Golden anniversary reflections: Changes in marriage after fifty years

Family Law Quarterly

Volumn 42, Issue 3, 2008, Pages 333-352

  Estin, Ann Laquer ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 69249127547     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (241)

1. See, e.g., Stephanie Coontz, Marriage, a History: From Obedience to Intimacy or How Love Conquered Marriage 225-244 (2005)
2. Steven Mintz & Susan Kellogg, Domestic Revolutions: A Social History of American Family Life 177-201 (1988).
3. But see Elaine Tyler May, Homeward Bound: American Families in the Cold War Era (1988)
4. Rickie Solinger, Wake Up Little Susie: Single Pregnancy and Race Before Roe v. Wade (1992).
5. Sociologists elaborated on this model in functionalist terms.
6. See generally Talcott Parsons & Robert F. Bales, Family, Socialization and Interaction Process (1955).
7. See generally Ann Laquer Estin, Fifty Years Later: Homer Clark and the Law of Domestic Relations, 78 U. Colo. L. Rev. 19 (2007).
8. See Max Rheinstein, Marriage Stability, Divorce, and the Law 51-105 (1972).
9. On the emerging social strains and fissures of the 1950s.
10. See generally Barbara Ehrenreich, The Hearts of Men: American Dreams and the Flight from Commitment (1983)
11. Betty Freidan, The Feminine Mystique (1963).
12. On legal changes, see generally J. Herbie Di Fonzo, Beneath the Fault Line: The Popular and Legal Culture of Divorce in Twentieth Century America (1997).
13. See also Ann Laquer Estin, Family Law Federalism: Divorce and the Constitution, 16 Wm. & Mary Bill Rts. J. 381, 418-430 (2007).
14. See generally Clarence Kolwyck, The Ten-Year Struggle for a Section of Family Law, 3 Fam. L.Q. 254(1969).
15. DiFonzo, supra note 5, at 112-37.
16. Henry Maine, Ancient Law 100 (1954) (1861).
17. See generally Milton C. Regan, Market Discourse and Moral Neutrality in Divorce Law, 1994 Utah L. Rev. 605 (1994)
18. Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 Mich. L. Rev. 1803 (1985).
19. See generally Jana B. Singer, The Privatization of Family Law, 1992 Wis. L. Rev. 1443 (1992).
20. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 212-213 (2000).
21. Cott notes that the Defense of Marriage Act (DOMA) and national welfare reform legislation in 1996 "illustrated the national government's continuing investment in traditional marriage." Id. at 223.
22. See Rose M. Kreider, U.S. Census Bureau, Current Population Reports, Number, Timing and Duration of Marriages and Divorces: 2001 (2005). The drop in marriage rates has stabilized for the cohorts of men and women born since the mid-1960s. The proportion of men and women who have divorced at various ages has also increased, reflecting a general decline in marital longevity, but these changes also appear to have stabilized for marriages entered into since the mid-1970s.
23. U.S. Census Bureau, 1999 Statistical Abstract of the United States tb1.91.
24. U.S. Census Bureau, 2008 Statistical Abstract of the United States tb1.121. These are national figures; the divorce rates in different states range from highs in Nevada (7.7), Arkansas (6.0), and Oklahoma (5.6), to lows in the District of Columbia (2.0), Massachusetts (2.2), and Pennsylvania (2.3).
25. See id.
26. Id. tb1.HS-30 (Marital Status of Women in the Civilian Labor Force: 1900-2002).
27. Id. tb1.582. For a general discussion of these trends, see Coontz, supra note 1, at 263-72.
28. U.S. Census Bureau, supra note 15, tb1.HS-13.
29. Id. tb1.HS-14. These figures represented approximately 21 births per 1,000 unmarried women of childbearing age in 1958, and 45 births per 1,000 unmarried women of childbearing age in 2002. Id.
30. Id. at 122.
31. U.S. Census Bureau, supra note 14, tb1.60. The numbers were 523,000 in 1970, 1.6 million in 1980, and 2.9 million in 1990. Id. Cohabitation rates in the United States are still far short of rates in most Western European nations.
32. See Kathleen Kieran, The Rise of Cohabitation and Childbearing Outside Marriage in Western Europe, 15 Int'l J. L. Pol'y & Fam. 1 (2001).
