A new report has been issued by the Council on Family Law, chaired by Mary Ann Glendon of Harvard Law School. The report looks at the current state of family law and exposes the two competing and dramatically different visions of marriage and the role of the state in making family law.

The Council on Family Law is made up of an interdisciplinary group of scholars and leaders who have come together to analyze the purposes and current directions of family law in Canada and the United States and to make recommendations for the future.

The Council is independent and nonpartisan. I stronly suggest reading the report (not too long). You can find the report here:

http://www.marriagedebate.com/pdf/future_of_family_law.pdf


Briefly, the two competing and dramatically different visions of marriage that are currently battling it out in our country are:

(1) the conjugal model



(2) the close relationship model





Questions for Debate:

(1) Which view should society support and why?

(2) Which view should society not support and why?

Note: Please respond to both questions.

Point of clarification:

What does it mean for society to support one of these views over the other? Can society not support both views?

What happens to people who live their lives according to one view, if society supports the other view rather than theirs?

First off, this IS NOT a bi-partisan article as it says- except for the fact they may or may not be dems or repubs- but an obviously right wing christian slant to the entire paper- yes, I read the whole thing, and then looked at the credits and the players- what are you trying to slip by us here? LOL

First off, our society has not been a monogamous relationship country since divorce was made legal- we are serial polygamists- only those that have been married one and one time only and have stayed married thier whole life can be considered monogamous- anyone that has gone through a divorce and remarried is a serial polygamist by definition.

Second- if we want family stability, the most stable relationships on the planet are arranged marriages. Best for raising children and all that- hey, do we want our mothers deciding who we marry from now on?

(1) Which view should society support and why?[B]

Having been a marriage counseller for over 15 years, I say ANY attempt to codify marriage as a society as one defintion or another is doomed to failure, humans are humans the world around, and relationships take work and love- you have to have both components or they will not be condusive to good child rearing. A love-less marriage where the parents barely tolerate each other, is no more healthy than a gay marriage where the atmosphere in the home is loving and nurturing.

(2) Which view should society not support and why?[/B]

Society has no business putting thier nose into either view- marriage and what it entails, as long as thier is no abuse or criminaly assaultive behavior in the broad sense (not including idiocy of some of the old laws prohibiting certain sex acts between consenting adults) - each family needs to find it's own way along in how to raise children- whenever you try to codify or brand a certain family living situation as "right' or "wrong'- something comes along to make the theory unworkable.

In my experiance, 2 parents, both loving each other, whether same sex or otherwise, has an easier time of raising a child or children- 90% of my cases I see are young single mothers. I said young single mothers- those that did not make a decision to have a child, but have it thrust upon them so to speak.

The last thing in this country we need is lawyers telling us what is good for society and what is not. For all of the right wing wishes to go back to the Ward Cleaver 50s style family, it ain't gonna happen- and it was only a veneer anyway- despite our rose tinted look at the past. We just accepted the abuse etc then, instead of dealing with it.


This entire paper is a very slanted and thienly vieled propaganda piece for the right wing types to make a view- as far as I can see- correct me if I am wrong- it is simply an op-ed piece, not published in a scientific journal, subject to peer review- I see no methodology here, just quotes from different sources.

You want to go scientific and actually start using original source studies, instead of lawyer niche editorials, we should go from there.

A single parent family has it rough- most are not there by choice, so we make do- the article doesn't even address that- instead just makes judgements on it- very unrealistic in it's approach.

What would society do about single parents? Force them to marry? Force them to stay married? Is that helpful for the rearing of children?



Marriage being just another "dyadic relationship" is fine by me if they don't plan on having kids or do, trying to generalize the very unique nature of family relationships is a failure from it's onset.

Society's support of one or the other view will be reflected in our family law. The two competing views produce different laws ultimately. Does this answer your question?




Nothing happens to them individually. Anyone can live their life however they choose. The different "models" relate to the different types of laws governing family law that they will produce. Types of laws affected include marriage; divorce; adoption; civil union; custody of children etc.

Hayleyanne, if you're going to quote a study/essay/article you should do it correctly. You have abridged the passage on the conjugal model without proper notation or punctuation.

