The following is a version of an article that Don Browning has published in the Spring, 2007, issue of the Emory Law Journal. Reprinted by permission.
[1] In this essay, I will review and critique Linda McClain’s important new contribution to family law in her The Place of Families (2006).[1] In the process, I also will touch on various trends in contemporary family law. I will review McClain from the perspective of “critical familism.” Critical familism is the term I use to describe certain constructive implications of the Religion, Culture, and Family Project. This was a multi-year and multi-volume research project located at the Divinity School of the University of Chicago and funded by generous grants from the Division of Religion of the Lilly Endowment, Inc.[2] I write this review essay to bring critical familism into conversation with various trends in family law theory, especially as exemplified by the recent work of Professor McClain. It should be noticed that McLain also has engaged critical familism at considerable length.[3] Therefore, it seems natural to extend our conversation and in the process address other aspects of contemporary family law as well.[4]
[2] Although the concept of critical familism is significantly informed by past Jewish and Christian contributions to family law theory in Western societies, these traditions when properly interpreted and critically reconstructed are relevant even today to the modern law of families and marriage. Hence, this essay does not only address the field of family law, it also addresses the more general question of the relation of religion to the law in a pluralistic and democratic society.
[3] Critical familism holds that several trends in contemporary American family law are not productive for the wellbeing of families, children, parents, and the wider society. For example, family law exhibits an uncritical understanding and acceptance of the certain disruptive forces of modernization as they are played out in the marital, sexual, and reproductive fields. Present-day family law is weak at the theoretical level in assessing how modernization, understood as the synergism between technical rationality and cultural individualism, has brought about a wide range of separations in the sexual field. Among these are trends toward the separation of sex from marriage, marriage from procreation, parenting from marriage, and with the advent of Assisted Reproductive Technology (ART), the separation of parenting from reproduction. Many of us would affirm some of these separations under certain conditions. Frequently, however, contemporary legal theory has dubbed these separations as largely benign social changes or productive expressions of family diversity without assessing their full implications for the sexual field, especially the wellbeing of children and our cultural and legal understanding of parenthood.[5]
[4] Contemporary family law also has taken the short, in contrast to long, historical view of the interaction of religion and law in shaping Western marriage and family patterns.[6] Related to this is family law’s failure to understand that religious traditions are carriers of practical legal rationalities that are both informed by religious narratives but can gain elasticity from them for debate in law and public policy.[7] As a consequence of the law’s limited understanding of both modernization and inherited religio-philosophical legal traditions, it has functioned to deepen dislocations in the reproductive field produced by cultural individualism and technical rationality. These include sanctioning cohabitation by promoting its legal equivalence to marriage, dealing with marital strain by either disestablishing or de-legalizing marriage, addressing social welfare needs by broadening the definition and privileges of marriage to cover problems not generally remedied with this institution (thereby rendering marriage indistinguishable from other living arrangements), and normalizing the unregulated use of reproductive technologies that further divides parenthood from procreation and marriage. All of these trends arguably work to the disadvantage of children and their human rights. To say it bluntly, in an effort to be progressive, recent family law theory arguably is in fact conformist; it both capitulates to and promotes the dislocations of modernization in the realms of sex, marriage, and family.
[5] Although I will discuss these trends mainly in terms of how they appear in the careful work of Linda McClain, I also will make lateral remarks about other leading positions in family law theory – namely recent reports from the American Law Institute,[8] the Canadian Law Commission,[9] and the theoretical writings of distinguished legal scholars such as Margaret Brinig,[10] June Carbone,[11] Martha Fineman,[12] Lawrence Friedman,[13] Richard Posner,[14] and Milton Regan.[15] None of these additional theoretical perspectives will get the full attention that they deserve, but references to them will clarify the distinctiveness of McClain and help convey the full force of her differences with critical familism.
The Meaning of Critical Familism
[6] Critical familism is based on an ecumenical reading of the central ecclesial and legal implications of the Christian tradition on marriage and family. The theory is familistic in that it supports the centrality of marriage for family formation and childrearing. It does this even though it follows the Protestant view that understands marriage as a highly important but relative good not to be confused with Christianity’s more ultimate categories of salvation or redemption.[16] Critical familism is not familistic in the early modern sense of viewing marriage and family as organized around the divided spheres of male work in the wage economy and female investment in the domestic sphere, still defended in some quarters as the ideal Christian family arrangement.[17]
[7] Although critical familism grants a decisive role to a variety of Christian themes for framing the meaning of marital and family relations, it is also attentive to the way Christianity interacted with, absorbed, yet reconstructed Hebrew, Greek, Roman, German, and Enlightenment philosophical family influences. For example, critical familism tries to unpack the statement now found in biblical scholarship that the early Christian family is the “Greco-Roman family with a twist.” This means that what early Christian marriage and family meant can only be seen in dialectical relationship to the normative ideals of Greco-Roman family mores and law.[18] Critical familism also affirms the statement made by legal historian John Witte that 12th century Roman Catholic canon law provided the cultural “genetic code” of Western family theory at both the cultural and legal levels.[19] Critical familism views Christian marriage and family as thick and multi-dimensional, both historically and logically. It is historically multi-dimensional because it synthesizes in unique ways several historical strands, such as Hebrew scriptures, Greek philosophy, Roman law, and aspects of German law. It is multi-dimensional in the logical sense in that it contains, as I mentioned above, several levels of practical rationality that are both informed by yet identifiable independently of its surrounding religious narratives.[20]
[8] Critical familism is critical in two senses. First, a critical reading of early Christian history has led me to argue that it was projecting what Paul Riceour called a “trajectory” of meaning toward an equal-regard view of marital relations between husband and wife.[21] When the New Testament materials are read in context, we now see that the Jesus movement was in tension with the Greco-Roman honor-shame codes and Aristotelian aristocratic views of the relation of the father to wife and children that dominated the urban centers of Roman Hellenism and constituted the social context of early Christian communities.[22] The Jesus movement and the apostle Paul brought the ethic of (Eph 5: 28), and instructed husbands to be servants rather than Aristotelian rulers of their families (Eph. 5: 25). Second, in taking the equal-regard impulse of early Christianity seriously and developing its logical implications, critical familism has important implications for social theory as well. It brings the equal-regard ethic not only into the dyadic relations of husband and wife but also to the criticism and reorganization of social institutions in the public world. It proposes supporting the mother-father team with equal, although not necessarily identical, privileges and responsibilities in both the public worlds of politics and paid employment as well as the more private realms of home, child rearing, and intergenerational care.[23] As an example of its many proposals, critical familism goes so far with its equal-regard ethic as to propose major reorganizations of the world of paid wages so that married couples with children would need to be employed no more than sixty hours each week between them to earn an adequate living and have time for children and each other.[24] When the New Testament materials are read in context, we now see that the Jesus movement was in tension with the Greco-Roman honor-shame codes and Aristotelian aristocratic views of the relation of the father to wife and children that dominated the urban centers of Roman Hellenism and constituted the social context of early Christian communities.
