Is There a Way Forward in the ‘War over the Family?’
Professor Linda McClain seeks more context from Clare Huntington’s Failure to Flourish in assessing whether family law is failing families.
Paul M. Siskind Research Scholar and Professor of Law Linda C. McClain is known for her work in family law, and is active in the scholarly conversations regarding marriage equality and family life and policy. She has written about the responsibility of government to promote equality and societal tensions over equality and its relationship to other commitments and values, such as to religious liberty.
McClain engages in just such a conversation in her critique of Failure to Flourish: How Law Undermines Family Relationships, by Professor Clare Huntington of Fordham University School of Law. Published by Oxford University Press, Huntington’s book examines the law’s impact on the well-being of families—children in particular—and calls for a more united system of reforms that would encourage the “flourishing” of strong, stable, and positive relationships.
McClain’s essay, “Is There a Way Forward in the ‘War over the Family?’”(Texas Law Review), situates Failure to Flourishamong scholarly discourse by drawing together two parallel but too-often-independent conversations in modern marriage-equality debates. First, in litigation over access to marriage by same-sex couples, when opponents of such access defend traditional marriage laws on the ground that it is the “optimal family form for child-rearing,” proponents of same-sex marriage—and the numerous judges who rule in their favor—argue that allowing same-sex couples to wed “advances marriage’s child-protective functions.” In a second discourse, commentators warn about the general decline or disappearance of marriage as an institution among American adults and the resulting negative impact on children across generations—seen most starkly across a growing class-, race-, and gender-based divide. McClain has called this “the other marriage equality problem” in her own writing.
Considering these two conversations simultaneously, McClain says, “invites holistic consideration of whether a state’s family laws cohere as a whole and achieve the aims of securing ‘the welfare of American children.’” Similarly, in Failure to Flourish, Huntington urges readers to consider more holistically the impact of family law and public policies on families and, in particular, their children.
Huntington’s place in the “war over the family”
One of McClain’s main criticisms is that Huntington does not place her work within the context of recent decades of public policy debate and initiatives with the “pervasive theme of strengthening families.” In light of other movements and policies, does Huntington’s vision go far enough? Does she consider what lessons we might learn from those prior calls to strengthen families? Some of these calls have also led to governmental initiatives to promote responsible fatherhood and healthy marriage, as McClain has discussed in her book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press).
McClain notes this family-values rhetoric, particularly that of presidential speeches, share Huntington’s insistence that government should “support, not supplant” community efforts to nurture families and their relationships. These calls to support such civic engagement led to the formation of the Office of Faith-Based and Neighborhood Partnerships, which coordinates with various community nonprofits and federal agencies. “Some evaluation of government’s actual deployment to date of these partnerships and funding of various nongovernmental organizations would be instructive,” says McClain.
Finding many connections to the work of other scholars of family law, McClain likens Huntington’s focus on the well-being of children and the idea that social institutions play a significant role in caregiving to Mary Ann Glendon’s proposed “shift from family policy to family ecology.” Though Huntington would not promote marriage as the “explicit goal of domestic policy,” does she see the similarities in her book, McClain wonders? Could the successes and failures of the social movements shaped by Glendon’s work—the responsive communitarian and the civil society revival movements, and their calls for marriage education and promotion, responsible fatherhood initiatives, divorce reform—help refine Huntington’s prescriptive vision for the pervasive state?
A new baseline for conversation about family forms
Despite such oversights, McClain states that Failure to Flourish “signals a new baseline for and tenor of conversation about family form,” a departure from an era of discourse sometimes dubbed the “war over the family” because of intense disagreement over family structures—i.e., traditional, two-parent marital families versus more diverse family forms. Though Huntington embraces diversity and pluralism, McClain notes, her book reiterates that children raised in stable, married, biological, two-parent families benefit from the most favorable outcomes. The exceptions, she notes, are families headed by same-sex couples.
“A valuable role that Failure to Flourish may play in this new landscape is to invite a holistic look at family formation and parenthood and the aims of a flourishing family law,” she says. “Will the availability of marriage for same-sex couples lead to even more emphasis on the importance of two-parent families? … What is the new consensus about family form that should guide a flourishing family law? What is the place of marriage in that new consensus?” McClain asks.
Huntington envisions the state encouraging long-term commitment and positive co-parenting relationships without exclusively focusing on marriage as the end goal. McClain notes as an example Huntington’s desire for more attention on the “plight of unmarried fathers” to address “the underlying social problem of unstable family circumstances that impact child well-being.” But, again seeking context, McClain wonders what Huntington thinks of the last two decades of welfare funds focused on promoting “responsible fatherhood” as a means to enhance child outcomes and related scholarship.
Conclusion
McClain applauds Failure to Flourish’s arrival at such a propitious time in history, when conversations about marriage equality similarly focus on the well-being of American children and marriage laws evolve to include—rather than exclude—more people seeking to marry. She finds Huntington’s arguments regarding how the pervasive state should foster flourishing relationships a “useful complement” to existing theories of state, but largely disagrees with her negative evaluation of dispute resolution family law. Further, McClain finds most of Huntington’s agenda “unobjectionable” and in line with “many progressive calls for a new family agenda.”
McClain concludes: “Perhaps Failure to Flourish will invite conversation about why, with so many decades of calls not just to talk about family values but to implement policies that ‘value families,’ there is still such a shortfall and how it may be possible to better realize those values.”