The most incisive guide to issues facing the American family today . . . An invaluable resource for anyone wishing to stay on the cutting edge of research on family trends.

-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia 

Balancing Realism and Idealism in American Family Law


Lynn D. Wardle


There is usually a gap of some size—large or small—between the realities of life and the ideals of the law. The ideal in family law is to foster, support, and protect healthy, happy, and effective families. The reality, however, sometimes falls short of that ideal. Sadly, American family law sometimes impedes family success and frustrates the well-being of families and family members.

The diversity of individual experiences, beliefs, and social realities are seldom fully reflected in the law. Some disparity is unavoidable because the law must establish a clear, uniform rule applicable to all members of society, including those who hold and wish to observe other (minority) standards. Viewpoints concerning family life and family values vary substantially among the members of any society. Thus, normal individual diversity often impedes or frustrates the pursuit of social and legal uniformity, especially in family law. 

Lawmakers generally seek to enact laws that reflect the values and experiences of the majority. Inevitably, the views and values of some other members of society, especially minorities and dissenters, are inadequately reflected in—or altogether omitted from—the law. That is how democracy works—by respecting and implementing the will of the majority. However, mature democracies also value and seek to protect the rights and interests of minorities, as well. 

One way that the rights and interests of minorities are protected in the United States is through the federal structure of government. The Constitution of the United States of America grants certain limited governmental authority and power to the national government, but it reserves other governmental authority and power to the state governments—including the power and authority to regulate family relations. That means that, within broad constitutional boundaries, each state determines what its own family laws and policies will be, and they may differ, sometimes markedly, from the family laws and policies of the other states. That also means that there is no (or very little) uniform American (i.e., national) family law, but rather dozens of different family laws. 

Discrepancies also exist in American family law between ideals and realities, between majority and minority values, and between aspirations and actualities. The law generally seeks to facilitate and to promote the aspirational, the exemplary, and majoritarian ideals in human life, activities, and relationships. However, the law also strives to protect all persons, especially vulnerable minorities, from dangerous and harmful activities, individuals, and majorities. Sometimes efforts to accommodate minorities frustrate legitimate aspirations of the majority. So diversity in American family law is a guaranteed by-product of the structure of the American government and the constitutional division of governmental power and authority between and among the national government and the state governments.

American marriage laws, for example, vary from state to state, sometimes significantly. Different communities pursue different goals, and they strike different balances between the realistic and the idealistic in their family laws. To unfamiliar observers, those differences may appear to indicate confusion. To the well-informed, however, the differences in American family laws are evidence of tolerance, inclusion, diversity, and freedom.

Family law regulates two categories of relationships: spousal (and quasi-spousal) relations and parent-child relations. Family law covers three periods of time: the creation of the relationship, the ongoing relationship, and the dissolution and post-dissolution of the relationship.

 

The Gap Between the Real and the Ideal in American Family Law

One of the great and persistent jurisprudential questions is whether the law primarily reflects social reality and values, or promotes certain ideals and aspirational standards.[1] It is commonly said that law emerges out of custom, and, hence, law generally can be expected to reflect social norms.[2] Legal rules and sanctions sometimes can reinforce social values, and they can also generate and sustain new social norms.[3] 

For example, Professor Richard D. Schwarz found that:

"the threat of sanction can deter people from violating the law, perhaps in important part by inducing a moralistic attitude toward compliance. This mechanism seems particularly significant when those subject to sanction threat are not trained by, and associated with, an authoritative institution other than the state. The threat of punishment appears, however, to produce some resistance to compliance. Such resistance can be minimized through alternative techniques of securing compliance, such as the utilization of appeals to conscience and to a sense of civic responsibility, motives which can be more powerful than sanction threat in increasing compliance with the law."[4]

However, there is often disparity between the desirable and the actual.  For example, most people desire to be successful—in the sense of having adequate material resources, stable marriages, and happy families. Social scientists have identified very clearly the “success sequences” that most often results in financial and family well-being. As W. Bradford Wilcox and Wendy Wang have reported: “Millennials are much more likely to flourish financially if they follow the ‘success sequence’—getting at least a high school degree, working full-time, and marrying before having any children, in that order.”[5] Yet in recent years the “success sequence” has not been popular. The rate of childbearing before marriage and before completing basic education has increased or plateaued at historically high levels.[6] This portends significant individual and social problems. For example, Census Bureau researchers report that “‘women with a nonmarital first birth are both less likely to ever marry and less likely to remain married if they do marry,’ . . . . Childbearing outside of marriage is also linked to higher risks for poverty, lower educational attainment and family instability.”[7]