McClain’s The Place of Families
[9] I will develop further dimensions of critical familism as I review McClain’s The Place of Families. Her position should be interpreted as mediating between the critical feminist theories of Martha Fineman or June Carbone and the more pro-marriage perspectives of Margaret Brinig and Milton Regan. Fineman and Carbone share the belief that marriage should be either delegalized as Fineman proposes[25] or disestablished to place more emphasis on parenthood rather than the conjugal couple, as Carbone advocates.[26] Whereas Fineman would delegalize what she calls the “sexual family”[27] and Carbone would shift legal regulations from marital partners to parents whether married or not,[28] McClain differs from both and retains marriage.[29] But she would broaden its definition and protections to include same-sex couples[30] and extend most of its privileges and protections to cohabiting couples, domestic partnerships,[31] unmarried singles with children (including those giving birth by elective Assisted Reproductive Technology),[32] as well as a variety of cohabitors not sexually involved and who, for various reasons, are dependent upon one another .[33] In her move to create legal or near legal equivalence in privileges and responsibilities between married couples, domestic partnerships, cohabiting partners, and various additional patterns of adult interdependencies, she is close to the positions advocated by the recent proposals in the American Law Institutes’ The Principles of the Law of Family Dissolution (2002) and the Canadian Law Commission’s Beyond Conjugality (2002).[34]
[10] In short, McClain shares a widespread assumption found in contemporary family-law theory. This is the rather uncritically held commitment to the idea that supporting family diversity should be a fundamental moral commitment of present-day family law.[35] This belief – or maybe we should call it a “pre-commitment” – stands out with stunning clarity when viewed along with another widely held belief in contemporary family law, i.e., that it should be morally neutral and avoid value judgments as nearly as possible.[36] Although the view that law should be morally neutral is the majority view in contemporary family-law theory, McClain, along with Margaret Brinig[37] and Milton Regan,[38] is not a champion of the moral neutrality view of law. In fact, she advocates a pro-active morally articulate view of law and government that would foster both equality in all intimate relations as well as the extension of marriage-like privileges, as we already have seen, to a wide range of relationships beyond the conjugal husband-wife couple, as is the case with the relatively recent European pact civile de solidarite.[39] She does not go as far in her moral view of law as does law-and-economics scholar Margaret Brinig who rehabilitates the concept of covenant, in contrast to contract, as the reigning trope governing legal marriage agreements.[40] But she does make use of certain moves made by Milton Regan. Regan rejects current legal views depicting marriage as basically a legal contract and argues for reintroducing a more egalitarian version of the Victorian idea that marriage is a predefined legal and moral status.[41]
[11] McClain, however, goes beyond Regan in wanting to grant features of the marital status to a wide range of living arrangements, whether the people in question are intending to be married or not.[42] In this, she once again is close to views in The Principles of the Law of Family Dissolution.[43] She is also close to the belief put forth by Martha Fineman and Beyond Conjugality; they both argue that government and law must go beyond the traditional conjugal relation of husband, wife, and children and now sanction, support, and protect with marriage-like privileges a wide range of dependent relationships.[44] Hence, McClain is party to a distinct movement in contemporary family law to extend the privileges and protections of marriage to a variety of dependent relationships as a strategy for mediating welfare benefits in a rapidly changing, disrupted, and insecure society.
McClain and Liberal Social Theory
[12] McClain, as I have indicated above, does not believe law can be morally neutral. More specifically, she is part of a small legal movement that recognizes that law needs some kind of social theory or philosophy to get oriented to its task. McClain opts for a form of liberal feminism. John Rawls and Susan Moller Okin are two of her leading lights. Rawls’ concept of justice as fairness without regard to different views of the goods of life is, according to McClain, the key to the moral substance of law in a liberal society.[45] Yet McClain also combines a liberal theory of justice with a more Aristotelian-sounding theory of the virtues required for citizenship in a liberal society. These virtues are namely the capacity for equality, responsibility, respect, tolerance, and liberty.[46] McClain makes use of Okin’s reconstruction of Rawls to apply justice as fairness to the inner life of families as well as to government and law. The family, for both Okin and McClain, must be an arena of fairness, especially in relation to the situation of women and the socialization of children.[47]
[13] But there are additional twists worth noting in McClain’s use of Rawls and Okin . Although Okin holds that the family has a powerful influence on shaping future generations to have the virtues of democratic citizenship, McClain goes further and argues that government and law have the right and obligation to directly form families to develop these skills of citizenship.[48] In McClain’s social theory, the order of influence flows from government to families and families to children, without much mediation by institutions of civil society. More specifically, in contrast to those advocating a mediating role for civil society such as William Galston, Jean Elshtain, Francis Fukiyama, and the Institute for American Values,[49] McClain has little trust in the capacity of churches, schools, community organizations, and the business world to shape families for democratic citizenship without the directives, reinforcements, and persuasion of legally sanctioned governmental interventions.[50] Although she does not advocate the use of force by government and law in producing gender equality in families, she does advocate a place for governmental “persuasion” through education and other inducements.[51]
[14] McClain, however, carries Rawlsian justice to still another level. Not only should law insist on justice within families, she believes it should actively advocate justice between families, regardless of family form or marital status.[52] Her Rawlsian skepticism about different views of the good being amenable to rational mediation leads her to believe that all forms of family are equally good for adults and children as long as they exhibit the abstract features of justice in gender relations. This position ends, I contend, in a possible contradiction in McClain which I will address more fully later. McClain rejects the position of legal theorist Carl Schneider who contends that law traditionally has had, and should have today, a channeling function that shapes behavior into responsible sexual interaction within legal marriage.[53] This raises the question: how does McClain distinguish her theory of legal persuasion from Schneider’s view of legal channeling? Why does McClain hold it is wrong for government to channel sexual interaction into legal marriage whereas it is right to persuade all family forms to exhibit gender equality? And how does she justify doing this while, at the same time, bracketing from family law what moral philosophers call questions about the premoral or nonmoral goods of life, especially as this relates to the goods enacted on average by various forms of the family in meeting the needs of children?
