State, Society, and
the Redefinition of Marriage
By William C.
* William C. Duncan, J.D. is director of the Marriage Law Foundation.
This essay is adapted from a presentation given on July 20, 2005, at the
12th World Conference of the International Society of Family Law, held
in Salt Lake City, Utah.
In his famous novel Fathers and Sons, Ivan Turgenev perfectly
captures the mental outlook of the nihilist Yevgeny Vassilyev Bazarov by
depicting a revealing argument with Pavel Petrovitch Kirsanov, who accuses
Basarov of wanting to "destroy everything." Astonishingly, Bazarov accepts rather than disputes the
accusation. Pavel Petrovitch then
naturally objects: "But one must construct
too, you know." Basarov responds: "That's not our business now.... The ground
wants clearing first."
How like the mindset described by Richard Weaver: "striking at restraints
without considering what they preserve."
The urge to destroy
political systems to make room for new ones is hardly novel. Emblematic for
political philosopher Ralph Hancock is the French Revolutionaries' conceit of
"throw[ing] over 1,792 years of the Christian calendar and inaugurat[ing] a new
age of reason in the year 1 of the new age." Although less ambitious, strains
of this thinking have a place in American legal history and current practice.
As some legal analysts have pointed out, certain types of "public interest
litigation" have focused on "restructur[ing] public institutions in
accordance with what are asserted to be the commands of the federal
Basarov, however, was not
content to destroy only government structures. Indeed, he challenged Pavel
Petrovitch to "bring forward a single institution in our present mode of life,
in family or in social life, which does not call for complete and unqualified
destruction." In a similar way, recent lawsuits have gone beyond seeking
structural reforms of public institutions to trying to restructure social
institutions such as marriage and the family. This is no surprise. From a
certain radical perspective, "the formal family unit is suspect for all the
same reasons that the governmentally sponsored megastructures are suspect."
The family comes under pressure from government partially because—as legal
scholar Bruce Hafen points out—the government "is responding to continuing
pressure from the advocates of egalitarian value positions who want the
megastructure to absorb mediating institutions in order to control them." And historian James Hitchcock sees this
pressure coming from those who believe "the liberal state also has an
obligation to remove all barriers to fulfillment, which requires using its
power to weaken the authority of 'oppressive' institutions like the
family." As sociologist Robert Nisbet
has noted, "For the radical mentality it is not a matter of ignoring social
groups and associations and the right of individual choices; it is a matter of
exterminating them all, in the name of socialism, communism, equality, or
about the scope of the proposed changes in family law. The proponents of such
changes characterize the aims of proposed changes as relatively minor.
Opponents characterize the changes as radical and far-reaching. That the duel
between these two views is important is manifest by the great effort that
litigants and sympathetic courts go to in order to portray the plaintiffs in
same-sex marriage cases (for instance) as "just like their neighbors"
and to downplay differences (such as the impossibility of conception in same-sex
This disagreement about
the magnitude of the proposed changes may be attributable to the different
reference points of the competing sides. The argument of those who want to see
the family restructured focuses on the "individual interests" in marriage and
family relationships, while their opponents stress the "social interests"
affected by such relationships.
The wisest approach to these issues requires that we compare the
institution of wedlock as it has existed within a long-established American
tradition of family law with the proposed new institution that would result
from the proposed restructuring of marriage. Only such an approach avoids the false, but
often-propounded, notion that the fight over the definition of marriage is
primarily a struggle between the legislative branch of government and the
judicial. In reality, what is at
stake in the fight over the definition of marriage is not the difference
between the legislature and the court, but rather the difference between the
state and society.
Mediating Institutions and Family
Activists now pushing to redefine marriage legally typically
seek to do so in such a way that wedlock will help advance rather than retard a
broad cultural movement fostering the radical autonomy of individuals. But in a deeper American tradition,
marriage serves first of all as an integrative social institution, not an
individualizing legal one. In this
tradition, marriage constitutes part of society's primal and even pre-legal
character. Unfortunately, as Hafen
remarks, "[t]he 'family tradition' ... has been such an obvious presupposition of
our culture that it has not been well articulated, let alone explained or
justified." America's family
tradition has not, however, been completely unnoticed. Nisbet argues that "the
family, not the individual, is the real molecule of society, the key link of
the social chain of being."
