by Martha Albertson Fineman
“America is a deeply divided nation. We differ on such basic issues as how we should order our lives and the role of society and its institutions in shaping human behavior. We have divergent views on the importance of duty and obligation as contrasted with liberty and individuality. Various traditions, religious, cultural and otherwise, have produced very different and as strongly held beliefs. Caught in the cross hairs of this diversity is the American family.
The American family has changed dramatically, particularly over the past four decades, and these changes are reflected both in modern family law and in contemporary movements to alter that law. Social movements have organized around these changes that have goals that are in stark opposition to each other: one group seeking to use law to expand our ideas about the family and provide more people the benefits of family status, the other mobilizing to remove innovations and steer society back to the more exclusive (and excluding) ―morally-mandated‖ traditional family. Representing polar opposites in this struggle are the feminist approaches to family law reform, which is individualistic and rights-centered and fundamentalist rhetoric, which is steeped in religious imagery, symbols, and metaphors.
Our laws governing the American family emerged from, and thus reflect, a specific religious tradition. Some still see the family as religiously or divinely ordained and, therefore, unchangeable. Duties and responsibilities are set and established by an order higher than the individual, even superior to the state. In contrast, others see the family as based on individual expressions of love and happiness, an institution shaped thorough law and policy and, therefore, subject to manipulation and redefinition, certainly to evolution and change.
Those who think of family primarily in terms of individual happiness and satisfaction treat decisions such as whether to marry or not; engage in sexual relations or not and with whom; bear children or not, with or with out a partner-parent, as matters for individual and private determination unfettered by the imposition of majoritarian morality. It is not that an idea of family is unimportant to those who value the individual happiness over traditional duty. Rather the family is not viewed as an unalterable historic given, but as malleable, susceptible to social shaping and adjustment – an institution that can and should be adapted to reflect shifts in societal and individual preferences. Not surprisingly, those who hold this view tend also to believe that the laws that address marriage should do so separate from its religious origins. Accordingly, marriage is discussed primarily as an economic and social set of relationships, rather than as a sanctified status reflecting some divine purposes for the individuals involved.
On the other side of the cultural divide are those who hold deeply ingrained religious conceptions of the family. Marriage has theological significance — it is the foundation of the family and the family is both a reflection of divine order and the foundation of society. Consistent with its primary purpose, which is reproduction, marriage is the physical and spiritual joining of one man and one woman through a holy vow taken before God and man. Sacred texts reveal how family members should function in relation to each other. There is gender complementarity between husband and wife, as well as father and mother, with each sex having distinct, natural roles to play.
Hierarchies are established, placing wives and children in obedient subservience to the head of the family.
It sounds a bit antiquated to describe the American family in such a religious manner, particularly in a law review situation. However, while it is true that the United States is a modern and theoretically secular state, it is also a society in which marriage is far more important and politicized than it is in other societies. In thinking about the limits of family law reform in this society, it is also important to recognize that religion is far more central in our political discourse and policies than is true in many other Western democracies, particularly the European states. A distinction based on explicit mobilization of religious imagery and norms in political and legal rhetoric is found even in comparison with Canada and England, countries with which we share common legal and cultural history. In other contemporary advanced countries the rhetoric of international human rights norms now form the explicit background for discussions of domestic policies and articulation of governmental obligations. In the family context, in a very real political sense, human rights norms have displaced historic ideas about family hierarchy and traditional roles.
By contrast, in the United States resistance to human rights as an overarching measure for assessing internal law and policies seems particularly pronounced in regard to gender, sexuality, and family issues. Just as religious doctrines shaped our early cultural and social understanding of the American family, religious mandates inform the contemporary ―family values‖ through which some argue today what is normal and what is deviant, as well as defining appropriate family roles for men, women, and children.
In addition, it is important to realize that it is not only that we see ourselves as a traditional or conservative people that has deterred our acceptance of the concept of universal human rights as fully as other societies. Equally important is the fact that we tend to see our constitution as both superior and primary in defining American rights and responsibilities. The family is not mentioned in that document, which is focused on individual rights against governmental excesses and abuses. Federalism has mandated that the laws governing the formation and functioning of the family are appropriately the subject of local and individual state legislative and judicial concern. When family relations have been brought before the Supreme Court, they are most likely treated as individual liberty or equality claims and resolved as such. Situations not susceptible to such an approach are either cloaked in the doctrine of family privacy or remanded back to the local judiciary for resolution. The resulting localization and fragmentation of family laws also impedes a coherent and focused approach to reform. There is no national family law with coherent norms and principles that can serve as a unified philosophy with which to engage and critique the backlash that has been mounted against recent reforms under the rhetoric of family values and the need to return to the natural family.”
See more here: https://ssrn.com/abstract=1424965 or http://dx.doi.org/10.2139/ssrn.1424965