It will be efficient to start with the last point and
work backward to the others. Why are previously skeptical liberal
social scientists gradually moving toward supporting marriage as
public policy? The answer is this: strong emotional investments by
parents in children are the presupposition for creating the
emotional health required to form democratic virtues in children
and youth. McClain actually agrees that strong and warm
attachments create a foundation for democratic citizenship, but she
denies that the two-parent intact family has an advantage in this.
One of the most peculiar features of this otherwise careful book is
absolutely no discussion of the emerging consensus in the social
sciences that children do better on almost every measure of health
and wellbeing if they are raised in the married, two-parent
family. To the contrary, she holds that
a "close parent-teen relationship does not, in itself,
vouchsafe good citizenship." In this, McClain is
doubtless partially right; close attachments may not be sufficient,
but they may be essential in the sense of foundational to all other
socializing measures. Democratic citizenship is not likely to
emerge in young people without the healthy attachments of the kind
that stable intact married parents on average can provide better
than other arrangements. The growing evidence of this
accounts for why the liberal social sciences are turning to what
some call a policy of "marriage-plus" - the idea of the cultural
and public support of marriage but without undercutting a variety
of other important governmental family supports, especially for
 Evidence of this can be found in a recent edition of
the journal The Future of Children on "Marriage and Child
Wellbeing" jointly sponsored by Princeton University and the
Brookings Institution. In a special issue, the most authoritative
summaries of the connection between marriage and child wellbeing
are reported. Much of this builds on evidence from Paul Amato's and
Alan Booth's Children at Risk (1997), research from the Center for
Law and Social Policy, and the Washington, D.C. research institute
called Child Trends. A recent literature review from Child
Trends concludes with the striking statement, "[R]esearch
clearly demonstrates that family structure matters for children,
and the family structure that helps children the most is a family
headed by two biological parents in a low-conflict marriage."
Recent reviews of the literature by The Center of Law and Social
Policy and the Institute for American Values point in the same
 Is there a new, totally unambivalent, consensus
in the social sciences on the importance of marriage for
children? Not quite, but there are strong trends in this
direction. In a recent review of 266 articles that in some
way address the issue of family structure from 1977 to 2002
published in the prestigious Journal of Marriage and Family, Norval
Glenn and Thomas Sylvester rated these articles on a 1-5 scale as
to whether they were either "sanguine" about the role of family
structure for child wellbeing or "concerned," meaning
pro-marriage. They found a major shift from 1977 to 1987
toward scientists who were "concerned" and a discernible but less
dramatic movement in this direction from 1987 until
2002. Even in this later period, 3.64 percent of the
articles believed that married biological parents made a measurably
positive difference to child wellbeing, when all other relevant
factors were controlled. What is intriguing about the
Glenn-Sylvester survey is the logical analysis they make of how
some social scientists have downplayed or denied the
family-structure effect. This was done by using various forms of
the "not in-and-of itself" or the "per se" argument of the kind
McClain used in denying the link between family structure and
democratic virtues. These arguments try to deflect attention from
structure to causal factors such as income or family process. Such
maneuvers are, according to Glenn and Sylvester, illogical because
of existing research demonstrating that family structure and father
absence themselves contribute to loss of income and poor family
 Such evidence, largely ignored by McClain, challenges
her a priori commitment to family diversity. In view of this
mounting evidence, one can appreciate the direction of the articles
in the Princeton-Brooking issue of "Marriage and Child Wellbeing"
when the introduction states, "The articles in this volume confirm
that children benefit from growing up with two married biological
parents. The articles also support a more active government
role in encouraging the formation and maintenance of stable,
low-conflict, two-parent families." The authors and
editors of this issue seem not to fear the prospect of government,
churches, and civil society channeling human sexuality and
childrearing towards marriage as long as this does not trump or
neglect other important job, tax, welfare, and justice supports for
families and their children. This is a position entirely
consistent with, and directly advocated by, the perspective of
critical familism and first introduced in the last full chapter of
From Culture Wars to Common Ground and repeated in Reweaving the
Social Tapestry, the background book for the consensus statement
achieved on family public policy sponsored by Columbia University's
The American Assembly. Although we did not use the term, for
all practical purposes it was a marriage-plus policy consistent
with the editorial in the Future of Children.
