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Traditional Family Law: Connecting Marriage with Children

February 20th, 2012

by Helen Alvaré

December 6, 2011 http://www.thepublicdiscourse.com/2011/12/4397

The Supreme Court was more right than it knew during the past two centuries as it identified the state’s interest in marriage as children and their formation. The first in a two-part series.

Why is there a gulf between those who see same-sex marriage as an impossible legal and cultural revolution, a bridge too far, and those who see it as the logical next step on a path well-trodden in family law? In part, it is the difference in perspective between those familiar with classical expressions of the goods and goals of marriage found in over a century of Supreme Court decisions, and those with their eyes fixed upon more recent legal developments that call those goods into question or ignore them.

Those who champion marriage between a man and a woman would like to see the Supreme Court settle the matter according to a long series of precedents treating procreation and child-rearing as primary state-recognized goods of marriage. But given that one ought to be realistic about judicial willingness today to ignore precedent in favor of some perceived zeitgeist, an additional strategy to preserve the link between marriage and children in the Court’s reasoning is warranted.

This strategy would show, first, how the path of divorcing marriage from children–a path taken to its logical end by same-sex marriage–not only disadvantages children, but is already helping to effect troubling social divisions between the more and less privileged in the United States. The persistence of such divisions could begin to suggest, falsely, that the well-off and the poor, the more educated and the less educated, the majority and various minorities, do not share the same fundamental nature where marriage and parenting are concerned.

Second, such a strategy would highlight the relatively recent willingness among scholars and lawmakers to come to grips with the fallout of “disestablishing” the interrelated goods of marriage and effective parenting, and to begin proposing reforms. This is not the time, therefore, to ignore or deny the robust empirical foundations of such reform efforts, via legally redefining “marriage” to exclude its intrinsic orientation to children. A brief look at our Supreme Court’s longstanding positions on the meaning of marriage (in this first of a two-part series), followed by a look at the whirlwind of family law developments from the 1970s to today (in the second part), will suffice to sketch the argument I am proposing.

A preliminary note: It is important to understand that family law is made in large part at the state level and, regarding marriage, consists not in lengthy disquisitions on the meaning of marriage, but rather in brief lists of the necessary preconditions for entering into it. States’ lists are similar. To enter marriage, there must be two persons: of opposite sexes (in the vast majority of states), of sufficient age, not related within prohibited degrees of consanguinity, free to marry, capable of marital consent, etc.

On the one hand, state laws conditioning entry into marriage are fairly laissez-faire. On the other hand, all states signal the importance of marriage by refusing to acknowledge purely “private contracts” to marry. Rather, the state imposes terms upon marrying couples–a set of mutual rights and obligations with which they are not even likely familiar. Even when couples make prenuptial agreements, the state constrains their contents in the interests of fairness to the adults and solicitude for children.

The federal government tends to “make family law” when it feels threatened by developments in the states. Increasing rates of nonmarital births in the 1970s and 1980s, for example, and the resulting astronomical federal welfare expenditures, led to a series of federal child support laws, programs about preventing premarital sex and pregnancy, and later initiatives encouraging stable marriage and fatherhood. The latter, in particular, were grounded upon the growing body of data linking marriage with child well-being.

The Defense of Marriage Act in the 1990s sprang from fears that one state’s approval of same-sex marriage would lead to demands for interstate and federal same-sex marriage recognition. For the most part, however, federal “characterizations” of the meaning and importance of marriage appear most often in a long series of Supreme Court cases concerning the constitutionality of various state laws affecting marriage or parent-child relationships. While a complete history of these rulings is not possible here, I will characterize their leading messages.

The first message, and the most plain, coming from the Supreme Court concerns the relationship between marriage and the birth of children. While it is impossible to disentangle completely this state interest from its interest in the healthy formation of children within marriage, still it is possible to discern it. In a late nineteenth-century case refusing to recognize a First Amendment right to practice polygamy, for example, the Court wrote that: “Upon [marriage] society may be said to be built” (Reynolds v. United States). Nearly 100 years later, in a case striking down a law banning interracial marriage (Loving v. Virginia), the Court referred to marriage as “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

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