seeks to influence husbands and wives in their decisions regarding roles and
specializations. Indeed, the husband and wife statuses are the antithesis of a
separate spheres ethos exactly because the man and the woman are entering into
one and the same sphere—marriage.
Fourth, the Plaintiffs’ sex discrimination argument, if accepted, would have
the Fourteenth Amendment’s Equal Protection Clause do something—mandate
genderless marriage—that the proposed Equal Rights Amendment, which was
advanced to provide greater protection against sex discrimination than the
Fourteenth Amendment provides, would not do.
What of the quality of debate in states that have not ratified the
ERA? Some legislators . . . have explained “nay” votes on the ground
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that the ERA would authorize homosexual marriage. The
congressional history is explicit that the ERA would do no such thing.
Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment: A Question of
Time, 57 Tex. L. Rev. 919, 937 (1979) (emphasis added).
IX. NEVADA’S MARRIAGE LAWS ARE NOT THE RESULT OF ANIMUS AND A BARE
DESIRE TO HARM.

The Supreme Court in Windsor inquired whether DOMA’s discrimination
between two classes of lawfully married couples in disregard of State law was “of
an unusual character” and whether DOMA was “motivated by an improper animus
or purpose.” United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (referencing
Dep’t of Agric. v. Moreno, 413 U.S. 528, 534–35 (1973), and Romer v. Evans, 517
U.S. 620, 633 (1996)). We have already shown how in that case the Court got to a
“yes” answer on both questions. See Section V.E. above. Here, in contrast, “no” is
without doubt the right answer to both questions.
First, as Windsor reaffirmed forcefully, it is for the several States to define
and regulate marriage within their respective jurisdictions; their authority there is
virtually plenary. Over the history of this Nation, the States usually have exercised
that power to give the law’s imprimatur and protection to the man-woman
marriage institution. Indeed, before 2003, that is exactly how every State had
always exercised that power. Since 2003, that has continued as the usual way, as
shown by the enshrining, protecting, and perpetuating efforts of the large majority
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of the States.
121
Indeed, DOMA’s rejection of New York’s marriage definition was
as unusual a government action as Nevada’s perpetuation of man-woman marriage
is a usual one. Those actions are literally at opposite ends of the unusual/usual
spectrum.
Second, regarding the question whether Nevada’s Marriage Laws were
“motivated by an improper animus or purpose,” the absence of any unusual
government action is strong evidence of “no,” as Windsor teaches. Moreover,
Plaintiffs cannot derive an animus conclusion from a supposed absence of
legitimate reasons for the governmental action because, as shown by robust
legislative facts, there are multiple, compelling, legitimate reasons for Nevada’s
Marriage Laws. Faced with that reality but still desiring to get traction from the
Supreme Court’s animus doctrine, the Plaintiffs do the only thing they can do—
they whistle past the graveyard, they ignore those legislative facts, they
dismissively label them as a “baseless private view that marriage equality tarnishes
the institution of marriage,” Opening Br. at 16, and they disingenuously assert that
“Defendant Officials have not identified injury to the institution of marriage,”
Opening Br. at 36, while ignoring that the Coalition has identified likely injury to
the institution of marriage—and that Clerk-Recorder Glover, one of the
“Defendant Officials,” expressly adopted the Coalition’s work-product, except the

121
See Add. at A-8 to A-15.
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portion addressing religious liberties.
122
Plaintiffs present no credible evidence of
a “bare desire to harm.” In contrast, we have shown how a wide and deep body of
scholarly work is in full harmony with the judgments, intuitions, perceptions,
assessments, and conclusions given voice in the votes of Nevada’s citizens in favor
of the Marriage Amendment and therefore in favor of preserving the man-woman
marriage institution and the valuable benefits it materially and even uniquely
provides. That showing negates the animus slander.
X. NEVADA’S DPA REINFORCES RATHER THAN UNDERMINES THE
CONSTITUTIONALITY OF NEVADA’S MARRIAGE LAWS.

The Plaintiffs appear to argue that Nevada’s enactment of its DPA undercuts
Nevada’s stated need to preserve the man-woman meaning at the core of the
marriage institution because the DPA shows the State’s official assessment to be
that same-sex couples are as worthy as married man-woman couples of the duties,
responsibilities, and rights of marriage, including those pertaining to parenthood.
Opening Br. at 16, 36, 37, and 97 n. 51. Of course Nevada law recognizes with the
DPA, as its good-spirited society does generally, that gay men and lesbians are
capable, worthy, and contributing citizens of our State. But that reality is relevant
only to the Romer/Windsor issue in that it shows the absence of animus towards
gay men and lesbians and the absence in Nevada society of a bare desire to harm.

122
Dist. Ct. Dkt. 97.
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The “capability” reality is not relevant to the big constitutional issue: Does
Nevada have sufficiently good reasons to preserve the man-woman marriage
institution? As demonstrated above, those reasons are the valuable social benefits
materially provided by that institution by way of its core man-woman meaning.
By expressly identifying a domestic partnership as not marriage, Nev. Rev. Stat. §
122A.510, the DPA reinforces that demonstration. That demonstration is not
altered at all by the relative capability or incapability of gay men and lesbians.
That relative capability is simply not relevant to the ultimate constitutional issue.
It is an argument for the arena of politics and ballot campaigns where the marriage
issue rightly belongs.
Any suggestion that the DPA can or does counter any of the policy
assessments and decisions advanced by the Marriage Amendment is defeated as a
matter of law by the legislative status of the former and the constitutional status of
the latter. King v. Bd. of Regents of Univ. of Nevada, 200 P.2d 221, 225–26 (Nev.
1948) (Nevada legislation cannot “contravene some expressed or necessarily
implied limitation appearing in the [Nevada] constitution itself,” and it is “not
essential that any given limitation of power be definitely expressed in the
constitution. Every positive direction contains an implication against anything
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contrary to it, or which would frustrate or disappoint the purpose of that
[constitutional] provision.”) (internal quotations omitted).
CONCLUSION
The Coalition respectfully urges this Court to hold Nevada’s Marriage Laws
constitutional and affirm the district court’s judgment.
Dated: January 21, 2014 Respectfully submitted,

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
STEWART TAYLOR & MORRIS PLLC
12550 W. Explorer Drive, Suite 100
Boise, ID 83713
Tel: (208) 345-3333

By: s/ Monte Neil Stewart
Monte Neil Stewart

Lawyers for Appellee Coalition for the
Protection of Marriage
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STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, Defendant-Appellee Coalition for the
Protection of Marriage is aware of no related cases pending in the United States
Court of Appeals for the Ninth Circuit, other than the case identified as related in
the Plaintiffs-Appellants’ Opening Brief.

Dated: January 21, 2014 By: s/ Monte Neil Stewart
Monte Neil Stewart

Lawyers for Appellee Coalition for the
Protection of Marriage
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A-i
ADDENDUM OF PERTINENT AUTHORITIES
TABLE OF CONTENTS
Page(s)
Constitutional Provisions
U.S. Const. amend XIV, § 1 ................................................................................. A-1
Nev. Const. art. XIX, § 2(1) .................................................................................. A-1
Nev. Const. art. XIX, §2(4) ................................................................................... A-1
Nev. Const. art. I, §21 ........................................................................................... A-1
Nevada Revised Statutes
Nev. Rev. Stat. § 122.020 ..................................................................................... A-2
Nev. Rev. Stat. § 122A.040 .................................................................................. A-3
Nev. Rev. Stat. § 122A.100 .................................................................................. A-3
Nev. Rev. Stat. § 122A.200 .................................................................................. A-4
Nev. Rev. Stat. § 122A.510 .................................................................................. A-6
Nevada Statutes
Nev. Stat. § 88 (1876) ........................................................................................... A-6
Laws of the Territory of Nevada
Part 2:33: 1861 ...................................................................................................... A-6
Charts
Ballot Measures .................................................................................................... A-8
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A-ii

Statutory and State Constitutional Provisions .................................................... A-12
Court Decisions on the Marriage Issue Since 1993 ............................................ A-16
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A-1

U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.




Nev. Const. art. I, §21

Only a marriage between a male and female person shall be recognized and
given effect in this state.




Nev. Const. art. XIX, § 2(1)

Notwithstanding the provisions of Section 1 of Article 4 of this Constitution,
but subject to the limitations of Section 6 of this Article, the people reserve to
themselves the power to propose, by initiative petitions, statutes and amendments
to statutes and amendments to this Constitution, and to enact or reject them at the
polls.




Nev. Const. art. XIX, §2(4)

If the initiative petition proposes an amendment to the Constitution, the
person who intends to circulate it shall file a copy with the Secretary of State
before beginning circulation and not earlier than September 1 of the year before the
year in which the election is to be held. After its circulation it shall be filed with
the Secretary of State not less than 90 days before any regular general election at
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which the question of approval or disapproval of such amendment may be voted
upon by the voters of the entire State. The circulation of the petition shall cease on
the day the petition is filed with the Secretary of State or such other date as may be
prescribed for the verification of the number of signatures affixed to the petition,
whichever is earliest. The Secretary of State shall cause to be published in a
newspaper of general circulation, on three separate occasions, in each county in the
State, together with any explanatory matter which shall be placed upon the ballot,
the entire text of the proposed amendment. If a majority of the voters voting on
such question at such election votes disapproval of such amendment, no further
action shall be taken on the petition. If a majority of such voters votes approval of
such amendment, the Secretary of State shall publish and resubmit the question of
approval or disapproval to a vote of the voters at the next succeeding general
election in the same manner as such question was originally submitted. If a
majority of such voters votes disapproval of such amendment, no further action
shall be taken on such petition. If a majority of such voters votes approval of such
amendment, it shall, unless precluded by subsection 5 or 6, become a part of this
Constitution upon completion of the canvass of votes by the Supreme Court.




Nev. Rev. Stat. § 122.020

122.020 Persons capable of marriage; consent of parent or guardian.

1. Except as otherwise provided in this section, a male and a female
person, at least 18 years of age, not nearer of kin than second cousins or cousins of
the half blood, and not having a husband or wife living, may be joined in marriage.

2. A male and a female person who are the husband and wife of each other
may be rejoined in marriage if the record of their marriage has been lost or
destroyed or is otherwise unobtainable.

3. A person at least 16 years of age but less than 18 years of age may marry
only if the person has the consent of:

(a) Either parent; or

(b) Such person’s legal guardian.

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Nev. Rev. Stat. § 122A.040

122A.040 “Domestic partnership” defined.

“Domestic partnership” means the social contract between two persons that
is described in NRS 122A.100.




Nev. Rev. Stat. § 122A.100

122A.100 Registration: Procedure; fees; eligibility; issuance of certificate.

1. A valid domestic partnership is registered in the State of Nevada when
two persons who satisfy the requirements of subsection 2:

(a) File with the Office of the Secretary of State, on a form prescribed by
the Secretary of State, a signed and notarized statement declaring that both
persons:

(1) Have chosen to share one another’s lives in an intimate and committed
relationship of mutual caring; and

(2) Desire of their own free will to enter into a domestic partnership; and

(b) Pay to the Office of the Secretary of State a reasonable filing fee
established by the Secretary of State, which filing fee must not exceed the total of
an amount set by the Secretary of State to estimate:

(1) The cost incurred by the Secretary of State to issue the Certificate
described in subsection 3; and

(2) Any other associated administrative costs incurred by the Secretary of
State.



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Nev. Rev. Stat. § 122A.200

122A.200 Rights and duties of domestic partners, former domestic partners and
surviving domestic partners.

1. Except as otherwise provided in NRS 122A.210:

(a) Domestic partners have the same rights, protections and benefits, and
are subject to the same responsibilities, obligations and duties under law, whether
derived from statutes, administrative regulations, court rules, government policies,
common law or any other provisions or sources of law, as are granted to and
imposed upon spouses.

(b) Former domestic partners have the same rights, protections and
benefits, and are subject to the same responsibilities, obligations and duties under
law, whether derived from statutes, administrative regulations, court rules,
government policies, common law or any other provisions or sources of law, as are
granted to and imposed upon former spouses.

(c) A surviving domestic partner, following the death of the other
partner, has the same rights, protections and benefits, and is subject to the same
responsibilities, obligations and duties under law, whether derived from statutes,
administrative regulations, court rules, government policies, common law or any
other provisions or sources of law, as are granted to and imposed upon a widow or
a widower.

(d) The rights and obligations of domestic partners with respect to a
child of either of them are the same as those of spouses. The rights and obligations
of former or surviving domestic partners with respect to a child of either of them
are the same as those of former or surviving spouses.

(e) To the extent that provisions of Nevada law adopt, refer to or rely
upon provisions of federal law in a way that otherwise would cause domestic
partners to be treated differently from spouses, domestic partners must be treated
by Nevada law as if federal law recognized a domestic partnership in the same
manner as Nevada law.

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(f) Domestic partners have the same right to nondiscriminatory
treatment as that provided to spouses.

(g) A public agency in this State shall not discriminate against any
person or couple on the basis or ground that the person is a domestic partner rather
than a spouse or that the couple are domestic partners rather than spouses.

(h) The provisions of this chapter do not preclude a public agency from
exercising its regulatory authority to carry out laws providing rights to, or
imposing responsibilities upon, domestic partners.

(i) Where necessary to protect the rights of domestic partners pursuant
to this chapter, gender-specific terms referring to spouses must be construed to
include domestic partners.

(j) For the purposes of the statutes, administrative regulations, court
rules, government policies, common law and any other provision or source of law
governing the rights, protections and benefits, and the responsibilities, obligations
and duties of domestic partners in this State, as effectuated by the provisions of this
chapter, with respect to:

(1) Community property;

(2) Mutual responsibility for debts to third parties;

(3) The right in particular circumstances of either partner to seek
financial support from the other following the dissolution of the partnership;
and

(4) Other rights and duties as between the partners concerning
ownership of property,

any reference to the date of a marriage shall be deemed to refer to the date of
registration of the domestic partnership.

2. As used in this section, “public agency” means an agency, bureau,
board, commission, department or division of the State of Nevada or a political
subdivision of the State of Nevada.


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Nev. Rev. Stat. § 122A.510

122A.510 Domestic partnership not marriage for purposes of certain provisions
of Nevada Constitution.

A domestic partnership is not a marriage for the purposes of Section 21 of
Article 1 of the Nevada Constitution.




Nev. Stat. § 88 (1876)
Section 1. Section two of this Act is hereby amended, so as to read as follows:
Section Two. Male persons of the age of eighteen years, and female persons of the
age of sixteen year, not nearer of kin than second cousins, and not having a
husband or wife living, may be joined in marriage; provided always, that male
persons under the age of twenty-one years, and female persons under the age of
eighteen years, shall first obtain the consent of their fathers, respectively, or in case
of the death or incapacity of their fathers, then of their mothers or guardians; and,
provided further, that nothing in this Act shall be construed so as to make the issue
of any marriage illegitimate if the person or persons shall not be of lawful age.
. . . .




Laws of the Territory of Nevada, Part 2:33: 1861

Section 1. That marriage, so far as its validity in law is concerned, is a civil
contract, to which the consent of the parties capable in law of contracting, is
essential.

Section 2. Every male person, who shall have attained the full age of eighteen
years, and every female, who shall have attained the full age of sixteen years, shall
be capable, in law, of contracting marriage, if otherwise competent; provided,
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A-7
however, that nothing in this act shall be construed so as to make the issue of any
marriage illegitimate, if the person shall not be of lawful age; and provided,
further, that all minor who shall have attained the age provided in this act for the
contracting of marriage, shall be deemed in law to have attained their majority
upon entering into the bonds of matrimony.

Section 3. No marriage shall be contracted while either the parties shall have a
husband or wife living, nor between parties who are nearer of kin than second
cousins, computing by the rules of civil law, whether the half or the whole blood.
. . . .


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The Definition of Marriage:
Ballot Measures

Alabama: 2006; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 81%/19%

Alaska: 1998; to amend constitution to enshrine man-woman marriage; legislature
initiated; passed 68%/31%

Arizona: 2006; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; voter initiated; failed 48%/52%

Arizona: 2008; to amend constitution to enshrine man-woman marriage;
legislature initiated; passed 56%/44%

Arkansas: 2004; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; voter initiated; passed 75%/25%

California: 2000; to enact super-legislation to enshrine man-woman marriage;
voter initiated; passed 61%/39%

California: 2008; to amend constitution to restore man-woman marriage; voter
initiated; passed 52%/48%

Colorado: 2006; to amend constitution to enshrine man-woman marriage; voter
initiated; passed 55%/45%

Florida: 2008; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 62%/38%

Georgia: 2004; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 76%/24%

*Hawaii: 1998; to amend constitution to give legislature sole power to define
marriage; legislature initiated; passed 69%/31%
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A-9

Idaho: 2006; to amend constitution to enshrine man-woman marriage and prohibit
civil unions; legislature initiated; passed 63%/37%

Kansas: 2005; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 70%/30%

Kentucky: 2004; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 75%/25%

Louisiana: 2004; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 78%/22%

Maine: 2009; to preserve man-woman marriage; voter initiated following
legislature vote to approve genderless marriage; passed 53%/47%

Maine: 2012; to approve genderless marriage via referendum; voter initiated;
passed 53%/47%

Maryland: 2012; to approve genderless marriage legislation; voter initiated
following legislature vote to approve genderless marriage; passed 52%/48%

Michigan: 2004; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; voter initiated; passed 59%/41%

*Minnesota: 2012; to amend constitution to enshrine man-woman marriage;
legislature initiated; failed 47%/53%

Mississippi: 2004; to amend constitution to enshrine man-woman marriage;
legislature initiated; passed 86%/14%

Missouri: 2004; to amend constitution to enshrine man-woman marriage;
legislature initiated; passed 71%/29%

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Montana: 2004; to amend constitution to enshrine man-woman marriage; voter
initiated; passed 67%/33%

Nebraska: 2000; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; voter initiated; passed 70%/30%

Nevada: 2000; to amend constitution to enshrine man-woman marriage; voter
initiated; passed 70%/30%

Nevada: 2002; to amend constitution to enshrine man-woman marriage; voter
initiated; passed 67%/33%

North Carolina: 2012; to amend constitution to enshrine man-woman marriage;
legislature initiated; passed 61%/39%

North Dakota: 2004; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; voter initiated; passed 73%/27%

Ohio: 2004; to amend constitution to enshrine man-woman marriage and prohibit
civil unions; voter initiated; passed 62%/38%

Oklahoma: 2004; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 76%/24%

Oregon: 2004; to amend constitution to enshrine man-woman marriage; voter
initiated; passed 57%/43%

South Carolina: 2006; to amend constitution to enshrine man-woman marriage
and prohibit civil unions; legislature initiated; passed 78%/22%

South Dakota: 2006; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 52%/48%

Tennessee: 2006; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 81%/19%
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Texas: 2005; to amend constitution to enshrine man-woman marriage and prohibit
civil unions; legislature initiated; passed 76%/24%

Utah: 2004; to amend constitution to enshrine man-woman marriage and prohibit
civil unions; legislature initiated; passed 66%/34%

Virginia: 2006; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 57%/43%

Washington: 2012; to approve genderless marriage legislation; voter initiated
following legislature vote to approve genderless marriage; passed 54%/46%

Wisconsin: 2006; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 59%/41%

*Note: In Hawaii and Minnesota, a blank vote counts in essence as a “no” vote.
For purposes of this appendix, in those two states, blank votes were counted as if
they were “no” votes.

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The Definition of Marriage:
Statutory and State Constitutional Provisions

Alabama: Ala. Const. amend. 774 (man-woman)

Alaska: Alaska Const. art. I, § 25 (man-woman)

Arizona: Ariz. Const. art. XXX (man-woman)

Arkansas: Ark. Const. amend. LXXXII, §1 (man-woman)

California: Cal. Const. art. I, § 7.5 (man-woman) struck down as unconstitutional
by Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (purportedly
binding as appeals were vacated or did not address merits) (genderless);

Colorado: Colo. Const. art. II, § 31 (man-woman)

Connecticut: Conn. Gen. Stat. § 46b-20 (genderless)

Delaware: Del. Code tit. 13, § 101 (genderless)

District of Columbia: D.C. Code § 46-401 (genderless)

Florida: Fla. Const. art. I, § 27 (man-woman)

Georgia: Ga. Const. art. I, § 4 ¶ 1 (man-woman)

Hawaii: Haw. Rev. Stat. § 572-1et seq. (man-woman)

Idaho: Idaho Const. art. III, § 28 (man-woman)

Illinois: 750 Ill. Comp. Stat. 5/213.1 (man-woman; genderless marriage scheduled
to begin June 1, 2014, for most couples; see also Lee v. Orr, No. 1:13-cv-08719
(N.D. Ill. Dec. 16, 2013) (genderless marriage required immediately for terminally
ill couples)).
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Indiana: Ind. Code Ann. § 31-11-1-1 (man-woman)

Iowa: Man-woman definition struck down by Varnum v. Brien, 763 N.W.2d 862
(Iowa 2009) (genderless)

Kansas: Kan. Const. art. XV, § 16 (man-woman)

Kentucky: Ky. Const. § 233A (man-woman)

Louisiana: La. Const. art. XII, § 15 (man-woman)

Maine: Me. Rev. Stat. tit. 19-A, § 650, 701 (genderless)

Maryland: Md. Code, Fam. Law § 2-201 (genderless)

Massachusetts: Man-woman definition struck down by Goodridge v. Dep’t of
Pub. Health, 798 N.E.2d 941 (Mass. 2003) (genderless)

Michigan: Mich. Const. art. I, § 25 (man-woman)

Minnesota: Minn. Stat. §§ 517.01 to .03 (genderless)

Mississippi: Miss. Const. art. XIV, § 263A (man-woman)

Missouri: Mo. Const. art. I, § 33 (man-woman)

Montana: Mont. Const. art. XIII, § 7 (man-woman)

Nebraska: Neb. Const. art. I, § 29 (man-woman)

Nevada: Nev. Const. art. I, § 21 (man-woman)

New Hampshire: N.H. Rev. Stat. § 457:1-a (genderless)

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New Jersey: Man-woman definition struck down by Garden State Equality v.
Dow, 2013 WL 5687193 (N.J. Super. Ct. Law Div. Sept. 27, 2013)

New Mexico: Griego v. Oliver, ___ P.3d ___, 2013 WL 6670704 (N.M. Dec. 19,
2013) (construing New Mexico marriage laws, N.M. Stat. §§ 40-1-1 et seq., to
mean the voluntary union of two persons to the exclusion of all others)
(genderless)

New York: N.Y. Dom. Rel. Law § 10-a (genderless)

North Carolina: N.C. Const. art. XIV, § 6 (man-woman)

North Dakota: N.D. Const. art. XI, § 28 (man-woman)

Ohio: Ohio Const. art. XV, § 11 (man-woman)

Oklahoma: Okla. Const. art. II, § 35 (man-woman), declared unconstitutional by
Bishop v. United States ex rel. Holder, ___ F. Supp. 2d ___, 2014 WL 116013 (D.
Okla. Jan. 14, 2014)

Oregon: Or. Const. art. XV, § 5a (man-woman)

Pennsylvania: 23 Pa. Cons. Stat. § 1704 (man-woman)

Rhode Island: R.I. Gen. Laws § 15-1-1 et seq. (genderless)

South Carolina: S.C. Const. art. XVII, § 15 (man-woman)

South Dakota: S.D. Const. art. XXI, § 9 (man-woman)

Tennessee: Tenn. Const. art. XI, § 18 (man-woman)

Texas: Tex. Const. art. I, § 32 (man-woman)

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Utah: Utah Const. art. I, § 29 (man-woman), declared unconstitutional by Kitchen
v. Herbert, ___ F. Supp. 2d ___, 2013 WL 6697874 (D. Utah Dec. 20. 2013),
appeal docketed, No. 13-4178 (10th Cir. Dec. 20, 2013).

Vermont: Vt. Stat. tit. 15, § 8 (genderless)

Virginia: Va. Const. art. I, § 15-A (man-woman)

Washington: Wash. Rev. Code § 26.04.020 et. seq. (genderless)

West Virginia: W. Va. Code § 48-2-104(c) (man-woman)

Wisconsin: Wis. Const. art. XIII, § 13 (man-woman)

Wyoming: Wyo. Stat. § 20-1-101 (man-woman)

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Court Decisions on the
Marriage Issue Since 1993

State Appellate Court Decisions:

 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)
 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)
 Baker v. Vermont, 744 A.2d 864 (Vt. 1999)
 Standhardt v. Super. Ct., 77 P.3d 451 (Ariz. Ct. App. 2003)
 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003)
 In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004)
 Li v. Oregon, 110 P.3d 91 (Or. 2005)
 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005)
 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)
 Andersen v. King County, 138 P.3d 963 (Wash. 2006)
 Lewis v. Harris, 908 A.2d 196 (N.J. 2006)
 Conaway v. Deane, 932 A.2d 571 (Md. 2007)
 In re Marriage Cases, 183 P.3d 384 (Cal. 2008)
 Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008)
 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
 Garden State Equality v. Dow, 2013 WL 5687193 (N.J. Super. Ct. Law Div.
Sept. 27, 2013)
 Griego v. Oliver, ___ P.3d ___, 2013 WL 6670704 (N.M. Dec. 19, 2013)

Federal Court Decisions:

 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004)
 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)
 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006)
 Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010)
 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011)
 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)
 Golinski v. Office of Personnel Mgmt., 824 F.Supp.2d 968 (N.D. Cal. 2012)
 Massachusetts v. Health & Human Servs., 862 F.3d 1 (1st Cir. 2012)
 Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012)
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 Pedersen v. Office of Personnel Mgmt., 881 F. Supp. 2d 394 (D. Conn.
2012)
 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012)
 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)
 United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013)
 Kitchen v. Herbert, ___ F. Supp. 2d ___, 2013 WL 6697874 (D. Utah Dec.
20, 2013)
 Bishop v. United States ex rel. Holder, ___ F. Supp. 2d ___, 2014 WL
116013 (D. Okla. Jan. 14, 2014)

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on January 21, 2014.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

s/ Monte Neil Stewart
Monte Neil Stewart


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Case No. 12-17668

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BEVERLY SEVCIK, et al.
Plaintiffs-Appellants,
v.
BRIAN SANDOVAL, et al.,
Defendants-Appellees,
and
COALITION FOR THE PROTECTION OF MARRIAGE,
Intervenor-Defendant-Appellee.

On Appeal from the United States District Court
For the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL
The Honorable Robert C. Jones, District Judge

DEFENDANT-APPELLEE’S
SUPPLEMENTAL EXCERPTS OF RECORDS
VOLUME 1 OF 5

Monte N. Stewart
STEWART TAYLOR & MORRIS PLLC
12550 W. Explorer Drive, Suite 100
Boise, ID 83713
Tel: (208) 345-3333
Lawyers for Appellee Coalition for the Protection of Marriage
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INDEX TO SUPPLEMENTAL EXCERPTS OF RECORD


VOLUME 1 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Institute for American Values, Why Marriage
Matters: Twenty-Six Conclusions from the
Social Sciences, (3d ed. 2011)
73 1


9/10/2012 The Witherspoon Institute, Marriage and the
Public Good: Ten Principles (2008)
73 49
9/10/2012 Institute for American Values, Marriage and
the Law: A Statement of Principles (2006)
73 87
9/10/2012 Institute for American Values (Dan Cere,
principal investigator), The Future of Family
Law: Law and the Marriage Crisis in North
America (2005)
73 131
9/10/2012 Institute for American Values (Elizabeth
Marquardt, principal investigator), The
Revolution in Parenthood: The Emerging
Global Clash Between Adult Rights and
Children’s Needs (2006)
73 182


VOLUME 2 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Commission on Parenthood’s Future
(Elizabeth Marquardt, principal investigator),
One Parent or Five: A Global Look at
Today’s New Intentional Families (2011)
73 226
9/10/2012 Institute for American Values (Elizabeth
Marquardt, Noval D. Glenn, & Karen Clark,
co-investigators), My Daddy’s Name is
Donor: A New Study of Young Adults
Conceived Through Sperm Donation (2010)
73 298


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VOLUME 2 OF 5 (continued)

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Margaret Somerville, What About the
Children, in Divorcing Marriage: Unveiling
the Dangers in Canada’s New Social
Experiment 76-78 (Daniel Cere and Douglas
Farrow eds., 2004)
73 438


VOLUME 3 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Margaret Somerville, Children’s human rights
and unlinking child-parent biological bonds
with adoption, same-sex marriage and new
reproductive technologies, 13 J. of Fam. Stud.
179-201 (2007)
73 456
9/10/2012 Maggie Gallagher, (How) Does Marriage
Protect Child Well-Being?, in The Meaning of
Marriage: Family, State, Market, and Morals
29-52 (Robert P. George & Jean Bethke
Elshtain eds., 2006)
73 479
9/10/2012 Seana Sugrue, Soft Despotism and Same-Sex
Marriage, in The Meaning of Marriage:
Family, State, Market, and Morals 172-96
(Robert P. George & Jean Bethke Elshtain
eds., 2006)
73 497


VOLUME 4 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Claude Lévi-Strauss, The View from Afar 39-
42 (Joachim Neugroschel & Phoebe Hoss
trans., 1985)
73 524
9/10/2012 G. Robina Quale, A History of Marriage
Systems 1-3 (1988)
73 530
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VOLUME 4 OF 5 (continued)

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 James Q. Wilson, The Marriage Problem 40-
41, 168-70 (2002)
73 535
9/10/2012 Kate Stanley, The Institute for Public Policy
Research, Daddy Dearest? Active Fatherhood
and Public Policy 57 (Kate Stanley ed., 2005)
73 543
9/10/2012 David Popenoe, Life without father:
Compelling new evidence that fatherhood and
marriage are indispensable for the good of
children and society
139-63 (1996)
73 546
9/10/2012 William J. Doherty et al., Responsible
Fathering: An Overview and Conceptual
Framework, 60 J. of Marriage and Fam. 277-
292 (1998)
73 561
9/10/2012 Kristin Anderson Moore et al., Marriage from
a Child’s Perspective: How Does Family
Structure Affect Children, and What Can We
Do About It?, a Child Trends Research Brief
(2002)
73 577
9/10/2012 Lawrence B. Finer & Mia R. Zolna,
Unintended pregnancy in the United States:
incidence and disparities, 2006, 84
Contraception 478-485 (2011)
73 585


VOLUME 5 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Samuel W. Sturgeon, The Relationship
Between Family Structure and Adolescent
Sexual Activity, a familyfacts.org Special
Report (November 2008)
80 593




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VOLUME 5 OF 5 (continued)

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Paul R. Amato, The Impact of Family
Formation Change on the Cognitive, Social,
and Emotional Well-Being of the Next
Generation, 15 The Future of Children 75-96
(2005)
80 595
9/10/2012 Mark Regnerus, How different are the adult
children of parents who have same-sex
relationships? Findings from the New Family
Structures Study, 41 Soc. Sci. Research 752-
770 (2012)
80 618
9/10/2012 Loren Marks, Same-sex parenting and
children’s outcomes: A closer examination of
the American Psychological
Association’s brief on lesbian and gay
parenting, 41 Soc. Sci. Research 735-751
(2012)
80 637
9/10/2012 Brief of Amicus Curiae, American College of
Pediatricians, in Windsor v. The Bipartisan
Legal Advisory Group of the United States
House of Representatives, No. 12-2335 (2d
Cir. Aug. 17, 2012)
80 654
9/10/2012 Douglas Farrow, Why Fight Same-Sex
Marriage?, Touchstone, Jan-Feb 2012
81 683
9/10/2012 Katherine Acey et al., Beyond Same-Sex
Marriage: A new strategic vision for all our
families & relationships (July 26, 2006)
82 690
10/25/2012 Margaret Somerville, Children’s Human
Rights to Natural Biological Origins and
Family Structure, 1 Int’l J. Jurisprudence Fam.
25 (2010)
95-1 717
10/25/2012 D. Richardson, Sexuality and Gender, in
International Encyclopedia of the Social &
Behavioral Sciences 14018-21 (2001)
95-1 739

