Today, contemporary family law theorists are bent on hammering this new theory into law, usually using the avenue of constitutional law. What is striking is the breathless speed of these developments in the absence of any real scholarly or public debate. A particular school of thought openly aimed at re-conceptualizing marriage first took root in the academy in the 1980s. By the late 1990s it had come to dominate fashionable academic theorizing on sexual intimacy. That school of thought is successfully urging family law scholars to think in radically new ways about family law. Much of the new thinking centers on ways to transform family law from its historic role as the protector of marriage into something very close to its antagonist.
- Dan Cere, The Future of Family Law
Dan Cere, in his review of the current trends in family law, notes that in the past generation the legal discussion has changed from the traditional concern with marriage, to a wholesale substitution of the concept of “close relations.” Marriage is treated as a subset of close relations, at best. This change reflects the political movement to normalize both cohabitation and same-sex unions. Indeed, the “close relations” movement may go beyond putting other pairings on a par with marriage. The longer-term effect may be to treat marriage just as a private lifestyle choice of some individuals, rather than the basic unit of society’s foundational building block. Nor need the revolution stop there: any sort of “close relation,” involving any number, age, and configuration of people, might come to be treated as just as good as any other, as long as it is important to the participants.
The church, though, has a different standard. In the Biblical understanding, marriage is not simply the close relation of two individuals, but makes them “one flesh.” A married couple is not literally one person. But neither are they simply two separate individuals who have made a voluntary and temporary tie.
In the debate about same-sex unions that I discussed before, Maggie Gallagher pointed out that many of the tangles that Protestants get into over this issue happen because Protestants are prone to a more individualistic analysis of everything. Catholics, on the other hand, are more prone to talk about marriage as making the couple “one flesh” in the first place. Both branches of the church have a stake in how secular family law develops.
The law now treats marriage as a unique status. There is nothing else like it, not even the parent-child bond. Our law coincides with the church’s understanding because they both share an underlying – and very high – view of marriage. This is important to say – the law treats marriage as a unique, and uniquely important, relationship for good secular reasons. It is not simply a holdover from a previously religious era.
This is why we need a status of the “good enough” relationship, which is still not the same as the social ideal. Marriage is not just a close relationship like others. But saying that marriage is unique does not mean that all other close relationships are bad.