RECONCEIVING THE FAMILY Phần 7 docx

P1: KAE 0521861195c16 CUFX006/Wilson 0 521 86119 5 June 3, 2006 3:49 Marriage Matters 323 Young American adults continue to describe a good marriage as one of their most important life goals 106 and believe that marriage confers a wide range of private and public benefits. 107 The evidence justifies their enthusiasm. Those who are married live longer and are less likely to become disabled than the unmarried; they get more sleep, eat more regular meals, visit the doctor more regularly, and abuse addictive substances less frequently. 108 Even after controlling for age, married men earn more than either sin- glemen or cohabitants, 109 and they are less likely to lose their earnings through com- pulsive gambling. 110 Married couples also have a higher savings rate and thus accrue greater wealth than the unmarried. 111 Married individuals rate their happiness and mental health more highly than the unmarried. 112 They experience less domestic violence and greater physical security. 113 Although a high divorce rate, rising rates of cohabitation, and later marriage have all weakened both the stability and status linked with marriage, 106 See Barbara Dafoe Whitehead & David Popenoe, Changes in Teen Attitudes Toward Marriage, Cohabita- tion and Children 1975–1995 (Nat. Marriage Project Next Generation Project), at http://marriage.rutgers.edu/ Publications/pubteena.htm (showing that respondent teenagers overwhelmingly reported that they would marry and approximately three-fourth reported that a good marriage is “extremely important”). 107 See Kelly Raley, Recent Trends and Differentials in Marriage and Cohabitation, in TheTies That Bind, supra note 18, at 34 (reporting that most young adults age 20–29 tend to believe that they would be happier, “more economically secure, have more emotional security, a better sex life, and a higher standard of living if they were married”). 108 See Waite & Gallagher, supra note 25,at47–64 (summarizing research). However, the evidence is conflicting on whether the married rate their health more highly than the unmarried. See Linda J. Waite, Trends in Men’s and Women’s Well–Being in Marriage, in TheTies That Bind, supra note 18,at368, 375–9; Zheng Wu et al., “In Sickness and in Health”: Does Cohabitation Count?,24J. Fam. Issues 811 (2003). Selection effects may also account for some of the reported differences between married and cohabiting couples. See id. 109 “[T]he general consensus in the literature is that controlling for other observable characteristics, married men are simply more productive than unmarried men.” Jeffrey S. Gray & Michel J. Vanderhart, On the Determination of Wages: Does Marriage Matter?,inTheTies That Bind, supra note 18,at356. Married men also tend to work longer hours and to choose higher-paying jobs and professions. See Waite & Gallagher, supra note 25,at99– 105; Oppenheimer, supra note 20.The male “marriage premium” has declined, however, for reasons that are poorly understood. See Philip N. Cohen, Cohabitation and the Declining Marriage Premium for Men,29Work & Occupations 346 (2002). 110 See J. W. Welte et al., Gambling Participation and Pathology in the United States – A Sociodemographic Analysis Using Classification Trees,29Addictive Behaviors 983 (2004) (finding in a national U.S. telephone survey that the most frequent gamblers were divorced, widowed, or cohabiting men, and that nonpoor, married, or widowed whites were least likely to be problem gamblers). 111 See Joseph Lupton & James P. Smith, Marriage, Assets, and Savings, in Marriage and the Economy: Theory and Evidence from Advanced Industrial Societies 129 (Shoshana Grossbard-Schechtman ed. 2003). 112 See Waite, Trends, supra note 108, at 368, 374–75 tbl.19.2 (showing that the reported happiness levels of married individuals exceeded those of never married, previously married, and cohabiting individuals (which tended to be comparable), and “the happiness advantage of the married [is] . . . roughly similar formenandwomen [and] has not changed over the past 35 years”); Susan L. Brown, Moving from Cohabitation to Marriage: Effects on Relationship Quality,33J.Soc. Sci. Res.1(2004) (reporting in national sample that cohabitants who married reported higher levels of relationship happiness as well as lower levels of relationship instability, disagreements, and violent conflict than those who remained cohabiting, net of time-1 relationship quality and sociodemographic controls). See also Susan L. Brown et al., The Significance of Nonmarital Cohabitation: Marital Status and Mental Health Benefits among Middle-Aged and Older Adults, J. Gerontology: Soc. Sci. (2004) (finding that male, but not female, cohabitants reported significantly higher depression scores than married men and women after controlling for sociodemographic variables); Russell P. D. Burton, Global Integrative Meaning as a Mediating Factor in the Relationship Between Social Roles and Psychological Distress,39J. Health & Soc. Behavior 201 (1998); Kathleen A. Lamb et al., Union Formation and Depression: Selection and Relationship Effects,65J. Marriage&Fam. 953 (2003); Nock, supra note 20,at68–69 tbl.1.4. 113 See sources cited in note 22, supra;Waite, Trends, supra note 108,at381 tbl.19.6 (cohabitants with no plans to marry are “substantially and significantly” more likely to report couple violence than either married or engaged couples). P1: KAE 0521861195c16 CUFX006/Wilson 0 521 86119 5 June 3, 2006 3:49 324 Marsha Garrison marriage is still associated, across nations and cultures, with higher levels of subjective well-being. 