Is There a Way Forward in the 'War Over the Family'?

Abstract

When Judge Posner, in Baskin v. Bogan, expressed incredulity -- given actual demographic trends in family formation -- that state marriage laws excluding same-sex couples furthered interests in “channeling” procreative sex and addressing accidental pregnancy, he brought together two conversations about marriage, family law, and family life that too often proceed independently. In the first, same-sex couples challenging marriage laws and the courts who rule in their favor emphasize the high stakes of exclusion by characterizing marriage as an incomparable institution and a signal that one’s intimate commitment is worthy of equal respect and dignity. To be left out of marriage is to experience a second class form of family life. Similarly, the channeling argument assigns marriage an unrivaled role as the social institution designed to anchor parental investment in children. A second conversation sounds alarms about the disappearance of marriage in a growing number of communities in the United States and the evident drifting by many young adults into sex and parenthood unintentionally and outside of marriage. This conversation warns of the consequences for children of the growing class-, race-, and gender-based marriage divide. Policy analysts debate whether it is possible to close the marriage gap or whether they should instead focus on responsible parenthood.

In Failure to Flourish: How Law Undermines Family Relationships, family law scholar Clare Huntington also invites a holistic assessment of family law’s impact on families and children. Using the yardstick that family law should nurture strong, stable, positive relationships, her inventory reaches dismal conclusions about both structural and dispute-resolution family law. In this essay, I argue that Failure to Flourish arrives at a propitious juncture when it is possible to ask about a way forward in the “war over the family.” I situate Huntington’s book in the context of significant calls, in recent decades, to strengthen families. I assess where Huntington positions herself with respect to what Isabel Sawhill calls the divide between “traditionalists,” who view restoring a norm of childbearing and parenting within marriage as the best way forward and worry that governmental programs undermine marriage and parental responsibility, and “village builders,” who focus less on family form than on the basic proposition that families require the right supports from the larger community to flourish. With respect to dispute resolution family law, I argue that the paradigm shift Failure to Flourish advocates toward a more positive, less adversarial approach is already well under way.

Keywords: marriage, same-sex, relationships, family, civil society, channeling, alternative dispute resolution, inequality, children, divorce

JEL Classification: K19, K39