The "Marriage Gap": A case for strengthening marriage in the 21ST century

New York University Law Review

Volumn 82, Issue 5, 2007, Pages 1243-1264

  Sears, Leah Ward ^a  

^a NONE

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EID: 36549017606     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (90)

1. Justice William J. Brennan, Jr., Speech at Georgetown University: Text and Teaching Symposium (Oct. 12, 1985), in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 11, 17 (Paul G. Cassel ed., 1986), available at http://www.fed-soc.org/resources/id.50/default.asp.
2. See infra Part IV.
3. See infra notes 7-12 and accompanying text.
4. See infra Part IV.B.
5. It is important to note that the retreat from marriage and the increase in father absence is not the sole cause of the negative outcomes for children, such as lower academic achievement, higher risks of poverty, and emotional difficulties, that are discussed in this Lecture. As Sarah McLanahan and Gary Sandefur note in their book, Growing Up with a Single Parent: What Hurts, What Helps, although single parenthood, divorce, and cohabitation may increase the risk of these negative outcomes, they are not the only, or necessarily the most significant, cause of them. SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HURTS, WHAT HELPS 2 (1994).
6. Moreover, correlation does not always equal causation. Nevertheless, the wealth of social science evidence makes clear that family form does have an impact on children's lives. Id. at 1.
7. Sam Roberts, It's Official: To Be Married Means To Be Outnumbered, N.Y. TIMES, Oct. 15, 2006, at A22.
8. See, e.g., Byron Calame, Can a 15-Year-Old Be a "Woman Without a Spouse?". N.Y. TIMES, Feb. 11, 2007, at D12
9. (criticizing Sam Roberts's article, supra note 6, for classifying teenagers between ages of fifteen and seventeen as spouseless women).
10. Roberts, supra note 6 (reporting that only 49.7% of U.S. households were made up of married couples).
11. BRADY E. HAMILTON ET AL., NAT'L CTR. FOR HEALTH STATISTICS, BIRTHS: PRELIMINARY DATA FOR 2005 tbls.1, 2 & 4 (2005), http://www.cdc.gov/nchs/data/hestat/prelimbirths05_tables.pdf#1.
12. Id.
13. See, e.g., DAVID POPENOE, LIFE WITHOUT FATHER 1 (1996) ("American fathers are today more removed from family life than ever before in our history.").
14. Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, CHILD TRENDS RES. BRIEF 2 (2002), available at http://www.childtrends.org/Files/MarriageRB602.pdf ("Divorce rates continued to increase into the 1970s and early 1980s, before stabilizing and then declining in the late 1980s and 1990s." (citing U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 65 tbl.77 (2000))).
15. Some experts suggest that the divorce rate has declined because fewer people are getting married, while others argue that although the divorce rate has declined among better-educated and more affluent couples, it continues to increase among less-educated and poorer couples. David Crary, Til Death Do U.S. Part, NW. FLA. DAILY NEWS, May 11, 2007, at Al.
16. Larry Bumpass & Hsien-Hen Lu, Trends in Cohabitation and Implications for Children's Family Contexts in the United States, 54 POPULATION STUD. 29, 29-30 (2000) ("Cohabitation has grown from a rare and deviant behaviour to the majority experience . . . ."). Cohabitation does not necessarily lead to a home with two parents. Evidence shows that by the time children born to a cohabiting couple reach fifteen years of age, seventy-eight percent will have spent time outside of a parental union, compared to only thirty-five percent of children born to married couples.
17. Gunnar Andersson, Children's Experience of Family Disruption and Family Formation: Evidence from 16 FFS Countries, 7 DEMOGRAPHIC RES. 343, 353 tbl.5 (2002);
18. see also NAT'L MARRIAGE PROJECT, THE STATE OF OUR UNIONS 2002: THE SOCIAL HEALTH OF MARRIAGE IN AMERICA 29 (2002) ("Children living with cohabiting couples tend to be disadvantaged compared to those living with married couples. Prominent reasons are that cohabiting couples have a much higher breakup rate than married couples, a lower level of household income, and a much higher level of child abuse and domestic violence.");
19. Moore et. al., supra note 12, at 2 (suggesting that difference in outcomes for children of married couples and children of cohabiting couples is due to fragile nature of cohabiting relationships).
