Marriage Rules or Rhetoric? Extreme Makeover Style

So much has happened in marriage litigation and policy-making over the past few months, that an average American may be wondering if there's been an "Extreme Makeover" of sorts in family law in the United States.  State authority to regulation domestic relations, an area of law traditionally held by the states, may seem clouded and unclear in light of federal judicial intervention.  When a federal court declared unconstitutional the state of Utah's voter-approved definition of marriage, that state decided to go directly to the U.S. Supreme Court in an effort to protect its regulation of marriage.  This according to a recent account by the National Law Journal which writes:
"Kitchen v. Herbert would be the first same-sex marriage case to reach the high court since its June 2013 decision in United States v. Windsor, invalidating the definition of marriage as between a man and a woman under the federal Defense of Marriage Act.  A divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit on June 25 held that the Utah ban was unconstitutional. That ruling left the state with the option of seeking review by the full Tenth Circuit or filing a petition for review with the Supreme Court.  Utah Attorney General Sean Reyes announced on Wednesday that he would seek the high court's review. ...The Tenth Circuit was the first appellate court to rule on the constitutionality of a same-sex marriage ban. A decision by the Fourth Circuit in two challenges to Virginia's laws is expected soon. ...The justices have the option of declining to hear the Utah petition. If they do grant review, arguments likely would occur in 2015."

The need for this litigation was not unforeseen.  In our recent article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093) published by the Elon Law Review, Elizabeth Oklevitch and I suggested that the rhetoric in Windsor would lead to state challenges such as those faced by Utah, and Virginia (another state challenge we have discussed at FamilyRestoration), in "Federalism or Extreme Makeover of State Domestic Regulations Power? The Rules and Rhetoric of Windsor (and Perry)," available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093. These Supreme Court Opinions express an affirmation (at least rhetorically) of the right of states to regulate family law - yet also ruled to uphold same-sex marriage policy in one case (Windsor) while not even allowing a hearing on the voter-approved state policy upholding marriage in the other (Perry).  We suggest this incongruity in jurisprudence represents a sort of extreme makeover of state domestic regulations law.

In light of this apparent contradiction, this article considers whether "the traditional power of States to define domestic relations" is affected by the mandate that the federal government refrain from intervening in marriage entry regulation when one state's ability to define marriage was effectively denied in Perry. An overview of some collateral effects of both the rules and rhetoric of Windsor (and Perry) on state family law regulation illuminates this question. Such an overview reveals that these cases do more than simply uphold and clarify federalism; at least to some extent, they impede the ability of states to define domestic relations, with practical and ideological ramifications for family law and liberty interests. Part I provides a background on the dicta of Windsor heralding state regulation of marriage. Part II considers and examines collateral effects of Windsor (and Perry) on family law in three categories. Those categories include federal conflicts with state regulations, interstate conflicts, and family law policy. Part III discusses an ideological shift Windsor (and Perry) promote in family law and the effects of the Supreme Court's endorsement of this new ideology upon personal liberty interests and marriage regulation.  Read it at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.

While the rules stated by the Supreme Court uphold state's rights to stabilize and restore family law policy in marriage, the rhetoric works to deconstruct state regulation of family law.  Utah is challenging that outcome, asking the High Court to reconsider it's rhetoric and rules in 2015.  Marriage rules and rhetoric greatly matter to family restoration.

Rethinking Mom and Dad in Family Restoration

If you are ready for football season to begin, you'll be ready to read about some NFL players and their dads and moms in "Rethinking Mom and Dad," published at 42 Capital U. L. Rev. 441 (2014), and available for free download at the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112, discussing the latest research and evidence on parenting patterns. 

 

Some recent studies have claimed to demonstrate that children do just as well without a dad - or without a mom.  For example, a new study from the University of Melbourne in Australia on how kids from same-sex homes fare is getting a good deal of press. Perhaps you’ve seen the news stories and wondered if this changes the nature of the debate over the importance of the family? Let's consider the research. 

Reporting on this study the Washington Post stated that children from same sex parent families scored 6% higher on general health and family cohesion even when controlling for socio-demographic factors such as parents' education and household income.  But researcher and commentator John Stonestreet noted that sketchy methodology led to a serious research bias that flaws the outcomes.  You can read his ideas in their entirety at BreakPoint at http://www.breakpoint.org/bpcommentaries/entry/13/25700?spMailingID=9041076&spUserID=ODk4MzEzMDgyMDcS1&spJobID=341404420&spReportId=MzQxNDA0NDIwS0. 

