A Firm Foundation

On August 27, 2013, in Family, Marriage, William C. Duncan, by Betsy

by a Ruth Institute Circle of Experts member, and the director of the Marriage Law Foundation.

This article was first published August 27, 2013, at ethika politica.

Our laws have never, thankfully, required a parenting license. Historically, though, determining a legal parent often meant looking at a marriage license (or proof of marriage, since licenses are a relative newcomer on the legal scene).  parents

It’s not too difficult to figure out why this would be. When a baby is born, the mother is typically close by. In the not-distant past, figuring out the father’s identity would be largely dependent on the mother—the person who would know. The law presumed, correctly in the overwhelming number of cases, that the husband of the mother was the father.

This legal rule (which is still the law throughout the States) was not merely evidentiary; it had a more important normative element as well. It stood for the ideals that a father ought to be married to the mother and a child ought to be reared by them jointly. The order was important—first marriage, then children.

The National Marriage Project recently released a report describing how, increasingly, young people see marriage not as the “cornerstone” on which to build a joint life with a husband or wife but as a “capstone” to top off a life of accomplishment once “important” matters like recreation, education and a career are established.

As we’ve noted, in the past marriage has been not just the cornerstone of an individual couple’s joint life together but, as the U.S. Supreme Court once recognized, “it is the foundation of the family and society.” Marriage, as the Court knew, was the setting for children to be born and reared and thus the seedbed of broader society.

The strength of the foundation that marriage provides in the life of a child depends on its being a “comprehensive union” (as Robert George, Ryan Anderson and Sherif Girgis have described). In marriage a husband and wife unite physically. Their union is not limited but total and it is not fleeting but permanent.

The binding or welding nature of the marriage institution, rightly understood, is crucial. It can sustain the love of the couple (as Dietrich Bonhoeffer described); it provides the stability, security and consistency essential for a child’s well-being.

To do this, though, marriage has to be a uniting; it has to be indeed comprehensive. It cannot do what it must do if marital commitment is like a monsoon—strong at times but disappearing after a season.

Of course, we seem increasingly to have lost the plot about marriage. The element of permanence is threatened by cohabitation and easy divorce. The elements of complementarity and bodily union are discarded when marriage is redefined to include same-sex couples.

Predictably, this is leading to an unsettling of legal norms about parenthood.

The law once promoted parenting as a joint project of a husband and wife, but now seeks to substitute “joint custody” where parents interact according to court orders and a child’s time and loyalties are divided; with the child, not the parents, largely responsible to negotiate his or her two worlds.

The presumption of paternity, once anchored to biological realities, is becoming a presumption of “parentage” to allow courts to create motherless or fatherless homes by assigning a child two mothers or two fathers so as to provide some kind of formal (false) equality between those adult relationships and natural marriage.

The law is now facilitating the purchase of children in market transactions by relieving biological parent “donors” (largely paid) of the responsibilities of support and care. All states provide that a sperm donor is relieved of parental responsibilities (thereby winking at fatherless homes and paternal abandonment). Many states allow surrogacy contracts where a woman carries a child for another parent (winking at baby selling and the possible exploitation of vulnerable women, not to mention motherless homes and, at an extreme, predatory conduct).

The legal fiction of “de facto parenthood” has been created to assign parental status to unrelated adults based on that adult’s relationship with the parent. This concept arose in cases where a court wanted to grant the legal status of “parent” to the partner of a child’s biological or adoptive parent. It has now been codified in the statutes of at least two jurisdictions. Importantly, many states that have recognized the concept have been unwilling to limit the number of legal “parents” to two.

As marriage has been devalued, parenthood has been deconstructed.

The once firm foundation of marriage is becoming increasingly shaky—when not altogether disappearing—and children are necessarily denied the stability and security it ought to provide. Rather, they are becoming products to be purchased or acquired to fill emotional needs of adults or to accessorize their relationships.

Marriage, as the cornerstone of family life and the essential foundation for a child’s security, must not be lost because that loss would have—indeed, is now having—incalculable costs.

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