20. In describing marriage as historically child-centered, I mean that marriage has historically been the paradigm through which children were born and reared. See NATL MARRIAGE PROJECT, supra note 13, at 24 ("Throughout history marriage has first and foremost been an institution for procreation and raising children.").
21. But see STEPHANIE COONTZ, MARRIAGE, A HISTORY 24-31 (2005) (describing various notions of marriage and its central purposes throughout history). Under this framework, parenthood was understood to be an institution oriented around children's need for their mother and father rather than adults' right to children.
22. See ELIZABETH MARQUARDT, THE REVOLUTION IN PARENTHOOD: THE EMERGING GLOBAL CLASH BETWEEN ADULT RIGHTS AND CHILDREN'S NEEDS 15-16 (2006) (arguing that law and culture are redefining parenthood into institution focused on adults' right to children).
23. See infra Part IV.B.
24. By "quasi-parent" I mean an adult who at some point engaged in a romantic relationship with the child's parent and performed at least some of the traditional caretaking responsibilities of a parent.
25. See, e.g., JUDITH S. WALLERSTEIN, THE UNEXPECTED LEGACY OF DIVORCE: A 25 YEAR LANDMARK STUDY 236-53 (2000) (describing various challenges faced by some stepfamilies);
26. see also MCLANAHAN & SANDEFUR, supra note 5, at 71 ("[R]emarriage neither reduces nor improves a child's chances of graduating from high school or avoiding a teenage birth.");
27. Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 FUTURE OF CHILD. 75, 81 (2005) (finding that children in stepfamilies sometimes experience difficulties involving jealousy and competing loyalties between stepparent and nonresident biological parent).
28. Kathryn Edin & Joanna M. Reed, Why Don't They Just Get Married? Barriers to Marriage Among the Disadvantaged, 15 FUTURE OF CHILD. 117, 139 (2005).
29. See generally Maureen Waller, High Hopes: Unmarried Parents' Expectations About Marriage at the Time of Their Child's Birth, 23 CHILD. & YOUTH SERVICES REV. 457, 464, 480-81 (2001) (reporting survey findings that "unmarried parents have high hopes about their chances of marriage at the time of their child's birth").
30. Jim Wooten, Editorial, Breakdown of Family Needs Reversing Now, ATLANTA J. CONST., Jan. 21, 2007, at C6.
31. See infra Parts IV.B, V.
32. There are important differences in the resources and outcomes associated with particular types of family structures relevant to individual families. For example, married couples tend to build more wealth, on average, than single or cohabiting couples. W. BRADFORD WILCOX ET AL., INST. FOR AM. VALUES, WHY MARRIAGE MATTERS: TWENTY-SIX CONCLUSIONS FROM THE SOCIAL SCIENCES 19 (2005). Moreover, "[t]he economic advantages of marriage stem from more than just access to two incomes. Marriage partners appear to build more wealth for some of the same reasons that partnerships in general are economically efficient, including economies of scale and specialization and exchange."
33. Id.
34. See infra Part IV.C.
35. For example, in 2000 nearly two-thirds of African American babies were born to unwed mothers. NAT'L MARRIAGE PROJECT, supra note 13, at 28.
36. See, e.g., William A. Galston, Are We Willing to Pay the Price?, AM. EXPERIMENT Q., Summer 2001, at 59, 61 (arguing that federal government should shift tax code to decrease burden on families with minor children);
37. Isabel V. Sawhill, Reversing Teen Pregnancy and Single Parenthood, AM. EXPERIMENT Q., Summer 2001, at 77, 80 (proposing tax bonus as incentive to "in-wedlock child bearing").
38. See Adam Carasso and C. Eugene Stuerle, The Hefty Penalty on Marriage Facing Many Households with Children, 15 FUTURE OF CHILD. 157 (2005), for an explanation of the marriage penalty in federal tax and transfer policies. A marriage penalty occurs when a couple's combined social welfare benefits, less taxes, are lower if the couple is married than they would be if the couple filed taxes as two single individuals.
39. Id. at 159.
40. Carasso and Stuerle note that some researchers have found that "tax penalties slightly discourage marriage," while others have found no significant effect. Id. at 161.