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Why Marriage Matters, Third Edition
Thirty Conclusions from the Social Sciences
Institute for American Values
National Marriage Project
A Report from Family Scholars
SER 1
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T
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/
Getty Images.
© 2011, Institute for American Values.
No reproduction of the materials con-
tained herein is permitted without the
written permission of the Institute for
American Values.
First edition published 2002. Second edi-
tion 2005. Third edition published 2011.
ISBN #978-1-931764-24-7
Institute for American Values
1841 Broadway, Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
Website: www.americanvalues.org
Email: info@americanvalues.org
SER 2
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Table of Contents
The Authors.............................................................................................
Introduction.............................................................................................
Five New Themes.............................................................................
A Word about Selection Effects........................................................
Our Fundamental Conclusions........................................................
The Thirty Conclusions: A Snapshot......................................................
The Thirty Conclusions...........................................................................
Family................................................................................................
Economics.........................................................................................
Physical Health and Longevity.........................................................
Mental Health and Emotional Well-Being........................................
Crime and Domestic Violence..........................................................
Conclusion...............................................................................................
Appendix: Figures...................................................................................
Endnotes..................................................................................................
4
6
7
9
11
12
14
14
23
28
33
37
42
44
47
SER 3
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Page 4
The Authors
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
Berkeley.
JOHN GOTTMAN is professor emeritus of psychology at the University of
Washington.
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.
SER 4
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Page 5
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
State University.
ROB PALKOVITZ is professor of human development and family studies
at the University of Delaware.
DAVID POPENOE is professor emeritus of sociology at Rutgers
University.
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
of Chicago.
JUDITH WALLERSTEIN is senior lecturer emerita at the School of Social
Welfare at the University of California at Berkeley.
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I
N THE LATTER HALF OF THE TWENTIETH CENTURY, divorce posed the
biggest threat to marriage in the United States. Clinical, academic,
and popular accounts addressing recent family change—from Judith
Wallerstein’s landmark book, The Unexpected Legacy of Divorce, to Sara
McLanahan and Gary Sandefur’s award-winning book, Growing Up with
a Single Parent, to Barbara Dafoe Whitehead’s attention-getting Atlantic
article, “Dan Quayle Was Right”—focused largely on the impact that
divorce had upon children, and rightly so. In the wake of the divorce
revolution of the 1970s, divorce was the event most likely to undercut
the quality and stability of children’s family lives in the second half of
the twentieth century.
No more. In fact, as divorce rates have come down since peaking in the
early 1980s, children who are now born to married couples are actually
more likely to grow up with both of their parents than were children
born at the height of the divorce revolution (see figure 1). In fact, the
divorce rate for married couples with children has fallen almost to pre-
divorce revolution levels, with 23 percent of couples who married in the
early 1960s divorcing before their first child turned ten, compared to
slightly more than 23 percent for couples who married in the mid 1990s.
Today, the rise of cohabiting households with children is the largest
unrecognized threat to the quality and stability of children’s family lives.
In fact, because of the growing prevalence of cohabitation, which has
risen fourteen-fold since 1970, today’s children are much more likely to
spend time in a cohabiting household than they are to see their parents
divorce (see figure 2).
1
Now, approximately 24 percent of the nation’s children are born to
cohabiting couples, which means that more children are currently born
to cohabiting couples than to single mothers.
2
Another 20 percent or so
of children spend time in a cohabiting household with an unrelated
adult at some point later in their childhood, often after their parents’
marriage breaks down.
3
This means that more than four in ten children
are exposed to a cohabiting relationship. Thus, one reason that the insti-
tution of marriage has less of a hold over Americans than it has had for
Why Marriage Matters, Third Edition
Thirty Conclusions from the Social Sciences
Introduction
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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.
1.
2.
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American family life is becoming increasingly unstable for
children (see figure 4).
4
Sociologist Andrew Cherlin has observed
that Americans are stepping “on and off the carousel of intimate rela-
tionships” with increasing rapidity.
5
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
3.
4.
5.
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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.”
6
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
cautious.
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.
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Departures from the norm of intact marriage do not necessarily harm
most of those who are exposed to them.
7
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.
8
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.
9
Marriages that are unhappy do not
have the same benefits as the average marriage.
10
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.
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The intact, biological, married family remains the gold stan-
dard for family life in the United States, insofar as children are
most likely to thrive—economically, socially, and psychologically—
in this family form.
Marriage is an important public good, associated with a range of
economic, health, educational, and safety benefits that help local,
state, and federal governments serve the common good.
The benefits of marriage extend to poor, working-class, and
minority communities, despite the fact that marriage has weakened
in these communities in the last four decades.
F
AMILY STRUCTURE AND PROCESSES are only one factor contributing to
child and social well-being. Our discussion here is not meant to
minimize the importance of other factors, such as poverty, child
support, unemployment, teenage childbearing, neighborhood safety, or
the quality of education for both parents and children. Marriage is not
a panacea for all social ills. For instance, when it comes to child well-
being, research suggests that family structure is a better predictor of
children’s psychological and social welfare, whereas poverty is a better
predictor of educational attainment.
11
But whether we succeed or fail in building a healthy marriage culture
is clearly a matter of legitimate public concern and an issue of para-
mount importance if we wish to reverse the marginalization of the most
vulnerable members of our society: the working class, the poor, minori-
ties, and children.
1.
2.
3.
Our Fundamental Conclusions
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The Thirty Conclusions: A Snapshot
Marriage increases the likelihood that fathers and mothers have
good relationships with their children.
Children are most likely to enjoy family stability when they are
born into a married family.
Children are less likely to thrive in complex households.
Cohabitation is not the functional equivalent of marriage.
Growing up outside an intact marriage increases the likelihood
that children will themselves divorce or become unwed parents.
Marriage is a virtually universal human institution.
Marriage, and a normative commitment to marriage, foster high-
quality relationships between adults, as well as between parents
and children.
Marriage has important biosocial consequences for adults and
children.
Family
Divorce and unmarried childbearing increase poverty for both
children and mothers, and cohabitation is less likely to alleviate
poverty than is marriage.
Married couples seem to build more wealth on average than
singles or cohabiting couples.
Marriage reduces poverty and material hardship for disadvan-
taged women and their children.
Minorities benefit economically from marriage also.
Married men earn more money than do single men with similar
education and job histories.
Parental divorce (or failure to marry) appears to increase children’s
risk of school failure.
Parental divorce reduces the likelihood that children will graduate
from college and achieve high-status jobs.
Economics
9.
10.
11.
12.
13.
14.
15.
1.
2.
3.
4.
5.
6.
7.
8.
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Children who live with their own two married parents enjoy
better physical health, on average, than do children in other
family forms.
Parental marriage is associated with a sharply lower risk of
infant mortality.
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
suicide.
Married mothers have lower rates of depression than do single
or cohabiting mothers.
Mental Health and Emotional Well-Being
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
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
26.
27.
28.
29.
30.
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Family
Marriage increases the likelihood that fathers and
mothers have good relationships with their children.
Mothers as well as fathers are affected by the absence of marriage. Single
mothers on average report more conflict with and less monitoring of their
children than do married mothers.
12
As adults, children from intact mar-
riages report being closer to their mothers on average than do children of
divorce.
13
In one nationally representative study, 30 percent of young adults
whose parents divorced reported poor relationships with their mothers,
compared to 16 percent of children whose parents stayed married.
14
But children’s relationships with their father depend even more on mar-
riage than do children’s relationships with their mother. Sixty-five per-
cent of young adults whose parents divorced had poor relationships
with their fathers (compared to 29 percent from non-divorced fami-
lies).
15
On average, children whose parents divorce or never marry see
their fathers less frequently
16
and have less affectionate relationships
with their fathers
17
than do children whose parents got and stayed mar-
ried. Studies of children of divorce suggest that losing contact with their
father in the wake of a divorce is one of the most painful consequences
of divorce.
18
Divorce appears to have an even greater negative effect on
relationships between fathers and their children than remaining in an
unhappy marriage.
19
These detrimental relationship effects may be long-
term; unpartnered disabled elderly individuals who divorced receive
less in the way of social support and practical assistance from their chil-
dren than those who were widowed. Those who remarried were less
likely to receive cash transfers from their children.
20
Some evidence suggests even cohabiting, biological fathers who live
with their children are not as involved and affectionate with their chil-
dren as are married, biological fathers who reside with their children,
21
although others have found no difference between these types of
fathers or even a positive effect of cohabitation.
22
Even so, the effect of
marriage on higher-quality parenting practices is even stronger for
social fathers (i.e., stepfathers) than for biological fathers.
23
And fathers
who are married to the mother of their children prior to birth are much
more likely to maintain a long-term relationship with their children than
fathers who are not married at birth.
24
The Thirty Conclusions
1.
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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.
25
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.
26
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.
27
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.
28
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
father).
29
Indeed, a number of studies suggest that cohabitation in a range of
cultural and national contexts is less stable than marriage.
30
Latino
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.
31
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).
32
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
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parents separate by age fifteen, compared to children born to married
couples.
33
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
declined.
34
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.
35
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.
36
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.
37
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.
3.
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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,
married families.
38
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.
39
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.
40
Adults who live together are more similar to singles than to married
couples in terms of physical health
41
and emotional well-being and
mental health,
42
as well as in assets and earnings.
43
Children with cohabiting parents have outcomes more similar to
the children living with single (or remarried) parents than chil-
dren from intact marriages.
44
In other words, children living in
cohabiting unions do not fare as well as children living in intact,
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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.
45
Another
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.
46
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.
47
Couples who
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.
48
This lower relationship quality among cohabitors explains their
higher levels of depression compared to married individuals.
49
Even
biological parents who cohabit have poorer quality relationships
and are more likely to part than parents who marry.
50
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.
51
Partly as a conse-
quence, cohabiting couples are less likely than married couples
to pool their income.
52
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.
53
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.
54
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.
55
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Growing up outside an intact marriage increases the likeli-
hood that children will themselves divorce or become
unwed parents.
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.
56
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.
57
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.
58
Divorce is apparently most likely to be transmitted across the genera-
tions when parents in relatively low-conflict marriages divorced.
59
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.
60
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.
61
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.
62
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.
63
Marriage is a virtually universal human institution.
Marriage exists in virtually every known human society.
64
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
6.
5.
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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
family relationships.
65
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.
66
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.
67
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.
68
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
evident.
69
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
another.
70
In turn, as we have seen, married parents generally have
better relationships with their children than do cohabiting,
divorced, unmarried, or remarried parents.
71
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-
child relationships.
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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.
72
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.
73
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-
riage norms.
74
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.
75
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.
76
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.
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.
77
For this outcome, however, cohabiting
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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.
78
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.
79
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).
80
The other has found no effect
of becoming partnered (defined as a long-term monogamous relation-
ship) on men’s testosterone level.
81
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.
82
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.”
83
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.
84
So this line of research
strongly suggests that an intact, married household protects girls from
premature sexual development and, consequently, teen pregnancy. One
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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.
85
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.
Economics
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
86
and unmarried
childbearing
87
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.
88
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-
bearing.
89
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-
old).
90
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.
91
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.
92
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.
93
Single mothers’ income gains have
been only marginal across the same time period.
94
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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.
95
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.
96
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.
97
Interestingly, the
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
decline.
98
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.
99
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.
100
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
10.
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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
risk.
101
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
pantries, etc.).
102
There are two caveats to this work. First, marriage does
not produce as many benefits for women who have a premarital birth.
103
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.
104
So
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
1970 levels.
105
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
divorce.
106
Another study of older women indicates that married African
American women enjoy significantly more income than their widowed,
divorced, and never married peers.
107
Both black and Hispanic older
women experience declines in household income and assets following
marital disruption, be it divorce or widowhood.
108
Black men who marry
also see a significant increase in their income, about $4000 according to
one estimate.
109
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
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women.
110
Finally, African Americans and Latinos who are married also
enjoy significantly higher levels of household equity, compared to their
peers who are not married.
111
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.
112
While
selection effects may account for part of the marriage premium (insofar
as men with more stable and better-paying jobs are more likely to
marry),
113
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.
114
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.
115
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.
116
Husbands also benefit from
both the work effort and emotional support that they receive from
wives.
117
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.
118
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.
119
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
13.
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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.
120
Another
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.
121
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.
122
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-
family.
123
Indeed, family transitions in general have been linked to poor-
er academic achievement,
124
and both family structure and transitions
appear to matter for educational outcomes.
125
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.
126
Children whose parents remarry do no better, on average, than do chil-
dren who live with single mothers.
127
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-
site conclusion.
128
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.
129
They are less likely to attend and graduate from college and also less
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likely to attend and graduate from four-year and highly selective col-
leges, even after controlling for family background and academic and
extracurricular achievements.
130
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.
131
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.
132
Longitudinal
research suggests that parental divorce and cohabitation increase the
incidence of health problems in children.
133
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.
134
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
families.
135
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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.
136
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
homes.”
137
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.
138
While
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.
139
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.
140
While unmarried mothers are also less
likely to get early prenatal care,
141
infant mortality rates in these
instances are higher not only in the neonatal period, but through infancy
142
and even early childhood.
143
Children born to unmarried mothers have
an increased incidence of both intentional and unintentional fatal
injuries.
144
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.
145
Marital status remains a powerful predictor of
infant mortality, even in countries with nationalized health care systems
and strong supports for single mothers.
146
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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.
147
Children
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.
148
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
or alcohol.
149
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.
150
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
fathers.
151
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.
152
Husbands as well as wives live longer on average,
even after controlling for race, income, and family background.
153
In
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
married women.
154
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.
155
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
18.
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begins in young adulthood and accrues across the life course as indi-
viduals remain in, exit, and reenter marital relationships.
156
Thus, even
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.
157
Selection effects regarding
divorce or remarriage may account for part of this differential, although
research has found no consistent pattern of such selection.
158
Married
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.
159
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.
160
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.
161
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
cohabiting adults.
162
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
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norepinephrine), with higher blood pressure, and with declines in
immune functioning.
163
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,
164
and remaining in a long-term,
low-quality marriage may actually be worse for one’s overall health than
getting divorced.
165
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.
166
Marital conflict also appears to be
tied to functional impairment among midlife and older adults.
167
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.
168
But here,
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
gain.
169
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.
170
Both men
and women who marry are more than two times more likely to become
obese than those who are in a non-cohabiting, dating relationship.
171
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
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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).
172
Nevertheless, marriage
may also increase the risk of obesity for African American women.
173
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.
174
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.
175
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.
176
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
was possible.
177
Indeed, the recent growth of cohabitation flows in part
from the loss of confidence that many children of divorce have in mar-
riage.
178
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.
179
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
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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
graders.
180
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.
181
In the
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.”
182
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.
183
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
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suffer psychologically from divorce. Unfortunately, about two-thirds of
divorces appear to be taking place among low-conflict spouses.
184
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-
ried households.
185
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.
186
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-
ners.
187
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.
188
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
less institutionalized.
189
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.
190
Divorced men and
women are more than twice as likely as their married counterparts to
attempt suicide.
191
Married individuals were also substantially less likely
to commit suicide than were divorced, widowed, or never-married
individuals.
192
In the last half-century, suicide rates among teens and
23.
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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.
193
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.
194
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.
195
Married mothers also perceive that they
receive more support from their child(ren)’s father.
196
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.
197
Single mothers who marry (and
remain married), moreover, receive the same mental health benefits as
childless women who marry.
198
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
group.
199
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.
200
We focus on maternal depression
because it is both a serious mental health problem for women and a
serious risk factor for children.
201
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.
202
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
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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.
203
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.)
204
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.
205
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.
206
However, some
research indicates that the link between single-parenthood and delin-
quency does not hold for African American children.
207
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.
208
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.
209
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
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abusive than a married father, and they are also more likely to compete
with the child for the attention of the mother.
210
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.
211
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.
212
Marriage also plays a crucial role in reducing male criminality.
213
A study
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.
214
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.
215
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.”
216
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.
217
Marriage also reduces criminality in the Netherlands, indicating the
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effect is not unique to the American context.
218
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.
219
Some
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.
220
Married women appear to have a lower risk of experi-
encing domestic violence than do cohabiting or dating
women.
Domestic violence remains a serious problem both inside and outside
of marriage.
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.
221
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-
lent arguments.
222
Mothers of infants likewise report higher incidence of
partner violence when they are either cohabiting or in a non-cohabiting
romantic relationship.
223
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
adult women.
224
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.
225
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.”
226
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
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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.
227
However, scholars
suggest that the greater integration of married men into the community,
and the greater investment of spouses in each other, also play a role.
228
Married men, for example, are more responsive to policies such as
mandatory arrest policies, designed to signal strong disapproval of
domestic violence.
229
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.
230
Children living in
single-mother homes have increased rates of death from intentional
injuries.
231
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.
232
Other
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
abuse.”
233
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).”
234
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.
235
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.”
236
Studies
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.
237
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.
238
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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.
239
Clearly, the
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
degrees.
240
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
families.
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Conclusion
M
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.
241
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,
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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-
selves riding.
242
There is promising evidence of successful strategies,
243
but such strategies should continue to be informed by ongoing
research.
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
public policy?
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.
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Appendix: Figures
FIGURE 2. PERCENT OF CHILDREN EXPERIENCING PARENTAL DIVORCE/SEPARATION AND
PARENTAL COHABITATION, BY AGE 12; PERIOD LIFE TABLE ESTIMATES, 2002-07
50
40
30
20
10
0
P
E
R
C
E
N
T
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
married parents.
24%
42%
28
27
26
25
24
23
22
21
20
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.
1960
TO
1964
1965
TO
1969
1970
TO
1974
1975
TO
1979
1980
TO
1984
1985
TO
1989
1990
TO
1994
1995
TO
1997
P
E
R
C
E
N
T
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20
15
10
5
0
FIGURE 3. INCIDENCE PER 1,000 CHILDREN OF HARM STANDARD ABUSE BY
FAMILY STRUCTURE AND LIVING ARRANGEMENT, 2005-2006
Source: Figure 5-2 in Fourth National Incidence Study of Child Abuse and Neglect
(NIS-4): Report to Congress.
1.9
9.8
8.2
19.5
5.9
6.8
0.5
4.3
2.4
9.9
5.3
0.8
5.0
2.5
2.9
4.0
PHYSICAL ABUSE SEXUAL ABUSE EMOTIONAL ABUSE
2.4
8.2
Married biological parents
Other married parents
Cohabiting biological parents
Parent with cohabiting partner
Single parent, no partner
Neither parent
FIGURE 4. PERCENT OF 16-YEAR-OLDS LIVING WITH MOTHER AND FATHER,
1978-1984 AND 1998-2004
80
70
60
50
40
30
20
10
0
P
E
R
C
E
N
T
1978-1984 1998-2004
Source: General Social Survey, 1980-2010.
66%
55%
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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
Growth.
80
70
60
50
40
30
20
10
0
P
E
R
C
E
N
T
24%
65%
FIGURE 6. PERCENT OF 14-YEAR-OLD GIRLS LIVING WITH MOTHER AND FATHER,
BY MOTHER’S EDUCATION AND YEAR
100
80
60
40
20
0
P
E
R
C
E
N
T
Source: National Survey of Family Growth, 1982 and 2006-08.
65%
52%
74%
58%
80%
81%
MOTHER HAD NO
HIGH SCHOOL
DEGREE
MOTHER HAD HIGH
SCHOOL DEGREE,
NO FOUR-YEAR
COLLEGE DEGREE
MOTHER HAD
FOUR-YEAR COLLEGE
DEGREE
1974-1981
2000-2007
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Endnotes
Endnotes are located online at:
http://www.americanvalues.org/wmm/endnotes.php
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About the Institute for American Values
The Institute for American Values, founded in 1987, is a private, nonpartisan
organization devoted to research, publication, and public education on issues
of family well-being and civil society. By providing forums for scholarly
inquiry and debate, the Institute seeks to bring fresh knowledge to bear on
the challenges facing families and civil society. Through its publications and
other educational activities, the Institute seeks to bridge the gap between
scholarship and policy making, bringing new information to the attention of
policy makers in the government, opinion makers in the media, and decision
makers in the private sector.
About the National Marriage Project
The National Marriage Project, founded in 1997 at Rutgers University, is a
nonpartisan, nonsectarian, and interdisciplinary initiative now located at
the University of Virginia. The Project’s mission is to provide research and
analysis on the health of marriage in America, to analyze the social and cul-
tural forces shaping contemporary marriage, and to identify strategies to
increase marital quality and stability.
Institute for American Values
1841 Broadway
Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
info@americanvalues.org
www.americanvalues.org
National Marriage Project
The University of Virginia
P.O. Box 400766
The Dynamics Building
Charlottesville, VA 22904-4766
Tel: (434) 321-8601
Fax: (434) 924-7028
marriage@virginia.edu
www.virginia.edu/marriageproject/
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Te Witherspoon Institute
Marriage and the Public Good:
Ten Principles
Princeton, New Jersey
August 2008
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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
www.princetonprinciples.org
© 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
USA
www.winst.org
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Contents
Executive Summary 1
I. Te Challenge to Marriage and Family Today 3
II. Marriage and the Public Good: Ten Principles 5
III. Evidence from the Social and Biological Sciences 9
IV. Analysis from Political and Moral Philosophy: Te Intrinsic Goods
of Marriage 20
V. American Exceptionalism and the Way Forward 23
Notes 26
Signatories 30
About the Witherspoon Institute 34
Marriage and the Public Good: Ten Principles is the result of scholarly discussions that began in December 2004 at a
meeting in Princeton, New Jersey, sponsored by the Witherspoon Institute. Tis conference brought together scholars
from economics, history, law, philosophy, psychiatry, and sociology to share with each other the findings of their re-
search on why marriage, understood as the permanent union of husband and wife, is in the public interest. A consensus
developed among the participants in favor of sharing more widely the fruit of their collaboration.
Te Witherspoon Institute is an independent research center located in Princeton, New Jersey. It is not connected
to Princeton University, the Princeton Teological Seminary, Te Center for Teological Inquiry, or the Institute for
Advanced Study.
For more information, please contact the drafting committee of the Principles, at principles@winst.org.
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1
Executive Summary
In recent years, marriage has weakened, with serious negative consequences for society as a whole. Four
developments are especially troubling: divorce, illegitimacy, cohabitation, and same-sex marriage.
Te purpose of this document is to make a substantial new contribution to the public debate over marriage.
Too often the rational case for marriage is not made at all or not made very well. As scholars, we are per-
suaded that the case for marriage can be made and won at the level of reason.
Marriage protects children, men and women, and the common good. Te health of marriage is particularly
important in a free society, which depends upon citizens to govern their private lives and rear their children
responsibly, so as to limit the scope, size, and power of the state. Te nation’s retreat from marriage has been
particularly consequential for our society’s most vulnerable communities: minorities and the poor pay a
disproportionately heavy price when marriage declines in their communities. Marriage also offers men and
women as spouses a good they can have in no other way: a mutual and complete giving of the self. Tus,
marriage understood as the enduring union of husband and wife is both a good in itself and also advances the public
interest.
We affirm the following ten principles that summarize the value of marriage—a choice that most people
want to make, and that society should endorse and support.
Ten Principles on Marriage and the Public Good
1. Marriage is a personal union, intended for the whole of life, of husband and wife.
2. Marriage is a profound human good, elevating and perfecting our social and sexual nature.
3. Ordinarily, both men and women who marry are better off as a result.
4. Marriage protects and promotes the well-being of children.
5. Marriage sustains civil society and promotes the common good.
6. Marriage is a wealth-creating institution, increasing human and social capital.
7. When marriage weakens, the equality gap widens, as children suffer from the disadvantages of
growing up in homes without committed mothers and fathers.
8. A functioning marriage culture serves to protect political liberty and foster limited government.
9. Te laws that govern marriage matter significantly.
10. “Civil marriage” and “religious marriage” cannot be rigidly or completely divorced from one another.
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Marriage and the Public Good: Ten Principles
Tis understanding of marriage is not narrowly religious, but the cross-cultural fruit of broad human expe-
rience and reflection, and supported by considerable social science evidence. But a marriage culture cannot
flourish in a society whose primary institutions—universities, courts, legislatures, religions—not only fail to
defend marriage but actually undermine it both conceptually and in practice.
Creating a marriage culture is not the job for government. Families, religious communities, and civic institu-
tions point the way. But law and public policy will either reinforce and support these goals, or undermine them. We
call upon our nation’s leaders, and our fellow citizens, to support public policies that strengthen marriage as
a social institution, including:
1. Protect the public understanding of marriage as the union of one man with one woman as husband
and wife.
2. Investigate divorce law reforms.
3. End marriage penalties for low-income Americans.
4. Protect and expand pro-child and pro-family provisions in our tax code.
5. Protect the interests of children from the fertility industry.
Families, religious communities, community organizations, and public policymakers must work together
toward a great goal: strengthening marriage so that each year more children are raised by their own mother
and father in loving, lasting marital unions. Te future of the American experiment depends upon it. And
our children deserve nothing less.
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I. TALLENI. THE CHALLENGE TO MARRIAGE AND FAMILY TODAY

Marriage—considered as a legally sanctioned union of one man and one woman—plays a vital role in pre-
serving the common good and promoting the welfare of children. In virtually every known human society,
the institution of marriage provides order and meaning to adult sexual relationships and, more fundamen-
tally, furnishes the ideal context for the bearing and rearing of the young. Te health of marriage is particu-
larly important in a free society such as our own, which depends upon citizens to govern their private lives
and rear their children responsibly, so as to limit the scope, size, and power of the state. Marriage is also an
important source of social, human, and financial capital for children, especially for children growing up in
poor, disadvantaged communities who do not have ready access to other sources of such capital. Tus, from
the point of view of spouses, children, society, and the polity, marriage advances the public interest.
But in the last forty years, marriage and family have come under increasing pressure from the modern state,
the modern economy, and modern culture. Family law in all fifty states and most countries in the Western
world has facilitated unilateral divorce, so that marriages can be easily and effectively terminated at the
will of either party. Changing sexual mores have made illegitimacy and cohabitation a central feature of
our social landscape. Te products of Madison Avenue and Hollywood often appear indifferent to, if not
hostile toward, the norms that sustain decent family life. New medical technology has made it easier for
single mothers and same-sex couples to have children not only outside of marriage, but even without sexual
intercourse. Taken together, marriage is losing its preeminent status as the social institution that directs and
organizes reproduction, childrearing, and adult life.
1

Te nation’s retreat from marriage has been particularly consequential for our society’s most vulnerable
communities. Out-of-wedlock birth, divorce, and single motherhood are much more common among low-
er-income African Americans and, to a lesser extent, Hispanic Americans, in large part because they often
do not have as many material, social, and personal resources to resist the deinstitutionalization of marriage.
Te latest social scientific research on marriage indicates that minorities and the poor pay a disproportion-
ately heavy price when marriage declines in their communities, meaning that the breakdown of the family
only compounds the suffering of those citizens who already suffer the most.
2

Te response to this crisis by activist defenders of marriage, while often successful at the ballot box in the
United States, has had limited influence on the culture, and in many cases those who deliberately seek to
redefine the meaning of marriage or downplay its special significance have argued more effectively. Too
often, the rational case for marriage is not made at all or not made very well. Appeals to tradition are rarely
decisive in themselves in the American context today, especially among those who believe that individuals
should choose their own values rather than heed the wisdom and ways of past generations. Religious ap-
peals, though important in the lives of many individuals and families, have limited reach in a society that
limits the role of religious institutions in public life. Appeals to people’s feelings or intuitions, however
strong, are easily dismissed as appeals to prejudice, unjustly valuing some “lifestyles” over others. And in a
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society whose moral self-understanding has been formed by the struggle to overcome racial prejudice and
promote equal rights, such appeals not only fail to persuade but seem to indicate bad faith.
In this context, we think there is a pressing need for scholarly discussion of the ideal of marriage, defended
with reasons that are comprehensible in public debate and that draw upon the full range of social scientific
evidence and humanistic reflection. At issue is not only the value of marriage itself, but the reasons why the
public has a deep interest in a socially supported normative understanding of marriage. Marriage is under
attack conceptually, in university communities and other intellectual centers of influence. To defend marriage
will require confronting these attacks, assessing their arguments, and correcting them where necessary. We
are persuaded that the case for marriage can be made and won at the level of reason. Te principles outlined
below, and the evidence and arguments offered on their behalf are meant to make that case.
We are aware, of course, that the debate over the normative status of marriage in our society necessarily
acquires an emotional edge. No one is untouched by the issue in his or her personal life, and we can readily
agree with the critics of marriage that questions of sexual identity, gender equity, and personal happiness
are at stake. In arguing for the normative status of marriage, we do not suppose that all people ought to be
married or that marriage and family are the only source of good in people’s lives. Nor do we wish to deny
or downgrade society’s obligation to care about the welfare of all children, regardless of their parents’ family
form.
Still, we think that, particularly as university teachers and on behalf of our students, we need to make this
statement, since marriage is above all a choice for the young: they need arguments to counterbalance the
dominant arguments now attacking marriage as unjust and undesirable, and they need to know what mar-
riage is in order to sustain their own marriages and raise their own children. Just as it did in earlier cultures,
the marital family provides the basis for a settled pattern of reproduction and education that a large, modern,
democratic society still surely needs. Our principles mean to summarize the value of married life and the
life of families that is built upon marriage—a choice that most people want to make, and that society should
endorse and support.
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II. MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES
1. Marriage is a personal union, intended for the whole of life, of husband and wife.
Marriage differs from other valued personal relationships in conveying a full union of husband and wife—
including a sexual, emotional, financial, legal, spiritual, and parental union. Marriage is not the ratification of
an existing relation; it is the beginning of a new relationship between a man and a woman, who pledge their
sexual fidelity to one another, promise loving mutual care and support, and form a family that welcomes and
nurtures the children that may spring from their union. Tis understanding of marriage has predominated
in Europe and America for most of the past two thousand years. It springs from the biological, psychologi-
cal, and social complementarity of the male and female sexes: Women typically bring to marriage important
gifts and perspectives that men typically do not bring, just as men bring their own special gifts and perspec-
tives that women typically cannot provide in the same way. Tis covenant of mutual dependence and obliga-
tion, solemnized by a legal oath, is strengthened by the pledge of permanence that husband and wife offer to
one another—always to remain, never to flee, even and especially in the most difficult times.
2. Marriage is a profound human good, elevating and perfecting our social and sexual nature.
Human beings are social animals, and the social institution of marriage is a profound human good. It is a
matrix of human relationships rooted in the spouses’ sexual complementarity and procreative possibilities,
and in children’s need for sustained parental nurturance and support. It creates clear ties of begetting and
belonging, ties of identity, kinship, and mutual interdependence and responsibility. Tese bonds of fidelity
serve a crucial public purpose, and so it is necessary and proper for the state to recognize and encourage
marriage in both law and public policy. Indeed, it is not surprising that marriage is publicly sanctioned and
promoted in virtually every known society and often solemnized by religious and cultural rituals. Modern
biological and social science only confirm the benefits of marriage as a human good consistent with our
given nature as sexual and social beings.
3. Ordinarily, both men and women who marry are better off as a result.
Married men gain moral and personal discipline, a stable domestic life, and the opportunity to participate
in the upbringing of their children. Married women gain stability and protection, acknowledgment of the
paternity of their children, and shared responsibility and emotional support in the raising of their young.
Together, both spouses gain from a normative commitment to the institution of marriage itself—including
the benefits that come from faithfully fulfilling one’s chosen duties as mother or father, husband or wife.
Couples who share a moral commitment to marital permanency and fidelity tend to have better marriages.
Te marital ethic enjoining permanence, mutual fidelity, and care, as well as forbidding violence or sexual
abuse, arises out of the core imperative of our marriage tradition: that men and women who marry pledge
to love one another, “in sickness and in health” and “for better or for worse,” ordinarily “until death do
us part.”
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4. Marriage protects and promotes the well-being of children.
Te family environment provided by marriage allows children to grow, mature, and flourish. It is a seedbed
of sociability and virtue for the young, who learn from both their parents and their siblings. Specifically, the
married family satisfies children’s need to know their biological origins, connects them to both a mother
and a father, establishes a framework of love for nurturing them, oversees their education and personal
development, and anchors their identity as they learn to move about the larger world. Tese are not merely
desirable goods, but what we owe to children as vulnerable beings filled with potential. Whenever humanly pos-
sible, children have a natural human right to know their mother and father, and mothers and fathers have a
solemn obligation to love their children unconditionally.
5. Marriage sustains civil society and promotes the common good.
Civil society also benefits from a stable marital order. Families are themselves small societies, and the web
of trust they establish across generations and between the spouses’ original families are a key constituent of
society as a whole. Te network of relatives and in-laws that marriage creates and sustains is a key ingredi-
ent of the “social capital” that facilitates many kinds of beneficial civic associations and private groups. Te
virtues acquired within the family—generosity, self-sacrifice, trust, self-discipline—are crucial in every do-
main of social life. Children who grow up in broken families often fail to acquire these elemental habits of
character. When marital breakdown or the failure to form marriages becomes widespread, society is harmed
by a host of social pathologies, including increased poverty, mental illness, crime, illegal drug use, clinical
depression, and suicide.
6. Marriage is a wealth-creating institution, increasing human and social capital.
Te modern economy and modern democratic state depend upon families to produce the next genera-
tion of productive workers and taxpayers. Tis ongoing renewal of human capital is a crucial ingredient in
the national economy, one that is now in grave peril in those societies with rapidly aging populations and
below-replacement fertility rates. It is within families that young people develop stable patterns of work and
self-reliance at the direction of their parents, and this training in turn provides the basis for developing use-
ful skills and gaining a profession. More deeply, marriage realigns personal interests beyond the good of the
present self, and thus reduces the tendency of individuals and groups to make rash or imprudent decisions
that squander the inheritance of future generations. Families also provide networks of trust and capital that
serve as the foundation for countless entrepreneurial small-business enterprises (as well as some large cor-
porations), which are crucial to the vitality of the nation’s economy. In addition, devoted spouses and grown
children assist in caring for the sick and elderly, and maintain the solvency of pension and social-insurance
programs by providing unremunerated care for their loved ones, paying taxes, and producing the children
who will form future generations of tax-paying workers. Without flourishing families, in other words, the
long-term health of the modern economy would be imperiled.
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7. When marriage weakens, the equality gap widens, as children suffer from the disadvantages of grow-
ing up in homes without committed mothers and fathers.
Children whose parents fail to get and stay married are at an increased risk of poverty, dependency, sub-
stance abuse, educational failure, juvenile delinquency, early unwed pregnancy, and a host of other destruc-
tive behaviors. When whole families and neighborhoods become dominated by fatherless homes, these risks
increase even further. Te breakdown of marriage has hit the African-American community especially hard,
and thus threatens the cherished American ideal of equality of opportunity by depriving adults and especial-
ly children of the social capital they need in order to flourish. Precisely because we seek to eliminate social
disadvantages based upon race and class, we view the cultural, economic, and other barriers to strengthening
marriage in poor neighborhoods—especially among those racial minorities with disproportionately high
rates of family breakdown—as a serious problem to be solved with persistence, generosity, and ingenuity.
8. A functioning marriage culture serves to protect political liberty and foster limited government.
Strong, intact families stabilize the state and decrease the need for costly and intrusive bureaucratic social
agencies. Families provide for their vulnerable members, produce new citizens with virtues such as loyalty
and generosity, and engender concern for the common good. When families break down, crime and social
disorder soar; the state must expand to reassert social control with intrusive policing, a sprawling prison sys-
tem, coercive child-support enforcement, and court-directed family life.
3
Without stable families, personal
liberty is thus imperiled as the state tries to fulfill through coercion those functions that families, at their
best, fulfill through covenantal devotion.
9. Te laws that govern marriage matter significantly.
Law and culture exhibit a dynamic relationship: Changes in one ultimately yield changes in the other,
and together law and culture structure the choices that individuals see as available, acceptable, and choice-
worthy. Given the clear benefits of marriage, we believe that the state should not remain politically neutral,
either in procedure or outcome, between marriage and various alternative family structures. Some have
sought to redefine civil marriage as a private contract between two individuals regardless of sex, others as a
binding union of any number of individuals, and still others as any kind of contractual arrangement for any
length of time that is agreeable to any number of consenting adult parties. But in doing so a state would nec-
essarily undermine the social norm which encourages marriage as historically understood—i.e., the sexually
faithful union, intended for life, between one man and one woman, open to the begetting and rearing of
children. Te public goods uniquely provided by marriage are recognizable by reasonable persons, regardless
of religious or secular worldview, and thus provide compelling reasons for reinforcing the existing marriage
norm in law and public policy.
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10. “Civil marriage” and “religious marriage” cannot be rigidly or completely divorced from
one another.
Americans have always recognized the right of any person, religious or non-religious, to marry. While the
ceremonial form of religious and secular marriages often differs, the meaning of such marriages within
the social order has always been similar, which is why the state honors those marriages duly performed by
religious authorities. Moreover, current social science evidence on religion and marital success affirms the
wisdom of the American tradition, which has always recognized and acknowledged the positive role that
religion plays in creating and sustaining marriage as a social institution.
4
Te majority of Americans marry
in religious institutions, and for many of these people a religious dimension suffuses the whole of family
life and solemnizes the marriage vow. It is thus important to recognize the crucial role played by religious
institutions in lending critical support for a sustainable marriage culture, on which the whole society de-
pends. And it is important to preserve some shared idea of what marriage is that transcends the differences
between religious and secular marriages and between marriages within our nation’s many diverse religious
traditions.
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III. EVIDENCE FROM THE SOCIAL AND BIOLOGICAL SCIENCES
In the last forty years, society has conducted a vast family experiment, and the outcomes are increasingly
coming to light via scientific investigations. While no single study is definitive, and there is room at the
edges for debate about particular consequences of marriage, the clear preponderance of the evidence shows
that intact, married families are superior—for adults and especially for children—to alternative family ar-
rangements. A great deal of research now exists from the anthropological, sociological, psychological, and
economic sciences, demonstrating the empirical benefits of marriage.
In virtually every known human society, the institution of marriage has served and continues to serve three
important public purposes. First, marriage is the institution through which societies seek to organize the
bearing and rearing of children; it is particularly important in ensuring that children have the love and sup-
port of their father. Second, marriage provides direction, order, and stability to adult sexual unions and to
their economic, social, and biological consequences. Tird, marriage civilizes men, furnishing them with a
sense of purpose, norms, and social status that orient their lives away from vice and toward virtue.
5
Marriage
achieves its myriad purposes through both social and biological means that are not easily replicated by the
various alternatives to marriage. When marriage is strong, children and adults both tend to flourish; when
marriage breaks down, every element of society suffers.
Te Well-being of Children
Te evidence linking the health of marriage to the welfare of children is clear. During the last two decades,
a large body of social scientific research has emerged indicating that children do best when reared by their
mothers and fathers in a married, intact family. A recent report by Child Trends, a nonpartisan research
organization, summarized the new scholarly consensus on marriage this way: “[R]esearch clearly demon-
strates 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.”
6
Other recent reviews of the literature
on marriage and the well-being of children, conducted by the Brookings Institution, the Woodrow Wilson
School of Public and International Affairs at Princeton University, the Center for Law and Social Policy,
and the Institute for American Values, have all come to similar conclusions.
7