[15] McClain’s distaste for discussing the category of premoral or nonmoral goods raises questions about her understanding of tolerance, one of her central virtues (along with the capacity for respect, equality, responsibility, and liberty) required for democratic citizenship. McClain believes that much of our tolerance in the United States today is “empty tolerance.”[54] It may be, however, that she has replaced empty tolerance with empty yet official approval and legitimation. What do I mean? Empty tolerance, she claims, is mere civility that often cloaks deeper moralistic judgments and harmful rejections.[55] She advocates a more robust toleration which respects – following, she assumes, the lead of Locke, Mill, and Rawls – what she calls “reasonable pluralism.”[56] This kind of toleration refrains from imposing any one comprehensive view of the good on its citizens. Instead of one part of society imposing rights and ideal goods on another, she insists that citizens engage in “reason-giving” deliberations about the right and the good. Only the policies supported by the best reasons should merit gaining the persuasive power and sanctions of law.[57] I will contend that without a more sophisticated theory, or way of handling, the question of the premoral goods of life, including the premoral goods relevant to the wellbeing of families and children, she has no rational way of entering into the “reason-giving” that she calls for. Hence, without this element of moral theory, her Rawlsian view of justice and her list of democratic virtues themselves become empty. In addition, her call for toleration becomes a blanket approval of an indiscriminate variety of life styles – an approval that also would gain the channeling, sanction, coercive protections, and rewards of the law. In fact, her theory of toleration goes beyond respect and persuasion to give the normalization of law to all kinds of diversities that she has not actually critically assessed or defended.
[16] McClain, it must be acknowledged, is partially correct when she calls for the law to go beyond unrealistic neutrality and enter the moral field to persuasively promote the moral point of view. But in her position, this means government using its moral persuasion to promote what McClain calls the power of “self-governance” by and among citizens.[58] This laudable viewpoint, however, is marred by her incomplete, if not empty, theory of both justice and virtue that she develops without indices of the premoral goods of life that justice should organize and virtue should serve. In short, McClain has taken law to the doorstep of moral and political philosophy. Although law should go beyond moral neutrality, it should do so with caution, humility, and outside assistance. As the philosopher of law Brian Blix has so aptly pointed out, law may have no special competence in moral and political philosophy.[59] I will argue in the following paragraphs that McClain exhibits some of the inadequacies Blix is suggesting.
Some Weakness in Law on the Nature of Premoral Goods
[17] When moral philosophy and theology use the concepts of premoral or nonmoral goods, they are speaking of the countless ways we refer to the various goods of life that are not directly moral goods. I follow discussions of the premoral good found in the neo-Thomistic moral theologian Louis Janssens and the nearly identical concept of the nonmoral good developed by the distinguished American moral philosopher William Frankena.[60] If I say “this water is good,” I am not saying it is morally good. I am making a premoral judgment. I am saying it is clean, has a nice taste, and is likely to be healthy to drink. If I say that the mayor and the commissioner of sanitation should provide clean water for the citizens of their communities, I am making a moral judgment. And if I say that these authorities should provide clear water equally for everyone – not just the elite, the wealthy, or those who live on the right side of the tracks – I am making a moral statement about justice or fairness. But notice, although water is not directly a moral good, it is a premoral good. It is unclear what my moral statement about justice actually means unless we all know that these statements are about the distribution of something premorally good for human beings – something like water – but which is itself not directly a moral good. Water does not have a will and cannot itself act, either morally or immorally. The distinction between premoral and directly moral judgments runs throughout our everyday moral and legal discourse whether we are talking about health or wealth, beauty, efficiency, warmth, housing, or safety. Without attending to the question of premoral goods, as McClain fails to do, her effort to drag the law into moral and political theory becomes highly problematic.
The Premoral Good of Fatherhood
[18] In the paragraphs that follow, I will review several ways in which McClain’s failure to develop within family law the category of premoral goods weakens her otherwise laudable effort to overcome the alleged neutrality of law, and bring it closer to moral and political theory. This first can be seen in her discussion of the possible link between marriage and fatherhood. McClain rejects the idea that marriage is important to preserve because it channels male sexual activity into commitment to their wives and attachment to their offspring.[61] Unfortunately, McClain does not understand the main thrust of the historic arguments for the link between marriage and stable fatherhood. McClain directs some of her arguments to my own writings, as well as those of David Popenoe,[62] David Blankenhorn,[63] Steven Nock,[64] and George Gilder.[65] Since there are important differences between these various positions, I only will speak to her critique of my position and the way she confuses it with the views of Gilder.
[19] Although McClain captures my strong commitment to gender equality and the idea of the equal-regard marriage in both the public and private aspects of life,[66] she mistakenly thinks I argue that in marriage wives domesticate the erratic and polygamous sexual inclinations of men. She ascribes to this view the idea that in marriage, women should be the gatekeepers to sexual access and morality.[67] This view holds, she argues, that to have sex with a woman the man must first marry her and thereby become the father of any offspring resulting from their union. McClain disparages this position, thinks it puts an unfair socializing burden on women, and insults the moral self-governing capacities of both men and women.[68] In addition to believing this is my position, she suggests that it is the position, implicit or explicit, of other scholars who argue for the link between marriage and responsible fatherhood – especially the work of University of Virginia sociologist Steven Nock in his Marriage in Men’s Lives (1998).[69]
[20] Her characterization of the link between marriage and fatherhood probably only fits the theory of George Gilder. It certainly does not fit my views. In addition, there is no reference to Gilder in any of my writings on marriage and family even though McClain associates my view with those such as Gilder, a mistake that Gloria Albrecht makes as well in her recent review of my work.[70] Rather than the gate keeping role of the woman, my argument puts the weight on the channeling power of marriage as a public institution. Marriage as an institution integrates men into the care of their children through the channeling power of public expectations, legal sanctions, institutional signaling, and, historically, the religious ideas of sacrament and covenant.[71] The affections of the wife are certainly a factor, but it is not this alone that integrates men. Certainly, the argument does not rest on the narrow idea of girlfriend and wife as gatekeepers of sexuality. It is the institutional patterning and reinforcement plus emerging emotional attachments with spouse and children that helps integrate men into responsible fatherhood and care. Both McClain and Albrecht miss the institutional argument.