Some commentators have seen significant competition and conflict between formal laws and informal rules and customs. For instance, anthropologist Stanley Diamond argued that instead of “law and order” in society, the more common reality is “law versus order.” He wrote that:

"We live in a law-ridden society; law has cannibalized the institutions which it presumably reinforces or with which it interacts. . . . [W]e are encouraged to assume that legal behavior is the measure of moral behavior. . . . Efforts to legislate conscience by an external political power are the antithesis of custom: customary behavior comprises precisely those aspects of social behavior which are traditional, moral and religious—in short, conventional and nonlegal. Put another way, custom is social morality. The relation between custom and law is basically one of contradiction, not continuity."[8]

So there are institutional as well as cultural reasons for the gap between law and moral order. Law and custom may compete with each other as often as (or more often than) they complement each other.

 

Some Diversity in Family Law Reflects Differences Between Communities

In the United States of America, there is not “one” body of family law, but at least 51 (arguably 57) different family law systems, each with its own diverse, substantive family laws.[9] The Constitution of the United States divides governmental power between the national government and the state governments.[10] That constitutional allocation of power (preserving the state authority to regulate domestic relations) reflects the general belief that state lawmakers are closer to the people and better able than federal judges and federal legislators to identify and protect the values and policy preferences of the citizens whose lives and domestic relationships will be regulated by those laws.[11] It is also generally believed that state courts and agencies are better able to grasp, interpret, and properly apply domestic relations laws than are federal judges and agencies, who generally have much less experience and expertise in family law.[12] Thus, most family law is state law, not federal law, and family law often varies (sometimes quite dramatically) from state to state.

However, some issues­—including some family law issues—fall within the jurisdiction of both the state governments and the national government. Thus, almost every year the Supreme Court of the United States decides a very small number of cases involving family law.[13] For example, out of nearly 7,000 petitions for review that the Supreme Court receives each term, it hears approximately 70 cases.[14] In a recent term of the Supreme Court (the October 2016 Term, which concluded in late June 2017),[15] the Supreme Court rendered opinions in only 70 cases, and only 3 of those cases dealt with some aspect of family law.

 

Ideology vs. Reality

Two of those cases heard recently by the Supreme Court concerned federal laws that implicated family relations. In Howell v. Howell,[16] the Court unanimously (7+1) ruled that a state court may not order a military veteran to indemnify his divorced spouse for the loss of some of her portion of his (federal) military retirement pay that was awarded to her upon divorce, when his retirement benefit was reduced due to his later election of disability pay. That case concerned the regulation of federal military benefits, which is governed exclusively by federal law, so the state court order that contravened the federal law was invalidated by the Supreme Court. 

In Sessions v. Morales-Santana,[17] the six-justice majority (per opinion of Justice Ginsburg) held that gender-based differential in the federal law governing acquisition of U.S. citizenship of a child born abroad was unconstitutional. The U.S. law allowed for transmittal of citizenship if the mother had lived in the U.S. for one year before the birth of the child, but required ten years of pre-birth residence for the father. Again, the issue concerned a federal law (regulating citizenship) rather than traditional state-regulated family law.

Only one Supreme Court case decided in the 2016 term concerned a state family law. In Pavan v. Smith,[18] the Supreme Court per curiam (6-3) struck down an Arkansas birth certificate law requiring the name of the mother’s male spouse to appear on the child’s birth certificate—regardless of his biological relationship to the child—but not allowing a female same-sex spouse of the mother to be named on the birth certificate. The majority of the Court focused narrowly on marital status and gender equality, and invalidated the differential treatment of male and female spouses with no discussion of the dual-gender reality of human reproduction. The Court concluded that mere biological differences relevant to human reproduction do not justify a difference in the legal treatment of male and female partners of birth mothers for the purpose of identifying parentage on birth certificates. The majority held that the federal government’s suggested rationales for the gender difference did not survive heightened scrutiny. Critics might ask whether the Court gave ideology priority over biology, and whether the majority’s preference for a politically correct relationship or ideal trumped respect for the reality of dual-gender human reproduction. But the holding in Pavan was clear (as clear as it was intellectually debatable). 

