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On election night, seven more states passed constitutional amendments defining marriage as the union of husband and wife. The emergence of gay marriage as a dominating issue is perhaps most important as a symptom of a more general change in our legal and social understanding of marriage. The single biggest story in family law over the last 40 years has been the spread of “no-fault” divorce as a legal regime and a cultural ideology. The larger question now facing us, of which gay marriage is only a part, is: Should family law seek to promote and sustain marriage as the social ideal? Or should the law’s goal be “neutrality” between marriage and its alternatives? Many influential voices say the latter. The American Law Institute’s “Principles of Family Dissolution” endorse “family diversity” as the main goal of family law, urging states not only to strip the law of the last vestiges of fault, but to treat co-habitors more like married couples. This summer’s new manifesto, “Beyond Same-Sex Marriage,” signed by many scholars and activists, urged “[l]egal recognition for a wide range of relationships, households and families”-regardless of kinship or conjugal status, including “[h]ouseholds in which there is more than one conjugal partner.” Let me beg to differ. I was one of more than 100 family and legal scholars who signed a new statement, “Marriage and the Law: A Statement of Principles,” available at www.marriagedebate.com/reg/login.php, that embraces the opposite view: “A prime goal of marriage and family law should be to identify new ways to support marriage as a social institution, so that each year more children are protected by the loving marital unions of their mother and father.” How do we move toward a legal theory of marriage that is more respectful and supportive of marriage as a social institution? “Marriage and the Law” proposes three general insights: Marriage is not merely a legal construct. A legal system that understands that it does not create markets or motherhood must understand that marriage is not merely a legal construct, either. “Civil marriage,” absent the broad support of civil society, is unlikely to mean much for children or society. Human nature exists and places limits on what law can accomplish. We may wish that all men be equally committed fathers inside and outside of marriage, but the law’s commands alone will not make it so. If we want our children to know and be loved by their fathers, we must recognize the critical role of marriage in giving children loving fathers: In reality, if not in law, it is the act of lifetime commitment to the mother of one’s children that cements the bonds of a father to his children. Social institutions matter and they matter a great deal. Sophisticated economic thinking recognizes that even purely commercial contracts depend in part on social norms. Businesspeople believe that contracts are to be honored. These internalized social ideals, as well as the reputational consequences of violating social norms, help bring the benefits of contract to life. If the insight that social norms matter is true for a purely financial institution, such as a commercial contract, how much more must it be for something as primordially social as marriage? Our shared understanding of a basic social institution like marriage is affected by how the law describes, understands and enacts marriage. Identifying legal reforms “Marriage and the Law” also offers some criteria for identifying the kind of legal reforms that strengthen marriage, including the following: The law should clearly distinguish married couples from other personal relationships. The harder it is to distinguish married couples from other kinds of unions, the harder it is for civil society to reinforce norms of marital behavior. The law should treat the married couple as a unit. Because marriage is in fact a real economic, emotional, social, parenting and sexual union, the law must in justice treat married couples as a unit, rather than unrelated individuals. The law should communicate a preference for marriage (provided it is not high-conflict or violent) as the preferred context for child rearing. A legal proposal that reduces marriage to one of many equally valid lifestyles undercuts marriage in civil society. Signatories to “Marriage and the Law” do not necessarily yet agree on particular legal reforms (including same-sex marriage). But in my view the statement has important implications for the same-sex marriage debate: Marriage is unlikely to matter very much if courts succeed in radically separating the legal institution from prevailing social understandings of marriage. And there are few ideas less deeply rooted in our history and traditions than the idea that a domestic union of two men must be treated like a marriage. On election night, Americans again made that clear. Lloyd Cohen teaches law and economics at George Mason University School of Law.

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