114 Some of the benefits of marriage undoubtedly result from “selection” effects rather than marriage itself; to the extent that those who marry are healthier, wealthier, and happier to begin with, they should maintain these advantages after marriage. The jury is still out on the extent to which the marriage “premium” derives from preexisting characteristics or the married state. Undoubtedly, preexisting characteristics are important and explain away some significant part of the marital advantage. However, researchers who have con- trolled for obvious confounding factors like age and education continue to report marital advantages, 115 and longitudinal studies have also found significant health, income, and behavioral effects associated with marriage. 116 Researchers thus almost universally agree that some, as yet undetermined, fraction of the marital “premium” stems from marriage itself. 117 Marriage is also associated with important advantages to children. As a group, children born to married parents experience much greater stability thanchildren born to unmarried parents; indeed, cross-national research shows that children born to cohabiting parents are two to four times more likely to see their parents separate than are children of parents mar- ried at the time of birth. 118 Because of the greater stability provided by marriage, marital 114 See Ed Diener et al., Similarity of the Relations Between Marital Status and Subjective Well-Being Across Cultures,31J. Cross-Cultural Psychol. 419 (2000)(finding in a 42-nation survey that the positive relationship between marital status and subjective well-being did not differ by gender and was “very similar” across the world); Steven Stack & J. Ross Eshleman, Marital Status and Happiness; A 17-Nation Study,60J. Marriage&Fam. 527 (1998) (observing that “married persons have a significantly higher level of happiness than persons who are not married. This effect was independent of financial and heath-oriented protections offered by marriage and was also independent of other control variables including ones for sociodemographic conditions and national character.” Although cohabitants had a higher level of happiness than single persons, their happiness level was still “less than one quarter of [that] of married persons”). See also Arne Mastekaasa, The Subjective Well-Being of the Previously Married: The Importance of Unmarried Cohabitation and Time Since Widowhood or Divorce,73Soc. Forces 665, 682 (1994). 115 See Nadine F. Marks, Flying Solo at Mid-Life: Gender, Marital Status, and Psychological Well-Being 10–11, CDE Work- ing Paper 95–03 (http://www.ssc.wisc.edu/cde/cdewp/95-03.pdf ) (reviewing research data on impact of selection effects in explaining higher happiness levels of married individuals). 116 Longitudinal studies show that the transition to marriage is significantly associated with greater psychological well-being and healthier behaviors, while the transition out of marriage is associated with less well-being and less healthy behaviors. See Nadine F. Marks & James D. Lambert, Marital Status Continuity and Change Among Young and Midlife Adults: Longitudinal Effects on Psychological Well-Being,19J. Fam. Issues 652 (1998);Allan V. Horowitz et al., Becoming Married and Mental Health: A Longitudinal Study of a Cohort of Young Adults, 58 J. Marriage & Fam. 652 (1998); H. K. Kim & P. C. McHenry, The Relationship Between Marriage and Psychological Well-Being – A Longitudinal Analysis,23J. Fam. Issues 885 (2002) (presenting data that “confirmed the strong effects of marital status on psychological well-being, supporting the protection perspective,” and indicated that “the transition to cohabiting did not have the same beneficial effects as marriage for psychological well-being,” but which produced “weak and inconsistent” evidence of selection effects). And at least for men, marriage brings a sharp reduction in social evenings at bars or taverns and an enormous increase in involvement with relatives and church-related activities. Men’s first marriages are also associated with measurable positive changes in annual income, weeks worked, and occupational prestige. See Steven L. Nock, Marriage in Men’s Lives 82, 94–95, 112–18 (1995). 117 See, e.g., Pamela J. Smock et al., The Effect of Marriage and Divorce on Women’s Economic Well-Being,64Am. Sociol. Rev. 794, 809 (1999) (“[T]he economic benefits of marriage are large, even above and beyond the characteristics of those who marry. ”); Donna K. Ginther & Madeline Zavodny, Is the Male Marriage Premium Due to Selection? The Effect of Shotgun Weddings on the Return to Marriage,14J. Pop. Econ. 313 (2001) (finding that, “at most 10% of the estimated marriage premium [in men’s wages] is due to selection”) and sources cited in note, supra. 118 See Cynthia Osborne et al., Instability in Fragile Families: The Role of Race-Ethnicity, Economics, and Relationship Quality 9, tbl.2 (CRCW Working Paper 2004-17FF, 2004) (in nationally representative U.S. sample, 40% of children born to cohabiting parents and 20% of childrenborn to married parents experienced their parents’ separation within three years of birth); Bumpass & Lu, supra note 16,at38tbl.6 (reporting that children born to married parents spend 84% of their childhood in two-parent families; children born to cohabiting parents “may spend about a quarter P1: KAE 0521861195c16 CUFX006/Wilson 0 521 86119 5 June 3, 2006 3:49 Marriage Matters 325 children are exposed to fewer financial, 119 physical, 120 and educational 121 risks. Unsurpris- ingly, lower risk is associated with higher levels of childhood well-being. 122 There is also evidence that the advantages conferred by marital childbearing and rearing transcend the specific benefits associated with residential and economic stability. Married fathers appear to spend more time with their children than unmarried fathers; if parental separation occurs, they see their children more often and pay child support more regularly. 