That Supreme Court decision in Pavan illustrates one tension in law: There is persistent tension between the law’s need to acknowledge and reflect social reality and the law’s aspiration to promote certain ideals, values, or principles. Perhaps the absolutism of the gender-equality goals of the Pavan majority weakens the justification for the result reached.

In one sense, the Court’s recent Pavan ruling seems unremarkable compared to its ruling just three years ago in Obergefell v. Hodges.[19] In Obergefell the Court invalidated state laws barring same-sex couples from “marrying”; Obergefell mandated that all states and government agencies must allow and recognize same-sex “marriages.” Traditionally, marriage has created a legal presumption of parentage for the spouse of the birth mother, even if the spouse physically could not be the parent (i.e., the spouse was absent at the time of conception).[20] So by mandating the legalization of same-sex “marriage,” the Court cleared the path by which a same-sex partner could not only establish a full, legal marital relationship with a partner, but which would provide the basis for a parentage claim to children born to his or her same-sex spouse during the “marriage.”

In another sense, however, Pavan was a significant and controversial expansion of the ruling in Obergefell.[21] It would have been easy for the Court to distinguish the adult vertical relationship of parent/partner-child in Pavan from the horizontal, adult co-equal relationship involved in Obergefell. However, the majority of the Court in Pavan apparently wanted to extend the Obergefell principle of the equality of same-sex and opposite-sex relationships beyond the marriage context and into the parentage context. Of course, in reality, adult-adult relationships and adult-child relationships are not the same, and by simply equating them legally the Court seems to have ignored some very important state and social interests in what is best for children. Critics might suggest that children’s welfare was subordinated by the Pavan majority to the interests and preferences of same-sex adult partners.

These tensions are not new. For example, in his masterful article “The Seduction of Lydia Bennet: Toward a General Theory of Society, Marriage and the Family, Professor Scott FitzGibbon discussed the “system of rules and principles” that regulated “family, friendship, and social rank” in England in Jane Austen’s day.[22] He noted that: “Most societies operate in major part through the medium of obligation.”[23] When obligations are violated, “[s]ocieties often afford faculties for setting things straight.”[24] In Pride and Prejudice, Austen has Elizabeth say of Lydia’s unfortunate marriage to Mr. Wickham: “[H]ow little of permanent happiness could belong to a couple who were only brought together because their passions were stronger than their virtue.”[25] Perhaps the same might be said of many cohabiting non-marital and same-sex couples in America today.  The prospect that the results for the nation will be similar to the results of Lydia’s and Wickham’s marriage are concerning.

Marriage matters tremendously for society—especially for children and for those who will depend upon their support in the future. For example, college graduates generally earn much more, and have more successful lives and families than those who do not graduate from college.[26] And the evidence is irrefutable that children raised by married parents have much greater likelihood of both college graduation and of their own successful marriages. The Pew Research Center summarizes: “Among parents who live with a child under the age of 18, 89% of college graduates are married, compared with 64% of parents with less than a high school diploma and 70% of those with just a high school diploma.”[27]

So the benefits of marriage are not enjoyed equally by all Americans. As Jordan Weissman writes in The Atlantic: “When it comes to matrimony, the United States is two separate countries. There’s college-graduate America, where getting and staying married is still the norm. Then there’s the rest of America, where marriage rates are retreating and divorce is rampant.”[28] 

As Robert Pollak has explained: “College graduates—men and women—are using marriage as a ‘commitment device’ to jointly invest a lot in children . . .”[29] Likewise, Brookings Institute scholar Richard Reeves argues that today, American college graduates “are reinventing marriage as a child-rearing machine for a post-feminist society and a knowledge economy.”[30] 

Education also plays a huge difference in who stays married: “Researchers at the National Center for Health Statistics estimate that 78% of college-educated women who married for the first time between 2006 and 2010 could expect their marriages to last at least 20 years. But among women who have a high school education or less, the share is only 40%.”[31] Yet, sadly, in America and many other affluent Western nations:

"Marriage has been on the decline for decades, particularly for those with less education. At the same time, the share of non-marital births for the less educated has risen dramatically, and the likelihood of divorce remains significantly higher among those lacking a college degree than among those who have one."[32]

Lundberg and Pollak also comment on this retreat from marriage:

