The Tie That Binds

Fidelity to Children—Not to Spouses—May Be a New Way of Approaching Family Policy

By June Carbone

Hester Prynne, American literature's most notable single mother, wore a scarlet letter advertising her deviation from her society's family values. Parents of her generation provided for their children, first and foremost, by marrying and staying married. For Hester and others who did not, the consequences could be Draconian.

Although the idea of reviving the scarlet letter today generates occasional enthusiasm from politicians or the pulpit, the thrust of modern family law has been the moral deregulation of the family. University of Michigan Law Professor Carl Schneider, in a series of thoughtful articles, has argued that family law has not only eschewed the policing of sexual behavior, but it has also renounced any claim to regulate the family in the name of morality, sexual or otherwise.

Schneider attributes at least part of the reluctance to pass moral judgment on liberalism, not in the popular sense of the term but in the classic sense of a limited state that does not require any particular set of beliefs from its citizens. The liberal tradition, Schneider observes, "holds that the state should be neutral among conceptions of the good, so that citizens may follow their own understandings of it. On this view, the state has no legitimate way of choosing standards for evaluating whether a couple is better off married or ought to stay married."

Liberal Virtues
William Galston—President Clinton's first domestic policy advisor and a major architect of the administration's early welfare proposals—challenges Schneider's account of liberalism. His 1991 book, Liberal Purposes, argues that the liberal tradition is not value-neutral.

Central to Galston's efforts is an articulation of liberal virtues. His list of virtues, like most such lists, is unobjectionable, if not bland. He identifies virtues associated with liberal society (independence, tolerance), liberal economy (industry, delay of gratification, adaptability), liberal politics (citizenship, leadership, courage, law-abidedness, loyalty), and individual excellence.

Galston believes that society should promote these virtues and the institutions—such as families, schools, churches, the legal system, political leaders, and the media—that foster them. He devotes special attention to the family, arguing:

From the standpoint of economic well-being and sound psychological development, the evidence indicates that the intact, two-parent family is generally preferable to the available alternatives. It follows that a prime purpose of sound family policy is to strengthen such families by promoting their formation, assisting their efforts to cope with contemporary economic and social stress, and retarding their breakdown whenever possible.

For Galston, family structure is less a fundamental moral issue than a means to an end—the best way to instill virtue in the next generation. He therefore distinguishes between families with children and those without.

For the latter, "principles of individual freedom and choice may be most appropriate"; but in families with children, "moral categories such as duty, continuing responsibility, and basic interests come into play." Galston therefore advocates, for example, a "braking" mechanism requiring people to pause for reflection before divorcing that would apply only to families with children.

The Parental Bond
This approach is a long way from the scarlet letter. In the older ideal, the family was defined by marriage, and marriage was defined by sexual fidelity. The law enforced these promises and, indeed, viewed marital infidelity as an indicator of character that could affect custody, employment, and presidential bids.

In the new order, such promises are to be reconciled with "principles of individual freedom and choice." It is the couple's obligations to their children that stand in the place of sexual fidelity as the bond that holds the family together. All of Galston's proposals involve the use of the state to police parental responsibility toward children. Within the family, parenthood, not partnership, is the foundation of Galston's moral order.

The difficulty is that Galston's project requires linking public policy concerns to individual behavior at a time when older norms have given way and there is no consensus on their replacement. To understand the problem, it is useful to compare Galston to Martha Fineman, another family theorist, who shares his emphasis on the centrality of provision for children without his embrace of the two-parent family.

Fineman argues that any association between children's well-being and the two-parent family is the result of self-fulfilling prophesy. Children need food, clothing, shelter, love, and affection. The nuclear family meets those needs by dividing responsibility between homemaking mothers and breadwinning fathers, but it is not the only way to ensure that these basic needs are met.

Many societies recognize nurturing roles for a host of adults (godparents, grandparents, aunts, uncles, and the masters of apprentices) or provide for families' material needs in ways that are not so dependent on a single breadwinner.

Fineman argues that the only constant is children's need for nurturance and support from whoever cares for them. In her view, efforts to promote the two-parent family—whether in the form of joint custody or welfare cuts—often work to children's detriment. During an age in which even Galston concedes that the state can have only a marginal effect on the growth in single-parent families, Fineman argues that children's interests lie in making two biological parents less, rather than more, critical to their well-being.