The family takes on such central social significance because society is
a living thing:
[It] is not a mechanical aggregate
of individual particles subject to whatever rearrangements may occur to the mind
of the industrialist or the governmental official. It is an organic entity, with
internal laws or development and with infinitely subtle personal and
institutional relationships. Society cannot be created by individual reason, but
it can be weakened by those unmindful of its true nature, for it has deep roots
in the past—roots from which the present cannot escape through rational
However, in some recent
court decisions, certain judges have argued that marriage is a discriminatory
institution that should be restructured to conform to asserted "constitutional"
norms. In taking this position,
these jurists have rejected the tradition in which marriage is part of society's
organic character as they advance the theory that marriage is a government
creation. Taking issue with this
theory, Professor F.C. DeCoste notes that the state cannot "claim ownership"
[T]he facts are these: (a)
prior to the thirteenth century, when the Church finally managed to take
control of it, marriage was an entirely social practice; (b) marriage only
became a sacrament in 1439; and c) the Catholic Church only began requiring the
attendance of a priest for a valid marriage in 1563, after the Reformation. The
state came to marriage even later than did the Church. Indeed, it was not until
1753, with the passage of Lord Hardwicke's Marriage Act, that the British state
became a significant player in the joining together of men and women as husbands
Developing a line of
argument that coincides with DeCoste's reasoning, one state supreme court has
noted that "[t]he rights inherent in family relationships—husband-wife,
parent-child, and sibling—are the most obvious example of rights retained by the
people. They are 'natural,' 'intrinsic,' or 'prior' in the sense that our
Constitutions presuppose them, as they presuppose the right to own and dispose
Of course, no political or
social theorist will deny that government affects marriage. However, the theorists who see most
clearly understand that government's influence over wedlock has historically
been limited (at least in liberal democratic societies) in important ways. It
is largely because of these traditional limits on government intervention into
marital issues that Peter Berger and Richard John Neuhaus class the family
among "mediating structures" which they define as "those institutions standing
between the individual in his private life and the large institutions of public
life." In the same vein, DeCoste
explains that with a rare exception, "a liberal state is required, at the cost
of its authority, to exhibit deference to the authority of civic institutions,
traditions, and practices." This deference may take two forms:
[First,] the state may simply leave alone
the institutions, practices, and traditions which together constitute the
lifeworld of its subjects, or [second] it may instead seek to support them by
enacting laws that recognize the importance of their contribution to the life of
the political community. In the latter case, recognition cannot include
reformation, nor must it be confused with constitution. Instead reformation
falls properly to the institutions and practices of civil society themselves. If
over time, institutions and practices do reconstitute themselves, only then may
the state incorporate such changes into those laws of recognition, if any, that
apply to them.
This sense that the state
ought to defer to the social institutions which provide meaning and purpose for
most individuals and which protect them from the otherwise unlimited reach of
state authority is reflected in the doctrine of family autonomy enshrined in an
important series of U.S. Supreme Court rulings. The first of these rulings occurred in an era described by
historian Christopher Lasch as a period when "[e]ducators and social reformers
saw that the family, especially the immigrant family, stood in the way of what
they conceived as social progress—in other words, to homogenization and
The immigrant family blocked progressives' plans for reforming American society
because that family "preserved separatist religious traditions, alien languages
and dialects, local lore, and other traditions that retarded the growth of the
political community and the national state."
The first of the Supreme
Court cases dealing with the kinds of issues raised by the immigrant family was
decided in 1923 and involved the prosecution of a parochial school teacher who
had given instruction in German.
In that case, the Court recognized a constitutional right of parents to
control the education of their children premised in part on "the natural duty
of the parent" to educate their children. In its decision, the court specifically considered the
constitutionality of a state-centered understanding of the family and concluded
that although there have been societies which see the child as a creature of
the state and disregard family obligations and prerogatives, America could not
be one of them. The High Court
concluded that the state-centered understanding of the family found in some
other nations ultimately rested on "ideas touching the relation between the individual and the State [that]
were wholly different from those upon which our institutions rest; and it
hardly will be affirmed that any legislature could impose such restrictions
upon the people of a State without doing violence to both letter and spirit of
Affirming Parents' Rights
Shortly thereafter, the Court deployed similar reasoning in
striking down a prohibition on non-public schools. The Court again recognized
"the liberty of parents and
guardians to direct the upbringing and education of children under their
control." Interestingly, the
Court once again repudiated state-centered approaches to the family: "[t]he
child is not the mere creature of the State." Similarly, the Court said in 1944:
"It is cardinal with us
that the custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for obligations the
state can neither supply nor hinder."