"Since 1950, marriage behavior in the United States has changed dramatically, though most men and women still marry at some point in their lives, they now do so later and are more likely to divorce. Cohabitation has become commonplace as either a precursor or an alternative to marriage, and a growing fraction of births take place outside marriage. . . . We’ve seen a retreat from marriage within all racial and ethnic groups and across the socioeconomic spectrum. But the decoupling of marriage and parenthood has been much less prevalent among college graduates."[33]

This is very important, because marriage matters for kids—and for those who will depend upon them (and their taxes/support) in the future.  In other words, marriage matters for all of society. Distinguished professor Sara McLanahan has concluded: “Children of single-parent families suffer measurable harm.”[34] She summarizes some of the evidence:

"Children who grow up with only one of their biological parents (nearly always the mother) are disadvantaged across a broad array of outcomes. . . . [T]hey are twice as likely to drop out of high school, 2.5 times as likely to become teen mothers, and 1.4 times as likely to be idle—out of school and out of work—as children who grow up with both parents. Children in one-parent families also have lower grade point averages, lower college aspirations, and poorer attendance records. As adults, they have higher rates of divorce. These patterns persist even after adjusting for differences in race, parents’ education, number of siblings, and residential location."[35]

So we have a serious problem to address. The decline and disintegration of marriage foreshadow serious troubles that will come upon all individuals and families in all of the societies where it occurs.

 

Reviving a Marriage Culture

We live in an imperfect world filled with imperfect people in imperfect communities, with imperfect marriages. However, even imperfect people have ideals and aspirations. With patience for the imperfections we all have and see, we must elevate our aspirations. For the welfare of families—including adults as well as their children and grandchildren—the law must reaffirm, reestablish, and convey clearly in laws and public policies the tremendous importance and great value of marriage.

The law must protect and facilitate fulfillment of the marriage aspiration—the desire of a man and a woman to unite in fidelity in a loving, intentional, life-long union to care for and support each other and their children. Yet how to do that seems to be a mystery.

The Universal Declaration of Human Rights famously declares that: “The family is the natural and fundamental group unit of society.”[36]  Clearly, it is recognized universally that families are enormously important for the well-being of individuals and of societies. The evidence is indisputable that families founded on marriage are the most secure, most happy, and the most successful. Marriage matters greatly for families; and for that reason marriage matters greatly for all nations, peoples, and societies.

The decline in marriage in America continues and is accelerating.  According to U.S. Census data, in the year 2000, 55% of American young adults ages 25-34 were married. Just nine years later that percentage had dropped to 44.9%.[37] Between 1965 and 2010, the rate of marriage for persons ages 25-34 fell for those with only high school or less education from about 85% to about 45%, and for those with a Bachelor’s degree or more from nearly 80% to just over 50%.[38] Professor W. Bradford Wilcox, director of the National Marriage Project at the University of Virginia, reports that between 1975 and 2013 the poverty rates for female householders with no spouse present were about six times higher than for married-couple families.[39] Yet, “the share of American adults who have never been married is at an historic high.”[40]

The decline in marriage and in support for marriage in America matters for all Americans. But the heaviest burdens and highest costs of those declines will afflict our children: “[K]ids raised in married-parent households are much less likely to grow up in poverty, more likely to do better in school, and more likely to move up the economic ladder even if they start out poor.”[41]

Yet if recent trends away from marriage in America and other Western nations continue, children, families, and our societies will continue to decline and suffer. On the other hand, if marriage is restored and a culture favoring marriage is rejuvenated, children, families, and society are likely to flourish and prosper in our once-favored nations.

Baroness Ruth Deech of the British House of Lords (formerly a distinguished family law professor and Principal at St. Anne’s College, Oxford) summarized the importance of marriage well when she declared that: “The best thing for children, as the statistics show, is to live with two married parents.”[42] Marriage “[n]ot only is . . . the safest environment for children, it provides a link to history, to previous generations and generations yet to come.”[43] Baroness Deech was also was correct when she declared: “It is marriage that makes all the difference.”[44]  

Marriage is the key. Marriage makes all the difference. It matters not only (though most powerfully) for children and their caregivers, but ultimately it matters for all members of all societies whose future welfare depends upon those children and their caregivers.