Of course, this could be a function of the bias you display in your curious selection of text to provide from said study, and your description thereof. But before I get to that, I'd like to examine the study itself. First of all, it was not just presented by the Council on Family Law, it was also presented by the Institute for American Values, an organization which is...



Now, what do you think an organization which characterizes itself like this is going to suggest in a study comparing two social models... one which emphasizes marriage and the other which does not? Now, I'm not dismissing this group out of hand. Jean Elshtain, who chairs the group's board is a brilliant scholar (and for anyone who is interested, a very insightful international relations theorist), and there is no clear bias towards religion or tradition in the group itself. But we do have to call into question the scholarship behind a supposedly empirical study which draws what is perhaps the least 'scientific' conclusion I have ever seen:



A careful review of the study reveals quite plainly that the authors are interested in their preconceived concepts, and are selectively dismissive of any antithetical evidence or theory. One example are the repeated references towards the effects of same-sex 'marriage' and child-rearing. The study suggests that such a model is clearly not as beneficial as opposite-sex conjugal marriage, relying on a single study and ignoring a tremendous amount of evidence to the contrary. More to the point it deploys a very clever bait-and-switch. This study makes it quite clear that cohabitation without marriage is not as stable a structure (both for the occupants of the relationship as well as any potential children.) This argument overlooks the fact that marriage has been weakened in a strictly legal sense. In fact, a paradox exists here. If marriage has weakened in a socio-cultural sense, and these weakening relationships, then surely the institution of marriage would provide a lessening benefit for children raised within the confines. However, the continuing "strength" of marriage for childrearing demonstrates that in fact it is the strength of the relationship that is the fundamental factor in the stability of a family unit; and that in most cases stronger relationships manifest themselves in the form of the marriage. Couples that cohabitate without marriage are, as the evidence that this study itself presents, not as stable as a result of the emotional bond between the participants, not as a result of how they have chosen to define their relationship.

(1) Which view should society support and why?

If the best interests of children and society are really what is at stake here, then the answer is that society should "support" both models because the legal positions that are conflicting here are merely reflections of significant cultural change which cannot be successfully resisted. Culture is fluid, dynamic, and for the most part unstoppable. I cannot think of any substantial cultural norm that has changed... then been forced to change back; and such resistance usually comes in the form of pressure, oppression, and violence. People are going to follow whatever path they feel is right, and supporting them and their families is the best way to preserve social prosperity.

... that is, if you are interested in that, and not preserving ideological modalities.

(2) Which view should society not support and why?

See above. I've cited at least five times now a study demonstrating that the 'ill effects' suffered by children of same-sex couples stem almost entirely from peer pressure and social disdain. What does this mean for this discussion? That we all shoulder the burden for succesful social growth, and in this case it is social pressure and NOT legal institutions that shape society. If two people form a strong emotional bond, then rejecting them does little to strengthen the connection between them, or anyone else. What it does do is try to discourage behaviour which society has deemed unacceptable, and is only less beneficial because of that lack of acceptance.

Now, back to Hayleyanne's positioning. We all know your views on the subject. Trying to filter them through a harvard law degree does little to hide your own bias, but the way that you have presented these arguments speaks for itself. Whether unconscious, or by design, you establish in your opening post that one view is inherently child-based, while at the same time referencing well accepted and liked theorists who you and I BOTH know have some pretty alarming things to say as well. At the same time, you offer up the opinion that you clearly disfavour with nothing from which a reader or poster can draw support from. Now, you are not 100% responsible for this uneven positioning, as the study you are citing does the exact same thing... but the design of your post is unmistakeable.

Ultimate Joe-- the paper is absolutely correct regarding the two competing views of marriage, do you not agree?

The paper sets out two established studies in support of the close relationship model-- It may criticize these studies, but it certainly sets them out on the table.

Finally, the paper is meant to articulate a base from which productive discussions can take place about how the two views produce different types of laws. That is its value. It obviously favors the conjugal model over the close relationship model, but that is not the point.

I think we can all agree that the two models exist. The important part is thinking through the effects of each model on our family law generally.

Hayleyanne, I answered both of your questions. I answered them clearly and thoughtfully. I took about 45 minutes reading and writing for that post, and I would appreciate it if you would respond to the SUBSTANCE of my answers, instead of evading them by engaging in a tangental discussion of facts that are not in dispute. Yes, there are two legal positions emerging. I acknowledge that in my post. That doesn't change the fact that the study you cite is poor, and your response is altogether insufficient as well as an affront to the time and effort I put into participating on this site.