123 of their childhood years with a single parent, a quarter with a cohabiting parent, and less than half with married parents”); Patrick Heuveline et al., Shifting Childrearing to Single Mothers: Results from 17 Western Countries,29 Pop. & Dev.Rev.47 (2003) (explaining that in most countries, children born to cohabiting parents are two to four times more likely to see their parents separate than are children of parents married at the time of birth); Kiernan, supra note 16 (reporting that within 5 years of the birth of a child, 8% of married couples in the United Kingdom have split up, compared to 52% of cohabitants and 25% of those who marry after the birth). 119 See Casper & Bianchi, supra note 19,at111–12 fig.4.3 (reporting that in 1998 poverty rate of married-parent households was 6.9% and that of single-mother households was 38.7%); Urban Inst., Wedding Bells Ring in Stability and Economic Gains for Mothers and Children, http://www.urban.org/Template.cfm?Section= ByTo pic&NavMenuID=62&template=/TaggedContent/View Publication.cfm&PublicationID=7858 (reporting that three relatedstudies found that “[m]arriage, even a shotgun wedding, significantly improvesthe living standards of mothers and their children. . . . Families with two married parents encounter more stable home environments, fewer years in poverty, and diminished material hardship.”) Noncustodial divorced and never-married parents are also less likely to pass wealth on to their adult children. See Frank F. Furstenberg, Jr. et al., The Effect of Divorce on Intergenerational Transfers: New Evidence,32Demography 319 (1995) (showing that divorce during childhood years was associated with sharp decrease in transfers by fathers); Nadine F. Marks, Midlife Marital Status Differences in Social Support Relationships with Adult Children and Psychological Well-Being,16J. Fam. Issues 5 (1995) (finding that remarried and single parents professed less belief in parental financial obligation and were less likely to provide support to adult children than first-marriage parents). 120 Rates of physical and sexual abuse are much higher when children live with an adult stepparent or cohabitant. See Robin Fretwell Wilson, The Sexual Exploitation of Female Children After Divorce,86Cornell L.Rev.251 (2001); Martin Daly & Margo Wilson, Child Abuse and Other Risks of Not Living with Both Parents,6Ethology &Sociobiology 197 (1985); Leslie Margolin, Child Abuse by Mothers’ Boyfriends: Why the Overrepresentation?,16 Child Abuse & Neglect 541 (1992). 121 See Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps 39– 63 (1994) (reviewing evidence); Wendy Sigle-Rushton & Sara McLanahan, Father Absence and Child Well–Being: A Critical Review, in TheFuture of the Family 116, 120–22 (Daniel P. Moynihan et al. eds. 2004) (same). 122 See PaulR. Amato & JacobCheadle,The LongReachofDivorce: Divorceand Child Well-Being Across Three Generations, 67 J. Marriage & Fam. 191, 193 (2005) (summarizing studies); Sigle-Rushton & McLanahan, supra note 121 at 122–25 (same). See also Casper & Bianchi, supra note 19,at46(finding children whose parents never married see their fathers less frequently after parental separation); Susan L. Brown, Family Structure and Child Well-Being: The Significance of Parental Cohabitation,66J. Marriage & Fam. 351 (2004) (reporting children living in two cohabiting biological-parentfamilies experienced worse outcomes, on average, than those residing with two married biological parents; among children age 6–11, economic and parental resources attenuated these differences. Among adolescents ages 12–17, parental cohabitation was negatively associated with well-being, regardless of the levels of these resources. Child well-being did not significantly vary among cohabiting versus married stepfamilies, cohabiting two-biological-parent families versus cohabiting stepfamilies, or either type of cohabiting family versus single-mother families). 123 See Casper & Bianchi, supra note 19,at46(reporting that children whose parents never married see their fathers less frequently after parental separation); Marcy Carlson et al., Unmarried But Not Absent: Fathers’ Involve- ment With Children After a Nonmarital Birth (CRCW Working Paper 2005–07) (finding that parents’ relationship status at the time of the child’s birth is a key predictor of subsequent involvement: fathers in cohabiting unions were much more likely to be involved in their child’s life three years later than other unmarried fathers. Parents’ relationship quality was also linked to greater father involvement for some outcomes, and domestic vio- lence, a history of incarceration, and having children by other partners were significantly associated with lower involvement); Lingxin Hao, Family Structure, Private Transfers, and the Economic Well-Being of Families with Chil- dren,75Social Forces 269 (1996) (finding that married fathers were more likely to pay child support). See also Susan L. Brown, Family Structure and Child Well-Being: The Significance of Parental Cohabitation, 66 J. Marriage & Fam. 351 (2004) (reporting that children living in two cohabiting biological-parent families experienced worse out- comes, on average, than those residing with two married biological parents; among children age 6–11, economic and parental resources attenuated these differences. Among adolescents ages 12–17, parental cohabitation was P1: KAE 0521861195c16 CUFX006/Wilson 0 521 86119 5 June 3, 2006 3:49 326 Marsha Garrison The advantages of marriage may even extend to later generations. A number of stud- ies have found that both men and women who experience a single-parent household as children are more likely than others to divorce or separate as adults. 124 Researchers who examined links between divorce in the grandparent generation and outcomes for grand- children have also reported that grandparental divorce is significantly associated with less education, more marital discord, more divorce, and greater tension in early parent-child relationships. 