33. U.S. Census Bureau, supra note 14, tbl.60.
34. Ten states and the District of Columbia still recognize common-law marriages: Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Utah, and Texas. In the early 1950s, twenty jurisdictions were on this list.
35. See generally Walter O. Weyrauch, Informal and Formal Marriage-An Appraisal of Trends in Family Organization, 28 U. Cm. L. Rev. 88 (1960).
36. On the law applied to cohabitant relationships, see generally Ann Laquer Estin, Ordinary Cohabitation, 76 Notre Dame L. Rev. 1381 (2001).
37. Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. Marriage & Fam. 848, 848 (2004).
38. Id. at 851-853. Cherlin also notes long-term material trends contributing to this transition, including the decline in agricultural labor and corresponding increase in wage labor, the decline in child and adult mortality, rising standards of living, and the movement of married women into the paid labor force. See id.
39. John T. Noonan, Jr., The Family and the Supreme Court, 23 Cath. U. L. Rev. 255, 267-268 (1973). Noonan drew a distinction between secular and religious (or "mythic-moral") understandings of marriage in order to argue for preservation of marriage as an important social and legal institution. See id.
40. See generally Melvin I. Urofsky, Division and Discord: The Supreme Court Under Stone and Vinson, 1941-1953 (1997).
41. See generally Estin, supra note 5.
42. This process still continues.
43. See Troxel v. Granville, 530 U.S. 57 (2000) (holding that third-party visitation law violated parent's fundamental right to make decisions concerning the care, custody, and control of her children).
44. -381 U.S. 479 (1965). As the Court stated in Griswold
45. 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 worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Id. at 486.
46. -388 U.S. 1 (1967).
47. Id. at 12 ("The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.").
48. -391 U.S. 68 (1968). As the Court framed the question in Levy
49. Why should the illegitimate child be denied rights merely because of his birth out of wedlock? He certainly is subject to all the responsibilities of a citizen, including the payment of taxes and conscription under the Selective Service Act. How under our constitutional regime can he be denied correlative rights which other citizens enjoy?
50. Id. at 71
51. see also Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73 (1968) (holding that a mother must be permitted to sue for wrongful death of her nonmarital child).
52. But see Noonan, supra note 26.
53. See generally Peggy Cooper Davis, Neglected Stories: The Constitution and Family Values (1997)
54. Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity and Adoption (2003).
55. See generally Harry Krause, Illegitimacy: Law and Social Policy (1971).
56. -405 U.S. 438 (1972).
57. See generally Janet Dolgin, The Family in Transition: From Griswold to Eisenstadt and Beyond, 82 Geo. L.J. 1519 (1994).
58. See Roe V. Wade, 410 U.S. 113 (1973).
59. -478 U.S. 186(1986).
60. -539 U.S. 558 (2003).
61. -434 U.S. 374 (1978) (child support context).
62. -482 U.S. 78 (1987) (prison regulations context).
63. -401 U.S. 371 (1971).
64. Id. at 383. In addition, the race equality aspect of Loving was carried forward to the setting of custody adjudication in Palmore v. Sidoti, 466 U.S. 429 (1984).
65. Levy v. Louisiana, 391 U.S. 68, 70 (1968).
66. See Jiminez v. Weinberger, 417 U.S. 628 (1974) (Social Security disability benefits)
67. Gomez v. Perez, 409 U.S. 535 (1973) (child support)
68. Weber v. Aetna Cas. & Sur. Co., 391 U.S. 68 (1968) (workers' compensation dependent benefits).
69. But see Mathews v. Lucas, 427 U.S. 495 (1976).
70. These cases are discussed in Homer H. Clark, Jr., The Law of Domestic Relations in the United States 155-172 (student 2d ed., 1988).
71. Compare Lalli v. Lalli, 439 U.S. 259, 275-276 (1978) (upholding classification in inheritance context)
72. Labine v. Vincent, 401 U.S. 532, 539-540 (1971) (same)
73. Trimble v, Gordon, 430 U.S. 762,776 (1977) (finding classification based on legitimacy in inheritance law to be unconstitutional).
74. See Nguyen v. I.N.S., 533 U.S. 53 (2001)
75. Miller v. Albright, 523 U.S. 420 (1998)
76. Fiallo v. Bell, 430 U.S. 787 (1977).
77. -405 U.S. 645 (1972).