I admit I'm bias as I am an emotional person who relies on spiritual witchcraft and my SUV of a karma lol.. to get me by..

However, if infact we went into the first option of making marriage a commercial thing, then it would no longer mean anything. It would simplly be a way to cut some of your tax burden. Thus people would stradegize whom should marry whom and why. This may not seem like a bad idea at first as let's face it, is buying stocks wrong? No, but look how many countless crimes are commited trying to "cheat" the system. Don't think the same thing won't be done with marriage.

Evidently, without the spiritualness of marriage, it would undoubtedly become such a burden on the goverment to have to insure people don't abuse it or work around it to screw them over, that they have to give it up completely. And then nobody can get married. Putting us one step closer to the animals..

I believe homosexuals should be allowed to marry, if they love eachother that's wonderful and they should have the same right to be wedlocked as the rest of us. However to put preassure on the Christian church is insesitive to thier beliefs, and they could easily get many other spiritual doctrines to unite them in Holy matrimoney. Heck, most Christians aren't even THAT against homosexuality. It's just the loudest voices also tend to be the biggest jerks..

Just as a quick aside to Big Evil, I don't think that even the most liberal of us around here (including me) is suggesting that churches be required to perform marriages to which they object. The only question at hand is whether the government should grant the same legal status to same-sex marriages as to opposite-sex marriages.

That out of the way, I see no choice but to reject the idea that there are two competing models of marriage which are grappling to be recognized by the state, and that only one can survive. People get married for all kinds of reasons, and that's fine. Some people get married strictly for financial or legal benefits, and may not even live together. Some people have no interest at all in raising children, and get married for these benefits and to bond with their partners. (I'm in one of these "close relationship" marriages. Does the fact that I exist somehow threaten "conjugal" marriages? Nonsense.) Many people -- maybe most -- get married for practical benefits, for emotional bonding with partners, and in order to raise children.

And many of these people want to raise children with same-sex partners.

Awareness of this simple fact exposes this dichotomy for the sham that it is.

Most opposite-sex couples want to be in "conjugal" marriages. (Almost all marriages are also "close relationship," but let's ignore this obvious point for a moment.) Many -- maybe most -- same-sex couples want to be in "conjugal" marriages also.

If you really think that the "conjugal" model of marriage should be supported by society over the "close relationship" model of marriage (a goal which is meaningless and impossible), then there is one obvious way to attempt to achieve this foolish goal:

Let same-sex couples be in "conjugal" marriages also. Let them be legally married, and let them raise children, with exactly the same legal status as opposite-sex couples.

Your premise is flawed here UJ. The law can't support both models. It either supports one or the other. If marriage is defined by the conjugal model, by definition, it is not defined by the close relationship model. That having been said, apparently your view is that the close relationship model is the one that society ought to enshrine in its laws.

Your argument then appears to be that cultural norms are changing in such a way that society itself no longer accepts a conjugal view of marriage. Wait. No. You say more than that. You say: People are going to follow whatever path they feel is right, and supporting them and their families is the best way to preserve social prosperity.

And if anyone or any government seeks to stop this cultural movement, it could only be through pressure, oppression and violence.

Wow. Are you sure this is what you mean to say? Your point is either extremely simplistic or off the charts extreme. Which is it? Cultural change is inevitable. Or, society must support in a legal sense, whatever kind of configuration of "family" people choose to organize. Mom/Mom/3 kids; Dad/Dad/ 1 kid; 2 Moms; 1 Dad; 6 Moms/ 1 Dad and 10 kids; 2 Friends/2 kids; etc etc ad infinitum.

In either case, your response does not address the ramifications of adopting the close relationship model of marriage. The report does an excellent job of highlighting the potential results in the law when we adopt this view: the equivalence that will develop between marriage and cohabitation; the shift of marriage from child centered bond to couple centered bond; the possible separation of "marriage" from the state; and the potential for polygamous marriages.

