Contracting out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments

By Aycock, Jamie Alan | Harvard Journal of Law & Public Policy, Fall 2006 | Go to article overview

Contracting out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments


Aycock, Jamie Alan, Harvard Journal of Law & Public Policy


INTRODUCTION
I. BACKGROUND
     A. Changing Conceptions of Morality and
        the Proper Role of Law
     B. Attempts to Fix Marriage
        1. Legal Efforts to Strengthen Marriage
        2. Non-legal Efforts to Strengthen
           Marriage
     C. Using Contract to Strengthen Marriage
II.  INVOLVING COMMUNITIES OF FAITH IN
     EXTENDING CONTRACT IN MARRIAGE
III. LIMITING DIVORCE THROUGH RESTRICTED
     GROUNDS AND ADDED CONSEQUENCES
     A. Precommitment as Rational for
        Individuals and Communities of Faith
     B. Why Communities of Faith Should
        Encourage Precommitments
     C. Overcoming Challenges to Allowing a
        More Restrictive Marriage Regime
        1. Philosophical Challenges
        2. Negative Effects
        3. Constitutionality Under the Establishment
           and Free Exercise Clauses
        4. Public Policy and Contract Law
IV. CONCLUSION

INTRODUCTION

The culture wars that have been raging since at least the 1960s show no signs of cooling off. In fact, commentary on the red state, blue state dichotomy seems only to have heated up in recent years. Although the underlying issues of the culture wars are at play in many areas of the law (as seen in the politicization of judicial confirmations), the most intense battleground may be the area of family law because the heart of the ongoing fight is over competing visions of the family. Many writers have enlisted with one side or another, staked out a particular position, and attempted to articulate a compelling vision for America. But because each battle is seen as a zero-sum game, few authors have attempted to develop practical solutions that bridge the divergent perspectives on the family. Since no side appears anywhere close to "winning," it is imperative to develop family law solutions that bridge some of the differences.

This Article proposes that the law should enable individuals to make choices that further their particular vision of the family, without imposing that vision upon the whole of society, thus allowing pluralism in marriage law. One set of culture-warriors argues that the requirements for entering marriage should be heightened and that the duties and rights in marriage should be increased to achieve greater stability in what they consider the fundamental social institution. Another set of culture-warriors argues that individuals should be allowed to easily enter and exit marriage and that society should be especially concerned with the ongoing effects of patriarchal roles associated with this historically unjust social institution. This Article takes an approach that cuts across the divide by arguing, as others have, (1) that the role of contract in marriage should be extended for those who choose to agree to additional terms. In a sense, this approach transcends the culture wars by drawing on liberal values, such as individualism and neutrality, to allow individuals to emphasize more traditional or communitarian values, such as interdependence and attachment, if they so choose. This Article takes the argument a step further by recommending that communities of faith play an active, positive role in a marriage regime of expanded contract. Specifically, communities of faith should not only be allowed but should also be encouraged to define the types of commitments they wish to bless as marriage.

This Article first outlines some of the background for understanding changes in marriage and divorce in America, including changes in views on what marriage is and should be, as well as developments in society's conception of morality and law. After laying out the shifts that have taken place in the last half-century, the Article presents some of the major legal and nonlegal attempts that have been made to fix marriage. Then, the Article provides a brief overview of what others have written on how expanding the role of contract might be used to strengthen marriage. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Contracting out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.