She doesn’t mention same-sex marriage, but the timing of this editorial by Leah Ward Sears, Chief Justice of the Supreme Court of Georgia, is interesting enough to make it a reasonable consideration here. I won’t address it directly, because she doesn’t, but assume when I mention marriage I intend that to include same-sex marriage. I hope the reason will be clear.
For the first time in history, less than half of U.S. households are headed by married couples. And on Sept. 29, the Centers for Disease Control and Prevention released data showing that almost 36 percent of all births are the result of unmarried childbearing, the highest percentage ever recorded.
In family law, as in the rest of American society, there is an intensifying debate about how we should respond to this kind of news. Should law and society actively seek new ways to support marriage? Or should family law strive to be marriage-neutral by providing more rights and benefits to its alternatives, such as cohabitation and single parenthood?
We know where this is going, right? Marriage is good, for the children. Right, I’m not disagreeing, as a general assumption. But given that “the children” is the basis of the rest of this editorial, it would make more sense to ask if the goal of family law should be to best protect children. That doesn’t require the derision the Chief Justice seems to assign to her open-ended interpretation of what family law should address.
I am not a law professor. But from where I sit as chief justice of the Supreme Court of Georgia, a family law that fails to encourage marriage ignores the fact that marriage has long been associated with an impressively broad array of positive outcomes for children and adults alike. Experts who contend that we need to move “beyond marriage” say they are only responding to the facts. But here is one major fact: High rates of family fragmentation hurt children.
That needs some support, right? Okay.
For example, studies have consistently shown that children raised outside marriage suffer disproportionately from physical and mental illness; are more likely to drop out of school, abuse drugs or alcohol, and engage in violence or suffer it in their homes; and are less likely to attend college. Child Trends, a nonpartisan research organization summed up the evidence in 2002: “Children in single-parent families, children born to unmarried mothers, and children in step-families or cohabiting relationships face higher risks of poor outcomes.”
Does that have anything to do with marriage, specifically, or is it a function of the maturity and character of the parents? If it’s the latter, marriage won’t fix that. And it’s especially useful to note the part about step-families. The Chief Justice does indicate that family law should “find ways to reduce unnecessary divorce and unmarried childbearing.” Who gets to decide what qualifies as “unnecessary divorce”? Are we really ready to equate unmarried and married to a non-biological parent? Strengthening marriage sure is strict.
I changed my mind, I will address the question of same-sex marriage directly. Her step-family analogy implies that children raised by a parent married to a same-gender spouse will face higher risks of poor outcomes. I want proof.
The Chief Justice acknowledges that single parents can and do raise children well. Great. But that is not proof that we need to “build a healthy marriage culture,” as she next states. If we get back to the assumption that family law should be designed to protect children, we’ll likely arrive at a better solution. Such an assumption would also treat parents, married or unmarried, as competent until they prove otherwise. Personal biases exist, but the law should not be designed to impose them without sufficient factual support.
In the end the Chief Justice makes a mistake that doctors often make:
As a judge I am often frustrated that I must work within a system designed only to pick up the pieces after families have already fallen apart or failed to come together. We must work to prevent family fragmentation, because the consequences for children and society are severe.
Choose to be a doctor and you’ll see mostly sick people. That doesn’t mean everyone is sick. Similarly, many children show up in the court system due to unfortunate circumstances. That doesn’t mean every child with unmarried parents will end up in court. Working to reduce that case load is reasonable, but the approach should aim for what will improve their lives, not how a predetermined solution can best fix the problem. Perhaps the conclusion from the two will be the same. But there is a chance they might not be the same. The law must recognize that possibility.