V. AMERICAN EXCEPTIONALISM AND THE WAY FORWARD

When it comes to family life, the great paradox of our time is this: Every society (including our own) that we think is generally best for human flourishing-stable, democratic, developed, and free-is experiencing a radical crisis around human generativity: enormous increases in family fragmentation and fatherlessness, usually coupled with the collapse of fertility to levels which, if continued, spell demographic and social decline. Suddenly, developed nations are finding themselves unable to accomplish the great, simple task that every human society must do: bring young men and women together to marry and raise the next generation together.

The United States has in some ways been the leader in this retreat from marriage, but in other ways (especially in recent years) has shown signs of unusual, renewed vitality. We are the only Western nation we know of with a "marriage movement."¹⁰⁰ We are the only large developed nation to experience a sustained rise in fertility back to near-replacement levels.

The great task for American exceptionalism in our generation is to sustain and energize this movement for the renewal of marriage. We need to transmit a stronger, healthier, and more loving marriage culture to the next generation, so that each year more children are raised by their own mother and father united by a loving marriage, and so those children can grow up to have flourishing marriages themselves.

Creating such a marriage culture is not the job for government. Families, religious communities, and civic institutions-along with intellectual, moral, religious, and artistic leaders-need to point the way. But law and public policy will either reinforce and support these goals or undermine them. We call upon our nation's leaders, and our fellow citizens, to support public policies that strengthen marriage as a social institution. This nation must re-establish the normative understanding of marriage as the union of a man and a woman, intended for life, welcoming and raising together those children who are the fruit of their self-giving love, children who might aspire to marry and raise children of their own, renewing the lifecycle and extending the family tree from generation to generation.

In particular, we single out five areas for special attention:

1. Protect the public understanding of marriage as the union of one man with one woman as husband and wife.

The law's understanding of marriage is powerful. Judges should not attempt to redefine marriage by imposing a new legal standard of what marriage means, or falsely declaring that our historic understanding of marriage as the union of one man and one woman is rooted in animus or unreason. Nor should the law send a false message to the next generation that marriage itself is irrelevant or secondary, by extending marriage benefits to couples or individuals who are not married.

• Resist legislative attempts to create same-sex marriage; use legislative mechanisms to protect the institution of marriage as a union of a male and a female as sexually complementary spouses. We urge our elected officials to support legislation that will properly define and promote a true conception of marriage. Likewise, we call on our elected representatives to vote against any bills that would deviate from this understanding of marriage. (We do not object to two or more persons, whether related or not, entering into legal contracts to own property together, share insurance, make medical decisions for one another, and so on.)


• End the court-created drive to create and impose same-sex marriage. We call on courts directly to protect our understanding of marriage as the union of husband and wife. Radical judicial experiments that coercively alter the meaning of marriage are bound to make creating and sustaining a marriage culture more difficult, especially when such actions are manifestly against the will of the American people.


• Refuse to extend marital legal status to cohabiting couples. Powerful intellectual institutions in family law, including the American Law Institute, have proposed that America follow the path of many European nations and Canada in easing or erasing the legal distinction between marriage and cohabitation. But we believe it is unjust as well as unwise to either (a) impose marital obligations on people who have not consented to them or (b) extend marital benefits to couples who are not married.

2. Investigate divorce law reforms.

Under America's current divorce system, courts today provide less protection for the marriage contract than they do for an ordinary business contract. Some of us support a return to a fault-based divorce system, others of us do not. But all of us recognize that the current system is a failure in both practical and moral terms and deeply in need of reform. We call for renewed efforts to discover ways that law can strengthen marriage and reduce unnecessarily high rates of divorce. We affirm that protecting women and children from domestic violence is a critically important goal. But because both children and adults in non-marital unions are at vastly increased risk for both domestic violence and abuse, encouraging high rates of family fragmentation is not a good strategy for protecting women from violent men, or children from abusive homes.Among the proposals we consider worthy of more consideration:

• Extend waiting periods for unilateral no-fault divorce. Require couples in nonviolent marriages to attend (religious, secular, or public) counseling designed to resolve their differences and renew their marital vows.


• Permit the creation of prenuptial covenants that restrict divorce for couples who seek more extensive marriage commitments than current law allows. (The enforcement by secular courts of Orthodox Jewish marriage contracts may provide a useful model).


• Expand court-connected divorce education programs to include divorce interventions (such as PAIRS or Retrouvaille) that help facilitate reconciliations as well as reducing acrimony and litigation.


• Apply standards of fault to the distribution of property, where consistent with the best interests of children. Spouses who are abusive or unfaithful should not share marital property equally with innocent spouses.


• Create pilot programs on marriage education and divorce interventions in high-risk communities, using both faith-based and secular programs; track program effectiveness to establish 'best practices' that could be replicated elsewhere.

3. End marriage penalties for low-income Americans.

To address the growing racial and class divisions in marriage, federal and state governments ought to act quickly to eliminate the marriage penalties embedded in means-tested welfare and tax policies-such as the Earned Income Tax Credit (EITC) and Medicaid-that affect couples with low and moderate incomes.¹⁰¹ It is unconscionable that government levies substantial financial penalties on low income parents who marry.Other approaches to strengthening marriage for couples and communities at risk include public information campaigns, marriage education programs, and jobs programs for low-income couples who wish to get and stay married. Experimenting with such new initiatives allows scholars to determine which measures are best suited to the task at hand.¹⁰²

4. Protect and expand pro-child and pro-family provisions in our tax code.

5. Protect the interests of children from the fertility industry.

Treating the making of babies as a business like any other is fundamentally inconsistent with the dignity of human persons and the fundamental needs of children. Among the proposals we urge Americans to consider, following in the footsteps of countries like Italy and Sweden:

• Ban the use of anonymous sperm and egg donation for all adults. Children have a right to know their biological origins. Adults have no right to strip children of this knowledge to satisfy their own desires for a family.


• Consider restricting reproductive technologies to married couples.


• Refuse to create legally fatherless children. Require men who are sperm donors (and/or clinics as their surrogates) to retain legal and financial responsibility for any children they create who lack a legal father.

The most important changes underwriting the current U.S. fertility industry are not technological; rather they are social and legal. Both law and culture have stressed the interests of adults to the exclusion of the needs and interests of children. Parents seeking children deserve our sympathy and support. But we ought not, in doing so, deliberately create an entire class of children who are deprived of their natural human right to know their own origins and their profound need for devoted mothers and fathers.

In sum, families, religious communities, community organizations, and public policymakers must work together towards a great goal: strengthening marriage so that each year more children are raised by their own mother and father in loving, lasting marital unions. The future of the American experiment depends on it. And our children deserve nothing less.