The dynamics of the American family have changed considerably in the past few decades, and a new report from the American Law Institute states that it is time for the courts to catch up with society when it comes to dealing with families.
The controversial Principles of the Law of Family Dissolution tackles the issue of what to do when families break up—in a 21st-century manner that’s upsetting critics.
“Responsive to the enormous changes in society that have taken place over a half century during which divorce rates climbed and the traditional roles of men and women were challenged, this innovative volume moves beyond the traditional formulations that were often framed in such general terms as to give nearly unbounded discretion to the decisionmakers charged with implementing them,” the ALI said on its Web site. “It makes a major contribution to the better administration of justice in an area too often marked by inequity.”
The suggestions are not binding but merely seek to influence policymakers and judges.
The controversy lies in the section where the ALI sets forth that “cohabiting domestic partners, both heterosexual and gay, should be treated the same as married couples should they choose to end their relationship,” ABCNEWS.com reported. “Child-custody decisions would not consider a parent’s sexual orientation, and long-term live-in partners could owe each other alimony.”
David Blankenhorn, author of Fatherless America and president of the Institute for American Values, said in a release that he is planning a rival conference of legal scholars in March to draft a rebuttal to the ALI proposal.
“Anyone who cares about the state of marriage, which is weak enough already, if you want it to become weaker still, knock away legal protections marriage enjoys,” Blankenhorn said.
The ALI’s approach is a “seriously flawed attempt to redefine families and their ‘dissolution’ in the same clinical, objective way previously utilized to dissolve businesses and prosecute criminals,” read a release on the Center for Reclaiming America Web site.
Al Knight recently wrote in his weekly Denver Post column:
“What the ALI wants the nation to do is rethink marriage and divorce and recognize specific cultural changes that have occurred, especially the increase in out-of-wedlock births; the increase in cohabitation outside of marriage by both heterosexual and homosexual couples; and formation of what it calls ‘close relationships’ that in some way resemble family units.”
Aside from the ALI report, Americans are generally divided on these issues.
A May Gallup poll showed that 46 percent of Americans approved of same-sex civil unions. About half said homosexual relations should be legal and that “being gay” should be acceptable. A little more than half of those polled said they believed homosexuality was morally wrong.
According to the U.S. Census Bureau, half of all first marriages end in divorce, yet nine in 10 Americans are expected to marry at least once in their lives.
“Our job is the law. The task we were given is to figure out what do you do when the family breaks down,” Grace Ganz Blumberg, a law professor at UCLA Law School, told ABCNEWS.com. “We don’t encourage cohabitation. We’re not alternative lifestyle people. We’re not promoting homosexuality.”
Mark Ellman, law professor at Arizona State University College of Law and chief reporter of the ALI guidelines, told ABCNEWS.com: “It’s wrong to think that all law has as its underlying basis social engineering. A lot of law is designed to produce a fair result given what the historic facts are.”
The ALI guidelines only apply to relationships that already exist and that dissolve, Ellman told ABCNEWS.com. They don’t address recognition of same-sex or live-in partnerships—and therefore they do not promote or discourage any type of relationships.
Jodi Mathews is BCE’s communications director.