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Domestic Division

Nation Finds No Consensus on Marriage, Family

By Geraldine Sealey
Jan. 13, 2003
ABCNEWS.com

Family
Americans are torn between a desire for traditional "family values" and the realities of modern life.
Tucked among their post-holiday mail stacks, many state officials will find a seemingly innocuous document with an arcane title: "Principles of the Law of Family Dissolution — Analysis and Recommendations."

Few will ignore it for long. The 1,200-page text recently published by the influential American Law Institute, a consortium of lawyers, judges and legal scholars, is breathing fire into the already hot-blooded American debate about family and the beleaguered institution of marriage.

Basically, the guidelines propose a greater level of fairness and predictability in family and divorce court proceedings, which are infamous for their arbitrariness. The suggestions are not binding but merely seek to influence policymakers and judges.

But a few of the proposals are rankling conservative critics, who say the guidelines would herald doom for American marriage if adopted in the courtroom.

The most controversial sets forth that cohabiting domestic partners, both heterosexual and gay, should be treated the same as married couples should they choose to end their relationship. Child-custody decisions would not consider a parent's sexual orientation, and long-term live-in partners could owe each other alimony.

"Anyone who cares about the state of marriage, which is weak enough already, if you want it to become weaker still, knock away legal protections marriage enjoys," said David Blankenhorn, author of Fatherless America and president of the Institute for American Values.

Blankenhorn said he's planning a rival conference of legal scholars in March to draft a rebuttal.

The firestorm over the ALI guidelines is just the latest in the heated national conversation about what a family should look like, and how families should be treated under the law.

More than 10 years have passed since then-Vice President Dan Quayle made an example of the fictional single working mother Murphy Brown, but Americans are still sending and receiving bewilderingly confused messages about marriage and family norms.

Where Do We Stand?

Consider these recent developments:

White House: We Start With Children

Despite these conflicted opinions, a Bush administration official says judgments about what constitutes family do not serve as a basis for policymaking.

"The debate about what a family is to some extent is a side issue because we start with the child, we don't start with a particular family type or structure as the only one deserving of support. We say every child is deserving of support, encouragement and services that can help them develop well," said Wade Horn, assistant secretary for the Administration of Children, Youth and Families. "Whether they find themselves in a two-parent household or divorced or unwed, we start with the question, 'What can we do with this child?'"

Mounting empirical evidence shows that children without committed fathers are at a disadvantage and that marriage is the most likely way a father will stay involved in a child's life. The healthy marriage grants are intended merely to help couples who want to get married to do so, Horn said.

"It's not about telling people they're living in sin, it's not about shaming anyone about going to the altar. It's about offering a range of services and one is a referral to a pre-marriage education services," he said.

Critics, though, call the Bush proposals heavy-handed.

"The Bush administration is trying to change the way people live their lives," says Barbara J. Risman, co-chair of the Council on Contemporary Families and a North Carolina State University sociology professor.

"The irony here is that conservatives are always the ones who say government should have a limited role, but here you have conservatives doing the most incredible social engineering, saying people should live like this and we should reward how people choose to live their lives," she said.

A Law for Every Relationship

Conservatives, though, say it's liberal academics who are trying their own hand at social engineering with their family law proposals that would equate same-sex and live-in partnerships with traditional marriage.

The ALI guidelines do more than merely reflect changes in society, Blankenhorn said, they actually take a trend and impose it on everyone.

For long-term cohabiting couples who are heterosexual, the guidelines would impose a state of marriage under the law that the couples did not pursue, or they would have been married in the first place.

But those who worked on the guidelines for a decade say they are just offering suggestions on how to update family law to reflect changes in society that already wind up in the courtroom.

"Our job is the law. The task we were given is to figure out what do you do when the family breaks down," said Grace Ganz Blumberg, a law professor at UCLA Law School. "We don't encourage cohabitation. We're not alternative lifestyle people. We're not promoting homosexuality.

"To acknowledge something that exists doesn't seem to me a bad thing," she said. "Ultimately, one of things we say is some of these people do have relationships and need law just like everybody else."

Should Law Reflect Trends or Judge Them?

Conservative critics, though, say that advocating laws that give cohabiting or gay couples similar weight as married couples undermines an already weak but vital American institution — the family.

The legal profession has a responsibility not just to update family law to reflect current demographic trends, but to analyze trends and evaluate their quality, Blankenhorn said.

"If there was a trend toward racism, should we pass laws promoting segregation in public facilities? They [legal scholars] have responsibilities like any professional or human being does," he said.

But that logic doesn't work for Ira Mark Ellman, law professor at Arizona State University College of Law and chief reporter of the ALI guidelines.

"It's wrong to think that all law has as its underlying basis social engineering. A lot of law is designed to produce a fair result given what the historic facts are," he said.

The ALI guidelines only apply to relationships that already exist and that dissolve, Ellman says, they don't address recognition of same-sex or live-in partnerships — and therefore they do not promote or discourage any type of relationships.

"People decide about intimate relationships in ways that are not affected by the legal consequences of those relationships," Ellman said.

Keeping Cohabiting Couples Honest

The ALI guidelines on cohabitation actually remove the incentive to avoid marriage by creating marriage-like obligations under the law, Blumberg said.

"In many nonmarital cohabitations, it is the economically stronger party who resists marriage in order to avoid obligations to the other party that would otherwise ensue at divorce," she said. "Under current law in most American states, cohabitation is a way of having your cake and eating it too, that is, of enjoying many of the benefits of marriage without undertaking the obligations of marriage."

As for the argument that legal scholars are forcing the issue of same-sex marriage, Ellman points to recent polls showing a majority of Americans favor rights for gay partners.

Similar laws are already in place in Australia and Canada, Ellman said. "This is not cooked up by a lot of ivory tower folks who don't have a concept of what's going on in the world," he said.

But Blankenhorn said the ALI guidelines will have the effect of throwing out the legal category of marriage for the sake of a minority group.

"You would do this all in the name of what?" he said. "If your agenda is same-sex marriage, it would be much more humane for everyone to simply allow for couples to get married under the current laws."

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