We must work to rebuild and revitalize the culture of marriage in our communities, nations, and societies. This will not be easy. But it is a task fitting for our generation to undertake. It is not merely an abstract ideal but is a realistic goal within our reach. If we can make any progress toward reviving marriage, that progress will ultimately benefit not only our own posterity, but also all of our societies, and all humanity.  

 

Dr. Lynn D. Wardle is the Bruce C. Hafen Professor of Law at J. Reuben Clark Law School, Brigham Young University. A version of this paper was presented at the 16th World Congress of the International Society of Family Law, Universiteit of Amsterdam, The Netherlands, July 25-29, 2017.

 


[1]     Cf. Richard D. Schwartz, “Law, Society, and Moral Order: Introduction to the Symposium,” Brigham Young University Law Review 721 (1980).; Lynn D. Wardle, “The Gap Between Law and Moral Order: An Examination of the Legitimacy of the Supreme Court Abortion Decisions,”  Brigham Young University Law Review 811 (1980).; Fernando E. Agrait, “In Search of a Role for the Legal System,” Brigham Young University Law Review 797 (1980).; Michael Diamond, “Law, the Problems of Poverty, and the ‘Myth of Rights,’” Brigham Young University Law Review 785 (1980). See further Lawrence M. Friedman and Stuart Macaulay, eds., “The Relationship of the Formal Legal System to the Less Formal and the Relationship of Both to the Private Sector of Society,” in Law and the Behavioral Sciences, 2nd ed. (Indianapolis: Bobbs-Merrill, 1977), 171-88. 

[2]     Cf. Roland Benabou and Jean Tirole, Law and Norms, National Bureau of Economic Research, November 2011, available at http://www.princeton.edu/~rbenabou/papers/NBER%20WP%2017579.pdf (accessed August 11, 2017); Cristina Bicchieri and Ryan Muldoon, “Social Norms,” Stanford Encyclopedia of Philosophy, March 1, 2011, availabe at https://plato.stanford.edu/entries/social-norms/, accessed August 11, 2017; see further Adamson E. Hoebel, The Law of Primitive Man (Cambridge: Harvard University Press, 1954).

[3]     Eric Posner, Law and Social Norms (Cambridge: Harvard University Press, 2002). 

[4]     Richard D. Schwartz and Sonya Orleans, “On Legal Sanctions,University of Chicago Law Review 34.2 (1967): 274-300.  

[5]     W. Bradford Wilcox and Wendy Wang, The Millennial success sequence: Marriage, kids, and the ‘success sequence’ among young adults, American Enterprise Institute, June 14, 2017, available at https://www.aei.org/research-products/working-paper/millennials-and-the-success-sequence-how-do-education-work-and-marriage-affect-poverty-and-financial-success-among-millennials/, accessed August 11, 2017. 

[6]     Cheryl Wetzstein, “Census: More first-time mothers give birth out of wedlock,” Washington Times, July 8, 2014, available at https://www.washingtontimes.com/news/2014/jul/8/census-more-first-time-mothers-give-birth-out-wedl/. (“The number of first-born U.S. babies born into a home with a married mother and father has fallen below 60 percent for the first time, the Census Bureau said Tuesday, while more than one in five first-born children are now born to cohabiting parents.”)

[7]     Ibid.

[8]     Stanley Diamond, “The Rule of Law versus the Order of Custom,” in In Search of the Primitive (New Brunswick: Transaction, 1981).

[9]     The United States of America includes 57 different semi-sovereign legal jurisdictions: the United States (federal government), the 50 states, the District of Columbia, and five dependent territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the Virgin Islands). Each American jurisdiction can and does create family law to some extent—all but the United States has jurisdiction to regulate family relations per se, and the United States has jurisdiction over many areas of human behavior that impact and influence family life and family laws. 

[10]   The Federalist Papers, No. 14 (Madison), Clinton Rossiter, ed. (New York: Penguin, 1961). 

      “[T]he general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic . . . . The subordinate [state] governments, which can extend their care to all those other objects which can be separately provided for, will retain their due authority and activity.”

[11]   Ibid. See also Lynn D. Wardle, “The Proposed Federal Marriage Amendment and the Risks to Federalism in Family Law,” The University of St. Thomas Law Journal 2.1 (2004): 137-98; Lynn D. Wardle, “DOMA: Protecting Federalism in Family Law,” The Federal Lawyer 45.2 (February, 1998): 30-35. 