[21] My argument is not so much about how women domesticate men as about how the institution of marriage helps actualize father’s capacity for care. Marriage is more likely to channel males into recognizing their offspring as part of their own being and hence lead them to invest in the care of their child as a continuation of their existence. This paternal care argument for marriage goes back, at least in the West, to the Genesis command to men and women to be “fruitful and multiply” and regard their offspring as children of God, made in the image of God (Gen. 1: 27-28) and hence subjects worthy of parent’s stewardship, care, nurture, and cherishing. In the eleventh and twelfth centuries, this biblical story of parental responsibility became philosophically reinforced by the Aristotelian-Thomistic view of the relation of parental care and the conjugal relationship. One sees it in Aristotle’s Politics where he says both humans and animals have “a natural desire to leave behind them an image of themselves.”[72] One sees it again when Aristotle argues, in contrast to Plato who thought state nurses should bring up children, that the parents who beget children should raise them. He argues for the power of natural parental care when he asserts, “Of the two qualities which chiefly inspire regard and affection – that a thing is your own and that it is your only one – neither of these can exist” in Plato’s ideal republic where children are raised without knowledge of who their actual parents really are.[73] These two strands from Genesis and Aristotle were picked up by Thomas Aquinas, with the Aristotelian naturalistic story being subordinated to the Hebrew-Christian view of fathers and mothers as God’s stewards of their children. [74] From there, these reinforcing biblical and philosophical insights into the link between conception and care entered the family law of early modern European countries, the ecclesial and legal theory of subsidiarity found in modern Roman Catholic social teaching,[75] and finally the family theory implicit in the Universal Declaration of Human Rights.[76]
[22] The Protestant Reformation disseminated this synthesis of biblical deontology and Thomistic-Aristotelian teleology to early modern secular law. In spite of Martin Luther’s rejection of the Roman Catholic sacramental view of marriage, Brian Gerrish and John Witte remind us that Luther retained much of the Aristotelian-Thomistic view of the rights and importance of the fathers, mothers, and the natural family. Luther did this even though he assigned this level of thinking to the practical reason and institutional law of the left hand Kingdom of God – the Kingdom of this world.[77] He especially emphasized the importance of married fatherhood when he ridiculed the disparagement of paternal care for their children that came from the monks and priests of the early 16th century.[78] This entire line of argument about the importance of marriage as an institution functioning to enhance paternal care is a classic perspective carried and advanced by the Christian tradition. It is actually, however, a mixed argument that blends and balances a Christian ontology of creation and covenant with a subordinate biophilosophical, teleological, and Aristotelian argument about the premoral goods of parental investment in their children through the integrations of marriage as a sanctioned institution.[79]
[23] McClain, with her more Platonic sensibilities about the heightened role of the state in directing the care of children, misses the point of this massive religio-philosophical and legal tradition. This tradition mainly conveys an argument about the sources of the premoral investment of paternal care for offspring. It is the public institution of marriage – reinforced by law, covenant, or sacrament – that channels the investments of males in their offspring, not just the enticements of women, as McClain seems to think. Because of the powerful premoral good of paternal care and investment, both law and religion have traditionally emphasized the moral channeling of legal marriage as a way of organizing and enhancing these energies. Religion also has sanctioned the institution of marriage because it helps integrate the premoral good of paternal investment with a variety of other reinforcing goods such as sexual exchange and reciprocal care between husband and wife. This is the argument for matrimony found in Augustine’s The Goods of Marriage[80]and subsequent theological and legal formulations that it influenced throughout Western history.[81] Integrating the investment of fathers into the care of their offspring is not the only good of marriage, but it may be one of its central goods; the premoral goods of sexual exchange and reciprocal aid between spouses help reinforce and thus integrate the premoral good of parental, and especially paternal, investment.
[24] Parental investment in and attachment to children, whether paternal or maternal, is a premoral good. It is morally relevant but not morally exhaustive of parental obligations to their children. Parental investment is an index of their emotional identification with, commitment to, and endurance in caring for offspring. This investment is not fully moral unless it is guided by respect for the growing selfhood of the child, integrated into a wide range of other premoral goods of life, and balanced with the needs of other children not one’s own. From a Christian perspective, this premoral attachment and investment in one’s offspring is subordinate to an even deeper reason to care for one’s children, i.e. the reason that they are children of God and reflections of the divine good. Thomas Aquinas formulated it well; Christians should love their children for two reasons – 1) because they are continuations of their own existence and 2) because they are made in the image of God. Aquinas taught that the latter reason was the more profound.[82] Furthermore, he held that because all children are made in the image of God, we have the obligation to love all of them in analogy to our own offspring. This is the ground for the Christian obligation to adopt and cherish needy and abandoned children and orphans.[83] It was Aquinas, more than anyone else, who gave Western Christians a way of reconciling the demands of the love and justice of the Kingdom of God with the important yet subordinate good of loving and emotionally investing in our own children. This legacy is deep and is likely to remain in the sensibilities of Western societies unless dislodged by contemporary legal theory and the logics of modernization. These two forces together may unwittingly be functioning to undermine how the institution of marriage reinforces the deep attachments possible between fathers, mothers, and their children. They may also be functioning to ignore or actively reject the way religious symbols balance and reinforce these inclinations.
Kin Altruism, Child Wellbeing, and Domestic Violence
[25] Because McClain does not understand accurately the classic philosophical and theological arguments for the link between marriage and paternal attachment, she does not understand the relation between family diversity and violence. As I have pointed out above, McClain, along with The Principles of the Law of Family Dissolution and Beyond Conjugality, holds an a priori dedication to the goal of family diversity.[84] They all hold a strict analogy, if not identity, between the moral good of ethnic, racial, and cultural diversity, which we would all affirm, and the alleged good of diversity in family form, which is a much more problematic concept.