Family researcher Glenn Stanton, Focus on the Family’s director of Family Formation Studies, also discussed this study at http://jimdaly.focusonthefamily.com/does-new-research-prove-kids-do-better-with-two-moms/?utm_source=nl_dalyfocus&utm_medium=email&utm_campaign=186015&refcd=186015&crmlink=content-keep-reading.  He states that this new study gives the same kind of findings seen before, coming from the same kinds of studies with the same kinds of serious short-comings and method problems. You can read about the weaknesses of those previous studies here, here and here. The bottom line is that this Australian study and each study on same-sex or single-sex parenting are all derived from a sample size that is too small to render any actual evidence or generalizations, each study represents the answers and views of self-selected participants, and possesses conflict of interest elements because participants are interested in a positive outcome.

A most serious flaw of this and other studies is a general lack of normative control group utilization.  What this means is that this study and others like it tell us nothing about how kids in same-sex homes fare compared to children being raised by their married mother and father. It does not in any manner address that significant difference.  That is why "Rethinking Mom and Dad" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112 is so important for general knowledge on this issue.  And with football just around on the seasonal corner, it's a fun read as well.

Another family expert, Economist Dr. Douglas Allen at the Simon Fraser University in Canada, studies family makeup and its impact on children, the economy and culture.  His most recent work included a replication of a study that claimed children in same-sex households fared no differently than those raised in homes with a married mother and father.  After making several corrections in methodology, Allen and his team discovered an interesting maxim. "Gender composition matters a lot in a household... Moms probably do something that's a lot different than dads.  If you're a child there are times in your life when you really need a mom's input, and there are other times you need a dad's input; and those times are probably different for boys and for girls."  Read more on Dr. Allen’s work at CitizenLink at http://www.citizenlink.com/2014/05/12/family-experts-children-do-best-when-raised-by-their-married-mom-and-dad/.

 

Rethinking Mom and Dad toward family restoration requires a focus on the children as well as on the parenting formation.  (See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112.)

Family restoration happens when children have an opportunity to be raised by their mom and dad who are married to each other.  

You can access all my work on the Social Science Research Network (SSRN) at http://ssrn.com/author=183817 – while you, like me, get ready for football season!

Family Restoration & Regent Library Book Club

From Guest-Bloggers Dean Sara Baron & Associate Librarian Harold Henkel, Regent University Library:

A study of reading habits from 2003 revealed startling statistics. One-third of high school graduates never read another book after high school; 42% of college graduates never read another book after college. It is no surprise that organized book clubs, such as Oprah’s Book Club, have grown so rapidly in the time since this data was gathered. The Library Book Club at Regent University was founded in 2008 to encourage reading literature for pleasure. In our seven years, we have read many classic and modern works portraying many different kinds of families, including Pride and Prejudice, Jane Eyre, Tevya the Dairyman, and And the Mountains Echoed. 

This summer, the Book Club read To Kill a Mockingbird, by Harper Lee. First published in 1960, Lee’s only novel was a cultural shock to America for its discussion of sensitive issues of race, violence, and justice, but it soon became a classic in American literature for how it innocently approached these sensitive subjects. 

It is also a picture of family life on many levels and in many fashions. Atticus Finch, a single father dealing with the early death of his wife and with a rising career in law and politics, is “doing the best he could do” with two precocious children. The children learn about sensitive issues that surround families in the small Alabama community and approach each with child-like innocence. A good family read since its publication, To Kill a Mockingbird continues to have lessons for contemporary readers about community, parenting, and family restoration. 

One of the most famous openings in literature is the beginning of Anna Karenina: “All happy families are alike; each unhappy family is unhappy in its own way.” Owing to the reputation of Anna Karenina, readers have tended to accept Tolstoy’s claim as a nugget of aphoristic wisdom. According to essayist David P. Goldman, however, Tolstoy got it exactly backwards: “…unhappy families are all unhappy in the same way. It is happy families that are different, because every child is radically unique, such that raising children is the one human activity that is sure to surprise.”