All of these potential ramifications raise thorny, difficult and complex issues. One good example relates to the shift from marriage that is child centered to couple centered. If marriage is primarily driven and defined by the adults' close relationship, how then should the law govern the issues surrounding children? How does the law decide the rights, duties and obligations that will arise when children happen to be a part of a close relationship?

Ultimately, parenthood is completely divorced from sexuality and childbirth. Does the live in girlfriend have rights to her former boyfriend's children. Does she have any financial obligations to the children once they break up. How does the law deal with the disconnect between children and natural parents? Is it appropriate to dismiss the significance of biological parenthood? A large body of social scientific evidnce that the risk of physical or sexual abuse rises dramatically when children are cared for in the home by adults unrelated to them. (see f.n. 125 in the Council on Family Law study)

The Council on Family study emphasizes what disappears from the discourse in family law, when we adopt a close relationship model for marriage:



How do you respond to the loss of emphasis on these aspects of marriage and children? Or is it irrelevant that society integrate the good of sexual attraction, commitment, childbirth, child care and socialization? Is biological parenthood irrelevant? Is there value in kinship (by blood) that is established through marriage? Marriage's historical function of ordering procreation is unique to the relationship between a man and a woman. Is this function outdated, irrelevant or unimportant now?

Ultimately, by adopting the close relationship model of marriage, our family law will radically change, along with our established concept of what family is. "Family" will be any configuration that an individual chooses to create.

Advocates embrace this new notion of family all in the name of diversity. And that is fine. However, the potential results of this radical redefinition of family need to be fully discussed by everyone in society. And this article does a good job of raising the spectre of the fundamental changes in our society when family is radically redefined to mean whatever an individual wants it to mean.

Slow on down there for a second... you are getting ahead of yourself. As I suggested before, the study is extremely flawed; and one of those flaws is the way to that it happily embraces the sort of "slippery-slope" group-think that you are deploying here. If there is one thing that the law is great at, it's finding a position between two potential outcomes, and holding that position. Abortion is legal, with conditions. It is illegal to steal, but if the value of the property stolen is less than XXX dollars, it is a summary instead of indictable offense (think misdemeanor and felony.)

To presume that five years (or however long) from now that we'll all be living in covens and passing children along like footballs makes no sense from either a sociological sense, or a legal one. It starts from the assumption that the foundation of emotional bonds has changed, when in fact is hasn't. Two people fall in love now in the exact same way they have for thousand of years. The courtship process has changed, but boy meets girl (or girl meets girl, boy meets boy, etc.), just the same as always.

The difference between then and now is that the relationship between couplehood and childhood has started to change as a result of a society that has already undergone a massive social change. This change just doesn't have that much to do with "love" or "marriage" or even "childhood." What has changed is the way that we perceive ourselves. Rugged individualism, mixed with a dash of materialism, and added to the incredible on-demand high-pressure economy of the globalization age has left people desiring "me" time. THe old schedule doesn't work for most people anymore. It's as plain as that.

The only impact that law has is that it no longer entirely represents the wishes of the people that it serves (by its very nature.)



This is, to quote The Fugitive, hinky. I suggested no such thing, and even if I had, your response is still overly restrictive. Society must become accepting, and the law must find a compromise position that allows for it. It's a simple equation.



Obviously some structures are more advantageous than the other. As I said before, the second model doesn't necessarily lead to the annihilation of the family and the end of parenthood as we know it. Yes the bonds between marriage and child-rearing are weakened, but that is something that you cannot deny, has already happened. What would you suggest? We start locking people up if they have children out of wedlock? Shall we create tax incentives for people who have children before the age of 30? Of course not... at the same time, it would be foolish to create a legal regime when any group of people can start humping and produce children. What is needed is a legal path which reconciles the traditional conjugal model with the fact that marriage has changed to a degree: that children are no longer considered paramount.

Whether the law recognizes that fact or not, it is a reality here and now, and simply resisting it (which is what you are suggesting without actually saying it) DOES create pressure which is disadvantageous for children.

That study is only valuable as a polemic. It has no projective or predictive value; instead it relies on hyperbole and horribly biased assumptions. If you want to have a discussion on the legal treatment of family, you're going to have to move away from the position that there is one legal option, or the other, and no middle ground. As a lawyer, you should understand how futile and incorrect that assumption is.

