This is a lightly edited excerpt from the Witherspoon Institute’s recently published book, Marriage and the Public Good: Ten Principles (Second Edition).
When it comes to family life, the great paradox of our time is this: every society that we think of as generally best for human flourishing—stable, democratic, developed, and free—is experiencing a radical crisis around human generativity. Family fragmentation and fatherlessness are increasing enormously, usually coupled with the collapse of fertility to levels that, if continued, spell demographic and social decline. Suddenly, developed nations are finding themselves unable to accomplish the great, simple task of every human society: bringing young men and women together to marry and raise the next generation together.
With legalized same-sex marriage and historically low marriage and fertility rates, the United States has accelerated its own descent into this state of affairs. For the first time in our nation’s history, older people are projected to outnumber children by the year 2030. In the face of decline, however, we are witnessing a “marriage movement” and pockets of reasoned resistance. The great task for America in our generation is to energize a return to and renewal of traditional marriage. We need to transmit a stronger, healthier, and more supportive marriage culture to the next generation, so that each year more children are raised by their own mother and father united by a loving marriage, so that they can grow up to have thriving marriages themselves.
Our task is a daunting one. Creating such a marriage culture is not a job for the government. Families, religious communities, and civic institutions must point the way. But law and public policy are also teachers; they will either reinforce and support these goals or undermine them. We call upon our nation’s leaders and our fellow citizens to support public policies that strengthen traditional marriage as a social institution. This nation must reestablish the normative understanding of marriage as the union—intended for life—of a man and a woman, who welcome and raise together any children who are the fruit of their self-giving love, extending the family tree into a flourishing grove where other citizens can rest in its shade.
In particular, we advocate the following eight actions toward undergirding and strengthening marriage:
1. Maintain the legal distinction between married and cohabiting couples.
Powerful intellectual institutions in family law, including the American Law Institute, have proposed that America follow the path of many European nations and Canada in erasing the legal distinction between marriage and cohabitation. But since such a shift in law would create further harm by sending a false message to the next generation that marriage itself is irrelevant or secondary, we encourage our legislators to refuse to extend legal marital status to cohabiting couples. We believe it is unjust as well as unwise to either impose marital obligations on people who have not consented to them or extend marital benefits to couples who have not promised marital responsibilities.
2. Investigate divorce-law reforms.
Under America’s current divorce system, courts today provide less protection for the marriage contract than they do for an ordinary business contract. We believe that the current system is a failure in both practical and moral terms, and deeply in need of reform. We call for renewed efforts to discover ways in which laws can strengthen marriage and reduce unnecessarily high rates of divorce. We affirm that protecting Americans from domestic violence and abuse is a critically important goal. But because both children and adults in nonmarital unions are at vastly increased risk for both, encouraging high rates of family fragmentation is not a good strategy for protecting them. Proposals we consider worthy of more consideration include the following:
Extend waiting periods for unilateral no-fault divorce. Require couples in nonviolent marriages to attend (religious, secular, or public) counseling designed to resolve their differences and renew their marital vows.
Permit the creation of prenuptial covenants that restrict divorce for couples who seek more extensive marriage commitments than current laws allow. (The enforcement by secular courts of Orthodox Jewish marriage contracts may provide a useful model, as well as Louisiana’s “Covenant Marriage” option.)
Expand court-connected divorce-education programs to include divorce interventions (such as PAIRS or Retrouvaille) that help facilitate reconciliations as well as reduce acrimony and litigation.
Apply standards of fault to the distribution of property, where consistent with the best interests of children. Spouses who are abusive or unfaithful should not share marital property equally with innocent spouses. The laments of spouses whose mate has left them against their will—especially in order to form a new union—ought to be heard and considered.
Create pilot programs on marriage education and divorce interventions in high-risk communities, using both faith-based and secular programs. Track program effectiveness to establish “best practices” that could be replicated elsewhere.
3. End marriage penalties for low-income Americans.
To address the growing racial and class divisions in marriage, federal and state governments ought to act quickly to eliminate the marriage penalties embedded in means-tested welfare and tax policies—such as the Earned Income Tax Credit (EITC) and Medicaid—that affect couples with low and moderate incomes. A recent study found that where there was an anticipated loss of income-tax credit due to a marriage penalty, lower-income women were less likely to marry and more likely to cohabit; thus, financial disincentives are potentially affecting the marriage decisions of millions of low-income women. It is unconscionable that government levies substantial financial penalties on low-income parents who marry. Other approaches to strengthening marriage for couples and communities at risk include public information campaigns, marriage education programs, and jobs programs for low-income couples who wish to get and stay married. Experimenting with such new initiatives allows scholars to determine which measures are best suited to the task at hand.
