an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I introduced this week-long symposium on Clare Huntington’s recent book, Failure to Flourish, by suggesting it is a propitious time to focus on what government can do to support families. As I noted there, the prominent rhetorical place given to families in every presidential campaign –including, most likely, the upcoming one – amply demonstrates the common premise that (as I observed in my book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard Univ. Press, 2006)): “a significant link exists between the state of families and the state of the nation,” while “the weakening of families both reflects and leads to moral and civic decline and imposes significant costs on society.” (McClain, p. 1) In addition, even as marriage becomes available to more same-sex couples wrongly excluded from it – with child well-being often asserted as a reason for ending that exclusion, policy analysts and politicians worry about another marriage equality problem: the class- and race-based marriage divide and the growing separation of parenthood from marriage. The posts this week have expressed different views about whether marriage should be a central part of governmental efforts to promote healthy families and child well-being (Emery) or whether family law’s “marriage-centric” focus “entrenches” inequality (Huntington, reply to Robin Lenhardt) and misses opportunities to strengthen co-parent relationships outside of marriage (Lenhardt). I must defer my full analysis of these issues to a forthcoming essay, "Is There a Way Forward in the 'War Over the Family'?" (Volume 93 of the Texas Law Review), in which I situate Failure to Flourish in the context of decades of calls to strengthen families as well as the present-day debate about the future of marriage. Here, I will suggest that it might be fruitful to bring into the conversation about what government can do to help families flourish the perspective offered by Brookings Institution senior fellow and economist Isabel V. Sawhill, in her recently published book, Generation Unbound: Drifting Into Sex and Parenthood Without Marriage.
Like Huntington, Sawhill focuses on children, explaining that we should care about the quality of parenting that children receive and the environments in which they are being raised. So too, Sawhill argues that family structure matters for child well-being. She details the comparative advantages children reared in intact, stable, two-parent (typically, marital) families have over children born to unmarried parents, where patterns of “family complexity” and “multipartner fertility” make stable parenting and co-parenting relationships challenging, as households form and re-form. Sawhill highlights how education and income feature in the marriage divide: “with the exception of college-educated elites, young adults are drifting into relationships and into childbearing without marriage.” This drifting is of particular concern to Sawhill, who, in the 1990s, helped to launch and still co-directs the National Campaign to Prevent Teen and Unplanned Pregnancy. What is the best way, Sawhill asks, to respond to the demographic changes in family formation patterns?
It is interesting to consider whether Huntington’s approach fits comfortably into either or both of the two responses Sawhill identifies: the “traditionalists” versus the “village builders.” “Traditionalists” generally “share a deep concern over fragmentation of the family and its implications for adults and especially for children.” (Sawhill, p. 84) They "run the gamut" from religious political conservatives and politicians to a variety of secular writers and experts. All stress the foundational role of strong families. They view strengthening marriage and restoring a norm of childbearing and parenting within marriage as the best way forward. These proposals often include, for example, eliminating marriage penalties and disincentives and making young men more marriageable. On the one hand, Sawhill agrees with them that “we should continue to sing” marriage’s “praises as an ideal environment in which to raise children, and a very satisfying arrangement for many adults as well.” On the other hand, she is skeptical about whether restoring the norm of marital childbearing and child rearing can work, given the magnitude of demographic change. Sawhill's skepticism has triggered an interesting debate, evident in blog posts and op ed pages across the country. For example, Institute for American Values president David Blankenhorn (in Sawhll's "traditionalists" camp) and Sawhill's Brookings colleague Jonathan Rauch -- who, together, call for a new marriage coalition that supports same-sex marriage and focuses on the marriage divide -- counter that we should not give up on marriage and that Sawhill is too quick to write off the possibility of cultural change.
