The assault on marriage continues

John Leo

12/9/2002 12:00:00 AM - John Leo
In modern journalism, radical change is often announced by a yawn-inducing headline. For instance, "Legal Group Urges States to Update Their Family Law," (New York Times, Nov. 29). The headline, one step up from "Don't Bother to Read This," refers to a ponderous 1,200-page commentary and set of recommendations by the American Law Institute, a group of prominent judges and lawyers. The proposals, "Principles of the Law of Family Dissolution," may seem like dry, technical suggestions about custody, alimony and property distribution. But what this "update" really amounts to is a devastating legal assault on marriage.

The Institute report says that in many important ways, domestic partnerships should be legally treated like marriage. It defines domestic partners as "two persons of the same or opposite sex, not married to one another, who for a significant period of time share a primary residence and a life together as a couple." When breaking up, the report says, co-habitants are entitled to a division of property and alimony-like payments, just like married people who divorce. And after a relationship ends, the co-habiting partner of a legal parent may share custody and decision-making responsibility for the legal parent's child.

The report validates homosexual relationships and gives them a status comparable to that of marriage. If accepted, this idea would lead immediately to the next legal argument: If gay and straight commitments have the same status in state law, isn't it picky and discriminatory to withhold the word "marriage" from the gay version? Heterosexual couples who live together would also get the same status as husbands and wives, blurring or eliminating another line between marriage and serial affairs.

The most drastic notion embedded in the suggestions is that marriage is just one arrangement among many. Marriage is being deconstructed here, downgraded and privatized. It is no longer the crucial building block of the social order, and makes no special contribution to civil society that justifies any distinctive honor or status. This report, says Lynn Wardle, professor of law at Brigham Young University, "continues the war on the traditional family and traditional sexual morality that has been waged for over three decades."

Wardle has a point. Marriage is in trouble for a lot of reasons, but surely one important factor is the relentless hostility unleashed by the 1960s counterculture, which portrayed marriage as oppressive, patriarchal, outmoded and destructive to children. The attitudes of today's elites reflect that never-ending campaign. Now we have lots of "marriage" counselors who never use the word marriage and textbooks on families bristling with hostility toward the nuclear family. As I wrote in this space several years ago, "One of the problems in trying to shore up the institution of marriage is that so many of the professionals who teach and write about it -- counselors, therapists, academics and popular authors -- really don't support marriage at all."

What they do tend to support is known as "close relationship theory," the idea that sexual and emotional satisfaction come from intense, fragile and often short-term relationships that aren't necessarily going anywhere. One advocate calls them "microwave relationships," cooked up fast, served and consumed, presumably with other similar meals to come. It all seems like the dream world of a randy adolescent chasing cheerleaders. Marriage is knocked off its pedestal and the family itself fades away. Children tend to fade away too in close relationship theory, as emphasis comes down hard on adult fulfillment.

To get an idea of where this theory and our legal elites may take us, take a look at last year's report of the Law Commission of Canada: "Beyond Conjugality: Recognizing and Supporting Close Personal and Adult Relationships." Canada's elites are usually earlier and franker than ours in presenting socially destructive ideas. The report says flatly that the state must remain neutral in relationships -- no promoting marriage or giving it any edge. Registering partnerships of any kind "could be used to replace marriage as a legal institution," the commission said." Religious marriage ceremonies would continue to exist, but they would no longer have legal consequences."

These are the marriage-hating ideas of the most radical counterculturalists, circa 1969, now surfacing on the agenda of U.S. and Canadian legal elites. At a time when efforts to bolster marriage are gaining some traction, the elites are telling us that marriage is defunct and almost any kind of short-term, self-serving relationship will do. Can these people be taken seriously?