Family law scholar Helen Alvare, an associate professor at George Mason University, has written a thoughtful two part series for the Witherspoon Institute’s blog, Public Discourse, on how family law has evolved over the decades from being child and marriage-centred to being freedom and adult-centred.

This trend is very much present in Irish law as well which increasingly sees the family, and especially marriage, as a potential obstacle to person freedom and therefore has made it easier and easier to break up the family unit.

In the first part, Alvare points out how the US Supreme Court, in its rulings on marriage, consistently linked the institution with the rearing of children.

Alvare writes: “In several cases from the late nineteenth century to 1967, the Supreme Court revealed in a different fashion its understanding of the link between marriage and children: in cases where only a right to marry was at stake, or only a right respecting childrearing, the Court would nevertheless speak of the two interests as a pair…..Skinner v. Oklahoma concerned a law punishing certain felons with forced sterilisation, but the opinion spoke of “marriage and procreation” as basic rights. In Meyer v. Nebraska, the case vindicating parents’ constitutional right to instruct their children in a foreign language, the Court referred to citizens’ rights ‘to marry, establish a home and bring up children’.

“In sum, our Supreme Court has time and time again……expressed the state’s interests in marriage as: children, their formation, and the building up of a society of citizens well-prepared for self-government. In the process of recognising various rights claimed by parents respecting their children, the Court has further observed that to the extent parents have such rights, it is because they have duties toward children. Those who demand that the state recognise, as marriage, partnerships of two persons of the same sex, ignore or deny the long line of Supreme Court decisions affirming the links between the state’s interests in marriage and child-welfare and social health.”

In the second part of her argument. Alvare said that, for the last 50 years, US family law has been changing “to the detriment of child well-being”.

For example, she points out “as against the idea that marriage and child well-being go together, state laws approving no-fault divorce and normalising cohabitation (by enforcing cohabitation agreements) do not take children’s presence in a household into consideration at all. Rather, they allow more and more children to be reared outside of households containing their married, biological parents.

“They also expose more children to instability in living arrangements, and to stepparents and new boyfriends, each of which is, on average, correlated with increased risks to children’s safety and to their emotional and educational achievement.”

Further, the lack of consideration for children’s welfare was built into this trend from the start, Alvare points out: “The legislative hearings leading to no-fault divorce, for example, are replete with references to children’s resiliency, or how the facilitating of their parents’ wishes for a divorce will indirectly lead to children’s happiness.[1]

“The California Supreme Court opinion that started the ball rolling toward many states’ recognising and enforcing cohabitation agreements (Marvin v. Marvin, 1976) paid no attention to the possible effects upon children of the greater normalisation of cohabitation. Some of the most popular assisted-reproductive technologies were not even tested on animals before being used to create thousands upon thousands of human children.”

“Given this history,” she continues “it should surprise no one that in the most recent family law controversy implicating children’s well-being, same-sex marriage proponents have devoted so little attention to the question of children”.

Alvare argues that the legal strategy of those who want to oppose same-sex marriage, and reaffirm the link between marriage and children, is to point out that the Supreme Court “was more right than it even knew during the past two centuries, when it identified the state’s interest in marriage as children and their formation”.

“In fact, today, more than ever before, we have a substantial body of literature linking children’s—and communities’—flourishing with the stable presence within a family of married, biological parents,” she says.

She also points out that the argument should be increasingly made that 1) the decline of marriage disproportionately hurts minority groups and the poor generally and 2) and that the family law developments of the last fifty years “often proceeded on the claim that children would ultimately benefit from each of them”.

Now that these claims have been disproved, Alvare says “there are proposals….to reform various family laws in order once again to take account of children”.

“In short, current reform efforts provide an additional reason to refuse to deem the last half-century of family law ‘progress,’ let alone to take their ‘adults-first’ or ‘adults-only’ rallying cry any further, to its logical conclusion in same-sex marriage.”