78. -441 U.S. 380(1979).
79. See Lehr v. Robertson, 463 U.S. 248 (1983)
80. Parham v. Hughes, 441 U.S. 347 (1979)
81. Quilloin v. Walcott, 434 U.S. 246 (1978).
82. -491 U.S. 110(1989).
83. Noonan noted in 1973 that the line up of votes in these opinions "cut across conventional political and ideological lines."
84. See Noonan, supra note 26, at 271.
85. See generally id.
86. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991).
87. See Homer H. Clark, Jr., The Supreme Court Faces the Family, 5 Fam. Advoc. 20 (Sum. 1982).
88. See generally Clark, supra note 46, at 286-305.
89. See id. at 370-74.
90. See generally Sally F. Goldfarb, Violence Against Women and the Persistence of Privacy, 61 Ohio St. L.J. 1 (2000)
91. Carl Tobias, Interspousal Tort Immunity in America, 23 Ga. L. Rev. 359 (1989).
92. See Clark, supra note 46, at 301-03.
93. See generally Romeo v. Romeo, 418 A.2d 258 (N.J. 1980)
94. Leatherman v. Leatherman, 256 S.E.2d 793 (N.C. 1979).
95. On the husband's right to his wife's services, see generally Reva Siegel, the Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings, 1860-1930, 82 Geo. L.J. 2127 (1995).
96. Compare People v. Liberta, 474 N.E.2d 567 (N.Y. 1984)
97. People v. Brown, 632 P.2d 1025 (Colo. 1981).
98. See generally Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2006)
99. Reva Siegel, "the Rule of Love:" Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117 (1996).
100. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 864-869 (1992) (Part III.C).
101. See Goesaert v. Cleary, 335 U.S. 464 (1948)
102. Muller v. Oregon, 208 U.S. 412 (1908).
103. -411 U.S. 677 (1973)
104. see also Califano v. Westcott, 443 U.S. 76 (1979).
105. -538 U.S. 721 (2003)
106. see also Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)
107. Califano v. Goldfarb, 430 U.S. 199 (1977). The Supreme Court was less able to recognize laws concerning work and pregnancy as having similar implications.
108. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976)
109. Geduldig v. Aiello, 417 U.S. 484 (1974).
110. The standard changed with passage of the Pregnancy Discrimination Act in 1978, codified at 42 U.S.C. §§ 2000e(k) (2006).
111. See also Int'1 Union v. Johnson Controls, Inc., 499 U.S. 187, 211 (1991) (upholding fetal protection policy that barred pregnant women and those capable of bearing children from certain positions).
112. -421 U.S. 7 (1975). The Court wrote
113. No longer is the female destined solely for the home and the rearing of the family, and only the male for The marketplace and the world of ideas.... If a specified age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, it is for the girl.
114. Id. at 14-15.
115. -440 U.S. 268, 279 (1979) (rejecting state "preference for an allocation of family responsibilities under which the wife plays a dependent role" as a legitimate purpose for statute).
116. -450 U.S. 455 (1981). The Court concluded that no important governmental interest was asserted to support Civil Code provision that declared the husband to be "head and master of the partnership or community of gains." Id. at 457 n.1.
117. -463 U.S. 248 (1983).
118. -533 U.S. 53 (2001).
119. See generally Martha F. Davis, Male Coverture: Law and the Illegitimate Family, 56 Rutgers L. Rev. 73 (2003)
120. Linda Kelly, The Alienation of Fathers, 6 Mich. J. Race & L. 181 (2000).
121. Nancy Dowd has argued that these decisions also reflect the Court's continuing discomfort with an understanding of fatherhood based on nurturance and care rather than marital status.
122. See Nancy E. Dowd, Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers, 54 Emory L.J. 1271 (2005).
123. See generally Paul R. Amato et al., Alone Together: How Marriage in America Is Changing (2007).
124. U.S. Dep't of Labor, Bureau of Labor Statistics, Women in the Labor Force: A Databook tb1.25 (2007). The figure is 33% when marriages in which employed women are married to unemployed men are also taken into account. Id.
125. See N.J. Welfare Rights Org. v. Cahill, 411 U.S. 619, 621 (1973) (holding that benefits under public assistance program "are as indispensable to the health and well-being of illegitimate children as to those who are legitimate").