The Court went on to say that "it is in recognition of this that these decisions
have respected the private realm of family life which the state cannot
enter." Finally, the Court
placed the "fundamental interest of parents" in contrast with "that of the
State" in a case involving Amish families resisting state laws mandating that
their children attend school through age sixteen.
Any careful analysis of
these Supreme Court rulings will underscore the way in which the Court's
deference to family autonomy serves important social functions. One legal
scholar has, for instance, emphasized how "[t]he family interposes a significant
legal entity between the individual and the state, where it performs its
mediating and value-generating function." No sound political philosophy can ignore this function of
fundamental to democratic theory that parents, through this institutional role
of the family, control the heart of the value-transmission process. As that
crucial process is dispersed pluralistically, the power of government is
limited. It is characteristic of totalitarian societies, by contrast, to
centralize the transmission of values. Our system thus fully expects parents to
interact with their children in ways we would not tolerate from the
state—namely, through the explicit inculcation of intensely personal convictions
about life and its meaning.
The autonomy a democratic
state grants parents thus forms part of the "[t]rue pluralism [that] entails,
first, functional autonomy for the various spheres of society—familial,
educational, economic, [and] religious." When this pluralism is present, the family can, as legal
scholar George Swan has emphasized, "serve as the context in which millions of
Americans pluralistically contract to organize their lives independently of
central political authority." A
recognition of the vital role of the family in a liberal democracy also inheres
in the Utah Supreme Court's assertion that "family autonomy helps to assure the
diversity characteristic of a free society.... Much of the rich variety in
American culture has been transmitted from generation to generation by
determined parents who were acting against the best interest of their children,
as defined by official dogma."
Nisbet detects a parallel line of thought among "conservative
ideologists," who have seen "individual freedom as an inextricable aspect of a
kind of social pluralism, one rich in autonomous or semi-autonomous groups,
communities, and institutions."
As the U.S. Supreme Court
noted in the cases previously cited, some nation-states have rejected family
autonomy as a value. In post-Revolutionary France, for instance, the family
counted for little. As Nisbet
remarks, "[t]he family was considered no exception to the general principle
that the individual is the true unit of the state and that all social authority
must pass over into the formal structure of the state"; thus, "the Revolution
severely weakened the solidarity of the family." This choice not to defer to the autonomy of the family,
however, has significant social consequences.
These consequences derive
from another reality—the reality that certain values and habits are necessary
to a functioning democratic republic. In the famous formulation of Edmund
Burke, "Men qualify for freedom in exact proportion to their disposition to put
moral chains upon their own appetites. Society cannot exist unless a
controlling power is put somewhere on will and appetite, and the less of it
there is within, the more there must be without." To quote Nisbet again:
"Apart from the checks supplied [by social institutions] upon the moral
and social lives of individuals, any genuine political freedom is
Courtwright has provided a fascinating example of how moral and social
disintegration destroy genuine freedom in his description of violence in areas
predominated by single men. His conclusion is that it is "families [that]
constrain violent and disorderly male behavior." However, as Hafen acknowledges,
"[t]he very nature of these [constraining family] values
requires that they develop voluntarily. For such reasons, the formal law stops
at the family threshold not merely because it should not regulate intimate
relations, but because it cannot regulate them without impairing their very
It is also clear to Hafen
that "the contribution of family life to the conditions that develop and
sustain long-term personal fulfillment and autonomy [as well as political
freedom] depends . . . upon maintaining the family as a legally defined and
structurally significant entity."