 The issue at stake, here, is the question of
channeling, something McClain is quite happy to aggressively use
law to accomplish with regard to equality in and between families.
But she is reluctant to do this to enhance the likelihood that
children will be raised by the parents who conceive them.
Increasingly, this particular issue is being seen as a question of
children's rights, well protected in the Universal Declaration of
Human rights. In addition, new evidence from both
sociology and evolutionary psychology shows significantly higher
levels of sexual and physical violence to children in cohabiting
families, domestic partnerships, single-parent homes, and
stepfamilies, making this issue of children's rights all the more
salient. McClain fears that promoting marriage in
law and public policy will trap women in violent homes. Unfortunately, she disregards
evidence collected by University of Chicago sociologist Linda Waite
and others demonstrating that violence to both adults and children
is far less in intact marriages than in cohabiting couples,
domestic partnerships, and other non-legal arrangements.
 All of this evidence indicates that an uncritical, if
not a priori, commitment to placing the channeling and sanctioning
power of law and government policy behind family diversity is not
justifiable. Nor is it a wise construal of liberal social
policy. Liberal social policy must not simply concentrate on
the procreative and intimacy rights of adults. A genuinely
liberal social philosophy must express itself in a life-cycle
theory of justice and equal regard. It must include the
interests of children behind the veil of ignorance - the veil that
in principle McClain honors so profoundly. Since small children
cannot fully articulate their own interests, adults must exercise
empathic imagination on their behalf. Increasingly, however,
young adults who were themselves children of divorce or conceived
through the aid of anonymous donors are wondering how it happened
that the public policies of their societies have so carelessly
disregarded their rights to be raised by the parents who conceived
them. Certainly, they want loving parents, and
may in fact have had them in the various adult arrangements that
raised them. They also are saying, however, that they want this
love thickened as nearly as possible by the deep identifications,
attachments, and investments that come from knowing and
having been raised, if possible, by their parents of procreation
 The dynamics of modernization are such that we can be
certain that there will be family diversity in the form of divorce,
nonmarital births, cohabiting couples, and other so-called
non-traditional family formations. Critical familism has no
systematic animosity toward these families and acknowledges that
public policy in the form of welfare, tax strategies, and medical
supports is required to address their needs, especially those of
their children. Indeed, critical familism has offered a long
list of such supports. Critical familism has proposed something
like the GI Bill of rights, but in this case for parents, married
or not. It would guarantee parents who leave the job market for
several years to care for children the possibility of joining it
again, with job training and other supports, at approximately where
they left. For single parents on welfare, it has
proposed no more than a 30-hour work week; significantly increased
medical insurance; childcare supports; transportation supports; and
huge increases in tax exemptions and earned-income allowances for
all families with children, regardless of form. Whereas
McClain would meet the dislocations of modernization and cultural
individualism by championing them in the name of diversity,
critical familism addresses them with a strong reliance on
reconstructed religious traditions, a social policy guided by an
ethics of equal regard within families, and a differentiated
welfare policy targeted to meet the needs of families with children
without redefining legal and cultural institutions in ways that
would further aggravate, if not channel, social
 Critical familism resists the proposals found in
McClain, the Canadian Beyond Conjugality, The Principles of the Law
of Family Dissolution, and several other leading family law
theorists. These perspectives would institute a broadened
definition of marriage and family and invent a wide range of legal
equivalents to marriage as a way of addressing the dependency and
welfare needs of modern societies. In the name of equal regard to
both adults and children, I propose fashioning both civil society
and the law to promote more equal regard and justice in both the
public and domestic spaces of marriages and families, but without
dismantling the use of law to channel through the institution of
marriage the integration of sexuality, kin altruism, and extended
family solidarity and the value of these integrations for the good
 Critical familism brings together a program for the
reconstruction of religious tradition, law, and public policy
toward the equal-regard marriage and family and adds to it the
emerging concept called "marriage-plus." It does this in ways that
maintain continuity between public policy and a critical
hermeneutic retrieval of the marriage traditions of the dominant
theological and philosophical strands of the Christian tradition.