125 The marital advantage also appears to be universal. Even in the Scandinavian nations, which have the longest experience with cohabitation as a mainstream family form and a high level of support for single-parent families, demographers continue to find that marital childbearing is associated with greater childhood stability 126 and smaller risks to adult welfare. 127 Of course, marriage is not always associated with advantage, for either children or adults. Violent marriages are clearly dangerous, and even verbal marital conflict appears to be harmful to both adults and children. 128 negatively associated with well-being, regardless of the levels of these resources. Child well-being did not signifi- cantly vary among cohabiting versus married stepfamilies, cohabiting two-biological-parent.). 124 See PaulR.Amato & Alan Booth, A Generation at Risk: Growing Up in an Era of Family Upheaval 106– 117 (1997) (summarizing studies); Amato & Cheadle, supra note 122 at 192–93 ( same); Jay D. Teachman, The Childhood Living Arrangements of Children and the Characteristics of Their Marriages,25J.Fam. Issues 86 (2004) (finding that “any time spent in an alternative [i.e., nonmarital] family increases the likelihood that a woman [will herself] form[] a union with characteristics that decrease the likelihood of a successful union”). Parental divorce or separation is also significantly correlated with likelihood of premarital cohabitation. See Kiernan, supra note 16,at 55 tbl.3.8 (showing significant increase in likelihood of cohabitation before marriage among those whose parents divorced or separated across fourteen European nations). 125 See Amato & Cheadle, supra note 122. 126 See An-Magritt Jensen & Sten-Erik Clausen, Children and Family Dissolution in Norway: The Impact of Consensual Unions,10Childhood 65 (2003) (stating that children of cohabiting parents run a much higher risk of disso- lution compared to children in marital unions and “this risk is not diminishing as cohabitation becomes more widespread”). 127 See Gunilla Ringback Weitoft et al., Mortality, Severe Morbidity, and Injury in Children Living with Single Parents in Sweden: A Population-Based Study, 361 Lancet 289 (2003) (showing that based on analysis of national register data in almost a million cases, Swedish children in single-parent households showed significantly increased risks of psychiatric disease, suicide or suicide attempt, injury, and addiction.Even after controlling for socioeconomic status factors such as parental addiction or mental disorder, children in single-parent families still exhibited “significant increases in risk” for all adverse outcomes); Jan O. Jonsson & Michael Gahler, Family Dissolution, Family Reconsti- tution, and Children’s Educational Careers: Recent Evidence for Sweden,34Demography 277, 287 (1997) (finding that even after controlling for all independent variables, children of divorced and separated parents and children living in reconstituted families have low school-continuation propensities compared to children living with both biological parents); Helen Hansagi et al., Parental Divorce: Psychosocial Well-Being, Mental Health and Mortality During Youth and Young Adulthood: A Longitudinal Study of Swedish Conscripts,10Eur. J. Pub. Health 335 (2000) (reporting that in a group of Swedish conscripts, several indicators of low levels of well-being and mental illness, including alcoholism, were significantly correlated with parental divorce even after adjustment for antecedents and other factors). See also Ta ru H. Makikyro et al., Hospital-Treated Psychiatric Disorders in Adults with a Single-Parent and Two-Parent Family Background: A 28-Year Follow-Up of the 1966 Northern Finland Cohort,37Fam. Process 335 (1998). 128 See Amato & Booth, supra note 124 at 219–20 (reporting that “parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of offspring well-being” and that parental divorce actually “benefits children in certain ways if it removes them from a discordant parental household”; Debra Umberson et al., Yo uMake Me Sick: Marital Quality and Health Over the Life Course,PRC Wo rking Paper No. 03-04-05, 2005), http://www.prc.utexas.edu/working papers/wp pdf/03-04-05.pdf (reviewing evidence); J. K. Kiecolt-Glaser & T. L. Newton, Marriage and Health: His and Hers, 127 Psychol. Bull. 472 (2001) (finding that unhappy marriages have negativephysical-health consequences); Kristina Orth-Gomer et al., Marital Stress Worsens Prognosis in Women With P1: KAE 0521861195c16 CUFX006/Wilson 0 521 86119 5 June 3, 2006 3:49 Marriage Matters 327 We also lack an understanding of the process by which the benefits associated with marriage are produced, and some demographers have argued that they may result sim- ply from stronger and more committed partnerships being selected into marriage. 129 It is possible that this supposition is correct; certainly, it is extremely hard to prove or dis- prove. But given the plentiful and consistent research showing the married state to be associated with significant benefits to adult partners, their children, and the public, law- makers should be extremely wary of adopting standards based on the supposition that marriage is irrelevant. There is too much evidence suggesting that marriage does matter, and that it has the capacity to confer important advantages on marriage partners and their families. III. The Domestic Partnership Proposal Is Not a Liberal Reform Even with the various advantages I have described, marriage is undeniably less important than it once was. Socially acceptable sex and childbearing are no longer confined to marital relationships. 130 Marriage is no longer women’s primary source of adult economic security. Young adults are marrying later. 