Is the Two-Parent Family Ideal?
At this point, the dispute between Galston and Fineman becomes empirical. Galston cites "a mountain of evidence" linking the drug crisis, the education crisis, and the problems of teen pregnancy and juvenile crime to broken families; Fineman challenges the studies' validity and their ability to establish a causal relationship.

Galston claims that government action can strengthen the two-parent family to the benefit of children; Fineman argues that such intervention is more likely to worsen their lot. Neither attempts a full evaluation of the growing, and sometimes conflicting, body of social science data; but, even if either did, such an evaluation could not fully resolve their conflict over the efficacy of alternative approaches.

Their dispute remains empirical, in part because Galston's liberal defense of the two-parent family does not appeal to overarching ethical or moral claims. In Liberal Purposes, Galston defines himself as a "functional traditionalist," that is, as a person who makes moral claims not because they represent some inherent righteousness but because they work. He draws a distinction between his position and "intrinsic traditionalism," which

is crystallized in sentiments in the form 'X' is unnatural, disgusting, ungodly (or what-ever)' and moves directly to the proposition that anything judged innately unacceptable by such standards may be legally prohibited. The second form of traditionalism, which I call functional, rests its case on the asserted links between certain moral principles and public virtues or institutions needed for the successful functioning of a liberal community.

So, for example, an intrinsic traditionalist might deplore divorce as a violation of divine law whereas a functional traditionalist might object to it on the grounds (for which considerable empirical evidence can be adduced) that children in divorced families tend to suffer kinds of economic and psychological damage that reduce their capacity to become independent and contributing members of the community.

Public Policy and Individual Morality
Galston's ethical rationale is utilitarian: Public policy should promote the greatest good for the greatest number. But his problem is that utilitarian reasoning does not translate neatly into individual morality.

A cogent example is the case of Crystal Chambers. Chambers, in her early 20s, was an arts-and-crafts instructor with Girls Club of Omaha. Girls Club insisted that all of its employees act as role models for the participants. When Chambers, who was unmarried, became pregnant, she was fired.

Chambers sued, alleging discrimination on the basis of pregnant status and race (both she and 90 percent of the Girls Club participants were African American, and nonmarital births are more common and more accepted in the African American community). The court sided with Girls Club, deciding that its role model requirements were bona fide occupational qualifications that justified the discharge.

Several feminist jurisprudence classes at Santa Clara University were asked to evaluate this case. Most of these students were about the same age as Chambers, and a majority were women. They found the emphasis on Chambers' marital status inappropriate.

Rather, they emphasized that she was different from her teenage charges because she was an adult. They noted with some irony that she was financially able to support a child, but only because of the job that had been imperiled by the pregnancy.

The students did express a degree of moral judgment about Chambers' decision to bear the child, but it tended to be tied to her ability to provide for the baby, emotionally and materially, rather than to her status as an unmarried parent.

The students' reasoning is surprisingly close to Galston's, even as it reaches a different conclusion. Both premise parental responsibility and moral decision making on ability to care for the child. They disagree on what that requires, and the single greatest element of disagreement is on the importance of fathers.

Galston's emphasis on the two-parent family—independent of gender roles, sexual morality, financial security, or emotional maturity—ultimately rests on the conviction that a mother cannot adequately raise a child without first ensuring a father's participation.

The jurisprudence students disagree, both because they place less importance on fathers and because they place greater value on their—and Crystal Chambers'—ability to reach their own decisions. Even if they were to share Galston's preference for two-parent families, they would not agree that such a conclusion compels Crystal Chambers to elect abortion, adoption (or, for that matter, chastity) over single parenthood.

By the end of Liberal Purposes, Galston has not bridged the cultural divide. We are left with the question: Is it possible to use the idea of commitment to children, which Galston shares with Fineman and the jurisprudence students, to rewrite a code of parental conduct capable of reconciling their deep disagreements?

June Carbone is a professor of law at Santa Clara University and a member of the Markkula Center for Applied Ethics Steering Committee. She was the principal organizer of the Center's 1995 conference: Ethics, Public Policy, and the Future of the Family. Proceedings from that conference were printed in the Santa Clara Law Review, which is available from the Center for $20.

This article is adapted from Carbone's upcoming book, From Partners to Parents: The Second Revolution in Family Law.

Further Reading

Fineman, Martha. The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies. New York: Routledge, 1995.

Galston, William A. Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State. Cambridge: Cambridge University Press, 1991.

Schneider, Carl E. ÒMoral Discourse and the Transformation of American Family Law.Ó Michigan Law Review, 83 (1985).