The future of the family: the social and legal impacts of legalizing same-sex marriage.

Author:Wardle, Lynn D.
Position:Brigham Young University Symposium on the Future of Families and of Family Law
 
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INTRODUCTION

In predicting the future of the family it is important to understand to the extent possible--and, hopefully, be able to explain and quantify--the likely social effects of judicial decisions that invalidate, enjoin, overturn, or otherwise substantially change existing legal rules regarding family relations. Predicting such doctrinal changes and the resulting social consequences is difficult and problematic as such changes depend upon so many dynamic variables. Trying to ascertain and evaluate such changes in family laws and the consequences thereof is not, however, irrelevant or insignificant, nor can it responsibly be avoided by persons concerned about the welfare of their children and grandchildren, and their families and society.

In the spirit of seeking to understand and to be prepared for, and to help our posterity to understand and to be prepared for the challenges that may face families and family members in the future, this paper briefly reviews evidence of the trends in marriage and family relations primarily in the United States and with a few global comparative observations and perspectives. Such knowledge may help lawmakers establish prudent legal policies that will help families and family members to enjoy the maximum security, joy, flourishing and fulfillment possible.

There is no credible dispute that marriage and family forms, structures, relationships, and meanings have changed and are changing significantly in American society--and, to a lesser extent, in some other countries as well. As both an effect and partial cause of these social changes, family law, likewise, is becoming more turbulent and more confused. Sorting out what is the policy of any particular state regarding the forms, structures, and relations that are legally protected within the umbrella of family relationships, in these times of turbulent transition in family law, is not always clear or simple. One purpose of this paper, pursued in Part I, is to provide an accurate description of the current status (as of April 2015) and recent history of intimate relationships that are recognized family relationships in the American states (and, to lesser extent, the various nations in the world).

Part II considers the unique benefits and characteristics of marriage that make it appropriate for states to give it special, unique, legal status. The obvious question today is whether and why traditional marriages deserve to be given special, advantageous treatment in the law. Considering the unparalleled contributions that such marriages make to the welfare and happiness of individuals, families, and society in general, the justification for such legal status should be obvious. Part II provides just an overview and a few examples of why male-female traditional marriages merit legal preferences above other kinds of intimate adult relationships.

Part of the cause of the legal, conceptual commotion about family relationships can be attributed to controversial judicial decisions mandating new definitions of family relationships and significantly altering the meaning of marriage and other family relationships that were established by the politically-accountable branches. Courts can be political instruments, and judges, pursing their own political preferences, can exceed the roles and responsibilities constitutionally allocated to "the least dangerous branch." (1) Activist federal courts mostly have been driving the redefinition of family relationships by judicial decrees in this nation. However, not all progressive judicial decisions about family law fall into the error of illegitimate promotion of political agendas by the judiciary. (2) Some important judicial reform decisions about family laws and policies have facilitated, and can ease and enable, the progressive development of the law in legitimate and appropriate ways. Therefore, another core purpose of this paper is to explain and illustrate the distinction between legitimate judicial progressivism and illegitimate judicial activism; thus, Part III of this paper examines several historical examples of major changes in family law, which were influenced (or driven) by judicial rulings. It contrasts the contemporary "illegitimate" movement to legalize same-sex marriage with the legitimate and successful judicial decisions to invalidate anti-miscegenation laws, and to recognize "palimony"--financial interests of non-marital cohabitants. Then, it compares the same-sex marriage jurisprudence with the dubious and still-controversial Supreme Court decisions that legalized abortion-on-demand. It also contrasts the ongoing national legalization of same-sex marriage with the national legalization of no-fault divorce. The legalization of no-fault divorce may be the last profound change in the structure of American families and of family law to be adopted primarily by legislative processes. It is proof that the normal democratic processes can implement major changes in family law and family relations. Contrary to popular opinion, the legalization of no-fault divorce occurred in a relatively short time, in less than five years in most states, and less than a decade in all states.

Thus, Part III of this paper briefly reviews Loving v. Virginia, (3) Marvin v. Marvin, (4) and Roe v. Wade. (5) These examples of profound, judicially-decreed changes in family law had immediate, long-lasting, and profound direct and indirect effects upon family relations and family law, and upon society in general. This paper notes the significant policy and structural implications of the decisions that have mandated the legalization of same-sex marriage. It distinguishes Loving and Marvin in some significant ways. It also compares and contrasts the judicial movement to legalize same-sex marriage with Roe (which involved criminal law). It will conclude that in some very critical ways, judicial legalization of same-sex marriage is more like Roe than Marvin or Loving, and that the most lasting, effective, and legitimate law reform will be achieved if we follow the legislative reform process used to legalize no-fault divorce.

Finally, to persons familiar with the allocation and reservations of governmental powers in the Constitution of the United States, it may seem strange that federal courts should be deciding legal policy regarding so profound and fundamental an issue of state marriage policy as whether the legal concept, definition, and meaning of marriage in a particular state should be revised to include couples of the same gender. Indeed, the legalization of same-sex marriage in some states by federal judicial decrees seems to fly in the face of fundamental federalism principles (concerning whether the states or the national government should regulate domestic relations) and separation of powers issues (concerning whether unelected, life-tenured judges rather than politically accountable legislatures should determine state marriage policies such as whether to legalize same-sex marriage), as well as core democratic theory (regarding who should formulate significant domestic relationship laws and policies, and how they should be formulated). This anomaly will be the subject of Part IV of this paper, which examines whether we have a situation now of "judges gone wild" in radically revising marriage laws to promote their own preferred vision of how marriage should be defined in regard to whether same-sex couples should be allowed to marry.

Part V provides a brief conclusion. It reminds us that the past truly is prologue, but the critical question is: which past? Which precedents will guide how courts approach (or avoid) the extremely controversial political questions underlying the current debate regarding whether same-sex marriage should be legalized, and, if so, by what processes, and with what influence by the American judiciary?

  1. TRENDS AND DEVELOPMENTS EVIDENCING SIGNIFICANT CHANGES IN FAMILIES

    The shape, structure, composition, and meaning of American families have changed significantly in the past half-century. (6) Today, almost half of children in single-mother homes live with never-married mothers; four decades ago, that figure was only one in sixteen, a mere one-seventh of today's figure. (7) One reason for the dramatic rise in the number of children being raised without a father is because marriage rates are declining. Since 1950, the percentage of adults who are married has declined among Americans of all races. The most dramatic decline has occurred among African-American adults, of whom less than 40% are married today; but for all races combined, the downward trajectory has been the same, and the rate of married adults has fallen from the early sixties when nearly 70% of all American adults were married, to only 52-55% of adults married today. (8) While the overall decline in marriage rates is not huge (down from 1996 to 2009 by only 2% for men and only 3% for women), (9) the reduction is consistent among those married once, twice, or ever. (10)

    Other indicia of declining social respect for and standing of marriage confirm that marriage is no longer the golden rule, the honored rite of passage to adulthood. (11) For example, more unmarried women are having babies out of wedlock today than in the past, and the gap between the birth rate of married mothers and unmarried mothers has closed dramatically, from 156.6 for married women compared to 21.6 for unmarried women in 1960, to 85.7 for married women and 50.5 for unmarried women in 2009. (12) "Today, the marriage rate--the annual number of marriages per 1,000 unmarried women--is less than half of what it was four decades ago." (13) The proportion of married adults has decreased steadily and profoundly. The reduction in marriage rates for younger adults is also reflected in data showing that a larger proportion of women of all racial and ethnic groups have been married for longer (at least fifteen years) than in previous times. (14)...

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