In other words, if the law and its agents do not defer to the family or
if the state actually abolishes the family or takes over its responsibilities,
then the family can no longer fulfill its function as a mediating institution
Restructuring the Family Through
thus precisely because of the need to limit government intervention into the
family that the movement to redefine marriage constitutes a threat to
society. To understand the
character of this threat, one need only examine the nature of the conjugal
institution the proposed redefinition would create. Such an examination quickly reveals that the proposed
redefinition of wedlock would compel a completely new understanding of the
Philosopher Roger Scruton
glimpses something of the new understanding of the family implicit in the
proposed new definition of marriage when he critically remarks that "[m]arriage
is ceasing to be a sacrificial union of lovers, in which future generations
have a stake, and becoming a transitory agreement between people living now." The transformation Scruton perceives
is, in part, a direct result of the attempts to redefine marriage as the union
of any two people. While these arguments are clothed in the nominally legal
rhetoric of equality and dignity, these claims can make no sense unless
premised on a new normative claim about the very nature of wedlock. For the proponents of the redefined
institution, marriage can no longer be an organic institution with unique
functions related to providing for children. It must be redefined as a
government creation whose sole aim is to foster and reward adult choices to
engage in relationships of love and commitment. The words of an Ontario court
starkly outline the character of the restructured conjugal institution as it is
understood by its advocates:
Marriage is, without dispute, one
of the most significant forms of personal relationships.... Through the
institution of marriage, individuals can publicly express their love and
commitment to each other. Through this institution, society publicly recognizes
expressions of love and commitment between individuals, granting them respect
and legitimacy as a couple. This public recognition and sanction of marital
relationships reflect society's approbation of the personal hopes, desires and
aspirations that underlie loving, committed conjugal relationships. This can
only enhance an individual's sense of self-worth and dignity.
The logic now at work in
attempts to redefine marriage is analogous to that used in recent efforts of
some courts to restructure another private institution—the Boy Scouts of
America. In those efforts, activists claimed that the core values of the Scouts
would be advanced not by respecting the Boy Scouts' internally created rules
banning homosexual leaders but rather by measuring those rules against a
government-endorsed value, namely that of inclusion (as codified in New
Jersey's non-discrimination law).
These activists went so far as to assert that inclusion (including
inclusion of homosexual leaders) constituted the real value for which the
Scouts existed. Although this view narrowly failed (in a 5-4 Supreme Court
decision), it received an important endorsement from Justice Stevens, who
argued that it is "exceptionally clear that BSA has, at most, simply adopted an
exclusionary membership policy and has no shared goal of disapproving of
officials willing to impose state values on private associations are not likely
to stop at the most fundamental private association—the family.
In the context of
marriage and family, courts and activists identify the core value of these
institutions as love or commitment or choice, then conclude that since same-sex
couples (or other adult-relationship structures) can develop loving and
committed relationships, nothing but bigotry prevents marriage from being
redefined. The fact that marriage has never been defined in this novel way
is shrugged off as irrelevant. Thus, for instance, a dissenting judge
challenged traditional understandings of marriage in a recent New Jersey case
with an acid quotation from Justice Oliver Wendell Holmes: "It is revolting to
have no better reason for a rule of law then that so it was laid down in the
name of Henry IV. It is more revolting if [its foundation has] vanished
long since, and the rule simply persists from blind imitation of the past."
Marriage...for the Interests of State
marriage is successfully redefined (at least as a matter of law) and the
institution restructured to advance a new set of goals, like equality and
autonomy, currently favored by some sectors of the government.
Unlike the discarded
institution of marriage, this restructured institution really is a state
creation. As such, it is dependent on state sponsorship and enforcement for its
continued existence. This ought to put us in mind of one of Nisbet's important
insights: "the state which possesses the power to do things for people has also
the power to do things to them." As DeCoste has noted, judicial redefinition
of marriage has the aim (and result) of "de-naturaliz[ing] the family by
rendering familial relationships, in their entirety, expressions of law. But
relationships of that sort—bled as they are of the stuff of social tradition
and experience—are no longer family relationships at all. They are rather
policy relationships, defined and imposed by the state." As Hitchcock recognized decades ago,
"[o]stensibly the beneficiaries of the nuclear family's decline" are those in
non-traditional relationships, "[b]ut the real beneficiary ... is the
For good reason, Hafen has
warned that if the law prohibits any differentiation "among points along the
spectrum of 'intimate associations,' our biological and psychological ties
[could] become unceasingly tangled and subjected to judicial supervision, as if
the entire population were a series of split families all involved in one
continuous hearing on support, custody, and visitation privileges." This is well illustrated in the New
Jersey dissent in which Justice Holmes's views figure prominently. This
dissenting opinion brushes aside the majority's concern that the logic of
same-sex marriage is also the logic of polygamy. Instead of denying this point,
the dissenting judge simply notes that the question of polygamy has not been
specifically raised by the parties in that case. What such a judicial approach implies is that the court will
continue to exercise authority over the definition of marriage and can
therefore refine its definition, as needed, at a later date. Thus does the restructuring state begin
to resemble the interventionist states that DeCoste has aptly characterized as "authoritarian states [which] are activist states, bent perpetually to the task
of weeding the garden of life of the past."
