Can a child have three legal parents? Should parenthood be routinely determined by something other than biology? Should we extend the right to marriage to same-sex couples? To groups of people? Or should we abolish marriage as a legal institution? "The Future of Family Law"
Not so long ago, such questions would have been raised only in a science fiction tale. Not anymore. They're questions seriously discussed in college classrooms, advocacy seminars and in forums to challenge lawyers, judges and policymakers. The idea is to change family law as we know it. Marriage is targeted for deconstruction.
From the time that America was a colony, the marriage model was governed by law, culture and traditions flowing from the Judeo-Christian religious ideal. Marriage was specifically a social institution designed for the protection of children. The law wasn't perfect, suffering the flaws of humanity, but the law was clear and well intentioned. The law defined rights, responsibilities and punishment and shaped a shared sense of obligation in private and social conduct on behalf of children. We made changes in the law from time to time, but we never dropped our concern for the offspring of marriage.
That was then. "Family law today appears to be embracing a big new idea," writes Daniel Cere, a professor of ethics at McGill University in Canada and the principal investigator for an inquiry into the future of family law, the conclusions of which are published by the Institute for American Values, a non-partisan organization in New York City dedicated to strengthening families and civil society. "The idea is that marriage is only a close personal relationship between adults," he says, "and no longer a pro-child social institution." (The report is available at www.americanvalues.org)
Influential advocates from politically correct academic and legal organizations sneer at traditional marriage as another bad example of "ethnocentric" thinking that promotes "old-fashioned ideological stereotypes." These advocates accuse the law of dismissing "diversity." By diversity they mean the experience of racial minorities, women, single parents, divorced and remarried persons, gays, and lesbians. A large body of social science and psychological data demonstrate that not all forms of parenthood are equally child-friendly, but these advocates say that's merely a point of view to be replaced by "close relationship" law.
In "close relationship" law there's a moral equivalence between marriage and cohabitation -- what society once derided as "living together." There's ample research to show that mere cohabitation to produce children creates a less stable environment for them than marriage. In "close relationship" law, a "partner" is the equal of a "parent" and conjugal marriage morphs into the generic neutrality of "coupledom." In "close relationship" law, marriage is just another "lifestyle choice" along with other economically and emotionally interdependent relationships comprising a kind of "family buddy system."
If this sounds far-fetched, fetch again. This reports shows how "close relationship" law moves in mysterious ways and often gets imbedded in law incrementally, without debate, because it operates under the public radar. The report cites secular chapter and verse where the legal formality of marriage is in danger of being replaced by other relationships described in mushy language as "indistinguishable from marriage." The result of such thinking undercuts the notion that a mother and a father should be the standard for measuring the best interests of a child, even if honored in the breach.
Marriage has never been easy. Sexual liberation has taken its toll. The Pill promoted promiscuity and reduced birth rates, and illegitimacy continues to hit poor young women hardest. Divorce is sometimes regarded as merely a form of human recycling, but new research suggests that divorce is bad for your health, which ought to get some couples to try harder to stay together. Increasing numbers of young men and women are going into couple therapy before they get married; children of divorce don't want their children to go through what they did.
Through thick and thin (or even thin and thin), for better and for worse, marriage as an institution continues to define public norms that shape public attitudes and personal expectations. We ought to keep it that way. Philosophers from John Locke to John Rawls emphasize the importance of conjugal marriage for democratic society, and most of us understand that children do best with a mother and a father. So before we start tampering with our respect for traditional marriage, we should pay heed to what we know that works. If we don't want to do that for our selfish selves, we must do it for the sake of the children.