131 Increasing numbers will not marry at all. 132 Even those who do marry often live in nonmarital households for substantial periods of time. 133 Modern marriage thus represents only one possible choice among a range of familial and nonfamilial alternatives. Modern marriage is also more variable than traditional marriage. Some husbands and wivescontinue to play traditional marital roles; many others reject those roles outright. Some want and raise many children, while others reject child bearing and rearing alto- gether. Some share each and every aspect of their lives together, and others live in widely separated cities, leading largely separate lives. Some enter into premarital agreements Coronary Heart Disease, 284 JAMA 3008 (2000) (reporting that, among married and cohabiting women, marital stress was associated with a 2.9-fold increased risk of recurrent coronary events after adjustment for confounding variables, but work stress did not significantly predict recurrent coronary events). 129 See Kathleen Kiernan, Unmarried Cohabitation and Parenthood: Here to Stay? European Perspectives, in The Future of the Family, supra note 121,at66, 91. 130 In 2002, 33.8% of U.S. births were nonmarital, as compared to 3.8% in 1940. See U.S. Nat. Ctr. Health Statis- tics, Nonmarital Childbearing in the United States 1940–99, 48 Nat. Vital Statistics Rrts. No. 16, available at http://www.census.gov/statab/hist/HS-14.pdf. The increase in nonmarital births reflects a large increase in pre- marital sex. The National Survey of Family Growth found that, in 1970, 40% of unmarried 18-year-old women said that they had engaged in sexual intercourse. By 1988, the proportion had risen to 70%. This trend has reversed in recent years, and in 1995 the proportion of 18-year-old women who reported having had sex fell to 63%. See Douglas Besharov & Karen Gardiner, Trends in Teen Sexual Behavior,19Child & Youth Serv. Rev. 328 (1997), available at http://www.aei.org/publications/pubID.17756/pub detail.asp. 131 Between 1950 and 2002, the median age at first marriage increased for U.S. men by 4.1 years (from 22.8 to 26.9) and for women by 5 years (from 20.3 to 25.3). Median age at first marriage for U.S. men today is close to the median in 1890 (26.1 for men and 22 for women). See http://www.infoplease.com/ipa/A0005061.html (citing U.S. census data). 132 Between 1950 and 1996, the U.S. marriage rate per 1,000 population declined from 11.1 to 8.8. See U.S. Bureau of the Census, Statistical Abstract of the United States 2001 59 tbl.68. More strikingly, between 1970 and 2002, the proportion of U.S. adults aged 40–44 who reported that they had never been married increased among men from 4.9% to 16.7% (an increase of more than 300%) and among women from 6.3% to 11.5%. See http://www.infoplease.com/ipa/A0763219.html (citing U.S. census data). 133 Between 1970 and 2004, the proportion of U.S. households that included a married couple declined from 70.6% to 54%. See Steve Rawlings, Households and Families, available at http://www.census.gov/population/www/pop- profile/hhfam.html (reporting U.S. census data). P1: KAE 0521861195c16 CUFX006/Wilson 0 521 86119 5 June 3, 2006 3:49 328 Marsha Garrison limiting their marital entitlements, and others enter into covenant marriages that restrict options for exiting their relationships. 134 While there have always been atypical mar- riages, the number, and even our conception of typicality, has almost certainly expanded significantly. Some commentators rely on the greater variability and lesser social importance of mar- riage as a basis for the claim that marriage should lose its privileged legal status. They argue that “[l]aw should adapt to these changes by protecting all relationships that serve family functions by abandoning its elevation of the status of formal marriage.” 135 These commentators claim that current law discriminates against the unmarried. They con- tend that regulatory models like the ALI domestic partnership approach serve to ensure nondiscrimination, state neutrality, and relational choice. 136 The rhetoric of choiceand nondiscrimination that oftenappears in encomiumson behalf of the ALI domestic partnership proposal and like standards suggests that this regulatory model serves a liberal agenda. But let there be no mistake here. The ALI approach does not foster choice and nondiscrimination: it eliminates choice by forcing those who are unprepared to make marital commitments to shoulder the very responsibilities that they have avoided; it discriminates by cramming relationships of many contours into a “one- size-fits-all” marital mold. The ALI proposal deeply intrudes into relational privacy. It dramatically expands state control over private life. 137 Despite the liberal rhetoric that cloaks its illiberal character, the ALI proposal offers nothing more – or less – than a dramatic expansion of state paternalism and coercion. The ALI domestic partnership proposal would impose marital obligations on those who have not undertaken them. Yet there is nothing to support the supposition that indi- vidual men and women do not know what they are doing when they decide to marry and when they decide not to. Nor is there any obvious public policy justification for state paternalism with respect to marital decision-making. The fact that marriage is more variable than it once was cannot justify such massive state intrusion into personal rela- tional choices. The fact that marriage is less important socially and economically cannot justify such intrusion either. If anything, these changes in the institution of marriage suggest less state intervention in marital decision-making, not more. While the evidence does show that cohabitation is associated with fewer advantages than marriage both for adults and children, 138 this evidence is surely not so compelling as to justify a legal regime that forces those who have elected not to marry into shotgun, post hoc marital relation- ships. Nor is it likely that such a regime could replicate the benefits of marriage for those whom it affects, anyway. The evidence suggests that much of the marital premium flows from relational stability and the expectation of continued stability, but cohabitants who might be conscripted into marital obligation will not know their status until the rela- tionship has ended and its character investigated through litigation. Conscription simply 134 See Wardle, this volume. 