Family law has changed during the past 50 years to the detriment of child well-being, paving the way for the arguments in support of same-sex marriage. But there is a new strategy available to us to respond to this situation. The second in a two-part series.
The first part of this series summarized two centuries of Supreme Court opinions identifying the state’s interest in marriage with its interests in children, their formation for self-government, and the building of a decentralized society. Today, however, those who demand state recognition of same-sex marriage either ignore or minimize the relationship between marriage law and children’s welfare. In light of the Supreme Court decisions discussed here yesterday, this seems a foolish strategy, bound to fail.
Yet it is making some headway. To understand this, is it necessary to grasp how myriad family law developments over the last forty to fifty years have ignored or minimized children’s interests, thus paving the way for the arguments same-sex marriage proponents advance today. For example, as against the idea that marriage and child well-being go together, state laws approving no-fault divorce and normalizing cohabitation (by enforcing cohabitation agreements) do not take children’s presence in a household into consideration at all. Rather, they allow more and more children to be reared outside of households containing their married, biological parents. They also expose more children to instability in living arrangements, and to stepparents and new boyfriends, each of which is, on average, correlated with increased risks to children’s safety and to their emotional and educational achievement
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