Love and Marriage-And Family Law

By Cere, Daniel | The Public Interest, Spring 2005 | Go to article overview

Love and Marriage-And Family Law

Cere, Daniel, The Public Interest

FAMILY law is in turmoil. It is on the front pages of our newspapers and is implicated in some of our deepest cultural dilemmas and conflicts, from no-fault divorce to the legal status of unmarried cohabiters to, most recently, same-sex marriage. The courts are actively engaged in reconstructing the public meanings of family and marriage, while lawyers and legal theorists have been pressing forward on new, cutting-edge issues. Family law now operates in a global context, with legal scholars in one nation often influencing their peers elsewhere.

At the same time, to the layperson this path toward the legal reconstruction of family life is often highly confusing. The confusion stems in part from the law's method and language of incrementalism--its tendency to work its changes through individual cases and the reshaping of discrete legal categories. This method only occasionally and incidentally provides clarity about the deeper issues at stake.

Yet there is no more important moment than now for citizens to know more about the direction family law is taking. Recently, two influential reports on the family have been published in the United States and Canada. These reports, written by committees of lawyers, seek to push family law in new directions far removed from its traditional role of supporting marriage and protecting the best interests of children.

The first study, entitled Principles of the Law of Family Dissolution, is a major American report published in 2002, after more than a decade of work by scores of legal scholars and practitioners, by the American Law Institute (ALI), one of the nation's most prestigious legal organizations. Founded in 1923, ALI is an association of America's elite legal scholars, judges, and lawyers. The Institute develops "restatements" of law, model codes, and proposals for legal reform. Its reports carry considerable authority within the legal community.

The ALI's new report, more than a thousand pages long, clearly seeks to change existing law in a number of key areas. First, it proposes to sideline what it calls "traditional marriage," re-situating marriage as merely one of many possible and equally valid family forms. Second, it seeks to break the ties between biological and functional parenthood (with "functional parenthood" meaning the day-to-day work of raising children). And third, the report pushes toward full legal marriage rights for same-sex couples.

The second major report is Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, published in 2002 by the influential Law Commission of Canada. (The Law Commission of Canada, appointed by the Canadian government, is an "independent" federal law reform agency that advises Parliament on how to improve and modernize Canada's laws.) The Canadian document is remarkably similar to the ALI report. It recommends that the law focus on the "substance of relationships," rather than giving legal recognition to any specific "arrangements," such as marriage. It argues that any relationship that is marked by interdependence, mutuality, intimacy, and endurance merits legal recognition. It contends that governments "should recognize and support" all significant adult "close relationships" that are "neither dysfunctional nor harmful." While the report focuses on adult "close personal relationships," it also emphasizes the need for new approaches to the place of children in adult relationships. It underlines the expanding variety of adult parenting arrangements and the growing disconnect between marriage and children.

Americans would be wise to look north and examine closely what is happening in Canada. In what may be surprising news to many in the United States, Canada is now at the forefront of Western nations that are instituting radical changes in family law. Canada is pushing the envelope, and provides a critical and timely example of where the United States might be headed. …

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