126. -431 U.S. 494 (1977).
127. See Peggy Cooper Davis, Moore v. East Cleveland: Constructing the Suburban Family, in Family Law Stories 77 (Carol Sanger ed., 2008).
128. Compare Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974) (upholding application of "family" zoning ordinance to prohibit shared residence of six college students)
129. U.S. Dep't of Agriculture v. Moreno, 413 U.S. 528, 537-538 (1973) (invalidating regulation that denied eligibility for food stamps to households whose members were unrelated to each other).
130. -530 U.S. 57 (2000)
131. For example, the Court stated
132. The demographic changes of the past century makes it difficult to speak of an average American family. The composition of families varies greatly from household to household. While many children may have two married parents and grandparents who visit regularly, many other children are raised in single-parent households.... Understandably, in these single-parent households, persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing.
133. Id. at 63
134. see also id. at 98 (Kennedy, J., dissenting). The Court's approach in Troxel is notably different from its approach in Michael H. v. Gerald D., 491 U.S. 110 (1989), in which the Court rejected the possibility that two different men might have valid claims to paternity in language suggesting that facts like those presented in the case must be rare and extraordinary.
135. For a comparison of Troxel and Michael H.
136. see Ariela R. Dubler, Constructing the Modern American Family: The Stories of Troxel v. Granville, in Family Law Stories, supra note 73, at 95.
137. See generally Estin, supra note 23.
138. Am. Law Inst., Principles of the Law of Family Dissolution: Analysis and Recommendations ch. 6 (2003).
139. Id. §§ 2.03.
140. See Estin, supra note 23, at 1402-1406.
141. See generally Grace Ganz Blumberg, Cohabitation Without Marriage: A Different Perspective, 28 UCLA L. Rev. 1125 (1981). These aspects of the American Law Institute Principles have been criticized from a variety of perspectives.
142. See Preconceiving the Family: Critique on the Am. Law Inst.'s Principles of the Law of Family Dissolution (Robin Fretwell Wilson ed., 2006)
143. Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligations, 52 UCLA L. Rev. 815, 840 (2005)
144. Lynn D. Wardle, Deconstructing Family: A Critique of the American Law Institute's "Domestic Partners" Proposal, 2001 B.Y.U. L. Rev. 1189.
145. See generally Nancy E. Dowd, In Defense of Single-Parent Families (1997).
146. Stepparent families were a staple of popular entertainment during the era of divorce reform legislation, including films such as Yours, Mine and Ours (Desilu Productions 1968) and With Six You Get Eggroll (Arwin Productions & Cinema Center Films 1968), and the television series The Brady Bunch (ABC television broadcast 1969-74). These scripts, although not based on divorce scenarios, suggested optimistic possibilities of reconfigured family arrangements. More recently, unmarried pregnancy and single motherhood have taken over the cineplex in films such as Knocked Up (Universal Pictures 2007), Juno (Fox Searchlight Pictures 2007), The Waitress (Fox Searchlight Pictures 2007), and Baby Mama (Universal Pictures 2008).
147. See supra note 24 and accompanying text.
148. See Fla. Stat. §§ 741.0305 (2008) (enacted in 1998 to reduce marriage license fee for couples who complete premarital education course). Marriage education legislation has also been enacted in Minnesota (2001), Tennessee (2002), Georgia (2004), Maryland (2004), and Texas (2007).
149. -1997 La. Acts 1380 (codified as amended at La. Rev. Stat. §§ 9:272-275.1, 9:307-09 (2008)). As proponents of this legislation acknowledge, it has not been widely embraced, with only 2% to 3% of couples choosing this option.
150. See Katherine Shaw Spaht, Covenant Marriage Seven Years Later: Its as Yet Unfulfilled Promise, 65 La. L. Rev. 605, 618 (2005).
151. Spaht, supra note 84, at 612-15.
152. See Ark. Code §§ 9-11-801-11(2007) (Covenant Marriage Act of 2001)
153. Ariz. Rev. Stat. §§ 25-901-06 (2008) (Covenant Marriage Law of 1998).
154. See Katherine Boo, the Marriage Cure, The New Yorker, Aug. 18, 2003
155. Theodora Ooms, The Role of the Federal Government in Strengthening Marriage, 9 Va. J. Soc. Pol'y & L. 163 (2001) (describing programs in Arizona, Oklahoma, Michigan and Utah).