This type of state is "convinced that its proper purpose is to improve its
subjects by imprinting on them, on their projects and character, the values that
the state has made its own and declared superior."
The restructuring project
also magnifies trends like individualism and adult-centeredness, trends which
have already significantly weakened families in recent decades. As Hafen
explains, the "trend toward individualism in family law is the shift from
'familistic' to 'contractual' expectations in family relationships." This trend has accompanied and
exacerbated the trend toward treating the child's place in the family as a
merely incidental consequence of an adult choice to include the child. Of
course, there are benefits to be realized by treating family as a form of
dickered bargain (like freedom for spouses), but there are also drawbacks (like
decreased stability for both spouses and children).
Perhaps most troubling, as
legal analyst Dan Cere has recognized, is that once marriage is restructured to
focus on adult choice as the key criterion for defining wedlock, "what is being
put into play is the idea of biological parenthood as a fixed right that the
state is obliged to recognize."
This shifting context for rights further increases the legal weight
given to adult choices—at the expense of traditional understandings of family
relationships. Just how far this
process can go is evident in a recent recommendation of the Irish Commission on
Assisted Reproduction: "[t]he
child born through surrogacy should be presumed to be that of the commissioning
A recent Institute for
American Values report thus has good reason for warning of the potential
negative ramifications for children of a new adult-centered regime:
support for any family that adults dream up is supposed to be in the interests
of children. But just in case, and with remarkable bluntness, the ALI
[Principles of Family Dissolution] report notes: "Even a child's awareness of
such a relationship, or dislike of the individual with whom a parent has
developed an intimate relationship, should not justify interferences relating to
the child's welfare or parental fitness; children cannot be protected from every
source of unhappiness and unease."
Marriage has always been,
as Cere understands, the way that society "organizes and helps to secure the
basic birthright of children, when possible, to know and be raised by their own
mother and father." The new
legal definition of parenthood takes exactly the opposite approach. So, in a
recent decision providing parental rights to an adult not biologically related
to the child, the courts focuses on the intent of the biological mother to "co-parent" with this person.
Curiously, the court somehow believed it to be relevant that the
plaintiffs had "designat[ed]" one partner as the birth mother and used an
anonymous donor. The court also said: "No agreement exists with the donor
giving him any birthrights to the child." The court has here resorted to an odd choice of terminology
usually refers to a child's inheritance rather than to privileges bestowed by
an adult's act of will. One could hardly think of a more adult-centered
approach to family law.
Most ironic is the fact
that the restructured institution of the family emerging in current litigation
will not be able to promote the social goods currently sustained by marriage.
It certainly cannot fill the function of channeling potentially procreative
sexual behavior into an institution in which a child resulting from that
behavior will have a tie to her mother and father and they to one another. The newly restructured family cannot
perform this function because it begins with the assumption that marriage has
nothing to do with providing a mother and father for children. It is also doubtful that an institution
built to maximize adult choice can adequately instill the values and character
necessary to a democratic system. Richard Weaver outlined the central problem
many decades ago:
The comity of peoples in groups large or
small rests not upon this chimerical notion of equality but upon fraternity, a
concept which long antedates it in history because it goes immeasurably deeper
in human sentiment. The ancient feeling of brotherhood carries obligations of
which equality knows nothing. It calls for respect and protection, for
brotherhood is status in family, and family is by nature hierarchical. It
demands patience with little brother, and it may sternly exact duty of big
brother. It places people in a network of sentiment, not of rights—that hortus
siccus of modern vainglory.
