New! Marriage and the Law
Reconceiving the Family
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.
their core, these ongoing disputes are fueled by competing visions
of marriage and of the role of the state in making family law.
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
Two Recent Reports
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,
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.”
second report is Beyond Conjugality: Recognizing and Supporting
Close Personal Adult Relationships, published in 2001 by
the Law Commission 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
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
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.
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
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.
The Missing Piece
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.
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.
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
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.
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.
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.
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.
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
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
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 intellectual 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
Future of Family Law: Law and the Marriage Crisis in North America
is a report from the Council on Family Law. The Principal Investigator
is Daniel Cere.
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.
a limited time only, the Institute for American Values is pleased
to make available copies of The Future of Family Law: Law
and the Marriage Crisis in North America (and its companion
piece, the newly-released Marriage
and the Law: A Statement of Principles) for a discounted
price of $5.00 each. To order copies, please download this order
form (pdf file, 1 page, 139 kb) or use this web-based
version. Refer to the chart below for pricing information.