Through a similar task of reconstruction, the methodology of
critical familism can doubtless bring the modern law of families
into at least a rough congruence with other major religious
traditions as well. This is a task and discussion that I have begun
in other places but must be carried further at another time and in
Linda McClain, The Place of Families: Fostering Capacity,
Equality, and Responsibility (Cambridge, Mass.: Harvard University
Press, 2006). (Hereafter, referred to as TPF.)
The phrase critical familism, however, does not represent the
views of all the scholarly contributions to that project. It mainly
refers to my co-authored contributions found in Don Browning,
Bonnie Miller-McLemore, Pamela Couture, Bernie Lyon, and Robert
Franklin, From Culture Wars to Common Ground: Religion and the
American Family Debate (Louisville, KY: Westminster John Knox,
1997, 2000); Don Browning and Gloria Rodriguez, Reweaving the
Social Tapestry: Toward a Public Philosophy and Policy for Families
(New York, NY: W.W. Norton, 2002); my Marriage and Modernization
(Grand Rapids, MI: Wm. B. Eerdmans, 2003); and a number of
Not only does McClain discuss critical familism and the
Religion, Culture, and Family Project in The Place of Families, she
also does this in her "Intimate Affiliation and Democracy: Beyond
Marriage?" Hofstra Law Review 32:1 (Fall 2003), pp. 379-421.
In this article, I also will show how McClain compares and
contrasts with other major legal theorists and positions, such as
Margaret Brinig, June Carbone, Martha Fineman, Lawrence Friedman,
Richard Posner, Milton Regan; the Law Commission of Canada's Beyond
Conjugality: Recognizing and Supporting Close Personal Adult
Relationships, 2002); and The Principles of the Law of Family
Dissolution (The American Law Institute, 2002).
For a fuller discussion of these various separations that have
evolved in the sexual and reproductive field, see Brent Waters,
Reproductive Technology: Toward a Theology of Procreative
Stewardship (Cleveland, OH: Pilgrim, 2001).
Michael Grossberg, Governing the Hearth: Law and Family in
Nineteenth Century America (Chapel Hll, NC: University of North
Carolina Press, 1985).
For how religious traditions carry models of practical
rationality, see Don Browning, A Fundamental Practical Theology
(Minneapolis, MN: Fortress Press, 2001).
The Principles of the Law of Family Dissolution (The American
Law Institute, 2002).
Beyond Conjugality: Recognizing and Supporting Close Personal
Relationships (Law Commission of Canada, 2002).
Margaret Brinig, From Contract to Covenant: Beyond the Law and
Economics of the Family (Cambridge, Mass.: Harvard University
June Carbone, From Partners to Parents: The Second Revolution in
Family Law (New York: Columbia University Press, 2000).
Martha Fineman, The Illusion of Equality: The Rhetoric and
Reality of Divorce Reform Chicago, IL: The University of Chicago
Press, 1991); The Neutered Mother: The Sexual Family and Other
Twentieth Century Tragedies (New York, NY: Routledge, 1995): The
Autonomy Myth: A Theory of Dependency (New York, NY: The New Press,
Lawrence Friedman, Private Lives: Families, Individuals, and the
Law (Cambridge, Mass.: Harvard University Press, 2004).
Richard Posner, Sex and Reason (Cambridge, Mass.: Harvard
University Press, 1992).
Milton Regan, Family Law and the Pursuit of Intimacy (New York,
NY: New York University Press, 1993).
For how critical familism follows Luther in seeing marriage as a
highly central religious and secular good even though not as such a
sacrament and not itself equivalent to salvation or justification,
see my discussion in Marriage and Modernization, pp. 22-23.
Browning, et. al., From Culture Wars to Common Ground, pp.
For a discussion of the Greco-Roman family patterns of the urban
centers of ancient Israel to which early Christian families
put their "spin, " see Carolyn Osiek and David
Balch, Families in the New Testament World: Households and
House Churches (Louisville, KY: Westminster John Knox, 1997),
 John Witte, From Sacrament to Contract (Louisville, KY:
Westminster John Knox, 1997), pp. 23-30.