Facing the Ideological
Turgenev's novel, Basarov's protege eventually falls in love and happily
submits to the discipline of the social institution of marriage. Basarov dies
an untimely death, but is lovingly remembered by his devoted parents whose
dedication to his memory affirms truths he had denied:
Can it be that their prayers and
their tears are fruitless? Can it be that love, sacred devoted love, is not all
powerful? Oh, no! However passionate, sinful or rebellious the heart hidden in
the tomb, the flowers growing over it peep at us serenely with their innocent
eyes; they tell us not only of eternal peace, of that great peace of
"indifferent" nature; they tell us also of eternal reconciliation and of life
Today, the institutions of
marriage and the family are faced with a more relentless challenge to their
authority and even existence than that posed by Basarov-like nihilists. This
challenge comes not from those who would abolish them but rather from those who
would harness their institutional strength in service to a broader political
agenda. Those who support this agenda do so with a relentlessness that stems
from the certainty of ideology and the conviction of a "purer motive."
Perhaps only time will
tell whether the family can withstand this new effort to restructure it and
subject it to the discipline of the state. If, however, courts and legislatures
become more sensitive to the social realities inherent in the nature of this
institution, it may yet survive.
Turgenev, Fathers and Sons
56 (Barnes & Noble edition 2000).
M. Weaver, Visions of Order
50 (ISI edition 1995).
C. Hancock, Reason and Its Limits in Two Revolutions, Sutherland Institute Presentation, May 12, 2005, page 6 at http://www.sutherlandinstitute.org/images/hancock05.pdf.
A. Fletcher, The Discretionary Constitution: Institutional Remedies and
Judicial Legitimacy 91
Yale L.J. 635 (1982); see also Abram Chayes, The Role of the Judge in Public
Law Litigation 89 Harv.
L. Rev. 1281 (1976).
supra note 2 at 61.
C. Hafen, The Regulation of Mediating Structures in The Constitution and the
Regulation of Society
154 (Gary C. Bryner & Dennis L. Thompson, eds. 1988).
Hitchcock, Political Orphans Touchstone 29 (April 2003).
A. Nisbet, The Dilemma of Conservatives in a Populist Society Policy Review 104 (Spring 1978).
for instance, the complaint in a pending Maryland case which points out such things
as the religion of the couples and provides narratives of their relationships,
notwithstanding the irrelevance of both things to a court's determination of
whether their claim has any legal merit. Deane v. Conway, No. 24-C-04-005390,
Complaint (Md. Cir. Ct.).
for instance, the decisions of the Vermont Supreme Court and the Massachusetts
Supreme Judicial Court which both try to avoid this issue by pointing out that
same-sex couples sometimes raise children. Baker v. Vermont, 744 A.2d 864, 882 (Vt. 1999); Goodridge v. Department of Public Health, 798 N.E.2d 941, 961-962 (Mass. 2003).
Pound, Individual Interests in Domestic Relations 14 Mich. L. Rev. 177, 182 (1916).
C. Hafen, Puberty, Privacy, and Protection: The Risks of Children's "Rights"
63 ABA J. 1383 (Oct. 1977).
Nisbet, The Quest for Community
Nisbet, Conservatism and Sociology
58 Am. J. of Sociology 167, 169 (Sep. 1952).
16 Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993); Baker
v. Vermont, 744 A.2d 864, 885 (Vt. 1999); Goodridge v. Department of Public Health, 798 N.E.2d 941, 954 (Mass. 2003).
DeCoste, Courting Leviathan: Limited Government and Social Freedom in Reference re Same-Sex Marriage 42
Alberta L. Rev. 4, 18 (2005) (citations omitted).
re J. P. , 648 P.2d
1364, 1373 (Utah 1982).
Berger and Richard John Neuhaus, To Empower People: From State to Civil
Society 158 (2d ed.
DeCoste, The Halpern Transformation: Same-Sex Marriage, Civil Society and
the Limits of Liberal Law
41 Alberta L. Rev. 619, 635 (2003).
Lasch, Haven in a Heartless World
23 Meyer v. Nebraska, 262 U.S. 390 (1923).
26 Pierce v. Society of Sisters, 268 U.S. 510 (1925).
v. Massachusetts, 321 U.S. 158, 166 (1944).