Marriage matters for children in myriad ways. We focus here on the educational, psychological, sexual, and
behavioral consequences for children of family structure, beginning with education. Children reared in in-
tact, married homes are significantly more likely to be involved in literacy activities (such as being read to by
adults or learning to recognize letters) as preschool children, and to score higher in reading comprehension
as fourth graders.
8
School-aged children are approximately 30 percent less likely to cut class, be tardy, or
miss school altogether.
9
Te cumulative effect of family structure on children’s educational performance is
most evident in high school graduation rates. Children reared in intact, married households are about twice
as likely to graduate from high school, compared to children reared in single-parent or step-families. One
study found that 37 percent of children born outside of marriage and 31 percent of children with divorced
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parents dropped out of high school, compared to 13 percent of children from intact families headed by a
married mother and father.
10
Marriage also plays a central role in fostering the emotional health of children. Children from stable, mar-
ried families are significantly less likely to suffer from depression, anxiety, alcohol and drug abuse, and
thoughts of suicide compared to children from divorced homes.
11
One recent study of the entire population
of Swedish children found that Swedish boys and girls in two-parent homes were about 50 percent less
likely to suffer from suicide attempts, alcohol and drug abuse, and serious psychiatric illnesses compared to
children reared in single-parent homes.
12
A survey of the American literature on child well-being found that
family structure was more consequential than poverty in predicting children’s psychological and behavioral
outcomes.
13
In general, children who are reared by their own married mothers and fathers are much more
likely to confront the world with a sense of hope, self-confidence, and self-control than children raised
without an intact, married family.
Marriage is also important in connecting children to their biological fathers and grounding their familial
identities. Research by Yale psychiatrist Kyle Pruett suggests that children conceived by artificial reproduc-
tive technologies (ART) and reared without fathers have an unmet “hunger for an abiding paternal pres-
ence”; his research parallels findings from the literature on divorce and single-parenthood.
14
Pruett’s work
also suggests that children conceived by ART without known fathers have deep and disturbing questions
about their biological and familial origins. Tese children do not know their fathers or their paternal kin,
and they dislike living in a kind of biological and paternal limbo.
15
By contrast, children who are reared by
their married biological parents are more likely to have a secure sense of their own biological origins and
familial identity.
Family structure, particularly the presence of a biological father, also plays a key role in influencing the
sexual development, activity, and welfare of young girls. Teenage girls who grow up with a single mother or a
stepfather are significantly more likely to experience early menstruation and sexual development, compared
to girls reared in homes headed by a married mother and father.
16
Partly as a consequence, girls reared in
single-parent or step-families are much more likely to experience a teenage pregnancy and to have a child
outside of wedlock than girls who are reared in an intact, married family.
17
One study found that only 5
percent of girls who grew up in an intact family got pregnant as teenagers, compared to 10 percent of girls
whose fathers left after they turned six, and 35 percent of girls whose fathers left when they were preschool-
ers.
18
Research also suggests that girls are significantly more likely to be sexually abused if they are living
outside of an intact, married home—in large part because girls have more contact with unrelated males if
their mothers are unmarried, cohabiting, or residing in a stepfamily.
19

Boys also benefit in unique ways from being reared within stable, married families. Research consistently
finds that boys raised by their own fathers and mothers in an intact, married family are less likely to get in
trouble than boys raised in other family situations. Boys raised outside of an intact family are more likely to
have problems with aggression, attention deficit disorder, delinquency, and school suspensions, compared
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to boys raised in intact married families.
20
Some studies suggest that the negative behavioral consequences
of marital breakdown are even more significant for boys than for girls. One study found that boys reared in
single-parent and step-families were more than twice as likely to end up in prison, compared to boys reared
in an intact family.
21
Clearly, stable marriage and paternal role models are crucial for keeping boys from self-
destructive and socially destructive behavior.
Virtually all of the studies cited here control for socioeconomic, demographic, and even genetic factors that
might otherwise distort the relationship between family structure and child well-being. So, for instance, the
link between family breakdown and crime is not an artifact of poverty among single parents.
22
Moreover, the
newest work on divorce follows adult twins and their children to separate out the unique effects of divorce
itself from the potential role that genetic (and socioeconomic) factors might play in influencing children’s
outcomes. Tis research indicates that divorce has negative consequences for children’s psychological and
social welfare even after controlling for the genetic vulnerabilities of the parents who divorced.
23

Why, then, does the evidence link marriage to an impressive array of positive outcomes for children? Both
social and biological mechanisms seem to account for the value of an intact marriage in children’s lives.
From a sociological perspective, marriage allows families to benefit from shared labor within the household,
income streams from two parents, and the economic resources of two sets of kin.
24
A married mom and
dad typically invest more time, affection, and oversight into parenting than does a single parent; as impor-
tantly, they tend to monitor and improve the parenting of one another, augmenting one another’s strengths,
balancing one another’s weaknesses, and reducing the risk that a child will be abused or neglected by an ex-
hausted or angry parent.
25
Te trust and commitment associated with marriage also give a man and a woman
a sense that they have a future together, as well as a future with their children. Tis horizon of commitment,
in turn, motivates them to invest practically, emotionally, and financially at higher levels in their children
than cohabiting or single parents.
26

Marriage is particularly important in binding fathers to their children. For men, marriage and fatherhood
are a package deal. Because the father’s role is more discretionary in our society (and every known human
society) than the mother’s role, it depends more on the normative expectations of and social supports pro-
vided to fathers by marriage. Marriage positions men to receive the regular encouragement, direction, and
advice of the mother of his children, and encourages them to pay attention to that input.
27
Not surprisingly,
cohabiting fathers are less practically and emotionally invested in their children than are married fathers.
28

Nonresidential fathers see their children much less often than do married, residential fathers, and their
involvement is not consistently related to positive outcomes for children.
29
By contrast, married fathers can
exercise an abiding, important, and positive influence on their children, and are especially likely to do so in
a happy marriage.
30

Biology also matters. Studies suggest that men and women bring different strengths to the parenting en-
terprise, and that the biological relatedness of parents to their children has important consequences for the
young, especially girls. Although there is a good deal of overlap in the talents that mothers and fathers bring
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to parenting, the evidence also suggests that there are crucial sex differences in parenting. Mothers are more
sensitive to the cries, words, and gestures of infants, toddlers, and adolescents, and, partly as a consequence,
they are better at providing physical and emotional nurture to their children.
31
Tese special capacities of
mothers seem to have deep biological underpinnings: during pregnancy and breastfeeding women experi-
ence high levels of the hormone peptide oxytocin, which fosters affiliative behaviors.
32

Fathers excel when it comes to providing discipline, ensuring safety, and challenging their children to em-
brace life’s opportunities and confront life’s difficulties. Te greater physical size and strength of most fa-
thers, along with the pitch and inflection of their voice and the directive character of their speaking, give
them an advantage when it comes to discipline, an advantage that is particularly evident with boys, who are
more likely to comply with their fathers’ than their mothers’ discipline.
33
Likewise, fathers are more likely
than mothers to encourage their children to tackle difficult tasks, endure hardship without yielding, and
seek out novel experiences.
34
Tese paternal strengths also have deep biological underpinnings: Fathers
typically have higher levels of testosterone—a hormone associated with dominance and assertiveness—than
do mothers.
35
Although the link between nature, nurture, and sex-specific parenting talents is undoubtedly
complex, one cannot ignore the overwhelming evidence of sex differences in parenting —differences that
marriage builds on to the advantage of children.
Te biological relationship between parents and children also matters to the young. Studies suggest that
biological parents invest more money and time in their offspring than do stepparents.
36
New research by
University of Arizona psychologist Bruce Ellis also suggests that the physical presence of a biological father
is important for the sexual development of girls. Specifically, he thinks that one reason that girls who live
apart from their biological father develop sexually at an earlier age than girls who live with their biologi-
cal father is that they are more likely to be exposed to the pheromones—biological chemicals that convey
sexual information between persons—of unrelated males. He also finds that girls who are exposed to the
presence of a mother’s boyfriend or a stepfather reach puberty at an earlier age than girls who are raised
by unpartnered single mothers.
37
Tere is clearly more research to be done in this area, but the data clearly
suggest that one reason marriage is so valuable is that it helps to bind a child’s biological parents to the child
over the course of her life.
Sara McLanahan and Gary Sandefur, sociologists at Princeton and Wisconsin, respectively, sum up the
reasons that marriage matters for children in this way: “If we were asked to design a system for making sure
that children’s basic needs were met, we would probably come up with something quite similar to the two-
parent ideal. Such a design, in theory, would not only ensure that children had access to the time and money
of two adults, it also would provide a system of checks and balances that promoted quality parenting. Te
fact that both parents have a biological connection to the child would increase the likelihood that the parents
would identify with the child and be willing to sacrifice for that child, and it would reduce the likelihood
that either parent would abuse the child.”
38
Over the past few decades, we have experimented with various
alternatives to marriage, and the evidence is now clear: Children raised in married, intact families generally
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do better in every area of life than those raised in various alternative family structures. Tose who care about
the well-being of children—as every citizen should—should care about the health of modern marriage.
Te Well-being of Adults
While the most important benefits of marriage redound to children, marriage also has significant benefits
for the adult men and women who enter into it. Both married men and women benefit financially, emo-
tionally, physically, and socially from marriage. However, we must also note that there are often gender dif-
ferences in the benefits of marriage, and that the benefits of marriage for women are more sensitive to the
quality of marriage than are the benefits of marriage for men.
Te financial advantages of marriage are clear. Married men and women are more likely to accumulate
wealth and to own a home than unmarried adults, even compared to similarly situated cohabiting or single
adults.
39
Married men earn between 10 and 40 percent more money than single men with similar profes-
sional and educational backgrounds.
40
Married women generally do not experience a marriage premium
in their earnings, but this is because most women combine marriage with motherhood, which tends to
depress women’s earnings.
41
Te material benefits of marriage also extend to women from disadvantaged
backgrounds, who are much less likely to fall into poverty if they get and stay married.
42
In general, mar-
riage allows couples to pool resources and share labor within the household. Te commitment associated
with marriage provides couples with a long-term outlook that allows them to invest together in housing and
other long-term assets.
43
Te norms of adult maturity associated with marriage encourage adults to spend
and save in a more responsible fashion.
44

Marriage also promotes the physical and emotional health of men and women. Married adults have longer
lives, less illness, greater happiness, and lower levels of depression and substance abuse than cohabiting and
single adults. Spouses are more likely to encourage their partners to monitor their health and seek medical
help if they are experiencing an illness.
45
Te norms of adult maturity and fidelity associated with marriage
encourage men and women to avoid unhealthy or risky behaviors, from promiscuous sex to heavy alcohol
use.
46
Te increased wealth and economic stability that come from being married enable married men and
women to seek better medical care.
47
Te emotional support furnished by most marriages reduces stress, and
the stress hormones, that often cause ill health and mental illness.
48
Men are particularly apt to experience
marriage-related gains in their life expectancy and overall health. Women also gain, but their marriage-
related health benefits depend more on the quality of their marriages: women in low-quality marriages are
more likely to experience health problems and psychological distress than single women, while good mar-
riages give women an important psychological and physical boost.
49

Marriage also plays a crucial role in civilizing men. Married men are less likely to commit a crime, to be
sexually promiscuous or unfaithful to a longtime partner, or to drink to excess.
50
Tey also attend church
more often, spend more time with kin (and less time with friends), and work longer hours.
51
One study,
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for instance, showed that only 4 percent of married men had been unfaithful in the past year, compared to
16 percent of cohabiting men and 37 percent of men in an ongoing sexual relationship with a woman.
52

Longitudinal research by University of Virginia sociologist Steven Nock suggests that these effects are not
an artifact of selection but rather a direct consequence of marriage. Nock tracked men over time as they
transitioned from singlehood to marriage and found that men’s behaviors actually changed in the wake of a
marriage: After tying the knot, men worked harder, attended fewer bars, increased their church attendance,
and spent more time with family members.
53
For many men, marriage is a rite of passage that introduces
them fully into an adult world of responsibility and self-control.
But why does marriage play such a crucial role in civilizing men—in making them harder workers, more
faithful mates, and more peaceable citizens? Part of the answer is sociological. Te norms of trust, fidelity,
sacrifice, and providership associated with marriage give men clear directions about how they should act
toward their wives and children—norms that are not clearly applicable to non-marital relationships. A mar-
ried man also gains status in the eyes of his wife, her family, their friends, and the larger community when
they signal their intentions and their maturity by marrying.
54
Most men seek to maintain their social status
by abiding by society’s norms; a society that honors marriage will produce men who honor their wives and
care for their children.
Biology also matters. Research on men, marriage, and testosterone finds that married men—especially mar-
ried men with children—have more modest levels of testosterone than do single men. (Cohabiting men also
have lower levels of testosterone than single men.) Long-term, stable, procreative relationships moderate
men’s testosterone levels.
55
Judging by the literature on testosterone, this would in turn make men less in-
clined to aggressive, promiscuous, and otherwise risky behavior.
56
Of course, marriage also matters in unique ways for women. When it comes to physical safety, married
women are much less likely to be victims of violent crimes. For instance, a 1994 Justice Department report
found that single and divorced women were more than four times more likely to be the victims of a violent
crime, compared to married women.
57
Married women are also much less likely to be victimized by a partner
than women in a cohabiting or sexually intimate dating relationship. One study found that 13 percent of co-
habiting couples had arguments that got violent in the past year, compared to 4 percent of married couples.
58

Studies suggest that one reason women in non-marital relationships are more likely to be victimized is that
these relationships have higher rates of infidelity, and infidelity invites serious conflict between partners.
59

For most women, therefore, marriage is a safe harbor.
It is not just marital status but the very ideal of marriage that matters. Married persons who value marriage
for its own sake—who oppose cohabitation, who think that marriage is for life, and who believe that it is
best for children to be reared by a father and a mother as husband and a wife—are significantly more likely
to experience high-quality marriages, compared to married persons who are less committed to the institu-
tion of marriage.
60
Men and women with a normative commitment to the ideal of marriage are also more
likely to spend time with one another and to sacrifice for their relationship.
61
Other research indicates that
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such a commitment is particularly consequential for men: that is, men’s devotion to their wife depends more
on their normative commitment to the marriage ideal than does women’s devotion to their husbands.
62

Simply put, men and women who marry for life are more likely to experience a happy marriage than men
and women who marry “so long as they both shall love.”
What is clear is that marriage improves the lives of those men and women who accept its obligations, es-
pecially those who seek the economic, emotional, and health benefits of modern life. Perhaps some modern
men do not believe they need to be domesticated or do not wish to be burdened with the duties of child-
rearing; and perhaps some modern women do not believe they need the security that a good marriage
uniquely offers or fear that family life will interfere with their careers. But the data suggest that such desires
can sometimes lead men and women astray, and that those who embrace marriage live happier lives than
those who seek a false freedom in bachelorhood, cohabitation, or divorce.
Te Public Consequences of Marital Breakdown
Te public consequences of the recent retreat from marriage are substantial. As the evidence shows, marital
breakdown reduces the collective welfare of our children, strains our justice system, weakens civil society,
and increases the size and scope of governmental power.
Te numbers are indeed staggering. Every year in the United States, more than one million children see
their parents divorce and 1.5 million children are born to unmarried mothers. Te collective consequences
of this family breakdown have been catastrophic, as demonstrated by myriad indicators of social well-being.
Take child poverty. One recent Brookings survey indicates that the increase in child poverty in the United
States since the 1970s is due almost entirely to declines in the percentage of children reared in married
families, primarily because children in single-parent homes are much less likely to receive much material
support from their fathers.
63

Or take adolescent well-being. Penn State sociologist Paul Amato estimated how adolescents would fare
if our society had the same percentage of two-parent biological families as it did in 1960. His research in-
dicates that this nation’s adolescents would have 1.2 million fewer school suspensions, 1 million fewer acts
of delinquency or violence, 746,587 fewer repeated grades, and 71,413 fewer suicides.
64
Similar estimates
could be done for the collective effect of family breakdown on teen pregnancy, depression, and high school
dropout rates. Te bottom line is this: children have paid a heavy price for adult failures to get and stay
married.
Public safety and our justice system have also been affected by the retreat from marriage. Even though
crime rates have fallen in recent years, the percentage of the population in jail has continued to rise: from .9
percent of the population in 1980 to 2.4 percent in 2003, which amounts to more than 2 million men and
women.
65
Public expenditures on criminal justice—police, courts, and prisons—rose more than 350 percent
in the last 20 years, from $36 billion in 1982 to $167 billion in 2001.
66
Empirical research on family and
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crime strongly suggests that crime is driven in part by the breakdown of marriage. George Akerlof, a Nobel
laureate in economics, argues that the crime increase in the 1970s and 1980s was linked to declines in the
marriage rate among young working-class and poor men.
67
Harvard sociologist Robert Sampson concludes
from his research on urban crime that murder and robbery rates are closely linked to family structure. 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.”
68
Te close empirical connection between family breakdown and crime
suggests that increased spending on crime-fighting, imprisonment, and criminal justice in the United States
over the last 40 years is largely the direct or indirect consequence of marital breakdown.
Public spending on social services also has risen dramatically since the 1960s, in large part because of in-
creases in divorce and illegitimacy. Estimates vary regarding the costs to the taxpayer of family breakdown,
but they clearly run into the many billions of dollars. One Brookings study found that the retreat from mar-
riage was associated with an increase of $229 billion in welfare expenditures from 1970 to 1996.
69
Another
study found that local, state, and federal governments spend $33 billion per year on the direct and indirect
costs of divorce—from family court costs to child support enforcement to TANF and Medicaid.
70
Increases
in divorce also mean that family judges and child support enforcement agencies play a deeply intrusive role
in the lives of adults and children affected by divorce, setting the terms for custody, child visitation, and child
support for more than a million adults and children every year. Clearly, when the family fails to govern itself,
government steps in to pick up the pieces.
Te link between the size and scope of the state and the health of marriage as an institution is made even
more visible by looking at trends outside the United States. Countries with high rates of illegitimacy and
divorce, such as Sweden and Denmark, spend much more money on welfare expenditures, as a percentage
of their GDP, than countries with relatively low rates of illegitimacy and divorce, such as Spain and Japan.
71

Although there has been no definitive comparative research on state expenditures and family structure,
and despite that factors such as religion and political culture may confound this relationship, the correla-
tion between the two is suggestive. Of course, we also suspect that the relationship between state size and
family breakdown runs both ways. For instance, earlier research on Scandinavian countries by sociologists
David Popenoe and Alan Wolfe suggests that increases in state spending are associated with declines in
the strength of marriage and family.
72
Taken together, the retreat from marriage seems to go hand in hand
with more expensive and more intrusive government; family breakdown goes hand in hand with growing
hardship in disadvantaged communities, making the call for still more government intervention even more
irresistible. It is a pathological spiral, one that only a restoration of marriage can hope to reverse.
Four Treats to Marriage
Until forty years ago, marriage governed sex, procreation, and child-rearing for the vast majority of adults. In
recent years, marriage’s hold on these three domains of social life has weakened, with serious negative conse-
quences for society as a whole. Four developments—the sad effect of decoupling marriage, sex, procreation,
and child-bearing—are especially troubling: divorce, illegitimacy, cohabitation, and same-sex marriage.
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Divorce. From 1960 to 2000, the divorce rate more than doubled in the United States, from about 20 per-
cent to about 45 percent of all first marriages. (Note: Te divorce rate has declined modestly since 1980.)
Te data suggests that approximately two-thirds of all divorces involving children break up low-conflict
marriages where domestic violence or emotional abuse is not a factor in the divorce.
73
Unfortunately, these
children seem to bear the heaviest burden from the divorce of their parents.
74
Children from broken homes
are significantly more likely to divorce as adults, to experience marital problems, to suffer from mental ill-
ness and delinquency, to drop out of high school, to have poor relationships with one or both parents, and
to have difficulty committing themselves to a relationship.
75
Furthermore, in most respects, remarriage is
no help to children of divorce. Children who grow up in stepfamilies experience about the same levels of
educational failure, teenage pregnancy, and criminal activity as children who remain in a single-parent fam-
ily after a divorce.
76

Divorce is also associated with poverty, depression, substance abuse, and poor health among adults.
77
More
broadly, widespread divorce poisons the larger culture of marriage, insofar as it sows distrust, insecurity, and
a low-commitment mentality among married and unmarried adults.
78
Couples who take a permissive view
of divorce are significantly less likely to invest themselves in their marriages and less likely to be happily
married themselves.
79
For all these reasons, divorce threatens marriage, hurts children, and has had dire
consequences for the nation as a whole.
Illegitimacy (non-marital child-bearing). From 1960 to 2003, the percentage of children born out of wedlock
rose from 5 to 35 percent.
80
Although growing numbers of children born out of wedlock are born into co-
habiting unions—42 percent according to one recent estimate—most children born outside of marriage will
spend the majority of their childhood in a single parent home, in part because the vast majority of cohabit-
ing unions, even ones involving children, end in dissolution.
81
Te biggest problem with illegitimacy is that
it typically denies children the opportunity to have two parents who are committed daily to their emotional
and material welfare.
82
As noted above, children raised in single-parent families without the benefit of a
married mother and father are two to three times more likely to experience serious negative life outcomes
such as imprisonment, depression, teenage pregnancy, and high school failure, compared to children from
intact, married families—even after controlling for socioeconomic factors that might distort the relationship
between family structure and child well-being.
83

Non-marital child-bearing also has negative consequences for men and women. Women who bear children
outside of marriage are significantly more likely to experience poverty, to drop out of high school, and to
have difficulty finding a good marriage partner, even when compared to women from similar socioeconomic
backgrounds.
84
Men who father children outside of marriage are significantly more likely to experience
educational failure, earn less, and have difficulty finding a good marriage partner, even after controlling for
socioeconomic factors.
85
Taken together, the rise of illegitimacy has been disastrous for children and adults,
men and women, individuals and society.
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Cohabitation. Since the early 1970s, cohabitation has increased more than nine-fold in the United States,
from 523,000 couples in 1970 to five million couples in 2004.
86
Recent estimates suggest that 40 percent of
children will spend some time growing up with one or both parents in a cohabiting union.
87
Te growth of
cohabitation in the United States is an unwelcome development. Adults in cohabiting unions face higher
rates of domestic violence, sexual infidelity, and instability, compared to couples in marital unions.
88
Most
studies find that cohabiting couples who go on to marry also face a higher risk of divorce, compared to
couples who marry without cohabiting (although the risk of divorce for couples who only cohabit after
an engagement does not appear to be higher than for married couples who did not cohabit).
89
Cohabiting
unions are typically weaker than marriages, and appear more likely to lead to poor relationship outcomes.
Cohabitation does not entail the same level of moral and legal commitment as marriage, couples often do
not agree about the status of their relationship, and cohabiting couples do not receive as much social support
from friends and family for their relationship as do married couples.
90

Cohabiting unions are particularly risky for children. Children reared by cohabiting couples are more likely
to engage in delinquent behavior, be suspended from school, and cheat in school, compared to children
reared by a married mother and father.
91
Children cohabiting with an unrelated adult male face dramati-
cally higher risks of sexual or physical abuse, compared to children in intact, married families. For instance,
one Missouri study found that preschool children living in households with unrelated adults (typically a
mother’s boyfriend) were nearly 50 times more likely to be killed than were children living with both bio-
logical parents.
92
Children also suffer from the instability associated with cohabiting unions. Even when
children are born into cohabiting households headed by both their biological parents, they are likely to see
one of their parents depart from the relationship. One recent study found that 50 percent of children born
to cohabiting couples see their parents break up by their fifth year, compared to just 15 percent of children
born to a marital union.
93
For all these reasons, cohabiting unions are not a good alternative to marriage but
are a threat, and they surely do not provide a good environment for the rearing of children.
Same-Sex Marriage. Although the social scientific research on same-sex marriage is in its infancy, there are
a number of reasons to be concerned about the consequences of redefining marriage to include same-sex
relationships. First, no one can definitively say at this point how children are affected by being reared by
same-sex couples. Te current research on children reared by them is inconclusive and underdeveloped—
we do not yet have any large, long-term, longitudinal studies that can tell us much about how children are
affected by being raised in a same-sex household.
94
Yet the larger empirical literature on child well-being
suggests that the two sexes bring different talents to the parenting enterprise, and that children benefit from
growing up with both biological parents. Tis strongly suggests that children reared by same-sex parents
will experience greater difficulties with their identity, sexuality, attachments to kin, and marital prospects as
adults, among other things. But until more research is available, the jury is still out.
Yet there remain even deeper concerns about the institutional consequences of same-sex marriage for mar-
riage itself. Same-sex marriage would further undercut the idea that procreation is intrinsically connected
to marriage. It would undermine the idea that children need both a mother and a father, further weakening
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the societal norm that men should take responsibility for the children they beget. Finally, same-sex marriage
would likely corrode marital norms of sexual fidelity, since gay marriage advocates and gay couples tend to
downplay the importance of sexual fidelity in their definition of marriage. Surveys of men entering same-
sex civil unions in Vermont indicate that 50 percent of them do not value sexual fidelity, and rates of sexual
promiscuity are high among gay men.
95
For instance, Judith Stacey, professor of sociology at New York
University and a leading advocate of gay marriage, hopes that same-sex marriage will promote a “pluralist
expansion of the meaning, practice, and politics of family life in the United States” where “perhaps some
might dare to question the dyadic limitations of Western marriage and seek some of the benefits of extended
family life through small group marriages. . . .”
96
Our concerns are only reinforced by the legalization of same-sex marriage in Belgium, Canada, the Neth-
erlands, and Spain—and its legalization in the Commonwealth of Massachusetts. Same-sex marriage has
taken hold in societies or regions with low rates of marriage and/or fertility.
97
For instance, Belgium, Cana-
da, Massachusetts, the Netherlands, and Spain all have fertility rates well below the replacement level of 2.1
children per woman.
98
Tese are societies in which child-centered marriage has ceased to be the organizing
principle of adult life. Seen in this light, same-sex marriage is both a consequence of and further stimulus
to the abolition of marriage as the preferred vehicle for ordering sex, procreation, and child-rearing in the
West. While there are surely many unknowns, what we do know suggests that embracing same-sex marriage
would further weaken marriage itself at the very moment when it needs to be most strengthened.
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IV. ANALYSIS FROM POLITICAL AND MORAL PHILOSOPHY:
THE INTRINSIC GOODS OF MARRIAGE
Te empirical evidence in support of marriage is clear. When it comes to the myriad goods of modern social
life—economic well-being, safety and security, personal happiness, flourishing community, limited govern-
ment—marriage is a boon to adults and especially children. But the rational defense of marriage need not be
based solely in data about its utility, and those who choose to marry are not usually motivated, first and fore-
most, by any utilitarian calculus. Only when marriage is valued as good in itself, and not simply as a means
to other good ends, will children, adults, and societies reap its profound benefits. Tis requires defenders
of marriage—teachers, poets, religious leaders, parents and grandparents, role models of every kind—to
describe and defend why marriage is a choice-worthy way of life in terms that resonate with lived human
experience. Some moral philosophers have engaged in extended reflection on the nature of marriage as a
profound human good, seeking by precise analysis to better understand what most people accept as a matter
of commonsense. Not all signatories to this statement accept this natural law approach or perspective, but
we include it here since it represents a view that some thoughtful supporters of marriage find compelling.
Marriage offers men and women as spouses a good they can have in no other way: a mutual and complete
giving of the self. Tis act of reciprocal self-giving is made solemn in a covenant of fidelity, a vow to stand
by one another as husband and wife amid life’s joys and sorrows, and to raise the children that may come
as the fruit of this personal, sexual, and familial union. Marriage binds two individuals together for life, and
binds them jointly to the next generation that will follow in their footsteps. Marriage elevates, orders, and
at times constrains our natural desires to the higher moral end of fidelity and care.
Te marriage vow by its nature includes permanence and exclusivity: A couple would lose the very good
of the union they seek if they saw their marriage as temporary, or as open to similar sharing with others.
What exactly would a temporary promise to love mean? Would it not reduce one’s spouse to a source of
pleasure for oneself, to be desired and kept only so long as one’s own desires are fulfilled? By weakening the
permanence of marriage, the contemporary culture of divorce undermines the act of self-giving that is the
foundation of marriage. Te marriage vow, seen as binding, is meant to secure some measure of certainty
in the face of life’s many unknowns—the certainty that this unknown future will be faced together until
death separates. At the same time, marriage looks beyond the married couple themselves to their potential
offspring, who secure the future from this generation to the next.
Marriage is thus by its nature sexual. It gives a unique unitive and procreative meaning to the sexual drive,
distinguishing marriage from other close bonds. Te emotional, spiritual, and psychological closeness of a
married couple is realized in the unique biological unity that occurs between a man and a woman united
as husband and wife in sexual intercourse. In marital sexual union, the love of husband and wife is given
concrete embodiment. Our bodies are not mere instruments. Our sexual selves are not mere genitalia. Male
and female are made to relate to and complete one another, to find unity in complementarity and comple-
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mentarity in sexual difference. Te same sexual act that unites the spouses is also the act that creates new life.
Sharing of lives is, in sex, also a potential sharing of life. In procreation, marital love finds its highest realiza-
tion and expression. In the family, children find the safety, security, and support they need to reach their full
potential, grounded in a public, prior commitment of mother and father to become one family together.
Tis deeper understanding of marriage is not narrowly religious. It is the articulation of certain universal
truths about human experience, an account of the potential elevation of human nature in marriage that all
human beings can rationally grasp. Many secular-minded couples desire these extraordinary things from
marriage: a permanent and exclusive bond of love that unites men and women to each other and to their
children.
But marriage cannot survive or flourish when the ideal of marriage is eviscerated. Radically different under-
standings of marriage, when given legal status, threaten to create a culture in which it is no longer possible
for men and women to understand the unique goods that marriage embodies: the fidelity between men and
women, united as potential mothers and fathers, bound to the children that the marital union might pro-
duce. Maintaining a culture that endorses the good of marriage is essential to ensuring that marriage serves
the common good. And in a free society such as our own, a strong marriage culture also fosters liberty by
encouraging adults to govern their own lives and rear their children responsibly.
As honest advocates of same-sex marriage have conceded, to abandon the conjugal conception of marriage—
the idea of marriage as a union of sexually complementary spouses—eliminates any ground of principle for
limiting the number of partners in a marriage to two. It would open the door to legalizing polygamy and
polyamory (group marriage), and produce a culture in which marriage loses its significance and standing,
with disastrous results for children begotten and reared in a world of post-marital chaos.
Te law has a crucial place in sustaining this deeper understanding of marriage and its myriad human goods.
Te law is a teacher, instructing the young either that marriage is a reality in which people can choose to
participate but whose contours individuals cannot remake at will, or teaching the young that marriage is a
mere convention, so malleable that individuals, couples, or groups can choose to make of it whatever suits
their desires, interests, or subjective goals of the moment.
Even as we defend the good of marriage as a way of life for individual men and women, therefore, we can-
not ignore the culture and polity that sustain that way of life. Oxford University philosopher Joseph Raz, a
self-described liberal, is rightly critical of those forms of liberalism which suppose that law and government
can and should be neutral with respect to competing conceptions of moral goodness. As he put it:
Monogamy, assuming that it is the only valuable form of marriage, cannot be practiced by
an individual. It requires a culture which recognizes it, and which supports it through the
public’s attitude and through its formal institutions.
99