For an analysis of the levels of practical reason in Christian
marriage, see Browning, et. al., From Culture Wars to Common Ground
(2nd edition, 2004), pp. 335-341; John Witte, From
Sacrament to Contract, pp. 21-30
Andre LaCocque and Paul Ricoeur, Thinking Biblically
(Chicago: University of Chicago Press, 1998), p. 54; for a
discussion of the meaning of equal regard, see Louis Janssens,
"Norms and Priorities of a Love Ethics," Louvain Studies 6 (1977),
Halvor Moxnes, "Honor and Shame," Biblical Theology Bulletin
23:4 (Winter 1993), pp. 167-76
From Culture Wars to Common Ground, p. 2.
The idea of the 60-hour work week for married couples in the
work force with children was first developed in From Culture
Wars to Common Ground, pp. 316-318. This idea was also
proposed in the consensus statement on families produced by the
"Final Report of the Ninety-Seventh American Assembly," in Browning
and Rodriguez, Reweaving the Social Tapestry, p. 190.
Fineman, The Autonomy Myth, p. 134.
June Carbone, From Partners to Parents, p. xiii.
Fineman, The Neutered Mother, p. 145.
Carbone, From Partners to Parents, p. xv.
McClain, TPF, pp. 7, 191-193. Regan also retains marriage
and extends it to same-sex couples, but does not extend its
benefits to cohabiting couples and other intimate relations as
would McClain. See his Family Law and the Pursuit of
Intimacy, p. 123.
McClain, TPF, p. 156.
The Principles of the Law of Family Dissolution, chpt. 6; Beyond
Conjugality, pp. ix, x, 34. 118.
McClain, TPF, 32, 178-181.
The Principles of the Law of Family Dissolution, p. 912; Posner,
Sex and Reason, pp. 4, 181-199; Friedman, Private Lives, p. 9;
Beyond Conjugality, p. xvi, 1.
Brinig develops a secular covenantal model of marriage and
family law based on a kind of phenomenology of classical Jewish and
Christian models of covenant. See her From Contract to
Covenant, pp. 1, 4, 6, 7.
Regan tries to develop for family law what he calls a
"relational ethic" that enables him to restore a status model of
marriage, in contrast to a narrow contractual one. See his Family
Law and the Pursuit of Intimacy, pp. 90-93, 179-180.
The use of the word "fostering" in the subtitle, i.e.,
Fostering Capacity, Equality, and Responsibility, should be taken
to point to an active, although non-coercive, role for law and
government in promoting these virtues. See TPF, pp. 118,
Brinig, From Contract to Covenant, p. 130.
McClain, TPF, p. 217; see also Regan, Family Law and the Pursuit
of Intimacy, p. 105.
McClain, TPF, pp. 210-216.
Ibid., p. 210; see also, The Principles of the Law of Family
Dissolution, p. 924.
Fineman, The Autonomy Myth, p. 123; Beyond Conjugality, p. 113;
McClain, TPF, p. 191.
For McClain's use of Okin and Rawls, see TPF, pp. 10, 25,
Ibid., pp. 19-22, 156-157.
See the following studies which McClain addresses that outline
the role of civil society in shaping democratic citizenship: A Call
to Civil Society: Why Democracy Needs Moral Truths (New York:
Institute for American Values and the University of Chicago
Divinity School, 1998), and A Nation of Spectators: How Civic
Disengagement Weakens America and What We Can Do about It (The
National Commission on Civic Renewal, 1998).
McClain, TPF, pp. 51, 62-63.
Ibid., pp. 5-6, 193.
Carl Schneider, "The Channeling Functions of Law," Hofstra Law
Review 20 (1992), p. 495; McClain, TPF, p. 23.
McClain, TPF, pp. 29, 38-40.
Ibid., pp. 29,-38-40.
Ibid., pp. 8-9, 46-47.
Brian Blix, "Law as an Autonomous Discipline," The Oxford
Hardbook of Legal Studies, ed. by Peter Cane and Mark Tushnet
(Oxford: Oxford University Press, ? ), pp. 981, 981.