[12]   See sources cited supra, note 11.   

[13]   Among the most notable recent Supreme Court family law decisions are: Adoptive Couple v. Baby Girl, 133 S.Ct. 1552 (2013) (declining to protect the paternal rights of a Native American biological father who never had custody); Kerry v. Din, 135 S.Ct. (2015) (rejecting wife’s claim that denial of visa to her Afghan husband violated due process); Obergefell v. Hodges, 135 S.Ct. 1039 (2015) (mandating same-sex marriage); Whole Woman’s Health v. Hellerstedt 579 U.S. ___ (2016) (invalidating Texas abortion regulations), and Pavan v. Smith, 582 U.S. ___ (2017) (requiring listing same-sex spouse of mother on birth certificate the same as opposite-sex spouses—discussed herein).

[14]   Elizabeth Slattery, “Overview of the Supreme Court’s October 2016 Term,” Heritage Foundation, September 20, 2016, available at http://www.heritage.org/courts/report/overview-the-supreme-courts-october-2016-term, accessed June 28, 2017.

[15]   Supreme Court Calendar, October Term 2016, available at https://www.supremecourt.gov/oral_arguments/2016TermCourtCalendar.pdf, accessed July 7, 2017.

[16]   581 U.S. ___, ___ S.Ct. ___ (May 15, 2017).  Justice Breyer delivered the opinion of the Court.

[17]   582 U.S. ___, ___ S.Ct. ___ (June 12, 2017).

[18]   582 U.S. ___, ___ S.Ct. ___ (June 26, 2017). 

[19]   135 S.Ct. 1039 (2015).

[20]   “The law has created the presumption that a child born to a married woman is legitimate, and has made it one of the strongest of presumptions. At one point . . . the presumption was conclusive if the husband was not impotent and was within the four seas, that is, was in England.” Homer H. Clark, Jr., The Law of Domestic Relations in the United States, 2nd ed., § 4.4 at 191 (Saint Paul, MN: West Academic Publishing, 1987). In English common law, Justice Edward Coke in 1626 promulgated the “Four Seas Rule” (extra quatuor maria) asserting that, absent impossibility of the father being fertile, there was a presumption of paternity that a married woman’s child was her husband’s child. That presumption could be questioned, though courts generally sided with the presumption, thus expanding the range of the presumption to a “Seven Seas Rule.” 

[21]   Justice Gorsuch declared: “[I]t seems far from clear what here warrants the strong medicine of summary reversal. Indeed, it is not even clear what the Court expects to happen on remand that hasn’t happened already. The Court does not offer any remedial suggestion, and none leaps to mind.” Ibid. at __, slip op. at 2 (Gorsuch, J., dissenting).

[22]   Scott T. FitzGibbon. “The Seduction of Lydia Bennet: Toward a General Theory of Society, Marriage, and the Family,” Ave Maria Law Review 4.2 (2006): 581-609., citing Jane Austen, Pride and Prejudice (1818, reprinted) (herein Pride and Prejudice).

[23]   Ibid. at 586.

[24]   Ibid. at 588. (“Lydia and Wickham set things straight by getting married.”) 

[25]   Ibid.

[26]   Tiffany Hsu, “College graduates earn 84% more than high school grads, study says,” Las Angeles Times, August 5, 2011, available at http://latimesblogs.latimes.com/money_co/2011/08/college-gradutates-pay.html, accessed August 15, 2017. (“On average, a doctoral degree-holder will earn $3.3 million over a lifetime, compared to $2.3 million for a college graduate and $1.3 million for those with a high school diploma.”); The Rising Cost of Not Going to College, Pew Research Center, February 11, 2014, available at http://www.pewsocialtrends.org/2014/02/11/the-rising-cost-of-not-going-to-college/, accessed August 15, 2017. (“college graduates ages 25 to 32 who are working full time earn more annually—about $17,500 more—than employed young adults holding only a high school diploma.”); see also Keith Griffith and Associated Press, “College graduates earn 56 PERCENT more than high school grads, claims new study, Daily Mail, January 12, 2017, available at http://www.dailymail.co.uk/news/article-4113486/Pay-gap-college-grads-record.html, accessed August 15, 2017.