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Professor Raz’s point is that if monogamy is indeed a key element in a sound understanding of marriage,
this ideal needs to be preserved and promoted in law and in policy. Te marriage culture cannot flourish in
a society whose primary institutions, including universities, courts, legislatures, and religious institutions,
not only fail to defend marriage but actually undermine it both conceptually and in practice. Te young will
never learn what it means to get married and stay married, to live in fidelity to the spouse they choose and
the children they must care for, if the social world in which they come of age treats marriage as fungible or
insignificant.
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V. AMERICAN EXCEPTIONALISM AND THE WAY FORWARD
When it comes to family life, the great paradox of our time is this: Every society (including our own) that
we think is generally best for human flourishing—stable, democratic, developed, and free—is experiencing
a radical crisis around human generativity: enormous increases in family fragmentation and fatherlessness,
usually coupled with the collapse of fertility to levels which, if continued, spell demographic and social de-
cline. Suddenly, developed nations are finding themselves unable to accomplish the great, simple task that
every human society must do: bring young men and women together to marry and raise the next generation
together.
Te United States has in some ways been the leader in this retreat from marriage, but in other ways (espe-
cially in recent years) has shown signs of unusual, renewed vitality. We are the only Western nation we know
of with a “marriage movement.”
100
We are the only large, developed nation to experience a sustained rise in
fertility back to near-replacement levels.
Te great task for American exceptionalism in our generation is to sustain and energize this movement for
the renewal of marriage. We need to transmit a stronger, healthier, and more loving marriage culture to the
next generation, so that each year more children are raised by their own mother and father united by a loving
marriage, and so those children can grow up to have flourishing marriages themselves.
Creating such a marriage culture is not the job for government. Families, religious communities, and civic
institutions, along with intellectual, moral, religious, and artistic leaders, need to point the way. But law and
public policy will either reinforce and support these goals or undermine them. We call upon our nation’s leaders,
and our fellow citizens, to support public policies that strengthen marriage as a social institution. Tis nation
must re-establish the normative understanding of marriage as the union of a man and a woman, intended
for life, welcoming and raising together those children who are the fruit of their self-giving love, children
who might aspire to marry and raise children of their own, renewing the lifecycle and extending the family
tree from generation to generation.
In particular, we single out five areas for special attention:
1. Protect the public understanding of marriage as the union of one man with one woman as husband
and wife.
Te law’s understanding of marriage is powerful. Judges should not attempt to redefine marriage by im-
posing a new legal standard of what marriage means, or falsely declaring that our historic understanding
of marriage as the union of one man and one woman is rooted in animus or unreason. Nor should the law
send a false message to the next generation that marriage itself is irrelevant or secondary, by extending
marriage benefits to couples or individuals who are not married.
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a. Resist legislative attempts to create same-sex marriage; use legislative mechanisms to protect the
institution of marriage as a union of a male and a female as sexually complementary spouses. We urge
our elected officials to support legislation that will properly define and promote a true conception of
marriage. Likewise, we call on our elected representatives to vote against any bills that would deviate
from this understanding of marriage. (We do not object to two or more persons, whether related or
not, entering into legal contracts to own property together, share insurance, make medical decisions
for one another, and so on.)
b. End the court-created drive to create and impose same-sex marriage. We call on courts directly to
protect our understanding of marriage as the union of husband and wife. Radical judicial experiments
that coercively alter the meaning of marriage are bound to make creating and sustaining a marriage
culture more difficult, especially when such actions are manifestly against the will of the American
people.
c. Refuse to extend marital legal status to cohabiting couples. Powerful intellectual institutions in fam-
ily law, including the American Law Institute, have proposed that America follow the path of many
European nations and Canada in easing or erasing the legal distinction between marriage and cohabi-
tation. But we believe it is unjust as well as unwise to either (a) impose marital obligations on people
who have not consented to them or (b) extend marital benefits to couples who are not married.
2. Investigate divorce law reforms.
Under America’s current divorce system, courts today provide less protection for the marriage contract
than they do for an ordinary business contract. Some of us support a return to a fault-based divorce
system, others of us do not. But all of us recognize that the current system is a failure in both practical
and moral terms, and deeply in need of reform. We call for renewed efforts to discover ways that law can
strengthen marriage and reduce unnecessarily high rates of divorce. We affirm that protecting women
and children from domestic violence is a critically important goal. But because both children and adults
in non-marital unions are at vastly increased risk for both domestic violence and abuse, encouraging high
rates of family fragmentation is not a good strategy for protecting women from violent men, or children
from abusive homes.
Among the proposals we consider worthy of more consideration:
a. Extend waiting periods for unilateral no-fault divorce. Require couples in nonviolent marriages to
attend (religious, secular, or public) counseling designed to resolve their differences and renew their
marital vows.
b. Permit the creation of prenuptial covenants that restrict divorce for couples who seek more exten-
sive marriage commitments than current law allows. (Te enforcement by secular courts of Orthodox
Jewish marriage contracts may provide a useful model).
c. Expand court-connected divorce education programs to include divorce interventions (such as
PAIRS or Retrouvaille) that help facilitate reconciliations as well as reducing acrimony and litigation.
d. Apply standards of fault to the distribution of property, where consistent with the best interests
of children. Spouses who are abusive or unfaithful should not share marital property equally with
innocent spouses.
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e. Create pilot programs on marriage education and divorce interventions in high-risk communi-
ties, using both faith-based and secular programs; track program effectiveness to establish ”best prac-
tices“ that could be replicated elsewhere.
3. End marriage penalties for low-income Americans.
To address the growing racial and class divisions in marriage, federal and state governments ought to act
quickly to eliminate the marriage penalties embedded in means-tested welfare and tax policies—such as the
Earned Income Tax Credit (EITC) and Medicaid—that affect couples with low and moderate incomes.
101
It
is unconscionable that government levies substantial financial penalties on low-income parents who marry.
Other approaches to strengthening marriage for couples and communities at risk include public informa-
tion campaigns, marriage education programs, and jobs programs for low-income couples who wish to get
and stay married. Experimenting with such new initiatives allows scholars to determine which measures are
best suited to the task at hand.
102

4. Protect and expand pro-child and pro-family provisions in our tax code.
5. Protect the interests of children from the fertility industry.
Treating the making of babies as a business like any other is fundamentally inconsistent with the dignity
of human persons and the fundamental needs of children. Among the proposals we urge Americans to
consider, following in the footsteps of countries such as Italy and Sweden:
a. Ban the use of anonymous sperm and egg donation for all adults. Children have a right to know
their biological origins. Adults have no right to strip children of this knowledge to satisfy their own
desires for a family.
b. Consider restricting reproductive technologies to married couples.
c. Refuse to create legally fatherless children. Require men who are sperm donors (and/or clinics as
their surrogates) to retain legal and financial responsibility for any children they create who lack a
legal father.
Te most important changes underwriting the current United States fertility industry are not technological;
rather they are social and legal. Both law and culture have stressed the interests of adults to the exclusion
of the needs and interests of children. Parents seeking children deserve our sympathy and support. But we
ought not, in doing so, deliberately create an entire class of children who are deprived of their natural human
right to know their own origins and their profound need for devoted mothers and fathers.
In sum, families, religious communities, community organizations, and public policymakers must work to-
gether toward a great goal: strengthening marriage so that each year more children are raised by their own
mother and father in loving, lasting marital unions. Te future of the American experiment depends upon
it. And our children deserve nothing less.
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NOTES
1 Steven L. Nock. 2005. “Marriage as a Public Issue.” Te Future of Children15: 13–32.
2 W. Bradford Wilcox et al. 2005. Why Marriage Matters, Second Edition: Twenty-Six Conclusions from the Social
Sciences. New York: Institute for American Values. Lorraine Blackman, Obie Clayton, Norval Glenn, Linda
Malone-Colon, and Alex Roberts. 2005. Te Consequences of Marriage for African Americans: A Comprehensive
Literature Review. New York: Institute for American Values.
3 David Popenoe. 1988. Disturbing the Nest: Family Change and Decline in Modern Societies. Aldine de Gruyter.
Alan Wolfe. 1989. Whose Keeper? Social Science and Moral Obligation. Berkeley: University of California
Press.
4 http://www.law2.byu.edu/marriage_family/Charles%20Reid.pdf. W. Bradford Wilcox and Steven L. Nock.
2006. “What’s Love Got to Do with It? Ideology, Equity, Gender, and Women’s Marital Happiness.” Social
Forces 84: 1321–1345. Vaughn R.A. Call and Tim B. Heaton. 1997. “Religious Influence on Marital Stability.”
Journal for the Scientific Study of Religion 36: 382–392.
5 W. Bradford Wilcox et al. 2005.
6 Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, 2002. “Marriage from a Child’s Perspective:
How Does Family Structure Affect Children, and What Can be Done about It?” Research Brief, June 2002.
Washington, DC: Child Trends. p. 6.
7 For summaries from Brookings and Princeton, see Sara McLanahan, Elisabeth Donahue, and Ron Haskins.
2005. “Introducing the Issue.” Te Future of Children 15: 3–12. For the Center for Law and Social Policy’s
statement, see Mary Parke. 2003. Are Married Parents Really Better for Children? Washington, DC: Center for
Law and Social Policy. For the Institute for American Values’ statement, see Wilcox et al. 2005.
8 Elizabeth Marquardt. 2005a. Family Structure and Children’s Educational Outcomes. New York: Institute for
American Values.
9 Ibid.
10 Sara McLanahan and Gary Sandefur. 1994. Growing Up with a Single Parent. Cambridge: Harvard University
Press.
11 Wilcox et al. 2005. Elizabeth Marquardt. 2005b. Between Two Worlds: Te Inner Lives of Children of Divorce.
New York: Crown.
12 Gunilla Ringback Weitoft, Anders Hjern, Bengt Haglund, and Mans Rosen. 2003. “Mortality, Severe
Morbidity, and Injury in Children Living with Single Parents in Sweden: A Population-Based Study.” Te
Lancet 361: 289–295.
13 Sara McLanahan. 1997. “Parent Absence or Poverty: Which Matters More?” In G. Duncan and J. Brooks-
Gunn, Consequences of Growing Up Poor. New York: Russell Sage.
14 Kyle Pruett. 2000. Fatherneed. New York: Broadway. P. 207. See also Marquardt. 2005b and David Popenoe.
1996. Life Without Father. Cambridge: Harvard University Press.
15 Pruett. 2000. Pp. 204–208.
16 Bruce Ellis. 2002. “Timing of Pubertal Maturation in Girls: An Integrated Life History Approach.” Psychology
Bulletin 130: 920–958.
17 McLanahan and Sandefur. 1994. Bruce Ellis et al. 2003. “Does Father Absence Place Daughters at Special Risk
for Early Sexual Activity and Teenage Pregnancy?” Child Development 74: 801–821.
18 Ellis et al. 2003.
19 Wilcox et al. 2005.
20 Marquardt. 2005a. Paul Amato. 2005. “Te Impact of Family Formation Change on the Cognitive, Social, and
Emotional Well-Being of the Next Generation.” Te Future of Children 15: 75–96.
21 Cynthia Harper and Sara McLanahan. 2004. “Father Absence and Youth Incarceration.” Journal of Research on
Adolescence 14: 369–397.
22 Harper and McLanahan. 2004.
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23 Brian D’Onofrio et al. 2006. “A Genetically Informed Study of the Processes Underlying the Association
between Parental Marital Instability and Offspring Adjustment.” Developmental Psychology. Forthcoming.
Brian D’Onofrio et al. 2005. “A Genetically Informed Study of Marital Instability and Its Association With
Offspring Psychopathology.” Journal of Abnormal Psychology. 114: 570–586.
24 Wilcox et al. 2005. McLanahan and Sandefur. 1994.
25 Wilcox et al. 2005. Popenoe. 1996.
26 Sandra Hofferth and Kermyt Anderson. 2003. “Are All Dads Equal? Biology Versus Marriage as a Basis for
Paternal Involvement.” Journal of Marriage and Family 65: 213–232. Wilcox et al. 2005.
27 Ross Parke. 1996. Fatherhood. Cambridge: Harvard University Press. p.101.
28 Hofferth and Anderson. 2003.
29 Valarie King and Holly Heard. 1999. “Nonresident Father Visitation, Parental Conflict, and Mother’s
Satisfaction: What’s Best for Child Well-Being?” Journal of Marriage and the Family 61: 385–396. Elaine
Sorenson and Chava Zibman. 2000. To What Extent Do Children Benefit from Child Support? Washington, DC:
Te Urban Institute.
30 Paul Amato. 1998. “More Tan Money? Men’s Contributions to Teir Children’s Lives.” In Alan Booth and
A.C. Crouter, (Eds.), Men in Families: When Do Tey Get Involved? What Difference Does It Make? Mahwah, NJ:
Lawrence Erlbaum Associates. Belsky, J., Youngblade L., Rovine, M., & Volling, B. 1991. Patterns of Marital
Change and Parent-Child Interaction. Journal of Marriage and the Family 53: 487–498. Wilcox et al. 2005.
31 Eleanor Maccoby. 1998. Te Two Sexes: Growing Up Apart, Coming Together. Cambridge: Harvard University.
32 David Geary. 1998. Male, Female: Te Evolution of Human Sex Differences. Washington, DC: American
Psychological Association. P. 104.
33 Wade Horn and Tom Sylvester. 2002. Father Facts. Gaithersburg, MD: National Fatherhood Initiative. P.
153. Popenoe. 1996. P. 145. Tomas G. Powers et al.1994. “Compliance and Self-Assertion: Young Children’s
Responses to Mothers Versus Fathers.” Developmental Psychology 30: 980–989.
34 Pruett. 2000. Pp. 30–31. Popenoe. 1996. Pp. 144–145.
35 Geary. 1998. P. 142.
36 Anne Case et al. 2000. “How Hungry is the Selfish Gene?” Economic Journal 110: 781–804. Wilcox et al. 2005.
37 Bruce Ellis. 2002. “Of Fathers and Pheromones: Implications of Cohabitation for Daughters’ Pubertal Timing.”
In A. Booth and A. Crouter (eds.) Just Living Together: Implications of Cohabitation on Families, Children, and
Social Policy. Mahwah, NY: Lawrence Erlbaum Associates.
38 McLanahan and Sandefur. 1994. p. 38, (emphasis supplied).
39 Wilcox et al. 2005.
40 Wilcox et al. 2005.
41 Michelle J. Budig and Paula England. 2001. “Te Wage Penalty for Motherhood.” American Sociological Review
66: 204–225.
42 Wilcox et al. 2005.
43 Waite and Gallagher. 2000.
44 Ibid.
45 Ibid.
46 Ibid.
47 Ibid.
48 Ibid.
49 Wilcox et al. 2005. Daniel N. Hawkins and Alan Booth. 2005. “Unhappily Ever After: Effects of Long-Term
Low-Quality Marriages on Well-Being.” Social Forces 84: 451–472.
50 George Akerlof et al. Nock. 1998. Linda Waite and Maggie Gallagher. 2000. Te Case for Marriage. New York:
Doubleday.
51 Nock. 1998.
52 Waite and Gallagher. 2000.
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53 Nock. 1998.
54 Nock. 1998.
55 Wilcox et al. 2005.
56 James Dabbs. 2000. Heroes, Rogues, and Lovers: Testosterone and Behavior. New York: McGraw-Hill.
57 Waite and Gallagher. 2000. p. 152.
58 Waite and Gallagher. P. 155.
59 Ibid.
60 Wilcox and Nock. 2006.
61 Ibid. Paul Amato and Stacy Rogers. 1999. “Do Attitudes Toward Divorce Affect Marital Quality?” Journal of
Family Issues 20: 69–86.
62 Scott Stanley et al. 2004. “Maybe I do: Interpersonal commitment and premarital or nonmarital cohabitation.”
Journal of Family Issues 25: 496–519. Wilcox et al. 2005.
63 Adam Tomas and Isabel Sawhill. 2005. “For Love and Money? Te Impact of Family Structure on Family
Income.” Te Future of Children 15: 57–74.
64 Amato. 2005. p. 89.
65 Charles Murray. 2005. “Te Hallmark of the Underclass.” Wall Street Journal Sept. 29: A18.
66 http://www.ojp.usdoj.gov/bjs/glance/tables/exptyptab.htm
67 George A. Akerlof. 1998. “Men Without Children.” Te Economic Journal 108: 287–309.
68 Robert J. Sampson. 1995. “Unemployment and Imbalanced Sex Ratios: Race Specific Consequences for Family
Structure and Crime.” In M.B. Tucker and C. Mitchell-Kernan (eds.). Te Decline in Marriage among African
Americans. New York: Russell Sage. P. 249.
69 Isabel V. Sawhill. 1999. “Families at Risk.” In H. Aaron and R. Reischauer, Setting National Priopities: the 2000
Election and Beyond. Washington: Brookings Institution.
70 David Schramm. 2003. Preliminary Estimates of the Economic Consequences of Divorce. Utah State University.
71 For family trends, see Timothy M. Smeeding, Daniel P. Moynihan, and Lee Rainwater. 2004. “Te Challenge
of Family System Changes for Research and Policy.” In D.P. Moynihan, T. M. Smeding, and L. Rainwater
(eds.), Te Future of the Family. New York: Russell Sage. For information on state spending around the globe,
see http://www.cia.gov/cia/publications/factbook/.
72 Popenoe. 1988. Wolfe. 1989.
73 Paul Amato and Alan Booth. 1997. A Generation at Risk. Cambridge: Harvard University Press.
74 Ibid.
75 Wilcox et al. 2005. Marquardt. 2005b. Between Two Worlds.
76 Wilcox et al. 2005. Sara McLanahan and Gary Qandefur. 1994. Growing Up With a Single Parent: What Hurts,
What Helps. Cambridge: Harvard University Press.
77 Ibid.
78 Norval Glenn. 1996. “Values, Attitudes, and the State of American Marriages.” In Promises to Keep, edited
by D. Popenoe, J. Elshtain, and D. Blankenhorn. Lanham, MD: Rowman and Littlefield. Frank Furstenberg.
2001. “Te Fading Dream: Prospects for Marriage in the Inner City.” In Problem of the Century, edited by E.
Anderson and D. Massey. New York: Russell Sage Foundation.
79 Wilcox et al. 2005.
80 David Popenoe and Barbara Dafoe Whitehead. 2005. Te State of Our Unions. New Brunswick, NJ: National
Marriage Project.
81 Timothy M. Smeeding, Daniel P. Moynihan, and Lee Rainwater. 2004. “Te Challenge of Family System
Changes for Research and Policy.” In Te Future of the Family, edited by D. Moynihan, T. Smeeding, and L.
Rainwater . New York: Russell Sage Foundation. Popenoe and Whitehead. 2005. Wilcox et al. 2005.
82 Wilcox et al. 2005.
83 Wilcox et al. 2005.
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84 Daniel Lichter. Daniel T. Lichter, Deborah Roempke Graefe, and J. Brian Brown. 2003. “Is Marriage a
Panacea? Union Formation Among Economically Disadvantaged Unwed Mothers,” Social Problems 50: 60–86.
Daniel T. Lichter, Christie D. Batson, and J. Brian Brown. 2004. “Welfare Reform and Marriage Promotion:
Te Marital Expectations and Desires of Single and Cohabiting Mothers.” Social Service Review 38: 2–25.
Lawrence L. Wu and Barbara Wolfe. 2001. Out of Wedlock: Causes and Consequences of Nonmarital Fertility. New
York: Russell Sage Foundation.
85 Steven L. Nock. 1998. “Te Consequences of Premarital Fatherhood,” American Sociological Review, 63:
250–263.
86 Popenoe and Whitehead. 2005.
87 Larry Bumpass and Hsien-Hen Lu. 2000. “Trends in Cohabitation and Implications for Children’s Family
Contexts in the U.S.,” Population Studies 54: 29–41.
88 Wilcox et al. 2005.
89 David Popenoe and Barbara Dafoe Whitehead. 2002. Should We Live Together? What Young Adults Need to Know
About Cohabitation Before Marriage: A Comprehensive Review of Recent Research. New Brunswick, NJ: National
Marriage Project.
90 Popenoe and Whitehead. 2002. Wilcox et al. 2005.
91 Wilcox et al. 2005.
92 Patricia G. Schnitzer and Bernard G. Ewigman. 2005. “Child Deaths Resulting from Inflicted Injuries:
Household Risk Factors and Perpetrator Characteristics.” Pediatrics 116: 6876–93.
93 Wendy Manning, Pamela Smock, Debarum Majumdar. 2004. “Te Relative Stability of Cohabiting and
Marital Unions for Children.” Population Research and Policy Review 23: 135–159.
94 Steven Nock. 2001. Affidavit to the Ontario Superior Court of Justice regarding Halpern et al. v. Canada.
Charlottesville, VA: University of Virginia Sociology Department. William Meezan and Jonathan Rauch. 2005.
“Gay Marriage, Same-Sex Parenting, and America’s Children.” Future of Children 15: 97–115.
95 Esther Rothblum and Sondra Solomon. 2003. Civil Unions in the State of Vermont: A Report on the First Year.
University of Vermont Department of Psychology. David McWhirter and Andrew Mattison. 1984. Te Male
Couple. Prentice Hall. Andrew Sullivan. 1995. Virtually Normal. New York: Knopf, first edition.
96 Judith Stacey. 1998. “Gay and Lesbian Families: Queer Like Us.” In All Our Families: New Policies for a New
Century, edited by M.A. Mason, A. Skolnick, and S.D. Sugarman. New York: Oxford University Press. Pp. 117,
128–129.
97 Council of Europe. 2004. Recent Demographic Developments in Europe. Strasbourg: Council of Europe
Publishing. Daniel P. Moynihan, Timothy M. Smeeding, and Lee Rainwater. 2004. Te Future of the Family.
New York: Russell Sage Press.
98 Council of Europe. 2004. http://www.statcan.ca/Daily/English/050712/d050712a.htm. http://www.census.
gov/population/projections/MethTab1.xls.
99 Joseph Raz, Te Morality of Freedom (Oxford: Clarendon Press, 1986) 162.
100 http://www.americanvalues.org/pdfs/marriagemovement.pdf
101 Adam Carasso and C. Eugene Steuerle. 2005. “Te Hefty Penalty on Marriage Facing Many Households with
Children.” Future of Children 15: 157–175.
102 Sara McLanahan, Elisabeth Donahue, and Ron Haskins. 2005. “Introducing the Issue.” Te Future of Children
15: 3–12.
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SIGNATORIES
[as of July 17, 2006]
Daniel Cere, Ph.D.
Director, Institute for the Study of Marriage,|
Law and Culture,
McGill University
Lloyd R. Cohen, PhD., J.D.
Professor of Law,
George Mason University School of Law
John Coverdale, J.D., Ph.D.
Professor of Law,
Seton Hall University School of Law
Frederick C. DeCoste, M.S.W., L.L.B., L.L.M.
Professor of Law,
University of Alberta Faculty of Law
Dwight Duncan, J.D.
Professor of Law,
Southern New England School of Law
David Eggebeen, Ph.D.
Associate Professor of Human Development
and Sociology,
Penn State University
Jean Bethke Elshtain, Ph.D.
Laura Spelman Rockefeller Professor of Social
and Political Ethics, University of Chicago
Michael O. Emerson, Ph.D.
Allyn R. and Gladys M. Cline Professor of
Sociology and Founding Director of the Center
on Race, Religion, and Urban Life,
Rice University
M. Sophia Aguirre, Ph.D.
Associate Professor of Economics,
Catholic University of America
Helen Alvare, J.D.
Associate Professor of Law,
Catholic University Columbus School of Law
Hadley Arkes, Ph.D.
Ney Professor of American Institutions
and Jurisprudence,
Amherst College
Herman Belz, Ph.D.
Professor of Constitutional History,
University of Maryland at College Park
Louis Bolce, Ph.D.
Associate Professor of Political Science,
Baruch College
Gerard Bradley, J.D.
Professor of Law, Notre Dame Law School
Patrick Brennan, M.A., J.D.
Professor of Law and John F. Scarpa Chair in
Catholic Legal Studies, Villanova University
School of Law
J. Budziszewski, Ph.D.
Professor of Government and Philosophy,
University of Texas at Austin
James W. Ceaser, Ph.D.
Professor of Politics, University of Virginia
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Gene C. Fant, Jr., Ph.D.
Chair, Department of English, Union University
Tomas E. Flanagan, Ph.D.
Professor of Political Science,
University of Calgary
David F. Forte, Ph.D., JD.
Charles R. Emrick Jr.–Calfee, Halter & Griswold
Endowed Professor of Law,
Cleveland-Marshall College of Law
Elizabeth Fox-Geneovese, Ph.D.
Eléonore Raoul Professor of the Humanities and
Professor of History, Emory University
Alfred J. Freddoso, Ph.D.
John and Jean Oesterle Professor
of Tomistic Studies,
University of Notre Dame
Jorge L.A. Garcia, Ph.D.
Professor of Philosophy, Boston College
Robert P. George, J.D., D.Phil.
McCormick Professor of Jurisprudence,
Princeton University
Mary Ann Glendon, J.D., L.L.M.
Learned Hand Professor of Law,
Harvard Law School
Alfonso Gomez-Lobo, Ph.D.
Ryan Family Professor of Metaphysics and
Moral Philosophy,
Georgetown University
Lino A. Graglia, L.L.B.
A. Dalton Cross Professor of Law,
University of Texas at Austin
Earl L. Grinols, Ph.D.
Distinguished Professor of Economics, Hankamer
School of Business, Baylor University
Anne Hendershott, Ph.D.
Professor of Sociology and Director
of Urban Studies,
University of San Diego
Joseph Horn, Ph.D.
Professor of Psychology,
University of Texas at Austin
Robert Jenson, Ph.D.
Senior Scholar for Research, Emeritus, Center for
Teological Inquiry, Princeton, N.J., and Professor
of Teology Emeritus,
St. Olaf College
Byron Johnson, Ph.D.
Professor of Sociology, Director, Center for
Religious Inquiry across the Disciplines,
Baylor University
Anthony M. Joseph, Ph.D.
Associate Professor of History
Eastern University
Leon R. Kass, M.D., Ph.D.
Addie Clark Harding Professor in the Committee
on Social Tought and the College,
University of Chicago
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32
Marriage and the Public Good: Ten Principles
Robert C. Koons, Ph.D.
Professor of Philosophy,
University of Texas at Austin
Peter Augustine Lawler, Ph.D.
Dana Professor and Chair of the Government
Department and International Studies,
Berry College
Wilfred M. McClay, Ph.D.
SunTrust Chair of Excellence in Humanities
and Professor of History,
University of Tennessee at Chattanooga
Paul R. McHugh, M.D.
University Distinguished Service Professor
of Psychiatry,
Johns Hopkins University School of Medicine
Ralph McInerny, Ph.D.
Professor of Philosophy and Michael P. Grace
Professor of Medieval Studies,
University of Notre Dame
Bruce M. Metzger, Ph.D.
George L. Collord Professor Emeritus of New
Testament Language and Literature,
Princeton Teological Seminary
Robert T. Miller, J.D., M.Phil.
Assistant Professor of Law,
Villanova University School of Law
Jennifer Roback Morse, Ph.D.
Senior Research Fellow in Economics,
Te Acton Institute for the Study of Religion
and Liberty
Russell K. Nieli, Ph.D.
Lecturer, Department of Politics,
Princeton University
Steven Nock, Ph.D.
Professor of Sociology and Director of the
Marriage Matters Project, University of Virginia
David Novak, M.H.L., Ph.D.
J. Richard and Dorothy Shiff Professor of
Jewish Studies,
University of Toronto
Marvin Olasky, Ph.D.
Professor of Journalism,
University of Texas at Austin
Michael Pakaluk, Ph.D.
Associate Professor of Philosophy,
Clark University
Alexander R. Pruss, Ph.D.
Associate Professor of Philosophy,
Georgetown University
Jeremy Rabkin, Ph.D.
Professor of Government, Cornell University
Steven E. Rhoads, Ph.D.
Professor of Politics, University of Virginia
Daniel N. Robinson, Ph.D.
Philosophy Faculty, Oxford University
Distinguished Research Professor of Psychology,
Emeritus, Georgetown University
Michael A. Scaperlanda, J.D.
Professor of Law and Gene and Elaine Edwards
Family Chair in Law, Te University of
Oklahoma College of Law
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Marriage and the Public Good: Ten Principles
33
Roger Scruton, Ph.D.
Research Professor, Institute for the
Psychological Sciences
Gregory Sisk, J.D.
Professor of Law,
University of St. Tomas School of Law,
Minnesota
Katherine Shaw Spaht, J.D.
Jules F. and Frances L. Landry Professor of Law,
Louisiana State University Law Center
Richard J. Sperry, M.D., Ph.D.
Matheson Endowed Chair, Health Policy
and Management,
University of Utah
Max L. Stackhouse, Ph.D.
Rimmer and Ruth de Vries Professor of
Reformed Teology and Public Life, Princeton
Teological Seminary
Richard Stith, J.D., Ph.D.
Professor of Law,
Valparaiso University School of Law
James R. Stoner, Jr., Ph.D.
Professor of Political Science,
Louisiana State University
Seana Sugrue, L.L.B., L.L.M., D.C.L.
Associate Professor of Political Science,
Ave Maria University
Christopher O. Tollefsen, Ph.D.
Associate Professor of Philosophy,
University of South Carolina
Michael Uhlmann, J.D., Ph.D.
Research Professor in Politics and Policy,
Claremont Graduate University
Paul C. Vitz, Ph.D.
Senior Scholar, Institute for the
Psychological Sciences
Professor Emeritus of Psychology,
New York University
Lynn D. Wardle, J.D.
Bruce C. Hafen Professor of Law,
Brigham Young University
Amy Wax, J.D., M.D.
Robert Mundheim Professor of Law,
University of Pennsylvania Law School
Robert Louis Wilken, Ph.D.
William R. Keenan, Jr. Professor of History,
University of Virginia
Richard G. Wilkins, J.D.
Robert W. Barker Professor of Law
Brigham Young University
James Q. Wilson, Ph.D.
Ronald Reagan Professor of Public Policy,
Pepperdine University
Christopher Wolfe, Ph.D.
Professor of Political Science,
Marquette University
Peter Wood, Ph.D.
Provost and Professor of Anthropology
and the Humanities,
Te King’s College
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34
Marriage and the Public Good: Ten Principles
About THE WITHERSPOON INSTITUTE
Te Witherspoon Institute works to enhance public understanding of the political, moral, and philosophical
principles of free and democratic societies. It also promotes the application of these principles to contem-
porary problems.
Te Institute is named for John Witherspoon, a leading member of the Continental Congress, a signer of
the Declaration of Independence, the sixth president of Princeton University, and a mentor to James Madi-
son. As important as these and his other notable accomplishments are, however, it is Witherspoon’s com-
mitment to liberal education and his recognition of the dignity of human freedom, whether it be personal,
political, or religious, that inspire the Institute’s name.
In furtherance of its educational mission, the Witherspoon Institute supports a variety of scholarly activi-
ties. It sponsors research and teaching by means of a fellowship program; it sponsors conferences, lectures,
and colloquia; and it encourages and assists scholarly collaboration among individuals sharing the Institute’s
interest in the foundations of a free society. Te Witherspoon Institute also serves as a resource for the
media and other organizations seeking comment on matters of concern to the Institute and its associated
scholars.