156. See generally William A. Galston, The Reinstitutionalization of Marriage: Political Theory and Public Policy, in Promises to Keep: Decline and Renewal of Marriage in America 271 (David Popenoe et al. eds., 1996)
157. Wade F. Horn, Wedding Bell Blues: Marriage and Welfare Reform, 19 Brookings Rev. 39 (2001).
158. Galston was Deputy Assistant for Domestic Policy for two years during the Clinton Administration, and Horn was Assistant Secretary for Children and Families at the Department of Health and Human Services from 2001-07.
159. See David Blankenhorn, The Future of Marriage (2007)
160. Linda J. Waite & Maggie Gallagher, The Case for Marriage: Why Married People Are Healthier, Happier, and Better Off Financially (2000)
161. James Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families (2002).
162. See Leah Ward Sears, The "Marriage Gap:" A Case for Strengthening Marriage in the 21st Century, 82 N.Y.U. L. Rev. 1243 (2007).
163. See Paul R. Amato & Alan Booth, A Generation at Risk: Growing Up in an Era of Family Upheaval (1997)
164. Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (1994).
165. See generally Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974)
166. Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973)
167. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)
168. Clark, supra note 46, at 75-80.
169. -852 P.2d 44 (Haw. 1993).
170. See Haw. Const.art. 1, §§ 23 ("The legislature shall have the power to reserve marriage to opposite-sex couples.")
171. Haw. Rev. Stat. §§ 572-1 (2007) (reciprocal beneficiaries law).
172. Defense of Marriage Act §§ 2, Pub. L. No. 104-199, §§ 2(a), 110 Stat. 2419 (1996) (codified as amended at 28 U.S.C. §§ 1738C (2006)).
173. Id. at §§ 3 (codified as amended at 1 U.S.C. §§ 7.
174. -744 A.2d 864 (Vt. 1999).
175. -798 N.E.2d 941 (Mass. 2003).
176. -908 A.2d 196 (N.J. 2006). The New Jersey Legislature had previously enacted a domestic partnership registration law that was available to same-sex couples and to opposite-sex couples age sixty-two or older.
177. -183 P.3d 384 (Cal. 2008). After several months when same-sex marriage was legal in California, voters enacted a constitutional amendment in November 2008 providing that only opposite-sex marriages would be recognized.
178. See Maura Dolan and Tami Abdollah, Gay Rights Backers File 3 Lawsuit Challenging Prop. 8, L.A. Times, Nov. 6, 2008.
179. -957 A.2d 407 (Conn. 2008).
180. See Conaway v. Deane, 932 A.2d 571 (Md. 2007)
181. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)
182. Andersen v. King County, 138 P.3d 963 (Wash. 2006). At this writing, another case is pending before the Iowa Supreme Court.
183. See Varnum v. Brien, 33 Fam. L. Rep. (BNA) 1495 (Iowa Dist. Ct. 2007).
184. There were also indications that Rhode Island would accept same-sex marriages solemnized in Massachusetts.
185. See Katie Zezima, Rhode Island Steps Toward Recognizing Same-Sex Marriage, N.Y. Times, Feb. 22, 2007, at A19.
186. But see Chambers v. Ormiston, 935 A.2d 956 (R.I. 2007).
187. See Jeremy W. Peters, New York to Back Same-Sex Unions from Elsewhere, N.Y. Times, May 29, 2008, at A1.
188. See generally Andrew Koppelman, Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges, 153 U. Pa. L. Rev. 2143 (2005).
189. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) ("The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.").
190. See Chambers v. Ormiston, 935 A.2d 956 (R.I. 2007)
191. Rosengarten v. Dowries, 802 A.2d 170 (Conn. App. Ct. 2002)
192. Quarto v. Adams, 929 A.2d 1111 (N.J. Super. Ct. App. Div. 2007)
193. Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App. Div. 2008).
194. th Cir. 2006)
195. Bishop v. Oklahoma ex rel. Edmondson, 447 F. Supp. 2d 1239 (N.D. Okla. 2006)
196. Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005).
197. See Shailagh Murray, Same-Sex Marriage Ban Is Defeated; Supporters Knew Senate Passage Was a Long Shot, Wash. Post, June 8, 2006, at A1.