[26] But there are several defects to this presumption. First, it overlooks growing evidence on the comparative capacity of various family forms to enhance the premoral goods of health and wealth, especially for children. It overlooks growing evidence of the increased violence against children by cohabiting couples, domestic partnerships, single-parent homes, and even married stepfamilies. New empirical evidence supports the intuitions of the classic tradition that I outlined above. The a priori presumption in favor of diversity in family form overlooks the fact that today many liberal social scientists, who on several issues would otherwise agree with McClain, are now willing to support marriage promotion as public policy as long as it does not replace other needed public supports for families and children.
[27] It will be efficient to start with the last point and work backward to the others. Why are previously skeptical liberal social scientists gradually moving toward supporting marriage as public policy? The answer is this: strong emotional investments by parents in children are the presupposition for creating the emotional health required to form democratic virtues in children and youth. McClain actually agrees that strong and warm attachments create a foundation for democratic citizenship, but she denies that the two-parent intact family has an advantage in this. One of the most peculiar features of this otherwise careful book is absolutely no discussion of the emerging consensus in the social sciences that children do better on almost every measure of health and wellbeing if they are raised in the married, two-parent family.[85] To the contrary, she holds that a “close parent-teen relationship does not, in itself, vouchsafe good citizenship.”[86] In this, McClain is doubtless partially right; close attachments may not be sufficient, but they may be essential in the sense of foundational to all other socializing measures. Democratic citizenship is not likely to emerge in young people without the healthy attachments of the kind that stable intact married parents on average can provide better than other arrangements. The growing evidence of this accounts for why the liberal social sciences are turning to what some call a policy of “marriage-plus” – the idea of the cultural and public support of marriage but without undercutting a variety of other important governmental family supports, especially for children.
[28] Evidence of this can be found in a recent edition of the journal The Future of Children on “Marriage and Child Wellbeing” jointly sponsored by Princeton University and the Brookings Institution.[87] In a special issue, the most authoritative summaries of the connection between marriage and child wellbeing are reported. Much of this builds on evidence from Paul Amato’s and Alan Booth’s Children at Risk (1997), research from the Center for Law and Social Policy, and the Washington, D.C. research institute called Child Trends. A recent literature review from Child Trends concludes with the striking statement, “[R]esearch clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage.”[88] Recent reviews of the literature by The Center of Law and Social Policy and the Institute for American Values point in the same direction.[89]
[29] Is there a new, totally unambivalent, consensus in the social sciences on the importance of marriage for children? Not quite, but there are strong trends in this direction. In a recent review of 266 articles that in some way address the issue of family structure from 1977 to 2002 published in the prestigious Journal of Marriage and Family, Norval Glenn and Thomas Sylvester rated these articles on a 1-5 scale as to whether they were either “sanguine” about the role of family structure for child wellbeing or “concerned,” meaning pro-marriage. They found a major shift from 1977 to 1987 toward scientists who were “concerned” and a discernible but less dramatic movement in this direction from 1987 until 2002. Even in this later period, 3.64 percent of the articles believed that married biological parents made a measurably positive difference to child wellbeing, when all other relevant factors were controlled.[90] What is intriguing about the Glenn-Sylvester survey is the logical analysis they make of how some social scientists have downplayed or denied the family-structure effect. This was done by using various forms of the “not in-and-of itself” or the “per se” argument of the kind McClain used in denying the link between family structure and democratic virtues. These arguments try to deflect attention from structure to causal factors such as income or family process. Such maneuvers are, according to Glenn and Sylvester, illogical because of existing research demonstrating that family structure and father absence themselves contribute to loss of income and poor family process.[91]
[30] Such evidence, largely ignored by McClain, challenges her a priori commitment to family diversity. In view of this mounting evidence, one can appreciate the direction of the articles in the Princeton-Brooking issue of “Marriage and Child Wellbeing” when the introduction states, “The articles in this volume confirm that children benefit from growing up with two married biological parents. The articles also support a more active government role in encouraging the formation and maintenance of stable, low-conflict, two-parent families.”[92] The authors and editors of this issue seem not to fear the prospect of government, churches, and civil society channeling human sexuality and childrearing towards marriage as long as this does not trump or neglect other important job, tax, welfare, and justice supports for families and their children. This is a position entirely consistent with, and directly advocated by, the perspective of critical familism and first introduced in the last full chapter of From Culture Wars to Common Ground and repeated in Reweaving the Social Tapestry, the background book for the consensus statement achieved on family public policy sponsored by Columbia University’s The American Assembly. Although we did not use the term, for all practical purposes it was a marriage-plus policy consistent with the editorial in the Future of Children.
[31] The issue at stake, here, is the question of channeling, something McClain is quite happy to aggressively use law to accomplish with regard to equality in and between families. But she is reluctant to do this to enhance the likelihood that children will be raised by the parents who conceive them. Increasingly, this particular issue is being seen as a question of children’s rights, well protected in the Universal Declaration of Human rights.[93] In addition, new evidence from both sociology and evolutionary psychology shows significantly higher levels of sexual and physical violence to children in cohabiting families, domestic partnerships, single-parent homes, and stepfamilies, making this issue of children’s rights all the more salient.[94] McClain fears that promoting marriage in law and public policy will trap women in violent homes.[95] Unfortunately, she disregards evidence collected by University of Chicago sociologist Linda Waite and others demonstrating that violence to both adults and children is far less in intact marriages than in cohabiting couples, domestic partnerships, and other non-legal arrangements.[96]
[32] All of this evidence indicates that an uncritical, if not a priori, commitment to placing the channeling and sanctioning power of law and government policy behind family diversity is not justifiable. Nor is it a wise construal of liberal social policy. Liberal social policy must not simply concentrate on the procreative and intimacy rights of adults. A genuinely liberal social philosophy must express itself in a life-cycle theory of justice and equal regard. It must include the interests of children behind the veil of ignorance – the veil that in principle McClain honors so profoundly. Since small children cannot fully articulate their own interests, adults must exercise empathic imagination on their behalf. Increasingly, however, young adults who were themselves children of divorce or conceived through the aid of anonymous donors are wondering how it happened that the public policies of their societies have so carelessly disregarded their rights to be raised by the parents who conceived them.[97] Certainly, they want loving parents, and may in fact have had them in the various adult arrangements that raised them. They also are saying, however, that they want this love thickened as nearly as possible by the deep identifications, attachments, and investments that come from knowing and having been raised, if possible, by their parents of procreation and conception.