BOARD OF TRUSTEES
Stephen Whelan, Esq., Chairman
Luis Tellez, President
Mark O’Brien, Vice-President
Michael Fragoso, M.D., Treasurer
John Metzger, Esq., Secretary
Michael Crofton, Trustee
Deborah Garwood, Trustee
Roger Naill, Trustee
Edward Smith, Trustee
Mark Smith, Trustee
Herbert W. Vaughan, Trustee Emeritus
Eugene Zurlo, Trustee
For more information about the work of the Witherspoon Institute, please visit www.winst.org, or call (609)
688-8779.
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A Call to the Nation
from Family and Legal Scholars
Marriage and the Law
A Statement of Principles
Institute for American Values
Institute for Marriage and Public Policy
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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:
http://www.kershisnik.com.
Layout by Josephine Tramontano.
© 2006, Institute for American Values. No repro-
duction of the materials contained herein is per-
mitted without the written permission of the
Institute for American Values.
ISBN: 1-931764-11-5
ISBN-13: 978-1-931764-11-7
For more information or additional copies, con-
tact:
Institute for American Values
1841 Broadway, Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
Email: info@americanvalues.org
Web: www.americanvalues.org
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Table of Contents
Executive Summary.....................................................................................................
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.....................................
Conclusion........................................................................................................
Appendix: Strengthening Marriage in Family Law: Proposals...................................
Endnotes......................................................................................................................
Signatories...................................................................................................................
4
6
8
12
12
14
16
19
21
22
25
27
28
29
31
39
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
X.
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H
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
of statute.
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
Page 4
Marriage and the Law
A Statement of Principles
Executive Summary
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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.
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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-
11 (1888)
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
government?
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
the law:
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.
1
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.
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1.
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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.
2
“Neutrality” is rarely an option.
3
When
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
unions.
Page 7
2.
3.
4.
5.
6.
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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
adults themselves.
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
unions.
4
II. The Failing “Family Diversity” Model
M
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.
5
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....”
6
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.
Page 8
7.
8.
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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
suffer.
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:
7
“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.”
8
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
children alone.
9
Divorce or legal separation can provide important protections for
women, as well.
10
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
problems.
11
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.
12
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.
Page 9
The “family diversity”
experiment has failed.
This is not merely our
personal view.
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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-
sonal identity.
13
(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
life.
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
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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,
and communities.
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.
Page 11
Compassion for adult
feelings cannot trump the
needs of children or the
demands of truth.
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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
I
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
children;
14
modest declines in divorce over the last twenty years;
15
increasing disap-
proval of divorce among young people (many of whom are intimately familiar with
its effects on children);
16
an increase in the number of African American children
living with married parents;
17
an increase in the number of children living with both
biological parents;
18
and an increased commitment among married couples to per-
manence (and greater happiness) than found among married people 20 years ago.
19
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
from over.
20
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
I
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
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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
marriage.
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.
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Much of family law
remains preoccupied with the
sexual choices and
rights of adults.
1.
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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
Responsibility
I
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
increasing number),
21
the story of marriage currently embedded in our family law is
largely of two rights-bearing individuals seeking personal satisfaction and making
private choices.
What’s missing from this current legal story of marriage? Three large human realities:
dependency, generativity, and responsibility.
Dependency
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
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2.
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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.
22
Generativity
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.
23
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.
Responsibility
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
Page 15
One cannot create a social
institution like marriage
simply by passing laws or
ordering it into being.
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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.
24
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
unhappy.”
25
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.
26
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.
27
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.
28
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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.
29
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.”
30
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.”
31
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.”
32
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.
33
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.
34
Exhibit C: Trends in Canadian and European Law—Equating Marriage
and Cohabitation
Several European nations and Canada, as well as Australia and New Zealand, have
recently adopted policies whereby cohabiting couples (“de facto couples”) are given
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the same (or similar) legal treatment as married couples simply by virtue of having
lived together for a specified period of time.
35
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.
36
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.
37
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.
38
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.
39
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-
laborative enterprise.”
40
The Hawaii Supreme Court is not, of course, alone. Numerous
legal scholars in recent times have advanced or assumed this view of marriage.
41
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
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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
civil marriage.”
42
Similarly a recent federal trial court opinion striking down
Nebraska’s state marriage amendment described marriage baldly as a “creature of
statute.”
43
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.
44
Indeed, supreme
court decisions in Washington and New York demonstrate
renewed respect for this understanding.
45
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
Wrong Direction?
A
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
direction?
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,
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The basic understanding of
marriage underlying much of
the current same-sex
marriage discourse is
seriously flawed.
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lest they inadvertently institutionalize and thereby perpetuate potentially harmful
social change.
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.
46
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. . . .”
47
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
is regulating.
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
few assets.
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.
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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
outside interference.
The reality of divorce in America today is that in the major-
ity of divorces, only one spouse wants to divorce.
48
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).
49
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
children.
50
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.
51
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?
G
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
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Today is a particularly apt
moment to survey the
damage, and to reassess the
goals of family law.
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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
H
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
general insights:
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
motherhood,”
52
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
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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-
riage.
53
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
culture.
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
Accomplish.
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
not true.
54
(Explaining why, as one university president famously puts it, “Nobody
washes rental cars.”
55
)
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
Page 23
Government needs to
understand that marriage
cannot be reduced to
a legal construct.
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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.
56
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
is marriage.
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
culture.
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
performance.”
57
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.
58
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
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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.”
59
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
of marriage.
X. How Does Family Law Matter?
W
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
bad man.”
60
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
policy.
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.”
61
It is “part of a
distinctive manner of imagining the real.”
62
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.
63
Page 25
The law must recognize that
it is only one of many
players that together help
create and sustain a
marriage culture.
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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.”
64
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-
tiate contracts.
65
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
mechanisms....”
66
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.
67
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.
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XI. Principles of Pro-Marriage Legal Reform: Six Criteria
L
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
square.
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.
68
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.
69
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
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b.
c.
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being born to and raised by their own married mom and dad in a reasonably har-
monious union?
70
Does not discourage childbearing (or adoption
71
) 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.
XII. Conclusion
S
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.”
72
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.
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f.
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Appendix: Strengthening Marriage in Family Law:
Proposals
T
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).
73
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
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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
marriages.
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
pregnant.
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.
74
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.
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Endnotes
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-
sex couples.
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).
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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
(Aug. 1999).
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:
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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,
1373-74 (2001).
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
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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
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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
couples.”).
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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)
(April 2004).
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).
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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
xii (1985).
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.
403 (2004).
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).
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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:
Proposed revision:
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
six months....”
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)).
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Signatories
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
University
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
Center
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
University
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
Seminary
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Page 40
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
of Law
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
Jurisprudence
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
America
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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
Law
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
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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
University
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
of Law
Charles J. Reid, Jr., Associate Professor of Law, University of St. Thomas School of Law
(Minnesota)
Thurston H. Reynolds, Professor of Law, Thomas Goode Jones School of Law, Faulkner
University
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,
Brookings Institution
Stephen F. Smith, Professor of Law and John V. Ray Research Professor, University of Virginia
School of Law
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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
Law Center
J. David Velleman, Professor of Philosophy, New York University
Robert K. Vischer, Associate Professor of Law, University of St. Thomas School of Law
(Minnesota)
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
Young University
Amy Wax, Robert Mundheim Professor of Law, University of Pennsylvania Law School
Margaret J. Weber, Professor and Dean, Graduate School of Education and Psychology,
Pepperdine University
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
Page 43
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Institute for American Values
1841 Broadway, Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
info@americanvalues.org
www.americanvalues.org
Institute for Marriage and
Public Policy
P.O. Box 1231
Manassas, VA 20108
Tel: (202) 216-9430
info@imapp.org
www.imapp.org
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
society.
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A Report from the Council on Family Law
Dan Cere, Principal Investigator
The Future of Family Law
Law and the Marriage Crisis in
North America
Institute for American Values
Institute for Marriage and Public Policy
Institute for the Study of Marriage, Law and Culture
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On the cover: Rejected Copy by Larry Rivers © Estate
of Larry Rivers/Licensed by VAGA, New York, NY.
Layout by Josephine Tramontano.
© 2005, Institute for American Values. No reproduc-
tion of the materials contained herein is permitted
without the written permission of the Institute for
American Values.
ISBN #978-1-931764-08-5
For more information or additional copies, contact:
Institute for American Values
1841 Broadway, Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
Email: info@americanvalues.org
Web: www.americanvalues.org
The Council on Family Law, chaired by Mary Ann Glendon of Harvard Law School,
is an interdisciplinary group of scholars and leaders who have come together to
analyze the purposes and current directions of family law in Canada and the United
States and to make recommendations for the future. The Council is independent and
nonpartisan. It is jointly sponsored by the Institute for American Values, the Institute
for Marriage and Public Policy, and the Institute for the Study of Marriage, Law and
Culture. This Report’s Principal Investigator, Dan Cere, teaches ethics at McGill
University in Montreal and directs the Institute for the Study of Marriage, Law and
Culture.
The Council is grateful to the Achelis and Bodman Foundations, the William H.
Donner Foundation, the JM Foundation, the Maclellan Foundation, Arthur and Joann
Rasmussen, and the William E. Simon Foundation for their generous financial support.
The research, editorial, and administrative contributions of Sara Butler and Elizabeth
Marquardt are also deeply appreciated.
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Table of Contents
Members of the Council on Family Law...............................................................................
Executive Summary...............................................................................................................
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....................................................................................
Fragmenting Parenthood...........................................................................................
Conclusion.............................................................................................................................
Recommendations.................................................................................................................
Endnotes................................................................................................................................
4
5
9
10
11
12
12
14
16
16
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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
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FAMILY LAW IS on the front pages of our newspapers and is implicated in
some of our deepest cultural conflicts, from no-fault divorce, to the status of
cohabitation to, most recently, same-sex marriage.
At their core, these ongoing disputes are fueled by competing visions of
marriage and of the role of the state in making family law.
This report on the current state of family law holds up for clear public
view the underlying, dramatically different models of marriage that are
contributing to deep public clashes over the law of marriage, cohabitation,
and parenthood. Obtaining conceptual clarity about marriage and its
meanings will allow family law experts, scholars from other disciplines,
judges, legislators, and the general public to make more informed choices
among competing legal proposals now being advanced in the United States
and Canada.
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
Executive Summary
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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.
1.
2.
3.
4.
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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
law debates?
The Conjugal View
The model of marriage broadly reflected in law and culture until quite recently
can be called the “conjugal model.” Marriage in this view is a sexual union of
husband and wife 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.
1.
2.
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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.
Conclusion
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
that debate.
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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.
1
Legal theory about the family, he notes, has become “a confused and tangled
terrain of conflicting ideas and tendencies.”
2
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
of marriage.
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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.
3
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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?”
4
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.”
5
The Chief
Justice of the Supreme Court of Canada concurs: “The rule of
law exerts an authoritative claim upon all aspects of selfhood
and experience in a liberal democratic society. Some such
claims are made by the institutional structures of the law.
Others are ancillary claims arising from a diffused ethos of legal
rule that influences local, community, and familial structures.”
6
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.”
7
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.”
8
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.
9
He writes that
a main benefit of incrementalism is that it leaves resulting changes largely immune
from direct public criticism and debate.
10
He points to Holland and other European
Family law is
reconstructing the public
meanings of marriage and
parenthood.
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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.”
11
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
societies.
12
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
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their children. The seminal theorists of liberal democracy from John Locke to John
Rawls have always underlined the generative work of this conjugal form of life.
John Locke’s The Second Treatise on Government underlines the core social purpose
of marriage for a liberal polity.
13
John Rawls argues that the family as a “basic
institution” is geared to “the orderly production and reproduction of society and of
its culture from one generation to the next.”
14
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.
15
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.
16
Of course, marriage always has and still does many other important things. It
protects and supports the man and woman as they grow older and provides sexual
pleasure and comfort even when children do not result. It also helps to organize
property, inheritance, and more. But the core insight fueling the conjugal view of
Conjugal marriage is
fundamentally
child-centered.
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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.
17
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.
18
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
Relationships.
19
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,
20
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
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rates of divorce and the personal longings for a soul mate are changing the way
young people think about marriage.
21
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
“pure relationship.”
22
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.”
23
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.
24
That which is distinctive about marriage is not allowed
to enter the discussion.
25
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.
26
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.
27
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.”
28
And so, as we shall see, they have.
In the new view, marriage
is to satisfy adult needs.
Marriage and children
are not connected.
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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.
29
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.
30
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.
31
Public standards of the sort that once influenced family
law are, in this report, subject to relentless critique for their failure to promote
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diversity and their tendency to impose social “stereotypes.”
32
Such standards for
familial life “run counter to the commitment this society avows towards family
diversity.”
33
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.”
34
Professor Katherine Bartlett, one of the report’s three main
drafters (or “reporters”), said that the passion that drives her
work is
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.
35
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.
36
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.”
37
The social ecology of male/female bonding
does not appear as one of the thirteen indicia of a marriage-like relationship.
38
This
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.”
39
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.
40
Protection of diversity
becomes the central public
task of family law.
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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.”
41
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
or perceptions.”
42
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.
43
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.”
44
The ALI
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.”
45
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.
46
The only clear standards for relational
behavior are the offside zones delineated by criminal law.
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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.
47
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.”
48
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
relationships.
49
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
Marriage becomes
just one of the many
varied relationships
adults might form.
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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
parents play.
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.
50
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
theory.
51
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
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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.
52
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
debate.
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not their marital status.
53
(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.
54
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.”
55
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
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ALI report, Canadian courts have cited as determinative the characteristics that are
often common to both married and non-married intimacy,
56
including common
shelter, sexual and personal behavior,
57
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
conjugality.
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
basis.
58
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.
59
If marriage is just a close
relationship, why treat
people differently
based on a wedding?
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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.
60
[emphasis added]
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.
61
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.
62
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
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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.”
63
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.
64
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.
65
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.
66
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
Scholarship fails
to support the central
contention of the
equivalence approach.
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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.
67
(This approach has been called the “Levelling
Position.”)
68
Marriage becomes the only legally recognized close relationship.
69
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.”
70
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
the courts.
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.”
71
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.”
72
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.”
73
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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.
74
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.
75
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.
76
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.
77
Another
author similarly characterizes the “permanent, monogamous, marriage, nuclear,
heterosexual” concept of family as “an explicitly Christian concept of marriage.”
78
In
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
from marriage’s
public meaning.
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of sexual dissenters and nonconformists.
79
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.
80
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.
81
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.
82
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
system.”
83
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.
84
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.
85
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.”
86
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.
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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
whom.
87
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
same-sex couples:
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.
88
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.
89
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-
lishment.
90
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
whom?
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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.
91
They
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.
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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
Absent marriage,
the state is drawn into
more intrusive regulation
of family life.
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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
close relationships.
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.”
92
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.”
93
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.
94
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
adult relationships.”
95
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
recognized.”
96
Professor Elizabeth Emens of the University of Chicago Law School
has followed up with a major legal defense of polyamory.
97
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
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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
to recognize.
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.”
98
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
children.
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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.”
99
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.”
100
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
of children.”
101
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.
102
Katherine Bartlett, one of the ALI authors, writes that too often this age-old
standard masks normative judgments about preferred models of child-parent
relationships:
[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.
103
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.
104
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.”
105
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
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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.”
106
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.”
107
In service of this goal, the ALI report affirms “the positive
correlation between the interests of the parents and the welfare
of their children.”
108
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.
109
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
suffer.”
110
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.”
111
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.
112
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.”
113
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.”
114
The ALI’s close relationship
regime transforms
parenthood into a domain
created by the state.
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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
both men.
115
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.
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Fragmenting Parenthood
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.”
116
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.
117
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
pregnant woman.
118
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.
119
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.
120
Parenthood by “pure intention” represents the full
cultural shift from an emphasis on “biogenic unity” to an emphasis on “the family
of choice.”
121
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?
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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
born anyway?
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 rule).
122
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.
7).
123
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
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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.
124
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.
125
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.
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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.
126
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.
Conclusion
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?
127
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
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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-
being.
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.
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Recommendations
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
academics.
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.