Louis Janssens, "Norms and Priorities of a Love Ethics," Louvain
Studies, p. 210; William Frankena, Ethics (Englewood Cliffs, N.J.:
Prentice-Hall, 1973), p. 14.
McClain, TPF, pp. 5, 136-137.
Ibid., pp. 121, 148-149.
Steven Nock, Marriage in Men's Lives (Oxford: Oxford University
Gloria Albrecht, "Ideals and Injuries: The Denial of Difference
in the Construction of Christian Family Ideals," Journal of the
Society of Christian Ethics 25:1 (Spring/Summer 2005), p.
My analysis of how marriage integrates a variety of male and
female human tendencies is based significantly on the views of
Thomas Aquinas. Here the weight is on the institution, and
not simply on the moderating powers of women. In fact, the argument
is precisely that without the institution, sanctioned by covenant
and sacrament, individual human appeal alone will not work in
integrating either men or women. See Browning, et.al., From
Culture Wars to Common Ground, pp. 118-124, and Browning, Marriage
and Modernization, pp. 84-94. See also the institutional
analysis of marriage put forth by Linda Waite and Maggie Gallagher,
The Case for Marriage (New York: Doubleday, 2000) and the review of
that book by Don Browning, Kelly Brotzman and David Clairmont,
"Marrying Well," The Christian Century, 118:6 (February, 2001), pp.
20-25. Here is our summary of the Waite-Gallagher argument about
the role of marriage as an institution in promoting the integrating
benefits of marriage as an institution. "Marriage as an institution
entails public commitments not only between the husband and wife
but also between them and their friends, extended families, the
state and the church. Make this public commitment as a
promise - possibly even as a covenant or sacrament - and these
benefits are likely to follow from it. This may be true even
if the benefits themselves were not what motivated these public
promises and commitments in the first place."(p. 22)
Aristotle, "Politics," in The Basic Works of Aristotle,
ed. by Richard McKeon (New York: Random House, 1941), bk. 1, chap.
Ibid. bk. 2, chap. 3.
Thomas Aquinas, "Supplement," Summa Theologica, III (New York:
Benziger Brothers, 1948), q. 41-42.
See especially, Pope Leo XIII, "Rerum Novarum," Proclaiming
Justice and Peace: Papal Documents from Rerum Novarum through
Centesimus Annus (Mystic, Conn: Twenty-Third Publications), pp. 20,
30, 34; Pius XI, "Casti Connubii" (New York: The Barry Vail
Corporation, 1931) and "Quardragesimo Anno," in The Papal
Encyclicals (McGrath, 1981).
Don Browning, "The Meaning of the Family in the Universal
Declaration of Human Rights," A. Scott Loveless and Thomas Holman
(eds.), The Family in the New Millenium, Vol. I (Westport,
CT: Praeger, 2007), pp. 38-53; Don Browning, "The U.N.
Convention on the Rights of the Child: Should it be Ratified?,"
Emory International Law Review 20:1 (Spring, 2006), pp.
Brian Gerrish, Grace and Reason (Oxford: Oxford University
Press, 1962), pp. 8-9; John Witte, Law and Protestantism: The Legal
Teachings of the Lutheran Reformation (Cambridge: Cambridge
University Press, 2002), p. 92.
Martin Luther, "The Estate of Marriage," Luther's Works, 45
(Philadelphia, PA: Muhlenberg Press, 1959), p. 18.
For a detailed historical summary of how Christian marriage
combines Christian deontological and covenantal symbols of marriage
with Greek teleological justifications of the institution, see John
Witte, "The Goods and Goals of Marriage: The Health Paradigm in
Historical Perspective," in John Wall, Don Browning, William
Doherty, and Stephen Post, (eds.) Marriage, Health, and the
Professions (Grand Rapids, MI: Wm. B. Eerdmans, 2002), pp.