[33] The dynamics of modernization are such that we can be certain that there will be family diversity in the form of divorce, nonmarital births, cohabiting couples, and other so-called non-traditional family formations. Critical familism has no systematic animosity toward these families and acknowledges that public policy in the form of welfare, tax strategies, and medical supports is required to address their needs, especially those of their children. Indeed, critical familism has offered a long list of such supports. Critical familism has proposed something like the GI Bill of rights, but in this case for parents, married or not. It would guarantee parents who leave the job market for several years to care for children the possibility of joining it again, with job training and other supports, at approximately where they left.[98] For single parents on welfare, it has proposed no more than a 30-hour work week; significantly increased medical insurance; childcare supports; transportation supports; and huge increases in tax exemptions and earned-income allowances for all families with children, regardless of form.[99] Whereas McClain would meet the dislocations of modernization and cultural individualism by championing them in the name of diversity, critical familism addresses them with a strong reliance on reconstructed religious traditions, a social policy guided by an ethics of equal regard within families, and a differentiated welfare policy targeted to meet the needs of families with children without redefining legal and cultural institutions in ways that would further aggravate, if not channel, social fragmentation.
[34] Critical familism resists the proposals found in McClain, the Canadian Beyond Conjugality, The Principles of the Law of Family Dissolution, and several other leading family law theorists. These perspectives would institute a broadened definition of marriage and family and invent a wide range of legal equivalents to marriage as a way of addressing the dependency and welfare needs of modern societies. In the name of equal regard to both adults and children, I propose fashioning both civil society and the law to promote more equal regard and justice in both the public and domestic spaces of marriages and families, but without dismantling the use of law to channel through the institution of marriage the integration of sexuality, kin altruism, and extended family solidarity and the value of these integrations for the good of children.
[35] Critical familism brings together a program for the reconstruction of religious tradition, law, and public policy toward the equal-regard marriage and family and adds to it the emerging concept called “marriage-plus.” It does this in ways that maintain continuity between public policy and a critical hermeneutic retrieval of the marriage traditions of the dominant theological and philosophical strands of the Christian tradition. Through a similar task of reconstruction, the methodology of critical familism can doubtless bring the modern law of families into at least a rough congruence with other major religious traditions as well. This is a task and discussion that I have begun in other places but must be carried further at another time and in other contexts.[100]
[1]
Linda McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility (Cambridge, Mass.: Harvard University Press, 2006). (Hereafter, referred to as TPF.)
[2]
The phrase critical familism, however, does not represent the views of all the scholarly contributions to that project. It mainly refers to my co-authored contributions found in Don Browning, Bonnie Miller-McLemore, Pamela Couture, Bernie Lyon, and Robert Franklin, From Culture Wars to Common Ground: Religion and the American Family Debate (Louisville, KY: Westminster John Knox, 1997, 2000); Don Browning and Gloria Rodriguez, Reweaving the Social Tapestry: Toward a Public Philosophy and Policy for Families (New York, NY: W.W. Norton, 2002); my Marriage and Modernization (Grand Rapids, MI: Wm. B. Eerdmans, 2003); and a number of published articles.
[3]
Not only does McClain discuss critical familism and the Religion, Culture, and Family Project in The Place of Families, she also does this in her “Intimate Affiliation and Democracy: Beyond Marriage?” Hofstra Law Review 32:1 (Fall 2003), pp. 379-421.
[4]
In this article, I also will show how McClain compares and contrasts with other major legal theorists and positions, such as Margaret Brinig, June Carbone, Martha Fineman, Lawrence Friedman, Richard Posner, Milton Regan; the Law Commission of Canada’s Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, 2002); and The Principles of the Law of Family Dissolution (The American Law Institute, 2002).
[5]
For a fuller discussion of these various separations that have evolved in the sexual and reproductive field, see Brent Waters, Reproductive Technology: Toward a Theology of Procreative Stewardship (Cleveland, OH: Pilgrim, 2001).
[6]
Michael Grossberg, Governing the Hearth: Law and Family in Nineteenth Century America (Chapel Hll, NC: University of North Carolina Press, 1985).
[7]
For how religious traditions carry models of practical rationality, see Don Browning, A Fundamental Practical Theology (Minneapolis, MN: Fortress Press, 2001).
[8]
The Principles of the Law of Family Dissolution (The American Law Institute, 2002).
[9]
Beyond Conjugality: Recognizing and Supporting Close Personal Relationships (Law Commission of Canada, 2002).
[10]
Margaret Brinig, From Contract to Covenant: Beyond the Law and Economics of the Family (Cambridge, Mass.: Harvard University Press, 2000).
[11]
June Carbone, From Partners to Parents: The Second Revolution in Family Law (New York: Columbia University Press, 2000).
[12]
Martha Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform Chicago, IL: The University of Chicago Press, 1991); The Neutered Mother: The Sexual Family and Other Twentieth Century Tragedies (New York, NY: Routledge, 1995): The Autonomy Myth: A Theory of Dependency (New York, NY: The New Press, 2004).
[13]
Lawrence Friedman, Private Lives: Families, Individuals, and the Law (Cambridge, Mass.: Harvard University Press, 2004).
[14]
Richard Posner, Sex and Reason (Cambridge, Mass.: Harvard University Press, 1992).
[15]
Milton Regan, Family Law and the Pursuit of Intimacy (New York, NY: New York University Press, 1993).
[16]
For how critical familism follows Luther in seeing marriage as a highly central religious and secular good even though not as such a sacrament and not itself equivalent to salvation or justification, see my discussion in Marriage and Modernization, pp. 22-23.
[17]
Browning, et. al., From Culture Wars to Common Ground, pp. 231-238.
[18]
For a discussion of the Greco-Roman family patterns of the urban centers of ancient Israel to which early Christian families put their “spin, ” see Carolyn Osiek and David Balch, Families in the New Testament World: Households and House Churches (Louisville, KY: Westminster John Knox, 1997), pp. 48-87.
[19]
[19] John Witte, From Sacrament to Contract (Louisville, KY: Westminster John Knox, 1997), pp. 23-30.