Why don't we try to just avoid man-made laws and let natural law decide the best model? Let us start with the state removing itself from marriage completely. Why must a state sanction marriage? The family got along for thousands of years without marriage licenses, child support payment, tax exemptions, child care support, welfare payments, etc.

Government does not have to be involved in our personal relationships much past preventing one individual beating, robbing or defrauding another. I think the till death do you part marriage minded model basically came about in deference to natural law. When you remove the automatic expectation of cash payments to help raise your child born in a "temporary" relationship, meant to fulfill your own selfish desires, you start seriously considering putting off childbirth until you can at least find a relationship that will last till the kid graduates from high school.

See the Herbert Spencer quote in my signature.

It's too late, marriage is, and has always been a commercial thing. The religious aspect, outside of being a demonstration of marriage, means nothing. You can walk down all the aisles in all the churches you want, you're still not married until you have that piece of paper from the state that says you are. But you can walk into the courthouse, get a marriage license and without having to have a ceremony or say "I do", you're married. Period.



Nobody has ever said that a church that doesn't want to marry homosexuals will be required to. Heck, churches still refuse to marry interracial couples and nothing comes of it. They have a right to marry or not to marry whoever they want. That's just another lie of the religious right.

What else is new?

Very true, the left has a good case in wanting gays to have the same equal oppurtunities we do. However marriage has become nothing short of laughable do to the American devil.. perhaps the best answer is to just drop the whole legal unions settlements entirely, no tax cuts, no nothing, and leave it to what it was originaly intended for. Spiritual fusion, and people can freely search for a missionary covet somehow, somewhere, to do thier love ritual.

But the goverment won't do that. They want to be just as proud as the conservatives and have all the perks of being liberal. And that's why we hate them so..

Not yet, maybe. There have been arguments the Boy Scouts should lose their tax exempt status. Don't expect churches that discriminate against gays not to be next on the list.

Has the Boy Scouts finally came out of the closet and announced that they are an evangelical church?

Why does the boy scouts have a non-profit designator?

Here is another twist for you-

according to this article, if you want to find the "good" type of "child based" marriage- what countries would you need to be in? Hint- want a vacation to Tehran, India, Indonesia etc etc? No first world free country has been static in it's steadfastness to make sure thier laws adhere to the "child based" marriage- in fact, pretty much every country an American would feel comfortable living in, in other words, first world western, has permanently fixed this into thier law- all marriage laws in secular countries primarily deal in the financial and inheritience aspects of marriage laws- who inherits when one dies, the legal guardian of the disabled spouse, and custody laws- custody laws are the only thing were the children are considered in the marriage law aspect- and the "child based" law probably doesn't allow or makes divorce EXTREMELY difficult.

So, the better question for hayleyanne would be- can you have a free and open society, that is not based on a theocratic set of principles, that enforces the child based marriage?

I don't think so.

In other words- there would have to be a removal of freedoms for a set of laws by these folks to reverse the "conjugal" trend that they disdain so much- how do you enforce this desired model over the "conjugal" model?

No divorce legal?

Marriage only between breeding pairs legal?

Who is forced to stay home and raise the kids, and since most families have two breadwinners due to neccesity, should there be an income bracket that is allowed to breed, while the poor should be forced to have abortions, or permanently sterilized, to make sure we have the correct "model"?

In the end, the model being lionized in the editorial you gave is anti-freedom, with some kind of morality/religion based goverment interference in human's love lives neccesary to reverse the trend to "conjugal" relationships/marriage.

Let me explain it v-e-r-r-r-r-y s-l-o-w-l-e-e-e. What they have in common is tax exempt status. Catholic organizations have already been forced to include birth control in their insurance policies for employees. The slippery slope ain't that steep.

Nope, doesn't work that way. There are different non-profit designations. The Boy Scouts are not defined as a church (even though they might often act as one), and as such, they are bound by the same anti-discrimination statutes that every other business, non-profit or not, must follow. A church, however, falls under a different designation. As a religious organization, they don't have to follow most anti-discrimination laws. They can refuse to hire you based on your religion. They can refuse to allow you access to the church based on other factors. They can refuse to marry you for *ANY* reason. If churches could be held for anti-discrimination violations, then every church that refuses to marry people of another religion would be in danger!

It's not going to happen. Everyone knows it.