Sawhill uses Hillary Clinton’s book It Takes A Village to introduce the “village builders,” who assert that “children are too important to be raised only by their parents” and insist: “Without the right supports from the larger community whether in the form of jobs, health care, child care, or other assistance, families will not flourish.” (Sawhill, p. 87) In particular, “single parents . . need the support of the larger society if they and their children are to make ends meet.” (p. 87) Village builders often stress the need to bridge the gap between talking about “family values” and adopting policies that “value families.” With respect to the marriage divide and the separation of parenthood from marriage, some stress that lack of economic opportunity contributes to constrained choices. Others insist upon more public responsibility for supporting a diverse array of families. They point to the lower poverty rates of single parent families in countries with more generous social welfare programs.
Sawhill finds herself in agreement with “much of what each side is arguing” (7) and, based on my reading of Failure to Flourish, I think Huntington would as well. For example, there are passages in Failure to Flourish that traditionalists would readily find congenial, e.g., “As much as liberals might wish otherwise, there is mounting evidence that family structure is a causal factor, among others, affecting child outcomes” (Huntington, p. 204) or “there is overwhelming evidence that children raised by single or cohabiting parents have worse outcomes than children raised by married, biological parents” (p. 31). But Huntington (as Solangel Maldonado notes in her post) repeatedly eschews an agenda of promoting marriage as a necessary solution to the problem of anchoring parental commitment and cooperation in child rearing. Instead, a “flourishing family law” should support a broad range of families, aiming not at marriage, but at stable and committed relationships between co-parents.
Clearly, Huntington would support much of the “village builder” agenda, since she (like Hillary Clinton) invokes the “it takes a village” proverb to identify ways that families need the support of neighborhoods, communities, and so forth. Indeed, as Elizabeth Scott observes, Failure to Flourish is full of concrete policy proposals for offering such support. Sawhill herself, a veteran policy analyst, strongly supports village building.
But Sawhill raises a caveat about a village building approach that is worth considering. As she provocatively puts it: “for every child removed from poverty by a social program another one is likely to enter it as families continue to fragment.” (Sawhill, p. 97) Even though she recognizes the risks in talking about behavior and the role of personal responsibility, she insists that discussions of what government can do must also include attention to the impact of choices about family formation on child well-being.
For children to flourish, Sawhill argues, a third way between the traditionalists and village builders is necessary: society should promote an ethic of responsible parenthood, where people only have children when they want to and are ready to take care of them. This responsible parenthood model is, in effect, the blue state model that Naomi Cahn and June Carbone support, in Red Families versus Blue Families. It does not aim at marriage, but, rather, at preventing early parenthood and investing in young people’s education and human capital. (Parenting within a stable, two parent marital family, they note, often follows from these investments.).
Sawhill proposes to “change the default” to reduce the staggeringly high percentage of unplanned and unwanted births in the United States. As she points out, while the teen pregnancy rate in the U.S. has significantly declined, nonmarital childbearing has simply moved up into the twenties. She looks at the “eye-opening” gap, found in Fragile Families and Child Wellbeing research, between couples’ intentions concerning children and their behavior. (Sawhill, p. 110) I do not have room in this post to elaborate all the elements in her agenda, but one key element is increasing access to and use of long-acting reversible contraception. (I confess this gave me flashbacks to controversies over the use of Norplant.)
My point here is just to suggest that, as Sawhill looks at the points along the spectrum where society - and the state – might act to address the problems experienced by children due to family instability and to support policies that help children flourish, she concludes that neither a traditionalist nor village building approach will work without shifting the focus to the circumstances of family formation themselves. Hence the call for a norm of responsible parenthood. To make clear that she is not simply calling for a norm of marital parenthood, she observes that: “A single woman who really wants to be a parent and is prepared to take on that responsibility will almost surely be a better mother that a married woman who is unhappy in that role.” (p. 128) For while “the ideal arrangement for a child . . . is to be both wanted and raised within a stable two-parent family,” that “may not always be possible.” (p. 128)
In sum, as we continue the important conversation about how best to help families flourish, it may be worth considering Sawhill’s prescription of combining elements from the traditionalist and village builder approaches with a goal of promoting a norm of childbearing and parenting “by design, and not by default.”
Professor Linda C. McClain is Professor of Law at Boston University and may be reached at lmcclainatbu.edu