Goldman’s riposte to Tolstoy illustrates why it is essential that we read literature throughout our lives: to gain a new perspective, to see the world through other people’s eyes, and to “converse” with the great authors through engagement with their works. The Library Book Club invites readers of Family Restoration to join us in our eighth year as we explore together ten great classic and modern novels. A complete schedule for 2014-2015 will be posted soon on the Book Club website.      

Family restoration happens one family at a time.

Civil Marriage is Legally Sacred

From Guest-Blogger Steven Fitschen (Regent 1999), President, The National Legal Foundation.

I am grateful to Lynne for inviting me to be a part of the marriage debate at the Virginia State Bar's Annual Meeting last month and for allowing me to write about the experience here. One of the Annual Meeting's so-called Showcase CLEs, the event was entitled "Marriage in Virginia: The Changing Status of Same-Sex Couples and Their Families."

It started with remarks by Virginia's Attorney General, Mark Herring. This was certainly appropriate in that Mr. Herring is a hero to those who believe that Virginia's one-man-one-woman Marriage Amendment and marriage statute are unconstitutional, while he is a villain to those who believe that both the amendment and statute are not only constitutional, but also the only approach to marriage that matches millennia of wisdom, cultural heritage, and religious conviction. This is so because he reversed the course of his predecessor, Ken Cuccinelli, who had vigorously defended the amendment and statute in court. Mr. Herring refuses to defend them or to appoint anyone else to defend them and, in fact, has joined his former adversaries in opposing the amendment and statute.

No surprise: the hero/villain left without fielding questions and without participating in the panel debate.

So three of us on each side of the issue slugged it out, although "slugged it out" is probably an overstatement. For once, this issue was actually debated with civility. (You can see the list of panelists in Lynne's post of June 12, 2014.)

My points were fairly simple, but new to most people. I had realized that (as of the time of the debate) two crucial sentences had appeared (in whole or in part) in the court opinions of Virginia's same-sex marriage case and 14 others. These sentences had their origin the U.S. Supreme Court case, Griswold v. Connecticut, and also appear in five other Supreme Court cases dealing with various aspects of marriage. The crucial sentences are these: "We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred."

Two things must be observed about these sentences. First, the critical phrase, "intimate to the degree of being sacred," is ALWAYS invoked at the talismanic level: if it's intimate, it's worthy of being called marriage. But such invocation is invalid. If pro-same-sex litigants are going to routinely invoke this language; they, their opponents, and the courts must take it seriously.

The Supreme Court never held anything like "if it's intimate, it's worthy of being called marriage." Nor could it with any legitimacy. Not everything intimate is either marriage or sacred. To take the easiest example, adultery is by definition not marriage. And by the authoritative texts of many religions—and as any victim of a cheating spouse can attest—it is not sacred.

Rather, and the second thing that must be observed, the Court has held that civil marriage—which was the only kind of marriage the Court ever addressed—must legally be recognized as sacred. Now I know that can fry the minds of lawyers and even lay people who are trained to think in terms of modern Establishment Clause jurisprudence. And because of that, I spent some of my time at the debate fleshing out this problem and some solutions to it.

However, let me repeat: civil marriage must legally be recognized as sacred.

Two downstream consequences follow from this. First, we (meaning all those on both sides of this debate and those without made up minds) should expect people of faith—including Christians like me—to continue to oppose same-sex marriage. After all, things that are sacred are the special province of religion. When one asserts—as the Supreme Court and the pro-same-sex litigants correctly have—that civil marriage is sacred, one ought to expect a theological examination of what validly constitutes civil marriage. So sorry to take your rhetorical flourish so seriously.

Second, in light of the first consequence, it is illegitimate to call such opposition "animus" or "bigotry." And that is why I ended my prepared remarks with calls for 1) pro-same-sex marriage advocates to stop using such name-calling against those who hold an opposing view, 2) pro-one-man-one-woman advocates to refuse to self-censor religious arguments, and 3) those who are undecided to at least recognize that on THIS point, the name-callers are wrong. This debate stood apart as a civil and respectful opportunity to discuss the key issues involved in marriage policy. The marriage debate at the Virginia State Bar's Annual Meeting at the Beach in June was a great opportunity to debate a cornerstone of public policy, and I appreciate the chance to write about the experience here.

The National Legal Foundation is a Christian public interest law firm dedicated to the preservation of America's freedom and constitutional rights and can be found at http://nlf.net and contacted at nlf@nlf.net.