41. They do acknowledge, however, the difficulty in measuring behavioral effects on specific marriage penalties or subsidies, and also that the 2001 federal tax legislation did reduce marriage penalties and generated subsidies for some married couples. Id. at 161-62;
42. see Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16. §§ 301-302, 115 Stat. 38, 53-57, (eliminating marriage penalty in some tax brackets).
43. See, e.g., INST. FOR AM. VALUES ET AL., THE MARRIAGE MOVEMENT: A STATEMENT OF PRINCIPLES 23 (2000), available at http://americanvalues.org/ pdfs/marriagemovement.pdf (calling for federal, state, and local governments to subsidize marriage education, "highlight public health and other benefits of marriage," and "reform court-connected divorce education and mediation programs");
44. M. Robin Dion, Healthy Marriage Programs: Learning What Works, 15 FUTURE OF CHILD. 139 (2005) (reviewing various marriage and relationship education programs);
45. Edin & Reed, supra note 18, at 128 (advocating public campaigns that provide information about "benefits to children of being raised in a household with both biological parents as well as about the harmful effects of violent or high-conflict relationships on child well-being");
46. Robert Rector, Using Welfare Reform to Strengthen Marriage, AM. EXPERIMENT Q., Summer 2001, at 63, 63-65 (advocating marriage education programs, public education advertising campaigns, marriage mentoring programs, and divorce education programs as means of reducing the rates of divorce and nonmarital childbearing).
47. See, e.g.. David Blankenhorn, A City with Foundations. AM. EXPERIMENT Q., Summer 2001, at 92, 94-95 (supporting reinstatement of fault-based divorce laws);
48. Katherine Shaw Spaht, How Law Can Reinvigorate a Robust Vision of Marriage and Rival Its Post-Modern Competitor, 2 GEO. J. L. & PUB. POL'Y 449. 452-53 (2004) (arguing that fault-based divorce schemes articulated public's expectations as to how spouses should behave toward one another);
49. cf. MCLANAHAN & SANDEFUR, supra note 5, at 145 (arguing that more restrictive divorce laws may have unintended effect of making couples more reluctant to marry).
50. DAN CERE, INST. FOR AMERICAN VALUES, INST. FOR MARRIAGE AND PUB. POLICY & INST. FOR THE STUDY OF MARRIAGE, LAW AND CULTURE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA 8 (2005).
51. Although there is no one authoritative definition for "family diversity," I understand it to describe the diverse structures, types, and situations in which families live in modern society.
52. Lance Liebman, Director's Foreword to AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS, at xv, xv (2002) [hereinafter PRINCIPLES] (arguing that Principles "offers a legal framework that can accommodate the different choices people make and the different expectations they bring to their family relationships").
53. See Ira Mark Ellman, Chief Reporter's Foreword to PRINCIPLES, supra note 29, at xvii. xvii ("The goal was necessarily a statement of Principles and Commentary that go beyond aspiration to promote, in the words of the Institute's charter, the law's 'clarification,' its 'better adaptation to social needs,' and its securing of 'the better administration of justice.'"(quoting Am. Law Inst. Charter available at www.ali.org/doc/charter.pdf)).
54. See PRINCIPLES, supra note 29, at 6 (stating that one of Principles' goals was to create legal framework that "preserve[s] the diversity in parenting arrangements within families").
55. See Nancy D. Polikoff, Making Marriage Matter Less: The ALI Domestic Partnership Principles Are One Step in the Right Direction, 2004 U. CHI. LEGAL F. 353, 354 (praising Principles for taking "an important step in the right direction of making marriage matter less");
56. Spaht, supra note 26, at 454-55 ("[T]he three Reporters for the project describe in notes and commentary their vision of marriage as . . . simply one of a variety of intimate and close relationships.").
57. The ALI report does acknowledge that adoption is the preferred mechanism for legal recognition of nonbiological parent-child relationships. See, e.g. PRINCIPLES, supra note 29, at § 2.03 cmts. b(iii), c (advocating adoption in context of parent by estoppel and de facto parent). Indeed, adoption is a highly admirable practice with enormous benefits for society.