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Endnotes
1. John Dewar, “Family Law and Its Discontents,” International Journal of Law, Policy
and the Family 14 (2000): 59-60.
2. Ibid.
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),
123-24.
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,
153-54.
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
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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), [2003] 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,
2000).
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,
2001).
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,
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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), [2003] 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
(2004): 918-20.
31. American Law Institute, Principles of the Law of Family Dissolution: Analysis and
Recommendations (Philadelphia: American Law Institute, 2002), chap. 1, I-III (hereinafter
ALI Principles).
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.
42. Ibid.
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
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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).
44. Ibid.
45. Ibid.
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
Beyond Conjugality).
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,
fn.6.
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, [1980] 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
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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 [2000] 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 [1993] 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., [1999] 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),
http://www.vifamily.ca/library/transition/302/302.html#1.
63. Miron v. Trudel, [1995] 2 S.C.R. 418 (Can.), par. 105; Nova Scotia vs. Walsh, [2002] 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
2001: 1023-44.
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
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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,
569-72 (2004).
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:
221-278.
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
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(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), [2003] 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,
2002), http://www.justice.gc.ca/en/dept/pub/mar/mar_e.pdf.
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
modern state.
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
Amendments.”
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.
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109. Ibid.
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):
619.
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About the Institute for American Values
The Institute for American Values is a nonpartisan organization dedicated to
strengthening 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 attention 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, founded in 2003, is a private, nonpartisan
organization. iMAPP’s unique mission is high quality research and public education
on ways that law and public policy can strengthen marriage as a social institution.
About the Institute for the Study of Marriage, Law and Culture
The Institute for the Study of Marriage, Law and Culture is a nonpartisan, nonprofit
Canadian association for research and study of current trends and developments in
marriage and family. The Institute draws together scholars from different disciplines
and seeks to stimulate ongoing research by providing a forum for innovative and
informed dialogue for scholars, policy makers and the public at large.
Institute for American Values
1841 Broadway
Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
info@americanvalues.org
www.americanvalues.org
Institute for Marriage and
Public Policy
1413 K Street, NW
Suite 1000
Washington, D.C. 20005
Tel: (202) 216-9430
Fax: (202) 216-9431
info@imapp.org
www.imapp.org
Institute for the Study of
Marriage, Law and Culture
3484, Peel Street
Montreal, Quebec H3A 1W8
Canada
Tel: (514) 862-4105
Fax: (514) 398-2546
inquiries@marriageinstitute.ca
www.marriageinstitute.ca
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The Revolution in Parenthood
The Emerging Global Clash Between Adult Rights
and Children’s Needs
Institute for American Values
Institute for Marriage and Public Policy
Institute for the Study of Marriage, Law, and Culture
Institute of Marriage and Family Canada
An International Appeal from the Commission on Parenthood’s Future
Elizabeth Marquardt, Principal Investigator
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This international appeal is the first publication sponsored by the Commission on
Parenthood’s Future, an independent, nonpartisan group of scholars and leaders
who have come together to investigate the status of parenthood and make recom-
mendations for the future. The author of this appeal is grateful for the advice and
support of Commission members as well as leaders of the four co-publishing orga-
nizations: Institute of Marriage and Family Canada; Institute for Marriage and Public
Policy; Institute for the Study of Marriage, Law, and Culture; and the Institute for
American Values.
The French translation by Agnès Jacob is also deeply appreciated.
On the cover: Child’s Drawing, Photodisc Green
Collection. © Getty Images/Steve Cole.
© 2006, Institute for American Values. All rights
reserved. No reproduction of the materials con-
tained herein is permitted without the written per-
mission of the Institute for American Values.
ISBN: 1-931764-12-3
ISBN-13: 978-1-931764-12-4
Institute for American Values
1841 Broadway, Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
info@americanvalues.org
www.americanvalues.org
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Table of Contents
Members of the Commission on Parenthood’s Future..............................................
About the Commission on Parenthood’s Future........................................................
Executive Summary.....................................................................................................
Executive Summary in French....................................................................................
Introduction.................................................................................................................
Redefining Parenthood—What’s Happening Around the World Right Now..........
How the Global Redefinition of Parenthood Threatens Children’s Identity.............
The Child’s Point of View...........................................................................................
Emerging Voices from Children.....................................................................
The Social Science Evidence Suggesting the Importance of
Biological Parents...........................................................................................
Redefining Parenthood—What’s Next?......................................................................
Increasing Slippage in the Meaning of Fatherhood and Motherhood..........
Cloning and Same-Sex Procreation...............................................................
Group Marriage: Polyamory and Polygamy..................................................
Conclusion..................................................................................................................
Endnotes......................................................................................................................
Note
This report, originally written in English, has been translated into French to aid
in the Canadian release. The Executive Summary in French is included with this
English version of the report. The full report in French can be downloaded from:
http://www.americanvalues.org.
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Commission on Parenthood’s Future
David Blankenhorn, Institute for American Values
Don Browning, University of Chicago Divinity School (Emeritus)
Daniel Cere, Institute for the Study of Marriage, Law and Culture
Jean Bethke Elshtain, University of Chicago Divinity School
Maggie Gallagher, Institute for Marriage and Public Policy
Norval Glenn, University of Texas at Austin
Robert P. George, Princeton University
Amy Laura Hall, Duke University
Timothy P. Jackson, Emory University
Kathleen Kovner Kline, University of Colorado Health Services Center
Anne Manne, author and social commentator (Australia)
Suzy Marta, Rainbows Inc.
Elizabeth Marquardt, Institute for American Values (Principal Investigator)
Steven Nock, University of Virginia
Mitchell B. Pearlstein, Center of the American Experiment
David Popenoe, Rutgers University
Stephen G. Post, Case Western Reserve University
Dave Quist, Institute of Marriage and Family Canada
Derek Rogusky, Institute of Marriage and Family Canada
Luis Tellez, Witherspoon Institute
Amy Wax, University of Pennsylvania Law School
W. Bradford Wilcox, University of Virginia
John Witte, Jr., Emory University
Peter Wood, The King’s College
About the Commission on Parenthood’s Future
The author of this report is a member of the Commission on Parenthood’s Future.
The Commission is an independent, nonpartisan group of scholars and leaders who
have come together to investigate the status of parenthood as a legal, ethical, social,
and scientific category in contemporary societies and to make recommendations for
the future. Commission members convene scholarly conferences, produce books,
reports, and public statements, write for popular and scholarly publications, and
engage in public speaking.
Page 4
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The Revolution in Parenthood
The Emerging Global Clash Between Adult Rights and
Children’s Needs
Executive Summary
Around the world, the two-person, mother-father model of parenthood is being fun-
damentally challenged.
In Canada, with virtually no debate, the controversial law that brought about same-
sex marriage quietly included the provision to erase the term “natural parent” across
the board in federal law, replacing it with the term “legal parent.” With that law, the
locus of power in defining who a child’s parents are shifts precipitously from civil
society to the state, with the consequences as yet unknown.
In Spain, after the recent legalization of same-sex marriage the legislature changed
the birth certificates for all children in that nation to read “Progenitor A” and
“Progenitor B” instead of “mother” and “father.” With that change, the words “mother”
and “father” were struck from the first document issued to every newborn by the
state. Similar proposals have been made in other jurisdictions that have legalized
same-sex marriage.
In New Zealand and Australia, influential law commissions have proposed allowing
children conceived with use of sperm or egg donors to have three legal parents. Yet
neither group addresses the real possibility that a child’s three legal parents could
break up and feud over the child’s best interests.
In the United States, courts often must determine who the legal parents are among
the many adults who might be involved in planning, conceiving, birthing, and raising
a child. In a growing practice, judges in several states have seized upon the idea of
“psychological” parenthood to award legal parent status to adults who are not related
to children by blood, adoption, or marriage. At times they have done so even over
the objection of the child’s biological parent. Also, successes in the same-sex marriage
debate have encouraged group marriage advocates who wish to break open the
two-person understanding of marriage and parenthood.
Meanwhile, scientists around the world are experimenting with the DNA in eggs and
sperm in nearly unimaginable ways, raising the specter of children born with one
or three genetic parents, or two same-sex parents. Headlines recently announced
research at leading universities in Britain and New Zealand that could enable same-sex
couples or single people to procreate. In Britain, scientists were granted permission
to create embryos with three genetic parents. Stem cell research has introduced the
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very real possibility that a cloned child could be born—and the man who pioneered
in vitro fertilization (IVF) treatment has already said in public that cloning should be
offered to childless couples who have exhausted other options. The list goes on.
Nearly all of these steps, and many more, are being taken in the name of adult rights
to form families they choose. But what about the children?
This report examines the emerging global clash between adult rights and children’s
needs in the new meaning of parenthood. It features some of the surprising voices
of the first generation of young adults conceived with use of donor sperm. Their
concerns, and the large body of social science evidence showing that children, on
average, do best when raised by their own married mother and father, suggest that
in the global rush to redefine parenthood we need to call a time-out.
Right now, our societies urgently require reflection, debate, and research about the
policies and practices that will serve the best interests of children—those already
born and those yet to be born. This report argues that around the world the state is
taking an increasingly active role in defining and regulating parenthood far beyond
its limited, vital, historic, and child-centered role in finding suitable parents for
needy children through adoption. The report documents how the state creates new
uncertainties and vulnerabilities when it increasingly seeks to administer parent-
hood, often giving far greater attention to adult rights than to children’s needs. For
the most part, this report does not advocate for or against particular policy pre-
scriptions (such as banning donor conception) but rather seeks to draw urgently
needed public attention to the current revolutionary changes in parenthood, to point
out the risks and contradictions arising from increased state intervention, and to
insist that our societies immediately undertake a vigorous, child-centered debate.
Do mothers and fathers matter to children? Is there anything special—anything
worth supporting—about the two-person, mother-father model? Are children com-
modities to be produced by the marketplace? What role should the state have in
defining parenthood? When adult rights clash with children’s needs, how should the
conflict be resolved? These are the questions raised by this report. Our societies will
either answer these questions democratically and as a result of intellectually and
morally serious reflection and public debate, or we will find, very soon, that these
questions have already been answered for us. The choice is ours. At stake are the
most elemental features of children’s well-being—their social and physical health
and their moral and spiritual wholeness.
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Revolution de la filiation
Conflit émergent entre les droits des adultes et les
besoins des enfants
Sommaire Exécutif
Aujourd’hui, le modèle parental composé d’un père et d’une mère est assailli dans
son principe même partout dans le monde.
Au Canada, presque sans débat, la loi controversée ratifiant le mariage entre parte-
naires du même sexe introduisait sans bruit la stipulation éliminant le terme “parent
naturel” de toutes les lois fédérales, pour le remplacer par le terme “parent légal”.
Ce changement déplaça brusquement le pouvoir de définir qui sont les parents d’un
enfant, l’enlevant à la société civile pour l’accorder à l’État, avec des conséquences
encore inconnues.
En Espagne, après la légalisation récente du mariage homosexuel, le corps législatif
a changé les actes de naissance de tous les enfants espagnols, y inscrivant “progéni-
teur A” et “progéniteur B” au lieu de “mère” et “père”. Ce changement efface les
mots “mère” et “père” du premier document émis à chaque enfant par l’État.
En Nouvelle-Zélande et en Australie, des instances législatives influantes ont pro-
posé que l’on autorise les enfants conçus en utilisant du sperme ou des ovules de
donneurs à avoir trois parents. Mais ni l’un ni l’autre des deux pays ne s’est penché
sur l’éventualité très réelle que ces trois parents pourraient se séparer et faire de l’in-
térêt de l’enfant un sujet de litige.
Aux États-Unis, les tribunaux décident souvent qui sont les parents légaux, parmi
les nombreux adultes impliqués dans le projet parental, dans la conception, la nais-
sance et l’éducation d’un enfant. On voit de plus en plus souvent les juges de
plusieurs États recourir au concept de parent “psychologique” pour accorder le
statut de parent légal à des adultes sans aucun lien de parenté, de mariage ou
d’adoption avec l’enfant. Dans certains cas, ces jugements ont été prononcés mal-
gré l’opposition des parents biologiques de l’enfant.
De plus, les réussites obtenues aux États-Unis dans le débat sur le mariage homo-
sexuel ont encouragé les adeptes du mariage en groupe, qui désirent abolir la
signification du mariage et de la filiation selon lesquels ces termes s’appliquent à
deux personnes.
En même temps, des scientifiques dans le monde entier effectuent des expériences
invraisemblables sur l’ADN des ovules et du sperme, permettant d’imaginer des
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enfants nés avec un seul ou trois parents génétiques, ou avec deux parents du
même sexe. Les gros titres des journaux annonçaient récemment des recherches
menées par de grandes universités en Angleterre et en Nouvelle-Zélande, dont le
but est de permettre à des couples du même sexe et à des personnes célibataires
de procréer. En Angleterre, on a autorisé les scientifiques à créer des embryos ayant
trois parents génétiques. La recherche sur les cellules souches a introduit la possi-
bilité très réelle de voir naître un de ces jours un enfant cloné; le scientifique à
l’origine de la fertilisation in vitro (comme traitement de l’infertilité) a déjà affirmé
en public que le clonage devrait être offert à des couples sans enfants pour qui les
autres alternatives sont restées inefficaces. Et ainsi de suite.
Presque toutes ces décisions, comme beaucoup d’autres, ont été prises au nom des
droits des adultes à créer les familles qu’ils désirent. Mais qu’en est-il des enfants?
Ce rapport examine le conflit mondial émergent entre les droits des adultes et les
besoins des enfants dans les nouvelles définitions du statut parental. Le rapport fait
entendre les voix surprenantes de la première génération de jeunes adultes conçus
en ayant recours au sperme de donneurs. Leurs préoccupations, ainsi que les don-
nées abondantes en sciences sociales indiquant qu’en général les enfants se portent
le mieux quand ils sont élevés par leurs propres mères et pères, suggèrent qu’il
serait utile de marquer un temps d’arrêt dans la course mondiale vers la redéfinition
du parent.
Aujourd’hui, il est urgent pour nos sociétés de réfléchir, de débattre et de mener des
recherches concernant les politiques et les pratiques qui serviront le mieux les
intérêts des enfants—ceux qui sont déjà nés et ceux qui naîtront. Ce rapport fait valoir
le fait que partout dans le monde l’Etat prend un rôle de plus en plus actif dans la
définition et la réglementation du rôle parental (bien au-delà de sa fonction historique,
vitale et limitée, axée sur l’enfant, consistant à trouver des parents appropriés pour
les enfants qui en ont besoin). Le rapport décrit la manière dont l’Etat crée de
nouvelles incertitudes et vulnérabilités lorsqu’il tente de régir la filiation, souvent en
portant une plus grande attention aux droits des adultes qu’aux besoins des enfants.
En général, le rapport ne s’exprime ni pour ni contre des politiques particulières
(interdire la conception à l’aide de donneurs, par exemple); il essaie plutôt d’attirer
l’attention publique—dont on a un besoin urgent—sur les changements révolution-
naires s’appliquant au statut parental, de souligner les risques et les contradictions
découlant d’une intervention étatique accrue, et d’insister que nos sociétés entre-
prennent immédiatement un débat dynamique axé sur l’enfant.
Les mères et les pères sont-ils importants pour les enfants? Le modèle mère-père
offre-t-il des avantages qui méritent d’être appuyés? Les enfants sont-ils des biens à
produire pour le marché? Quel rôle devrait-on accorder à l’État dans la définition du
statut parental? Lorsqu’il y a conflit entre les besoins des enfants et les droits des
adultes, comment doit-on le résoudre? Ce rapport se penche sur ces questions. Nos
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sociétés se trouvent face à un choix: ou bien elles répondent à ces questions de
manière démocratique, après un sérieux examen intellectuel et moral et des débats
publics, sans quoi en peu de temps nous nous apercevrons qu’on a répondu à ces
questions à notre place. Il y va des aspects essentiels du bien-être des enfants—leur
santé physique et sociale, et leur integrité morale et spirituelle.
Vous trouverez une traduction française du rapport en consultant le site
http://www.americanvalues.org.
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Introduction
M
ANY CHANGES in marriage, reproduction, and family life in recent years have
had one feature in common: They have pushed the boundaries on who is
called a child’s parent. Courts and the culture have at various times
determined all kinds of people to be parent figures in children’s lives, including
stepparents, parents’ unmarried partners, sperm donors, surrogate mothers, and
even extended family members or close family friends.
This broadening of the term “parent” first arose amid the steep rise in single-parent
childbearing and as a result of the divorce revolution. But more recently—indeed,
many important developments have taken place in recent months—the redefinition
of parenthood is taking new forms as cultural attitudes continue shifting; as repro-
ductive technologies advance, access expands, and science continues pushing the
boundaries on baby-making; as increasing numbers of same-sex couples are openly
raising children, with many of them also advocating for marriage rights; as new
players enter the marriage debate, including advocates of group marriage; and as
the law struggles to catch up, often creating as many problems as it resolves.
Rather than striving to link the man and woman who conceive, bear, and raise a
child into one unit called the child’s “parents,” today’s trend toward redefinition
separates genetic, gestational, and social parenthood into increasingly fragmented
activities and separate legal terms.
1
In nations throughout the West and beyond,
expert commissions, courts, legal scholars, and medical groups are leading the way
in redefining parenthood, almost entirely without awareness of or influence from
other disciplines and the broader public. While the state has a vital role to play in
finding parents for needy children through adoption, today in many nations the state
is creating powerful new uncertainties and vulnerabilities as it seeks to redefine
parenthood for far broader categories of children.
Right now, the needs of children—those born and those yet to be born—are being
threatened by policies and practices that are transforming and fragmenting the
meaning of parenthood.
Redefining Parenthood—What’s Happening Around the
World Right Now
Events that form a revolutionary redefinition of parenthood are proceeding at break-
neck speed around the world.
In Canada, the law that recently legalized same-sex marriage nationally also qui-
etly erased the term “natural parent” across the board in federal law, replacing it
with the term “legal parent.”
2
With that provision, the federal understanding of
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parenthood for every child in the nation was changed in order to bring about the
hotly-debated legalization of same-sex marriage.
Also in Canada, in an amazingly contradictory pair of moves, in some provinces it
is now the right of an adopted child to know the identity of his or her biological
parents; whereas in the case of children conceived by sperm or egg donors, revealing
to the child the identity of his or her biological parents is a federal crime, punishable
by a fine, imprisonment, or both.
In Spain, after the recent legalization of same-sex marriage the National Civil
Registry struck the words “mother” and “father” from the first document issued to
every newborn by the state. Instead, all birth certificates will now read “Progenitor
A” and “Progenitor B.”
3
At the same time and in a strange coincidence, law commissions in three other
nations released reports in the spring of last year on assisted reproductive tech-
nologies. Each report makes radical headway in redefining parenthood.
In a report on “New Issues in Legal Parenthood,” the Law Commission in New
Zealand made the unprecedented proposal of allowing children conceived with
donor sperm or eggs to have three or more legal parents, with sperm or egg donors
allowed to “opt in” to parenthood if they wish.
4
In Australia, the Victoria Law Reform Commission proposed that access to donor
insemination services be expanded to same-sex couples and singles, as is currently
allowed in many nations including the United States (but which remains illegal in a
number of European and other nations). Their rationale was striking. The commission
argued that expanding donor insemination access to same-sex couples and singles
is vital because it will reduce social discrimination against children raised in these
kinds of families.
5
In a follow-up report, this commission also proposed that sperm
and egg donors be allowed to “opt in” as a child’s third legal parent.
At the same time, in Ireland the Commission on Human Assisted Reproduction
stunned many by proposing that couples who commission a child through a surrogate
mother should automatically be the legal parents of the child, leaving the woman
who delivers the baby with absolutely no legal standing or protection should she
change her mind.
6
A dissenting member of the commission warned ominously, “If
the surrogate mother resisted [handing over the baby], reasonable force could be
used.”
7
Meanwhile, in India new guidelines on assisted reproductive technology issued in
June of 2005 by the Indian Council of Medical Research state that “the child born
through the use of donor gametes [i.e., sperm or eggs] will not have any right what-
soever to know the identity of the genetic parents.” The local news headline stated
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the new rules “go a long way in curbing exploitation”—viewing the matter entirely
from the point of view of adults who give or receive sperm or eggs, but not from
the perspective of children who will be forever barred from knowing where they
come from.
8
Other steps governments are taking signal a greatly heightened level of state inter-
vention and increasing control over reproduction and family life.
In Britain, a recent law banning donor anonymity caused a purported drop in the
number of persons willing to donate sperm or eggs.
9
Soon thereafter the govern-
ment health service began an active campaign to recruit sperm and egg donors, no
longer just allowing the planned conception of children separated from one or both
biological parents, but now very intentionally promoting it.
10
In another example of active state support, in high-tax Denmark the state subsidizes
the practice of sperm donation by allowing the income earned by sperm donors to
be tax-exempt. The Danish company Cryos, one of the world’s largest sperm banks,
ships almost three-quarters of its sperm to individuals and couples overseas—all
with the implicit support of the Danish taxpayer.
11
And in a recent, dramatic step,
the Danish parliament narrowly passed a law that gives lesbian couples and single
women the right to obtain free artificial insemination at publicly-funded hospitals.
12
In Vietnam, the state supported hospital is running short of voluntary sperm donors.
It is now considering setting up a community sperm bank in which those who
request donor sperm must supply a family member or friend who will donate sperm
to the bank for use by another couple. The increasing demand for sperm comes
from “families where husband and wife are white collar workers, and single women
who want a baby but wish to remain unmarried.”
13
In Australia, a law passed in 1984 that allows sperm donors to contact their over-18
offspring has now raised the prospect that, starting this year, young adults who were
conceived using donor sperm might receive a letter from the state alerting them to
the sperm donor’s wish to contact them. In Australia, as elsewhere, most young
people who were conceived with donor sperm were never told the truth by their
parents.
14
To help offset the potential shock, the state government in Victoria has
proposed a public advertising campaign warning all young adults that they could be
contacted by a sperm donor father they never knew about.
15
Meanwhile, in the United States the field of reproductive technology continues in an
almost entirely unregulated environment. Agonizingly difficult decisions are often
left to judges in local jurisdictions (with these cases sometimes rising to state
supreme courts). These courts all too frequently must decide who a child’s parents
are, picking and choosing among the many adults who might be involved in plan-
ning, conceiving, birthing, and raising the child.
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Recently the California State Supreme Court heard three cases from lesbian couples
who used sperm donors to have children and then split up. In these cases the non-
biological mother figure (none of whom had adopted the child) was either denied
access to the child or wished to have no further financial obligations to the child.
The courts ruled in all three cases that the non-biological mother figure is like a
child’s father and should be granted full parental status and held to the same
standard of rights and responsibilities.
16
The outcome has potentially far-reaching
implications not just for same-sex couples but for the many
heterosexual couples in stepfamilies
17
, as well as those
who might use reproductive technologies or temporarily
raise children together without marriage, adoption, or
other legal arrangements.
In Erie County, Pennsylvania, a judge recently had to
decide parentage in a case in which a surrogate mother car-
ried triplets for a 62-year-old man and his 60-year-old girlfriend. When the couple
failed to pick up the infants, the hospital initiated steps to put them in foster care. In
response, and eventually with the judge’s approval, the surrogate mother took the
children home and began raising them as her own. But the commissioning couple
continues to fight for access to the children (and the 62-year-old man has been
ordered to pay child support), while the college student who contributed her eggs
for their conception is asserting her parental rights as well.
18
In another case now before the Pennsylvania Supreme Court, a sperm donor was
ordered by a lower court to pay child support for twins conceived by in vitro fer-
tilization. The lower court said the mother and sperm donor had wrongly bargained
away the twins’ rights in agreeing that the sperm donor would not have responsi-
bilities for them. The high court is now being asked to overturn that ruling.
19
In response to these two cases lawmakers in Pennsylvania convened a joint sub-
committee on assisted reproductive technologies. An attorney who sits on the sub-
committee said, “It’s becoming common in today’s society for a sperm donor, an egg
donor or a surrogate mother to be used in family-building, and it’s in the best
interest of everyone in this state to create a definitive pronouncement of who is a
legal parent and define the rights and responsibilities of those parents.”
20
The article
reporting these developments framed the issue solely as a matter of protecting the
rights of adults including egg and sperm donors, surrogate mothers, and legal
parents. There was no consideration by the reporter of how these decisions might
affect children.
In Ohio, a recently proposed bill addresses the growing practice of “embryo adop-
tion,” in which a couple with an unused embryo created for infertility treatment
donates the embryo to another couple, who implant it in the woman and raise the
resulting baby as their own. The bill defines the birth mother, not the biological
...steps governments are taking
signal a greatly heightened
level of state intervention in
reproduction and family life.
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mother, as the legal mother of the child, and says that the husband of the birth
mother who consents to the embryo adoption is the legal father.
21
While such rulings and proposals might bring clarity in specific scenarios, they also
create astonishing new uncertainties and questions for case law as an almost unimag-
inable range of adults—from a sperm donor to the husband of a woman implanted
with someone else’s embryo to a surrogate mother or egg donor and even a parent’s
ex-girlfriend or ex-boyfriend—can be designated the legal parent of a child.
At the same time, the active public debate about legalizing same-sex marriage and
the increasing visibility of same-sex couples raising children contribute to new
uncertainties about the meaning of parenthood. These new uncertainties potentially
affect many children, not just the relatively small number of children raised by gay
and lesbian people.
In Massachusetts, nearly three years ago, a 4-3 decision by the State Supreme Judicial
Court legalized same-sex marriage. (It is notable that among all the laws, rulings, and
proposals discussed in this report, legalized same-sex marriage in Massachusetts is
among the very oldest.) In response to that court decision, the State Department of
Public Health changed the standard marriage certificate to read “Party A” and “Party
B,” instead of “husband” and “wife,” and proposed amending birth certificates used
for all children in Massachusetts to read “Parent A” and “Parent B” rather than
“mother” and “father.”
22
As in Canada and Spain, once same-sex marriage is legalized
some advocates immediately argue that legal understandings of parenthood for all
children must change, even to the point of erasing the words “mother” and “father”
from the foundational legal document issued to all children by the state.
23
In fact, same-sex couples, adoptive parents, and singles and infertile couples using
donors routinely petition to have one or both biological parents left off the birth
certificate—and even to have non-biological parents included without going through
the process of adoption. In Quebec, when a woman in a same-sex civil union gives
birth, her female partner is presumed to be the father and can be registered as the
father on the child’s birth certificate.
24
A similar ruling was recently made in Ontario,
with the judge noting that the testimony of non-biological mother figures who have
not been automatically recorded on birth certificates “reveals a lot of pain” and that
some find the requirement to adopt the child “immoral.”
25
The state of California
allows a “second mother” to be entered on the birth certificate as the child’s father.
Last year, a New Jersey judge ruled for the first time in that state that the same-sex
partner of a woman who conceives with donor sperm has an automatic right to be
listed as a birth parent on the child’s birth certificate without having formally to adopt
the child, just as the husbands of women who use donor sperm are listed.
26
Earlier
this year, Virginia issued a birth certificate to a lesbian adoptive couple that reads
“Parent 1” and “Parent 2” after the couple rejected having one of their names put in
the blank for “father.”
27
A similar suit was just filed in Oregon.
28
More are likely.
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Around the world, the state is a fast-growing, active player in the field of redefining
parenthood. This redefinition increasingly emphasizes adults’ rights to children
rather than children’s needs to know and be raised, whenever possible, by their
mother and father. The state is becoming routinely involved in the practices of
regulating, apportioning, and resolving disputes involving fertility and parenthood.
This global shift is encountering active resistance in only a few places.
Perhaps the most surprising development is in France
where a “Parliamentary Report on the Family and the
Rights of Children,” published in January 2006, took a rad-
ically different stance. The report’s authors note critically
that “the desire for a child seems to have become a right
to a child” and argue “when children’s lives are at issue,
legislators must act very cautiously and calmly seek social
consensus….” The report’s authors recommend denying
the legalization of same-sex marriage, citing concerns about the identity and devel-
opment of children when the law creates a “fictitious filiation” or a situation in
which there are “two fathers, or two mothers—which is biologically neither real nor
plausible.” Citing the “precautionary principle,”
29
the report’s authors conclude
that there must continue to be a medical justification for assisted procreation
“under the rubric of ‘a father, a mother, a child,’” and that the ban on surrogacy
should stand.
30
In another notable development, Italy’s voters last summer defeated a referendum
that would have loosened their restrictive fertility law. The law that was upheld bans
the use of donor sperm or eggs and allows assisted reproductive technology only
for married couples. In a somewhat less stringent example, Taiwan’s cabinet last
year approved an assisted reproductive technology law that restricts the use of such
technology to infertile couples, bans receiving donor sperm and eggs from close
relatives, and does not allow sperm or eggs from the same donor to be used by
more than two couples. But examples like these are rare.
31
How the Global Redefinition of Parenthood Threatens
Children’s Identity
Why should we be concerned about the many rulings, laws, and proposals around
the world that are aimed at redefining parenthood?
A good society protects the interests of its most vulnerable citizens, especially
children. Right now, the institution that is most core to children’s very survival—that
of parenthood—is being fundamentally redefined with the state giving its implicit
support and at times leading the way. In law and culture, parenthood is increasingly
understood to be an institution oriented primarily around adults’ rights to children
...in such rulings an almost
unimaginable range of adults
can be designated the
legal parents of a child.
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rather than children’s need for their mother and father. These extraordinary moves
are being made largely absent any real public awareness or debate.
The common thread running through many of these decisions is the adult right to
a child. These rights claims are important. The desire for a child is a powerful force
felt deep in the soul. The inability to bear a child of one’s own is often felt as an
enormous loss, one that some grieve for a lifetime. These desires must be responded
to with respect and compassion. The claim that medicine and society should help
those who cannot bear children is a legitimate one.
But the rights and needs of adults who wish to bear children are not the only part
of the story.
Children, too, have rights and needs. For example, the United Nations Convention
on the Rights of the Child, ratified in 1989, 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.”
32
The authors of the convention
understood several key features necessary to human identity, security, and flourish-
ing—having a name, being a citizen of a nation whose laws protect you, and, when-
ever possible, being raised by the two people whose physical union made you.
Adults who support the use of new technologies to bear children sometimes say that
biology does not matter to children, that all children need is a loving family. Yet
biology clearly matters to the adults who sometimes go to extreme lengths—
undergoing high-risk medical procedures; procuring eggs, sperm, or wombs from
strangers; and paying quite a lot of money—to create a child genetically related to
at least one of them. In a striking contradiction, these same people will often insist
that the child’s biological relationship to an absent donor father or mother should
not really matter to the child.
Of course, there is a very real and urgent role for the state to play in defining
parenthood. Some biological parents present a danger to their children or are
otherwise unable to raise them. Adoption is a pro-child social institution that finds
parents for children who desperately need them. Adoption is a highly admirable
expression of altruistic love, a kind of love that transcends our hardwired tendencies
to protect our blood relations above all others. But the existence of legal adoption
was never intended to support the argument that children don’t care who their
fathers and mothers are, or to justify the planned separation of children from bio-
logical mothers and fathers before the children are even conceived.
Certainly, biology is not everything. It does not and should not determine the full
extent or depth of human relationships. Biological parents are tragically capable of
harming their children, and some children are better off removed from these par-
ents (though, as we will see, children on average are far safer with their biological
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parents than with unrelated adults). But the actions and testimony of children and
adults often powerfully suggest that biology does matter.
In the current rush to redefine parenthood, we must stop to ask critical, child-
centered questions: Are children’s understandings of parenthood as flexible as
those who pose these issues mainly as a matter of adult rights believe them to be?
How do children feel about the brave new world of parenthood? Does how they
feel matter?
The Child’s Point of View
Emerging Voices from Children
Children raised without their own married mother and
father often have perspectives about their lives that are radically different from how
the legal scholars, courts, and would-be parents expected they would feel. For
example, studies on the inner lives of children of divorce are showing an enormous
downside for children that was never considered in the heady, early days of the no-
fault divorce revolution.
33
To be perfectly clear, the question is not whether children love the parents who
raise them. Children almost universally and unquestioningly love their parents,
whether their parents are married, divorced, single, gay or straight. Rather, the
question is how children feel and how they make sense of their identities when
their mother or father (or both) is absent from their daily lives.
The first generation of donor-conceived children who are now coming of age form
a remarkable case study to explore this question. Most in this first generation were
conceived by married heterosexual couples using donor sperm. Anecdotally,
many are now speaking out about the powerful impact on children’s identity
when adults purposefully conceive a child with the clear intention of separating
that child from a biological parent.
34
These young people often say they were
denied the birthright of being raised by or at least knowing about their biological
fathers. They say that this intentional denial profoundly shapes their quest to
understand who they are.
Donor-conceived teenagers and adults are forming organizations,
35
are frequently
quoted in news articles,
36
and are using the Internet to try to contact their sperm
donors and find half-siblings conceived with the same sperm.
37
They hail from the
United States, Canada, Australia, Britain, Japan, and elsewhere. Numbers are hard to
come by, but estimates are that the number of children now born in the U.S. each
year through artificial insemination range from 30,000 to 75,000 and that about 3,000
each year are conceived using donor eggs.
38
While the numbers arguably are small,
Of course, there is
an urgent role for the state to
play in defining parenthood
through adoption.
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they are growing, and the stories these young people tell raise questions not only
about their own experience but also about the prospects for the next generation of
children born of still more complex reproductive technologies.
Donor-conceived young people point out that the informed consent of the most
vulnerable party—the child—is not obtained in reproductive technology procedures
that intentionally separate children from one or both of their biological parents.
They ask how the state can aid and defend a practice that denies them their
birthright to know and be raised by their own parents and that forcibly conceals half
of their genetic heritage. Some call themselves “lopsided” or “half adopted.”
39
At least
one uses the term “kinship slave.”
40
Some born of lesbian or gay parents call them-
selves “queer spawn,” although others in the same situation find the term offensive.
41
No studies have been conducted focusing on these young people’s long-term
emotional experience.
42
Clearly, rigorous long-term studies need to be done. For
now, we should listen to their compelling voices.
Narelle Grech, an Australian donor-conceived woman in her early twenties, asks,
“How can you create a child with the full knowledge that he or she will not be able
to know about their history and themselves?” She wonders what social message the
practice of donor conception gives young men: “Will they think it’s OK to get a
woman or girl pregnant and that it would be OK to walk away from her, because
after all, biology doesn’t matter?”
A fellow Australian, Joanna Rose, asks why everyone “flips out” when the wrong
baby is taken home from the hospital, yet assumes that donor-conceived children
are just fine. She argues: “Our need to know and be known by our genetic rela-
tives is as strong and relevant as anyone else’s.” She writes, movingly, “I believe
that the pain of infertility should not be appeased at the expense of the next gen-
eration.”
43
In interviews, donor-conceived young adults often say something like this: My
sperm donor is “half of who I am.” One young woman known as Claire is believed
to be the first donor offspring to benefit from open-identity sperm donation and
have the ability to contact her father upon turning 18. She says she wants to meet
her donor because she wants to know “what half of me is, what half of me comes
from.”
44
Eighteen-year-old Zannah Merricks of London, England says, “I want to
meet the donor because I want to know the other half of where I’m from.”
45
Lindsay
Greenawalt, a young woman from Canton, Ohio who is seeking information about
her sperm donor, says, “I feel my right to know who I am and where I come from
has been taken away from me.”
46
Eve Andrews, a 17-year-old in Texas, plans to ask the California sperm bank that
aided in her conception to forward a letter to her donor when she turns 18.
“There’s a lot of unanswered questions in my life and I guess I want the answers,”
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she explains. By contrast, her 51-year-old mother, interviewed for the same story,
says, “As a woman dealing with the prospect of infertility, all you want is that
baby.… It never even occurred to me this child might want to find her biological
father someday.”
47
One young man, a 31-year-old doctor in Japan, learned that he was conceived by
donor sperm when he examined his parents’ white blood cell group while studying
medicine. “The most painful thing was the fact that my
parents didn’t tell me for 29 years,” he said. “Unless I was
told by my parents, I couldn’t even exercise my right to
know my biological origin.”
48
A 14-year-old girl in Pennsylvania wrote to Dear Abby after
finding out she was conceived with donor sperm. In just a
few sentences she identified some of the enormous identity
issues that confront donor-conceived young people and that are now a challenge to
our society. She wrote: “It scares me to think I may have brothers or sisters out
there,
49
and that he [my father] may not care that I exist.” This young teenager,
struggling alone with feelings of abandonment, grief, and confusion, poignantly
challenged the current legal and social position on this issue: “I don’t understand
why it’s legal to just donate when a child may be born.”
50
Some observers respond to the voices of donor-conceived adults by saying that
there is an inherent contradiction in their argument. These observers say that donor-
conceived persons who question the practice of donor conception are wishing away
their own existence, and that without the use of a sperm or egg donor or surrogate
these young people would not be alive. I find this response highly insensitive. All
of us, no matter how we arrived here, should be able to share our stories and
struggles in an atmosphere of respect and dignity without being told that we are
irrationally ignoring the process that gave us life or are failing to show sufficient
appreciation for our life.
51
The Social Science Evidence Suggesting the Importance of Biological
Parents
From a social scientific point of view, what do we know about children’s experi-
ences when they do not grow up with their own mother and father? In many areas
we know a great deal. In some, we need to learn more.
In recent decades a powerful consensus among social scientists has emerged about
the benefits of marriage for children. The New York Times not long ago reported:
“From a child’s point of view, according to a growing body of social science
research, the most supportive household is one with two biological parents in a low-
conflict marriage.”
52
Donor-conceived young adults
often say something like this:
My sperm donor is
“half of who I am.”
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Children raised by divorced or never-married parents face an increased risk of liv-
ing in poverty, failing in school, suffering psychological distress and mental illness,
and getting involved in crime. Children raised outside a married family are less likely
to graduate from college and achieve high-status jobs. When they grow up, they are
more likely to divorce or become unwed parents.
In terms of children’s physical health and well-being, marriage is associated with a
sharply lower risk of infant mortality, and children living with their own married
parents are more physically healthy, on average, than children in other kinds of fam-
ilies. Most tragically, children not living with their own two married parents are at
significantly greater risk of child abuse and suicide.
53
Increasing numbers of people are realizing that marriage has important benefits for
children. What many do not know is that there is something about the marriage of
a child’s own mother and father (as opposed to a remarriage) that on average brings
these benefits. On many important indicators of child well-being, such as teen
pregnancy, educational failure, delinquency, and child abuse, children raised in
married stepparent families look more like children of single parents than children
raised by their own, married mother and father.
54
Some who advocate for legalized same-sex marriage say that it will be good for
children because the children will now have two parents. But the stepfamily data
suggest it may not be that simple. We don’t know how much the poorer outcomes
in stepfamilies are due to the history of dissolution and other unique problems facing
stepfamilies and how much is due to the child being raised in a home with a non-
biologically related stepparent.
55
Most stepparents are without question good people who do their very best raising
the children in their care, but it is vital for those shaping family policy to be
acquainted with the large body of research showing that children raised in the care
of non-biologically-related adults are at significantly greater risk, in particular of
abuse. Many are not aware of the body of research showing that mothers’ boyfriends
and stepfathers abuse children more often on average than fathers do, with children
especially at risk when left in the care of their mothers’ boyfriends. More than
seventy reputable studies document that an astonishing number—anywhere from
one third to one half—of girls with divorced parents report having been molested or
sexually abused as children, most often by their mothers’ boyfriends or stepfathers.
56
A separate review of forty-two studies found that “the majority of children who were
sexually abused…appeared to come from single-parent or reconstituted families.”
57
Two leading researchers in the field conclude, “Living with a stepparent has turned
out to be the most powerful predictor of severe child abuse yet.”
58
The fields of evolutionary biology and psychology yield some insights into why
children are, on average, far safer with their biological parents. David Popenoe, a
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sociologist at Rutgers University, sums up the research this way: “From the per-
spective of evolutionary psychology, the organization of the human nuclear family
is based [in part on]…a predisposition to advance the interests of genetic relatives
before those of unrelated individuals, so-called inclusive fitness, kin selection, or
nepotism.
59
With respect to children, this means that men and women have likely
evolved to invest more in children who are related to them than in those who are
not.
60
The world over, such biological favoritism seems to be the rule.”
61
Of course, to recognize that adults tend to favor their
biological children is not to say that this predisposition is
necessarily or always a good thing. Rather, it is to recog-
nize that this tendency is highly common and probably
even hardwired, or biologically primed, into humans.
Ideally, all of us would be as deeply committed to and
concerned for other people’s children as we are for our
own, but practically speaking the human race is not there yet.
The example of adoption, however, remains an inspiration. When the state carefully
screens prospective adoptive parents and these parents receive social support for
their role as parents, and particularly when adopted children can be raised from
birth by parents who are committed to one another over the long haul, the out-
comes for those children don’t look much different from those raised by their own
married parents and are almost certainly better than those being raised in an
unwanted, abusive, or neglectful environment. So again, we see that while biology
is not everything—biological parents can fail their children, and adoptive parents
are generally highly committed and loving parents—in both the sciences and in the
voices of children we learn that biology does matter.
What does the research on non-biological parents and parent figures, including those
found in stepfamilies and other alternative family structures, mean for children being
raised by same-sex parents? We don’t know, at least not yet. The existing research on
same-sex parenting is limited because same-sex couples raising children comprise a
very small part of the overall population and are only recently becoming more visible.
There have been a number of scholarly reviews of the literature on same-sex par-
enting.
62
One of the most thorough was prepared by Steven Nock, a sociologist at
the University of Virginia, who was asked to submit a brief for a major same-sex
marriage case in Canada. After reviewing several hundred studies he concluded that
all of the articles “contained at least one fatal flaw of design or execution” and “not
a single one of those studies was conducted according to general accepted scientific
standards of research.”
63
Limitations and design flaws that he and other reviewers have noted include: a vir-
tual lack of nationally representative samples used; limited outcome measures
…while biology is not every-
thing, in both the sciences and
the voices of children we learn
that biology does matter.
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(mostly of interest to developmental psychologists rather than to sociologists who
study the family); frequent reliance on a mother’s report of her parenting abilities
and skills rather than objective measures of the child’s well-being; and a virtual lack
of long-term studies that follow children of same-sex parents to adulthood. But the
biggest problem by far is that the vast majority of these studies compare single les-
bian mothers to single heterosexual mothers—in other words, they compare chil-
dren in one kind of fatherless family with children in another kind of fatherless
family.
64
How does the long-term experience of children raised by partnered lesbian moms or
gay dads compare with those raised by their own mom and dad? We don’t know yet.
But we do know that compared to children in many other alternative family forms—
children of divorce, never-married heterosexual parents, stepfamilies, and those with
single mothers—those children who are raised by their own married mother and
father in a low-conflict marriage are, on average, significantly better off.
65
Similarly, with regard to children conceived with donor sperm, a donor egg, or a
surrogate mother, as yet there are no data on these children’s long-term, emotional
well-being. Researchers should listen to the stories that are beginning to emerge and
undertake rigorous studies of their experiences.
We have more to learn. But evidence and sensitive observations of children’s lives
strongly suggest the importance to children of recognizing their need to be raised,
whenever possible, by their own mother and father.
Redefining Parenthood—What’s Next?
Increasing Slippage in the Meaning of Fatherhood and Motherhood
The redefinition of parenthood is shaping our culture and our legal system in ways
that contribute to further deep uncertainties in the meanings of fatherhood and
motherhood.
Evidence of this new uncertainty is found in rulings, proposals, and stories from
around the world. In Australia, sperm donors now have the right to contact their
over-18 progeny. But who are these men? Are they sperm donors, or are they fathers
who have rights to know their children?
In New Zealand, the law commission proposed that sperm and egg donors be
allowed to “opt in” to legal parenthood if they wish. Who are these people? Are they
donors? Are they legal parents? If these biological parents can opt in and out of
responsibility to children, as it pleases them, what is the rationale for not allowing
other biological parents to do the same thing?
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The Washington Post Magazine recently featured a story in which a woman who
bore two children from the same anonymous sperm donor located him and brought
the children across the country to meet him when they were 7 and 3 years old.
66
They stayed for a week in his home. Since that time the mother has legally changed
the children’s names (making the donor’s surname their middle names) and desig-
nated him their guardian if she were to die. She has the children call him “Daddy”
but there are no definite plans for the future. An unknown number of other women
also conceived children with his sperm. For this 7 year old
and 3 year old, is this man a father? A sperm donor?
Something else? Who decides?
Last summer in Britain a new website was started—
www.parentsincluded.com. The website is intended for
lesbian and single women who wish to bear a child using
donor sperm and want “both parents” to play a role in the
child’s life. Potential sperm donors who wish to have some kind of relationship with
the resulting child are invited to enroll. If the desires of a lesbian or single woman
and a sperm donor to share a child raising arrangement coincide, bingo! They can
set up a broken family for their child before the child is even conceived.
67
A similar
site for lesbians and gay men exists in Canada. Called the “LGBT Parent
Matchmaker,” it helps those in the Toronto area who wish to locate and pair off with
one or more opposite sex partners with whom they can conceive and “co-parent”
a child.
68
In another example, last summer in the U.S. a classified ad ran on a West
Hollywood news website that read: “I am a single mom who wants to have another
baby, but does not wish to use anonymous donor sperm. If you would like to be a
father with visitation rights, send a picture and introductory letter to Kelly W.…”
69
Even the meaning of the term “sperm donor” is in flux. In some arenas sperm
donors are being equated with fathers. In other situations “sperm donor” has
become a term of opprobrium, hurled by women at the ex-boyfriends who are the
fathers of their children. In one article from Florida a teenage girl refers to the ex-
boyfriend who got her pregnant as “not a father” but “the sperm donor.”
70
In an
article from the Philippines a woman’s friends refer to her ex-boyfriend, the father
of her child, as a “mere sperm donor.”
71
The term apparently signals that the man is
meaningless to them (and, they most likely hope, to their children). It is a cutting
put-down, equating a man they probably once cared for with nothing more than a
minimal and fairly crude biological product.
Yet by far the most striking and potentially far-reaching development signaling
slippage in the meaning of motherhood and fatherhood—a development already
being witnessed in numerous courts—is the increasing recognition of “psychological”
parenthood or “de facto” parental status. In the United States at least ten states,
including Washington, California, Maine, Massachusetts, New Jersey, and Wisconsin,
now allow someone with no biological or adoptive relationship to a child (and no
Are these men sperm donors,
or are they fathers who
have rights to know
their children?
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marital relationship to a child’s parent) to be assigned parental rights and responsi-
bilities as a psychological or de facto parent. To determine retrospectively whether
an adult was a “parent” in a child’s life, the courts examine indications such as
whether the adult lived in the same household as the child, was encouraged to act
as a parent by the child’s existing parent, had acted like a parent without expecting
financial compensation, and had spent enough time with the child to have bonded
with him or her.
72
In many of these cases the petitions are brought by ex-partners
who charge that the child’s existing parent is denying their rights to the child. In
other cases the child’s existing parent charges that the ex-partner is now shirking
parental responsibilities. These cases typically concern same-sex partners, but they
also have serious, as yet unknown implications for the many heterosexuals who are
or have been a child’s stepparent,
73
or who have been a live-in partner.
In Britain, in a chilling, recent decision, a court ruled that two sisters ages 4 and 7
must be removed from their biological mother. Primary care was awarded instead
to her ex-partner, another woman with no biological or legal relationship to the chil-
dren. The decision was made after the biological mother violated a visitation order
and fled with the children to another part of the country. In the decision, one judge
(who nevertheless agreed with the order) expressed her qualms: “I am very con-
cerned at the prospect of removing these children from the primary care of their
only identifiable biological parent who has been their primary carer for most of their
young lives and in whose care they appear to be happy and thriving.”
74
Advocates of assigning legal rights and responsibilities to “psychological” parents
argue they have the best interests of the child in mind. The law, they say, should
not allow biological or adoptive parents to deny their child a relationship with
someone who the child has come to see as a mother or father, nor should it allow
someone who has acted as a parent to evade those duties after the adults’ relation-
ship ends.
This concern is well-intended but woefully misguided, because it ignores an existing
option that is far preferable for children. Even without same-sex marriage rights,
most states in the U.S. allow second-parent adoption by gay and lesbian partners.
In most of the cases that end up in court the second “parent,” for whatever reason,
did not exercise the option to adopt. Perhaps the couple could not agree on the
adoption. Perhaps the second “parent” was uncertain what level of responsibility he
or she wanted to take on. Perhaps they just never got around to it. (Or, perhaps
they lived in a state that does not allow or readily facilitate second-parent adoption
by same-sex couples, which I believe speaks far more to the need to expand second-
parent adoption access than it does to create an entirely new, retrospective category
called “psychological” parent.)
In contrast to the sometimes vague, gradual ways that parents can introduce new
partners into their child’s life, even asking the child to call that person “Mom” or
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“Dad,” and the sudden ways in which these same parents can at times change their
minds if the relationship goes sour, the clearly defined (and in the best interests of
the child, appropriately onerous) process of adoption is the law’s best way of pro-
tecting children’s interests and their relationships with both parents should their
parents break up. As a legal process, adoption is proactive, rigorous, and clear. The
child, the child’s other parent, their community and the state know precisely when
the adult in question is the child’s parent and when he or she is not. Once that
adult becomes an adoptive parent an array of laws and
norms clearly define his or her appropriate role in the
child’s life. Adoptive parents cannot pass in and out of
children’s lives. Their status is understood to be perma-
nent and the legal and social consequences for trying to
forsake that status are clear. For all these reasons, adop-
tion is in general a far better way to protect children than
routinely asking judges to determine whether an adult in
the past met certain subjective criteria to qualify as a par-
ent, especially when the judge acts over the objections of the child’s existing bio-
logical or adoptive parent.
75
In the brave new world of redefined parenthood, sperm donors might or might not
be fathers.
76
Mothers’ girlfriends, and even ex-girlfriends, can be mothers (or
fathers!). Despite their biological or gestational relationship to the child, egg donors
and surrogates are usually not considered mothers, but they can be.
77
Absent fathers,
when they anger their ex-girlfriends, can be reduced rhetorically to mere sperm
donors. But generally unlike sperm donors, the state holds them accountable for
child support for years to come.