198. Lydia Saad, CA Ruling on Same-Sex Marriage Bucks Majority View, Gallup, May 15, 2008, http://www.gallup.com/poll/107305/Ruling-SameSex-Marriage-Bucks- Majority-View.aspx
199. see also PollingReport.com, Same-Sex Marriage, Gay Rights, http://pollingreport.com/ civil.htm (last visited Aug. 18, 2008).
200. See generally Amato et al., supra note 70
201. Robert M. Baird & Stuart E. Rosenbaum, Same-Sex Marriage: The Moral and Legal Debate (2004)
202. Anita Berstein, Marriage Proposals: Questioning a Legal Status (2006)
203. Blankenhorn, supra note 89
204. Evan Gerstmann, Same-Sex Marriage and the Constitution (2008)
205. Nancy D. Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (2008)
206. Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (2004)
207. Mary Shanley, Just Marriage (2004)
208. Glenn T. Stanton & Bill Maier, Marriage on Trial: The Case Against Same-Sex Marriage and Parenting (2004)
209. Waite & Gallagher, supra note 89
210. Wilson, supra note 89
211. Evan Wolfson, Why Marriage Matters: America, Equality, and Gay People's Right to Marry (2004).
212. In the pages of this journal, see the special issue on The Future of Marriage, 41 Fam. L.Q. 413 (2007).
213. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, §§ 10i(l)-(2),110 Stat. 2105, 2110 (describing marriage as "the foundation of a successful society" and "an essential institution of a successful society which promotes the interest of children").
214. See Loving v. Virginia, 388 U.S. 1 (1967)
215. see also Cott, supra note 11, at 40-45, 98-103, 163-64, 184-85, 198.
216. See Cott, supra note 11, at 47-52, 106-11, 195-96, 205-07.
217. See generally Robert Bellah et al., Habits of the Heart: Individualism and Commitment in America (1985)
218. Francesca M. Cancian, Love in America: Gender and Self-Development (1987)
219. Christopher Lasch, Haven in a Heartless World: The Family Besieged (1977)
220. Cherlin, supra note 24.
221. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
222. For example, on the importance of marriage to individuals, the court wrote
223. The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual's happiness and well-being. The legal commitment to long-term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual's development as a person and achievement of his or her full potential.
224. Id. at 424. With regard to society's interests in marriage, the court wrote
225. Society is served by the institution of civil marriage in many ways. Society, of course, has an overriding interest in the welfare of children, and the role marriage plays in facilitating a stable family setting in which children may be raised by two loving parents unquestionably furthers the welfare of children and society. . . . Furthermore, the legal obligations of support that are an integral part of marital and family relationships relieve society of the obligation of caring for individuals who may become incapacitated or who are otherwise unable to support themselves.
226. Id. at 423-424 (internal citations omitted).
227. In the California cases, the court stressed the importance of equality, concluding that "While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children." Id. at 452.
228. See Paul R. Amato, Tension Between Institutional and Individual Views of Marriage, 66 J. Marriage & Fam. 959, 962 (2004)
229. see also Amato et al., supra note 70, at 4-8.
230. Karl N. Llewellyn, Behind the Law of Divorce: II, 33 Colum. L. Rev. 249, 262-266 (1933)
231. see also Cherlin, supra note 24, at 853.
232. See Joshua R. Goldstein & Catherine T. Kenney, Marriage Delayed or Marriage Foregone? New Cohort Forecasts of First Marriage for U.S. Women, 66 Am. Soc. Rev. 506 (2001) (forecast for cohorts born in 1950s and 1960s).
233. See id.
234. Cherlin, supra note 24, at 856-57.
235. See id.
236. See id. at 855-56
237. see also Kathryn Edin & Maria Kefalas, Promises I Can Keep: Why Poor women Put Motherhood Before Marriage 104-137 (2005).
238. Amato et al., supra note 70, at 225-32, 238.
239. The issues noted in this paragraph have been thoughtfully discussed in Marsha Garrison, The Decline of Formal Marriage: Inevitable or Reversible?, 41 Fam. L.Q. 491 (2007)
240. Amy L. Wax, Engines of Inequality: Class, Race, and Family Structure, 41 Fam. L.Q. 567 (2007).
241. See Garrison, supra note 127, at 493-501.