135 See Scott, this volume. See also Martha Fineman, The Autonomy Myth: A Theory of Dependency (2004). 136 See Garrison, supra note 90,at850 (quoting and citing commentators). 137 Cf.Anita Bernstein, For and Against Marriage: A Revision, 102 Mich L. Rev. 129, 212 (2003) (arguing that elim- ination of marriage would ultimately produce more “control [of] citizens’ private lives [by]thestate or capi- tal. Noblithe, freeing, choice-affirming alternative to this extraordinary institution is available.”); Cain, supra note 82. 138 See text at notes 115, 124, supra. P1: KAE 0521861195c16 CUFX006/Wilson 0 521 86119 5 June 3, 2006 3:49 Marriage Matters 329 cannot substitute for the commitments and role reinforcement that flow from formal marriage. Modern marriage, for all its greater variability and lesser social significance, consistently differs from cohabitation in one large and important respect: Marriage partners have pub- licly assumed binding obligations to each other that restrict other marital opportunities, inhibit participation in other sexual and economic relationships, structure public and pri- vate expectations about their relationship, and burden exit from it. Cohabitants have not. This fundamental difference distinguishes marital relationships, for all their variability, from nonmarital relationships. This difference explains why marriage continues to foster “shared expectations for appropriate behavior within the partnership” while cohabitation remains an “incomplete institution” offering “no widely recognized social blueprint . . . for the appropriate behavior of cohabitors, or for the behavior of the friends, families, and other individuals and institutions with whom they interact.” 139 This difference provides a sound basis for state enforcement of both marital commitments and decisions not to make such commitments. State enforcement of marital obligation thus rests not on an “eleva- tion” of marriage over other types of intimate relationships, but instead on the voluntary assumption of obligation that marriage partners have undertaken. In sum, it is not obvious why some commentators associate liberal principles with the ALI domestic partnership proposal. There is nothing liberal here. IV.Conclusion If and when the fact of cohabitation routinely implies marital commitment, cohabitation should give rise tomarital obligation.But the ALI’sassertion thatmarriage and cohabitation are equivalent relational states is unsupported by the evidence: Married and cohabiting couples tend to behave and view their relationships quite differently. Cohabitants are much less likely than married couples to share or pool resources. Cohabitation usually functions as a substitute for being single, not for being married. The ALI’s claim that it is practical to require cohabitants to contract out of marital obligations is also unfounded. Individualized inquiry into a couple’s understandings and behavior is likely to produce highly uncertain and inconsistent results that can only be determined after time-consuming and expensive litigation. Status-based rules that infer marital obligation from easily ascertained facts such asa common child orthe maintenance of a common residence for a defined period avoid much of the uncertainty and expense inherent in individualized inquiry, but create serious risks of misclassification. The domestic partnership proposal would introduce discordant values into the law of relational obligation. It would diminish personal autonomy andfalsely signal thatmarriage and cohabitation are equivalent relational states. Because marriage is advantageous both for adultsand children, legal standards shouldfoster marital commitments. By diminishing their importance, the ALI approach risks harm to individual interests and the public good. The ALI’s proposed reforms are not needed either to protect genuine marital com- mitments or avert unjust enrichment. Policymakers thus should affirm what is already 139 Casper & Bianchi, supra note 19,at40.See also Nock, supra note 20,at74(“Cohabitation is an incomplete institution. No matter how widespread the practice, nonmarital unions are not yet governed by strong consensual norms ”) P1: KAE 0521861195c16 CUFX006/Wilson 0 521 86119 5 June 3, 2006 3:49 330 Marsha Garrison obvious to most of the public: Marriage matters. Family law should reflect and reinforce that fundamental fact. Research for this chapter was supported by Brooklyn Law School’s Faculty Research Fund. The chapter draws heavily on my article Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligations,52UCLAL.Rev.1(2005), which provides a more detailed analysis of cohabitant-obligation laws like that proposed by the ALI and offers an alternative reform proposal. P1: OYK/JZV P2: OYK 0521861195c17a CUFX006/Wilson 0 521 86119 5 May 4, 2006 6:3 17 Domestic Partnerships, Implied Contracts, and Law Reform Elizabeth S. Scott The domestic partnership chapter of the Principles is the shortest chapter, but, as the contributions to this volume suggest, among the most interesting to many people. The legal regulation of informal intimate unions generally and particularly the Principles’ approach of creating a status that carries the legal rights and obligations of marriage between cohabiting parties have generated considerable debate. In some quarters, the domestic partnership provisions are admired as an effective mechanism to protect depen- dent partners in marriage-like unions who otherwise may be unable to establish claims to property and support when their relationships end. 1 Others praise the Principles for acknowledging thediversity of contemporary familiesand legitimizing a nonmarital family form for both same-sex and opposite-sex couples. 