What does “father” mean? What does “mother” mean? Who decides? How do children
feel about these decisions?
Cloning and Same-Sex Procreation
Not that long ago the specter of reproductive cloning induced gasps of horror in
nearly everyone. No longer.
Despite the dramatic fall from grace of South Korean cloning researcher Hwang
Woo-suk, research on cloning is proceeding with increasingly broad public support
in many states and nations around the world.
78
The same month that Hwang Woo-suk
made the now-discredited announcement that he had created 11 new stem cell lines
derived from cloned human embryos, a team of scientists at Newcastle University in
Britain announced that they had created cloned human embryos, one of which grew
in the laboratory for five days. At the time, the South Korean achievement made
front-page headlines around the world but the British news a week later barely
elicited a yawn. Cloning embryos was already old news.
Advocates of “psychological”
parenthood say they have
the best interests of the
child in mind.
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These researchers are pursuing what’s known as “therapeutic” cloning, meaning that
cells are farmed from the cloned embryos before allowing them to expire. Many
nations have banned reproductive cloning but allow varying degrees of therapeutic
cloning. Yet the only difference between therapeutic and reproductive cloning is
whether the cloned embryo is implanted in a woman’s womb.
79
The technology to
implant the embryo—in vitro fertilization—has been in increasingly widespread use
since 1978.
Has anyone implanted a cloned embryo in a woman’s womb? A fringe group called
the Raelians has claimed to have done so but the reports have not been confirmed.
So far, no reputable scientist has announced doing so. But how long will it be?
An astonishing article ran last spring in Britain’s Guardian newspaper, headlined,
“Process holds out hope for childless couples.” The process is reproductive cloning.
The experts quoted at a conference who support this claim are not nobodies.
Professor Robert Edwards, who pioneered in vitro fertilization and created the
world’s first “test tube” baby, Louise Brown, in 1978, said that “reproductive cloning
should be considered for patients who have exhausted all other forms of treatment.”
For example, it “would be helpful for people who cannot produce their own sperm
or eggs.”
80
At the same conference, James Watson—yes, the James Watson who with Francis
Crick discovered the structure of DNA—argued “there is nothing inherently wrong
with cloning.” He went on: “I’m in favour of anything that will improve the quality
of an individual family’s way of life.”
Critics point out that cloning experiments in animals have led to numerous stillbirths
and deformed animals before succeeding in a live, apparently healthy animal (and
even those animals have sometimes developed serious health problems later on).
To those critics, Professor Edwards responds that genetic screening of embryos will
take care of all that. With enormous confidence in the ability of medical science to
detect every problem in an embryo—and with casual acceptance of tossing out all
embryos that are not up-to-snuff—he remarked that “very soon” “only healthy
embryos will be implanted during assisted reproduction.” The “birth of a child with
defects after fertility treatment” will be “a thing of the past.”
He concluded with conviction: “If we stand back and say it can’t be done, this is
letting our patients down.”
81
The potential use of cloning techniques to aid in assisted reproduction is only one
example of the stem cell research field growing ever closer to the fertility industry.
In another example, an ongoing problem for stem cell researchers is the shortage
of human eggs required for their work. Eggs can be retrieved from women only by
putting them through a risky regimen of drugs and surgery.
82
The same scientists in
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Britain who recently cloned a human embryo announced a plan one week later to
ask women undergoing infertility treatment to donate their spare eggs for stem cell
research. The proposal has been approved by the university ethics committee and
is under consideration by Britain’s fertility regulatory authority—potentially opening
the door for a woman’s doctor, her most trusted advisor in her often years-long
effort to become pregnant, to ask her to donate her unused eggs for experiments
with therapeutic cloning.
83
Unfortunately, it doesn’t stop there.
Scientists truly on the cutting edge are now especially
interested in creating artificial sperm and eggs and fusing
them in unexpected ways to create human embryos for
implantation in the womb.
Last summer researchers at Sheffield University in Britain announced that they are
now able to develop human embryonic stem cells into early forms of cells that can
become eggs and sperm. If they succeed their work could mean, for example, that
a single man could provide both the egg and sperm for fertility treatment, or that
same-sex couples would no longer have to rely on sperm or egg donors—instead,
they could have children genetically related to both of them.
84
In headlines around the world news articles were frank about the implications: “The
consequences of such work might even mean gay couples or single men could pro-
duce children,” said the Guardian story.
85
“The technique raises the possibility that
gay couples will be able to have biological children,” said the story in the New
Zealand Herald.
86
An article about the Sheffield research and similar work under-
way at Monash University in Australia was headlined: “Doing away with donors.”
87
In a story filed from Copenhagen that ran on a U.S. advice and support website for
gay and lesbian parents, the headline was, “Stem cell research may provide hope to
gay couples.” The article said the research is “huge news for the gay and lesbian
community.”
88
At the same time, last fall a team in Edinburgh announced it had tricked an egg into
dividing and created the first human embryo without a genetic father.
89
That same
week British scientists at Newcastle University were granted permission to create a
human embryo with three genetic parents.
90
Over and over, reports about these breakthroughs emphasize the urgent and fun-
damental importance of assisting adults who wish to bear children. At most, some
ethicists are quoted who might raise concerns about health risks. But the biggest
issues are almost never raised: the long-term physical and emotional conse-
quences for the children who might result; the movement toward a society that
views some human lives as fit for laboratory experimentation for the benefit of
An article was headlined
“Process holds out hope for
childless couples.” That process
is reproductive cloning.
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others; the larger consequences for children and society when parenthood is
increasingly viewed mainly as a means to fulfill adult desires—mediated, defined,
and administered by the state.
91
Group Marriage: Polyamory and Polygamy
Whatever one’s feeling about the legalization of same-sex marriage, and however
emphatically most advocates of same-sex marriage say they do not support group
marriage, recent events make clear that successes in the same-sex marriage move-
ment have emboldened others who wish to borrow the language of civil rights to
break open the two-person understanding of marriage and, with it, parenthood.
92
These efforts are emerging from at least two surprising directions.
93
Polyamorists are perhaps the newest, most unfamiliar players on the scene.
Polyamory (meaning “many loves”) is different from polygamy (meaning “many
marriages”). Polyamory involves relationships of three or more people, any two of
whom might or might not be married to one another. Polyamorous people variously
consider themselves straight, gay, bisexual, or just plain “poly,” while polygamists
are generally heterosexual. Polyamorists distinguish themselves from the “swingers”
of the 1970s, saying that their own relationships emphasize healthy communication
or what they call “ethical non-monogamy.”
Polyamorous unions have been around for a while—probably for a long while—but
they and their supporters are now seeking increasing visibility and acceptance.
Indeed it seems one can hardly pick up a major newspaper without reading about
them. A recent Chicago Sun-Times article mentioned the “Heartland Polyamory
Conference” to be held this summer in Indiana (a similar Midwestern polyamory
conference was held two years ago near the Wisconsin Dells).
94
A Chicago Tribune
article not long ago featured John and Sue, a married couple, and Fred, Peggy, and
Bill who share their bed—the reporter termed them an “energetic bunch” of
polyamorists.
95
And there are routinely articles about polyamory in alternative peri-
odicals such as the Village Voice and Southern Voice and, increasingly, campus
newspapers.
Yet support for polyamory is not just found among the fringe types; notably, the
topic is emerging at the cutting edge of family law and advocacy. In a recent report
on family law, Daniel Cere of McGill University cites examples including a
University of Chicago Law School professor, Elizabeth Emens, who last year pub-
lished a substantial legal defense of polyamory in a New York University law review;
a major report, “Beyond Conjugality,” issued by the influential Law Commission of
Canada which wondered whether legally recognized relationships should be “limited
to two people,” and in An Introduction to Family Law, published by Oxford
University Press, a British law professor who notes quizzically, “The abhorrence of
bigamy appears to stem…from the traditional view of marriage as the exclusive
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locus for a sexual relationship and from a reluctance to contemplate such a rela-
tionship involving multiple partners.”
96, 97
Meanwhile, the Alternatives to Marriage Project, whose leaders are featured often by
mainstream news organizations in stories on cohabitation and same-sex marriage,
includes polyamory among its “hot topics” for advocacy.
98
Among religious organi-
zations the Unitarian Universalists for Polyamorous Awareness hopes to make their
denomination the first to recognize and bless polyamorous
relationships.
99
Advocates for polyamory often explicitly mimic the lan-
guage used by supporters of gay, lesbian, and bisexual
people. They say they must keep their many loves “in the
closet.” That they cannot risk revealing their personal lives
for fear of losing their jobs or custody of their children.
That to reveal their inner “poly” nature is “coming out of the closet.” That being poly
is just who they are.
One potential complication is children. Websites for practitioners of polyamory
devote considerable space to the challenges of being a poly parent.
At LiveJournal.com, one mom says, “Polyamory is what my kids know. They know
some people have two parents, some one, some three and some more. They hap-
pen to have four. Honestly? Kids and polyamory? Very little of it effects [sic] them
unless you’re so caught up in your new loves you’re letting it interfere with your
parenting.”
100
Another older mom advises a young poly mother-to-be who isn’t sure how to
manage a new baby and her poly lifestyle: “Having a child… and being poly isn’t
exactly a cakewalk, but…it is possible. Sometimes it means that you take the
baby with you to go see your OSO [other significant other], or your OSO spends
more time at the house with you, your husband, and the baby, and sometimes
things will come up where plans have to be cancelled at the very last minute
because baby is sick or something…. There is a lot of patience that is needed
from all parties involved, but it can be done. The first six months are extremely
hard.” (italics hers)
101
Another woman is offended by her best friend’s lack of support for her polyamorous
relationship that involves a couple who have a six-year old daughter. She writes,
“No matter how happy and content that kid is, according to my friend we and her
parents are undoubtedly wreaking some serious damage on her by not completely
concealing our relationship from her.” She sighs: “Sometimes intelligent, goodhearted,
rational people who know you fairly well can still hold rather irrational and bigoted
opinions.”
102
Polyamory websites devote
considerable space to the
challenges of being
a poly parent.
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A pro-poly website despairs: “One challenge that faces poly families is the lack of
examples of poly relationships in literature and media.”
103
A sister site offers the
“PolyKids Zine.” This publication for kids “supports the principles and mission of the
Polyamory Society.” It contains “fun, games, uplifting PolyFamily stories and lessons
about PolyFamily ethical living.” Its book series includes titles such as The Magical
Power of Mark’s Many Parents and Heather Has Two Moms and Three Dads.
104
No one can predict the legal future of polyamory. But in a startling development,
and coming from a very different direction, another cultural assault on the two-
person understanding of marriage and parenthood is resurging—polygamy.
The debut this spring of HBO’s new television series, Big Love, which features a
fictional, in some ways likeable polygamous family in Utah, has suddenly propelled
polygamy to the front pages and put the idea of legalized polygamy “in play” in
some surprising quarters. An article in the March issue of Newsweek, headlined
“Polygamists Unite!” quotes an activist saying, “Polygamy is the next civil rights battle.”
He argues, “If Heather can have two mommies, she should also be able to have two
mommies and a daddy.”
105
That weekend on the Today show hosts Lester Holt and
Campbell Brown gave a sympathetic interview to a polygamous family.
During that same month, the New York Times devoted much attention to the subject
of polygamy. One article featured several polygamous women watching Big Love’s
first episode, sharing their perspectives such as: “[Polygamy] can be a viable alter-
native lifestyle among consenting adults.”
106
In another article an economist snick-
ered that polygamy is illegal mainly because it threatens male lawmakers who fear
they wouldn’t get wives in such a system.
107
In a separate piece, columnist John
Tierney argued that “polygamy isn’t necessarily worse than the current American
alternative: serial monogamy.” He concluded, “If the specter of legalized polygamy
is the best argument against gay marriage, let the wedding bells ring.”
108
Not to be
outdone, the cover of the June 19, 2006 New Yorker magazine featured three smiling
brides and a beaming groom driving away in a convertible with “just married”
scrawled across the trunk.
It is not just Big Love that is putting polygamy “in play” in the West. In a development
that shocked many Canadians last winter, two government studies released by the
Justice Department recommended the decriminalization of polygamy, with one
report arguing the move was justified by the need to attract more skilled Muslim
immigrants. And in Canada and the U.S., a significant number of today’s legal scholars
are arguing, as one columnist summarized, that “the abuses of polygamy flourish
amidst the isolation, stigma, and secrecy spawned by criminalization.”
109
Polygamy
per se is not the problem, only “bad” polygamy.
Still, why would any society make the formal move toward legal recognition of
polyamorous or polygamous unions? One likely justification might arise from
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proposals to recognize as third parents those who donate sperm or eggs for the
conception of a baby, such as the New Zealand Law Commission and Victoria
Law Reform Commission proposed last year. In Canada, judges have already been
asked to recognize three legal parents for children. In one decision involving a
lesbian couple who wanted the biological father recognized as a third parent, the
judge noted that he wanted to grant their petition and was only prevented from
doing so by existing laws.
If and when children are recognized as having three (or
more) legal parents, the argument for recognizing some
form of group marriage will almost certainly go something
like this: “Why should children with three parents be
denied the same legal and social protections that children
with only two parents have?”
If we get to that place, pity the children. Already we see the
havoc wreaked on children’s lives when two parents break
up and fight over their best interests. Imagine when three or more adults who have
equal claims on a child end their relationship. In the future, how many homes will
we require children to grow up traveling between in order to satisfy the parenting
needs of these many adults? Three? Four? More?
Unless and until same-sex procreation or three-person reproduction becomes a
reality, children will always arise from the union of one man and one woman. All
children have, as the French feminist philosopher Sylviane Agacinski calls it, a
“double origin,”
110
that of a mother and a father, an origin we cannot deny and that
the children certainly cannot ignore, for they see it every time they look in the mirror.
When we change the mother-father dimension of marriage or the two-person under-
standing of marriage, we also change understandings of parenthood in ways that
will almost certainly dramatically shape the future for children.
Conclusion
A
T THIS MOMENT, with virtually no public discussion, the relationship that is
most core and vital to children’s very survival—that of parenthood—is being
fundamentally redrawn through new laws, proposals, and practices affecting
marriage, reproduction, and family life, with the state playing an increasingly active
role in defining parenthood for broader categories of children.
Given that in some ways the genie is already out of the bottle, it is not entirely
clear what actions the state and social leaders should take in the near future. For
instance, some nations have moved to ban the practice of anonymous donation of
sperm and eggs. This would seem to be a positive development for children—after
Already we see the havoc
wreaked on children’s lives
when two parents
break up and fight over the
child’s best interests.
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all, there is a strong argument to be made that children have a right and need to
know their origins. Yet greater acceptance of the idea that donor-conceived children
have a right to know their origins is also leading to the idea that these children
should have the possibility of some kind of relationship with their sperm or egg
donor (and not just a file of information), or even that the donor should have some
kind of legal parental status in the child’s life, such as in New Zealand and Australia
where commissions have proposed allowing donors to “opt in” as children’s third
legal parents.
What might the future hold for children with three or more legal parents? We have
no idea.
Or, in another example, after Britain passed a law banning donor anonymity there
was a purported drastic drop in the number of men willing to donate sperm. The
state health service then began an active campaign to recruit sperm and egg donors,
no longer just allowing the intentional conception of children who will not know or
be raised in relationship with their own biological parents, but very intentionally
promoting it. Meanwhile, couples in that nation who wish to conceive have even
greater incentive to go abroad to nations or regions that have less regulation—such
as Spain, India, Eastern Europe, or elsewhere—to procure sperm or eggs or surro-
gate wombs, making it even less likely that their child will ever be able to trace their
origins or form a relationship with a distant donor abroad.
Again, how will these developments affect children? At the moment we have no real
idea. But we certainly do have serious and immediate cause for concern.
For reasons like these, this report does not conclude with the usual list of specific
policy recommendations. Rather, this report issues a call to fellow citizens in the
United States and Canada and around the world. The call is for all of us to partici-
pate in urgently needed conversation and research about the revolution in parent-
hood and the needs of children.
This much is clear: When society changes marriage it changes parenthood. The
divorce revolution and the rise in single-parent childbearing weakened ties of
fathers to their children and introduced a host of players at times called “parents.”
The use of assisted reproductive technologies by married heterosexual couples—
and later by singles and same-sex couples—raised still more uncertainties about the
meaning of motherhood and fatherhood and exposed children to new losses the
adults never fathomed. The legalization of same-sex marriage, while sometimes seen
as a small change affecting just a few people, raises the startling prospect of funda-
mentally breaking the legal institution of marriage from any ties to biological par-
enthood. Meanwhile, successes in the same-sex marriage debate have encouraged
others who wish fully and completely to break open the two-person understanding
of marriage and parenthood.
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Here is where we are. In law and culture, the two-natural-parent, mother-father
model is falling away, replaced with the idea that children are fine with any one or
more adults being called their parents, so long as the appointed parents are nice
people. This change is happening incrementally, largely led by self-appointed
experts and advocates in a few fields. But it does not have to be this way. Those of
us who are concerned can and should take up and lead a debate about the lives of
children and the future of parenthood.
As we launch this conversation, a guiding principle could
be this: When there is a clash between adult rights and
children’s needs, the interests of the more vulnerable
party—in this case, the children—should take prece-
dence.
111
A great deal of evidence supports the idea that
children, on average, do best when raised by their own,
married mother and father, with adoption as an important,
pro-child, admirable alternative. With regard to some newly visible family forms,
such as families headed by gay or lesbian parents or those created using donor
sperm, eggs, or surrogacy, we have more to learn more about the lasting, inner
experience of the children.
To provide time and space for this conversation and for more research, this report
also calls for a moratorium or a “time out” lasting five years. Until we better under-
stand and prioritize the needs of children, no legislatures, courts, or commissions
should press forward with recommendations or changes that broadly undermine the
normative importance of mothers and fathers in the lives of children, nor should
they support intentionally denying unborn children knowledge of and a relationship
with their own mother and father. Rather, they should concentrate their energies on
rigorous inquiry and active debate about the needs of children and the role of
mothers and fathers in their lives.
The well-being of the world’s children calls us to act—not years from now but right
now. For their sake, for those born and those yet to be born, we must be willing to
launch a sometimes uncomfortable but urgent debate about the well-being of chil-
dren born in an age that is rapidly redefining the meaning of parenthood. Nothing
is inevitable. The time to act is now.
This report issues a call
to fellow citizens in the U.S.
and Canada and
around the world.
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Endnotes
1. Key insights about the fragmentation of parenthood come from Dan Cere, Principal
Investigator, The Future of Family Law: Law and the Marriage Crisis in North America, (New York:
Institute for American Values, 2005), especially the section titled “Fragmenting Parenthood.”
2. Bill C-38 legalized same-sex marriage nationally in Canada. Same-sex marriage was already
legal in seven Canadian provinces and one territory, including Ontario, British Columbia and Quebec.
3. Reported as “Spanish birth certificates to account for gay couples,” on the Advocate.com,
March 8, 2006. They cite an article from The Daily Telegraph in London. For further discussion, see
also George Weigel, “Europe’s Two Culture Wars,” Commentary, May 2006. Weigel writes, “…Earlier
this year [in Spain]…the Zapatero government, which had already legalized marriage between and
adoption by same-sex partners and sought to restrict religious education in Spanish schools,
announced that the words ‘father’ and ‘mother’ would no longer appear on Spanish birth certificates.
Rather, according to the government’s official bulletin, ‘the expression ‘father’ will be replaced by
‘Progenitor A,’ and ‘mother’ will be replaced by ‘Progenitor B.’’ As the chief of the National Civil
Registry explained to the Madrid daily ABC, the change would simply bring Spain’s birth certificates
into line with Spain’s legislation on marriage and adoption. More acutely, the Irish commentator David
Quinn saw in the new regulations ‘the withdrawal of the state’s recognition of the role of mothers
and fathers and the extinction of biology and nature.’”
4. New Zealand Law Commission, report 88, “New Issues in Legal Parenthood,” (April 2005,
Wellington, New Zealand).
5. Victorian [Australia] Law Reform Commission, report on assisted reproductive technology,
(April 2005, Melbourne, Australia), Section 2.35. In other words, the planned conception of children
lacking a relationship with their own father or mother serves a social good of reducing the stigma felt
by already-born children who do not live with their own father or own mother.
6. “Report of the Commission on Assisted Reproduction (Ireland),” April 2005.
7. Christine O’Rourke, quoted in “Reproduction report ‘too radical for legislation’” in The Sunday
Times—Ireland, May 15, 2005, online edition.
8. “ICMR guidelines go a long way in curbing exploitation,” NewIndPress.Com, June 21, 2005,
emphasis added.
9. Countless articles reported that banning donor anonymity had caused a sudden, drastic drop in
men willing to donate sperm in Britain. But just recently the agency that regulates fertility clinics in
Britain—the Human Fertilisation and Embryology Authority—refuted that claim, calling it a “myth” and
saying the problem instead is “patchy provision” of sperm “across the country.” See “Sperm donor law
not a deterrent,” BBC News, June 8, 2006, online edition. Nevertheless, the perception, real or not, is
that it is very difficult to obtain donor sperm in Britain and extremely difficult to obtain donor eggs.
10. See “Sperm donor campaign launched,” DeHavilland, National News, January 26, 2005; “Every
sperm donor recruited costs public £6,250, say critics,” News Telegraph, by Charlotte McDonald-
Gibson, July 3, 2005, online edition. In the United States, the California Cryobank has been offering
open identity sperm donation for nearly two decades. Some of the larger sperm banks in the U.S. are
beginning to offer this option. See “Sperm donation process moving toward more openness in iden-
tifying fathers,” Pittsburgh Post Gazette, by Virginia Linn, August 24, 2005, online edition.
11. There is now pressure on the state to tax this growing business. “Taxman has eye on sperm,”
The Copenhagen Post, June 3, 2005, article not available online. See also, “Danish tax may drain
world’s top sperm bank,” China View, May 27, 2005. Coverage of Cryos prompted a spate of stories
about blue-eyed, blonde “Viking babies” being born around the world.
12. “Insemination rights for lesbians,” News.com.au via Reuters, June 2, 2006
http://www.news.com.au/story/0,10117,19346798-23109,00.html.
13. Thanh Nien News, “Doctors call for community sperm donation in Vietnam,” August 15 2005,
reported by Thanh Tung, translated by Minh Phat.
14. Medical professionals used to urge infertility patients (who were almost always heterosexual
married couples) to keep their use of donor sperm a secret, for their sake as well as their child’s. Now
the trend is moving toward encouraging parents to be open with their children, but many parents
remain reluctant to do so, especially when there is a (social) father in the family.
15. “Pressure on Sperm Donor Laws,” The Age, by Carol Nader, June 1, 2005, web edition; “Ad
campaign planned for sperm donor kids,” Tanya Giles, June 2, 2005, Herald Sun, web edition; see
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also, “Revisiting a law that was ahead of its time,” The Age, June 6, 2005, editorial, which states that
“by 1995, an estimated 10,000 Victorians had been born using donor sperm or eggs” and argues that
the rights of children to know their genetic origins outweigh the rights of their parents to keep this
information from them. Further coverage of the planned $100,000 ad campaign is found in Carol
Nader, “Bid to ease trauma as donors seek children,” The Age, January 27, 2006, online edition.
16. Bob Egelko, “State Supreme Court upholds rights, responsibilities of same-sex parents,” San
Francisco Chronicle, August 22, 2005, online edition; Adam Liptak, “California Ruling Expands Same-
Sex Parental Rights,” New York Times, August 23, 2005, online edition; David Kravets, “California Court
Protects Kids of Gay Couples,” Associated Press, August 23, 2005.
17. As Time magazine noted when the Supreme Court refused to hear a case from Washington
State that granted de facto parental status to a mother’s lesbian ex-partner, “While we closely monitor
how gay rights are granted and taken away, we pay almost no attention to the fact that stepparents
are in the same legal limbo. Despite being ubiquitous, step-relationships are rarely recognized by the
law. In most states, stepparents are considered ‘legal strangers’ even if they have cared for and sup-
ported a stepchild for years. They have almost no official responsibility and barely any rights.” Rulings
on de facto parenthood are likely to unfold among heterosexuals in unexpected ways. Po Bronson,
“Are Stepparents Real Parents?”, Time Magazine, May 17, 2006, online edition.
18. A subsequent decision denied the egg donor any relationship to the children. The surrogate
mother was later awarded custody of the triplets; in a recent development a judge ordered that she
must repay the biological father her surrogate fee as well as child support. (The surrogate mother and
her husband already have other children and, while her husband does work, they appear to live on
a limited income.) The surrogate mother took the triplets home against the biological father’s wishes
after, she claims, he and his girlfriend did not name the children or visit them in the hospital for six
days after seeing them when they were born. “Surrogate Mom Must Repay Biological Father,” AP,
March 16, 2006.
19. A similar case, in which a mother now seeks child support for two-year-old twins fathered
by a known sperm donor, was recently filed in the Chicago area. As in the Pennsylvania case, the
biological mother and father worked out an informal arrangement for use of the sperm. To my knowl-
edge, men who donate their sperm anonymously in clinics have not been held liable for child sup-
port in the United States.
20. Lawrence Kalikow, quoted in “PA legislators ponder laws for egg, sperm donors,” in
Pittsburgh Tribune-Review, June 5, 2005, online edition.
21. The Ohio legislation is H.B. 102. In New Zealand a New Zealand Herald article, headlined
“New hope for childless couples,” reports “In a significant social shift, embryos left over by couples
who have successfully undergone in vitro fertilization (IVF) will be made available to others trying to
have a child.” New Zealand Herald, by Stuart Dye, September 8, 2005, online edition.
22. Gov. Mitt Romney has opposed this idea and instead instructed hospitals in these cases to
cross out the words “mother” or “father” and write in the phrase “second parent.” He added: “Look,
each child has a mother and a father. They should have the right to have that mother and father
known to them…” See “Massachusetts debates birth certificates for babies of same-sex couples,” Fox
News.com July 27, 2005.
23. In a “softer” example of this kind of thinking, a city in Australia, using state and federal
funds, distributed a booklet called “We’re Here” to more than 2,000 day care centers which encour-
aged staff to challenge homophobia. Among its recommendations was to use the terms “Partner A
and Partner B on forms instead of Mum and Dad.” Reported in the Herald Sun, August 5, 2005, by
Susie O’Brien.
24. A recent article about the policy was on the front page of the Montreal Gazette, June 1, 2005.
25. Justice Paul Rivard of the Supreme Court of Justice, quoted in “Court rules lesbians can be
co-mothers; Ontario given 12 months to change law,” by Tracey Tyler, Toronto Star, June 7, 2006. In
Canada, the email newsletter produced by Diane Allen of the Infertility Network (based in Toronto)
is a very helpful source for news items related to infertility, donor conception, adoption and repro-
ductive/genetic technologies in Canada and around the world. See www.infertilitynetwork.org.
26. Note that in the area of adoption the question of revealing the identity of birth mothers is
hotly contested, in part because of fears that loss of anonymity will discourage women from bringing
the child to term.
27. Larry Fisher-Hertz, “Ulster gay couple wins legal battle; son’s birth certificate is changed,”
Poughkeepsie Journal, January 19, 2006. The child was adopted in Virginia.
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28. See “Emmett has two mommies: the next gay rights battle heads to court,” Portland Mercury
News, April 9, 2006, online edition.
29. The English translation of the report, made available on the French report website, translated
“le principe de precaution” as “a principle of caution,” but an ethicist fluent in English and French tells
me that the more accurate translation in English is the commonly used term “precautionary principle.”
30. French National Assembly, “Parliamentary Report on the Family and the Rights of Children,”
January 26, 2006.
31. The redefinition of parenthood also appears to be encountering some resistance in Finland.
There, one article reports the nation is in the midst of “intense debate” about a bill that would impose
regulations on fertility treatments. “Leading the assault against the bill were the opposition Christian
Democrats, with the party’s chairwoman Paivi Rasanen in the vanguard. Her main argument was that
fatherlessness for a child is worse than childlessness for an adult, and that therefore a child’s right to
a father trumps other rights in the matter.” From “Opinions deeply polarized in parliamentary debate
on fertility treatment bill,” Helsingin Sanomat, February 24, 2006, online edition. China also bans the
sale of sperm or eggs and recently warned it will punish those who profit from surrogacy, but of
course there are other significant concerns about China’s role in regulating reproduction, including
coercive enforcement of the one-child policy.
32. See http://www.unicef.org/crc/. Debates at the time of the ratification make clear that treaty
signatories understood “parents” to mean a child’s own mother and father. The United States has not
signed the convention. For more on the convention, see Don Browning, “The United Nations
Convention on the Rights of the Child: Should It Be Ratified and Why?” Emory International Law
Review, volume 20, no. 1, Spring 2006.
33. Elizabeth Marquardt, Between Two Worlds: The Inner Lives of Children of Divorce (New York:
Crown Publishers, 2005); Judith Wallerstein, Julia Lewis, and Sandra Blakeslee, The Unexpected Legacy
of Divorce: A 25 Year Landmark Study (New York: Hyperion, 2000).
34. Donor-conceived people say that donor conception is very different from adoption. Adopted
children know that their biological parents, for whatever reason, could not raise them. That knowl-
edge can be painful. At the same time, they also know that the parents who adopted them saved them
from the fate of having no family. By contrast, donor-conceived children know that the parents raising
them are also the ones who, before conception, intentionally planned to deny them a relationship
with (and often knowledge of the identity of) at least one of their biological parents. The pain they
might feel was caused not by a distant, unknown biological parent who gave them up but by the
parent who raised them and cares for them every day. This knowledge brings the loyalty and love
children naturally feel for the parents raising them in direct conflict with the identity quest that most
young people go through. When donor-conceived young people ask, “Who am I? Where did I come
from? Why am I here?” they can confront a welter of painful uncertainties that our culture hasn’t begun
to understand. For example, Joanna Rose, a doctoral student and donor-conceived adult in Australia,
writes: “Our kinship was broken as part of a reproductive ‘service’ to the parents that raised us. Unlike
the child placement principle now in effect in adoption this is not a last resort, nor could severed kin-
ship be said to be in our best interests….” See http://familyscholars.org/?p=4488.
35. Tangled Webs is an organization based in Victoria, Australia that is organizing some of these
donor-conceived young adults around the world. Another organization of donor-conceived adults was
recently formed in Japan: “Japanese children of anonymous sperm donors seek support, right to truth,”
from the Yomiuri Shimbun, reprinted in Fort Wayne News Sentinel, July 5, 2005, online edition.
36. “I want to know where I come from,” BBC News, April 26, 2005, online edition; “Sperm and
the quest for identity,” BBC News, June 1, 2005, online edition; Nancy J. White, “Are you my father?”
Toronto Star, April 16, 2005, online edition; Carol Nader, “My dad is my dad, but who gave the
sperm?” The Age (Australia), June 3, 2005, online edition; Judith Graham, “Sperm donors’ offspring
reach out into past,” Chicago Tribune, June 19, 2005, online edition, and more.
37. In the United States, see www.donorsiblingregistry.com, a website started by a mother orig-
inally to help her donor-conceived son who wished to locate his half-siblings. It has since been fea-
tured on Good Morning America, The Today Show, Oprah, and many other programs. In Britain, see
www.ukdonorlink.org.uk, a pilot voluntary information exchange and contact register funded by the
Department of Health. Its mandate is to “encourage more donors, donor-conceived adults and their
genetically related half-siblings to register with them and have the chance to make contact with each
other.” See, “UK Donor Link Confirms Matches for Half-Siblings,” Medical News Today, June 1, 2005,
online edition. Note that it is more than a little ironic that the British Health Service is funding recruitment
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efforts for sperm and egg donors and also funding attempts for donor-conceived adults to make con-
tact with their donors and their half-siblings. The New Zealand government just began a similar donor
registry service in August 2005: “The Human Assisted Reproductive Technology (HART) Register will
record all future donations at fertility clinics which result in a birth, and information about earlier
donors and births. It will allow future donors and their offspring to find out about each other, and
will also give people involved in earlier donor treatments the chance to do the same if they all give
consent.” http://www.stuff.co.nz/stuff/0,2106,3385637a7144,00.html. “New register for donors and
donor offspring launched,” August 22, 2005.
38. The obvious absence of the biological father in families headed by single mothers by choice
and lesbian couples appears to have prompted more openness among many of these mothers to
telling their children they were conceived with donor sperm, but studies suggest that the majority of
generally heterosexual, married women do not tell their children they were conceived with a donor
egg. For one analysis, see Nancy Hass, “Whose Life Is it Anyway?” Elle Magazine, September 2005
issue. Among many astute observations in the piece, Hass notes that becoming pregnant with a donor
egg is yet another way that ageing women can suggest they are still youthful. (Among married, hetero-
sexual men, there are indications that use of donor sperm is declining because of increasingly
effective treatments for male infertility.)
39. These terms were used by donor-conceived teenagers in Amy Harmon, “Hello, I’m Your
Sister. Our Father is Donor 150,” New York Times, November 20, 2005, front page.
40. Joanna Rose, on the Family Scholars Blog.
41. See Abigail Gardner, Families Like Mine: Children of Gay Parents Tell It Like It Is (New York:
Harper Paperbacks, 2005).
42. One of the few studies of their attitudes is a small study by J.E. Scheib, M. Riordan, and S.
Rubin, “Adolescents with open-identity sperm donors: reports from 12-17 year olds,” Human
Reproduction volume 20 no. 1, (European Society of Human Reproduction and Embryology, 2004),
pp. 239-252. The majority of the teenagers who returned mail-back questionnaires reported that they
would contact the donor because they believed it would help them learn more about themselves.
They are reported to have felt “somewhat to very comfortable” about their origins. Very few said they
wanted a “father/child relationship” with the sperm donor and none said they would ask him for
money. (One of the primary concerns of this study was how open-identity sperm donation would
impact the adults as well as the children, and most headlines reporting the study emphasized the
“good news” for adults, such as this one: “Children ‘respect privacy’ of their sperm donor fathers,”
News Telegraph, by Nic Fleming, December 11, 2004, online edition.) While the study findings merit
consideration, a mail-in survey with check-the-box responses is not a particularly strong way to gauge
the inner experience of young people. It is also problematic to survey teenage and younger children
who are still living at home and very much dependent on their parents. In-person, lengthy interviews
with independent young adults who are perhaps more open and reflective about their childhood
experience might yield a different portrait, especially if the anecdotal stories from young adult donor-
conceived people now emerging are any indication.
43. Narelle Grech and Joanna Rose posted their comments on the Family Scholars Blog at
www.familyscholars.org.
44. Quoted in Tom Sylvester, “‘Sperm Bank Baby’ to Meet Test Tube Dad”, National Fatherhood
Initiative, Fatherhood Today, page 4, volume 7, issue 2, Spring 2003. Sources for the article included
Brian Bergstein, “Woman to meet her father—a sperm donor,” Associated Press, January 30, 2002;
Yomi S. Wronge, “P.A. teen to contact dad who was sperm donor,” Mercury News, January 20, 2002;
Trisha Carlson, “Sperm bank baby to learn donor’s name,” KPIX Channel 5, February 1, 2002; and
Tamar Abrams, “Test Tube Dad,” viewed on www.parentsplace.com, April 1, 2002.
45. “I want to know where I come from,” BBC News, April 26, 2005, online edition.
46. Judith Graham, “Sperm donors’ offspring reach out into past,” Chicago Tribune, June 19,
2005, online edition.
47. Ibid.
48. “Japanese children of anonymous sperm donors seek support, right to truth,” from the
Yomiuri Shimbun, reprinted in Fort Wayne News Sentinel, July 5, 2005, online edition. Also in Japan,
a 39 year old donor-conceived woman told a reporter, “I feel that I came into this world for the sake
of my mother. After she died, I started wondering if I had a reason to exist anymore.” She continued,
“I can’t overcome the feeling that I wasn’t exactly born, but made.” (italics in article) See Tomoko
Otake, “Lives in limbo,” The Japan Times, August 28, 2005, online edition.
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49. Many donor-conceived adults raise the problem of having an unknown number of unknown
half-siblings, both because they want to know about their other blood relations in their quest to
understand who they are, and because they fear unknowingly dating one of them (or their future chil-
dren unknowingly dating offspring of one of their half-siblings). Since many children close in age
could be conceived from the same sperm donor and live in relative proximity to the sperm bank, and
since sharing half your genetic make-up with someone might make them seem especially “familiar”
and attractive (especially if you did not know they were your blood relation) the fear of unknowingly
dating a half-sibling is not unfounded. At the Family Scholars Blog, Narelle Grech, a donor-conceived
adult, asks, “In the future, will we all have to have a DNA test when we start dating someone, ‘just
in case’?” In a news article, one mother who used donor insemination says optimistically that her son
will simply need to get DNA tests of partners once he starts “dating seriously.” See Kay Miller, “The
legacy of donor 1047,” Minneapolis Star Tribune, August 21, 2005, online edition.
50. Dear Abby, San Jose Mercury News, January 2, 2005, web edition. In a terse, two sentence
reply, Abby told the girl that the sperm donor “was doing a noble deed” and there is “no way to trace
his identity.”
51. The response is akin to those who suggest to children of divorce that they should be grateful
for their parents’ divorce because without it they would not have the new half-brother or half-sister
who was born in a subsequent marriage. There is no rational or compassionate basis for suggesting to
someone who is struggling to tell their own story that to do so is to wish away the existence of a
human life, their own or someone else’s.
52. Blaine Hardin, “2-Parent Families Rise After Change in Welfare Laws,” New York Times, August
12, 2001.
53. For full citations, see Why Marriage Matters: 26 Conclusions from the Social Sciences, 2nd edi-
tion (New York: Institute for American Values, 2005). See also Robin Fretwell Wilson, “Evaluating
Marriage: Does Marriage Matter to the Nurturing of Children” (San Diego Law Review, volume 42: 847-
881, 2005).
54. Girls in stepfamilies are slightly more likely to have a teenage pregnancy compared to girls in
single-parent families, and much more likely to have a teenage pregnancy than girls in intact, married
families. 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. (See Why Marriage Matters, foot-
notes 36 and 37.) In regard to educational achievement, children whose parents remarry do not fare
better, on average, than do children who live with single mothers. (See Why Marriage Matters, foot-
note 84.) One recent study finds that boys in 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. (See Why Marriage Matters, foot-
note 130.) Teens in both one-parent and remarried homes display more deviant behavior and commit
more delinquent acts than do teens whose parents have stayed married. (See Why Marriage Matters,
footnote 131.) Children living with single mothers, mothers’ boyfriends, or stepfathers are more likely
to become victims of child abuse. (See Why Marriage Matters, footnotes 153-155.)
55. Some same-sex marriages will involve children from previous unions and in that sense will be
very much like stepfamilies. Other same-sex marriages that form before children are born or adopted
might in some ways parallel an intact, heterosexual marriage, but even in these unions at least one
parent will not be a biological parent to the child, much like stepfamilies (or heterosexual adoptive
families).
56. Robin Fretwell Wilson writes, “These studies of fractured families differ in their estimates of the
percentage of girls molested during childhood. However, regardless of whether the precise number is
50% or even half that, the rate is staggering and suggests that girls are at much greater risk after
divorce than we might have imagined.” She continues, “Despite these studies, the idea that so many
girls in fractured families report childhood sexual abuse strains credulity. Nevertheless, with more
than seventy social science studies confirming the link between divorce and molestation, there is little
doubt that the risk is indeed real. As difficult as it is to accept, a girl’s sexual vulnerability skyrockets
after divorce, with no indication that this risk will subside.” In “Children at Risk: The Sexual
Exploitation of Female Children after Divorce,” 86 Cornell Law Review 251: January 2001, p. 256.
57. Joseph H. Beitchman, et al, “A Review of the Short-Term Effects of Child Sexual Abuse,” 15
Child Abuse and Neglect 537, 550 (1991), cited in Robin Fretwell Wilson, footnote 9.
58. Martin Daly and Margot Wilson, 1996. “Evolutionary Psychology and Marital Conflict: The
Relevance of Stepchildren,” in Sex, Power, Conflict: Evolutionary and Feminist Perspectives, eds. David
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M. Buss and Neil M. Malamuth (Oxford: Oxford University Press): 9-28, cited in Why Marriage
Matters: Twenty-One Conclusions from the Social Sciences, published by the Center of the American
Experiment, the Coalition for Marriage, Family and Couples Education, and the Institute for American
Values (2002).
59. Cites W.D. Hamilton, “Significance of paternal investment by primates to the evolution of
adult male-female associations, in D.M. Taub, ed., Primate Paternalism (New York: Van Nostrand,
1964), pp. 309-335.
60. Cites M.S. Smith, “Research in developmental sociobiology: Parenting and family behavior,”
in K.B. MacDonald, ed., Sociobiological Perspectives on Human Development (New York: Springer-
Verlag, 1988), pp. 271-292.
61. David Popenoe, “The Evolution of Marriage and the Problem of Stepfamilies: A Biosocial
Perspective,” in Alan Booth and Judy Dunn, eds., Stepfamilies: Who Benefits? Who Does Not? (Hilldale,
New Jersey: Lawrence Erlbaum Associates, 1994), pp. 3-27.
62. See “Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-
Being,” iMapp Policy Brief, February 27, 2004 (Washington, D.C.: Institute for Marriage and Public
Policy), which includes full citations.
63. Affidavit of Stephen Lowell Nock, Halpern v. Attorney General of. Canada, No. 684/00 (Ont.
Sup. Ct. of Justice).
64. See “Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-
Being,” iMapp Policy Brief, February 27, 2004 (Washington, D.C.: Institute for Marriage and Public
Policy).
65. Approximately two-thirds of divorces end low-conflict marriages; about one-third of divorces
end high-conflict marriages. See Paul R. Amato and Alan Booth, A Generation at Risk: Growing Up in
an Era of Family Upheaval (Cambridge: Harvard University Press, 1997), p. 220.
66. “Family Vacation,” by Michael Leahy, Washington Post Magazine, June 19, 2005, online edi-
tion. Examples of other media coverage of the same story includes, “Anonymous Sperm Donor Meets
Kids,” CBS News, New York, August 23, 2005, online at www.cbsnews.com.
67. See www.parentsincluded.com.
68. Http://groups.yahoo.com/group/to-parent/. Note that the term “co-parent” evolved amid the
divorce revolution as mothers and fathers were urged to be effective “co-parents” in the wake of their
split. The term is now also commonly used to describe situations in which two or more men and
women (who may be gay or straight)—long before the birth of a child—plan to conceive and raise
a child together without being in a romantic relationship with one another and usually without living
together.
69. The ad listed a PO Box and advised, “Must be white, in good health, no family history of
ADD or ADHD please.” Website viewed July 12, 2005.
70. “Baby Mamas,” by Rodney Thrash, St. Petersburg Times, May 6, 2005 online edition.
71. “All About Eves,” by Anne A. Jambora, Philippine Daily Inquirer, May 8, 2005, online edition.
72. See Sara Butler Nardo, “De Facto Parenthood: The reformers’ latest unwholesome innovation
in family law,” The Weekly Standard, March 6, 2006. She argues the courts are operating on a “circular
definition” in which “a parent is a person who performs the function of a parent….” In November
2005, Washington State was the most recent to award psychological parent status to a parent’s ex-
partner (in this case, a mother’s ex-girlfriend); the opinion is available here
http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=756261MAJb. For a rebuttal to the
Nardo article, see Dahlia Lithwick, “Why courts are adopting gay parenting,” Washington Post opinion
piece, March 12, 2006, B02.
73. See Po Bronson, “Are Stepparents Real Parents?”, Time Magazine, May 17, 2006, online edi-
tion, for an examination of the Washington State de facto parent case and its implications for the
approximately one-third of Americans who live in stepfamilies.
74. Frances Gibb, “Mother loses her children to former lesbian partner,” The Times Online, April
7, 2006.
75. Of course it is heartbreaking to see a parent alienate a child from someone to whom the child
is close. Unfortunately, it can happen in all kinds of situations, for instance, when mothers alienate
their children from their ex-husband’s parents; parents alienate their children from loving aunts or
uncles; parents abruptly dismiss nannies who the children have come to love, and so on. The law is
largely unable to heal these disappointments, and the attempt to do so—with the state intervening
further in private decisions made by mothers and fathers that are not resulting in abuse or neglect of
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children—is likely to do children overall more harm than good. Further, if same-sex couples in some
states are encountering discrimination in accessing second-parent adoption (that is, if they are finding
the process more onerous than heterosexual couples pursuing the same status), or if the option is not
available in some states, then the appropriate response is to fix the problems in second-parent adop-
tion and not to resort broadly to an entirely different, after-the-fact category called “psychological”
parent.
76. A company called Family Evolutions in New Jersey, owned by a lesbian couple with chil-
dren, has created a t-shirt and bib for children which reads, “My Daddy’s Name is Donor.” (Their
young son is pictured in the t-shirt on their website.) See Elizabeth Marquardt, “Kids need a real past:
Children with donor parents suffer when those raising them downplay their origins,” op-ed in
Chicago Tribune, May 15, 2005. Available at http://www.americanvalues.org/html/donor.html.
77. “Egg donor has parental rights, courts say,” AP article in Pittsburgh Post-Gazette, September
10, 2005, online edition.
78. In the United States, Harvard University recently announced plans to begin privately funded
stem cell research, joining the University of California at San Francisco and a few private companies.
These teams are working to clone human embryos that are genetically matched to patients.
79. Increasingly the distinction between “therapeutic” and “reproductive” cloning appears to be
dropped in the media—and, to hear some tell it, only extreme conservatives oppose cloning. For
instance, on NPR the scholar Alan Wolfe said that Pope Benedict is on the “far right” because he
opposes, among other things, “cloning.” Similarly, in a column Maureen Dowd said that one of the
many serious concerns about the new Pope is that he “once called cloning ‘more dangerous than
weapons of mass destruction.’”
80. Alok Jha, “Process holds out hope for childless couples,” Guardian, May 20, 2005, online
edition.
81. Ibid.
82. A young woman in Britain recently died from ovarian hyperstimulation syndrome (OHSS),
the most common high-risk side effect of egg donation. Another young woman who developed OHSS
and suffered a stroke and brain damage just won a large lawsuit in Britain.
83. Mark Henderson, “Cloning team calls for IVF egg donations,” Times Online, May 31, 2005;
“Cloning research egg donor plan: women could be allowed to donate their eggs for therapeutic
cloning research under new rules to be considered by fertility watchdog,” BBC News Online,
February 14, 2006. In July of 2006 the fertility regulatory authority granted a team of scientists from
Newcastle and Durham Universities permission to contribute to the costs of a patient’s IVF treatment
in return for receiving some of her eggs for use in therapeutic cloning research. See Andrew
Douglas, “Human egg donor boost for stem cell research,” The Northern Echo, July 27, 2006, online
edition.
84. In Japan in 2004, scientists created a mouse from the genetic material of two females—in
other words, a mouse with two genetic mothers and no genetic father. To do so, they created over
450 embryos of which 370 were implanted and ten were born alive. Only one survived to adulthood.
The others died of a range of birth defects. See Bijal P. Trivedi ,“The End of Males? Mouse Made to
Reproduce Without Sperm” National Geographic News, April 21, 2004, online edition. How can any-
one even consider experimenting with human embryos and children in this way?
85. James Meikle, “Sperm and eggs could be created from stem cells, says new study,” Guardian,
June 2, 2005, online edition.
86. Maxine Firth, “Stem cell babies could have single parent,” New Zealand Herald, June 21, 2005,
online edition.
87. Milanda Rout, “Doing away with donors,” Herald Sun (Australia), June 21, 2005, online
edition.
88. “Stem cell research may provide hope to gay couples,” at www.proudparenting.com, June
30, 2005. An example of news coverage later in the year included Hannah Seligson, “Science’s hope
of two genetic dads; stem cell research could soon enable both partners in gay, lesbian couples to
pitch in,” at Gay City News, September 8-14, 2005 issue, online edition. The article quotes a physician
(not involved with the research) saying that “gay and lesbian couples often have to ‘deal with the
issue of not being a genetic parent and that can be tough for that parent.’” The reporter writes, “The
hope is that this new discovery could alleviate that component of stress for gay and lesbian couples
starting families.” The article does not address the possibility of serious health (or other) risks for these
embryos or children.
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89. Roger Highfiel and Nic Fleming, “Scientists create human embryo without a father; source of
stem cells: ‘virgin’ territory for British researchers,” The Daily Telegraph, September 10, 2005, online
edition.
90. Mark Henderson, “Scientists win right to create human embryo with three genetic parents,”
Times Online, September 9, 2005.
91. In her article, “Where Babies Come From: Supply and Demand in an Infant Marketplace,”
Harvard Business Review, February 2006, pp. 133-142, author Debora L. Spar suggests that market
regulation of the fertility industry in the U.S. could, among other things, assure equity (for adults).
She writes, “Legislators…could decide that having children is a basic right and that society therefore
needs to find some way to provide at least one child to everyone who wants to be a parent.” (p.
140) Spar does not claim necessarily to support this idea but neither does she oppose it. This sugges-
tion is the clearest articulation yet of the adult right to a child, taken to its most logical—and chilling—
conclusion.
92. When confronted by the specter of group marriage; increasing use of donor sperm and eggs
or surrogacy; new advances in reproductive technology, and the like, some who support same-sex
marriage argue that heterosexuals are almost wholly responsible for this revolution in marriage and
parenthood given their rampant divorce, unwed childbearing, and initial use of sperm and egg donors
and surrogates in reproduction. As Stephanie Coontz wrote in a New York Times op-ed (“The
Heterosexual Revolution,” July 5, 2005), “Gays and lesbians simply looked at the revolution hetero-
sexuals had wrought and noticed that with its new norms, marriage could work for them, too.” These
critics are partly right. Heterosexuals have certainly done a fine job of messing with marriage and par-
enthood. (Most of my time is spent researching the impact of divorce on children.) But here is where
the critics are wrong: None of the other legal and social changes so far have required a legal redefi-
nition of marriage. Same-sex marriage requires legally redefining the institution with gender neutral
terms that make law and culture unable to affirm children’s real needs for their mother and their father
(instead law and culture can only affirm that children need “two parents”). Because the vast majority
of children in the population are born to heterosexuals, not homosexuals, silencing the dialogue
about the importance of mothers and fathers will negatively affect mainly and overwhelmingly that
far larger group of children. To raise the troubling and perhaps even unintended consequences of
legalizing same-sex marriage is not meant to stigmatize same-sex couples raising children. These couples
are and will continue to raise children. I do believe they need social and legal protections for them-
selves and their children and they should certainly not be denied the children born to them. But there
could be significant unintended consequences for the vast majority of children born to heterosexuals
when we edit mothers and fathers out of marriage and family law.
93. Much of this section was published in Elizabeth Marquardt, “The Future of Polygamy: Two
Mommies and a Daddy,” Christian Century, July 25, 2006.
94. Reid J. Epstein, “Whole lotta love; ‘Polyamorists’ go beyond monogamy,” Milwaukee Journal-
Sentinel, September 12, 2004, online edition.
95. Trevor Stokes, Columbia News Service, “A poly life: monogamy with more partners,” Chicago
Tribune, viewed February 24, 2006, online edition.
96. See Dan Cere, The Future of Family Law.
97. In a bid for greater public attention for their argument that marriage rights should be extended
not just to same-sex couples but to any group of caring adults (who might or might not be in a
conjugal relationship), 250 U.S. academic and social leaders (including many notables) released a
statement at the end of July of 2006 titled “Beyond Same-Sex Marriage: A New Strategic Vision For All
Our Families and Relationships.” For the executive summary, full statement, and list of signatories, see
www.beyondmarriage.org.
98. See their website at http://www.unmarried.org/. “Hot topics” are listed at left.
99. See www.uupa.org.
100. Http://www.livejournal.com/community/polyamory/890327.html. For me, one of the most
disturbing ideas in all this is the all-too-common assumption that when adults begin a sexual and/or
live-in relationship they become “parents” to each other’s already-born children. Children with single
or divorced heterosexual parents will tell you that their parent having sex with someone does not
make the child automatically see that person as a parent. Even marriage (as in stepfamilies) does not
automatically create (legally or psychologically) a parent-child relationship. Trusting, parent-like
bonds between stepparent and stepchild typically take time to form, if they form at all. Moreover, a
stepparent must formally adopt a child in order to become a legal parent to that child (and before
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the adoption can proceed the parental rights of the child’s other parent must be revoked, a grueling
process when undertaken by the courts).
101. Http://www.livejournal.com/community/polyamory/890327.html.
102. Http://www.livejournal.com/community/polyamory/890327.html. At the same site another
mother writes that she has a “simple rule” for her 12 year old when he visits: “What happens at
Mommy’s house stays at Mommy’s house if you want to keep visiting Mommy.”
103. Http://www.polychromatic.com/kids.html.
104. Http://www.polyamorysociety.org/children.html.
105. Elise Soukup, “Polygamists, Unite! They used to live quietly, but now they’re making noise,”
Newsweek, March 15, 2006, online edition.
106. Felicia R. Lee, “Real Polygamists Look at HBO Polygamists; In Utah, Hollywood Seems
Oversexed,” New York Times, March 28, 2006, Arts Section, online edition.
107. Robert H. Frank, “Polygamy and the Marriage Market: Who Would Have the Upper Hand?,”
New York Times, March 16, 2006, Business Section, online edition.
108. John Tierney, Who’s Afraid of Polygamy? New York Times, March 11, 2006.
109. Stanley Kurtz, “Polygamy versus democracy; you can’t have both,” The Weekly Standard,
06/05/2006, Volume 011, Issue 36, online edition. Stanley Kurtz’s columns at National Review Online
have documented many events and emerging arguments relating to polyamory and polygamy. See for
example his column, “Big Love, from the Set: I’m taking the people behind the new series at their
word,” March 13, 2006 at National Review Online.
110. See Sylviane Agacinski, Parity of the Sexes, translated by Lisa Walsh, (New York: Columbia
University Press, 2001), especially the chapter titled, “The Double Origin,” pp. 99-110.
111. For a fuller discussion of this principle and the problems surrounding the redefinition of
parenthood that accompanies the deinstitutionalization of marriage, see David Blankenhorn, The
Future of Marriage (New York: Encounter Books, November 2006), especially the chapter titled
“Goods in Conflict.”
Page 42
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About the Institute for American Values
The Institute for American Values is a nonpartisan organization dedicated to strengthening 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 attention of policy makers in government, opinion makers in the media, and decision makers
in the private sector.
Institute for American Values • 1841 Broadway, Suite 211 • New York, NY 10023 • United States •
Tel: (212) 246-3942 • Fax: (212) 541-6665 • info@americanvalues.org • www.americanvalues.org
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 society.
Institute for Marriage and Public Policy • P.O. Box 1231 • Manassas, VA 20108 • United States •
Tel: (202) 216-9430 • info@imapp.org • www.imapp.org
About the Institute for the Study of Marriage, Law and Culture
The Institute for the Study of Marriage, Law and Culture is a nonpartisan, nonprofit Canadian
association for research and study of current trends and developments in marriage and family. The
Institute draws together scholars from different disciplines and seeks to stimulate ongoing research
by providing a forum for innovative and informed dialogue for scholars, policy makers and the
public at large.
Institute for the Study of Marriage, Law and Culture • 3484 Peel Street • Montreal, Quebec H3A
1W8 • Canada • Tel: (514) 862-4105 • Fax: (514) 398-2546 • inquiries@marriageinstitute.ca •
www.marriageinstitute.ca
About the Institute of Marriage and Family Canada
The Institute of Marriage and Family Canada (IMFC) is a non-profit, non-partisan initiative that
conducts, compiles and presents the latest and most accurate research to ensure that marriage and
family-friendly policy are foremost in the minds of Canada’s decision makers.
Institute of Marriage and Family Canada • 130 Albert St. Suite 2001 • Ottawa, Ontario K1P 5G4 •
Canada • Tel: (613) 565-3832 or Toll Free 1-866-373-IMFC • Fax: (613) 565-3803 •
info@imfcanada.org • www.imfcanada.org
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CERTIFICATE OF SERVICE