[20]
For an analysis of the levels of practical reason in Christian marriage, see Browning, et. al., From Culture Wars to Common Ground (2nd edition, 2004), pp. 335-341; John Witte, From Sacrament to Contract, pp. 21-30
[21]
Andre LaCocque and Paul Ricoeur, Thinking Biblically (Chicago: University of Chicago Press, 1998), p. 54; for a discussion of the meaning of equal regard, see Louis Janssens, “Norms and Priorities of a Love Ethics,” Louvain Studies 6 (1977), pp. 219-220.
[22]
Halvor Moxnes, “Honor and Shame,” Biblical Theology Bulletin 23:4 (Winter 1993), pp. 167-76
[23]
From Culture Wars to Common Ground, p. 2.
[24]
The idea of the 60-hour work week for married couples in the work force with children was first developed in From Culture Wars to Common Ground, pp. 316-318. This idea was also proposed in the consensus statement on families produced by the “Final Report of the Ninety-Seventh American Assembly,” in Browning and Rodriguez, Reweaving the Social Tapestry, p. 190.
[25]
Fineman, The Autonomy Myth, p. 134.
[26]
June Carbone, From Partners to Parents, p. xiii.
[27]
Fineman, The Neutered Mother, p. 145.
[28]
Carbone, From Partners to Parents, p. xv.
[29]
McClain, TPF, pp. 7, 191-193. Regan also retains marriage and extends it to same-sex couples, but does not extend its benefits to cohabiting couples and other intimate relations as would McClain. See his Family Law and the Pursuit of Intimacy, p. 123.
[30]
McClain, TPF, p. 156.
[31]
Ibid., p. 202
[32]
Ibid., p. 9.
[33]
Ibid., pp. 197-198.
[34]
The Principles of the Law of Family Dissolution, chpt. 6; Beyond Conjugality, pp. ix, x, 34. 118.
[35]
McClain, TPF, 32, 178-181.
[36]
The Principles of the Law of Family Dissolution, p. 912; Posner, Sex and Reason, pp. 4, 181-199; Friedman, Private Lives, p. 9; Beyond Conjugality, p. xvi, 1.
[37]
Brinig develops a secular covenantal model of marriage and family law based on a kind of phenomenology of classical Jewish and Christian models of covenant. See her From Contract to Covenant, pp. 1, 4, 6, 7.
[38]
Regan tries to develop for family law what he calls a “relational ethic” that enables him to restore a status model of marriage, in contrast to a narrow contractual one. See his Family Law and the Pursuit of Intimacy, pp. 90-93, 179-180.
[39]
The use of the word “fostering” in the subtitle, i.e., Fostering Capacity, Equality, and Responsibility, should be taken to point to an active, although non-coercive, role for law and government in promoting these virtues. See TPF, pp. 118, 258.
[40]
Brinig, From Contract to Covenant, p. 130.
[41]
McClain, TPF, p. 217; see also Regan, Family Law and the Pursuit of Intimacy, p. 105.
[42]
McClain, TPF, pp. 210-216.
[43]
Ibid., p. 210; see also, The Principles of the Law of Family Dissolution, p. 924.
[44]
Fineman, The Autonomy Myth, p. 123; Beyond Conjugality, p. 113; McClain, TPF, p. 191.
[45]
For McClain’s use of Okin and Rawls, see TPF, pp. 10, 25, 31-33.
[46]
Ibid., p. 3.
[47]
Ibid., p. 25.
[48]
Ibid., pp. 19-22, 156-157.
[49]
See the following studies which McClain addresses that outline the role of civil society in shaping democratic citizenship: A Call to Civil Society: Why Democracy Needs Moral Truths (New York: Institute for American Values and the University of Chicago Divinity School, 1998), and A Nation of Spectators: How Civic Disengagement Weakens America and What We Can Do about It (The National Commission on Civic Renewal, 1998).
[50]
McClain, TPF, pp. 51, 62-63.
[51]
Ibid., pp. 43-47.
[52]
Ibid., pp. 5-6, 193.
[53]
Carl Schneider, “The Channeling Functions of Law,” Hofstra Law Review 20 (1992), p. 495; McClain, TPF, p. 23.
[54]
McClain, TPF, pp. 29, 38-40.
[55]
Ibid., pp. 29,-38-40.
[56]
Ibid., p. 31.
[57]
Ibid., p. 32.
[58]
Ibid., pp. 8-9, 46-47.
[59]
Brian Blix, “Law as an Autonomous Discipline,” The Oxford Hardbook of Legal Studies, ed. by Peter Cane and Mark Tushnet (Oxford: Oxford University Press, ? ), pp. 981, 981.
[60]
Louis Janssens, “Norms and Priorities of a Love Ethics,” Louvain Studies, p. 210; William Frankena, Ethics (Englewood Cliffs, N.J.: Prentice-Hall, 1973), p. 14.
[61]
McClain, TPF, pp. 5, 136-137.
[62]
Ibid., pp. 121, 148-149.
[63]
Ibid., pp. 62-63.
[64]
Ibid., pp. 135-138.
[65]
Ibid., p. 140.
[66]
Ibid., p. 142.
[67]
Ibid., pp. 135-136.
[68]
Ibid., pp. 278-279.
[69]
Steven Nock, Marriage in Men’s Lives (Oxford: Oxford University Press, 1998).
[70]
Gloria Albrecht, “Ideals and Injuries: The Denial of Difference in the Construction of Christian Family Ideals,” Journal of the Society of Christian Ethics 25:1 (Spring/Summer 2005), p. 173.
[71]
My analysis of how marriage integrates a variety of male and female human tendencies is based significantly on the views of Thomas Aquinas. Here the weight is on the institution, and not simply on the moderating powers of women. In fact, the argument is precisely that without the institution, sanctioned by covenant and sacrament, individual human appeal alone will not work in integrating either men or women. See Browning, et.al., From Culture Wars to Common Ground, pp. 118-124, and Browning, Marriage and Modernization, pp. 84-94. See also the institutional analysis of marriage put forth by Linda Waite and Maggie Gallagher, The Case for Marriage (New York: Doubleday, 2000) and the review of that book by Don Browning, Kelly Brotzman and David Clairmont, “Marrying Well,” The Christian Century, 118:6 (February, 2001), pp. 20-25. Here is our summary of the Waite-Gallagher argument about the role of marriage as an institution in promoting the integrating benefits of marriage as an institution. “Marriage as an institution entails public commitments not only between the husband and wife but also between them and their friends, extended families, the state and the church. Make this public commitment as a promise – possibly even as a covenant or sacrament – and these benefits are likely to follow from it. This may be true even if the benefits themselves were not what motivated these public promises and commitments in the first place.”(p. 22)
[72]
Aristotle, “Politics,” in The Basic Works of Aristotle, ed. by Richard McKeon (New York: Random House, 1941), bk. 1, chap. 2.