No, what's happened is that the Catholic Church isn't an insurance provider. Insurance providers are bound by certain laws, regardless of who their customer is. Therefore, birth control or abortion services or whatever is going to be a part of the package, regardless of the wishes of the policy holder.

No one says that any Catholic has to use those services, of course, but we all know how terrified religion is of giving anyone A CHOICE.

First off Joe, the report isn't really a "study". It is a survey of the policy positions taken in two influential reports on family law. Your claim that the review of these two reports is "extremely flawed" is baseless and frankly, makes no sense. When you say it happily embraces slippery slope group think, you miss the point entirely. The entire purpose of the report is to explore the potential effects (or slippery slope if you insist) of the positions being advocated by the American and Canadian groups. Unlike scientific studies, legal papers like this are meant to explore the potential slippery slope of the types of legal policy changes being advocated about marriage and family by the ALI and the Canadian organization.



Read the portion of the report that discusses incrementalism. You're right, the law works slowly, incrementally. We don't get radical changes over night. But that doesn't mean those radical changes don't ultimately happen. This paper calls out the positions taken by many in family law and examines those positions under a microscope to project what their logical ends must be.





When is "then"? What exactly are you referring to? What massive social changes are you referring to? Sorry, I can't follow you here. People are still having sex and getting pregnant and having children and raising them. Where is the fundamental change? The conjugal model of marriage focuses on this aspect of relationships. The relationship model ignores this aspect (read the ALI and Canadian study) when assessing marriage and family law. This aspect of human relationships has not changed one wit.

But you seem to be suggesting that something has radically changed in our society such that the conjugal model is outmoded. What has changed in society? Is the way we raise our kids no longer of paramount importance? Or, are you suggesting that society has changed to the extent that this aspect (sex, pregnancy, child rearing) has taken a back seat to individual aspirations? If so, be clear about your premise. Call it as you see it. Such a proposition fully supports the close relationship model of marriage. But make no bones about it, such a model, undeniably relegates children, produced in a relationship, to the back burner. Secondary to the individual desires and needs of the adults.

I would disagree with the view that society has fundamentally changed this way. I believe we still attach paramount importance to children's needs over adults. And if this is true, the model of marriage that acknowledges this is the better model.




The second model incrementally leads to the annihilation of family as we know it. The close relationship model of marriage anticipates any number of configurations, all equally valid. I really don't see how this can be disputed. You can argue that this is a good thing: family diversity etc, empowerment of minorities i.e. single parents, gay families etc, but you cannot deny that the close relationship model radically changes the notion of a traditional family.



What is your point here? I am advocating nothing more than continuing the status quo, conjugal view of marriage because it is the only one that preserves the ideal of the traditional family. Maintaining a traditional view of marriage has nothing to do with forcing behaviors. People are free to do as they please. But that doesn't mean society must or should embrace every flavor of family as equally valid or beneficial.




Again, I refer back to incrementalism. Ultimately, there are only two models. And we will choose between the two. At least this report helps lay people to make an informed decision.

First of all all things can be divided into to two categories, but that does not necessarily encompass all. I would disagree with the first and second examples of marriage. Much of the old marriage practices had to do with property and wealth. As for fidelity, I'm not so sure the record there has ever been better than now.


(1) Which view should society support and why?

(2) Which view should society not support and why?

IMHO, Society should support both views because society should not be getting involved in our relationships and our individual practices. I am of the one can not legislate morality camp.

I live in this society and I have seen all types of relationships. I see traditional families falling short in the area of caretaking for children and I see others, like mine, where nary a marriage made after 1960 has survived long but in all of the steps and exes the children seem to get the nurturing and support they deserve. My children have either 8 or ten grandparents.

Our law should support our diverse populations and the different patterns of living out there. If there is a right or wrong, we will be able to find it for ourselves.

The law should protect children, but in practice when family services come into "solve" the problems of the straw man group number two or the supposedly superior number one it tend to lose them in a bureaucracy that is overtaxed. I wouldn't wish the foster care system in my state on anyone. I stray child dropped off on my street would be better taken care of if nobody turned him in to the state.

Society should support good child rearing in all of it forms. We should police our neighborhoods as best we can, and the government should stop within reason at our doorsteps until someone in demonstrably getting harmed.