I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on January 21, 2014. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.

s/ Monte N. Stewart
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Case No. 12-17668

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BEVERLY SEVCIK, et al.
Plaintiffs-Appellants,
v.
BRIAN SANDOVAL, et al.,
Defendants-Appellees,
and
COALITION FOR THE PROTECTION OF MARRIAGE,
Intervenor-Defendant-Appellee.

On Appeal from the United States District Court
For the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL
The Honorable Robert C. Jones, District Judge

DEFENDANT-APPELLEE’S
SUPPLEMENTAL EXCERPTS OF RECORDS
VOLUME 2 OF 5

Monte N. Stewart
STEWART TAYLOR & MORRIS PLLC
12550 W. Explorer Drive, Suite 100
Boise, ID 83713
Tel: (208) 345-3333
Lawyers for Appellee Coalition for the Protection of Marriage
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INDEX TO SUPPLEMENTAL EXCERPTS OF RECORD


VOLUME 1 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Institute for American Values, Why Marriage
Matters: Twenty-Six Conclusions from the
Social Sciences, (3d ed. 2011)
73 1


9/10/2012 The Witherspoon Institute, Marriage and the
Public Good: Ten Principles (2008)
73 49
9/10/2012 Institute for American Values, Marriage and
the Law: A Statement of Principles (2006)
73 87
9/10/2012 Institute for American Values (Dan Cere,
principal investigator), The Future of Family
Law: Law and the Marriage Crisis in North
America (2005)
73 131
9/10/2012 Institute for American Values (Elizabeth
Marquardt, principal investigator), The
Revolution in Parenthood: The Emerging
Global Clash Between Adult Rights and
Children’s Needs (2006)
73 182


VOLUME 2 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Commission on Parenthood’s Future
(Elizabeth Marquardt, principal investigator),
One Parent or Five: A Global Look at
Today’s New Intentional Families (2011)
73 226
9/10/2012 Institute for American Values (Elizabeth
Marquardt, Noval D. Glenn, & Karen Clark,
co-investigators), My Daddy’s Name is
Donor: A New Study of Young Adults
Conceived Through Sperm Donation (2010)
73 298


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VOLUME 2 OF 5 (continued)

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Margaret Somerville, What About the
Children, in Divorcing Marriage: Unveiling
the Dangers in Canada’s New Social
Experiment 76-78 (Daniel Cere and Douglas
Farrow eds., 2004)
73 438


VOLUME 3 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Margaret Somerville, Children’s human rights
and unlinking child-parent biological bonds
with adoption, same-sex marriage and new
reproductive technologies, 13 J. of Fam. Stud.
179-201 (2007)
73 456
9/10/2012 Maggie Gallagher, (How) Does Marriage
Protect Child Well-Being?, in The Meaning of
Marriage: Family, State, Market, and Morals
29-52 (Robert P. George & Jean Bethke
Elshtain eds., 2006)
73 479
9/10/2012 Seana Sugrue, Soft Despotism and Same-Sex
Marriage, in The Meaning of Marriage:
Family, State, Market, and Morals 172-96
(Robert P. George & Jean Bethke Elshtain
eds., 2006)
73 497


VOLUME 4 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Claude Lévi-Strauss, The View from Afar 39-
42 (Joachim Neugroschel & Phoebe Hoss
trans., 1985)
73 524
9/10/2012 G. Robina Quale, A History of Marriage
Systems 1-3 (1988)
73 530
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VOLUME 4 OF 5 (continued)

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 James Q. Wilson, The Marriage Problem 40-
41, 168-70 (2002)
73 535
9/10/2012 Kate Stanley, The Institute for Public Policy
Research, Daddy Dearest? Active Fatherhood
and Public Policy 57 (Kate Stanley ed., 2005)
73 543
9/10/2012 David Popenoe, Life without father:
Compelling new evidence that fatherhood and
marriage are indispensable for the good of
children and society
139-63 (1996)
73 546
9/10/2012 William J. Doherty et al., Responsible
Fathering: An Overview and Conceptual
Framework, 60 J. of Marriage and Fam. 277-
292 (1998)
73 561
9/10/2012 Kristin Anderson Moore et al., Marriage from
a Child’s Perspective: How Does Family
Structure Affect Children, and What Can We
Do About It?, a Child Trends Research Brief
(2002)
73 577
9/10/2012 Lawrence B. Finer & Mia R. Zolna,
Unintended pregnancy in the United States:
incidence and disparities, 2006, 84
Contraception 478-485 (2011)
73 585


VOLUME 5 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Samuel W. Sturgeon, The Relationship
Between Family Structure and Adolescent
Sexual Activity, a familyfacts.org Special
Report (November 2008)
80 593




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VOLUME 5 OF 5 (continued)

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Paul R. Amato, The Impact of Family
Formation Change on the Cognitive, Social,
and Emotional Well-Being of the Next
Generation, 15 The Future of Children 75-96
(2005)
80 595
9/10/2012 Mark Regnerus, How different are the adult
children of parents who have same-sex
relationships? Findings from the New Family
Structures Study, 41 Soc. Sci. Research 752-
770 (2012)
80 618
9/10/2012 Loren Marks, Same-sex parenting and
children’s outcomes: A closer examination of
the American Psychological
Association’s brief on lesbian and gay
parenting, 41 Soc. Sci. Research 735-751
(2012)
80 637
9/10/2012 Brief of Amicus Curiae, American College of
Pediatricians, in Windsor v. The Bipartisan
Legal Advisory Group of the United States
House of Representatives, No. 12-2335 (2d
Cir. Aug. 17, 2012)
80 654
9/10/2012 Douglas Farrow, Why Fight Same-Sex
Marriage?, Touchstone, Jan-Feb 2012
81 683
9/10/2012 Katherine Acey et al., Beyond Same-Sex
Marriage: A new strategic vision for all our
families & relationships (July 26, 2006)
82 690
10/25/2012 Margaret Somerville, Children’s Human
Rights to Natural Biological Origins and
Family Structure, 1 Int’l J. Jurisprudence Fam.
25 (2010)
95-1 717
10/25/2012 D. Richardson, Sexuality and Gender, in
International Encyclopedia of the Social &
Behavioral Sciences 14018-21 (2001)
95-1 739

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A Global Look at Today’s New Intentional Families
Elizabeth Marquardt, Principal Investigator
Released by the Commission on Parenthood’s Future • Institute for American Values
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A B O UT TH E C O MMI S S I O N O N PA R E NTH O O D’ S F UTU R E
The Commission on Parenthood’s Future is an independent, nonpartisan
group of scholars and leaders who have come together to investigate the
status of parenthood as a legal, ethical, social, and scientific category in
contemporary societies and to make recommendations for the future.
Commission members convene scholarly conferences; produce books, re-
ports, and public statements; write for popular and scholarly publications;
and engage in public speaking. Its members include the following:
David Blankenhorn, Institute for American Values
Daniel Cere, McGill University (Canada)
Karen Clark, FamilyScholars.org
Jean Bethke Elshtain, University of Chicago Divinity School
Maggie Gallagher, Institute for Marriage and Public Policy
Robert P. George, Princeton University
Amy Laura Hall, Duke University
Timothy P. Jackson, Emory University
Kathleen Kovner Kline, University of Colorado School of Medicine
Suzy Yehl Marta, Rainbows Inc.
Elizabeth Marquardt, Institute for American Values
Mitchell B. Pearlstein, Center of the American Experiment
David Popenoe, Rutgers University (Emeritus)
Stephen G. Post, Center for Medical Humanities, Compassionate
Care, and Bioethics at Stony Brook University
Dave Quist, Institute of Marriage and Family Canada
Luis Tellez, Witherspoon Institute
David Quinn, Iona Institute (Ireland)
Amy Wax, University of Pennsylvania Law School
W. Bradford Wilcox, University of Virginia
John Witte, Jr., Emory University
Peter Wood, National Association of Scholars
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A Global Look at Today’s
New Intentional Families
ONE PARENT
OR FIVE
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Design by Alma Phipps & Associates. © 2011 Institute for American Values. No
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A L S O R E L E A S E D BY TH E C O MMI S S I O N O N PA R E NTH O O D’ S F UTU R E
Elizabeth Marquardt, The Revolution in Parenthood: The Emerging Global
Clash between Adult Rights and Children’s Needs (2006)
Elizabeth Marquardt, Norval D. Glenn, and Karen Clark, My Daddy’s Name
Is Donor: A New Study of Young Adults Conceived through Sperm Donation
(2010)
Linda McClain and Daniel Cere, co-editors, What Is Parenthood? (An inter-
disciplinary scholarly volume debating a family diversity or an integrated
point of view, with editors and authors contributing chapters from each
viewpoint, forthcoming.)
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TABLE OF CONTENTS
EXECUTIVE SUMMARY 6
1. WH AT I S I NTE NTI O NA L PA R E NTH O O D? 7

2. ME E T TO D AY’ S I NTE NTI O NA L F A MI L I E S
One-Parent Families
Single Mother by Choice 10
Single Father by Choice 15
Posthumous Conception 18
Cloning? 21
Two-Parent Families
Married Mother and Father 23
Same-Sex Marriage and Parenting 24
Co-Parenting Pre-Conception Arrangements 33
Same-Sex Procreation? 36
Tree-Parent Families 36
Polyamory 38
Polygamy 41
Three-Person Reproduction 44
Four- and Five-Parent Families
Conceiving Children with Four or Five Legal,
Social, Biological, and/or Gestational Parents 47
Co-Parenting “Bothies” 48
3. TH E WA NTE D C H I L D 54
ENDNOTES 59
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6
What do children need? Do mothers and fathers matter? Is intending to have
a child a key factor in child well-being, or do other factors, such as the family
structure in which a child is raised, matter as well?
In today’s debates about the family a new term is often heard: “intentional par-
enthood.” The term, which appears to have originated in the 1990s to resolve
disputed surrogacy or lesbian parenting family law cases, has been embraced
broadly within family law and by family diversity leaders around the world.
Intentional parenthood, its advocates say, is good for children. Intention makes
a wanted child. Anyone can be an intentional parent—straight, gay, married,
partnered, or single.
This report takes the reader on a global tour of today’s new intentional fami-
lies, introducing one-, two-, three-, four-, and five-parent families. The report
reveals what we do and do not know, from a social scientific point of view,
about child well-being in these family structures. Some of these family forms
are too new, too rare, or until recently too secret to have been studied closely.
Others, such as the married mother-father family, are forms about which we
now know a great deal. At the same time, intriguing new research on the
practice of intentionally conceiving children—through anonymous sperm dona-
tion—who will not know or be known by their biological fathers, suggests that
intention alone hardly guarantees that children will do well.
What do family forms that even before conception intentionally deny children
a relationship with their biological father or mother have in common? What
forms do these families take? How do young people deliberately denied a bio-
logical parent feel about what happened to them? This report presents what we
believe to be the first systematic critique of the concept of intentional parent-
hood and offers a surprising and at times disturbing portrayal of practices now
being followed around the world.
EXECUTIVE SUMMARY
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7
Where did the idea of “intentional parenthood” originate? While the concept
shares intellectual parallels with the idea of “planned parenthood” and a centu-
ry-long discourse about legal access to contraception and, more recently, abor-
tion, the specific language of intentional parenthood appears to have originated
as a legal concept in the United States in the 1990s, as judges sought to grapple
with murky surrogacy cases. Diane Ehrensaft, a developmental and clinical
psychologist in Berkeley, California, and author of Mommies, Daddies, Donors,
and Surrogates: Answering Tough Questions and Building Strong Families,
1
re-
fers to the 1997 case of Luanne and John Buzzanca. The Buzzancas conceived
a child using donor sperm, donor egg, and a surrogate, and then split up be-
fore the baby was born. The legal case pitted them against each other as well
as against the surrogate mother, who sought to keep the child.
Ehrensaft writes that ultimately, “The court decision was made on the basis that
these two people [Luanne and John Buzzanca] were the ones who intended to
have this child together.”
2
It was this “tumultuous legal case,” she continues,
that “helped point us all toward a key concept in family building using re-
productive technology—the intent to parent. If we want to know who a child
belongs to, ask who made plans to have the child.”
3
In the years following, this
concept was used in lesbian parenting disputes that came before the courts.
These were cases in which a non-biological mother figure sought rights to a
child whom she and her ex-partner had conceived together using donor sperm,
or in which a biological mother sought to deny custody or visitation rights to
her former partner.
4

In an oft-cited article published by the Hastings Law Journal in 2002, City Uni-
versity of New York School of Law professor John F. Storrow sought to under-
line how intentional parenthood should be used as a guiding framework even
for those who do not have access to marriage. He took on “recently enacted
and proposed statutory provisions that clearly define intentional parenthood
1. WHAT IS INTENTIONAL
PARENTHOOD
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8
but reserve the status to married couples alone.”
5
Drawing upon the “emerg-
ing doctrine of functional parenthood” (which defines parenthood around who
actually cares for the child), Storrow sought to illumine recent theories about
intentional parenthood, arguing that “planning and preparing for the birth of a
child—not marriage—are the essential criteria in determining who is—and is
not—an intentional parent.”
6
Other legal scholars then employed the concept of intentional parenthood
beyond disputed surrogacy or lesbian parenting cases. For example, Univer-
sity of Florida law professor Nancy Dowd has argued that fatherhood should
be legally defined around “intentional, ongoing caretaking” rather than around
“genes, marriage and money.”
7
The idea of intentional parenthood has leapt from the legal lexicon to the
broader academic and cultural vocabulary, becoming largely synonymous with
the already popular idea of “families of choice”—that is, family defined not
necessarily by marriage or blood or adoption, but by choices freely made by
autonomous beings. British philosophy professor Susanne Gibson describes
single mothers by choice as those who “practice…intentional single parent-
hood.”
8
In a particularly free-floating definition, Kathleen M. Galvin, professor
of communications at Northwestern University, defines “intentional families” as
“families formed without biological and legal ties, [which] are maintained by
members’ self-definition. These ‘fictive’ or self-ascribed kin become family of
choice, performing family functions for one another.”
9
More recently, intentional parenthood has been elevated as a good by fam-
ily diversity leaders who have long fought to make their case for the equal
value of all family structures, despite the reality of messy divorces, stressed-out
remarriages, and unplanned births to struggling single moms. Drawing upon
longstanding ideas about the value of planned pregnancy embedded in public
discussion on contraceptive and abortion rights, family diversity advocates now
discover among lesbians and gays using artificial reproductive technologies a
realm of peace and order, intention and planning—where no child can fall into
that dreaded category of personhood: the accident.
Ellen C. Perrin, professor of pediatrics at Tufts School of Medicine and l