58. The term "de facto parent" in this context refers to: an individual other than a legal parent or a parent by estoppel who, for a significant period of time not less than two years, (i) lived with the child, and (ii) for reasons primarily other than financial compensation, and with the agreement of a legal parent to form a parent-child relationship, or as a result of a complete failure or inability of any legal parent to perform caretaking functions, (A) regularly performed a majority of the caretaking functions for the child, or (B) regularly performed a share of caretaking functions at least as great as that of the parent with whom the child primarily lived. Id. § 2.03(1)(c).
59. The term "parent by estoppel" refers to: an individual who, though not a legal parent, (i) is obligated to pay child support . . . or (ii) lived with the child for at least two years and (A) over that period had a reasonable, good-faith belief that he was the child's biological father, based on marriage to the mother or on the actions or representations of the mother, and fully accepted parental responsibilities consistent with that belief, and (B) if some time thereafter that belief no longer existed, continued to make reasonable, good-faith efforts to accept responsibilities as the child's father; or (iii) lived with the child since the child's birth, holding out and accepting full and permanent responsibilities as parent, as part of a prior co-parenting agreement with the child's legal parent (or, if there are two legal parents, both parents) to raise a child together each with full parental rights and responsibilities, when the court finds that recognition of the individual as a parent is in the child's best interests; or (iv) lived with the child for at least two years, holding out and accepting full and permanent responsibilities as a parent, pursuant to an agreement with the child's parent (or, if there are two legal parents, both parents), when the court finds that recognition of the individual as a parent is in the child's best interests. Id. § 2.03(1)(b).
60. Id. at 5 (identifying maintenance of continued contact with children by de facto parents as goal of law);
61. see also Robin Fretwell Wilson, Undeserved Trust: Reflections on the American Law Institute's Treatment of De Facto Parents, in RECONCEIVING THE FAMILY: CRITIOUE ON THE AMERICAN LAW INSTITUTE'S "PRINCIPLES OF 'THE LAW OF FAMILY DISSOLUTION" 90, 90-91 (Robin Fretwell Wilson ed., 2006) [hereinafter RECONCEIVING THE FAMILY] (criticizing ALI's assumption that continuing contact between child and de facto parent is "unadulterated good").
62. See Spaht, supra note 26, at 449-54, for a discussion of the revolution in family law. Spaht argues that the law has deregulated the institution of marriage over the last century by loosening the rules for ending marriages and by "eliminating the internal legal regulation of the content of marriage and the legal barriers erected for its protection."
63. Id. at 449. In my opinion, there have been revolutions in both family law and in family arrangements. The revolution in family law was, in part, ushered in by the widespread elimination of fault-based divorce schemes and other regulations related to marriage over the last century.
64. Id. This change in the law precipitated the revolution in the ways that families form and structure themselves, which is now spurring new debates concerning the law's treatment of marriage and its possible alternatives.
65. Jennifer A. Drobac & Antony Page, A Uniform Domestic Partnership Act: Marrying Business Partnership and Family Law, 41 GA. L. REV. 349, 356-57 (2007) (arguing that although marriage was not always considered to be Christian, religious institution, it has always been treated in American law as civil contract).
66. INST. FOR AM. VALUES & INST. FOR MARRIAGE AND PUB. POLICY, MARRIAGE AND THE LAW: A STATEMENT OF PRINCIPLES 22-23 (2006).
67. See COONTZ, supra note 14, at 161-76 (describing nineteenth-century rise of marriage as intimate and sentimental union in North America).
68. WILCOX ET AI., supra note 20, at 19-32 (describing economic, psychological, emotional, and social advantages of marriage).
69. Amato, supra note 17, at 75.
70. See, e.g., Gomez v. Perez, 409 U.S. 535, 538 (1973) (holding, under Equal Protection Clause of Fourteenth Amendment, that child could not be denied parental support from his natural father simply because child had been born out of wedlock);
71. Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164. 175-76 (1972) ("Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual-as well as an unjust-way of deterring the parent. . . . [T]he Equal Protection Clause . . . enable[s] us to strike down discriminatory laws relating to status of birth . , . .").