[73]
Ibid. bk. 2, chap. 3.
[74]
Thomas Aquinas, “Supplement,” Summa Theologica, III (New York: Benziger Brothers, 1948), q. 41-42.
[75]
See especially, Pope Leo XIII, “Rerum Novarum,” Proclaiming Justice and Peace: Papal Documents from Rerum Novarum through Centesimus Annus (Mystic, Conn: Twenty-Third Publications), pp. 20, 30, 34; Pius XI, “Casti Connubii” (New York: The Barry Vail Corporation, 1931) and “Quardragesimo Anno,” in The Papal Encyclicals (McGrath, 1981).
[76]
Don Browning, “The Meaning of the Family in the Universal Declaration of Human Rights,” A. Scott Loveless and Thomas Holman (eds.), The Family in the New Millenium, Vol. I (Westport, CT: Praeger, 2007), pp. 38-53; Don Browning, “The U.N. Convention on the Rights of the Child: Should it be Ratified?,” Emory International Law Review 20:1 (Spring, 2006), pp. 158-184.
[77]
Brian Gerrish, Grace and Reason (Oxford: Oxford University Press, 1962), pp. 8-9; John Witte, Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002), p. 92.
[78]
Martin Luther, “The Estate of Marriage,” Luther’s Works, 45 (Philadelphia, PA: Muhlenberg Press, 1959), p. 18.
[79]
For a detailed historical summary of how Christian marriage combines Christian deontological and covenantal symbols of marriage with Greek teleological justifications of the institution, see John Witte, “The Goods and Goals of Marriage: The Health Paradigm in Historical Perspective,” in John Wall, Don Browning, William Doherty, and Stephen Post, (eds.) Marriage, Health, and the Professions (Grand Rapids, MI: Wm. B. Eerdmans, 2002), pp. 49-89.
[80]
St. Augustine, “The Goods of Marriage,” The Fathers of the Church, 9 (New York: Fathers of the Church, 1955), pp. 13, 16.
[81]
Charles Ried, “The Augustinian Goods of Marriage: The Disappearing Cornerstone of the American Law of Marriage,” BYU Journal of Public Law, 18 (May 2004), pp. 339-478.
[82]
Aquinas, Summa Theologica, II, ii, q. 26, a. 3.
[83]
Don Browning, “Adoption and the Moral Significance of Kin Altruism” in Timothy Jackson (ed.), The Morality of Adoption (Grand Rapids, MI: Wm. B. Eerdmans, 2005), pp. 52-77.
[84]
McClain, TPF, pp. 24, 32, 178.
[85]
There is no mention, discussion, or attempt to refute in The Place of Families the landmark social-science studies on the correlation between married, intact families and child wellbeing such as Sarah McLanahan and Gary Sandefur, Growing Up with a Single Parent (Cambridge, Mass: Harvard University Press, 1994) or Paul Amato and Alan Booth, A Generation at Risk: Growing up in an Era of Family Upheaval (Cambridge, Mass: Harvard University Press, 1997).
[86]
McClain, TPF, p. 67.
[87]
“Marriage and Child Wellbeing,” The Future of Childhood, 15:2 (Fall 2005).
[88]
Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, “Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can be Done about It?” Research Brief, June 2002. (Washington, DC: Child Trends), p. 6.
[89]
Mary Parke, Are Married Parents Really Better for Children? (Washington, DC: Center for Law and Social Policy, 2003).
[90]
Norval Glenn and Thomas Sylvester, “Trends in Scholarly Writing on Family Structure Since 1977 in the Journal of Marriage and Family,” Journal of Marriage and Family, I and II, 2007, in press.
[91]
Ibid.
[92]
Sara McLanahan, Eisabeth Donahue, and Ron Haskins, “Introducing the Issue,” The Future of Children 15: 2 (Fall 2005), pp. 8-9.
[93]
See Article 16, 3 in Universal Declaration of Human Rights, published in Mary Ann Glendon, A World Made New (New York: Random House 2001).
[94]
Martin Daly and Margo Wilson, The Truth about Cinderella: A Darwinian View of Parental Love (London: Weidenfeld and Nicolson, 1998). One of the most intriguing reviews of this literature can be found in the writings of legal scholar Robin Wilson demonstrating the startling higher incidence of daughter sexual abuse by fathers in stepfamilies, information which should not be used to denigrate blended families but be used to alert us that family form does count and that government and civil society should not adopt policies that promote it under the banner of a romantic view of “self-governance.” See Robin Fretwell Wilson, “Children at Risk: The Sexual Exploitation of Female Children after Divorce,” Cornell Law Review 86:2 (January 2001), pp. 251-327.
[95]
McClain, TPF, p. 132.
[96]
Waite and Gallagher, The Case for Marriage, pp. 150-160.
[97]
See the provocative writings on this issue by Canadian medical ethicist Margaret Somerville, “What about the Children,” Divorcing Marriage, edited by Daniel Cere and Douglas Farrow (Montreal: McGill-Queen’s University Press, 2004), pp. 63-78 and The Ethical Canary (Toronto: Viking, 2000).
[98]
Browning, et. al., From Culture Wars to Common Ground, p. 331.
[99]
Ibid., pp. 325-326, 330-331. Many of the ideas proposed in From Culture Wars to Common Ground were discussed in Reweaving the Social Tapestry written as the background book for the year 2000 American Assembly on family policy; see pp. 114-117. Several of these proposals were adopted by the consensus statement approved by the 53 participants of the Assembly. See the “Final Report of the Ninety-Seventh American Assembly” in Reweaving the Social Tapestry, pp. 193-194.
[100]
Beginning efforts toward this dialogue between the major world religions and law can be found in Browning, Marriage and Modernization, chpts. 5 and 9, and also in the introduction to Don Browning, Christian Green, and John Witte (eds.), Sex, Marriage, and the Family in the World Religions (New York: Columbia University Press, 2006) and Don Browning and David Clairmont (eds.), American Religions and the Family (New York: Columbia University Press, 2006).