4. Protect and expand pro-child and pro-family provisions in our tax code.
The tax code ought to privilege institutions that stabilize society and help those making sacrifices to ensure the next generation.
5. Protect the interests of children against a powerful fertility industry.
Treating the making of babies as a business like any other is fundamentally inconsistent with the dignity of human persons and the human rights of children. At the very least, we urge our legislators to consider restricting reproductive technologies to married couples. In addition, we believe the following proposals are worthy of further investigation:
Ban the use of anonymous sperm and egg donation for all adults. Children have a right to know their biological origins. Adults have no right to strip children of this knowledge to satisfy their own desires for a family. Countries such as the Netherlands, Norway, Sweden, Switzerland, Finland, New Zealand, and the UK all have banned this practice to protect the identity rights of donor-conceived children.
Ban all surrogacy. Some countries, such as Thailand and India, have banned commercial surrogacy; others, such as Nepal and Sweden, have banned all surrogacy. The European Parliament has condemned surrogacy as “reproductive exploitation” that “undermines the human dignity” of women, particularly “vulnerable women in developing countries.” Surrogacy also commodifies the children being carried, subjects them to increased health risks, and disregards their rights by prioritizing adult desire over a child’s best interests.
Refuse to create legally fatherless children. Require men who are sperm donors (or the clinics that trade in gametes) to retain legal and financial responsibility for any children they create who lack a legal father. The most important forces underwriting the current United States fertility industry are not technological; they are social and legal. Both law and culture have stressed the interests of adults to the exclusion of the needs of children. Parents seeking children deserve our sympathy and support. But we ought not, in offering this, deliberately create an entire class of children deprived of their natural human right to know their own origins and to experience the unique love of both a mother and a father.
6. Protect the freedom to live out and express belief in the uniqueness of traditional marriage without fear of government coercion and institutional hostility.
Instances of intolerance for individuals who hold a traditional view of marriage grow more numerous by the day and are increasingly accompanied by legal efforts to compel either violations of individual conscience or religious beliefs. For instance, faith-based adoption and foster-care providers have been forced to compromise their belief that placing children in homes with a mother and a father is in the best interest of the child—or to cease offering services entirely, leaving vulnerable children in need. In a similar way, sexual orientation and gender identity nondiscrimination laws are often used by their backers as a sword “to punish the wicked,” as multimillionaire activist Tim Gill refers to his goals for such laws. We can only interpret this kind of language to indicate an intention to silence and stamp out dissent, violating legitimate individual and religious liberty.
7. Protect the freedom to conduct scholarly inquiry and promote dissemination of accurate research findings on marriage and related topics.
In tandem with the widespread misrepresentation of research findings both in academia and public media on the subject of marriage, a disturbing trend toward actual suppression of research based on ideological rather than scientific grounds appears to be emerging and altering the playing field in the study of sexuality and gender. For example, in August 2018, Brown University professor Lisa Littman published a study that explored the recent statistical upsurge of adolescent and young-adult gender-dysphoric girls and the possibility of social media and peer influence as a contributing factor. Despite being peer reviewed and found acceptable, the study was immediately denounced online by gender ideology activists, since it suggested that some of the girls could have been influenced by forces outside of themselves. In response to the attacks, Brown University removed the article from its news distribution on the basis that it “could be used to discredit efforts to support transgender youth,” while the journal editors posted a comment of concern and conducted an additional review that ultimately resulted in the publication of a revised version, even though the article’s results were unchanged. A former dean of Harvard Medical School spoke out against the journal’s and Brown’s actions.
8. Restore the public understanding of marriage as uniquely the union of one man with one woman as husband and wife.
In 2015, the Supreme Court redefined marriage and imposed a new legal standard of what marriage means, with some justices erroneously declaring that our historic understanding of marriage as the union of one man and one woman is rooted in animus or ignorance. While these legal mandates won’t be easily reversed, we can seek to restore the public’s understanding of the unique goods of traditional marriage for society. Our best hope in the years ahead is to foster a nonpartisan cultural renewal so that a new generation of legislators and justices will arise to legally reestablish the institution of marriage for the good of all Americans. Families, religious communities, community organizations, and public policymakers must work together toward a great goal: strengthening marriage so that each year more children are raised by their own mother and father in loving, lasting marital unions. The survival of the American experiment depends upon it. And our children deserve nothing less.