72. See infra Part IV.B.
73. See Sara Butler Nardo, De Facto Parenthood: The Reformer's Latest Unwholesome Innovation in Family Law, WKLY. STANDARD (Wash.), Mar. 6-13, 2006, at 21 (implying that law can undercut social institutions like family and marriage by recognizing alternatives, such as de facto parenthood, that may harm children).
74. See LINDA MCCLAIN, THE PLACE OF FAMILIES: FOSTERING CAPACITY, EQUALITY, AND RESPONSIBILITY 52-53 (2006) (suggesting that families foster in children qualities such as civility and respect for others, which are essential elements of self-government in civil society).
75. Id.
76. Id. Social capital refers to the interpersonal "connections among individuals" and "the norms of reciprocity of trustworthiness that arise from them." ROBERT PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 19 (2000);
77. see also MCLANAHAN & SANDEFUR, supra note 5, at 3 ("Social capital is an asset that is created and maintained by relationships of commitment and trust. It functions as a conduit of information as well as a source of emotional and economic support, and it can be just as important as financial capital in promoting children's future success.").
78. See infra Part IV.
79. See E. MAVIS HETHERINGTON & JOHN KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED 240-47 (2002) (noting that children of divorced parents face real risks that their own marriages will fail but also acknowledging complexity of other contributing factors).
80. JUDICIAL COUNCIL OF GA., 2005 ANNUAL REPORT; GEORGIA COURTS, JULY 1, 2004-JUNE 30, 2005, at 8-9 (2005), available at http://www.georgiacourts.org/aoc/ publications/ar2005.pdf.
81. Comprising nearly two-thirds of all civil cases, these family-related matters also exceed the number of all felony and misdemeanor criminal cases combined. Id.
82. Ga. Dep't of Juv. Just., Annual Statistics, http://www.djj.state.ga.us/ Reference Library/refStatistics.shtml (last visited June 17, 2007). Regional Youth Detention Centers provide short-term housing "for youths awaiting trial in Juvenile or Superior Court, or placement elsewhere within the [Department of Juvenile Justice] system." Ga. Dep't of Juv, Just., Facilities & Programs, http://www.djj.state.ga.us/FacilitiesPrograms/ Overview.shtml (last visited June 17, 2007).
83. Adoption and Foster Care Analysis and Reporting System, Data Reports - Georgia, Summary Measures: Children in Foster Care During April 2006 Through March 2007, http://fosteringcourtimprovement.org/ga/County/incare_summary.html (last visited June 2, 2007). The Georgia Division of Family and Children Services investigates allegations of child abuse; finds foster homes for abused and neglected children; assists with childcare costs for low-income parents who are working or are in job training; and provides various other support services to assist troubled families. Ga. Div. of Family and Child Services, http://dfcs.dhr.georgia.gov/portal/site/DHR-DFCS/ (last visited June 2, 2007).
84. OFFICE OF CHILD SUPPORT ENFORCEMENT, GA. DEP'T OF HUMAN RESOURCES, CHILD SUPPORT IN REVIEW: FY 2005, at 2(2005), available at http://ocse.dhr.georgia.gov/DHR-OCSE/DHR-OCSE_Home/OCSE%20Review%20fy%202005. pdf.
85. Id.
86. See RICHARD Y. SCHAUFFLER ET AL., EXAMINING THE WORK OF STATE COURTS, 2005: A NATIONAL PERSPECTIVE FROM THE COURT STATISTICS PROJECT 55-63 (2006) (finding that state courts reported 2.1 million incoming juvenile cases in 2004, whereas only fourteen of thirty-four states reported juvenile clearance rates of one hundred percent).
87. See Liebman, supra note 29, at xv ("[T]he Principles are sensitive to both the traditional value systems within which most families are formed and the nontraditional realities and expectations of other families").
88. Moore et al., supra note 12, at 6.
89. See id. at 1 ("The majority of children who are not raised by both biological parents manage to grow up without serious problems, especially after a period of adjustment for children whose parents divorce.");
90. Judith S. Wallerstein, Children of Divorce: Report of a Ten-Year Follow-Up of Early Latency-Age Children, 57 AM. J. ORTHOPSYCHIATRY 199, 210 (1987) (finding, in ten-year follow-up to study focusing on children who were eight years old or younger when their parents divorced, that most children were law-abiding people attending school full time, living at home, and holding part-time jobs).