[27]   Gretchen Livingston, “The links between education, marriage and parenting,” November 27, 2013, Pew Research Center, FactTank, available at http://www.pewresearch.org/fact-tank/2013/11/27/the-links-between-education-marriage-and-parenting/, accessed July 2017.

[28]   Jordan Weissman, “Marriage Stages a Comeback (but Mostly Just for College Grads), The Atlantic, February 7, 2014, available at https://www.theatlantic.com/business/archive/2014/02/marriage-stages-a-comeback-but-mostly-just-for-college-grads/283682/, accessed July 13, 2017, emphasis added.

[29]   Anne Kim, “Why Is Marriage Thriving Among (and Only Among) the Affluent?” Washington Monthly, March/April/May 2016, available at http://washingtonmonthly.com/magazine/maraprmay-2016/why-is-marriage-thriving-among-and-only-among-the-affluent/, accessed July 13, 2017. See also Shelly Lundberg and Robert A. Pollak, “The Evolving Role of Marriage: 1950-2010, The Future of Children 25.2 (fall 2015).

[30]   Ibid.

[31]   Wendy Wang, “The link between a college education and a lasting marriage, Pew Research Center, FactTack, December 4, 2015, available at http://www.pewresearch.org/fact-tank/2015/12/04/education-and-marriage/, accessed July 11, 2017. (“While the research does not address reasons these marriages last longer, we do know college-educated adults marry later in life and are more financially secure than less-educated adults.”)

[32]   Ibid.

[33]   Lundberg and Pollak, “The Evolving Role of Marriage: 1950-2010.” (See note 29.)

[34]   Sara McLanahan, “The Consequences of Single Motherhood, The American Prospect, summer 1994, available at http://prospect.org/article/consequences-single-motherhood, accessed June 28, 2017.

[35]   Ibid.

[36]   Universal Declaration of Human Rights, G.A. Res. 217A, at 76, art. 28, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (December 12, 1948) [hereinafter Universal Declaration of Human Rights, art. 16]; see also International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), Annex, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316/Annex (December 16, 1966). (“The widest possible protection and assistance should be accorded the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.”)

[37]   Mark Mather and Diana Lavery, “In U.S. Proportion Married at Lowest Recorded Levels, Population Reference Bureau,” available at http://www.prb.org/Publications/Articles/2010/usmarriagedecline.aspx, accessed July 14, 2017.

[38]   Ibid.

[39]   W. Bradford Wilcox, “Married Parents: One Way to Reduce Child Poverty, Institute for Family Studies, June 21, 2017, available at https://ifstudies.org/blog/married-parents-one-way-to-reduce-child-poverty, accessed June 28, 2017.

[40]   Wendy Wang and Kim Parker, “Record Share of Americans Have Never Married, Pew Research Center, September 24, 2014, available at http://www.pewsocialtrends.org/2014/09/24/record-share-of-americans-have-never-married/, accessed August 11, 2017.

[41]   Kim, “Why Is Marriage Thriving Among (and Only Among) the Affluent?”

[42]   Ruth Deech, “Couples don’t need the law to tell them how to live together,” The Guardian, November 21, 2009, available at https://www.theguardian.com/commentisfree/2009/nov/22/ruth-deech-marriage-cohabitation-children, accessed August 15, 2017.

[43]   Ruth Deech, “Cohabitation and the Law,” Transcript, Gresham College, November 17, 2009, available at https://www.gresham.ac.uk/lectures-and-events/cohabitation-and-the-law, accessed  May 1, 2017. (“Research tells us that cohabitants have different perceptions of the union: the man normally does not assume commitment until he has made a clear decision about their future together, whereas the woman will see it in the fact of her moving in with him.”); see also Patrick Fagan, The Child Abuse Crisis: The Disintegration of Marriage, Family, and the American Community, The Herritage Foundation, May 15, 1997, available at http://www.heritage.org/marriage-and-family/report/the-child-abuse-crisis-the-disintegration-marriage-family-and-the, accessed August 15, 2017. (“The safest family environment for a child is a home in which the biological parents are married.”)

 

[44]   Baroness Deech, Marriage-Debate, House of Lords debates, February 10, 2011, accessed March 14, 2011. See further Jessica  Elgot, “We must prioritise saving marriage, says Deech,” The Jewish Chronicle, February 10, 2011, available at http://www.thejc.com/news/uk-news/44964/we-must-prioritise-saving-marriage-says-deech (accessed May 4, 2015).