St. Augustine, "The Goods of Marriage," The Fathers of the
Church, 9 (New York: Fathers of the Church, 1955), pp. 13,
Charles Ried, "The Augustinian Goods of Marriage: The
Disappearing Cornerstone of the American Law of Marriage," BYU
Journal of Public Law, 18 (May 2004), pp. 339-478.
Aquinas, Summa Theologica, II, ii, q. 26, a. 3.
Don Browning, "Adoption and the Moral Significance of Kin
Altruism" in Timothy Jackson (ed.), The Morality of Adoption (Grand
Rapids, MI: Wm. B. Eerdmans, 2005), pp. 52-77.
McClain, TPF, pp. 24, 32, 178.
There is no mention, discussion, or attempt to refute in The
Place of Families the landmark social-science studies on the
correlation between married, intact families and child wellbeing
such as Sarah McLanahan and Gary Sandefur, Growing Up with a Single
Parent (Cambridge, Mass: Harvard University Press, 1994) or Paul
Amato and Alan Booth, A Generation at Risk: Growing up in an Era of
Family Upheaval (Cambridge, Mass: Harvard University Press,
McClain, TPF, p. 67.
"Marriage and Child Wellbeing," The Future of Childhood, 15:2
Kristin Anderson Moore, Susan M. Jekielek, and Carol
Emig, "Marriage from a Child's Perspective: How Does Family
Structure Affect Children, and What Can be Done about It?" Research
Brief, June 2002. (Washington, DC: Child Trends), p. 6.
Mary Parke, Are Married Parents Really Better for Children?
(Washington, DC: Center for Law and Social Policy, 2003).
Norval Glenn and Thomas Sylvester, "Trends in Scholarly Writing
on Family Structure Since 1977 in the Journal of Marriage and
Family," Journal of Marriage and Family, I and II, 2007, in
Sara McLanahan, Eisabeth Donahue, and Ron Haskins, "Introducing
the Issue," The Future of Children 15: 2 (Fall 2005), pp.
See Article 16, 3 in Universal Declaration of Human Rights,
published in Mary Ann Glendon, A World Made New (New York:
Random House 2001).
Martin Daly and Margo Wilson, The Truth about Cinderella: A
Darwinian View of Parental Love (London: Weidenfeld and
Nicolson, 1998). One of the most intriguing reviews of
this literature can be found in the writings of legal scholar Robin
Wilson demonstrating the startling higher incidence of daughter
sexual abuse by fathers in stepfamilies, information which should
not be used to denigrate blended families but be used to alert us
that family form does count and that government and civil society
should not adopt policies that promote it under the banner of a
romantic view of "self-governance." See Robin Fretwell
Wilson, "Children at Risk: The Sexual Exploitation of Female
Children after Divorce," Cornell Law Review 86:2 (January
2001), pp. 251-327.
McClain, TPF, p. 132.
Waite and Gallagher, The Case for Marriage, pp.
See the provocative writings on this issue by Canadian medical
ethicist Margaret Somerville, "What about the Children," Divorcing
Marriage, edited by Daniel Cere and Douglas Farrow (Montreal:
McGill-Queen's University Press, 2004), pp. 63-78 and The
Ethical Canary (Toronto: Viking, 2000).
Browning, et. al., From Culture Wars to Common
Ground, p. 331.
Ibid., pp. 325-326, 330-331. Many of the ideas proposed in
From Culture Wars to Common Ground were discussed in Reweaving the
Social Tapestry written as the background book for the year 2000
American Assembly on family policy; see pp. 114-117. Several of
these proposals were adopted by the consensus statement approved by
the 53 participants of the Assembly. See the "Final Report of
the Ninety-Seventh American Assembly" in Reweaving the Social
Tapestry, pp. 193-194.
Beginning efforts toward this dialogue between the major world
religions and law can be found in Browning, Marriage and
Modernization, chpts. 5 and 9, and also in the introduction to Don
Browning, Christian Green, and John Witte (eds.), Sex, Marriage,
and the Family in the World Religions (New York: Columbia
University Press, 2006) and Don Browning and David Clairmont
(eds.), American Religions and the Family (New York: Columbia
University Press, 2006).
© February 2007
Journal of Lutheran Ethics (JLE)
Volume 7, Issue 2