2 Some critics of the Principles oppose domestic partnership status for exactly this reason, arguing that the legal recognition of informal intimate unions – including same-sex unions – undermines traditional marriage, and that this is bad. 3 Others object on practical grounds that the Principles will generate aflood of litigation because of the complexity of the proposed legal standard and the need to establish domestic partnership status before a claim is considered. 4 This chapter also expressesskepticism about thedomestic partnership provisions, but for reasons that differ from those of most critics. The goal of providing partners in long-term unions with more effective means of enforcing financial obligations between themselves is laudable, as is the Principles’ inclusion of same-sex as well as opposite-sex unions. Domestic partnership status can provide greater financial security to dependent partners in informal unions than they have under current law, avoiding the harsh inequity that can result when one partner seeks to exploit the other by enjoying the benefits of an inti- mate union without incurring financial obligations. Although the enforcement of agree- ments between cohabitants has been possible since the California Supreme Court decided 1 The drafters, Grace Blumberg and Ira Ellman, have long argued that domestic partnership status provides more effective protection to dependent partners than does contract law. See notes 47 & 48, infra. 2 Nancy Polikoff, Making Marriage Matter Less: The ALI Domestic Partnership Principles Are One Step in the Right Direction, 2004 U. Chi. Legal F. 353. 3 Lynn Wardle, Deconstructing Family: A Critique of the American Law Institute’s “Domestic Partners” Proposal, 2001 BYU L. Rev. 1189; Lynne Kohm, HowWill Proliferation and Recognition of Domestic Partnerships Affect Marriage?, 4 J. L.&Fam.Stud. 105 (2002). 4 Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation,52UCLA L. Rev. 639 (2005). Like Professor Garrison, this chapter argues that relationships between adults must be grounded in consent. 331 P1: OYK/JZV P2: OYK 0521861195c17a CUFX006/Wilson 0 521 86119 5 May 4, 2006 6:3 332 Elizabeth S. Scott Marvin v. Marvin in 1976 5 courts have struggled with only limited success with these issues. 6 This chapter raises two concerns about the Principles and domestic partnership status. The first is not a criticism, per se, but a general concern about this family form. Some observers applaud the declining popularity of marriage as a family form 7 and the blurring of the legal line between marriage and cohabitation. Yet, informal unions, includ- ing the Principles’domestic partnerships, provide uncertain protection to financially dependent family members because the right to a share of property and support is legally established only after the relationship ends. 8 In contrast, marriage is a status based on registration under which rights and obligations attach at the outset with the exchange of vows. In part for this reason, marriage offers better protection to financially dependent family members than cohabitation. Thus, although enforcement of financial obligations between long-term cohabitants is useful in affording some protection to dependent family members, lawmakers might legitimately favor marriage over cohabitation and be con- cerned about diluting the distinctions between formal and informal unions. 9 Second, the approach of the domestic partnership provisions in which a marriage-like status attaches automatically at the end of a cohabitation period, 10 without consent or knowledge, and even against the wishes of the individuals involved, is coercive and paternalistic. In theory, partners who do not want to be subject to the property distribution or support rules that apply to marriage can opt out through express agreement. 11 However, the Principles’ provisions on agreements treat the contracts of cohabiting couples in the same way as premarital agreements, giving courts considerable discretion to set them aside based on a judgment that enforcement would “work a substantial injustice.” 12 When taken together with the domestic partnership provisions, the effect is to restrict the freedom of unmarried couples to live together in unions of limited commitment and obligation, a stance that is discordant with contemporary social values. The paternalistic stance of the domestic partnership provisions is normatively unap- pealing. It is also unnecessary as a means to provide financial protection to dependent part- ners in cohabitation unions. This chapter argues that contract theory supports a default rule framework that presumes that property acquired during long-term informal unions is shared and that support is available to dependent parties when these relationships 5 In Marvin v. Marvin, the California Supreme Court held that express and implied contracts between cohabiting parties are enforceable. 557 P.2d 106 (Cal. 1976). 