Tuesday, January 14, 2003

A story released today by ABC News reports that the 1,200-page text recently published by the influential American Law Institute, a consortium of lawyers, judges and legal scholars, is breathing fire into the already hot-blooded American debate about family and the beleaguered institution of marriage.

The most controversial piece sets forth that cohabiting domestic partners, both heterosexual and gay, should be treated the same as married couples should they choose to end their relationship. Child-custody decisions would not consider a parent's sexual orientation, and long-term live-in partners could owe each other alimony.

"Anyone who cares about the state of marriage, which is weak enough already, if you want it to become weaker still, knock away legal protections marriage enjoys," said David Blankenhorn, author of Fatherless America and president of the Institute for American Values.

The firestorm over the ALI guidelines is just the latest in the heated national conversation about what a family should look like, and how families should be treated under the law.

Despite these conflicted opinions, a Bush administration official says judgments about what constitutes family do not serve as a basis for policymaking.

"The debate about what a family is to some extent is a side issue because we start with the child, we don't start with a particular family type or structure as the only one deserving of support. We say every child is deserving of support, encouragement and services that can help them develop well," said Wade Horn, assistant secretary for the Administration of Children, Youth and Families. "Whether they find themselves in a two-parent household or divorced or unwed, we start with the question, 'What can we do with this child?'"

Mounting empirical evidence shows that children without committed fathers are at a disadvantage and that marriage is the most likely way a father will stay involved in a child's life. The healthy marriage grants are intended merely to help couples who want to get married to do so, Horn said.

"It's not about telling people they're living in sin, it's not about shaming anyone about going to the altar. It's about offering a range of services and one is a referral to a pre-marriage education services," he said.

Conservatives, though, say it's liberal academics who are trying their own hand at social engineering with their family law proposals that would equate same-sex and live-in partnerships with traditional marriage.

The ALI guidelines do more than merely reflect changes in society, Blankenhorn said, they actually take a trend and impose it on everyone.

For long-term cohabiting couples who are heterosexual, the guidelines would impose a state of marriage under the law that the couples did not pursue, or they would have been married in the first place.

But those who worked on the guidelines for a decade say they are just offering suggestions on how to update family law to reflect changes in society that already wind up in the courtroom.

"Our job is the law. The task we were given is to figure out what do you do when the family breaks down," said Grace Ganz Blumberg, a law professor at UCLA Law School. "We don't encourage cohabitation. We're not alternative lifestyle people. We're not promoting homosexuality.

"To acknowledge something that exists doesn't seem to me a bad thing," she said. "Ultimately, one of things we say is some of these people do have relationships and need law just like everybody else."

The ALI guidelines on cohabitation actually remove the incentive to avoid marriage by creating marriage-like obligations under the law, Blumberg said.

"In many nonmarital cohabitations, it is the economically stronger party who resists marriage in order to avoid obligations to the other party that would otherwise ensue at divorce," she said. "Under current law in most American states, cohabitation is a way of having your cake and eating it too, that is, of enjoying many of the benefits of marriage without undertaking the obligations of marriage."