31 Wisconsin v. Yoder, 406 U.S. 205, 232
C. Hafen, Law, Custom and Mediating Structures: The Family as a Community of
Memory in Law and the Ordering of Our Life Together 100 (Richard John Neuhaus, ed. 1989).
G. Perrin, Robert Nisbet and the Modern State Modern Age 39, 43 (Winter 1997).
Steven Swan, The Political Economy of American Family Policy, 1945-85 12 Population and Development Rev. 739,
752 (Dec. 1986).
re J. P. , 648 P.2d
1364, 1373 (Utah 1982).
Nisbet, The Quest for Community 25
Nisbet, The French Revolution and the Rise of Sociology in France 49 American J. of Sociology 156, 160 (1953).
O'Sullivan, The Moral Consequences of Impatience in The Betrayal of Liberalism 211
(Hilton Kramer & Roger Kimball 1999).
A. Nisbet, The Dilemma of Conservatives in a Populist Society Policy Review 93 (Spring 1978).
T. Courtwright, Violent Land: Single Men and Social Disorder from the
Frontier to the Inner City
C. Hafen, Law, Custom and Mediating Structures: The Family as a Community of
Memory in Law and the
Ordering of Our Life Together 105-106 (Richard John Neuhaus, ed. 1989).
C. Hafen, The Family as an Entity
22 U.C. Davis L. Rev. 865, 867 (1989).
Scruton, The Moral Birds and Bees
National Review (Sep. 15, 2003).
45 Halpern v. Attorney General, 2003 O.J. 2268.
Scouts of America v. Dale, 530 U.S. 640, 684 (2000) (Stevens, J.,
47 Lewis v. Harris, 875 A.2d 259, 281 (N.J. 2005)
(Collester, J., dissenting) quoting Oliver Wendell Holmes, The Path of the
Law 10 Harv. L. Rev.
457, 469 (1897) (bracketed language is Justice Collester's). Justice Holmes'
statement is somewhat ironic since deference to the traditional theory of
family autonomy could conceivably have prevented Justice Holmes from embracing
the trend theory of eugenics in his infamous decision in Buck v. Bell, 274 U.S. 200, 207 (1927) ("[t]hree
generations of imbeciles are enough."). See Nathan A. Adams, Creating
Clones, Kids and Chimera: Liberal Democratic Compromise at the Crossroads 20 Issues L. & Med. 3 (2004).
A. Nisbet, Moral Values and Community in Perspectives on the American Community 579 (Roland L.
Warren, ed. 1966).
49 F.C. DeCoste, Courting Leviathan: Limited Government and Social Freedom in Reference re Same-Sex Marriage 42
Alberta L. Rev. 4, 28 (2005).
Hitchcock, Family is as Family Does
6 Human Life Rev. 52, 67 (Fall 1980). Another commentator has noted that if the
"atomistic image of the family" "brings more individual freedom, it also brings
more exposure to the state and its agencies." Inga Markovits, Family Traits 88 Mich. L. Rev. 1734, 1739 (1990).
C. Hafen, Law, Custom and Mediating Structures: The Family as a Community of
Memory in Law and the
Ordering of Our Life Together 111-112 (Richard John Neuhaus, ed. 1989).
52 Lewis v. Harris, 875 A.2d 259, 288 (N.J. 2005) (Collester,
DeCoste, Courting Leviathan: Limited Government and Social Freedom in Reference re Same-Sex Marriage 42
Alberta L. Rev. 4, 12 (2005).
C. Hafen, Individualism in Family Law in Rebuilding the Nest: A New Commitment to the American
Family 170 (David Blankenhorn, Steven Bayme & Jean Bethke Elshtain, eds.
56 Dan Cere, The Future of Family Law: Law and the Marriage Crisis in North America 33 (2005).
of the [Irish] Commission on Assisted Reproduction xvi (Recommendation 43).
Cere, The Future of Family Law: Law and the Marriage Crisis in North America 35 (2005).
re Child of Robinson,
Docket No. FD-07-6312-05-A (N.J. Super. Ct. 2005), slip op at 3.
William C. Duncan, The State Interests in Marriage 2 Ave Maria L. Rev. 153, 164-171 (2004).
Weaver, Ideas Have Consequences
Turgenev, Fathers and Sons
243 (Barnes & Noble edition 2000).