6 See infra Part I. 7 Patricia A. Cain, Imagine There’s No Marriage,16Quinnipiac L. Rev. 27 (1996); Nancy D. Polikoff, supra note 2; Martha Albertson Fineman, TheNeutered Mother, the Sexual Family and Other Twentieth Century Tragedies (1995). Marriages have actually increased in numbers in recent years but at a far slower rate than cohabitation. Between 1980 and 2002, the total number of cohabiting heterosexual couples in the United States more than tripled, from 1,589,000 to 4,898,000. U.S. Census Bureau, Table UC–1, Unmarried Couple Households, by presence of Children: 1960–Present,June 12, 2003, at http://www.census.gov/ population/socdemo/hh-fam/tabUC– 1.pdf. During that time the number of marriages increased from 49,112,000 to 56,747,000. U.S. Census Bureau, Ta ble HH-1, Households by Type: 1960-Present,June 12, 2003, at http://www.census.gov/population/socdemo/ hh- fam/tabHH-1.pdf. The 2000 Census also reported almost 600,000 same-sex couples. U.S. Census Bureau, Married Couple and Unmarried Partner Households: 2000 1(Feb 2003), at http://www.census.gov/prod/2003pubs/censr- 5.pdf. 8 Principles § 6.02(1). 9 The drafters do not hold up domestic partnerships as superior to marriage. In fact, they suggest that the obligations that domestic partners would incur removes any incentive to avoid marriage, a valid point. See Principles § 6.02 cmt. b, at 916. 10 Principles § 6.03. 11 Principles § 6.01(2). 12 Principles § 7.05. [...]... the conjugal community Second, the union between a man and woman leads to a community between parents and their children that becomes the parent-child community Third, the family, as a subject of rights and duties, cooperates and collaborates with the state and becomes the fundamental unit of society.32 Marriage, then, is the natural foundation upon which the family rests and, like the family, is therefore... supra note 20, at 70 27 Id at 67 Id at 67 28 Id at 69 29 Id at 61 30 Id at 1 07 31 Viladrich, Agony, supra note 12, at 63–64 32 Professor Viladrich uses the expression family community.” This chapter substitutes the term “parent-child community” in order to minimize confusion The family is created at the moment of the valid exchange of consent, rather than with the birth of children The fact that spouses... agreement by the couple to hold property as if they were married could be found by looking at the “purpose, duration and stability of the relationship and the expectations of the parties.” Hay v Hay, 678 P.2d 672 , 674 (Nev 1984) The court went on to say that where it is “proven that there was an agreement to acquire and hold property as if the couple was married, the community property laws of the state... from the giver to the receiver, of ownership of what is given But it is obvious that each spouse does not transfer ownership of his or her person to the other Such a transfer would in fact be impossible Similarly, the spouse receiving the conjugal gift does not become owner of the ‘self ’ of the other, entitled to dispose of it as he or she wishes No spouse owns the other: not the ‘self ’ of the other,... Agreements in the ALI Principles of Family Dissolution, 8 Duke J Gender L Pol’y 231, 2 37 (2001) [hereinafter Bix, Premarital Agreements] 42 Principles § 7. 04 cmt b, at 962–63 The Principles put the burden of proof on the party who is seeking the benefit of the agreement Principles § 7. 05(3) 43 Principles § 7. 04 These conditions require that (1) the agreement be executed at least thirty days in advance of the. .. that the future claimant is better off without the relationship should her partner decide against cohabitation in the face of the uncertainty of contract enforcement under the Principles .76 And yet, it seems likely that some individuals would knowingly choose to risk financial insecurity in the future for a relationship that they value and the support it provides while intact .77 The core deficiency of the. .. creates the publicly acknowledged fundamental unit of society, the family, with its roles of husband and wife, mother and father, brother and sister, and so forth.34 The State’s concern for marriage is founded on its importance for the development of the human person and society, as well as the strong link between law and culture.35 The State’s central role is the protection and promotion of the common... one partner misled or exploited the other Default rules clarify that the conduct of couples in long-term unions will be deemed promissory unless the parties opt out of the rule The framework functions effectively whether or not the parties have similar understandings of the terms of their commitment to one another In most unions of long duration, the presumption that the relationship is marriage-like... marriage 36 Aquinas, Summa Theologica, supra note 10, at Part II, Q 90, art 2 See also Jacques Maritain, The Person and the Common Good 39 (John J Fitzgerald translation 19 47) (explaining that “[t]here is a correlation between the notion of the person as a social unit and the notion of the common good as the end of the social whole They imply one another”) Professor Maritain posits that the human person finds... Principles § 6.03 (7) Other factors include: oral and written statements regarding the relationship; the extent to which the relationship fostered economic interdependence or the economic dependence of one party on the other; naming in a life insurance policy, will, or in an employee benefits plan; and the extent to which the relationship “wrought change in the life of either or both parties.” Id 57 Principles . However, Chapter 7 of the Principles regulates agreements between parties that opt out of the obligations established under the Principles.Principles § 7. 02. 61 Principles §§ 7. 04, 7. 05. The Commentary. unfairness. 73 Principles § 7. 05. 74 Principles § 7. 05. 75 Principles § 6.02 cmt. a, at 914. The Comment mentions the following as reasons that couples do not marry: objections to the institution. capacity. The typical claim is brought in con- tract by the woman for a share of the property acquired during the union, compensation for services (either domestic or to a business owned by the other